[Congressional Record Volume 145, Number 26 (Friday, February 12, 1999)]
[Senate]
[Pages S1462-S1637]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
TRIAL OF WILLIAM JEFFERSON CLINTON, PRESIDENT OF THE UNITED STATES
Mr. GORTON. Mr. President, the statement that I am placing in the
record is the statement I would have given had I been permitted to
speak longer and in open session. During our closed deliberations, I
gave a similar, but abridged statement.
For almost two years, the President of the United States was engaged
in what he has come to describe as an ``inappropriate intimate''
relationship with a young woman who came to his attention as a White
House intern. He then lied about their relationship, publicly,
privately, formally, informally, to the press, to the country, and
under oath, for a period of about a year.
This course of conduct requires us to face four distinct questions.
First, we must determine if the material facts alleged in the
Articles of Impeachment have been established to our satisfaction.
Second, do the established facts constitute either obstruction of
justice or perjury, or both?
Third, are obstruction of justice and perjury high Crimes and
Misdemeanors under the Constitution?
And, fourth, even if the acts of the president are high Crimes and
Misdemeanors, are they of sufficient gravity to warrant his conviction
if it allows of no alternative other than his removal from office?
The first article of impeachment alleges that the President committed
perjury while testifying before the Starr grand jury. Although the
House Managers assert that his testimony is replete with false
statements, it is clear, at the least, that his representations about
the nature and details of his relationship with Miss Lewinsky are
literally beyond belief.
From November 1995, until March 1997, the President engaged in
repeated sexual activities with Monica Lewinsky, who was first a
volunteer at and then an employee of the White House and eventually the
Pentagon. Though he denies directly few of her descriptions of those
activities, he testified under oath that he did not have ``sexual
relations'' with her. His accommodation of this paradox is based on the
incredible claim that he did not touch Miss Lewinsky with any intent to
arouse or gratify anyone sexually, even though she performed oral sex
on him.
It seems to me strange that any rational person would conclude that
the President's description of his relationship with Miss Lewinsky did
not constitute perjury.
In addition, while we are not required to reach our decision on these
charges beyond a reasonable doubt, I have no reasonable doubt that the
President committed perjury on a second such charge when he told the
grand jury that the purpose of the five statements he made to Mrs.
Currie after his Jones deposition was to refresh his own memory.
The President knew that each statement was a lie. His goal was to get
Mrs. Currie to concur in those lies.
The other allegations of perjury are either unproven--particularly
those requiring a strict incorporation of the president's Jones
deposition testimony into his grand jury testimony--or are more
properly considered solely--with those already discussed--as elements
of the obstruction of justice charges in Article II.
To determine that the president perjured himself at least twice,
however, is not to decide the ultimate question of guilt on Article I.
That I will discuss later.
All the material allegations of Article II seem to me to be well
founded. Four of them, however, those regarding the president's
encouraging Miss Lewinsky to file a false affidavit and then to give
false testimony, those regarding the president's failure to correct his
attorney's false statements to the Jones court, and those bearing upon
the disposal of his gifts to her are not, in my mind, proven beyond a
reasonable doubt. Again, I do not believe this standard to be required
in impeachment trials, but because I believe that the other three
factual allegations of Article II do meet that standard, I adopt it for
the purposes of this discussion.
(1) From the time she was transferred to the Pentagon in April, 1996,
Miss Lewinsky had pestered the president about returning to work at the
White House, and, other than some vague referrals, until October 1,
1997, the President had done nothing to make this
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happen and little to help her find another job.
On the first of October, 1997, the president was served with
interrogatories in the Jones case asking about his sexual relationships
with women other than his wife, and during the rest of October the
President and his agents stepped up their efforts to find Miss Lewinsky
a job. Three weeks later, on October 21, the United States Ambassador
to the United Nations, Bill Richardson, called Miss Lewinsky personally
to schedule an interview in her apartment complex, though apparently he
interviewed no one else. Shortly after this unusual interview, the
Ambassador created a new position in New York and offered it to Miss
Lewinsky.
What is perhaps most striking about the U.N. job is not even how
promptly it materialized, nor that the United States Ambassador was so
personally involved in hiring a young woman with precious little job
experience, but that Ambassador Richardson held the specially crafted
sinecure open for two months while the former intern kept him waiting
on her decision.
When Miss Lewinsky decided that she preferred the private sector, the
president enlisted the help one of his closest personal friends, one of
the most influential men in the United States, Vernon Jordan. Miss
Lewinsky met with Mr. Jordan in early November. Mr. Jordan, who was
acting at the President's behest, apparently did not fully appreciate
how important it was for him to cater to Miss Lewinsky, and took no
action for a month.
The President and Mr. Jordan realized, however, on December 5, 1997,
the importance of satisfying Miss Lewinsky 's fancy when her name
appeared on the Jones witness list. Before that date, the President
needed Miss Lewinsky only to commit a lie of omission--simply to
refrain from making their relationship public. Her appearance on the
witness list now meant that she would have to lie under oath.
Fully appreciative of the higher stakes, the President redoubled his
efforts and those of his agents to find Miss Lewinsky a job and keep
her in his camp. In the weeks after Miss Lewinsky's name appeared on
the witness list, Mr. Jordan kept the President apprised of his efforts
to find work for her in the private sector. He called his contacts at
American Express, Young & Rubicam, and MacAndrews & Forbes (Revlon's
parent corporation). When Miss Lewinsky was subpoenaed on December 19,
1997, to be deposed in the Jones case, Mr. Jordan oversaw the
preparation of the affidavit that the President had suggested she file
in lieu of testifying. On January 7, 1997, Miss Lewinsky signed the
affidavit, which she later admitted was false, denying that she had a
``sexual relationship'' with the President. On January 8, she
interviewed with MacAndrew & Forbes. When she told Mr. Jordan that she
had done poorly, he called the Chairman of the Board, Ronald Perelman,
to recommend Miss Lewinsky, whom he commended as ``this bright young
girl, who I think is terrific.'' As a result of this conversation, Miss
Lewinsky was called back for another interview with MacAndrews the
following day and given an informal offer. On January 9, she reported
this to Mr. Jordan, who called Mrs. Currie with the message, ``mission
accomplished'' and then called the President himself to share his
success.
The President's lawyers arranged for Miss Lewinsky's affidavit to be
filed on January 14, 1998. After this date, although Miss Lewinsky did
not end up with a job in the private sector, neither the President nor
Mr. Jordan, who so resolutely pursued their earlier mission, lifted a
finger to help the ``bright * * * terrific'' young woman. Why? Because
shortly thereafter the fiction of the president's platonic relationship
with Lewinsky had exploded. Monica Lewinsky was the same Monica
Lewinsky, but she now could no longer protect the President.
It is impossible to reconcile the President's course of conduct with
any purpose other than to preclude Miss Lewinsky's truthful testimony
in the Jones case, or, indeed, to prevent her testifying at all. The
case for obstruction of justice is clear. Obstruction was the
President's only motive.
(2) Next we have the Currie conversation--a set of statements by the
President in the nominal form of questions, addressed by the President
to Mrs. Currie on the Sunday evening following his Jones deposition
when she was called to the White House at an extraordinary time and for
apparently a single purpose. We are all familiar now with the questions
he posed:
``I was never really alone with Monica, right?''
``You were always there when Monica was there, right?''
``Monica came on to me, and I never touched her, right?''
``You could see and hear everything, right?''
``She wanted to have sex with me, and I cannot do that.''
Those five statements have a single common thread: the President knew
each and every one of them to have been totally false.
Had Mrs. Currie been willing to confirm the President's suggestions,
she would have been a devastatingly effective witness for him.
There is no reasonable explanation of this incident other than it is
the President's clear attempt to obstruct justice, both in the Jones
case and in the subsequent grand jury investigation.
(3) The false self-serving statements by the President to senior
members of his staff, to his cabinet, and to the American people just
after his affair became public present a somewhat different face. It is
reasonably clear that, at the time at which they were made, the
President's goal, at least in part, was to save face with his staff and
put a less humiliating spin on the Lewinsky matter. At the same time,
coupled with his public statements, the President's assertions to his
staff were designed to influence their testimony at some future time
and place and to enlist them in disguising his conduct. In fact, they
did obstruct the grand jury investigation. The President's manipulation
of friendly witnesses to testify falsely, if unknowingly, extended for
months until the DNA evidence shattered both his public and private
positions.
The President's attempt to derail the Independent Counsel's inquiry--
an inquiry the very purpose of which was to discover whether the
President gave false testimony and tampered with witnesses--by lying to
his colleagues, his cabinet, his confidantes, the media, the American
people, and ultimately, the grand jury, is--beyond a reasonable doubt--
a wide-ranging and highly public obstruction of justice, deeply
damaging to the judicial fabric of the United States.
One final note: to the extent that there are unresolved questions of
fact, almost every one of them could be resolved by truthful and
complete testimony by the President himself. That is a course of action
he spectacularly avoided both in his Jones deposition and before the
Starr grand jury. Now, he refuses to answer interrogatories from
Senator Lott and refuses to appear at this trial to testify on his own
behalf.
Under the circumstances, is it not appropriate to infer that to tell
the truth would be to confirm all of the questionable charges against
him? I have not done so for the purposes of this argument, and have
considered only those charges proven beyond a reasonable doubt, but the
president's silence allows the inference that every one of the factual
charges by the House managers is true.
With sufficient material facts alleged in the two Articles of
Impeachment either essentially uncontested or established by
overwhelming evidence, and with those facts clearly constituting both
perjury and obstruction, we arrive at the third question before the
Senate. Are perjury and obstruction of justice high Crimes and
Misdemeanors under the impeachment clause of the Constitution?
This is the easiest of the four questions to answer. Perjury and
crimes less serious than obstruction of justice have always and
properly been considered high Crimes and Misdemeanors.
In 1986 Judge Claiborne was convicted by the Senate and removed from
office for filing a false income tax return under penalties of perjury.
By a vote of 90 to 7, the Senate rejected his argument that he should
not be convicted because filing a false return was irrelevant to his
performance as a judge. In 1989, Judge Nixon was convicted by the
Senate and removed from office for perjury: in fact, for lying under
oath to a grand jury. And in that same year, Judge Hastings was
convicted of lying under oath and removed
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by the Senate even though he had already been acquitted in a criminal
trial. (It is generally recognized that an act need not be criminal in
order to be impeachable.) As these examples illustrate, perjury is and
historically has been a sufficient cause for conviction and removal.
Although no person has been convicted and removed for obstruction of
justice, the nature and gravity of this crime, punished more harshly
under our laws than bribery, clearly is also a sufficient cause for
conviction and removal.
Most of the Senate's precedents, of course, are based on the
impeachment trials of judges. President Clinton argues that those
precedents should not apply; that presidents, who hold the highest
office in the land, should benefit from a lower standard for removal
than the judges they appoint and the military officers they command.
This President would have presidents remain in office for acts that
have resulted in the dismissal of military officers under his command,
in the removal of judges, and for acts that would have resulted in the
removal of Senators like Bob Packwood, who, like the President, are
popularly elected for a fixed term. As House Manager Canady has pointed
out, the 1974 report by the staff of the Nixon impeachment inquiry
concluded that the constitutional provision stating that judges would
hold office during ``good Behaviour,'' does not limit the relevance of
judges' impeachments with respect to standards for presidential
impeachments. The President's argument that he should be held to a
lower standard than judges, military officers and Senators has no basis
in the Constitution, in precedent, in equity, or in common sense.
The fourth and ultimate question, nevertheless, is considerably more
difficult to answer. For me, the proof of material facts supporting
some of the allegations is overwhelming, the proposition that the
established facts of the President's conduct constitute perjury and
obstruction of justice almost impossible to deny, and the conclusion
that perjury and obstruction of justice are high Crimes and
Misdemeanors a given.
But the inevitable result of a guilty verdict in this trial is the
President's removal from office, and I believe that reasonable minds
can differ on whether or not that consequence is appropriate. So does
at least one of the House Managers. In answering the question of
whether removal is too drastic a remedy for these alleged acts of
perjury and obstruction of justice, Lindsey Graham, one of the most
thoughtful Managers, stated that great minds may not necessarily agree
on the question of whether, for the good of the nation, one should or
should not remove this President for these high crimes. Removal, he
said, is the equivalent of the political death penalty, and the death
penalty is not imposed for every felony. Considerations such as
repentance and the impact of removal on society should also be
considered. (Mr. Graham's view was not , incidentally, that reasonable
minds could differ on any of the first three questions that I have
outlined, but only on the ultimate question of removal.)
While removal upon conviction has not always been considered
inevitable, I agree that Article II, Section 4 of the Constitution
requires a mandatory sentence of removal upon conviction of high Crimes
and Misdemeanors. Nevertheless, a number of thoughtful commentators,
and at least a few members of this Senate, have already decided that
removal is too drastic a sanction. These commentators and members--who
are convinced, perhaps, that the President committed perjury and
obstruction of justice, which, as classes of crime, are high Crimes and
Misdemeanors--may nevertheless vote not to convict because they believe
that removal from office is unwarranted for this perjury and this
obstruction of justice.
I share that conclusion with respect to Article I, but not Article
II.
On Article I I have decided, with some regret, that the instances of
perjury I believe were established beyond a reasonable doubt are
offenses insufficient for removing the President from office--based on
the gravity of the offenses as against the drastic nature of removal.
Equally important is the fact that these instances of perjury are also
elements of the obstruction of justice charges in Article II. One
conviction for the same acts of perjury is enough.
Nevertheless, I am convinced that one other reflection must precede a
decision based on the belief that removal is disproportionate to the
gravity of the offenses established here, and that is: what are the
consequences of a not guilty finding by the Senate? The consequences
are, of course, no sanction whatsoever.
It is precisely because the absence of any sanction is so
objectionable to those who choke over removal that there has been such
a spirited search for a third way. But, fellow Senators, there is no
third way. There is no third way.
Article I, Section 3 of the Constitution states: ``Judgment in Cases
of Impeachment shall extend no further than to removal from Office, and
disqualification to hold and enjoy any Office of honor, Trust, or
Profit under the United States * * *.''
The drafters did not intend to allow Congress to choose among a range
of punishments analogous to those available to the judiciary, and for
this reason they specified that the impeached party was to remain
subject to judicial process and specifically limited to two--removal
and disqualification--the sanctions that Congress could apply.
We must, I believe, by reason of this harsh choice consciously forced
on us at the Constitutional Convention in 1787, weigh seriously the
effect on the Republic of either of our two possible courses of action.
Will the Republic be strengthened, or will it be weakened, by
determining that a president shall remain in its most exalted office
after perjuring himself and obstructing the pursuit of justice both of
a private citizen and of a federal grand jury, in a case occasioned by
the president's sexual activities? Will the Republic be strengthened or
weakened by removing the President from office by an impeachment
conviction for this perjury and this obstruction?
Early in our history an incident involving one of the authors of the
Constitution, Alexander Hamilton, shows clearly the bright line
between, on the one hand, a private sexual scandal, and on the other, a
public obligation--a line the president has intentionally crossed.
In No. 65 of the Federalist Papers, Mr. Hamilton described
impeachable offenses as ``those offences which proceed from the
misconduct of public men, or, in other words, from the abuse or
violation of some public trust. They are of a nature which may with
peculiar propriety be denominated POLITICAL, as they relate chiefly to
injuries done immediately to the society itself.'' The president's
defenders place great reliance on this explanation.
Within four years of the composition of this essay, Mr. Hamilton had
an opportunity to reflect on his own words. In the summer of 1791,
Hamilton, then the Secretary of the Treasury, had an adulterous affair
with a Maria Reynolds. Her husband discovered the affair and demanded a
job in the Treasury Department. Though Secretary Hamilton turned him
down, he did pay blackmail from his personal funds.
A year later, three Congressmen, all politically opposed to Hamilton,
learned of the payments, suspected that they might involve Treasury
funds, and confronted Hamilton. Despite the tremendous political
advantage the story, which eventually leaked, offered them, he
immediately and without hesitation told them the truth and nothing but
the truth.
The author of Federalist No. 65 knew very well the distinction
between a private scandal and the profound embarrassment arising out of
its publication--and the violation of a public duty in an attempt to
avoid that embarrassment. He chose not to use his Treasury position in
a way that would justify an impeachment. The personal cost was immense
and he assumed it without blinking.
President Clinton could hardly have chosen a more different course of
action. He chose to violate both his oath of office and his oath as a
witness, using his office, his staff and his position to try to avoid
personal embarrassment. In any event even the personal consequences for
him have been far worse than those visited upon Alexander Hamilton. But
it is our duty to determine whether he merits a drastic public
sanction--or none at all.
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Some will say that the President can be charged with crimes related
to this affair after his term of office is over.
First, such charges lie outside our jurisdiction or duty.
Second, such charges seem to me to be unlikely if we acquit the
President, or in any event.
But third, and most important, let us assume that President Clinton
is charged, convicted, and sentenced in 2001. What a devastating
judgment on the Senate of the United States that would be! We ourselves
would be convicted, by history and forever, of having permitted a felon
who abused his office in committing his felonies to remain in office as
President of the United States for two long years.
I simply cannot imagine any Senator willing to carry that burden of
conscience.
No, we must choose between the sanction of removal and no sanction at
all. We know how Alexander Hamilton would vote today on our question.
We know how James Madison, one of Hamilton's interrogators and the
careful author of the impeachment provision, would have voted. And
merely to call up the name of George Washington is to answer the
question of how he would vote.
The Republic will not be weakened if we convict. The policies of the
presidency will not change. The Administration will not change.
But if we acquit; if we say that some perjuries, some obstructions of
justice, some clear and conscious violations of a formal oath are free
from our sanction, the Republic and its institutions will be weakened.
One exception or excuse will lead to another, the right of the most
powerful of our leaders to act outside the law--or in violation of the
law--will be established. Our republican institutions will be seriously
undermined. They have been undermined already, and the damage accrues
to all equally--Republicans, Democrats, liberals, and conservatives.
If there is one thing this President can be relied on to do, it is to
put his interests before those of his office and of the Republic.
President Clinton has debased the presidency now and, if he is allowed
to remain in office, the low level to which he has brought the
presidency will continue, and that is not tolerable.
I cannot will to my children and grandchildren the proposition that a
president stands above the law and can systematically obstruct justice
simply because both his polls and the Dow Jones index are high.
Our duty in this case is as unpleasant as it was unsought. But our
duty is clear. It was imposed on us, by history, without equivocation,
212 years ago. It requires us to convict the President of Article II of
these Articles of Impeachment. And that is how I vote, with clear
conscience and saddened heart.
Mr. FEINGOLD. Mr. Chief Justice, my colleagues, like many others, the
day the President wagged his finger at the American people and
indicated he had not been involved with Ms. Lewinsky, I had the sense
that he wasn't telling the truth and I felt some genuine regret. The
President and I began here in Washington in the same month, in 1993. I
had high hopes and actually felt very close to what he was trying to
accomplish. So all along in this process, I have had to fight an urge
to personalize that regret in a way that would affect my ability to do
my job in this impeachment trial. And I will tell you that taking that
separate oath helped me get into the mindset necessary to do that task.
But let me say that I do regret that the President's public conduct--
not his private conduct--has brought us to this day.
But we are here, and I want to take a minute to praise my colleagues
on the process. I think it would have been unfortunate had we not had
any witness testimony--at least in the form of deposition testimony. I
think it would have been an unfortunate historical precedent. I found
the video testimony helpful. I didn't enjoy it, but I found it helpful
in clarifying some of the things that I was thinking about. So I am
glad, on balance, that we did not dismiss the case at the time it was
first suggested.
But as we get to the final stage and get immersed in the law and
facts of this case, it is too easy to forget the most salient fact
about this entire matter, and that is one simple fact that many others
have mentioned: In November 1996, 47 million Americans voted to reelect
President Clinton. The people hired him. They are the hiring authority.
An impeachment is a radical undoing of that authority. The people hire
and somehow, under this process, the Congress can fire. So, I caution
against, with all due respect to the excellent arguments made, the
attempt to analogize this to an employee-employer relationship, or a
military situation, or even the situation of judges--those situations
are all clearly different. Along with the choice of the Vice President,
in no other case, do the American people choose one person, and in no
other case can a completely different authority undo that choice.
Having said that, the Presidential conduct in this case, in my view,
does come perilously close to justifying that extreme remedy. There
really have been three Presidential impeachments in our Nation's
history. I see this one as being in the middle. The Andrew Johnson case
is usually considered by historians to have been a relatively weak
case. President Johnson had a different interpretation of the
constitutionality of the statute that he believed allowed him to remove
the Secretary of War, Mr. Stanton. He was not convicted, and
subsequently the U.S. Supreme Court, I believe, ruled that in fact that
was constitutional. I see that as having been a relatively weak case.
The case of Richard Nixon, in my view, was a pretty strong case,
involving a 1972 Presidential election and attempts to get involved
with the aspects of that election--frankly--an attempt to cover up what
happened during that 1972 election. I think that had more to do with
core meaning of ``high crimes and misdemeanors.''
This is a closer case; this is a close case. In that sense, it may be
the most important of the three Presidential impeachments, in terms of
the law of impeachment, as we go into the future. I agree neither with
the House managers who say their evidence is ``overwhelming,'' nor with
the President's counsel who says the evidence against the President is
``nonexistent.'' The fact is, this is a hard case, and sometimes they
say that hard cases make bad law. But we cannot afford to have this be
bad law for the Nation's sake.
So how do we decide? There have been a lot of helpful suggestions,
but one thing that has been important to me is the way the House
presented their case. That doesn't bind us, but they did suggest that
two Federal statutes had been violated. Mr. Manager McCollum said that,
``You must first determine if a Federal crime has occurred.'' Many
others have said that. I will reiterate a point. If that is the
approach you want to take, then it is clear, in my view as one Senator,
that you must prove that beyond a reasonable doubt. Otherwise, you are
using the power and the opprobrium of the Federal criminal law as a
sword but refusing to let the President and the defense counsel have
the shield of the burden of proof that is required in the criminal law.
I do not have time to discuss the perjury count this afternoon, but
will do so in a longer presentation for the Record. Suffice it to say I
do not believe the managers have met their burden of proving perjury
beyond a reasonable doubt.
As to obstruction of justice, the President did come perilously
close. Three quick observations make me conclude that, in fact, he did
not commit obstruction of justice beyond a reasonable doubt. First, I
am very concerned about the conversations between the President and
Betty Currie concerning the specifics of his relationship with Ms.
Lewinsky. But the critical question there is intent. Was his intent
about avoiding discovery by his family and the political problems
involved? Or was the core issue trying to avoid the Jones proceeding
and the consequences of that?
I don't think it has been shown beyond a reasonable doubt that the
Jones proceeding was the President's concern. Perhaps Ms. Currie could
have shed some light on this. That is why I was extremely puzzled when
the House managers didn't call Betty Currie. Let me be the first to say
that I don't think in this instance the House managers ``wanted to win
too badly.'' I don't think they wanted to win badly enough to take the
chance of calling Betty Currie, a crucial witness.
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I was very concerned about the false affidavit until I saw Ms.
Lewinsky's Senate deposition testimony. I am persuaded that you cannot
say beyond a reasonable doubt that she was urged by the President to
make a false statement in that affidavit.
Finally, I was very concerned about the hiding of the gifts. And
maybe every one will disagree with me on this. But when I watched her
testimony, I thought Ms. Lewinsky was the most indefinite about whether
or not she had gotten that call from Ms. Currie than any other part of
her testimony. I happen to believe that Ms. Lewinsky was the one who
was the most concerned about the gifts. And I believe a showing beyond
a reasonable doubt has not been made that the President masterminded
the hiding of the gifts.
So I cannot deny what Representative Graham said: If you call
somebody up at 2:30 in the morning you are probably up to no good. But
if you call somebody up at 2:30 in the morning you have not necessarily
accomplished the crime of obstruction of justice.
I realize there is a separate question of whether these same acts by
the President, apart from the Federal criminal law, constitute high
crimes and misdemeanors. I do not. I will discuss that in more detail
in a future statement in the Record.
But I would like to conclude by just talking a little bit about this
impeachment issue in the modern context. When I say that the vote in
1996 is the primary issue, I don't just mean that in terms of the
rights of people. I mean it in terms of the goal of the Founding
Fathers, and our goal today; that is, political stability in this
country. We don't want a parliamentary system. And we don't want an
overly partisan system.
I see the 4-year term as a unifying force of our Nation. Yet, this is
the second time in my adult lifetime that we have had serious
impeachment proceedings, and I am only 45 years old. This only occurred
once in the entire 200 years prior to this time. Is this a fluke? Is it
that we just happened to have had two ``bad men'' as Presidents? I
doubt it. How will we feel if sometime in the next 10 years a third
impeachment proceeding occurs in this country so we will have had three
within 40 years?
I see a danger in this in an increasingly diverse country. I see a
danger in this in an increasingly divided country. And I see a danger
in this when the final argument of the House manager is that this is a
chapter in an ongoing ``culture war'' in this Nation. That troubles me.
I hope that is not where we are and hope that is not where we are
heading.
It is best not to err at all in this case. But if we must err, let us
err on the side of avoiding these divisions, and let us err on the side
of respecting the will of the people.
Let me conclude by quoting James W. Grimes, one of the seven
Republican Senators who voted not to acquit Andrew Johnson. I
discovered this speech, and found out that the Chief Justice had
already discovered and quoted him, and said he was one of the three of
the ablest of the seven. Grimes said this in his opinion about why he
wouldn't convict President Johnson:
I cannot agree to destroy the harmonious working of the
Constitution for the sake of getting rid of an unacceptable
President. Whatever may be my opinion of the incumbent, I
cannot consent to trifle with the high office he holds. I can
do nothing which, by implication, may be construed as an
approval of impeachment as a part of future political
machinery.
Mrs. HUTCHISON. If a university president, a minister or priest,
general or admiral, or a corporate chief executive had engaged in a
sexual relationship with an intern under his charge, he would lose his
position, with scant attention paid to whether or not such a
relationship were ``consensual.'' We place in certain individuals so
great a measure of trust that they are seen as acting essentially in
loco parentis.
The question before us today is: Should the President of the United
States be held to a lower standard?
The answer is: No. To the contrary; we can bestow no higher honor
than to select one individual to represent us all as President. In one
person we endow the character of our nation, as the head of state and
the head of government.
It's with great disappointment, but firm resolve, that I have
concluded the President has not lived up to this high standard and that
he should be removed from office. The House managers have demonstrated
beyond reasonable doubt that, in addition to indefensible behavior with
an intern, which was not illegal, the President engaged in the
obstruction of justice and, as an element of that obstruction,
committed perjury before a federal grand jury, which is.
This case began as an alleged civil rights violation of a young woman
who came to the bar seeking justice. The Supreme Court unanimously
decided to permit her case against the President to go forward. It was
that case which led to the revelations regarding the President's
relationship with Monica Lewinsky, the White House intern.
Incredibly, an element of the President's defense is that we should
take the long view. We are told by the President's defenders that we
should not judge his actions toward one individual, in which he schemed
to impede her ability to seek redress, because his overall actions on
civil rights are so positive. We are asked not to judge his treatment
of one woman, or two women, but to evaluate his policies that affect
all women.
Would the President's defenders forgive a school teacher who molests
a student, simply because the teacher's classes are popular and his
students all go on to college? Should we ignore the police officer who
personally enriches himself by accepting graft, so long as his arrest
record is high? Would we look away from the corporate executive who
illegally profits from insider information, as long as his shareholders
are happy with the return on their investment? We would not sustain
civil society for long with such moral relativism as our guide.
The President had it solely within his power to keep the country from
the course on which it has been for the past year. First, of course, he
could have chosen not to engage in the behavior in question. Having
behaved as he did, though, and having been discovered, the President
could have acknowledged his own actions and accepted the consequences.
This could have been an honorable resignation, or an admission,
contrition, and a firm resolve to take responsibility; with a request
for resolution in a manner short of impeachment and trial.
Instead, the President chose to deny the allegations, and fight them
with a coordinated scheme of manipulation and obstruction. He lied
outright to the American people, to his close associates, and to his
cabinet. An enduring image of this whole tale will be his finger-
pointing lie to the American people, even after admonishing us to
listen closely, because he didn't want to have to say it again.
Even in view of these actions, the President missed numerous
opportunities to right this matter and get it behind him and the
country. At virtually every opportunity, though, he chose an action
that further prolonged the matter and led directly to his impeachment.
The President chose to impede the pursuit of justice by the
Independent Counsel, who was given the authority to investigate this
matter by the President's own Attorney General.
The President chose to construct a cover story with Ms. Lewinsky,
should their relationship become public.
The President chose to direct his personal staff to retrieve items
from Ms. Lewinsky that he knew were under subpoena in a federal
investigation.
The President chose to seek the assistance of friends to find a job
for Ms. Lewinsky, and to intensify that job search when it became clear
that Ms. Lewinsky had become a target of the civil suit against him.
The President chose to lie to his staff about the nature of his
relationship with Ms. Lewinsky herself, with the expectation that these
lies would become part of the public perception.
And, the President chose to lie before a federal grand jury about his
actions with regard to some of the elements of obstruction of justice,
including the concealment of the gifts that were likely to become
evidence in the civil case against him.
As a result of these choices by the President of the United States,
the Senate was left with no choice other than to confront the charges
and hear the case pursuant to the President's impeachment in the House
of Representatives.
[[Page S1467]]
In so doing, the Senate conducted a fair and expeditious trial. We
rejected the idea of an early test vote that would have truncated the
process. We rejected the motion for an early dismissal. The Senate is
fulfilling its Constitutional responsibility to hold a trial with a
complete evidentiary record and a final vote on each article of
impeachment sent to the Senate by the House of Representatives.
Through skillful use of the written record compiled by the
Independent Counsel, videotaped depositions, and hard evidence, the
House managers presented a compelling case. The case for perjury was
difficult. The President's testimony before the Grand Jury was guarded.
He was fully aware of the evidence the prosecutors had with respect to
this case. He chose his words carefully. He admitted his relationship
with Ms. Lewinsky before the Grand Jury, but did so only after
confronted with clinical evidence of its existence.
But he lied to the Grand Jury to deny other key facts. He perjured
himself as an element of a broader attempt to obstruct justice. There
are two false statements that are the most persuasive. First, when
asked if he directed Betty Currie to retrieve gifts from Ms. Lewinsky,
he stated unequivocally, ``No sir, I did not do that.''
The facts are contrary to that allegation. Ms. Lewinsky testified
that Betty Currie called her to suggest that Ms. Lewinsky give her the
gifts. We have cellular telephone records that indicate a call from Ms.
Currie to Ms. Lewinsky at about the time the gifts were picked up. It
was clear that Ms. Currie initiated a retrieval of the gifts at the
direction of the President, for this was the only source of information
she had that there were gifts. The evidence is overwhelming that the
President directed Betty Currie to retrieve these gifts. Thus, his
statement is false. Not only is this perjury, it is obstruction of
justice.
The President also lied before the Grand Jury about his conversations
with White House aides regarding Ms. Lewinsky. He testified that ``I
said to them things that were true about this relationship.'' We know
this to be completely false from the testimony of Sidney Blumenthal,
who stated directly and unequivocally that the President had lied to
him about the nature of his relationship with Ms. Lewinsky.
The legal standard for perjury is high. Under Section 18 U.S.C.
1623(a), a person is guilty of perjury if he or she knowingly makes a
false, material statement under oath in a federal court or Grand Jury.
I believe these statements were false, intentional and material in that
they attempt to put a false impression on key events in a series of
attempts to obstruct justice. In effect, the President knew his
relationship with Ms. Lewinsky was shameful, but not necessarily
illegal. But he knew his obstruction of justice was illegal--so he lied
about it to a Grand Jury.
In many ways, obstruction of justice is even more corrosive than
perjury to the machinery of our legal system. As the target of a grand
jury and an independent prosecutor, the President has defended himself
against charges of perjury by claiming he was caught off guard, was
misinterpreted, was attempting to mislead but not lie.
Obstruction of justice, though, is a quite different matter. It is an
affirmative act that occurs at the person's own initiative; in this
case, the President. It involves actions taken that were not instigated
by anyone else.
It has been said in his defense that the President did not initiate
his perjury in that he was led to it by the prosecutor. But there is no
similar argument regarding Article II, the Obstruction of Justice.
Without the affirmative actions of the President, there would have been
no Article II.
The President sought out Mr. Blumenthal to tell his misleading story
about the nature of his relationship and the character of Ms. Lewinsky.
Separately, the President enlisted his personal secretary to further
his obstruction of justice. He asked Ms. Currie to retrieve the gifts.
He summoned her to coach her testimony under the guise of ``trying to
figure out what the facts were.'' He did so within hours after coming
back to the White House on January 17th from his deposition in the
civil sexual harassment lawsuit. He required a face-to-face meeting
with her the next day, a Sunday. It couldn't be done over the phone,
and it couldn't wait until Monday. It was clear he needed her to
reaffirm his false testimony. This is obstruction of justice.
The edifice of American jurisprudence rests on the foundation of the
due process of law. The mortar in that foundation is the oath. Those
who seek to obstruct justice weaken that foundation, and those who
violate the oath would tear the whole structure down.
Every day, thousands of citizens in thousands of courtrooms across
America are sworn in as jurors, as grand jurors, as witnesses, as
defendants. On those oaths rest the due process of law upon which all
of our other rights are based.
The oath is how we defend ourselves against those who would subvert
our system by breaking our laws. There are Americans in jail today
because they violated that oath. Others have prevailed at the bar of
justice because of that oath.
What would we be telling Americans--and those worldwide who see in
America what they can only hope for in their own countries--if the
Senate of the United States were to conclude: The President lied under
oath as an element of a scheme to obstruct the due process of law, but
we chose to look the other way?
I cannot make that choice. I cannot look away. I vote ``Guilty'' on
Article I, Perjury. I vote ``Guilty'' on Article II, Obstruction of
Justice.
I ask unanimous consent an analysis of the Articles of Impeachment be
printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Analysis of the Articles of Impeachment
(By Senator Kay Bailey Hutchison)
``Do you solemnly swear that in all things appertaining to
the trial of the impeachment of William Jefferson Clinton,
president of the United States, now pending, you will do
impartial justice according to the Constitution and laws: So
help you God?''
When the Chief Justice of the United States administered
this oath and I signed my name to it on January 7, 1999, as
one of one hundred triers of fact and law in the Court of
Impeachment of the President of the United States, I did so
with a heavy heart, but with a clear mind.
That solemn occasion in the well of this Senate, and the
weight of the burden imposed on us as ``jurors'' in only the
second such proceeding in the history of our Nation, reminded
me with vivid clarity that our Constitution belongs to all of
us.
I was reminded as well, however, that the laws of our
Country are applicable to us all, including the President,
and they must be obeyed. The concept of equal justice under
law and the importance of absolute truth in legal proceedings
is the foundation of our justice system in the courts.
In this proceeding, I have drawn conclusions about the
facts as I see them, and I have applied the law to those
facts as I understand that law to be.
underlying facts leading to this proceeding
The details of an intimate personal relationship that
occurred during the years 1995, 1996, and 1997 between the
President of the United States and a 22 year-old female White
House Intern who was directly under his command and control
have been chronicled throughout the world and are described
in thousands of pages of evidence and materials filed with
both the House and the Senate in this case and in bookstores
across America. They involved intimate sexual relations
within the White House, personal gifts, jobs within and
outside of government, and ``missions accomplished.'' The
underlying details will not be repeated by me here.
While some facts about that relationship and the timing of
some events were disputed at the trial in the Senate, their
essence has been publicly admitted by the President, by his
Counsel, and by the Intern in written or verbal form,
including sworn testimony in various forms.
However inappropriate the behavior of the President was,
the legal issues in the impeachment trial do not deal with
this relationship. All accusations against the President here
relate instead to alleged attempts to prevent the disclosure
of this relationship in a pending civil rights lawsuit
against the President in an Arkansas Federal court and to the
public. That is the critical factor that has brought us to
this extraordinary moment in our Nation's history when we are
considering whether or not to remove from office the
President of the United States.
core facts leading to the articles of impeachment
In May, 1994, a female citizen and employee of the State of
Arkansas filed a lawsuit in an Arkansas Federal District
Court, alleging, in summary, that, in 1991 while President
Clinton was Governor of Arkansas, the Governor committed the
civil offense of sexual harassment against her by insisting
that she perform sexual acts identical or similar to those
later performed by the Intern.
[[Page S1468]]
In the course of preparing for the trial of the Arkansas
case, the plaintiff, with the consent of the presiding
Federal Judge, attempted to develop evidence that defendant
Clinton had, before and afterward, engaged in patterns of
conduct that were similar to the allegations of the plaintiff
in the case.
In December, 1997, the Arkansas Judge ordered defendant
Clinton to answer a written interrogatory naming every state
and federal employee with whom he had had sexual relations
since 1986. President Clinton answered: ``none.''
In an alleged attempt to avoid giving a personal deposition
in the case pursuant to a December, 1997, subpoena, the White
House Intern, who had since become employed at the Pentagon,
on January 7, 1998, signed an affidavit denying any sexual
relationship with President Clinton. Six days later, on
January 13, the Intern accepted a job offer at a major
corporation in New York City. A friend called the President
shortly thereafter with the message: ``Mission
accomplished.''
While the President was giving his own deposition in the
Arkansas case, his counsel tendered this affidavit to the
Arkansas Federal Court, referred to it, and vouched for its
accuracy in the presence of the President. The President,
knowing the affidavit to be false, sat by and said nothing.
The President's counsel subsequently advised the Court that
this affidavit was not reliable and should be ignored.
Defendant Clinton was subpoenaed to give the above-
mentioned deposition in the case and did so on January 17,
1998. In a rare event, the Arkansas Judge attended for the
purpose of supervising the deposition of the President in a
Washington lawyer's offices. While there, the Judge and
participating counsel for the parties, either knowingly or
unknowingly, formulated a definition of the meaning of the
words ``sexual relations'' to exclude certain forms of human
contact that in their commonly accepted meaning would be
included. But, allegedly upon the basis of this definition,
President Clinton denied, under oath, among other things,
that he had sexual relations with the Intern.
On January 21, 1998, the existence of an alleged
inappropriate relationship between the President and the
White House Intern blazed across the Nation from a story
first published in the Washington Post carrying the headline:
``Clinton Accused of Urging Aid to Lie; Starr Probes Whether
President Told Woman to Deny Alleged Affair to (plaintiff's)
Lawyers.''
Evidence introduced and debated by the House Managers and
the President's Counsel in the Senate painted a picture of
frantic activities within and without the White House
throughout the month before and during the week following
this public disclosure, by the President, by his friends, by
White House staff and employees, and others. It was alleged,
among other things, that the President coached, manipulated,
and influenced false testimony of witnesses, including the
Intern, engineered the hiding of gifts and evidence that was
subject to subpoena, lied to his staff and friends about the
facts in order to assure that they would give false testimony
in public and legal proceedings, manipulated the Intern into
signing the false affidavit in the Arkansas Federal Court,
and, after failures to obtain employment for her elsewhere,
rewarded the Intern by obtaining for her an out-of-town job
in return for her cooperative falsehoods or silence. The
sequence and importance of such activities, much of which is
not disputed in the evidence, were debated aggressively by
the House Mangers and the President's Counsel in the Senate,
but the essence of those activities was not seriously denied.
After numerous public denials immediately after the public
disclosure, and after several days of alleged ``damage
control'' designed to synchronize false stories to be
provided by various parties in response to all inquiries, and
event of major, historic, and future national importance
occurred.
On January 26, 1998, the President addressed the Nation
about this issue at a press conference in Washington, since
replayed in television broadcasts thousands of times. On that
occasion, the President looked sternly into the camera and
pointed his finger directly at the American people and
stated:
``I want to say one thing to the American people. I want
you to listen to me. I'm going to say this again: I did not
have sexual relations with that woman, (naming the Intern). I
never told anybody to lie, not a single time. Never. These
allegations are false.''
During the following months, the gist of this
representation filled the news media around the World and in
every conceivable form, provided by every conceivable
spokesman for the President, including government employees,
Cabinet officials, lawyers, public relations specialists,
political advisors, friends, Members of Congress, and others.
After an immunity agreement was reached between the
Independent Counsel (discussed below) and the Intern on July
28, 1998, the Intern delivered a dress to the Independent
Counsel that, according to her testimony, had been worn by
her on February 28, 1997, during a sexual encounter with the
President in the White House. The dress was tested for the
President's DNA. The test was positive.
The President of the United States had lied directly to the
American people.
The President's Appearance Before the Grand Jury
After months of negotiation for an appearance by the
President, on July 17, 1998, the President was subpoenaed to
appear before a Federal grand jury in Washington by the
Independent Counsel assigned to investigate multiple issues
concerning the President, including issues involving
potential perjury by both the President and the Intern in the
Arkansas sexual harassment case, issues relating to the
President's relationship with the Intern, and issues relating
to alleged actions taken to influence the testimony of
witnesses in the Arkansas case and before the grand jury,
attempts to discredit the Intern by describing her as a
``stalker,'' as ``ignorant,'' and as ``stupid,'' all done in
an alleged effort to cover up and conceal the underlying
relationship between the President and the Intern, to
obstruct the right of the Arkansas plaintiff to pursue her
sexual harassment claims in the Arkansas Federal Court, and
to obstruct the proceedings of the grand jury itself.
After various losing motions and court proceedings
asserting various executive privileges against a Presidential
appearance before the grand jury, the President, on August
17, 1998, gave testimony voluntarily to the grand jury by
deposition given in the White House and piped live to the
grand jury. The prior subpoena was withdrawn by the
Independent Counsel.
During and since this appearance, the president has
repeatedly acknowledged publicly that he had an inappropriate
relationship with the White House Intern but has insisted
that he was misleading but truthful in his depositions in the
Arkansas case and before the Federal grand jury and did not
commit any act that would constitute an obstruction of any
legal proceeding or the rights of any party associated with
any portion of this historic tale.
Impeachment of the President
The Ethics in Government Act, 28 U.S.C. Section
Sec. 595(c), directs any Independent Counsel appointed under
that law to advise the House of Representatives of any
substantial and credible information received during the
course of an investigation that may constitute grounds for
the impeachment of the President of the United States.
On September 9, 1998, the Office of Independent Counsel
submitted its referral to the House of Representatives
consisting of thousands of pages of sworn testimony from
many parties, recorded telephone conversations, video
tapes, interviews, reports, legal briefs, and arguments,
including the following partial introduction:
``This Referral presents substantial and credible
information that President Clinton criminally obstructed the
judicial process, first in a sexual harassment lawsuit in
which he was a defendant and then in a grand jury
investigation.''
The Judiciary Committee of the House, in its report to the
full House of Representatives, recommended four Articles of
Impeachment of the President. On December 19, 1998, the House
of Representatives declined to approve two of the proposed
Articles, but did approve the following two Articles, and
delivered H. Res. 611 to the Senate for trial in accordance
with the provisions of Section 3 of Article I of the
Constitution of the United States:
Impeachment Article I, the ``perjury'' article, accuses the
President of violating his constitutional duty to take care
that the laws are faithfully executed, of willfully
corrupting and manipulating the judicial process, and of
impeding the administration of justice for personal gain and
exoneration, in that:
While under oath before the Federal grand jury, the
President gave perjurious testimony before the grand jury
concerning one or more of the following: (i) the nature and
details of his relationship with the Intern; (ii) prior
perjurious, false, and misleading testimony he gave in the
Arkansas case; (iii) prior false and misleading statements he
allowed his attorney to make about the Intern's affidavit in
the Arkansas case; and (iv) his corrupt efforts to influence
the testimony of witnesses and to impede the discovery of
evidence in the Arkansas case.
Impleachment Article II, the ``obstruction of justice'' and
``witness tampering'' article, accuses the President of
violating his constitutional duty to take care that the laws
are faithfully executed, of preventing, obstructing, and
impeding the administration of justice, and, to that end, of
engaging personally and through his subordinates and agents
in a course of conduct or scheme designed to delay, impede,
cover up, and conceal the existence of evidence and testimony
related to the Arkansas Federal sexual harassment case.
In support of the accusation, Article II accuses the
President of seven specific acts of obstruction: (i)
corruptly encouraging the Intern to execute false affidavit
in the Arkansas case, (ii) corruptly encouraging the Intern
to give false testimony in the Arkansas case if and when she
was called to testify personally in that case, (iii)
corruptly engaging in, encouraging, or supporting a scheme to
conceal evidence that had been subpoenaed in the Arkansas
case, (iv) obtaining a job for the Intern in order to
corruptly prevent her truthful testimony in the Arkansas
case, (v) corruptly allowing his attorney in the Arkansas
case to make false statements to the Federal Judge
characterizing the Intern's affidavit in order to prevent
questioning deemed relevant by the Judge, (vi) corruptly
influencing his personal secretary to give false testimony in
the Arkansas case, and (vii) making false and misleading
statements to witnesses in the Federal grand jury
proceeding, confirmed by the witnesses, in order to
corruptly influence the testimony of those witnesses.
[[Page S1469]]
the trial in the senate
H. Res. 611 was received in the Senate on December 19,
1998. The trial commenced on January 7, 1999. During the
trial, we have listened to hours of arguments from the House
Managers and Counsel for the President, and have engaged in
hours of internal Senate debate, both public and private. We
have been provided with access to thousands of pages and
other forms of evidence relating to the accusations contained
in the two Articles of Impeachment.
Under the Constitution, the power to impeach (or
``accuse'') a President of an impeachable offense is vested
solely in the House of Representatives. As Senators and
triers of both the facts and the law, we cannot ``accuse,''
``venture outside the record,'' or ``create and assert new
allegations.'' We are bound to cast our votes of ``guilty''
or ``not guilty'' solely on the two Article of Impeachment as
presented by the House.
I do not hold to the view of our Constitution that there
must be an actual, indictable crime in order for an act of a
public officer to be impeachable. It is clear to this Senator
that there are, indeed, circumstances, short of a felony
criminal offense that would justify the removal of a public
officer from office, including the President of the United
States. Manifest injury to the Office of the President, to
our Nation, and to the American people, and gross abuses of
trust and of public office clearly can reach the level of
intensity that would justify the impeachment and removal of a
leader. One of the Articles of Impeachment presented by the
House Judiciary Committee to the full House of
Representatives in this case charged the President with
precisely such an offense. The House of Representatives did
not approve that Article, and such a charge is, therefore,
not before us in this proceeding.
The two Articles of Impeachment before the Senate in this
proceeding do in fact accuse the President of committing
three actual crimes, ``perjury before the grand jury,''
`'obstruction of justice,'' and ``witness tampering,'' that
meet the requirements for conviction of an indicted defendant
in a criminal case brought under Federal law. The House
Managers and Counsel for the President reviewed those laws
extensively. Thus, in order to find the President ``guilty''
under either Article, this Senator must conclude that all of
the statutory prerequisites to conviction are present that
would be required to convict the President of one or more of
those crimes, if this proceeding were, instead, the
prosecution of felony criminal indictments in a United States
District Court under Federal law.
The President's Counsel did not significantly challenge the
underlying facts in the case, but insisted throughout (i)
that no crimes have been committed, and (ii) that, even if
crimes have been committed, they ``do not rise to the level
of the high crimes and misdemeanors'' contemplated by the
Constitution that would permit a conviction in this
proceeding, since a finding of ``guilty'' by 67 Senators
under either Article would, under the Constitution,
automatically result in the removal of the President from
office and prohibit him forever from holding another
office of profit or trust under the United States.
perjury, obstruction of justice, and witness tampering as impeachable
offenses
Section 4 of Article II of our Constitution provides:
``The President . . . shall be removed from Office on
Impeachment for, and Conviction of, Treason, Bribery, or
other high Crimes and Misdemeanors.''
Because of the uniqueness of this Constitutional process in
which ``guilt'' and ``punishment'' are combined, each
Senator, as a trier of both fact and law, before voting as to
the guilt or innocence of the President under either of the
Articles must answer the basic question: Do the crimes of
perjury, witness tampering, and obstruction of justice as
alleged in this proceeding rise to the level of the ``high
crimes and misdemeanors'' included in our Constitution that
would justify the automatic removal from office of the
President of the United States?
The Supreme Court of the United States has observed that
there is an occasional misunderstanding to the effect that
the crime of ``perjury'' is somehow distinct from
``obstruction of justice.'' United States v. Norris, 300 U.S.
564, 574 (1937). They are not. While different elements make
up each crime, each is calculated to prevent a court and the
public from discovering the truth and achieving justice in
our judicial system. Moreover, it is obvious that ``witness
tampering'' is simply another means employed to obstruct
justice.
This Senate on numerous occasions has convicted impeached
Federal Judges on allegations of perjury. Moreover, the
historical fact is that ``high crimes and misdemeanors,'' as
used and applied in English law on which portions of our
Constitution were founded, included the crimes of
``obstructing the execution of the lawful process'' and of
``willful and corrupt perjury.'' Blackstone, Commentaries on
the Laws of England, a treatise described by James Madison as
``a book which is in every man's hand.'' See article entitled
``The True History of High Crimes and Misdemeanors,'' by Gary
L. McDowell, Director of the Institute of United States
Studies at the University of London, appearing in the Wall
Street Journal, January 25, 1999.
Some argue that the precedents of the Senate in cases
involving Federal Judges are not applicable because Federal
Judges are not elected by the people and the President is.
This is a shocking analysis to this Senator. That the
President is elected should call for a ``higher'' standard of
conduct, not a lower one. The fact is that the standards are
set by the Constitution for all officers of the Federal
government. They are precisely the same, and we are obligated
to apply them evenly.
It is argued by others that this test leaves Presidents at
risk of being impeached and convicted for trivial offenses.
The two-thirds vote requirement for conviction imposed by the
Constitution, itself, is designed to protect public officers
from precisely such a result.
The President's Counsel and a number of Senators advance a
``felony-plus'' interpretation of the Constitutional terms
``high crimes and misdemeanors.'' They seem to agree that the
crimes of perjury and obstruction of justice are ``high
crimes'' under the Constitution, but they argue that, even if
guilt is admitted, nevertheless, a Senator should vote ``not
guilty,'' on any article of impeachment of a President, if
the ``economy is good,'' if the underlying facts in the case
are ``just about sex,'' or if the Senator simply feels for
whatever personal reason that the President ought to stay in
office despite having committed felonies while holding it.
To this Senator, this astounding application of the plain
language of our Constitution strikes at the very heart of the
rule of law in America. It replaces the stability guaranteed
by the Constitution with the chaos of uncertainty. Not only
does it obliterate the noble ideal that our highest public
officer should set high moral standards for our Nation, it
says that the officer is free to commit felonies while doing
it if the economy is good, if the crime is just about sex, or
if, except for the crime, ``things are going pretty well
right now,'' or simply that ``they can indict and try the
President for the crime after leaving office in a couple of
years.''
I will not demean our Constitution or the office of the
Presidency of the United States by endorsing the felony-plus
standard.
Elements Required for Conviction of Perjury
Lying is a moral wrong. Perjury is a lie told under oath
that is legally wrong. To be illegal, the lie must be
willfully told, must be believed to be untrue, and must
relate to a material matter. Title 18, Section 1621 and 1623,
U.S. Code.
If President Washington, as a child, had cut down a cherry
tree and lied about it, he would be guilty of ``lying,'' but
would not be guilty of ``perjury.''
If, on the other hand, President Washington, as an adult,
had been warned not to cut down a cherry tree, but he cut it
down anyway, with the tree falling on a man and severely
injuring or killing him, with President Washington stating
later under oath that it was not he who cut down the tree,
that would be ``perjury.'' Because it was a material fact in
determining the circumstances of the man's injury or death.
Some would argue that the President in the second example
should not be impeached because the whole thing is about a
cherry tree, and lies about cherry trees, even under oath,
though despicable, do not rise to the level of impeachable
offenses under the Constitution. I disagree.
The perjury committed in the second example was an attempt
to impede, frustrate, and obstruct the judicial system in
determining how the man was injured or killed, when, and by
whose hand, in order to escape personal responsibility under
the law, either civil or criminal. Such would be an
impeachable offense. To say otherwise would be to severely
lower the moral and legal standards of accountability that
are imposed on ordinary citizens every day. The same standard
should be imposed on our leaders.
Nearly every child in America believes that President
Washington, as a child himself, did in fact cut down the
cherry tree and admitted to his father that he did it, saying
simply: ``I cannot tell a lie.''
I will not compromise this simple but high moral principle
in order to avoid serious consequences to a successor
President who may choose to ignore it.
elements required for conviction of witness tampering and obstruction
of justice
Whoever knowingly uses intimidation or physical force,
threatens, or corruptly persuades another person, or attempts
to do so, or engaged in misleading conduct toward another
person, with intent to--
(i) influence, delay, or prevent the testimony of any
person in an official proceeding;
(ii) cause or induce any person to (A) withhold testimony
or evidence from an official proceeding, (B) alter or destroy
evidence in an official proceeding; (C) evade legal process
summoning that person as a witness or produce evidence in an
official proceeding to which the person has been summoned;
(iii) harass another person and thereby hinder, delay,
prevent, or dissuade any person from attending or testifying
in an official proceeding; or
(iv) corruptly influence, obstruct, or impede, or endeavor
to influence, obstruct, or impede, the due administration of
justice;
is guilty of witness tampering and/or obstruction of justice.
Title 18, Sections 1512 and 1503, U.S. Code.
The elements of these crimes are evident from the laws
themselves and do not need amplification here.
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my votes on the articles of impeachment
Based upon my analysis of the facts of this case and my own
conclusions of law, I have concluded:
(i) The President of the United States willfully, and with
intent to deceive, gave false and misleading testimony under
oath with respect to material matters that were pending
before the Federal grand jury on August 17, 1998, as alleged
in Article I presented to the Senate. I, therefore, vote
``Guilty'' on Article I of the Articles of Impeachment of the
President in this Proceeding.
(ii) The President of the United States engaged in a
pattern of conduct, performed acts of willful deception, and
told and disseminated massive falsehoods, including lies told
directly to the American people, that were designed and
corruptly calculated to impede, obstruct, and prevent the
plaintiff in the Arkansas Federal sexual harassment case from
seeking and obtaining justice in the Federal court system of
the United States, and to further prevent the Federal grand
jury from performing its functions and responsibilities under
law, I, therefore, vote ``Guilty'' on Article II of the
Articles of Impeachment of the President in this proceeding.
article I, Perjury--Explanation of Vote
This Article accuses the President, while giving sworn
testimony on August 17, 1998, before the Federal grand jury
in Washington, D.C., of willfully corrupting and impeding the
judicial process and the administration of justice by giving
false and perjurious testimony about his relationship with
the White House Intern, about his January 17, 1998,
deposition testimony in the Arkansas sexual harrassment case,
about his role in developing and tendering to the Federal
Judge in the Arkansas case an affidavit that was knowingly
false while giving his deposition in the Arkansas case, and
about his attempts to influence the testimony of White House
employees and other witnesses in the Arkanksas case who were
at the time also subject to the jurisdiction of the grand
jury.
In reaching my decision with respect to this Article, I
have concluded beyond a reasonable doubt that the President
gave false and misleading testimony in the Arkansas sexual
harrassment case and in his appearance before the Federal
grand jury.
At the trial in the Senate, the President's Counsel argued
that, even if it were to be admitted that the testimony in
both instances were false and misleading, the testimony
would, nevertheless, not amount to perjury because it does
not reach the level of ``materiality'' that is required for a
lie to rise to the level of a crime under Federal law.
They attempt to trivialize the issues raised by Article I
by reference to such questions as ``Who touched whom, and
where,'' and to answers to questions by the President such as
``It depends on what the meaning of `is' is.''
The false testimony complained of in Article I of the
Articles of Impeachment relates to testimony before the grand
jury, and only indirectly to the testimony in the Arkansas
case. The Federal grand jury was investigating broad issues
and many persons at the time the President gave false and
misleading testimony before it.
Willful, corrupt, and false sworn testimony before a
Federal grand jury is a separate and distinct crime under
applicable law and is material and perjurious if it is
``capable'' of influencing the grand jury in any matter
before it, including any collateral matters that it may
consider. See, Title 18, Section 1623, U.S. Code, and Federal
court cases interpreting that Section.
The President's testimony before the Federal grand jury was
fully capable of influencing the grand jury's investigation
and was clearly perjurious.
article ii, obstruction of justice--explanation of vote
When, on January 26, 1998, the President of the United
States pointed his finger at the American people and
represented to them that he was the victim of lies and not
their perpetrator, he lied to America. The evidence is
overwhelming that he did so because all of his ``ducks were
in a row.''
The White House Intern had executed a false affidavit;
subpoenaed gifts had been hidden; his own false deposition
had been given; other witnesses had testified falsely based
upon his own false representations to them; retribution
against the White House Intern had been programmed should she
abandon loyalty; and loyalty had been confirmed by the
Intern's acceptance of a special new job in New York, that
represented, according to a friend of the President,
``Mission accomplished.''
Then came the dress, the tapes, and the Federal grand jury.
The attempt to obstruct and cover-up grew, expanded, and
developed a life of its own. It overpowered the underlying
offense itself. A new strategy was required, fast: The
President was advised: ``Admit the sex, but never the lies.''
Shift the blame; change the subject. Blame it on the
plaintiff in the Arkansas case. Blame it on her lawyers.
Blame it on the Independent Counsel. Blame it on
partisanship. Blame it on the majority members of the House
Judiciary Committee. Blame it on the process.
The blame belongs to the President of the United States.
This juror has concluded that the President is guilty of
obstructing justice beyond a reasonable doubt, as alleged in
Article II of the Articles of Impeachment in this proceeding.
concluding statement
This has been a case about civil rights. It has been about
the right of the weakest and the strongest among us to have
equal access to our system of justice in order to pursue
legal and Constitutional rights and to fix responsibility for
alleged legal wrongs.
During the last half of this passing century, we have
managed to maintain the proposition established over 200
years ago that every American is entitled to equal justice
under the law.
In the middle of the century, our Country and our courts
began to recognize the inherent evil of discrimination based
on race and national origin. In the last two decades, we have
begun to address issues of gender. We have enacted sexual
harassment laws that have become the symbols of the high
moral standards of our Country. They permit half of our
citizens to work freely among us without fear of harm and
sexual abuse.
It has been said by many, in attempts to demean this
proceeding, that this case is, simply, ``all about sex.'' In
some ways, it is. It is about the right of an employed female
American living in the State of Arkansas to hold a job
without being forced to engage in it by the Governor of that
State. That is not the question before us, and I express no
opinion on that subject. But I do know that the President of
the United States willfully and unlawfully obstructed her
efforts in the Federal courts of our Land to pursue her
cause. We are forced to leave it to history to determine
whether her cause was factually just, and to define the
message that the conduct of our Country's highest public
officer sends into the next century.
If only the President had followed the simple, high moral
principle handed to us by our Nation's first leader as a
child and had said early in this episode ``I cannot tell a
lie,'' we would not be here today. We would not be sitting in
judgment of a President. We would not be invoking those
provisions of the Constitution that have only been applied
once before in our Nation's history.
But we should all be thankful that our Constitution is
there, and we should take pride in our right and duty to
enforce it. A hundred years from now, when history looks back
to this moment, we can hope for a conclusion that our
Constitution has been applied fairly and survives, that we
have come to principled judgments about matters of national
importance, and that the rule of law in American has been
sustained.
Mr. CONRAD. Mr. Chief Justice, I have served twelve years in the
United States Senate.
I respect this institution and all of you as colleagues. I especially
respect the job our leaders have done in this trial. They have
performed in the highest tradition of the United States Senate. Most of
all, I respect our oath of office: to ``preserve, protect, and defend
the Constitution of the United States.'' I know all of us take that
oath seriously.
At the end of this proceeding, however, we may reach different
conclusions about what the Constitution compels us to do. The simple
truth is that this case is not black and white. As Mr. Manager Graham
said, reasonable people may come to different conclusions.
There is one thing on which we all agree: The President's conduct was
wrong. In fact, it was very wrong. But the question before us is not
whether the President's conduct was wrong. The question is whether that
conduct meets the Constitutional standard for removing a President from
office.
That requires us to make a profound judgment on whether we should
overturn the results of a national election. 67 members in this chamber
can nullify the votes of the 47 million Americans who voted for
President Clinton. That is an awesome power. It must be used with great
restraint.
There are three questions we must answer in the affirmative to remove
a President: First, did the President commit the crimes he is charged
with? Second, are these crimes properly addressed by impeachment, or
would they be better left to the criminal justice system? Third, do the
charges rise to the level of high crimes and misdemeanors and justify
the removal of the President of the United States?
the sufficiency of the evidence
Let me start with the first question. The charges against the
President are perjury and obstruction of justice.
Five experienced Federal prosecutors representing both Republican and
Democratic Administrations concluded that no responsible Federal
prosecutor would bring perjury charges based on the facts in this case.
The President in his grand jury testimony acknowledged an intimate
and inappropriate relationship with Monica Lewinsky. The details of
that relationship are in conflict. But I do not believe relatively
minor differences in the details of that relationship would result in a
perjury conviction.
On the obstruction charges, again the federal prosecutors told us
they would not bring charges based on the facts in this case.
[[Page S1471]]
Ms. Lewinsky has testified that no one ever asked her to lie or
promised her a job for her silence. Ms. Lewinsky further testified she
never discussed the contents of her testimony with the President, ever.
Finally, she also testified that she believed she could file a truthful
affidavit.
But there are two elements of the obstruction of justice charges that
do trouble me.
One is the transfer of gifts from Ms. Lewinsky to Betty Currie. That
could constitute concealment of evidence. But Betty Currie has
testified five times that Ms. Lewinsky called her to arrange for the
transfer of gifts. And both the President and Betty Currie have denied
that the President initiated the transfer.
The second troubling charge is the questioning of Betty Currie by the
President after his deposition in the Jones case. I find it hard to
believe the President was just refreshing his memory when on two
occasions he put the same set of questions to Ms. Currie. That could
constitute witness tampering.
But at the time of these conversations, Betty Currie was not a
witness in any judicial proceeding. And she has testified that she did
not feel pressured to agree with the President.
Although I am not certain that there was no wrongdoing, I do conclude
that the charges have not been proven beyond a reasonable doubt.
impeachable crimes
That leads me to the second question: even if these charges were
proven, is this a matter for impeachment, or should it be left to the
ordinary course of judicial proceeding?
For me, it is a question best answered by the rule of law that
governs us all: the Constitution of the United States.
James Madison kept a journal of the Constitutional Convention. In it,
he said many of the Founders opposed impeachment altogether. Others
believed impeachment was needed to protect against treason, bribery, or
other ``attempts to subvert the Constitution.'' So a carefully crafted,
very narrow compromise was adopted.
Article II, section 4 originally read: ``The President . . . shall be
removed from office on impeachment for, and conviction of, Treason,
Bribery or other high crimes and misdemeanors against the United
States.''
James Wilson, a nineteenth century constitutional scholar has written
that impeachment was designed for ``great and publick [sic] offences by
which the Commonwealth was brought into danger.''
These charges against the President just do not measure up to that
standard. Hiding presents under a bed. Asking a secretary leading
questions. These can hardly be the great and public offenses that our
Founding Fathers had in mind. These charges, and the facts behind them,
simply do not bring our commonwealth into danger.
So is the President above the law? Most emphatically, no.
William Rawles, a contemporary of the Founders and a distinguished
commentator on the Constitution wrote: ``In general, those offenses
which may be committed equally by a private person as a public officer,
are not the subject of impeachment . . . [A]ll offenses not immediately
connected with office, except the two expressly mentioned, are left to
the ordinary course of judicial proceeding.''
I do not argue that no private wrongs can rise to the level of
impeachable offense, but they must be heinous crimes.
Article I, section 3, of the Constitution says: ``Judgment in Cases
of Impeachment shall not extend further than to removal from Office . .
. but the party convicted shall nevertheless be liable and subject to
Indictment, trial, judgment and punishment according to law.''
The President is not above the law. He can be prosecuted, indicted,
convicted, and sentenced for alleged wrongful acts, just like any other
American.
We have our Founding Fathers' own words, distinguishing between
public crimes and those that involve the President's conduct as a
private individual. We have their deeds to guide us as well. When Vice
President Aaron Burr killed Alexander Hamilton in a duel and was
indicted for murder, impeachment was not even considered.
Almost two hundred years later, the House Judiciary Committee
dismissed a tax evasion charge against President Nixon when an
overwhelming majority of the Committee concluded, in the words of
Congressman Ray Thornton, ``these charges may be reached in due course
in the regular process of law.''
In the case before us today, the underlying offense is that the
President had an extra-marital affair. He is alleged to have lied about
that under oath, and to have obstructed justice. These are serious
allegations, and we have considered them seriously.
Offensive as they were, the President's actions have nothing to do
with his official duties, nor do they constitute the most serious of
private crimes. In my judgment, these are matters best left to the
criminal justice system.
REMOVAL FROM OFFICE
That brings me to the third and final question: do the charges so
fundamentally threaten our democratic system of government that they
constitute high crimes and misdemeanors and justify removal of the
President from office?
Our Founding Fathers told us two things about impeachment. First, the
matter at hand had better be a very significant crime--a ``high crime''
that threatens our fundamental freedoms. These alleged crimes do not
meet that standard. Second, they told us that it better not be
partisan. That's why they required a \2/3\ vote in the Senate to remove
a President.
They feared the passions of what they called a ``faction.'' This is a
classic case of just that. This proceeding was partisan in the House.
It has become partisan here. I'm not casting aspersions here. I am
stating a fact.
Impeachment will fail. And it should. It lacks the fundamental
legitimacy only a bipartisan consensus can provide.
My colleagues, the Republic still stands. Our safety as a Nation is
not in jeopardy. Our Constitution has not been shaken.
Voting to impeach the President under these circumstances would
undermine the core principle that lies at the heart of our system of
government: the separation of powers. Our Founding Fathers made it
difficult to remove a sitting President by design. They were convinced
of the wisdom of having three co-equal branches of government. They did
not want the President serving at the pleasure--or being removed at the
displeasure--of the legislative branch.
Our Founding Fathers were right. Removing a popularly elected
President from office would have implications not only for this
President, but for every President to follow, and ultimately for the
very system of government who hold so dear. Thomas Jefferson once said,
``I know of no safe depository of the ultimate powers of the society
but the people themselves.''
My colleagues, we are a democracy. In a government ``of the people,
by the people, and for the people,'' we cannot ignore the will of the
people. Removing the President under these circumstances would be the
most fundamental violation of the rule of law. It would overturn the
rule of the people as expressed in a free election. It would adopt
minority rule, overturning the clear wishes of a majority of the
American people.
Our freedom and liberty are not threatened by the wrongful acts of
this President. But our freedom and liberty might be threatened if a
minority can overturn the will of the majority.
There may yet come a time when we have no choice but to substitute
our judgment for the will of the people. I pray I never see that time.
I know it has not come in this case.
My colleagues, I will vote against the articles of impeachment in the
case of William Jefferson Clinton.
Mr. HUTCHINSON. We are nearing one of the most important votes most
of us will ever cast.
As an Arkansan, the impeachment process has been long and difficult.
President Clinton is a dominating political influence in Arkansas and
still immensely popular in my home state, so I am acutely aware of the
political implications of this vote for me.
As an Arkansan, I share pride in one of our own having achieved so
much and having attained the highest elective office in the land.
Arkansas has produced more than its share of political leaders--the
Joe. T. Robinsons, the
[[Page S1472]]
Hattie Caraways, the John McClellans, and J.W. Fulbrights. But never
before has an Arkansan reached the Presidency. I, with all of Arkansas,
was proud. We knew William Jefferson Clinton's intellect, his grasp of
policy issues. We knew his personality, his charisma. We had seen for
years his remarkable political skills, his uncanny ability to connect
with people. I believe I'm like most Arkansans--deeply conflicted--
pride mixed with embarrassment, and most of all pain.
This trial is not about private conduct. It is not about the
President's personal behavior. We are all sinners. We are all flawed
human beings. The President's personal life is his personal life. It's
his business, not mine. The facts that are relevant are those relating
to law.
This trial is not about process. It seems to me that throughout this
long drama, many have sought to put Ken Starr on trial or the House
managers on trial. Was Ken Starr on a vendetta or was he just doing an
unpleasant job? Whichever, we have to deal with the facts and the
evidence. Did the House managers, as we have heard from the President's
counsel so often, ``want to win too much?'' Frankly, both sides wanted
to win, both sides were fervent in their presentations, and I'm glad we
didn't hear half-hearted arguments. A vigorous prosecution and defense
is the basis of a successful adversarial system. What we are doing is
important. I'm glad they believe in what they are doing, but in the end
it's the facts, the evidence, with which we must grapple. The process
with all its flaws is secondary. The reality is, we are faced with a
body of evidence.
This trial is not about punishment. It's not about getting our pound
of flesh from the Democrats. It's not about getting our retribution on
the President. It's not political vengeance. It's not about polls. If
polls had prevailed, Andrew Johnson would have been removed, and that
would have been wrong. To argue that a popular President should not be
removed regardless of his actions, merely because he is popular, is to
lower our Constitutional Republic to a meaningless level.
To say popularity should be a factor in our decision is to say that
bad poll numbers and unpopularity is an argument for removal of a
President. How contrary to our constitutional system. The popularity of
this President should never been mentioned, in my opinion. Nor should
political consequences of our votes be the basis for our decision of
whether to remove this President.
What I had to weigh was the evidence. Voting to remove a President--
the very thought sobers and humbles me. But the facts are so
inescapable, the evidence so powerful.
I am convinced beyond a reasonable doubt that when the President
testified before the federal grand jury and said that he had been
truthful to his aides in what he had said about his relationship with
Ms. Lewinsky--that he committed perjury and obstructed justice. When he
told Sidney Blumenthal that Ms. Lewinsky was a stalker and he was a
victim, he was not being truthful. He was trying to destroy her
reputation and he would have, had it not been for the dress. He lied,
and he lied about his lie to the grand jury.
I am convinced beyond a reasonable doubt that when the President led
Betty Currie through a false rendition of his relationship with Ms.
Lewinsky that he was tampering with a witness and obstructing justice.
He did this not once, but twice. His explanation that he was refreshing
his memory offends all common sense. When he denied this coaching
before the grand jury, he obstructed justice and committed perjury. Of
course, there is much more to this case, but how much do we need?
If this trial was only about one man's actions, it might be easier.
But this trial is about so much more--the office of the Presidency, the
precedent of lowering the bar on the importance of our nation's rule of
law. It's about the oath Bill Clinton took when he was sworn in as our
President, to uphold our nation's laws. And it's about the oath the
President took when he swore to tell the truth, the whole truth and
nothing but the truth before the grand jury. The sanctity of the oath
is the basis of our judicial system. To lessen the significance of
violating the oath is in fact an attack on our legal system and the
rule of law.
There are men and women across America who languish behind bars today
because they committed the crime of perjury, lying under oath. How can
we tell America that our President, the highest government official in
the land, is treated differently?
While I was growing up in Gravette, Arkansas, life seemed much more
simple than it is today. It was a simpler time. But then and now, the
bedrock of our society is still truth and justice. This hasn't changed.
On August 25, 1825, Daniel Webster said, ``Whatever government is not a
government of laws, is a despotism, let it be called what it may.''
Today is a somber day for our country. This trial has been a sad
chapter of American history, and I have a heavy heart. As difficult as
these votes will be, I know that I could not serve the people of
Arkansas with a clear conscience unless I do what I believe is right
and uphold the law. I will vote guilty on both articles of impeachment.
Mrs. MURRAY. Mr. Chief Justice, this past year certainly has been a
difficult time for America. I have to say, as a citizen, as a woman,
and as a parent, I cannot begin to describe how deeply disappointed and
angry I am with the President.
I came to Washington, D.C. in 1992. Over the last 6 years I have
worked with Bill Clinton. I trusted him. I thought I knew him. I
refused to believe he would demean the presidency in the way that he
has. His behavior was appalling and has hurt us all.
But as a Senator, I have an obligation under the Constitution that
transcends any sense of personal betrayal I might have. I am sworn to
render my judgment based on the evidence presented and the larger
question of what the framers of the Constitution meant when they wrote
the impeachment clause.
I have listened carefully throughout this debate. I have read and
listened to every available article and argument. Like all of you, I
have spent more hours on this case that I ever wanted to and have felt
the tremendous weight of this decision.
I believe that perjury and obstruction of justice can be considered
high crimes. The question is whether the facts in this case support the
allegations that the President committed these crimes.
The Republican House managers presented a theory. But after listening
carefully to both sides and, most importantly, reviewing the words of
the witnesses themselves, they did not prove their theory of perjury
and obstruction of justice beyond a reasonable doubt to me. If we are
to remove a President for the first time in our Nation's history, none
of us should have any doubts.
We must also ask ourselves how it would affect the country to remove
this President after such a partisan process. A conversation I had with
a constituent not long ago really struck a chord with me. He said to
me,
I am old enough to remember President Nixon's resignation.
I know how deeply it affected the psyche of an entire
generation. I know it made many of us cynical of politics for
a long, long time. Please don't put us all through that
turmoil again. This country would be punished and hurt by a
presidential removal. This country doesn't deserve to be
punished for this President's behavior.
So despite my personal disgust with the President's actions, I intend
to vote ``not guilty'' on both articles of impeachment.
Our founders were wise. They knew the President would be imperfect.
They knew he would stumble and fall. While it would be wrong to suggest
they approved of such behavior, they were not interested in the
individual and his flaws. They sought to protect the nation.
They set a very high standard for the legislative body to meet before
overturning the results of an election--the very basis of our
democracy. They declared it would only be for the crimes most
threatening to our nation. They did not establish the impeachment
process to punish a wrongdoer; they established it to protect America.
This President's behavior was reprehensible, but it does not threaten
our nation. In the past year, despite the scandal that ran on the front
page nearly every day, our country has prospered. Our economy is
growing. Our waters and air are cleaner. Our communities are safer. Our
education system is stronger. America is not poised on the brink of
disaster. Our democracy is safe.
[[Page S1473]]
But what of our legacy in this process? What will I tell my daughter,
or tell a classroom of young students? Well, it doesn't take a lawyer
or a constitutional scholar to tell them that no matter how difficult
it is, tell the truth. The lie will hurt you much, much more. It can
consume you, your friends, your family, your nation. It can destroy
those you love and diminish you forever in their eyes.
This President now knows that. His legacy will be tainted with the
anguish he inflicted on the people and country he loves because of his
selfish and disgraceful behavior. It is a weight that he alone will
bear for the rest of his life.
We have heard a lot of emotions and strong feelings on this floor
from both sides. I respect the deep convictions of everyone in this
room. I am saddened it has appeared partisan. But it is my hope that we
can now turn the page on this sad part of America's history and put an
end to the recriminations.
Mr. Chief Justice, point of personal privilege.
It is hard to stand before you without Scott Bates behind me. I knew
him as all of you did as a loyal, excellent Senate employee. But I also
knew him as a Dad. We stood together as parents on a soccer field
cheering on our daughters in victory and hugging them in defeat. He
will be missed.
But his absence should serve as a reminder that although we have been
totally engrossed in this issue for far too long, there is life outside
of these doors. There are friends to be hugged, kids to be educated,
parents to take care of.
I hope when this day is over, we will set aside our differences and
remember there are a lot more important things each of us needs to be
concentrating on, both professionally and personally. It's time to move
on.
Mr. McCAIN. Mr. Chief Justice, I intend to vote to convict the
President of the United States on both articles of impeachment. To say
I do so with regret will sound trite to some, but I mean it sincerely.
I deeply regret that this day has come to pass.
I bear no animosity for the President. I take no partisan
satisfaction from this matter. I don't lightly dismiss the public's
clear opposition to conviction. And I am genuinely concerned that the
institution of the Presidency not be harmed, either by the President's
conduct, or by Congress' reaction to his conduct.
Indeed, I take no satisfaction at all from this vote, with one
exception--and an important exception it is--that by voting to convict
I have been spared reproach by my conscience for shirking my duty.
The Senate faces an awful choice, to be sure. But, to my mind, it is
a clear choice. I am persuaded that the President has violated his oath
of office by committing perjury and by obstructing justice, and that by
so doing he has forfeited his office.
As my colleagues across the aisle have so often reminded me, the
country does not want the President removed. And, they ask, are we not,
first and foremost, servants of the public will? Even if we believe the
President to be guilty of the offenses charged, and even if we believe
those offenses rise to the level of impeachment, should we risk the
national trauma of forcing his removal against the clearly expressed
desire of the vast majority of Americans that he should not be removed
even if he is guilty of perjury and obstruction of justice?
I considered that question very carefully, and I arrived at an answer
by reversing the proposition. If a clear majority of the American
people were to demand the conviction of the President, should I vote
for his conviction even if I believed the President to be innocent of
the offenses he is charged with? Of course not. Neither, then, should I
let public opinion restrain me from voting to convict if I determine
the President is guilty.
But are these articles of impeachment of sufficient gravity to
warrant removal or can we seek their redress by some other means short
of removing the President from office? Some of those who argue for a
lesser sanction, including the President's able counsel, contend that
irrespective of the President's guilt or innocence, neither of the
articles charge him with high crimes and misdemeanors. Nothing less
than an assault on the integrity of our constitutional government rises
to that level. The President's offenses were committed to cover up
private not public misconduct. Therefore, if he thwarted justice he did
so for the perfectly understandable and forgivable purpose of keeping
hidden an embarrassing personal shortcoming that, were it discovered,
would harm only his family and his reputation, but would not impair our
system of government.
This, too, is an appealing rationalization for acquittal. But it is
just that, a rationalization. Nowhere in the Constitution or in the
expressed views of our founders are crimes intended to conceal the
President's character flaws distinguished from crimes intended to
subvert democracy. The President thwarted justice. No matter how unfair
he or we may view a process that forces a President to disclose his own
failings, we should not excuse or fail to punish in the
constitutionally prescribed manner evidence that the President has
deliberately thwarted the course of justice.
I do not desire to sit in judgement of the President's private
misconduct. It is truly a matter for him and his family to resolve. I
sincerely wish circumstances had allowed the President to keep his
personal life private. I have done things in my private life that I am
not proud of. I suspect many of us have. But we are not asked to judge
the President's character flaws. We are asked to judge whether the
President, who swore an oath to faithfully execute his office,
deliberately subverted--for whatever purpose--the rule of law.
All of my life, I have been instructed never to swear an oath to my
country in vain. In my former profession, those who violated their
sworn oath were punished severely and considered outcasts from our
society. I do not hold the President to the same standard that I hold
military officers to. I hold him to a higher standard. Although I may
admit to failures in my private life, I have at all times, and to the
best of my ability, kept faith with every oath I have ever sworn to
this country. I have known some men who kept that faith at the cost of
their lives.
I cannot--not in deference to public opinion, or for political
considerations, or for the sake of comity and friendship--I cannot
agree to expect less from the President.
Most officers of my acquaintance would have resigned their commission
had they been discovered violating their oath. The President did not
choose that course of action. He has left it to the Senate to determine
his fate. And the Senate, as we all know, is going to acquit the
President. As much as I would like to, I cannot join in his acquittal.
The House managers have made, and I believe some of my colleagues on
the other side of the aisle would agree, a persuasive case that the
President is guilty of perjury and obstruction. The circumstances that
led to these offenses may be tawdry, trivial to some, and usually of a
very private nature. But the President broke the law. Not a tawdry law,
not a trivial law, not a private law.
The tortured explanations with which the President's attorneys have
tried to defend him against both articles fail to raise reasonable
doubts about his guilt. It seems clear to me, and to most Americans,
that the President deliberately lied under oath, and that he tried to
encourage others to lie under oath on his behalf. Presidents may not be
excused from such an abuse no matter how intrusive, how unfair, how
distasteful are the judicial proceedings they attempt to subvert.
The President's defenders want to know how can I be certain that the
offenses, even if true, warrant removal from office. They are not
expressly mentioned in the Constitution as impeachable offenses. Nor
did the founders identify perjury or obstruction as high crimes or high
misdemeanors. Were an ordinary citizen accused of perjury in a civil
proceeding he or she would in all likelihood not be prosecuted or
forced out of political necessity into a perjury trap.
No, an ordinary citizen would not be treated as the President has
been treated. But ordinary citizens don't enforce the laws for the rest
of us. Ordinary citizens don't have the world's mightiest armed forces
at their command. Ordinary citizens do not usually have the opportunity
to be figures of historical importance.
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Presidents are not ordinary citizens. They are extraordinary, in that
they are vested with so much more authority and power than the rest of
us. We have a right; indeed, we have an obligation, to hold them
strictly accountable to the rule of law.
Are perjury and obstruction of justice expressly listed as high
crimes and misdemeanors? No. Why? Because they are self-evidently so.
Just as the President is self-evidently the nation's chief law
enforcement officer, despite his attorneys' quibbling to the contrary.
It is self-evident to us all, I hope, that we cannot overlook, dismiss
or diminish the obstruction of justice by the very person we charge
with taking care that the laws are faithfully executed. It is self-
evident to me. And accordingly, regretfully, I must vote to convict the
President, and urge my colleagues to do the same.''
Mr. JOHNSON. Mr. Chief Justice, the great question now before the
Senate is not whether the rule of law will prevail--it surely will--
both by the actions of this body and by possible proceedings within the
judicial system.
The question before the Senate is whether we should take action
against the President beyond that allowed for in our nation's courts.
We are, I believe, confronted by two threshold questions which must
first be resolved before consideration can or need be given to weighing
the evidence presented by the House Managers. First, is whether the
Articles of Impeachment have been adequately drawn to allow the accused
to know with precision the wrong-doing to which he is accused, and to
require that a \2/3\ majority vote of the Senate be secured upon a
single act of wrong-doing in order to convict. As a second threshold
matter, if the Articles are at least adequately drawn, do they, if
true, allege wrong-doing of sufficient import to justify for the very
first time in our nation's long history, the over-turning of the
people's will as expressed in a free, fair and democratic national
election? I am troubled by the adequacy of the articles, but even
accepting them, the second threshold question of impeachability is
simply not met.
Only if these threshold questions are adequately met in the mind of
an individual Senator, can that Senator proceed to determine whether
the weight of the evidence is sufficient to convict. And even if both
threshold questions are ignored, it is impossible for me to say that
the circumstantial evidence presented reaches a ``beyond a reasonable
doubt'' standard on either article. Reasonable doubt means that if
there are multiple reasonable theories as to what occurred--if one of
the reasonable theories is consistent with innocence, then an acquittal
must follow. Especially relative to article two--I can understand the
belief of some that a plausible scenario of obstruction was
established. Some may even believe that the President was more likely
than not obstructing justice. But the evidence is clearly not so
powerful as to lead anyone to believe that no reasonable and innocent
scenario remains.
I am both profoundly honored and humbled to have this historic
responsibility to participate with my Senate colleagues, Republican and
Democrat, in perhaps the most grave proceeding envisioned by the
authors of our national Constitution. I have listened carefully to both
sides of this dispute, and I have also carefully reviewed the thoughts
of many of our nation's leading scholars of history and constitutional
law. It is clear to me that the results of this trial have
ramifications which go far beyond the fortunes of William Jefferson
Clinton.
The decision made by the Senate this week will have an utterly
profound impact on the relationship between the executive and
legislative branches of our government for the rest of time.
Accordingly, it is essential that the decisions made in this proceeding
not be driven by transitory passions of partisan politics, but rather,
with an eye toward the long-term stability and integrity of our
democracy.
My humble reading of history leads me to believe that the never-
failing bipartisan honoring of national presidential elections over
these past two centuries has been one of the greatest sources of our
national success. While holding a president accountable to all the same
civil and criminal laws that apply to the general citizenry is
absolutely essential, the writers of our Constitution properly intended
for the reversal of fair elections at the hands of Congress to be
exceedingly rare and difficult.
The learned opinions of our nation's leading scholars overwhelmingly
support the understanding that presidents should not be removed from
office by Congress short of some horrific personal misconduct or
misconduct which arises from executive authority and threatens the
nation--such as treason or bribery. By requiring a \2/3\ vote for the
over-turning of presidential elections, the founders of our nation also
made it crystal clear that such an extraordinary step should not and
cannot be taken unless there is an overwhelming bipartisan outcry
against the President's actions.
The American public and most Members of Congress, including myself,
have criticized President Clinton's personal conduct in harsh terms.
But the American public also seems to understand that at stake is not
simply Bill Clinton's future, but the integrity of our election system
and the long-term freedom of the executive branch from partisan
congressional attack--this understanding about the need for stability,
for proportionality, for continuity, is a natural and a deeply
conservative inclination on the part of our citizenry.
The writers of our Constitution wanted some degree of proportionality
between a president's conduct and the penalties applied--otherwise they
would have made impeachment applicable to all crimes and misdemeanors.
It is certainly conceivable that the will of the people expressed in an
election may someday be rightly overturned by Congress. But it is also
certain to me that while this president's personal conduct (involving
immaterial testimony to a lawsuit dismissed by a federal court as
having no merit) is deserving of public condemnation, and even possible
prosecution within the judicial system, it simply does not rise to the
level of extraordinary danger to the nation that justifies removal from
office.
Some will no doubt say that I have set a high standard for
overturning presidential elections. I would very much agree.
Particularly as a recently former member of the House of
Representatives, I have witnessed first hand the depth and the
intensity of partisan anger that can occur from time to time in
Congress and among portions of the national public. It is a reaction to
that open partisanship demonstrated by the House and the Independent
Counsel that surely is at the foundation of the American public's
overwhelming contempt for this proceeding and the view that this
process is politics as usual, an exercise in raw political power and
beneath what should be the dignity of Congress.
I have no certain solutions for that sad and angry state of affairs,
other than to attempt to conduct my own political life in as thoughtful
and moderate a manner as I am capable, but I believe the Constitution
provided our nation with a strong bulwark against negative and hateful
partisanship by creating an executive branch which is largely shielded
from congressional partisanship and which is instead disciplined by law
and by the electoral will of the people.
I greatly fear that any lesser standard would result, even without an
independent counsel law, in a situation whereby civil actions against
standing presidents will be routinely brought as yet another
destructive partisan political tactic. These multiple and nefarious
actions will then be followed by never-ending legal discovery
proceedings, and they in turn followed by impeachment articles or the
threat of impeachment each time the House is controlled by a different
political party than the Presidency. I fear the wrong decision here
will lead our nation into an ever downward spiral where impeachment
proceedings will be routine.
It is critically important, in my view, for this United States Senate
to say, Stop!'' Enough!'' We must send an unmistakable message to the
House, the nation and the world, that we will not permit the stability
and independence of the executive branch of our government to be
jeopardized by anything less than heinous crimes or gross threats to
the nation.
This leaves, of course, other avenues for Congress and the public to
express great displeasure with the President's dishonorable conduct. If
illegal activity did in fact take place, that activity
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would be subject to discipline in the courts. While there are divided
opinions on its wisdom, it is possible that some sort of collective
censure may be agreed upon by the Senate, and certainly individual
Senators are free to place their condemnations of the President's
personal behavior in the Congressional Record. The House impeachment of
the President, the public humiliation of Bill Clinton and his family,
as well as the great private fortune this dispute will have consumed
will also serve as punishment enough. But, I think it is also important
for this Senate to understand that the writers of our Constitution did
not create an impeachment process as one more form of punishment, but
exclusively to protect the viability of our nation.
Given my sacred oaths as a United States Senator and as a participant
in this impeachment trial, and given my abiding commitment to the
Constitution and the well-being of our nation, I have no choice but to
vote against both Articles of Impeachment. I do not know nor do I care
what the political consequences might be of the decision I make here--I
am a Democrat elected six consecutive times state-wide from my largely
Republican state, and I have long been proud of the bipartisan support
extended to me by the good people of South Dakota. In turn, I have long
recognized that neither political party has a monopoly on good ideas or
bad, good people or bad. But I know this--the issue before me is too
grave for politics. At the end of the day, when my service in this body
is done, I want my children, my family and myself to view my decisions
here as honorable, as an exercise in responsible judgement, and in a
small way, as efforts that strengthened the bulwark of democracy that
our Constitution represents.
The President dishonorably lied to the American people, however, the
two Articles before the Senate fail, first because they do not allege
offenses that give rise to removal from office, and secondly, because
it cannot be said that the evidence proves guilt of perjury or
obstruction of justice beyond all reasonable doubt (to such a degree
that no innocent and reasonable explanation exists).
I will vote not guilty on both Article one and Article two.
Mr. LUGAR. Mr. Chief Justice, for the first time in 120 years, and
only for the second time in U.S. history, the Senate is about to
conclude a Presidential impeachment trial. Our Founding Fathers viewed
the power to remove a President as a necessary constitutional
safeguard, but they wanted to make certain that the process was
sufficiently difficult that the will of the voters would be overturned
only for the gravest of reasons. They wrote the words ``high crimes and
misdemeanors'' as a threshold, but left it to us to determine what
transgressions met this standard. All of us have endeavored to fulfill
this enormous responsibility.
From the beginning of the consideration of impeachment last year,
many Members of Congress in both parties have made public statements
expressing their opinions that the President lied to a federal grand
jury and that he obstructed justice on numerous occasions. These
judgments are apparently shared by large majorities of the American
people as illustrated in frequent public opinion polls. The same polls
have consistently found that a large majority of Americans do not want
the President to suffer the Constitutional consequence of these
breaches of law, namely, removal from office.
Since the House voted for impeachment, almost all 45 Democrats and
some Republicans in the Senate have voiced their skepticism about
voting to remove President Clinton from office. Early in the trial, 44
Democrats voted to dismiss the impeachment proceedings outright. Thus,
a two-thirds majority vote needed for a guilty verdict has never been a
likely outcome of the trial.
In the background, most Senate Democrats and several Republicans have
worked on a motion to censure President Clinton. Our distinguished
colleague, Senator Feinstein, drafted a censure resolution that
attracted substantial bipartisan support and was published in the New
York Times of February 6, 1999. It stated:
Whereas William Jefferson Clinton, President of the United
States, engaged in an inappropriate relationship with a
subordinate employee in the White House, which was shameless,
reckless and indefensible;
Whereas William Jefferson Clinton, President of the United
States, deliberately misled and deceived the American people
and officials in all branches of the United States
Government;
Whereas William Jefferson Clinton, President of the United
States, gave false or misleading testimony and impeded
discovery of evidence in judicial proceedings;
Whereas William Jefferson Clinton's conduct in this matter
is unacceptable for a President of the United States, does
demean the Office of the President as well as the President
himself, and creates disrespect for the laws of the land;
Whereas President Clinton fully deserves censure for
engaging in such behavior;
Whereas future generations of Americans must know that such
behavior is not only unacceptable but also bears grave
consequences, including loss of integrity, trust and respect;
Whereas William Jefferson Clinton remains subject to
criminal and civil actions;
Whereas William Jefferson Clinton's conduct in this matter
has brought shame and dishonor to himself and to the Office
of the President; and
Whereas William Jefferson Clinton, through his conduct in
this matter, has violated the trust of the American people:
Now, therefore, be it
Resolved, That the United States Senate does hereby censure
William Jefferson Clinton, President of the United States,
and condemns his conduct in the strongest terms.
Citizens might ask how a Senator could vote for a resolution stating
that President Clinton ``deliberately misled and deceived the American
people and officials in all branches of the United States Government''
and ``gave false or misleading testimony and impeded discovery of
evidence in judicial proceedings'' and yet fail to vote ``guilty'' on
articles of impeachment that specifically mention perjury and
obstruction of justice. The answer to that question is at the heart of
understanding the Senate trial.
With few exceptions, Senators recognize that the Constitution gives
only one outcome to a verdict of ``guilty,'' namely, removal from
office. At the same time, many Senators are shocked by conduct which
they call ``shameless, reckless, and indefensible,'' and they want
their constituents to know that they have not been fooled or
overwhelmed by Presidential charm. They have taken the initiative to
explicitly denounce the bizarre conduct and the extraordinary
corruption of this President. Members of both parties have deplored the
fact that the President conducted an illicit sustained physical sexual
relationship in spaces close to the Oval Office and publicly denied
this to his family, his staff, and in televised statements to the world
only to see all of the elaborate cover-up collapse after DNA tests on
the dress of a young woman.
But the impeachment trial of President Clinton is not about adultery.
The impeachment trial involves the President's illegal efforts to deny
a fair result in the suit brought by Ms. Paula Jones. I have no doubt
that the President worked deliberately to deny justice in this suit. In
doing so, he lied to a federal grand jury and worked to induce others
to give false testimony, thus obstructing justice.
Ms. Jones has often been described as a small person in our judicial
system. In contrast, the President, who at the time of his inaugural
takes a solemn oath to preserve and protect equal justice under the law
for even the most humble of Americans, is a giant figure. As Senators
who also take a solemn oath, we must ask ourselves the fundamental
question: ``Is any man or woman above the law?''
The legal defense team for the President does not admit that there is
adequate proof of either perjury or obstruction of justice. They
contend that Senators must embrace a theory of ``immaculate
obstruction'' in which jobs are found, gifts are concealed, false
affidavits are filed, and the character of a witness is publicly
impugned, all without the knowledge or direction of the President, who
is the sole beneficiary of these actions. The President's lawyers
further contend that such crimes are, in any event, insufficient to
remove the President. The drafters of the Constitution would have
rejected these rationalizations for the indefensible Presidential
misconduct at issue. They were political men with a profound reverence
for the sanctity of the oath and our entire system of justice. They did
not suggest that Senators park their common sense and
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their stewardship for the security of our country at the Senate door as
they entered into an impeachment trial.
In fact, we have discovered in this trial that the founding fathers
wanted the Senate to act as ``triers'' of fact and in the roles of both
trial court and jury. Most importantly, they wanted us to act as
guardians of the Constitution and thus the liberty and the rights under
law of each individual American. Liberty itself is directly threatened
when a President subverts the very judicial system that secures those
rights.
During this trial, I have concluded that the prosecutors made their
case. I will vote to remove President Clinton from office not only
because he is guilty of both articles of impeachment, but also because
I believe the crimes committed here demonstrate that he is capable of
lying routinely whenever it is convenient. He is not trustworthy.
Simply to be near him in the White House has meant not only tragic
heartache for his wife and his daughter but enormous legal bills for
staff members and friends who admired him and yearned for his success
but who have been caught up in his incessant ``war room'' strategies to
maintain him in office. Senator Feinstein begins her censure resolution
with the appropriate word ``shameless.'' The President should have
simply resigned and spared his country the ordeal of this impeachment
trial and its aftermath.
We have been fortunate that this damaged presidency has occurred
during a time of relative peace and prosperity. In times of war or
national emergency it is often necessary for the President to call upon
the nation to make great economic and personal sacrifices. In these
occasions, our President had best be trustworthy--a truth teller whose
life of principled leadership and integrity we can count upon. Some
commentators have suggested that with the President having less than
two years left in his term of office, the easiest approach is to let
the clock expire while hoping that he is sufficiently careful, if not
contrite, to avoid reckless and indefensible conduct. But as Senators,
we know that the dangers of the world constantly threaten us. Rarely do
two years pass without the need for strong Presidential leadership and
the exercise of substantial moral authority from the White House.
Of particular concern are the implications of the President's
behavior for our national security. As Commander-in-Chief, President
Clinton fully understood the risks that he was imposing on the
country's security with his secret affair in the White House. Even in
this post-Cold War era, foreign intelligence agents constantly look for
opportunities for deception, propaganda, and blackmail. No higher
targets exist than the President and the White House. The President
even acknowledged in a phone call with Ms. Lewinsky that foreign agents
could be monitoring their conversations. Yet this knowledge did not
dissuade the President from continuing his affair. With premeditation,
he chose his own gratification above the security of his country and
the success of his presidency. Then he chose to compound the damage by
systematically lying about it over the span of many months.
I believe that our country will be stronger and better prepared to
meet our challenges with a cleansing of the Presidency. The President
of the United States is the most powerful person in the world because
we are the strongest country economically and militarily, and in the
appeal of our idealism for liberty and freedom of conscience. Our
President must be strong because a President personifies the rule of
law that he is sworn to uphold and protect. We must believe him and
trust him if we are to follow him. His influence on domestic and
foreign policies comes from that trust, which a lifetime of words,
deeds, and achievements has built.
President Clinton has betrayed that trust. His leadership has been
diminished because most Americans have come to the cynical conclusion
that they must read between the lines of his statements and try to
catch a glimmer of truth amidst the spin. His subordinates have
demeaned public life by contending that ``everybody does it'' as a
defense of why the President has erred so grievously. But every
President does not lie to a federal grand jury. Every President does
not obstruct justice. The last President to do so was President Nixon,
and he had sufficient reverence for the office to resign before the
House even voted articles of impeachment.
