[Congressional Record (Bound Edition), Volume 145 (1999), Part 1]
[Senate]
[Pages 1055-1067]
[From the U.S. Government Publishing Office, www.gpo.gov]



   TRIAL OF WILLIAM JEFFERSON CLINTON, PRESIDENT OF THE UNITED STATES

  The CHIEF JUSTICE. The Senate will convene as a Court of Impeachment. 
The Sergeant at Arms will make the proclamation.
  The Sergeant at Arms, James W. Ziglar, made proclamation as follows:

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

  The CHIEF JUSTICE. The majority leader is recognized.
  Mr. LOTT. Mr. Chief Justice, it is my understanding that the White 
House presentation today will last approximately 2\1/2\ hours--maybe a 
little more, maybe a little less. I therefore suggest that a short 
recess be taken in approximately an hour, around 2 o'clock, to allow 
the Chief Justice and all Members to have a brief break.
  I remind all Senators to remain standing at their desk each time the 
Chief Justice enters or departs the Chamber. If there is a need for 
another break, I will keep an eye on the White House counsel to see if 
they need a break, and we will act accordingly.
  Of course, I remind Senators again, tonight please be in the Chamber 
at 8:35 so we can proceed to the joint session.
  I thank my colleagues and yield the floor. I believe we are ready to 
begin.


                              The Journal

  The CHIEF JUSTICE. If there is no objection, the Journal of 
proceedings of the trial are approved to date.
  Pursuant to the provisions of Senate Resolution 16, the counsel for 
the President have 24 hours to make the presentation of their case. The 
Senate will now hear you. The Chair recognizes Mr. Counsel Ruff to 
begin the presentation of the case for the President.
  Mr. Counsel RUFF. Mr. Chief Justice, Members of the Senate, 
distinguished managers, William Jefferson Clinton is not guilty of the 
charges that have been preferred against him. He did not commit 
perjury; he did not obstruct justice; he must not be removed from 
office.
  Now, merely to say those words brings into sharp relief that I and my 
colleagues are here today in this great Chamber defending the President 
of the United States. For only the second time in our Nation's history, 
the Senate has convened to try the President of the United States on 
articles of impeachment.
  There is no one who does not feel the weight of this moment. 
Nonetheless, our role as lawyers is as much as it would be in any other 
forum. We will not be able to match the eloquence of the 13 managers 
who spoke to you last week. We will try, however, to respond to the 
charges leveled against the President as directly and candidly as 
possible, and to present his defense as clearly and as cogently as we 
are able. We seek on his behalf no more than we know you will give us--
a fair opportunity to be heard, a fair assessment of the facts and the 
law, and a fair judgment. We will defend the President on the facts and 
on the law and on the constitutional principles that must guide your 
deliberations. Some have suggested that we fear to do so. We do not.
  I begin with a recitation of some of the events that have brought us 
here today. Although many of them may be familiar, they merit some 
discussion because they form the backdrop against which you must assess 
the evidence.
  I will then move to a discussion of the constitutional principles 
that, we submit, should guide your consideration of these matters and, 
finally, to an overview of the allegations contained in the articles, 
with a view toward focusing your attention on what we believe to be the 
principal legal and factual flaws in the case presented by the 
managers.
  My colleagues will follow tomorrow and the following day with a more 
detailed analysis of the facts underlying the articles. At the end of 
our presentation, we will have demonstrated beyond any doubt that there 
is no basis on which the Senate can or should convict the President of 
any of the charges brought against him.
  Let me begin with a brief recital of the essential events in the 
Paula Jones litigation which underlie so much of what we have been 
discussing for the last week.
  On May 6, 1994, Paula Jones sued President Clinton in the U.S. 
District Court for the Eastern District of Arkansas. She claimed that 
then-Governor Clinton had made, in 1991, some unwelcomed overture to 
her in an Arkansas hotel room and that she suffered adverse employment 
consequences and was subsequently defamed.
  After the Supreme Court decided in May 1997 that civil litigation 
against the President could go forward while he was in office, the case 
was remanded to the district court, and over the fall and winter of 
1997, the Jones lawyers deposed numerous witnesses. And inevitably, 
despite the strict protective order entered by Judge Wright, and 
continuing exhortation to counsel not to discuss any aspect of the case 
with the press, information flowed from those depositions into the 
public forum clearly with only one purpose--to embarrass the President.
  The principal focus of the discovery being conducted by the Jones 
lawyers during this period was not on the merits of their client's 
case. They devoted most of their time and their energy to attempt to 
pry into the personal life of the President. Mr. Bennett, the 
President's counsel, objected to those efforts on the grounds they had 
no relevance to Ms. Jones' claims and intended to do nothing other than 
to advance the

[[Page 1056]]

agenda of those who were supporting the Jones lawsuit. The Jones 
lawyers, however, pursued their efforts to inquire into the President's 
relations with other women, and on December 11, 1997, Judge Wright 
issued an order allowing questioning regarding only ``any individuals 
with whom the President had sexual relations or proposed or sought to 
have sexual relations and who were during the relevant timeframe a 
State or Federal employee.''
  Then on December 5, 1997, the Jones lawyers placed on their witness 
list the name of Monica Lewinsky. And on December 19, she was served 
with a subpoena for her deposition to be scheduled in January.
  Consistent with rulings issued by Judge Wright in connection with the 
Jones lawyers' efforts to secure the testimony of a number of other 
women, some have sought to avoid testifying by submitting affidavits to 
the effect that they had no knowledge relevant to Ms. Jones' lawsuit, 
or that they otherwise do not meet the test that Judge Wright had 
established before permitting this invasive discovery to go forward.
  On January 7, 1998, Ms. Lewinsky did execute such an affidavit, and 
her lawyer provided copies to the lawyers for Ms. Jones and for the 
President on January 15.
  The Jones lawyers deposed the President on January 17, 1998. They 
began the deposition by proffering to him a multiparagraph definition 
of the term ``sexual relations'' that they intended to use in 
questioning him. There followed an extended debate among counsel and 
the court concerning the propriety and the clarity of that definition. 
Mr. Bennett objected to its use, arguing that it was unclear, that it 
would encompass conduct wholly irrelevant to the case, and that it was 
unfair to require the President to apply a definition that he had never 
seen before to each question he was asked. Indeed, Mr. Bennett urged 
the lawyers for Ms. Jones to ask the President specific questions about 
the conduct, but they declined to do so.
  Judge Wright acknowledged the overbreadth of the definition, but she 
ultimately determined that the Jones lawyers could use the heavily 
edited version of the definition that left in place only the two lines 
of paragraph 1, of which you are already familiar. Immediately after 
the extended legal skirmishing, the Jones lawyers began asking him 
about Monica Lewinsky.
  Mr. Bennett objected, questioning whether counsel had a legitimate 
basis for their inquiry in light of Ms. Lewinsky's affidavit denying a 
relationship with the President. Judge Wright overruled that objection 
and permitted the Jones lawyers to pursue their inquiry. Four days 
later, the independent counsel's investigation became a public matter.
  On January 29, responding to a request by independent counsel to bar 
further inquiry related to Ms. Lewinsky, Judge Wright ruled that 
evidence relating to her relationship with the President would be 
excluded from the trial. She reaffirmed this ruling on March 9 stating 
that the evidence was not ``essential to the core issues in this case 
of whether the plaintiff herself was the victim of sexual harassment, 
hostile work environment, or intentional infliction of emotional 
distress.'' On April 1, 1998, Judge Wright--
  I apologize for the logistical problem. Why don't I just hold it.
  On April 1, 1998, Judge Wright granted summary judgment in favor of 
President Clinton dismissing the Jones suit in its entirety. She ruled 
that no evidence that Ms. Jones had offered or that her lawyers had 
discovered made out any viable claim of sexual harassment or 
intentional infliction of emotional distress. Importantly, Judge Wright 
ruled that evidence of any pattern or practice of comparable conduct by 
the President was not important to the case.
  I want to take just a moment to read the relevant portions of Judge 
Wright's opinion, not to demean in any sense plaintiff's claims of 
sexual harassment or to suggest that it must be other than vigilant to 
protect the rights of all citizens, but simply to bring into slightly 
sharper focus the role that the President's deposition played in the 
real Jones litigation. Judge Wright wrote:

       Whatever relevance such evidence may have to prove other 
     elements of plaintiff's case, it does not have anything to do 
     with the issue presented by the President's and Ferguson's 
     motions for summary judgment--i.e. whether plaintiff herself 
     was the victim of alleged quid pro quo or a hostile work 
     environment or sexual harassment; whether the President and 
     Ferguson conspired to deprive her of her civil rights or 
     whether she suffered emotional distress so severe in nature 
     that no reasonable person could be expected to endure it. 
     Whether other women may have been subjected to workplace 
     harassment and whether such evidence has allegedly been 
     suppressed does not change the fact that plaintiff has failed 
     to demonstrate that she has a case worthy of submitting to a 
     jury.

  Ms. Jones appealed Judge Wright's decision to the Eighth Circuit. She 
heard arguments on October 20, 1998, and on November 13, 1998, before 
the decision was rendered, Ms. Jones and the President settled the 
case.
  Briefly then, to what was happening on the front of the independent 
counsel's office, in mid-January 1998, Linda Tripp had brought to the 
independent counsel information that she had been gathering 
surreptitiously for months about Ms. Lewinsky's relationship with the 
President and her involvement in the Jones case. And thus, began the 
penultimate chapter.
  As you will see, Ms. Tripp's relationship with Ms. Lewinsky and her 
role in these matters was more than merely a backdrop to the succeeding 
events. Independent counsel met with Ms. Tripp and formally granted her 
immunity from Federal prosecution and promised to assist her in 
securing immunity from State prosecution where she had been illegally 
taping the telephone calls with Ms. Lewinsky. On January 13, Ms. Tripp 
agreed to tape a conversation with Ms. Lewinsky under FBI auspices. And 
on January 15, armed with that tape, the independent counsel's office 
first contacted the Department of Justice to seek permission from the 
Attorney General to expand its jurisdiction to cover the investigation 
that had already begun. On January 16, that permission was granted by 
the special division of the court of appeals.
  Now, the President's deposition was scheduled to take place the very 
next day--Saturday, January 17. On the 16th, Ms. Tripp invited Ms. 
Lewinsky to have lunch with her at the Pentagon City Mall. There she 
was greeted by four FBI agents and independent counsel lawyers and 
taken to a hotel room where she spent the next several hours. Ms. Tripp 
was in the room next door for much of that time. When she left that 
evening, she went home to meet with the Jones lawyers with whom we know 
she had been in contact for many months in order to brief them about 
her knowledge of the relationship between Ms. Lewinsky and the 
President so that they, in turn, could question the President the next 
morning.
  As the independent counsel himself has acknowledged, Ms. Tripp was 
able to play this oddly multifaceted role. Because it was part of her 
immunity agreement, the OIC could have prevented her from talking about 
Ms. Lewinsky. They inexplicably chose not to.
  The existence of the OIC investigation was made public on January 21 
in an edition of the Washington Post with the all-consuming focus of 
media coverage for the ensuing 8 months.
  On August 17, the President's deposition was taken by the independent 
counsel for use by the grand jury, and on September 9, there was 
delivered to the House of Representatives a referral of Independent 
Counsel Starr containing what purported to be the information 
concerning acts ``that may constitute grounds for impeachment.'' The 
referral was accompanied by some 19 boxes of documents, grand jury 
transcripts, and a videotape of the grand jury testimony.
  The referral was made public by the House on September 11. On 
September 21, additional materials were released, along with the 
President's grand jury videotape that was then played virtually nonstop 
on every television station in the country during that day.
  The committee held a total of 4 days of hearings, one for preliminary 
presentations by the majority and minority

