[Congressional Record (Bound Edition), Volume 145 (1999), Part 2]
[Senate]
[Pages 2380-2571]
[From the U.S. Government Publishing Office, www.gpo.gov]




   TRIAL OF WILLIAM JEFFERSON CLINTON, PRESIDENT OF THE UNITED STATES

  Mr. GORTON. Mr. President, the statement that I am placing in the 
record is the statement I would have given had I been permitted to 
speak longer and in open session. During our closed deliberations, I 
gave a similar, but abridged statement.
  For almost two years, the President of the United States was engaged 
in what he has come to describe as an ``inappropriate intimate'' 
relationship with a young woman who came to his attention as a White 
House intern. He then lied about their relationship, publicly, 
privately, formally, informally, to the press, to the country, and 
under oath, for a period of about a year.
  This course of conduct requires us to face four distinct questions.
  First, we must determine if the material facts alleged in the 
Articles of Impeachment have been established to our satisfaction.
  Second, do the established facts constitute either obstruction of 
justice or perjury, or both?
  Third, are obstruction of justice and perjury high Crimes and 
Misdemeanors under the Constitution?
  And, fourth, even if the acts of the president are high Crimes and 
Misdemeanors, are they of sufficient gravity to warrant his conviction 
if it allows of no alternative other than his removal from office?
  The first article of impeachment alleges that the President committed 
perjury while testifying before the Starr grand jury. Although the 
House Managers assert that his testimony is replete with false 
statements, it is clear, at the least, that his representations about 
the nature and details of his relationship with Miss Lewinsky are 
literally beyond belief.
  From November 1995, until March 1997, the President engaged in 
repeated sexual activities with Monica Lewinsky, who was first a 
volunteer at and then an employee of the White House and eventually the 
Pentagon. Though he denies directly few of her descriptions of those 
activities, he testified under oath that he did not have ``sexual 
relations'' with her. His accommodation of this paradox is based on the 
incredible claim that he did not touch Miss Lewinsky with any intent to 
arouse or gratify anyone sexually, even though she performed oral sex 
on him.
  It seems to me strange that any rational person would conclude that 
the

[[Page 2381]]