The impeachment trial must come to an end. The Presidency will be
strengthened and our ability as Americans to meet important challenges
will be strengthened if we begin to restore our faith in the truth and
justice that our government must exemplify and preserve. It will not be
enough simply to condemn the tragic misdeeds of President Clinton. He
must be removed from office as the Constitution prescribes, and we must
celebrate the strength of that same Constitution which also provides a
path for a new beginning.
Thank you, Mr. Chief Justice. I yield the floor.
Mr. BIDEN. Let me begin by stating what I believe the American people
view as the obvious. There are no good guys in this sordid affair.
Rightly or wrongly, the public has concluded that the President is an
adulterer and liar; that Ken Starr has abused his authority by unfair
tactics born out of vindictiveness; that the House Managers have acted
in a narrowly partisan way and are now desperately attempting to
justify their actions for their own political reputation. Finally, they
have concluded that Monica Lewinsky was both used and a user, while
Linda Tripp, Lucianne Goldberg, Paula Jones and her official and
unofficial legal team are part of a larger political plot to ``get the
President''.
All of that is beyond our ability to effect. Our job is not to
dissect the motives or even the tactics of Ken Starr, the trial
lawyers, Linda Tripp, and others. Our only job is to determine whether
the President of the United States by his conduct committed the
specific acts alleged in the two Articles of Impeachment. Not
generally, but specifically: Did he do what is alleged? And if he did,
do these actions rise to the level of high crimes and misdemeanors
necessary to justify the most obviously anti-democratic act the Senate
can engage in--overturning an election by convicting the President.
It is very important--both for history's sake and for fairness'
sake--that we keep our eye on the ball. When I tried cases, I learned
from a man named Sid Balick--he used to say at the outset to the jury:
Keep your eye on the ball. The issue is not whether my
client is a man you would want your daughter to date--a man
you would invite home to dinner. The issue is did my client
kill Cock Robbin--period.
But if we listen to the oft-times confusing presentation of the House
Managers--they would have us think that it is sufficient for us to
conclude that we would not trust him with our daughters and not invite
him home for dinner in order to convict.
Much more is required. The House set the standard we must repair to
in the Articles--did he commit a criminal offense? That is what they
allege; that is what they must prove.
The Managers keep saying that this case is about what standards we
want our President to meet. We hear Flanders Fields intoned--the honor
of our most decorated heroes. How incredibly self-serving and
autocratic such a plea is.
The American people are fully capable--without our guidance or
advice--to determine what standards they want our President to meet.
That is an appropriate question to ask ourselves when we enter the
voting booth to vote--it is not when we rise on this floor to vote.
Spare me from those who would tell the American people what standard
they must apply when voting for President. Ours is an Impeachment
standard and our oath to do justice under that standard.
Impeachment is about what standard to use in deciding whether or not
to remove a President duly elected by the people.
These are two very different questions and we must not, we cannot,
get them confused. You and I and the American people can apply any
standard we want our President to meet when we go to the polls on
election day.
Only the Constitution can supply the standards to use in deciding
whether or not to remove the President--and--in my view, this case does
not meet that standard, for two reasons.
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First, the facts do not sustain the House Managers' case. According
to the House's own theory, we must find that the President has violated
federal criminal statutes--not just that he did bad things. In all good
conscience, I just cannot believe that any jury would convict the
President of any of the criminal charges on these facts. I also believe
that it is our constitutional duty to give the President the benefit of
the doubt on the facts. To me, the allegations that the President
violated Title 18 were left in a shambles on this floor.
But I do not have time to dwell on the facts. So let me turn to the
second reason: the President's actions do not rise to the level
required by the Constitution for the removal of a sitting President.
We have heard it argued repeatedly that the Constitution does not
create different standards for Judges and the President. But that
argument fails to comprehend the organizing principle of our
constitutional system--the separation of powers. The framers divided
the power of the federal government into three branches in order to
safeguard liberty. This innovation--the envy of every nation on earth--
can only serve its fundamental purpose if each branch remains strong
and independent of the others.
We needed a President who was independent enough to spearhead and
sign the Civil Rights Act. We needed a President who was independent
enough to lead the nation and the world in the Persian Gulf War. We
still need an independent President.
The constitutional scholarship overwhelmingly recognizes that the
fundamental structural commitment to separation of powers requires us
to view the President as different than a federal judge. Consider our
power to discipline and even expel an individual Senator. In such a
case, we do not remove the head of a separate branch and so do not
threaten the constitutional balance of powers. To remove a President is
to decapitate another branch and to undermine the independence
necessary for it to fulfill its constitutional role.
Only a President is chosen by the people in a national election. No
Senator, no Representative can make this claim. To remove a duly
elected President clashes with democratic principles in a way that
simply has no constitutional parallel. By contrast, there is nothing
anti-democratic in the Senate removing a judge, who was appointed and
not elected by the people.
Another contention we continue to hear is that the Framers clearly
thought that obstruction of justice of any kind by a President was a
high crime and misdemeanor. For this they cite the colloquy between
Colonel George Mason and James Madison, who argued that a President who
abused his pardon power could be impeached. That colloquy illustrates
that it is not any obstruction that would satisfy the Constitution--
rather, that the framers were immediately concerned about abuses of
official power, such as the pardon power.
The House Managers have relied repeatedly on Alexander Hamilton's
explanation of impeachment found in Federalist No. 65. But careful
reading demonstrates that these articles of impeachment are a
constitutionally insufficient ground for removing the President from
office. Federalist No. 65 states:
The subjects of [the impeachment court's] jurisdiction are
those offenses which proceed from the misconduct of public
men, or, in other words, from the abuse or violation of some
public trust. They are of a nature which may with peculiar
propriety be denominated POLITICAL, as they relate chiefly to
injuries done immediately to the society itself.
Hamilton had the word ``political'' typed in all capital letters to
emphasize that this is the central, defining element of any impeachable
offense. Having emphasized its meaning, he did not leave its definition
to chance. While all crimes by definition harm society, impeachable
offenses involve a specific category of offenses. Using Hamilton's
terms, these are offenses committed when ``public men'' who ``violat[e]
some public trust'' cause ``injuries done immediately to the society
itself.'' The public trust that resides in, to use Hamilton's hoary
phrase, ``public men'' is what we would call today official power.
What other construction can be given these words? Hamilton did not
define an impeachable offense to be any offense committed by public
men. He did not define an impeachable offense to be any reprehensible
act committed by a bad man. Only those acts that abuse public office
and so harm the public directly and politically are impeachable.
While I would like to take credit for this insight into Hamilton's
meaning, I actually stand in a line of interpretation that stretches
back to the founding era. William Rawle wrote the first distinguished
commentary on the Constitution, ``A View of the Constitution of the
United States of America.'' In this treatise, he came to precisely the
same interpretation I have described. He said, ``The causes of
impeachment can only have reference to public character and official
duty. . . . In general those which may be committed equally by a
private person as a public officer are not the subject of
impeachment.''
Joseph Story was not only a long-serving and important Justice of the
Supreme Court of the United States, he was a preeminent constitutional
scholar and author of a treatise that remains an important source for
understanding the Constitution's meaning. He too emphasized that ``it
is not every offense that by the constitution is . . . impeachable.''
Which offenses did he regard to be impeachable? ``Such kinds of
misdeeds . . . as peculiarly injure the commonwealth by the abuse of
high offices of trust.'' Justice Story tied the definition of
impeachable offenses to the purpose that underlies the separation of
powers--safeguarding the liberty of the people against abusive exercise
of governmental power. He observed that impeachment ``is not so much
designed to punish an offender as to secure the state against gross
official misdemeanors.''
There is no question that the Constitution sets the bar for
impeachment very high--especially where the President is involved.
Federalist 65 bears this out, as do numerous other commentaries.
But Federalist 65 also sounds a warning--again, it is a warning that
has been invoked over and over again--that impeachments inevitably risk
being hijacked by partisan political forces.
Federalist 65 worried that the ``animosities, partialities,
influence, and interest on one side or the other'' would enable
partisans to find a way to interpret words such as high crimes and
misdemeanors to match the outcome they otherwise wished to reach--not
necessarily out of any malevolence, but simply because of the great
capacity that we all have to rationalize.
Here the rationalization is pretty easy--the President is a disgrace
to the office, I honor and revere the office of the Presidency, so
there must be some way to get this man out of that office. Therefore,
his actions must rise to the level of high crimes and misdemeanors.
It is tempting to go down that road --but this is precisely the
temptation that the Framers urged us to avoid.
In Federalist 65, Hamilton defended the United States Senate as the
only body that could possibly hear a presidential impeachment. ``Where
else than in the Senate could have been found a tribunal sufficiently
dignified, or sufficiently independent? What other body would be likely
to feel confidence enough in its own situation to preserve, unawed and
uninfluenced the necessary impartiality between an individual accused
and . . . his accusers?''
Hamilton was placing the responsibility to be impartial squarely upon
us--a responsibility that has become embodied in the oath we took when
the trial began.
Charles Black, the renowned constitutional law professor from Yale,
boiled down the attitude that we as Senators must adopt in order to
achieve an impartiality and independence sufficient to the
responsibilities of impeachment. He said we must act with a
``principled political neutrality.''
That is a tough standard to meet. In the Johnson impeachment, for
example, James Blaine originally voted for the impeachment of the
President in the House. Years later he admitted his mistake, saying
that `the sober reflection of after years has persuaded many who
favored Impeachment that it was not justifiable on the charges made,
[[Page S1478]]
and that its success would have resulted in greater injury to free
institutions than Andrew Johnson in his utmost endeavor was able to
inflict.''
And in our contemporary situation, former President Ford and our
distinguished colleague and former majority leader, Robert Dole, have
both urged us not to go down the road to impeachment, but to seek other
means to express our displeasure.
Charles Black knew that principled political neutrality was hard to
achieve, so he suggested one approach. He suggested that prior to
voting, a Senator should ask:
Would I have answered the same question the same way if it
came up with respect to a President towards whom I felt
oppositely from the way I feel toward the President
threatened with removal?
In reaching a final decision, the question I wish to pose to my
colleagues is this: Can you legitimately conclude that you would vote
to remove a sitting President if he were a person towards whom you felt
oppositely than you do toward Bill Clinton?
Given the essentially anti-democratic nature of impeachment and the
great dangers inherent in the too ready exercise of that power,
impeachment has no place in our system of constitutional democracy
except as an extreme measure--reserved for breaches of the public trust
by a President who so violates his official duties, misuses his
official powers or places our system of government at such risk that
our constitutional government is put in immediate danger by his
continuing to serve out the term to which the people of the United
States elected him.
In my judgment, trying to assume a perspective of principled
political neutrality, the case before us falls far, far short on the
facts and on the law.
I ask unanimous consent that the text of a more comprehensive
statement be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Senator Joseph R. Biden's Comprehensive Statement On Impeachment
Deliberations
There are no good guys in this sordid affair. Rightly or
wrongly, the public has concluded that the President is an
adulterer and liar. Ken Starr has abused his authority by
unfair tactics born out of vindictiveness. The House Managers
have acted in a narrowly partisan way and are now desperately
attempting to justify their actions for their own political
reputation and that Monica Lewinsky was both used and a user,
while Linda Tripp, Lucianne Goldberg, Paula Jones and her
official and unofficial legal team are part of a larger
political plot to ``get the President''.
At this point, all that occurred before this is beyond my
ability to affect. My job as a United States Senator hearing
an impeachment trial is not to dissect the motives or even
the tactics of Ken Starr, the trial lawyers, Linda Tripp and
others. My only job is to determine whether the President of
the United States, by his conduct committed the acts alleged
in the two Articles of Impeachment before us. Not generally,
but specifically, did he do what is alleged--and if he did,
do these actions rise to the level of high crimes and
misdemeanors necessary to justify the most obviously anti-
democratic act the Senate can engage in overturning an
election.
The Articles of Impeachment
When the Framers designed our elected branches of
government, they established a system of separate but equal
branches. The independence of the President from the
Congress, and vice versa, is constitutionally anchored in the
fact that each answers directly to the people through the
ballot box. The people determine who will serve in either
branch.
As I said in a speech last September at Syracuse Law School
and in another on the floor of the United State Senate, the
independence of the President from the Congress was no minor
detail in the constitutional design. The single major goal
and idea that best explains how the Framers constructed the
office of the Presidency was to make the presidency as
politically independent of the Congress as they could. They
believed his independence vital to the protection of our
liberties.
It takes a strong and independent President to sign the
Emancipation Proclamation in the face of congressional
opposition, as Abraham Lincoln did. It takes a strong and
independent President to sign the executive order integrating
the Armed Services in the face of congressional resistance,
as Harry Truman did. It takes a strong and independent
president to veto legislation in the face of strong
majorities, as Ronald Reagan, George Bush and all of our
Presidents have done.
We can, and we do, disagree about the wisdom of any
particular presidential decision, but none of us can doubt
that the institution of a strong and independent presidency
has enhanced our freedoms and made us a stronger nation.
For us to remove a duly elected president will unavoidably
harm our constitutional structure.
Accordingly, for this Senator, the starting point in my
thinking about the articles of impeachment must begin with
giving the President the benefit of the doubt, and to err on
the side of sustaining the independence of that office so
vital to the Framers and to the constitutional system they
designed. Impeachment must be used against a President only
as an extreme measure, when the President has so breached the
public trust that our system of government is put in danger
by his continuing to serve out the term to which the people
of the United States elected him.
Have the House Managers presented a case of sufficient
severity, and have they proved it with sufficient clarity, to
justify the drastic and awesome, step of convicting a duly
elected President?
On January 12, when the House Managers walked across the
rotunda to the Senate and presented their case against the
President, the country moved from the realm of sound bites
and political attacks to a serious and sober consideration of
the precise nature of the House's allegations against the
President, and of the full extent of the record evidence
against him.
The House Managers have told us that in their judgment two
dangers to our system of government justify taking this
unprecedented and awesome step.
First, they said that failing to remove the President will
undermine the rule of law and the administration of justice.
Permitting a serial perjurer and obstructor of justice to
escape punishment will bring disgrace on the oath ``to tell
the truth.'' It will mean that we can no longer with good
conscience punish other people who have committed perjury or
obstructed justice. The ultimate effects would be felt
throughout the judicial system. Like a pebble dropped into a
pond, they said, it will send out ripples to all corners of
our judicial system.
Second, they said that failing to remove the President will
also condone his plot or scheme to deny a specific civil
rights plaintiff--Paula Jones--of a full opportunity to
litigate her civil rights claims against the President.
Regardless of the ripple effects of his actions, the acts
themselves were violations of law that amounted to a failure
of the President to ``take care that the laws be faithfully
executed,'' in violation of his oath of office.
Multiple Violations of the Criminal Law Necessary
As I have said in earlier speeches on the impeachment
power, not all crimes are impeachable, and an impeachable
offense does not have to be a crime.
In this case, however, the House Managers have made it
quite clear that their case against the President depends
entirely on proving that he has committed crimes, and not
just a few crimes, but an elaborate scheme that included
``lots and lots of perjury'' and ``many obstructions of
justice,'' to quote Mr. McCollum. The dangers the President
supposedly poses flow not from the President's reprehensible
conduct, or from the fact that he misled his family, his
aides, his cabinet and the nation about that conduct. This
impeachment is not about sex, they have insisted.
I asked Mr. Barr about this during the trial, and he said
``What brings us here . . . is the belief by the House of
Representatives in lawful public vote that this President
violated, in numerous respects, his oath of office and the
Criminal Code of the United States of America--in particular,
that he committed perjury and obstruction of justice.'' Mr.
McCollum made the same point in his opening presentation,
when he said, ``The first thing you have to determine is
whether or not the president committed crimes. It's only if
you determine he committed the crimes of perjury, obstruction
of justice and witness tampering, that you ever move on to
the question of whether he is removed from office. . . . None
of us would argue to you that the president should be removed
from office unless you conclude he committed the crimes that
he is alleged to have committed.''
The Burden of Proof in Assessing the House's Case
So the question before the Senate is whether the President
is a serial perjurer and a massive obstructor of justice.
What standard of proof should a Senator apply in deciding
whether the record supports the accusations contained in the
articles of impeachment--the accusations that the President
violated the federal criminal law? The House Managers quite
correctly pointed out that the Senate has never sought to
determine for the entire body what the burden of proof should
be in an impeachment. In effect, we have left it to the good
judgment of each Senator to decide whether or not they are
convinced by the evidence presented to us.
For this Senator, fundamental fairness as well as the
nature of the House's case dictate that I ought to be
convinced beyond a reasonable doubt that the President
violated the laws that the House alleges. Proof beyond a
reasonable doubt is the same standard applied in criminal
cases--it is the standard that would apply if the President
were
[[Page S1479]]
tried in a criminal court for perjury or obstruction of
justice.
It seems to me that fundamental fairness counsels that I
apply the same standard as a criminal court precisely because
the House asserts that what makes his actions impeachable is
that he has violated federal criminal statutes regarding
perjury and obstruction of justice. It strikes me as absurd
that the Senate would have the arrogance to throw out a duly
elected President on these grounds unless it was convinced
that he would be convicted of those charges. Otherwise, we
would be saying in effect that even though the President
would not be convicted on these crimes, we are nevertheless
throwing him out of office because he committed those crimes.
That would clearly be giving the President less protection
than we provide any other citizen when charged with a crime.
Someone else can try to explain the logic of that decision,
but not me.
In addition, the standard of proof beyond a reasonable
doubt seems to me compelled by the fact that in the House's
explanation of the harm to our system of government if the
President is not thrown out, their entire explanation rises
and falls depending upon whether or not the President would
be convicted in a court of law for the crimes alleged. If he
could not be convicted in a court of law, then the Senate is
not ``condoning'' perjury or obstruction of justice any more
than a criminal court is condoning those crimes when someone
is acquitted on such charges. But if the Senate is not
condoning those crimes, there is no conceivable basis for
concluding that the public will be harmed by the President's
remaining in office.
Furthermore, in applying the standard of proof beyond a
reasonable doubt, the Senate simply must pay attention to the
precise legal definitions of the crimes. What the pundits
have condemned as legal hair splitting, and what the public
rightly condemns in the president's penchant for evasive
answers when responding to questions in a public setting,
must now necessarily occupy our attention with regard to the
President's answers under oath, such as a deposition or a
grand jury proceeding because the claim made by the House is
that the President violated specific criminal laws. If your
aim is to respect the rule of law, you must also respect the
rules of law--the precise legal definitions of the crimes, as
found in 18 U.S.C. Sec. 1623, the federal perjury statute,
and in 18 U.S.C. Sec. Sec. 1503 and 1512, the applicable
federal obstruction of justice statutes.
I have now studied the record sent to us by the House,
listened to the presentations and arguments of the House
Managers and the President's counsel, reviewed the videotape
testimony of Monica Lewinsky, Vernon Jordan and Sidney
Blumenthal, and listened to the views of my colleagues.
On that basis, I have reached the conclusion that the House
has not presented evidence that could persuade a criminal
jury beyond a reasonable doubt that the President has
violated the applicable federal criminal statutes. There are
too many holes, too many conclusions reached only by drawing
negative inferences against the President, and too much
evidence that apparently contradicts or is inconsistent with
the House's case.
Now, let me be frank with you. I do not know for sure what
actually occurred. Notwithstanding that, I am forced to make
a judgment. In order to preserve the constitutional
separation of powers, the independence of the presidency and
the sovereignty of democratic elections, the President
deserves the benefit of the doubt. This record falls well
short of the certainty required to remove a President from
office.
the constitutional balance the senate must strike
While I believe that I must apply a standard of proof
beyond a reasonable doubt because of the nature of the
charges that the House has brought to us, it is also quite
true--and I have said as much on prior occasions--that the
Senate does not sit as a court of law when it tries an
impeachment. As Alexander Hamilton stated in Federalist 65,
impeachment is a political process.
``Political'' in Hamilton's usage had two meanings as it
relates to impeachments. The first I have mentioned already,
and I have spoken about in this chamber before: impeachable
offenses are offenses against the body politic. In the words
of James Wilson, ``in the United States . . . impeachments
are confined to political characters, to political crimes and
misdemeanors, and to political punishments.''
The Senate's judgment in an impeachment trial is ultimately
political in a second sense, too. It is political in the
sense that the Senate has the responsibility to weigh the all
the consequences to the body politic in making its decision--
the consequences that might flow from removing the President
as well as the consequences that might flow from failing to
remove him.
That is what I mean, and what Hamilton meant, by the
ultimate judgment being a political one. As Senator Bumpers
reminded us, the consequences of the decision we make will
live on long after Bill Clinton has left office and long
after each of us has left office. We must hand our
constitutional structure on to our children and to future
generations with its foundation as solid as it was when it
was handed to us. It is our responsibility as Senators to
make a judgment as to how best to accomplish that objective.
The obligation to evaluate the competing costs of retention
and removal, incidentally, is what clearly distinguishes
judicial impeachments and presidential impeachments--very
different institutional and long term consequences weigh in
the balance in these two cases.
Removing the President from office without compelling
evidence would be historically anti-democratic. Never in our
history has the Senate overturned the results of an election
and removed a President from office. History could not more
plainly demonstrate what a dramatic step removing an elected
President would be. The founding of our republic was the most
dramatic assertion of the sovereignty of the people that the
world had ever known. Abraham Lincoln dedicated the
battlefield at Gettysburg to this proposition recalling that
our union stands for ``government of the people, for the
people, and by the people.''
The sovereignty of the people is exercised through national
elections. All citizens, but particularly those of us who
have had the honor to stand for election, have an instinctive
respect for the will of the people as expressed through
national elections. Thomas Jefferson, in his first inaugural
address, aptly called this democratic instinct a ``sacred
principle.'' Reversing the people's sovereign decision would
be in radical conflict with the principle on which our nation
is founded as understood and applied throughout our history.
For one branch to remove the head of a co-equal branch
unavoidably harms our constitutional structure. The framers
intentionally chose not to create a parliamentary system of
government. They meant for the President and Congress to be
independent of and co-equal with one another. Maintaining
each of those branches as strong and independent is
fundamental to the Constitution's very structure--a structure
they designed to safeguard the liberty of the governed
against abuses of power by those who govern.
It is true that impeachment is part of this structure.
Removing a president from office for sufficient reasons and
upon sufficient proof is therefore consistent with that
structure. At the same time, the great dangers inherent in
the too ready exercise of that power mean that impeachment
should be seen as an extreme measure.
The framers were accomplished, practical statesmen. They
recognized that impeachment could be misapplied to undermine
the primary structural guarantee of liberty--the separation
of powers. They worried that Congress would be tempted to use
the impeachment power to make the President ``less equal.''
As Charles Pinckney warned his colleagues at the Philadelphia
Convention, Congress could hold impeachment ``as a rod over
the Executive and by that means effectively destroy his
independence.''
How are we to keep the impeachment power within its
constitutional boundaries, so that it stands ready to be used
appropriately but does not become a ``rod'' in the hands of a
partisan Congress, threatening the independence of the
Presidency, as Charles Pinckney worried during the
Constitutional convention?
The solution to this problem must lie in approaching the
Senate's ultimate decision from as much of a position of
bipartisanship as we can possibly achieve. This is the only
way in which we can possibly focus primarily on the
institutional consequences of our actions to see them in
terms of their long term consequences instead of their short
term partisan ones.
Nonpartisan faithfulness to the Constitution's structure,
which protects the liberty of the governed must determine our
action today.
This was my view of our role in 1974, when I rose on the
floor of the United States Senate and made a ``plea . . . for
restraint on the part of all parties involved in the
affair.'' That was in the case of the possible impeachment of
Richard Nixon. And it was my view last year, when I urged
restraint and bipartisanship as the attitude I hoped my
colleagues would adopt. And it remains my view.
Viewed from that perspective, it is hard for me to see how
the harms flowing from keeping Bill Clinton in office
outweigh the harms to our constitutional democracy that would
result from removing him.
harmful consequences reconsidered
I have listened attentively to the House Managers' case. In
all honesty, I can sympathize with their sense of outrage at
the President's actions and his unwillingness to be fully
accountable for those actions for so many months.
Notwithstanding that, from the vantage point of a restrained
view, and as nonpartisan a view as I can muster, the dangers
they see from keeping President Clinton in office seem less
dire than they claim. At the same time the harms to our
system of government from removing him seem to me to be quite
serious.
The House Managers warn that failure to remove the
President would destroy or undermine the sound administration
of justice and threaten the rule of law. If true, that would
be a big deal.
But we need to step back a moment and cool down the
rhetoric. Manager Graham suggested as much when he reminded
us all of the resiliency of the American system of
government. ``So when we talk about the consequences of this
case,'' he said, ``no matter what you decide, in my opinion,
this country will survive. If you acquit the President, we
will survive. If you convict him, it will be traumatic, and
if you remove him, it will be traumatic, but we will
survive.''
[[Page S1480]]
That same calmer judgment ought to apply to the
administration of justice and the rule of law. The House
Managers presented no evidence whatsoever of the dire
consequences they predict. And there is no evidence of such
dire consequences that they could present--because their
evaluation of the consequences is nothing but speculation.
I would submit to you that the consequences of failing to
remove the President will most likely be very different from
those described by the House. This is one pebble whose
ripples will in all likelihood simply wash up harmlessly on
the shores and be forgotten forever. I, frankly, do not see
how failing to remove the President will alter the conduct of
the next prosecutor having to decide whether to bring a
perjury indictment, nor do I think that juries will be
persuaded by a lawyer's argument that because the President
``got away with it'' the jury should acquit his client. The
fact of the matter is, lots of perjury trials result in
acquittals without impacting the ability of the criminal
justice system to bring such charges where appropriate.
The House Managers' cry of alarm ignores the fact that we
are in an impeachment trial. This is not a criminal
proceeding and thus the manner in which the Senate deals with
the question has no implications at all for how a court of
law would deal with it.
The Constitution is very clear about this. In Article I,
Sec. 3, cl. 7, the Constitution provides that whether or not
a person is removed from office through impeachment that
party ``shall nevertheless be liable and subject to
Indictment, Trial, Judgment and Punishment, according to
Law.'' If the evidence is as overwhelming as the Managers
say, the President can be prosecuted for perjury and
obstruction after he leaves office.
The American people have a very robust understanding that
impeachment is a political process--and a particularly clear
understanding that this impeachment has been thoroughly
politicized until it got to the Senate--I don't think anyone
is confusing it with a legal process. No one, therefore, will
take any solace from the President's acquittal in terms of
their ability to commit perjury or obstruct justice and
thereby avoid criminal charges.
Now don't misunderstand me--I am not suggesting that
letting a guilty person off from a crime he or she has
committed is OK. I am saying, first, that the President has
not been charged with a crime in a criminal court, so that
failing to acquit him is not at all letting him off from a
crime, and second, that our decision will not have the kind
of ``sky is falling'' consequences described by the House in
any event. In my judgment, the rule of law and the sound
administration of justice in this country will be unaffected
by the action we take in the Senate, one way or the other.
The House Managers have also warned that failing to remove
the President will also condone his plot or scheme to deny a
specific civil rights plaintiff--Paula Jones--her day in
court, by withholding from her, through acts of perjury and
obstruction, full information about the ``nature and
details'' of his relationship with Monica Lewinsky. Just how
accurate and complete a description is this one? In order to
answer that question, we need a fuller picture of the
``nature and details'' of the Jones litigation itself.
If you listened just to the House Managers, you would think
that the Jones lawsuit was just a run-of-the-mine typical
sexual harassment civil rights case.
It was not. From the very beginning, that lawsuit had been
politically motivated. All the facts we know about this case,
even taking Paula Jones at her word that the incident in the
Excelsior Hotel actually occurred, demonstrate that the
lawsuit was also without merit. She had never been harmed in
any way in her job, and the President had never repeated
anything remotely resembling an unwanted sexual advance on
her again. She had received merit pay raises in her state
employment and she had received good job performance reviews.
She was unable to prove that she had been damaged in any way
by the President's actions.
Actually, what damages she did assert--what caused her to
file the lawsuit, according to her testimony--was the result
of the publication of a hatchet-job article against President
Clinton run in the American Spectator. The article was one
salvo in an on going right wing probe into Clinton's life in
Arkansas, aimed simply at digging up anything that could be
politically damaging to the President. When the American
Spectator ran a story making an unflattering reference to a
``Paula,'' Jones found a lawyer to file suit in order to
``reclaim her good name.''
The lawyers Paula Jones eventually found were also
underwritten by right wing conservative Republican money. In
fact, investigative reporters as recently as this past Sunday
continue to reveal more and more details of the tightly knit
web of conservative lawyers and conservative financial
backers who have hounded this President relentlessly since
the day he took the office.
Now the President knew that the lawsuit was without merit--
he might have behaved obnoxiously with Paula Jones, but he
did not commit sexual harassment. He also knew that the real
motivation of the lawsuit, the motivation that funded it and
kept it going, was a political assault on him, not a legal
assault. The law suit and its powers of discovery were being
used to engage in a fishing expedition throughout Arkansas in
search of political dirt. Leaks from that discovery appeared
regularly in the Washington press.
The President knew something else, as well. He knew that
his illicit relationship with Monica Lewinsky had nothing to
do with the merits of the Jones litigation. On this matter,
you do not have to rely on the President's assessment or
mine, because the court independently concluded the same
thing. In the order denying the plaintiff's discovery into
the Lewinsky facts, Judge Wright said that the Lewinsky
facts, even if the allegations concerning them were true, had
nothing to do with the essential or core elements of Paula
Jones lawsuit.
So keeping Lewinsky out of the politically motivated Jones
case did not jeopardize Paula Jones' chances of prevailing,
which were non-existent in any event. What it did do was to
prevent the president's political enemies from using the
Jones discovery procedures to pry open that secret
relationship and expose it, all to the political damage of
the President.
In this context, it is understandable that the President
wanted to frustrate the Jones litigation. What is more, the
President can hardly be said to have prevented Paula Jones
from presenting a case, because there was no meritorious case
to present.
That doesn't justify perjury or obstruction, of course, but
it does provide an accurate context for appraising the House
Managers' second claim. If they are permitted to convert a
meritless and politically motivated lawsuit into a
presidential conviction for impeachable offenses, the Senate
will be rewarding behavior that we ought to condemn. We need
to think more than once about rewarding this kind of
political witch hunt.
All of what I have just said informs this Senator's
judgment concerning the harms to the country that would be
caused by failing to convict a President who had committed
the acts alleged by the House.
In fact, if the rule of law and the fair administration of
justice will not be destroyed--contrary to the House
Managers' assertions--and if the American people understand
that the President's actions were in the context of a
politically-motivated lawsuit and involved concealing an
embarrassing improper relationship that was irrelevant to
that lawsuit--then it is very hard for this Senator to see
how the President's continuing in office poses the sort of
grave danger to our system of government that the Framers had
in mind when they gave the Congress the awesome power to
impeach and remove an elected President.
In weighing the competing consequences of removal and
retention in office, we must honor the constitutional
obligation we undertook when we swore to do ``impartial
justice.''
To that end, I think we all could benefit from the wisdom
on several participants in the impeachment of Andrew Johnson,
131 years ago.
Two of them--Chief Justice Salmon Chase and Congressman
James G. Blaine--both of whom historians record as being
highly critical of Johnson and initially favoring his
removal--were nevertheless able to step back from the
partisanship of that moment and weigh the competing harms in
the way I have suggested is proper.
Chief Justice Salmon Chase, who himself had political
presidential ambitions, wrote to a friend on the day the
trial ended, saying, ``What possible harm can result in the
country from continuance of Andrew Johnson months longer in
the presidential chair, compared with that which must arise
if impeachment becomes a mere mode of getting rid of an
obnoxious President?''
And years later, James G. Blaine, who had voted for
impeachment in the House, said, ``The sober reflection of
after years has persuaded many who favored Impeachment that
it was not justifiable on the charges made, and that its
success would have resulted in greater injury to free
institutions that Andrew Johnson in his utmost endeavor was
able to inflict.''
And in our contemporary situation, former President Ford
and our distinguished colleague and former majority leader,
Robert Dole, have both urged us not to go down the road to
impeachment, but to seek other means to express our
displeasure.
We ought to follow these lessons, and to be attentive to
the damage that removing a duly elected President on these
charges will inflict on our system of government.
A decision to remove Bill Clinton will not destroy our
system of government. But it will stand as a precedent--the
very first time the United States Senate has removed any
president from office. If we vote to convict and remove the
President after a highly partisan impeachment for conduct
that appears to be private and non-official, we will create
an opportunity for impeachments to become a tool of partisan
politics by other means.
conclusion
Engaging in the balance that the Constitution requires, I
cannot vote to convict the President. The evidence of proof
beyond a reasonable doubt that the President violated federal
criminal statutes has not been presented. Even were the
evidence stronger, the Constitution demands that we weigh the
competing considerations in a nonpartisan manner.
The President deserves our condemnation. He has brought
shame to himself.
But we have not reached this point due to his failings
alone. It has taken the volatile combination of his
blameworthiness and the unalloyed animosity of others toward
him that have brought us to the brink of a profound
constitutional moment.
[[Page S1481]]
Given the essentially anti-democratic nature of impeachment
and the great dangers inherent in the too ready exercise of
that power, impeachment has no place in our system of
constitutional democracy except as an extreme measure--
reserved for breaches of the public trust by a President who
so violates his official duties, misuses his official powers
or places our system of government at such risk that our
constitutional government is put in immediate danger by his
continuing to serve out the term to which the people of the
United States elected him.
I urge my colleagues to remain faithful to the
constitutional design and to our obligation to do impartial
justice.
Below are significant issues of constitutional law,
positive law, or Senate procedure that have arisen during the
impeachment trial of President Clinton. As the impeachment
process moved forward in the House to the point where its
arriving in the Senate appeared likely, I began an intensive
study of the Constitution, the Framers' understanding, and
our historical constitutional practices in the Senate to
prepare for a possible impeachment trial, which I continued
once the Senate assumed jurisdiction over the matter. Over
the past several months, I have shared some of my conclusions
with my colleagues and the public in speeches and memoranda,
portions of which are below. (Bracketed comments are
additions to the original text, inserted to assist in
comprehension.)
Bipartisanship
Mr. President, during the past twenty-six years as a United
States Senator, I have been confronted with some of the most
significant issues facing our nation. Issues ranging from who
sits on the highest court in the land to whether we should go
to war. These are weighty issues. But none of these decisions
has been more awesome, more daunting, more compelling, than
the issue confronting us at the present time.
The issue of whether to impeach a sitting President is a
monumental responsibility. A responsibility that no Senator
will take lightly.
And as imposing as this undertaking is, I am sad to say
that I have had to contemplate this issue twice during my
service in the Senate; once during President Nixon's term and
now.
And while the circumstances surrounding these two events
are starkly different, the consequences are starkly the same.
The gravity of removing a sitting President from office is
the same today as it was twenty-five years ago. Listen to
what I said on the floor of the United States Senate on April
10, 1974 during the Watergate crisis:
``In the case of an impeachment trial, the emotions of the
American people would be strummed, as a guitar, with every
newscast and each edition of the daily paper in communities
throughout the country. The incessant demand for news or
rumors of news--whatever its basis of legitimacy--would be
overwhelming. The consequential impact on the federal
institutions of government would be intense--and not
necessarily beneficial. This is why my plea today is for
restraint on the part of all parties involved in the
affair.''
I could have said these same words today. It is uncanny how
much things stay the same.
Furthermore, in 1974 I urged my colleagues in the United
States Senate to learn from the story of Alice in Wonderland.
Then I cautioned that we remember Alice's plight when the
Queen declared ``sentence first, verdict afterwards.''
But the need for restraint is even greater today than it
was in 1974. In 1974, the impeachment question was not as
politically charged as it is today. In 1974 we were willing
to hear all the evidence before making a decision. Today, I
hope, for our nation's sake, that we do not follow the
Queen's directive in Alice in Wonderland and that we will
make a wise judgment after deliberate consideration.
My legal training combined with more than a quarter century
of experience in the United States Senate has taught me
several important lessons. Two of these lessons are
appropriate now.
First, an ordered society must first care about justice.
Second, all that is constitutionally permissible may not be
just or wise.
And it is with these two very important lessons guiding me,
that I embark upon a very important decision regarding our
country, our Constitution, and our President.
The power to overturn and undo a popular election of the
people, for the first time in our nation's history, must be
exercised with great care and sober deliberation.
We should not forget that 47.4 million Americans voted for
our President in 1996, 8.2 million more than voted for the
President's opponent.--[Speech, 10/2/98]
* * * * *
Let me now stand back from the issues of substance and
procedure, and look at the impeachment mechanism as it has
actually functioned in our country's history. The proof of
the framers' design, after all, will be in how the mechanism
has worked in practice.
As we have seen, the framers worried that impeaching a
sitting president would most likely be highly charged with
partisan politics and pre-existing factions, enlisting all
the ``animosities, partialities, and influence and interest''
that inevitably swirl around a sitting president. History
shows that they had a right to be worried.
Prior to the case of President Nixon, presidential
impeachment had only been used for partisan reasons.
History tells us that John Tyler was an enormously
unpopular president, facing a hostile Congress dominated by
his arch political enemy, Henry Clay. After several years of
continual clashes, numerous presidential vetoes and divisive
conflicts with the senate over appointments, a select
committee of the House issued a report recommending a formal
impeachment inquiry.
President Tyler reached out to his political enemies: he
signed an important bill raising tariffs which he had
formerly opposed--and he found other means of cooperating
with the Congress. In the end, even Henry Clay, speaking from
the Senate, urged a slowdown in the impeachment proceedings,
suggesting instead the lesser action of a ``want of
confidence'' vote rather than formal impeachment proceedings.
In early 1843, the resolution to proceed with an impeachment
inquiry was defeated on the House floor, 127 to 83.
In 1868, Andrew Johnson came much closer to conviction on
charges of serious misconduct. Although Johnson's impeachment
proceedings ostensibly focused on his disregarding the tenure
in office act, historians uniformly agree that the true
sources of opposition to president Johnson were policy
disagreements and personal animosity. [Text note: The
conflict this time was between Johnson's moderate post Civil
War policies toward the Southern states and the overwhelming
Radical Republican majorities in both chambers. One
especially volatile division was over whether Southern
Senators and Representatives ought to be admitted to Congress
prior to the enactment of Constitutional amendments expressly
denying the right of state succession. The Republicans feared
dilution of their voting strength if the southerners were
seated, especially since on effect of President Lincoln's
Emancipation Proclamation would be to increase House
representation for the Southern states, by virtue of the fact
that each freed slave would count as a whole person, instead
of the abandoned constitutional formula of three-fifths.
The Tenure in Office Act had been enacted over his veto to
restrict his ability to remove the Secretary of War --who was
allied with the Radical Republicans--from that office without
the Senate's consent. Johnson fired Edwin M. Stanton anyway,
claiming that the restriction on his removal authority was
unconstitutional.]
The conflict this time was between Johnson's moderate post-
Civil War policies toward the southern states and the
overwhelming Republican majorities in both chambers. The
Republicans feared dilution of their voting strength if the
southerners were seated.
Johnson's defenders in the Senate were eventually able to
hold on to barely enough votes to prevent his conviction. In
professor Raoul Berger's view, ``Johnson's trial serves as a
frightening reminder that in the hands of a passion-driven
congress, the process may bring down the very pillars of our
constitutional system.''
Yet, if the cases of Tyler and Johnson substantiate the
framers' fears, the Nixon situation vindicates the utility of
the impeachment procedures. Notice how different the Nixon
proceedings were from Tyler's and Johnson's. As the Nixon
impeachment process unfolded, there was broad bipartisan
consensus each step of the way.
While it would be foolish to believe that Members of
Congress did not worry about the partisan political
repercussions of their actions, such factional considerations
did not dominate decision making.
Political friends and foes of the president agreed that the
charges against the president were serious, that they
warranted further inquiry and, once there was definitive
evidence of serious complicity and wrongdoing, a consensus
emerged that impeachment should be invoked. The president
resigned after the House Judiciary Committee voted out
articles of impeachment by a 28-10 vote.
For me, several lessons stand out from our constitutional
understanding of the impeachment process and our historical
experience with it. Furthermore, I believe that a consensus
has developed on several important points.
While the founders included impeachment powers in the
Constitution, they were concerned by the potential partisan
abuse. We should be no less aware of the dangers of
partisanship. As we have seen, the process functions best
when there is a broad bipartisan consensus behind moving
ahead. The country is not well served when either policy
disagreements or personal animosities drive the process.
Many scholars who have studied the Constitution have
concluded that it should be reserved for offenses that are
abuses of the public trust or abuses that relate to the
public nature of the President's duties. Remember, what is
impeachable is not necessarily criminal and what is criminal
is not necessarily impeachable.--[Speech, 10/2/98]
* * * * *
I am here today to call for bipartisanship in the
impeachment process. It is a concept many will say they agree
with. But actions speak louder than words.
The framers of the Constitution knew that the greatest
danger associated with impeachment was the presence of
partisan factions that could dictate the outcome.
It is clear from the debates and from the commentaries on
the Constitutional Convention that the framers were concerned
that
[[Page S1482]]
anything less than bipartisanship could, and would, do great
damage to our form of government. They knew that to
contemplate an action as profound as undoing a popular
election requires at a minimum that members of both parties
find that the alleged wrong is grave enough to overturn
the will of the majority of the American people.
The framers also understood the sentiment expressed nearly
200 years later by Congresswoman Barbara Jordan during the
impeachment proceedings of Richard Nixon.
She said, ``it is reason, and not passion, which must guide
our deliberations, guide our debate, and guide our
decision.''
But the current debate is guided by faction, not reason.
One example: The House Judiciary Committee this month heard a
battery of witnesses address the question of what is an
impeachable offense. Democrats called legal experts who
testified that the President's acts are not impeachable
offenses, and Republicans called witnesses who were just as
certain they were. By the end of the hearing, anyone
listening would have the overwhelming impression that there
was no consensus in the legal community on the issue, that it
was an open question.
Yet the vast majority of historians and legal scholars have
concluded--and stated publicly--that nothing that President
Clinton has been accused of rises to the level of an
impeachable offense. The hearing was a political charade. We
are told that ultimately, this is a political process.
Ultimately, it is. The question is whether it is going to be
a fair process. I argue that it can, and must be fair.
In his marvelous book on the impeachment process, published
while the country was in the throes of President Nixon's
Watergate troubles, Professor Charles Black alerted us to the
danger of partisanship.
Because the constitution and its history provide us with
more questions about impeachment than answers, he said, ``it
is always tempting to resolve such questions in favor of the
immediate political result that is palatable to us, for one
can never definitely be proved wrong, and so one is free to
allow one's prejudices to assume the guise of reason.''
Black was echoing Alexander Hamilton, who warned in
Federalist 65 that impeachments:
``will seldom fail to agitate the passions of the whole
community, and to divide it into parties, more or less
friendly or inimical, to the accused. In many cases, it will
connect itself with the pre-existing factions, and will
enlist all their animosities, partialities, influence and
interest on the one side, or on the other; and in such cases
there will always be the greatest danger, that the decision
will be regulated more by the comparative strength of parties
than by the real demonstrations of guilt or innocence.''
I don't think I am being partisan myself in warning about
the risks of partisan excess. As a 32 year-old Senator, I
expressed this same concern about the fate of a Republican
President. On April 10, 1974, I rose on the floor of the
United States Senate and said:
``In the case of an impeachment trial, the emotions of the
American people would be strummed, as a guitar, with every
newscast and each edition of the daily paper in communities
throughout the country.
The incessant demand for news or rumors of news--whatever
its basis of legitimacy--would be overwhelming. The
consequential impact on the federal institutions of
government would be intense--and not necessarily beneficial.
This is why my plea today is for restraint on the part of all
parties involved in the affair.''
I make the same plea for restraint today. And while the
circumstances surrounding these two events are starkly
different, the consequences for our Nation are the same. The
gravity of removing a sitting president from office is the
same today as it was twenty-four years ago.
The American people understand that the consequences of
impeaching a sitting President are grave and, thus far, they
have shown a remarkable restraint--more than some of the
pundits and experts. But I believe they have reached two
clear conclusions: Congress should resolve the matter
expeditiously and resolve the matter in a fair and non-
partisan manner.
These conclusions have great significance to the
impeachment process. I believe the American people will
ultimately make their judgment about the proceedings and the
outcome based in part, on whether the House Judiciary
Committee votes along strict party lines and whether the
House of Representatives acts in a similar manner.
That may not be fair, but I believe that is how they will
judge it. Therefore, it seems clear to me that for history's
sake, and with the Committee's legacy in mind, Chairman Hyde
and the Republican majority in the House must bend over
backwards to demonstrate that they have conducted this
proceeding based on principle, not politics.
There is yet another issue where public opinion comes into
play. That is the question of whether the President's
transgressions warrant impeachment. We know from survey after
survey that the American people believe the President's
actions do not justify impeaching him.
Should that have any bearing on the outcome? Many of my
colleagues say they will ignore public opinion. In most
cases, this is a sound position for a member of Congress to
take. When we are elected to the House and the Senate, we are
sent here to exercise judgment, not simply to be weathervanes
that shift with the political winds. The fact that this is an
impeachment proceeding doesn't change that--it makes it even
more important that we exercise our best judgment.
But I believe it is a serious mistake to take the position
that public opinion should have no bearing on how we act and
what we do. Let me explain. Many people--and many legal
scholars--have said that impeachment should be reserved for
grave breaches of the public trust. Surely, if we are trying
to decide whether an offense is a breach of the public trust,
it is important to know what the public thinks. If the
American people think the President's actions do not warrant
impeachment, we should listen to their views, and take them
seriously.
It would be a serious mistake to ignore public opinion for
another, more fundamental reason. This is their President we
are talking about. The President of the United States doesn't
serve at the pleasure of the legislature, as a prime minister
does in a parliamentary system. He is elected directly by the
people of the United States.
The election of a President is the only nationwide vote
that the American people ever cast. That is a big deal. If
the American people don't think they have made a mistake in
electing Bill Clinton, we in the Congress had better be very
careful before we upset their decision.
This was brought home to me several weeks before the
elections at a filling station in Wilmington. The woman
working the cash register looked up at me with something of a
scowl on her face. I assumed--incorrectly, it turned out--
that she had voted against me the last time I ran. She said,
``You're Joe Biden, aren't you?'' I nodded. She said, ``What
are you going to do to President Clinton on this Lewinsky
thing?'' I started to give her a noncommital answer about the
process needing to go forward, but she brought me up short.
``Don't you or anyone else take my vote away, Joe. He's my
President! If you remove him, I will never vote again.''
This woman--and the American people--understand the genius
of the American system in their bones. They know that the
Congress and the President are separate branches of
government. They understand that each branch is responsible
to them, not to the other branch of government. Just as they
know that the Senators from their state are theirs, and the
Representative from their district is theirs, they know that
the President is theirs, too.
Anyone who wants to impeach Bill Clinton needs to keep in
mind what the American people think about it, because he is
their President.
Let me be absolutely clear. This does not mean just doing
what the opinion polls say. It means proceeding in a manner
that the American people understand to be fair. In the case
of an impeachment, fair means bipartisan. It means putting
aside the disagreements that stem from partisan factions. The
time for partisan factions to play a role is in the process
of elections, where candidates advance competing policies and
platforms and the people vote. Once the election is held, our
leaders hold office until the next election. It is simply
antithetical to our constitutional democracy to use
impeachment to overturn an election on partisan grounds. It
violates the independence of the Presidency and it usurps the
people's voice.
The Framers saw this danger when they wrote the impeachment
power into the Constitution. Hamilton warned that an
impeachment would ``connect itself with pre-existing
factions,'' just as Black much later saw that impeachment was
an occasion for ``prejudices to assume the guise of reason.''
So those who wish to proceed with impeachment in the face
of the public's contrary opinion bear a special obligation
and confront a special risk. The obligation they face is that
they must proceed in a bipartisan manner, so that we can
defend the Congress's actions as fair and consistent with the
constitutional framework--so that if impeachment goes
forward, those who support it can look my constituent, or
their constituent, straight in the eyes and defend the
process as fair and just.
Should they fail to do this, the risk they face is the
chance that they will inflict more damage on our system of
government and induce more cynicism and disgust with politics
than anything the President has done so far.
So we must be prudent. Otherwise we will succumb to the
danger the Framers warned against. We will subject the
President to what amounts to a vote of no confidence. If you
disapprove of his presidency and its policies, or if you do
not like the man, vote to impeach. If, on the other hand, you
support his presidency and his policies, or if you do like
the man, vote to acquit. But that is not our system of
government.
When Benjamin Netanyahu returned home after signing the Wye
accords, he faced a vote of no confidence. If he had lost, he
would have been out of office and another government would
have to be formed.
That is simply not our system of government. Ours is not a
parliamentary system. That is not how impeachment is supposed
to operate.
Reflect for just a moment on how different our government
is. Here, the President and the Congress are separate
branches of government. Each is elected directly by the
people. The President and Vice President are the only
officials elected by ALL the people. Through the electoral
process, they answer to all the people. In such a system, a
vote of no confidence, as a means of removing the
[[Page S1483]]
head of government when the Congress disapproves of his
leadership, contradicts the theory of separated powers. It
would trample on the choice made by the people through the
electoral process.
This is no small matter. It goes to the heart of the
constitutional design. As Jack Rakove, the Stanford
historian, noted during the recently held House hearings on
the standard for impeachment, the prevailing principle that
guided the Framers in shaping the institution of the
Presidency during the Philadelphia Convention, the one major
goal and idea that best explains how that office took shape
over the summer of 1787, was their intention on ``making the
presidency as politically independent of the Congress as they
could.''
The Framers saw the system of separated powers and checks
and balances as a bulwark in support of individual liberty
and against government tyranny. The separation of powers
prevents government power from being concentrated in any
single branch of government. Permit one branch of government
to subjugate another to its partisan wishes, and you permit
the kind of concentration of power that can lead to tyranny.
So the system the Framers established is utterly
incompatible with the idea that sharp partisan divisions
could be sufficient to impeach. Preserving our system, with
its checks and balances and separation of powers, ought to be
part of our consideration as we attempt to resolve the
current controversy.
How do we ensure that impeachments do not become the
partisan showdowns that the Framer's warned about? The answer
is both simple and elusive. The only thing that prevents the
impeachment power from being abused is the good faith of
Members of Congress.
Professor Black proposed a simple test. He said that for
the purposes of impeachment, members take off their party's
hat--shed their partisan identity--and then try to take on
the identity of a member of the other party. In other words,
Republicans who favor Clinton's impeachment should try to
pretend they are Democrats, and see if they still hold that
same conclusion. Democrats who scoff at impeachment in the
present instance should try to see it from the Republican's
point of view.
It is very difficult to perform this test, especially in
the highly charged partisan atmosphere in which we live, but
you get the point. Before we undertake such a solemn act as
impeachment, we should examine our reasoning very carefully
to be sure we are not simply following partisan instincts.
Impeachment can be legitimate if and only if it emanates
from a bipartisan conviction that the president has committed
high crimes and misdemeanors--when people of opposing
viewpoints can come together in agreement over the
seriousness of the offense and the appropriateness of the
sanction.
Partisanship need not disappear entirely--that would be
impossible. It simply must be held in check for a time--a few
weeks, perhaps a month--and by a relatively small number of
people, so that a bipartisan consensus can take shape.
Look back at the Nixon impeachment. It took on legitimacy
when a core of Republicans on the House Judiciary Committee
were moved by the nature of President Nixon's offenses to
break party ranks and vote for articles of impeachment. In
the Senate, it was the stark reality of eroding Republican
support that prompted President Nixon to resign. There was
bipartisan consensus that what Nixon did was impeachable.
Partisanship did not evaporate entirely during the
impeachment trial of Andrew Johnson. In fact, the entire
episode was riddled with partisanship, and overall it stands
as an excellent example of how not to conduct an impeachment.
Still, seven Republican Senators did vote with the
Democrats for acquittal, shedding their partisan preferences,
to prevent that impeachment from succeeding. It took only
that amount of bipartisanship to save the country from an
impeachment that most people--in retrospect--have concluded
would have been a terrible mistake. The fact that a
conviction in the Senate requires a two-thirds majority
guarantees a measure of necessary bipartisanship except in
all but the most lopsided Senates.
But bipartisanship should not wait until the matter reaches
the Senate chamber. In previous impeachments the votes in
both the House and the Senate have been by overwhelming
majorities. In the past, except for the Johnson impeachment,
the only times articles of impeachment reached the floor were
in cases of tremendous bipartisan consensus that the offenses
satisfy the constitutional standard and that the officer
ought to be removed.
As for the Johnson impeachment itself, according to James
Blaine, one of the Republican House members who voted for
impeachment, he and others came in time to regret the effort.
In private correspondence, Blaine wrote that, ``the sober
reflection of after years has persuaded many who favored
impeachment that it was not justifiable on the charges made,
and that its success would have resulted in greater injury to
free institutions than Andrew Johnson in his utmost endeavor
was able to inflict.''
The conclusion I reach is this. The burden is, as it always
has been, on those who seek to impeach and convict a
President. To overturn a popular election, they must convince
the American people and at least some in the President's
party that the President's actions meet the high standard for
impeachment settled upon by our founders in the Constitution.
This is what I mean by bipartisanship.
The standard is ``principled political neutrality.''
And one measure of whether a member has met that principle
is to ask in Professor Black's words: ``Would they have
answered the same question the same way if it came up with
respect to a president towards whom [they] felt oppositely
from the way [they] feel toward the President threatened with
removal.''
The American people will know whether each member met that
test. They will not demand unanimity, but they will demand
consensus.
Thus far, the House Judiciary Committee has proceeded
without dignity, causing the American people to lose respect
for the Committee.
As a result, the burden of demonstrating that they are
proceeding with a standard of ``principled political
neutrality'' will be politically difficult to meet.
Ken Starr will make his case, the President should be
allowed to make his. Then let them decide if the President's
conduct meets the test of what the framers had in mind by
``high crimes and misdemeanors.''
The choice is not whether the President's self-evidently
shameful and possibly criminal conduct must be punished by
impeachment or be condoned. The choice is whether the process
for dealing with his conduct is removal from office or some
other means--censure, or perhaps even a criminal trial after
he has left office.
To those who say that failure to bring articles of
impeachment against the President would amount to condoning
his immoral behavior or overlooking a criminal act,
notwithstanding the fact it does not meet the test of an
impeachable offense, I say they do not understand our system
of government. For the Constitution contemplates and the law
provides for such a circumstance--it is called a criminal
trial after his term is served. It is a way to punish the
President without doing damage to the system of separated
powers or overruling the judgment of the American people.
Failure to impeach, even failure to proceed with a criminal
action, does not mean that the President has not paid for his
immoral behavior--he has already been sentenced to a hundred
years of shame in the history books, which is not an
insignificant penalty.
So I say to my colleagues in the House, do your duty.
Proceed with principled political neutrality. For if you do,
history will judge you kindly. And if you do not, it will
judge you harshly.
And for those of us who hold high public office and the
public trust, history is a judge.--[Speech, 11/18/98]
Burden of Proof
What is the standard of proof? The Constitution does not
set forth an express standard of proof that the evidence must
meet in order to allow the Senate to convict the president.
Practice has left to each Senator to determine for him or
herself what standard to apply.
From the judicial setting there are three major standards
from which to choose. Most civil trials require a plaintiff
to prove his or her case by a preponderance of the evidence.
This means that the plaintiff must prove that it is more
likely than not that the plaintiff's assertions are true.
Criminal trials require the most exacting degree of proof.
The prosecution must prove the defendant's guilt beyond a
reasonable doubt. A third, middle course is applied in some
cases. This standard, clear and convincing evidence, requires
proof that substantially exceeds a mere preponderance but
that does not eliminate all reasonable doubt. There must be a
very high degree of probability that the evidence proves what
the plaintiff asserts, but the proof may fall short of
certainty.
Many Senators, analogizing to a criminal trial, have
expressed that they would require the House Managers to prove
their case ``beyond a reasonable doubt.'' In anticipation of
an impeachment trial of President Richard Nixon, Senators Sam
Ervin, Strom Thurmond, and John Stennis all declared that
they would apply the beyond a reasonable doubt standard. But
it is clear that individual Senators may opt for a civil
standard.
This issue may not have more than rhetorical significance
for the impeachment trial of President Clinton. These
standards are meant to guide juries in their fact-finding
capacity. Insofar as the trial focuses on the question
whether the President's conduct justifies conviction and
removal from office, the proceedings will call on the Senate
in its judicial character. Resolving that question requires
the Senate to exercise its legal and political judgment in
order to determine whether the constitutional punishment fits
the misconduct. It does not call upon the Senate to make a
factual determination about what conduct actually occurred.--
[Memorandum, 12/28/98]
* * * * *
The Burden of Proof in Assessing the House's Case
But can the President rightly be charged with having
committed the massive number of crimes that the House
Managers allege? As Mr. McCollum said, if we cannot conclude
that the President has violated the law, even the House
Managers would agree that he should not be removed from
office. Even if
[[Page S1484]]
you accept their recitation of the dire consequences of
President Clinton remaining in office, if the President
cannot be shown to have been a serial perjurer and a massive
obstructor of justice, the Senate should acquit.
What standard of proof should a Senator apply in deciding
whether the record supports these charges? Both the House
Managers and the President's counsel addressed this
significant issue. The House Managers quite correctly pointed
out that the Senate has never sought to determine for the
entire body what that burden of proof should be in an
impeachment. In effect, we have left it to the good judgment
of each Senator to decide whether or not they are convinced
by the evidence presented to us.
For this Senator, fundamental fairness as well as the
nature of the House's case indicate that I ought to be
convinced beyond a reasonable doubt that the President
violated the laws that the House alleges. Proof beyond a
reasonable doubt is the same standard applied in criminal
cases--it is the standard that would apply if the President
were tried in a criminal court for perjury or obstruction of
justice.
It seems to me that fundamental fairness counsels that I
apply the same standard a criminal court would apply
precisely because the House asserts that what makes his
actions impeachable is that he has violated the criminal
statutes regarding perjury and obstruction of justice. It
strikes me as absurd that the Senate would have the arrogance
to throw out a duly elected President on these grounds unless
it was convinced that he would be convicted of those charges.
Otherwise, we would be saying in effect that even though the
President would not be convicted on these crimes, we are
nevertheless throwing him out of office because he committed
those crimes. Someone else can try to explain the logic of
that decision to the voters, but not me.
In addition, the standard of proof beyond a reasonable
doubt seems to me compelled by the fact that in the House's
explanation of the harm to our system of government if the
President is not thrown out, their entire argument rises and
falls depending upon whether or not the President would be
convicted in a court of law for the crimes alleged. If he
could not be convicted in a court of law, then the Senate is
not ``condoning'' perjury or obstruction of justice any more
than a criminal court is condoning those crimes when someone
is acquitted on such charges. The Senate, like a court, is
simply saying, ``not proven.'' But if the Senate is not
condoning those crimes, there is no conceivable basis for
concluding that the public will be harmed by the President's
remaining in office.
[There is another way to look at this: In any impeachment,
a Senator must simply be convinced to his or her satisfaction
that the defendant committed the acts alleged. That standard
never changes. However, when the articles of impeachment
allege that offenses rise to an impeachable level because
these actions violate the law and have harmful consequences
to the country because the defendant has violated the law and
would not be punished, in that case a Senator must be
convinced that a defendant would in fact be punished by a
criminal court. In other words, the Senator must simply be
convinced that a court would find that there is proof beyond
a reasonable doubt.
In contrast, if the charges were that the president had
lied to the American people, the Congress or foreign leaders,
and that the harmful consequences flowed from being unable to
rely upon his word, then a Senator must simply be convinced
that the President lied, relying upon whatever level of proof
is sufficient to convince him or her of that fact.]--
[Memorandum, 1/21/98]
Censure
In recent days, some have suggested that because the Starr
report provides prima facie evidence of what are arguably
impeachable offenses, the House and the Senate have a
constitutional responsibility to see the impeachment process
through to its conclusion. In my view, the constitutional
history that I have sketched here this evening shows this
position to be entirely mistaken. Indeed, if anything,
history shows a thoroughly understandable reluctance to have
the procedure invoked.
Stopping short of impeachment would not be reaching a
solution ``outside the Constitution,'' as some suggest--it
would be entirely compatible and consistent with the
Constitution.
The 28th Congress [which contemplated but then terminated
impeachment proceedings against President Tyler] hardly
violated its constitutional duty when the House decided that,
all things considered, terminating impeachment proceedings
after cooperation between the Congress and the President
improved was a better course of action than proceeding with
impeachment based on his past actions, even though it
apparently did so for reasons no more laudable than those
that initiated the process.
Impeachment was and remains an inherently political
process, with all the pitfalls and promises that are thus put
into play. Nothing in the document precludes the Congress
from seeking means to resolve this or any other putative
breach of duty short of removing him from office. In fact,
the risky and potentially divisive nature of the impeachment
process may counsel in favor of utilizing it only as a last
resort.
Of course, impeachment ought to be used if the breach of
duty is serious enough--what the Congress was prepared to do
in the case of Richard Nixon was the correct course of
action. However, nothing in the Constitution precludes the
congress from resolving this conflict in a manner short of
impeachment.
The crucial question--the question with which the country
is currently struggling--is whether the President's breaches
of conduct--which are now well-known and which have been
universally condemned--warrant the ultimate political
sanction. Are they serious enough to warrant removal?
In answering that, we need to ask ourselves, what is in the
best interest for the country?
And while I have not decided what ultimately should happen,
I do want to suggest that it is certainly constitutionally
permissible to consider a middle ground as a resolution of
this matter. Such an approach might bring together those of
the President's detractors who believe there needs to be some
sanction, but are willing to stop short of impeachment, as
well as those of the President's supporters who reject
impeachment, but are willing to concede that some sanction
ought to be implemented.
As a country, we have not often faced decisions as stark
and potentially momentous as the impeachment of a president.
On the other hand, we would be wise not to overstate such
claims--surely we have faced some moments just as stark and
serious as this one. We have survived those moments, and we
will survive this one.
Whatever the outcome of the present situation, I am
confident that our form of government and the strength of our
country present us not with any constitutional crisis, but
rather with the constitutional framework and flexibility to
deal responsibly with the decisions we face in the coming
months.--[Speech, 10/2/98]
Crimes and Misdemeanors, High
Let me say at the outset, that what President Clinton did
was reprehensible. It was a horrible lapse in judgment and it
has brought shame to him personally and to the office of the
president. His actions have hurt his family, his friends, his
supporters and the country as a whole. President Clinton has
said this himself.
Let me also say that I have not made any decision as to
what I think should happen. I have not come to any conclusion
as to what consequences the President should face for his
shameful behavior. I believe the oath I have taken precludes
me and other Senators from prejudging, as I may be required
to serve as a judge and juror in the trial of the century.
I can only make an assessment after hearing all of the
evidence: evidence against the President, and evidence in
support of the President.
No one knows how this will turn out. However, I have given
the topic some thought and would like to explore some of the
issues that surely will confront responsible Members of
Congress and all Americans as we enter this difficult period
in our history.
The framers of the Constitution who met in Philadelphia in
the summer 1787 considered offering the country a
constitution that did not include the power to impeach the
president. After all, any wrongs against the public could be
dealt with by turning the president out in the next election.
One delegate to the constitutional convention, Charles
Pinckney of South Carolina, worried that the threat of
impeachment would place the president under the thumb of a
hostile congress, thereby weakening the independence of the
office and threatening the separation of powers. According to
James Madison's notes, Pinckney called impeachment a ``rod''
that congress would hold over the president.
In being reluctant to include an impeachment power, the
framers were not trying to create an imperial presidency. In
fact, what they were worried about was protecting all
American citizens against the tyranny of a select group.
In their view, the separation of powers constituted one of
the most powerful means for protecting individual liberty,
because it prevented government power from being concentrated
in any single branch of government. To make the separation of
powers work properly, each branch must be sufficiently strong
and independent from the others.
The framers were concerned that any process whereby the
legislative branch could sit in judgment of the president
would be vulnerable to abuse by partisan factions. Federalist
No. 65 begins its defense of the impeachment process by
warning of the dangers of abuse. It argues that impeachments:
``Will seldom fail to agitate the passions of the whole
community, and to divide them into parties, more or less
friendly or inimical, to the accused. In many cases, it will
connect itself with the pre-existing factions, and will
enlist all their animosities, partialities, influence and
interest on one side, or on the other; and in such cases
there will always be the greatest danger, that the decision
will be regulated more by the comparative strength of the
parties than by the real demonstration of guilt or
innocence.''
So the framers were fully aware that impeachment
proceedings could become partisan attacks on the president--
charged with animosities generated by all manner of prior
struggles and disagreements, over executive branch decisions,
over policy disputes, over resentment at losing the prior
election. Federalist No. 65 expresses the view that the use
of impeachment to vindicate these animosities would actually
be an abuse of that power.
This sentiment is as true today as it was when the
constitution was being written. It
[[Page S1485]]
was also true when Richard Nixon faced impeachment in 1974.
In fact, it would have been wrong for Richard Nixon to have
been removed from office based upon a purely partisan vote.
No president should be removed from office merely because one
party enjoys a commanding lead in either house of the
congress.
Yet while the framers knew that impeachment proceedings
could become partisan, they needed to deal with strong anti-
federalist factions.
The anti-federalists strenuously argued that the federal
government would quickly get out of step with the sentiments
of the people and become vulnerable to corruption and
intrigue, arrogance and tyranny. This charge proved close to
fatal as the ratifying conventions in the states took up the
proposed constitution.
The framers of the Constitution knew that the Constitution
would have been even more vulnerable to charges of
establishing a government remote from the people if the
president were not subject to removal except at the time of
re-election.
James Madison's notes of the Philadelphia constitutional
convention record his observations of the debate. He:
``Thought it indispensable that some provision should be
made for defending the community against the incapacity,
negligence or perfidy of the chief magistrate [that is, the
president]. The limitation of the period of his service was
not a sufficient security. He might lose his capacity after
his appointment. He might pervert his administration into a
scheme of speculation or oppression. He might betray his
trust to foreign powers.''
So in the end, the framers of the Constitution risked the
abuse of power by the congress to gain the advantages of
impeachment.
Once the decision to include the power of impeachment had
been made, the remainder of debate on the impeachment clauses
focused on two issues:
1. What was to constitute an impeachable offense or what
were the standards to be?
2. How was impeachment to work or what were the procedures
to be?
As we shall see, the framers proved unable to separate
these two issues entirely. Understanding how they are
intertwined, however, helps us to understand the full
implications of the power.
The Constitution provides that ``the House of
Representatives shall. . . have the power of impeachment.''
(Article I, Section 2, Clause 5).
The framers decision that the House of Representatives
would initiate the charges of impeachment follows the pattern
of the English Parliament--where the House of Commons
initiates charges of impeachment. Beyond this, the choice
must have seemed fairly compelled by two related
considerations.
The first, already mentioned, was the need to provide the
people as a whole with assurances that the government they
were being asked to create would be responsive to the
interests and concerns of the people themselves.
The second was the framer's substantive understanding of
the impeachment power. It was a power to hold accountable
government officers who had, in Hamilton's terms, committed
``an abuse or violation of some public trust'' thereby
committing an injury ``done immediately to the society
itself.''
If the gravamen of an impeachment is the breach of the
public's trust, no branch of the federal government could
have seemed more appropriate to initiate such a proceeding
than the House, which was conceived and defended as the
chamber most in tune with the people's sympathies and hence
most appropriate to reflect the people's views.
The Constitution further provides that the president shall
be ``removed from office on impeachment for, and conviction
of, treason, bribery, or other high crimes and
misdemeanors.'' (Article II, Section 4).
This language went through several changes during that
summer of 1787. In initial drafts, the grounds for
impeachment were restricted to treason and bribery alone.
When the matter was brought up on September 8, 1787, George
Mason of Virginia inquired as to why the grounds should be
restricted to these two provisions.
He argued that ``attempts to subvert the constitution may
not be treason as above defined.'' Accordingly, he moved to
add ``maladministration'' as a third ground.
James Madison objected to Mason's motion, contending that
to add ``so vague a term will be equivalent to a tenure
during the pleasure of the senate.'' Here again, we see the
worry that impeachment would be misused by the congress to
reduce the independence of the president, allowing partisan
factions to interfere at the expense of the larger public
good.
The objection apparently proved effective because mason
subsequently withdrew the motion and substituted the phrase
``or other high crimes and misdemeanors.''
What does the phrase mean? It is clear the framers thought
it to be limited in scope. But beyond this, constitutional
scholars have been debating the meaning of this phrase from
the very early days of the republic.
Yet despite this on-going dialogue, I believe there are two
important points of agreement as to the original
understanding of the phrase, and a third issue where the
weight of history suggests a settled practice.
First, as we have already seen, the framers did not intend
that the president could be impeached for
``maladministration" alone.
Second, a great deal of evidence from outside the
convention shows that both the framers and ratifiers saw
``high crimes and misdemeanors'' as pointing to offenses that
are serious, not petty, and offenses that are public or
political, not private or personal.
In 1829, William Rawle authored one of the early
commentaries on the Constitution of the United States. In it,
Rawle states that ``the legitimate causes of impeachment. . .
can only have reference to public character and official
duty.''
He went on to say, ``in general, those offences which may
be committed equally by a private person as a public officer
are not the subjects of impeachment.''
In addition, more than one hundred fifty years ago, Joseph
Story, in his influential Commentaries on the Constitution,
stated that impeachment is:
``Ordinarily'' a remedy for offenses ``of a political
character,'' ``growing out of personal misconduct, or gross
neglect, or usurpation, or habitual disregard of the public
interests, in the discharge of the duties of political
office.''
The public character of the impeachment offense is further
reinforced by the limited nature of the remedy for the
offense. In the English tradition, impeachments were
punishable by fines, imprisonment and even death. In
contrast, the American constitution completely separates the
issue of criminal sanctions from the issue of removal from
office.
The Constitution states that ``judgment in cases of
impeachment shall not extend further than to removal from
office, and disqualification to hold and enjoy any office of
honor, trust or profit under the United States.'' (Article I,
Section 3, Clause 7).
The remedy for violations of the public's trust in the
performance of one's official duties, in other words, is
limited to removal from that office and disqualification from
holding future offices. Remedies that I might add, correspond
nicely to the public nature of the offenses in the first
instance.
Additional support comes from yet another commentator,
James Wilson, a delegate to the convention from Pennsylvania.
In his lectures on the Constitution, Wilson wrote that ``in
the United States and Pennsylvania, impeachments are confined
to political characters, to political crimes and
misdemeanors, and to political punishments.''
All in all, the evidence is quite strong that impeachment
was understood as a remedy for abuse of official power,
breaches of public trust, or other derelictions of the duties
of office.
The third point to make about the scope of the impeachment
power is this: to be impeachable, an offense does not have to
be a breach of the criminal law.
The renowned constitutional scholar and personal friend and
advisor, the late Phillip Kurland, wrote that ``at both the
convention that framed the constitution and at the
conventions that ratified it, the essence of an impeachable
offense was thought to be breach of trust and not violation
of the criminal law. And this was in keeping with the primary
function of impeachment, removal from office.''
If you put the notion that an impeachable offense must be a
serious breach of an official trust or duty, together with
the point that it does not have to be a criminal violation,
you reach the conclusion that not all crimes are impeachable,
and not every impeachable offense is a crime. [Speech, 10/2/
98]
* * * * *
Reference has been made to an exchange between George Mason
and James Madison at the Virginia Ratifying Convention. Mason
is reported to have worried that a president might ``stop
[an] inquiry'' into wrongdoing involving the president.
Madison is reported to have replied that this concern was not
substantial because the House of Representatives could
impeach the president if he did so. The exchange, it has been
argued, proves that the Framers viewed obstruction of justice
as clearly an impeachable offense.
A more extended look at the colloquy shows that Mason's
precise concern was that the President would use his pardon
power to pardon people whose investigations might reveal
presidential involvement in criminal activities. Mason used
this concern as the basis for arguing that the pardon power
should be placed in the House, and not with the President. To
this concern, Madison replied that if the President so abused
the pardon power, he could be impeached. So it was an action
that abused an official power of the President that Madison
thought was impeachable.
Here is a condensed version of the exchange as reported in
Eliot's Debates.
Mr. GEORGE MASON, animadverting on the magnitude of the
powers of the President, was alarmed . . . Now, I conceive
that the President ought not to have the power of pardoning,
because he may frequently pardon crimes which were advised by
himself. It may happen, at some future day, that he will
establish a monarchy, and destroy the republic. If he has the
power of granting pardons before indictment, or conviction,
may he not stop inquiry and prevent detection?
Mr. MADISON, adverting to Mr. Mason's objection to the
President's power of pardoning, said it would be extremely
improper to vest it in the House of Representatives, and not
much less so to place it in the Senate. . . . There is one
security in this case to which gentlemen may not have
adverted: if the President be connected, in any suspicious
manner, with any person, and there
[[Page S1486]]
be grounds to believe he will shelter him, the House of
Representatives can impeach him. . . . This is a great
security.'' [Memorandum, 2/9/99]
* * * * *
ii. the meaning of ``high crimes and misdemeanors'' under the
constitution
The Constitution establishes that the President ``shall be
removed from Office on Impeachment for and Conviction of
Treason, Bribery, or other high Crimes and Misdemeanors.''
That instrument, by design, does not contain an express
definition of the phrase ``other high Crimes and
Misdemeanors.'' The framers intended the Constitution to
endure for centuries and recognized that they could not
provide a more specific definition that would justly serve
the nation's interest into an unknowable future. Instead,
they wisely entrusted the construction and adaptation of that
phrase to the judgment and conscience of the people's chosen
representatives in Congress. Thus, the Senate is left to
exercise what Alexander Hamilton termed our ``awful
discretion'' to judge whether the President's conduct
warrants removing him from office.
While the Constitution calls upon each Senator to bring his
or her good faith political judgment to bear on the meaning
of the constitutional standard of ``other high Crimes and
Misdemeanors,'' it does not abandon us to an ad hoc or
partisan exercise of our discretion. Indeed, the framers
strongly urged in both the Philadelphia convention and the
state ratifying conventions that the constitutional standard
is not properly understood to allow impeachment to be used as
a tool of partisan punishment. The Constitution itself, the
history of its framing and ratification, and the construction
given through faithful interpretation and practice since its
ratification converge to provide powerful guidance for
determining what offenses justify impeachment and conviction.
These touchstones of constitutional interpretation reveal
that high crimes and misdemeanors are great offenses
characterized by two elements: (1) grave harm to the
constitutional system of government that (2) results from
official misconduct.
a. the history of impeachment
The framers met in Philadelphia in 1787 because the
government under the Articles of Confederation was so
ineffectual as to have brought the fledgling union to ``the
last stage of national humiliation.'' They intended to
establish a government through which the people could
effectively define and pursue the general welfare. To do so,
the framers understood that the government whose charter they
were about to write would have to be entrusted with broad
coercive powers to act directly upon American citizens. At
the same time, the framers were practical statesmen who
understood that the powers necessary to make a government
effective could be misused make it potentially an instrument
of oppression. Madison explained the dilemma:
``If men were angels, no government would be necessary. If
angels were to govern men, neither external nor internal
controls on government would be necessary. In framing a
government which is administered by men over men, the great
difficulty lies in this: you must first enable the government
to control the governed; and in the next place oblige it to
control itself.''
To meet this potential threat to liberty, the framers
divided the federal government into three co-equal branches
and further divided the legislative branch into two houses in
order to require the concurrence of the branches before the
government's coercive power could be brought to bear on the
people. Thus, while Article 1, Section 1 of the Constitution
vests the legislative power in Congress, this power is
subject to presidential veto and judicial review for
constitutionality. Executive action generally requires a
legislative basis or appropriations or other legislative
support and is subject to judicial review.
Finally, the establishment and jurisdiction of the federal
courts generally depends upon legislative authorization,
subject again to presidential veto. Within this structure
each branch is to be independent and is ``armed'' to defend
itself against encroachments by the others. As Justice Robert
Jackson observed, ``the Constitution diffuses power the
better to secure liberty . . . . It enjoins upon its branches
separateness but interdependence, autonomy but reciprocity.''
Maintaining the independence of the three branches of
government dominated the debates regarding impeachment at the
Constitutional Convention. Initially, the framers considered
offering the country a constitution that did not include the
power to impeach the president. After all, any wrongs against
the public could be dealt with by turning the president out
in the next election. One delegate to the constitutional
convention, Charles Pinckney of South Carolina, worried that
the threat of impeachment would place the president under the
thumb of a hostile congress, thereby weakening the
independence of the office and threatening the separation of
powers. According to James Madison's notes, Pinckney called
impeachment a ``rod'' that congress would hold over the
president.
In being reluctant to include an impeachment power, the
framers were not trying to create an imperial presidency;
they were concerned about protecting all American citizens
and the nation as a whole. In their view, the separation of
powers constituted one of the most powerful means for
protecting individual liberty, because it prevented
government power from being concentrated in any single branch
of government. To make the separation of powers work
properly, each branch must be sufficiently strong and
independent from the others.
The framers' worry was largely animated by the concern that
any process whereby the legislative branch could sit in
judgment over the president would be vulnerable to abuse by
partisan factions. Federalist No. 65 begins its defense of
the impeachment process by warning of its potential for
abuse. It argues that impeachments:
``Will seldom fail to agitate the passions of the whole
community, and to divide them into parties, more or less
friendly or inimical, to the accused. In many cases, it will
connect itself with the pre-existing factions, and will
enlist all their animosities, partialities, influence and
interest on one side, or on the other; and in such cases
there will always be the greatest danger, that the decision
will be regulated more by the comparative strength of the
parties than by the real demonstration of guilt or
innocence.''
The framers were fully aware that impeachment proceedings
could become partisan attacks on the president charged with
animosities generated by all manner of prior struggles and
disagreements over executive branch decisions, over policy
disputes, over resentment at losing the prior election.
Federalist No. 65 expresses the view that the use of
impeachment to vindicate these animosities would actually be
an abuse of that power.
Although the framers were concerned about impeachment
proceedings becoming partisan, they needed to deal with
strong anti-federalist factions. They were very aware that
the anti-federalists strenuously urged that the federal
government would quickly get out of step with the sentiments
of the people and would become vulnerable to corruption and
intrigue, arrogance and tyranny. This charge proved close to
fatal as the ratifying conventions in the states took up the
proposed constitution. The framers of the constitution knew
that the constitution would have been even more vulnerable
to charges of establishing a government remote from the
people if the president were not subject to removal at all
except at the time of re-election.
James Madison's notes of the Philadelphia Constitutional
Convention record his observations of the debate where he:
``Thought it indispensable that some provision should be
made for defending the community against the incapacity,
negligence or perfidy of the chief magistrate. The limitation
of the period of his service was not a sufficient security.
He might lose his capacity after his appointment. He might
pervert his administration into a scheme of speculation or
oppression. He might betray his trust to foreign powers.''
So in the end, the framers of the constitution risked the
abuse of power by the Congress to gain the advantages of
impeachment.
B. The Constitution's Text and Structure
The Constitution does not define impeachable offenses, yet
its text and structure provide clear manifestation that these
words refer to official misconduct causing grave harm to our
constitutional system of government. The starting point for
any analysis of the Constitution's meaning must be its text,
which in relevant part reads, ``the President . . . shall be
removed from Office on Impeachment for and Conviction of
Treason, Bribery, or other high Crimes and Misdemeanors.''
Here, the text sets forth a list that begins with terms
that have definite meaning (treason, which is defined in the
Constitution itself, and bribery, whose definition was fixed
at common law) and proceeds to relatively indefinite terms,
high crimes and misdemeanors. In this setting, two rules of
construction, ejusdem generis and noscitur a sociis, instruct
that the meaning of the indefinite terms are to be understood
as similar in kind to the definite terms. Application of
these canons of construction is bolstered here by the text
itself. The indefinite element, ``high Crimes and
Misdemeanors,'' is introduced by the term ``other.'' This
specifically refers the reader back to the preceding definite
terms, treason and bribery, as supplying the context and
parameters for the meaning of the indefinite phrase, ``high
Crimes and Misdemeanors.''
Every criminal offense, including such trivial infractions
as parking offenses, involves public or societal harm. It is
for this reason that criminal cases are titled, ``The State
versus . . .'' or ``The Government versus. . . .'' Each of
the definite impeachable offenses, treason and bribery, are
distinct in that they cause grave harm to the public not in
some undifferentiated sense but in a way that strikes
directly at our system of constitutional government. The
Constitution defines treason as ``levying War against [the
United States] or in adhering to their Enemies, giving them
Aid and Comfort,'' which plainly involves the most serious
offense against our system of government. Similarly, bribery
inescapably involves a serious subversion of the processes of
government. In describing the common characteristics of
treason and bribery, Professor Charles Black of Yale Law
School explained that each offense ``so seriously threaten[s]
the order of political society as to make pestilent and
dangerous the continuance in power of their perpetrator.''
Furthermore, Professor Edwin Corwin quoted with approval
the statement of Justice Benjamin Curtis who said in defense
of
[[Page S1487]]
President Andrew Johnson that ``treason and bribery . . .
these are offenses which strike at the existence of [the]
government. `Other high crimes and misdemeanors.' Noscitur a
sociis. High crimes and misdemeanors; so high that they
belong in this company with treason and bribery.''
In this constitutional setting, the terms treason and
bribery take on a second distinctive aspect. As used in
Article II, Section 4, each term involves official
misconduct. Bribery, by definition, occurs only where a
public official undertakes an official act in return for
payment or some other corrupt consideration. Likewise,
treason necessarily involves official misconduct in the
impeachment context. To be sure, it is possible for a private
citizen to commit treason by giving aid and comfort to the
enemies of the United States. It must be remembered that
impeachment proceedings may be pursued only against civil
officers of the United States. By limiting impeachable
treason to civil officers, the Constitution expressly
contemplates that treason will provide a grounds for
impeachment and conviction only where a civil office is used
to adhere to or aid the enemies of the United States.
The textual construction expressed above--that high crimes
and misdemeanors refer to grave harms to our constitutional
system of government that result from official misconduct--
comports with and draws significant support from the
Constitution's structure. First, the structure reflects the
framers' conscious decision not to adopt a parliamentary
system of government, in which the executive power is
subordinate to and controlled by the legislature. The
structure also reflects the framers' judgment that the
executive branch not be accorded primacy; their experience
with the tyranny of the British monarchy was too recent to
have permitted them to accept executive supremacy. Instead,
the Constitution establishes three branches that are
independent, strong, and co-equal. Construing the category of
high crimes and misdemeanors too broadly would threaten the
independence of the executive and judicial branches. This
specific concern animated James Madison in the Philadelphia
Convention and moved him to object to vague and potentially
expansive formulations of the grounds upon which the
President could be impeached and removed from office.
The formulation of high crimes and misdemeanors must be
understood as consistent with the Constitution's overall
structure. In as much as the Constitution's structure
specifically rejects the parliamentary form, the power of
impeachment and removal must be construed and exercised in a
way that respects this fundamental constitutional judgment.
Understanding the grounds for impeachment to be limited to
cases of official misconduct that cause serious harm to our
system of government allows the Congress to protect the
public against oppressive official action without undermining
the necessary independence of the President or the judiciary.
The Constitution's structure also supports limiting the
category of impeachable offenses to those involving official
misconduct. The constitutional separation of powers is
designed to safeguard liberty against tyrannical or
oppressive exercise of the government's power. In advocating
the specific governmental structure erected in the
Constitution, Madison repeatedly described the motivating
concern to be establishing internal mechanisms, specifically
the system of checks and balances, to control the federal
government's power and minimize threat to the liberty of the
people. This supports limiting the scope of impeachable
offenses to official misconduct; that is, to conduct in which
the civil officer misuses his or her official power. Other
sorts of misbehavior by civil officers are simply beyond the
concern of the separation of powers, of which the impeachment
powers are a significant component. Indeed, the Constitution
specifically provides that civil officers, including the
President, remain subject to criminal prosecution and
punishment for wrongdoing that does not involve official
conduct.
C. History of the Debates and Ratification of the Constitution
Moving beyond the text and structure of the Constitution
itself, the debates at the Philadelphia Convention of 1787,
where the Constitution was drafted, and those in the
subsequent state ratifying conventions provide important
insight into the meaning of ``high Crimes and Misdemeanors.''
Close examination of these proceedings demonstrates that the
framers gave careful consideration to Congress's impeachment
powers. This consideration led them to understand the
Constitution as setting forth a very narrow category of
impeachable offenses.
Through most of the convention, the drafts of the
Constitution denominated treason and bribery as the exclusive
grounds for impeachment and removal of civil officers. In
September 1787, as the convention was drawing to a close,
Colonel George Mason and James Madison undertook colloquy
that gave this provision its ultimate formulation. Because
treason was expressly and narrowly defined in the
Constitution itself, Mason was concerned that the impeachment
power would not reach ``great and dangerous offenses'' and
that ``attempts to subvert the Constitution may not be
treason'' as defined in Article III of the Constitution.
Mason moved to add ``maladministration'' as a catchall
category. Significantly, this offense, which had been an
accepted ground for impeachment in British practice,
comprises exclusively official misconduct.
Madison objected to this addition, not because it was too
restrictive, but because it was too vague and so potentially
too expansive. He feared that ``so vague a term will be
equivalent to a tenure during the pleasure of the Senate.''
Here again it is clear that the framers were concerned that
impeachment would be misused by the Congress to reduce the
independence of the President. In response Mason withdrew his
own original motion and moved to add ``or other high Crimes
and Misdemeanors.'' His motion was quickly approved.
The purpose of Mason's motions was to include all offenses
that pose a threat to our system of constitutional government
similarly to that posed by treason. Madison expressed the
important concern that the expansion not be left so far open
as to erode the essential independence of the other branches,
and particularly of the President. In responding to Madison's
concern, Mason must be understood to have intended to narrow
a definition that already applied solely to official
misconduct. The colloquy between Mason and Madison, then,
strongly supports construing the phrase high crimes and
misdemeanors to cover only official misconduct that threatens
grievous harm to our governmental system.
Madison was not alone in his concern that Congress might
use impeachment as a tool for encroachments upon the
executive branch. This concern was raised in various state
ratifying conventions as well. For example, in supporting the
Constitution at the Pennsylvania Convention, James Wilson
repeatedly assured the delegates that only ``great injuries''
could serve as a basis for invoking impeachment. In his
lectures on the Constitution, Wilson went on to say that ``in
the United States and Pennsylvania, impeachments are confined
to political characters, to political crimes and
misdemeanors, and to political punishments.'' In the North
Carolina Convention, several defenders of the Constitution,
including James Iredell who was a delegate to the
Philadelphia Convention and later became a Justice of the
Supreme Court, argued that impeachment would ``arise from
acts of great injury to the community.'' The debates
surrounding ratification in New York produced the Federalist
Papers. Alexander Hamilton explained that,
``[t]he subjects of [the Senate's impeachment] jurisdiction
are those offenses which proceed from the misconduct of
public men, or, in other words, from the abuse or
violation of some public trust. They are of a nature which
with peculiar propriety may be denominated POLITICAL, as
they relate chiefly to injuries done to the society
itself.''
Like Hamilton, the founding generation understood
impeachment to be a political remedy for political offenses.
It is important to bear in mind what they meant by
``political.'' They meant that which relates to government
and the pursuit of the general welfare; that which involves
the system of government or ``society in its political
character.'' They specifically did not mean political in the
sense of partisan which the framers affirmatively feared.
Charles Pinckney, James Wilson, and Alexander Hamilton, for
example, each decried construing the impeachment powers in
ways that would allow these powers to be put to partisan
ends. They lodged the power to try impeachments in the Senate
precisely because they thought the Senate would have the
necessary independence, stature, and impartiality to prevent
the impeachment powers from becoming a tool of factionalism
and partisanship. The framers expected that the Senate was,
among government institutions, uniquely capable of fidelity
to the constitutional limits partisanship that the framers
understood to be implicit in the phrase high crimes and
misdemeanors.
Leading constitutional scholarship of the founding era
reflects the same view of the intended narrow scope of high
crimes and misdemeanors. Justice Joseph Story, in his
pathbreaking Commentaries on the Constitution, looked to
British practice to understand the scope of impeachment in
the United States Constitution. Recognizing that the U.S.
Constitution intended to confine impeachment to a narrower
set of offenses than those permitted under British law, he
observed that even in Great Britain, ``such kinds of misdeeds
. . . as peculiarly injure the commonwealth by the abuse of
high offices of trust are the most proper and have been the
most usual ground for this kind of prosecution in
parliament.'' Story went on to say that impeachment is a
remedy for offenses ``of a political character,'' ``growing
out of personal misconduct, or gross neglect, or usurpation,
or habitual disregard of the public interests, in the
discharge of the duties of political office.''
The public character of the impeachment offense is further
reinforced by the limited nature of the remedy for the
offense. In the English tradition, impeachments were
punishable by fines, imprisonment and even death. In
contrast, the American Constitution completely separates the
issue of criminal sanctions from the issue of removal from
office. The Constitution states that ``judgment in cases of
impeachment shall not extend further than to removal from
office, and disqualification to hold and enjoy any office of
honor, trust or profit under the United States.'' The remedy
for violations of the public's trust in the performance of
one's official duties, in other words, is limited to removal
from that office and disqualification from holding future
offices.
[[Page S1488]]
Therefore, the Constitution contemplates both an
impeachment and a criminal action as consequences for
Presidents who commit impeachable offenses. This differs from
the English model which only provides for criminal
punishments after an impeachment conviction. If, however, a
President engages in egregious but non-impeachable activity,
the Constitution subjects the President to criminal
liability. Impeachment therefore, is viewed not as a
mechanism to punish a President, but rather a device to
protect the populace. As Story said, impeachment proceedings
are ``not so much designed to punish an offender as to secure
the state against gross official misdemeanors.''
Impeachment, therefore, is intended to preserve the
constitutional form of government by removing from office an
official who subverts the Constitution and is not intended to
be a remedy for someone who breaks the law in connection with
a private matter.
At least one important early treatise writer, William
Rawle, concluded that only official misconduct could provide
a basis for impeachment. He contended that ``the causes of
impeachment can only have reference to public character and
official duty. . . . In general those which may be committed
equally by a private person as a public officer are not the
subject of impeachment.'' Additional support for this
proposition comes from the renowned constitutional scholar,
Phillip Kurland who wrote that ``at both the convention that
framed the Constitution and at the conventions that ratified
it, the essence of an impeachable offense was thought to be
breach of trust and not violation of the criminal law. And
this was in keeping with the primary function of impeachment,
removal from office.'' Finally, additional support for this
proposition comes from the United States Department of
Justice. As a legal memorandum produced by the Justice
Department's Office of Legal Counsel during impeachment
proceedings against President Nixon observed, ``[t]he
underlying purpose of impeachment is not to punish the
individual, but is to protect the public against gross abuse
of power.''
d. constitutional practice and precedent
Another important guide to the meaning of the Constitution
is the construction applied throughout our history by those
who have been charged with applying its provisions. The
significance of constitutional practice is heightened in the
absence of applicable judicial interpretation. As Justice
Frankfurter stated:
``The Constitution is a framework for government. Therefore
the way the framework has consistently operated fairly
establishes that it has operated according to its true
nature. Deeply embedded traditional ways of conducting
government cannot supplant the Constitution or legislation,
but they give meaning to the words of a text or supply them.
It is an inadmissibly narrow conception of American
constitutional law to confine it to the words of the
Constitution and to disregard the gloss which life has
written upon them.''
In the history of the United States, the Senate has never
convicted any President of an impeachable offense. This fact
stands out as the sum total of the Senate's practical
construction of the Constitution's impeachment provisions as
they relate to the President of the United States. It must
serve as a chilling call to self-restraint in construing
those provisions.
The Senate has convicted other civil officers of
impeachable offenses, including high crimes and misdemeanors.
There is reason to doubt whether these cases, mostly
involving federal judges, provide directly analogous
precedent for cases involving the President. First, the
Madison-Mason colloquy and the debates in the state ratifying
conventions demonstrate the framers' primary concern was with
the use of impeachment as a vehicle for encroachments on the
President's structurally necessary independence from the
legislature. Second, federal judges serve life terms and are
not elected. The automatic removal of the President upon
conviction of high crimes and misdemeanors has the widely
remarked upon consequence of artificially altering the
expected result of an election and thus is regarded as in
tension with democratic principles. Moreover, because the
President serves a limited term of four years, the need for
an artificial removal mechanism is less urgent than it is in
the case of judges who would otherwise serve an illimitable
term.
These caveats aside, an examination of congressional
practice in the case of the fifteen officers who have been
impeached by the House strongly supports construing high
crimes and misdemeanors as aimed primarily at official
misconduct that results in grave harm to our constitutional
system of government. In every case, the misconduct cited as
impeachable involved the misuse of office or the power of
office. No case involved impeachment for conduct that did not
involve the exercise of the impeached person's office or
official power. The closest the Congress has come to
impeaching and convicting an officer for conduct not
involving abuse of office was the case of Judge Harry
Claiborne. Judge Claiborne was impeached, convicted, and
removed from office for committing tax evasion.
Superficially, this conduct did not itself involve his
judicial office in any direct way. The income he was
convicted of withholding, however, allegedly came from
improper payments to him, which were made because of his
judicial office. In their essence, then, the charges against
him were charges of serious abuse of office involving what
amounted to bribery, though the articles of impeachment did
not formally recount the source of the income at the heart of
the tax evasion case against Judge Claiborne. [Memorandum,
12/22/98]
evidence, rules of
Are the Federal Rules of Evidence Applicable? Neither the
Senate nor its presiding officer, the Chief Justice, is
required to follow the Federal Rules of Evidence in ruling on
evidentiary objections during an impeachment trial. As a
matter of practice these decision makers have relied upon the
Federal Rules in considering evidentiary objections, but have
not always excluded evidence that the Federal Rules would
exclude or admitted evidence that the Federal Rules would
allow. The Senate's approach has been to receive all evidence
except where doing so would be unfair to one of the parties.
In determining what is fair, the Senate has placed great
weight on the Federal Rules.
The refusal to adopt the Federal Rules of Evidence is
apparently based on the judgment that the Senate is highly
sophisticated as a jury examining political crimes and
weighing political remedies. Consequently, the Senate does
not need the sort of protections that juries commonly
require. The concern raised by not adopting the Federal Rules
is that, where the only limit on the discretion of individual
Senators is their sense of fairness, party-line voting may
emerge and the impeachment process could come to be viewed as
lacking the necessary impartiality.
While the Senate has never accepted that it is bound by the
Federal Rules, it may vote to require their application in a
given case. In fact, the Senate did just that on at least one
occasion. During the Rule XI committee deliberations in the
impeachment trial of Judge Harry Claiborne, Senator Orrin
Hatch argued that the committee should accept the Federal
Rules as binding. Then-Senator Albert Gore argued against
accepting the Federal Rules.
Is the Starr Report Admissible? Either or both parties may
seek to introduce the referral and supporting documentation
that independent counsel Kenneth Starr submitted to the House
Judiciary Committee. Much of this material would not be
admissible in a judicial proceeding. The referral itself is
not evidence, but a summation of evidence contained in the
attachments. The attachments include grand jury testimony
where witnesses were not subject to cross-examination and
other material could represent hearsay.
There is some precedent for admitting the record and
proceedings from a judicial proceeding as substantive
evidence in an impeachment trial. In the impeachment trial of
Judge Harry Claiborne, one of the House Managers, then-
Representative Michael DeWine, argued that the Rule XI
committee should accept the record of the criminal trial in
which Judge Claiborne was convicted of tax evasion charges.
Specifically, Manager DeWine argued that accepting the
evidence would establish an important precedent in favor of
economy and efficiency in impeachment proceedings. The
committee accepted DeWine's argument and received the trial
record as substantive evidence.
In Judge Claiborne's case, the committee agreed to receive
evidence that had been subject to cross-examination by Judge
Claiborne's attorneys. If the President's counsel objects to
the Senate receiving the Starr report and supporting
materials, he could distinguish the Claiborne precedent on
the ground that the President's lawyers had no opportunity to
cross examine grand jury witnesses.
Is Evidence of Prosecutorial Misconduct Admissible? The
President's counsel may seek to introduce evidence of
prosecutorial misconduct. The House Managers or Senators may
object on the grounds that such evidence is irrelevant.