[[Page 1057]]

counsel, one for testimony by Independent Counsel Starr, and two in 
which the President was permitted to call witnesses and present his 
defense.
  In addition, the constitutional subcommittee held the one hearing on 
the standards for impeachment, and the committee convened in its 
oversight capacity to hear witnesses on the meaning of perjury. The 
committee called no fact witnesses.
  Despite numerous efforts to extract from the committee some 
description of the specific charges against which the President would 
have to defend himself, it was not until approximately 4:30 on December 
9, as I was completing my testimony before the committee, that any such 
notice was provided, and then it came in the form of four draft 
articles of impeachment.
  Three days later, the committee reported out those articles, and on 
December 9 the House completed its action, referring to the Senate 
article I, the charge of perjury in the grand jury; defeated article 
II, which alleged perjury in the Jones deposition; exhibited article 
III, which charged obstruction of justice; and defeating article IV, 
which alleged false statements to the House of Representatives.
  And so we are here. But before moving on, let me pause on an 
important procedural point. Although the Senate has asked that the 
parties address the issue of witnesses only after these presentations 
are being completed, the managers spent much of their time last week 
explaining to you why, if only witnesses could be called, you would be 
able to resolve all of the supposed conflicts in the evidence. Tell me, 
then, how is it that the managers can be so certain of the strength of 
their case? They didn't hear any of these witnesses. The only witness 
they called, the independent counsel himself, acknowledged that he had 
not even met any of the witnesses who testified before the grand jury. 
Yet, they appeared before you to tell you that they are convinced of 
the President's guilt and that they are prepared to demand his removal 
from office.
  Well, the managers would have you believe that the Judiciary 
Committee of the House were really nothing more than grand jurors, 
serving as some routine screening device to sort out impeachment chaff 
from impeachment wheat. Thus, as they would have it, there was no need 
for anything more than a review of the cold record prepared by the 
independent counsel; no need for them to make judgments about 
credibility or conflicts. Indeed, they offered you a short lesson in 
grand jury practice, telling you that U.S. attorneys do this thing all 
the time, that calling real, live witnesses before a grand jury is the 
exception to the rule. Well, it has been a few years since I served as 
U.S. attorney for the District of Columbia, so there may have been a 
change in the way prosecutors go about their business, but I don't 
think so.
  And so what lesson can be learned from the process followed by the 
House? I suggest that what you have before you is not the product of 
the Judiciary Committee's well-considered, judicious assessment of 
their constitutional role. No, what you have before you is the product 
of nothing more than a rush to judgment.
  And so how should you respond to the managers' belated plea that more 
is needed to do justice? You should reject it. You have before you all 
that you need to reach this conclusion: There was no basis for the 
House to impeach, and there is no, and never will be any, basis for the 
Senate to convict.
  Now, the managers have not shown, and could not on this record or any 
record prove, that the President committed any of the offenses 
committed in any of the articles. But even if they could, these 
offenses would not warrant your deciding to remove the President from 
office.
  In this regard, an impeachment trial is unlike any other. You are the 
judges of the law and the facts and the appropriate sanctions. Before 
casting a vote of guilty or not guilty, you must decide not only 
whether the President committed the acts with which he is charged but 
whether those acts so seriously undermined the integrity of our 
governmental structure that he must be removed from office.
  I want to deal here for just a moment with an argument that was 
advanced in the press by one of the managers, and that is that the 
question whether the offenses described in the articles are impeachable 
is not really before you, that it has already been decided by the 
House. As the manager put it in a press interview, ``Are these 
impeachable offenses, which I think has already been resolved by the 
House? I think constitutionally that's our job to do.''
  Now, I trust, in light of last week's extended discussion, that the 
managers no longer press that notion, for it was remarkable in at least 
three respects. First, it is entirely inconsistent with the ``don't 
worry about it; this is just a routine procedural process; leave the 
difficult decisions to the Senate'' argument so frequently heard during 
the proceedings in the House. Second, it is an argument that rings 
hollow coming from those who did not even debate the constitutional 
standards or seek any consensus on what those standards should be. And 
third, and most importantly, it arrogates to the House the critical 
constitutional judgment which is yours alone.
  Far be it for me, or indeed anyone else, to instruct this body on its 
constitutional role, but I do think it would help us all to be reminded 
of the words of Alexander Hamilton in Federalist No. 65, because 
impeachment necessarily deals with injuries done immediately to 
society. Alexander Hamilton wrote:

       The prosecution of them for this reason 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 
     preexisting 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 
     demonstrations of innocence or guilt.
       The delicacy and magnitude of a trust which so deeply 
     concerns the political reputation and existence of every man 
     engaged in the administration of public affairs speak for 
     themselves. The difficulty of placing it rightfully in a 
     government resting entirely on the basis of periodical 
     elections will as readily be perceived, when it is considered 
     that the most conspicuous characters in it will, from that 
     circumstance, be too often the leaders or the tools of the 
     most cunning or the most numerous faction, and on this 
     account can hardly be expected to possess the requisite 
     neutrality towards those whose conduct may be the subject of 
     scrutiny.

  And then:

       The convention, it appears, thought the Senate the most fit 
     depositary of this important trust.

  Now, the President may be removed from office only upon impeachment 
for and conviction of treason, bribery or other high crimes and 
misdemeanors. The offenses charged here, even if supported by the 
evidence, do not meet that lofty standard, a standard that the framers 
intentionally set at this extraordinarily high level to ensure that 
only the most serious offenses and in particular those that subverted 
our system of government would justify overturning a popular election. 
Impeachment is not a remedy for private wrongs. It is a method of 
moving someone whose continued presence in office would cause grave 
danger to the Nation. Listen to the words of 10 Republican Members of 
the 1974 Judiciary Committee, one of whom now sits in this body.
  After President Nixon's resignation, in an effort to articulate a 
measured and a careful assessment of the issues they had confronted, 
they reviewed the historical origins of the impeachment clause and 
wrote:

       It is our judgment, based upon this constitutional history, 
     that the framers of the United States Constitution intended 
     that the President should be removable by the legislative 
     branch only for serious misconduct, dangerous to the system 
     of government established by the Constitution. Absent the 
     element of danger to the State, we believe the delegates to 
     the Federal convention of 1787, in providing that the 
     President should serve for a fixed elective term rather than 
     during good behavior or popularity, struck the balance in 
     favor of stability in the executive branch.

  Where did this lesson in constitutional history come from? It came 
directly from the words of the framers in

[[Page 1058]]

1787. Impeachment was no strange, arcane concept to them. It was 
familiar to them as part of English constitutional practice and was 
part of many State constitutions. It is therefore not surprising that 
whether to make provision for impeachment of the President became the 
focus of contention, especially in the context of concern whether in 
our new republican form of government the legislature ought to be 
entrusted with such a power. On this latter point, perhaps foretelling 
the notion that impeachment ought to be a matter of constitutional last 
resort, Benjamin Franklin noted that it at least had the merit of being 
a peaceful alternative to revolution.
  Governor Morris, one of the principal moving forces behind the 
language that ultimately emerged from the convention, believed that 
provision for impeachment should be made but that the offenses must be 
limited and carefully defined. His concern was very clearly for the 
corrupt President who may be bribed by a greater interest to betray his 
trust, as he wrote, and ``no one ought to say that we ought to expose 
ourselves to the danger of seeing the first magistrate in foreign pay 
without being able to guard against it by displacing him.''
  Drafts as they emerged from the convention moved through one that 
authorized impeachment for treason or bribery or corruption, and then 
the more limited treason or bribery, until the critical debate of 
December 8, 1787, when, pointing to their then-current example of the 
impeachment of Warren Hastings, George Mason moved to add the word 
``maladministration'' to that definition. It was in the face of 
objections from James Madison and Morris, however, that this term was 
too vague and would be the equivalent to tenure during the pleasure of 
the Senate, that Mason withdraw his proposal and the convention then 
adopted the language ``other high crimes and misdemeanors against the 
State.'' As Morris put it, ``an election every 4 years will prevent 
maladministration.''
  There is no question that the framers viewed this language as 
responsive to Morris' concerns that the impeachment be limited and well 
defined. To argue, then, as the managers do, that the phrase ``other 
crimes and misdemeanors'' was really meant to encompass a wide range of 
offenses that one might find in a compendium of English criminal law 
simply flies in the face of the clear intent of the framers who 
carefully chose their language, knew exactly what those words meant, 
and knew exactly what risks they intended to protect against.
  Looking back on this drafting history, the 1974 minority report 
described the purpose of the framers in these words:

       They were concerned with preserving the Government from 
     being overthrown by the treachery or corruption of one man.