President's description of his relationship with Miss Lewinsky did not 
constitute perjury.
  In addition, while we are not required to reach our decision on these 
charges beyond a reasonable doubt, I have no reasonable doubt that the 
President committed perjury on a second such charge when he told the 
grand jury that the purpose of the five statements he made to Mrs. 
Currie after his Jones deposition was to refresh his own memory.
  The President knew that each statement was a lie. His goal was to get 
Mrs. Currie to concur in those lies.
  The other allegations of perjury are either unproven--particularly 
those requiring a strict incorporation of the president's Jones 
deposition testimony into his grand jury testimony--or are more 
properly considered solely--with those already discussed--as elements 
of the obstruction of justice charges in Article II.
  To determine that the president perjured himself at least twice, 
however, is not to decide the ultimate question of guilt on Article I. 
That I will discuss later.
  All the material allegations of Article II seem to me to be well 
founded. Four of them, however, those regarding the president's 
encouraging Miss Lewinsky to file a false affidavit and then to give 
false testimony, those regarding the president's failure to correct his 
attorney's false statements to the Jones court, and those bearing upon 
the disposal of his gifts to her are not, in my mind, proven beyond a 
reasonable doubt. Again, I do not believe this standard to be required 
in impeachment trials, but because I believe that the other three 
factual allegations of Article II do meet that standard, I adopt it for 
the purposes of this discussion.
  (1) From the time she was transferred to the Pentagon in April, 1996, 
Miss Lewinsky had pestered the president about returning to work at the 
White House, and, other than some vague referrals, until October 1, 
1997, the President had done nothing to make this happen and little to 
help her find another job.
  On the first of October, 1997, the president was served with 
interrogatories in the Jones case asking about his sexual relationships 
with women other than his wife, and during the rest of October the 
President and his agents stepped up their efforts to find Miss Lewinsky 
a job. Three weeks later, on October 21, the United States Ambassador 
to the United Nations, Bill Richardson, called Miss Lewinsky personally 
to schedule an interview in her apartment complex, though apparently he 
interviewed no one else. Shortly after this unusual interview, the 
Ambassador created a new position in New York and offered it to Miss 
Lewinsky.
  What is perhaps most striking about the U.N. job is not even how 
promptly it materialized, nor that the United States Ambassador was so 
personally involved in hiring a young woman with precious little job 
experience, but that Ambassador Richardson held the specially crafted 
sinecure open for two months while the former intern kept him waiting 
on her decision.
  When Miss Lewinsky decided that she preferred the private sector, the 
president enlisted the help one of his closest personal friends, one of 
the most influential men in the United States, Vernon Jordan. Miss 
Lewinsky met with Mr. Jordan in early November. Mr. Jordan, who was 
acting at the President's behest, apparently did not fully appreciate 
how important it was for him to cater to Miss Lewinsky, and took no 
action for a month.
  The President and Mr. Jordan realized, however, on December 5, 1997, 
the importance of satisfying Miss Lewinsky 's fancy when her name 
appeared on the Jones witness list. Before that date, the President 
needed Miss Lewinsky only to commit a lie of omission--simply to 
refrain from making their relationship public. Her appearance on the 
witness list now meant that she would have to lie under oath.
  Fully appreciative of the higher stakes, the President redoubled his 
efforts and those of his agents to find Miss Lewinsky a job and keep 
her in his camp. In the weeks after Miss Lewinsky's name appeared on 
the witness list, Mr. Jordan kept the President apprised of his efforts 
to find work for her in the private sector. He called his contacts at 
American Express, Young & Rubicam, and MacAndrews & Forbes (Revlon's 
parent corporation). When Miss Lewinsky was subpoenaed on December 19, 
1997, to be deposed in the Jones case, Mr. Jordan oversaw the 
preparation of the affidavit that the President had suggested she file 
in lieu of testifying. On January 7, 1997, Miss Lewinsky signed the 
affidavit, which she later admitted was false, denying that she had a 
``sexual relationship'' with the President. On January 8, she 
interviewed with MacAndrew & Forbes. When she told Mr. Jordan that she 
had done poorly, he called the Chairman of the Board, Ronald Perelman, 
to recommend Miss Lewinsky, whom he commended as ``this bright young 
girl, who I think is terrific.'' As a result of this conversation, Miss 
Lewinsky was called back for another interview with MacAndrews the 
following day and given an informal offer. On January 9, she reported 
this to Mr. Jordan, who called Mrs. Currie with the message, ``mission 
accomplished'' and then called the President himself to share his 
success.
  The President's lawyers arranged for Miss Lewinsky's affidavit to be 
filed on January 14, 1998. After this date, although Miss Lewinsky did 
not end up with a job in the private sector, neither the President nor 
Mr. Jordan, who so resolutely pursued their earlier mission, lifted a 
finger to help the ``bright * * * terrific'' young woman. Why? Because 
shortly thereafter the fiction of the president's platonic relationship 
with Lewinsky had exploded. Monica Lewinsky was the same Monica 
Lewinsky, but she now could no longer protect the President.
  It is impossible to reconcile the President's course of conduct with 
any purpose other than to preclude Miss Lewinsky's truthful testimony 
in the Jones case, or, indeed, to prevent her testifying at all. The 
case for obstruction of justice is clear. Obstruction was the 
President's only motive.
  (2) Next we have the Currie conversation--a set of statements by the 
President in the nominal form of questions, addressed by the President 
to Mrs. Currie on the Sunday evening following his Jones deposition 
when she was called to the White House at an extraordinary time and for 
apparently a single purpose. We are all familiar now with the questions 
he posed:
  ``I was never really alone with Monica, right?''
  ``You were always there when Monica was there, right?''
  ``Monica came on to me, and I never touched her, right?''
  ``You could see and hear everything, right?''
  ``She wanted to have sex with me, and I cannot do that.''
  Those five statements have a single common thread: the President knew 
each and every one of them to have been totally false.
  Had Mrs. Currie been willing to confirm the President's suggestions, 
she would have been a devastatingly effective witness for him.
  There is no reasonable explanation of this incident other than it is 
the President's clear attempt to obstruct justice, both in the Jones 
case and in the subsequent grand jury investigation.
  (3) The false self-serving statements by the President to senior 
members of his staff, to his cabinet, and to the American people just 
after his affair became public present a somewhat different face. It is 
reasonably clear that, at the time at which they were made, the 
President's goal, at least in part, was to save face with his staff and 
put a less humiliating spin on the Lewinsky matter. At the same time, 
coupled with his public statements, the President's assertions to his 
staff were designed to influence their testimony at some future time 
and place and to enlist them in disguising his conduct. In fact, they 
did obstruct the grand jury investigation. The President's manipulation 
of friendly witnesses to testify falsely, if unknowingly, extended for 
months until the DNA evidence shattered both his public and private 
positions.
  The President's attempt to derail the Independent Counsel's inquiry--
an inquiry the very purpose of which was to