Either the President committed high crimes or misdemeanors,
or he did not; evidence relating to what the independent
counsel may have done to investigate the President is beside
the point.
The President, however, would have a powerful contrary
argument, particularly if the Starr report and supporting
documents are admitted as substantive evidence. The report
itself represents the conclusions drawn by the independent
counsel. The supporting documents represent evidence and
testimony collected by the independent counsel without
opportunity for supplementation, challenge or cross-
examination by the President. Understanding the independent
counsel's bias or impartiality is crucial to assessing the
weight and credibility of this type of evidence. For example,
the independent counsel's office will have chosen to pursue
certain lines of questioning with witnesses before the grand
jury. If the independent counsel acted from bias, there is a
reasonable inference that the roads the prosecutor chose not
to follow would have revealed evidence favorable to the
President. If, on the other hand, the independent counsel is
impartial, one may reasonably infer that he sought to uncover
all relevant information whether favorable or unfavorable to
the President.
In addition, if officials in the Office of the Independent
Counsel threatened witnesses, that fact is relevant to
assessing the credibility of the testimony and evidence given
by those witnesses.
In one previous case, the Rule XI committee voted to allow
the defense to present evidence of prosecutorial misconduct,
although
[[Page S1489]]
it did not allow the defense to pursue elements of its theory
that were purely speculative and highly dubious.--
[Memorandum, 12/28/98]
Findings of Fact
Various proposals to have the Senate vote on ``findings of
fact'' prior to a final vote on the articles of impeachment
are circulating. The most onerous of these would ask the
Senate to ``find'' that the President had violated federal
laws against perjury and obstruction of justice.
Under one presumed scenario, the findings of fact would
pass, while the subsequent vote on the articles would fail.
Thus, while the President would remain in office, his legacy
would be besmirched by an impeachment trial's finding that he
was guilty of crimes.
There are several constitutional arguments against this
procedure, each based on the fact that it is either
equivalent to, or tantamount to, separating a vote on guilt
or innocence from a vote on removal.
Very early in the Senate's history, the Senate did in fact
separate these two votes, notably in the case of Judge John
Pickering. Pickering was charged with drunkenness, among
other things, but not with any crimes. The Senate voted
separately on whether he was guilty under the articles and
then on whether or not he should be removed from office.
(They voted to convict and to remove.)
This procedure might signal that the Senate believed that
in an impeachment trial a person could be found guilty by the
Senate of offenses that did not rise to the level of
``treason, bribery, or other high crimes and misdemeanors.''
Under that interpretation, the second vote would be necessary
to establish whether or not the offenses justified removal
from office.
However, this possible interpretation of the trial
procedure was repudiated in the 1936 impeachment trial of
Judge Halstead Ritter, when the chair ruled that removal
followed automatically from a finding of guilty, so that a
separate vote on removal was not in order. The ruling was
based on the text of Article II, Section 4, of the
Constitution which provides that ``The President [and other
civil officers] shall be removed from Office on Impeachment
for, and Conviction of, treason, bribery, or other high
Crimes and Misdemeanors.''
The dominant view of constitutional scholars is that the
chair's ruling in the Ritter case was correct. Notice that
there are two significant components of the Ritter
interpretation: (1) the president, vice president or other
civil officers can only be impeached for ``treason, bribery,
or other high crimes and misdemeanors,'' and (2) removal then
follows by operation of Constitutional law upon conviction.
Against this background, the proposed findings of fact
could produce substantial constitutional mischief. Suppose
they received a \2/3\'s vote. If the offenses outlined in the
findings of fact are high crimes and misdemeanors, the
President would have been removed from office by operation of
Constitutional law.
Suppose, further, that the Senate then took the final vote
on the articles and on that vote the yeas were less than \2/
3\'s. Looking strictly at this vote, the President has been
acquitted, and remains in office.
Who, then, is the President of the United States after
these two votes have been cast--Bill Clinton or Al Gore? In
other words, who decides whether the first vote convicted the
President of high crimes and misdemeanors?
Senators might well argue that the very fact that the
Senate took the second vote proves that the first vote was
not on offenses that justified removal. That would be an
ironic position for many Republican Senators to be in,
however, as many of them are on record defending the
proposition that perjury and obstruction of justice are
clearly impeachable offenses.
One argument against the proposed findings of fact, then,
is that it could create enormous uncertainty about who
occupies the office of President. The impact of that
uncertainty on foreign and domestic policy would potentially
be quite great, infecting every official action the President
might undertake. (Perhaps Bill Clinton and Al Gore could do
everything in tandem--co-sign all official documents, co-
attend all foreign negotiations, etc. --thereby eliminating
the legal ambiguities by creating a true co-presidency.)
The uncertainty would, in all likelihood, result in
litigation. Suit could be brought by someone adversely
affected by a law ``signed'' by Bill Clinton that would
otherwise have been pocket vetoed due to the adjournment of
Congress, claiming that the bill never became law. Or it
could be brought by someone seeking the benefits of a law
that Bill Clinton had ``vetoed,'' claiming that the veto had
no effect because Bill Clinton was not President.
Even if such litigation would eventually lead to a
resolution of the uncertainty, the country would suffer
during the interim.
There is a real possibility, however, that the Supreme
Court would find the question of what constitutes a ``high
crime and misdemeanor'' to be nonjusticiable. In United
States v. Nixon, the Court held that nearly all questions
regarding the Senate's power to try impeachments are
nonjusticiable, and it might well so find in this instance,
as well.
Even if the findings of fact did not garner \2/3\'s
support, a second argument against the findings of fact can
be based on the two-part Ritter interpretation of the
impeachment power (i.e., impeachment available only for high
crimes and misdemeanors; removal follows automatically from
conviction). The contemplated bifurcated vote provides a
mechanism for doing exactly what the Ritter interpretation
and the prevailing view among scholars say the constitution
does not permit: impeaching and convicting a person of lesser
offenses than high crimes and misdemeanors.
The consequences of sanctioning impeachment for ``low''
crimes and misdemeanors in this way are spelled out nicely in
a draft op-ed by Jed Rubenfeld. He argues that if the Senate
proceeds with the proposed findings of fact,
``[t]he Senate would then have taken another big step
toward transforming impeachment into a tool of partisan
politics.
``The Clinton Impeachment would then establish the
proposition that it is a legitimate senatorial function in an
impeachment proceeding to ``find'' that the President
committed crimes or serious misconduct (but not high crimes).
In that case, why shouldn't a majority of the House impeach
every President who has engaged in conduct worthy of censure?
It would no longer matter whether this conduct rose to the
level of high crimes and misdemeanors, for after all, one of
the Senate's legitimate and proper functions would be to find
that the President had committed ``low'' or ``medium'' crimes
or other serious misconduct not requiring removal from
office.
``If the Senate wants to censure the President, let it. But
impeachment is not about finding criminal guilt or innocence,
and it is not about censure. It is about removal from office.
The Senate must vote, up or down, on conviction and removal.
Anything less or in-between is more partisan mud.''
The idea that the House could routinely start up the Senate
impeachment trial apparatus on the basis of offenses
insufficient to constitute high crimes and misdemeanors
because the bifurcated vote procedure supplied the Senate
with a way to cope with such charges would probably have been
anathema to the Framers, who thought that impeachment ought
to be rarely used and reserved for the most serious breaches
of public trust.
Judge Bork agrees that the bifurcated approach poses
serious separation of powers problems. He wrote in the
February 1, edition of the Wall Street Journal:
``That course would also create an unconstitutional
political weapon in the permanent struggle between the
legislative and executive branches. Had the Isenbergh-Kmiec
proposition been accepted during Iran-Contra, is there any
doubt that the Democratic House and Senate would have
impeached Ronald Reagan and, unable to convict him by a two-
thirds vote, adopted findings of fact by a majority vote that
effectively condemned him as the perpetrator of high crimes
and misdemeanors? This is precisely what the separation of
powers does not allow and what anyone who thinks ahead should
disavow.''
(The Isenbergh-Kmiec proposition mentioned by Judge Bork
refers to a law review article by Professor Isenbergh of
Chicago Law School arguing that the Ritter interpretation is
wrong--that in fact people can be impeached under the
Constitution for offenses less than high crimes and
misdemeanors, in which case lesser sanctions than removal are
also available to the Senate.)
These are powerful arguments. There are responses to them,
however, which I believe make the ultimate judgment as to
whether or not the bifurcated procedure passes constitutional
muster open to reasonable disagreement.
As to the complaint that the procedure unconstitutionally
bifurcates a unitary vote, the complaint just misconceives
what the findings of fact motion is. It is not a vote on
guilt or innocence of impeachable offenses at all because it
doesn't by its terms convict the President of anything. It is
antecedent to any question of conviction for impeachable
offenses or of remedy. It leaves Senators free to vote any
way they wish on guilt or innocence and thus does not split
up the conviction/remedy questions. If necessary, this could
be made crystal clear through careful drafting, such as by
phrasing the motion as, ``Without prejudice to the final
question of guilt or innocence on any of the articles of
impeachment, the Senate finds . . .''
This interpretation also responds to the complaint urged by
Rubenfeld and echoed by Bork. Because the findings of fact
are toothless as regards guilt or innocence, passing such a
motion is not equivalent to convicting the President of low
crimes and misdemeanors. The Rubenfeld-Bork objection would
lie if and only if the Senate purported to convict the
President of such offenses, and then sought to avoid removing
him by rejecting the articles. But it is not doing that when
it makes findings of fact. Because such findings lack any
conceivable juridical effect, they are no more offensive to
the Constitution than a censure resolution.
One could even imagine a findings of fact motion serving a
purpose that would be beneficial to the impeachment process.
Findings of fact could help provide a clear historical record
as to what this United States Senate believed did not rise to
the level of impeachable offenses (or did rise to that level,
depending upon the outcome of the vote on conviction).
Historically, the Senate has left to each individual Senator
the responsibility to make an overall unitary determination
as to the facts that have been proven, the requisite burden
of proof as to those facts, and
[[Page S1490]]
the ultimate consequences that flow from those facts, taking
into account both the costs of retaining the civil officer in
office as well as the costs of removing him or her. It could
be argued that our constitutional practices would be just as
well served if the basis for the final judgment was expressed
in more discrete and articulated collective judgments, first
as to the facts proven, and then as to their consequences.
This last point runs counter to the Senate's current rules
and practices, of course. Rule XXIII of the rules of
impeachment provides that ``an article of impeachment shall
not be divisible for the purpose of voting thereon at any
time during the trial.'' This provision was adopted in 1986.
Some of its legislative history is pertinent:
``The portion of the amendment effectively enjoining the
division of an individual article into separate
specifications is proposed to permit the most judicious and
efficacious handling of the final question both as a general
matter and, in particular, with respect to the form of the
articles that proposed the impeachment of President Richard
Nixon. The latter did not follow the more familiar pattern of
embodying an impeachable offense in an individual article
but, in respect to the first and second of those articles,
set out broadly based charges alleging constitutional
improprieties followed by a recital of transactions
illustrative or supportive of such charges. The wording of
Articles I and II expressly provided that a conviction could
be had thereunder if supported by `one or more of the'
enumerated specifications. The general view of the Committee
at that time was expressed by Senators Byrd and Allen, both
of whom felt that division of the articles in question into
potentially 14 separately voted specifications might `be time
consuming and confusing, and a matter which could create
great chaos and division, bitterness, and ill will . . . .'
''
The rule and its history suggests that the Senate currently
operates under a norm of maximum individual Senatorial
autonomy in reaching an overall unitary judgment as to guilt
or innocence, without the interposition of potentially
divisive antecedent motions seeking to clarify exactly what
acts the Senate as a body has found the accused to have
committed.
It is possible to object to the proposed findings of fact
as being inconsistent with Rule XXIII. The rejoinder to that
objection, of course, is a version of what has already been
stated: the findings need not be construed as ``dividing''
any article of impeachment, but rather as a motion antecedent
to an eventual vote on the articles. Still, the findings do
seem inconsistent with the spirit of Rule XXIII and with its
evident intention to avoid divisive preliminary votes of this
kind.
Putting aside constitutional or rule-based objections to
the proposed findings of fact, Rubenfeld-Bork make a very
powerful practical argument that this bifurcation will have
pernicious consequences. We are currently living through
proof of how all-consuming an impeachment and trial of a
President can be. The country loses time and attention that
could be devoted to constructive matters of public interest,
trust in the ability of elected officials to work together by
placing the nation's business first is eroded, and the
Presidency is placed under a cloud of uncertainty during the
pendency of the proceedings. Lowering the impeachment bar
through the use of this bifurcated procedure would be unwise
and, as suggested earlier, would most likely be viewed with
alarm by the Framers who drafted the impeachment power into
the Constitution.
There is, finally, an argument that such findings would
amount to an unconstitutional Bill of Attainder. The risk
that such findings would be found to be an unconstitutional
``trial by legislature'' is enhanced (a) by the fact that
under some of the proposals, the finding would be that the
President had violated the law; (b) by the fact that the
findings would occur in the context of a Senate trial.
Such Senate action could well have an adverse effect on
President Clinton's bar membership. Bar rules disqualify
individuals who have been convicted of perjury or obstructed
justice. If those consequences followed from the Senate
action, they could be construed as punishment, thus bringing
the findings of fact within the constitutional prohibition on
bills of attainder.--[Memorandum, 2/2/99]
Impeachment Rules, Changes to
The existing Senate Rules establish the basic contours of
how an impeachment trial will proceed. Many questions remain
open, however--just as in civil cases, the federal rules of
civil procedure provide the basic contours, but the actual
route traveled by any trial depends upon the particular facts
and law of each case, the motions that parties choose to
bring, and, in general, the manner in which the parties
choose to litigate the matter.
This section highlights the major questions that deserve
examination before the trial begins. It also discusses the
available mechanisms for resolving outstanding procedural
issues.
Should any of the existing rules be modified? The existing
Rules were last amended in 1986. Should the Senate wish to
revise any of them, motions to do so would be in order on the
first day and would be fully debatable. Once actual the trial
begins motions are not debatable, and a motion to suspend,
modify, or amend the rules would require unanimous consent.
Before the trial begins (the period between the exhibition of
the articles of impeachment and the presentation of opening
statements by the parties), Senate precedent supports
allowing debate on preliminary motions that relate to how the
Senate will organize itself to conduct the trial. It appears
that such motions are subject to the Standing Rules of the
Senate, and not the limitations on debate contained in the
impeachment Rules. Thus, they could be filibustered during
the pre-trial stage. As a motion to suspend, modify, or amend
the rules, any such motion would be subject to a heightened
cloture requirement. Standing Rule XXII requires a two-thirds
vote to invoke cloture and end debate on a motion to suspend,
modify, or amend the rules.
The impeachment rules provide for the proceedings to be
``double-tracked'' (with legislative business conducted in
the morning session and the impeachment trial conducted in
the afternoon). Even after the trial has commenced, then, a
motion to suspend, modify, or amend could be made in a
morning legislative session, but would be subject to
filibuster with a two-thirds cloture requirement.--
[Memorandum, 12/28/98]
Obstruction of Justice
The House relies on two different federal obstruction of
justice statutes. The first, 18 U.S.C. Sec. 1503, is the
general obstruction of justice statute. The second, 18 U.S.C.
Sec. 1512(b), addresses witness tampering.
A. Elements of the General Obstruction of Justice Statute
To establish a violation of the general obstruction of
justice statute (Sec. 1503), the government must prove each
of the following:
(1) that there was a pending judicial proceeding;
(2) that the defendant knew this proceeding was pending;
and
(3) that the defendant corruptly influenced, obstructed, or
impeded the due administration of justice or endeavored to
corruptly influence, obstruct, or impede the due
administration of justice.
The first two elements are straightforward. The third
element is more complex. In general:
``Corruptly'' means to engage in an act voluntarily and
deliberately for the purpose of improperly influencing,
obstructing, or interfering with the administration of
justice.
``Endeavor'' means that the defendant also knowingly and
deliberately acted or made an effort which had a reasonable
tendency to bring about the desired result of interfering
with the administration of justice.
The defendant must engage in misconduct that has the
``natural and probable effect'' of interfering with the due
administration of justice. He need only ``endeavor'' to
obstruct justice; he need not succeed.
B. Elements of the Witness Tampering Statute
To establish a violation of the witness tampering statute
(Sec. 1512(b)), the government must establish that the
defendant:
(1) knowingly
(2) corruptly persuaded another person or attempted to do
so, or engaged in misleading conduct toward another person
(3) with the intent
to influence, delay, or prevent a witness's testimony from
being presented at official federal proceedings,
to cause or induce any person to withhold testimony or
physical evidence from an official federal proceeding; or
to prevent a witness from reporting evidence of a crime to
federal authorities.
Unlike the general obstruction of justice statute, the
witness tampering statute does not require that the
defendant's misconduct be committed during the pendency of
federal proceedings. Thus, the defendant need not be aware of
any pending or contemplated federal proceedings or
investigations at the time he engages in his obstructive
conduct. Nonetheless, it must be proved that the defendant
intended by his prohibited conduct to obstruct a federal
proceeding or the reporting of a federal crime.
There is no judicial consensus as to the meaning of
``corrupt persuasion,'' but several courts have defined the
term to mean that the defendant's attempts to persuade ``were
motivated by an improper purpose.''
The term ``misleading conduct'' is defined in 18 U.S.C.
Sec. 1515 to include (A) knowingly making a false statement;
(B) intentionally omitting information from a statement and
thereby causing a portion of such statement to be misleading,
or intentionally concealing a material fact, and thereby
creating a false impression by such statement; (C) with
intent to mislead, knowingly submitting or inviting reliance
on a writing or recording that is false, forged, altered, or
otherwise lacking in authenticity.
At least one court has held that a defendant violates the
witness tampering statute when he tells a potential witness a
false story as if the story were true, intending that the
witness believe the story and testify to it before the grand
jury.--[Memorandum, 1/15/99]
Perjury
Under federal law, a witness commits grand jury perjury if
shown, when under oath before a federal grand jury, to have
made a: knowingly false declaration that is of a material
matter that the grand jury has the power to investigate.
Proof only of an intent to mislead is not sufficient for a
perjury conviction.
``Knowingly false declarations'' can be proved by evidence
that the individual did not believe a declaration to be true
at the time it was made.
[[Page S1491]]
Only unambiguous questions can form the basis of perjury
convictions. If a question can reasonably be interpreted in
multiple ways, perjury can not be based only on the
questioner's intended meaning and there must be evidence of
what the person answering understood when responding.
Grand jury perjury can not be based on an answer that was
literally true even if misleading and nonresponsive to the
question asked. The burden is on the questioner to identify
evasive answers and press for clarity at the time rather than
let it pass and charge perjury later.
Grand jury perjury convictions can be based on the
testimony of a single uncorroborated witness. And, even if no
single statement can be shown to be knowingly false, perjury
can be shown if the individual knowingly made multiple
material declarations under oath that are ``inconsistent to
the degree that one of them is necessarily false.''
A ``material matter'' for perjury convictions under federal
law must have had some bearing on the substantive elements of
the issues that the grand jury was convened to investigate
and would have some bearing on influencing or impeding that
investigation, regardless of whether the statement actually
was misleading on a particular point.
The Minority Views in the House Report argue that because
the judge in the Jones sexual harassment case ruled in
January 1998 that evidence relating to Monica Lewinsky was
not ``essential to the core issues in that case,'' Jones'
lawyers could not have introduced evidence about her
relationship with the President in order to attack his
credibility in that suit, so that his statements on the
subject are not material under perjury law.--[Memorandum, 12/
30/98]
President, Indictment of
The New York Times recently reported that Ken Starr and his
staff have recently concluded that the Constitution does not
prohibit them from indicting and prosecuting President
Clinton while he is still in office. The independent counsel
has a legitimate reason for seeking an indictment before the
end of President Clinton's term. The grand jury that is
currently impaneled and that has heard all the evidence
will expire by August. If the Independent Counsel waits
until the President leaves office, he will have to impanel
a new grand jury and present evidence all over again.
This memorandum reviews the constitutional issues that
would be raised if a prosecutor were to attempt to indict and
prosecute a sitting President. It concludes that the
Constitution permits a prosecutor to indict a sitting
President, but does not allow the prosecutor to proceed to
prosecute the indictment until the President's term has
expired. Although the Constitution does not forbid indictment
of a sitting President, there are significant prudential
arguments counseling against such a move. Moreover, there may
be a statutory impediment to indicting the President.
I. Text
Until recently, numerous commentators interpreted the
Constitution's text to prohibit criminal prosecution of any
officer before the officer was impeached and removed. The
only provision on point states, ``Judgment in cases of
impeachment shall not extend further than to removal from
office and disqualification to hold and enjoy any office of
honor, trust, or profit under the United States; but the
party convicted shall nevertheless be liable and subject to
indictment, trial, judgment and punishment, according to
law.'' Article I, section 3. This interpretation reads the
phrase ``the party convicted shall nevertheless . . .'' to
mean that only parties who have been convicted are subject to
judicial process. In other words, impeachment and conviction
is a prerequisite to judicial process.
The better reading has always been that the Constitution's
text is ambiguous. It can just as easily be understood to
mean that impeachment and conviction, if that should occur
first, are not a bar to judicial process. This interpretation
has been vindicated by recent practice. The three judges
impeached and convicted in the late 1980s were all indicted
and prosecuted criminally first. In addition, Vice President
Spiro Agnew was indicted while in office, as was sitting Vice
President Aaron Burr in 1804. The provision cited does not
distinguish between the President and other officers subject
to impeachment. Thus, if the President is to be treated
differently than other impeachable officers, it must be on
some basis other than the Constitution's text.
II. Structure
Even the most originalist minded cosntitutional scholars do
not limit their arguments to those based on language alone.
They also argue based on the structure of the document taken
as a whole. Shifting the focus from text to structure, there
is strong reason to conclude that the Constitution does not
forbid indictment of a sitting President but that it does
prohibit taking the further step of prosecuting him
criminally.
The Constitution structures the federal government by
dividing it into three branches. In order to safeguard
liberty, each of these branches must be fully functioning at
all times. Anything that significantly impairs the
President's ability to act as a check on the other branches
may violate the Constitution's structural safeguards. By
contrast, there are hundreds of district court judges. A
criminal proceeding against one of them has only remote
ramifications for the constitutional role of the judiciary as
an collective institution.
The constitutional status of the President is unique, and
materially distinguishable from that of other impeachable
officers, such as district court judges or even the Vice
President. First, the President, of course, is the head of
one of the three constitutional branches of government. The
other branches have collective heads. The legislative branch
is headed by the entire Congress, while the judiciary is
headed by the Supreme Court. To indict and prosecute the
President is in this sense the constitutional equivalent of
indicting and prosecuting the entire Congress or the entire
Supreme Court.
Second, the presidency is a uniquely consuming office. Its
occupant is perpetually on duty. Nearly every President from
George Washington through George Bush has expressed just how
consuming the office is. For example, Lyndon Johnson related
that ``Of the 1,885 nights I was President there were not
many when I got to sleep before 1 or 2 a.m. and there were
few mornings when I didn't wake up by 6 or 6:30.'' The
Twenty-Fifth Amendment to the Constitution, which provides
for presidential succession in the case of disability,
recognizes not only how consuming the office is, but how
critical it is that the office be filled at all times.
Third, the President acts as the embodiment of the nation
on the international stage and even in domestic matters. As
Justice Robert Jackson reminded us, the presidential office
locates the executive power ``in a single head in whose
choice the whole nation has a part, making him the focus of
public hopes and expectations. In drama, magnitude and
finality his decisions so far overshadow any others that
almost alone he fills the public eye and ear.''
Against this structural argument stand rule of law
considerations. The continuing vitality of the rule of law as
a fundamental principle requires that the President be
subject to law as are all citizens. This commitment is voiced
in the President's constitutional duty to ``take care that
the laws be faithfully executed.'' The primary purpose of
this provision is to make it clear that the President, unlike
the King of England, has no ``dispensing power,'' that is, no
power to declare a law inapplicable to himself or anyone
else. Similarly, the courts have placed great weight on the
integrity of the criminal justice system. In a variety of
executive privilege cases, the courts have placed a great
premium on according prosecutors access to evidence and on
preserving evidence.
Determining whether the Constitution permits either
indictment or prosecution of a sitting President requires
balancing these considerations.
Punishments upon Conviction of High Crimes and Misdemeanors
If the Senate convicts the President of high crimes and
misdemeanors, the Constitution requires that he be removed
from office. ``The President--shall be removed from office
upon impeachment for and conviction of--high crimes and
misdemeanors.'' The Constitution allows the Senate to impose
an additional punishment upon convicting the President; it
may disqualify the President from holding any office of
honor, trust or profit. Odd as it sounds, this
disqualification probably does not apply to membership in the
House of Representatives of the Senate. This is because the
text of the Constitution, in several clauses, makes it clear
that members of Congress are not ``officers.'' The very first
impeachment trial proceeded against Senator Blount. Senator
Blount was acquitted and many Senators refused to convict on
the basis of their constitutional interpretation that a
senator is not an officer and so is not subject to
impeachment.--[Memorandum, 12/28/98]
* * * * *
Very early in the Senate's history, the Senate did in fact
separate these two votes, notably in the case of Judge John
Pickering. Pickering was charged with drunkenness, among
other things, but not with any crimes. The Senate voted
separately on whether he was guilty under the articles and
then on whether or not he should be removed from office.
(They voted to convict and to remove.)
This procedure might signal that the Senate believed that
in an impeachment trial a person could be found guilty by the
Senate of offenses that did not rise to the level of
``treason, bribery, or other high crimes and misdemeanors.''
Under that interpretation, the second vote would be necessary
to establish whether or not the offenses justified removal
from office. However, this possible interpretation of the
trial procedure was repudiated in the 1936 impeachment trial
of Judge Halstead Ritter, when the chair ruled that removal
followed automatically from a finding of guilty, so that a
separate vote on removal was not in order. The ruling was
based on the text of Article II, Section 4, of the
Constitution which provides that ``The President [and other
civil officers] shall be removed from Office on Impeachment
for, and Conviction of, treason, bribery, or other high
Crimes and Misdemeanors.''
The dominant view of constitutional scholars is that the
chair's ruling in the Ritter case was correct. Notice that
there are two significant components of the Ritter
interpretation: (1) the president, vice president or other
civil officers can only be impeached for ``treason, bribery,
or other high crimes and misdemeanors,'' and (2) removal then
follows by operation of Constitutional law upon conviction.--
[Memorandum, 2/2/99]
[[Page S1492]]
Role of Chief Justice
The Chief Justice of the United States is the Presiding
Officer over the Senate's deliberations when the President
has been impeached. His role is loosely analogous to that of
a trial judge, but with less ultimate authority. He directs
preparations for the trial, as well as the trial proceedings
themselves. Under the precedent of the Johnson trial, the
Chief Justice can make rulings on all evidentiary and
procedural motions and objections, although he can also refer
them directly to the Senate for its determination (this was
in fact Chief Justice Chase's practice on evidentiary motions
made during the Johnson trial). His rulings can be overruled
by majority vote of the Senators present and voting.
The Constitution dictates that the Chief Justice acts as
the presiding officer during an impeachment trial of the
President. The extent and content of his role is subject to
determination by the Senate. There could be sentiment to
expand his powers, such as by making him the chair of a Rule
XI committee, on the theory that the Chief Justice will be
non-partisan and impartial. Other powers that might be
granted to the Chief could include authority to conduct pre-
trial proceedings or to oversee settlement negotiations. If
the Chief Justice is perceived as impartial, his rulings on
evidence and other motions will carry great weight and place
a heavy burden on anyone seeking to overrule them. On the
other hand, a determined majority can substantially minimize
the effect of the Chief Justice on the proceedings by
reversing his rulings and refusing to grant him powers beyond
the inherent powers of the presiding officer.--[Memorandum,
12/28/98]
Role of House Managers
The House of Representatives appoints a delegation of its
own members to serve as prosecutors of the impeachment. These
managers exhibit the articles of impeachment and perform all
functions normally performed by a prosecutor. They make an
opening and closing statement on the case, decide what
evidence to present and what witnesses to call, subject to
the Senate's decision to issue a subpoena to compel
attendance of involuntary witnesses. The managers lead
examination of witnesses they offer and cross-examine
witnesses called by the President's counsel. They may also
make procedural, evidentiary, and other motions.--
[Memorandum, 12/28/98]
Role of President's Counsel
The President may choose an attorney or agent to present
his defense. These attorneys perform the same functions in
defense of the President as the house Managers perform in
behalf of the impeachment. Neither the President's Counsel
nor the House Managers may appeal a ruling of the Chief
Justice. Only a member of the Senate may do that.--
[Memorandum, 12/28/98]
Role of the Senate
[The constitutional text, the Framer's understanding, and
our constitutional practices] Provide important anchors for
any impeachment inquiry, but they do not resolve all
questions of scope that may arise. Much remains to be worked
out--and only to be worked out--in the context of particular
circumstances and allegations.
As Hamilton explained in the Federalist No.65, impeachment
``can never be tied down by . . . strict rules, either in the
delineation of the offence by the prosecutors, or in the
construction of it by the judges. . .''
After all of the legal research, we are still left with the
realization that the power to convict for impeachment
constitutes an ``awful discretion.''
This brings us directly to the Senate's role. To state it
bluntly: I believe the role of the Senate is to resolve all
the remaining questions. Let me elaborate.
The Senate's role as final interpreter of impeachments was
recognized from the beginning of the republic. For example,
to refer again to Joseph Story, after he devoted almost fifty
sections of his commentaries to various disputed questions
about the impeachment power, he concluded that the final
decision on the unresolved issues ``may be reasonably left to
the high tribunal, constituting the court of impeachment.''
The court of impeachment he refers to is the United States
Senate. Similarly, the Federalist papers refer to Senators as
the judges of impeachment.
Speaking of the Senate as the jury in impeachment trials is
perhaps a more common analogy these days, but the judge
analogy is more accurate.
In impeachment trials, the Senate certainly does sit as a
finder of fact, as would a jury. But it also sits as a
definer of the applicable standards, as would a judge.
The Senate, in other words, determines not only whether the
accused has performed the acts that form the basis for the
House's Articles of Impeachment, but also whether those
actions justify removal from office.
Once again we find support for this view from the country's
history. In 2 of the first 3 impeachments brought forward
from the House to the Senate, the Senate acquitted the
accused.
In each of the two acquittals, however, the Senate did not
disagree with the House on the facts. One case involved a
senator, William Blount, the other an Associate Justice of
the Supreme Court, Samuel Chase. In neither one was there any
question that the individuals had done the deeds that formed
the basis of the House's Articles of Impeachment.
In each case, however, the Senate concluded that the deeds
were not sufficient to constitute valid grounds for
impeachment and so they acquitted.
Eventually, then, if the current impeachment proceeds, it
will fall to the Senate to decide not only the facts, but the
law, and to evaluate whether or not the specific actions of
the president are sufficiently serious to warrant
impeachment.
The framers intended that the senate have as its objective
doing that what was best for the country, taking context and
circumstance fully into account.
I should try to be as clear as I can be about this point,
because the media discussion has come close to missing it. It
seems to be widely assumed that if the President committed
perjury, then he must be impeached and convicted.
Conversely, you may think that unless it can be proven that
the President committed perjury or violated other laws,
impeachment cannot occur.
Both statements are wrong. Not all crimes are impeachable,
and not every impeachable offense is a crime.
The Senate could decline to convict even if the President
has committed perjury, if it concluded that under the
circumstances, this perjury did not constitute a sufficiently
serious breach of duty to warrant removal of this President.
On the other hand, the Senate could convict the President of
an impeachable offense even if it were not a violation of the
criminal law. For instance, if the Senate concluded that the
President had committed abuses of power sufficiently grave,
it need not find any action to amount to a violation of some
criminal statute.--[Speech, 10/2/98]
* * * * *
The Senators have a multifaceted role that defies a simple
label. They act in part as a jury, which considers evidence
and makes the ultimate determination of whether to convict or
acquit the President. This role explains the limitations that
the rules impose on the ability of Senators to debate or
discuss motions and evidence in open session.
Senators also act as judges, with authority to decide
whether a ruling by the Chief Justice should stand. This law
interpreting role is also a component of the ultimate
decision on conviction or acquittal. Senators must determine
not only whether the factual allegations against the
President are true, they must also determine whether the
facts alleged, if true, represent a high crime and
misdemeanor.
Senators may also take actions that resemble those
typically undertaken by counsel for the parties. They may
propound questions (though only in writing) of witnesses or
of counsel; they may make objections to questions by counsel
or to evidence sought to be introduced; and they make any
motion that a party may make.
The Senate has the power to compel the attendance of
witnesses by instructing the Chief Justice to issue subpoenas
and to enforce obedience to its orders. The Senate also has
authority to punish summarily contempts of and disobedience
to its orders, although the rules of impeachment do not
specify the penalties it may impose. Under the Standing Rules
of the Senate, the Senate can also refer a contempt citation
to the United States Attorney for the District of Columbia
for prosecution pursuant to 2 U.S.C. Sec. Sec. 191-194 for
criminal prosecution.--[Memorandum, 12/28/98]
Trial, Nature of
The Constitution assigns the Senate the sole power to try
all impeachments. This power imposes upon the Senate a duty
to adjudicate every case in which the House of
Representatives impeaches a civil officer of the United
States. The framers were deeply concerned that impeachment
could become a partisan tool used to gain control and
influence over civil officers, and the President in
particular. They entrusted to the Senate the role of
adjudicating impeachments because the Senate's structurally
conferred capacity for deliberation, independence, and
impartiality would allow it to act as a check against
partisanship. The Constitution fortifies the Senate in this
role by providing that conviction requires a vote of two-
thirds of the members present.
The Constitution, however, does not define the Senate's
power to ``try'' impeachments and appears to leave broad
discretion for the Senate to interpret it as allowing
whatever method of inquiry and examination is best suited to
a given case. Justice White declared emphatically that ``the
Senate has very wide discretion in specifying impeachment
trial procedures . . . .'' The constitutional power, and
corresponding duty, to try impeachments does not absolutely
require the full Senate or a committee to take live witness
testimony subject to cross examination. The Senate has
routinely entertained and voted on motions for summary
adjudication. Indeed, it is difficult to imagine that the
Senate would be constitutionally required to hold live
evidentiary proceedings in every conceivable impeachment
case. If, for example, the House were to impeach an official
who is not a civil officer, it would be absurd to construe
the Constitution to require the Senate to go forward with an
evidentiary proceeding. Similarly, if the House were to
impeach a civil officer on the grounds of misconduct that is
not properly considered a high crime or misdemeanor, no
constitutional purpose is served by an evidentiary hearing.
Even if an impeachment meets all of the constitutional
criteria to invoke a Senate
[[Page S1493]]
trial, evidentiary proceedings may be unnecessary. It is
well-established that the House managers charged with
prosecuting the impeachment may introduce the record of other
proceedings as substantive evidence in the Senate trial. The
House managers have independent discretion over their
prosecution of the case, and may decide to rest their case on
the documentary record. In addition, the impeached defendant
may choose to present no affirmative evidence in his defense.
Where the parties have decided that the documentary record is
sufficiently encompassing to allow adjudication, the
Constitution does not require the Senate to ferret out
additional evidence.
Strong support for summary adjudication as a faithful
discharge of the Senate's constitutional duty to try
impeachments can also be found in the operation of the
federal judiciary. The constitution guarantees ``the right of
trial by jury'' in ``suits at common law.'' There is a
tension between the right to trial by jury and summary
adjudication by the court. Where a federal court grants
summary judgment or dismisses a lawsuit, for example because
it fails to state a claim, there is no trial at all, let
alone a trial by jury. Nevertheless, the Supreme Court has
upheld the authority of the federal courts to grant motions
to dismiss and motions for summary judgment. There would seem
to be even less concern regarding summary adjudication in the
context of a Senate impeachment trial. This is because the
Senate acts as both judge (finder of law) and juror (finder
of fact) so there is no concern about the proper allocation
of the adjudicative function between judge and jury.
The Constitution imposes upon the Senate a duty to try
impeachments so that the Senate can act as a check against
partisan abuse of the impeachment process. Fidelity to the
Constitution requires the Senate carefully to interpret the
law of impeachment as set forth in the Constitution and to
apply that law to the facts and circumstances of every
impeachment approved by the House of Representatives. As with
the federal judiciary, this adjudicative duty, however, does
not require the Senate to discover new evidence or to hold
evidentiary proceedings where the record does not warrant.--
[Memorandum, 12/22/98]
* * * * *
I. The History of Presidential Impeachment Trials
We have had exactly one impeachment trial of a President,
Andrew Johnson, in 1868. This resulted in his acquittal by a
single vote. In 1974, the House Judiciary Committee voted to
send articles of impeachment with respect to President
Richard Nixon to the House floor, but President Nixon
resigned shortly thereafter, and the articles were never
voted on by the full House.
However, fourteen other impeachment trials have been held
in the Senate over the country's history. In preparation for
these trials, almost all of which involved federal judges,
the Senate has developed a set of standing Rules of Procedure
and Practice for such trials, as well as a body of precedent
concerning questions of procedure that have arisen and been
answered in previous trials. These rules and precedent
provide a good basic outline to how the trial of President
Clinton will proceed in the Senate, unless they are altered
or amended prior to the beginning of President Clinton's
trial.
II. Current Senate Rules of Procedure and Practice
Senate procedures while hearing an impeachment are
strikingly different from those that operate during normal
legislative and executive business. Senators are combinations
of judges and jurors. Senators take an oath to do ``impartial
justice.'' They cannot debate or discuss matters in open
session. They are expected to commit questions to writing and
send them to the Presiding Officer. The Senate when sitting
to consider impeachment is a very different body than the
Senate we are used to seeing on C-SPAN.
Major points to bear in mind:
The trial and its rules take precedence over normal
business. Once the trial begins, the rules set forth a
schedule for continuing the trial until conclusion. The
fundamental provisions are Rule III, stating that the Senate
shall continue in session from day to day (Sundays excepted)
until the trial is concluded, and Rule XIII, stating that the
trial proceedings shall begin at 12 noon each day, unless
otherwise provided by the Senate.
Majority rules. Motions and objections during the
proceedings are governed by majority vote.
There are few opportunities to filibuster. Unlike the
normal Senate, almost all trial motions, decisions, and
orders are resolved under strict time limits--although these
time limits would not prevent a determined effort to prolong
the trial through repeated motions, whether by counsel or by
a group of Senators. In fact, during the trial itself,
motions, objections or challenges to rulings by the chair
raised by Senators (which must be submitted in writing to the
Presiding Officer) are voted on without debate at all, unless
the Senate elects to go into closed session. In that case,
each Senator is entitled to speak once for no more than 10
minutes.
Where the impeachment Rules are silent, the Standing Rules
of the Senate apply. Precedents extending back at least to
the Johnson impeachment support this.
iii. how might the matter be resolved without a formal trial?
A. The Senate's duty to try the impeachment. The
Constitution provides that ``the Senate shall have sole power
to try all impeachments.'' Some consider this provision to
impose a duty upon the Senate to try or adjudicate all
impeachments. Even if the Constitution imposes such a duty,
the Senate has not understood this duty to adjudicate as
necessarily requiring a formal trial. There is precedent for
the Senate considering dispositive motions that would allow
the Senate to render a judgment without holding a trial. (In
the impeachment proceedings against Judges Ritter, Claiborne,
and Nixon, the Senate entertained motions to strike articles
of impeachment or to summarily adjudicate the matter.)
Although such a motion is not specifically discussed in the
impeachment rules, the Senate has not viewed dispositive
motions as seeking to suspend, modify, or amend the rules. As
a result, dispositive motions are ordinary trial motions
subject to the limits on debate set forth in the impeachment
rules and governed by simple majority vote.
An additional method available to resolve the matter is
adjournment sine die. In the case of Andrew Johnson, the
Senate voted on three articles of impeachment, acquitting on
each. Rather than vote on the remaining eight articles, the
Senate simply adjourned the impeachment proceedings sine die.
The impeachment rules allow for a vote to adjourn sine die.
Adjournment sine die does not specifically pass judgment on
the articles of impeachment and so may not be satisfactory to
those who consider the Senate duty-bound to try the
impeachment.
B. Different motions to adjudicate the matter without an
evidentiary trial. Several different motions would seem
possible, some drawing on analogies to judicial proceedings.
1. A motion to dismiss would assert that the articles of
impeachment fail as a matter of law to state actions upon
which a conviction may constitutionally be based. Such an
assertion could be based upon the claim that the articles do
not state ``high crimes and misdemeanors.'' Because the
articles accuse President Clinton of committing perjury
before a grand jury and of obstructing justice (among other
things), a ``motion to dismiss'' would assert that such
actions can never support conviction for high crimes or
misdemeanors. Additionally, a ``motion to dismiss'' could be
a vehicle for the President to raise the contention that the
articles of impeachment lapsed when the 105th Congress
adjourned sine die.
While there are no Senate rules governing the timing of
motions, analogy to the Federal Rules of Civil Procedure
would require a motion to dismiss to be made before the
President submits his answer to the summons, or along with
his answer to the summons.
2. In contrast to the motion to dismiss, a motion for
summary judgment asserts (1) that the parties agree on all
material facts and (2) that those facts compel judgment for
the moving party. A party submitting a motion for summary
judgment is agreeing to have the dispute finally adjudicated
on the basis of the facts asserted in his moving papers. The
opposing party has the option of filing a cross motion for
summary judgment or of objecting that the parties are not in
agreement as to all material facts and that a trial is
required on the disputed facts. If the opposing party chooses
the first course of action (and this could be done by prior
agreement between the parties), then the Senate could enter
judgment in the case without holding any evidentiary trial.
On a motion for summary judgment, the Senate by majority
vote could issue a judgment for the President if it concluded
that the undisputed facts fail to establish the existence of
a high crime or misdemeanor warranting the President's
removal from office. Because this motion rests on a view of
the undisputed facts in the specific case, granting the
President's motion for summary judgment would mean only that
the specific perjury and obstructions charged in these
articles of impeachment do not warrant conviction and removal
from office (or that the facts failed to establish that these
offenses had actually been committed). It would not imply
that perjury or obstruction of justice could never serve as
grounds adequate to impeach, convict, and remove a President
from office.
3. The trial might also be ended by a motion for a directed
verdict. Such a motion in civil litigation is brought after
the plaintiff has concluded his case, and before the
defendant mounts a defense. The motion asserts that the
plaintiff's evidence is insufficient to sustain the claim,
and that no reasonable fact finder would disagree. Were the
House Managers to decide to submit the impeachment to the
Senate based solely on evidence already gathered by Starr,
the President could bring a ``motion for a directed verdict''
prior to an evidentiary trial involving any live witness
testimony.
4. Finally, the Senate's own precedents supply the
possibility of a fourth option, a motion for summary
disposition. Such a motion might be entertained as an
alternative to any of the motions just discussed, in order to
avoid contending with the technicalities of such motions.
In the impeachment trial of Judge Harry Claiborne, for
example, the House Managers introduced a motion for summary
disposition. Both sides argued this motion without invoking
the federal rules of civil procedure or judicial opinions
relating to summary dispositions. The parties disputed only
whether
[[Page S1494]]
the facts warranted further evidentiary proceedings in the
Senate or if the matter could be decided solely on the basis
of Judge Claiborne's conviction for tax evasion. The Senate
considered the motion without reference to judicial
standards.
This approach is consistent with the Senate's position that
it is not bound by the federal rules of civil procedure.
Removing the motion from the technical categories and
requirements under those rules allows each Senator the
discretion to consider whether additional evidentiary
proceedings, including live testimony, will serve the public
interest.
C. Should the Senate appoint a committee? If the matter is
not resolved on a summary basis, Rule XI provides that the
Senate can appoint a committee to ``receive evidence and take
testimony'' rather than having the Senate as a whole do so.
This procedure has been employed in the case of trials of
federal judges, and has been sustained by the Supreme Court.
Such a committee would not and could not decide the case, but
it could assemble the evidence submitted, prepare a
transcript of all testimony and submit it to the Senate. The
committee meetings could be televised so that noncommittee
Senators would be able to watch them as they occurred, and
videotapes could also be prepared for subsequent review. A
number of the early proponents of what is now Senate Rule XI
option are on record stating their view that such a committee
should not be used for a presidential trial.
Composition of a Rule XI committee would be very important.
Traditionally, these committees have been composed of twelve
members, six from each party with the committee chair chosen
from the committee members in the majority party. The Chair
exercises the same role within the committee that the Chief
Justice fulfills in the full Senate. This is significant
because the decisions of the chair may be reversed only by a
majority vote. If the votes in committee are on straight
party lines, the ruling of the chair will be upheld in every
instance. A complicating factor in a presidential impeachment
is the requirement that the Chief Justice preside. This may
require that the Chief Justice serve as the chair of a rule
XI committee if one is appointed. In this event, the rulings
of the Chief Justice would be upheld on any party-line
vote.--[Memorandum, 12/28/98]
* * * * *
House Managers have asserted repeatedly that live witness
testimony will resolve discrepancies between the testimony of
witnesses, and therefore they ought to be called. There are
several points to be made against this point of view.
Demeanor evidence is notoriously unreliable. Recall, for
example, Alger Hiss/Whittaker Chambers. Some people were
convinced by one side, some people by the other.
Demeanor evidence is not necessarily dispositive, in any
event. Both witnesses can come across as reliable, honest and
trustworthy. Witnesses often give credible performances while
dissembling.
The House Managers are poorly situated to claim the
necessity of hearing from live witnesses in order to resolve
credibility issues. The House Judiciary Committee heard from
no live witnesses, except Ken Starr, and yet the managers
have had no difficulty in deciding all credibility disputes
against the President or anyone giving testimony favorable to
his story.
Any gains from live witnesses need to be assessed against
the costs. The costs will come when the Senate chamber
descends into the facts of the case with the specificity that
will come from live testimony.
For example, one prominent disagreement that the House
Managers have cited is that between President Clinton and Ms.
Lewinsky regarding whether the President ever touched Ms.
Lewinsky's breasts or genitalia. If both witnesses are called
and reiterate their prior testimony, the Senate will
certainly get the opportunity to observe their demeanor. This
might shed some additional light on the question, but it
probably won't. The possibility of securing the additional
credibility data must be weighed against the serious negative
ramifications such proceedings would likely have.
a. indictment
The Supreme Court engaged in a similar balancing exercise
in deciding Clinton v. Jones. In that case, the court held
that requiring the President to submit to judicial process in
a civil case and go through an entire civil trial would not
so damage the presidency as to justify interfering with the
ordinary judicial process that vindicates the rule of law.
Considering only indictment, as distinct from prosecution of
a criminal trial, seems to impose less of a burden on the
President. Indictment alone imposes no demands on the
President's time.
An attempt to distinguish indictment could proceed on two
bases. First, the President is apt to be more concerned about
being criminally convicted than found civilly liable. Thus,
an indictment could be a greater distraction from the
President's duties than is a civil suit. Second, criminal
indictment, unlike filing a civil complaint, stigmatizes the
President.
Each of these distinctions is subject to dispute. As the
Paula Jones suit itself demonstrates, a civil case can be ex
tremely distracting. If a criminal indictment is more
distract ing, it seems doubtful that it is so much more
distracting as to be constitutionally significant. A
distinction based on stigma seems particularly weak in this
case.
President Clinton has been impeached. Correctly or not, the
House of Representatives has construed this impeachment as
analogous to a grand jury indictment. It is thus not obvious
that an actual criminal indictment would add materially to
the stigma the President has already suffered.
Even accepting these grounds of distinction, the
independent counsel may seek a sealed indictment. A sealed
indictment would not be made known either publically or to
the President. If an indictment remains sealed until the
President leaves office, it is difficult to see how it could
either distract the President or stigmatize him.
b. prosecution
Prosecution presents a different matter. Unlike an
indictment with nothing more, proceeding to an actual
prosecution would place significant physical and temporal
burdens on the President. Preparing for trial and then
actually presenting a defense would consume the President's
time and attention over a lengthy period. During the pendency
of criminal proceedings, the President would repeatedly face
a choice between spending the time necessary to mount a
meaningful defense and devoting time to fulfilling his
constitutional and statutory duties. Even if the President
were to choose to spend no time on his defense, it is
difficult to imagine that his mind could be fully focused on
his official duties.
To so stigmatize and distract the President would seriously
undermine his ability to act as a check on the legislative
branch. It would also impose significant costs in terms of
the nation's standing internationally.
The Supreme Court's decision in Clinton v. Jones could be
taken to support subjecting the President to criminal
prosecution while in office. In that case, the President had
argued that the civil lawsuit should be stayed until the
President's term in office expired. He based this position on
concerns that the demands of defending a civil lawsuit would
impermissibly inter fere with his ability to discharge his
official duties. Admittedly, it is unlikely that defending
against a criminal prosecution is any more time consuming
than defending a civil lawsuit.
There are, however, several crucial distinctions between a
civil and a criminal lawsuit. In the Jones case, the Supreme
Court emphasized that the burden imposed on the President
could be minimized through proper case management by the
trial judge. A court does not have the same broad array of
options available in a criminal proceedings. Perhaps most
significantly, the options for settling the suit without a
trial are quite different. President Clinton settled the
Paula Jones case by making a cash payment with no admission
of wrongdoing. The rough equivalent of settlement in a
criminal proceeding is a plea bargain. Such a ``settlement,''
however, requires the defendant to admit to some criminality.
As such, there is far greater pressure on the president to
proceed to trial in a criminal prosecution as opposed to a
civil prosecution. Moreover, the President's attendance at
a civil trial is not nearly so crucial as is his
attendance at a criminal prosecution. The Sixth Amendment
expresses the constitutional commitment to allowing a
criminal defendant's presence at trial. Finally, consider
what follows a judgment in a criminal trial as opposed to
a civil trial.
The Paula Jones suit threatened the President with nothing
more than an assessment of monetary compensation. An adverse
verdict at a criminal trial threatens imprisonment. It is
clear that the Constitution does not allow the judiciary to
order the imprisonment of the President. Thus, at the very
least, sentencing would have to be stayed until the President
leaves office.
Extending the holding in Clinton v. Jones to cover criminal
prosecutions is subject to an additional objection. The
course of events since the Court rendered that decision casts
significant doubt upon the conclusions the Court drew in that
case. In Clinton v. Jones, the Supreme Court doubted that the
civil lawsuit would consume much time or attention of the
President. It could not be plainer that this prediction was
wrong. While there is no reason to believe that the Court is
considering overruling Clinton v. Jones, there is very
powerful reason to apply the practical lessons we have
learned since that decision to any claim for extending the
Clinton v. Jones holding to criminal prosecutions. In light
of all that has occurred since that ruling, it is wildly
implausible to contend that a criminal proceeding against the
President would not significantly disrupt his ability to
fulfill his constitutional and statutory duties.
Against this significant disruption is concern for the rule
of law. As a practical matter, it is critical to recall that
sentencing would be stayed until the President leaves office.
Given this, it is doubtful that staying the trial as well
would add significant concern from the standpoint of the rule
of law. It is important to bear in mind what the rule of law
requires. It demands that similarly situated citizens be
treated similarly. In light of the President's unique
constitutional role, it is error to contend that the
President must be treated identically to a private citizen.
The rule of law must encompass the fundamental law of the
Constitution, and account for the peculiar role of the
President within the constitutional structure. Accommodating
that role by staying criminal proceedings until the President
is out of office respects the rule of law as long
[[Page S1495]]
as the President is subject to criminal prosecution once out
of office. Under these circumstances, the President is
subject liability in the same way as any citizen.
The New York Times reports that these conclusions accord
with the view of most scholars. According to the Times, most
scholars accept that the President may be indicted while in
office, but that he may not be prosecuted. This assessment of
the state of scholarship is probably accurate, but there is
significant dissent as to each conclusion. In other words,
the scholarship does not betray a consensus.
III. Practice
There is very little practical experience dealing with the
question of indicting or prosecuting a sitting President. The
only precedent is the investigation of President Richard
Nixon. The biographer to special counsel Archibald Cox
reports that Cox had concluded that the separation of powers
forbids indicting a sitting President. Cox's successor, Leon
Jaworski, decided against seeking to indict President Nixon,
although his decision was based on prudential considerations
and he did not reach a certain constitutional interpretation.
In 1972, Vice President Spiro Agnew argued to the Supreme
Court that a sitting Vice President could not be indicted.
Then-Solicitor General Robert Bork submitted an amicus brief
on behalf of the United States in which he argued that a
sitting Vice President could be impeached, but a sitting
President could not be. Judge Bork repeated this position
yesterday in an op-ed published in the New York Times.
IV. History
A number of framers made statements that appear to assume
that the President may not be indicted while in office. In
The Federalist Alexander Hamilton claimed that the President
would be ``liable to be impeached, tried, and removed from
office; and would afterwards be liable to prosecution and
punishment in the ordinary course of law.'' In two other
numbers of The Federalist Hamilton repeated this sequence and
that criminal process comes ``after'' impeachment and
conviction. In none of these passages, however, is Hamilton
addressing the specific question of whether the President
could be subject to criminal process while in office. It may
represent no more than Hamilton's assumption as to what the
ordinary sequence would in fact be.
Another framer, Gouverneur Morris, explained that the
Constitution vests the power to try impeachments in the
Senate rather than the judiciary because the judiciary would
``try the President after the trial of impeachment.'' In the
First Congress, Vice President John Adams and Senator (later
Justice) Oliver Ellsworth expressed the view that ``the
President personally is not . . . subject to any [judicial]
process whatever.'' But their view was disputed, for example
by Senator William Maclay.
The Supreme Court reviewed this historical record in
Clinton v. Jones. They concluded that history provides no
answer to this question. These comments reflect the view of
only a few, albeit influential, individuals and either were
not made in the context of whether a sitting President could
be indicted or were disputed.
V. Prudential Considerations
Even if the Constitution does not prohibit indictment, that
does not mean there are not powerful prudential arguments
against indictment. Brett Kavanaugh, who was Associate
Independent Counsel in Ken Starr's office for three years,
put this argument most succinctly in a recent article he
published in the Georgetown Law Journal:
The President is not simply another individual. He is
unique. He is the embodiment of the federal government and
the head of a political party. If he is to be removed, the
entire government likely would suffer, [and] the military or
economic consequences to the nation could be severe. . . .
Those repercussions, if they are to occur, should not result
from the judgment of a single prosecutor--whether it be the
Attorney General or special counsel--and a single jury.
Prosecution or nonprosecution of a President is, in short,
inevitably and unavoidably a political act.
Thus, as the Constitution suggests, the decision about the
President while he is in office should be made where all
great national political judgments in our country should be
made--in the Congress of the United States.
There is an additional, closely related, consideration--
protecting Congress's constitutional impeachment power. If an
independent counsel can indict a sitting President, this act
alone tends to force Congress's hand with respect to
impeachment. The mere fact of an indictment is an additional
factor that generates some pressure to impeach and convict a
sitting President. That pressure is even more coercive in the
context of a prosecution and verdict than of indictment
alone.
VI. Department of Justice Policy
Professor David Strauss recently argued that there is no
need to address the constitutional issues because the
independent counsel is statutorily barred from indicting a
sitting President. The United States Code instructs that the
independent counsel ``shall except where not possible comply
with the written or other established policies of the
Department of Justice respecting enforcement of the criminal
laws.'' 28 U.S.C. 594(f). Professor Strauss argues Judge
Bork's Supreme Court brief in the Spiro Agnew case
established the Department's policy on indicting a sitting
President and that this policy is confirmed in the practice
of special counsels Cox and Jaworski.
This is a strong argument, but there is a response: the
brief in the Agnew case represents not a policy but an
interpretation of the Constitution. That interpretation, the
response would continue, has been demonstrated to be in error
by the subsequent decision in Clinton v. Jones. An article
published by Ken Starr's advisor on constitutional law,
Professor Ronald Rotunda, argues that Clinton v. Jones makes
clear what had previously been obscure--namely that a sitting
President may be indicted and prosecuted.--[Memorandum, 2/4/
99]
Mr. ABRAHAM. In light of our time constraints, I would like to focus
my remarks today primarily on the one issue--more than any other--that
has arisen during our deliberations: namely, whether the President
should be convicted if we find he committed the acts alleged in the
Articles.
I believe this issue is not only central to the case at hand, it is
also central to all future evaluations and applications of what we do
here.
In arguing for the President, White House lawyers have asserted that
the threshold for Presidential removal must be very high--and I agree.
At the same time, however, we must remember that there is an inverse
relationship between the level at which we set the removal bar and the
degree of Presidential misconduct we will accept.
So, then, where do we set the bar?
As we know, the Constitution says: The President, Vice President, and
all civil Officers of the United States, shall be removed from Office
on Impeachment for, and Conviction of, Treason, Bribery, or other high
Crimes and Misdemeanors.
Now it has been suggested by some that a ``high Crime'' must be a
truly heinous crime. But that interpretation is obviously wrong.
Treason is certainly among the most heinous crimes. But bribery is not.
Taking a bribe, like treason, is however, a uniquely serious act of
misconduct by a public official. That suggests a different meaning for
``high Crime,'' one that is linked somehow to the fact that the person
committing it holds public office.
Alexander Hamilton's comment about the impeachment power, quoted by
so many of us here, provides the clue. In Federalist 65, Hamilton says:
``The subjects of its jurisdiction are those offenses which proceed
from the misconduct of public men, or, in other words, from the
violation of some public trust.''
The President's lawyers invoked this line, but in my view they
misread it. They argued that what it means is that a President's
conduct must involve misuse of official power if he is to be removed
from office.
But that is not what the Constitution demands, or what Hamilton's
comment, fairly read, suggests. Otherwise, as has been noted, we would
have to leave in office a President or a federal judge who committed
murder, so long as they did not use any powers of their office in doing
so.
Rather, as Hamilton's language connotes, and our own precedents in
the judicial impeachment cases confirm, the connection the Constitution
requires between an official's actions and functions is a more
practical one: the official's conduct must demonstrate that he or she
cannot be trusted with the powers of the office in question.
This rule certainly encompasses official acts demonstrating unfitness
for the office in question--but it also reaches beyond such acts.
In my view, we need not determine the outer limits of this principle
to decide the question before us today: whether the President's
actions, as alleged in these Articles, constitute a violation of a
``public trust'' as Hamilton uses the term.
The answer to that question is plain when we consider the President's
conduct in relation to his responsibilities.
The President's role and status in our system of government are
unique. The Constitution vests the executive power in the President,
and in the President alone. That means he is the officer chiefly
charged with carrying out our laws. Therefore, far more than any
federal judge, he holds the scales of justice in his own hands.
In the wrong hands, that power can easily be transformed from the
power to carry out the laws, into the power to bend them to one's own
ends.
The very nature of the Presidency guarantees that its occupant will
face
[[Page S1496]]
daily temptations to twist the laws for personal gain, for party
benefit or for the advantage of friends.
To combat these temptations, the Constitution spells out--in no
uncertain terms--that the President shall ``take care that the laws be
faithfully executed,'' and the President's oath of office requires him
to swear that he will do so.
If he obstructed justice and tampered with witnesses in the Jones
case, a federal civil rights case in which he was the defendant, the
President violated his oath and failed to perform the bedrock duty of
his office. He did not faithfully execute the laws.
A President who commits these acts thereby makes clear that he cannot
be trusted to exercise the executive power lawfully in the future, to
handle impartially such specific Presidential responsibilities as
serving as the final arbiter on bringing federal civil or criminal
cases or determining the content of federal regulations--especially if,
as will often be the case, he has a personal or a political interest in
the outcome.
Surely retaining a President in office under these circumstances
constitutes exactly the type of threat to our government and its
institutions so many have said must exist for conviction.
That brings the President's alleged conduct squarely within the
purview of our impeachment power, whose purpose, as described by
Hamilton, is to deal with ``the violation of some public trust.''
Furthermore, if the Articles' allegations are true, how can we leave
the executive power in the hands of a President who, through his false
grand jury testimony, even attempted to obstruct and subvert the
impeachment process itself?
For this particular grand jury before which the President testified
was not only conducting a criminal investigation; it was also charged,
under Congressional statute, with advising the House of Representatives
as to whether it had received any substantial and credible information
that might constitute grounds for impeachment.
The framers placed the impeachment power in our Constitution as the
ultimate safeguard to address misuse of the executive power.
A President who commits perjury, intending to thwart an investigation
that might otherwise lead to his impeachment, has, I believe, committed
a quintessential ``high Crime.''
Such conduct of necessity impedes, and could even preclude, Congress
from fulfilling its constitutional duty to prevent the President from
usurping power and engaging in unlawful conduct.
To permit such behavior would set an unacceptable precedent, because
it could, in the future, allow nullification of the impeachment process
itself, rendering it meaningless.
Hence, a President who acts to subvert what the Framers viewed as the
ultimate Constitutional check on abuse of executive power, most
certainly violates the public trust as defined by Hamilton.
Throughout this discussion I have analyzed this case as though one or
more of the underlying counts in each impeachment Article were
established. I recognize that not everyone has reached this
conclusion--and I confess that I have spent countless hours attempting
to make this determination of guilt or innocence on each Article.
However, after listening to and studying the evidence, I have
concluded beyond any reasonable doubt that the President committed one
or more of the acts alleged under each Article. Time does not permit me
to fully explain the basis for my conclusions. But, in my view, that is
where the evidence inescapably points.
In my opinion, there is no way that the President could have
testified as he did in his Jones deposition concerning his relationship
with Monica Lewinsky, unless he believed Ms. Lewinsky would validate
his false statements if called as a witness.
The President may not have explicitly told her to lie, but when he
called her on December 17, he did say ``You can always say you were
coming to see Betty or that you were bringing me letters.''
To whom did he intend her to say this? They'd already agreed on the
use of these cover stories in non-legal contexts. The only new audience
was, clearly, the Jones court, and the President's comments that night
were surely aimed at influencing Ms. Lewinsky's potential testimony
before that court, if she were to be subpoenaed.
That this was the President's intent, is confirmed by his own
testimony in the Jones case. What did he say when asked if Ms. Lewinsky
had come to see him? He said that Ms. Lewinsky had come to visit Betty
Currie and perhaps deliver him papers.
In my opinion, there is also no way you can refresh your memory by
making assertions you know to be false to another person--as the
President twice did to Betty Currie after that deposition. No, the
purpose of those statements was to cause her to validate the false
testimony he had just given, if she were to be subpoenaed.
And finally, if you believe that was the President's intention, then
you must conclude he committed material perjury later, in his grand
jury testimony, when in response to the question: ``You are saying that
your only interest in speaking with Ms. Currie in the days after your
deposition was to refresh your own recollection?'' he answered with one
word: ``Yes.''
And there is more.
Fellow Senators, none of us asked for this task, but we must live
with the consequences of our actions, not just on this administration,
but on our nation for generations to come.
That responsibility cannot be shirked. It has led me to a difficult
but inexorable decision.
I deeply regret that it is necessary for me to conclude that
President William Jefferson Clinton committed obstruction of justice
and grand jury perjury as charged in the Articles of Impeachment
brought by the House, that these are ``High Crimes and Misdemeanors''
under our Constitution, and that therefore I must vote to convict him
on these charges.
opinion
The President has been impeached on the grounds that he obstructed
justice and tampered with witnesses in connection with a federal civil
rights suit in which he was the defendant, and that he committed
perjury before a grand jury charged with investigating whether his
previous conduct warranted prosecution or possible impeachment. It is
our duty to determine whether the President did what the Articles of
impeachment charge and, if so, whether his actions were ``high Crimes
and Misdemeanors'' that under our Constitution should bar him from
further service in his office.
In considering these questions, I have done my best to imagine that I
was deciding them, not about a President of the opposing political
party, with whom I disagree on many issues, but about a President of my
own party. I have tried to imagine what I would do if confronted with
the same evidence concerning a popular Republican President whose
policies I strongly supported. I have tried to decide the case before
me just as I would the case of such a President.
Let me start with the facts.
After a great deal of listening, research and contemplation, I am
compelled by the evidence to conclude that the President did engage in
the conduct charged in both Articles. In reaching this conclusion, I
rely exclusively on those elements of the case that I believe have been
proven beyond a reasonable doubt. Because I believe these dictate my
conclusion, I do not decide whether in an impeachment trial, the
Constitution requires application of this highest of evidentiary
standards, which governs in ordinary criminal cases, or whether it
would also be proper for me to rely on any of the other conduct charged
by the House, much of which I might well find proven under either of
the lower civil law standards.
Let me briefly outline the basis for my conclusions. I will start
with the second Article, because the conduct giving rise to it actually
occurred first.
In my view the evidence shows beyond a reasonable doubt that, for
over eleven months, from December 6, 1997 to November 13, 1998, when
the President agreed to pay Paula Jones $850,000 to withdraw her sexual
harassment lawsuit, the President engaged in a systematic course of
obstructing justice and tampering with witnesses in Ms. Jones's case.
There is no room for reasonable doubt that as part of this course of
conduct the President made statements to Ms. Monica Lewinsky and Ms.
Betty Currie that were intended to cause them to validate,
[[Page S1497]]
through testimony he thought they could well be called upon to give,
the false story he was planning to tell or had already told in his own
deposition. These statements to Ms. Lewinsky and Ms. Currie constitute
the second and sixth Acts of obstruction and witness tampering charged
by the House. There is also no room for reasonable doubt that the
President supported efforts to conceal gifts he had given to Ms.
Lewinsky after those gifts had been subpoenaed as evidence in that
case. That constitutes the third act of obstruction charged by the
House.
As to the first Article: I am convinced that the House has shown
beyond a reasonable doubt that the President perjured himself before
the grand jury in two instances. First, he stated that his only purpose
in talking to Ms. Currie in the days following his Jones deposition was
to refresh his own recollection, thereby falsely claiming to the grand
jury that he did not intend to tamper with her potential testimony if
she were called as a witness in the Jones case. Second, he reaffirmed
the veracity of his Jones deposition denial of ``sexual relations''
with Ms. Lewinsky, under the definition of that term approved by the
court in that case. This was not merely a ``lie about sex'' to protect
his family. By the time of his grand jury appearance, the President had
already acknowledged to his family his improper relationship with Ms.
Lewinsky. Before the grand jury, the President falsely asserted the
truth of his earlier sworn statements for the sole purpose of
protecting himself from possible prosecution or impeachment.
In light of these conclusions, the final overriding issue is whether
the President's actions constitute ``high Crimes and Misdemeanors''
requiring his removal from office under Article II, section 4 of the
Constitution. As has been acknowledge on both sides, reasonable people
can differ on this question. And indeed it is only on this issue,
whether the President must be removed, that Americans are
consequentially divided. A decided majority of Americans agree that the
President committed the crimes alleged in at least one of the Articles.
And in their hearts I believe a significant majority of my colleagues
do as well.
The public, like us, is in disagreement over what the consequences
should be. A clear majority oppose removal, but for a variety of
reasons--ranging from a feeling that the President does not deserve to
be removed, to a concern not to endanger current economic conditions,
to a preference for the President over the Vice President, to the
belief that, because the President has less than two years remaining in
this term, removing his is not worth the disruption it would cause.
These considerations would legitimately play a role in our decision
if we were functioning as a legislative body in a parliamentary system
deciding whether to retain the current government. But that is not our
role here. The Constitution requires the Senate to sit not in an
ordinary legislative capacity on this matter, but as a court of
impeachment. That is why, at the beginning of a trial on Articles of
Impeachment, Article I, section 3 of the Constitution states that
Senators must take a special oath to do impartial justice. Accordingly,
it is my view that our decision cannot be based on other
considerations, but instead must be based on what the Constitution
dictates, and taken with a view toward the precedent we will establish
regarding what is acceptable Presidential behavior.
In arguing for the President, White House lawyers have asserted that
the threshold for Presidential removal must be very high--and I agree.
At the same time, however, we must remember that there is an inverse
relationship between the level at which we set the removal bar and the
degree of Presidential misconduct we will accept.
So, then, where do we set the bar? What does the Constitution
dictate? What precedent should we set for the ages?
Let us start with the text of the Constitution, which states simply:
``The President, Vice President and all civil Officers of the United
States shall be removed from Office on Impeachment for, and Conviction
of, Treason, Bribery, or other high Crimes and Misdemeanors.''
The first interpretation that has been suggested is that a ``high
Crime'' must be a truly heinous crime. But that is obviously wrong.
Treason is certainly among the most heinous crimes. But bribery is not.
Taking a bribe, like treason, is however uniquely serious misconduct
by a public official. That suggests a different meaning for ``high
Crime,'' one that is linked somehow to the fact that the person
committing it holds public office.
A comment by Alexander Hamilton in Federalist 65 provides the clue.
In Federalist 65, speaking of impeachment, Hamilton says: ``The
subjects of its jurisdiction are those offenses which proceed from the
misconduct of public men, or, in other words, from the violation of
some public trust.''
The President's lawyers invoke this line, but they misread it. They
argue that what it means is that to require removal, a President's
conduct must involve misuse of official power.
But that is not what the Constitution demands, or what Hamilton's
comment fairly read suggests. Otherwise we would have to leave in
office a President or a federal judge who committed murder, so long as
they did not use any powers of their office in doing so. Rather, as
Hamilton's language connotes, and our own precedents confirm, the
connection the Constitution requires between the official's actions and
functions is a more practical one: the official's conduct must
demonstrate that he or she cannot be trusted with the powers of the
office in question. This rule encompasses official acts demonstrating
unfitness for the office in question, but it also reaches beyond such
acts.
We need not determine the outer limits of its principle to decide the
question before us today: whether the President's actions here
constitute a violation of a ``public trust'' as Hamilton uses the term.
The answers to that question is plain when we consider his conduct in
relation to his responsibilities.
The President's role and status in our system of government are
unique. The Constitution vests the executive power in the President,
and in the President alone. That means he is the officer chiefly
charged with carrying out our laws. Therefore, far more than any
federal judge, he holds the scales of justice in his own hands.
In the wrong hands, that power can easily be transformed from the
power to carry out the laws into the power to bend them to one's own
ends. The very nature of the Presidency guarantees that its occupant
will face daily temptations to twist the laws for personal gain, for
party benefit or for the advantage of friends in or out of power. To
combat these temptations, the Constitution spells out in no uncertain
terms that the President shall ``take care that the laws be faithfully
executed,'' and his oath of office requires him to swear that he will
do so.
By obstructing justice and tampering with witnesses in the Jones
case, a federal civil rights case in which he was the defendant, the
President violated his oath and failed to perform the bedrock duty of
his office. He did not faithfully execute the laws. He thereby made
clear that he cannot be trusted to exercise the executive power
lawfully in the future, to handle impartially such specific
Presidential responsibilities as serving as the final arbiter on
bringing federal civil or criminal cases or determining the content of
federal regulations--especially if, as will often be the case, he has a
personal or political interest in the outcome.
Surely retaining a President in office under these circumstances
constitutes the type of threat to our government and its institutions
so many have said must exist for conviction. That brings his conduct
squarely within the purview of our impeachment power, whose purpose, as
described by Hamilton, is to deal with ``the violation of some public
trust.''
Obstruction of justice, witness tampering, and grand jury perjury are
serious federal crimes. How do we explain to others who commit them,
many out of motives surely as understandable as the President's, that
while the President stays in the White House, his Department of Justice
is trying to send them to prison? How can we expect ordinary
citizens to accept that the President can remain in office after lying
repeatedly under oath in court proceedings, but that it is still their
duty to tell the truth?
[[Page S1498]]
Finally, how can we leave the executive power in the hands of a
President who, through his false grand jury testimony, has even
attempted to obstruct and subvert the impeachment process itself? For
the particular grand jury before which the President testified falsely
was not only conducting a criminal investigation; it was also charged,
under Congressional statute, with advising the House of Representatives
whether it had received any substantial and credible information that
might constitute grounds for impeachment.
The framers placed the impeachment power in our Constitution as the
ultimate safeguard to address misuse of the executive power. A
President who commits perjury, intending to thwart an investigation
that might otherwise lead to his impeachment, has committed a
quintessential ``high Crime.'' This crime impeded, and could have even
precluded, Congress from fulfilling its duty to prevent the President
from usurping power and engaging in unlawful conduct. To permit such
behavior could, in effect, allow nullification of the impeachment
process itself, rendering it meaningless. Hence, a President who acts
to subvert what the Framers viewed as the ultimate Constitutional check
on abuse of executive power, most certainly violates the public trust
as defined by Hamilton.
To allow a President to continue in office after committing these
acts would place the Presidency above the law and grant the President
powers close to those of a monarch. This, in turn, presents a clear and
present danger to the rule of law, the birthright of all Americans.
Indeed, we Americans take the rule of law so thoroughly for granted
that while it has been much invoked in these proceedings, there has
been little discussion of what it means or why it matters. Simply put,
the rule of law is the guarantee our system makes to all of us that our
rights and those of our countrymen will be determined according to
rules established in advance. It is the guarantee that there will be no
special rules, treatment, and outcomes for some, but that the same
rules will be applied, in the same way, to everyone.
If America's most powerful citizen may bend the law in his own favor
with impunity, we have come dangerously close to trading in the rule of
law for the rule of men. That in turn jeopardizes the freedoms we hold
dear, for our equality before the law is central to their protection.
We are a great nation because, in America, no man--no man--is above
the law. Americans broke from Great Britain because the mother country
claimed it had a right to rule its colonies without restraint, as it
saw fit. Our tradition of chartered rights--rights laid down in laws,
which no king, Parliament or other official could breach--culminated in
our Constitution. That Constitution, which is itself only a higher law,
protects us from tyranny. Once the law becomes an object of convenience
rather than awe, that Constitution becomes a dead letter, and with it
our freedoms and our way of life.
Mr. Chief Justice, my grandparents did not come to this country
seeking merely a more convenient, profitable life. They came here
seeking the freedoms that were given birth on Bunker Hill and in the
Convention at Philadelphia.
I know some people mock as self-righteous or feckless the piety many
Americans have toward their heritage and toward the Constitution that
guards their freedom. But I will never forget that it is not the
powerful or those favored by the powerful who need the law's
protection.
If we set a precedent that allows the President--the chief magistrate
and the most powerful man in the world--to render the judicial process
subordinate to his own interests, we tell ordinary citizens, like my
grandparents, that Americans are no longer really equal in the eyes of
the law. We tell them that they may be denied justice. And we thereby
forfeit our own heritage of constitutional freedoms.
None of us asked for this task, but we must live with the
consequences of our actions, not just on this administration, but on
our nation for generations to come. That responsibility cannot be
shirked. It has led me to a difficult but inexorable decision. I deeply
regret that it is necessary for me to conclude that President William
Jefferson Clinton committed obstruction of justice and grand jury
perjury as charged in the Articles of Impeachment brought by the House,
that these are ``high Crimes and Misdemeanors'' under our Constitution,
and that therefore I must vote to convict him on these charges.
Ms. MIKULSKI. Mr. Chief Justice, I will vote against the articles of
impeachment accusing the President of the United States of perjury
before a grand jury and obstruction of justice.
The Republican House Managers have asked the Senate to remove the
President from office, overturning a free and fair election in which
100 million Americans cast their vote. Short of voting on whether or
not to send our sons and daughters to war, I can envision no more
profound decision.
I have taken this responsibility as seriously as anything I have done
in my life. A little over a month ago, I escorted the Chief Justice
into this chamber and stood with my colleagues when we took a
collective oath, as an institution, to render impartial justice in this
trial. Then, we individually signed our names and pledged our honor to
faithfully fulfill our oath. That was an indelible and profound moment.
I have sought to fulfill both responsibilities--to be impartial and
to render justice. I have sought to be impartial, which I view as a
test of character and will. And I have sought to pursue justice, which
to me includes the responsibility to perform the homework--do the
reading, review the evidence and weigh the facts.
I have listened carefully, and with an open mind, to the
presentations of the Republican House Managers and the President's
Counsel. I have reviewed the evidence. I have read all of the key
witnesses' testimony before the grand jury. I have intensely studied
the law pertaining to perjury and obstruction of justice, discussed the
issue with respected lawyers, developed an appropriate standard of
proof, and reviewed the House testimony of Republican and Democratic
former prosecutors for their views on the charges. Finally, I have read
what our nation s founders wrote about impeachment during those months
in 1787 when the Constitution was formed, and considered the writings
of many of today's finest scholars.
As I reviewed the historical underpinnings of impeachment, I have
reflected on the intentions of the Founding Fathers who developed our
famed system of ``checks and balances''--our Constitution. That system,
designed with the precision of Swiss watchmakers and the concern of
loving parents, has served our nation very well over the last 200 years
and served as a guidepost for nations around the world as they
struggled to establish democracies.
I wondered what the Framers of the Constitution would think of this
trial--how they would counsel us. In fact, we can use their rationale
and their framework to guide us as we reach conclusions about the
evidence and as we determine whether that evidence merits removing a
president from office.
Using all this as my guide, I have concluded that the evidence
presented by the House Managers does not meet a sufficient standard of
proof that President Clinton engaged in the criminal actions charged by
the House. I conclude that the President should not be removed from
office.
In coming to that conclusion, I have used the highest legal standard
of proof--``beyond a reasonable doubt,'' which is required in federal
and state criminal trials. I believe that removing a president is so
serious, and such an undeniably tumultuous precedent to set in our
nation's history, that we should act only when the evidence meets that
highest standard. The United States Senate must not make the decision
to remove a President based on a hunch that the charges may be true.
The strength of our Constitution and the strength of our nation dictate
that we be sure--beyond a reasonable doubt.
The House Managers' case is thin and circumstantial. It doesn't meet
the standard of ``beyond a reasonable doubt.''
The first article of impeachment, charging the president perjured
himself before the grand jury, has not been proven beyond a reasonable
doubt.
[[Page S1499]]
For instance, the House Managers claim that President Clinton
committed perjury when he used the term ``on certain occasions'' to
define the number of times he had inappropriate contact with Ms.
Lewinsky. The Managers believed the term ``on certain occasions'' meant
fewer than the 11 times that were counted by Federal investigators and
they labeled it ``a direct lie.''
But there is no clear numeric or legal definition of ``certain
occasions.'' To disagree about the definition of ``certain occasions''
is not perjury. And it is not material whether it was 11 times or ``on
certain occasions.'' President Clinton admitted the relationship, which
was the material point.
The Republican House Managers also claimed President Clinton
committed perjury by not recalling the exact date, time, or place of
events that occurred two years before. This was because other witnesses
recalled things slightly differently. I do not believe this is or can
be perjury because well-established court standards state that ``the
mere fact that recollections differ does not mean that one party is
committing perjury.''
Overall, the House Manager's assertions rest on Mr. Clinton's vague
and unhelpful responses to the Independent Counsel's questions. While
those responses may be frustrating to the Independent Counsel, the
Republican House Managers, and, perhaps the American public, they are
not perjurious as defined by law.
Similarly, the case presented by the Republican House Managers has
not presented sufficient direct evidence to prove beyond a reasonable
doubt that the President obstructed justice. Instead, the House
Managers relied on extensive conjecture about what the President may
have been thinking. In fact, there is direct and credible testimony by
multiple witnesses that is directly contrary to the House Managers
conjecture, leaving ample room for doubt.
The Republican House Managers also did not prove beyond a reasonable
doubt that there was a causal connection between Ms. Lewinsky s job
search and the affidavit she gave in the Jones lawsuit. Ms. Lewinsky
testified clearly and repeatedly that she was never promised a job for
her silence. That testimony is not challenged by any other witness. In
fact, other witnesses support that testimony and her most recent
deposition by the House Managers confirms it.
From the outset of this trial, I established that I would use a two-
tier analysis for my deliberations. First, I would determine whether
the evidence proved beyond a reasonable doubt that the president was
guilty of the charges. Second, I would then determine whether or not
those charges rose to the level of ``high crimes and misdemeanors''--
the standard required by the Constitution for conviction and removal of
a president.
Since my analysis of the charges brought by the Republican House
Managers determined that they had not been proven beyond a reasonable
doubt, the question of determining high crimes and misdemeanors is, I
believe, moot. I will say, however, that I am again taken by the wisdom
and prescience of the Founding Fathers in addressing this point. I,
like many, have read and re-read the work of Alexander Hamilton with
particular interest. On March 7, 1788, he wrote ``Federalist 65,''
outlining the reasons for, and consequences of, an impeachment trial in
the Senate. In that writing, Mr. Hamilton asserted that the proper
subject of an impeachment trial would be ``the abuse or violation of
some public trust . . . as they relate to injuries done immediately to
the society itself.''
I believe it is clear from those words, and the words of others who
drafted the Constitution, that impeachment was not intended to be used
for an act that did not meet that standard it was not meant to be used
for punishment of the president. I believe that the Framers intended
the last resort of impeachment to be used when a presidential action
was a clear offense against the institutions of government. I do not
believe that President Clinton's conduct, as wrong as it was, rises to
that level.
I wish to choose my words judiciously for I believe the behavior of
the president was wrong, reckless and immoral. President Clinton has
acknowledged that his behavior has harmed his family and the nation,
and that his behavior, in the end, is what brought us to this day. Mr.
Clinton engaged in an illicit, inappropriate relationship and tried to
hide it out of shame and the fear of disgrace. Those actions are
clearly deplorable and should be condemned in the most unequivocal
terms. But the evidence simply and profoundly does not prove criminal
wrongdoing.
Certainly, the impeachment process has been a difficult period in our
nation's history. It has challenged the strength of our institutions
and the strength of our nation. But, Mr. Chief Justice, I still find
reason for tremendous hope.
First, I find hope in the unflagging commitment of the United States
Senate to do the right thing for the right reason. I am proud to be a
part of this Senate that was ably led by Mr. Lott and Mr. Daschle and
conducted this trial in a serious, bipartisan, reflective, and
cooperative spirit.
I am reassured that Alexander Hamilton and other constitutional
Framers saw fit to charge the Senate with the responsibility to try
such a case. I hope and believe that we have fulfilled their
expectations to be a sufficiently dignified and independent tribunal,
one that could preserve ``unawed and uninfluenced, the necessary
impartiality'' between the parties in this trial. I would like to thank
my colleagues on both sides of the aisle for meet their
responsibilities with such commitment, honor, professionalism, and
concern for this body and the judgment of history. I will modestly
presume that history will say we discharged our duty well.
I will never forget one of our finest hours--when, early in the
process, we convened in the old Senate Chamber to deliberate. I had the
honor to preside, with my Republican colleague Mr. Mack, over that
colloquy in which we established a process that would maintain the
dignity of the Senate and provide a framework for conducting the trial.
That precedent set an important tone for the proceedings that followed
and I believe that the good will generated in that historic meeting
held throughout our deliberations.
Finally, I also find tremendous hope in the growing national
consensus that we must move forward together to address pressing
problems in our neighborhoods, communities and cities. Over the last
month, the nation has cried out for a focus on education, preserving
Social Security and Medicare, investing in our economy, and providing
global leadership.
We should now heed those calls. I will not say that now we must
``return to the nation's business.'' In fact, as difficult and time
consuming as this process has been, I believe fulfilling our duty to
``render impartial justice'' has been the nation's business. I am
hopeful that with the conclusion of this trial, we may all return to
the work of making our nation more prosperous, our families stronger,
our children better educated, our communities more cohesive, and our
world safer at home and abroad. I believe we will move on knowing that
we have fulfilled our constitutional responsibilities with diligence
and honor.
Thank you.
Mr. GRAMS. Despite the handicaps placed upon the House managers, I
feel they did an excellent job in presenting their case in support of
the articles of impeachment and laying out the facts. I listened to
them carefully, as I listened to the White House Counsel and the
President's lawyers in their vigorous defense of William Jefferson
Clinton.
I have heard some of my colleagues say that it was one particular
fact or incident that led them to their conclusion. That was not the
case with me. I needed to listen to all the facts throughout the trial,
before I truly could decide how I would vote.
But after carefully weighing all the evidence, all of the facts, and
all the arguments, I have come to the conclusion--the same conclusion
reached by 84% of the American public--that President Clinton committed
perjury and wove a cloth of obstruction of justice.
Lead presidential counsel Charles Ruff said in testimony before the
House Judiciary Committee, and here during the Senate trial, that fair-
minded people could draw different conclusions on the charges.
[[Page S1500]]
I disagree in one aspect, but agree in another. I personally feel
there is no room to disagree on whether the President is guilty of the
charges in both Article One and Article Two; he committed perjury and
he clearly obstructed justice. But I agree we will differ on whether
these charges rise to the level of high crimes which dictate
conviction. Again, I believe they do and have voted yes, on both
articles.
The President was invited by letter to come and testify before the
Senate. As the central figure in this trial, he alone knows what
happened, and if truthful, he could have addressed the compelling
evidence against him. He refused.
It has been said that many have risked their political futures during
this process. Perhaps--yet I will not hesitate telling constituents in
my state how and why I voted the way I did. With a clear conscience, I
will stand in their judgment and I will live with and respect whatever
their decision on my political future may be.
But remember, those who vote to acquit--that is, to not remove this
President--will have the rest of their political lifetimes to explain
their votes. They also will be judged.
Collectively too, we will have to await what history will say about
this trial and how it was handled. Will this Senate be judged as having
followed the rule of law; that is, deciding this case on the facts, or
will we be remembered as the rule-making body who deferred to public
sentiment? The polls say this President is too popular to remove. If we
base our decision on his popularity rather than the rule of law, we
would be condoning a society where a majority could impose injustice on
a minority group, only because it has a larger voice. A rule of law is
followed so that justice is done and our Constitution is respected,
regardless of popularity polls.
The foundation of our legal system, I believe, is at risk, if the
Senate ignores these charges. The constitutional language of
impeachment for judges is the same as for the President. Judges are
removed from the bench for committing perjury, and also face criminal
charges, as do ordinary citizens. We must not accept double standards.
The prospect of such a double standard was raised countless times by
the House managers. Consider the irony created by a two-tiered standard
for perjury. A President commits perjury, yet remains in office. But
would a cabinet member who committed perjury be allowed to keep his or
her job? Would a military officer who committed perjury be allowed to
continue to serve? Would a judge who committed perjury remain on the
bench? They would not, and yet our President, the nation's chief law
enforcement officer, is allowed to keep his office after having
committed the same offense.
Again, in my view, this is a double standard and is completely
unacceptable for a nation that prides itself on a legal system which
provides equal justice under the law.
As to our final duty, the final vote, I believe the so-called ``so
what'' defense has controlled the outcome. ``He did it, but so what''
we have heard it a thousand times from a hundred talking heads. We have
heard it from our colleagues, too, in both chambers. Well, for this
Senator, ``so what'' stops at perjury and obstruction of justice. I
will cast my vote with sorrow for the President, his family, and for
the toll this trial has taken on the nation, but with certainty that it
is the only choice my conscience and the Constitution permits me to
make.
Mr. BREAUX. Mr. Chief Justice and my colleagues. Thank you very much,
Mr. Chief Justice, as so many people have said before, for serving with
your patience and your fairness. If you care to extend your time with
us, I would invite you to help preside over my Medicare commission--if
you would like to help out in that regard.
I also want to acknowledge and thank our two leaders for the fairness
and the patience that they both have exhibited to all of us and the
good job they have done keeping this body together, which I happen to
think is extremely important as well.
I think it is always very difficult for us to sit in judgment of
another human being, and particularly is that very difficult when it
involves moral behavior, or moral misbehavior as this case essentially
is all about. I was always taught that there was a higher authority
that made those types of decisions, but here we are, and that is part
of our task.
I think it is also especially difficult to make those kinds of
decisions when they involve someone you know and someone you actually
deal with in a relatively close relationship, almost on a day-to-day
basis. It is difficult when it is someone that you can in private kid
with or that you in private can joke with, as is the case for many of
us with this accused whom we now sit in judgment of.
I know this President and he is someone I have admired for his
political accomplishments and I have admired for what he has been able
to do for this country, but also quite well recognize the human
frailties that he has, as all of us have. If this were a normal trial,
many of us wouldn't even be here; we would have been excused a long
time ago; we would never have been selected to sit in judgment of this
President. We would have been excused because of friendship, we would
have been excused because we know him, we would have been excused
because we campaigned for him and with him, or we would have been
excused for the opposite reasons--because he is a political adversary
that we have campaigned against, that we have given speeches against,
that we disagree with publicly on just about everything he stands for.
None of us would find ourselves sitting in judgment of this individual
if it were a normal trial. But, then again, it is not a normal trial,
and these certainly are not normal times.
For many of us, this is the first time we have ever had a President
who has sort of been a contemporary--certainly for me, and many of my
colleagues are in that same category. I was here, as many of you in my
generation, when President Johnson was here, and served throughout the
time of President Johnson all the way through President Bush. I have
met them all and knew them all to various degrees but never in the same
way that I and many of us know this particular President, because he
really is in the same generation as we are. I think we have that
feeling, when we talk with him. I mean, many times I feel he knows what
I am going to say before I say it and he understands what I am trying
to convey to him before I even have say anything about the subject
matter.
I think that many of us have had, with him, the same type of life
experiences, and that our lives have been shaped by similar events
because we really are of the same generation. So it is very difficult,
coming from that position and now sitting in judgment of a person for
his moral behavior. So I think we have to be extremely careful, those
of us who come from this side with that personal friendship and
relationship, as well as those who come from the opposite side, as a
political adversary. It is very difficult to set those emotions aside
and say I am going to be fair in judging someone I just cannot stand
politically, that I don't agree with on anything, and I wish he wasn't
my President; in fact, I supported someone else. So, it is very
difficult for all of us to try to set that aside and come to an honest
and fair and decent conclusion.
I think the American people have been able to do that. I think they
have had a good understanding of what this case is about from the very
beginning. They understood what it was about before the trial ever
started, they understood what it was about during the trial, and I
think they understand what it is all about after the trial. I think
they understand what happened. I think they know when it happened, they
know where it happened, and they know what was said about it. I think
that they were correct from the very beginning.
What we really have is a middle-aged man, who happens to be President
of the United States, who has a sexual affair with someone in his
office, and that when people started finding out about it, he lied
about it, tried to cover it up, tried to mislead people about what
happened. I would daresay that this is not the first time in the
history of the world that this has ever happened. I daresay it probably
will not be the last time that it will happen. It is probably not the
first time it has happened in this city.
All of that does not make it right; it does not make it acceptable.
It does
[[Page S1501]]
not make it excusable. It cannot be condoned and it cannot be
overlooked. Actions that are wrong have consequences, and now the
consequences must be determined by the Senate.
The question here is not really whether anything wrong was done. For
heaven's sakes, everybody knows that what was done was clearly wrong.
It was unacceptable. It was embarrassing. It was indefensible and any
other adjective you can possibly think of to really describe it. But
that is not really the question before us, and we can all agree on
that. I think the question is not even whether this was perjury or
whether it was obstruction of justice under the terms of the
Constitution.
I think the only question before us is whether what happened rises to
the highest constitutional standards of high crimes and misdemeanors
under the Constitution, justifying automatic removal of this President
from the office of President.
I have concluded that the Constitution was designed very carefully to
remove the President of the United States for wrongful actions as
President of the United States in his capacity as President of the
United States and in carrying out his duties as President of the United
States. For wrongful acts that are not connected with the official
capacity and duties of the President of the United States, there are
other ways to handle it. There is the judicial system. There is the
court system. There are the U.S. attorneys out there waiting. There may
even be the Office of Independent Counsel, which will still be there
after all of this is finished.
But we here cannot expand the Constitution in this area. I think
history supports my position. I will cite you just a quick two
examples. Senator Slade Gorton earlier spoke about the situation with
the Secretary of the Treasury, Alexander Hamilton. As Secretary, he was
having an affair with a woman here in this city and they found out
about it. He was paying off the husband of the wife that he was having
an affair with. He was trying to get her to burn the evidence, which
were letters that he had sent, to try to cover it up--criminal acts.
But the Congress that was investigating him, came to the conclusion
that the behavior was private. It was wrong, it was terrible, it was
criminal, but it was private behavior and he was not impeached. Not
because, I think, as Slade tried to say, that he wasn't impeached
because he admitted it, he only admitted it when he got caught. But he
was not impeached because they decided that it was essentially private
behavior. That was in 1792, and Adams and the Founding Fathers were
here at that time and they came to that conclusion.
More recently, the situation with President Richard Nixon, I think,
is a clear example of what we are struggling with here, to find this
connection between official duties and what he did. One of the articles
that they accused President Nixon with was that he had, not once, but
four times filed fraudulent income tax returns under the criminal
penalty of perjury--that he deducted things that he should not have
deducted and that he didn't report income that should have been
reported. By a 26-to-12 vote, the House Judiciary Committee said, among
other things, that ``the conduct must be seriously incompatible with
either the constitutional form and principles of our Government or the
proper performance of the constitutional duties of the President's
office.'' They said that it did not demonstrate public misconduct, but
rather private misconduct that had become public. I think the situation
today is very similar.
These are clear examples both in the beginning of our country's
history and very recently about the need for this nexus or connection
between the illegal acts and the duties of the office of the President.
Let me conclude by saying I am voting not to convict and remove. But
that is not a vote on the innocence of this President. He is not
innocent. And by not voting to convict we can't somehow establish his
innocence. If the standard of removal was bad behavior, he would be
gone. I mean there would probably be no disagreement about that. But
that is not the standard.
I urge a ``no'' vote on conviction and removal and ask our colleagues
to join in a bipartisan, strong, clear censure resolution and spell out
what happened and where it happened and when it happened and what was
said about what happened so that history will be able to, forever, look
at that censure resolution and study it and learn from what we do
today. That, my colleagues, I think is an appropriate and a proper
remedy.
Thank you.
Mr. DOMENICI. I have listened carefully to the arguments of the House
Managers and the counter-arguments by the White House counsel during
this impeachment trial. I have taken seriously my oath to render
impartial justice.
While the legal nuances offered by both sides were interesting and
essential, I kept thinking as I sat listening that the most obvious and
important but unstated question was: What standard of conduct should we
insist our President live up to?
Only by taking into account this question do I believe that we in the
Senate can properly interpret our Founding Fathers' impeachment
criteria comprised of ``bribery, treason or other high crimes and
misdemeanors.'' Clearly, the Constitution recognizes that a President
may be impeached not only for bribery and treason, but also for other
actions that destroy the underlying integrity of the Presidency or the
``equal justice for all'' guarantee of the Judiciary.
All reasonable observers admit that the President lied under oath and
undertook a substantial and purposeful effort to hide his behavior from
others in order to obstruct justice in a legal proceeding. My good
friends and Democratic colleagues, Senators Joe Lieberman, Daniel
Patrick Moynihan, Bob Kerrey, Diane Feinstein, and Robert Byrd, among
others, have bluntly acknowledged publically that the President lied,
misled, obstructed, and attempted in many ways to thwart justice's
impartial course in a civil rights case. The sticking point has been:
Does this misbehavior rise to the level of impeachable offenses?
I have concluded that President Clinton's actions do, indeed, rise to
the level of impeachable offenses that the Founding Fathers envisioned.
I am not a Constitutional scholar, as I have told you before. But,
more than 200 years ago, Chief Justice of the Supreme Court John Jay
summed up my feelings about lying under oath and its subversion of the
administration of justice and honest government:
Independent of the abominable insult which Perjury offers
to the divine Being, There is no Crime more pernicious to
Society. It discolours and poisons the Streams of Justice,
and by substituting Falsehood for Truth, saps the Foundations
of personal and public rights. . . . Testimony is given under
solemn obligations which an appeal to the God of Truth
impose; and if oaths should cease to be held sacred, our
dearest and most valuable Rights would become insecure.
Lying under oath is an ``insult to the divine Being . . . It
discolours and poisons the Streams of Justice . . . and . . . saps the
Foundations of personal and public Rights.''
How can anyone, after conceding that the President lied under oath
and obstructed justice, listen to this quotation and not conclude that
this President has committed acts which are clearly serious, which
corrupt or subvert the political and government process, and which are
plainly wrong to any honorable person or to a good citizen?
We must start by saying that this trial has never been about the
President's private sex acts, as tawdry as they may have been.
This trial has been about his failure to properly discharge his
public responsibility. The President had a choice to make during this
entire, lamentable episode. At a number of critical junctures, he had a
choice either to tell the truth or to lie, first in the civil rights
case, before the grand jury and on national television. Each time he
chose to lie. He made that fateful choice.
Truthfulness is the first pillar of good character in the Character
Counts program of which I have been part of establishing in New Mexico.
Many of you in this chamber have joined me in declaring the annual
``Character Counts Weeks.'' This program teaches grade school
youngsters throughout America about six pillars of good character.
Public and private schools in every corner of my state teach children
that character counts; character makes a difference; indeed, character
makes all the difference.