  Now, the managers have made fun of the notion that hundreds of 
distinguished scholars and historians expressed their opinion that the 
offenses with which the President has been charged are not high crimes 
or misdemeanors. Indeed they suggested--not too subtly--that they must 
have signed those letters because they were political supporters of the 
President. To quote them, ``You go out and obtain from your political 
allies and friends in the academic world--to sign a letter saying the 
offenses alleged in the articles of impeachment do not rise to the 
level of impeachable offenses.''
  Well, as I understand the managers' position, it is that Garry Wills 
sold his intellectual soul because he is a political supporter of the 
President; Stephen Ambrose sold his political soul--his intellectual 
soul because he is a political supporter of the President; C. Vann 
Woodward sold his intellectual soul because he is a political supporter 
of the President.
  Is it possible, instead, that distinguished scholars of all political 
persuasions thought it important to offer their professional opinion on 
a matter of the greatest historical and legal import, because they 
cared about our country? Because they cared that the constitutional 
process not be debased?
  Perhaps, if the majority members of the full Judiciary Committee had 
paused for even a moment to consider these issues, if they had taken 
even a few hours to debate the question of what constitutional 
standards apply, one might now give greater credence to the belated 
constitutional exposition that they have offered here. Instead, perhaps 
the majority was convinced by their own rhetoric, by the oft-repeated 
mantra that impeachment is merely a preliminary step in the process and 
that the House need not be concerned with its weighty constitutional 
duty and saw little reason to explore the constitutional underpinning 
of that duty. Or perhaps they understood that a full and candid 
explanation would reveal that the proposed articles had no 
constitutional underpinning at all.
  Now, the central premise of the managers' argument appears to be 
this: Perjury is an impeachable offense no matter the forum or the 
circumstances in which it is committed. Second, judges have recently 
been convicted and removed on the basis of articles charging that they 
committed perjury. The President committed perjury, therefore the 
President must be removed as well.
  That premise is simple but wrong. The first leg on which it rests was 
removed by the House itself when it voted to defeat article II, 
alleging perjury in a civil deposition, and the House thus rejected the 
committee's core argument that perjury in a civil deposition warrants 
impeachment as much as perjury in any other setting. As to the 
committee's view that the constitutional standard for impeachment 
requires that all perjury be treated alike; thus, the House concluded 
no, and properly so.
  And as to the committee's view that it makes no difference whether 
perjury occurs in one forum or another, in a private or an official 
proceeding, again the House said no, and properly so.
  What, then, of the managers' argument that the Senate's recent 
conviction of three judges requires a conviction on the articles before 
you today? Again, they simply have it wrong, both as a matter of Senate 
precedent and as a matter of constitutional analysis. They argue that 
because a judge is obliged to faithfully carry out the law just as the 
President is, each must be removed if he commits perjury or obstructs 
justice. Judges and Presidents, and one would presume, all other civil 
officers if you follow their argument to its logical conclusion, 
including Assistant Secretaries and others, must in their view be 
removed from office if the Senate finds that they committed either 
offense--removed without a second thought. But judges are different. 
Indeed, every civil officer other than the President of the United 
States is different. They are different because before deciding whether 
to impose the ultimate sanction of removal the Senate must weigh in the 
balance dramatically different considerations.
  First, the answer to the ultimate impeachment question--that is, 
whether the conduct charged so undermines the official's capacity to 
perform his constitutional duties that removal is required despite the 
institutional trauma it may cause--must be very different for one of 
900 or 1,000 judges with lifetime tenure who can only be removed by 
impeachment than it is for one person elected every 4 years by the 
people to serve as the head of the executive branch. Surely the 
managers recognize that the Senate here faces a far different question, 
a far different constitutional issue than it did, for example, when it 
asked whether Judge Nixon, convicted and imprisoned for perjury, should 
be permitted to retain his office; or whether Judge Hastings, who lied 
about taking a bribe to fix a case before him, should remain on the 
bench.
  Indeed, a telling rejoinder to the House managers' argument comes 
from President Ford. On many occasions, we have all seen cited his 
statement in 1970, in connection with the proposal to impeach Associate 
Justice William O. Douglas, that impeachment is, in essence, whatever 
the majority of the House of Representatives considers it to be. But no 
one really notes the more important part of President Ford's statement 
29 years ago. I am going to read it to you:

       I think it is fair to come to one conclusion, however, from 
     our history of impeachments.

[[Page 1059]]

     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. To remove them in midterm--it has been tried 
     only twice and never done--would, indeed, require crimes of 
     the magnitude of treason and bribery.

  The Senate must ask here whether the conduct charged against 
President Clinton would, in its nature, be inconsistent with a decision 
to allow him to continue to perform the duties of his office, just as 
you would ask, if you had a judge before you or another civil officer 
before you, whether the charges are similarly inconsistent with the 
notion that he or she should be allowed to continue to perform those 
duties.
  As former House Judiciary Committee Chairman Peter Rodino, who surely 
understood the difference between impeaching a President and impeaching 
a judge, explained during the Claiborne proceedings before this body:

       The judges of our Federal courts occupy a unique position 
     of trust and responsibility in our government. They are the 
     only members of any branch that hold their office for life. 
     They are purposely insulated from the immediate pressures and 
     shifting currents of the body politic. But [he said] with the 
     special prerogative of judicial independence comes a most 
     exacting standard of public and private conduct.

  A similar theme can be found running through the debate in very 
recent years over a proposal to establish a process other than 
impeachment for the removal of judges who fail to live up to the good 
behavior standard. Both the proponents of the proposal and the legal 
opinion offered in support of it emphasize that the standard to which 
judges must adhere is stricter than the impeachment standard, noting 
that ``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 may be grounds for forfeiture of 
office held during good behavior.''
  Thus, whether weighing the constitutional or governmental 
implications of removal or asking whether the accused can be expected 
to perform his duties, the Senate has always recognized that the test 
will be different depending on the office that the accused holds.
  This analysis is wholly consistent with the framers' intent in 
drafting the impeachment clause that removal of a President by the 
legislature must be an act of last resort when the political process 
can no longer protect the Nation. Nothing in the cases brought before 
the Senate in the last 210 years suggests a different result.
  The managers also attribute to the President the argument that 
impeachment can never reach personal conduct. That is not our position. 
As I told the Judiciary Committee on December 9 when I testified before 
them, not all serious misconduct flowing from one of the President's 
official roles is impeachable; neither is all serious misconduct 
flowing from his personal conduct immune from impeachment. Judgments 
must be made and they must be based on the core principles that inform 
the framers' decision.
  But the managers would, in effect, ask you to eschew making these 
judgments. They speak of perjury and obstruction of justice in general 
terms and they argue that they are offenses inimical to the system of 
justice.
  No one here would dispute that simplistic proposition. But the 
managers will not walk with you down the difficult path. They will not 
speak of facts, of differing circumstances and differing societal 
interests. They will not because they do not appear to recognize that 
those questions must be asked.
  Perhaps the one exception to this was in the very last moment of 
Chairman Hyde's closing when he suggested, with what might to many seem 
almost an inverted logic, that a lie to spare embarrassment about 
misconduct on a private occasion is more deserving of removal than a 
lie about, as he described it, important matters of state.
  Although I submit that that conclusion might have struck the framers 
as somewhat odd, one can certainly conceive of acts arising out of 
personal conduct that would warrant conviction and removal, but you 
cannot ignore the circumstances in which the conduct occurs or abandon 
the core principle that impeachment should be reserved for those cases 
in which the President's very capacity to govern is called into 
question.
  Perjury about some official act may indeed be a constitutionally 
acceptable basis for impeachment. Perjury about a purely private matter 
should, at the very least, lead this body to question whether, no 
matter how seriously we take the person's violation, for example, of 
the witness' oath, the drastic remedy of removal from office is the 
proper response. Indeed, in a sense, that is the message sent by the 
House when it defeated article II.
  The principle that guides your deliberations, I suggest, must not 
only be faithful to the intent of the framers, it must be consistent 
with the governmental structure that they gave us and the delicate 
relationship between the legislative branch and the executive branch 
that is the hallmark of that structure. It must, above all, reflect the 
recognition that removal from office is an act of extraordinary 
proportions, to be taken only when no other response is adequate to 
preserve the integrity and viability of our democracy.
  On this point--and here I will fend off the wrath or maybe the scorn 
of the managers by quoting not a scholar or a professor but, rather, a 
witness called by the majority members of the Judiciary Committee to 
testify as an expert on the issue of perjury, a witness who had served 
on the Judiciary Committee in 1974. Judge Charles Wiggins told the 
members of the committee this:

       When you are called upon, as I think you will be called 
     upon, to vote as a Member of the House of Representatives, 
     your standard should be the public interest. And I confess to 
     you [said Judge Wiggins] that I would recommend that you not 
     vote to impeach the President.

  Beyond the impression of what constitutes an impeachable offense, 
each Senator must also confront the question of what standard the 
evidence must meet to justify a vote of guilty.
  We recognize that the Senate has chosen in the Claiborne proceedings, 
and elsewhere, not to impose on itself any single standard of proof, 
but rather to leave that judgment to the conscience of the individual 
Senator. Many of you were present for debate on that issue and chose a 
standard for yourselves. Many of you come to the issue afresh. And none 
of you, thankfully, has had to face the issue in the setting of a 
Presidential impeachment.
  Now, we argued before the Judiciary Committee that it must treat a 
vote to impeach as a vote to remove and that that judgment ought not be 
based on anything less than a clear and convincing standard, a 
standard, indeed, adopted by the Watergate committee 25 years ago. And 
surely no lesser standard should be applied here. Indeed, we submit to 
you that given the gravity of the decision you must reach, each of you 
should go further and ask whether the House has established guilt 
beyond a reasonable doubt. And this submission is made even more 
compelling by the managers' own position in which they made clear to 
you last week that proof of criminal conduct, in their view, was 
required to justify conviction.
  Now, lawyers and laymen too often, I think, treat the standard of 
proof as meaningless legal jargon, with no real application to the 
world of difficult decisions. But I suggest to you that it is much more 
than that. It is the guidepost that shows you the way through the 
labyrinth of conflicting evidence. It tells you to look within yourself 
and ask, Would I make the most important decisions of my life based on 
the level of certainty I have about these facts, and in the unique 
legal political setting of an impeachment setting that protects against 
partisan overreaching and it assures the public that a grave decision 
is being made with due care? It is the disciplining force I think that 
you will carry with you into your deliberations.
  And let me say that even if the clear and convincing standard that 
you apply for judicial impeachments--it does not follow that it should 
be applied where the Presidency itself is at stake. With judges, the 
Senate must