[[Page 2382]]

discover whether the President gave false testimony and tampered with 
witnesses--by lying to his colleagues, his cabinet, his confidantes, 
the media, the American people, and ultimately, the grand jury, is--
beyond a reasonable doubt--a wide-ranging and highly public obstruction 
of justice, deeply damaging to the judicial fabric of the United 
States.
  One final note: to the extent that there are unresolved questions of 
fact, almost every one of them could be resolved by truthful and 
complete testimony by the President himself. That is a course of action 
he spectacularly avoided both in his Jones deposition and before the 
Starr grand jury. Now, he refuses to answer interrogatories from 
Senator Lott and refuses to appear at this trial to testify on his own 
behalf.
  Under the circumstances, is it not appropriate to infer that to tell 
the truth would be to confirm all of the questionable charges against 
him? I have not done so for the purposes of this argument, and have 
considered only those charges proven beyond a reasonable doubt, but the 
president's silence allows the inference that every one of the factual 
charges by the House managers is true.
  With sufficient material facts alleged in the two Articles of 
Impeachment either essentially uncontested or established by 
overwhelming evidence, and with those facts clearly constituting both 
perjury and obstruction, we arrive at the third question before the 
Senate. Are perjury and obstruction of justice high Crimes and 
Misdemeanors under the impeachment clause of the Constitution?
  This is the easiest of the four questions to answer. Perjury and 
crimes less serious than obstruction of justice have always and 
properly been considered high Crimes and Misdemeanors.
  In 1986 Judge Claiborne was convicted by the Senate and removed from 
office for filing a false income tax return under penalties of perjury. 
By a vote of 90 to 7, the Senate rejected his argument that he should 
not be convicted because filing a false return was irrelevant to his 
performance as a judge. In 1989, Judge Nixon was convicted by the 
Senate and removed from office for perjury: in fact, for lying under 
oath to a grand jury. And in that same year, Judge Hastings was 
convicted of lying under oath and removed by the Senate even though he 
had already been acquitted in a criminal trial. (It is generally 
recognized that an act need not be criminal in order to be 
impeachable.) As these examples illustrate, perjury is and historically 
has been a sufficient cause for conviction and removal. Although no 
person has been convicted and removed for obstruction of justice, the 
nature and gravity of this crime, punished more harshly under our laws 
than bribery, clearly is also a sufficient cause for conviction and 
removal.
  Most of the Senate's precedents, of course, are based on the 
impeachment trials of judges. President Clinton argues that those 
precedents should not apply; that presidents, who hold the highest 
office in the land, should benefit from a lower standard for removal 
than the judges they appoint and the military officers they command. 
This President would have presidents remain in office for acts that 
have resulted in the dismissal of military officers under his command, 
in the removal of judges, and for acts that would have resulted in the 
removal of Senators like Bob Packwood, who, like the President, are 
popularly elected for a fixed term. As House Manager Canady has pointed 
out, the 1974 report by the staff of the Nixon impeachment inquiry 
concluded that the constitutional provision stating that judges would 
hold office during ``good Behaviour,'' does not limit the relevance of 
judges' impeachments with respect to standards for presidential 
impeachments. The President's argument that he should be held to a 
lower standard than judges, military officers and Senators has no basis 
in the Constitution, in precedent, in equity, or in common sense.
  The fourth and ultimate question, nevertheless, is considerably more 
difficult to answer. For me, the proof of material facts supporting 
some of the allegations is overwhelming, the proposition that the 
established facts of the President's conduct constitute perjury and 
obstruction of justice almost impossible to deny, and the conclusion 
that perjury and obstruction of justice are high Crimes and 
Misdemeanors a given.
  But the inevitable result of a guilty verdict in this trial is the 
President's removal from office, and I believe that reasonable minds 
can differ on whether or not that consequence is appropriate. So does 
at least one of the House Managers. In answering the question of 
whether removal is too drastic a remedy for these alleged acts of 
perjury and obstruction of justice, Lindsey Graham, one of the most 
thoughtful Managers, stated that great minds may not necessarily agree 
on the question of whether, for the good of the nation, one should or 
should not remove this President for these high crimes. Removal, he 
said, is the equivalent of the political death penalty, and the death 
penalty is not imposed for every felony. Considerations such as 
repentance and the impact of removal on society should also be 
considered. (Mr. Graham's view was not , incidentally, that reasonable 
minds could differ on any of the first three questions that I have 
outlined, but only on the ultimate question of removal.)
  While removal upon conviction has not always been considered 
inevitable, I agree that Article II, Section 4 of the Constitution 
requires a mandatory sentence of removal upon conviction of high Crimes 
and Misdemeanors. Nevertheless, a number of thoughtful commentators, 
and at least a few members of this Senate, have already decided that 
removal is too drastic a sanction. These commentators and members--who 
are convinced, perhaps, that the President committed perjury and 
obstruction of justice, which, as classes of crime, are high Crimes and 
Misdemeanors--may nevertheless vote not to convict because they believe 
that removal from office is unwarranted for this perjury and this 
obstruction of justice.
  I share that conclusion with respect to Article I, but not Article 
II.
  On Article I I have decided, with some regret, that the instances of 
perjury I believe were established beyond a reasonable doubt are 
offenses insufficient for removing the President from office--based on 
the gravity of the offenses as against the drastic nature of removal. 
Equally important is the fact that these instances of perjury are also 
elements of the obstruction of justice charges in Article II. One 
conviction for the same acts of perjury is enough.
  Nevertheless, I am convinced that one other reflection must precede a 
decision based on the belief that removal is disproportionate to the 
gravity of the offenses established here, and that is: what are the 
consequences of a not guilty finding by the Senate? The consequences 
are, of course, no sanction whatsoever.
  It is precisely because the absence of any sanction is so 
objectionable to those who choke over removal that there has been such 
a spirited search for a third way. But, fellow Senators, there is no 
third way. There is no third way.
  Article I, Section 3 of the Constitution states: ``Judgment in Cases 
of Impeachment shall extend no further than to removal from Office, and 
disqualification to hold and enjoy any Office of honor, Trust, or 
Profit under the United States * * *.''
  The drafters did not intend to allow Congress to choose among a range 
of punishments analogous to those available to the judiciary, and for 
this reason they specified that the impeached party was to remain 
subject to judicial process and specifically limited to two--removal 
and disqualification--the sanctions that Congress could apply.
  We must, I believe, by reason of this harsh choice consciously forced 
on us at the Constitutional Convention in 1787, weigh seriously the 
effect on the Republic of either of our two possible courses of action. 
Will the Republic be strengthened, or will it be weakened, by 
determining that a president shall remain in its most exalted office 
after perjuring himself and obstructing the pursuit of justice both of 
a private citizen and of a federal grand jury, in a