[[Page S1502]]
Guess which one of these pillars comes first? Trustworthiness.
Trustworthiness.
So what do I say to the children in my state when they ask, ``Didn't
the President lie? Doesn't that mean he isn't trustworthy? Then,
Senator, why didn't the Senate punish him?''
Let me quote one of the most critical passages from Charles L. Black,
Jr., and his handbook on impeachment, one of the seminal works on the
impeachment process. He ponders this question: what kinds of non-
criminal acts by a President are clearly impeachable? He concludes that
``high crimes and misdemeanors'' are those kinds of offenses which fall
into three categories: ``(1) which are extremely serious, (2) which in
some way corrupt or subvert the political and governmental process, and
(3) which are plainly wrong in themselves to a person of honor, or to a
good citizen, regardless of words on the statute books.''
Well, there you have it in my judgment. The President lied under oath
in a civil rights case, he lied before a grand jury and he lied on
national television to the American people.
Regarding Article II, obstruction of justice the House Managers
proved to my satisfaction the following facts:
(1) The President encouraged Monica Lewinsky to prepare and submit a
false affidavit; (2) He encouraged her to tell false and misleading
cover stories if she were called to testify in a civil rights lawsuit;
(3) He engaged in, encouraged or supported a scheme to conceal his
gifts to Monica Lewinsky that had been subpoenaed in the civil rights
lawsuit; (4) He intensified and succeeded in an effort to find Monica
Lewinsky a job so that she would not testify truthfully in the civil
rights lawsuit; (5) He gave a false account of his relationship with
Monica Lewinsky to Betty Currie in order to influence Ms. Currie's
expected testimony in the civil rights lawsuit; (6) At his deposition
in a Federal civil rights action against him, William Jefferson Clinton
allowed his attorney to make false and misleading statements to a
Federal judge characterizing an affidavit, in order to prevent
questioning deemed relevant by the judge. Such false and misleading
statements were subsequently called to the attention of the judge by
his attorney; (7) He lied to John Podesta, Sidney Blumenthal, Erskine
Bowles and other White House aides regarding his relationship with
Monica Lewinsky to influence their expected testimony before the
Federal grand jury.
In this day and age of public yearning for heroes, we criticize
basketball, football and baseball players, and actors and singers who
commit crimes or otherwise fail to be ``good role models.'' One of
those celebrities said a few years ago that he was only a basketball
player, not a role model. He said in essence: ``Want a role model, look
to the President.''
Do not underestimate, my friends, the corrupting and cynical signal
we will send if we fail to enforce the highest standards of conduct on
the most powerful man in the nation.
Finally, I want to address a question that my good friend, Senator
Byrd, raised over the weekend in a television show. After declaring
that the President had lied and obstructed justice, and after
concluding these acts were impeachable offenses, Senator Byrd, for whom
I have great respect, noted that it was very hard, in his judgment, to
impeach a president who enjoyed the public popularity that this
President enjoys.
Let me respond to that. Popularity is not a defense in an impeachment
trial. Indeed, one of our Founding Fathers addressed this issue of
popularity directly in the oft-quoted Federalist Papers: ``It takes
more than talents of low intrigue and the little arts of popularity''
to be President. And, popularity isn't a pillar of Character Counts.
What if a President committed the same acts as those alleged in this
trial but he was presiding over a weak economy, a stock market at a
three-year low, 12 percent unemployment, 16 percent inflation and a
nation worried about their job security and families? I wonder if this
would be a straight party line vote. I just wonder.
Conversely, I wonder if you had a President who committed one of the
impeachable crimes enumerated in the Constitution--bribery or treason.
And the facts were obvious and clear: he gave a job to someone in
exchange for a $5,000 bribe and the entire episode was on video tape.
In this hypothetical, what if this bribery-perpetrating President was
very popular but the House, nonetheless, impeached him. It would be the
Senate's responsibility to hold a trial. In this example, economy is
strong, the country is at peace, everyone's stock market investments
are soaring. Would we then interpret the Constitution to provide a
popularity defense? Would we create a ``booming economy exception'' to
the conviction and removal clause of the Constitution? I doubt it. I
doubt it very much. Let me repeat, temporary popularity of a President
cannot be a legitimate defense against impeachment.
The President has committed high crimes and misdemeanors, in
violation of his oath of office. He lied under oath. He obstructed
justice. His behavior was unworthy of the Presidency of the United
States.
Thus, I sadly conclude that the President is guilty of the charges
made against him by the House of Representatives and I will vote to
convict him on both counts before the Senate.
Thank you, Mr. President.
Mr. SARBANES. Mr. Chief Justice and colleagues, in his award-winning
book ``The Making of the President, 1960,'' Theodore H. White refers to
an American Presidential election as ``the most awesome transfer of
power in the world.''
He notes that:
No people has succeeded at it better or over a longer
period of time than the Americans. Yet as the transfer of
this power takes place, there is nothing to be seen except an
occasional line outside a church or school or file of people
fidgeting in the rain, waiting to enter the voting booths. No
bands play on election day, no troops march, no guns are
readied, no conspirators gather in secret headquarters.
And later in that opening chapter White observes:
Good or bad, whatever the decision, America will accept the
decision and cut down any man who goes against it, even
though for millions the decision runs contrary to their own
votes. The general vote is an expression of national will,
the only substitute for violence and blood.
I begin with those quotes to underscore the critical significance of
a Presidential election in the structure of our national politics. Many
learned commentators have observed that one of the original
contributions to the art of government made by the Constitutional
Convention was to develop a Presidential, as opposed to a
parliamentary, system of government, wherein the executive is chosen by
the electorate and is not dependent upon the confidence of the
legislature for his office. As former Attorney General Katzenbach
observed:
It is a serious matter for the Congress to remove a
President who has been elected in a democratic process for a
term of four years, raising fundamental concerns about the
separation of powers.
He goes on to note that if the removal power is not limited, as it
clearly is, impeachment could be converted into a parliamentary vote of
no confidence which, whatever its merits, is not our constitutional
system. The separation of powers embraced in our Constitution and the
fixed term of the President have been credited by many observers with
providing stability to our political system.
It is important therefore to recognize that in considering the matter
before us we do so in the context of a Presidential election, wherein
the people have chosen the single leader of the executive branch of our
Government--the President.
Since the Framers put the impeachment remedy in the Constitution, it
is obvious they recognized that there may be circumstances which
require the Congress to remove a duly elected President. However, in my
judgment, as the Framers indicated, we need to be very careful, very
cautious, very prudent, in undertaking that remedy lest we introduce a
dangerous instability in the workings of our political institutions.
Viscount Bryce, whose bust is at the foot of the steps in the hallway
below, was a distinguished commentator about the American political
system. He wrote in ``The American Commonwealth'' in discussing the
impeachment of a President:
Impeachment is the heaviest piece of artillery in the
congressional arsenal, but because it is so heavy, it is
unfit for ordinary
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use. It is like a 100-ton gun which needs complex machinery
to bring it into position, an enormous charge of powder to
fire it, and a large mark to aim at. Or to vary this simile,
impeachment is what physicians call a heroic medicine, an
extreme remedy proper to be applied against an official
guilty of political crimes.
Let me turn next to the argument which seeks to draw an analogy
between the impeachment of a President and the impeachment of judges,
an argument that cites three recent cases in which judges have been
removed from office. In my view, this analogy misses the mark.
Two of the judges that the Senate convicted and thus removed from
office had been accused in a criminal case, tried before a jury, found
guilty beyond a reasonable doubt, and were in jail. Until we removed
them they were still drawing their salary. In the third case, the
defendant had been acquitted of bribery, but a judicial inquiry found
that he had perjured himself to cover up the bribery misdeeds.
Difference No. 1: Judges can be criminally prosecuted while in office;
the President cannot. (At least that has been the theory up to this
point.)
Secondly, elected versus appointed. Judges are appointed to the bench
for life. They can only be removed by impeachment. The President is
elected by the people for a 4-year term and can only hold two such
terms. As President Ford, when he was a Congressman, stated:
I think it is fair to come to one conclusion, however, from
our history of impeachments. A higher standard is expected of
Federal judges than of any other civil officers of the United
States. The President and the Vice President and all persons
holding office at the pleasure can be thrown out of office by
the voters at least every 4 years.
Thirdly, one needs to consider the injury to the branch of Government
which would result from the removal of the officer. The removal of one
judge out of hundreds and hundreds of judges does not significantly
affect the operation of the judicial branch of our Government. The
removal of the President, the single head of the executive branch,
obviously is in an entirely different category. The President, under
our system, holds the executive power. In the end, executive branch
decisions are his decisions.
In the minority report in the House Watergate proceedings, Republican
Members stated:
The removal of a President from office would obviously have
a far greater impact upon the equilibrium of our system of
Government than removal of a single Federal judge.
The House Judiciary Committee majority report accompanying the
article of impeachment against Judge Walter Nixon in 1989 similarly
stated as follows:
Judges must be held to a higher standard of conduct than
other officials. As noted by the House Judiciary Committee in
1970, Congress has recognized that Federal judges must be
held to a different standard of conduct than other civil
officers because of the nature of their position and the
tenure of their office.
In putting on their case, the House Republican managers sought to
portray a simple logical progression--first that the material which
they brought before the Senate showed violations of provisions of the
Federal Criminal Code, i.e., perjury and obstruction of justice. Then
they argued that if you find such crimes, you have high crimes and
misdemeanors and, ergo, removal from office. But let us look at this
supposed logical progression which I view as flawed at each step.
First, I do not believe the House managers carried the burden of
proof with respect to the commission of crimes. Since they relied on
the Federal Criminal Code--charging crimes--in making their case, it is
appropriate that they be held to the burden of proof of beyond a
reasonable doubt--the standard used in criminal cases.
In the House Judiciary Committee a panel of distinguished former
Federal prosecutors testified that a responsible Federal prosecutor
would not have brought a criminal prosecution on the basis of the case
set out in the Starr Report on which the House Judiciary Committee
relied. One of them, Thomas P. Sullivan, a veteran of 40 years of
practice in Federal criminal cases, and U.S. Attorney for the Northern
District of Illinois from 1977 to 1981, stated the following:
If the President were not involved, if an ordinary citizen
were the subject of the inquiry, no serious consideration
would be given to a criminal prosecution arising from alleged
misconduct in discovery in the Jones civil case having to do
with an alleged coverup of a private sexual affair with
another woman or the follow-on testimony before the grand
jury. The case simply would not be given serious
consideration for prosecution.
Now, let me move beyond this question of proving the case and address
the next step in the managers' ostensible logical progression, namely
that the crimes that they were trying to prove are high crime and
misdemeanors and, therefore, a vote for conviction and removal must
follow.
Actually, in considering this issue we must bear in mind the ultimate
question: Does the conduct warrant removal from office? The House logic
seems to be that any perjury, any obstruction of justice, warrants
removal. As serious as those charges are, not all such conduct in all
instances may rise to the level of an impeachable offense. In
considering this matter, it is important to understand that the House
articles included within them not only the charges but also the
penalty. In the ordinary criminal case, there is a two-step judgment--
guilt and then sentence. In an impeachment case, the finding of guilty
carries with it removal from office--the remedy provided by the
Constitution.
There is an important precedent for the view that in certain
circumstances offenses of the sort alleged here may not rise to the
level of a high crime and misdemeanor. That precedent is found in the
tax article of impeachment of Richard Nixon which was before the House
Judiciary Committee in 1974. That article charged President Nixon with
knowingly filing tax returns which fraudulently claimed that he had
donated pre-Presidential papers before the date Congress had set for
eliminating such a charitable tax deduction. (It was worth $576,000 in
deductions.) This deduction was claimed in tax returns that contained
the following assertion just above the taxpayer's signature:
Under penalties of perjury, I declare that I have examined
this return, including accompanying schedules and statements,
and, to the best of my knowledge and belief, it is true,
correct and complete.
The House Judiciary Committee voted down that article of impeachment
by a vote of 12 for, 26 against. As one of nine Democrats who joined
the Republicans in voting against this article of impeachment in the
Nixon case, I did not believe that in the circumstances of that case it
rose to the level of a high crime and misdemeanor, I did not believe it
was conduct against which the Founding Fathers intended the Congress to
invoke the impeachment remedy.
Let me turn briefly to the procedure followed in this impeachment
matter, since good procedure enhances the chances of good results while
bad procedure does the opposite. I am prompted to do so by various
comments made by House managers criticizing the Senate for the
procedure we have followed. I think the Senate has handled this matter
well under very difficult circumstances. Given that the House managers
questioned our procedure, let us look at the procedure on the House
side.
The House, which brought in no ``fact'' witnesses, came to the Senate
and said to us, ``In order to evaluate testimony that is in the record,
you must bring witnesses in and look them in the eye in order to assess
their credibility.'' Obviously, one must ask, how did the House
managers assess the credibility of witnesses when they brought none
before them and yet voted to bring articles of impeachment recommending
the President's removal to the Senate?
Secondly, the other day, in response to a reasonable request by the
President's lawyers on how the House planned to proceed in using
deposition excerpts, a House manager said, ``I believe the appropriate
legal response to your request is that it is none of your damn business
what the other side is going to put on.'' This same attitude marked the
treatment of President Clinton's lawyers before the House Judiciary
Committee.
Contrast this with the House Judiciary Committee's conduct in the
matter of President Nixon's impeachment when the President's lawyers
sat in with the committee in its closed sessions when committee staff
presented findings of fact. The President's lawyers were able to
challenge material,
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to ask questions, to supplement all presentations. Fact witnesses were
called in and were subjected to questions by all. There was an
understanding of the gravity of the matter for the Nation and the
absolute imperative of having a fair process.
In this matter the House Judiciary Committee took only a few weeks to
report impeachment articles. In the Nixon case the committee took 6
months. In the Judge Hastings case, the House Judiciary Committee
received an 841-page report from the Judicial Conference as to why
Hastings should be removed. Nevertheless, the committee undertook its
own examination of the evidence. It heard 12 fact witnesses, deposed or
interviewed 60 others, and held 7 days of hearings.
In closing, it is very important to keep in mind the distinction
between the person who is President and the Office of President of the
United States provided for in our Constitution.
President Clinton has engaged in disgraceful and reprehensible
conduct which has severely sullied and demeaned his tenure as
President. Because of his shameful and reckless behavior he has brought
dishonor upon himself, deeply hurt his family, and grievously
diminished his reputation and standing now, and in history.
But the diminishing of Bill Clinton must not lead us to diminish the
Presidency for his successors as our Nation moves into the new
millennium. There is a danger to the Nation in deposing a political
leader chosen directly by the people and we must be wary of the
instability it would bring to our political system.
In the report of the staff of the impeachment inquiry in 1974 on the
constitutional grounds for Presidential impeachment, the conclusion
states:
Not all presidential misconduct is sufficient to constitute
grounds for impeachment. There is a further requirement--
substantiality. In deciding whether this further requirement
has been met, the facts must be considered as a whole in the
context of the office, not in terms of separate or isolated
events. 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
constitutional duties of the presidential office.
I do not believe the conduct examined here meets this test.
I will vote against removing the President.
Mr. CAMPBELL. Mr. Chief Justice and colleagues, my friends, I am not
going to try to dazzle you with my knowledge of the law which is
minimal, or the forty hand-written pages I've taken during these
proceedings. But, I signed the same oath you did with a pen that should
have had on it ``United States Senate,'' but did not. It said, ``Untied
States Senate.''
We were asked to turn the pens back in. I heard they are going to be
valuable collectors' items, and I am not turning mine in. I want to see
what it's worth.
And there you have it. An imperfect Senator being asked to judge an
imperfect President.
One of our colleagues noted yesterday that we all come from different
backgrounds. It's true and, perhaps, I am living proof that the
greatness of this nation because I could be here at all.
The same body where someone named Daniel Webster, John F. Kennedy and
Harry Truman once served also welcomed a mixed blood kid from the wrong
side of the tracks. The offspring of an alcoholic father and a
tubercular mother; in and out of orphanages; a law breaker and high
school drop out who lied, cheated, stole and did many other shameful
things make me a poor judge indeed of someone else who used poor
judgment.
I would rather take a beating than to judge someone else for their
indiscretions. But, as one of our colleagues said yesterday, ``We
didn't ask for this.''
Still, with all my own human failings, I, like you, must try to
separate them from the rule of law. I wish I had the historical
knowledge of Senator Byrd or the legal knowledge of Orrin Hatch or the
government experience of John Warner. But, I don't--I must use common
sense.
I want to tell you an anecdote--about a conversation I had with the
President right after he made his rather startling confession before
this nation and a group of reverends which I watched from my Denver
office as millions of others were also watching at the same time.
I was so moved by his statement that I wrote him a personal note
telling him how sorry I was for what his family was going through. I
told him I would not be one to pile on; that I would make no statements
to the press; nor would I be a party to the impeachment process going
on in the other body.
As I look around this room, I see several others who subscribed to
that same conduct as this proceeding moved to the Senate and took on
soap opera proportions, and members of both parties ran pell mell to
the cameras at each recess.
I sit right there in the back row fifteen feet from the cloakroom.
But, at each recess by the time I walk to the cloakroom and glance at
the TV, some of my colleagues have already sprinted somewhere else to
be in front of the cameras. As you know, I used to be on the U.S.
Olympic Team, and I tell my speedy friends--you could have made the
team.
About three days after I wrote to the President, he called me to
thank me for my note and we spoke for about 15 minutes. I asked him how
his family was dealing with it and he told me they were having good
days and bad, but it was hardest on his daughter, Chelsea, because she
was away at college without the family unit to console her. He told me
he would keep my note always. I felt badly then, and I do now.
As I look around this room in which so many great people in our
history have spoken and I read their names written in the desk drawers
along with those who no one remembers, I tell you that I like this
President.
He came through a difficult childhood as I did, and I genuinely like
him and feel sorry for both him and his family. But after agonizing as
many of my Senate friends have, I remember the first question my then
nine-year-old son, Colin, asked me 17 years ago when I told him I was
going to run for public office. He asked, ``Dad, are you going to lie
and stuff?''
I told him, ``No.'' I don't have to learn how to lie--I still
remembered how to lie from my delinquent days. I'm still trying to
forget it.
I told him, human frailties not withstanding, elected officials
should not ``lie and stuff.''
Every one of us knows that when we step into the public arena, we are
judged by a different standard. Being honest and truthful becomes more
important because we must set the examples.
As a senator, if I ever forget it, this body will not have to throw
me out because I will have brought it on myself, and I'll save this
body the time and expense and resign.
I would not fear being thrown out. When I was young and not yet
house-broken, I was thrown out of a lot of places. I swore a lot of
oaths--not when I went in, but when I came out.
There is a difference: one is about anger in private--the other is
about honor in public. If we are not going to honor our oath, why don't
we get rid of it and have an every-man-for-himself kind of elected
official?
Better yet, let's change it. Mr. Chief Justice, you could say:
``Senators-elect. Raise your right hand and repeat after me: `On my
honor, I'll do my best, to help myself and lie like the rest.''
I took a solemn oath--perhaps it is the only thing in common I share
with John F. Kennedy, Harry Truman and Daniel Webster as well as the
founders of this nation--and that is why honoring it is all the more
important to me.
Simply speaking, the President did, too. And, so even though I like
him personally, I find I can only vote one way. And that is guilty on
both articles.
Thank you, Mr. Chief Justice. I yield the floor.
Mr. KERREY. Mr. President, in the impeachment case of President
Clinton I have read the depositions, reviewed the massive volume of
evidence and carefully followed the detailed presentations of both the
House managers and the President's counsel. The instructions for my
decision come from two places: the oath I took to do impartial justice
and the Constitution of the United States.
Nebraskans, including me, are angry about the President's behavior.
We find it deplorable on every level. It has permanently and deservedly
marred his place in history. But impeachment is not about punishing an
individual; it is
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about protecting the country. We punish a President who behaves
immorally, lies and otherwise lacks the character we demand in public
office with our votes. Presidents are also subject to criminal
prosecution when they leave office.
Impeachment must be reserved for extreme situations involving crimes
against the state. Why? Because the founders of our country and the
framers of our Constitution correctly placed stability of the republic
as their paramount concern. They did not want Congress to be able to
easily remove a popularly elected President. They made clear they
intended a decision to impeach to be used to protect the nation against
only the highest of crimes.
On December 19, 1998, the House of Representatives, on an almost
straight party-line vote, approved and delivered to the Senate two
articles of impeachment. The Constitution permits me to judge and
decide upon only these articles, not to wander through all of the
President's conduct looking for any reason for removal.
Some Nebraskans have told me the President should be removed from
office by the Congress because he is no longer trusted, has lost the
respect of many, and has displayed reprehensible behavior. As strong as
those feelings are, the Constitution does not provide for overturning
an election even if all of these things are true.
Three recent letters to the editor in the Omaha World-Herald help
make the point. The first, from a man in Kearney, says that by voting
to dismiss the trial, I ``voted to support sexual harassment,'' among
other things. A second, from Honey Creek, Iowa, raises allegations
regarding the President and China, says he is ``dangerous'' and urges
Senator Hagel and I to ``oust him now.'' The third, from Omaha, reminds
readers of an often quoted comment I once made about the President's
credibility and asks how, in light of that, I could vote to leave him
in office.
However, the House did not charge the President with these offenses.
Impeachment is not a judgment of a President's character, all his
actions, or even his general fitness for office. We make those
decisions every four years at the ballot box. Our job in contemplating
the extraordinary step of overturning an election is to judge only
those charges the House actually brought.
Because the premium on Constitutional stability is so high, I decided
to judge the case against the strictest possible standard: proof beyond
a reasonable doubt. In other words, the President can be convicted only
if there is no reasonable interpretation of the facts other than an
intent to commit perjury and obstruction of justice. The following is a
summary of my analysis of this case:
Article One accuses the President of perjury in his August 17, 1998,
testimony to a Federal grand jury, during which he waived his rights
against self incrimination. Most important in determining guilt or
innocence is the rule of law governing perjury, which makes it clear
that a person has not committed perjury just because they misled or
even lied. Perjury occurs when a false statement is made under oath
with willful intent to mislead in a material matter. Lying is immoral;
perjury is illegal. I should not accuse the President of ignoring the
rule of law and then ignore it myself in making a judgment.
After reading and watching the President's grand jury testimony,
listening to the arguments of the House managers and the President's
lawyers, discussing this case with prosecutors and reviewing the
impeachment trial of U.S. District Judge Alcee Hastings, I have
concluded the President did not commit the crime of perjury beyond a
reasonable doubt. I frequently found the President's testimony
maddening and misleading, but I did not find it material to a criminal
act.
Article Two accuses the President of obstructing justice in seven
instances. The House managers relied on circumstantial evidence, saying
that common sense provides only one conclusion about why the President
acted the way he did. However, the direct evidence, including the
testimony of Monica Lewinsky herself, rebutted the circumstantial
evidence. Second, while the House managers were correct in saying that
common sense could lead to a conclusion that the President intended to
obstruct justice, common sense could also lead to other reasonable
conclusions about the reasons for his actions. Third, with respect to
the allegations of obstructing justice in the civil case, Paula Jones'
lawsuit was thrown out, then eventually settled. In the end, justice
was done.
As reprehensible as I find the President's behavior to be, I do not
believe that high crimes and misdemeanors as defined by the Framers
have been proved beyond a reasonable doubt. Accordingly, I will vote to
acquit on both Articles. My vote to acquit is not a vote to exonerate.
While there is plenty of blame to go around in this case, the person
most responsible for it going this far is the President of the United
States. He behaved immorally, recklessly and reprehensibly. These were
his choices. In the final analysis, they do not merit removal, but they
do merit condemnation.
While I am confident this vote is the right one--not just for this
case, but as a precedent for future Congresses and Presidents too--I
understand that reasonable people could reach the opposite conclusion.
The bitterness in America on both sides of this debate has saddened me.
I hope and pray that with this vote behind us the people's Congress can
return without rancor to the important work of our country.
Mr. VOINOVICH. We are not here today because the President had a
relationship that he himself has described as inappropriate and wrong.
As House Manager James Rogan appropriately noted, ``Had the President's
bad choice simply ended with this indiscretion, we would not be here
today. Adultery may be a lot of things, but it is not an impeachable
offense. Unfortunately, the President's bad choices only grew worse.''
It is not the President's inappropriate relationship, but his
deliberate and willful attempts to conceal and mislead that brings us
to this point.
The very foundation of this nation is the rule of law not of men. The
framers of our Constitution specifically provided Article II, Section 4
of the Constitution which states, ``The President, Vice President, and
all civil Officers of the United States, shall be removed from Office
on Impeachment for, and Conviction of, Treason, Bribery, or other high
Crimes and Misdemeanors.''
On January 7, 1999, as one of my first official duties as a United
States Senator, I took an oath to consider the evidence and arguments
in the impeachment case against the President. We answered in the
affirmative when the Chief Justice of the Supreme Court administered
the following oath:
Do you solemnly swear that in all things appertaining to
the trial of the impeachment of William Jefferson Clinton,
President of the United States, now pending, you will do
impartial justice according to the Constitution and laws, so
help you God?
I understood that the private inappropriate conduct of the President
alone did not then and does not now rise to a level necessitating his
removal from office. My responsibility is to fulfill the oath I took to
determine impartially based on the facts, evidence and testimony
whether the President committed high Crimes and Misdemeanors as
outlined in the Constitution.
During my 33 years in public office, I have had to make some very
difficult decisions. As governor, I had to make determinations on
hundreds of requests for commutations and pardons. To my recollection,
in no case have I labored more than I have over the Articles of
Impeachment of our President.
After an exhaustive study, which included reading volumes of
transcripts, watching the taped testimony and listening to the able
arguments made by the House Managers, the White House counsel and my
colleagues in the Senate, I have reached the conclusion that, beyond a
reasonable doubt, the President committed both perjury and obstruction
of justice as outlined in Articles I and II in the Articles of
Impeachment.
I also have concluded that the President's obstruction of justice was
premeditated and undertaken over a long period of time beginning when
he learned that Monica Lewinsky was placed on the witness list in the
Jones case.
It is particularly disturbing that he used his brilliant mind and
superb interpersonal skills to sweep other people into his scheme,
thereby impairing
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their credibility, all to extricate himself from taking responsibility
for his conduct. But for a conclusive DNA analysis, he may have
succeeded in that scheme.
By committing perjury and obstructing justice, the President is
guilty of high Crimes and Misdemeanors. As constitutional scholar
Charles Cooper said, ``The crimes of perjury and obstruction of
justice, like the crimes of treason and bribery, are quintessentially
offenses against our system of government, visiting injury immediately
on society itself.''
He violated his oath of office and failed to fulfill his
responsibility under the Constitution, which provides that the
President ``shall take Care that the Laws be faithfully executed.''
Judge Griffin Bell has correctly noted, ``A president cannot faithfully
execute the laws if he himself is breaking them.'' The President has
undermined the fundamental principle that we are a nation ruled by laws
and not by men. There is no way in good conscience that we as a nation
can have a lawbreaker remain as President of the United States when his
conduct in office has included the very same acts that have resulted in
the impeachment of Federal judges and have sent hundreds of people to
prison. Ours is a nation of equal justice under the law.
I believe the framers of the Constitution had a President like Bill
Clinton in mind when they drafted the impeachment provisions in Article
II, Section 4--a very popular, brilliant communicator with
extraordinary interpersonal skills who abuses his power, violates his
oath of office, and evades responsibility for his actions because he
believes he is above the law.
One who has committed high Crimes and Misdemeanors disqualifies
himself from serving as President, Commander-in-Chief, and chief law
enforcement officer. The President also represents much more than these
titles and responsibilities. He is a symbol of the greatness of the
American people. Presidential scholar Clinton Rossiter observed that
the president of the United States is ``the one-man distillation of the
American people.'' And, President William Howard Taft described the
president as ``the personal embodiment and representative of their
dignity and majesty.''
By virtue of his own conduct, William Jefferson Clinton has forfeited
his elected right to hold the office of president. I sincerely believe
that this country can survive the removal of a popular president who
has forfeited public trust. But, our country cannot survive the
abandonment of trust itself.
Mr. LAUTENBERG. Mr. Chief Justice, the Senate must now fulfill a
weighty and solemn duty. For only the second time in the more than two
hundred years since our founding fathers established the Constitution,
we must vote on Articles of Impeachment against a President.
When considering this issue, which goes to our core constitutional
responsibilities as Senators, each of us must come to a conclusion
based on his or her conscience. Guided by the Constitution, we must
bring all of our moral beliefs, our education, our careers, and our
experiences as public servants to the question. And we must try to
reach a decision that will serve the best interests of the nation for
generations to come.
As I reflect on the impeachment proceedings, I think first of the
range of emotions I have felt. From the moment I realized that the
President had engaged in this shameful relationship, I have struggled
with my thoughts.
I was angry, of course. I was ashamed for the President, a talented
man--someone I consider a friend. How could he risk so much with his
disgraceful behavior?
And I was saddened. I do not know how the President will reconcile
himself to his family. I could imagine the embarrassment and the
humiliation of the First Lady and his daughter Chelsea. I pitied them
as they felt the searing glow of the public spotlight.
I am sure that colleagues, on both sides of the aisle, have
empathized with similar emotions.
But now we must put those feelings aside. We have a very specific
charge under the Constitution. That hallowed document delineates our
duty. Under Article II, Section 4, we must determine whether the
President has committed ``high Crimes or Misdemeanors'' requiring his
removal from office.
In my view, our founding fathers meant to set a very high standard
for impeachment. Clearly, the phrase ``high Crimes or Misdemeanors''
does not include all crimes. But what are the crimes that meet that
standard? I find the words of George Mason to be compelling. He
understood the phrase to mean ``great and dangerous offenses'' or
``attempts to subvert the Constitution.''
When applying this standard, we must also consider the national
interest. The founding fathers vested the impeachment power in the
Senate, and not the judiciary, precisely because this body would be
accountable to the people.
In the words of Alexander Hamilton, only the Senate would ``possess
the degree of credit and authority'' required to act on the weighty
issue of whether to remove a federal official. In my view, this means
that we must look not just at the facts and the law, but we must also
try to determine what is in the best interests of the nation.
But we should not read the polls, or some other temporary gauge of
the public temperament. Instead, we must look back through history, and
toward the future, to reach a decision that will reflect well on the
Senate and the nation for generations to come.
In my view, this case does not involve efforts to subvert the
Constitution, and the national interest will not be served by removing
the President from office.
Before turning to the evidence, I want to express my concern with the
way in which the Articles of Impeachment are written.
They do not specify which statements and actions by the President are
unlawful. Instead, they make general allegations. With this approach,
we cannot fulfill our duty to the American people. The American people
must know specifically what Presidential conduct justifies overturning
an election.
While the Articles could have been more clearly written, there is a
more fundamental problem. There is simply insufficient evidence for a
vote to convict. Whether you apply the standard of beyond a reasonable
doubt, or even the lower standard of clear and convincing evidence, the
House Managers have not proved their case.
With regard to Article I, the evidence does not support a charge of
perjury. The President may have been uncooperative and evasive. He
certainly was misleading. But he never committed perjury as that term
is defined in the law. Consequently, the President should be acquitted
on Article I.
There is also insufficient evidence to convict the President on
Article II, which charges him with obstruction of justice. The main
problem with this Article is that testimony from the principal
witnesses do not support the allegations. Monica Lewinsky, Betty
Currie, and Vernon Jordan testified that the President did not tamper
with witnesses, conceal evidence, or take any other actions that would
constitute obstruction of justice. All of the witnesses support the
President's version of events.
I realize that some of you may view the evidence differently. But I
think we must still consider whether this is an appropriate case for
the Senate to use the awesome power of impeachment to overturn a
national election.
I further ask you to consider the precedent we would set with a
conviction of this President. We risk making the impeachment power
another political weapon to be wielded in partisan battles.
Our founding fathers warned against this. In the Federalist Papers,
Number 65, Alexander Hamilton noted that the prosecution of impeachable
offenses would ``connect itself with the pre-existing factions.'' And
that this would create ``the greatest danger, that the decision will be
regulated more by the comparitive strength of parties than by the real
demonstrations of innocence or guilt.''
Prior to the present case, the House of Representatives had seriously
considered Articles of Impeachment against only two Presidents--Andrew
Johnson and Richard Nixon. In the more than two hundred years since the
Constitution was established, the House set the impeachment machinery
in motion in only two occasions.
Today, no one doubts that the serious abuses of our constitutional
system by
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the Nixon Administration warranted impeachment proceedings. And the
bipartisan approach of Congress solidified President Nixon's decision
to resign.
But history has not been kind to those who pushed the impeachment of
President Johnson upon the nation. Scholars agree that the charges were
baseless--a purely partisan campaign. Indeed, Chief Justice Rehnquist,
who has presided so effectively in this case, wrote in his book on
impeachment that if the Senate had convicted President Johnson ``a long
shadow would have been cast over the independence'' of the presidency.
So for most of our history, the fears of our founding fathers have
not been realized. Congress has not resorted to impeachment even when
previous administrations faced far-ranging scandals--the Whiskey Ring
scandal during the tenure of President Grant; the Teapot Dome scandal
in the Harding administration.
And more recently allegations that Presidents Reagan and Bush were
not truthful regarding the Iran-Contra scandal.
Historically, Congress has held its hand when circumstances might
have warranted a pull of the impeachment lever. But contrast that
history with the circumstances surrounding this case.
President Clinton was a defendant in a civil lawsuit. In determining
whether that lawsuit should be allowed to go forward while the
President was in office, the Supreme Court of the United States noted
that the case involved ``unofficial conduct.'' That case was eventually
dismissed, and the plaintiff reached a settlement with the President.
But with that lawsuit in place, the plaintiff's attorneys had license
to probe into the President's personal life. The private lives of many
people were paraded through the press.
And then the Independent Counsel joined the hunt. Although he was
originally appointed to investigate a real estate transaction in
Arkansas, and even though he eventually cleared the President of any
wrongdoing in that matter and other reckless accusations, the
Independent Counsel turned his attention to a private affair.
I think this background cautions against the use of the awesome and
irrevocable power of impeachment. Think for a minute about how future
partisans might proceed. We have a readily accessible legal system.
Anyone with the filing fee can bring a lawsuit. And our laws provide
great leeway in the discovery process.
If we take the wrong path now, we can expect to see future Presidents
hauled into court. They will be questioned repeatedly, and it will not
be hard for skilled attorneys to hurl charges of perjury and
obstruction of justice. We cannot allow the Presidency to be weakened
in this way.
Once again, we find the wisdom of our founding fathers providing
guidance.
James Wilson, who participated in the Philadelphia Convention at
which the Constitution was drafted, observed that the President is
``amenable to [the law] in his private character as a citizen, and in
his public character by impeachment.''
In other words, the legal system, our civil and criminal laws provide
the proper venue for a President who has failed in his private
character.
And in this case, the legal system can and will continue to address
the President's personal transgressions.
The Paula Jones lawsuit has been settled. When he leaves office, the
President could be subject to further prosecution. But there is simply
no injury to our constitutional system, no aspect of what James Wilson
called the President's public character, which must be remedied through
a Senate conviction under the impeachment power. Of course, I
understand the great pain inflicted by the President's private
character. As I said earlier, his behavior was reprehensible. He has
shamed himself, his family, and the nation.
And I understand the desire to punish the President for his conduct.
But we must remember the many ways in which the President has already
been punished. He has suffered enormous embarrassment and humiliation.
Beyond that personal pain, he has also been subject to public
condemnation. Every Member of Congress is on the record rebuking his
behavior.
Of course, this may not satisfy some. They may want more punishment.
But please remember--the purpose of the impeachment power is not to
punish. Instead, impeachment serves to protect the nation from corrupt
officials.
So, to render a proper verdict, we must put aside the powerful desire
to punish. And I submit that to impeach the President in this case
would be a terrible use of the impeachment power, lacking
proportionality and perspective.
Now, we must step back from the partisan precipice. We must not
weaken the Presidency for future generations. We must reject these
Articles of Impeachment and help restore the balance of power between
the branches of the government.
Let us put this matter behind, heal the wounds inflicted by
partisanship, and rededicate ourselves to the challenges facing our
nation.
Mr. BOND. On Friday, February 12, 1999, I voted to convict President
William Jefferson Clinton on both counts of the Impeachment Articles
brought by the United States House of Representatives charging that he
committed perjury and obstruction of justice. My reasons follow.
Background
On January 16, 1998, at the request of the United States Attorney
General Janet Reno, the three judges of the United States Court of
Appeals for the District of Columbia Circuit expanded the previously
entered Order authorizing the Office of Independent Counsel Kenneth W.
Starr to look into certain matters relating to a lawsuit brought
against President William Jefferson Clinton by former Arkansas state
employee Paula Jones alleging sexual harassment. Pursuant to that
Order, Ms. Jones' attorneys issued subpoenas for evidence and deposed
Mr. Clinton and others seeking information on a pattern of conduct that
might be relevant to the issues in the Jones case.
The President denied in a deposition in the Jones case and in a
forceful statement to the American public that he had sexual relations
with ``that woman,'' referring to Monica Lewinsky. Subsequently,
however, Ms. Lewinsky turned over a stained blue dress that she had
worn in an encounter with the President; a scientific examination
revealed that the DNA on the dress was President Clinton's DNA.
The Office of Independent Counsel convened a federal grand jury to
look into the matter and deposed Mr. Clinton in The White House on
August 17, 1998, about his participation in the Jones lawsuit.
The Office of Independent Counsel then referred the matters developed
in the investigation to the United States House of Representatives,
which on December 19, 1998, voted two Articles of Impeachment against
Mr. Clinton alleging that he committed perjury before the federal grand
jury in four instances and that on seven occasions he had obstructed
justice by tampering with witnesses and evidence in the Jones case
proceedings.
For the sake of brevity, I shall only cover several of the
allegations and evaluate the evidence supporting them.
allegations
Counsel for the President has admitted that there was an
inappropriate relationship between the President and Ms. Lewinsky and
that they had concocted a cover story to conceal their relationship and
activities. On December 17, 1997, at approximately 2 a.m., Mr. Clinton
telephoned Ms. Lewinsky after he learned that she had been summoned for
a deposition in the Jones case. According to this testimony he called
to tell her of the death of the brother of Mr. Clinton's secretary. Ms.
Lewinsky states that he told her about the death of the brother, but
that he also reminded her of their cover story and notified her that
she was included on the witness list in the Jones case.
According to Ms. Lewinsky's testimony, Mr. Clinton further stated
that they might be able to avoid her testimony if she executed an
affidavit. Although Mr. Clinton had also reminded Ms. Lewinsky of her
cover story, the White House Counsel made much of the fact that Ms.
Lewinsky said that the President did not tell her to file a false
affidavit and did not link the cover story to the need to file an
affidavit.
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I do not believe it is at all inconsistent with a scheme or out of
the ordinary to note that the President would not make such a
connection. As an experienced attorney, the President would know he
would be in grave danger if he ever explicitly asked anyone to file a
false affidavit or to lie under oath. To paraphrase a statement made
during the trial by Vernon Jordan, ``He is no fool.'' He would have
known that such a statement could be revealed by subsequent judicial
inquiry.
Mr. Clinton did not have to tell Ms. Lewinsky expressly to execute a
false affidavit. She knew that in the absence of contrary instructions
she was to continue to follow their story. She was referred by the
President's best-friend Vernon Jordan to an attorney who drafted the
affidavit for her. The President, through Mr. Jordan, was kept advised
of the progress of the affidavit.
During the time that Mr. Jordan was serving as liaison between the
attorney and the President in the procuring of the affidavit, he was
also pursuing a job search for Ms. Lewinsky, which he admitted was
under his control.
The President's lawyer was presented the affidavit and offered it
into the evidence when the President was summoned before federal judge
Susan Webber Wright to participate in the deposition on January 17,
1998, by the Jones attorneys. The President's attorney, Mr. Bennett,
referred to the deposition in evidence and stated that it showed that
there ``is absolutely no sex of any kind in any manner, shape or form''
with Mr. Clinton. Mr. Bennett further stated, ``In preparation of the
witness for this deposition, the witness (Mr. Clinton) is fully aware
of Ms. Lewinsky's affidavit, for I have not told him a single thing he
doesn't know * * * '' (Clinton deposition transcript, Evidentiary
Record, Vol. XIV, at p. 23.) Although the videotape of the deposition
showed the President looking in the direction of the attorney when the
affidavit was presented, Mr. Clinton subsequently stated that he was
not paying attention and had no knowledge of the representations made
by his attorney about the affidavit.
I believe that to be totally incredible.
The President had known that Ms. Lewinsky would be a prime subject of
the deposition and he had asked Ms. Lewinsky to file an affidavit and
took steps to be kept advised of the progress of that affidavit.
Subsequent events showed that his attorney, Mr. Bennett did not at the
time know the falsity of the affidavit and that Mr. Clinton was
apparently the only one at the deposition who was fully aware of the
fraud that was being perpetrated on the court.
When Mr. Bennett later learned the falsity of the affidavit, he did
what any attorney hates to do and that is to advise the court that he
provided false information. He asked that the affidavit and his
characterization of it be disregarded.
I believe Mr. Clinton encouraged the execution of a false affidavit,
secured job assistance to help prevent truthful testimony, and allowed
his attorney to make false statements as alleged in Article II,
paragraphs 1, 4, and 5.
When Mr. Clinton testified before the federal grand jury on August
17, 1998, he was asked:
A. If he misled Judge Wright in some way then you would
have corrected the record and said, excuse me Mr. Bennett, I
think the judge is getting a mis-impression by what you are
saying?
A. . . . I wasn't even paying much attention to this
conversation.
Q. Do you believe, Mr. President, that you have an
obligation to make sure that the presiding federal judge was
on board and had the correct facts?
A. I don't believe I ever even focused on what Mr. Bennett
said in the exact words he did until I started reading this
transcript carefully for this deposition.--(Deposition of
President Clinton, page 30, lines 2-5.)
I therefore believe he provided perjurious, false and misleading
testimony to the Federal grand jury concerning statements he allowed
his attorney to make to a federal judge as alleged in Article I,
paragraph 3.
On December 28, 1997, the President met in his White House office
with Ms. Lewinsky and exchanged gifts. During the course of the
conversation Ms. Lewinsky raised the question of what to do with other
gifts he had provided her and which had been subpoenaed by the
attorneys for Paula Jones. According to Ms. Lewinsky, he made no
definitive statement about the gifts.
Very shortly thereafter, according to Ms. Lewinsky's testimony, Mr.
Clinton's personal secretary Bettie Currie initiated a series of
telephone conversations, in which in effect Ms. Currie communicated to
Ms. Lewinsky that she understood from the President that Ms. Lewinsky
had something for her. Pursuant to those telephone calls Ms. Currie
picked up gifts from Ms. Lewinsky and took them back to Ms. Currie's
apartment where she stored them under her bed.
During the course of proceedings in the Senate, Ms. Lewinsky was
asked in a deposition about these telephone calls and expanded upon her
testimony about them. A prior statement by Ms. Currie that Ms. Lewinsky
had actually initiated the call was recanted by Ms. Currie, and I
believe the testimony of Ms. Lewinsky is credible. By hiding the gifts
rather than presenting them to the Jones attorneys pursuant to the
subpoena Ms. Lewinsky committed a felonious act and, if Ms. Currie had
knowledge of the subpoena, she also committed a felonious act of
concealing materials covered by a valid subpoena. Mr. Clinton, by
orchestrating, facilitating, and encouraging the suppression of
evidence under subpoena, also committed a felonious act. I, therefore,
believe that the charge in Article II, paragraph 3, of the Impeachment
Articles is proven.
During the course of his deposition by the Jones attorneys, President
Clinton continued to rely on his cover story and on the perjurious
affidavit submitted by Ms. Lewinsky. During that deposition he referred
repeatedly to Ms. Currie as one who would corroborate the cover story
which he and Ms. Lewinsky had devised. Immediately after his testimony
on Saturday, January 17, 1998, he called Ms. Currie and summoned her to
come into his office on a Sunday, January 18, 1998. There he stated
five rhetorical questions to Ms. Currie: (1) ``I was never really alone
with her . . . right?''; (2) ``You were always there when Monica was
there . . . right?''; (3) Monica came to see me and I never touched her
right . . . right?''; (4) ``She wanted to have sex with me and I can't
do that . . . ?''; (5) ``You could see and hear everything . . .
right?''
Each of these statements supported the position taken by the
President in the Jones deposition, but each one of these statements was
false. The President was transmitting to Ms. Currie what he wanted her
to say should she be called as a witness in this case. For good
measure, he even went back to her a couple of days later and walked her
through the statements again. It is uncontroverted that he made those
statements, but he attempted to justify them on the basis that he was
trying to refresh his memory.
His statements to Ms. Currie on January 18, 1998, and several days
later constituted relating a false and misleading account of relevant
events to influence corruptly the testimony of a witness in a federal
civil rights action as alleged in Article II, paragraph 6, of the
Impeachment proceedings.
Subsequently, he also made statements to his subordinates including
Sidney Blumenthal, John Podesta, and Erskin Bowles. The statements he
made to them were also known by him to be false and were designed to
provide misleading information through them which could be and
subsequently was transmitted under oath in the judicial proceedings by
the subordinates.
His statements to his subordinates on January 21, 23, and 26, 1998,
were false and misleading statements to potential witnesses in a
federal grand jury proceeding to influence corruptly the testimony of
those witnesses as alleged in Article II, section 7, of the Articles of
Impeachment.
At his federal grand jury testimony on August 17, 1998, Mr. Clinton
falsely and corruptly denied he had attempted to influence the
testimony of witnesses and impede the discovery of evidence in civil
rights actions as set out in the analysis above. Thus, the committed
the acts as charged in Article I, paragraph 4, the count charging
perjury. (See Clinton grand jury transcript at 107-08, Evidentiary
Record, Vol. III, Part 1 of 2, pp. 559-60.)
I believe that the evidence presented on the above charges was clear
and convincing that the President engaged in a continuing scheme to
fabricate and establish in federal court proceedings a false story
about his relationship with Ms. Lewinsky and that
[[Page S1509]]
through circumstantial evidence, the direct testimony of Ms. Lewinsky,
Ms. Currie, Mr. Blumenthal, and others, plus the corroborating
evidence, he was shown to have committed the acts charged.
The totality of his actions can be judged in the success with which
he maintained his cover story. Had it not been for the DNA on the
stained dress, there is little likelihood that the false cover story
would have been exposed for the lie that it was. In perpetrating that
false and misleading story Mr. Clinton tampered with witnesses,
obstructing justice in the civil rights lawsuit brought against him by
Paula Jones. He also falsely misrepresented these acts in testimony
before the grand jury August 17, 1998.
High Crimes and Misdemeanors
Having resolved in my mind the question that clear and convincing
evidence shows that William Jefferson Clinton obstructed justice and
committed perjury before a grand jury, the next issue is whether these
activities rise to the level of offenses for which removal from office
is the appropriate remedy. Defenders of the President have said that no
one would press charges in a case like this, that it was not grave
enough to merit a criminal proceeding, and that it certainly was not
sufficient to warrant removing the President from office.
With respect to the seriousness of the offense, it is worthy of note
that during the year 1997, 182 people were sentenced by federal judges
for perjury and another 144 were sentenced for obstruction and witness
tampering. These prosecutions were brought by Clinton Administration
appointees and in many instances in front of Clinton-appointed judges.
The case of Dr. Barbara Battaglia is particularly compelling. In a
law suit brought by a patient of a Veterans Administration hospital
alleging sexual harassment, Dr. Battaglia was asked in a deposition if
she had had consensual sex with the plaintiff. Her answer to that
question was a simple, ``No.'' When that denial was shown to be a lie,
she was convicted of a felony and sentenced to house arrest with an
electronic monitoring device. She has lost her ability to practice
medicine and also her ability to utilize her law degree to practice
law.
The serious nature of these offenses is particularly clear when
considered in the context of the proceedings. The United States Supreme
Court had ruled unanimously that Mr. Clinton, as President, had to
answer the lawsuit filed by Paula Jones. A federal judge was assigned
to the suit and presided over the deposition in which Mr. Clinton
testified and at which time he and his lawyer presented the false
affidavit.
It is totally inconsistent within the context of this case and the
sound functioning of the judicial system to say that the Supreme Court
meant that Mr. Clinton should respond to these charges but he was not
bound to respond truthfully. His actions in procuring and using false
affidavits, causing the hiding of subpoenaed evidence, and tampering
with a potential witness by giving false information to use in any
testimony effectively denied the plaintiff the civil rights the Supreme
Court ruled she had. To say that the acts are not grave, not high-
crimes, and not a threat to the judicial system, is untenable. No
lawyer could make such a statement in open court and not be subjected
to the loss of a license to practice law.
Likewise, his lies to a grand jury from his White House office were a
serious challenge to the administration of justice.
Moreover, the debates of the authors of the Constitution showed that
they considered obstructing justice would warrant the President's
impeachment and conviction. George Mason asked if the President could
advise someone to commit a crime and then before an indictment or
conviction use the power of a pardon to stop inquiry and prevent
detection. James Madison responded that, ``If the President be
connected, in any suspicious manner, with any person, and there be
grounds to believe he will shelter him, the House of Representatives
can impeach him.'' (See Elliott, Debates on the Adoption of the Federal
Constitution, at 498.)
Another argument has also been made by the White House counsel and
supporters of the President that to remove the President from office on
impeachment would be to nullify the election. This argument suggests
that impeachment is never an appropriate remedy, provided the President
is popular and the country is enjoying good times. The Office of the
Presidency is not so brittle that it would be gravely damaged by
removing the current President or any other President. The Founding
Fathers certainly did not envision that impeachment could only apply to
an unpopular President or one who was leading the country in hard-
times.
At the height of a Cold War with United States forces engaged in
Vietnam, impeachment proceedings against President Richard M. Nixon
forced him to leave office. The country was not wounded, it did not
lose its way; Vice President Gerald Ford assumed the Presidency and
continued the course of government. In this case, Vice President Al
Gore would assume office and would be expected to continue the policies
of the Clinton Administration.
The United States Senate in recent years did not shirk from driving
from office a colleague accused of obstructing justice in a sexual
harassment case. No one objected that we had ``nullified'' the votes of
the citizens of his state.
Some of my colleagues have argued that the President has been so
strong and forceful in foreign policy and conducted such wise relations
with other nations that we could not afford to lose him. That argument,
too, smacks of a referendum on the President's conduct of office, not a
judgment on his wrongful acts. If we were to judge impeachment on the
basis of the policies of the President, then impeachment could always
be expected to be purely a partisan matter turning on the approval or
disapproval of formulation or implementation of policy by
the President. The framers rightfully dismissed any option that the
proper or improper administration of the regular powers of the
President would be involved in a decision on impeachment, either
positively or negatively.
In addition, we have the precedents set by the removal by the Senate
of judges who have been found to have committed perjury. During my
tenure in the Senate we have twice removed judges for committing
perjury because of the serious adverse impact jerjury has on our
judicial system. If a judge is removable for committing the significant
act of perjury, can the one who appoints the judge be held to a lower
standard?
The President not only appoints the judges, he appoints the Attorney
General, the United States Attorneys, and the Supreme Court Justices.
Certainly we should impose no lower standard on the person with the
ultimate responsibility for the proper administration of justice than
on those he appoints.
Conclusion
It is precisely in good times, with the President high in the polls,
that it is incumbent upon the Senate to exercise very thoroughly and
carefully the responsibility under the Constitution to make the
difficult decision on whether the President has committed high-crimes
and misdemeanors warranting his removal from office. If we are to have
a government of laws and not of men and not of public opinion polls,
then we must judge the President on the evidence presented to us. I
believe that the acts that he committed constitute high-crimes and
misdemeanors warranting his conviction.
I should note that the Senate made a serious mistake in beginning the
proceedings by limiting the ability of the House Managers to call
witnesses. The absence of witnesses to testify to the acts alleged as
the basis of impeachment charges significantly impeded the progress
toward resolving the allegations against the President. I trust that
the Senate will not make the same mistake in future impeachment
proceedings.
Mr. ROBB. Mr. Chief Justice, colleagues, sitting in judgment of the
President of the United States is not easy for any of us. It is
particularly difficult for me because of the personal and political
relationship I have had with this President over the last 20 years. We
served together as Governors in the early eighties, as several of you
did. We traveled together on foreign trade missions. We shared similar
priorities for our States. At my urging, he
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joined the fledgling Democratic Leadership Council, which would later
become an intellectual and organizational resource for his Presidential
campaign.
From our earliest meetings, I recognized in him, as many of you have
recognized, gifts of head and heart and a truly extraordinary range of
political and communication skills that marked him with a potential for
greatness. It was not as a friend, however, but as a U.S. Senator that
I took an oath to render impartial justice under the Constitution in
this impeachment trial. I was fully prepared to convict and remove the
President from office if I concluded that the articles charged met the
test of high crimes and misdemeanors as envisioned by the framers of
our Constitution, and if the evidence convinced me of his guilt beyond
any reasonable doubt. That is the standard I would require to remove
this President or any President from office.
As we wrestle with the decisions before us today, I believe that it
is incumbent upon us to reflect on the consequence of these decisions
tomorrow; for while this trial is about this President, it is also
about the future of this Republic. We simply cannot escape the fact
that what we do today will affect the strength and stability of our
Nation because the actions we take, the precedent we set, directly
affects the separation of powers and the independence of the Presidency
as an institution.
The writings of the framers and the overwhelming consensus of the
scholarship that has followed demonstrate that the mechanism for
removing a President was central to maintaining the delicate balance of
power among the three branches of Government. The Founding Fathers
struggled to resolve the tension between making it too difficult to
remove a President, thereby creating a king, and making it too easy,
thereby creating a weak Chief Executive who would serve at the pleasure
of the legislature. As more than 400 scholars concluded last November,
the lower the threshold for impeachment, the weaker the President.
The resolution of this dilemma--where to set the standard for
removal--occupied the brilliant minds of several Virginians who took
part in our constitutional debates two centuries ago. When George Mason
offered specific language to define an impeachment standard, James
Madison worried about making the standard too low. In worrying, he
replied that so vague a term would be equivalent to a tenure at the
pleasure of the Senate. After much deliberation, our founders finally
agreed that the President should be removed only for committing
treason, bribery, or other high crimes and misdemeanors against the
United States. Thereafter, as we all know, a Committee on Style, which
had no authority to make substantive changes, dropped the last four
words, considering them redundant.
Alexander Hamilton defined impeachable activities as those that
relate chiefly to the injuries done immediately to society itself.
During the debate, Edmund Randolph, a Virginia Governor, reflected
concerns. He stated that the Executive will have great opportunities of
abusing his power, particularly in time of war when the military force
and, in some respects, the public's money will be in his hands.
Clearly, our founders created impeachment not to punish the President,
but to protect the Republic. They had lived under a king and they
didn't want another.
History and common sense tell us, therefore, that the threshold for
impeachment should be high--very high. It should be difficult, not
easy, to impeach a President of the United States because impeachment
is the ultimate sanction for protecting the Republic. It is a weapon to
be respected and feared, but wielded only under the most compelling
circumstances. Similarly, history and common sense tell us that
removing a President is not the same as removing a Federal judge. In
James Madison's records of the debate at the Federal Constitution, he
wrote, ``The judiciary hold their places not for a limited time, but
during good behavior.'' The Executive was to hold his place for a
limited term, like the members of the legislature.
Like them--particularly the Senate, whose Members would continue in
appointment in the same term of 6 years--he would periodically be tried
for his behavior by his electors, who would continue or discontinue him
in trust, according to the manner in which he had discharged it.
Likewise, removing a President is not the same as removing a member of
the Armed Forces for violating the military code of conduct. The
Uniform Code of Military Justice is required to maintain the good order
and discipline for waging war and securing peace. And all of us who
have served in the Armed Forces understood that we swore an oath to
obey a code not required of any civilian, even those with the power to
send us into harm's way--a civilian Commander in Chief, our Secretary
of Defense, and Members of Congress.
Finally, removing a President is not the same as punishing a citizen
in a court of law. Like any citizen, a President can be fully punished
in court after he leaves office, and the failure to convict him in an
impeachment trial in no way precludes a subsequent criminal
prosecution.
If a President is subject to the law, then he is clearly not above
it, as some have claimed.
Some also argued that since the President's oath requires him to
faithfully execute the laws, any violation of those laws should thereby
warrant his removal from office. While that argument may be appealing,
it simply was not the standard adopted by the framers. Their standard
was narrowly confined to treason, bribery, or other high crimes or
misdemeanors. And it is against this standard that we are called upon
to judge the conduct of this President.
I believe the President lied. When he came before the television
cameras and addressed the American people, wagging his finger and
denying that he had sexual relations with a subordinate employee, he
lied. This offensive public conduct, which has caused me the greatest
personal anguish, is an act that will be forever seared into our
Nation's memory. His deception was calculated, politically motivated,
and directed at each and every one of us.
Though clearly reprehensible, this lie did not violate any law and
was not the subject of any article of impeachment. So, while I am
convinced that the President lied to us, I am not convinced beyond a
reasonable doubt that he lied to the grand jury, which is the sole
basis for the first of the two impeachment articles.
Despite the apparent strength of the evidence, the House of
Representatives defeated an article alleging perjury in the President's
civil deposition. They voted to impeach the President for perjury based
solely on his testimony before the grand jury. Article I alleges that
the President willfully provided perjurious, false, and misleading
testimony to the grand jury.
I listened intently to the arguments presented by both sides, and I
have read the President's grand jury testimony carefully. In my
judgment, the President's grand jury testimony ultimately boiled down
to a few irreconcilable discrepancies, and while often slippery, hair-
splitting, legalistic, and, in the words of the President's counsel,
``maddening,'' was not perjurious beyond a reasonable doubt.
On article I, therefore, I will vote not guilty.
Article II alleges obstruction of justice, a crime difficult to prove
because it requires a determination beyond a reasonable doubt about
what a person intended by his words or deeds.
In this case, it is extremely difficult to determine whether the
President's intentions were to obstruct justice in a civil or a
criminal proceeding, or whether his intention was to mislead his family
and the Nation about an embarrassing personal relationship. While his
intent is difficult to prove, the unconstitutional bundling of charges
contained in article II is clear to me.
Article I, section 3, of the Constitution clearly requires that in an
impeachment trial no person shall be convicted without the concurrence
of two-thirds of the Members present. The rule of law requires
concurrence by two-thirds.
While article I, in my judgment, violates this constitutional
requirement, at least it focuses on a single event. Article II is
flagrantly worse. Drafted in the disjunctive and containing 7 subparts
each alleging a separate act of obstruction of justice, the bundling of
these allegations would allow removal
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of the President if only 10 Senators agreed on each of the 7 separate
subparts. If, for example, 10 Senators voted to convict based solely on
subpart 1 and a different group of 10 Senators voted to convict based
on subpart 2, and so on, it would be possible to reach a total of 70
votes for conviction. But that total would not have been reached with a
two-thirds concurrence on any individual subpart.
Such a pleading is not allowed under the Federal Rules of Criminal
Procedure and would be thrown out by every Federal court in the land.
Surely the founders did not envision removing a President from office
if no more than 10 Senators could agree on a given allegation.
Trying to justify this unconstitutional bundling by citing a similar
approach in the Richard Nixon case is weak because the Nixon charges
were not presented to the Senate. Trying to justify this
unconstitutional bundling by citing the Senate impeachment rules is no
more compelling since our rules cannot conflict with the Constitution.
We simply cannot remove a President from office with an article of
impeachment that so clearly violates constitutional standards that we
are required by law to follow.
On article II, therefore, I will vote not guilty.
Thus, I will vote not to convict on both articles because the
factual, legal, and constitutional standard for removal was not met.
I am not prepared to say, however, that perjury and obstruction of
justice are not impeachable offenses, because I believe it would be a
mistake to attempt to do that which the founders chose not to do--to
define what is impeachable with specificity.
For impeachment to remain what our forefathers intended it to be--a
deterrent to misconduct and a means to protect the Republic--future
generations should be free in each case to examine the facts, apply the
law, and follow the Constitution and to render impartial justice. That
is the impeachment process we have inherited from those who came before
us, and that is the precedent we bequeath to the ongoing chronicles of
American history.
The legacy of this trial, I believe, is not what becomes of one man.
This trial is larger than one man. The legacy of this trial is that the
Senate, sitting as a Court of Impeachment, proved worthy of the faith
of our founders to render justice.
No matter what judgment is rendered, however, this trial cannot
exonerate the President. A vote against conviction is not a vote to
condone his lying to the American people, nor does it suggest that any
Member of the U.S. Senate believes that perjury or obstruction of
justice charges are anything but serious. They are very serious
charges.
Sadly, the vote we are poised to take on these charges has divided
our Nation. In the eyes of too many of our citizens, this vote will
represent either a nonmilitary coup attempt against a duly elected
President or a victory for those bent on accelerating the moral decline
of the Nation. In truth, this vote represents neither. A vote for
acquittal indicates nothing more and nothing less than what it says.
The case to remove the President from office was not proven.
We sit in judgment today not because we are free from human
failings--I certainly have my share--but because our forefathers
bestowed upon the Senate the responsibility of protecting the Republic
by judging the President when articles of impeachment are exhibited by
the House of Representatives. In doing so, they carefully and
deliberately limited the scope of our judgment.
We are judging the President in his capacity as President, and we are
called upon to decide only one issue--whether he should be removed from
office. The Senate does not have the duty nor the capacity to rule on
the broader character of the President. In our limited role, we are not
called upon to judge him as husband and father, for that is the
province of his family. We are not called upon to judge him as accused
citizen, for that is the province of the courts. We are not called upon
to judge him as sinner, for that is the province of God. And we are not
called upon to judge his legacy, for that is the province of history.
Mrs. BOXER. Mr. Chief Justice, thank you for your dignity. And to
both our leaders, thank you for your patience.
Colleagues, I will vote to acquit the President, and it is not
because his poll numbers are high or because the economy is good. And
it is not because Bill Clinton is a Democrat.
When I was in the House of Representatives, an impeachment resolution
was filed against Republican President Ronald Reagan--an impeachment
resolution because of Iran-Contra, which involved selling arms to a
terrorist nation with the proceeds going to the Nicaraguan contras.
This was against the law of the United States of America--against the
law--against the rule of law.
I voted for that law, but I never went on that impeachment resolution
against Ronald Reagan because I felt it would have hurt the country and
because there was no bipartisan support for it.
I think the same should be said of this impeachment. There is no
bipartisan support for it and the President's removal would hurt the
country.
One more preface: It has been said that what the President did in
this case was worse than what Senator Packwood did.
In this case, we have a consensual affair, wanted by both parties. It
was irresponsible and indefensible: a young woman, a relationship wrong
in every way, a president trying desperately to hide the affair.
The young woman was secretly tape recorded and forced to testify. Her
mother was forced to testify.
The more than 20 women who complained about Senator Packwood alleged
forced sexual misconduct against them. One victim was 17 years old.
They wanted to tell their stories.
So each of us can decide for himself or herself the relationship of
one case to the other. But surely that is not the issue before us.
Neither is the Paula Jones case, which was thrown out of court by a
Republican female judge who ruled that there was no sexual harassment
by the President. Testimony about a consensual sexual affair was
immaterial.
Yes, the case was later settled, but that doesn't change its history:
no sexual harassment, determined by a Republican female judge.
So, Senator Packwood is not before us, nor is Paula Jones. What is
before us is the sanctity of the Constitution.
Let me now offer an apology to my constituents for voting in favor of
the Independent Counsel Law in its current form--a law that has given
one person an unlimited budget, unlimited scope, unlimited time and an
unlimited ability to hurt people, and to hurt them badly.
The Senate is now sitting as a court of impeachment, primarily
because, for over four years, we had an Independent Counsel spending
more than $42 million searching for an impeachable offense.
And while I condemn the President's behavior, it was no excuse for
the Ken Starr witchhunt, which went from a real estate deal, to several
other fruitless investigations, to a sex deal built around illegally
recorded phone conversations with someone named Linda Tripp. Linda
Tripp, who says she's like all of us. Heaven help us if all of us act
like Linda Tripp, secretly recording our dear friends. What a country
this would be!
I also want to comment on one other matter which is personal to me,
and that is my daughter's family connection to the First Lady.
While none of my Senate colleagues questioned the propriety of my
participation in the impeachment matter--for which I thank you all--I
was the target of a barrage or questions by the media and others
outside this body.
I just want to say that yes, my daughter is married to the First
Lady's brother, a brother who loves and admires his sister and doesn't
want to see her hurt. So, I am far from being a defender of the
President's behavior.
But I am a fierce defender of our Constitution.
That is why I have joined a small number of senators, led by the
distinguished senator from West Virginia, in fighting amendments to
that precious document.
Believe me, being against the line-item veto and the balanced budget
amendment were not popular positions in my state; my positions made my
reelection tougher. But I have never
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doubted that defending the Constitution is worth risking my Senate
seat, which I cherish so much.
And it is because of my deep reverence for the Constitution that I
believe we must reject the articles of impeachment before us today.
Why? Because the high crimes and misdemeanors constitutional
requirement for removal has not been met--not even close.
The Constitution does not say remove the President if he fails to be
a role model for our children. It does not say remove the President if
he violates the military code of conduct, or the Senate Ethics Code. It
does not say remove the President if he brings pain to his family.
It says very clearly that the President shall be impeached and
removed from office only for committing treason, bribery or other high
crimes and misdemeanors.
In his Commentaries on the Constitution, Justice Joseph Story
endorsed the view that ``those offenses which may be committed equally
by a private person as a public officer are not the subject of
impeachment.'' This means that presidential impeachable offenses are,
generally, acts which could not be done by anyone other than the
president.
Impeachment and removal from office was not meant to be a punishment
of the President, but rather a protection of the country from a tyrant
who would use his or her power against the people and the Constitution.
This President is not a tyrant who is threatening our democracy and
freedom or the delicate balance of powers set up by our Constitution.
So the ``high crimes and misdemeanors'' standard established by the
Constitution has not been met in my view.
We must also reject these articles because there is every reason to
doubt the House managers' case on perjury and obstruction of justice.
They have presented not one shred of direct evidence for their claims,
and the details of their circumstantial case have been decimated in
many respects. As one manager said on national television, he couldn't
win the case in a court of law as it was presented in the House.
I don't see how the case was strengthened in the Senate. In fact, I
believe that it was weakened in the Senate.
When you have clear statements by Monica Lewinsky that the President
never, ever told her to hide gifts and never discussed the contents of
her affidavit--when you have Betty Currie saying she never felt
intimated by the President and Vernon Jordan saying the job search was
never connected to anything else--it seems to me there is substantial
doubt on both counts.
That leads to another point. Rejecting these articles of impeachment
does not place this President above the law. As the Constitution
clearly says, he remains subject to the laws of the land just like any
other citizen of the United States.
As Article I, Section 3 of the Constitution says, the President
``shall . . . be liable and subject to Indictment, Trial, Judgment and
Punishment, according to Law.'' So it should be a comfort to those who
believe the President committed crimes surrounding his affair that the
President, indeed, is subject to the rule of law--our Founders made
that certain.
At this point, I want to thank Senator Tom Harkin for his challenge
to the House Managers that the Senate is not a jury. In so ruling,
Chief Justice Rehnquist, in my view, gave us the charge to look at the
big picture, and that is very important.
Part of that picture is how the House of Representatives acted in
this matter. I served in the House for ten years, and I never saw the
minority party denied a vote on an alternative of their choosing in an
important matter. Yet Democrats and moderate Republicans were denied a
vote on censure, and I believe this was a disaster for democracy in
that body.
Listen to what a Republican House Member who voted against
impeachment wrote to a constituent:
I regret that Congressional Republicans were so blinded by
their opposition to President Clinton that they voted to
impeach him rather than stand by the traditional principles
of their Party. I also regret that threats were made against
me by the Republican leadership in an attempt to keep me from
voting my conscience.
Those are the words of one of the five brave Republicans who voted
against impeachment in the House. To me that speaks volumes about the
kind of illegitimate process that got us here, and I believe in my
heart that history will judge the House proceedings very harshly.
But I believe that the Senate, if it rejects the articles in a
bipartisan way, will be viewed in a better light, and history will say
that in 1999 the Senate decided that impeachment should not be used by
one party to overturn the results of a presidential election that it
did not like.
As Chief Justice Rehnquist wrote of the Senate acquittal of President
Andrew Johnson in 1868:
The importance of the acquittal can hardly be overstated.
With respect to the chief executive, it has meant that as to
the policies he sought to pursue, he would be answerable only
to the country as a whole in the quadrennial presidential
elections, and not to Congress through the process of
impeachment.
If I may, Mr. Chief Justice, I understand from your wise words that
the President does not and should not serve at the pleasure of the
House and Senate.
The Senate did the right thing in 1868--and by its decision not to
remove the President, it brought stability to our nation. We should do
no less now.
Voting against the articles of impeachment is the right thing to do
to keep faith with our Constitution and to keep faith with our
democracy for generations to come.
Mr. MACK. Mr. Chief Justice, today the Senate finds itself at an
unlikely crossroads in American history. We have assembled as a court
of impeachment to sit in judgement of our President, William Jefferson
Clinton, on the charges of perjury and obstruction of justice. We have
worked our will in this matter according to a process rooted in English
common law, written by our Founders into the Constitution, and
exercised against the Chief Executive only once before in American
history.
This is not a task to be taken lightly, and we have not arrived
easily at our decision. The Senate today is engaged in weighty
struggles that go to the very heart of our private and public lives. We
are at an unlikely juncture between principle and public opinion,
repentance and the rule of law, perception and punishment, forgiveness
and findings of fact. These are difficult issues, Mr. Chief Justice. We
approach our task fully aware that our decisions today will reverberate
across this great land and throughout the length and breadth of
history.
There has been much discussion about how we got here. And while the
answer to that question may be varied in all its permutations, then
amplified in the echo-chamber that is our modern public debate, it can
be said with assurance that this whole unseemly business began when the
President, caught in an improper private act, took deliberate steps to
conceal it. And for all the other parties blamed for our presence here
today--the media, the independent counsel, the political factions
opposed to the President, the House of Representatives--it must be
clearly understood that this process began with the deliberate and
wilful acts of the President of the United States to lie in a Supreme
Court sanctioned civil rights inquiry and obstruct the due course of
justice. It all started with the high-handed disregard for the law
exhibited by the nation's Chief Executive. It ends today.
Mr. Chief Justice, when the sound and fury of the moment has passed,
and this episode can be observed with the objectivity that comes with
the passage of time, I believe it will be self-evident that we have
followed the Constitution to the best of our abilities. In a free,
democratic society such as ours, the foundation of freedom is an
independent judiciary, the rule of law, and most importantly the
Constitution. Our Constitution is the framework for American society,
and I have been constantly reminded throughout these proceedings of the
importance of our duty to honor the dignity of this document.
The magnitude of this undertaking deserves no less than a sincerity
of purpose and an absolute confidence in the wisdom of our Founders.
The American people should not be swayed by those who argue the
prominence of this case--in all its tawdry and unseemly detail--has
made unnecessary a thorough process of determining the truth.
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We stand in judgement of the President. Our decisions will be
remembered throughout history. Our precedent may be followed by future
Senates. Yet, still we have heard throughout this exercise the
unfortunate call to end these proceedings, save a few weeks, and inject
the politics of expediency into a monumental Constitutional
undertaking. I find these arguments display a remarkable lack of
confidence in the sound and just system outlined by our Founders to
address very serious charges levied against the President of the United
States.
I am grateful the Senate rejected those calls and put in place a
responsible mechanism for the thorough airing of fact and argument. I
am confident our process during this trial, though far from perfect,
was appropriate. We allowed time for detailed presentations on the part
of the House of Representatives and the President. We held an extensive
question-and-answer session to review and clarify matters presented by
both sides. And we have allowed for the appropriate and necessary
deposition of key witnesses. Unfortunately, the simple fact is that the
outcome of this matter was, in many minds, predetermined. In spite of
this, the integrity of the process was, time and again, fought for and
protected. Now--today-- it only remains for us to cast our votes.
Background
I wish to address my remarks not so much to the people listening in
this room today, but rather to those future generations who will look
back at the record and transcripts for guidance, direction, and a more
thorough understanding of the process that played out in this chamber
during the first two months of 1999. I mentioned earlier the
significance of the Constitution. I cannot stress enough the essential
role that this historical document has played in the trial of William
Jefferson Clinton. This document laid the framework for what has taken
place. Be it understood, the Senate tried the President because the
Constitution requires that we do so. There is no exception for popular
Presidents, such as William Jefferson Clinton. The Constitution
provides for this process to be applied to everyone evenhandedly.
Although the trial of this President was not a trial in the
traditional sense, it is important to note that if the impeachment of a
President presents itself again, there is nothing restricting a more
traditional trial from occurring. In fact, I would encourage future
Senates to utilize a judicial proceeding more closely aligned to a
typical courtroom trial. Every impeachment trial will have its own
dynamic environment, determined by the political and social context in
which it occurs. The trial of William Jefferson Clinton occurred in a
prosperous time. The citizens of this nation are largely satisfied, the
President enjoys consistently high approval ratings, and the economy is
outstanding. Impeaching and then trying the President has not
engendered popular public support. I make these observations for future
generations who reflect on this process simply to explain the mood of
our nation and the political environment in which this proceeding
occurred. As a result, we should not deceive ourselves into believing
that public opinion did not impact this process. I would like to
believe, however, that the competing demands of expediting the process
versus honoring our Constitutional duties created a struggle that
produced the most fair trial possible under the circumstances.
Accordingly, the process we followed and the rules complied with may
not be appropriate for the next trial. The decisions made in this
environment should not be considered to set precedent that is
inflexible. In fact, the precedent we set deserves thoughtful
consideration and reasoned critique when reflected upon in the years
and decades to come.
In that light, our official duties in this matter began on December
19, 1998, when the United States House of Representatives impeached the
President, William Jefferson Clinton. After listening to the evidence,
reading the trial memorandums and the record, and carefully considering
the arguments presented by both the House Managers and White House
counsel, I believe the President is guilty of both articles.
Before I address the merits of the case against the President, I
think it is necessary to discuss whether the crimes of perjury and
obstruction of justice constitute high crimes and misdemeanors as
contemplated by the Framers of our Constitution. This topic has been
the subject of much controversy in the past months.
It is true that private acts are the genesis of the matter before us.
Had the acts stayed private, we would not be here today. The President,
however, brought these private acts under our public purview and
created a matter of public concern when he used his position and his
power to deny and obstruct the civil rights of Paula Jones.
Contrary to what has been asserted, this is not just a case about a
sexual encounter between the President and a young White House intern.
This instead is a case about depriving Paula Jones, an individual who
sought and was granted the right to file a civil rights action against
the President, of her constitutional right to a day in court, a right
which nine justices of the Supreme Court unanimously decided that she
deserved. And--almost unbelievably--on the heels of this Supreme Court
mandate, the President seemed to strengthen his efforts to deny Paula
Jones' civil rights. Once these acts moved into the public arena,
forming the basis for charges as serious as perjury and obstruction of
justice, it is my opinion these acts became high crimes and
misdemeanors as envisioned by our Founders. While our only precedent
involves the impeachments of federal judges, I am satisfied the
standards used in these cases also apply to the charges levied against
the President.
The President of the United States is the head of the Executive
Branch and the Chief Law Enforcement Officer of this nation. When the
Founding Fathers established our tripartite system of government, it
was decided that the three branches of government would operate as
checks and balances on one another. As a result, no branch would be
more powerful than the other. This structure is at the very core of our
success as a Republic.
By obstructing justice and lying under oath, William Jefferson
Clinton violated his duty as Chief Law Enforcement Officer,
disrespected the Judicial Branch of the government, and undermined the
foundations of our judicial system's truth-seeking process. If I were
to determine that the President's actions did not constitute high
crimes and misdemeanors, I would be asserting that the Executive Branch
and the Office of the Presidency are more important than the Judicial
Branch, and that the President of the United States is not obligated to
abide by the rule of law. As a citizen and as a Senator, I cannot, in
good faith, ignore the separation of powers argument. In my view, the
President's conduct was in violation of the rule of law and his actions
have betrayed the trust of the people of the United States. It is my
firm belief that the serious offenses committed by William Jefferson
Clinton are high crimes and misdemeanors and warrant impeachment,
conviction, and removal from office.
Amazingly, we continue to hear the argument that although the
President's actions rise to the level of high crimes and misdemeanors,
he should not be removed from office. The Constitution provides if a
President is found guilty of high crimes, then he is automatically
removed from office. Our Constitution does not allow for finding the
President guilty of high crimes and misdemeanors, and then permitting
him to stay in office. Only an amendment to the Constitution would make
such a step permissible.
There were several points during the trial of the President when I
had a visceral reaction to certain charges raised by the House
Managers. This reaction occurred, each time, at precisely the point
when the Managers discussed the President's strategy to attack the
character of Monica Lewinsky, Kathleen Willey and others. The callous
disregard for the soul of another human being and the unsympathetic
wounding of the character of another carried out by the President using
the apparatus of the Presidency is chilling and deserves condemnation
by those who cherish freedom.
Before I proceed to my view of the specific articles, it may help to
explain that I approach this process unencumbered by a law degree.
While that in no way gives me license to disregard the legal aspects of
the matter
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before me, it does permit me to translate legal concepts into layman's
terms. As I worked my way through the voluminous record and sat through
days of the trial, I found it easiest to understand this case if I
approached it in chronological order. Given that, I will discuss the
Obstruction of Justice count first, because in the course of this
tragic series of events, I believe the President started down this
slippery slope by the actions he took, as opposed to the words he
spoke. Sadly, the words, uttered under an oath to tell the truth, came
later.
Obstruction of Justice
I view obstruction of justice, in its most simple terms, as actions
that somehow interfere with the fact-finding or truth-seeking mission
of a lawsuit. The record before us is replete with examples which, in
my opinion, prove that the President of the United States intended to,
and did in fact, obstruct justice. Specifically, I believe the
President obstructed justice by corruptly engaging in, encouraging, and
supporting a scheme to conceal evidence that had been subpoenaed in the
Jones case; by encouraging Ms. Lewinsky to file a false affidavit in
the Jones case; by allowing his attorney to make false and misleading
statements to a federal court judge; by relating false and misleading
statements to Ms. Currie and presidential aides in order to influence
their testimony; and by intensifying and succeeding in an effort to
secure job assistance for Ms. Lewinsky in order to encourage her to
testify favorably toward the President in the Jones case.
I believe the first example of obstruction occurred when the
President was issued a subpoena in the Paula Jones case. This case was
a federal civil rights action in which the President was sued for
sexual harassment, hostile work environment harassment, and intentional
infliction of emotional distress. As part of the discovery process in
the Jones case, subpoenas were issued to several former state and
federal employees suspected of having sexual relations with the
President. Included in these was a subpoena which requested the
President to produce the gifts he had received from Monica Lewinsky.
This request was denied by the President on five different occasions,
as ultimately five separate subpoenas were issued. As a last resort,
Judge Wright granted Paula Jones' motion to compel the President to
produce gifts. The President, however, still did not turn over the
gifts and instead replied that he had none. The President's
unwillingness to comply is ironic given that later--in his grand jury
testimony--he stated that he receives and gives hundreds of gifts a
year, and that the whole gift-giving concept is inconsequential to him.
The President's behavior belies his testimony.
The gift concealment continued beyond the President refusing to turn
over the presents Ms. Lewinsky gave him. Ms. Lewinsky was also
subpoenaed in the Jones case and was asked to turn over gifts the
President had given to her. According to Ms. Lewinsky, when she
suggested to the President that the gifts be hidden, he responded that
he would have to ``think about it.'' I am aware that the record does
not reflect a specific directive by the President to Ms. Lewinsky to
hide the gifts. My reading of the record and my interpretation of the
evidence, however, leads me to the inescapable conclusion that the
Chief Law Enforcement Officer of the country, and a well-educated
lawyer to boot, did not fulfill his duty to turn gifts over himself and
did not abide by his duty again when Ms. Lewinsky asked him what she
should do with her gifts.
There is some confusion over exactly how the President's secretary,
Ms. Currie, came to be in possession of the gifts that the President
gave Ms. Lewinsky. I find it compelling, however, that when the
President and Ms. Lewinsky met on the morning of December 28, Ms.
Lewinsky suggested that the gifts the President had given to her should
be hidden. A few hours later phone calls were made from Ms. Currie to
Ms. Lewinsky. On that same afternoon, Ms. Currie arrived at Ms.
Lewinsky's residence to pick up the gifts, and ultimately, the gifts
were found under Ms. Currie's bed. In my view, this is sufficient
evidence to connect the President's involvement with the gift
concealment. I find it hard to believe that Ms. Currie would on her
own, without influence from the President, decide to hide Ms.
Lewinsky's gifts.
As an aside, I feel compelled to point out a pattern that seems to
have evolved during this administration. The hiding of evidence in a
personal residence harks back to the mysterious reappearance of the
Whitewater billing records in the White House residence several years
ago. There seems, in my mind, a proclivity on the part of the President
to cause the disappearance of key evidence whenever wrongdoing is
alleged. Hence, gifts under the bed equate to billing records in the
White House residence.
In view of the President's actions up to this point, I am convinced
the President was involved in Ms. Currie's receipt of the gifts. The
simple truth is that, in spite of repeated requests, the gifts the
President received were never produced and only some of the gifts given
to Ms. Lewinsky were produced. In my view, it was no accident that
gifts which were not handed over were instead hidden beneath the
President's secretary's bed.
As the Jones case progressed, so did the President's determination to
obstruct justice. As fate would have it, Monica Lewinsky was named as a
witness in the civil rights action. Upset and scared, the President
suggested to Ms. Lewinsky that if she were subpoenaed she could file an
affidavit in an effort to avoid testifying in a deposition. Ms.
Lewinsky did in fact file an affidavit. The affidavit was claimed by
the President to be truthful because of what Ms. Lewinsky understood
``sexual relations'' to mean at that time.
While the President maintains the truth of the affidavit even until
this day, Ms. Lewinsky testified before the grand jury that, in fact,
it was not a truthful affidavit. Specifically, she testified before the
grand jury that she was willing to submit a false affidavit under the
penalty of perjury because she did not think that her affair with the
President was anyone's business. I assume that we would still not have
Ms. Lewinsky's admission that the affidavit was false, but for the fact
that she was in fear of being prosecuted for perjury herself.
I think the President's behavior in regard to the affidavit of Ms.
Lewinsky fits squarely in the definition of obstruction of justice. I
am not impressed with the President's argument that this conduct became
``irrelevant'' when Judge Wright later determined that the Lewinsky
matter was not essential to the Jones lawsuit.
On the contrary, I am compelled by the fact that when the President
was weaving this contorted web, it was his clear intent to conceal his
relationship with Ms. Lewinsky. At the time the Lewinsky affidavit was
prepared, the President could not have known Judge Wright would later
determine that the Lewinsky matter was unrelated to the Jones lawsuit
due to the consensual nature of the President and Ms. Lewinsky's
relationship. Rather, the President was making every effort to see that
nothing about his relationship with Ms. Lewinsky was disclosed.
The next crucial event arrived on the day of the President's
deposition in the Jones case. At the deposition, the President's
attorney, Bob Bennett, stated that Ms. Lewinsky's affidavit was true.
Specifically, Mr. Bennett stated that ``there is no sex of any kind,
shape, or form.'' The President claims, not surprisingly, that he was
not paying attention when his attorney made these statements, and in
addition, that the Lewinsky affidavit was technically true because the
word ``is'' means ``at this time.''
My review of the President's videotaped testimony leads me to believe
the President was paying attention to Mr. Bennett. When watching the
videotape, it is apparent to me the President's attention is riveted on
every person who speaks. He is attentive and his eyes track the
speakers as they engage in dialogue. I believe the President purposely
allowed Mr. Bennett to mislead the court. Part of the record before us
includes a letter from Mr. Bennett asking the trial court not to rely
on the affidavit or his comments regarding the document. Thus, it
appears Mr. Bennett also believed that the President allowed him to
mislead the court.
Moreover, I am not persuaded by the President's argument that the
affidavit
[[Page S1515]]
was technically true because ``is'' means ``at this time.'' I am
offended by the President's lack of respect for the truth-seeking
process our justice system is designed to foster and protect. Indeed, I
am disturbed that the President would attempt to manipulate each and
every word. To take the President's interpretation of ``is'' to its
logical conclusion that nothing was occurring at that very minute is
ridiculous.
Clearly, things did not go well at the Jones deposition. In fact, the
President admitted later in his grand jury testimony that he was
surprised by the depth of the inquiry regarding Monica Lewinsky. This
probing questioning made the President increasingly desperate. On
Saturday, after the President's deposition, he called his secretary,
Ms. Currie, and asked her to come to the White House the following day.
Both the President and Ms. Currie testified that such a Sunday meeting
was out of the ordinary. When Ms. Currie arrived, the President called
her into the Oval Office and made several statements, which he later
described as questions, regarding Monica Lewinsky. Ms. Currie testified
before the grand jury, that the President said the following to her:
I was never really alone with Monica, right?
You were always there when Monica was there, right?
Monica came on to me, and I never touched her, right?
You could see and hear everything, right?
She wanted to have sex with me, and I cannot do that.
This conversation was repeated between the President and Ms. Currie
again two days later. Though Ms. Currie testified that on both
occasions she felt ``no real pressure'' to agree with the President,
she did nonetheless think he wanted her to agree with him. And, agree
she did.
Lawyers for the President have defended his actions by stating that
the President was refreshing his memory with Betty Currie because he
was aware that the media frenzy regarding Monica Lewinsky was about to
break loose. I find this explanation unconvincing for numerous reasons.
The first, and perhaps most obvious reason is that a person does not
typically refresh his recollection with statements he knows to be
false. It is beyond belief that the President could assert such a
defense. He knew he was alone with Ms. Lewinsky, and even he testified
he would have been an ``exhibitionist'' if he had conducted these acts
in public view. In fact, when asked during the grand jury proceedings
if Ms. Currie was nearby when he and Ms. Lewinsky had intimate contact,
the President responded: ``I never--I didn't try to involve Betty in
that in any way.'' Further, the President's statements to Ms. Currie
implying that she was always present, and that she could see and
hear everything, defy logic by indicating that Ms. Currie was always
with the President and Ms. Lewinsky. The President clearly knew that
was not the case.
The sum of this evidence convinces me the President was not only
obstructing justice by tampering with a potential future witness, but
also violating the gag order that had been put into effect by Judge
Wright in the Jones case. The irony here is that one reason Ms. Currie
became a potential witness was due to the President's own urging.
Throughout the Jones deposition the President repeatedly offered ``you
should ask Betty.'' Then, on the very next day following these remarks,
he summoned Ms. Currie to the White House and asked and answered his
own leading questions. Importantly, the following week, Ms. Currie was
subpoenaed to testify in the Jones matter.
I have also concluded the President's conversations with his aides
concerning his relationship with Ms. Lewinsky constitute witness
tampering. The President told his aides, John Podesta, Sidney
Blumenthal, and Erskine Bowles, misleading and untrue statements about
his relationship with Monica Lewinsky. In fact, Mr. Podesta testified
in the grand jury proceedings that the President was extremely explicit
in his comments about denying any physical relationship and any sexual
contact with Ms. Lewinsky.
Although the President's approach to this group of potential
witnesses differed from his approach to Ms. Currie in that he did not
ask this group to agree with his statements, I find these conversations
equally disturbing. To mislead his key aides, who he admitted might be
called to testify before the grand jury, demonstrates that there are no
bounds on the President's attempts to protect himself. He was willing
to mislead any person who might have blocked his intricate obstruction
plan.
In addition, I believe that the President obstructed justice by
intensifying and succeeding in an effort to secure job assistance for
Ms. Lewinsky in order corruptly to prevent her from truthfully
testifying in the Jones case. Although the President promised Ms.
Lewinsky assistance with her New York job search prior to her name
appearing on a witness list in the Jones case, it seems odd and much
too coincidental that the President's assistance intensified after he
learned that Ms. Lewinsky was on the witness list.
In October, Ms. Lewinsky expressed her interest to the President in
moving to New York and finding a job. In early November, Ms. Lewinsky
had a meeting with Vernon Jordan to discuss potential jobs in New York
City. Ms. Lewinsky testified before the grand jury that this meeting
resulted in no activity taking place. However, unbeknownst to Ms.
Lewinsky, her job search would take a 360 degree turn in December.
Possibly the most important day was December 6, 1997, when the
President learned that Ms. Lewinsky's name had appeared on a list of
potential witnesses in the Jones case. A little over a month later, Ms.
Lewinsky was offered and accepted a job with Revlon in New York City.
Because I feel the sequence of events that took place in December is
extremely telling; I will lay these events out. On December 6, the
President learned Ms. Lewinsky was a potential witness in the Jones
case. On December 7, the President and Mr. Jordan met at the White
House. According to both parties, however, Ms. Lewinsky was never
discussed. On December 8, Mr. Jordan received Ms. Lewinsky's resume by
courier. On December 11, Mr. Jordan met with Ms. Lewinsky and made
phone calls to various New York companies on her behalf. On December
17, after a job in New York seemed like a much more likely prospect for
Ms. Lewinsky, the President telephoned Ms. Lewinsky at 2:00 a.m. to
inform her that her name was on a witness list in the Jones case. On
December 19, Ms. Lewinsky was served a subpoena in the Jones case. On
December 31, Ms. Lewinsky and Mr. Jordan ate breakfast together at the
Park Hyatt Hotel. On January 7, Ms. Lewinsky signed an affidavit to be
filed in the Jones case in which she denied having sexual relations
with the President. On January 8, Ms. Lewinsky interviewed in New York
with MacAndrews and Forbes, a company recommended by Mr. Jordan. On
that same day, Ms. Lewinsky informed Mr. Jordan that the interview did
not go well. Mr. Jordan made a call to the Chairman of the Board and
Chief Executive Officer at MacAndrews and Forbes. On the morning of
January 9, Ms. Lewinsky was given a second interview. On that same
morning, Ms. Lewinsky was given an informal job offer, which she
accepted. On January 13, 1998, Ms. Lewinsky received a formalized job
offer.
It is apparent from the above time line that the President's efforts
in finding Ms. Lewinsky a job in New York intensified at an excessive
rate once it was discovered that Ms. Lewinsky was going to be a witness
in the Jones case. The President was well aware of the fact that Ms.
Lewinsky's testimony could be harmful to him, and thus, it was in his
best interest to get Ms. Lewinsky a job in New York as soon as
possible. It seems to be no coincidence that the President did not tell
Ms. Lewinsky that she was a potential witness until eleven days after
he learned of this news. Rather, it appears the President was using
these eleven days to ensure that Ms. Lewinsky understood the President
was her friend and was trying to assist her in her New York job hunt.
Interestingly, Ms. Lewinsky was not informed of her witness status
until after interviews in New York had been scheduled for her by Vernon
Jordan.
Perjury Before The Grand Jury
The President is also charged with making perjurious, false, and
misleading testimony to a Federal grand jury concerning his corrupt
efforts to influence the testimony of witnesses and to impede the
discovery of evidence in the Jones civil rights action. My review of
this charge, and the evidence offered,
[[Page S1516]]
leads me to conclude that the President engaged in several separate
acts of perjury. Specifically, the President lied under oath regarding
the nature and details of his relationship with Ms. Lewinsky; lied
regarding his conversation with Ms. Currie on the day following his
Jones deposition; lied regarding his knowledge of Ms. Lewinsky's
affidavit in the Jones case; lied regarding statements made to aides
about his relationship with Ms. Lewinsky; lied regarding prior false
and misleading statements he allowed his attorney Bob Bennett to make
to a federal judge in the Jones case; and lied when he denied engaging
in a plan to hide gifts that had been subpoenaed in the Jones case.
After the Jones deposition, on January 26, 1998, the President went
on national television and declared: ``I did not have sexual relations
with that woman, Miss Lewinsky.'' In addition, he denied that he urged
her to lie about the affair. Over the next seven months, the President
continued to deny the relationship. In the face of mounting evidence to
the contrary, the Office of the Independent Counsel sought and received
permission from the Attorney General to expand its investigation to
include whether the President lied under oath in his Jones deposition.
Seven months later, on August 17, 1998, the President appeared before
a grand jury to answer questions regarding his Jones deposition and his
alleged affair with Ms. Lewinsky. Prior to his testimony, the President
took a solemn oath to tell the truth. Specifically, when asked during
the grand jury proceedings what this oath meant to him, the President
stated: ``I have sworn on an oath to tell the grand jury the truth, and
that's what I intend to do.'' Moreover, the President stated: ``I will
try to answer, to the best of my ability, other questions including
questions about my relationship with Ms. Lewinsky; questions about my
understanding of the term ``sexual relations,'' as I understood it to
be defined at my January 17, 1998 deposition; and questions concerning
alleged subornation of perjury, obstruction of justice, and
intimidation of witnesses.''
In my opinion, however, the President violated his stated intention
to answer questions honestly and to the best of his ability. Perjury is
defined by the United States Code as ``whoever under oath in any
proceeding before or ancillary to any court or grand jury of the United
States knowingly makes any false material declaration or makes or uses
any other information, including any book, paper, document, record,
recording, or other material, knowing the same to contain any false
declaration.'' See 18 USC s.1623. I believe that the President's
statements fall within the above definition because his statements were
both false and material to the proper inquiry of the grand jury.
First, the President gave false and misleading testimony during the
grand jury proceedings concerning the nature and details of his
relationship with Monica Lewinsky. On August 17, 1998, the President
read a prepared statement to the grand jury as a response to the
question of whether he was physically intimate with Monica Lewinsky.
The prepared statement said:
When I was alone with Ms. Lewinsky on certain occasions in
early 1996 and once in early 1997, I engaged in conduct that
was wrong. These encounters did not consist of sexual
intercourse. They did not constitute sexual relations as I
understood that term to be defined at my January 17, 1998,
deposition. But they did involve inappropriate intimate
contact.
These inappropriate encounters ended, at my insistence, in
early 1997. I also had occasional telephone conversations
with Ms. Lewinsky that included inappropriate sexual banter.
I regret that what began as a friendship came to include
this conduct, and I will take full responsibility for my
actions.
During Ms. Lewinsky's grand jury testimony, she stated that the
President had contact with various parts of her body. Even under the
limited interpretation that the President has given the Jones
definition of ``sexual relations,'' the contact between the President
and Ms. Lewinsky, as testified to by Ms. Lewinsky, constituted sexual
relations on the part of both parties.
Before the grand jury, the President referred to his prepared
response nineteen times in order to avoid providing honest and complete
answers to the questions posed. By referring to his prepared statement,
the President asserted that his encounters with Ms. Lewinsky did not
constitute ``sexual relations.'' The fact is that the evidence
overwhelmingly affirms that the President had sexual contact with Ms.
Lewinsky and his attempts at legal hairsplitting to maneuver around the
truth failed.
To address part of the perjury charge creates the need to resolve the
credibility conflict between the President and Ms. Lewinsky. By finding
that the President committed perjury in regard to testimony concerning
the nature and details of his relationship with Ms. Lewinsky, it is
clear that I find the testimony of Ms. Lewinsky to be more honest and
forthright. Some may question why I believe the testimony of Ms.
Lewinsky over the testimony of the President. First and foremost, I
believe Ms. Lewinsky had no motive to lie, whereas the President had
every motive to conceal the details of this intimate relationship. Not
only was his Presidency on the line, but his credibility with his staff
would be destroyed if the truth were exposed. Even more importantly,
the President's credibility is questionable because he had to fear that
discovery of the truth would cause his family immense devastation.
Furthermore, I believe Ms. Lewinsky is more credible because her
statement is corroborated. Ms. Lewinsky told the intimate details of
her relationship to her therapists, her friends, Linda Tripp, her
mother, and her aunt. Thus, it is not difficult to find that Ms.
Lewinsky is a more credible witness than the President.
I further believe the President made perjurious and misleading
statements before the grand jury when he disclosed his version of his
conversations with Betty Currie. As stated earlier, I believe that the
rhetorical questions the President asked Ms. Currie on two separate
occasions were an effort to coach a potential witness in the Jones
case. During his grand jury testimony, the President testified that he
questioned Ms. Currie because he thought the story would break in the
press, he needed to get the facts down, and he was trying to refresh
his memory. The reality is the President was never trying to refresh
his memory. Ms. Currie even acknowledged in the grand jury proceedings
that based on the way the President stated the questions and his
demeanor, she believed he wished for her to agree with his statements.