[[Page 1060]]

weigh and balance its concern for the independence of the judiciary 
against the recognition that, because a judge is appointed for life, 
impeachment is the only available method for removing from office those 
who are corrupt.
  On the other hand, when a President is on trial, the balance is very 
different. Here you are asking, in effect, to overturn the will of the 
electorate, to overturn the results of an election held 2 years ago in 
which the American people selected the head of one of the three 
coordinate branches of Government.
  Moreover, you have been asked to take this action in circumstances 
where, even taking the darkest view of the managers' position, there is 
no suggestion of corruption or misuse of office or any other conduct 
that places our system of Government at risk in the 2 remaining years 
of this President's term, when once again the people will get the 
chance to decide who should lead them. In this setting, we submit, you 
should test the evidence by the strictest standard you know.
  I want to talk for a few minutes about what we see as the 
constitutional deficiency of the articles you have before you. When the 
framers took from English practice the parliamentary weapon of 
impeachment, they recognized that the form of the Government that they 
had created, with its finely tuned balance among the branches, was 
inconsistent with the parliamentary dominance inherent in the English 
model. They chose, therefore, to build a quasi-judicial impeachment 
process, one that had, admittedly, political overtones but that carried 
with it the basic principles of due process embodied in the 
Constitution they had written.
  Among those principles is the sixth amendment's guarantee that the 
accused shall have the right to be informed of the nature and cause of 
the accusation against him. That right has been recognized to have 
special force in perjury cases, where it is the rule uniformly enforced 
by the courts that an indictment must inform the defendant specifically 
what false statement he is alleged to have made.
  This is not some mere technicality; it is the law. It is the law 
because our courts have recognized that if a criminal charge is to be 
based on the words uttered by a fallible human being, he must be 
allowed to defend the truthfulness of the specific words he used and 
not be convicted on the basis merely of some prosecutor's summary or 
interpretation. This is not some legal nicety that the House of 
Representatives can ignore, as it has many other elements of due 
process. This is not an argument we raise with this body merely in 
passing as a lawyer's gambit. This is an important principle of our 
jurisprudence. And I suggest that it is one that this body must honor. 
There is not a court anywhere--from highest to lowest--that would 
hesitate, if they were confronted with an indictment written like these 
articles, to throw it out.
  Indeed, if you want some evidence of how others have perceived this 
issue, look to the Hastings and Nixon cases, in both of which, the 
articles charging impeachment specifically stated the false statements 
that they were accused of having made.
  Why, if the House understood the importance of specificity in those 
cases, did it not understand the, if anything, greater importance of 
telling the President of the United States what he was charged with? If 
you compare the closing argument of majority counsel and the majority 
report filed by the committee and the trial brief filed by the House 
and the presentation of the managers last week, you will begin to 
understand what has happened here.
  I challenge any Member of the Senate--indeed, any manager --to 
identify the charges that the House authorized them to bring. Just to 
take one example, we do not know to a certainty that the House 
decided--or we do know with certainty that the House decided not to 
charge perjury in the civil deposition. Yet, to listen to the managers' 
presentation last week, one would be hard put to conclude that they 
understood that. They have, in essence, treated these articles as empty 
vessels, to be filled with some witch's brew of charges considered, 
charges considered and abandoned, and charges never considered at all.
  Both article I and article II are constitutionally deficient for 
other reasons as well. In particular, each charge's multiple offenses 
is therefore void, in the criminal justice vernacular, for duplicity 
because in a criminal case, and here as well, lumping multiple offenses 
together in one charging document creates a risk that a verdict may be 
based not on a unanimous finding of guilt as to any particular charge 
but, instead, may be composed of multiple individual judgments. And 
that risk is in direct violation of the requirement of the Constitution 
that this body agree by a two-thirds majority before the President may 
be removed.
  Now, the House responds to the President's concerns in this regard by 
arguing that, well, the amendment of Senate rule 23, which prohibits 
division of the articles, somehow addresses this concern and that our 
argument would undermine the Senate's own rules. But that is not so. 
Rule 23 was approved to permit the most judicious and effective 
handling of the questions presented to the Senate. It cannot be that 
the Senate, in passing that rule--and you know surely better than I--
decided to purchase efficiency in impeachment proceedings at the price 
of violating the Constitution, the mandate to ensure a two-thirds vote 
for removal.
  Now, 3 years after the revision of rule 23, in the trial of Judge 
Nixon, this very issue was presented. And Senator Kohl captured that 
problem. Although the first and second articles of impeachment alleged 
that Judge Nixon had committed specific violations of the perjury 
statute, the third article was a catchall, alleging that he made ``one 
or more'' of 14 different false statements. And I would note for you 
that that language, ``one or more,'' was identical to the language 
specifically inserted into article I at the request of Congressman 
Rogan during the Judiciary Committee proceedings.
  In addressing the propriety of such a charging device, Senator Kohl 
said, ``The managers should not be allowed to use a shotgun or 
blunderbuss. We should send a message to the House. Please do not bunch 
up your allegations. Charge each act of wrongdoing in a separate count. 
Such a change would clarify things and allow for a cleaner vote on 
guilt or innocence.''
  Senator Dole, who surely knew something about Senate rules and 
precedent, certainly didn't think that rule 23 bound the result in that 
Nixon case. He first voted to dismiss article III and then later voted 
to acquit Judge Nixon because it was redundant, complex, and confusing. 
Thirty-three Senators joined Senator Dole in voting to dismiss the 
article, and a total of 40 voted to acquit when it came to a judgment 
of guilt or innocence.
  Senators Kohl, Biden, and Murkowski each spoke about the danger posed 
by this formulation. And I will look once more to Senator Kohl. This 
wording presents a variety of problems. First of all, it means that 
Judge Nixon can be convicted even if two-thirds of the Senate does not 
agree in which his political statements were false. The House is 
telling us that it is OK to convict Judge Nixon on article III even if 
we have different visions of what he did wrong. But that is not fair to 
Judge Nixon, to the Senate, or to the American people.
  Those Senators were not acting in derogation of Senate Rules or 
precedents. They were acting in the spirit of fairness to the accused 
and in the very best tradition of American due process.
  The CHIEF JUSTICE. The Chair recognizes the majority leader.


                                 Recess

  Mr. LOTT. Mr. Chief Justice, I believe that counsel has indicated he 
is ready to take a break, so I ask unanimous consent that we take a 
brief 15-minute recess.
  There being no objection, at 2:02 p.m., the Senate recessed until 
2:21 p.m.; whereupon, the Senate reassembled when called to order by 
the Chief Justice.
  The CHIEF JUSTICE. The Chair recognizes the majority leader.
  Mr. LOTT. Mr. Chief Justice, I believe we will continue now with a 
further statement from Counsel Ruff.

[[Page 1061]]

  The CHIEF JUSTICE. The chair recognizes Mr. Counsel Ruff to continue 
his presentation.
  Mr. Counsel RUFF. Thank you, Mr. Chief Justice.
  My first question is: Is it working?
  Thank you, very much. I apologize for the mechanical difficulties 
earlier. I could quickly go back over the first hour. [Laughter.]
  I want now to move to an overview of the articles of impeachment 
themselves. As I said, as I came to the end of the first hour, these 
articles are constitutionally defective. They are also unsupported by 
the evidence. As we have noted, both articles are framed in the 
broadest generalities and pose multiple different defenses. Nothing 
contained in the Judiciary Committee's majority report, or in the trial 
brief, or in the presentation of the managers cure the constitutional 
infirmity that infects these articles. Nonetheless, in framing our 
defense, they provide the only way through this uncharted landscape.
  We have divided our substantive response to the articles into three 
parts.
  Tomorrow, Mr. Craig will address the charges in article I--that the 
President committed perjury before the grand jury.
  Second, Ms. Mills will address those parts of article II that charge 
the President with obstructing justice by causing concealment of gifts 
he had given to Ms. Lewinsky, and that he engaged in witness tampering 
in his conversations with Ms. Currie.
  Third, Mr. Kendall will address the remaining allegations of 
obstruction on Thursday, and then we will close by hearing from Senator 
Bumpers.
  Before I move to an overview of the articles and the response that 
you will hear over the next couple of days, I want to suggest to you an 
approach to one of the most difficult questions that you face: How does 
one sitting in judgment on a case like this test the liability of what 
he or she hears in the proceedings? Let me offer one test.
  Those of you who have practiced on one side or the other in the 
criminal justice system know that the system places a special 
responsibility on a prosecutor--a burden to be open, candid, and 
forthcoming in their arguments, and most importantly, in representing 
the facts so that when a prosecutor recites the facts he is not 
expected to ignore the unfavorable ones. He is expected to be open with 
judge and jury. Of course, he can make an argument as to why a 
particular fact is really not so important that he can neither conceal 
it nor misrepresent it. When you hear a prosecutor, or a team of 
prosecutors, misstate a fact or not tell you the whole story, you 
should wonder why. You should ask yourself whether the misstatement is 
an error, or whether it signals some underlying flaw in the 
prosecution's case, or some problem that they are trying to conceal. 
And you ought to be particularly skeptical when the fact that is 
concealed or isn't fully revealed is claimed by the prosecutors 
themselves to be crucial to their case.
  We all sometimes speak with less than complete care, and we are 
justly criticized when we make mistakes. If I tell you something 
inadvertently that proves to be wrong, I expect to be held to account 
for that. And similarly, we must hold the managers accountable for 
their mistakes.
  Last week, for example, you will recall that Mr. Manager 
Sensenbrenner told you that during my coming before the Judiciary 
Committee, in his words,

       Charles Ruff was asked directly: Did the President lie 
     during his sworn grand jury testimony? And Mr. Ruff could 
     have answered that question directly. He did not, and his 
     failure to do so speaks 1,000 words.

  Just to be certain that the Record is straight, let me read to you 
from the transcript of that judiciary hearing.

       Representative Sensenbrenner: The oath that witnesses take 
     require them to tell the truth, the whole truth, and nothing 
     but the truth. I seem to recall that there were a lot of 
     people, myself included, when asked by the press what advice 
     would we give to the President when he went to the grand 
     jury, was to just tell the truth, the whole truth, and 
     nothing but the truth.
       Mr. Ruff: He surely did.
       Representative Sensenbrenner: Did he tell the truth, the 
     whole truth, and nothing but the truth when he was in the 
     grand jury?
       Mr. Ruff. He surely did.

  I am certain that Mr. Sensenbrenner would not intentionally mislead 
the Senate. But his error was one of inadvertence. But, in any event, 
now the Record is clear.
  Of considerably more importance than this momentary lapse are the 
many substantive flaws that we will point out to you in the coming 
days--sometimes pure errors of fact, sometimes errors of 
interpretation, sometimes unfound speculation. My colleagues will deal 
with many of these flaws at greater length as they discuss the specific 
charges against the President. But I will give you some examples as I 
read appropriate points in my overview today, because I want you to 
have in mind throughout our presentation, and indeed throughout the 
rest of the proceedings, this one principle. Beware of it. Beware of 
the prosecutor who feels it necessary to deceive the court.
  Let me begin with article I.
  Our system of justice recognizes the difficulties inherent in 
testifying under oath, and it affords important protections for the 
witness who may be charged with perjury, and thus the Judiciary 
Committee's dissatisfaction with the President's answers because they 
thought they were narrow, or even hairsplitting, or in some sense 
reflect the dissatisfaction with the rules that have been applied for 
centuries in prosecuting this offense.
  Further, it requires proof that a defendant knowingly made a false 
statement about a material fact. The defendant must have had a 
subjective intent to lie. The testimony that is provided as a result of 
confusion, mistake, faulty memory, or carelessness, or misunderstanding 
is not perjury. The mere fact that the recollection of two witnesses 
may differ does not mean that one is committing perjury. Common sense 
and the stringent requirements of the law dictate what law is required. 
As the Supreme Court has noted,

       Equally honest witnesses may well have different 
     recollections of the same event, and thus, a conviction for 
     perjury ought not to rest entirely upon an oath against an 
     oath.