In addition, according to the President's own grand jury testimony,
he told no one of his relationship with Monica Lewinsky. Specifically,
during grand jury questioning, the President was asked with regard to
his relationship with Ms. Lewinsky: ``Had you told anyone?'' The
President answered: ``Absolutely not.'' Question: ``Had you tried, in
fact, not to let anyone else know about this relationship?'' Answer:
``Well, of course.'' Question: ``What did you do?'' Answer: ``Well I
never said anything about it, for one thing. And I did what people do
when they do the wrong thing. I tried to do it where nobody else was
looking at it.''
Thus, if the President was hiding his intimate encounters with Ms.
Lewinsky, how would Ms. Currie have been capable of refreshing his
memory on details of his secret relationship? The truth is that the
President was fully aware of the fact he touched Ms. Lewinsky.
Likewise, the President was fully aware that there had been instances
when he was alone with Ms. Lewinsky. The only reason the President
asked Ms. Currie those five infamous rhetorical questions was to
provide a false and misleading account of the events to Ms. Currie in
the hope Ms. Currie would substantiate the false testimony he gave in
his deposition. The President's grand jury testimony that he was trying
to refresh his memory was simply a story concocted to cover up the fact
that he obstructed justice. Thus, his grand jury testimony was
perjurious.
In addition to making false statements with regard to the potential
testimony of Betty Currie, the President also made false statements
with regard to tampering with the potential testimony of his aides. The
President testified to the grand jury that he said to his aides things
that were true about his relationship with Ms. Lewinsky. ``I said, I
have not had sex with her as I defined it.'' This statement is,
however, patently untrue, as White House
[[Page S1517]]
Deputy Chief of Staff John Podesta's testimony indicates. Mr. Podesta
testified that the President was explicit in stating that no sexual
contact of any kind occurred between the two parties.
Furthermore, during the grand jury proceedings, the President
testified that when he was asking Ms. Currie about the times he was
alone with Ms. Lewinsky, he was referring to 1997. The President
stated: ``Keep in mind, sir, I just want to make it--I was talking
about 1997. I was never, ever trying to get Betty Currie to claim that
on the occasions when Monica Lewinsky was there when she wasn't
anywhere around, that she was. I would never have done that to her, and
I don't think she thought about that. I don't think she thought I was
referring to that.'' The President was then asked: ``Did you put a date
restriction? Did you make it clear to Ms. Currie that you were only
asking her whether you were never alone with her after 1997?'' The
President responded: ``Well, I don't recall whether I did or not, but I
assumed--if I didn't, I assumed she knew what I was talking about,
because it was the point at which Ms. Lewinsky was out of the White
House and had to have someone wave her in, in order to get in the White
House.'' In my view, this is just one more example of the President
creating a false story to cover up the fact that his conversation with
Betty Currie constituted witness tampering.
The President also provided perjurious, false, and misleading
testimony to a Federal grand jury regarding his knowledge that the
contents of an affidavit executed by Ms. Lewinsky were untrue.
Attorneys for Paula Jones were seeking evidence of sexual relationships
the President may have had with other state or federal employees. In
this process, Ms. Lewinsky was subpoenaed as a witness. The President
suggested that Ms. Lewinsky should file an affidavit to avoid having to
testify. If the truth had been told in this affidavit, and if Ms.
Lewinsky had been honest about the nature of her relationship with the
President, Ms. Lewinsky indisputably would have been an important
witness.
The President stated before the grand jury, when asked about the
Lewinsky affidavit: ``Did I hope [Monica Lewinsky would] be able to get
out of testifying on an affidavit? Absolutely. . . Did I want her to
execute a false affidavit? No, I did not.'' The President's testimony
is not credible and is misleading in light of the fact that it was
virtually impossible for Ms. Lewinsky to file a truthful affidavit that
would have permitted the President to achieve his objective of not
having Ms. Lewinsky testify. This is just one more instance were the
President lied, misled, and violated his solemn oath to tell the truth.
In addition, the President gave perjurious testimony in regard to
false and misleading statements he allowed his attorney Bob Bennett to
make to a federal judge in the Jones case. When asked during his grand
jury testimony how he could have lawfully sat silent while his attorney
made a false statement, the President explained that he was not paying
``a great deal of attention.'' As I stated earlier, from reviewing the
President's videotaped deposition numerous times, I believe that it is
apparent that the President was indeed paying attention when his
attorney made these false statements.
Finally, in his grand jury testimony, the President stated he told
Ms. Lewinsky that if the attorneys for Paula Jones asked for the gifts,
she had to provide them. In light of the fact that all of the gifts the
President gave Ms. Lewinsky were never produced and some of the gifts
were found under Ms. Currie's bed, I do not believe that the
President's grand jury testimony regarding his conversation with Ms.
Lewinsky was truthful.
Accordingly, after considering all of the evidence, I believe that
the President is guilty of both Article I and Article II.
Conclusion
Mr. Chief Justice, the President of the United States has put the
Senate in a difficult position. His actions have caused all of us to
examine the uncomfortable details surrounding his reckless affair with
a young White House intern. But it was not his unfortunate actions with
the White House intern that brought us to this moment. Rather, it was
his wilful and deliberate attempt to cover it up in a judicial
proceeding and then lie under oath to a Federal grand jury. We are not
here because we disagree with the President's politics. In fact, I
happen to consider the President a very capable man, who has, by his
own actions, destroyed his place in history. For me to watch someone
strategically dismantle all they have worked for is disturbing, to say
the least. However, in spite of the human side of this tragedy, there
is no escaping that we are here simply because of the President's
intentionally deceptive behavior and his unwillingness to abide by the
law.
We were handed very serious charges against the President by the
House of Representatives. In disposing of this matter, we have followed
the only template we have: the Constitution and the precedent of
previous Senates. We have followed the Founders to the best of our
abilities. Despite cries all around to end the trial and ignore our
Constitutional mandate, the Senate allowed for a process rooted in the
search for truth. All sides had an opportunity to make their case,
question witnesses, and answer inquiries posed by individual Senators.
Although this journey was less than perfect, we did not fail in this
endeavor. We did not fail our Founders, we did not fail the House of
Representatives or the President, and we did not fail the American
people. I attended the meetings of the Senate, reviewed the material in
the record, asked questions of the House Managers and White House
counsel, and reviewed the depositions of witnesses. I am satisfied that
our proceedings over the past month allowed me sufficient information
to arrive at my decision.
I am convinced beyond a reasonable doubt that William Jefferson
Clinton is guilty of the charges levied by the House of Representatives
and should be removed from office. By employing that standard I do not
wish to influence others who find a different standard to be more
appropriate.
I am proud of the United States Senate and how it conducted itself
during this process. Despite extraordinary difficulty, we did our job
according to the Constitution and to the best of our ability. I am
hopeful that through this process we have provided future generations
with enough information to make an informed judgement of this
President's actions. In the end, however, history will be the final
arbiter.
Thank you, Mr. Chief Justice. I yield the floor.
Mr. FITZGERALD. As a freshman Senator, I am saddened that the first
issue I confront in my service to the people of Illinois is the
impeachment of a President of the United States. It is difficult to
imagine a task less welcome and more awesome to me. As a newly elected
Senator, I have barely begun to know the Senate, my colleagues, our
rules and procedures, our precedents, or, finally, even our duty. I
have watched you all so carefully--looking for examples, and guidance--
and wondering at the gravity of these days.
On a personal note, before I begin, I want to thank those on both
sides of the aisle--Senators who, in difficult days, have been so
gracious to a newcomer. Thank you for taking the time, and making the
effort, to welcome the newest among you. Through these hours, I have
developed a deep respect for my new colleagues, for the Senate as an
institution, and for the Constitution that has anchored our Republic
for over two hundred years. I thank God for the wisdom of the Framers,
and their ability to construct enduring institutions that allow us to
confront, peacefully, the question of whether our President should be
removed from office. We now come to the conclusion of this
Constitutional process, itself an extraordinary example of the rule of
law that makes our nation the envy of the world.
The people of Illinois have entrusted me with the duty to uphold the
Constitution, a duty I share with all of you. In addition, we share the
responsibility of abiding by the separate oath which we took in this
proceeding to ``do impartial justice according to the Constitution and
the laws.''
As a trier of fact and law, I find that the President has committed
perjury and obstruction of justice as charged in the two Articles of
Impeachment, and that those offenses constitute ``high crimes and
misdemeanors.'' I will vote for conviction on both counts.
[[Page S1518]]
I reach this decision after detailed examination of the evidence
presented, the arguments of counsel, Senate precedents, and the
impeachment clause of the Constitution.
The Standard of Proof
The initial decision I made was to determine the appropriate burden
of proof. Failure to impose a burden of proof on the House Managers
would severely weaken the Presidency, a result the Founders feared and
sought to avoid. The precedents of the Senate make it clear that there
is no single standard that each of us must apply.
The President has argued that we should apply the criminal standard
of ``proof beyond a reasonable doubt.'' In recent impeachment trials of
federal judges, a number of Senators also argued that conviction was
only appropriate if the proof met this standard. Some commentators have
suggested that Senators could use the preponderance-of-the-evidence
standard typically applied in civil cases, or some standard in between.
I have concluded that, to support a conviction, allegations must be
proven by ``clear and convincing'' evidence. The criminal standard is
not warranted, because the relief in this instance, i.e., the removal
of the President, is not punitive, but remedial. In contrast, the civil
standard would place the Presidency at too great a risk. The ``clear
and convincing'' evidence standard strikes a prudent balance, providing
sufficient protection for the authority of the Presidency and the
expression of popular will represented by the President's election,
while avoiding the risk of a President remaining in office despite
clear and convincing evidence of impeachable offenses.
Article I: Perjury Before A Federal Grand Jury
The House has presented clear and convincing evidence that the
President committed perjury when he testified before a Federal grand
jury on August 17, 1998.
On January 17, 1998, President Clinton testified in a civil
deposition in the Jones v. Clinton lawsuit, after the Supreme Court had
ruled unanimously that a civil suit against a sitting President could
proceed. After the deposition, the Independent Counsel secured the
approval of the Attorney General, and the three-judge Federal court
which superintends the Independent Counsel law, to expand his
jurisdiction to inquire into whether the President testified truthfully
in his deposition. On August 17, 1998, the President, as the target of
the investigation testified by video to a Federal grand jury in
Washington, D.C.
The President's deposition testimony in the Jones case was false in
numerous respects, and his grand jury statements that he had sought to
be completely truthful in his deposition testimony cannot be accurate.
[Grand Jury Testimony of President Clinton, 8/17/98, H. Doc. 105-311,
pp. 458-59] The falsehoods are of such a quantity and kind that a
reasonable reading of the evidence suggests the President had to know
at the time he gave his deposition in the Jones case that he was not
being truthful. His testimony to the grand jury that he intended to be
truthful at his deposition is false.
Example: the President had testified in his deposition that he
believed that, in the preceding two weeks, no one had reported to him
any conversations with Ms. Lewinsky about the Jones suit. [Jones
Deposition of President Clinton, 1/17/98, S. Doc. 106-3, Vol. 22, p.
22] In testifying to the grand jury that he was truthful in his
deposition, the President reaffirmed this portion of his deposition
testimony. [Grand Jury Testimony of President Clinton, 8/17/98, H. Doc.
105-311, p. 458] We know, however, that Vernon Jordan had, within the
two weeks prior to the President's deposition, told the President that
Ms. Lewinsky had signed her affidavit. [Deposition Testimony of Vernon
Jordan, 2/2/99, 145 Congressional Record S1241 (daily ed. Feb. 4,
1999)] The President's grand jury testimony was material to the issue
of whether the President had sought to influence the content of Ms.
Lewinsky's affidavit and thereby obstruct justice.
The President again committed perjury before the Federal grand jury
when he tried to explain why he made a series of false statements to
his secretary, Betty Currie, on two separate occasions. At his
deposition, the President was questioned about Ms. Lewinsky. The
President attempted to employ Ms. Currie as an alibi witness. In the
wake of the deposition, the President asked Ms. Currie to come to the
office on a Sunday. Once there, the President asked Ms. Currie a series
of leading questions concerning her recollection of events regarding
Ms. Lewinsky. [Grand Jury Testimony of Betty Currie, 1/7/98, H. Doc.
105-316, pp. 559-60] A few days later, the President again queried Ms.
Currie with leading questions. [Id. at p. 561]
When questioned during his grand jury testimony about the series of
leading questions he had directed to Ms. Currie, the President
responded: ``I was trying to figure out what the facts were. I was
trying to remember.'' [Grand Jury Testimony of President Clinton, 8/17/
98, H. Doc. 105-311, p. 591] He also claimed that he was only trying to
``ascertain what the facts were, trying to ascertain what Betty's
perception was.'' [Id. at p. 593]
While Ms. Currie would not say she felt pressured by the President,
she did testify that she believed that the President was seeking her
agreement with those statements. [Grand Jury Testimony of Betty Currie,
1/7/98, H. Doc. 105-316, p. 559] It is unreasonable to conclude that
the President was trying to refresh his recollection by making patently
false statements to Ms. Currie, in the days immediately following his
deposition for the Jones case. Ms. Curry could not possibly have known
the answers to some of the President's ``questions,'' and the President
clearly already knew the answers to others.
We took an oath to do impartial justice. We did not take an oath to
check our common sense at the door of this Chamber. The President's
proffered explanation of the questions he directed to Ms. Currie defies
common sense. I believe he sought, instead, to influence Ms. Currie's
anticipated testimony by imparting to Ms. Currie his preferred version
of the events. His false explanation was material to the grand jury's
inquiry and constitutes perjury.
The President also committed perjury when he testified and then
reiterated before the Federal grand jury, in answer to a question about
false accounts he gave to his aides regarding Ms. Lewinsky, that ``I
said to them things that were true.'' [Grand Jury Testimony of
President Clinton, 8/17/98, p. 106, H. Doc. 105-311, pp. 557-58]
In fact, the President said to his aides things that were false.
Presidential aide Sidney Blumenthal testified in his Senate deposition
that the President had told him that Ms. Lewinsky had threatened him,
and that she was called ``the stalker.'' [Deposition Testimony of
Sidney Blumenthal, 2/3/99, 145 Congressional Record S1301 (daily ed.
Feb. 6, 1999)] Mr. Blumenthal testified he now knows that the President
lied to him. [Id. at S1302] The President knew what he said to Mr.
Blumenthal was false because the President knew the facts. The one fact
the President did not know was that Ms. Lewinsky would produce DNA
evidence that would provide incontrovertible physical evidence to
contradict him.
The President's statements before a Federal grand jury regarding
accounts he gave to his aides of Ms. Lewinsky were false, and the
falsehoods were material to the grand jury's investigation into whether
the President had testified falsely in the Jones deposition.
Article II: obstruction of justice
The House has presented clear and convincing evidence that President
Clinton obstructed justice by engaging in a course of conduct designed
to impede, cover up, and conceal evidence and testimony related to the
Federal civil rights action brought against him.
The evidence shows that the President improperly influenced Ms.
Lewinsky to file a false affidavit in the Jones suit. I believe that
the only version of the evidence that makes sense is that offered by
the House. Thus, I conclude that the President influenced the entire
process that led to the filing of the false affidavit, from its
inception to its conclusion. He did so through direct conversations
with Ms. Lewinsky,
[[Page S1519]]
and through his close friend, Mr. Jordan, who was able to monitor the
process through an attorney that he, Mr. Jordan, procured for Ms.
Lewinsky.
Ms. Lewinsky admitted that on December 17, 1997, the President
informed her by telephone at 2 a.m. that she was on the witness list in
the Jones case, and suggested that she might avoid testifying by filing
an affidavit. [Deposition Testimony of Monica Lewinsky, 2/1/99, 145
Congressional Record S1218 (daily ed. Feb. 4, 1999)] And the President
told Ms. Lewinsky to call Betty Currie if she was subpoenaed. [Id.]
The President's assertion that he thought Ms. Lewinsky could have
avoided testifying by filing a truthful affidavit is unbelievable. I
believe that the President knew that a truthful affidavit by Ms.
Lewinsky would have ensured that she would have been called as a
deposition witness, and that her subsequent truthful testimony would
have been legally damaging to the President. In fact, in the very
conversation in which the President suggested that Ms. Lewinsky file an
affidavit, they discussed the cover stories they could use to avoid
public knowledge of the truth. [Id. at S1219]
Vernon Jordan testified in his Senate deposition that he ``was acting
on behalf of the President to get Ms. Lewinsky a job.'' [Deposition
Testimony of Vernon Jordan, 2/2/99, 145 Congressional Record S1293
(daily ed. Feb. 6, 1999)] Mr. Jordan confirmed in the deposition that
``The President was obviously interested in her job search.'' [Id. at
S1314] It was Mr. Jordan --one of the President's closest friends--whom
Ms. Lewinsky called when she was subpoenaed. Mr. Jordan met with Ms.
Lewinsky and arranged a lawyer for her. [Deposition Testimony of Vernon
Jordan, 2/2/99, 145 Congressional Record S1234-36 (daily ed. Feb. 4,
1999)] Mr. Jordan delivered Ms. Lewinsky to her lawyer's office. [Id.
at S1238] Mr. Jordan monitored the drafting and content of Ms.
Lewinsky's affidavit. [Grand Jury Testimony of Monica Lewinsky, 8/6/98,
H. Doc. 105-311, p. 920] Ms. Lewinsky herself delivered a copy of her
first signed affidavit to Mr. Jordan's office. Ms. Lewinsky testified
that she and Mr. Jordan conferred about the contents of the affidavit
and agreed to delete one portion inserted by her lawyer and make other
changes. [Id. at pp. 921-22, 1229-30 (Exhibit 3)]
Mr. Jordan kept the President informed throughout the affidavit-
drafting process. He personally notified the President that Ms.
Lewinsky had signed the false affidavit. [Deposition Testimony of
Vernon Jordan, 2/2/99, 145 Congressional Record S1241 (daily ed. Feb.
4, 1999)]
The evidence also clearly and convincingly demonstrates that after
Ms. Lewinsky's name appeared on the witness list in the Jones case, the
President, through Mr. Jordan, provided intensified assistance to Ms.
Lewinsky in finding a job in order to encourage her to file the false
affidavit. Mr. Jordan accepted responsibility for the job search and
has admitted that he and Ms. Lewinsky discussed both the job search and
her affidavit in most conversations. [Id.] Mr. Jordan attempted to
separate each aspect of his work with Ms. Lewinsky. He testified that
``[t]he affidavit was over here. The job was over here.'' [Id.]
Whatever Mr. Jordan's belief, it cannot have been lost on Ms. Lewinsky
that she had a very prominent and powerful lawyer soliciting job offers
for her at the same time she was being asked to help that lawyer's
friend, the President, who had first suggested that she file an
affidavit.
On the day after Ms. Lewinsky signed the false affidavit, Mr. Jordan
personally called the CEO of a Fortune 500 company to secure a job for
her, a job she was offered on the subsequent day. [Id. at S1241-42] On
the day that Ms. Lewinsky received the job offer, Mr. Jordan called the
President, through Ms. Currie, and left the message ``mission
accomplished.'' [Grand Jury Testimony of Vernon Jordan, 5/28/98, S.
Doc. 106-3, p. 1898] The President's own testimony in his deposition
for the Jones case followed exactly the false claims of Ms. Lewinsky's
false affidavit. While the President's lawyers encouraged the
perception that this convergence was a coincidence, I do not buy it.
The evidence is clear and convincing that the President continued to
involve Ms. Currie in his lies and obfuscation. Ms. Lewinsky testified
that on December 28, 1997, she met with President Clinton and informed
him that she had been subpoenaed, and that the subpoena required her to
produce all gifts she had received from the President. She testified
that the subpoena specifically requested a hat pin, which alarmed her.
[Grand Jury Testimony of Monica Lewinsky, 8/6/98, H. Doc. 105-311, p.
852] The President responded that the subpoena ``concerned'' him. [Id.
at p. 872] When Ms. Lewinsky asked him what she should do in response
to the subpoena for the gifts, the President answered, ``I don't
know,'' or ``Let me think about that.'' [Id.] He never gave the only
appropriate answer, which was to comply.
Ms. Lewinsky testified that later that same day, Ms. Currie
telephoned her, saying, ``I understand that you have something for
me,'' or ``the President said that you have something to give me.''
[Id. at pp. 874-75] Ms. Currie had an unclear memory about this
incident, but said that ``the best [she] remembered,'' Ms. Lewinsky
called her. [Grand Jury Testimony of Betty Currie, 5/6/98, H. Doc. 105-
316, p. 581]
Ms. Lewinsky's testimony that Ms. Currie instigated the retrieval of
the gifts is credible and convincing. In contrast, Ms. Currie's
testimony that Ms. Lewinsky instigated the retrieval is not persuasive.
I do not believe that the President's personal secretary would have
acted upon a request from Ms. Lewinsky to retrieve the gifts without
asking the reason for such an exchange or informing the President of
the request. It is too bizarre that she would simply pick up a box of
gifts and deposit them under her bed. It defies a common-sense reading
of the evidence and the evidentiary narrative.
The evidence is also clear and convincing that the President
obstructed justice by coaching Ms. Currie, a potential witness in the
Jones case, to provide false testimony in the Jones case, and by
arranging for the concealment of gifts subpoenaed by the Jones lawyers.
On Saturday, January 17, 1998, a few hours after completing his own
deposition in the Jones case, the President called Ms. Currie and asked
her to come to the White House on Sunday, January 18, 1998. [Id. at p.
558] The President's assertions and leading questions to Ms. Currie on
January 18 and January 20 or 21, 1998, were indisputably false. The
President knew that Ms. Currie was a potential witness when he made
these false statements to her. In his deposition in the Jones case, the
President brought Ms. Currie's name up, without prompting, in at least
sixteen different answers to questions, clearly anticipating and
inviting the Jones attorneys to subpoena her to back up his account.
I am unable to conclude that the President was attempting to
``refresh his recollections'' by calling Ms. Currie and requesting her
to come to the White House on a weekend and making false statements to
her. Simple common sense tells us that he was letting her know what he
had said in his deposition and that he was hoping that she would later
corroborate his false account.
High crimes and misdemeanors
Although I have determined that the House has proven the acts alleged
in both Articles of Impeachment by clear and convincing evidence, the
inquiry does not end here. I must also consider whether the acts
constitute ``high crimes and misdemeanors,'' as required by the
Constitution. This has been a singularly difficult question for this
body, but I conclude that the President's offenses rise to the level of
``high crimes and misdemeanors'' within the meaning of the
Constitution.
The Framers of our Constitution provide that the Senate can only
convict a President for ``treason, bribery, or other high crimes and
misdemeanors.'' The Framers relied, in part, on William Blackstone for
their understanding of the common law they inherited from England. In
the fourth book of his Commentaries on the Laws of England, Blackstone
addressed the criminal law. He distinguished between crimes that ``more
directly infringe the rights of the public or commonwealth, taken in
its collective capacity,'' and ``those which in a more peculiar manner
injure individuals or private subjects.'' [IV William Blackstone,
Commentaries on the Laws of England 74, 176 (special ed., 1983)]
Within the latter category, Blackstone included crimes such as
murder,
[[Page S1520]]
burglary, and arson. The former category of ``public'' crimes included
offenses that were counted as ``offenses against the public justice.''
Blackstone included within this category the crimes of perjury and
bribery side-by-side. [Id. at 127, 136-39] Blackstone's formulation
equating perjury and bribery as ``public'' offenses suggests that,
within the definition of the Constitution, perjury may also be a high
crime and misdemeanor.
Because perjury, at its core, involves an effort to obstruct justice,
other acts that obstruct justice may very well be considered ``public''
offenses as the Framers would have understood them. Indeed, Blackstone
writes that ``impediments of justice'' are ``high misprisions'' and
``contempts'' of the King's courts. [Id. at 126-28]
The intent of the Framers and subsequent interpretation of this
clause show that impeachment and conviction of the President is a
Constitutional remedy for serious offenses against our system of
government. Alexander Hamilton, in Federalist No. 65, explained that
impeachable offenses, ``relate chiefly to injuries done immediately to
the society itself,'' and arise ``from the abuse or violation of some
public trust.''
Certainly, perjury before a grand jury and obstruction of justice are
offenses against the American system of government, as they strike at
the rule of law itself. These acts subvert the truth-seeking process
that is the very essence and foundation of the judicial branch. These
acts, when committed by a President, are a repudiation of our judicial
system by the Chief Executive of the country, undermining the checks
and balances and disturbing the delicate balance between the branches
of the Federal government that is at the heart of our Constitutional
form of government.
The President's counsel attempted to diminish the severity of the
crimes of perjury before a Federal grand jury and obstruction of
justice. But the Founding Fathers understood that these crimes are
offenses against the public trust. Perjury was among the few offenses
outlawed by statute by the First Congress, in 1790. And today, perjury
is punishable by up to five years imprisonment in a federal
penitentiary. [18 U.S.C. Sec. Sec. 1621-23] The Supreme Court, in a
1976 plurality opinion, wrote, ``[p]erjured testimony is an obvious and
flagrant affront to the basic concepts of judicial proceedings.''
[United States v. Mandujano, 425 U.S. 564, 576]
We do not need to decide whether the President's perjury before the
grand jury would have risen to the level of a ``high crime and
misdemeanor'' had the target of the grand jury been someone other than
the President, nor do we need to decide whether a President's perjury
in a civil trial in and of itself rises to the level of an impeachable
offense. I have reservations about considering such acts ``high
crimes'' or ``high misdemeanors.'' But where, as here, the President
committed perjury in a Federal grand jury investigation of which he was
the target, I am convinced that his acts fall into the category that
warrants removal from office.
Further support for this conclusion comes from Senate precedent in
the impeachment, conviction, and removal from office of two Federal
judges in the 1980s--Walter Nixon and Alcee Hastings. Judge Nixon was
impeached and convicted for lying to a grand jury that was
investigating him, and Judge Hastings was impeached and convicted for
making numerous false statements under oath in testimony in his own
criminal trial.
Obstruction of justice is particularly serious. Two federal criminal
statutes, Sections 1503 and 1512 of Title 18 of the U.S. Code,
specifically prohibit corruptly influencing or obstructing the due
administration of justice or the testimony of a person in an official
proceeding.
Federal appellate courts have applied these statutes to individuals
who provide misleading stories to a potential witness without
explicitly asking the witness to lie. For example, in 1988, a Federal
appellate court upheld the conviction of an individual for attempting
to influence a witness even though that witness was not scheduled to
testify before the grand jury nor ever appeared before a grand jury.
The court held that a conviction under Section 1503 is appropriate so
long as there is a possibility that the target of the defendant's
activities will be called upon to testify in an official proceeding.
[United States v. Shannon 836 F. 2d 1125, 1127 (8th Cir. 1988)]
The Supreme Court has called the President's responsibility to
enforce the laws, ``the Chief Executive's most important Constitutional
duty.'' [Lujan v. Defenders of Wildlife, 504 U.S. 555, 577 (1992)] A
President who obstructs the very laws he is called upon to enforce has
committed high crimes and misdemeanors as set out in the impeachment
clause of the United States Constitution.
Impartial Justice
Some argue that the Senate, sitting as a court of impeachment, should
allow public opinion polls to influence its judgment, claiming that
these proceedings are not judicial, but political in nature. I believe
the Constitution, the intent of the Framers, and the Senate's own
impeachment procedures show that when the Senate convenes to fulfill
its obligation to ``try all impeachments,'' as Article I of the
Constitution prescribes, it takes on a judicial role quite distinct
from its normal legislative proceedings. The Constitution also states,
in Article III, that ``the trial of all Crimes, except in Cases of
Impeachment, shall be by Jury. . .,'' implying that an impeachment
trial is a trial similar to all others. When a President stands
accused, the Constitution requires the Chief Justice of the Supreme
Court to preside, explicitly introducing the judicial branch into the
trial by the Senate. And Alexander Hamilton, in Federalist No. 65,
discusses ``the judicial character of the Senate'' when it meets as ``a
court for the trial of impeachments.''
We are required to take a special oath for impeachments, above and
beyond our oath of office, to ``do impartial justice according to the
Constitution and the laws.'' What can this oath mean if it does not
place on us a special, judicial burden, unique among our Senatorial
duties, to apply rules of impartiality and independence in pursuit of a
verdict that is just? If an innocent President can be convicted, or a
guilty President can be acquitted, even in part because of the polls
that purport to reflect the will of the moment, then we violate our
Constitutional duty and assault the very foundations of our system of
justice.
Carved into the West Pediment of the U.S. Supreme Court building in
Washington are four simple words: ``Equal Justice Under Law.'' Standing
watch in front of that building is a statue of Justice, blindfolded
because justice must be blind. Even the President must respect the laws
of the land. To the extent that we allow the popularity or unpopularity
of a particular President to inform our votes for either conviction or
acquittal, we undermine the principle of ``Equal Justice Under Law,''
and we chip away at the blindfold that covers the eyes of Justice.
Conclusion
As a trier of fact and law, I find that the President has committed
perjury and obstructed justice as charged in the two Articles of
Impeachment, and that those offenses constitute ``high crimes and
misdemeanors.'' I will vote to convict on both counts.
For me, this is not an easy verdict to reach, and comes after great
deliberation. I am 38 years old. Today is my 38th day as a Senator.
Those 38 days feel like they have lasted my entire life. As a freshman,
I have had to confront, very suddenly, difficult truths that at the
very least have challenged the idealism that propelled me here in the
first place. But through the din of argument and counter-argument, it
has occurred to me that the President's acts, however serious, are not
nearly as consequential as our response. I have listened to those who
assert that perjury before a grand jury and obstruction of justice are
not removable offenses--or that if they are, removal of a President, in
this time, is too disruptive to contemplate.
And truly, the call to do nothing is seductive. I hear it, too. We
are so comfortable--so prosperous--that it is difficult to be bothered
with unpleasantness. But as the youngest member of this body, I believe
we must hold firm to the oldest truths. The material blessings of peace
and prosperity are but the fruit of liberty that does not come without
a price --a liberty sustained, only and finally, by the rule of law,
and those willing to defend it. Our
[[Page S1521]]
commitment to impartial justice, now and forever, is an abstraction
more profound and precious than a soaring Dow and a plummeting deficit.
I vote as I do because I will not stand for the proposition that a
President can, with premeditation and deliberation, obstruct justice
and commit perjury before a grand jury. It cannot be.
Mr. ROTH. Mr. Chief Justice, the House of Representatives presented
to the Senate two Articles of Impeachment alleging that the President
of the United States committed ``high crimes and misdemeanors'' in the
form of perjury and obstruction of justice. These are serious offenses,
not unlike those which in the past have been sufficient to remove other
federal officials from office.
In deciding how to vote on the Articles of Impeachment, each Senator
had to undertake a two-step analysis: first, to determine the facts--
the conduct in which the accused engaged; and second, to determine
whether that conduct constituted ``treason, bribery, or other high
crimes and misdemeanors'', which, under the Constitution, require
removal from office. This second step calls for the Senate to determine
the facts and evaluate the effect of the conduct on the office and on
the operations of government.
Having listened to the presentations made to the Senate by the House
Managers and by Counsel for the President, it is my opinion that the
President committed perjury and obstructed justice, and that this
misconduct--based on constitutional definitions and historical
precedents--meets the standard for convicting an official of an
impeachable offense.
As the impeachment process is not a criminal proceeding, it is not
necessary that the evidence shows that the accused is guilty of a
criminal offense under the United States Code. The Framers wrote the
Constitution before Congress wrote, and then amended, the criminal
code. Nor is it required that relevant facts be established to the same
standard as in a criminal trial, as Congress cannot punish the
President, other than to remove him from office. Simply put, the
Framers' objective was to provide a remedy to protect the American
people and their institutions of government from an unfit officeholder.
In view of this, I believe that such remedy is to be available if there
is clear and convincing evidence to establish the underlying facts
which demonstrate that an officeholder is unfit to serve.
In determining whether alleged conduct is a ``high crime and
misdemeanor'', Senators must examine each case individually. They must
consider the officeholder's position in government and look at the
effect of the officeholder's conduct in light of the particular
position he or she holds. The fact that the Senate has convicted and
removed federal judges for committing perjury does not necessarily mean
that it should automatically remove a President who commits perjury.
The precedents regarding federal judges are instructive, but they are
not conclusive.
The 1974 House Judiciary Committee Staff Report during the Nixon
Impeachment Inquiry, drawing on two centuries of precedents, explains
this concept in connection with a presidential impeachment. The report
states that the impeachment of the President should be ``predicated
only upon conduct seriously incompatible with either the constitutional
form and principles of our government or the proper performance of
constitutional duties of the presidential office.'' In other words,
Congress must determine whether the particular misconduct in which
President Clinton engaged is serious enough to warrant removal from
that particular office. This is what I call the ``incompatibility''
test.
The ``incompatibility'' test requires Senators to exercise their
expertise in, and knowledge of, government and to use their best
judgment, focusing on the offenses committed and the effect of those
offenses on the office and on the operation of government. It is this
kind of threat to the republic which we must evaluate in applying the
``incompatibility'' test. Accordingly, under this test we should focus
on the unique nature of the Presidency and the offenses the President
committed.
The Constitution created three separate branches of government in
order to limit the powers of government and to enhance the liberty of
the American people. Each branch is supreme in its own area but must
respect and defer to the others, when they are operating in their
assigned areas. Reduced to the simplest characterization, the
legislature makes the laws, the executive executes the laws, and the
judiciary interprets the laws and dispenses justice. As the head of the
executive branch, the President stands alone as the official
responsible for executing the laws of our country.
The duty of a branch to respect the other branches is a duty that can
only be carried out by federal officeholders. It cannot be borne by
private citizens. And it is fundamental to the operations of the
federal government. Our government could not function if the branches
did not respect one another. I believe President Clinton violated this
fundamental duty to respect the judicial branch by subverting its
function.
When a private citizen sued President Clinton under our civil rights
statutes, the President took the position that he was unique in our
system of law and could not be sued while President. When the Supreme
Court ruled 9-0 that the President could be sued, the President decided
to frustrate the judicial process while appearing outwardly to comply
with the requirement of our constitutional plan. As a practical matter,
he sought to veto this Supreme Court decision.
The evidence shows that he undertook a deliberate and multifaceted
plan to thwart the Supreme Court ruling. That plan included the
commission of perjury and obstruction of justice, which are very
serious and fundamental wrongs. Even worse is that his conduct was
conscious and calculated. It was not a mistake of the moment. Rather he
deliberated and chose to commit perjury. He deliberated and chose to
obstruct justice. In making these conscious and calculated choices, he
placed his personal and political interests above his presidential duty
to respect the judicial branch.
This is what concerns me greatly. If the President is willing to
place his personal and political interests above his duties as
President, he is not fit for the office he holds.
The President has, as one branch of the federal government, a duty to
respect the requirements of the judicial branch and its proceedings.
The President has, as the chief executive, an express duty to take care
that the laws be faithfully executed. In committing perjury and in
obstructing justice, he exhibited an attitude dangerous to the
operation of government--an attitude where he viewed himself as more
important than the rule of law, where his personal and political
interests took precedence over the public interest in administering
equal justice under law.
Ours is a nation ruled by law, not by men, and not by personalities.
The judgment that we render here will set a precedent for the ages. If
Congress concludes that the office of the Presidency should remain
occupied by one who has sullied it with premeditated criminal conduct
in violation of constitutional and legal duty, then it will have
diminished America's right of self-defense against unfit officeholders,
something that the Framers specifically provided for in the
Constitution.
A President who commits perjury before a federal grand jury and
obstructs justice poisons the well from which justice is administered.
As far as I know, this President has the dubious distinction of being
the first and only President in the history of the United States to lie
directly to a federal grand jury. After taking an oath to tell the
truth, the whole truth, and nothing but the truth, he deliberately
violated that oath. The first Chief Justice of the United States, John
Jay, accurately stated that there is no crime more extensively
pernicious to society than perjury. If the President commits perjury
and we conclude that nevertheless he may remain in office, by what
authority does any judge ask any litigant to swear under oath?
As far as I am concerned, this is not just an empty question that has
no relevance in today's society. Every day, in courtrooms and grand
jury rooms across the country, witnesses are asked to hold up their
right hand and take an oath to tell the truth. The judicial process in
the United States depends on the sanctity of that oath. The
prosecutorial function of the United States depends on the sanctity of
that oath. It
[[Page S1522]]
is the cornerstone of our system of justice. We simply cannot allow
people across the country to look at the conduct of our President and
raise legitimate questions about whether they need to comply with their
solemn oaths.
Moreover, how can judges refer violations of perjury or obstruction
of justice to the executive branch for prosecution, when the chief
executive himself has committed these offenses? On prior occasions, the
Senate has removed judges for perjury because it was ``incompatible''
to ask litigants not to commit perjury in a courtroom presided over by
someone who had himself committed perjury. A similar
``incompatibility'' exists where the sanction for perjury or
obstruction of justice must be applied by the executive branch presided
over by someone who has likewise committed these violations.
The President must be removed before the corrosive effect of his
conduct eats away at the rule of law and undermines the legal system.
To imagine this President remaining in office brings to mind Alexander
Pope's troubling question: ``If gold should rust, what will iron do?''
If our President commits perjury and obstruction of justice, what can
we expect of our citizens?
The Senate should seek to protect the legal system from that threat.
And that is why I voted to convict and remove William Jefferson Clinton
from office.
Mr. BURNS. Mr. Chief Justice and my Senate colleagues, we now close
one of the most serious chapters in the history of this Senate. While
some may not agree with the outcome, and others may not like the way I
voted, I'm satisfied the Constitution has been followed. We must now
accept this verdict and try to work together without talk of revenge or
gloating.
In reaching my conclusions, I asked myself two questions: Were the
articles of impeachment proven, and if so, should the president be
removed from office?
I believe the president perjured himself before a grand jury. He put
the protection of his presidency ahead of the protection of the
institution of the presidency. He gave false testimony about his
efforts to keep other witnesses from telling the truth. We have already
learned in our history that lies lead to more lies, and the pattern in
this case led to perjury.
I also feel strongly that a case for obstruction of justice was
proven conclusively. The Senate heard the many actions and motives of
the president, and it was easy to connect the dots. Those dots reveal a
clear and convincing case against the president.
I believe the president tampered with the testimony of witnesses
against him; that he allowed his lawyers to present false evidence on
his behalf; that he directed a job search for a witness in exchange for
false testimony; and that he directed the recovery and hiding of
evidence under subpoena.
Does this warrant the president's removal from office? I agree with
my respected colleague, Senator Byrd, that this reaches the level of
high crimes and misdemeanors, for a number of reasons: The president's
actions crossed the line between private and public behavior when those
actions legally became the subject of a civil rights lawsuit against
him, and when he tried to undermine that lawsuit. His actions were an
attack on the separation of powers between the executive and judicial
branches when he abused his power in an effort to obstruct justice.
Remember, he impeded a lawsuit the highest court in our land allowed to
proceed on a 9-0 vote.
It's clear even to some of the president's supporters that he
committed many of the offenses he has been charged with. But given this
outcome, I hope for our system of justice and for our character as a
nation that these votes are never seen as treating actions such as
perjury and obstruction of justice lightly, whether by a president or
by any citizen.
Our new world of communications has made more information available
to us than ever before. But it also contributed to the media overkill
that jaded the American people to this process long ago. When the
Lewinsky story became public, the president conducted a poll in which
he learned that Americans would tolerate a private affair, but not
perjury or obstruction of justice. His goal from that point on to was
to poison the well of public opinion. Once the focus shifted away from
the facts and toward opinion, once the clatter and clutter echoed on
24-hour talk television, the president's goal was reached. But the
facts remain, and they are not in dispute.
Montanans didn't send me to the Senate to be a weathervane, shifting
in the wind, but to be a compass. It may be common to say the
president's offenses don't ``rise to the level of high crimes and
misdemeanors,'' but I believe that would ignore our history and what we
stand for as a nation.
That's why I also oppose censuring the president. The Constitution
gives us one way to deal with impeachable offenses: a yes or no vote on
guilt. Anything else would be like amending the Constitution on the fly
and infringing on the separation of powers between the branches of
government.
As we accept this outcome and move forward, we have plenty of time
left ahead to help out Montana's farm and ranch communities, which is
my top priority. We have time to save Social Security in a way that
fixes the program without raising taxes. We have time to give control
of education back to parents and teachers, and to give federal funds to
classrooms, not bureaucrats. We have time to cut the record burden of
taxation on Montanans, many of whom are forced to take more than one
job to make ends meet.
We should all roll up our sleeves and get to work.
Mr. INHOFE. Mr. Chief Justice, in the absence of hearing something
that I haven't heard or seeing something that is unforeseen up to now,
it is my plan to vote for conviction on the two Articles of
Impeachment.
I think this is probably the most important vote I will cast during
the course of my lifetime. I say it very sincerely. I believe we are
going to rise to the occasion.
I had an experience back in 1975, 24 years ago. I was a member of the
State Senate in Oklahoma. I can remember being called for jury duty,
and I was very happy to find myself assigned to a murder case about
which I had already expressed a definite opinion. I said I believed
this defendant was surely guilty, and besides, I was the author of the
capital punishment bill in the state legislature. So I thought for sure
I wasn't going to be qualified as a juror.
Well, I went through the qualification procedure and somehow they
qualified me. Five days later, I was the foreman of the jury that
acquitted that accused murderer. This can happen. It is an experience
that taught me a lot about our judicial system.
I sometimes say one of the few qualifications I have for the U.S.
Senate is I am not a lawyer. So that when I read the Constitution, I
know what it says; when I read the oath of office, I know what it says;
when I read the law, I know what it says. I don't have to clutter up my
mind with what the definition of ``is'' is. So it makes it a little
easier for me.
From a nonlawyer perspective let me share a couple of observations.
First, insofar as perjury is concerned--lying under oath--I might be
wrong, but I don't think there is a Senator in this Chamber who doesn't
believe the President lied under oath.
I quote from the White House counsel, Charles Ruff, himself who said:
``Reasonable people can believe the President lied under oath.''
I quote from Senator Chuck Schumer who said: ``He lied under oath
both in the Paula Jones deposition and what he said in the grand
jury.''
I quote from Representative Robert Wexler, a strong supporter of the
President, who serves on the House Judiciary Committee, who said: ``The
President did not tell the truth. He lied under oath.''
I quote from former U.S. Senator Paul Simon, one of my favorite
Democrat colleagues, who appeared with me on a television program
before the trial, who said: ``You have to be an extreme Clinton zealot
to believe perjury was not committed.''
Second, as a non-attorney, I have a hard time reconciling the idea
that there might be certain permissible exceptions to telling the truth
under oath. Maybe you who are attorneys, and have a different
background than mine, see it differently. But how can you reconcile
this idea that under some
[[Page S1523]]
conditions--if the subject matter is sex or something else--you can lie
under oath? I really have a hard time with this.
I know that morality is not supposed to be the issue here. We are
supposed to concentrate on the two specific Articles of Impeachment.
However, I don't think anyone can completely compartmentalize himself
and totally disregard other things going on.
All of us get many, many letters from young children, parents,
teachers, and others who are deeply distressed about the President's
behavior and its impact on the moral health of the Nation. I think I am
very fortunate because my kids are all in their upper thirties and my
eight grandchildren (make that nine--I count them when they are
conceived) are all under 6, so I don't get those embarrassing
questions. But I know many parents are struggling with this.
The other thing that concerns me is the reprehensible, consistent
attitude this president has displayed over the years against women.
Take Paula Jones as just one example. She may not win a popularity
poll, but her civil rights have just as much standing as anyone else's,
do they not? Is not our country based on the principle that even the
least among us is entitled to equal treatment under the law?
It amazes me how these feminist organizations continue to hold this
President in such high regard--groups such as the National Organization
of Women. I went back and read their bylaws. They claim to want to
protect women with regard to ``equal rights and responsibilities in all
aspects of citizenship, public service, employment . . . including
freedom from discrimination.''
And here we have a president who not only misused his power to seduce
a college-age intern, but who has also engaged in extensive similar
misconduct outside of his marriage. It is not just Monica Lewinsky.
There is Gennifer Flowers, Elizabeth Ward Gracen, Paula Jones, Kathleen
Willey, Dolly Kyle Browning, Beth Coulson, Susan McDougal, Cristy
Zercher--the list goes on and on.
This President has a consistent pattern of using and abusing women.
You know that. I imagine most of you watched the Monica Lewinsky tapes
as I did. I don't know why the House managers didn't pick this up--
somehow they let it slip through--about when she told this story
concerning the two security badges. She came here to Washington, this
wide-eyed kid, and there is a blue badge that lets you get into the
White House proper and a pink badge that lets you only into the Old
Executive Office Building. And she wanted to be in there--in the West
Wing--where she could see what was going on.
She had the pink badge so she had to be escorted to the West Wing by
someone else. So the very first day she meets and talks to the
President in person, he begins the relationship we're talking about. He
didn't even know her name. And then he reached across and grabbed her
pink badge, yanked it down, and said, ``This is going to be a
problem.'' I don't think there is anyone in the room who doesn't know
what he was referring to. He was preparing to use this girl and abuse
her and discard her like an old shirt. But I know that these are not
things the lawyers expect us to consider.
I do want to give another observation, though. I thought the playing
field would be very uneven when this trial started. The members of the
Judiciary Committee who are the House managers are all lawyers. But
mostly, they are Congressmen first. Many of these Congressmen-lawyers
had not been in a courtroom for literally years. And here they were
taking on the most prestigious, the most prominent, the most skilled,
the most experienced, the highest priced lawyers anywhere in America.
And yet when they finished with their opening statements, there was no
doubt the House managers had risen superbly to the occasion, and I
believe they have done a great job throughout.
The White House lawyers are very skilled, very persuasive people. I
would make this observation--again, a non-lawyer observation: I felt
that three or four of them should have quit their opening remarks about
5 minutes sooner than they did. They had a tendency to close their
presentations with arguments that undermined their credibility.
Cheryl Mills, for example, was really doing well, and she was very
persuasive until she started at the very last talking about the
President's record on civil rights, as if the civil rights of a person
his associates had dubbed as ``trailer park trash'' were not
significant, or the dignity of the intern he had branded ``a stalker''
was not significant. I really think she destroyed her otherwise very
persuasive presentation.
I think the same thing was true with Gregory Craig. He ended by
talking about how conviction in this case would somehow ``destroy a
fundamental underpinning of democracy'' by overturning the results of
an election, as if Bob Dole would come in if that were to happen.
Even our good friend, Dale Bumpers--I knew Dale Bumpers long before I
came here to the U.S. Senate--did a great job. But I think he should
have quit early, too, because at the very last it sounded like he was
predicating the innocence of this President on his foreign policy. And
as I just look at Iraq and what is going on over there, I think if that
had been the test for this, I could have made up my mind a lot earlier.
Another perspective I bring to this is as chairman of the Armed
Services Subcommittee on Readiness. Having been in the service myself,
and knowing how important discipline is, I am very disturbed that we
have so many cases where severe punishment is dealt to individuals who
have engaged in conduct far less serious than that of the President.
Consider:
Captain Derrick Robinson, an Army officer, was caught up in the
Aberdeen sex misconduct case and is serving time in Leavenworth for
admitting to consensual sex with an enlisted person who was not his
wife.
Delmar Simpson is serving 25 years in a military prison because a
court-martial found that, even though his relationship with a female
recruit was consensual, the power granted him by his rank made such
consensual sex with a subordinate unacceptable. Think of the power
granted this President by his rank.
Remember Kelly Flinn. She is not flying B-52s anymore. She was forced
out the Air Force for lying about an adulterous affair.
Sergeant Major Gene McKinney, the Army's top enlisted man, was tried
for perjury, adultery, and obstruction of justice--all concerning
sexual misconduct. He was convicted of obstruction, but not before his
attorney asserted at the trial how people in uniform rightly ask: ``How
can you hold an enlisted man to a higher standard than the President of
the United States, the Commander in Chief?''
So I have looked at this and studied it. I think anyone who votes to
acquit has to say that we are going to hold this President to a lower
standard of conduct and behavior than we hold other people. I do not
understand how they can come to any other conclusion.
My wife and I have been married 40 years. I have a thing called the
wife test. You go home and when you want to get an opinion that is
totally apolitical, you ask your wife. So I went home and I presented
the case--as explained so eloquently by the White House lawyers and
others--on why we could have a lower standard of conduct for a
President than we have for a judge. And I know the argument. And I
expressed the argument to my wife in the kitchen. I said, there are a
thousand judges, only one President. I went through the whole thing.
Then she looked up and said, ``I thought the President appointed the
judges.'' You know, my wife is so dumb, she is always asking me
questions I can't answer.
But I really believe that in this case we are getting at the truth. I
really believe that the President of the United States should be held
to the very highest of standards.
You know, Winston Churchill said: ``Truth is incontrovertible.
Ignorance may deride it, panic may resent it, malice may destroy it,
but there it is.''
I think we have seen the truth. And I think the final truth is that
this President should be held to the very highest of standards.
Sometimes when I am not really sure I am right, I consult my best
friend. His name is Jesus. And I asked that
[[Page S1524]]
question. Now I will quote to you the response that is found in Luke:
``From one who has been entrusted with more, much more will be asked.''
Mr. Chief Justice, I think Jesus is right.
Mr. CLELAND, Mr. Chief Justice, inasmuch as the impeachment trial of
the President has focused on the importance of oaths, I have begun to
reflect on the oaths I have taken in my life. In terms of affirming my
allegiance to this nation and the United States Constitution, I have
taken an oath four times. I have followed up each oath with my
signature.
The first such oath I took was when I was 21 years old. I was sworn
in to the United States Army as a young Second Lieutenant. Later I
followed my flag and my Commander-in-Chief in being a part of the armed
military forces in the Vietnam War.
After the war, I took another oath. This time I was sworn in as head
of the Veterans' Administration under President Carter. I still
remember that turbulent time after the Vietnam War when so many of my
fellow veterans were returning from that conflict. The words from
Abraham Lincoln's second inaugural address seemed to constantly echo in
my mind: ``. . .to care for him who has borne the battle and for his
widow and his orphan.'' Having been wounded in Vietnam myself I felt a
grave responsibility to carry out my oath on behalf of my fellow
veterans.
The next time I took an oath it was January, 1997. It was on the
occasion of being sworn into the United States Senate. As Vice
President Al gore swore the new Senators in, I placed my right elbow on
my Bible and raised my left hand in an oath to defend the Constitution
against ``all enemies, foreign and domestic.'' Once in the Senate, I
was fortunate to have been selected to follow distinguished former
Georgia Senators Richard B. Russell and Sam Nunn in service on the
Senate Armed Services Committee. I fully expected that any threat to
our Constitution, our electoral process, or our delicately-honed system
of checks and balances would come from outside our country, not from
within.
I was wrong.
This leads me to my most recent oath to do ``impartial justice'' in
the Senate in the impeachment trial of the President of the United
States. In my personal view, this final oath, sealed with my signature
in a book which will become part of the archives of American history,
is a culmination of the other three oaths I have taken.
I have sworn to defend this country.
I have sworn to take care of its defenders.
I have sworn to uphold the Constitution for which my fellow defenders
have suffered and died.
How can I now turn my back and ignore the challenge to that
Constitution posed by this precedent-setting, first-time ever
impeachment of an elected President of the United States?
I cannot.
When my name is called in regular order for my vote on the articles
of impeachment, I will vote ``not guilty.''
I have reached my decision after much effort. I have tried to keep an
open mind and an open heart. I have attempted to search the depths of
American history and the lore of our English forebearers for insight
and guidance. I have counseled privately with experts on American
history and constitutional law. I have met with knowledgeable sources
inside and outside the government. I have personally listened to
constituents in my state and throughout the nation. I have talked to
them on the phone, read their letters and scanned their e-mail. I have
tried to weave an appropriate course through the barrage of media talk
and the system of political reporters doing their duty.
I have given it my best shot.
I understand now what Alexander Hamilton meant when he predicted 212
years ago that individual Senators faced with an impeachment trial had
the ``awful discretion'' of removing a President. Yet, I believe
Hamilton was correct when long ago he advocated placing his faith in
the Senators, where he hoped to find, ``dignity and independence.'' I
believe that under the circumstances the Senate has conducted itself
appropriately, and has complied with Hamilton's standards of conducting
an impeachment trial with ``dignity and independence.'' I also believe
the Senate should continue to follow the standards set by our Founding
Fathers regarding the use of impeachment power. According to the
Founders as articulated in the Constitution, the impeachment clearly
should be reserved for ``bribery, treason or other high crimes and
misdemeanors.'' This language did not just turn up in the Constitution
overnight. The language grew and evolved over a period of months in
Philadelphia in 1787.
One of the Founding Fathers who especially impressed me is George
Mason. Mason had an interesting background. Like many of our country's
early statesmen, he was from Virginia. For me, Mason is a bridge of
insight into what the impeachment clause in the Constitution is all
about.
Mason was a soldier. Indeed, he was an officer, a colonel. He, too,
understood the grave responsibility of military leadership, of leading
men in combat and in caring for them afterwards. He certainly knew
about the gravity of his own personal oath. It was Mason, then, who
articulated during the Constitutional Convention that the phrase in the
Constitution regarding impeachment must be more fully fleshed out and
should more appropriately read ``. . . and other high crimes and
misdemeanors against the state.''
Here was a soldier of the American Revolution. Here was an officer in
that Revolution working with his fellow statesmen charting out a course
for the Nation's future. Here was a brother of the bond from Northern
Virginia who wanted to make sure the actual Constitutional language was
clear that any impeachment must rise to a high level. According to the
thrust of Mason's argument, for an impeachment of the President to be
legitimate, the impeachable offenses must pose a threat to the nation
itself. The Committee which reviewed the language believed that the
phrase ``against the state'' was redundant, and, in effect, assumed.
President Clinton has committed serious offenses. His personal
conduct in this matter was, as I have said before, wrongful,
reprehensible and indefensible. He has admitted to personal offenses,
and will be appropriately judged for his misconduct elsewhere. In my
judgement, under all the others I have taken under the United States
Constitution, his offenses do not rise to the required level for
impeachable offenses under the United States Constitution.
I will be voting against conviction and removal from office of the
President on both articles because I do not believe that these
particular charges reach the high standard for impeachment which I
believe that George Mason and the other Founders intended: that such an
offense must be conduct which threatens grievous harm to our entire
system. I provided more detail about the reasons for these conclusions
in an earlier statement I submitted for the Record, and I ask unanimous
consent that those remarks be inserted following this statement.
As the Senate concludes this trial, I am reminded of other words from
Abraham Lincoln's second Inaugural Address: ``with malice toward none,
with clarity for all, let us bind up the nation's wounds . . .'' If
Lincoln can say that as the nation was concluding the most divisive
time in our history, which ultimately resulted in the first impeachment
trial of an American President, surely we can say that to each other
and to our nation as we conclude this historical second impeachment
trial.
It is time to end this trial.
It is time to let the President conclude the term he was elected to
by the American people.
It is time to put an end to partisan bickering about the motives and
conduct of all of those who have become involved in this sad episode.
It is time for us all to bind up the nation's wounds.
It is time to get on with the business of the American people we were
elected to conduct.
I ask that a supplement of my statement be printed in the Record.
Thank you.
There being no objection, the statement was ordered to be printed in
the Record, as follows:
The Impeachment of President William Jefferson Clinton
Mr. CLELAND. Mr. President, let me begin by saying that the
reason we are here today, the reason the United States Senate
is being asked to exercise what Alexander Hamilton
[[Page S1525]]
termed the ``awful discretion'' of impeachment, is because of
the wrongful, reprehensible, indefensible conduct of one
person, the President of the United States, William Jefferson
Clinton. Indeed, I believe it is conduct deserving of the
censure of the Senate, and I will support such a resolution
when it comes before us.
The question before the Senate, however, is not whether the
President's conduct was wrong, or immoral, or even
censurable. We must decide solely as to whether or not he
should be convicted of the allegations contained in the
Articles of Impeachment and thus removed from office. In my
opinion, the case for removal, presented in great detail in
the massive 60,000 page report submitted by the House, in
many hours of very capable but often repetitive presentations
to the Senate by the House Managers and the President's
defense team, and in many additional hours of Senators'
questioning of the two sides, fails to meet the very high
standards which we must demand with respect to Presidential
impeachments. Therefore, I will vote to dismiss the
impeachment case against William Jefferson Clinton, and to
vote for the Senate resuming other necessary work for the
American people.
To this very point, I have reserved my judgment on this
question because of my Constitutional responsibility and Oath
to ``render impartial justice'' in this case. Most of the
same record presented in great detail to Senators in the
course of the last several weeks has long been before the
public, and indeed most of that public, including editorial
boards, talk show hosts, and so forth, long ago reached their
own conclusions as to the impeachment of President Clinton.
But I have now heard enough to make my decision. With respect
to the witnesses the House Managers apparently now wish to
depose and call before the Senate, the existing record
represents multiple interrogations by the Office of the
Independent Counsel and its Grand Jury, with not only no
cross-examinations by the President's counsel but, with the
exception of the President's testimony, without even the
presence of the witnesses own counsel. It is difficult for me
to see how that record would possibly be improved from the
prosecution's standpoint. Thus, I will not support motions to
depose or call witnesses.
In reaching my decision on impeachment, there are a number
of factors which have been discussed or speculated about in
the news media which were not a part of my calculations.
First of all, while as political creatures neither the
Senate nor the House can or should be immune from public
opinion, we have a very precise Constitutionally-prescribed
responsibility in this matter, and popular opinion must not
be controlling consideration. I believe Republican Senator
William Pitt Fessenden of Maine said it best during the only
previous Presidential Impeachment Trial in 1868:
``To the suggestion that popular opinion demands the
conviction of the President on these charges, I reply that he
is not now on trial before the people, but before the Senate
. . . The people have not heard the evidence as we have heard
it. The responsibility is not on them, but upon us. They have
not taken an oath to ``do impartial justice according to the
Constitution and the laws.'' I have taken that oath. I cannot
render judgment upon their convictions, nor can they transfer
to themselves my punishment if I violate my own. And I should
consider myself undeserving of the confidence of that just
and intelligent people who imposed upon me this great
responsibility, and unworthy of a place among honorable men,
if for any fear of public reprobation, and for the sake of
securing popular favor, I should disregard the convictions of
my judgment and my conscience.''
Nor was my decision premised on the notion, suggested by
some, that the stability of our government would be severely
jeopardized by the impeachment of President Clinton. I have
full faith in the strength of our government and its leaders
and, more importantly, faith in the American people to cope
successfully with whatever the Senate decides. There can be
no doubt that the impeachment of a President would not be
easy for the country but just in this Century, about to end,
we have endured great depressions and world wars. Today, the
U.S. economy is strong, the will of the people to move beyond
this national nightmare is great, and we have an experienced
and able Vice President who is more than capable of stepping
up and assuming the role of the President.
Third, although we have heard much argument that the
precedents of judicial impeachments should be controlling in
this case, I have not been convinced and did not rely on such
testimony in making my decision. After review of the record,
historical precedents, and consideration of the different
roles of Presidents and federal judges, I have concluded that
there is indeed a different legal standard for impeachment of
Presidents and federal judges. Article II, Section 4 of the
Constitution provides that ``the President, Vice President,
and all civil officers of the United States, shall be removed
from Office on Impeachment for, and Conviction of, Treason,
Bribery, or other high Crimes and Misdemeanors.'' Article
III, Section I of the Constitution indicates that judges
``shall hold their Offices during good Behavior.'' Presidents
are elected by the people and serve for a fixed term of
years, while federal judges are appointed without public
approval to serve a life tenure without any accountability to
the public. Therefore, under our system, impeachment is the
only way to remove a federal judge from office while
Presidents serve for a specified term and face accountability
to the pubic through elections. With respect to the differing
impeachment standards themselves, Chief Justice Rehnquist
once wrote, ``the terms `treason, bribery and other high
crimes and misdemeanors' are narrower than the malfeasance in
office and failure to perform the duties of the office, which
maybe grounds for forfeiture of office held during good
behavior.''
And my conclusions with respect to impeachment were not
based upon consideration of the proper punishment of
President Clinton for his misdeeds. During the impeachment of
President Nixon, the Report by the Staff of the Impeachment
Inquiry concluded that ``impeachment is the first step in a
remedial process--removal from office and possible
disqualification from holding future office. The purpose of
impeachment is not personal punishment; its function is
primarily to maintain constitutional government.'' Regardless
of the outcome of the Senate impeachment trial, President
Clinton remains subject to censure by the House and
Senate, and criminal prosecution for any crimes he may
have committed. Whatever punishment President Clinton
deserves for his misdeeds will be provided elsewhere.
Finally, I do not believe that perjury or obstruction of
justice could never rise to the level of threatening grievous
harm to the Republic, and thus represent adequate grounds for
removal of a President. However, we must approach such a
determination with the greatest of care. Impeachment of a
President is, perhaps with the power to declare War, the
gravest of Constitutional responsibilities bestowed upon the
Congress. During the history of the United States, the Senate
has only held impeachment trials for two Presidents, the 1868
trial of President Johnson, who had not been elected to that
office, and now President Clinton. Although the Senate can
look to impeachment trials of other public officials,
primarily judicial, as I have already said, I do not believe
that those precedents are or should be controlling in
impeachment trials of Presidents, or indeed of other elected
officials.
My decision was based on one overriding concern: the impact
of this precedent-setting case on the future of the
Presidency, and indeed of the Congress itself. It is not Bill
Clinton who should occupy our only attention. He already
stands rebuked by the House impeachment votes, and by the
words of virtually every member of Congress of both political
parties. And even if we do not remove him from office, he
still stands liable to future criminal prosecution for his
actions, as well as to the verdict of history. No, it is Mr.
Clinton's successors, Republican, Democrat or any other
Party, who should be our concern.
The Republican Senator, Edmund G. Ross of Kansas, who
``looked down into my open grave'' of political oblivion when
he cast one of the decisive votes in acquitting Andrew
Johnson in spite of his personal dislike of the President,
explained his motivation this way:
``In a large sense, the independence of the executive
office as a coordinate branch of the government was on trial
. . . If . . . the President must step down . . . upon
insufficient proofs and from partisan considerations, the
office of President would be degraded, cease to be a
coordinate branch of government, and ever after subordinated
to the legislative will. It would practically have
revolutionized our splendid political fabric into a partisan
Congressional autocracy.''
While our government is certainly on a stronger foundation
now than in the aftermath of the Civil War, the basic point
remains valid. If anything, in today's world of rapidly
emerging events and threats, we need an effective,
independent Presidency even more than did mid-19th Century
Americans.
While in the history of the United States the U.S. Senate
has never before considered impeachment articles against a
sitting elected official, we do have numerous cases of each
House exercising its Constitutional right to, ``punish its
Members for disorderly behavior, and, with the concurrence of
two-thirds expel a Member.'' However, since the Civil War,
while a variety of cases involving personal and private
misconduct have been considered, the Senate has never voted
to expel a member, choosing to censure instead on seven
occasions, and the House has rarely chosen the ultimate
sanction. Should the removal of a President be subject to
greater punishment with lesser standards of evidence than the
Congress has applied to itself when the Constitution appears
to call for the reverse in limiting impeachment to cases of
``treason, bribery and other high crimes or misdemeanors?''
In my view, the answer must be NO.
Thus, for me, as one United States Senator, the bar for
impeachment and removal from office of a President must be a
high one, and I want the record to reflect that my vote to
dismiss is based upon a standard of evidence equivalent to
that used in criminal proceedings--that is, that guilt must
be proven ``beyond a reasonable doubt''--and a standard of
impeachable offense which, in my view, conforms to the
Founders' intentions that such an offense must be one which
represents official misconduct threatening grievous harm to
our whole system of government. To quote Federalist No. 65,
Hamilton defined as impeachable, ``those offenses which
proceed from the misconduct of public men, or, in other
words, from the abuse or
[[Page S1526]]
violation of some public trust. They are of a nature which
may with peculiar propriety be denominated POLITICAL, as
they relate chiefly to injuries done immediately to the
society itself.'' As I have said before, I can conceive of
instances in which both perjury and obstruction of justice
would meet this test, and I certainly believe that most,
if not all, capital crimes, including murder, would
qualify for impeachment and removal from office. However,
in my judgment, the current case does not reach the
necessary high standard.
In the words of John F. Kennedy, ``with a good conscience
our only sure reward, with history the final judge of our
deeds,'' I believe that dismissal of the impeachment case
against William Jefferson Clinton is the appropriate action
for the U.S. Senate. It is the action which will best
preserve the system of government which has served us so well
for over two hundred years, a system of checks and balances,
with a strong and independent chief executive.
In closing, I wish to address those in the Senate and
House, and among the American public, who have reached a
different conclusion than have I in this case. I do not
question the sincerity or legitimacy of your viewpoint. The
process itself pushes us to make absolute judgments--yes or
no to conviction and removal from office--and the nature of
debate yields portraits of complex issues in stark black-and-
white terms, but I believe it is possible for reasonable
people to reach different conclusions on this matter. Indeed,
I recognize that, while my decision seeks to avoid the
dangers of setting the impeachment bar too low, setting that
bar too high is not without risks. I believe the House
Managers spoke eloquently about the need to preserve respect
for the rule of law, including the critical principle that no
one, not even the President of the United States, is above
that rule. However, I have concluded that the threat to our
system of a weakened Presidency, made in some ways
subordinate to the will of the legislative branch, outweighs
the potential harm to the rule of law, because that latter
risk is mitigated by: an intact, independent criminal justice
system, which indeed will retain the ability to render final,
legal judgment on the President's conduct; a vigorous,
independent press corps which remains perfectly capable of
exposing such conduct, and of extracting a personal,
professional and political price; and an independent Congress
which will presumably continue to have the will and means to
oppose Presidents who threaten our system of government.
By the very nature of this situation, where I sit in
judgment of a Democratic President as a Democratic Senator, I
realize that my decision cannot convey the non-partisanship
which is essential to achieve closure on this matter, one way
or the other. Indeed, in words which could have been written
today, the chief proponent among the Founding Fathers of a
vigorous Chief Executive, Alexander Hamilton, wrote in 1788,
in No. 65 of The Federalist Papers, that impeachments ``will
seldom fail to agitate the passions of the whole community,
and to divide them into parties, more or less friendly or
inimical, to the accused. In many cases, it will connect
itself with the pre-existing factions, and will enlist all
their animosities, partialities, influence and interest on
side, or on the other; and in such cases there will always be
the greatest danger, that the decision will be regulated more
by the comparative strength of the parties than by real
demonstration of guilt or innocence.''
I have, however, in making my decision laid out for you the
standards which I believe to be appropriate whenever the
Congress considers the removal from office of an elected
official, whether Executive Branch, or Legislative Branch. I
will do my best to stand by those standards in all such cases
to come before me while I have the privilege of representing
the people of Georgia in the United States Senate, regardless
of the party affiliation of the accused. I only hope and pray
that no future President, of either Party, will ever again
engage in conduct which provides any basis, including the
basis of the current case, for the Congress to consider the
grave question of impeachment.
Mr. FRIST. I rise to explain my decision to convict President William
Jefferson Clinton on two Articles of Impeachment charging him with High
Crimes and Misdemeanors. I have heard from thousands of fellow
Tennesseans during this trial, and their opinions were deeply split.
While I looked to the people of Tennessee for guidance, responsibility
for my final vote ultimately turned on my own conscience. I am sure
that this will be one of the most important votes I cast as a United
States Senator, and I am honored to explain fully my vote.
Introduction and the Burden of Proof
I sought throughout President Clinton's trial to be true to my oath
to do ``impartial justice according to the Constitution and laws of the
United States.'' When I raised my right hand and swore that oath on
January 7, I accepted a solemn responsibility. I did not approach this
trial with some preordained outcome in mind; I carefully listened
during the five weeks of this trial to the evidence and the arguments,
and sought to do justice.
In considering the allegations against President Clinton, I believed
that I should apply a ``beyond a reasonable doubt'' burden of proof--
even though the Constitution does not specify a particular burden of
proof in impeachment trials. The Constitution entrusts the decision to
convict an impeached officer to the individual judgment of each
Senator; however, I wanted to give the President the benefit of the
same high standard of proof applied in criminal trials. I would remove
a President from office only if the House Managers met this rigorous
burden of proof.
The jury instructions used in federal courts explain what must be
established to meet this burden of proof:
Proof beyond a reasonable doubt does not mean proof beyond
all possible doubt. Possible doubts or doubts based purely on
speculation are not reasonable doubts. A reasonable doubt is
based on reason and common sense. It may arise from evidence,
the lack of evidence, or the nature of the evidence.
Proof beyond a reasonable doubt means proof which is so
convincing that you would not hesitate to rely and act on it
in making the most important decisions in your own lives.
In the end, I concluded beyond a reasonable doubt that President
Clinton repeatedly lied under oath before a federal grand jury. I also
concluded beyond a reasonable doubt that he engaged in a calculated,
premeditated campaign to obstruct justice. I now wish to address each
of those articles of impeachment in turn.
Grand Jury Perjury
The circumstantial and direct evidence demonstrates beyond a
reasonable doubt that President Clinton committed perjury during his
grand jury appearance. The criminal law of the United States forbids
perjury before a grand jury. To prove a case of grand jury perjury, a
prosecutor must demonstrate: (1) that the defendant testified under
oath before a grand jury; (2) that the testimony so given was false in
one or more respects; (3) the false testimony concerned material
matters; and (4) the false testimony was knowingly given. There are
three instances during the President's August 17, 1998 grand jury
testimony in which these four elements were established.
First, he lied when he denied that he had ``sexual relations'' with
Ms. Lewinsky, even under his own interpretation of the definition of
that term. Quite simply, Ms. Lewinsky offered a detailed account of
numerous times when they did engage in such relations, even under
President Clinton's interpretation of that term. Her testimony is
corroborated by contemporaneous accounts she offered to a number of
friends and professional counselors. President Clinton conjured up a
tortured definition of the term ``sexual relations'' to explain the
blue dress (and its physical evidence corroborating sexual relations)
to the grand jury--while still asserting the truthfulness of his
earlier denial of ``sexual relations'' in his deposition in the Paula
Jones sexual harassment suit. This attempt to have it both ways, in
turn, forced him to lie before the grand jury about the details and
nature of his relationship with Ms. Lewinsky. There is no doubt in my
mind that President Clinton lied about this matter. Moreover, this lie
was material; that is, it had the tendency to affect the grand jury's
investigation. That investigation focused on President Clinton's
possible perjury and obstruction of justice in the Jones case. Lying to
the grand jury to attempt to deny the earlier perjury in the Jones
deposition was clearly material to that investigation.
Second, President Clinton lied to the grand jury about his attempt to
coach Ms. Currie immediately following the deposition. This coaching,
which I will discuss in more detail later, was explicitly denied by the
President before the grand jury. His testimony that he made a series of
false statements to Ms. Currie and sought her agreement with them
merely in an attempt ``to refresh [his] memory about what the facts
were'' and that he was ``trying to get as much information as quickly
as [he] could'' is false. He did not ask her what she recalled; he made
false declarations and sought her agreement with them. One cannot
refresh one's recollection by making knowingly false statements to
another. This is a classic example of why courts instruct juries to use
their common sense in resolving factual disputes. Moreover, President
Clinton coached her twice in
[[Page S1527]]
the exact same manner: Once on January 18, 1998, and again on January
20 or January 21. He had just finished lying in his civil deposition on
January 17, and he wanted to enlist her support for his lies if she was
called by Paula Jones' lawyers--as she was on January 22. Again, this
issue was plainly material to an investigation into President Clinton's
possible obstruction of justice.
Third, President Clinton lied to the grand jury about attempting to
influence the testimony of his aides whom he knew would be called
before the grand jury. These allegations are discussed later. For now,
it is only important to note that he testified that he ``said to them
things that were true about this relationship. . . . So, I said things
that were true. They may have been misleading. . . .'' In fact, he lied
to his aides, as even Sidney Blumenthal stated in his videotaped
deposition testimony. It is understandable that President Clinton would
not admit to the grand jury that he lied to these aides, because to do
so would admit that he obstructed justice. He could have asserted his
fifth amendment right against self-incrimination; however, he chose to
lie. He denied that he had lied to these aides. The Supreme Court has
addressed just this sort of a lie, stating: ``A citizen may decline to
answer the question, or answer it honestly, but he cannot with impunity
knowingly and willfully answer with a falsehood.''
Obstruction of Justice
The evidence establishes beyond a reasonable doubt that President
Clinton obstructed justice. He suggested that Ms. Lewinsky submit a
false affidavit in a civil case. He coached a potential witness (Ms.
Currie) in the civil case and the grand jury investigation by repeating
a series of assertions to her that he knew to be false in the hope that
she would adopt those assertions as her own. Last, he made false
statements to his top advisors, knowing that they would then repeat
those statements to a federal grand jury.
The United States criminal code makes it illegal for one to obstruct
justice. The precise wording of the general obstruction of justice
statute--Title 18, section 1503 of the United States Code--provides:
``Whoever . . . corruptly . . . influences, obstructs, or impedes, or
endeavors to influence, obstruct, or impede, the due administration of
justice, shall be punished. . . .'' Courts have interpreted the word
``corruptly'' to mean that the defendant had an intent to obstruct,
impair, or impede the due administration of justice. In other words,
one need not use threats of force or intimidation to obstruct justice.
Thus, one who merely proposes to a potential witness that the witness
lie in a judicial proceeding is guilty of obstructing justice.
Also, an additional federal statute, section 1512 of Title 18, deals
specifically with witness tampering. It provides: ``Whoever . . .
corruptly persuades another person, or attempts to do so, or engages in
misleading conduct toward another person with intent to . . .
influence, delay, or prevent the testimony of any person in an official
proceeding . . . shall be fined under this title or imprisoned. . . .''
Unlike section 1503, section 1512 has been interpreted as applying to
more than just ``pending'' judicial proceedings; courts have found it
adequate that a defendant ``feared'' that such a proceeding might begin
and sought to influence the testimony of those who may be witnesses in
such a proceeding.
With this statutory backdrop in mind, I turn first to the allegation
that President Clinton urged Ms. Lewinsky to submit a false affidavit
and deny their sexual relationship. The evidence establishes that he
telephoned her between 2:00 and 2:30 a.m. on December 17, 1997.
According to Ms. Lewinsky, President Clinton informed her that she was
on the witness list in the Paula Jones sexual harassment lawsuit. He
then suggested that, if she were subpoenaed to give a deposition, ``she
could sign an affidavit to try to satisfy [Ms. Jones's] inquiry and not
be deposed.'' As has been pointed out, a truthful affidavit about their
relationship would not have prevented her deposition; in fact, a
truthful affidavit would have encouraged the deposition.
Notwithstanding this obvious fact, President Clinton's lawyers
vigorously asserted at trial that a ``limited but truthful'' affidavit
could have misled the Jones lawyers sufficiently to avoid her being
deposed.
The problem with this defense is that President Clinton on December
17, in the very same telephone conversation in which he suggested the
affidavit, also encouraged Ms. Lewinsky to continue with the ``cover
stories'' they had used to hide their relationship. According to Ms.
Lewinsky, he told her that she ``should say she visited [the White
House] to see Ms. Currie and, on occasion when working at [the White
House] she brought him letters when no one else was around.'' Of
course, Ms. Lewinsky was going to the White House to see President
Clinton, and the only time she ``brought him letters'' was to cover
their illicit rendezvous. These cover stories, hatched as explanations
to prevent co-workers from discovering their sexual relationship,
amounted to obstruction of justice when the President suggested their
use in judicial proceedings. These cover stories ultimately found their
way into drafts of Ms. Lewinsky's affidavit. The evidence establishes
beyond a reasonable doubt that President Clinton was urging Ms.
Lewinsky to file a false and misleading affidavit in the Jones case.
As one court has observed, conduct amounting to less than an explicit
command to lie can nonetheless form the basis for an obstruction
conviction: ``The statute prohibits elliptical suggestions as much as
it does direct commands.'' There is no reasonable doubt that President
Clinton was suggesting that Ms. Lewinsky file an affidavit consistent
with their previously-agreed upon cover stories. Ms. Lewinsky testified
that she understood after that conversation that she would deny their
relationship to Paula Jones' lawyers.
The evidence also establishes beyond a reasonable doubt that
President Clinton sought to tamper with the testimony of his secretary,
Ms. Currie. Within a few hours of completing his deposition in the
Jones case on Saturday, January 17, 1998, President Clinton called
Betty Currie and made an unusual request: She should come to work to
meet with him the following day, Sunday. Sunday afternoon, she met with
him at her desk outside the Oval Office. Ms. Currie testified that he
seemed ``concerned.'' He told her that he had been asked questions the
previous day about Ms. Lewinsky. According to Ms. Currie, he then said,
```There are several things you may want to know.''' After that, he
made a series of statements:
``You were always there when she was there, right?''
``We were never really alone.''
``Monica came on to me, and I never touched her, right?''
``You can see and hear everything, right?''
``Monica wanted to have sex with me, but I told her I
couldn't do that.''
Ms. Currie further testified that, although President Clinton did not
``pressure'' her, she observed from his demeanor and the way he said
these statements that he wanted her to agree with those statements. She
did agree with each statement, though she knew them to be false or
beyond her knowledge.
There is no reasonable doubt that this meeting was an attempt by
President Clinton to coach Ms. Currie's probable testimony. In fact,
during the previous day's deposition, President Clinton invoked Ms.
Currie's name in relation to Ms. Lewinsky on at least six different
occasions, even going so far as to tell Ms. Jones' lawyers that they
would have to ``ask Betty'' whether he was ever alone with Ms. Lewinsky
between midnight and 6:00 a.m. Simply put, he made her a potential
witness in the Jones case. One who attempts to corruptly influence the
testimony of a prospective witness has obstructed justice. (In fact,
the Jones lawyers issued a subpoena for Ms. Currie a few days after
President Clinton's deposition.)
President Clinton's assertion that he posed these statements to Ms.
Currie merely to refresh his recollection and test her own memory of
the events is undercut by his repetition of the coaching exercise a few
days later. According to Ms. Currie, either two or three days later he
called her in again, presented the same statements (with which she
again agreed), and had the same ``tone and demeanor'' as he had during
the Sunday coaching session. This amounted to egregious witness
tampering.
Last, the unrefuted evidence establishes beyond a reasonable doubt
that
[[Page S1528]]
President Clinton obstructed justice by giving a false account of his
relationship with Ms. Lewinsky to aides that, by his own admission, he
knew might be called by the grand jury. John Podesta, then-Deputy Chief
of Staff to President Clinton, testified before the grand jury about a
conversation with President Clinton on January 23, 1998:
[H]e said to me he had never had sex with her [Ms.
Lewinsky], and that--and that he never asked--you know, he
repeated the denial, but he was extremely explicit in saying
he never had sex with her.
* * * * *
Well, I think he said--he said that--there was some spate
of, you know, what sex acts were counted, and he said that he
had never had sex with her in any way whatsoever--that they
had not had oral sex.
This, as we now know, was false. Yet, according to Mr. Podesta,
President Clinton ``was very forceful. I believed what he was saying.''
More important, on January 21, 1998, President Clinton told aide
Sidney Blumenthal the following utterly false story:
He said, ``Monica Lewinsky came at me and made a sexual
demand on me.'' He rebuffed her. He said, ``I've gone down
that road before, I've caused pain for a lot of people and
I'm not going to do that again.''
She threatened him. She said that she would tell people
they'd had an affair, that she was known as the stalker among
her peers, and that she hated it and if she had an affair or
said she had an affair then she wouldn't be a stalker any
more.
This story is eerily reminiscent of President Clinton's coaching of
Betty Currie (``Monica wanted to have sex with me, but I told her I
couldn't do that.''). President Clinton sought to portray himself as a
victim of Ms. Lewinsky. At the time, Mr. Blumenthal ``certainly
believed his story. It was a very heartfelt story, he was pouring out
his heart, and I believed him.'' Mr. Blumenthal admitted to the Senate
that he now knows the President's story was a lie.
President Clinton does not deny the testimony of either Mr. Podesta
or Mr. Blumenthal. Their testimony establishes a clear-cut case of
obstruction. The President admitted knowing that both were likely to be
called to testify before the grand jury. According to their testimony,
he provided them with a false account of his relationship with Ms.
Lewinsky--and President Clinton does not deny their version of events.
The unrefuted evidence establishes obstruction of justice. As the
Second Circuit Court of Appeals has stated: ``The most obvious example
of a section 1512 [witness tampering] violation may be the situation
where a defendant tells a potential witness a false story as if the
story were true, intending that the witness believe the story and
testify to it before the grand jury.''
I did not vote to convict President Clinton on every ground presented
by the House Managers. For example, though I was concerned that the
intensification of efforts to secure Ms. Lewinsky a private sector job
were undertaken to influence her testimony (and secure a false
affidavit from her), I had reasonable doubt that there was a
sufficiently direct nexus between the two to justify finding against
President Clinton on that basis. The videotaped testimony of Vernon
Jordan nearly made the case, but fell just short. Accordingly, I did
not consider that element of the obstruction of justice case to be
grounds for removing President Clinton.
Another serious allegation of obstruction of justice concerned the
mysterious fact that subpoenaed gifts from President Clinton to Ms.
Lewinsky were found underneath Ms. Currie's bed. The evidence tends to
establish that President Clinton directed Ms. Currie to get gifts from
Ms. Lewinsky; however, I cannot say that the proof establishes beyond a
reasonable doubt that this occurred. In the absence of hearing directly
from Ms. Currie as a witness on this issue and having the chance to
look her in the eye and gauge her credibility, I cannot resolve beyond
a reasonable doubt the testimonial conflict between Ms. Lewinsky and
Ms. Currie on who initiated the return of the gifts. The weight of the
evidence suggests that Ms. Currie initiated the return on instructions
from President Clinton; however, without Ms. Currie's testimony, I
cannot say that case has been proven ``beyond a reasonable doubt.''
For this reason, I am disappointed that the Senate chose to cut
itself off from hearing from whatever fact witnesses either side wished
to call. I voted to allow live testimony, but the motion was
unsuccessful. Although there was ample evidence upon which to convict
for many allegations, some allegations remain in doubt. Rather than
have a traditional trial, we listened to lawyers argue, then argue some
more, and then a bit more. The only time we actually had a chance to
see witnesses was when we were allowed to see the videotapes of Ms.
Lewinsky, Mr. Jordan, and Mr. Blumenthal. I learned from those tapes.
The presence of live witnesses in accord with Senate precedent would
have been helpful. I regret that the Senate chose not to allow live
witnesses and that we did not see their cross-examination. We did not
use the most powerful weapons in our truth-seeking arsenal. This
truncated ``trial'' may have been politically expedient, but I doubt
history will judge it kindly.
High Crimes and Misdemeanors
Having found that President Clinton committed the crimes of perjury
and obstruction of justice, my duty to uphold the Constitution of the
United States made it clear that these offenses were high crimes and
misdemeanors requiring his removal from office. There is no serious
question that perjury and obstruction of justice are high crimes and
misdemeanors. Blackstone's famous Commentaries--widely read by the
framers of the Constitution--put perjury on equal footing with bribery
as a crime against the state. Perjury was understood to be as serious
as bribery, which is specifically mentioned in the Constitution as a
ground for impeachment. Today, we punish perjury and obstruction of
justice at least as severely as we punish bribery. Apparently, the
seriousness of perjury and obstruction of justice has not diminished
over time.
Indeed, our own Senate precedent establishes that perjury is a high
crime and misdemeanor. The Senate has removed seven federal judges from
office. During the 1980s, three judges were convicted for the high
crime and misdemeanor of perjury. Federal judges are removed under the
exact same Constitutional provision--Article II, section 4--upon which
we remove presidents. To not remove President Clinton for grand jury
perjury lowers uniquely the Constitution's removal standard, and thus
requires less of the man who appoints all federal judges than we
require of those judges themselves.
I will have no part in the creation of a constitutional double-
standard to benefit the President. He is not above the law. If an
ordinary citizen committed these crimes, he would go to jail. Many
senators have voted to remove federal judges guilty of perjury, and I
have no doubt that the Senate would do so again. Those who by their
votes today confer immunity on the President for the same crimes do
violence to the core principle that we are all entitled to equal
justice under law.
Moreover, I agree with the view of Judge Griffin Bell, President
Jimmy Carter's Attorney General and a former Judge of the United States
Court of Appeals, Fifth Circuit. Judge Bell has stated: ``A President
cannot faithfully execute the laws if he himself is breaking them.''
These offenses--perjury and obstruction of justice--are not trivial;
they represent an assault on the judicial process. Again, Judge Bell's
words are instructive:
Truth and fairness are the two essential elements in a
judicial system, and all of these statutes I mentioned,
perjury, tampering with a witness, obstruction of justice,
all [are] in the interest of truth. If we don't have truth in
the judicial process and in the court system in our country,
we don't have anything. So, this is serious business.
I agree. The crimes of perjury and obstruction of justice are public
crimes threatening the administration of justice. They therefore fit
Alexander Hamilton's famous description of impeachable offenses in
Federalist No. 65: ``[O]ffences which proceed from the misconduct of
public men, or, in other words, from the abuse or violation of some
public trust.'' The electorate entrusted President Clinton to enforce
the laws, yet he chose to engage in a pattern of public crime against
our system of justice. We must not countenance the commission of such
serious crimes by the chief executive of our nation.
The President broke his oath to tell the truth, the whole truth, and
nothing
[[Page S1529]]
but the truth, so help him God. He likewise broke his oaths to take
care that the laws be faithfully executed.
Just how important are oaths? We take oaths to substantiate the
sanctity of some of our highest callings. Years ago, I took the
Hippocratic Oath to become a physician. In January 1995, I took an oath
of office as a United States Senator to preserve, protect, and defend
the Constitution of the United States. Then, just last month, I had to
take a special oath of impartial justice for this impeachment trial.
Raising your right hand and swearing before God is meant to be serious
business. Swearing falsely is equally serious. I recall the conclusion
of the Hippocratic Oath:
If I fulfil this oath and do not violate it, may it be
granted to me to enjoy life and art, being honored with fame
among all men for all time to come; if I transgress it and
swear falsely, may the opposite of all this be my lot.
President Clinton broke his oaths; the opposite of honor and fame
should be his lot.
Many of my colleagues have publicly expressed their belief that
President Clinton broke his oaths and committed the crimes of perjury
and obstruction of justice. Some have gone further and said that these
are high crimes and misdemeanors. Yet they flinched from removing
President Clinton from office, hoping that we could just move on, put
this behind us, and ``heal'' the Nation.
Although our acquittal of President Clinton may bring initial relief
at the end of this ordeal, it will also leave unfortunate, lasting
lessons for the American people: Integrity is a second-class value; the
hard job of being truthful is to be left to others; and virtue is for
the credulous. Though we do not know how these lessons will manifest
themselves over time in our society, they will not be lost. Thus, I do
not believe the acquittal of President Clinton will heal the wounds of
this ordeal; rather, acquittal regrettably will inject a slow-acting
moral poison into the American consciousness.
Concluding Thoughts
There is one aspect of the case that made me uncomfortable: The
perjury and obstruction of justice arose out of an illicit sexual
relationship between President Clinton and a young White House intern.
President Clinton no doubt sought to shield the knowledge of that
relationship from his family and staff, and that impulse is
understandable. However reprehensible his affair might be, both it and
his efforts to hide it were originally of no concern to the public or
the Senate. None of us can claim to be free from sin.
What began as an attempt to keep an affair secret from family and co-
workers, however, escalated into illegal activity when keeping that
affair secret trumped the civil rights of Paula Jones to seek redress
in court, and, in turn, thwarted the investigation of a federal grand
jury. President Clinton chose to cheat. Cheating the judicial process,
whether to keep an ordinary citizen from having her day in court or to
avoid criminal indictment, is wrong.
Dr. William Osler was a late 19th century physician and is regarded
as the father of modern surgery. In a lecture to his medical students
about the pursuit of truth, he said:
Start with the conviction that absolute truth is hard to
reach in matters relating to our fellow creatures, healthy or
diseased, that slips in observation are inevitable even with
the best trained faculties, that errors in judgment must
occur in the practice of an art which consists largely in
balancing probabilities.
Start, I say, with this attitude of mind, and mistakes will
be acknowledged and regretted; but instead of a slow process
of self-deception, with ever-increasing inability to
recognize truth, you will draw from your errors the very
lessons which may enable you to avoid their repetition.
President Clinton's repetition of wrong, often illegal choices most
disturbs me. He faced a series of choices about his affair once our
system of justice became concerned with it. He could have come clean in
the civil deposition and urged Ms. Lewinsky to do the same. He did not.
When the story became public, he could have then come clean to the
American public and revised his deposition testimony. Instead, he took
a poll. Having learned that the American people would forgive him for
adultery, but not for perjury or obstruction of justice, he declared
that he would just have to ``win.'' He then wagged his finger at us on
national TV and chided us for believing what has since proven true. He
embarked on a quiet smear campaign against Ms. Lewinsky, calling her a
``stalker'' and sending aides into the grand jury to repeat that mean-
spirited falsehood. Above all else, he could have come clean when he
went before the grand jury. Indeed, the discovery of the infamous blue
dress served as a powerful reminder to tell the truth. But he continued
to lie.
The pattern of behavior is disturbing. That pattern is driven by
President Clinton's choice, on every occasion in this saga, to put his
self-interest above the the public interest. Indeed, President Clinton
is well down the dangerous road Dr. Osler described to his students:
``A slow process of self-deception.''
To me, his perjury before the grand jury was defining. Some of my
fellow senators urged him not to lie in that grand jury, lest he be
impeached. He had a chance to try to set matters right by the American
people and by our system of justice. Instead, he lied. It has been
said, ``Character is what we know about ourselves. Reputation is what
others know about us.'' What we now know about President Clinton's
conduct before the bar of justice illuminates his integrity: We learned
that he always cheated and put himself above the law. We can pray that
God forgive President Clinton for his sins, but we cannot ignore the
consequences of his behavior to our society.
We in the Senate faced the difficult choice of deciding whether to
remove President Clinton. To find him ``not guilty'' of perjury and
obstruction of justice and leave him in office would corrode the
respect we all have for the Office of President. More troubling, the
example to our youth would be destructive. I have three sons, 15, 13,
and 11 years old. As anyone with children knows, President Clinton's
conduct has undermined all our efforts to instill in our children two
essential virtues: truthfulness and responsibility. If we allow a known
perjurer and obstructor of justice to continue in the Office of
President and lead us into the 21st Century, we set a sad example for
future generations.
In a recent sermon on the topic, ``What Do I Tell My Children about
the Crisis in Washington?'' a minister quoted from Michael Novak's book
The Experience of Nothingness:
The young have a right to learn a way of discriminating
right from wrong, the posed from the authentic, the excellent
from the mediocre, the brilliant from the philistine, the
shoddy from the workmanlike. When no one with experience
bothers to insist--to insist--on such discrimination, they
rightly get the idea that discernment is not important, that
no one cares either about such things--or about them.
President Clinton committed perjury and obstructed justice. In so
doing, he broke his oath of office and his oath to tell the truth. He
broke the public trust. I took an oath to do impartial justice by the
Constitution and laws of our country. I had a duty to the Constitution
and laws of this nation to convict President Clinton, so I voted to
remove him from office and restore the trust of the American people in
the high Office of President. Prosperity is never an excuse to keep a
President who has committed High Crimes and Misdemeanors.
Though many of my colleagues agreed with these conclusions, two-
thirds of the Senate did not. I am concerned about the message this
acquittal will send to our youth. So, I am convinced that you and I now
have a shared duty: Rather than give in to easy cynicism, we should
work toward integrity and responsibility in all that we do. We must
remind our children that telling the truth and accepting responsibility
for wrongdoing are virtues with currency. Our nation's future depends
on how earnestly we fulfill that shared duty.
Mr. BUNNING. This is my first speech on the floor of the U.S. Senate.
I had hoped my opening speech would be about Social Security. This
year, in my opinion, we have a golden window of opportunity to reform
and strengthen this vital program and I had hoped to use my first
comments on the Senate floor to help open the debate on real Social
Security reform.
Unfortunately, it didn't turn out that way. Of necessity, my opening
speech in this body is about the Articles of Impeachment against
President Clinton. It was not my choice!
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In fact, none of us have much choice in this matter. Here in the U.S.
Senate, we have been charged with the responsibility of looking at the
facts as presented by the managers from the House of Representatives.
Each of us took an oath to do impartial justice.
And the Constitution doesn't give us much wiggle room when it comes
to choices. The Framers were pretty explicit about out options. If we
determine that the President is guilty of the charges as outlined in
the two Articles of Impeachment, the penalty is removal from office. We
have no other choice.
Because we are all political animals, I think it is natural that the
legitimacy of this process and the outcome of this debate will be
clouded to some degree by the perception that it is a partisan
exercise.
Many of the President's defenders and many of our friends in the
media, in fact, have insisted all along that the whole process has been
driven by partisan Republicans who are intent to removing a Democrat
President they do not like from office.
The difficulty you run into when you start throwing around the term
``partisan'' politics is that is seldom a one-way street.
Is it any more ``partisan'' to blindly support the impeachment of a
President of the other party than it is to blindly support a President
of your own regardless of the facts? Of course not. Just as each of us,
in keeping with our oath to do impartial justice, must strive to avoid
a partisan, knee-jerk solution to the process, we must also not let
ourselves be deterred from doing what we feel is right simply to avoid
charges of partisanship.
So, hiding behind the charge that the process has been tainted by
political partisanship gives us no relief from our responsibility to
look at the facts nor does it expand our choices.
So, it is the facts that matter. And each of us must weigh them
individually. We are not taking about public opinion polls. They should
have no bearing on the case at this point. It is a question of facts
pure and simple.
Each of us must weigh those facts individually. We might reach
different conclusions. But if I determine that the president is guilty,
and if you determine that the president is guilty, based on those facts
we don't have any options. We must vote to convict and to remove the
President from office.
I am personally convinced that the President is guilty under both of
the Articles of Impeachment presented to us by the House Managers.
The managers from the House have presented a strong case that
President Clinton committed perjury. The circumstantial and supporting
evidence is overwhelming that Bill Clinton did lie under oath to the
grand jury when he testified about his attorney's use of a false
affidavit at his deposition. He lied under oath to the grand jury when
he testified about the nature of his relationship with Miss Lewinsky.
He lied under oath about what he told his aides about his relationship
with Miss Lewinksky. He lied under oath to the grand jury when he
testified about the nature of his relationship with Miss Lewinsky. He
lied under oath about what he told his aides about his relationship
with Miss Lewinsky. He lied under oath to the grand jury about his
conversations with Betty Currie.
That is perjury. That is a felony. We cannot uphold our reverence for
the rule of law and ignore it.
The circumstantial and supporting evidence is also overwhelming that
the President did willfully obstruct justice when he encouraged Miss
Lewinsky to file a affidavit in the Jones case; when he coached Betty
Currie on how to respond to questions about his relationship with Miss
Lewinsky.
When he lied to aides whom he knew would be called as a grand jury
witnesses, when he promoted a job search for Miss Lewinsky, and when he
encouraged Miss Lewinsky to return the gifts he had given her, he was
attempting to obstruct justice.
After listening to the facts and the evidence, and after listening to
the President's defense team try to refute the charges, I have
determined that he is guilty as charged.
I have tried to the best of my ability to reach this determination
impartially without being biased by my political affiliation. Have I
been successful? I believe so.
I am encouraged in the belief that I have reached the proper
conclusion for the proper reasons by the harsh wording of the
resolution being circulated by some of the defenders of the President,
senators who oppose impeachment but support a censure resolution.
The most recent version of a censure resolution that I have seen
admits that the President engaged in shameless, reckless and
indefensible conduct. It goes on to say that the President of the
United States deliberately misled and deceived the American people and
officials of the United States government.
It also says that the President gave false or misleading testimony,
and impeded discovery of evidence in judicial proceedings and that, as
a result, he deserves censure.
These are the people who are opposed to the Articles of Impeachment.
The Constitution doesn't really give us that kind of choice. If the
President is guilty of these charges, he must be convicted and he must
be removed from office. Censure is not an option.
I would rather be speaking about Social Security but I wasn't given a
choice in the matter.
I would prefer not to vote to convict any President of Articles of
Impeachment. But I don't have a choice in that matter either.
If he is guilty, he must be convicted. And I believe he is guilty as
charged.
There is one central, elemental ingredient that is necessary to the
success of our ability, as a nation, to govern ourselves. That is
trust.
Before a President takes office, he swears a solemn oath, to
``preserve, protect and defend the Constitution of the United States.''
We accept his word on that.
When the Vice President, United States Senators and members of the
House of Representatives take office, they are required to take an oath
``to support and defend the Constitution of the United States against
all enemies, foreign and domestic.''
We trust that they will live up to that oath.
We administer these oaths and we accept them as binding because
government, at least in this nation, is, above all else, a matter of
trust. Trust is the glue that holds it all together. If that trust is
destroyed or tarnished, it seriously undermines the basic foundations
of our government.
The President's defenders try to excuse him by saying that if he did
lie under oath and obstruct justice, he did it to protect himself and
his family from personal embarrassment about sexual indiscretions, and
somehow this makes the lies all right.
It doesn't. When he lied and when he tried to hide his lies from the
grand jury, he broke trust with the nation's justice system. He broke
faith with the American people.
Not only did he break the law, he also violated the sacred trust of
the office of the President. And in so doing, he violated his oath of
office.
And that raises the two Articles of Impeachment to a level that
definitely justifies his removal from office.
It is a matter of trust. And it leaves us no choice but to vote for
conviction.
Mr. DURBIN. From the opening statement to the closing argument,
Chairman Henry Hyde and the House managers stated repeatedly that what
is at stake in this trial is the rule of law.
In a compelling reference to the life of Sir Thomas More, Mr. Hyde
quoted from ``A Man for All Seasons'' by Robert Bolt to remind us that
More was prepared to die rather than swear a false oath of loyalty to
the King and his church.
But Mr. Hyde did not read my favorite passage from that work. Let me
share it with you and tell you why I think it is important to us in
this deliberation.
MORE. The law, Roper, the law. I know what's legal not
what's right. And I'll stick to what's legal.
ROPER. Then you set Man's law above God's!
MORE. No far below; but let me draw your attention to a
fact--I'm not God. The currents and eddies of right and
wrong, which you find such plain-sailing, I can't navigate,
I'm no voyager. But in the thickets of the law, oh there I'm
a forester. I doubt if there's a man alive who could follow
me there, thank God.
ALICE. While you talk, he's gone!
MORE. And go he should if he was the devil himself until he
broke the law!
ROPER. So now you'd give the Devil benefit of law!
MORE. Yes. What would you do? Cut a great road through the
law to get after the Devil?
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ROPER. I'd cut down every law in England to do that!
MORE. Oh? And when the last law was down, and the Devil
turned round on you--where would you hide, Roper, the laws
all being flat? This country's planted thick with laws from
coast to coast--Man's laws, not God's--and if you cut them
down--and you're just the man to do it--d'you really think
you could stand upright in the winds that would blow then?
Yes, I'd give the Devil benefit of law, for my own safety's
sake.
Sir Thomas More's words remind us the law must be followed not only
by the accused but also by the accusers.
And every day in America many who are accused of crimes are released
because this government has violated their constitutional rights--
denied them due process--forsaken the rule of law.
How American of us--we are prepared to release an accused because the
accuser has not played by the rules * * * the rules of law.
The House managers built their case on one key question: Did the
President respect the rule of law?
But the same managers who exalted the rule of law from their opening
words would have us ignore the process which brought us to this moment:
An independent counsel in name only whose conduct before the House
Judiciary Committee led Sam Dash, former Watergate counsel and Mr.
Starr's ethics advisor, to resign in protest.
Listen to Dash's words to Kenneth Starr in his letter of resignation
concerning Starr's appearance and testimony:
In doing this you have violated your obligation under the
Independent Counsel Statute and have unlawfully intruded on
the power of impeachment, which the Constitution gives solely
to the House. . .. By your willingness to serve in this
improper role (advocating for impeachment) you have seriously
harmed the public confidence in the independence and
objectivity of your office.
Much has been made about the so-called pep rally which some House
Democrats held for President Clinton at the White House after the
impeachment vote. If you wonder how those members could act in such an
apparently partisan manner after the historic vote on December 19,
1998, I hope you will recall that the Republican members of the House
Judiciary Committee gave Mr. Starr nothing less than a standing ovation
when he completed testimony which Mr. Dash characterized as
``unlawful'' and ``improper''.
Is it any wonder why the American people think this whole impeachment
process reeks of partisanship and the excesses of the Independent
Counsel have created a bipartisan sentiment to amend if not abolish
that statute?
Did Mr. Starr respect the rule of law?
And the House Judiciary Committee--so anxious to complete its work in
a lame-duck session that it would vote for impeachment without calling
a single material witness. Then those same managers came to the Senate
and argued justice cannot be served without live witnesses on the
Senate floor.
When I listen to Paul Sarbanes recount the painstaking efforts to
avoid partisanship during the impeachment hearing on President Nixon,
it is a stark contrast to the committee process which voted these
articles of impeachment against President Clinton.
Did the House Judiciary Committee respect the rule of law?
And the House of Representatives, an institution which I was proud to
serve in for 14 years, was so hellbent on impeachment that it bent the
rules, denied the regular order of business and refused the House a
vote to censure this President so the Majority would have a better
chance to visit the disgrace of impeachment on his record.
Did the House of Representatives respect the rule of law?
But it would be too facile to dismiss this case simply because the
process which brought us to this point is so suspect--too easy to
discard the fruit of this poisoned tree.
Justice and history will not give us this easy exit. We must ignore
the birthing of this impeachment and judge it on its merits.
First, let me stipulate the obvious. The personal conduct of this
President has been disgraceful and dishonorable. He has brought shame
on himself and his Presidency. No one--not any Senator in this Chamber
nor any person in this country--will look at this President in the same
way again.
I have known Bill Clinton for 35 years. I remember him as a popular
student when we both attended Georgetown. And I know despite all of the
talk about ``compartmentalization'' that this man has suffered the
greatest humiliation of any President in our history. I hope his
marriage and his family can survive it.
But our job is not to judge Bill Clinton as a person, a husband, a
father. Our responsibility under the Constitution is to judge Bill
Clinton as a President, not whether he should be an object of scorn but
whether he should be removed from office.
Did William Jefferson Clinton commit perjury or obstruct justice, and
for these acts should he be removed from office?
When this trial began I believed that President Clinton's only refuge
was in a strict reading of ``high crimes and misdemeanors''--that James
Madison, George Mason and Alexander Hamilton would have to serve as his
defense team and save this President from removal.
The managers' case was compelling, but as the defense team rebutted
their evidence I saw the charges of perjury crack, obstruction of
justice crumble and impeachment collapse.
The managers failed in Article I on perjury to meet the most basic
requirement of the law: specificity. In the Andrew Johnson impeachment
trial, Senator William Fessenden of Maine pointed out the unfairness of
failing to name specific charges:
It would be contrary to every principle of justice to the
clearest dictates of right, to try and condemn any man,
however guilty he may be thought, for an offense not charged,
of which no notice has been given to him, and against which
he has had no opportunity to defend himself.
Senator Fessenden understood the rule of law.
And by what standard should the President be judged?
When the House managers discussed the gravity of the case for
impeachment, they said repeatedly: ``These are crimes.'' But when asked
why they failed to meet the most basic criminal procedural requirements
of pleading and proof, Mr. Canady said: ``This proceeding is not a
criminal trial.''
And what is the difference between charging a crime and proving
something less than a crime? The difference is known as the rule of
law--a rule which requires fair notice and due process whether the
accused is President or penniless.
How many times have we seen the House managers run into the brick
wall of sworn testimony contradicting their charges. On gifts--Monica
Lewinsky said hiding them was Betty Currie's idea--Betty Currie claimed
it was Lewinsky's idea--neither of them claimed it was the President's
idea. On the affidavit issue--the House Managers could not produce one
witness--not Lewinsky, not Jordan and not the President to support
their charge of obstruction.
Time and again the House managers failed to prove their case--failed
to produce testimony or evidence and at best played to a draw. I don't
need to remind my colleagues in the Senate that playing to a draw on
this field comes down in favor of the President.
The House managers failed to meet their burden of proof.
And let me say a word about witnesses.
We have spent a lot of time on this issue. I do not know who came up
with the limitation of three witnesses for the managers. But is there
anyone in this chamber who believes that Sidney Blumenthal was a more
valuable witness to this case than Betty Currie?
Surely my colleagues in the Senate remember that the House managers
spent three solid days building their obstruction of justice case on
concealing gifts and tampering with witnesses. And Betty Currie was
critical to the most credible charges against the President.
Then when the House managers were given a chance to call this key
witness, they refused.
And what can we conclude from this tactical decision? Let me read
Rule 14.15 from Instructions for Federal Criminal Cases.
If it is peculiarly within the power of either the
government or the defense to produce a witness who could give
relevant testimony on an issue in the case, failure to call
that witness may give rise to an inference that this
testimony would have been unfavorable to that party. No such
conclusion should be drawn by you, however, with regard to a
witness who is equally available
[[Page S1532]]
to both parties or where the testimony of that witness would
be merely cumulative.
The jury must always bear in mind that the law never
imposes on a defendant in a criminal case the burden or duty
of calling any witnesses or producing any evidence.
Betty Currie was no help to the House managers in her deposition and
they clearly concluded she was more likely to hurt than help their case
if called as a witness. The key witness in the obstruction of justice
charge never materialized and neither did the proof the House managers
needed.
How will history judge this chapter in our history?
The House managers and many of my colleagues believe an acquittal
will violate the basic American principle of equal justice under the
law--they argue that acquitting the President will cheapen the
Presidency--and imperil our nation and its values.
I have heard my colleagues stand in disbelief that the American
people could still want a man they find so lacking in character to
continue as their President. William Bennett and his pharisaical
followers have profited from books and lectures decrying the lack of
moral outrage in our nation against Bill Clinton.
I hope my colleagues will pause and reflect on this conclusion that
the American people have somehow lost their moral compass--that the
polls demonstrate our people have lost their soul--and that we, their
elected leaders, have to impeach this President to remind the American
people of the values--the integrity--the honor which is so important to
our nation.
May I respectfully suggest that those who appoint themselves as the
guardians of moral order in America risk the vices of pride and
arrogance themselves. Before we don the armor and choose our side in
what Manager Hyde calls a ``cultural war,'' let us not give up on the
wisdom and judgement of the people we represent.
Like Abraham Lincoln, I am a firm believer in the American people. If
given the truth they can be depended upon to meet any national crisis.
And the American people have this right. The President's personal
conduct was clearly wrong. He has endured embarrassment and will spend
the rest of his natural life and forever in the annals of history
branded by this experience. The American people clearly believe that
the process which brings him before us in this trial was too partisan,
too unfair, too suspect.
What has occurred here is a personal and family tragedy--it is not a
national tragedy which should result in the removal of this President
from office.
In 1798, Thomas Jefferson wrote to James Madison: ``History shows
that in England, impeachment has been an engine more of passion than
justice.''
Jefferson feared that even our process for impeachment could be a
formidable partisan weapon. He feared that a determined faction in
Congress would use it ``. . .for getting rid of any man whom they
consider as dangerous to their views, and I do not know that we could
count on one-third in an emergency.''
In 1868, with the suffering and death of our Civil War still fresh in
everyone's mind, this Senate came within one vote of impeaching a
President who was viewed as too sympathetic to the vanquished South.
In 1999, after six years and millions of tax dollars spent in
investigation of this President, I believe the Senate will once again
cool the political passions, preserve the Presidency, protect the
Constitution, and prove to Thomas Jefferson that his trust in this body
and that great document was not misplaced.
I will vote to acquit William Jefferson Clinton on both Articles of
Impeachment and support a strong resolution of censure to bring this
sad chapter in American politics to a close.
Mr. KYL. This case is about the rule of law--specifically, whether
actions and statements of President Clinton in federal court
proceedings have done such harm to the rule of law that he should be
removed from office. I conclude in the affirmative, and reluctantly
vote to convict on both Articles of Impeachment.
Chairman Henry Hyde observed that the House of Representatives had
come to the Senate ``as advocates for the rule of law, for equal
justice under law, and for the sanctity of the oath.'' (145 Cong. Rec.
S221 (January 14, 1999).)
These are not just grand words.
The rule of law refers to our judicial process, which is governed by
uniform standards and procedures that we say will always be guaranteed
and applied fairly and equally. We are willing to submit ourselves to
this process because we have worked hard for 210 years to ensure that
it produces impartial justice for all.
Equal justice means that each of us, including the least among us,
has rights that the state is bound to protect; and it surely includes
the requirement that those who make the laws (including the President)
must live under them like anybody else.
And oaths are essential to the rule of law because the judicial
process is about seeking the truth; and that requires that we be able
to trust what is said. The oath formalizes the commitment to tell the
truth, and the whole truth--a commitment so important that its
violation is itself a crime.
I believe there are two questions to be answered.
The first is whether the President impermissibly took the law into
his own hands in a federal civil rights case and seven months later
before a federal grand jury in order to suppress the truth. The second
question is whether, if the President did engage in the impeachable
conduct, it is a breach serious enough to warrant removal from office.
The Constitution permits only one vote: to acquit or convict. This
leaves some in the anomalous position of determining guilt on an
impeachable offense, but having to vote to acquit because they deem the
offense insufficiently serious to warrant removal. While the fact that
the offense is impeachable should itself resolve the issue of
``proportionality,'' I would not consider it impermissible to reach a
contrary conclusion, as some will do in this case.
For my part, I answer both questions in the affirmative. The
President ``wilfully provided perjurious, false, and misleading
testimony'' under oath to a grand jury and he ``prevented, obstructed,
and impeded the administration of justice.'' (H. Res. 611).
While the House of Representatives asserted that the President's
actions were criminal, violations of specific criminal statutes are not
essential for wrongful conduct to constitute the ``high crimes and
misdemeanors'' that demonstrate unfitness to continue as Chief
Executive. Most authorities agree a President cannot be prosecuted
while in office for crimes allegedly committed during his term. So, for
example, whether a lie under oath would necessarily later result in a
criminal perjury conviction cannot be known with certainty, and an
impeachment trial is not an effective forum for establishing criminal
guilt. It is conduct, not a proven crime, that is the basis for
impeachment.
This is one of the reasons why it is clear that each Senator may
apply his or her standard of proof--it need not be the criminal
standard ``beyond a reasonable doubt.'' (See Senate Proceedings in the
Impeachment Trial of Judge Claiborne, S. Doc. No. 99-48, at 150.)
Moreover, because the Senate constrained the House of Representatives
as it did--by limiting the number of witnesses that could be deposed,
by effectively foreclosing other discovery, and by precluding ``live''
testimony--it would be unfair to impose a ``beyond reasonable doubt''
standard.
The President's counsel argued that the Senate should not consider
Article I because the House of Representatives defeated a perjury count
relating to the Jones civil action. But Article I also included
allegations of ``perjurious, false, and misleading'' statements in the
Jones case; so the argument is meritless. Moreover, the President's
falsehoods in the Jones civil suit also formed part of his strategy to
obstruct justice.
What is striking about this case is the President's persistent,
sustained, carefully calculated, deliberate, and callous manipulation
of the judicial process for over a year.
Without attempting to summarize all of the evidence, I conclude that
the President lied before the federal grand jury about (1) the nature
of details of his relationship with Ms. Lewinsky; (2) his assertion
that he told the truth in the Jones deposition; (3) the false and
misleading statements that he allowed his lawyer to make to a federal
judge
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in the Paula Jones civil case; and (4) his corrupt efforts to influence
the testimony of his aides who were potential grand jury witnesses.
And it seems clear to me that the President obstructed justice--that
he corruptly: (1) encouraged Ms. Lewinsky to execute a false affidavit;
(2) encouraged Ms. Lewinsky to lie if called as a witness; (3)
encouraged Ms. Lewinsky to conceal gifts; (4) encouraged cooperation of
Ms. Lewinsky through job assistance; (5) allowed his attorney to make
false and misleading statements about the affidavit; (6) attempted to
influence the testimony of his secretary, Ms. Currie; and (7) attempted
to influence the testimony of other aides.
The final question is whether the President should be removed for his
actions.
As a preliminary matter, there can be no doubt that perjurious,
false, and misleading statements made under oath in federal court
proceedings are indeed impeachable offenses. The fact that the House of
Representatives reached this conclusion, of course, establishes the
precedent as to the kind of conduct in this case. But, it is also
confirmed by the impeachment and conviction of federal judges--of Judge
Harry Claiborne, removed in 1986 for filing a false income tax return
under penalty of perjury, of Judge Walter Nixon, removed in 1989 for
perjury before a grand jury, and of Judge Alcee Hastings, removed in
1989 for perjury related to financial misconduct. I cannot agree with
those colleagues who assert that there is a different standard for a
President--that it would require a more egregious kind of perjury to
remove a President than a judge. Nothing in the Constitution suggests
such a double standard.
John Jay, the first Chief Justice of the United States, said ``there
is no crime more extensively pernicious to society'' than perjury,
precisely because it ``discolors and poisons the streams of justice.''
(Grand Jury Charge (C.C.D.N.Y. (Apr. 5, 1792)) (Jay, C.J.), in 2 The
Documentary History of the Supreme Court of the United States, 1789-
1800: The Justices on Circuit: 1790-1794, at 253, 255 (Maeva Marcus
ed., 1988).)
As to obstruction of justice, on which there is no other direct
precedent, Chief Justice Rehnquist, our presiding officer, in his
history of impeachment, Grand Inquests, wrote that ``the counts
relating to the obstruction of justice and to the unlawful use of
executive power [by President Nixon] were of the kind that would surely
have justified removal from office.''
The House mangers pointed out, accurately, that even though perjury
and obstruction of justice are not specifically listed as impeachable
offenses in the Constitution, the Federal Sentencing Guidelines treat
these offenses more seriously than they do the crime of bribery--one of
two specifically enumerated impeachable offenses. Significantly, where
bribery is committed in connection with a judicial proceeding (such as
bribing a witness in a case), its seriousness under the Guidelines
rises to that of perjury and obstruction. When misdeeds, in other
words, take place in connection with a judicial process, to try to
affect or control that process, they get extra attention in our legal
system. They are not simply brushed aside. Far from it. Perjury and
obstruction are like bribery; they are ``other high crimes'' by any
reasonable construction.
The President's counsel argued that the President's conduct could not
be impeachable because he did not abuse the power of his office in
conducting ``matters of state,'' and did not violate the public trust.
But impeachable offenses are not limited to the President's conduct of
``matters of state.'' If this were so, Richard Nixon could never have
been impeached. If this were so, a twenty dollar bribe for a Senator to
vote for a bill would be impeachable, while a million dollar bribe to
cover up political dirty tricks would not be.
It simply cannot be, as some have argued, that the only impeachable
offenses are those that can only be committed by the President. If a
President commits murder, can he not be removed? Must we wait until his
term is over to deal with his crime? It is clear that seriously
wrongful official conduct is impeachable. But it is just as clear that
impeachment cannot be limited to that.
It is not only the exercise of presidential power but also the
violation of a public duty that can constitute impeachable conduct. As
the head of the Executive Branch, the President has the duty under
Article II of the Constitution to ``take Care that the Laws be
faithfully executed.'' The 1974 House Judiciary report on the
``Constitutional Grounds for Presidential Impeachment'' summarized that
impeachment of a President can ``be predicted only upon conduct
seriously incompatible with either the constitutional form and
principles of our government or the proper performance of
constitutional duties of the presidential office.'' (Staff of House
Comm. on the Judiciary, 93rd Cong., 2d Sess. (Comm. Print 1974),
Constitutional Grounds for Presidential Impeachment, at 24.) Surely the
violation of constitutional obligations can constitute high crimes or
misdemeanors for which the President may be impeached. And surely, such
violation would constitute an abuse of trust by the Chief Executive.
By his oath of office and Article II responsibilities, President
Clinton is supposed to see that the sexual discrimination laws are
faithfully executed. But he thought the Jones case was illegitimate, so
he took the law into his own hands. His conduct in this case clearly
violated his public duties, his oath, and the public trust. And it
interfered with the proper functioning of another branch of the
government.
The same is true for his deliberate efforts to impede legitimate
discovery efforts in federal court proceedings. Such action ``is
incompatible with . . . the constitutional form and principles of our
government,'' as the 1974 House Judiciary report said. It simply cannot
be that a President who wrongfully interferes with the proper
functioning of another branch of our government by attempting to
subvert justice in federal court proceedings cannot be impeached
because he did not do it as President, but, rather, as a citizen.
That the underlying conduct covered up is sexual, is, if anything,
an aggravating not a mitigating factor. In sex-discrimination
litigation, where there is frequently no corroboration for the
plaintiff, a defendant who lies can easily subvert justice. Had the
blue dress not been found, with its incontrovertible tangible evidence,
I doubt Paula Jones would have gotten a dime in settlement.
Judgements about the severity of the impeachable conduct in this case
will lead different Senators to reach different conclusions. That is
why some of us are willing to say reasonable people can differ. For
those who fear the long-term consequences to the rule of law, however,
I believe there can be only one result. Anyone who so willfully,
callously, and persistently connived to deny the federal court and
grand jury the truth, and who used and abused the highest office in the
land to advance his personal cover-up is not only no longer worthy of
trust--which all agree is essential to the conduct of his office--but
also must be removed to avoid the perpetuation of a legal double
standard. If federal judges (such as Judges Clairborne, Nixon, and
Hastings) are removed for similar conduct; if average Americans are
imprisoned for it, can the rule of law long survive ``special
exceptions'' for powerful people we like, or who are doing a good job,
or who hold elective office? None of these rationalizations are
defenses to illegal or impeachable conduct.
As I said, sexual harassment cases are precisely the kind of judicial
proceedings that demand the maximum cooperation of and truth-telling by
the defendant, because of the lack of third-party witnesses or
corroborating evidence. In these cases, justice is denied if
obstruction, witness tampering, or perjury prevent the truth from
coming out. Can anyone say this is not serious? To what standard of
seriousness does it not rise? How many plaintiffs will have to lose
their sexual harassment, domestic violence, or sexual assault cases
because defendants lie and obstruct justice (and there is no blue dress
to keep them honest) before it becomes serious?
An acquittal in this case will make it harder to deal properly with
similar conduct in the future. We will be hard pressed to perpetuate a
double standard, so the lowest common denominator of conduct will be
established as the permissible norm. And this cannot help but weaken
the ability of courts
[[Page S1534]]
to enforce truth-telling and prevent obstruction of justice.
The precedent set by this case may not change the law overnight, but
this unforgettable episode is now part of the institutional life of our
country. The chief magistrate perverted justice and remained in power.
The lesson is corrosive. Like water dripping on a rock, it eventually
makes a deep hollow in the American justice system.
It is true the President could be sent to jail later. How does that
validate his right to appoint judges and be head of U.S. law
enforcement now? How does that square with his leadership of the armed
forces right now, as our Commander-in-Chief? Should the standard for
the President not be at least as high as for those he appoints and
leads?
In the end, my colleagues who would censure rather than convict the
President are right about one thing: the President's conduct is
``unacceptable.'' But, if conduct is unacceptable, we cannot accept
it--meaning, we have to do something about it that does not leave it
stand. And under our Constitution that means removal of the President
through conviction on the Articles of Impeachment.
Henry Hyde closed the House case by warning that public cynicism is
the greatest threat we face. Our failure to remove the President will
only fuel the cynicism of Americans such as Louie Valenzuela of
Glendale, Arizona. He was quoted recently in a man-on-the-street
interview about this case. ``They talk about justice,'' he told the
Arizona Republic. ``They talk about doing the right thing,'' said Mr.
Valenzuela. ``But they always look the other way when someone rich,
famous or powerful does something wrong. Look at O.J. Simpson. Clinton
will be next. Asi es. (That's just the way it is.)''
That is not the way it has to be. But how it is, is up to us.
Mr. SPECTER. Mr. Chief Justice, colleagues, a great deal has been
spoken in the Chamber about separation of powers and tomes have been
written on it. And in reading the Constitution, article I, creating the
Congress; and article II, the executive branch; and article III, the
judiciary, we have seen the wisdom of limiting power.
The one provision of the Constitution--the impeachment provision--
reaches across that divide. It is my thinking that before the Congress
can exercise the power of removal, there has to be a very, very heavy
burden of proof.
I had occasion, fairly recently, to go very deeply into the issue of
separation of powers when I argued the Base Closing Commission case
regarding the Philadelphia Navy Yard case, which was unfairly closed--a
subject that I will not amplify on--and I had an opportunity to appear
before the Supreme Court. I will end on time, as I did on my other two
speeches, but I will say that the Chief Justice is a good deal more
tolerant here than in the Supreme Court. In the Supreme Court, I was
cut off in midsyllable. I didn't know that was possible. But with the
forcefulness of the Presiding Officer, I did not do well in that case.
I had done better on my previous appearances in the Supreme Court when
I was representing the district attorney's office on law and order.
But that sojourn into that case brought me into 200 years of
reflection and analysis on case law on separation of powers, something
that is not often done by practicing lawyers, and certainly not
Senators. It instilled in me a very, very deep appreciation of
separation of power.
So when I approached this case--and it has been the toughest case I
have ever seen, and I think it has been a very, very intense drain on
this body and all of us individually--the focus I had was, What is the
burden that you ought to have to show if the Senate is going to remove
a President? As I reviewed the evidence, I am not satisfied at all that
that burden was met.
The definition of perjury is a very tough one by the Supreme Court of
the United States in the famous case called Bronston. Bronston was
giving testimony in a bankruptcy proceeding in New York and was asked
about bank accounts in Zurich, and said, ``My company had a bank
account for about 6 months,'' leading to the implication that he did
not have a personal bank account when in fact he did. He was convicted
and upheld by the Second Circuit, but reversed by a unanimous Supreme
Court because the interrogator, the prosecutor, has to go further. You
have to ask the last questions.
And the President was very artful, very careful, and full of guile as
he wound his way through the grand jury proceedings. We heard the
testimony again and again. The President said he told his aide. ``I
told them things that were true.'' Well, he didn't comment about the
things that he told them that were false. But nobody said, ``Did you
tell them things that were false as well?'' to give him a chance to
perjure himself on that. When asked about Monica Lewinsky--was he alone
with her--well, on a series of rambling answers he wasn't alone with
her in the hallway. But that is not the end of the question. He wasn't
alone with her in the hallway. But nobody followed up, and said, ``Were
you alone with her somewhere else?'' which he was not asked and,
therefore, did not deny and, therefore, on this record did not commit
perjury under the Bronston case.
The testimony of Betty Currie we heard again and again and again.
Here in late January 1998, Betty Currie testified that when the
President gave her that series of questions, she thought the President
was trying to lead her, to mold her testimony. Then she came back on in
July, she said, Well, it was different on that occasion. She testified
that the President gave her the option of either agreeing or
disagreeing.
Betty Currie was not a witness in this proceeding--didn't even have
her deposition taken, and was not a witness; did not have her
deposition taken because of very, very restrictive rules which the U.S.
Senate said what the House managers could do. The House managers were
on very, very sharp notice that if they asked for too many depositions
they might get none at all. They made their selection of witnesses, and
they left off Betty Currie.
But had House managers been able to present their case in the normal
course of events, I dare say the proceeding would have been even
faster; that we heard some 12 days of speeches, 6 days of opening
speeches; 3 and 3. We could have done that in 2 hours. We then spent 2
days propounding questions through the Chief Justice; learned very,
very little. We heard arguments on the motion to dismiss, and on
depositions, and arguments on what to do about the witnesses, on those
videotapes. Again and again, we heard legal arguments, but we did not
hear from witnesses.
We are burdened by this record. It is my view that on this record,
the burden of proof has not been met, the kind of a burden that would
have to be sustained, in my judgment, for the Senate to remove an
American President.
One comment about mindset. The Senate really approached this matter
as if it were a waste of time from the outset. There was an early
effort to structure a vote to show that one-third plus would not be for
conviction and, therefore, to end it. And then when we had the vote on
the motion to dismiss, and 44 Senators voted to dismiss, it confirmed
what we all knew; and that is that there would not be a two-thirds
vote. I think that put a mindset in this body really not to conduct a
trial.
The Constitution calls for a trial. The proceeding we had does not
measure up in any way, shape, or form to a trial. It is true that there
are some few cases submitted on a record where judges are going to
decide it. But a trial customarily requires witnesses. Had witnesses
appeared on the floor of the U.S. Senate with examination and cross-
examination, you would have gotten a feel for what happened here. If
Betty Currie had appeared on the floor of the U.S. Senate, or even if
her deposition had been taken, there could have been a clarification of
inconsistencies in her two lines of questioning.
A word for the future: It would be my hope that if, as, and when the
Senate has to revisit impeachment that it would be done differently.
Senator Lieberman made a suggestion on a December 20 television show
that there ought not to be party caucuses, that there only ought to be
joint caucuses. I have passed that recommendation on. I realized that
given the history of the Senate and our party caucuses, that would be a
very, very abrupt change. But I came out of some of our party caucuses
and walked over and talked to my friends on the other side of the
aisle, the people that I had agreed with on many, many, many issues. We
were
[[Page S1535]]
just irreconcilably opposed, just totally opposed. My only conclusion
was that it was the kind of argument and the kind of discussion on what
happened in the caucuses--really choosing sides and having teams--as
opposed to trying to make an analytical, judicial decision as to what
was involved here.
So it is my hope that if we ever have to undertake this again we will
do it differently.
My position in the matter is that the case has not been proved. I
have gone back to Scottish law where there are three verdicts: guilty,
not guilty, and not proved. I am not prepared to say on this record
that President Clinton is not guilty. But I am certainly not prepared
to say that he is guilty. There are precedents for a Senator voting
present. I hope that I will be accorded the opportunity to vote not
proved in this case.
We really end up, colleagues, very much, in my judgment, where at
least I started on the matter. I had thought at the outset that this
was not an appropriate case for impeachment because the requisite two-
thirds would not be present, and had hoped that impeachment would be
by-passed, but instead we would allow the President to finish his term
of office, which I thought an inevitability, just as it has worked out
that way, and that the criminal process would do whatever is
appropriate; if indicted, if convicted, whatever a judge would have to
say. I am still hopeful that the rule of law will be vindicated in that
process.
We obviously have learned much from this proceeding. It is my hope
that we will leave a mark to guide future Senates if we ever have to
repeat this very, very trying sort of an experience.
Mr. Chief Justice, I ask unanimous consent that a full text and
exhibits A, B, and C be included in the Record as if read on the Senate
floor.
The removal of an American president through impeachment carries a
high burden of proof and persuasion. For conviction in the criminal
courts on charges of perjury and obstruction of justice, the proof must
be beyond a reasonable doubt. An extra measure of certainty is
necessary to persuade the Senate that the national interest mandates
invoking the extraordinary remedy of removing the President.
The Constitutional Standard for Removal
The starting point is Article II, Section 4 of the Constitution:
The President . . . shall be removed from Office on
Impeachment for, and Conviction of, Treason, Bribery, or
other High Crimes and Misdemeanors.
From that language, there is reason to interpret ``other High Crimes
and Misdemeanors'' as relating back to specific categories of offenses
earlier enumerated, such as ``Treason and Bribery''; but I think that
is too limited. Nor do I agree with the simplistic definition that
perjury and obstruction of justice, being felonies and therefore more
serious than misdemeanors in the criminal law, are automatically
impeachable offenses.
The Framers did not foresee the circumstances before us. The omission
of ``perjury'' and ``obstruction of justice'' from the enumerated
offenses probably reflected the Framers' thought that it would be
unlikely that a President would be testifying under oath or be a
participant in a judicial proceeding. Yet, it is equally clear that
perjury and obstruction of justice are serious crimes. For the
President to commit either, he would be placing his own interest above
his public duty and the people's interest in due process.
In 1970, then-Congressman Gerald R. Ford offered this definition:
. . . an impeachable offense is whatever a majority of the
House of Representatives considers to be at a given moment in
history . . .
While that may state the raw power of Congress, it is too subjective
to provide any real guidance. Instead, I look to the Framers at the
Constitutional Convention, the Federalist papers, and the English and
United States impeachment cases.
Commenting on impeachment at the Constitutional Convention James
Wilson said:
. . . far from being above the laws, he (the President) is
amenable to them in his private character as a citizen, and
in his public character by impeachment
The President's attorneys have argued that the charges arise from
private conduct unrelated to his official duties. The issue then arises
whether his conduct is ``in his public character'' by virtue of his
Constitutional duty:
. . . he (the President) shall take care that the Laws be
faithfully executed . . .Article II, Section 3--
Such a public duty may be insufficient for impeachment under
Alexander Hamilton's definition of impeachment in Federalist No. 65:
. . . those offences (sic) which proceed from the
misconduct of public men, or, in other words, from the abuse
or violation of some public trust. They are of a nature which
may with peculiar propriety be denominated POLITICAL, as they
relate chiefly to injuries done immediately to the society
itself.
From Hamilton's statement, the conventional wisdom has evolved that
impeachment is essentially a political question. The Framers, cases and
commentaries have not articulated a handy definition of ``high crimes
and misdemeanors.''
Whether to impeach and convict transcends the facts and law to what
is in the national interest at a specific time in the nation's history
on the totality of the circumstances.
Consideration of the national interest may include whether there is a
clear and present danger to the integrity or stability of the national
government; or whether the conduct is so vile or reprehensible as to
establish unfitness for office; or whether the electorate has lost
confidence in the President to the extent that he cannot govern.
The precedents and commentaries leave substantial latitude for
Senators to establish their own standards. The ultimate definition may
be analogous to Supreme Court Justice Potter Stewart's struggle to
define obscenity when he concluded: '' . . . perhaps I could never
succeed in intelligibly doing so. But I know it when I see it.''
Partisanship In The House
The extreme partisanship of the impeachment proceeding in the House
prejudiced the matter before it came to the Senate. While it takes two
to tango or be partisan, somehow the House Republicans bore the brunt
of the public disdain on the partisan charge. It was more than the
party line votes. The whole process was filled with rancor, acrimony
and bitterness which contributed significantly to the public view that
it was all politics without real substances.
It has been widely noted that there must be significant bi-partisan
support to remove a president. President Nixon's forced resignation
occurred only when Republican elders like Senators Goldwater and Scott
joined Democrats in urging his resignation.
In an early Sunday TV talk show on December 20, 1998, the day after
the House sent the Articles to the Senate, Senator Joseph Lieberman and
I appeared together on ``Face the Nation'' where he urged that there be
no party caucuses but only joint caucuses. I recommended that to
Senator Lott in my memorandum of December 29 and urged that policy to
colleagues on both sides of the aisle. Perhaps, it was too much to
expect or even hope that would be done given the Senate's history and
practice of party caucuses.
As noted in this floor statement, the Senate struggled to achieve bi-
partisanship, mostly without success, but we did avoid the rancor and
bitterness which prevailed on the House side.
The Improbability of Two-Thirds for Conviction Overshadowed the Process
From the outset, the conventional wisdom was there would not be two-
thirds of the Senate in favor of conviction. That pervasive view has
cast a long shadow over the impeachment proceedings. When the Senate
convened on January 6th, there was immediate informal consideration on
taking a test vote to determine if there were 34 Senators opposed to
conviction which would end the matter. There appeared to be even more
than that number so opposed who based their judgments on news media
accounts. That trial balloon was abandoned when many Senators objected
on the ground that the Constitution called for a trial and the Senate
owed the House the Constitutional deference to give the House Managers
a chance to prove their case.
In mid-November, I wrote in a New York Times ``op ed'' article that
impeachment should be bypassed and the President should be held
accountable through the criminal process after his
[[Page S1536]]
term ended. When the House of Representatives returned Articles of
Impeachment in mid-December, I felt at that stage the Senate had a
constitutional duty to proceed to a trial.
The Constitutional Requirement for a Trial
The Constitution explicitly provides for a trial:
The Senate shall have the sole Power to try all
impeachments (emphasis added). Article I, Section 3, Clause 6
The same clause refers to being convicted and the next clause refers
to judgment, so the constitutional mandate for a trial is plain. Senate
Impeachment Rules 6 and 17 deal with witnesses.
The Senate was schizophrenic in wanting to avoid what many considered
to be a pointless trial. Others considered it to be our Constitutional
duty to hold a trial and give appropriate deference to the House's
action on the Articles. In a series of halting half-steps, the Senate
stumbled through a ``pseudo-trial'', a ``sham trial''--really no trial
at all. In the end, it would have taken less time to let the House
Managers put on their case with a full White House defense than the
helter-skelter procedures adopted by the Senate.
The Adverse Public Reaction
From the time the Senate reconvened on January 6, 1999, the public
pressure to conclude the trial promptly was palpable. The improbability
of a two-thirds vote for conviction was only one factor although the
totality of the other factors contributed to that improbability.
The adverse public reaction was reflected in consistent polling data
and the feel on the streets in our various states. Notwithstanding the
serious charges of perjury and obstruction of justice, Democratic
Senators argued and many people agreed that a private sexual liaison
should not have caused a multi-year, multi-million dollar
investigation. If the Independent Counsel, they argued, could establish
no wrongdoing in Whitewater, Travelgate and Filegate, why elevate a
charge based on sex to an impeachable offense?
I think it is a significant distinction that President Clinton,
unlike President Nixon, was not charged with covering up an underlying
crime. President Clinton had the option of not answering deposition
questions and/or simply not defending the Paula Jones lawsuit. At worst
that would have resulted in a default judgment being entered against
him with an assessment of damages. As it worked out, a non-defense
might still have led to dismissal of the case as a matter of law and on
the eventual settlement. In any event, the President would have avoided
his present predicament by not responding.
Once the President undertook his course of action, then he must
answer to the serious charges of perjury and obstruction of justice
even though he was not covering up criminal activity.
Attorney General Reno made a major mistake in acting to expand Judge
Kenneth Starr's jurisdiction to include the Lewinsky matter. In mid-
January 1998, contemporaneously with the Attorney General's action, I
commented that the public would suspect a vendetta on the part of Judge
Starr because there had been so many apparently unproductive
investigations going on for so long. This was not a criticism of Judge
Starr, but an inevitable public reaction. The public's suspicion of
Judge Starr carried over to impeachment.
When I challenged Attorney General Reno in the Judiciary Committee
oversight hearing on July 15, 1998 about why she acted to expand Judge
Starr's authority, she refused to answer the question saying only:
The application speaks for itself, Senator.
The Witness War
The failure of the House to call witnesses during their hearings
injected a Trojan Horse into the Articles. The House had good reason
not to call witnesses because of its concern to finish its work before
the 106th Congress convened to take up the nation's important pending
business. But, that set the stage for the witness issue to haunt the
Senate from the outset.
Early in January, there was a strenuous effort for bi-partisanship on
witnesses and procedures. At a joint caucus on January 8th, by almost
spontaneous combustion, agreement was reached 100-0 on preliminary
procedures leaving depositions and witnesses until later.
Immediately thereafter, bi-partisanship broke down. While this may
seem self-serving from the Republican point of view, Republicans had
more to gain from bi-partisanship than Democrats to avoid the rancor of
the House proceedings and give legitimacy to impeachment. Many
Democrats openly said the President would be helped by party line votes
making the Senate look like the House.
The Democrats then lined up solidly behind the President with a
number of Republicans, sometimes more than six, teetering on joining
the Democrats. There are obviously limits to what elected officials
will do to vote a straight party line if it puts their seats in
jeopardy. The Senate Democrats had the effective cover of a popular
President and their party line votes followed while a significant
number of Republicans faced constituents opposed to impeachment in
their election cycles.
The sequence of partisan maneuvering on witnesses is important to
understanding how the House Managers were precluded from presenting
their case in a fair way. Appendix A describes those events in some
detail. The ultimate result was a sharply limited number of deposition
witnesses, three, with videotaped depositions only and no live witness
at trial.
In my Senate tenure, I have not seen a more contentious issue than
the calling of witnesses either live or videotaped. It goes beyond the
public pressure to terminate or at least abbreviate the Senate
proceeding. The argument that the well of the Senate should not be the
stage for lewd and lascivious testimony was answered by the commitment
of the House Managers to avoid such testimony. The argument that Monica
Lewinsky should not appear on the Senate floor once occupied by Daniel
Webster and John F. Kennedy has to give way to the Senate's duty to try
this President. The Senate did not choose the President's consorts and
potential witnesses, but the Senate is duty bound to ``try'' the case
as mandated by the Constitution and do ``impartial justice'' as the
Senators' oath specified.
The Live Witnesses
I was one of three Senator presiders/observers designated by Senator
Lott, the Majority Leader, for the depositions of Monica Lewinsky,
Vernon Jordan and Sidney Blumenthal. Observing these live witnesses
confirmed my thinking that the full senate should have seen and heard
their testimony in the tradition of trial practice. While a videotape
is very informative, there is no substitute for the more precise
evaluation of demeanor and its many nuances which comes across fully
only through live testimony.
When the videotapes were played in the Senate chamber, the contrast
was stark with the same live testimony I saw and heard. On a number of
occasions, the sound was inaudible and the tape could not be rewound.
There was a far superior opportunity in person to observe the
witnesses' facial responses, their reactions and their general
demeanor. In addition, only a portion of their videos was played.
Although senators had a chance for full private viewings, it is
inevitable that many Senator-jurors did not utilize that opportunity to
observe all the videos.
Ms. Monica Lewinsky was a very impressive witness: poised,
articulate, well-prepared. Seeing her testify in person, I understand
why the President's counsel had fought so strenuously to keep her away
from the well of the Senate. Had she told her whole story in the well
of the Senate, a rapt national TV audience would have been watching and
the dynamics of the proceeding might have been dramatically changed.
Lawyers' Arguments Instead of Testimony
Instead of hearing testimony from live witnesses, the Senate listened
to twelve days of lawyer's arguments. Six days were consumed with
opening statements which should have taken a few hours. For two days,
Senators submitted questions through the Chief Justice for responses
from attorneys which added little illumination to what was already on
the record. Two more days were spent arguing the motion to dismiss and
the resolution on depositions where the lawyers essentially repeated
earlier arguments with an additional day for votes on those issues.
Finally, limited evidence was presented with three videotaped
depositions--Monica Lewinsky, Vernon Jordan and Sidney Blumenthal.
Another
[[Page S1537]]
day was consumed on votes rejecting live witnesses and permitting use
of the videotapes. On the day designated for presentation of those
depositions, only snippets were shown with most of the time consumed by
lawyers' arguments. A final day for closing arguments was held with
lawyers again presenting arguments which had been repeated on eleven
prior days.
So, in place of a traditional trial with live witnesses such as
Monica Lewinsky, Betty Currie, Vernon Jordan, Erskine Bowles, John
Podesta, Sidney Blumenthal, possibly Kathleen Willey or whomever the
House Managers chose to call, the Senate heard days of repetitious
lawyers' argument from a grand jury record.
The Perjury Article
The President's version was limited to his deposition in the Paula
Jones case on January 17, 1998 and his grand jury testimony on August
17, 1998. In their totality, those two cameo appearances raised more
questions by far than they answered. As expected, the President was
exceptionally well prepared on the law and exceptionally adroit and
manipulative on the facts or, more accurately, on evading the facts.
The law on perjury is set forth in the case of Bronston versus United
States, 409 U.S. 342 (1973), where the Supreme Court of the United
States established a rigorous standard for proving perjury. Bronston,
under oath in a 1966 bankruptcy hearing, was asked whether he ever had
bank accounts in Swiss banks and he replied: ``the company had an
account there for about six months, in Zurich.''
His answer that the company had an account there for about six months
was accurate. It was not accurate that was the only account the company
had. The Supreme Court exonerated Bronston on the charge of perjury
because the questioner did not press further to get a specific answer
on whether the company had an account in addition to the one responded
to by Bronston.
Utilizing the holding in Bronston to the utmost, the President
couched his answers with great care relying on the questioner not to
pursue the unanswered issues. For example, the President did not deny
lying to his aides, but rather evaded the question and there was no
follow-up. John Podesta, President Clinton's Deputy Chief of Staff at
the time, testified that on January 23, 1998:
He [President Clinton] said to me he had never had sex with
her [Monica Lewinsky], and that--and that he never asked--you
know, he repeated that denial, but he was extremely explicit
in saying he never had sex with her--[H]e [President Clinton]
said that he never had sex with her [Monica Lewinsky] in any
way whatsoever--that they had not had oral sex.
In a Senate deposition, Sidney Blumenthal, an assistant to the
President, testified that the President lied to him. In testimony
before the grand jury, Mr. Blumenthal testified that the President told
him that he had ``rebuffed'' Ms. Lewinsky's advances. Mr. Blumenthal
further testified that the President told him the following:
She [Monica Lewinsky] threatened him. She said that she
would tell people they'd had an affair, that she was known as
the stalker among her peers, and that she hated it and if she
had an affair or said she had an affair then she wouldn't be
the stalker any more.
He [President Clinton] told me that she [Monica Lewinsky]
came on to him and that he had told her he couldn't have
sexual relations with her and that she threatened him. That
is what he told me.
In his testimony before the grand jury, President Clinton stated,
I told them [his aides] things that were true about this
relationship. They [things the President said to his aides]
may have been misleading, and if they were I have to take
responsibility for it, and I'm sorry.
Note that the President does not deny lying but only that:
I told them things that were true about this relationship.
The President did say some things which were true. The questioner did
not then pursue the line of interrogation by asking if, in addition to
saying some things which were true, the President told his aides other
things which were lies. On that clever, ambiguous record, the President
escapes the perjury net.
Similarly, President Clinton dodged the perjury charges on his
testimony on being alone with Monica Lewinsky. She testified they were
alone when they had eleven sexual encounters either in the President's
personal office or the adjacent hallway. In his January 17th
deposition, the President was asked if he was ever alone with Monica
Lewinsky in any room of the White House. The President responded,
I have no specific recollection, but it seems to me that
she was on duty on a couple of occasions working for the
legislative affairs office and brought me some things to
sign, something on the weekend.
Further, when the President was asked if he was ever alone with Ms.
Lewinsky in the hallway between the Oval Office and the kitchen area,
the President responded,
I don't believe so, unless we were walking back to the back
dining room with the pizza. I just, I don't remember. I don't
believe we were alone in the hallway, no.
The President again gets away with vague, unresponsive replies. When
the President says ``I don't believe we were alone in the hallway,
no'', there is then no pursuit as to whether they were alone in other
places. He succeeds in avoiding and misleading, but does not make the
unequivocal false statement required by Bronston to constitute perjury.
The President was treated differently than other witnesses before a
grand jury when he was permitted to read from a prepared statement:
I engaged in conduct that was wrong. These encounters did
not consist of sexual intercourse. They did not constitute
sexual relations as I understood that term to be defined at
my January 17th, 1998 deposition. But they did involve
inappropriate intimate contact.
The President then declined to respond to Monica Lewinsky's specific
charges and was not pressed for answers. He made a blanket denial of
having sex with Monica Lewinsky relying on a tortured interpretation of
Judge Wright's definition of sexual relations:
I thought the definition included any activity by the
person being deposed, where the person was the actor and came
in contact with those parts of the bodies with the purpose or
intent of gratification, and excluded any other activity. For
example, kissing is not covered by that, I don't think.
He further stated that:
My understanding was, what I was giving to you, was that
what was covered in those first two lines was any direct
contact by the person being deposed with those body parts of
another person's body, if the contact was done with an intent
to arouse or gratify. That's what I believe it means today.
The question was not pursued whether there was a sexual relationship
where Ms. Lewinsky was the actor who made contact with the President's
body with an intent to arouse or gratify. When asked specifically about
oral sex, the President responded,
. . . (Y)ou asked me did I believe that oral sex performed
on the person being deposed was covered by that definition,
and I said no. I don't believe it's covered by the
definition.
And there is the curious contention by the President on what the
meaning of the word ``is'' is. A videotape of his deposition shows the
President sitting quietly and listening to his attorney, Robert
Bennett's arguments to Judge Wright based on Ms. Lewinsky's affidavit
which the President knew to be perjurious.
In his grand jury testimony, the President defended his silence
during this statement:
I was not paying a great deal of attention to this
exchange. I was focusing on my own testimony.
The President also told the grand jury that Mr. Bennett's statement
that there ``is'' no sex of any kind was not necessarily false, but
rather:
It depends on what the meaning of the word ``is'' is. If
the--if he--if ``is'' means is and never has been, that is
not--that is one thing. If it means there is none, that was a
completely true statement.
On this state of the record, the Senate should have pressed the
President for responses to so many important unanswered questions.
Since the President was, in effect, asking the Senate to leave him in
office, why was the Senate not justified in, at least, insisting on
answers to key questions. When Senators submitted interrogatories to
the Chief Justice for responses from the attorneys, I submitted the
following question:
Would the President honor a request by the Senate to
testify? If not, why not? If he declined to testify either on
his own initiative or a Senate invitation, would the Senate
be justified in drawing an adverse inference from his failure
to testify?
With so many other questions submitted, this one was not asked.
During the trial, White House Counsel said the President would respond
to written questions, but that offer was rescinded.
[[Page S1538]]
On January 25th the President refused to answer ten written questions
submitted by Republican Senators.
On February 3rd, twenty-six Republican Senators sent the President a
letter requesting a deposition. As expected, he declined. In a context
where the Senate voted against live witnesses and permitted only three
deposition witnesses, it was not surprising that there was no political
will to press the President for his testimony. I believe that was a
serious mistake. In the context where the Senate could not even
consider exercising the political will to ask, let alone compel, the
President to leave the Oval Office for a day or a few days to testify
at his impeachment trial or even to give a deposition, how could the
Senate be expected to exercise the much greater political will to
remove the President from office?
In her civil lawsuit, Paula Jones had been able to compel the
President to give a deposition. In the grand jury proceeding, the
Independent Counsel, in effect, compelled the President to testify.
Why, then, shouldn't the Senate exercise the commensurate power in an
impeachment proceeding to obtain the President's testimony when there
were so many open questions.
In my legal judgment, the Senate has the power to subpoena the
President. (My memorandum to Senator Lott dated December 10, 1998,
attached as Appendix B, discusses the Senate's legal authority to
subpoena the President at pages 8 through 11. My memorandum to Senator
Lott dated December 29, 1998, attached as Appendix C, discusses
possible testimony by the President at pages 12 and 13.) Senate
Impeachment Rule 6 gives the Senate the subpoena power. The Supreme
Court of the United States held President Nixon was subject to subpoena
to turn over the famous tapes under the established principle ``That
the public * * * has a right to every man's evidence.'' President
Nixon's case, although not dealing with impeachment, is further
instructive in the Supreme Court's sweeping language on the need for
all the facts even where the President is subject to subpoena:
The need to develop all relevant facts in the adversary
system is both fundamental and comprehensive. The ends of
criminal justice would be defeated if judgments were to be
founded on a partial or speculative presentation of the
facts. The very integrity of the judicial system and public
confidence in the system depend on full disclosure of all the
facts, within the framework of the rule of evidence. To
ensure that justice is done, it is imperative to the function
of the courts that compulsory process be available for the
production of evidence needed either by the prosecution or
the defense.
the article on obstruction of justice
Following President Clinton's deposition in the Paula Jones case on
January 17, 1998, the President called his personal secretary, Betty
Currie, at home and asked her to come into the office on the following
day. On Sunday, January 18, President Clinton met with Ms. Currie and,
according to Ms. Currie, made the following statements to her, one
right after the other:
You were always there when she was, right?
We were never really alone.
Monica came on to me, and I never touched her, right?
You can see and hear everything, right?
Ms. Currie testified at first (1/27/98) that, based on his demeanor
and the way he made the statements, the President wanted her to agree
with them.
Six months later (7/22/98) when she testified for the second time,
Ms. Currie said that although the President stated ``right?'' at the
end of the statements, she understood that she could agree or disagree
with them.
I find the testimony of Betty Currie on January 27, 1998 most
troubling. Why would the President ask a series of questions when he
knew the answers unless he sought to influence her testimony? But then,
Ms. Currie undercut her January 27th testimony when she testified on
July 22, 1998 that she understood from the President that she could
disagree with him on those questions.
In order to make a finding on an important issue like this which
could lead to the removal of the President, the Senate should have
heard Ms. Currie in person to clarify her testimony. In the absence of
such clarification on this state of the record, there is at least a
reasonable doubt on this issue.
Monica Lewinsky testified that she met with the President in the Oval
Office on December 28, 1997 and that the President gave her several
Christmas presents at this meeting. Ms. Lewinsky further testified that
at some point in the conversation, she said to the President, ``Maybe I
should put the gifts away outside my house somewhere or give them to
someone, maybe Betty.'' Ms. Lewinsky recalled that the President
responded either, ``I don't know'' or ``Let me think about that.''
The President testified that he has no distinct recollection of
discussing the gifts with Ms. Lewinsky on December 28. He told the
grand jury that:
My memory is that on some day in December, and I'm sorry I
don't remember when it was, she said, well, what if they ask
me about the gifts you have given me. And I said, well, if
you get a request to produce them, you have to give them
whatever you have.
In the afternoon of December 28, 1997, Betty Currie drove to Ms.
Lewinsky's Watergate apartment and collected a box containing most of
the President's gifts. Ms. Currie then drove home and placed this box
under her bed. According to Ms. Lewinsky, the transfer originated in a
phone call from Ms. Currie in which Ms. Currie stated, ``I understand
you have something to give me,'' or, ``The President said you have
something to give me.''
Betty Currie testified that it was Ms. Lewinsky who first raised the
idea of the gift transfer, either in person or over the telephone. Ms.
Currie testified that she did not remember the President ever telling
her to call Ms. Lewinsky or to pick something up from Ms. Lewinsky.
Monica Lewinsky testified that Ms. Currie came over to pick up the
gifts at ``around 2:00 pm or so''. Cellular phone records reveal that
Ms. Currie phoned Monica Lewinsky's home at 3:32 on December 28th and
had a conversation of one minute or less.
The evidence against the President on the gifts issue is equivocal
where the idea returning the gifts in the conversation between the
President and Monica Lewinsky originates with Ms. Lewinsky; Ms. Currie
says she does not remember the President telling her to call or pick up
something from Ms. Lewinsky; the time of the call as shown on the cell
phone records conflicts (3:32 pm) with Ms. Lewinsky's version of the
sequence of events and the President gave Monica Lewinsky more gifts on
December 28, 1997, the same day that efforts were made for the return
of some of the gifts.
In December, 1997 and January, 1998, the President's close friend,
Washington attorney Vernon Jordan, helped find Monica Lewinsky a job in
New York City. On Friday, December 5, 1997, the President's attorneys
received a witness list for the Paula Jones case. Monica Lewinsky was
included on this list.
On December 11, 1997, Judge Susan Webber Wright issued an order which
stated that Paula Jones was entitled to ``information regarding any
individuals with whom the President had sexual relations or proposed or
sought to have sexual relations and who were during the relevant time
frame state or federal employees.'' This order made it clear that Ms.
Jones would be able to subpoena Monica Lewinsky.
On December 11, 1997 Mr. Jordan and Ms. Lewinsky met and Mr. Jordan
took concrete actions to help Ms. Lewinsky find a job. Mr. Jordan
placed calls on her behalf to three business contacts. Mr. Jordan also
told her to send letters to three additional business contacts that he
provided to her. This meeting and the phone calls took place prior to
the issuance of Judge Wright's order of the same day.
On January 7th, Ms. Lewinsky signed an affidavit denying a sexual
relationship with the President. On January 8th, Ms. Lewinsky had an
interview with McAndrews and Forbes in New York. Afterwards, she phoned
Vernon Jordan to report that the interview had gone poorly. Vernon
Jordan immediately phoned Mr. Ron Perelman, the CEO of McAndrews and
Forbes, and asked for this help. The next day, Ms. Lewinsky was given
another interview and was extended an offer to work for Revlon, a
subsidiary of McAndrews and Forbes.
Vernon Jordan defended his efforts to help Monica Lewinsky get a job
as a payback for help he secured as a young lawyer in getting a job
when he was a victim of racial discrimination. Jordan testified that he
told no one at Revlon
[[Page S1539]]
that Monica Lewinsky was a witness in a case involving the President
and that Revlon offered Monica Lewinsky a job because she was
qualified.
If the Revlon job offer was part of a plan or conspiracy to obstruct
justice, then Vernon Jordan would have had to be part of that. The
House Managers raise no such contention.
An important piece of evidence on this issue was the uncontradicted
testimony of Monica Lewinsky that she intended to deny her relationship
with the President from the outset before she was subpoenaed or the
President coached her or Vernon Jordan helped her get a job.
Limitations on the House Managers
The signals to the House Managers from the Senate were unmistakable
that the Senate was unlikely to approve depositions if the list was too
long. Responding to that advance notice, the House Managers submitted
only three names for depositions necessarily leaving off potentially
important witnesses like Ms. Currie. Given the absence of live
witnesses and limitations on depositions, the House Managers have been
compelled to rely on transcripts from questioning by the Independent
Counsel in grand jury proceedings. Those transcripts have left many key
issues unresolved.
tv and the trial
The Senate proceeding posed a curious dichotomy with one hundred
sitting silent Senators in the Chamber and non-stop Senators'
interviews in the corridors and media galleries. The case was really
not being tried in the Senate Chamber, but in a sense was being tried
in the Senate corridors, on the evening TV interview shows and on the
Sunday talk shows.
I declined TV interviews after the day the trial began on the ground
that my oath to do ``impartial justice'' was in jeopardy by interviews
on the day's proceedings which might conflict with my juror's
functions. Again, oddly, on the occasions when Senators were permitted
to speak on the Senate floor on the motion to dismiss and the
Resolution on depositions, the sessions were closed so that the public
could not hear our debate.
Efforts to open the Senate proceeding during final deliberations also
failed to get the two-thirds vote to overturn the Senate rule closing
the Chamber. I thought the public and posterity should know the reasons
for our votes as a guide for today and the future. The informal, seat-
of-the pants, corridor comments may be found in the CNN or MSNBC files,
but there will be no Senate videotape to record what could be important
Senators' views.
conclusion
Each Senator individually and the Senate collectively took an oath to
do ``impartial justice''.
The Senate has done only ``partial justice'', a double entendre, both
(1) in the sense of not doing ``impartial justice'' to the House
Managers by unduly restricting them in the presentation of their case;
and, (2) ``partial justice'' in the sense of hearing only part of the
evidence.
When the Senate prohibited live witnesses and permitted only three
videotaped depositions, the House Managers had one hand tied behind
their back. There has been no ``trial'' but only a ``pseudo-trial'' or
a ``sham trial''. The best the House Managers could do was to cut,
paste and glue together transcripts from the Independent Counsel's
grand jury proceedings. Ms. Lewinsky testified briefly on videotape and
the President gave two vague, evasive depositions.
The House Managers could not meet the heavy burden of proof beyond a
reasonable doubt. That is the only appropriate statement where the
underlying charges are the crimes of perjury and obstruction of
justice.
Had the House Managers sustained that burden under these Articles,
there was a further burden of persuasion, as I see it, to establish
that the national interest warranted removal from office.
Perjury and obstruction of justice are serious offenses which must
not be tolerated by anyone in our society. However, I remain
unconvinced that impeachment is the best course to vindicate the rule
of law on this offensive conduct. President Clinton may still be
prosecuted in the Federal criminal courts when his term ends. His
lawyers have, in effect, invited that prosecution by citing it as the
preferable remedy to impeachment.
A criminal trial for the President after his term ends may yet be the
best vindicator for the rule of law.
If the full weight of the evidence with live witnesses had been
presented to the Senate instead of bits and pieces of cold transcript,
it is possible that the Senate and the American people would have
demanded the President's appearance in the well of the Senate. Under
firm examination, the President might have displayed the egregious
character described harshly by his defenders in their proposed censure
petitions. That sequence might have led to his removal.
But on this record, the proofs are not present. Juries in criminal
cases under the laws of Scotland have three possible verdicts: guilty,
not guilty, not proven. Given the option in this trial, I suspect that
many Senators would choose ``not proven'' instead of ``not guilty''.
That is my verdict: not proven. The President has dodged perjury by
calculated evasion and poor interrogation. Obstruction of justice fails
by gaps in the proofs.
Many Senators have sought to express their gross displeasure by
findings of fact or censure. I reject both. The Constitution says
judgment in cases of impeachment shall not extend beyond removal and
disqualification from future office. Under the crucial doctrine of
separation of powers, the Congress is not and should not be in the
business of censuring any President. We are properly in the business of
examining our own conduct as Senators. On that score, on the record of
this ``pseudo-trial'', it is my view that the Senate failed to fulfill
the Constitutional mandate to ``try'' this case.
I ask unanimous consent that Appendices A, B and C be printed in the
Record.
There being no objection, the appendices were ordered to be printed
in the Record, as follows:
Appendix A
When the Republican and Democratic caucuses could not agree on the
preliminary procedures and witness issue, including depositions, a vote
was set for late afternoon on January 7th. That vote was canceled in an
effort to achieve a bi-partisan compromise. A joint caucus was then
held in the Old Senate chamber at 9:30 am on January 8th where the
outline of a procedural agreement was reached for the first stage
without resolving the witness or deposition issues, but deferring them
until we knew more about the opposing parties' cases.
While a resolution of agreement was being drafted in the early
afternoon fleshing out the compromise, Senator Lott asked Senator Kyl,
Senator Sessions and me to explore the case to determine what
witnesses, if any, the Senate should hear to make its decision. In mid
afternoon, Senators Kyl and Sessions and I met with Chairman Henry Hyde
and some of the House Managers to inform them of the joint discussions,
to get a preliminary idea of their thinking on witnesses and to set up
a meeting for the afternoon of January 11 to get their specification on
what witnesses they believed necessary for the Senate trial. Later on
the afternoon of January 8th, Resolution 16 was agreed to 100 to 0.
In an effort to carry out a bi-partisan approach, I called Senator
Lieberman on the morning of January 11th to invite him and/or other
Senate Democrats to an afternoon meeting with House Managers. He said
he would check with Senator Daschle and then called back to decline.
Senators Kyl, Sessions and I met with the House Managers that afternoon
to review their witness list. We advised them that the Democrats were
opposed to witnesses and there was opposition among Republican Senators
to a lengthy trial with many witnesses. We said their best opportunity
for witnesses would be to show conflicts in the record testimony which
could establish the need for seeing and hearing the witnesses to
evaluate their demeanor. They responded they needed witnesses beyond
conflicts to show the tone and tenor of their case. We said they might
consider using their 24 hours of opening statements to develop the
need, as they saw it, for specific witnesses.
I called White House Counsel Charles Ruff on January 12th advising
him of
[[Page S1540]]
the meeting with House Managers stating that Senators Kyl, Sessions and
I were interested in meeting with the President's attorneys. Mr. Ruff
called back on January 13th declining the invitation.
On January 25th, in advance of consideration of Senator Byrd's motion
to dismiss and Senator Lott's resolution on taking depositions, Senator
Lott requested Senator Kyl and me to talk again to House Managers to
determine how many witnesses they would need and for what purpose.
Senator Lott had extended an invitation to join in those discussions to
Senator Daschle who declined. Before that meeting was held on January
25th, I advised Senator Lieberman of the scheduled meeting and told him
Senator Daschle declined Senator Lott's invitation.
Between our January 11 and January 25th meetings with House Managers,
there had been numerous public comment by Republican Senators opposing
many witnesses even for depositions with some expressing possible
opposition to any deposition witnesses. When Senator Kyl and I met with
House Managers on January 25th, we said it was problematic whether
there would be 51 or more votes for a lengthy witness list.
In arguments before the full Senate, House Managers complained about
the limitations on deposition witnesses and expressed their interest in
calling live witnesses with latitude to develop their cases as they saw
fit in accordance with regular trial practice.
Late in the evening on January 26th after closed door Senate debate
on calling witnesses for depositions, Senator Carl Levin and I
discussed a bi-partisan compromise. We continued that discussion early
the next morning and presented our views to our respective caucuses on
January 27th. While Senator Levin and I did not agree on all points, we
were closer together than our caucuses. At mid-day on January 27th on
an almost straight party line vote, the Senate decided to take
depositions of only three witnesses.
For the balance of the afternoon of January 27th and all day on the
28th, there were strenuous efforts to agree on deposition procedures.
Democrats were adamant that the depositions should not be videotaped;
or, if videotaped, on the commitment that they could be viewed only by
Senators and limited staff. Republicans insisted that the depositions
should be videotaped deferring the decision on whether they would be
used as a substitute for live witnesses. Late in the afternoon Senator
Lott's resolution was adopted to videotape the depositions without
specifying their use after defeating Senator Daschle's amendment to
limit the depositions to a typed transcript without videotapes.
After those depositions were taken, on February 4, 1999, the Senate
voted to exclude live witnesses and to see the videotapes of the three
deposed witnesses after the defeat of Senator Daschle's amendment to
limit the depositions to the typed transcript only without videotapes.
Appendix B
December 10, 1998.
To: Senator Trent Lott, Majority Leader.
From: Senator Arlen Spector.
As a follow up to our recent meeting, this memorandum sets
forth my thinking on how to handle the impeachment proceeding
if it reaches the Senate and my analysis on some of the legal
issues as follows:
1. May the Senate consider in the next Congress articles of
impeachment passed by the House in this Congress?
2. Must the Senate trail begin the day following the House
presentment?
3. Is censure authorized in an impeachment proceeding?
4. Must/should the Senate hear testimony from live
witnesses?
5. How long will the Senate impeachment trail take?
6. Possibility of conviction
7. Concluding observations
may the senate in the 106th congress consider articles of impeachment
passed by the House of representatives in the 105th congress?
Yes. Precedents hold that the Senate may carry an
impeachment over into a subsequent Congress. As noted in the
addenda to the Rules on Senate Impeachment Proceedings:
``Articles of impeachment against Harold Louderback, a
United States district judge for the northern district of
California were exhibited on March 3, 1933, at the end of the
second session of the 72d Congress, and the trail occurred
during the first session of the 73d Congress, . . .
``At the end of the 100th Congress, the Senate adopted a
resolution to continue into the 101st Congress the
proceedings in the impeachment of Alcee L. Hastings, a United
State judge for the southern district of Florida''.
Notwithstanding a contrary opinion given at the House
proceeding, it is my judgment that these practical precedents
would virtually certainly be upheld if any judicial challenge
was attempted because of the decision of the United States
Supreme Court in the case involving Judge Nixon where the
Court held the Senate had the authority to establish
procedures under the impeachment clause.
must rule iii on senate impeachment procedure be read literally to
require continuous consideration by the senate the day following house
presentation of articles of impeachment?
No. While Rule III appears to impose such a rigid
requirement on its face, the Rules taken on the whole and
prior practice show the Senate may establish a more flexible
schedule.
The specific language of Rule III provides: ``Upon such
articles of impeachment being presented to the Senate, the
Senate shall, at 1 o'clock afternoon of the day (Sunday
excepted) following such presentation, or sooner if ordered
by the Senate, proceed to the consideration of such articles,
and shall continue in session from day to day (Sundays
excepted) after the trial shall commence (unless otherwise
ordered by the Senate) until final judgment shall be
rendered.''
Other Rules provide for intervening action between the time
the articles are presented by the House to the Senate and
subsequent proceedings before the Senate. For example, Rule 8
provides for a writ of summons to be issued to the person
impeached with a date to appear before the Senate.
The impeached party is given a date to answer the Articles
and the House is then given a date to reply.
For example, in the trial of President Andrew Johnson, the
President was given 17 days to prepare his answer (his
counsel had requested 47 days to prepare). The House managers
took one day to file their brief reply to the President's
answer. In the 1989 trail of Judge Walter Nixon, the Judge
was given 29 days to prepare his answer, and the House was
given 12 days to file its response.
These rules and that prior practice demonstrate that there
is a necessary time lapse between the presentation of the
Articles to the Senate and the commencement of further Senate
hearings or proceedings.
is censure an authorized consequence or remedy in an impeachment
proceeding?
No. The specific language in the Constitution Article 1,
Section 3, Clause 7 contains the clear implication that
judgment in an impeachment proceeding shall not include
censure or any consequence or remedy other than that
specified in the Constitution: ``Judgement in Cases of
Impeachment shall not extend further that to removal from
Office, and disqualification to hold and enjoy any Office of
Honor, Trust or Profit under the United States.'' The
language ``shall not extend further'' than the enumerated
consequences or remedies precludes any judgment beyond
``removal from office'' and ``disqualification to hold and
enjoy any Office of Honor, Trust or Profit under the United
States''.
Further support for the conclusion that impeachment does
not contemplate penalties like censure is contained in the
historical references. Of the fifteen individuals impeached
by the House of Representatives, all seven convicted by trial
in the Senate were removed from office.
Contrasted to censure, impeachment and removal from office
are not intended to be a punishment. In his ``Commentaries on
the Constitution of the United States,'' Justice Joseph Story
notes that impeachment ``is not so much designed to punish an
offender as to secure the state against gross political
misdemeanors. It touches neither his person nor property but
simply divests him of his political capacity.''
Consequently, the impeachment process does not contemplate
Congress imposing any penalty, including censure, as part of
an impeachment proceeding. Once the impeachment proceeding is
concluded, it is a different issue as to whether Congress can
pass a resolution of censure in the same manner Congress
enacts resolutions generally.
would the constitutional requirements of the senate impeachment
proceeding be satisfied by the factual recitations in the starr report
or is the senate obligated to hear testimony from live witnesses?
While the Constitution provides no explicit answer,
inferences from the Constitution, the Senate Rules on
Impeachment and the prior practice strongly suggest that live
witnesses were contemplated by the framers instead of merely
a hearsay report.
The Constitution explicitly provides for a trial in the
provision of Article 1, Section 3, Clause 6: ``The Senate
shall have the sole Power to try all impeachments'' (Emphasis
added). The seriousness and magnitude of removal of a Federal
official, especially the President, suggests that the jury
(senators) should have the best evidence and that would
require something more than a hearsay document no matter how
extensive and explicit the Starr Report may be.
That clause further provides: ``and no person shall be
convicted without the concurrence of two-thirds of the
Members present'' (Emphasis added). The use of the word
``convicted'' again refers to a phase or the consequence of
trial and the analogy to a criminal proceeding. While the
Senate is not
[[Page S1541]]
bound by traditional rules of evidence so that we might
consider matters not admissible in a court of law, it would
seem questionable or appear unseemly to base our judgment
exclusively on hearsay on such an important proceeding.
The provisions of Article 1, Section 3, Clause 7 carry
forward the analogy of trial referring to the ultimate
``judgment'': ``Judgment in cases of impeachment shall not
extend further . . .'' (Emphasis added).
The Senate Rules on Impeachment further contemplate,
although do not necessarily mandate, a proceeding with live
witnesses and opportunities for the examination and cross-
examination of such witnesses. For instance, Rule 6 provides
that: ``The Senate shall have power to compel the attendance
of witnesses. . . .'' Rule 17 provides that: ``Witnesses
shall be examined by one person on behalf of the party
producing them, and then cross-examined by one person on the
other side.''
Although the Rules never explicitly give the parties the
right to call witnesses, the language ``on behalf of the
party producing them'' in Rule 17 implies that the parties do
have such a right. The practice of the Senate confirms this
implication that the parties have the right to call
witnesses. For example, in the trial of Andrew Johnson,
witnesses for the President were called and heard over a
period of one week. In the trial of Alcee Hastings, both
sides were allowed to call a total of 55 witnesses.
The foregoing analysis does not conclusively rule out the
propriety of proceeding on the Starr Report.
The House of Representatives relied upon the Starr Report
for the facts even though the practice of the House in prior
impeachment hearings has been to take testimony from
witnesses. ``Hinds' Precedents of the House of
Representatives'' notes that witnesses were called during the
House impeachment hearings on Senator Blount and Judge Perry.
More recently, during the House deliberations on the
impeachments of President Nixon, Judge Claiborne, Judge
Hastings and Judge Nixon, numerous witnesses were called to
lay a factual basis for the impeachment charges. In the case
of Judge Nixon alone, witnesses provided testimony to the
House committee for over a month.
As a practical matter, it is obvious the House did not take
the time to hear witnesses because the House proceedings were
structured to finish in the abbreviated time frame between
the election of November 3rd and the end of the year.
Starting in mid-November and seeking to finish shortly after
mid-December, that time frame was even further constricted.
HOW LONG WILL THE SENATE IMPEACHMENT TRIAL TAKE?
It depends entirely on what the Senate seeks to do and what
parameters are established.
If the Senate peremptorily chooses to dismiss the House
articles without consideration, there is authority that could
be accomplished at the outset by a majority vote on a motion
to adjourn. Since there is no specific Rule relating to the
adjournment of an impeachment trial, the general rules of the
Senate would apply. A motion to adjourn the Senate requires
only a majority vote and is not subject to debate. The Senate
impeachment proceeding could be concluded by adjournment
with, in effect, a dismissal which would be the equivalent of
a nol pros in a criminal case. That is the equivalent of a
judgment of acquittal. The Senate would then resume its
normal business.
There is historical precedent to concluding the Senate
impeachment proceeding by passing a motion to adjourn. In the
impeachment trial of Andrew Johnson, the Senate voted on
three of the eleven articles of impeachment. After failing to
secure a conviction on these three articles, Senator Williams
moved that the Senate sitting as a court of implement adjourn
sine die. The motion carried and the trial of Andrew Johnson
ended prior to a vote on the remaining eight articles.
If the Senate chose to accept the facts of the Starr
Report, the entire trial could be relatively brief if the
President did not put on a factual defense.
An adequate Senate trial need not necessarily be long. The
key witnesses would be Monica Lewinsky, Betty Currie and
Vernon Jordan and possibly Kathleen Willey. There may be a
few other peripheral witnesses such as Judge Susan Webber
Wright. It is hard to calculate but it will probably be a
matter of weeks, not months. That estimate would be expanded
if President Clinton testifies and/or if he puts on a factual
defense.
Possibility of conviction
This matter has had unprecedented and unpredictable turns
of events. The President's August 17th short speech was a
bomb. The House's release of the President's grand jury
deposition reversed the tide. The President's answers to the
House questions reversed the reversal.
It is entirely conceivable that a Senate trial could defy
conventional wisdom and find the two-third votes for
conviction if the evidence is properly presented focusing on
abuse of power and obstruction of justice instead of lying
about sex. While impossible to quantify with precision, it
may be that there are now about fifty votes for conviction,
perhaps a half dozen open minds and maybe another dozen
senators might be persuadable if they think there is
insufficient political cover to acquit.
Monica Lewinsky has the potential to be a strong witness
because her recollection is so extraordinary. She was able to
pinpoint with precision the two dates when, as she put it,
the President received telephone calls from a congressman
with a nickname and a sugar grower in Florida with a name
something like ``Fanuli''. It was later confirmed that the
President had talked on those two dates to Congressman Sonny
Montgomery and a Florida sugar grower named Alfonso Fanjul.
Although Betty Currie's testimony was watered down as the
investigation proceeded, questioning her from her first
statement might provide highly incriminating testimony on the
obstruction charge. Vernon Jordan's testimony has substantial
potential on the abuse of power issue. Jordan testified he
reported to the President ``mission accomplished'' after
Monica Lewinsky's perjurious affidavit was obtained and
Jordan secured a job for Ms. Lewinsky with Revlon. When her
initial interview went badly, Jordan called Ronald Perelman,
head of Revlon's holding company, and Ms. Lewinsky was
recalled the next day for another interview and given a job
on the spot.
The case is also reportedly strong on the perjury charge
against the President on the incident involving Kathleen
Willey. Judge Susan Webber Wright's testimony, in observing
the President's attentiveness at this deposition in the
Jones' case, could undercut the President's contention that
he wasn't paying attention when his lawyer strenuously argued
for the President's innocence at his deposition based on the
Lewinsky affidavit. At that time, the President
conclusively knew it was perjurious.
concluding observations
As you know, my own initial preference was for both Houses
to abandon impeachment proceedings and to then hold the
President accountable through the judicial criminal process
once his term was over leaving the Congress free to attend to
the nation's other business: social security, health,
education, etc.
My view on waiting to hold the President accountable after
he leaves office was based on the blunt proposition that it
was more trouble to get rid of him than to keep him. It may
well be that the public opposition to impeachment had the
same basis. Once we get to the Senate trial, my view may
change if it is no more trouble to get rid of him than to
keep him. Perhaps the public will have a similar change of
heart.
If the House returns Articles of Impeachment, the Senate
should proceed with a dignified trial with the calling of
witnesses because the seriousness of the issue and the
historical impact call for an unhurried, deliberative trial.
To the maximum extent possible, we should make the proceeding
non-partisan. Concessions to the minority on some procedural
matter would be worthwhile. As the majority party in charge,
we should take the lead on non-partisanship. We should avoid
the House bickering at all reasonable costs.
The Senate prides itself on being the world's greatest
deliberative body. This trial will be by far the highest
visibility for the Senate in its history to date and for the
foreseeable future. While the President will be on trial, the
Senate will also be on trial.
Appendix C
December 29, 1998.
To: Senator Trent Lott, Majority Leader.
From: Senator Arlen Specter.
Supplementing my memorandum of December 10 and our
telephone conversation of December 22, this memo suggests
procedures to deal with the Senate trial in light of the
public dissatisfaction with the House proceedings, public
impatience with impeachment generally and ways to achieve a
judicious, non-partisan Senate trial. Since this memorandum
was written while I have been traveling, the rules and case
citations could be checked only by long-distance telephone.
can procedures be structured to shorten the length of the trial?
Yes. While it is impossible to say with certainty the
duration of any trial, procedures can be put into place to
abbreviate the trial with a reasonable likelihood of reaching
a verdict within a few weeks (perhaps even three weeks as
earlier predicted by you--Senator Lott) as contrasted with
some assessments that the trial would take months or the
better part of a year.
The Senate already is under pressure and will probably be
under greater pressure to finish at an early date which
accounts for the call for short-circuiting the trial through
a plea-bargained censure. It is obviously in the national
interest to end the trial as soon as possible without rushing
to judgment and it would doubtless meet with public approval
to announce at the outset a plan to accomplish that.
Several steps could be taken to abbreviate the trial time:
(1) Require submission of pre-trial memoranda by the
parties followed by a pre-trial conference with the Chief
Justice to establish the parameters of the trial;
(2) Organize the House Managers' case, with input from the
Senate, to focus on only the key witnesses and indispensable
lines of questions; and
(3) Establish long trial days and Saturday sessions.
Without management and limitations, the lawyers could take
a long, indeterminate time. By analogy to Federal court
litigation, this trial could be managed by having the parties
submit pre-trial memoranda which
[[Page S1542]]
would identify any pre-trial motions, list prospective
witnesses and lines of questions, etc., and approximate the
time involved at each stage.
The Chief Justice would then meet with the parties and
issue a pre-trial order establishing the trial parameters
just as the presiding judge does in Federal court trials.
an activist, bipartisan senate
In an impeachment trial, Senators function in a very
unusual way in that we are both jurors and judges. A majority
of Senators may overrule the Chief Justice's rulings. We
decide individually for ourselves what is the burden of proof
and what evidence on what conduct is sufficient for a guilty
verdict.
The Senate will be proceeding without precedent on most
issues. The Senate has broad latitude as noted by the Supreme
Court of the United States in the case of Judge Nixon where
the Court held the Senate had authority to establish its
procedures under the Impeachment Clause.
This case and these times call for a more activist approach
by the Senate than prior impeachment trials. While it was not
inconvenient or problemsome to allow the House managers to
set the pace for the Hastings, Nixon or Claibourne trials,
this is obviously a very different matter. The impeachment
trials of President Johnson and those which occurred earlier
offer little guidance on how the Senate should proceed today.
The existing Senate rules on impeachment are a starting
point. They can be changed by a majority vote unless there is
disagreement in which case proposed changes are debatable and
subject to a two-thirds vote.
It is only through bipartisanship that the Senate can
succeed in having a judicious, non-partisan trial which can
gain public acceptance. So, all significant procedures must
have the concurrence of most Senators from both parties.
In my judgment, it would be appropriate and practical to
structure the presentation of the evidence by having a small
bipartisan Senate committee work with the House managers and
President's lawyers on what the Senate wants presented in a
tightly focused case, taking into consideration any
differences with the House managers which could then be
worked out.
Arguments in appellate courts customarily take the form of
the appeals judges focusing on the questions they want
addressed by counsel as opposed to having the lawyers decide
how to use their allotted time. It would be analogous to such
appellate proceedings to have the Senate direct, or work out
collaboratively with the House the evidence the Senate wants
to hear.
I suggest that a small committee, perhaps five Senators
with three Republicans and two Democrats, work up a trial
format and trial brief. It will be helpful for the Senators
to have prosecution or criminal defense experience. This
Senate committee, or perhaps one Republican and one Democrat,
should participate in preparation of the pre-trial memorandum
and pre-trial conference.
Long Trial Sessions
Substantial evidence could be presented with trial days
from 9:30 am to 5 pm or even 9 am to 6 pm with Saturday
sessions. The Philadelphia criminal courts had the minimum
trial day established from 9:30 am to 5 pm. Senate
Impeachment Rule 3 provides for Saturday sessions in
impeachment trials.
I recommend against the so-called double track with the
Senate sitting half days on the trial and half on other
Senate business. There is too much legitimate public concern
to have the trial proceed expeditiously and end as soon as
possible. Even with the trial ending at 5 pm or 6 pm, some
Senate business could be conducted in the evenings on
confirmations or other business which can be handled by
unanimous consent.
We might consider canceling our February and March recesses
for the trial, which would likely produce significant public
approval.
The Importance of Live Witnesses
I strongly recommend live witnesses on the key issues
although there is no prohibition against use of hearsay such
as the Starr Report. Prior impeachment cases establish the
precedent for live witnesses and the Senate rules provide
procedures for live witnesses. Live witnesses have
customarily testified in House impeachment proceedings. In
the Senate, for example, live witnesses testified in cases
involving President Johnson and in the most recent
impeachment case on Judge Alcee Hastings. Senate Rules 6 and
17 establish procedures for dealing with witnesses.
The dignity, tenor and stature of the Senate Trial call for
live witnesses on an impeachment of this magnitude.
Everything the Senate does will be subjected to a microscope
both contemporaneously and historically. While it is a
sweeping generalization, I think it is fair and accurate to
say that no trial in history to date has been or will be so
closely watched.
We have some gauge as to how closely this trial will be
scrutinized from the work of the Warren Commission which has
been the most closely dissected investigation in history.
Notwithstanding constant pressure from Chief Justice Warren,
who wanted the inquiry concluded at an early date, the staff
lawyers insisted on extended tests and extensive
interrogation knowing the record would be closely examined.
At that time, we couldn't conceive of the extent of the
scrutiny, but we had some inkling of what was coming. At this
time, the Senate should be on notice to cross every ``t''
and dot every ``i'' twice.
It may be sufficient to use the Starr Report to establish
some of the lesser proofs for the record.
Without attempting to be dispositive on who are all the key
witnesses and what are all the indispensable lines of
questioning, a suggested focused strategy would be to call:
(1) Monica Lewinsky to testify on the perjury issue by
covering the numerous times she and the President were alone
(he claimed they were never alone) and the specifics of their
conduct on the issue as to whether they had sex.
It may be wise to have her testify in a closed session on
the details of their sexual relationship. In retrospect, the
Judiciary Committee might have been wise to hear some of the
testimony by Prof. Hill and Justice Thomas in a closed
session. In the confirmation hearing of Justice Breyer,
testimony was taken in a closed session on his finances.
Even though most, if not all, of Ms. Lewinsky's testimony
has already been made public, it would be less offensive to
public taste and arguably less prejudicial or more
considerate of the President to avoid the spectacle of
television on the specifics of their sex. Any objection to
the closed or secret hearing could be largely answered by
releasing a transcript to the public at the end of each daily
session.
If the President testifies, consideration should also be
given to a closed session on the specifics of their sexual
activities. It is arguably, and perhaps realistically,
different to have a closed session with the President, but
these questions will have to be thrashed out at the time
depending on the feel of the case if, as and when they arise.
In order to have a closed session, there would have to be a
modification of Rule 20 which requires the Senate doors to be
open except during deliberation.
(2) Vernon Jordan to testify about contacts with the
President including his telephone call where he reported
``mission accomplished'' after arranging with another lawyer
to get Ms. Lewinsky's perjurious affidavit and getting her a
job with Revlon.
(3) Betty Currie to testify on the President's efforts to
alter and mold her version of what happened. Even though Ms.
Currie gave several statements, the essential elements of her
testimony could be put on the record at trial by going
through her first statement to the FBI.
The President's possible testimony is considered later in
this memorandum.
should the Senate trial be terminated by an arranged disposition for
censure?
No, for several reasons:
(1) The Constitution specifies the two remedies or
consequences in cases of impeachment which necessarily
excludes censure: ``Judgment in Cases of Impeachment shall
not extend further than to removal from Office, and
disqualification to hold and enjoy any Office of honor, Trust
or Profit under the United States''--Article 1, Section 3,
Clause 7. The language ``shall not extend further''
specifically precludes censure or any other remedy not
enumerated in the Constitution.
The argument is now being strenuously advanced by many,
including some Senators, that the impeachment trial should be
ended at an early stage by a motion to adjourn the Senate and
then, by pre-arrangement, taking up a Resolution of Censure
to be approved by the Senate and House. In my judgment, that
would be a perversion of and at variance with the
Constitution or, simply stated, unconstitutional.
(2) Censure would be meaningless for this President--not
worth a ``tinker's dam.''
(3) Censure would be a bad precedent which could be used
whenever the Congress of one party wanted to express
displeasure or embarrass the President of the other party.
Simply stated, the Congress is not in the business of
censuring the President under our Constitutional separation
of powers.
(4) Censure would prejudice a possible later criminal
prosecution of the President after he leaves office. There
will be an inevitable sense that censure will constitute a
form of punishment or final judgment, although not
technically double jeopardy, which would preclude a later
prosecution, as a practical matter.
The prospects for censure have been dampened by Vice
President Gore's statement that the President would not
accept censure conditioned on the President's admitting to
lying under oath even if that admission could not to be used
against him in any criminal proceeding. Even if the
President would admit to lying under oath, he would most
certainly object to the procedures necessary to rule out
use of that admission in a criminal prosecution.
Only a court, not the Senate or Congress, can grant
immunity from future criminal prosecution. The Senate can
take steps to have immunity granted by the Court. But that
action can be taken only after the President or any witness
asserts the privilege against self-incrimination under the
Fifth Amendment. The Court then grants immunity and the
testimony cannot be later used against that person in a
criminal prosecution.
Since the President has announced his unwillingness to
admit to lying under oath, it is fruitless to suggest the
Fifth Amendment course.
president clinton's possible testimony
For the Senate to have all the facts--or all versions of
the facts from which Senator-jurors must determine what the
facts are, the
[[Page S1543]]
Senate should hear from the President. It may be that the
President will choose to testify; and as a matter of comity,
the Senate should await the President's decision.
If the President elects not to testify, the Senate will be
faced with a difficult legal question and perhaps an even
more difficult political question. On its face, Impeachment
Rule 6 gives the Senate the authority to compel the President
to testify:
``The Senate shall have the power to compel the attendance
of witnesses'' and ``to enforce obedience to its orders,
mandates, writs, precepts and judgments.''
Notwithstanding that express language, some doubt has
arisen as to whether the President is subject to compulsory
process (subpoena) because of Rule 8 which provides:
``A writ of summons shall issue to the person impeached
reciting said articles and notifying him to appear before the
Senate upon a day and at a place to be fixed by the Senate .
. . and file his answer to said articles of impeachment. . .
``If the person impeached, after service, shall fail to
appear, either in person or by attorney, on the day so fixed
therefore as aforesaid, or appearing, shall fail to file his
answer to such articles of impeachment, the trial shall
proceed, nevertheless, as upon a plea of not guilty.''
Some have cited President Johnson's refusal to appear at
the Senate trial as authority for the proposition that the
President cannot be compelled to attend and testify. That
inference is unsound because Rule 8 refers to responding to
the summons and filing an answer ``either in person or by
attorney.'' So the attorney's action satisfies the rule
without the appearance or other action by the President.
Accordingly, the impeached party complied with the Senate
rules in President Johnson's case which did not raise the
issue of the Senate's power to compel the President to
testify.
There is no precedent for a case where the impeached
official declined to testify and the Senate attempted to
compel his testimony. The other impeachment cases offer no
close analogy where, as here, critical facts are known to
only two people, one of whom is the impeached official.
Analogies from other, although dissimilar, trials suggest
the President would be subject to being subpoenaed. The
Supreme Court of the United States held President Nixon was
subject to compulsory process to turn over the famous tapes
under the established principle: ``That the public . . . has
a right to every man's evidence.''
President Nixon's case, although not dealing with
impeachment, is further instructive in the Supreme Court's
sweeping language on the need for all the facts:
``The need to develop all relevant facts in the adversary
system is both fundamental and comprehensive. The ends of
criminal justice would be defeated if judgments were to be
founded on a partial or speculative presentation of the
facts. The very integrity of the judicial system and public
confidence in the system depend on full disclosure of all the
facts, within the framework of the rules of evidence. To
ensure that justice is done, it is imperative to the function
of the courts that compulsory process be available for the
production of evidence needed either by the prosecutions or
the defense.''
Since this is not a criminal trial, there would be no rule
that a defendant has the right not to testify. Although not a
controlling analogy, a party in a civil case may be called
involuntarily to the witness stand by his/her opponent ``as
on cross'' which means he/she may be cross-examined.
In my legal judgment, President Clinton could be compelled
to testify based on Senate Rule 6, analogies to compulsory
process in President Nixon's case and civil litigation and
the fact that President Clinton was subject to compulsory
process in the Paula Jones case and Starr grand jury.
Consideration of enforcing such a subpoena can be left to a
later day if, as and when the issue arises.
If the President did testify, it could have a profound
effect on the public's view of the case and on the Senator-
jurors. The President's lawyers could not shield him from
cross-examination and he could not avoid the specifics on his
contacts with Ms. Lewinsky as he did in his abbreviated grand
jury testimony.
If the President sticks to his story that he did not have
sex with Ms. Lewinsky and did not lie under oath at his
deposition in the Paula Jones case, his credibility could be
severely impugned by pointed cross-examination and he could
be viewed very negatively by the public and the Senator-
jurors. Or, it may be that the public and many Senator-jurors
would not be any more adversely affected by his Senate trial
testimony than they were by the videotapes of his grand jury
testimony.
At this moment, it is impossible to judge what the feel or
tenor of the trial would be on subpoenaing the President if,
as and when he declined to testify after serious
incriminating evidence was presented against him. If subpoena
sentiments formed along party lines, it would be the most
severe test of acting only with a bipartisan consensus.
Over several centuries, litigation experience has
demonstrated the unpredictability of trials. That is why they
are called trials. A two-thirds majority may not appear out
of thin air, as noted by Congressman DeLay, but it could
appear from forceful presentation of the key evidence
including cross-examination of the President. If the trial
turned heavily against the President, it is conceivable,
although highly unlikely at this point, that a plea bargain
could be structured with the Independent Counsel's
concurrence that the President would resign with his pension,
his law license and immunity from prosecution.
Once a trial starts, the genie is out of the bottle and
anything can happen. Emotions in all directions are at an
all-time high with Republicans, the President, Democrats or
anybody else in the line of fire at risk for the ultimate
public scorn. An the public's other business would not be
attended to forever how long the trial took.
That is why I continue personally to favor putting off
holding the President accountable until after his term ends
through the criminal process. That accommodates the public's
short-term desires for the Congress, the President and the
Supreme Court to focus on the nation's business and the long-
term national interest to later hold the President
accountable for the serious charges through indictment if the
grand jury so decides, and to sentencing by a judge if a jury
convicts.
The Public Reaction
Prospects are reasonably good that the public would not
react unfavorably to a non-partisan, judicious, focused,
relatively brief Senate trial. In addition, the public would
likely understand the Senate has an explicit Constitutional
duty to hold a trial after Articles of Impeachment are passed
by the House. There has already been a bipartisan recognition
of this duty by Senators who are Democrats.
Public reaction, as gauged by the polls, was adverse to the
House proceedings, at least in part, because of their highly
partisan, strident tenor; and because the House never zeroed
in or highlighted the highly incriminating evidence. There
may even be some grudging public approval that Congress is
willing to take action on a significant matter contrary to
the polls.
A favorable public reaction will depend largely if not
exclusively on the public's feeling that the proceedings are
bipartisan, so the Senate must take extreme care to make the
trial bipartisan. As the majority party, we Republicans
should bend over backwards to avoid even the appearance of
seeking partisan advantage which marred the House
proceedings.
I strongly support the suggestion that there should be no
separate party caucuses on impeachment issues. It would be
useful to convene all Senators at an early date, such as
January 8, 1999, when we will all be in town, to discuss
ideas on how to proceed. I recollect one such meeting of all
Senators from both parties a couple of years ago on
appropriations or budget issues near the end of the session.
Concluson
History will cast a long shadow on what the Senate does in
this impeachment proceeding.
The Senate should not, in effect, sweep the matter under
the rug by relying on the hearsay Starr Report for the key
facts. Some say the Starr Report is a sufficient factual
basis for Senate action because the facts are not in dispute.
That is not true. A close reading of the President's grand
jury testimony and his famous 82 answers to interrogatories
demonstrate that he has not conceded the accuracy of the key
incriminating evidence.
As detailed above, the Senate can leave it to the criminal
courts to put the facts on the historical record and have the
indicting grand jury, trial jury and presiding judge hold the
President accountable to whatever extent warranted after his
term ends.
A rush-to-judgment censure plea bargain would complete the
trifecta of inappropriate action by the Senate as well as the
House and President.
Mr. LEVIN. Mr. Chief Justice, colleagues, first a personal note to
our leaders: How proud I am of them, and we all are of you, for holding
us together during this very, very difficult time. We will all be
closer for having come through this, regardless of what this vote is or
how we individually vote.
The burden of proof on the House that the President has committed
high crimes and misdemeanors and should be removed from office is a
heavy burden, because the effect is so dire in a democracy that depends
upon the election of the President. In my judgment, the House of
Representatives has not carried that burden of proof as to the specific
allegations against the President. The House repeatedly relies on
inferences while ignoring direct testimony to the contrary. There is
nothing unusual about the reliance on inferences. It happens in trials
all the time. What is unusual here is that the House's case relies on
inferences from the testimony of people whose direct testimony
contradicts the inference. Let me just cite some examples in the
obstruction of justice article.
First, the House managers in their report, in their brief, made the
following statements: ``As evidenced by the testimony of Monica
Lewinsky, the President encouraged her to lie.'' That is the words of
the House brief. Second, ``The testimony of Monica Lewinsky
[[Page S1544]]
leads to the conclusion that it was the President who initiated the
retrieval of the gifts and the concealment of the evidence.'' Third,
``The President needed the signature of Monica Lewinsky on the false
affidavit and that was assured by the efforts to secure her a job.''
Those are all direct quotes. Each one of those relies on inferences.
Each one of them is contradicted by the explicit testimony of people
from whom those inferences are drawn.
Let's just take them one by one. The House managers' inference that
the President ``encouraged''--that is their word--Monica Lewinsky to
lie was contradicted by Monica Lewinsky's proffer, which was then
incorporated into her grand jury testimony, that the President
``never'' encouraged her to lie. That is her word. They say by
inference the President encouraged her to lie. She says, ``The
President never encouraged me to lie.''
The House managers' inference that it was, ``President Clinton who
initiated the retrieval of the gifts and the concealment of the
evidence on December the 28th,'' was contradicted by Monica Lewinsky's
direct testimony that she initiated the concealment of the gifts. It is
uncontested that on December 22 she took some of the gifts and
concealed the rest--some of the gifts to her lawyer's office. She
decided on her own that she would not turn over the gifts in response
to that subpoena because they would embarrass her, or they would, in
her words, disclose that there was a special relationship. So on the
22nd she decided on her own to withhold some of the gifts. And yet we
are told by the managers by inference that somehow or other it is the
President who initiated the withholding and the concealment of the
gifts.
And then on the 28th, when they met at the White House, it was Monica
Lewinsky who said, ``Maybe I should get some of the gifts to Betty.''
She initiated the issue. And then the President said either nothing or,
``Let me think about it.'' And then the question came up: Well, who
then made the phone call relative to the pickup of the gifts? Was it
Monica Lewinsky calling Betty Currie or was it Betty Currie calling
Monica Lewinsky?
And here is where another inference is drawn, that if in fact it was
Betty Currie who initiated the call, then the inference is that the
President told Betty Currie to call Monica Lewinsky. There is a
conflict there between Betty Currie and Monica Lewinsky.
But one of the most intriguing issues in this whole matter, one that
I have really given a lot of thought to, is the question: Why would the
President give Monica Lewinsky gifts on December 28 if he was concerned
about it and wanted to withhold and hide the gifts? It is one of the
questions that didn't get a lot of focus up here, by the way.