  This is the rationale for the common practice of prosecutors to 
require significant corroborating evidence before they bring a perjury 
case. Indeed, the Department of Justice urges that its prosecutors seek 
independent corroboration, either through witnesses or corroborating 
evidence of a quality to assure that a guilty verdict is really well 
founded.
  This isn't merely the argument we make as we are acting for the 
President. The bipartisan and former Federal prosecutors from whom you 
will hear will testify that neither they nor any reasonable prosecutor 
could charge perjury based upon the facts in this case.
  Tom Sullivan, former U.S. Attorney for the Northern District of 
Illinois, told the committee that the evidence set out would not be 
prosecuted as a criminal case by a responsible Federal prosecutor.
  Richard Davis, a former colleague of mine on the Watergate special 
prosecution force, testified that no prosecutor would bring this case 
of perjury because the President acknowledged to the grand jury the 
existence of an improper relationship and argued with prosecutors 
questioning him that his acknowledged conduct was not a sexual 
relationship as he understood the definition of that term used in the 
Jones deposition. And that is where you need to begin your focus as you 
look at the charge that the President perjured himself in the grand 
jury in August of last year.
  Any assessment of that testimony must begin with one immutable fact. 
He admitted that he had, in his words, inappropriate, intimate contact 
with Monica Lewinsky. No one who was present for that testimony, has 
read the transcript, or watched the videotape could come away believing 
anything other than that the President and Ms. Lewinsky engaged in 
sexual conduct. Indeed, even the prosecutors, who surely cannot be 
accused of being reluctant to find Presidential misconduct, contended 
not that the President had lied about the nature of his relationship 
but only about the details. Yet, the managers, in their eagerness

[[Page 1062]]

to find misconduct where none had found it before, have searched every 
nook and cranny of the grand jury transcript and sent forward to you a 
shopping list of alleged misstatements, obviously in the hope that 
among them you will find one with which you disagree. But they hope in 
vain. The record simply will not support a finding that the President 
perjured himself before the grand jury.
  Now, much of the questioning by the prosecutors and much of the grand 
jury testimony about which the House now complains so vociferously 
dealt with the President's efforts to explain why his answers in the 
Jones deposition, certainly not pretty, were, in his mind, truthful, 
albeit narrowly and artfully constructed.
  We are not here to talk to you today about the President's testimony 
in the Jones deposition. We do seek to convince you that before the 
grand jury the President was open, candid, truthful.
  Now, the managers begin by asking you to look at the prepared 
statement that the President offered at the very beginning of his grand 
jury appearance. Before the President actually began his testimony, his 
lawyer, Mr. Kendall, spoke to Mr. Starr and told him that at the first 
moment at which there was an inquiry concerning the detailed nature of 
the relationship with Ms. Lewinsky, he wished to make a prepared 
statement, and he was permitted to do so. That statement acknowledged 
the existence of an intimate relationship, but it did not discuss the 
specific physical details in what I think we will all understand to 
have been an effort to preserve the dignity of the office.
  Now, the House has charged that this statement was somehow a 
``premeditated effort to thwart the OIC's investigation.'' That is 
errant nonsense. Even independent counsel saw no such dark motive in 
this statement.
  Now, first, the managers advance the baseless charge that the 
President intentionally placed the beginning of his relationship with 
Ms. Lewinsky in 1996 rather than 1995 as she testified. Interestingly, 
they don't even purport to offer any support for this charge other than 
Ms. Lewinsky's testimony, and they offer not even the somewhat odd 
explanation originally offered by the independent counsel to explain 
why the President, having admitted the very worst things a father and 
husband can conceivably admit, would have shifted the time by 3 months.
  Next, the managers assert that the President's admission that he 
engaged in wrongful conduct ``on certain occasions'' was false because 
the President actually engaged in such conduct some 11 times, and they 
assert as well that when the President admitted he had occasional 
telephone conversations that included inappropriate discussions, that 
was false because they had actually had 17 such phone conversations.
  Now, the President gave his best recollection of the frequency of 
those contacts. Ms. Lewinsky gave hers. Assuming that the majority is 
correct in its assumption that there were 11 or 17, can anyone imagine 
a trial in this court or in any other court in which the issue of 
whether ``certain occasions'' by definition could not mean 17 and 
``occasionally'' could not refer to 11 would be the issue being 
litigated?
  Even the independent counsel, again, who could, of course, have 
pressed the President for specific numbers had they thought it 
important, did not take issue with this testimony.
  So, thus, the perjury charge in article I again comes down to the 
same allegations contained in the independent counsel's referral, that 
the President lied to the grand jury about two things--his subjective, 
his personal subjective understanding of the definition used in the 
Jones deposition and, second, he lied when he denied that he engaged in 
certain details of inappropriate conduct.
  Now, to conclude that the President lied to the grand jury about his 
relationship with Ms. Lewinsky, you must determine--forgive me--that he 
touched certain parts of her body, but for proof you have only her oath 
against his oath.
  Those among you who have been prosecutors or criminal defense lawyers 
know that perjury prosecutions, as rare as they are, would never be 
pursued under evidence available here. And those among you who could 
not bring that special experience at least bring your common sense and 
are equally able to assess the weakness of the case that would rest on 
such a foundation.
  Common sense also is enough to tell you that there cannot be any 
basis for charging a witness with perjury on the ground that you 
disbelieve his testimony about his own subjective belief in a 
definition of a term used in a civil deposition. Not only is there no 
evidence to support such a charge here; it is difficult to contemplate 
what evidence the managers might hope to rely on to meet that burden.
  Now, it is worth noting that Mr. Bennett, at the time of the 
deposition, pressed the Jones lawyers to ask the President specific 
questions about his conduct rather than rely on this confusing 
definition that they proffered. In fact, when the President was asked 
in the grand jury whether he would have answered those questions, he 
said, of course, if the judge had ruled them appropriate, he would have 
answered truthfully. But the Jones lawyers persisted in their somewhat 
strange cause, strange unless one asked whether, armed with Ms. Tripp's 
intelligence, they purposely sought in some fashion to present the 
independent counsel a record that would permit just the sort of dark 
interpretation both he and the managers have proffered.
  I point you to one thing. If you seek evidence that the President 
took the definition he was given seriously, and he responded carefully 
to the questions put to him, even if they required the most 
embarrassing answers, one need only look to the painful admission that 
he did have relations with another woman and he testified to the grand 
jury the definition required that he make that admission. Here is what 
he said to the grand jurors:

       I read this carefully, and I thought about it. And I 
     thought about what ``contact'' meant, and I thought about 
     [other phrases] and I had to admit under this definition that 
     I had actually had relations with Jennifer Flowers.

  Now, undeterred in its search for some ground on which to base the 
charge that the President lied to the grand jury, article I abandons 
even the modest level of specificity found in the independent counsel's 
referral and advances the claim:

       The President gave perjurious, false and misleading 
     testimony regarding prior statements of the same nature he 
     made in his deposition.

  There can be no stronger evidence of the constitutional deficiency of 
this article than this strangely amorphous charge as a deficiency that 
becomes even more obvious when you finally stumble across the theory on 
which the managers rely. To the extent one can determine what the 
Judiciary Committee had in mind when it drafted this clause, it appears 
that they intended to charge the President with perjury before the 
grand jury because he testified that he believed--believed--that he 
had, in his words, ``worked through the minefield of the Jones 
deposition without violating the law.'' And that they hoped to support 
that charge by reference to various allegedly false statements in his 
deposition as charged in article II. Unhappily for the managers, 
however, the House rejected article II and it is not before you in any 
form. Moreover, there is not a single suggestion in the committee 
debate--or, more importantly, in the House debate--that those voting to 
impeach the President believed that this one line that I have quoted to 
you from the President's grand jury testimony, somehow absorbed into 
article I his entire deposition testimony.
  If there is to be any regard for constitutional process, the managers 
cannot be allowed to rely on what the Judiciary Committee thought were 
false statements encompassed in a rejected article II to flesh out the 
unconstitutionally nonspecific charges of article I. The House's vote 
on article II foreclosed that option for all time.
  Now, article I next alleges that the President lied to the grand jury 
about the events surrounding certain statements made by Mr. Bennett 
during the

[[Page 1063]]

Jones deposition. Specifically, the managers charge that the President 
was silent when Mr. Bennett characterized the Lewinsky affidavit as 
meaning there was no sex of any kind in any manner, shape, or form with 
President Clinton, and that the President then gave a false explanation 
to the grand jury when he testified that he wasn't really paying 
attention when his lawyer said that.
  Now, as we noted earlier, Mr. Bennett argued to Judge Wright that, in 
light of Ms. Lewinsky's affidavit denying a relationship, the Jones 
lawyers had no good-faith basis for questioning the President about 
her. The President was not involved in the lengthy back and forth among 
the judge, the Jones lawyers, and Mr. Bennett. He said nothing. When he 
was asked in the grand jury about Mr. Bennett's statement, he said, 
``I'm not even sure I paid much attention to what Mr. Bennett was 
saying.''
  Now, the managers assert that this is false because the videotape 
shows that the President was in fact paying attention. But a fairer 
view of the videotape, I suggest to you, shows the President looking, 
indeed, in Mr. Bennett's direction, and in the direction of the judge, 
but giving no sign that he was following the discussion. He didn't nod 
his head. He didn't make facial expressions. There was nothing to 
reflect an awareness of the substance of what was happening, much less 
what was said in Mr. Bennett's statement.
  Now, I don't know how large a group this would be, but any of you who 
has ever represented a witness or been a witness in a deposition will 
readily understand the President's mindset, that the lawyers and the 
judge debated these issues, and you will understand, too, that to 
charge him with perjury for having testified falsely about his own 
state of mind with nothing more to rely on than a picture would strain 
credulity in any prosecutor's office and flies past the bounds of 
constitutional reason in this Chamber.
  I move, now, to the allegations in article II charging the President 
with obstruction of justice in the Jones lawsuit and in the grand jury 
investigation. I want to talk first about what has become known as the 
concealment of gifts theory. The allegation that the President 
participated in some scheme to conceal certain gifts he had given to 
Ms. Lewinsky centers on two events allegedly occurring on December 28, 
1997: First, conversation between the President and Ms. Lewinsky in the 
White House in which the two discussed the gifts, at least briefly, 
that he had given to Ms. Lewinsky; and, B, Ms. Currie's picking up a 
box of gifts from Ms. Lewinsky and storing them under her bed.
  The managers, as was true of the majority report--and the independent 
counsel role before that--build their theory in this case not on any 
pillars of obstruction but on shifting sand castles of speculation. 
Monica Lewinsky met with the President on December 28, 1997, sometime 
shortly before 8 a.m. to exchange Christmas presents. According to Ms. 
Lewinsky, they briefly discussed the subject of gifts she had received 
from the President in connection with her receipt some days earlier of 
the subpoena in the Jones case, and this was the first and the only 
time, she says, in which the subject was ever discussed.
  Now, the managers quote one conversation of Ms. Lewinsky's 
description of that December 28 version as follows:

       At some point I said to him, well, you know, should I --
     maybe I should put the gifts away outside my house somewhere 
     or give them to someone, maybe Betty. And he sort of said--I 
     think he responded ``I don't know,'' or ``let me think about 
     that,'' and left that topic.