The President gave Monica Lewinsky at least three things that day:
That bear carving that Dale Bumpers referred to that came from
Vancouver, a small blanket, and a stuffed animal.
Now, here is the way the House addressed that issue. They asked
themselves in their brief the question: Why would the President give
Ms. Lewinsky gifts at the same time he was asking her to conceal others
that he had already given her? Answer from the House in their brief:
The only logical inference--only logical inference--is that the gifts,
including the bear, symbolizing strength, were a tacit reminder to Ms.
Lewinsky that they would deny the relationship even in the face of a
Federal subpoena. That is the inference that they say is the only
logical inference from giving three gifts to Monica Lewinsky, including
a bear.
Now, there is a real problem with that. First of all, that bear was
obtained by the President in Vancouver weeks before there was a witness
list. We are not even offered speculation as to how the President could
foresee that Monica Lewinsky would be on a witness list and pick up a
symbol of strength while in Vancouver so that he could give it to her
as a reminder to deny their relationship in the face of some future,
unforeseen Federal subpoena.
But even more to the point, Monica Lewinsky was asked directly at the
grand jury--directly--this question as to whether or not she
interpreted the gift of that bear as a signal to her to ``be strong in
your decision to conceal the relationship.'' Her direct, one-word
answer was ``No.'' And yet the managers come here saying the only
logical inference that can be drawn from three gifts being given from
the President on the 28th is that the President was signaling to her to
be strong in the face of a Federal subpoena. That is the kind of
inference we are asked to draw.
Now, I was raised on the burden of proof, both as a prosecutor in
civil rights cases and as a defense lawyer. The House cannot carry the
burden of proof on the critical allegations of criminal misconduct that
they have made when they depend on those kinds of inferences, a pile of
inferences that run directly contrary to direct testimony on critical
points. Impeachment and removal should be based on sturdier foundations
than that kind of a heap of inferences. They would have us overlook the
forest of direct testimony while getting lost in the trees of their
multiple inferences.
The December 11 issue has been discussed here. It was extraordinary
to me, listening here as both factfinder and judge, that it could be
represented to us that on December 11 the first activity calculated to
actually help Monica Lewinsky get a job occurred. That is what they
alleged on the floor of the Senate. The first activity--these are their
words--calculated to help Ms. Lewinsky actually get a job took place on
December 11, and that something happened on that day to trigger Vernon
Jordan's meeting and real activity. Something happened that day. What
was it? Judge Wright's order.
In their House brief, it is said that that order came in the morning,
which was wrong, and in the presentation here in the opening arguments
Manager Hutchinson said the following: ``The witness list came in, the
judge's order came in. That triggered the President to action. And the
President triggered Vernon Jordan into action. That chain reaction here
is what moved the job search along.''
Wrong. It disintegrated here. Vernon Jordan's meeting was before the
judge's order. And yet that is what we are asked to base the removal of
a President on. And then the thinking shifts to another theory. Removal
of an elected President from office has got to be made of sturdier
stuff than those kinds of inferences.
Finally, on the double standard issue--and I think we all must be
concerned about that--a former prosecutor who appeared in front of the
House said the following. And Senator Sarbanes quoted one line of this,
and I want to repeat that, because it is so important, and then add one
other thing that they said. ``In conversations with many current and
former Federal prosecutors in whose judgment I have great faith,
virtually all concur that if the President were not involved, if an
ordinary citizen were the subject of the inquiry, no serious
consideration would be given to a criminal prosecution arising from
alleged misconduct in discovery in the Jones civil case having to do
with an alleged coverup of a private sexual affair with another woman
or the follow-on testimony before the grand jury. I believe the
President should be treated in the criminal justice system in the same
way as any other United States citizen.
``If that were the case here,'' these former prosecutors said, ``it
is my view that the alleged obstruction of justice and perjury would
not be prosecuted by a responsible U.S. attorney.''
I know this is not a criminal case, this is an impeachment trial, but
I would think that our standards should be at least as high as would be
in a criminal case, and that if this President would not be prosecuted,
much less convicted for these specific charges--and these were criminal
charges that were very specifically made by the managers against the
President--if that prosecution and conviction would not take place in a
criminal case, we should be loathe, I believe, and very, very cautious
and careful before we remove an elected President from office.
I learned about the burden of proof and presumption of innocence as a
young boy, long before law school, when my father, who was a lawyer,
taught me that American justice is dependent on these principles. As I
grew up and became a lawyer myself, I experienced firsthand the
significance of these bedrock principles and learned that it applies to
all Americans accused of crimes, including the President. These
principles of the burden of
[[Page S1545]]
proof and the presumption of innocence help guide me now as we exercise
our constitutional duty to judge the specific accusations of criminal
behavior lodged against the President of the United States.
The burden of proof on the House of Representatives that the
President has committed serious crimes and should be removed from
office is a heavy one, because overturning an election in a democracy
is a drastic and dire action. The House has not carried that burden of
proof as to the specific accusations against the President.
The arguments of the House Managers in support of the Articles suffer
from fundamental weaknesses. They repeatedly rely on inferences while
ignoring direct testimony to the contrary; they omit key materials
which contradict their charges; and they contain serious misstatements
of key facts. In a matter of such consequence as the removal of an
elected President from office, such a case should not lead to
conviction.
Let me cite some key examples from Article II, the allegation of
obstruction of justice. First, the House Managers in their report,
brief, and arguments to the Senate repeatedly rely on inferences to
prove key points and ignore direct testimony to the contrary. In
opening arguments, House Manager Hutchinson made the following claims:
As evidenced by the testimony of Monica Lewinsky, [the
President] encouraged her to lie.
. . . (T)he testimony of Monica Lewinsky . . . leads to the
conclusion that it was the President who initiated the
retrieval of the gifts and the concealment of the evidence.
. . .The President needed the signature of Monica Lewinsky
on the false affidavit, and that was assured by the efforts
to secure her a job.
Mr. Hutchinson's arguments rely on inferences. Relying on inferences
is not unique to proving a case. What is unique is that in this case,
the House Managers use inferences primarily from bits and pieces of
testimony of people who explicitly deny those inferences in their
direct testimony. The House Managers' inference that the President
encouraged Monica Lewinsky to lie was contradicted by Monica Lewinsky's
direct testimony that the President never ``encouraged'' her to lie.
The House Managers' inference that ``it was President Clinton who
initiated the retrieval of the gifts and the concealment of the
evidence on December 28, 1997,'' was contradicted by Monica Lewinsky's
direct testimony that she initiated the concealment of gifts. Not only
is it an uncontested fact based on direct testimony that it was Monica
Lewinsky who on December 22, 1997, following the receipt of a subpoena
for gifts and having decided on her own to withhold gifts which would
``give away any kind of special relationship,'' brought to her attorney
only those gifts that were ``innocuous'' and typical of the kind of
gifts an intern might receive. It is also an uncontested fact based on
direct testimony that it was Monica Lewinsky who, on December 28, 1997,
expressed her interest in wanting to hide the gifts when she said to
the President that maybe she should transfer the gifts to Betty Currie.
Ms. Lewinsky testified that the President either didn't respond to her
comment or said he'd think about it.
But what makes the Managers' inference even more speculative is the
fact that at the December 28th visit, the President gave Ms. Lewinsky
even more gifts, including a bear carving from Vancouver, a small
blanket and a stuffed animal. Why would the President give Ms. Lewinsky
gifts at the same time he is asking her to conceal others he had
already given her? I was struck by the House's answer. ``The only
logical inference,'' according to the House Managers, ``is that the
gifts--including the bear symbolizing strength--were a tacit reminder
to Ms. Lewinsky that they would deny the relationship--even in the face
of a federal subpoena.''
That inference, called ``the only logical inference,'' is not only
the rankest form of speculation, it is also contrary to the direct
evidence.
The undisputed grand jury testimony was that the bear carving was
brought back by the President from Vancouver, a trip which occurred
weeks before Monica Lewinsky's name appeared on any witness list. We're
not even offered speculation as to how the President could foresee that
Monica Lewinsky would be on a witness list, and pick up a symbol of
strength while in Vancouver so that he could give it to her as a
reminder to deny their relationship in the face of some future,
unforseen federal subpoena. But even more to the point, when Ms.
Lewinsky was asked the direct question at the grand jury whether she
interpreted the gift of the Vancouver bear carving as a signal to her
to ``be strong in your decision to continue to conceal the
relationship,'' her direct, one-word answer was ``no.''
The Managers' reliance on inferences from testimony of persons whose
direct testimony contradicts the inferences was a recurring pattern
during this trial. The Managers alleged that the signing of the
affidavit and the obtaining of the job for Ms. Lewinsky were linked,
based on inference from bits and pieces of testimony of Monica Lewinsky
and Vernon Jordan. But Vernon Jordan and Monica Lewinsky explicitly
denied any such linkage. Ms. Lewinsky said, ``There was no agreement
with the President, Jordan, or anyone else that [I] had to sign the
Jones affidavit before getting a job in New York.'' Mr. Jordan told the
grand jury in answer to the question whether the job search and
affidavit signing were linked, ``unequivocally, indubitably, no.''
Impeachment and removal should be based on sturdier foundations than
the heap of inferences that have been placed before us, when those
inferences are pieced together from bits of testimony of witnesses
whose direct, explicit testimony contradicts the inferences. The House
Managers would have us overlook the forest of direct testimony while
getting lost in the trees of their multiple inferences.
The House Managers' case also omitted directly relevant,
contradictory material and misstated key facts. For instance, the House
Managers argued in their brief that relative to the job search
assistance for Ms. Lewinsky, ``nothing happened in November of 1997.''
But, in fact, our Ambassador to the United Nations, at the request of
the Deputy Chief of Staff of the White House, offered Ms. Lewinsky a
U.N. job on November 3rd.
The House Managers' report explicitly represented that ``(t)he first
activity calculated to help Ms. Lewinsky actually get a job took place
on December 11,'' and that ``(s)omething happened that changed the
priority assigned to the job search.'' What happened, the Managers
argued, was a court order ``on the morning of December 11'' by Judge
Wright requiring President Clinton to provide information about prior
relationships involving state and federal employees. The Senate was
told by the House Managers that ``(s)uddenly, Mr. Jordan and President
Clinton were now very interested in helping Ms. Lewinsky find a good
job in New York'' and that Vernon Jordan got active on the afternoon of
December 11 when he and Ms. Lewinsky met.
Manager Hutchinson said in his argument to the Senate:
The witness list came in. The judge's order came in. That
triggered the President to action. And the President
triggered Vernon Jordan into action. That chain reaction here
is what moved the job search along.
But that key argument disintegrated before our eyes when it turned
out that Judge Wright's December 11 order came late in the day, well
after the meeting between Vernon Jordan and Monica Lewinsky, and in
addition, the meeting had been scheduled many days before.
With respect to the perjury article, the House Managers failed to
meet their burden as well. The President admitted to the grand jury
that he did have ``inappropriate intimate contact'' with Monica
Lewinsky when he was alone with her, and the House Managers failed to
identify specific statements that would meet the requirements of a
perjury charge.
The lack of substantive evidence supporting the charges explains why
a panel of five highly regarded former Democratic and Republican
federal prosecutors, who appeared before the House Judiciary Committee,
testified that this case against the President would not have been
pursued by a responsible federal prosecutor. Thomas Sullivan, who
served for four years as U.S. Attorney for the Northern District of
Illinois, and whom Chairman Hyde described as having ``extraordinarily
high'' qualifications had this to say:
[[Page S1546]]
. . . (I)n conversations with many current and former
Federal prosecutors in whose judgment I have great faith,
virtually all concur that if the President were not
involved--if an ordinary citizen were the subject of the
inquiry--no serious consideration would be given to a
criminal prosecution arising from alleged misconduct in
discovery in the Jones civil case, having to do with an
alleged coverup of a private sexual affair with another woman
or the follow-on testimony before the grand jury . . . I
believe the President should be treated in the criminal
justice system in the same way as any other United States
citizen. If that were the case here, it is my view that the
alleged obstruction of justice and perjury would not be
prosecuted by a responsible United States Attorney.
Finally, I have had a deep concern about the impeachment process
which formed the basis of this trial. While my decision to reject the
articles is based on the inadequate proof of the crimes alleged, the
process which brought this matter to trial was deeply flawed.
The articles of impeachment before us are based on materials, the so-
called Starr Report, compiled by an outside prosecutor, not by the
legislative branch itself, which has under the Constitution the
``sole'' responsibility for impeachment. Instead of doing an
independent investigation, the House of Representatives unwisely
delegated, in my judgment, the critically important investigative
function to an outside prosecutorial foe of the President and an actual
advocate of his impeachment. The House took that prosecutor's record
and his testimony and made them the basis of articles of impeachment
presented to us.
The contrast to the Watergate investigation and the impeachment of
President Nixon is stark. In the Watergate investigation, the Senate
convened a select committee in February 1973 to investigate the
Watergate break-in and other campaign irregularities in the 1972
election. That committee took testimony for a year. In February 1974,
the House voted to direct the House Judiciary Committee to conduct an
inquiry into impeachment. The Committee conducted its own
investigation, including subpoenaing the White House tapes and calling
numerous fact witnesses. The Committee also obtained the report of the
grand jury meeting under the authority of Leon Jaworski, the Watergate
prosecutor. In deciding to allow the grand jury report to be forwarded
to the House Judiciary Committee, Judge Sirica found that the report:
`` draws no accusatory conclusions. . . contains no
recommendations, advice or statements that infringe on the
prerogatives of other branches of government. . . . (and)
renders no moral or social judgments. The Report is a simple
and straightforward compilation of information gathered by
the Grand Jury, and no more. . . .'' (In re Report and
Recommendation of June 5, 1972, Grand Jury Concerning
Transmission of Evidence to the House of Representatives,
U.S. District Court, District of Columbia, March 18, 1974.)
The report sent to the House of Representatives in the matter before
us violated almost every standard followed by Judge Sirica. The Starr
Report didn't present the evidence in an impartial manner as
contemplated in the independent counsel law. It drew a host of
``accusatory conclusions'' and rendered judgments. The report contained
a large volume of needlessly salacious detail and omitted or dismissed
important exculpatory evidence. The impeachment process has suffered as
a result.
Moreover, the House made a significant and irreparable mistake in the
actual drafting of the articles. Each article alleges multiple acts of
wrongdoing. Thus, it would be impossible to determine after a vote on
the articles whether a 2/3rds majority of the Senate actually agreed on
a particular allegation. Article I, for example, charges that President
Clinton committed one or more of the 4 possible acts of perjury;
Article II charges that President Clinton committed one or more of 7
possible acts of obstruction. Without separate votes on each of the
alleged acts, it would be impossible to determine whether 2/3rds of the
Senate agreed that the President had committed any of the actions
alleged. Since the Constitution requires conviction upon a vote of 2/
3rds of the Senate, the articles as drafted do not allow us to
guarantee to the American people that we are complying with the
requirements of the U.S. Constitution. This is a flaw that cannot be
fixed, because the Senate does not have authority to amend the
articles.
Alexander Hamilton in the Federalist Papers asked this question,
``Where else than in the Senate could have been found a tribunal . . .
[which] . . . would be likely to feel confidence enough in its own
situation to preserve, unawed and uninfluenced, the necessary
impartiality between an individual accused and . . . his accusers ?''
Each of us, however we vote, will soon answer that question, as we
stand between the accuser and the accused, weighing the evidence. The
issue before us is not whether the President's conduct was
reprehensible; that is clear beyond any reasonable doubt. The issue is
whether the President committed the alleged crimes for which he should
be removed from office, a proposition which places on his accusers a
heavy burden of proof. It is a burden the House Managers have not met,
and I will, therefore, vote against the articles of impeachment.
I would like to add my thoughts on censure as well, since this may be
the only appropriate opportunity to do so. I support the censure
resolution authored by Senator Feinstein, and I commend her for her
openness, diligence and hard work in bringing to fruitition a
bipartisan product. The President should know, the American people
should know, and history should know that by voting to acquit on
impeachment, we did not vote to acquit the President for his egregious
conduct. I know of no Senator who is not deeply troubled by the
President's conduct. While I do not believe the President's conduct in
his private, consensual sexual relationship should have become the
business of the American public, it did in fact become so, and when it
did the President had the duty to tell the truth. And no matter how
wrong or improper that disclosure of the President's private life was,
it does not justify the lies the President told to the American people,
his family and his staff.
I hope that our votes today on impeachment will conclude this
unfortunate chapter in our political history and that the President,
through a forthright acknowledgment of the wrongfulness of his
behavior, will lead the nation toward healing the wounds these events
have opened. I believe the American people want an end to this matter
more than anything, and that any further criminal investigation of the
President with respect to the matters under Mr. Starr's jurisdiction
should be immediately concluded. While Senator Feinstein's censure
resolution states that President Clinton remains subject to criminal
indictment, that is in the resolution as a statement of fact and not as
a statement of encouragement. Indictment after this impeachment trial
would not be appropriate nor would it be in the public interest.
Today's votes should bring this tragic episode to an end.
Ms. SNOWE. Mr. President, now that we have come to the end of the
process required by the Constitution, I feel we have arrived at an
appropriate time to consider a measure required by the President's
conduct.
I rise in support of censure because while I do not find that the
President's behavior constitutes high crimes and misdemeanors requiring
removal, I do believe that it compels us to record for history our
recognition of the damage we all acknowledge he has inflicted upon the
Office of the Presidency and the Nation.
Acquittal must not be the last word. And while I have felt that it
would have been more appropriate for the Senate to issue findings of
fact in the impeachment case against the President, I am now prepared
to support censure so that there is no mixed message for posterity
about what the Senate thinks of the President's actions.
As I said yesterday, the President's behavior is indefensible, and I
for one have no interest in seeing another shameless ``Rose Garden
Jubilee'' after today's vote by the Court of Impeachment. Acquittal is
not exoneration. Nothing we do here today in any way absolves the
President's responsibility for the harm he has inflicted--and the
President must know this.
Indeed, this has been a sordid chapter in the history of the
Presidency, and it deserves to be closed with a stern warning and a
strongly worded rebuke that will leave no doubt to future generations
that this process was not simply much ado about nothing. It was, in
[[Page S1547]]
fact, about something very important--the sanctity of public service.
That's why I worked with Senators Feinstein and Bennett to include
language expressing the will of this Senate that this resolution not be
revoked by a future Congress. I also want to thank them for their
willingness to include language that makes clear the Senate believes
the President should be treated like any other citizen facing criminal
allegations once he leaves office in 23 months.
The fact is, even while this body has acquitted the President on
Articles of Impeachment, the framers provided for an additional remedy
for his conduct in standard criminal court. Why? Because they had known
a country where some men were above the law, and some below. And they
were determined to create a nation where the level of justice served
was not proportional to a person's pocketbook, social rank or political
power.
I believe acquittal, though the proper outcome, by itself could
present a skewed picture of the Senate's findings, and runs the risk
that the President will claim exoneration for his actions. Such a
claim, evidence of which is already apparent, is quite simply and
obviously, wrong.
The President may not have committed high crimes and misdemeanors,
but what he has done--in my mind including unlawfully influencing a
potential witness--deserves a formal rebuke by the Senate. Censure
would be an appropriate and constitutionally permissible way to do
this.
For a President who from the very beginning promised the most ethical
administration any of us would ever see, censure would be a well-
deserved legacy of a promise broken and a Presidency sullied. I will
vote for this censure motion and I urge my colleagues to do likewise.
Mr. KOHL. Mr. Chief Justice, throughout this process my colleagues
from both sides of the aisle have conducted themselves with decency and
dignity, exactly the qualities President Clinton's conduct lacked. But
we risk opening the floodgates to more party-line impeachments if we
oust a President from office for behavior that--while truly
deplorable--isn't truly removable. Lowering the standard would do as
great a disservice to the Constitution as the President's behavior has
done to the Oval Office. So I am voting to acquit on both articles.
I state these conclusions with a certainty I do not feel. We have
heard many say these votes are the most difficult they will ever cast,
and I agree. This case is made up of many small questions, matters of
opinion and fact: Did the President lie? Did he commit perjury? Did he
obstruct justice? Did he weaken the judicial system? Did he undermine
the Constitution? Are these ``high'' crimes? Is this what the Founders
envisioned when they talked about removal of a President?
Most of us have answers for each of these questions. Most of us will
lay them out in well-worded, well-argued statements. But the sum of the
answers is not the sum of this case. The sum of our opinions, our
findings of fact, and our legal briefs cannot sum up the deep disquiet
I feel about the failings, lies, and weakness displayed by the
President. Under the cold body of evidence before us runs the bad blood
of bad character, and that deeply disturbs me.
The evidence does not prove high crimes, but it does prove low
character in our highest office--and that matters, it is relevant, it
is material. This nation is not defined merely by demographics,
boundaries, geological features, and government regulations; it is also
about families and individuals who struggle to be larger, braver, and
stronger than their circumstances. It is a nation that has a history of
putting lives, faith, and hope in causes bigger than any one person:
justice, democracy, freedom. Similarly, the office of the Presidency is
not just a set of protocols, formalities, and policies. It is the human
face we put on our country, and that face ought to be as honest, just,
strong and brave as we all aspire to be--and as our history demands
that we be.
That's why character matters. I cannot find a way to fit my concern
for that spirit into these very formal, legal proceedings, but I also
cannot, in good conscience, let go of my deep concern for the harm and
the loss this President has caused. I will not vote for either article
of impeachment, but I also will not let go of my firm belief that this
President has done real damage to the Office of the Presidency. And I
will not let go of a commitment to do everything I can to restore and
protect the idea that good character is essential in those who ask to
serve and represent this country.
Let me explain in more detail why I am voting against both articles.
First, removing a President is a drastic measure, called for in only
the most extraordinary circumstances. And our Founding Fathers clearly
wanted it to be used sparingly: that's why they limited impeachment to
only ``high crimes and misdemeanors'' involving abuse of power,
incapacity to hold office, or a serious threat to our Constitution or
system of government.
But the President's conduct, however reprehensible, related to purely
personal matters. He lied to the American people. He lied to his
family, his friends and his staff. He lied under oath and evidence
suggests that he may have obstructed justice. Simply put, his conduct
was disgraceful and, possibly, illegal.
However, his actions did not relate to abuse of power. They had
nothing to do with his official acts or his capacity to hold office.
They did not threaten our Constitution or system of government. Though
serious offenses to our American values and decency, they do not rise
to the level of constitutional ``high" crimes.
Some of my colleagues have a different view, and I respect their
position. But even the House prosecutors respect mine. In response to
one of my questions, House Manager Graham acknowledged that
``reasonable people can disagree'' about whether the President should
be removed. In fact, he went on to say:
``[I]f I was sitting where you're at, I would probably get down on my
knees before I made that decision, because the impact on society is
going to be real either way. And if you find the President guilty in
your mind from the facts, that's he a perjurer and he obstructed
justice, you've got to somehow reconcile continued service in light of
that event. And I think it's important for this body not to have a
disposition plan that doesn't take in consideration the good of this
nation. . . . [Y]ou've got to consider what's best for this nation.''
Representative Graham deserves credit for putting candor above
partisanship, and inviting us to decide ``what's best for this
nation.'' To do that, it makes sense to consider the views of the
American people. Most of them know what this case is about and most of
them oppose this impeachment. Nothing we've heard clearly justifies
rejecting the overwhelming weight of their opinion and removing a
twice-elected President.
Indeed, if ``reasonable people can disagree,'' as the House
prosecutors concede, have we really met the high threshold established
for removal?
To ask that question is to answer it.
It is true, of course, that we have removed judges for lying under
oath; for example, ten years ago the Senate removed Judge Nixon on that
basis. But impeaching the President, our highest elected official, is
far different. Judge Nixon was appointed. He held office during ``good
Behaviour.'' At the time of his Senate trial, he was already convicted
and sitting in jail. He lied about bribery, not sex. And most
importantly, the only way a judge can be removed is by impeachment. A
President, on the other hand, can be removed every four years through
an election, and is automatically removed after eight years by the 22nd
Amendment.
Second, in addition to the constitutional problems, the prosecution
has not proved its allegations by clear and convincing evidence. This
is especially true on the ``obstruction of justice'' charge, which is
by far the more serious allegation. The House Managers argue that more
witnesses would have made a difference in bolstering their case, and
they may be right. But why then did the House choose not to call
witnesses in its own proceedings, even though it had called ``fact''
witnesses in nearly every other impeachment?
Third, as many of us told the House in the Judge Nixon impeachment
trial, lumping together a series of charges in each article--at least
four perjury charges and seven obstruction of justice charges here--
isn't fair or responsible. Alarmingly, the President could be found
guilty without a two-thirds
[[Page S1548]]
majority believing any single charge. For example, in theory, even if
each obstruction charge were rejected by a 90 to 10 margin, the
President could be convicted--because ten different Senators convicting
on each of seven separate charges adds up to 70--more than a two-thirds
majority.
Mr. Chief Justice, this kind of ``one from column A and two from
column B'' approach may work for a Chinese restaurant, but not for
removing a President--or a judge. And this lack of specificity
shortchanges the American people, who may never understand which
charges were believed and which ones weren't.
Still, President Clinton is not ``above the law.'' His conduct should
not be excused, nor will it. The President can be criminally
prosecuted, especially once he leaves office. In other words, his acts
may not be ``removable'' wrongs, but they could be ``convictable''
crimes. Moreover, the House vote of impeachment--and the President's
misconduct with Monica Lewinsky--will forever scar this President's
legacy. Finally, the Senate can and should censure the President, and
we ought make our condemnation of his conduct as strong as possible.
In sum, Mr. Chief Justice, President Clinton's conduct was wrong,
reckless and indefensible. Under the Constitution it does not justify
removal. But for those who love this country, it demands outrage and
disappointment. It demands a commitment from this President and future
Presidents, this Congress and future Congresses--not now, and not ever
again, to let personal weakness and personal failing stain or shake our
democracy. Thank you.
facts
Mr. THOMPSON. In 1994, Paula Corbin Jones sued President Clinton for
sexual harassment which she alleged he committed against her in 1991,
when he was Governor of Arkansas. The Supreme Court of the United
States permitted the lawsuit to proceed in 1997.
Monica Lewinsky began work as a White House intern on July 10, 1995.
At the time, she was twenty-one years old. She later worked in the
Office of Legislative Affairs at the White House. In 1996, she left the
White House for a job at the Department of Defense.
The first day that Ms. Lewinsky spoke with President Clinton,
November 15, 1995, she and the President engaged in sexual relations.
Their sexual relationship lasted until 1997. The two also engaged in
telephone sex at least seventeen times, and they exchanged numerous
gifts. The two agreed to keep their relationship secret through the use
of cover stories. Ms. Lewinsky, if discovered in the Oval Office, was
to say that she was delivering papers, although her job duties never
included delivering papers. Once she left the White House, her visits
to the President were disguised as visits to Presidential secretary
Betty Currie.
The President told Ms. Lewinsky that she could return to the White
House after the 1996 election had concluded. Although Ms. Lewinsky
tried numerous times to regain employment at the White House, she was
never able to do so. After being informed by a friend, Linda Tripp,
that she would never be permitted to return to the White House, Ms.
Lewinsky decided to seek employment in New York, initially receiving
and rejecting a job offer with the United States Ambassador to the
United Nations. She then decided to seek employment in New York in the
private sector. On November 5, 1997, she met with Vernon Jordan, a
prominent Washington lawyer and friend of President Clinton, to seek
his assistance in securing such a position. This meeting was arranged
by Ms. Currie. Mr. Jordan took no action to help her in November, and
does not remember meeting her at this time.
On December 5, 1997, attorneys for Ms. Jones notified the President's
attorneys of their list of witnesses. That list included Ms. Lewinsky.
Although she was unaware at the time that her name was on the Jones
litigation witness list, Lewinsky coincidentally decided to terminate
her relationship with the President the following day, but was unable
to see him at the White House. President Clinton and Ms. Lewinsky
initially exchanged angry words that day over the telephone, but later
that day, she came to the White House at his invitation. During this
meeting, Ms. Lewinsky told the President that Mr. Jordan had not
appeared to have done anything to help her in her job search. In a
conversation Ms. Lewinsky described as ``sweet'' and ``very
affectionate,'' he told her that he would speak to Mr. Jordan about her
job situation. The President did not at that time inform Ms. Lewinsky
that her name was on the witness list.
Ms. Currie again called Mr. Jordan, and on December 8, 1997, Ms.
Lewinsky called to set another appointment with Mr. Jordan for December
11. Although Ms. Lewinsky provided Mr. Jordan with a list of
corporations in which she was interested in obtaining employment, Mr.
Jordan determined based on his own contacts which companies he would
pursue on Ms. Lewinsky's behalf. Following his meeting with Ms.
Lewinsky, acting by his own admission at the behest of the President,
Jordan called three corporate executives in New York. He also called
the President to report on his efforts on behalf of Ms. Lewinsky.
December 11, 1997 was also the date on which Judge Susan Webber
Wright, the presiding judge in the Jones litigation, issued an order
permitting Jones' attorneys to pursue discovery concerning the names of
any state or federal employees with whom the President had had sexual
relations, proposed sexual relations, or sought to have sexual
relations.
On December 17, 1997, between 2:00 and 2:30 a.m., the President
telephoned Ms. Lewinsky. He informed her that Ms. Currie's brother had
been killed, as well as that her name was on the Jones witness list.
The President indicated that if Ms. Lewinsky were subpoenaed, she
should let Ms. Currie know. He also told her that she might be able to
sign an affidavit in that event to avoid testifying. In addition, he
suggested that she could say that she was coming to see Betty or was
bringing him papers. Ms. Lewinsky says that she understood implicitly
that she was to continue to deny their relationship.
Ms. Lewinsky was subpoenaed to testify in the Jones litigation on
December 19, 1997. The subpoena also required Ms. Lewinsky to produce
all gifts that she had received from the President, and enumerated one
specific gift that the President had given Ms. Lewinsky, a hatpin.
Because Ms. Currie was in mourning, Lewinsky called Jordan, who invited
her to his office. She was in a highly emotional state, and that fact,
combined with her statements in the conversation that demonstrated her
personal fascination with the President, prompted Jordan to ask whether
she, a person for whom he was providing job assistance, had had sexual
relations with the President. He says she denied such relations. Jordan
took a telephone call from the President during that meeting, and made
plans to see him that night. Jordan later called Frank Carter, a
Washington lawyer, to arrange a meeting at which he would refer Ms.
Lewinsky to Mr. Carter as a client.
Notwithstanding Ms. Lewinsky's denial of sexual relations with the
President, Jordan asked President Clinton that same evening the same
question. The President also denied having had sexual relations with
Ms. Lewinsky. Jordan also conveyed a number of Lewinsky's statements to
the President, and informed Clinton that Lewinsky had received a
subpoena to testify in the Jones case. Following a discussion in which
Lewinsky informed Jordan of the nature of the telephone calls she had
had with the President, Jordan drove Lewinsky to a meeting at Mr.
Carter's office on December 22.
The President met with Ms. Lewinsky on December 28, 1997, at which
time they again exchanged gifts. They discussed the subpoena, and she
expressed concern, which the President shared, about the specific
enumeration of the hatpin, since that suggested that someone knew
details of their relationship. Ms. Lewinsky then suggested taking the
gifts out of her apartment or giving them to Ms. Currie. The President
responded, ``I don't know'' or ``Let me think about that.'' Later that
same day, Ms. Lewinsky's consistent recollection is that Ms. Currie
called her and stated, ``I understand you have something to give me''
or ``the President said you have something to give me.'' Ms. Currie
later drove to Ms. Lewinsky's apartment, picked up a box containing
gifts the President had given Ms. Lewinsky, and hid that box under her
bed without asking any questions.
[[Page S1549]]
On December 31, 1997, Jordan and Lewinsky had breakfast. Lewinsky,
fearing that her relationship with the President would become known and
wanting to ensure that she not appear responsible for its becoming
known, told Jordan that she possessed notes she had addressed to the
President that suggested the nature of their relationship. According to
Lewinsky, Jordan told her to dispose of those notes. Jordan initially
denied that he ever had breakfast with Lewinsky, but later recalled
having done so when shown the receipt. But he denied ever telling
Lewinsky to destroy any notes.
Ms. Lewinsky pursued filing an affidavit to obviate the need for her
to testify in the Jones case. On January 6, 1998, she communicated to
Mr. Jordan concerns she had about the affidavit that Mr. Carter had
drafted for her. Jordan telephoned Carter with her suggestions.
Although Mr. Jordan denies the allegations, Ms. Lewinsky contends that
she informed Jordan about the details of Carter's proposed affidavit,
and that she and Jordan made changes to it prior to her signing it.
Lewinsky also spoke with the President about Carter's questions to her
about how she obtained her Pentagon job. The President told her that
she ``could always say that the people in Legislative Affairs got it
for you or helped you get it.''
On January 7, 1998, Lewinsky signed an affidavit denying sexual
relations with the President. She later testified that the affidavit
was false. She showed Jordan the affidavit, and Jordan spoke with the
President after conferring with Ms. Lewinsky about the changes.
Lewinsky testified that she believed that the President would be
satisfied with any affidavit that Jordan approved.
The following day, Lewinsky was interviewed at a company that Jordan
had called on her behalf. Believing that the interview had proceeded
poorly, she called Jordan, who then called the head of the holding
company of the firm with which she had interviewed. Jordan asked that a
second interview be granted Lewinsky. She interviewed again the next
day, and was made an informal job offer. Jordan testified that his
``magic'' was responsible for that offer. Lewinsky informed Jordan of
her success, and he telephoned Ms. Currie to notify her: ``Mission
accomplished.'' He later informed the President.
The President was scheduled to be deposed in the Jones litigation on
January 17, 1998. The President knew that one of the issues was his
relationship with Ms. Lewinsky. For the affidavit to successfully
deflect questions to the President concerning that relationship, the
affidavit would have had to have been filed in time for the court to
consider it and for the President's lawyers to see it before the
deposition. The President's lawyers called Ms. Lewinsky's attorney once
on January 14, twice on January 15, and once on January 16. On the
15th, Lewinsky's lawyer, Mr. Carter, sent President Clinton's counsel a
copy of the affidavit. Mr. Carter also called the court twice on that
day to ensure that the affidavit could be filed on January 17.
During his deposition, President Clinton made numerous false
statements while under oath. These included the sexual nature of his
relationship with Ms. Lewinsky, and whether they had exchanged gifts.
He relied on the same cover stories as he had discussed with Ms.
Lewinsky. The President's lawyer used Ms. Lewinsky's affidavit in an
attempt to deflect questions about the President's relationship with
her, specifically stating that the President had already seen that
affidavit. As the President appeared to be paying close attention, he
did not contradict his attorney when he represented to the court that
``there is absolutely no sex of any kind in any manner, shape or form
with President Clinton. . . .'' And he testified, when asked by his
attorney, that Ms. Lewinsky's affidavit was absolutely true. However,
the judge insisted that President Clinton answer additional questions
about his relationship with Ms. Lewinsky. These questions were asked
based on the judge's peculiar ruling that used only one-third of a
standard courtroom definition of ``sexual relations'' and the
plaintiff's attorneys' insistence in using that truncated definition as
a reference for questions they posed to the President about the nature
of his relationship with Ms. Lewinsky, rather than asking specific
questions concerning what had occurred. In six instances, the President
answered questions by referencing Betty Currie, such as in using the
cover story that Ms. Lewinsky had come to the White House to visit Ms.
Currie, and on one occasion, expressly stated that his questioners
should ``ask Betty.'' Indeed, Ms. Jones' attorneys later placed Ms.
Currie's name on their witness list.
After the deposition, at 7 p.m. that evening, the President called
his secretary, Betty Currie, at home. She later testified that she
could not remember the President ever calling her at home so late on a
Saturday. In that conversation, he asked Ms. Currie to see him in the
Oval Office the following day, a Sunday. This was also an unusual
occurrence. While in the Oval Office, and contrary to the admonition
from the Jones case judge not to discuss his deposition testimony with
anyone, the President made the following statements to Ms. Currie: (1)
``I was never really alone with Monica, right?'' (2) ``You were always
there when Monica was there, right?'' (3) ``Monica came on to me, and I
never touched her, right?'' (4) ``You could see and hear everything,
right?'' (5) ``She wanted to have sex with me, and I could not do
that.''
Once the President met with Ms. Currie on January 18, Ms. Currie
began to seek Ms. Lewinsky. She paged Ms. Lewinsky four times that
night. Later than 11:00 p.m. that evening, the President called Ms.
Currie at home to determine if she had yet reached Ms. Lewinsky. She
had not. In a period of less than two hours on the morning of the 19th,
Ms. Currie paged Ms. Lewinsky an additional eight times. The President
then called Mr. Jordan, who called the White House three times, paged
Ms. Lewinsky, and called Mr. Carter, all within twenty-four minutes of
receiving the President's call. Mr. Jordan called Mr. Carter again that
afternoon and learned that Mr. Carter had been replaced as Ms.
Lewinsky's attorney. Mr. Jordan then called the White House six times
in the next twenty-four minutes trying to relay this information. Mr.
Jordan called Mr. Carter again, and then called the White House again.
On January 20, the White House learned that a story about the
President's relationship with Ms. Lewinsky would appear in the next
day's edition of The Washington Post. On January 21, the President told
his chief of staff and two deputies that he did not have sexual
relations with Ms. Lewinsky. He later told one of those deputies, John
Podesta, that he had not had oral sex with Ms. Lewinsky.
Later on January 21, the President told his aide, Sidney Blumenthal,
that Lewinsky had made a sexual demand on him, and that he rebuffed
her. The President told Blumenthal that Lewinsky had threatened him.
President Clinton also indicated that Lewinsky said that she was known
among her peers as the stalker, that she hated it, and that she would
say that she had an affair with the President whether it was true or
not, so that she would not be known as the stalker any more. He also
told Blumenthal that he felt like a victim who could not get out the
truth. Blumenthal later testified that he believes the President lied
to him. The President testified that he was aware at the time that he
made his statements that his aides might be summoned before the grand
jury.
The President also met with his political consultant, Dick Morris, on
January 21. The President authorized that Morris conduct an overnight
poll measuring potential public reaction to the affair. The poll
concluded that the American people would forgive the President for
adultery, but not for perjury or obstruction of justice. The President
then indicated that ``we just have to win, then.'' The President's
lawyers could not answer senators' questions why such a poll had been
undertaken if the President had not committed any of these acts.
Shortly after the President met with Mr. Blumenthal, press reports
began to appear that, quoting White House sources, characterized Ms.
Lewinsky as a stalker, and as an ``untrustworthy climber obsessed with
the President.'' Although Mr. Blumenthal in his Senate deposition
denied any knowledge of how White House sources were attributed to
these stories, one journalist by
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the time of this writing has sworn to an affidavit stating that Mr.
Blumenthal made such characterizations to him. A second similar
affidavit has also been filed, corroborating the first one.
Ultimately, Ms. Lewinsky was granted immunity from prosecution by the
independent counsel. The independent counsel received from Ms. Lewinsky
a dress that according to DNA testing was stained by the President's
semen.
On August 17, 1998, the President testified before the grand jury
convened by the independent counsel. In a prepared statement, the
President made a number of false statements. He stated that he engaged
in inappropriate conduct with Ms. Lewinsky in 1996 and 1997, whereas
the conduct actually began in 1995, when she was an intern. Based on
Ms. Lewinsky's testimony and the dress, he appears to have testified
untruthfully about whether he engaged in sexual relations even as that
term had been defined at his deposition in the Jones case. And he also
testified that he was not paying attention to his attorney when the
attorney described the affidavit; that his relationship with Ms.
Lewinsky had originally begun as a ``friendship;'' that he made the
statements to Ms. Currie after his deposition in an effort to refresh
his recollection; and that he told his aides statements that were true
about his relationship with Ms. Lewinsky. Nonetheless, when testifying
before the grand jury, the President no longer made a number of the
assertions that he had made in the deposition, including denying that
he was ever alone with Ms. Lewinsky. With respect to his deposition
testimony, the President told the grand jury that his ``goal in this
deposition was to be truthful, but not particularly helpful . . . I was
determined to walk through the mine field of this deposition without
violating the law, and I believe I did.''
The Independent Counsel filed a report with the House of
Representatives that referred allegations of possible impeachable
offenses. The House of Representatives voted to pass two articles of
impeachment against President Clinton, for perjury before the grand
jury and for obstruction of justice. Two other articles of impeachment,
which had been based on perjury in his deposition in the Jones case and
misstatements to the House in response to questions propounded to the
President by the House of Representatives, failed to pass the House.
``HIGH CRIMES AND MISDEMEANORS''
The most fundamental question, against which the President's actions
must be measured, is ``what constitutes an impeachable offense?'' The
Constitution makes impeachable ``treason, bribery and other high crimes
or misdemeanors.'' The Constitution also says that upon conviction in
the Senate the President ``shall be removed.'' Therefore, the questions
becomes, in effect, ``what actions constitute grounds for removal?''
It should be noted at the outset that what we have in effect is a
``mandatory sentence'' wherein if there is a finding of guilt then one
particular sentence must be imposed--in this case removal from office.
However, unlike judges in a criminal case, the Senate may take into
consideration the ``punishment'' in determining guilt. Some have
contended that the President may be guilty of high crimes and
misdemeanors, but his actions may not be sufficient for removal. I
believe the better analysis is that the Senate may conclude that the
President's conduct is not sufficient for removal and that that
determination, by definition, means that the President is not guilty of
high crimes and misdemeanors. I believe that this analysis is important
in understanding the scope of our discretion and helps us get away from
the notion that there is an objective standard for high crimes and
misdemeanors if we could only find it. Historical analysis covering
over six hundred years reveals that there is no ``secret list'' of high
crimes and misdemeanors, but rather our forefathers perpetuated a
framework that allows for a certain amount of subjectivity which may
encompass changing times and differing circumstances.
Such a conclusion emerges from an examination of English law,
original state Constitutions, our federal Constitutional Convention,
the ratification debates, American impeachment precedents and scholarly
commentary.
The phrase ``high crimes and misdemeanors'' can be traced back to the
thirteen hundreds in England. It was clear from the outset that the
phrase covered serious misconduct in office whether or not the conduct
constituted a crime. Commentators say that the English impeachment
tradition covered political crimes against the state and injuries to
the state. Beyond that, it is difficult to glean covered conduct from
the English tradition.
Apparently there was only one discussion during the Constitutional
Convention that dealt with the phrase high crimes and misdemeanors and
that occurred on September 8, 1787. As reported out of Committee,
impeachable offenses included only ``treason and bribery.'' Mason
wanted to add ``maladministration,'' which was also contained in many
state constitutions. Madison was under the impression that such
language would leave the President at the mercy of the Senate. Madison
relented and we wound up with the phrase as we have it today. The
founding fathers quite clearly rejected impeachment for Congressional
disapproval of policy. Impeachable offenses were ``political'' offenses
and, as under English law, not necessarily criminal. Other guidance
that can be derived from the Convention is the fact that the founders
were acutely aware of their rejection of bills of attainder as existed
in the English system and, therefore, they thought that impeachable
offenses should be something that any reasonable man could anticipate.
He should not be punished for some crime made up after the fact. Also,
there was to be a requirement for ``substantiality.'' This mechanism
was not designed for trivial offenses.
We cannot determine the precise intent of the framers because their
deliberations were in secret and nothing was printed from their
deliberations. They intended for the ratifiers at the state Conventions
to be the more authoritative voice for interpretation of the provisions
in the Constitution. It is fair to conclude that the attitude of the
ratifiers was reflected to a certain extent in the Federalist papers.
The most definitive comments concerning impeachment were by Hamilton in
Federalist 65 wherein he stated:
The subjects of [impeachment] are those offenses which
proceed from the misconduct of public men, or, in other
words, from the abuse or violation of some public trust. They
are of a nature which may be with peculiar propriety
denominated political, as they relate chiefly to injuries
done immediately to the society itself.
The ratifiers at the North Carolina convention spoke in terms of
serious injuries to the Federal government. James Iredell, later to
become an Associate Justice on the Supreme Court, stated that
impeachment was ``calculated to bring [great offenders] to punishment
for crimes which it is not easy to describe but which everyone must be
convinced as a high crime and misdemeanor against governments . . . the
occasion for its exercise will arise from acts of great injury to the
community.'' He gave as an example of an impeachable offense the giving
of false information to the Senate. Impeachment was not for ``want of
judgment'' but rather to hold him responsible for ``willfully abusing
his trust.'' Iredell also called attention to the complexity if
not impossibility of defining the scope of impeachable offenses with
any more precision than the above. And the ratifiers at the Virginia
Convention clearly agreed that a President could be impeached for non-
indictable offense.
There was continued discussion and debate after ratification
concerning the impeachment process. James Madison contended that the
wanton removal of meritorious officers would subject a President to
impeachment and removal from office. Forty years later, Justice Story,
in his Commentaries insisted that ``not every offence'' is a high crime
and misdemeanor, that ``many offences, purely political . . . have been
held to be within the reach of parliamentary impeachments, not one of
which is in the slightest manner alluded to in our statute book,'' that
``the only safe guide'' in determining ``high crimes and misdemeanors''
``must be the common law,'' and left open the possibility that actions
a civil officer took that were unconnected to his office might be
properly the subject of impeachment.
Therefore, it seems that despite the framers' and ratifiers'
incomplete discussion, our inability to put our hands
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on documentation reflecting some of their thoughts, and the fact that
perhaps they simply did not think of some of the problems that might
arise in the future, we see a certain framework develop--certain
perimeters within which our decision should be made.
The Senate's own precedents do not change this evaluation because
they are not terribly instructive either. In impeachment cases, the
Senate has convicted on seven occasions, acquitted on five, dismissed
two cases on jurisdictional grounds and one case was withdrawn because
of resignation. An acquittal serves very little value as precedent
beyond the facts of the case since an acquittal can be based on any
number of grounds (jurisdictional, failure to prove the factual
allegations, offenses not rising to the level of impeachable conduct,
etc.) and the motivation for the vote is not reflected when the verdict
is rendered ``not guilty.'' There is little more help derived from
convictions, in terms of precedential value. There has only been one
impeachment trial for a President, that of Andrew Johnson, and that, of
course, resulted in an acquittal. A large majority of the remainder of
the cases have been those of federal judges.
The question has arisen whether judicial impeachments are to be
considered by the same standards as presidential impeachments. It seems
to me that certainly the application of the standard of ``high crimes
and misdemeanors'' for a president must differ from that of a judge.
Removing the President removes the elected head of the nation. Removing
a single judge does not carry the same implications for the country.
And while a President should act according to the highest standards of
probity, it is quite easy to imagine circumstances that would warrant
judicial impeachment that would not justify presidential impeachment,
such as making official decisions based purely on political
considerations. It is also possible that certain crimes would be
impeachable if a judge committed them, because of the specific nature
of the judicial office in our system of government, but would not be
impeachable for a President.
It has been argued that the standard should be different for
presidents than judges because the former serves for a fixed term and
the latter serve ``during good behavior.'' I do not share that view.
The standard itself is the same for each category: treason, bribery,
and other high crimes and misdemeanors. But the difference in tenure is
relevant in a way. Because impeachment is not punishment and is
political, the Framers vested the process in the legislative branch.
Prosecution for crimes was lodged in the judiciary. Thus, a President,
who cannot be prosecuted while in office, can be impeached and removed
from office before he faces criminal prosecution. While a judge can
also be impeached and removed before being convicted of a crime, it is
also the case that criminal punishment can be, and has been, imposed on
sitting judges. But since courts were expressly not given the power to
remove civil officers, federal judges who have been criminally
convicted and have refused to resign have continued to draw their
salary ``during good behavior,'' i.e., until they were impeached. That
is the only significance with respect to impeachment of judges and of
presidents based on their differing terms of service.
Scholars have looked to the purposes to be served by the impeachment
process as well as history in making their own analysis as to the
meaning ``high crimes and misdemeanors.'' For Charles Black they would
include offenses (1) which are extremely serious, (2) which in some way
corrupt or subvert the political and governmental process, and (3)
which are plainly wrong in themselves to a person of honor or to a good
citizen regardless of words on the statute books.
Also qualifying according to Professor Black would be ``serious
offense against the nation or its governmental or political
processes.'' Furthermore, he would include purely personal actions that
would make a President unviable as a national leader. Murder, of
course, would be the prime example here. He would also include a
totally different category of offenses which seriously threaten the
order of political society as to make dangerous the continuation in
power of the President. Finally, he would include actions that would
``undermine government and confidence in government'' such as serious
tax fraud.
Professor Michael J. Gerhardt on the issue of purely personal conduct
of the President states: ``Even if such a crime were unrelated to the
President's Constitutional duties, his criminal act considerably
cheapens the Presidency, destroys his credibility with the other
branches (and other nations, for that matter), and shows such lack of
respect for human life and disdain for the law (which he has sworn to
enforce faithfully) that Congress could reasonably conclude that he had
seriously breached his trust and no longer deserves to hold office.''
Again, murder was the easy example.
However, he contends further that an official may be impeached for
conduct in office that does not relate to his or her former
responsibilities if an office holder violates his public trust and
loses the confidence of the people. Then he must forfeit the privilege
of holding at least his or her present office. ``In this context,
conduct that may plainly be unrelated to the responsibilities of a
particular office may still relate to an official's capacity to fulfill
the functions of that office and to hold the people's trust.'' He gives
the example of income tax fraud.
Gerhardt points out that not all statutory crimes demonstrate
unfitness for office, but that on the other hand, there are some
indictable offenses for which certain high level government officials
may be impeached. Among them are offenses which ``demonstrate serious
lack of judgment or disdain for the law and the commission lowers
respect for the office.'' In other words, there are certain statutory
crimes, that, if committed by public officials, reflect, in Congress'
estimation such lapses of judgment, breaches of the public trust and
disregard for the public welfare, the law, and the integrity or
reputation of the office held, that the occupant may be impeached.
What I derive from this, is that there is no ``holy grail'' of
impeachable offenses. The framers provided the Senate with a framework
within which to operate and history provides us with a map, but not a
destination. Our conclusions must depend upon the particular
circumstances of the case, the nature of the act or acts involved, and
their effects on society or integral parts of our political structure.
Today we are faced with an unprecedented situation. The President
engaged in inappropriate personal conduct. It had nothing to do with
his official duties, but it did involve a federal employee under his
supervision, government time and government facilities. In an attempt
to conceal and cover up that activity, he lied, misled and helped
conceal evidence both physical and testimonial in a court proceeding.
In doing so he elicited the help of other government employees.
Therefore, the subject matter was essentially private, but the forum, a
United States court, became public. One side says that he ``only lied
about sex,'' and it had nothing to do with his official duties,
therefore, it ``clearly does not rise to the level of an impeachable
offense.'' The other side says that any perjury and any obstruction of
justice ``clearly does rise to the level of an impeachable offense.'' I
do not think that either position is consistent with history or proper
analysis.
For example, I agree with Professor Black that not every imaginable
act that might technically constitute obstruction of justice would
necessarily be impeachable.
On the other hand, opponents of conviction in the present case, have
raised the bar for impeachment to unreasonable heights. Usually they
concede that an impeachable offense does not have to be a crime, but
often it is maintained that the abuse of power has to come from his
public position such as Nixon's abuse of the CIA or FBI. Of course,
this immediately runs headlong into the murder hypothetical and many
other hypotheticals of serious, although totally personal, conduct as
well.
They then make the further argument that the violation has to be ``an
offense against the state.'' While I agree that an offense against the
state is one of the categories of offenses that impeachment was
primarily designed to cover, offenses against the state's governmental
and political processes, including the court system, as well as
[[Page S1552]]
attempts to subvert them, are also impeachable. Besides, it would seem
to me, that subversion or serious damage to our governmental
institutions constitute offenses against the state.
They also point out that one of the purposes of impeachment is to
protect the nation from the offender President. I agree again that this
may be one of the purposes of impeachment. However, it is not the only
purpose, and protection of the public is not always a requirement. If
an offense has been laid bare and totally exposed, and the President is
completely incapable of continuing his conduct, this lack of imminent
threat to the nation does not necessarily mean that he should not and
cannot be impeached. President Nixon probably would not have been
forced from office if that were the only criteria.
Opponents of conviction also overlook the fact that we may look to
the effects of the President's conduct. Actions, even private actions,
that serve to undermine the government or the people's confidence in
the government or the President, may also be impeachable. In other
words, opponents of impeachment rightly point out some of the
categories that are applicable in impeachment cases, but they set them
forth as exclusive when, in fact, they are not.
The impeachment bar has been raised even higher most recently by
respected commentators in the media. The New York Times editorial page,
for example, takes a position that the President's action must
``threaten the welfare or stability of the state.'' On another
occasion, they stated that the President's actions must ``show some
fundamental harm to the security interest or stability of the state or
some attempt to undermine the Constitution.'' The problem with this is
that there is absolutely no authority to support such a contention.
Such a theory relies exclusively upon the ``protect the nation'' theory
of impeachment. The founders certainly did not mean that the President
had to be on the verge of throwing the nation into chaos or endangering
national security in order to be impeached.
It is extremely important that we refrain from latching onto a
definition of ``high crimes and misdemeanors'' simply because it leads
us inexorably to a conclusion which we may desire. Clearly, a
President's offense or offenses must be serious and/or have serious
consequences. Also, while they do not have to be crimes, my own opinion
is that in most cases they will be crimes. They must be crimes against
the state, but we cannot adopt an unreasonable restriction of that
term. The President does not have to order tanks to move on the J.
Edgar Hoover building. Offenses against the state can include activity
which will undermine our governmental institutions. How can we say that
bribing a judge to effect an outcome in a law suit involving a
President's purely personal conduct constitutes an impeachable offense,
but say that insinuating perjury into that same law suit to effect the
same outcome is clearly not impeachable? And while it is true that the
founders meant to cover ``public'' behavior, I believe they also meant
to cover behavior that has a negative effect on the public if it is of
sufficient gravity. Furthermore, if the President's conduct poses a
threat and danger to a country, that certainly is a legitimate (though
not exclusive) consideration. If that same conduct serves to undermine
the President's credibility and moral authority, that could also pose a
danger to the country and is similarly a legitimate consideration. And,
again his conduct does not necessarily have to deal with his office. In
the Constitution, a named offense is bribery (treason, bribery or other
high crimes and misdemeanors), and bribery itself does not necessarily
have to do with the President's official capacity, if the President is
making the bribe.
I believe that the founders did not intend to make our job easy. They
provided no list of offenses. They refused to spare us from the
difficult analysis that we must now go through. We must take into
consideration the offense or offenses, the capacity in which they were
committed, the effect on our public institutions, the effect on our
people and our people's attitude toward the Presidency and our other
institutions, whether the President's conduct was one or more isolated
events, or a pattern of conduct, the period of time over which the
conduct was carried out and ultimately decide whether in view of all of
these circumstances, it is in the best interest of the country to
remove this President.
The significance of a ``pattern of conduct'' is recognized by John R.
Labovitz in his book Presidential Impeachment. Labovitz concluded that
focusing on whether the President has committed ``an impeachable
offense'' is of limited usefulness, since few individual crimes warrant
removal, such as a single act of treason or a single act of bribery.
Even in the case of President Nixon, ``[i]t was necessary to combine
distinct actions into a pattern or course of conduct to establish
grounds for removal from office.'' As he also wrote:
The concept of an impeachable offense guts an impeachment
case of the very factors--repetition, pattern, coherence--
that tend to establish the requisite degree of seriousness
warranting the removal of a president from office. Just as a
recidivist deserves a more stringent sentence than a first
offender, so presumably a repeated offender is more likely to
deserve removal from an office of public trust, and
especially the highest trust in the land. . .. [I]t is
necessary to take a less divided view of the charges. Because
the remedy is not additive, the offenses must be considered
cumulatively in deciding whether or not it should be imposed.
The House must decide whether or not to prosecute an
impeachment on the basis of the charges taken as a whole.
And, unless the Senate is to take the determination of the
House without question, it too must judge the combined
seriousness of the wrongdoing that is proved.
I believe that this statement is very relevant to the obstruction of
justice charge, which I will discuss later.
ARTICLE I--GRAND JURY PERJURY
Article I, after alleging generally that President Clinton violated
his oath of office and failed to take care that the laws be faithfully
executed by manipulating the judicial process for his personal gain,
alleges that on August 17, 1998, following taking an oath to tell the
truth, he
willfully provided perjurious, false, and misleading
testimony to the grand jury concerning one or more of the
following: (1) the nature and details of his relationship
with a subordinate Government employee; (2) prior perjurious,
false, and misleading testimony that he gave in a Federal
civil rights action brought against him; (3) prior false and
misleading statements he allowed his attorney to make to a
Federal judge in that civil rights action and (4) his corrupt
efforts to influence the testimony of witnesses and to impede
the discovery of evidence in that civil rights action.
In doing this, William Jefferson Clinton 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 of the rule of law and justice,
to the manifest injury of the people of the United States.
Wherefore, William Jefferson Clinton, by such conduct,
warrants impeachment and trial, and removal from office and
disqualification to hold and enjoy any office of honor,
trust, or profit under the United States.''
Never has the Senate convicted on an article worded such as this.
Several crimes or categories of crimes (the exact number cannot be
determined from reading the article) are charged in this one article.
The perjurious statements are not described, nor are their dates.
In large part, this article charges that the President committed
perjury because he denied prior perjury.
At the outset, it is clear that a count such as this in an indictment
would not survive court challenge. However, it is equally clear that
the Senate is not bound to follow normal legal rules. Impeachment,
Hamilton wrote in Federalist No. 65, ``can never be tied down by such
strict rules, either in the delineation of the offense by the
prosecutors or in the construction of it by the judges, as in common
cases serve to limit discretion of courts in favor of personal
security.'' Nevertheless, we should examine the basis for such rules
and determine the extent, if any, we should apply them to our
deliberations.
The reason for rules against charging several offenses in one article
is clear. A group of senators as few as seventeen could conclude that
the President was guilty of one offense in the article, and a group of
other senators could conclude that the President was guilty of another
offense in the article and so on. This could result in the President
being found guilty on one article without two-thirds of the senators
ever agreeing upon a single offense that the President committed.
Compounding this problem, the individual items alleged in the article
are
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vague because they could reach different instances of objectionable
conduct within a general heading. The problem with failing to
specifically identify the offenses charged is that it does not give the
person charged fair notice. Although I believe that the president had
actual notice for the most part, what is actually being charged in this
article has not been without dispute.
The articles pending against President Clinton are unique. Never has
the Senate considered articles that are simultaneously omnibus, vague,
and based upon ``one or more'' of the charges being proved.
Again, we have substantial leeway in considering these matters, but
we must be fair. We are creating precedent, and this is not good
practice. The rule of law must apply to the President when it inures to
his benefit just as when it inures to his detriment.
The House relies on Rule XXIII of the Senate's impeachment rules as
granting this body's tacit approval for the drafting of impeachment
articles in the form of those from President Nixon's impeachment
proceedings. The House also argues that its committee report provided
adequate notice of charges, occupying 20 pages just to list ``the most
glaring instances of the president's perjurious, false, and misleading
testimony before a federal grand jury and requir[ing] 13 pages just to
list the most glaring incidents in the president's course of conduct
designed to prevent, obstruct, and impede the administration of
justice.'' But this argument underlines the problem. These allegations
were not made in the articles themselves, and even now, can it truly be
said that these were the entirety of the charges that could have been
raised at trial, or even in a later impeachment?
Articles of impeachment henceforth should not permit conviction based
upon ``one or more'' findings of guilt. They should list specific
conduct, preferably in separate articles. Removal of elected or
appointed government officials, especially a president, should occur
only when the public can be sure that the process has been appropriate.
Articles such as those before the Senate in this case do not further
that goal. The Senate should amend Rule XXIII to permit impeachment
articles to be divided, so as to eliminate any incentive for the House
to adopt duplicitous articles of impeachment.
In prior impeachments charging false statements, the House has always
delineated the date and substance of the false statement. Indeed, in
every impeachment proceeding since Judge Pickering in 1803, articles of
impeachment exhibited by the House have included allegations of
specific misconduct. Although the Senate has at times voted in favor of
articles containing multiple or cumulative allegations, it has only
done so where specific allegations were made in other separate articles
and where the omnibus article was written in the conjunctive. Never has
the Senate voted for conviction on an article that charged an
individual with ``one or more'' improper actions.
Unfortunately, instead of following precedent, the House in the case
before us deviated from previous practice. In prior cases, the House
avoided lumping together several amorphous charges into one article,
with conviction permitted if ``one or more `` alleged offenses had been
proved--in all cases but one: Richard Nixon. Here, the House explicitly
followed the Watergate example, probably thinking that they would be on
safe ground. Unfortunately, the articles drafted against President
Nixon were deficient in the extreme.
The first article of impeachment against President Nixon charged that
the President had ``engaged in a course of conduct or plan designed to
delay, impede and obstruct investigations of [the] unlawful entry [of
the headquarters of the Democratic National Committee]; to cover up,
conceal and protect those responsible; and to conceal the existence and
scope of other unlawful activities. The means used to implement this
course of conduct or plan have included one or more of the following.''
The article of impeachment then listed nine separate charges, each
extremely broad. The second Nixon article charged dozens of
indeterminate criminal offenses within several wide-ranging categories.
The charges contained in the Nixon articles are alarmingly vague and
duplicitous. The articles before us are not that deficient, but they
represent a second step down a road we should not take. While these
problems with Article I in isolation may not be sufficient to defeat
this article, they are more than technicalities, and pose potentially
serious consequences for the future.
The Senate, of course, did not have occasion to consider the
impeachment articles against President Nixon. Only once in its history
has the Senate actually considered an article of impeachment charging
violations of ``one or more'' alleged acts. Among the articles of
impeachment against Judge Walter Nixon in 1989 was an article alleging
that Judge Nixon made ``one or more" false statements. Unlike the
articles against Presidents Nixon or Clinton, however, the article in
question in the case of Judge Nixon specifically enumerated the alleged
material false statements, including the date and nature of the
statement made. The Senate, though defeating a motion to dismiss the
article, nevertheless acquitted Judge Nixon on this article. Several
Senators explained their votes to acquit on this article due to the
multiplicitous (actually, duplicitous) and disjunctive ``one or more''
form of the article.
I agree with those senators who criticized the form of the omnibus
article of impeachment that was brought against Judge Nixon. An article
of impeachment charging a defendant with ``one or more'' acts is not
only unfair to the defendant, but it does not permit senators to
perform adequately their constitutional duty and the American people to
understand their actions. If the Senate were to convict on a ``one or
more'' acts count of an article of impeachment, the votes to convict
would obscure the real basis for each senator's vote. Ultimately, the
American people would be deprived of knowing the basis on which the
President they duly elected was removed from office.
The Senate also has never been asked to convict someone for conduct
that formed the basis for an article of impeachment that was rejected
by the House. Although in a literal sense, no such article is before
the Senate, in a practical sense that is the situation. The House
failed to pass an article of impeachment against President Clinton that
accused him of, on January 17, 1998, ``willfully provid[ing]
perjurious, false, and misleading testimony in response to questions
deemed relevant by a Federal judge concerning the nature and details of
his relationship with a subordinate Government employee, his knowledge
of that employee's involvement and participation in the civil rights
action brought against him, and his corrupt efforts to influence the
testimony of that employee.'' Yet, in Article I, the Senate is asked to
convict the President based on ``one or more'' sets of actions, one of
which is the President's ``prior perjurious, false, and misleading
testimony he gave in a Federal civil rights action brought against
him.'' That portion of Article I has resulted in the House recharging
all the allegations of perjury made by the President in his civil
deposition that were dismissed when the House rejected an article of
impeachment that was based on that deposition. The House does so
explicitly: ``In addition to his lie about not recalling being alone
with Ms. Lewinsky, the President told numerous other lies at his
deposition. All of those lies are incorporated in Article I, Item 2.''
House Trial Memo. at 61. The House claims that the President's
statement in his grand jury testimony that he intended to be unhelpful
but truthful in his deposition, and that he did not violate the law in
his deposition, amount to perjury in the grand jury if a single
statement in his deposition was perjurious. However, the President did
not broadly reaffirm the truth of all his deposition testimony. Indeed,
before the grand jury, the President revised many statements he had
made in the Jones deposition.
Two perjury statutes have been enacted as part of the federal
criminal code. 18 U.S.C. Sec. Sec. 1623 and 1621. The elements of
section 1623 are that the defendant (1) knowingly make a (2) false (3)
material declaration (4) under oath in a proceeding before or ancillary
to any court or grand jury of the United States. Statements which are
misleading but literally true cannot form the
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basis for a perjury conviction. Bronston v. United States, 409 U.S. 352
(1973). The most difficult element of the offense is materiality. A
statement is said to be material ``if it has a natural tendency to
influence, or is capable of influencing, the decision of the
decisionmaking body to whom it is addressed.'' United States v. Durham,
139 F.3d 1325, 1329 (10th Cir. 1998); see Kungys v. United States, 485
U.S. 759 (1988). The Supreme Court has characterized the conduct
prohibited by Sec. 1621 as follows: ``A witness testifying under oath
or affirmation violates this section if she gives false testimony
concerning a material matter with the willful intent to provide false
testimony, rather than as a result of confusion, mistake, or faulty
memory.'' United States v. Dunnigan, 507 U.S. 87, 94 (1993). As with
Sec. 1621, testimony that is misleading but literally true does not
fall within the ambit of Sec. 1623.
A preliminary matter before consideration of these charges concerns
the burden of proof of the charges in the articles of impeachment which
I believe should apply. It is well established that senators are free
to weigh the evidence in particular cases under a standard they
consider appropriate. My own view is that different cases will be
considered under different standards, depending on the nature of the
particular charge. Impeachment is neither a civil nor a criminal
proceeding, but a hybrid. It is therefore inappropriate to always apply
one or the other of the criminal or civil burdens of proof. When the
consequences to the nation of the alleged conduct are most serious,
such as treason, then the Senate should consider the case under a clear
and convincing standard, for fear of leaving a likely traitor in office
simply because his guilt has not been established beyond a reasonable
doubt. By contrast, when the charges allege harms that are not
imminently serious to the national well-being, it becomes more
appropriate to apply the criminal burden of proof: beyond a reasonable
doubt. I concede that the charges alleged here, while serious, do not
fall within the former category, and I will therefore review the facts
under the beyond a reasonable doubt standard.
With that background, I now consider the facts relating to the three
perjury specifications concerning the President's grand jury testimony
that are properly before the Senate. The first is his testimony
concerning ``the details and nature of his relationship with a
subordinate Government employee.'' The President admitted in the grand
jury that he had an inappropriate relationship with Ms. Lewinsky.
To be sure, President Clinton contended that the relationship began
in 1996, rather than 1995. The House managers note that this is
significant because Ms. Lewinsky was an intern in 1995. The House also
points out that the President admitted inappropriate conduct ``on
certain occasions,'' when, in reality, there were eleven such
occasions, and that he had ``occasional'' telephone encounters with Ms.
Lewinsky when there were at least seventeen that contained sexual
banter. I do think that these statements constitute perjury. They were
false, were made willfully, and were material. Something that happens
seventeen times in a year does not occur ``occasionally.'' Given the
sensitivity of Ms. Lewinsky's status as an intern, I believe that the
President deliberately told the grand jury that his relationship with
her began in 1996, when she no longer had that status. Finally, the
statement is material because it concerns a matter that the grand jury
was investigating as part of its work: the nature of the President's
relationship with Ms. Lewinsky. For these reasons, the statement was
perjurious.
The President's statement to the grand jury that he regretted that
what began as a friendship changed into an inappropriate sexual
relationship was also knowingly false, since the two engaged in sexual
relations twice on the same day that they first spoke. Thus, the
statement was made to deceive, and given that it related to a subject
of the grand jury's inquiry, it was material. Therefore, I agree that
this statement also constitutes perjury, so that the first item of
Article I has been proved. The second item charged in Article I
addresses statements the President made in the grand jury regarding the
truth of his deposition testimony. For the reasons above stated, I
consider finding perjury based on an article of impeachment that the
House rejected to be questionable.
The third item charged in Article I concerns grand jury testimony
involving ``false and misleading statements he allowed his attorney to
make to a Federal judge in that civil rights action.'' Before the grand
jury, President Clinton testified that he was ``not even sure I paid
attention to what he [Mr. Bennett] was saying'' when his attorney
represented to the court that Ms. Lewinsky's affidavit stated that
there was no sex of any kind between her and the President. As a
factual matter, given the videotape that shows the President
concentrating very carefully on his attorney's words and the great
importance that he placed on that affidavit and its filing in time,
this statement's characterization of the President's attention was
certainly false. However, the President said that he ``was not even
sure" that he was paying attention. It is possible, although unlikely,
that he was not sure in August that he was paying attention to that
specific statement in January. That would make the statement literally
true and thus, by definition, not perjurious. And in any event, I
cannot determine beyond a reasonable doubt that his statement was
perjurious. Indeed, the real issue is whether President Clinton used
the affidavit to obstruct justice: whether he actually was paying
attention to his unsuspecting attorney when the affidavit was actually
used to obstruct justice is of questionable materiality.
The fourth item of the perjury allegations in Article I concerns
``his corrupt efforts to influence the testimony of witnesses and to
impede the discovery of evidence in that civil rights action.'' The
first set of facts under this category evidently concerns President
Clinton's statements to Ms. Currie on January 18, 1998, which he
described as having been made to refresh his recollection. The
President's stated reason for making these statements to Ms. Currie was
false. He knew that they were not true, and the President knew that Ms.
Currie could not testify to their truthfulness. Thus, his statement of
purported purpose for making them, as communicated to the grand jury,
was made willfully, with the intent to deceive the grand jury. They
were material as well, since they went to the issue of whether he had
committed a federal crime. They thus constitute perjury.
The second set of facts at issue in item four of Article I apparently
concerns whether the President truthfully told the grand jury that when
the subject of the subpoenaed gifts arose at his December 28, 1997
meeting with Ms. Lewinsky, he told her ``if they asked her for the
gifts, she'd have to give them whatever she had, that that's what the
law was.'' Although Ms. Lewinsky never testified that the President
said this to her, she once indicated that it sounded familiar. Thus, I
am not convinced beyond a reasonable doubt that the President lied when
he testified that he made this statement.
The third set of facts in item four of Article I addresses alleged
lies that he made to the grand jury concerning the truth of statements
that he made to White House aides. Before the grand jury, the President
stated that he had told his aides that he did not have sex with Ms.
Lewinsky as he defined it, and that he told them ``things that were
true about this relationship.'' In reality, the President told them
false statements, such as a broader denial of sexual activity than that
defined as even he had defined it, and that Ms. Lewinsky was a stalker
who came on to him, but whom he rebuffed. The President's statements to
the grand jury in this regard were false, and were intended to deceive
the grand jury about a federal crime of obstruction of justice through
the telling of false statements to persons he knew might become
witnesses before that grand jury, and therefore committed perjury.
As noted above, not all impeachable offenses are crimes, and not all
crimes are impeachable offenses. While I conclude that one of the three
sets of facts at issue in item four of Article I does not constitute
perjury, I conclude that the statements concerning Betty Currie, and
the statements concerning what he told his aides do constitute perjury.
I also find that the President committed perjury with respect to
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item one of Article I with respect to his statements that he and Ms.
Lewinsky's relationship began as a friendship, that it started in 1996,
and that he had ``occasional'' encounters with her. These are the only
examples of grand jury perjury that I believe have been proved in the
entirety of Article I. The question then is whether these examples of
perjury warrant removal of the President for the commission of high
crimes and misdemeanors.
Make no mistake, perjury is a felony, and its commission by a
President may sometimes constitute high crimes and misdemeanors. But is
removal appropriate when the President lied about whether he was
refreshing his recollection or coaching a witness about the nature of a
sexual relationship? Is removal appropriate when the President lied to
the grand jury that he denied to his aides that he had engaged in sex
only as he had defined it, when in fact he had denied engaging in oral
sex? Is removal warranted because the President stated that his
relationship began as a friendship in the wrong year and actually
encompassed more telephone encounters than could truthfully be
described as ``occasional''? To ask the question is to answer it. In my
opinion, these statements, while wrong and perhaps indictable after the
President leaves office, do not justify removal of the President from
office.
In no way does my conclusion ratify the White House lawyers' view
that private conduct never rises to impeachable offenses, or that only
acts that will jeopardize the future of the nation warrant removal of
the President. It simply recognizes how the principles the Founding
Fathers established apply to these facts.
I therefore vote to acquit the President of the charges alleged
against him in Article I.
ARTICLE II--OBSTRUCTION OF JUSTICE
Article II charges that President William Jefferson Clinton, in
violation of his oath of office, and in violation of his constitutional
obligation to take care that the laws be faithfully executed
has prevented, obstructed, and impeded the administration of
justice, and has to that end engaged personally, and through
his subordinates and agents, in a course of conduct or scheme
designed to delay, impede, cover up, and conceal the
existence of evidence and testimony related to a Federal
civil rights action brought against him in a duly instituted
judicial proceeding.
The means used to implement this course of conduct or
scheme included one or more of the following acts:
(1) On or about December 17, 1997, William Jefferson
Clinton 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.
(2) On or about December 17, 1997, William Jefferson
Clinton corruptly encouraged a witness in a Federal civil
rights action brought against him to give perjurious, false
and misleading testimony if and when called to testify
personally in that proceeding.
(3) On or about December 28, 1997, William Jefferson
Clinton corruptly engaged in, encouraged, or supported a
scheme to conceal evidence that had been subpoenaed in a
Federal civil rights action brought against him.
(4) Beginning on or about December 7, 1997, and continuing
through and including January 14, 1998, William Jefferson
Clinton intensified and succeeded in an effort to secure job
assistance to a witness in a Federal civil rights action
brought against him in order to corruptly prevent the
truthful testimony of that witness in that proceeding at a
time when the truthful testimony of that witness would have
been harmful to him.
(5) On January 17, 1998, at his deposition in a Federal
civil rights action brought against him, William Jefferson
Clinton corruptly allowed his attorney to make false and
misleading statements to a Federal judge characterizing an
affidavit, in order to prevent questioning deemed relevant by
the judge. Such false and misleading statements were
subsequently acknowledged by his attorney in a communication
to that judge.
(6) On or about January 18 and January 20-21, 1998, William
Jefferson Clinton related a false and misleading account of
events relevant to a Federal civil rights action brought
against him to a potential witness in that proceeding, in
order to corruptly influence the testimony of that witness.
(7) On or about January 21, 23, and 26, 1998, William
Jefferson Clinton made false and misleading statements to
potential witnesses in a Federal grand jury proceeding in
order to corruptly influence the testimony of those
witnesses. The false and misleading statements made by
William Jefferson Clinton were repeated by the witnesses to
the grand jury, causing the grand jury to receive false and
misleading information.
In all of this, William Jefferson Clinton 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 of the rule of law and justice,
to the manifest injury of the people of the United States.
Wherefore, William Jefferson Clinton, by such conduct,
warrants impeachment and trial, and removal from office and
disqualification to hold and enjoy any office of honor,
trust, or profit under the United States.''
Section 1503(a) of Title 18 of the United States Code states:
Whoever corruptly, or by threats or force, or by any
threatening letter or communication, endeavors to influence,
intimidate, or impede any grand or petit juror, or officer of
any court of the United States, or officer who may be serving
at any examination or other proceeding before any United
States magistrate judge or other committing magistrate, in
the discharge of his duty, or injures any such grand or petit
juror in his person or property on account of any verdict or
indictment assented to by him, or on account of his being or
having been such juror, or injures any such officer,
magistrate judge, or other committing magistrate in his
person or property on account of the performance of his
official duties . . . shall be punished as provided in
subsection (b).
Courts have interpreted this provision to require the government to
prove: ``(1) that there was a pending judicial proceeding, (2) that the
defendant knew this proceeding was pending, and (3) that the defendant
then corruptly endeavored to influence, obstruct, or impede the due
administration of justice.'' United States v. Monus, 128 F.3d 376, 387
(6th Cir. 1998).
Here, there is no doubt that a judicial proceeding was pending and
that President Clinton knew that the proceeding was pending. The
question is whether he corruptly intended to influence, obstruct, or
impede the due administration of justice. Courts have held that to act
corruptly means to act with the intent to influence, obstruct, or
impede the proceeding in question. United States v. Mullins, 22 F.3d
1365, 1369 (6th Cir. 1994); United States v. Littleton, 76 F.3d 614,
619 (4th Cir. 1996); United States v. Russo, 104 F.3d 431, 435 (D.C.
Cir. 1997). Because the prohibited intent is so closely related to the
prohibited act, courts have required a nexus between the obstructing
conduct and the target proceedings. Thus, the defendant's acts must
have the ``natural and probable effect'' of interfering with the due
administration of justice. United States v. Aguilar, 515 U.S. 593, 599
(1995). But the defendant need only endeavor to obstruct justice to
commit this offense. There is no requirement that he actually succeed
in obstructing justice. Id. at 599, 600.
Among the acts that courts have concluded violate Sec. 1503(a)
include the creation of false documents to be presented in evidence,
United States v. Chihak, 137 F.3d 252 (5th Cir. 1998); and instructing
a subordinate to conceal evidence, United States v. Lefkowitz, 125 F.3d
608 (8th Cir. 1997). These actions are alleged to have occurred in
Article II.
Section 1512(b) of Title 18 prohibits witness tampering.
Specifically, it prohibits knowingly using one or more of the
prohibited forms of persuasion with the intent to prevent a witness's
testimony from being presented at official federal proceedings or with
the intent to prevent a witness from reporting evidence of a crime to
federal authorities. United States v. Thompson, 76 F.3d 442, 452-53 (2d
Cir. 1996). Unlike Sec. 1503, Sec. 1512(b) does not require that the
defendant be aware of the pendency of federal proceedings. United
States v. Romero, 54 F.3d 56, 62 (2d Cir. 1995). Courts differ about
the standard of corrupt persuasion, but even the more stringent courts
agree that it is sufficient if the defendant attempts to persuade a
witness ``to violate her legal duty to testify truthfully in court.''
United States v. Morrison, 98 F.3d 619, 630 (D.C. Cir. 1996). Contrary
to the representations of White House counsel at the impeachment trial,
it is not necessary that the defendant threaten or cause physical harm
to a witness to fall within subsection (b). When the defendant's
misconduct takes the form of deceiving a potential witness with the
intent that the witness later repeat the deception in federal
proceedings, the crime does not require that the potential witness was
in fact deceived, nor that there was any particular likelihood that
that potential witness would
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in fact ever be called upon to testify. United States v. Gabriel, 125
F.3d 89, 102-03 (2d Cir. 1997). The prohibited intent of this
subsection is intent to obstruct a federal proceeding.
There are seven specifications of obstruction of justice in Article
II. The first two charge that on or about December 17, 1997, President
Clinton corruptly urged a witness in a federal civil rights action to
execute a false affidavit and to give false testimony if called to
testify. That is the day he informed Ms. Lewinsky that she was on the
Jones witness list, that she should contact Ms. Currie if she were
subpoenaed, and that she could file an affidavit in the case to avoid
testifying. In this conversation, the President told Ms. Lewinsky that
she could ``always say you were coming to see Betty or that you were
bringing me letters.''
The President conducted an improper relationship with an employee of
the federal government, Monica Lewinsky. He carried on that
relationship off the Oval Office. He engaged in sexual banter over
unsecured telephone lines to Ms. Lewinsky's residence, compromising
himself and making himself susceptible to blackmail.
And on December 17, 1997, the President raised to Ms. Lewinsky both
the cover stories and filing an affidavit to prevent these facts from
being disclosed. While Ms. Lewinsky testified that he did not expressly
tell her to raise the cover stories in the affidavit, his intent was
unmistakable: to corruptly endeavor to influence Ms. Lewinsky to file
an affidavit that would prevent Paula Jones's attorneys from learning
of the President's relationship with Ms. Lewinsky, a relationship of
the type that the judge in her case had ruled to be relevant. And even
if not directly linked to the affidavit, there is no question from Ms.
Lewinsky's consistent testimony that the President was asking her to
use those cover stories if she were ultimately asked to testify, since
that was the context of the conversation. The White House's repeated
retort that the relationship with Ms. Lewinsky was consensual, while
the allegations by Ms. Jones were of non-consensual sex, is therefore
irrelevant. President Clinton did not tell Ms. Lewinsky to lie, but
neither did he need to, as she understood that she was to raise the
cover stories. Ms. Lewinsky admitted that the affidavit was indeed
false. And since Lewinsky's truthful testimony would have definitely
led to her being called as a witness, the President clearly understood
that Ms. Lewinsky would file an affidavit he had strong reason to
believe would be false. That is obstruction of justice, as shown by the
cases that have held creation of false documents to be presented in
evidence to fit within the statutory prohibition. Moreover, this charge
must be considered in connection with the President's discussions with
Ms. Lewinsky as her affidavit was being prepared, his conversation with
Mr. Jordan after he spoke with her, and his lawyer's deep involvement
in ensuring that the affidavit was filed and that the President had an
opportunity to see it before that occurred, all of which shed light on
what the President intended Ms. Lewinsky to do in that affidavit and if
she testified.
The third item of Article II charges that President Clinton, on or
about December 28, 1997, corruptly engaged in, encouraged, or supported
a scheme to conceal evidence that had been subpoenaed in a federal
civil rights action against him. That is the day the President
discussed the subpoenaed gifts with Ms. Lewinsky, and there is no doubt
that the President indicated that he was ``bothered'' by the specific
gift, a hatpin, that the subpoena requested. In none of the many times
that Ms. Lewinsky testified did she ever say that the President told
her to turn over the gifts, although once she said that the remark
seemed familiar, and a number of times she testified that he asked to
think about her suggestion that she give the gifts to Ms. Currie. The
gifts, of course, ultimately were secreted under Ms. Currie's bed, and
there is no doubt in Ms. Lewinsky's mind that Ms. Currie initiated the
call that led to that exchange of the gifts. Since only the President
and Ms. Lewinsky were present when the subject of giving the gifts to
Ms. Currie was raised, and since Ms. Lewinsky did not call Ms. Currie,
the only way that Ms. Currie could have called Ms. Lewinsky and not be
surprised to obtain the gifts was if the President had told her to
contact Ms. Lewinsky to retrieve them. This is also consistent with the
President's course of conduct in this matter.
The President thus corruptly acted to obstruct the Jones case by
asking Ms. Currie to retrieve and secret the gifts. That constitutes
obstruction of justice, as demonstrated by the cases that have
convicted defendants of that charge for having instructed subordinates
to conceal evidence.
The White House's arguments to the contrary are unpersuasive. It is
irrelevant that the President did not initiate the subject of the gifts
in his conversation with Ms. Lewinsky. It is also irrelevant that he
did not tell her to conceal the gifts. What is relevant is that the
President, after thinking about the gifts, instructed Ms. Currie to
retrieve the gifts from Ms. Lewinsky. The President's and Ms. Currie's
denials simply cannot be squared with the evidence.
Also irrelevant is the fact that Ms. Currie's cell phone call to Ms.
Lewinsky occurred at 3:30 p.m., whereas Ms. Lewinsky testified that the
gift pickup occurred at 2 p.m. Notwithstanding the White House's
willingness to excuse the President's error by two or more months
concerning when his improper relationship with Ms. Lewinsky began,
while insisting that the cell phone call's 90 minute mistiming is fatal
to the theory that Ms. Currie instituted the gift exchange, the cell
phone call at 3:30 does not prove that Ms. Lewinsky instituted the gift
exchange. First, Ms. Lewinsky testified that she might have been
mistaken about the time that Ms. Currie picked up the gifts. Second,
there is no evidence that the cell phone call was the one in which Ms.
Currie's gift pickup was proposed. Ms. Lewinsky testified that she
received other telephone calls from Ms. Currie that day to learn when
Ms. Currie was coming to her apartment and also to know when she should
actually come outside to meet Ms. Currie.
The White House also maintains that the President would not have
given Ms. Lewinsky additional gifts on December 28 if he planned to
hide the gifts. The facts do not support that theory. The President
gave Ms. Lewinsky those gifts before, pondering Ms. Lewinsky's idea, he
determined that he would ask Ms. Currie to retrieve them. Since he had
no intent to retrieve the gifts at the time he gave her the gifts on
December 28, there is no inconsistency with his later direction to Ms.
Currie to pick them up.
The fourth item of Article II alleges that the President, beginning
on December 7, 1997, and continuing through January 14, 1998,
intensified and succeeded in an effort to secure job assistance to a
witness in a federal civil rights action brought against him to
corruptly prevent the truthful testimony of that witness. Following a
meeting with Ms. Lewinsky in November in which she sought his
assistance, Mr. Jordan took no action and provided no help. He does not
even remember this meeting. Thus, he made no serious effort to find her
a job until after December 7, once the President, not Ms. Lewinsky,
asked him to conduct a job search for Ms. Lewinsky. That followed Ms.
Lewinsky's appearance on the Jones lawyers' witness list, and followed
the President's promise to Ms. Lewinsky that he would ask Mr. Jordan to
do more to help her find a job.
Although Ms. Currie, not the President, called Mr. Jordan, he was
aware that the request came from the President and that he acted at the
behest of the President. Jordan did not call the companies Ms. Lewinsky
suggested, but rather, the companies where he was likely to produce a
job for her. After December 19, Jordan obviously became aware that the
President may have been asking him to assist Ms. Lewinsky obtain a job
because he may have had a sexual affair with Ms. Lewinsky. That
prompted him to ask both Ms. Lewinsky and the President whether such a
relationship had occurred. Jordan continued to help find Ms. Lewinsky
employment once they both denied that this was the case. However, he
took no additional action until the day after Ms. Lewinsky signed the
affidavit, when he called the CEO of McAndrews & Forbes to successfully
obtain a second interview for her at Revlon after she told him that
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the first had proceeded badly. Thus, it is true that Mr. Jordan
intensified his job assistance to Ms. Lewinsky at the President's
request, following the President's, but not Mr. Jordan's knowledge,
that she appeared on the Jones witness list. Jordan took no further
action on her behalf until satisfying himself that each had denied that
there had been any sexual relationship. He then obtained a job for Ms.
Lewinsky by calling the CEO of the holding company of the company that
offered Ms. Lewinsky a job. That call was made the day after Ms.
Lewinsky signed her affidavit. Because President Clinton did ask Mr.
Jordan to intensify his job efforts to assist Ms. Lewinsky to obtain a
job after he knew she was on the Jones witness list, the President
corruptly obstructed justice by attempting to influence the testimony
of a witness in a case against him.
The White House responses to this charge miss the mark. That Ms.
Lewinsky had begun her job search in July, and after a few months had
not landed a job of her liking is irrelevant to whether, not having
obtained a job, the President took steps to make sure she did obtain
one once her name appeared on the witness list. That Ms. Lewinsky
testified that no one ever promised her a job in return for her silence
does not change the fact that these efforts were undertaken. That Linda
Tripp suggested that Ms. Lewinsky originally speak with Mr. Jordan
means nothing because he took no action following that meeting; only
after the President requested that Mr. Jordan assist Ms. Lewinsky once
her name appeared on the witness list did he do so. That Mr. Jordan
testified that he acted with no sense of urgency is also of no import:
it was the President who acted with a sense of urgency, using Mr.
Jordan as his agent. Nor is it of consequence that Mr. Jordan placed no
undue pressure on the persons he contacted in support of Ms. Lewinsky.
The corrupt influence in obstruction of justice that matters is
directed to the witness, not to the prospective employer of the
witness. President Clinton knew, and Mr. Jordan knew, that the ``Jordan
magic'' in finding people employment did not depend in any way on undue
pressure being applied. Thus, the White House's contention that there
was no connection between Ms. Lewinsky obtaining her Revlon offer and
Mr. Jordan's call to Mr. Perelman is denied by Mr. Jordan himself.
President Clinton could be sure that Mr. Jordan would find Ms. Lewinsky
a job when her testimonial support of his denials was critical without
his own need to do anything. It is also irrelevant that she did not
obtain a job offer in each company Mr. Jordan called. Nothing in the
record shows that the President ever requested Mr. Jordan to find
employment for any White House intern who was not on a witness list in
a federal case pending against him. The President obstructed justice
through using Mr. Jordan to find Ms. Lewinsky a job once her name
appeared on the Jones witness list.
The fifth item of Article II claims that the President obstructed
justice by corruptly allowing his attorney to make false and misleading
statements to a federal judge. In the President's presence, his
attorney represented to the court, based on Ms. Lewinsky's affidavit,
that the President had seen the affidavit, and that it showed that
``there is absolutely no sex of any kind in any manner, shape or form
with President Clinton,'' a statement his lawyer later retracted out of
professional ethics obligations. The affidavit stated, inter alia, that
``I have never had a sexual relationship with the President, he did not
propose that we have a sexual relationship . . .'' and ``the occasions
that I saw the President after I left my employment at the White House
in April, 1996, were official receptions, formal functions or events
related to the U.S. Department of Defense, where I was working at the
time. There were other people present on those occasions.'' The
President testified that the affidavit was ``absolutely true.'' The
President knew that Ms. Lewinsky's affidavit would be used to
perpetrate a fraud on the court, and because he was briefed on its
contents by his attorney in advance, he knew that his attorney
misunderstood the affidavit, and would inadvertently present the
affidavit to the court in a false light. Yet, he took no action to
either change his lawyer's understanding or to prevent the use of the
affidavit under those conditions. Moreover, with knowledge that the
affidavit used the cover stories that he had reminded Ms. Lewinsky to
continue on December 17, he testified to those same cover stories.
Regardless of whether he was paying attention at the moment that this
happened, the President clearly knew at the time the deposition
commenced that the affidavit would be used in a way that perpetrated a
fraud on the court and on Ms. Jones's proceedings. He corruptly impeded
Ms. Jones's efforts to prove the fact relevant to her case that Mr.
Clinton had had a sexual relationship with another government employee.
He did so intentionally by allowing that affidavit to be portrayed by
an officer of the court as proof that there was in fact no sexual
relationship between the President and another government employee.
That is obstruction of justice. The White House has addressed these
facts only with respect to whether the President's statement denying
that he was in fact paying attention to his attorney as opposed to
looking at him constituted perjury, but has never refuted the
President's knowledge that a false affidavit would be used in the
deposition to obstruct the proceeding.
The sixth item of Article II concerns the President's obstruction of
justice by relating false and misleading statements to Betty Currie in
order to corruptly influence her testimony. The President's
conversation with Ms. Currie followed his telephone call to her, a call
that she testified was made later on a Saturday than any call she had
ever received from the President at home. The conversation occurred on
a Sunday, when it was rare for Ms. Currie to come to the White House.
The conversation occurred in the Oval Office, where the President would
exercise the full powers and trappings of his office in the presence of
a subordinate. The conversation addressed issues from the President's
testimony in the Jones case, despite the fact that at the end of his
deposition, the presiding judge ordered him not to discuss his
testimony with anyone. In that conversation, the President told Ms.
Currie statements that he knew to be false about his relationship with
Ms. Lewinsky, and that she also knew were false. Two or three days
later, that is, the day the President learned that the court had
permitted Independent Counsel Starr to expand his inquiry into the
Lewinsky matter or the day after, the President repeated these same
statements to Ms. Currie.
The President's call to Ms. Currie followed rapidly upon his
deposition in the Jones case, its questions concerning Ms. Lewinsky,
and his repeated answers to such questions by invoking Ms. Currie's
name, one of which invited the Jones attorneys to ``ask Betty.'' In
fact, Ms. Jones' lawyers placed Ms. Currie's name on their witness
list. The ``questions'' that he asked were leading, and even according
to Ms. Currie, were more like statements than questions. He asked her
to agree that he was never really alone with Ms. Lewinsky, even though
they both knew that he had been alone with her. He asked her to agree
that she was always there when Ms. Lewinsky was there, even though she
could not logically know whether Ms. Lewinsky had ever been there when
Ms. Currie was absent. He asked her to agree that Ms. Lewinsky came on
to him and that he never touched her, even though Ms. Currie would have
had no ability to know those ``facts.'' He asked her to agree that she
had seen and heard everything, when that was also not the case. And he
suggested to her that Ms. Lewinsky wanted to have sex with him and that
he could not do that.
These statements constitute witness tampering. The President engaged
in misleading conduct, through the use of false statements and
omissions to mislead, toward Ms. Currie, with intent to influence her
testimony in a federal court proceeding. He acted corruptly, because he
acted with the improper purpose of obtaining false testimony from a
witness who would corroborate the lies he issued in the Jones
deposition to obstruct that case. As stated above, witness tampering
convictions need not rest on the defendant's actually having deceived
the potential witness or any particular likelihood that the potential
witness would in fact ever be called upon to testify. United States v.
Gabriel, 125 F.3d 89, 102-03 (2d Cir. 1997).
[[Page S1558]]
The White House arguments in response to these facts is inadequate.
It is inadequate as a matter of law for the White House to contend that
the President did not know that Ms. Currie was an ``actual or
contemplated witness,'' and is difficult to accept that proposition
factually. Nor as a matter of law is it ``critical,'' as the White
House contends, that Ms. Currie testified that she felt no pressure to
agree with the President. Witness tampering under
Sec. 1512 can be accomplished through ``misleading conduct,'' which
includes the making of false statements or intentional omissions that
make statements misleading. The White House counsel repeatedly argued
that threats are necessary for witness tampering, even after senatorial
questions demonstrated the White House's misstatements of the law. The
White House also misstated the law of witness tampering by claiming
that there ``must be a known proceeding.'' In fact, the defendant need
not know that there is any pending federal proceeding to constitute
witness tampering. United States v. Kelley, 36 F.3d 1118, 1128 (D.C.
Cir. 1994). The White House contends that the President could not have
tampered with Ms. Currie in the proceeding in which she was ultimately
a witness, the independent counsel's investigation, since the President
could not have known that it existed, at least as of January 18. But
the statute does not require that the defendant know of any pending or
even contemplated proceedings so long as he engages in misleading
conduct with respect to a potential witness. United States v. Romero,
54 F.3d 56, 62 (2d Cir. 1995).
The White House's factual defense to this charge is also
insufficient. The President could not have made these false statements
to Ms. Currie for the purpose of refreshing his recollection. Nor could
he have spoken with her for the purpose of seeking information for the
same reason. These claims also do not explain why he simply did not ask
her the questions over the telephone on the night of the seventeenth,
if that was his intention, or explain why he spoke with her a second
time.
The seventh item of Article II alleges that the President obstructed
justice by relaying false and misleading statements to his aides. On
January 21, the President told his chief of staff and two deputies that
he had not had sexual relations with Ms. Lewinsky. On January 23,
he told one of those deputy chiefs of staff, John Podesta, that he did
not engage in oral sex with Ms. Lewinsky. The President on January 21
told his aide, Sidney Blumenthal, that Ms. Lewinsky had threatened him.
President Clinton also indicated that Lewinsky was known among her
peers as the stalker, and that she would say that she had an affair
with the President whether it was true or not, so that she would not be
known as the stalker any more. Blumenthal later testified that he
believes the President lied to him. The President testified that he was
aware at the time that he made his statements that his aides might be
summoned before the grand jury. These facts constitute paradigmatic
witness tampering. The President knowingly engaged in misleading
conduct, as defined in the statute, towards his aides, with intent to
influence the testimony of those aides in an official proceeding.
Once again, the White House's arguments to the contrary are
unavailing. The charge is not that the President lied to his friends,
as the White House maintains, but that he lied to potential witnesses
about his conduct that the grand jury was investigating. It is not
relevant, as the White House contends, that the President did not
attempt to influence his aides' own personal knowledge, only their
knowledge of the President's views, nor, as stated above, is it
relevant as a matter of law that the President did not know that any of
these individuals would ultimately become witnesses. Most surprising
was the claim that Mr. White House Counsel Ruff raised for the first
time in closing argument that the President could not be convicted of
obstructing justice with respect to his conversations with Mr.
Blumenthal because the fact that the President claimed executive
privilege with respect to his conversation with Mr. Blumenthal meant
that he never expected the grand jury to hear about it. The President's
conversation with Mr. Blumenthal was not subject to a legitimate claim
of executive privilege for two independent reasons. First, it was not a
discussion that related to the President's official duties. Second, it
constituted evidence of crime in and of itself. There was no
possibility that any court would have ever upheld such a personally
self-serving and frivolous misuse of executive privilege, and the
President, as a former constitutional law professor during the time of
Watergate fully understood that, as does Mr. Ruff. Indeed, Mr.