  But the Senate should know that in fact Ms. Lewinsky has discussed 
this very exchange on at least 10 different occasions and that the very 
most she alleges in any of them is that the President said, ``I don't 
know,'' or ``Let me think about it,'' when she raised the issue of the 
gifts. Indeed, in many of her versions she said, among other things, 
there really was no response, that the President did not respond, that 
she didn't have a clear image in her mind what to do next. She also 
testified that Ms. Currie's name did not come up because the President 
really didn't say anything. And, most importantly, in not a single one 
of her multiple versions of this event did she say that the President 
ever initiated any discussion about the gifts, nor did he ever suggest 
to her that she conceal them.
  Now, there being no evidence of obstruction in that conversation, the 
managers would have you believe that after Ms. Lewinsky left the White 
House that day, the President must have told Betty Currie to retrieve 
the gifts from Ms. Lewinsky. But there is absolutely no evidence that 
that discussion ever occurred. The only two parties who would have 
knowledge of it, the President and Ms. Currie, both denied it ever took 
place.
  Now, in the absence of any such evidence, the managers have relied on 
Ms. Lewinsky's testimony that Ms. Currie placed a call to her and told 
her--depending on Ms. Lewinsky's version--either that the President had 
said to Betty Ms. Lewinsky had something for her or merely that she, 
Ms. Currie, understood that Ms. Lewinsky had something for her.
  In this regard, it is important to remember that Ms. Lewinsky herself 
testified that she was the one who first raised with the President the 
notion that Ms. Currie could hold the gifts. And it is important to 
recognize that, contrary to the managers' suggestion to you that Ms. 
Lewinsky's memory of this event has always been consistent and--- 
``unequivocal,'' I think was their word--she herself acknowledged at 
her last grand jury appearance that her memory of the crucial 
conversation is less than crystal clear. To wit:

       A Juror: Do you remember Betty Currie saying that the 
     President had told her to call?
       Ms. Lewinsky: Right now, I don't remember.

  And now we come to the first example I promised you of 
prosecutorial--what shall we call it?--fudge. Starting from the premise 
that Betty Currie called Monica Lewinsky and told her that she 
understood she had something for her and then went to pick up a sealed 
box containing some of the gifts she had received, Ms. Lewinsky had 
received from the President, first the independent counsel concluded, 
and then the majority report concluded, and now the managers have 
concluded, that the President must have instructed Ms. Currie to go 
pick up these gifts--to call Ms. Lewinsky and make the arrangements. So 
that they determined that when Ms. Currie said it was Ms. Lewinsky who 
called her, Ms. Currie was mistaken or, if you listen carefully, maybe 
worse. And when the President testified that he didn't tell Ms. Currie 
to call Ms. Lewinsky, he was--well, just worse. And this surmise is 
made absolutely certain, in the view of the managers, because a newly 
discovered, unknown even to independent counsel, cell phone record 
shows that Ms. Currie called Ms. Lewinsky at 3:32 p.m. on December 28 
and that must be the call that Ms. Lewinsky remembered.
  Let's look now at how the majority counsel for the committee put it 
in his closing argument to the Judiciary Committee. I have put his 
words up on the chart, and you all should have it in front of you as 
well:

       There is key evidence [said majority counsel] that Ms. 
     Currie's fuzzy recollection is wrong. Monica said that she 
     thought Betty called from her cell phone. Well, look at this 
     record. [Show it to you later.] This is Betty's cell phone 
     record. It corroborates Monica Lewinsky and proves 
     conclusively that Ms. Currie called Monica from her cell 
     phone several hours after she had left the White House. Why 
     did Betty Currie pick up the gifts from Ms. Lewinsky? The 
     facts strongly suggest the President directed her to do so.

  There is a slight problem with the majority counsel's epiphany, as it 
has been passed down to the managers and then to you. For you see--and 
here is the cell phone record--it reflects that at 3:32 p.m. on 
December 28, from Arlington, VA, to Washington, DC--that is Ms. 
Lewinsky's number--there was a call of a minute, it says here. And then 
we have to ask, Does this timing fit with the rest of the testimony?
  Well, the answer is, no, it doesn't, because on three separate 
occasions, Ms.

[[Page 1064]]

Lewinsky testified that Ms. Currie came over to pick up the gifts at 2 
o'clock in the afternoon, an hour and a half before the phone call. It 
is not as though we have been hiding the ball on this, Senators. We 
discussed this issue at length in our trial brief, and the managers do 
seem to have recognized at least some of the problem, because they have 
told you, albeit without the slightest evidentiary support, that maybe 
Ms. Lewinsky just miscalculated a little bit. Well, maybe she just 
miscalculated a little bit three times. Look at the record:
  FBI interview, July 27: Lewinsky met Currie on 28th Street outside 
Lewinsky's apartment at about 2 p.m. and gave Currie the box of gifts.
  FBI interview, August 1: Lewinsky gave the box to Betty Currie when 
Currie came by the Watergate about 2 p.m.
  Grand jury testimony, 3 weeks later: ``I think it was around 2 p.m. 
or so, around 2:00 in the afternoon.''
  The managers speculate that if only the independent counsel had had 
this phone record when they were interviewing Ms. Lewinsky, they could 
have refreshed her recollection. Having been one, I can tell you, 
that's prosecutor's speak for ``if we'd only known about that darn 
record, we could have gotten her to change her testimony.''
  But the managers have one other problem that they didn't address. The 
phone record--if we can go back to that for a moment--the phone record 
shows a call lasting 1 minute. All of us who have cell phones know that 
really means it lasted well short of a minute, because the phone 
company rounds things up to the nearest minute, just to help us all 
with our bookkeeping. [Laughter.]
  So now it will be necessary not only for Ms. Lewinsky's memory to be 
refreshed about the hour of the pickup, but to explain how the 
arrangements for it could have been made between Ms. Lewinsky and Ms. 
Currie in somewhere between 1 and 60 seconds.
  Putting these factual difficulties aside, this charge must fail for 
another reason. As you all know from presentations earlier, the 
President gave Ms. Lewinsky several gifts on the very day that they 
met, December 28. Faced with having to explain why on the day that the 
President and Monica Lewinsky were conspiring to conceal gifts from the 
Jones' lawyers the President gave her additional ones, the managers 
surmised that the real purpose was because it was part of a subtle 
effort to keep Ms. Lewinsky on the team, but in truth the only 
reasonable explanation for these events is the one the President gave 
to the grand jury. He was simply not concerned about gifts. He gave a 
lot, he got a lot, and he saw no need to engage in any effort to 
conceal them.
  The President did not urge Ms. Lewinsky to conceal the gifts he had 
given her and, of course, he did not lie to the grand jury about that 
subject.
  The next point I want to discuss with you is the statements the 
President made to Betty Currie on the day after the Jones deposition, 
January 18 of last year. There is no disputing the record, no conflict 
in testimony that the President did meet with his secretary, Betty 
Currie, on the day after the Jones deposition and they discussed Monica 
Lewinsky.
  The managers cast this conversation, this recitation, this series of 
statements and questions put by the President to Ms. Currie in the most 
sinister light possible and allege that the President attempted to 
influence the testimony of a ``witness'' by pressuring Ms. Currie to 
agree with an inaccurate version of the facts surrounding his 
relationship with Ms. Lewinsky.
  President Clinton has adamantly denied that he had any such 
intention, and that denial is fortified by the undisputable factual 
record establishing that Betty Currie neither was an actual or a 
contemplated witness in the Jones litigation, nor did she perceive that 
she was being pressured in any respect by the President to agree with 
what he was saying.
  First, Ms. Currie's status as a witness, and the only proceeding the 
President knew about at that moment, the Jones case, Ms. Currie was 
neither an actual nor a prospective witness. As to the only proceeding 
in which she ultimately became a witness, no one would suggest, 
managers, no one else would suggest the President knew that the 
independent counsel was conducting an investigation into his 
activities.
  In the entire history of the Jones case, Ms. Currie's name had not 
appeared on any of the witness lists, nor was there any reason to 
suspect Ms. Currie would play a role in the Jones case. Discovery was 
down to its final days. The managers speculate that the President's own 
references to Ms. Currie during his deposition meant she was sure to be 
called by the Jones lawyers. Yet, in the days, weeks following the 
deposition, the Jones lawyers never listed her, never contacted her, 
never added her to any witness list. They never deposed her; they never 
noticed the deposition.
  Indeed, when the independent counsel interviewed the Jones lawyers, 
they apparently neglected to ask whether they had ever intended to call 
Betty Currie as a witness. One can be sure that if such an intent 
existed, they would have asked and it would have been included in the 
referral.
  Moreover, it is a sure bet that the Jones lawyers already knew about 
Betty Currie and her relationship with Monica Lewinsky. Why? Because we 
know from her own recorded telephone conversations that Ms. Tripp had 
been in contact with the Jones lawyers for months, and we know that she 
spent the evening before the President's deposition telling them 
everything she knew.
  It didn't take a few references to his secretary by the President to 
trigger a subpoena for Betty Currie if they had ever wanted to do that, 
and they never did. Nor did the President ever pressure Ms. Currie to 
alter her recollection. Despite the prosecutor's best efforts to coax 
Ms. Currie into saying she was pressured to agree with the President, 
Ms. Currie adamantly denied it.
  Let me quote just briefly a few lines of her grand jury testimony:

       Question: Now, back again to the four statements that you 
     testified the President made to you that were presented as 
     statements, did you feel pressured when he told you those 
     statements?
       Answer: None whatsoever.
       Question: That was your impression, that he wanted you to 
     say--because he would end each of the statements with 
     ``Right?'', with a question.
       Answer: I do not remember that he wanted me to say 
     ``Right.'' He would say ``Right'' and I could have said, 
     ``Wrong.''
       Question: But he would end each of those questions with a 
     ``Right?'' and you could either say whether it was true or 
     not true?
       Answer: Correct.
       Question: Did you feel any pressure to agree with your 
     boss?
       Answer: None [whatsoever].

  Now, to understand on a human level why the President reached out to 
Betty Currie on the day after his deposition, you need only to 
understand that he had just faced unexpected detailed questions about 
his worst nightmare. As he candidly admitted to the grand jury, he had 
long feared that his relationship with Ms. Lewinsky would ultimately 
become public. Now, with questioning about her in the Jones case, 
publication of the first Internet article, the day of recon had 
arrived. The President knew that a media storm was about to erupt. And 
it did.
  Now, if you are looking for evidence on which to base an inference 
about the President's intentions with respect to Ms. Currie's 
testimony, look what he said to her when he knew that she was going 
before the grand jury.

       And then I remember when I knew she was going to have to 
     testify to the grand jury, and I, I felt terrible because she 
     had been through this loss of her sister, this horrible 
     accident Christmas that killed her brother, and her mother 
     was in the hospital. I was trying to do--to make her 
     understand that I didn't want her to, to be untruthful to the 
     grand jury. And if her memory was different than mine, it was 
     fine, just go in there and tell them what she thought. So, 
     that's all I remember.

  The President of the United States did not tamper with a witness.
  Now next, the managers argue that Mr. Clinton corruptly encouraged 
Ms. Lewinsky to submit a false affidavit to the Jones lawyers and to 
lie if she were ever deposed. But the uncontroverted evidence refutes 
that charge. Indeed, Ms. Lewinsky herself has repeatedly

[[Page 1065]]

and forcefully denied that anyone ever asked her to lie. There is no 
way to get around that flat denial, even with the independent counsel's 
addition of the word ``explicitly.'' There was no explicit, implicit, 
or any other direction to Ms. Lewinsky to lie. Indeed, the only person 
to whom Ms. Lewinsky said anything inconsistent with her denial was the 
ubiquitous Ms. Tripp. And, as Ms. Lewinsky later told the grand jury:

       I think I told her that, you know, at various times the 
     President and Mr. Jordan had told me I have to lie. That 
     wasn't true.

  Left with this record, the managers resort to arguing that Ms. 
Lewinsky understood that the President wanted her to lie, that he could 
not have wanted her to file an affidavit detailing their relationship. 
But the only factual support for this theory recited by the majority is 
the testimony of Ms. Lewinsky that, while the President never 
encouraged her to lie, he remained silent about what she should have to 
say or do, and by such silence she said, ``I knew what he meant.''
  The very idea that the President of the United States should face 
removal from office, not because he told Monica Lewinsky to lie or 
anything of this sort, but because he was silent and Ms. Lewinsky 
``knew what he meant,'' is, I suggest, more than troubling.
  So to bolster their flawed ``I knew what he meant'' theory, the 
managers assert that the President knew the affidavit would have to be 
false in order for Ms. Lewinsky to avoid testifying. But the evidence 
here, too, is that the President repeatedly testified that Ms. Lewinsky 
could and would file a truthful affidavit. And, of course, Ms. Lewinsky 
herself has made it clear that her definition of the critical term that 
might be used in such an affidavit was consistent with the President's.
  Further testimony from Ms. Lewinsky herself repudiates any suggestion 
that she was ever encouraged by anyone to lie if she were deposed in 
the Jones case. In a colloquy with a grand juror, she explicitly and 
unequivocally rejected the notion that President Clinton encouraged her 
to deny the relationship after she learned she was a witness. Referring 
to discussions about the so-called cover stories that the managers 
allege were to be used in her testimony, a grand juror asked her:

       It is possible that you had these discussions after you 
     learned that you were a witness in the Paula Jones case?
       Answer: I don't believe so, no.
       Question: Can you exclude that possibility?
       Answer: I pretty much can.

  The managers would have you conclude the contrary from a brief 
snippet of the conversation on December 17 in which Ms. Lewinsky said 
that at some point, ``I don't know if it was before or after the 
subject of the affidavit came up, the President sort of said, `Well, 
you know, you can always say you were coming to see Betty or that you 
were bringing me letters.' ''
  But Ms. Lewinsky told the FBI when she was interviewed, ``To the 
best''--this is the FBI talking--``To the best of Miss Lewinsky's 
memory, she does not believe they discussed''--in this December 17 
conversation--``the content of any deposition that Miss Lewinsky might 
be involved in at a later date.'' And she told the grand jury the same 
thing. Describing the very same December 17 conversation, she testified 
that she and the President did not discuss the idea of her denying 
their relationship.

       Ms. Lewinsky: I really don't remember it. I mean, it would 
     be very surprising for me to be confronted with something 
     that would show me different, but it was 2:30, and, I mean, 
     the conversation I'm thinking of mainly would have been 
     December 17, which was--
       A juror interjects: The telephone call?
       Ms. Lewinsky: Right. And it was, you know, 2, 2:30 in the 
     morning. And I remember the gist of it, and I really don't 
     think so.

  And it is on that basis that the managers suggest that the President 
obstructed justice.
  Fourth, article II alleges that the President obstructed justice by 
denying to his closest aides he had a sexual relationship with Monica 
Lewinsky, the very same denial he made to his family and his friends 
and to the American people. These allegedly impeachable denials took 
place in the immediate aftermath of the public revelation of the 
Lewinsky matter, at the very time that the President was denying that 
relationship to the entire country on national television. Having made 
the announcement to the whole country, it is simply absurd, I suggest 
to you, to believe that he was somehow attempting corruptly to 
influence his senior staff when he told them virtually the same thing 
at the same time.
  Now, the managers do not allege--as they could not--that the 
President attempted to influence the aides' testimony about what they 
themselves knew concerning his relationship with Ms. Lewinsky--had they 
seen her in a particular place; had they talked to her; had they talked 
to the President about it before all of this broke.
  Indeed, the only evidence these aides had was the very same denial 
that the entire American people had. Indeed, every member of the grand 
jury had probably seen this denial by the President on their own 
television sets. Under the theory proffered by the managers, in 
essence, every person who heard the President's denial could have been 
called to the grand jury and ordered to create still an additional 
charge of obstruction of justice.
  The point here was not that the President believed that his staff 
would be witnesses and somehow wanted to influence their testimony. As 
he explained to the grand jury, what he was trying to do was avoid 
being a witness. But, of course, he had to say something to them. He 
had to say, in the aftermath of January 21, something to reassure them. 
And he told them exactly what he told every one of you, everyone in the 
gallery, and everyone who watched television in those days following 
January 21.
  And let me just make this one point. There is absolutely no conflict 
in the evidence here, despite the managers' somewhat puzzling 
suggestion that the Senate's deliberations would somehow be aided if 
two of the senior staff members could be called as witnesses. Not only 
is there no conflict in the evidence, there is absolutely no basis for 
the charge that the President was in any way seeking to influence the 
testimony of his staff before the grand jury.
  Now we come to the last of the obstruction charges. The managers ask 
you to find that the President of the United States employed his 
friend, Vernon Jordan, to get Monica Lewinsky a job in New York, to 
influence her testimony, or perhaps in a somewhat forlorn effort to 
escape the reach of the Federal Rules of Civil Procedure, to hide from 
the Jones lawyers and the 8 million people who live in that city.
  There is, of course, absolutely no evidence to support this 
conclusion, and so the managers have constructed out of sealing wax and 
string and spiders' webs a theory that would lend to a series of 
otherwise innocuous and, indeed, exculpatory events, a dark and 
sinister past.
  The undisputed record establishes the following: One, that Lewinsky's 
job search began on her own initiative; two, the search began long 
before her involvement in the Jones case; three, the search had no 
connection to the Jones case; four, Vernon Jordan agreed to help her, 
not at the direction of the President but at the request of Ms. Currie, 
Mr. Jordan's long-time friend; five, the idea to solicit Mr. Jordan's 
assistance again came not from the President but from Ms. Tripp.
  As I thought about this aspect of it, I have to say I was reminded of 
Iago and Desdemona's handkerchief. But we will pass on that.
  Both Ms. Lewinsky and Mr. Jordan have repeatedly testified that there 
was never an agreement, a suggestion, an implication, that Ms. Lewinsky 
would be rewarded with a job for her silence or her false testimony. As 
Mr. Jordan succinctly put it, ``Unequivocally, indubitable, no.''
  It was only to appease Ms. Tripp that Ms. Lewinsky ultimately told 
her that she had told Mr. Jordan she wouldn't sign the affidavit until 
she had a job. But as she told the grand jury, ``That was definitely a 
line based on something that Linda had made me promise on January 9.''

[[Page 1066]]

  Now while the managers dismiss as irrelevant Ms. Lewinsky's job 
search before December, the fact is, Ms. Lewinsky contemplated looking 
for a job in New York as early as July 1997, and her interest was 
strengthened in early October when Ms. Tripp told her it was unlikely 
she would ever get another job in the White House. It was then Ms. 
Tripp and Ms. Lewinsky discussed the prospect of having Vernon Jordan 
help her get a job in New York and Ms. Lewinsky mentioned that idea to 
the President.
  Later in October, as part of this ongoing search, Ambassador 
Richardson agreed to interview Ms. Lewinsky at the suggestion of then-
Deputy Chief of Staff Podesta who had been asked to help by Ms. Currie. 
And Ambassador Richardson offered her a job and she had that job in 
hand throughout the supposedly critical December timeframe, didn't 
actually turn it down until early January. And, further, in late 
October or early November, she actually went to her boss at the 
Pentagon and asked for his help to find a job.
  Meanwhile, now we come to what, for the managers, is the very heart 
of the case. On November 5, Ms. Lewinsky had a preliminary meeting with 
Mr. Jordan and they discussed a list of potential employers. And 
although the managers then contend that nothing happened from November 
5, that first meeting, until December 11, signifying, as they see it, 
that it must have been Ms. Lewinsky's appearance on the witness list 
that galvanized Mr. Jordan into action, that is simply false.
  Ms. Lewinsky had a followup telephone conversation with Mr. Jordan 
around Thanksgiving in which he told her he was working on the job 
search and he asked her to call him in the first week of December. The 
President learned Ms. Lewinsky was on the Jones witness list sometime 
on December 6. He met with Mr. Jordan the very next day, December 7. 
But oddly, if one adopts the managers' view, there was no discussion of 
Ms. Lewinsky or the Jones case, much less job searches. Then on 
December 8, Ms. Lewinsky called Mr. Jordan's office and made her 
appointment to meet with him on December 11.
  Now the President absolutely had nothing to do with that call or that 
appointment and Mr. Jordan denies that there was any intensified effort 
to find Ms. Lewinsky a job. He said, ``Oh, no, I do not recall any 
heightened sense of urgency in December, but what I do recall is that I 
dealt with it when I had time to do it.''
  Now for my second example of prosecutorial fudging. The managers have 
devoted much attention to the magic date of December 11, arguing 
vigorously that it was on that day that getting the job for Ms. 
Lewinsky suddenly became a matter of high priority for the President 
and hence to Mr. Jordan. Why is that so? Well, again, I will let the 
majority counsel for the Judiciary Committee tell you in his own words 
during his closing argument.
  Again, you should have this before you if you can't see the chart.