Blumenthal was required to testify to the grand jury about this
conversation notwithstanding the fact that the President did invoke an
unwarranted executive privilege claim in an attempt to prevent its
disclosure. Nor is there evidence that the President intended to claim
executive privilege at the time that he had his conversation with
Blumenthal. In any case, there was no reason for the President to tell
this tale to Mr. Blumenthal except to disseminate it to his press
contacts and on any occasion when he might appear before the grand
jury.
Each and every allegation of obstruction of justice and witness
tampering has thus been proven. The question then arises whether the
conclusion that the President has broken the law in this respect
warrants his removal from office. Since all have been proven, I am far
less concerned that the ``one or more'' language appears in this
article. It is appropriate to charge an omnibus article in which a
series of specific charges are leveled, a finding of guilt on each of
which is required for conviction.
President Clinton has committed a pattern of acts of obstruction of
justice. The record demonstrates that the President, when his
misconduct became relevant to a civil court proceeding in which he was
a defendant, used all the methods at his disposal, including his status
as President, to obstruct these proceedings and to keep the truth from
emerging, including:
coaching and encouraging a witness, another federal employee, Betty
Currie, to give false testimony;
facilitating and encouraging Monica Lewinsky to submit an affidavit
that he had reason to believe would be false;
through Vernon Jordan, securing employment for Monica Lewinsky in
order to keep her from divulging to the court the true nature of their
relationship;
using government employees to transfer false information to the grand
jury;
allowing a false affidavit to be used to perpetrate a fraud on a
federal court;
after lying in a civil deposition, authorized a poll and made a cold,
calculated decision based on those poll results to continue his
obstruction;
attempting to speak to Monica Lewinsky before she might testify
truthfully to the independent counsel about their relationship;
following his inability to contact Monica Lewinsky, telling
defamatory lies about her in order to discredit her with his aides and
with the public;
facilitating the hiding of evidence in a civil lawsuit;
providing false and misleading testimony in both a civil deposition
and before a grand jury in order to protect his personal interests;
lying to the American people in order to cover up his own personal
misconduct;
still failing to acknowledge that he committed the above actions,
while admitting only as little as he has been forced to by the
discovery of definitive physical evidence.
For at least nine months and in some respects up until today, the
President has done everything within his power to bring about a
miscarriage of justice in both a civil court proceeding and a criminal
court proceeding. He took these actions for the sole purpose of
protecting himself personally, politically and legally. For those who
emphasize the private nature of his original misconduct, I would ask if
he should be protected because he obstructed justice for such a low
purpose? Time and again, and with premeditation, he was willing to use
government personnel to assist in his coverup and his lies,
acknowledging part of the truth only when confronted with physical
evidence. And he carried his lies and cover up right on into legal
proceedings with the grace and ease of someone who regarded a court of
law as deserving of no more respect than if he
[[Page S1559]]
were dealing with a stranger on the street. It is this persistent
relentless, remorseless pattern of conduct that requires a verdict of
guilty. He was willing to lie, defame, hide evidence and enlist anyone
necessary, including government employees over and over again. At every
juncture when he had the opportunity to stop, relent or come clean with
a forgiving public, he chose instead to go forward. And even today he
refuses to acknowledge the damage he has done to the Presidency and the
Judiciary, choosing instead to rely upon his high job approval rating
and acknowledging only what he is forced to after the production of
physical evidence.
Consider what those who oppose impeachment say about his actions:
Senator Bumpers, one of the counsel for the President during his
trial, described the President's conduct as ``indefensible, outrageous,
unforgivable, shameless.'' The New York Times editorialized that
``President Clinton behaved reprehensibly, [and] betrayed his
constitutional duty to uphold the rule of law. . ..'' A censure
resolution offered by members of his own party in the House, including
one of the strongest opponents of impeachment in the Judiciary
Committee, concluded that President Clinton ``egregiously failed in
[]his obligation'' ``to set an example of high moral standards and
conduct himself in a manner that fosters respect for the truth;''
``violated the trust of the American people, lessened their esteem for
the office of President, and dishonored the office which they have
entrusted to him;'' ``made false statements concerning his
reprehensible conduct with a subordinate;'' and ``wrongly took steps to
delay discovery of the truth.'' Respected members of the President's
party in this body expressed or shared the expression of the view that
his actions were ``disgraceful,'' that it was ``dismay[ing]'' to
consider ``the impact of his actions on our democracy and its moral
foundations,'' that it was ``immoral'' and ``harmful'' since ``the
President's private conduct can and often does have profound public
consequences'' and ``compromised his moral authority,'' and they
described his deception as ``intentional and premeditated.''
So we castigate the President in the most bitter terms; decry his
disgraceful conduct and his damage to the institutions we hold most
dear; disgrace him with the most condemnatory language at our command
and yet refuse to even consider his removal from office? By such action
we treat the loss of public office as the worst fate imaginable,
reserved for only the most treasonous of villains. Has public office
become so precious in the United States that we treat it as a divine
right? Actually, by such treatment we cheapen it.
At a time when all of our institutions are under assault, when the
Presidency has been diminished and the Congress is viewed with
scepticism, our Judiciary and our court system have remarkably
maintained the public's confidence. Now the President's actions are
known to every school child in America. And in the midst of these
partisan battles, many people still think this matter is just ``lying
about sex.'' But little by little, there will be a growing appreciation
that it is about much more than that. And in years to come, in every
court house in every town in America, juries, judges, and litigants
will have the President's actions as a bench mark against which to
measure any attempted subversion of the judicial process. The notion
that anyone, no matter how powerless, can get equal justice will be
seen by some as a farce. And our rule of law--the principle that many
other countries still dream about--the principle that sets us apart,
will have been severely damaged. If this does not constitute damage to
our government and our society, I cannot imagine what does. And for
that he should be convicted.
Mr. MOYNIHAN. Mr. Chief Justice, Senators, I speak to the matter of
prudence. Charles L. Black, Jr. begins his masterful account
Impeachment: A Handbook with a warning: ``Everyone must shrink from
this most drastic of measures. . . . [t]his awful step.''
For it is just that. The drafters of the American Constitution had,
from England and from Colonial government, fully formed models of what
a legislature should be, what a judiciary should do. But nowhere on
earth was there a nation with an elected head of an executive branch of
government.
Here they turned to an understanding of governance which marks the
American Constitution as a signal event in human history--what the
Framers called ``the new science of politics.'' What we might term the
intellectual revolution of 1787. The victors in the Revolution could
agree that no one, or not many, wanted another monarchy in line with
the long melancholy succession since Rome. Yet given what Madison
termed ``the fugitive and turbulent existence of . . . ancient
republics,'' who could dare to suggest that a modern republic could
hope for anything better?
Madison could. And why? Because study had produced new knowledge,
which could now be put to use. This great new claim rested upon a new
and aggressively more ``realistic'' idea of human nature. Ancient and
medieval thought and practice were said to have failed disastrously by
clinging to illusions regarding how men ought to be. Instead, the new
science would take man as he actually is, would accept as primary in
his nature the self-interestedness and passion displayed by all men
everywhere and, precisely on that basis, would work out decent
political solutions.
This was a declaration of intellectual independence equal to anything
asserted in 1776. Until then, with but few exceptions, the whole of
political thought had turned on ways to inculcate virtue in a small
class that would govern. But, wrote Madison, ``If men were angels, no
government would be necessary.'' We would have to work with the
material at hand. Not pretty, but something more important:
predictable. Thus, men could be relied upon to be selfish; nay,
rapacious. Very well: ``Ambition must be made to counteract ambition.''
Whereupon we derive the central principle of the Constitution, the
various devices which in Madison's formulation offset ``by opposite and
rival interests, the defect of better motives.''
Impeachment was to be the device whereby the Congress might
counteract the ``defect of better motives'' in a President. But any
such behavior needed to be massive and immediately threatening to the
state for impeachment ever to go forward. Otherwise a quadrennial
election would serve to restitute wrongs.
Further, they had a model for this process in the impeachment of
Warren Hastings which had begun in April of 1786 with Edmund Burke
presenting twenty-two ``Articles of Charge of High Crimes and
Misdemeanors.'' The debate in the House of Commons continued into 1787
and was reported in the Pennsylvania Gazette.
Burke was hardly a stranger to the Americans at Philadelphia. He had
championed the cause of the American colonies during the Revolution,
and was now doing much the same as regards the governance of British
India. He accused the Governor General of the highest crimes possible
against, inter alia, the peoples of India.
At Philadelphia, the standard for impeachment was discussed only
once--on Saturday, September 8, 1787. At that point in the convention,
the draft of the clause in the Constitution pertaining to impeachment
referred only to ``treason and bribery.''
Here are Madison's notes of the debate that day:
The clause referring to the Senate, the trial of
impeachments against the President, for Treason & bribery,
was taken up.
Col. MASON. Why is the provision restrained to Treason &
bribery only? Treason as defined in the Constitution will not
reach many great and dangerous offences. Hastings is not
guilty of Treason. Attempts to subvert the Constitution may
not be Treason as above defined. As bills of attainder which
have saved the British Constitution are forbidden, it is the
more necessary to extend: the power of impeachments. He mov.d
to add after ``bribery'' ``or maladministration.'' Mr. GERRY
seconded him.
Mr. MADISON So vague a term will be equivalent to a tenure
during pleasure of the Senate.
Mr. GOV.r MORRIS, it will not be put in force & can do no
harm. An election of every four years will prevent
maladministration.
Col. MASON withdrew ``maladministration'' & substitutes
``other high crimes & misdemeanors ag.st the State.''
The convention later replaced the word ``State'' with ``United
States.'' And on September 12, 1787, the Committee of Style--which had
no authority to alter the substantive meaning of
[[Page S1560]]
the text--deleted the words ``against the United States.''
Thus the Framers clearly intended that a President should be removed
only for offenses ``against the United States.'' It may also be
concluded that the addition of the words ``high Crimes and
Misdemeanors'' was intended to extend the impeachment power of Congress
so as to reach ``great and dangerous offences,'' in Mason's phrase.
The question now before the Senate is whether the acts that form the
basis for the Articles of Impeachment against President Clinton rise to
the level of ``high Crimes and Misdemeanors.'' Which is to say, ``great
and dangerous offences'' against the United States.
Over the course of 1998, as we proceeded through various revelations,
thence to Impeachment and so on to this trial at the outset of 1999, I
found myself asking whether the assorted charges, even if proven, would
rise to the standard of ``great and dangerous offences'' against the
United States. More than one commentator observed that we were dealing
with ``low crimes.'' Matters that can be tried in criminal courts after
the President's term expires. Early in his address to the Senate our
distinguished former colleague Dale Bumpers made this point:
Colleagues, you have such an awesome responsibility. My
good friend, the senior Senator from New York, has said it
well. He says a decision to convict holds the potential for
destabilizing the Office of the Presidency.
The former Senator from Arkansas was referring to an article in The
New York Times on December 25th in which I said this:
We are an indispensable nation and we have to protect the
Presidency as an institution. You could very readily
destabilize the Presidency, move to a randomness. That's an
institution that has to be stable, not in dispute. Absent
that, do not doubt that you could degrade the Republic
quickly.
This could happen if the President were removed from office for less
than the ``great and dangerous offences'' contemplated by the Framers.
In Grand Inquests, his splendid and definitive history of the
impeachments of Justice Samuel Chase in 1804, and of President Andrew
Johnson in 1868, Mr. Chief Justice Rehnquist records how narrowly we
twice escaped from a precedent that would indeed have given us a
Presidency (and a Court) subject to ``tenure during the pleasure of the
Senate.''
It is startling how seductive this view can be. In 1804 it was the
Jeffersonians, including Jefferson himself, who saw impeachment as a
convenient device for getting rid of a Justice of the Supreme Court
with whose opinions they disagreed. Not many years later Radical
Republicans sought the same approach to removing a President with whom
they disagreed over policy matters.
It could happen again. Impeachment is a power singularly lacking any
of the checks and balances on which the Framers depended. It is solely
a power of the Congress. Do not doubt that it could bring radical
instability to American government.
We are a blessed nation. But our blessings could be our ruin if we do
not see how rare they are. There are two nations on earth, the United
States and Britain, that both existed in 1800 and have not had their
form of government changed by force since then. There are eight--I
repeat eight--nations which both existed in 1914 and have not had their
form of government changed by violence since then: the United States,
the United Kingdom, Australia, Canada, New Zealand, South Africa,
Sweden, and Switzerland.
Senators, do not take the imprudent risk that removing William
Jefferson Clinton for low crimes will not in the end jeopardize the
Constitution itself. Censure him by all means. He will be gone in less
than two years. But do not let his misdeeds put in jeopardy the
Constitution we are sworn to uphold and defend.
Mr. GRAHAM. ``We hold these truths to be self-evident, that all men
are created equal, that they are endowed by their Creator with certain
unalienable rights, that among these are Life, Liberty, and the pursuit
of happiness. That to secure these rights, governments are instituted
among men, deriving their just powers from the consent of the
governed.''
Those words were a radical declaration when spoken in 1776. Never
before had it been asserted that the purpose of government was to
secure the individual freedoms and liberties of its citizens. To the
contrary, previous governments existed for the opposite purpose; to
control the people and suppress their aspirations.
Eleven years after the Continental Congress approved these
revolutionary sentiments--and after a violent war which severed the
colonies' tie to King George III--many of the same individuals who had
declared independence gathered again in Philadelphia to secure those
rights so recently and tenuously won.
The governmental structure they constructed during those weeks in the
oppressive summer heat was far from simple. But its complexity wasn't
an accident, or simply a result of the diverse geographical and
economic interests represented at the Constitutional Convention. As our
colleague Senator Patrick Moynihan has so aptly observed, our
government was the first to insert conflict as a conscious element, to
achieve inefficiency by design.
Our nation's founders had personal knowledge of and experience with
English history, in which both Kings and Parliaments had at times
exerted excessive power over the people. They realized that liberty
would be enhanced if political power was divided instead of
centralized.
Unlike other forms of democracy, where a no confidence vote of the
national legislature can bring down a government at any time, the
Framers took great pains to establish a delicate balance of powers--and
a careful system of checks and balances--between the nation and the
states and among the executive, legislative, and judicial branches of
the federal government. They created a structure in which every branch
would have the strength needed to keep excessive power from flowing
into the hands of any other branch and thus threatening the liberties
of the people.
This determination to achieve balance is reflected in the discussion
of impeachment and removal from office in Article I, Section 3 of the
Constitution. By requiring action from both houses of Congress, and
mandating a two-thirds Senate majority for removal, the Framers
purposely made it difficult for Congress to undo the results of a
properly constituted Presidential election--one of the most disruptive
acts imaginable in a democracy--and relieve a President of his or her
constitutional duties. The Framers wisely recognized that impeachment,
when improvidently used, could create an overbearing Congress from the
ruins of a destabilized and delegitimized Presidency.
But the Framers' attention to balance was not limited to the
procedures of impeachment. They also made clear their belief that
impeachment and removal from office should only be an option in
situations in which a President becomes a threat to the government and
the people it serves. We see this in their small number of enumerated
offenses--Treason, Bribery, other High Crimes and Misdemeanors--and in
their commentary.
For example, at the Constitutional Convention in 1787, George Mason
said that the term ``high crimes and misdemeanors'' referred to ``great
and dangerous offenses'' and ``attempts to subvert the Constitution.''
Mr. Chief Justice, the President's self-indulgent actions were
immoral. Disgraceful. Reprehensible. History should--and, I suspect,
will--judge that William Jefferson Clinton dishonored himself and the
highest office in our American democracy.
But despite their disreputable nature, President Clinton's actions
should not result in his conviction and removal from office. After
careful objective study of each article presented by the House of
Representatives, I have concluded that the charges against the
President do not meet the high constitutional standards established by
the Framers. Removal of this President on the grounds established by
the House Managers would upset the delicate balance of powers so
meticulously established 212 years ago.
Mr. Chief Justice, the Framers set high standards for removal because
they understood that the office of the Presidency would be held by
imperfect human beings. They assembled a government that could
withstand personal failings.
[[Page S1561]]
We should be outraged that William Jefferson Clinton's personal
failings debased himself and his office. But they did not cause
permanent injury to the proper functioning of our government. He did
not upset the constitutional balance of powers.
I hope that the Chief Justice, my colleagues, and the American people
will not misinterpret my comments. While it has not been proven that
President William Jefferson Clinton committed the high crimes and
misdemeanors required for removal from office, he is not above the law.
His acquittal in this impeachment trial is not exoneration.
The framers made this clear in Article I of the Constitution. They
established that an impeached President, even if convicted and removed
from office, would still ``be liable and subject to Indictment, Trial,
Judgement, and Punishment, according to law.'' When this President
leaves office, he could face sanction or conviction for his actions.
Mr. Chief Justice, during the questioning phase of this trial, I
sought assurances from the President, through White House Counsel Mr.
Charles Ruff, that he would not attempt to circumvent this judicial
process by seeking a pardon for his actions. Counsel Ruff responded as
follows:
I have stated formally on behalf of the President in
response to a very specific question by the House Judiciary
Committee that he would not, and, indeed, we have said in
this Chamber, and we have said in other places, that the
President is subject to the rule of law like any other
citizen and would continue to be on January 21, 2001, and
that he would submit himself to whatever law and whatever
prosecution the law would impose on him. He is prepared to
defend himself in that forum at any time following the end of
his tenure. And I committed on his behalf, and I have no
doubt that he would so state himself, that he would not seek
or accept a pardon.
I take Counsel Mr. Charles Ruff at his words. Once the President
leaves office, he will be subject to the same prosecutorial and
judicial review that all Americans face.
Mr. Chief Justice, now that we are at the end of this divisive and
unpleasant experience, what have we learned?
We have learned that the Constitution works. The Framers made it
clear that the President should only be impeached and removed from
office in cases where he becomes a threat to the government and the
governed. The President's acquittal will uphold the sanctity of the
office and prevent a weakening of the balance of powers that protects
our individual rights and liberties.
We have reaffirmed the principle that no man is above the law. While
I believe that the President is not guilty of high crimes and
misdemeanors in this court of impeachment, he will be subject to legal
sanction in other forums when he becomes a private citizen.
Mr. Chief Justice, the President's misdeeds will affect his standing
in history. But they do not justify the first removal of a President of
the United States from the office to which he was elected by the
American people. When my name is called on the roll, I will vote ``not
guilty'' on both articles of impeachment.
Mr. ALLARD. As we all know, this impeachment trial has been a
difficult process for the Senate and for our nation.
As this trial draws to a close of each of us has the solemn duty of
voting our conscience according to the dictates of the Constitution. I
do not take this responsibility lightly.
For me, the vote in this trial will be the second most important of
my Congressional career. The only other vote to rank higher was my vote
to authorize the Gulf War and thereby send American soldiers into
combat.
My ultimate goal as we moved into this process was to maintain
precedent and not shatter a very thoughtful process laid out in the
Constitution and within Senate rules.
At the start of this Senate impeachment trial I took an oath to do
impartial justice according to the Constitution and laws. I worked hard
to adhere to that oath, and I pray that I have kept that oath.
This is particularly important to me since much of my thinking in
this case centers on my conclusion that the President has violated his
oath of office.
I have determined to base my decision on the facts of the case, not
the polls, the performance of the economy, the President's popularity
or where he is in his term of office.
Finally, I have felt that if any of the parts of an article
constitute grounds for impeachment, then an affirmative vote on the
article is warranted.
While the Senate is clearly divided on conviction and removal, one
thing we have all learned is the importance of the Constitution.
We may be separated by political party or ideology, but we are united
in our belief in the Constitution as the governing charter of our
republic.
Presidents come and go, and Senators come and go. The Constitution
remains. It is the foundation of our political system.
The Constitution is what preserves the rule of law, and guarantees
that we remain a nation of laws, not of men.
And, as we have all learned, in the impeachment and trial of a
President, the Constitution is the document that directs how we shall
proceed as members of the Congress.
Some have argued that this trial has divided America. In the short
run, yes. But in the long run, it has united us and made us stronger.
We are stronger because we have once again demonstrated that we
determine who shall lead this nation by democratic means, not by force
of arms.
During the past month, I have listened to the evidence and I have
weighed it carefully. It is now time for me to cast my vote and to
explain my reasoning to my colleagues and to my constituents.
We have before us two articles of Impeachment. The first deals with
perjury, the second with obstruction of justice.
The first article alleges that the President violated his
Constitutional oath and his August 17, 1998 sworn oath to tell the
truth before a federal grand jury.
He did so by willfully providing perjurious, false and misleading
testimony in one or more of the following: (1) the nature and details
of his relationship with a subordinate government employee; (2) prior
perjurious, false and misleading testimony he gave in a Federal civil
rights action brought against him; (3) prior false and misleading
statements he allowed his attorney to make to a Federal judge in that
civil rights action; and (4) his corrupt efforts to influence the
testimony of witnesses and to impede the discovery of evidence in that
civil rights action.
In my view the House managers demonstrated that at least three of the
four provisions are true. The physical evidence is there, and the
testimony supports that position.
I realize that with enough lawyers, one can certainly cloud things,
and confuse and distract, but I believe the facts speak for themselves.
To me, once you cut through all the legal details and hours and hours
of argument, this case is very clear. The President lied under oath. He
lied not once, but repeatedly.
On this article, the only question for me is whether it rises to the
level of an impeachable offense. I believe that it does. And this has
certainly been the prior view of the Senate since it has on several
occasions convicted and removed Federal judges for perjury.
Most recently in 1989, when Federal District Judge Nixon was
convicted and removed from office for ``knowingly and contrary to his
oath mak[ing] a material false or misleading statement to a grand
jury.''
Here the judge's violation of the oath ``to tell the truth, the whole
truth, and nothing but the truth'' was deemed an impeachable offense. I
simply cannot justify a different standard for the President.
Some have argued that the standard for him should be lower because he
is elected by the people, while federal judges are appointed by the
President and confirmed by the U.S. Senate to serve for life. While I
respect those who hold this view, I cannot agree with it.
I hold the President to a higher standard because he is the chief law
enforcement official of the nation. If he is above the law, then we
have a double standard; one for the powerful, and one for the rest.
Now let me address the second article. The charge is that the
President violated his Constitutional oath in that he prevented,
obstructed, and impeded the administration of justice.
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Obstruction of justice is clearly an impeachable offense. History and
prior practice support this view, and it seems that many members of
this body agree that obstruction does warrant removal from office.
The question then is whether the House managers have demonstrated
obstruction of justice. I believe that they have.
When we review the witness depositions of Monica Lewinsky, Vernon
Jordan, and Sidney Blumenthal, we compare those with the depositions of
the President, and when we review all the evidence gathered and
presented by the House managers, and by the independent counsel and the
grand jury, there are at least four areas of obstruction by the
President.
These relate to the encouraging of a false affidavit, the concealment
of gifts, the assistance in employment, and the attempt to refresh the
memory of his Secretary Betty Currie which done a second time several
days later is pure and simple trying to influence her testimony.
While we may never know with absolute certainty what occurred, the
evidence is overwhelming that the President took numerous actions
designed to impede the administration of justice.
I am also of the view that if the President committed perjury, then
he obstructed justice. Perjury is a form of obstruction of justice.
I will therefore vote for conviction on both articles. I don't
believe I will be voting to undo an election. We have a process of
succession to the Presidency which maintains control in the Vice
President of the same party with the same agenda.
Let me now explain why I feel conviction is so important in this
case. It has to do with the roll of the oath in our society. This is
why the President's removal is necessary to protect the republic.
When I was sworn in as a United States Senator I took the following
oath to uphold the Constitution as did each one of you:
I do solemnly swear that I will support and defend the
Constitution of the United States against all enemies,
foreign and domestic; that I will bear true faith and
allegiance to the same; that I take this obligation freely,
without any mental reservation or purpose of evasion, and
that I will well and faithfully discharge the duties of the
office on which I am about to enter. So help me God.
I took the same oath on three occasions when I served in the U.S.
House of Representatives. The President takes a similar oath when he
enters office:
I do solemnly swear that I will faithfully execute the
Office of President of the United States, and will to the
best of my ability, preserve, protect and defend the
Constitution of the United States.
Both of these oaths are required by the Constitution.
Article VI of the Constitution requires that all Senators,
Representatives, Members of the State Legislatures, and all executive
and judicial Officers of the United States and the States shall be
bound by oath or affirmation to support the Constitution. The oath of
office lies at the center of this impeachment debate.
As George Washington stated in his Second Inaugural Address on March
4, 1793:
Previous to the execution of any official act of the
President the Constitution requires an oath of office. This
oath I am now about to take, and in your presence: That if it
shall be found during my administration of the Government I
have in any instance violated willingly or knowingly the
injunctions thereof, I may (besides incurring constitutional
punishment) be subject to the upbraidings of all who are now
witnesses of the present solemn ceremony.
The sworn oath is central not only to our Constitution, but also to
the administration of justice. Our legal system would not function
without it.
Witnesses in trials swear under oath to ``tell the truth, the whole
truth, and nothing but the truth.''
Similarly, parties in civil lawsuits answer written questions or
``interrogatories'' put to them by their opponents. All answers are
given under penalty of perjury. The answering party must sign a
statement attesting to the truthfulness of the answers.
Testimony before a federal grand jury is given under oath, with the
witness swearing to ``tell the truth, the whole truth, and nothing but
the truth.'' And the citizens who sit on a grand jury take an oath to
seek the truth.
The Federal Rules of Evidence make reference to the importance of the
oath in our judicial system.
Rule 603 states that the oath is ``calculated to awaken the witness'
conscience and impress the witness' mind with the duty'' to tell the
truth.
The Supreme Court has commented in a number of cases on the question
of perjury. In the 1975 case of United States v. Mandujano the Court
opinion noted:
In this constitutional process of securing a witness'
testimony, perjury simply has no place whatever. Perjured
testimony is an obvious and flagrant affront to the basic
concepts of judicial proceedings. Effective restraints
against this type of egregious offense are therefore
imperative.
In the much earlier 1937 case of United States v. Norris the Court
observed:
There is occasional misunderstanding to the effect that
perjury is somehow distinct from ``obstruction of justice.''
While the crimes are distinct, they are in fact variations on
a single theme: preventing a court, the parties, and the
public from discovering the truth. Perjury, subornation of
perjury, concealment of subpoenaed documents, and witness
tampering are all forms of obstruction of justice.
As the House prosecutors have argued, the principle of ``Equal
Justice Under Law'' is at the very heart of our legal system.
In order to survive it requires not only an impartial judiciary and
an ethical bar, but also a sacred oath. Without the sanctity of the
oath, ``Equal Justice Under Law'' cannot be guaranteed.
In addition to our legal system, other sectors of our society rely on
oaths to ensure truthfulness and uphold values.
At a very early age we frequently ask our young people to take an
oath: The Boy Scout Oath is as follows:
On my honor I will do my best
To do my duty to God and my country
and to obey the Scout Law;
To help other people at all times;
To keep myself physically strong,
mentally awake, and morally straight.
And the Girl Scout Promise:
On my honor, I will try:
To serve God and my country,
To help people at all times,
And to live by the Girl Scout Law.
Members of our armed forces take the following oath of enlistment:
I do solemnly swear that I will support and defend the
Constitution of the United States against all enemies,
foreign and domestic; that I will bear true faith and
allegiance to the same; and that I will obey the orders of
the President of the United States and the orders of the
officers appointed over me, according to regulations and the
Code of Military Justice. So help me God.
Police officers, local officials and members of many civic
organizations take an oath.
What is the purpose of an oath, and why do we rely on an oath in so
many sectors of our society?
The oath in legal proceedings is designed to ensure truthfulness.
The oath taken by public officials and the military is designed to
uphold the Constitution and preserve the rule of law.
The oath taken by scouts and members of civil organizations is
designed to encourage values and good citizenship.
A violation of these oaths is taken seriously, and is often punished
under the law. Why? To protect the organization, to protect the
government, to protect the republic.
The President's oath is the most important oath any person takes in
our Constitutional system, If that oath can be ignored it will set a
very damaging precedent for our society.
Throughout this impeachment process there have been many proposals
concerning the best means of resolution.
At each turn however, Members of the Congress have ultimately
recognized that the appropriate path to take is the path laid out in
the Constitution. That path was a full trial in the U.S. Senate.
I am proud to have been among those who argued for a trial.
Whatever the outcome, I will leave this process confident that the
system has worked. While I may disagree with the final vote, I will
respect that vote and I will urge that we move forward united and
determined to do the people's business.
Mr. McCONNELL. Mr. Chief Justice, as the senior Senator from
Kentucky, it is my distinct privilege today to rise and speak at the
desk formerly occupied by one of the greatest Senators in
[[Page S1563]]
the history of our country and the greatest Senator from the
commonwealth of Kentucky: Henry Clay.
Henry Clay is best remembered for two things: (1) the Compromise of
1850, and (2) a famous statement he made after being told that
advocating the Compromise of 1850 would doom his chances for the
presidency. At that critical moment Clay replied: ``I had rather be
right than be President.''
In many respects, William Jefferson Clinton had a similar choice over
the past several months. He could do the right thing. Or he could cling
to his Presidency--regardless of the costs and regardless of the
consequences. Consequences to his family, to his friends, to his aides,
to his Cabinet, and, most importantly, to his country.
Time after time, the President came to a fork in the road. Time after
time, he had the opportunity to choose the noble and honorable path.
Time after time, he chose the path of lies and lawlessness--for the
simple reason that he did not want to endanger his hold on public
office.
Nowhere is the President's cold, calculated choice more clear than in
the private conversation he had with his confidant and long-time
advisor, Dick Morris, just after he raised his right hand to God and
testified under oath in a civil rights lawsuit that he had not had any
sexual relations with a young intern named Monica Lewinsky.
After that critical denial, the President did what he does best: he
put his finger to the wind to determine which path he should take. He
asked Mr. Morris to conduct a poll to determine whether the American
people would forgive him for adultery, for perjury, and for obstruction
of justice. Morris came back with bad news.
The public, in Morris's words was ``just not ready for it.'' They
would forgive him for adultery, but not for perjury and obstruction of
justice.
The President then faced a fundamental choice. He could tell the
truth--and admit that he perjured himself in the Jones suit. Or he
could cling to public office--and deny, delay and obstruct.
The choice for President Clinton was clear. He told Morris: ``Well,
we just have to win.''
And, thus the course was charted. The President would seek to win at
any cost. If it meant lying to the American people. If it meant lying
to his Cabinet. If it meant lying to a federal grand jury. If it meant
tampering with witnesses and obstructing justice. If it meant falsely
branding a young woman with the scarlet labels of liar and ``stalker.''
The name of the game was winning. Winning at any cost.
Based on the evidence before the Senate, I want to walk you down the
road that Bill Clinton has traveled these past several months. That
twisted, tortured road that he has forced the American people and their
government to plod along--for what seems to many of us like an
eternity.
Crossroads #1: An Illicit Relationship with a Young Intern
The first fork in the President's road came on November 15, 1995,
when he met a young, White House intern named Monica Lewinsky. He could
be her President. He could be her boss. He could even be her friend.
Or, he could choose to be in a relationship with her that was clearly
inappropriate.
The President chose the wrong path. As we heard Ms. Lewinsky testify,
on the day of their first meeting, which also happened to be the day of
their first sexual encounter, President Clinton looked at Ms.
Lewinsky's intern pass, tugged on it and said, ``This is going to be a
problem.''
But the President persisted down that problematic path. He had
approximately 10 more sexual encounters with Ms. Lewinsky over the next
21 months.
It is important, however, to note that had the President stopped
there, we would not be here. At that point, the President's defenders
could have credibly argued, ``it's a private matter; it's just about
sex.''
But, Bill Clinton didn't stop there.
Crossroads #2: A Job and an Affidavit and Gifts
In December of 1997, the President came to another fork. At that
time, he learned the following critical facts:
1. Ms. Lewinsky had been placed on the witness list in the Jones
case;
2. Judge Susan Webber Wright had ordered the President to provide
information concerning any government employee with whom he had engaged
in sexual activity; and
3. Ms. Lewinsky had been served with a subpoena and ordered to
produce any gifts she had received from the President.
At this point, the President had a choice. He could tell Ms. Lewinsky
to obey the law, tell the truth, and turn over the gifts. Or, he could
not.
Again, President Clinton chose the path of lies and deceit. Let's
again, hear this account from Ms. Lewinsky:
``[I]t wasn't as if the President called me and said, ``You
know, Monica, you're on the witness list, this is going to be
really hard for us, we're going to have to tell the truth . .
. And by him not calling me and saying that, you know, I knew
what that meant. . . .
[A]s we had on every other occasion and every other
instance of this relationship, we would deny it.''
The evidence indicates that the President was not interested in the
truth, but rather, was only interested in getting Ms. Lewinsky to sign
a false affidavit and getting her a job in New York where, from the
President's way of thinking, she was less apt to be contacted by the
Jones lawyers.
I must say that I am baffled at how the President of the United
States--the leader of the free world--was intimately involved in both
of these efforts. The evidence indisputably establishes that the
President worked with his close friend Vernon Jordan to secure: (1) a
job offer for Ms. Lewinsky in New York, and (2) a lawyer for Ms.
Lewinsky to prepare and file her false affidavit. As Mr. Jordan's
testimony made clear, his efforts on behalf of Ms. Lewinsky were at the
behest of the President.
The evidence also indicates that during this same time period the
President participated in a scheme to conceal gifts in the Jones civil
rights suit. Ms. Lewinsky's testimony is clear that she met with the
President on December 28 and suggested to him that she could ``put away
or maybe give to Betty or give to someone the gifts[.]'' Ms. Lewinsky
further testified that later that same day the President's loyal
secretary, Betty Currie, initiated a call to her to pick up the gifts.
I find Ms. Lewinsky's testimony to be credible. Moreover, it is
corroborated by Ms. Currie's cell phone record.
And, of course, the President didn't stop there.
Crossroads #3: False Statements in a Civil Rights Lawsuit
The President came to another fork in the road where he had to decide
whether to testify truthfully under oath regarding his relationship
with Ms. Lewinsky. And, again, the President chose the path of lies and
deceit.
He walked into the deposition room, raised his right hand, swore to
tell the truth, the whole truth, and nothing but the truth, and then
proceeded to give false statements. In a civil case about alleged
sexual misconduct with a subordinate government employee, the President
testified under oath that he never had a ``sexual relationship'', a
``sexual affair'' or ``sexual relations'' with a subordinate government
employee named Monica Lewinsky.
But, again, as egregious as those actions were, had the President
stopped there, we still might not be here.
Crossroads #4: Tampering with a Loyal Secretary
The stakes for President Clinton continued to go higher and higher.
Following his deposition, the President had to decide what to do with
his loyal secretary, Ms. Betty Currie. And, again, the undisputed
evidence shows that the President took the path of lies and deceit.
Contrary to federal obstruction of justice laws and contrary to Judge
Wright's Protective Order instructing President Clinton ``not to say
anything whatsoever about the questions . . . asked, the substance of
the deposition, . . ., [or] any details . . . ,'' President Clinton
left the deposition, went back to the White House, and called Ms.
Currie at home to ask her to come to the White House the next day--
which, I might add, was a Sunday.
At that somewhat surreal Sunday afternoon meeting, the President--in
violation of Judge Wright's Protective Order--told Ms. Currie that he
had been asked several questions about Monica Lewinsky at his
deposition. Then the President--in violation of the federal obstruction
of justice law--fired off a string of fundamentally declarative
statements to his secretary.
[[Page S1564]]
``You were always there when she was there, right? We were
never really alone.
You could see and hear everything.
Monica came on to me, and I never touched her, right?
She wanted to have sex with me and I couldn't do that.''
And, of course, the President didn't stop there. According to Ms.
Currie, the President again called her into the Oval Office a few days
later, and again, repeated the same false statements to her that he had
made under oath in his civil deposition.
Crossroads #5: False Statements to Senior Officials and to the American
People
The winding road continued its perilous twists and turns. The
President next came to a point where he had to decide whether to tell
the truth to his Cabinet, his top aides, and, most importantly, to the
American people.
Again, the President rejected the right path, telling his Cabinet and
staff that the allegations were untrue. He claimed to his then-Deputy
Chief of Staff, John Podesta, for example, that he ``never had sex with
[Ms. Lewinsky] in any way whatsoever.'' Specifically, he told Podesta
that ``they had not had oral sex.'' And, the President admits in his
grand jury testimony that he knew that his aides could be called to
testify before the grand jury. Ultimately, his top aides were called to
testify, and they repeated his lies.
And, as everyone in America knows, the President lied to the nation.
I do not need to recite the defiant, indignant, finger-wagging denial
that the President gave to 270 million Americans who had placed their
trust in him as the chief law enforcement officer of this land.
But, it didn't have to go any further. I think that there's still a
chance that had the President stopped there at that awful, disgraceful
moment, we would not be here, today.
Crossroads #6: False Statements to the Grand Jury
On August 17, 1998, the President came to the most important
crossroads. He stood before a federal criminal grand jury--a federal
criminal grand jury that was trying to determine whether he had
committed perjury and obstructed justice. He had one last chance to do
the right thing. He could tell the truth, the whole truth, and nothing
but the truth to the grand jury. Or, he could commit perjury.
Again, President Clinton chose the wrong path. During that criminal
probe, the President admitted to an ``inappropriate'' relationship with
Ms. Lewinsky, but continued to falsely deny ever having sexual
relations with her, in the face of corroborating evidence that included
an undisputed DNA test and the testimony of Ms. Lewinsky and two of her
therapists.
The President's strained, persistent, and--in the words of his own
lawyer--``maddening'' denials of the obvious were blatantly and
patently false.
The President also declared under oath to the grand jury that his
post-deposition coaching of Betty Currie about his relationship with
Monica Lewinsky was a mere attempt to refresh his ``memory about what
the facts were.'' This statement is also blatantly and patently false.
In fact, there is no reasonable interpretation that would make the
President's statements about coaching Ms. Currie to be true. Ms. Currie
was not always there. She could not always see and hear everything. She
could not know whether the President ever touched Ms. Lewinsky. And,
she did not know whether Ms. Lewinsky ever had sex with the President.
It is difficult to comprehend how the President could be refreshing his
own memory through the act of making false statements to a potential
witness.
Moreover, it is my opinion that these false statements by the
President under oath were clearly material. A false and misleading
denial of a sexual relationship with a subordinate government employee
and a false and misleading denial of tampering with a potential witness
goes to the very heart of whether the President obstructed justice or
committed perjury.
Based on the evidence in the record, I am firmly convinced that the
President has committed both perjury and obstruction of justice. He
lied to the grand jury about the nature of his relationship with Ms.
Lewinsky. He lied to the grand jury about coaching his loyal secretary,
Betty Currie. He obstructed justice by encouraging Ms. Lewinsky to give
false testimony, by participating in a scheme to conceal gifts that
were subpoenaed, by tampering with his secretary on two occasions, and
by lying to top aides that he knew could be called to testify before
the grand jury.
High Crimes and Misdemeanors
The Senate's inquiry, however, does not end there. We must decide
whether perjury and obstruction of justice are high crimes and
misdemeanors. Based on the Constitution, the law, and the clear Senate
precedent, I conclude that these offenses are high crimes and
misdemeanors.
Senate Precedent
First, Senate precedent establishes that false statements under oath
by a public official are high crimes and misdemeanors. In 1986, I sat
on the impeachment committee that heard the evidence against Judge
Harry Claiborne. After hearing the evidence, I, along with an
overwhelming number of my colleagues, concluded that Judge Claiborne
had made false statements under the pains and penalties of perjury by
failing to disclose certain amounts of income on his tax forms. The
Senate--understanding the gravity of a public official making false
statements under oath--voted to remove Judge Claiborne from office.
In 1989, the Senate held impeachment trials against Judge Hastings
and Judge Nixon--both of whom had been accused of making false
statements under oath. In Judge Nixon's case, the false statements were
made directly to a criminal grand jury. The Senate--again understanding
the gravity of a public official, who has sworn to uphold the laws,
violating those very laws by lying under oath--voted to remove Judge
Hastings and Judge Nixon from office.
My colleagues on both sides of the aisle had no hesitation about
removing these federal officials for making false statements under
oath. As Senator Herb Kohl explained:
``One might argue, as Judge Nixon does, that his false
statements were not material. . . . But Judge Nixon took an
oath to tell the truth and the whole truth. As a grand jury
witness, it was not for him to decide what would be material.
That was for the grand jury to decide. . . .
So I am going to vote `guilty' on articles I and II. Judge
Nixon lied to the grand jury. He misled the grand jury. These
acts are criminal and warrant impeachment.''
I think Senator Kohl's statements accurately reflect the sentiment of
the 89 Senators who voted to convict Judge Nixon for lying to a federal
grand jury. And, I might add, one of those senators voting to remove
Judge Nixon for perjury was then-Senator, now-Vice President Al Gore.
Of those 89 Senators, 48 of us are still here in this distinguished
body. Will we send the same message about the corrosive impact of
perjury on our legal system or will we simply lower our standards for
the nation's chief law enforcement officer?
Constitution and Federal Law
Second, Article II, Section 4 of the Constitution plainly sets forth
that bribery is a high crime and misdemeanor, and our federal laws tell
us clearly that perjury and obstruction of justice are equivalent
offenses to bribery. In fact, the federal sentencing guidelines
actually mandate a harsher punishment for perjury than for bribery and
a harsher punishment for obstruction of justice than for bribery. So, I
am completely and utterly perplexed by those who argue that perjury and
obstruction of justice are not high crimes and misdemeanors.
If federal law mandates a harsher penalty for perjury and obstruction
of justice, how can this Senate--who drafted, debated, and passed those
federal laws--now argue that perjury and obstruction of justice are
lesser offenses than bribery?
Listen to the Supreme Court's declaration: ``[f]alse testimony in a
formal proceeding is intolerable.'' ABF Freight System v. NLRB, 510
U.S. 317, 323 (1994). Moreover, the high Court has labeled perjury as
an ``egregious offense,'' United States v. Mandujano, 425 U.S. 564, 576
(1976), calling it ``an obvious and flagrant affront to the basic
concepts of judicial proceedings.'' Id.
Even the President's own Justice Department understands that our
nation of laws cannot tolerate perjury and obstruction of justice.
President Clinton and his Justice Department have prosecuted
approximately 600 cases of perjury since he came to office. And
[[Page S1565]]
today--as we debate whether perjury is a serious offense--over 100
people are locked behind bars in federal prison for committing the
criminal act of perjury.
Perjury and obstruction hammer away at the twin pillars of our legal
system: truth and justice. Every witness in every deposition is
required to raise his or her right hand and swear to tell the truth,
the whole truth, and nothing but the truth, so help them God. Every
witness in every grand jury proceeding and in every trial is required
to raise his or her right hand and swear to tell the truth. Every
official declaration filed with the court is stamped with the express
affirmation that the declaration is true. In the words of our nation's
first Supreme Court Chief Justice, John Jay: ``if oaths should cease to
be held sacred, our dearest and most valuable rights would become
insecure.''
The facts clearly show that the President did not value the sacred
oath. He was interested in saving his hide, not truth and justice. I
submit to my colleagues that if we have no truth and we have no
justice, then we have no nation of laws. No public official, no
president, no man or no woman is important enough to sacrifice the
founding principles of our legal system.
On this point, I am proud to quote Justice Louis Brandeis--a native
of my hometown of Louisville and the man for whom the University of
Louisville Law school is named:
``In a government of laws, existence of the government will
be imperiled if it fails to observe the laws scrupulously.
Our government is the potent, the omnipresent teacher. For
good or for ill, it teaches the whole people by its example.
Crime is contagious. If the government becomes a lawbreaker;
it breeds contempt for law; it invites every man to become a
law unto himself; it invites anarchy.''
William Jefferson Clinton is not and should not be a law unto
himself.
Crossroads for the United States Senate
President Clinton's decisions have led the United States Senate to
its own critical crossroads. And, now we must choose our path.
We can do the right thing. Or we can lower our standards and allow
Bill Clinton to cling to public office--regardless of the consequences
to our nation, to our system of justice, and to our future generations.
More than 150 years ago, Alexis de Tocqueville wisely observed that
``man rarely retains his customary level in very critical
circumstances; he rises above or sinks below his usual condition, and
the same thing is true of nations.''
So what will we do this day? Will we rise above or will we sink
below? Will we condone this President's conduct or will we condemn it?
Will we change our standards or will we change our President?
An Earlier Crossroads for the Senate
As most of you will recall, the Senate faced a similar choice just a
few short years ago. It was one of our own who had clearly crossed the
line. It was one of our own who had engaged in sexual misconduct and
obstruction of justice.
He, like President Clinton, was an intelligent and accomplished man.
Senator Carol Moseley-Braun called him ``brilliant'' and said he was a
man who ``ha[d] certainly been fair.'' But, that brilliant and fair man
had crossed the line.
At that critical moment in Senate history, we could have taken the
wrong path and called it a private matter, saying ``it's just about
sex.'' But, my friend, Senator Dianne Feinstein was right when she
said: ``This is not private, personal conduct. This is conduct that
took place in public service, and many of the people involved are
themselves Federal employees.''
At that moment, the Senate could have said, ``He lied about his
conduct to everybody, so lying in an official proceeding is ok.'' Or,
we could have said, ``He was covering it up before the investigation,
so it's irrelevant and immaterial that he's covering it up during the
investigation.''
The Senate could have said, ``We can't overturn a federal election.
After all, he'll be out of office in a few years.'' Or: ``He may be
prosecuted in the courts, so there's no reason for us to act.''
And, finally, the United States Senate could have defended its own
member by arguing that, ``A United States Senator should be held to a
lower standard than others, not a higher standard. After all, there are
only 100 U.S. Senators in the country. Any one of them is just too
precious to lose.''
But, we didn't say any of those things. Those doubletalking defenses
were reserved exclusively for President Clinton.
During the Packwood debate, we made the tough choice. And, I have to
say, that decision was one of the most difficult things I have ever had
to do in my career in public service. To recommend expelling from the
United States Senate a colleague, a member of my own party, and most
importantly, a friend with whom I had served in the Senate for over a
decade.
We sent a clear message to the nation that no man is above the law.
That no man is so important to the well-being of our strong and
prosperous nation that we have to compromise the fundamental, founding
principles of truth and justice. We chose to rise above, not sink
below. Rather than change our standards, we changed our Senator.
Let me also make a political point, here. We Republicans were aware
during the Packwood debate that we would likely lose that Senate seat
if Senator Packwood was removed from office. So, we had a choice:
Retain the Senate seat or retain our honor. We chose honor, and never
looked back.
I think that the United States Senate has a clear choice today. Do we
want to retain President Clinton in office, or do we want to retain our
honor, our principle, and our moral authority?
For me, and for many members in my impeachment-fatigued party, I
choose honor.
Losing Balance
I want to close my remarks today with an insightful and fascinating
statement from Richard Nixon. A few years after his tragic downfall,
President Nixon explained:
It's a piece of cake until you get to the top. You find you
can't stop playing the game the way you've always played it.
So you are lean and mean and resourceful, and you continue to
walk on the edge of the precipice, because over the years,
you have become fascinated by how closely you can walk
without losing your balance.
Ladies and gentleman of this fine and distinguished body, I submit to
you that William Jefferson Clinton has lost his balance. He has lost
his sense of right and wrong. Of truth and justice. And, by doing so,
he has--to paraphrase Alexander Hamilton in Federalist No. 65--abused
and violated the trust of the American people.
Again, let me quote my esteemed colleague, Senator Dianne Feinstein,
who said just a few months ago: ``my trust in his credibility has been
badly shattered.''
Senator Feinstein is not an island on this issue of shattered trust.
There are many others who have expressed similar sentiments. A recent
poll confirms what we all know, that is, the American people do not
trust their Commander-in-Chief. A majority of Americans believe
that President Clinton has lied to the country and that he will lie to
the country again.
The New York Times, which I rarely ever quote, had this to say about
the President's violation of the public trust:
``The American President is a person who sometimes must ask
people in the ranks to die for the country. The President is
a person who asks people close around him to serve the
government for less money than their talents would bring
elsewhere. The President sometimes requires that people out
in the country sacrifice their dollars or their convenience
for national goals. All he is asked to provide in return is
trustworthiness, loyalty and judgment. . . . President
Clinton has failed that simple test abjectly, not merely with
undignified private behavior in a revered place, but with his
cavalier response to public concern.''
In 1829, at his home in Lexington, Kentucky, Henry Clay opined that
``[g]overnment is a trust, and the officers of the government are
trustees[.]'' I believe that fundamental principle to be true, and I
believe that William Jefferson Clinton has abused and violated that
public trust.
His cold, calculated actions betrayed the trust vested in him by the
American people and the high office of the presidency. The President of
the United States looked 270 million Americans in the eye, and lied--
deliberately and methodically. He took an oath to faithfully execute
the laws of this nation, and he violated that oath. He
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pledged to be the nation's chief law enforcement officer, and he
violated that pledge. He took an oath to tell the truth, the whole
truth, and nothing but the truth, and he willfully and repeatedly
violated that oath.
I firmly believe that the evidence establishes beyond a reasonable
doubt that William Jefferson Clinton made statements to the federal
grand jury regarding the nature of his relationship with a subordinate
government employee and the purpose of his post-deposition conversation
with a loyal secretary that were false, misleading, and perjurious, and
warrant removal from office. Thus, I find the President guilty under
Article I.
I believe with equal conviction that the evidence establishes beyond
a reasonable doubt that William Jefferson Clinton willfully engaged in
a deliberate course of conduct designed to delay, impede, cover up, and
conceal the existence of evidence and testimony relating to a Federal
civil rights action against him, and that this conduct warrants removal
from office. Thus, I find the President guilty under Article II.
Mr. KENNEDY. Every four years, citizens of our country exercise one
of the most important rights of our democracy--the right to vote for
the President of the United States. This constitutional privilege is
valued by all Americans and envied by millions around the world. It
proves that the will of the majority will prevail, and that power will
be transferred peacefully through the election process from one
President to the next, time and again.
The essence of our democracy is the power of the right to vote. Many
of our greatest battles in the Senate and the country in recent decades
have been waged to extend and protect that right.
I think especially of the Voting Rights Acts, which have been at the
heart of our civil rights debates. I think of our success in 1970 in
lowering the voting age to 18, so that young Americans who were old
enough to fight in the Vietnam War would be old enough to vote about
that war, which America never should have fought. I think of the
Supreme Court's great decision on one person, one vote, and our efforts
in Congress to protect it.
I also think of the success of democracy in other lands--in Chile and
Argentina and other nations in our hemisphere--and in Greece, in South
Africa, and in many other countries.
The Framers of the Constitution clearly understood the fundamental
place of the right to vote in the new democracy they were creating.
They clearly did not intend the Impeachment Clause to nullify the vote
of the people, except in the most extraordinary cases of great danger
to the nation.
The entire history of the debates at the Constitutional Convention
demonstrates their clear intent to limit impeachment as narrowly as
possible, to prevent a willful partisan majority in Congress from
undermining the right to vote and the power of the President the people
had elected.
The Framers of the Constitution also made clear that the President
was not to be subordinate to the Senate or the House of
Representatives. The new government they created was based on another
fundamental principle as well--the principle of separation of powers
among the three coequal branches of government--the Executive Branch,
the Legislative Branch, and the Judicial Branch. They specifically did
not create a parliamentary system of government, in which the President
would serve at the pleasure of Congress.
In their wisdom, the Framers recognized that in certain extreme
cases, a narrow exception to the orderly transfer of Presidential power
through national elections every four years was necessary to protect
the nation from an abusive President. And so they created the
impeachment process, by which the President could be removed from
office by the Senate and the House of Representatives in extreme cases
where the President had committed ``Treason, Bribery, or other high
Crimes and Misdemeanors''.
The Framers of the Constitution made clear that the orderly transfer
of Presidential power through national elections was to be scrupulously
followed. They took great care to guarantee that this transfer would
rarely, if ever, be undermined by the impeachment of the President.
Removal of the President would come only after the House of
Representatives--with the sole power to impeach--and the Senate--with
the sole power to conduct a trial--found that the President had
committed ``Treason, Bribery, or other high Crimes and Misdemeanors,''
a term borrowed from the English impeachment experience.
Clearly, the Framers intended the House and the Senate to use the
impeachment power cautiously, and not wield it promiscuously for
partisan political purposes. Sadly, in this case, Republicans in the
House of Representatives, in their partisan vendetta against the
President, have wielded the impeachment power in precisely the way the
Framers rejected--recklessly and without regard for the Constitution or
the will of the American people.
First, Republicans on the House Judiciary Committee essentially
swallowed the referral of Independent Counsel Kenneth Starr whole,
without seriously questioning it or calling any witnesses. They used
the referral as the foundation for Articles of Impeachment which were
released to the public before the White House counsel had an
opportunity to complete their testimony before the Committee.
Why were the House Judiciary Committee and the House of
Representatives on the fast track to impeachment? Because, as House
Manager Hyde told the Senate, ``we were operating under time
constraints which were self-imposed but I promised my colleagues to
finish it before the end of the year. I didn't want to drag it out.''
In the battle between speed and fairness, should speed have prevailed
over fairness? Clearly not. But the lame duck Republican House of
Representatives was bent on acting before the last Congress ended,
fearful that their slimmer majority in the current Congress would not
approve any articles of impeachment at all.
In their most blatant attempt of all to stack the deck against the
President, the House Republican leadership refused to allow a fair vote
on censure as an alternative to impeachment an alternative that would
have ended this unseemly charade two months ago. Instead, Members of
the House were given a single choice--a vote to impeach the President
or do nothing.
After their partisan victory in the House of Representatives, the
House Managers brought their vendetta against the President to the
Senate. They brought thousands of pages of evidence, containing 22
statements by Monica Lewinsky, 6 statements by Vernon Jordan, 3
statements by Sidney Blumenthal, the videotaped deposition of President
Clinton in the Jones case, and the videotaped record of his appearance
before the grand jury. Their opening statements attempted to shed the
most favorable light on the evidence, but it was quickly apparent that
they had not and could not persuade two-thirds of the Senate to remove
the President.
While trying to persuade Senators to convict President Clinton, the
House Managers argued relentlessly for the opportunity to examine
witnesses during the trial. The hypocrisy in the position of the House
Managers on witnesses was obvious. They did not think it was necessary
to call witnesses in the House proceedings. They demeaned the House by
their partisan excesses. But they were shameless in their attempt to
force the Senate to wallow in witnesses.
Our Republican friends have desperately been trying to produce a two-
thirds majority to remove the President from office. But their efforts
have succeeded only in turning a serious constitutional process into a
partisan process that demeaned both the House and the Senate and became
a painful ordeal for the entire country.
In pursuing the allegations of perjury and obstruction of justice,
the House Managers presented an ever changing, constantly shifting list
of charges to the Senate. Veteran prosecutors testified before the
House Judiciary Committee that they would never prosecute such a case,
and that it would be irresponsible for the Senate to attempt to use
these allegations as a basis to remove the President from office.
Some of the allegations of perjury by the House Managers were
laughable. Clearly, it was not perjury for the President to use the
phrase ``certain occasions'' to describe the frequency of
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his contacts with Miss Lewinsky, or to use the word ``occasional'' to
describe the frequency of his telephone conversations with her.
Even the few allegations of perjury and obstruction of justice that
are arguably more serious are far from proven beyond a reasonable
doubt, which is the standard that I believe should be applied by the
Senate in considering the facts of this case. Indeed, I do not believe
they were proved by clear and convincing evidence. But even if any such
allegations were true, they still fall far short of the constitutional
standard required for impeaching a President and removing him from
office.
President Clinton's behavior was wrong. All of us condemn it. None of
us condones it. He failed to tell the truth about it, and he misled the
country for many months. But nothing he did rises to the high
constitutional standard required for impeachment and removal of a
President from office.
I believe that conclusion is required by the Constitution. At the
time of the Constitutional Convention in 1787, the Framers engaged in a
vigorous debate about the role of the President, the new chief
executive they were creating. In addition to determining the basic
powers of the office, many of those at the convention debated whether
or not impeachment should apply at all to the President. As University
of Chicago Law School Professor Cass Sunstein told the House Judiciary
Subcommittee on the Constitution, ``Many of the framers wanted no
impeachment power whatsoever . . . [t]hey suggested that in a world of
separation of powers and election of the President, there was no place
for impeachment. . . . That position was defeated by reference to
egregious hypotheticals in which the President betrayed the country
during war or got his office through bribery. Those are the cases that
persuaded the swing votes that there should be impeachment power.'' In
the end, the Framers reluctantly agreed that there might be limited
circumstances in which a President should be removed from office by
Congress in order to protect the country from great harm, without
waiting for the next election.
Once the Framers concluded that the President could be removed by the
legislature in such cases, they debated the standard for impeachment.
Nine days before the final Constitution was signed, the impeachment
provision was limited only to treason and bribery. George Mason then
argued that the provision was too restrictive, and should be amended to
include the phrase, ``or maladministration.'' But, vigorous opposition
came from others who believed that such a vague phrase would give
Congress too much power to undermine the President. Mason withdrew his
original proposal and substituted the phrase, ``other high Crimes and
Misdemeanors against the State''--a phrase well-known from English law.
The Constitutional Convention adopted the modification by a vote of
eight states to three--confident that only serious offenses against the
nation would provide the basis for impeachment. Later, the Committee of
Style removed the words, ``against the State,'' but because the
Committee had been instructed not to change the meaning of any
provision, the impeachment clause should be interpreted as it was
originally drafted.
The debate surrounding the Impeachment Clause was significant. By
first expanding and then narrowing the clause, the Framers clearly
intended that the President could be removed from office for ``crimes''
beyond treason and bribery, but that he could not be removed for
inefficient administration or administration inconsistent with the
dominant view in Congress. Impeachment was not to be the illegitimate
twin of the English vote of ``No Confidence'' under a parliamentary
system of government. The doctrine of separation of powers was
paramount. The President was to serve at the pleasure of the people,
not the pleasure of the Congress, and certainly not at the pleasure of
a willful partisan majority in the House of Representatives.
As Charles Black stated in his highly regarded work on impeachment,
the two specific impeachable offenses--treason and bribery--can help
identify both the ``ordinary crimes which ought also to be looked upon
as impeachable offenses, and those serious misdeeds, not ordinary
crimes, which ought to be looked on as impeachable offenses . . .''
Using treason and bribery as ``the miners' canaries,'' Professor Black
states that ``high crimes and misdemeanors, in the constitutional
sense, ought to be held to be those offenses which are rather obviously
wrong, whether or not `criminal,' and which so seriously threaten the
order of political society as to make pestilent and dangerous the
continuance in power of their perpetrator.''
The distinguished historian, Professor Arthur Schlesinger, told the
House Judiciary Subcommittee on the Constitution, the ``[e]vidence
seems to me conclusive that the Founding Fathers saw impeachment as a
remedy for grave and momentous offenses against the Constitution;
George Mason said, great crimes, great and dangerous offenses, attempts
to subvert the Constitution.''
In addition to Professor Schlesinger, over 430 law professors and
over 400 historians and constitutional scholars have stated
emphatically that the allegations against President Clinton do not meet
the standard set by the Constitution for impeachment. The scholarly
support for the argument that the charges against President Clinton do
not rise to the level of impeachable offenses--even if they are true--
is overwhelming, and it cannot be ignored.
The law professors wrote, ``[i]t goes without saying that lying under
oath is a very serious offense. But even if the House of
Representatives had the constitutional authority to impeach for any
instance of perjury or obstruction of justice, a responsible House
would not exercise this awesome power on the facts alleged in this
case.''
The historians wrote, ``[t]he Framers explicitly reserved
[impeachment] for high crimes and misdemeanors in the exercise of
executive power. Impeachment for anything else would, according to
James Madison, leave the President to serve `during the pleasure of the
Senate,' thereby mangling the system of checks and balances that is our
chief safeguard against abuses of power . . . Although we do not
condone President Clinton's private behavior or his subsequent attempts
to deceive, the current charges against him depart from what the
Framers saw as grounds for impeachment.''
The House Managers apparently made no attempt to obtain scholarly
support for their opposition. It is a fair inference that they did not
do so because they knew they could not obtain it.
The House Managers argue that because the Senate convicted and
removed three federal judges for making perjurious statements, we must
now convict and remove the President. But, to determine whether or not
President Clinton should be removed from office requires the Senate to
do more than make simplistic analogies to federal judges.
Removal of the President of the United States and removal of a
federal judge are vastly different. The President is unique, and his
role is in no way comparable to the role of the over 900 federal judges
we have today. The impact on the country of removing one of 900 federal
judges is infinitesimal, compared to the impact of removing the only
President we have. And the people elect the President for a specific
four year term, while federal judges are appointed for life, subject to
good behavior. These distinctions are obvious, and they make all the
difference.
Other precedents also undermine the House Managers' insistence that
the Senate is bound to remove President Clinton from office. The House
Judiciary Committee refused on a bipartisan basis to impeach President
Nixon for deliberately lying under oath to the Internal Revenue
Service, although he under reported his taxable income by at least
$796,000. During the 1974 Judiciary Committee debates, many Republican
and Democratic members of the Committee agreed that tax fraud was not
the kind of abuse of power that impeachment was designed to remedy.
Finally, the House Managers argue that President Clinton must be
removed to protect the rule of law and cleanse the office. It is not
enough, they say, that he can be prosecuted once he leaves office. But
protecting the rule of law under the Constitution is not the proper
standard for removal of the President. Before impeaching and convicting
the President, the Senate must find that he committed ``Treason,
Bribery, or other high
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Crimes and Misdemeanors.'' As Professor Laurence Tribe testified before
the House Judiciary Subcommittee on the Constitution, ``[i]f the
proposition is that when the President is a law breaker, has committed
any crime, then the rule of law and the take care clause requires that
one impeach him, then we have rewritten the [impeachment] clause.''
The Constitution has guided our country well for two centuries. The
decision we make now goes far beyond this President. As we decide
whether President Clinton will be removed from office, the future of
the Presidency and the well-being of our democracy itself are at stake.
How will history remember this Congress? The Radical Republicans in
the middle of the 19th century were condemned in the eyes of history
for using impeachment as a partisan vendetta against President Andrew
Johnson. And I believe the Radical Republicans at the end of the 20th
century will be condemned even more severely by history for their
partisan vendetta against President Clinton.
The impeachment process was never intended to become a weapon for a
partisan majority in Congress to attack the President. To do so is a
violation of the fundamental separation of powers doctrine at the heart
of the Constitution. It is an invitation to future partisan majorities
in future Congresses to use the impeachment power to undermine the
President. It could weaken Republican and Democratic Presidents alike
for years to come.
This case is a constitutional travesty. We deplore the conduct of
President Clinton that led to this yearlong distraction for the nation.
But we should deplore even more the partisan attempt to abuse the
Constitution by misusing the impeachment power.
Ms. COLLINS. Mr. Chief Justice, my colleagues, the issue now before
the Senate may well be the most significant of our public careers.
Other than declaring war, it is difficult to imagine a weightier
decision that could come before us than whether to remove the President
of the United States from office.
Our Founders designed impeachment to protect our system of government
against officials who lose their moorings in the law or who endanger
our most basic institutions. They designed it neither as a popular
referendum nor as a mechanism by which--as in parliamentary systems--
the legislature can remove the head of government based on nothing more
than a policy difference. Instead, this process is a check upon rogue
chief executives, designed equally to remove the politically popular
malefactor and to protect the innocent, but unpopular, official. It is
a vital, but extraordinary, remedy that should neither be shunned out
of political expediency nor invoked for political gain.
The question before us is not whether President Clinton's conduct was
contemptible or utterly unworthy of the great office he holds. It was.
The question before us is whether the President has committed an
impeachable offense for which he should be removed from that office.
The Framers thought carefully about where to vest the ultimate power
to remove a president. They chose the United States Senate. This was
not an obvious choice. The power to convict and remove could as easily
have been assigned to a court of law, where a jury would apply the law
to the facts in the ordinary way.
But the Framers gave the power to try impeachments to the Senate.
They did so because they recognized that an impeachment trial should
not be an ordinary trial, requiring an ordinary application of law to
fact. The Framers wanted the Senate to make not only a determination of
guilt, but also a judgment about what is best for our nation and its
institutions.
Throughout this impeachment trial, in order to lessen the ambiguity
in this process, I have sought to find a way to allow the Senate to
express its view of the facts we have so carefully considered for the
past month. The vote we now approach is to convict or acquit. It is a
blunt instrument that does not allow me to express clearly my belief
that President Clinton willfully lied to a federal grand jury, and that
he wrongfully tried to influence testimony and to conceal evidence
related to Paula Jones' lawsuit.
As this case has been argued in this chamber, I have become convinced
that the perjury charges of Article I are not fully substantiated by
the record. The President's grand jury testimony is replete with lies,
half-truths, and evasions. But significantly, not all evasion is lying,
and not all lying is perjury. Even blatantly misleading testimony that
all fair-minded people would consider dishonest may not actually
constitute perjury, as the law defines it.
Time and time again, the attorneys questioning President Clinton
before the grand jury--perhaps out of a misguided sense of deference--
neglected to pin him down as he gave nonresponsive, evasive, confusing,
or simply absurd responses. The only remedy for imprecise answers is
more precise questioning. Unfortunately, this did not occur, and
consequently, the record is too murky to require the President's
removal based on Article I.
The evidence supporting Article II is more convincing. Indeed, the
case presented by the House Managers proves to my satisfaction that the
President did, in fact, obstruct justice in Paula Jones' civil rights
case. While the circumstances surrounding Monica Lewinsky's filing of a
false affidavit are unclear, there is no doubt in my mind that the
frantic efforts to find Ms. Lewinsky a job, the retrieval and
concealment of gifts under the bed of the President's secretary, and,
most egregious, the President's blatant coaching of Betty Currie--not
once, but twice--were clear attempts to tamper with witnesses and
obstruct justice. Indeed, if I were a juror in an ordinary criminal
case, I might very well vote to convict faced with these facts.
Nevertheless, I do not think that the President's actions constitute
a ``high crime'' or ``misdemeanor'' as contemplated by Article II,
Section 4 of the Constitution. This is, I readily acknowledge, a
judgment that can neither be made nor explained with anything
approaching scientific precision. But I can point to two factors that
influence my conclusion.
First, obstruction of justice is generally more serious in a criminal
case, as opposed to a civil case, as it interferes with the effective
enforcement of our nation's laws and not solely with the adjudication
of private disputes. Consistent with this conclusion, the vast majority
of obstruction prosecutions involve underlying criminal actions, and
the statutory penalties are more severe in the context of criminal
trials. This is not to suggest for a moment that we should tolerate
obstruction of justice in civil cases, but only to observe that our
legal system treats it as a less serious offense.
Second, I believe that for impeachment purposes, obstruction of
justice has more ominous implications when the conduct concealed, or
the method used to conceal it, poses a threat to our governmental
institutions. Neither occurred in this case.
Therefore, I will cast my vote not for the current President, but for
the presidency. I believe that in order to convict, we must conclude
from the evidence presented to us with no room for doubt that our
Constitution will be injured and our democracy suffer should the
President remain in office one moment more.
In this instance, the claims against the President fail to reach this
very high standard. Therefore, albeit reluctantly, I will vote to
acquit William Jefferson Clinton on both counts.
In voting to acquit the President, I do so with grave misgivings for
I do not mean in any way to exonerate this man. He lied under oath; he
sought to interfere with the evidence; he tried to influence the
testimony of key witnesses. And, while it may not be a crime, he
exploited a very young, star-struck employee whom he then proceeded to
smear in an attempt to destroy her credibility, her reputation, her
life. The President's actions were chillingly similar to the White
House's campaign to discredit Kathleen Willey.
As much as it troubles me to acquit this President, I cannot do
otherwise and remain true to my role as a Senator. To remove a
popularly elected president for the first time in our nation's history
is an extraordinary action that should be undertaken only when the
President's misconduct so injures the fabric of democracy that the
Senate is left with no option but to oust the offender from the office
the people have entrusted to him.
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President Clinton has written a shameful and permanent chapter of
American history. He alone is responsible for this year of agony that
the American people have endured. I do not, however, take solace in the
prospect of a censure, nor do I take comfort in the possibility that
the President may be prosecuted for his wrongdoing after he leaves
office. Rather, I look to the verdict of history to provide the
ultimate punishment for this president, a verdict that no public
relations gloss or smear campaign can obscure. As Maine's great poet,
Henry Wadsworth Longfellow, wrote in 1874, ``Whatever hath been written
shall remain, nor be erased, nor written o'er again.'' When the history
of the Clinton presidency is written, every book will begin with the
fact that William Jefferson Clinton was impeached, and that will be not
only the ultimate censure but also the final verdict on this sad
chapter in our nation's history.
Mr. HARKIN. A few weeks ago, I used a barnyard term that is quite
known in Iowa to describe what I thought of this case. The longer this
case has gone on, the more I am convinced this characterization is
correct.
This case should never have been brought before the Senate. I think
it is one of the most blatant partisan actions taken by the House of
Representatives since Andrew Johnson's case was pushed through by the
radical Republicans of his time.
I think it is important for us to take a look at how this case got
here. One might ask why is it important how it got here?
Well, if you believe that the end justifies the means, it is probably
not very important. But if you believe the end doesn't justify the
means, that those who are charged with enforcing the law cannot break
the law in order to bring someone to the bar of justice, and if you
believe the rule of law applies not only to the defendant, the
President in this case, but also to the prosecutors and those sworn to
uphold that rule of law, then it is important to look at how the case
got here.
First, we have a statute, the independent counsel statute which at
best I believe is flawed and at worst unworkable which allows someone
to be targeted without regard to money or time. In fact, it has
essentially created a fourth branch of Government with no checks or
balances.
Again, the conduct, I want to point out, of Ken Starr does not excuse
the behavior of the President but has everything to do with our
perspective on the case and how we approach it, how we weigh our
decision. We are not jurors, we are judges and the supreme Court of
Impeachment, which has some of the elements of a court of equity. If
somebody approaches this court, they better do it with clean hands.
Where the political motivation is so blatant, as it has been in this
case, I think we in the Senate should have our guard up, not only on
what the case is about, but how it got here. This is the sort of
political impeachment case that Madison and Hamilton wanted to avoid,
and I refer you to Federalist Paper No. 65, and Hamilton warned the
greatest danger would be ``that the decision will be regulated more by
the comparative strength of parties than by the real demonstrations of
innocence or guilt.'' That is why he argued for it to come to the
Senate and have a two-thirds requirement in order to convict and
remove.
So in the beginning, Ken Starr is picked by a three-judge panel to
investigate Whitewater. Whitewater turns into Travelgate. Travelgate
turns into Filegate, and then one wonders, how did Monica Lewinsky ever
drop in on this?
If we look back, when Ken Starr was a private attorney, in 1994, he
had dealings with Paula Jones' attorneys in terms of her then-pending
lawsuit. So he had prior involvement himself with the Paula Jones case.
So the Paula Jones case proceeds forward. And in October of 1997, an
entity called the Rutherford Institute, funded by conservative forces
in the United States, found some new attorneys for Paula Jones and
became heavily involved in the case.
Now some time around that time, Linda Tripp, with whom Monica
Lewinsky had shared her most intimate details of her involvement with
the President, begins talking with these attorneys. That is sort of the
status of the case as of December 1997.
And here I ask unanimous consent to have printed an article from the
New York Times, dated January 24, which more or less documents this.
There being no objection, the article was ordered to be printed in
the Record, as follows:
[From the New York Times, Jan. 24, 1999]
Quietly, Team of Lawyers Who Disliked Clinton Kept Jones Case Alive
(By Don Van Natta Jr. and Jill Abramson)
Washington.--This time last year, Hillary Rodham Clinton
described, in a now-famous appearance on the NBC News program
``Today,'' how a ``vast right-wing conspiracy'' was trying to
destroy her husband's Presidency.
As it turns out, some of the most serious damage to Bill
Clinton's Presidency came not from his high-profile political
enemies but from a small secret clique of lawyers in their
30's who share a deep antipathy toward the President,
according to nearly two dozen interviews and recently filed
court documents.
While cloaking their roles, the lawyers were deeply
involved--to an extent not previously known--for nearly five
years in the Paula Jones sexual misconduct lawsuit. They then
helped push the case into the criminal arena and into the
office of the independent counsel, Kenneth W. Starr.
The group's leader was Jerome M. Marcus, a 39-year-old
associate at the Philadelphia law firm of Berger & Montague,
whose partners are major contributors to the Democratic
Party.
Although Ms. Jones never met him or knew he had worked on
her behalf, Marcus drafted legal documents and was involved
in many of the important strategic decisions in her lawsuit,
according to billing records and interviews with other
lawyers who worked on the case. As much as any of Ms. Jones's
attorneys of record, Marcus helped keep Ms. Jones's case
alive in the courts.
Marcus recruited others to assist his efforts, including
several friends from the University of Chicago Law School.
One of those who was approached, Paul Rosenzweig, briefly
considered doing work for Ms. Jones in 1994, according to
billing records and interviews, but decided not to. In
November 1997, Rosenzweig joined Starr's office, where he and
Marcus had several telephone conversations about the Jones
case.
It was Rosenzweig who fielded a ``heads-up'' phone call
from Marcus on Jan. 8, 1998, that first tipped off Starr's
office about Monica S. Lewinsky and Linda R. Tripp. The tip
was not mentioned in the 445-page Starr report, even though
the information revived a moribund Whitewater investigation
that would not have produced, it now seems, an impeachment
referral to Congress.
Marcus did make his views known publicly last month when he
wrote an impassioned commentary in The Washington Times
urging the impeachment of Clinton. ``The cancer is deadly,''
Marcus wrote. ``It, and its cause, must be removed.'' He
identified himself in the newspaper simply as ``a lawyer in
Philadelphia.''
In his long efforts to promote Ms. Jones's lawsuit, and
helping Mrs. Tripp find her way to Starr, Marcus found other
allies, including another Chicago law classmate, Richard W.
Porter. Porter had worked as an aide to former Vice President
Dan Quayle and was a partner of Starr's at the law firm of
Kirkland & Ellis, based in Chicago.
George T. Conway 3d, a New York lawyer educated at Yale,
shared Marcus's low view of President Clinton. When the Jones
case led to Ms. Lewinsky, Marcus and Conway searched for a
new lawyer for Mrs. Tripp. Marcus and Porter helped arrange
for Mrs. Tripp to take her explosive allegations to Starr.
Their effort are only now coming into focus, as a few of
their associates have begun to discuss their activities and
their names appear repeatedly in the final legal bills
submitted by the original Jones legal team. Messrs. Marcus,
Porter and Conway did not respond to numerous requests for
comment.
In their arguments before the Senate this week, the
President's lawyers said that there was collusion between
Starr's office, Mrs. Tripp and the lawyers for Ms. Jones in
the weeks leading up to the President's deposition last
January. If witnesses are called in the Senate impeachment
trial, the President's lawyers may explore the issue further,
several Clinton legal advisers said.
Charles G. Bakaly 3d, the spokesman for Starr, denied there
was collusion between the independent counsel's office and
the Jones team, including Marcus. ``There was absolutely no
conspiracy between the Jones lawyers and our office,'' Bakaly
said. ``Judge Starr has testified to the circumstances as to
how this matter came to our attention, and the actions
that we took thereafter.''
Clinton said in his grand jury testimony in August that his
political enemies ``just thought they would take a wrecking
bail to me and see if they could do some damage.'' That
wrecking ball was wielded by Marcus and his colleagues, who
managed to drive Paula Corbin Jones's allegation of sexual
misconduct into the courtroom and beyond.
three classmates at chicago law school
Marcus, Porter and Rosenzweig were classmates at the
University of Chicago Law School, graduating in 1986. Conway
met the others through the Jones case. Some of the lawyers
were also involved with the Federalist Society, a legal group
that includes conservative and libertarian luminaries like
[[Page S1570]]
Starr, Robert H. Bork and Richard Epstein, a University of
Chicago law professor.
Porter was the most overtly political member of the group,
having worked on the staff of Vice President Quayle and on
the Bush-Quayle campaign, where he did opposition research.
Porter was also an associate of Peter W. Smith, 62, a
Chicago financier who was once the chairman of College Young
Republicans and a major donor to Gopac, a conservative
political group affiliated with former Speaker Newt Gingrich.
Beginning in 1992, Smith spent more than $80,000 to finance
anti-Clinton research in an effort to persuade the mainstream
press to cover Clinton's sex life. Among others, his efforts
involved David Brock, the journalist who first mentioned the
name ``Paula'' in an article on Clinton.
Smith declined an interview request.
In 1993, Brock said, Smith helped introduce him to the
Arkansas state troopers who accused Clinton of using them to
procure women when he was Governor of Arkansas. Brock wrote
an article based on the troopers' account of Clinton's sexual
escapades that was published in the January 1994 issue of The
American Spectator, a conservative magazine. According to
Brock, Smith wanted to establish a fund for the troopers, in
case they suffered retribution. Brock said he opposed
payments because they would undermine the troopers'
credibility.
To allay his concerns, Brock said, Smith urged him to speak
to Porter, who was then working at Kirkland & Ellis, the
Chicago law firm that employed Starr in its Washington
office. Brock said he had hoped his talk with Porter would
put an end to any planned payments to the troopers, but Smith
did pay them and their lawyers $22,600.
In 1992, Smith also paid Brock $5,000 to research another
bit of Arkansas sex lore regarding Clinton, a rumor that has
since proved to be baseless.
Brock did not pursue an article.
Brock's trooper article in The American Spectator mentioned
a woman identified as ``Paula,'' and in May 1994, Ms. Jones
filed her lawsuit against President Clinton. Ms. Jones's
lawyers of record were from the Washington area, Gilbert K.
Davis and Joseph Cammarata, whom Marcus had helped recruit.
lawyers of record had help from start
The Davis and Cammarata billing records show that from
their earliest involvement in the case, they were consulting
with Marcus and Porter. Conway also helped draft briefs,
Cammarata said.
``Marcus was involved,'' Cammarata said, ``but he insisted
that he not be identified. But that was fine with me. We were
just two guys involved in the middle of a world war. We
welcomed his help.''
No one was more important to the Jones case than Marcus.
Besides helping to write several important briefs, Marcus
spoke numerous times at the most critical moments in the case
with Cammarata and Davis, offering legal advice that
Cammarata said was ``vital.''
According to the billing records, Porter also offered
``legal strategy'' and once wrote a memo on ``investigative
leads'' that might embarrass the President.
``Porter was a cheerleader,'' Cammarata said. ``He used to
call up and say, `Maybe we can find you some money.' ''
One of President Clinton's legal advisers said he noticed a
marked difference in quality between the routine legal
pleadings filed by the Cammarata and Davis team, and the
polished, scholarly briefs written by the shadow legal team
headed by Marcus and Conway.
Marcus, meanwhile, was so successful at keeping the extent
of his role a secret that even Cammarata only found out
recently that Marcus had trouble finding lawyers to agree to
represent Ms. Jones. ``No one wanted to touch this case,''
Cammarata said. ``No one wanted to take on the President of
the United States.''
Another friend of Marcus also briefly considered assisting
the Jones lawyers.
In June 1994, Rosenzweig, a lawyer at a small law firm in
Washington, with experience working in the Justice
Department, expressed interest in doing legal work on behalf
of Ms. Jones, but he did none, lawyers involved in the case
said.
law firm included influential democrats
Conway wanted his role kept hidden as well, because his New
York law firm, Wachtell, Lipton, Rosen & Katz, included
influential Democrats like Bernard W. Nussbaum, a former
White House counsel. Conway's name does not appear on any
billing records.
Although the billing records show communication between
Porter and the Jones lawyers from 1994 to 1997, he denied in
a written statement last fall doing legal work for Ms. Jones.
Because Porter is a partner at the firm where Starr worked
until he took a leave of absence last August, any role played
by Porter in the Jones case could have posed a conflict of
interest for Starr once he became independent counsel. Starr
has said he did not discuss the Jones case with Porter.
Starr has acknowledged contacts with Davis, specifically
six telephone discussions the two had in 1994, before Starr
became independent counsel. In fact, Starr has been
criticized for not disclosing the phone conversations to
Attorney General Janet Reno when he was seeking to expand his
investigation to the Lewinsky matter. Starr has said it did
not occur to him to mention the conversations because he did
not do work on the Jones case and simply offered his publicly
stated position on a point of constitutional law that
Presidents are not immune from civil lawsuits.
Before the Jones lawyers argued before the Supreme Court in
May 1996, paving the way to the fateful 9-0 decision that the
President was not immune from civil lawsuits, Conway went to
Washington for a practice argument. He joined Davis,
Cammarata, Judge Robert Bork and Theodore Olson, a Washington
lawyer and friend of Starr, at the Army-Navy Club here.
When Cammarata and Davis quit as Ms. Jone's lawyers after
she failed to reach a settlement with President Clinton's
lawyers in 1997, Marcus and his colleagues established ties
to her new lawyers at the Dallas law firm of Rader, Campbell,
Fisher & Pyke and the Rutherford Institute of
Charlottesville, Va., which helped pay her legal expenses.
In November 1997, Rosenzweig went to work as a prosecutor
in Starr's office. And from November to January, Rosenzweig
spoke several times by telephone with Marcus and discussed
the Jones case, a lawyer with knowledge of the conversations
said. But Bakaly, a spokesman for Starr, said that Rosenzweig
did not tell any of his colleagues about what he learned
about developments in the Jones case.
By this time, Mrs. Tripp was cooperating with the Jones
lawyers. She was also taping her conversations with Ms.
Lewinsky, which her friend, Lucianne Goldberg, a Manhattan
literary agent, had incorrectly assured her was legal. In
December, Mrs. Tripp became frantic that she might be
prosecuted because such taping is illegal in Maryland, where
Mrs. Tripp lives. Mrs. Tripp and Ms. Goldberg thought of a
possible solution: perhaps she could receive immunity from
prosecution from Starr.
Ms. Goldberg called Smith, the Chicago financier, and
Porter for advice on how Mrs. Tripp might approach Starr. In
a teleconference during the first week of January 1998, Ms.
Goldberg talked to Porter and Marcus. Meanwhile, Marcus
sought new lawyers for Mrs. Tripp. Conway suggested an old
friend, James Moody, a Washington lawyer and fellow
Federalist Society member, whom Mrs. Tripp retained.
Because he was Starr's former law partner, Porter did not
want to be the first one to call the independent counsel's
office on behalf of Mrs. Tripp. So Marcus made the call to
Rosenzweig.
Mr. HARKIN. So now we have the involvement of Linda Tripp giving
information to Paula Jones' attorneys. From about late October, early
November until January 1998, a lawyer by the name of Jerome Marcus in
Philadelphia, who has done extensive work for the Jones legal team, had
been talking to a friend of his, Paul Rosenzweig, a prosecutor in Mr.
Starr's office, about the Lewinsky matter. We didn't know the exact
nature of these discussions, but we do know they talked a number of
times. But we do know that on January 8 Marcus contacted Rosenzweig and
told him about the relationship of Monica Lewinsky and the President.
Right after this, Linda Tripp contacts the Office of Independent
Counsel to talk about Lewinsky and tells them about the tapes she has
made, the telephone tapes, the tapes of her telephone conversations
with Monica Lewinsky. The day after that, Tripp is wired by FBI agents
working with Starr, meets with Lewinsky, and records their conversation
without Lewinsky's knowledge--and doing this without any authorization
to do it. They didn't get it until 4 days later.
Now, all this is done prior to President Clinton ever giving a
deposition or testifying before a grand jury. And so Clinton has done
nothing yet in terms of testifying. So one might ask, What was Starr
and his team after? If, in fact, this was a consensual sexual
relationship between Clinton and a young woman who was an adult, what
did it have to do with Whitewater or anything else they were
investigating?
Well, here is why it had something to do with it. Let me quote from
an article written by Joseph Isenburgh, a professor of law at the
University of Chicago. I happen to have read it because he was
supporting this findings of fact procedure, and I wanted to see what
his thoughts were. But later on in his treatise he said this:
What is perverse about the impeachment of President Clinton
is the idiotic premise on which it rests. The President
wasn't forced to respond to judicial process in the Paula
Jones sexual harassment suit because he committed a crime of
paramount public concern. That case, remember, was dismissed
as meritless.
I am continuing to quote him:
The misconduct at issue here had no independent
significance. It is, itself, merely a byproduct of a judicial
process directed at the President, essentially of a ``sting''
set-up in the courts.
[[Page S1571]]
``A `sting' set-up in the courts.'' That is what Ken Starr and the
Jones attorneys, working in tandem, were doing, setting him up. And you
can see this clearly when you watch Clinton on videotape in the
deposition before the Paula Jones attorneys. They present him with this
definition of ``sexual relations'' that even the judge herself said was
confusing. They knew what they were going after. But President Clinton
did not know that they had all this information about his involvement
with Monica Lewinsky--a classic sting operation.
Also, keep in mind that Linda Tripp briefed the Paula Jones attorneys
the night before that deposition and gave them the tapes of her
telephone conversations. In light of this, it is interesting to note
that in today's New York Times, February 10, the conduct of the
independent counsel is so suspect and potentially violative of Justice
Department policy and law that he now is under investigation for a
number of reasons which I won't read. But I ask unanimous consent that
it be printed in the Record. And you can read it in today's New York
Times.
There being no objection, the articles were ordered to be printed in
the Record, as follows:
[From the New York Times, February 9, 1998]
Inquiry to Ask Whether Reno Was Misled by Starr's Office
(By David Johnston and Don Van Natta, Jr.)
Washington, Feb. 9--The Justice Department has decided to
begin an inquiry to determine whether Kenneth W. Starr's
prosecutors misled Attorney General Janet Reno about possible
conflicts of interest when they obtained permission to
investigate the Lewinsky matter in January 1998, Government
officials said today.
Among other concerns, the inquiry will focus on whether the
prosecutors should have disclosed the contacts between Mr.
Starr's office and the Paula Jones legal team in the weeks
leading up to Mr. Starr's decision to ask Ms. Reno to expand
his inquiry beyond the Whitewater matter, said the officials,
who spoke on the condition of anonymity.
In recent months, documentation has emerged indicating that
there were conversations between a prosecutor in Mr. Starr's
office and a lawyer working behind the scenes with the Jones
legal team from November 1997 to January 1998.
But a series of newly disclosed notes taken at the initial
meetings on Jan. 15 and Jan. 16, 1998, between Mr. Starr's
prosecutors and Justice Department officials, shows that the
prosecutors flatly asserted that there had been no contacts
with the Jones team.
For example, Eric H. Holder Jr., the Deputy Attorney
General, wrote in this three pages of notes of a Jan. 15,
1998, meeting with Mr. Starr's prosecutors: ``They've had no
contact with plaintiff's attys.''
Handwritten notes by two other Justice Department
officials, Monty Wilkinson and Josh Hochberg, corroborate the
statements attributed to Mr. Starr's prosecutors.
Moreover, notes taken by another participant in the
meeting, Steven Bates, a prosecutor in Mr. Starr's office,
indicate that Jackie M. Bennett, one of Mr. Starr's deputies,
told the Justice Department officials: ``We've had no contact
with the plaintiffs' attorneys. We're concerned about
appearances.''
The notes have become crucial evidence in the Justice
Department inquiry, which will be conducted by the Office of
Professional Responsibility, which investigates prosecutorial
misconduct. The lawyers' notes became public just last month
as part of the Senate record of documents related to the
impeachment trial of the President.
The truthfulness of Mr. Starr's prosecutors is one of
several issues that the department wants to examine, the
Government officials said. Lawyers in the ethics office also
intend to investigate whether Mr. Starr abused his authority
to convene grand juries, or improperly pressed witnesses like
Ms. Lewinsky, and disclosed secret grand jury information to
reporters, the officials said.
Mr. Clinton's lawyers and supporters have long contended
that there was collusion between Mr. Starr's office and the
conservative Jones lawyers, noting that Linda R. Tripp
found her way to the Office of Independent Counsel through
a group of private lawyers who performed legal work on the
Jones case. Mr. Starr has insisted that his office sought
permission from Ms. Reno to expand his jurisdiction when
he learned of allegations that President Clinton's close
friend Vernon E. Jordan, Jr. was helping Monica S.
Lewinsky find a job in exchange for her silence as a
possible witness in the Jones lawsuit.
Charles G. Bakaly 3d, a spokesman for Mr. Starr's office,
would not comment on the Justice Department's plans to start
an investigation. But Mr. Bakaly said the notes showed that
prosecutors had supplied the Justice Department with a
thorough status report on the then-nascent inquiry.
``I don't know how else to put it,'' Mr. Bakaly said.
``There was no misleading of Justice. This was a very fluid
evolving situation. Unlike most public corruption cases, this
one was ongoing; felonies were still possibly being
committed.''
This latest inquiry has exacerbated tensions that have
existed between the Justice Department and the Office of
Independent Counsel almost since the beginning of the
Lewinsky scandal.
At one point last spring, Ms. Reno asked her senior aides
to research whether she had the authority to discipline Mr.
Starr in some way that stopped short of removing him, said a
former Justice Department official who spoke on condition of
anonymity.
Some aides told her that it would be a mistake, comparing
it to the ``Saturday Night Massacre'' when President Nixon
ordered the firing of the Watergate special prosecutor
Archibald Cox in October 1973.
But, the official said, Ms. Reno shot back: ``I'm not
asking you to make a political judgment. I'm asking you to
make a legal judgment.''
Deepening hostilities between the Justice Department and
Mr. Starr's office delayed the start of the new ethics
inquiry. The ethics investigators recently wrote to Mr. Starr
outlining the scope and authority for the investigation, the
officials said. Mr. Starr's prosecutors are challenging the
inquiry, asserting that the Attorney General does not have
the authority to delve into highly sensitive grand jury
material or investigative decisions that led Ms. Reno to
refer the case to Mr. Starr.
Ms. Reno's aides have said that investigative authority is
implied by language in the independent counsel statute, which
gives the Attorney General the sole responsibility to remove
an independent prosecutor.
Over time, Justice Department officials, including Ms.
Reno, have become troubled by what they view as possible
violations of Justice Department guidelines. From issues like
calling the Secret Service before the grand jury to the
crossfire over leaks to reporters, Mr. Starr's prosecutors
and Justice Department officials have feuded privately.
``As time went on, people became more and more frustrated
with him,'' the Justice Department official said of Mr.
Starr. ``He seemed less concerned with Department of Justice
policies.''
The ethics lawyers are trying to determine whether
prosecutors in Mr. Starr's office had a vested interest in
the outcome of the Jones case, an interest that would have
undercut their ability to impartially investigate allegations
related to the lawsuit. If that conflict existed, the
officials said, it would have been an important factor as
Ms. Reno weighed whether to recommend to a three-judge
panel that Mr. Starr take on the Lewinsky matter.
At this point, the ethics unit of the Justice Department
must determine whether Mr. Starr and his prosecutors violated
departmental rules and prosecutorial guidelines. Their
findings could lead to recommendations for disciplinary
action, like reprimands or suspension of employment.
The relationship between Ms. Reno and Mr. Starr began as a
wary but cordial one that a Government official compared to
``Thatcher and Gorbachev.''
At times, Ms. Reno has expressed exasperation over Mr.
Starr's conduct, fuming over letters sent by Mr. Starr's
prosecutors accusing the Justice Department of trying to
undercut the inquiry.
Mr. Starr's prosecutors had also grown angry and suspicious
about Ms. Reno's aides, suggesting that the Justice
Department was under the control of the White House and had
quietly tried to squelch Mr. Starr's effort, the officials
said.
Since October, several news organizations have reported how
Mr. Starr's office first learned about the Lewinsky matter.
On Jan. 8, 1998--four days before Linda R. Tripp contacted
Mr. Starr's office--Jerome M. Marcus, a Philadelphia lawyer
who did extensive work for the Jones legal team, informed
Paul Rosenzweig, a prosecutor in Mr. Starr's office, about
the Lewinsky accusations.
The early tip was not disclosed in Mr. Starr's 445-page
referral to Congress. Nor was it disclosed to the Justice
Department. And The New York Times reported last month that
there were several conversations between Mr. Marcus and Mr.
Rosenzweig from November 1997 to January 1998.
David E. Kendall, one of the President's personal lawyers,
complained to Ms. Reno in October that ``very serious
questions'' were raised about those contacts.
The allegations of collusion prompted lawyers at the
Justice Department to turn their attention to their own
recollections and their own handwritten notes, of statements
made by Mr. Starr's representatives on Jan. 15, 1998,
officials said today.
One former Justice Department lawyer said in an interview
that Ms. Reno was especially disappointed in the fact that
the early phone call was not shared with her senior aides
in January 1998.
Last month, The New York Times reported that Mr. Marcus was
the leader of a small secret group of lawyers working behind
the scenes on the Jones case. Mr. Marcus drafted legal
documents and was involved in many of the most important
strategic decisions in the Jones lawsuit, according to
billing records in the Jones case and interviews with other
lawyers who worked with him.
Mr. Marcus recruited other conservative lawyers to assist
with his efforts, approaching among others, Paul Rosenzweig,
who briefly considered doing work for Ms. Jones in 1994, the
billing records show, but decided not to.
In November 1997, Mr. Rosenzweig joined Mr. Starr's office,
where he and Mr. Marcus
[[Page S1572]]
had several conversations about the Jones case, said a lawyer
familiar with their discussions.
Mr. Bakaly, the spokesman for Mr. Starr, has adamantly
denied any suggestion of collusion. When Mr. Starr testified
before the House Judiciary Committee on Nov. 19 of last year,
he was asked by the chief counsel for the minority, Abbe D.
Lowell, about the ``substantial contacts'' that Mr. Starr had
had with Jones lawyers.
In a series of questions, Mr. Lowell tried to suggest that
Mr. Starr should have revealed the contacts to the Justice
Department in January 1998, and that Richard W. Porter, a
partner of Mr. Starr's at the law firm, Kirkland & Ellis, had
declined a request to represent Ms. Jones.
``I know Richard Porter; I've had communications with him
from time to time,'' Mr. Starr testified. ``But in terms of a
specific discussion with respect to what the law firm may be
doing or may not be doing, I'm not recalling that
specifically, no.''
____
[From the New York Times, Feb. 9, 1998]
Tracing the Past: How Legal Paths of Jones and Lewinsky Joined
(By Tim Weiner with Neil A. Lewis)
WASHINGTON--Shortly after 10 a.m. on Jan. 17, a Saturday,
the president of the United States stepped out of the White
House into the back of a black limousine and rode a block to
his lawyer's office to undergo a six-hour grilling in the
case of Paula Jones vs. William Jefferson Clinton.
For six weeks, the president's lawyers had known that he
might be asked a startling question: Did you have a sexual
relationship with Monica Lewinsky? When the question came,
the president's body tensed and his jaw tightened, said a
lawyer involved in the case, and, under oath, he denied it.
The questions continued: Had the president been alone with
Lewinsky? Had he given her gifts? He said he might have been
alone with her briefly while she performed some clerical
task, and he might have given her some presidential
souvenirs, the lawyer recalled.
The deposition ended, President Clinton returned to the
White House, canceled dinner plans with his wife and called
his personal secretary, Betty Currie, asking her to meet him
at the White House the next morning.
When they met, the president asserted that he had never
been alone with Lewinsky at the White House, said lawyers
familiar with Mrs. Currie's account. But that assertion did
not square with Mrs. Currie's recollection.
In addition, Mrs. Currie had turned over to investigators a
hat pin, a brooch and a dress she retrieved from Lewinsky,
the lawyers said, items that are believed to have been given
to her by the president but which do not fit his description
of have been given to her by the president but which do not
fit his description of White House souvenirs. It is not clear
who, if anyone, instructed Mrs. Currie to retrieve the gifts.
Was Clinton less than truthful about his relationship with
Lewinsky, the 24-year-old former White House intern? Was he
using his trusted secretary to hide evidence from Mrs. Jones,
the former Arkansas state employee suing him over what she
says was a crude sexual advance nearly seven years ago?
The president's battle with the Whitewater independent
counsel, Kenneth Starr--and, perhaps, Clinton's place in
history--may depend on the answers. If he lied, or if he
urged others to lie or conceal evidence, he could face the
threat of impeachment.
How did Clinton become the first president forced to
testify under oath about his private life? How did the Jones
case--once demeaned by the president's lawyers as third-rate
``tabloid trash''--come to threaten Clinton's presidency? The
answers lie in a detailed look at the recent past.
When Mrs. Jones' lawyers learned of Lewinsky's existence,
it was as if two live wires had met in an incendiary tangle.
The lawyers' hunt for information about Lewinsky, which
they sought to buttress Mrs. Jones' charge of sexual
misconduct by Clinton, led directly to Starr's investigation
into the possibility of perjury and obstruction of justice at
the highest levels. Now