       But why the sudden interest, why the total change in focus 
     and effort? Nobody but Bettie Currie really cared about 
     helping Ms. Lewinsky throughout November, even after the 
     President learned that her name was on the prospective 
     witness list. Did something happen to move the job search 
     from a low to a high priority on that day? Oh, yes, something 
     happened. On the morning of December 11, 1997, Judge Susan 
     Webber Wright ordered that Paula Jones was entitled to 
     information regarding any State or Federal employee with whom 
     the President had sexual relations or proposed or sought to 
     have sexual relations. To keep Monica on the team was now of 
     critical importance. Remember, they already knew that she was 
     on the witness list, although nobody bothered to tell her.

  That same theme was picked up last week by Mr. Manager Hutchinson, 
both in his recitation of events of that day and in the exhibits he 
showed you. If I am lucky, we will place on the easel to my right the 
exhibit that Manager Hutchinson used.
  You will see the order that this exhibit places on the critical 
events of November and December. November 5 meeting, the no-job-search 
action; the President receives a witness list. And then of special 
interest, December 11, first event, ``Judge Wright order permitting 
questions about Lewinsky.'' Too, on December 11, the ``President and 
Jordan talk about job for Monica.''
  Now, let me ask you to focus on what Mr. Hutchinson told you about 
the events of December 11. Sounding somewhat like majority counsel, he 
asks:

       And so, what triggered--let's look at the chain of events. 
     The judge--the witness list came in, the judge's order came 
     in, that triggered the President into action and the 
     President triggered Vernon Jordan into action. That chain 
     reaction here is what moved the job search along . . . 
     remember what else happened on that day [December 11] again. 
     That was the same day that Judge Wright ruled that the 
     questions about other relationships could be asked by the 
     Jones attorneys.

  Now, it appears to me that the manager was suggesting--again, with 
not a great deal of subtlety--that Vernon Jordan, one of this country's 
great lawyers and great citizens, was prepared to perjure himself to 
save the President.
  So let's just imagine the managers' examination of Mr. Jordan in this 
Chamber that would let you make your own judgment about his 
truthfulness.
  Question: Mr. Jordan, isn't it a fact that you met with Ms. Lewinsky 
on December 11 to help get her a job?
  Answer: Yes.
  Question: And isn't it a fact that before and after you met with her, 
you made calls to potential employers in New York?
  Answer: Yes.
  Question: Isn't it true that the reason for all of this activity on 
December 11 was that Judge Wright had on that very day issued an order 
authorizing the Jones lawyers to depose certain women like Miss 
Lewinsky?
  Answer: No.
  Question: What do you mean ``no''? Isn't it true that the judge had 
issued an order before you met with Ms. Lewinsky and before you made 
the calls?
  Answer: I had no knowledge of any such order. The fact that Ms. 
Lewinsky was a potential witness had nothing to do with my helping. I 
made an appointment to see her 3 days earlier.
  Question: Well, isn't it a fact that Judge Wright filed her order on 
December 11 before you met with Ms. Lewinsky?
  Answer: Well, actually no.
  Let me show you the official report of the judge's discussion with 
the lawyers in the Jones case on that date. You have this before you as 
well. There's a conference call between the judge and the lawyers, 
which is memorialized in a formal document prepared by a clerk and on 
file in the case in Arkansas. It notes that the conference call began 
at 5:33 p.m. central standard time. If I have my calculations right, 
that is 6:33 p.m. in Washington.
  I want to stop here for a second so that you know where Mr. Jordan 
was when that happened. Let me see the next chart.
  By the way, this is Mr. Jordan testifying:

       I was actually on a plane for Amsterdam by the time the 
     judge issued her order.

  So he testified in the grand jury.

       I left on United flight 946 at 5:55 from Dulles Airport and 
     landed in Amsterdam the next morning.

  So the conference call begins at 6:33 eastern standard time. The 
court takes up another variety of matters, and the judge didn't even 
tell the lawyers that she was going to issue an order on the motion to 
compel these various depositions until the very end of the call, around 
7:45 eastern standard time, and the clerk would actually FAX them a 
copy at that point.
  So we return to Mr. Jordan's mythical testimony. To summarize, let me 
show you something that tells you what the real sequence of events was 
on December 11. Vernon Jordan makes a possible job call at 9:45, and 
another at 12:49, and another at 1:07; he meets with Ms. Lewinsky from 
1:15 to 1:45; he gets on his plane at 5:55 in the afternoon, and an 
hour or so later the lawyers are informed that the judge had issued her 
order.
  In fact--just as a little filler--the President is out of town and 
returns to Washington at 1:10 a.m. And actually, Judge Wright's order 
is filed not on the 11th, but on the 12th.

       Question: Oh, I see. Well, never mind.

  Now, do any of you think that you need to look Mr. Jordan in the eye 
and

[[Page 1067]]

hear his tone of voice to understand that the prosecutors have it wrong 
and have had, at least since the majority counsels' closing argument?
  You will also learn from us--but not from the managers--that Mr. 
Jordan placed no pressure on any company to give Ms. Lewinsky a job. 
Indeed, two other companies he called didn't even offer her a job.
  Just as the managers dramatically mistake the record relating to Mr. 
Jordan's efforts to help Ms. Lewinsky find a job, so, too, do they 
invent a nonexistent link between a call Mr. Jordan made ultimately to 
Mr. Perelman, the CEO of MacAndrews and Forbes, Revlon's parent, and 
the offer Ms. Lewinsky finally received from Revlon with her signing of 
the affidavit in the Jones case. We will demonstrate beyond any 
question, once again, that conclusions the managers have drawn are 
simply false.
  Again, I'll begin with the fact that both Mr. Jordan and Ms. Lewinsky 
testified that there was no such link between the job and the 
affidavit, and the only person to ever suggest such a link was, once 
again, Ms. Tripp. Now, I presume that it is not the managers' intention 
to suggest that we bring Ms. Tripp before you to explore her motivation 
for making that suggestion.
  Next, take Ms. Lewinsky's interview with MacAndrews official, which 
she described as ``having gone poorly''--a characterization adopted by 
the managers for obvious reasons--because it suggests that there was a 
desire on their part to heighten the supposed relevance of the call Mr. 
Jordan made to Mr. Perelman. In other words, under their theory, Ms. 
Lewinsky's job prospects at MacAndrews and Forbes, or Revlon, were 
caput until Vernon Jordan made the call and resurrected her chances.
  Unfortunately, like so much of the obstruction case, the facts do not 
bear out this convenient theory. In fact, the man who interviewed Ms. 
Lewinsky at MacAndrews was impressed with her, and because there was 
nothing available in his area, he sent her resume to Revlon where she 
was hired by someone who did not know about Mr. Jordan's call to Mr. 
Perelman.
  So much for obstruction by job search.
  That, then, is an overview of the charges contained in these 
articles. You will hear about them in greater detail than I could offer 
you today when my colleagues speak in the next two days. I want to 
bring my presentation to a close.
  We are not here to defend William Clinton, the man. He, like all of 
us, will find his judges elsewhere. We are here to defend William 
Clinton, the President of the United States, for whom you are the only 
judges. You are free to criticize him, to find his personal conduct 
distasteful; but ask whether this is the moment when, for the first 
time in our history, the actions of a President have so put at risk the 
Government the framers created that there is only one solution. You 
must find not merely that removal is an acceptable option, that we will 
be OK the day after you vote; you must find that it's the only 
solution, that our democracy should not be made to sustain two more 
years of this President's service. You must put that question because 
the one thing that our form of Government cannot abide is the notion 
that impeachment is merely one more weapon a Congress can use in the 
process between the legislative and executive branches.
  Let me be very clear. We do not believe that President Clinton 
committed any of the offenses charged by the managers. And for the 
reasons we will set out at length over the next two days, we believe 
the managers have misstated the record, have constructed their case out 
of tenuous extrapolations, without foundation, and have at every turn 
assumed the worst without the evidence to support this speculation.
  You put these lawyers in a courtroom and they win 10 times out of 10.
  But suppose we are wrong. Suppose that you find that the President 
committed one or more of the offenses charged. Then there remains only 
one issue before you. Whatever your feelings may be about William 
Clinton, the man, or William Clinton, the political ally or opponent, 
or William Clinton, the father and husband, ask only this: Should 
William Clinton, the President, be removed from office? Are we at that 
horrific moment in our history when our Union could be preserved only 
by taking the step that the framers saw as the last resort? I am never 
certain how to respond when an advocate on the other side of a case 
calls up images of patriots over the centuries sacrificing themselves 
to preserve our democracy. I have no personal experience with war. I 
have only visited Normandy as a tourist. I do know this: My father was 
on the beach 55 years ago, and I know how he would feel if he were 
here. He didn't fight, no one fought, for one side of this case or the 
other. He fought, as all those did, for our country and our 
Constitution. As long as each of us--the managers, the President's 
counsel, the Senators--does his or her constitutional duty, those who 
fought for the country will be proud.
  We, the people of the United States, have formed a more perfect 
Union. We formed it. We nurtured it. We have seen it grow. We have not 
been perfect. And it is perhaps the most extraordinary thing about our 
Constitution--that it thrives despite our human imperfections.
  When the American people hear the President talk to Congress tonight, 
they will know the answer to the question, ``How stands the Union?'' It 
stands strong, vibrant, and free.
  I close as I opened 2 hours ago, or 2 and a half hours ago. William 
Jefferson Clinton is not guilty of the charges that have been brought 
against him of committing perjury. He didn't obstruct justice. He must 
not be removed from office.
  Thank you.
  The CHIEF JUSTICE. The Chair recognizes the majority leader.

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