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case occasioned by the president's sexual activities? Will the Republic 
be strengthened or weakened by removing the President from office by an 
impeachment conviction for this perjury and this obstruction?
  Early in our history an incident involving one of the authors of the 
Constitution, Alexander Hamilton, shows clearly the bright line 
between, on the one hand, a private sexual scandal, and on the other, a 
public obligation--a line the president has intentionally crossed.
  In No. 65 of the Federalist Papers, Mr. Hamilton described 
impeachable offenses as ``those offences which proceed from the 
misconduct of public men, or, in other words, from the abuse or 
violation of some public trust. They are of a nature which may with 
peculiar propriety be denominated POLITICAL, as they relate chiefly to 
injuries done immediately to the society itself.'' The president's 
defenders place great reliance on this explanation.
  Within four years of the composition of this essay, Mr. Hamilton had 
an opportunity to reflect on his own words. In the summer of 1791, 
Hamilton, then the Secretary of the Treasury, had an adulterous affair 
with a Maria Reynolds. Her husband discovered the affair and demanded a 
job in the Treasury Department. Though Secretary Hamilton turned him 
down, he did pay blackmail from his personal funds.
  A year later, three Congressmen, all politically opposed to Hamilton, 
learned of the payments, suspected that they might involve Treasury 
funds, and confronted Hamilton. Despite the tremendous political 
advantage the story, which eventually leaked, offered them, he 
immediately and without hesitation told them the truth and nothing but 
the truth.
  The author of Federalist No. 65 knew very well the distinction 
between a private scandal and the profound embarrassment arising out of 
its publication--and the violation of a public duty in an attempt to 
avoid that embarrassment. He chose not to use his Treasury position in 
a way that would justify an impeachment. The personal cost was immense 
and he assumed it without blinking.
  President Clinton could hardly have chosen a more different course of 
action. He chose to violate both his oath of office and his oath as a 
witness, using his office, his staff and his position to try to avoid 
personal embarrassment. In any event even the personal consequences for 
him have been far worse than those visited upon Alexander Hamilton. But 
it is our duty to determine whether he merits a drastic public 
sanction--or none at all.
  Some will say that the President can be charged with crimes related 
to this affair after his term of office is over.
  First, such charges lie outside our jurisdiction or duty.
  Second, such charges seem to me to be unlikely if we acquit the 
President, or in any event.
  But third, and most important, let us assume that President Clinton 
is charged, convicted, and sentenced in 2001. What a devastating 
judgment on the Senate of the United States that would be! We ourselves 
would be convicted, by history and forever, of having permitted a felon 
who abused his office in committing his felonies to remain in office as 
President of the United States for two long years.
  I simply cannot imagine any Senator willing to carry that burden of 
conscience.
  No, we must choose between the sanction of removal and no sanction at 
all. We know how Alexander Hamilton would vote today on our question. 
We know how James Madison, one of Hamilton's interrogators and the 
careful author of the impeachment provision, would have voted. And 
merely to call up the name of George Washington is to answer the 
question of how he would vote.
  The Republic will not be weakened if we convict. The policies of the 
presidency will not change. The Administration will not change.
  But if we acquit; if we say that some perjuries, some obstructions of 
justice, some clear and conscious violations of a formal oath are free 
from our sanction, the Republic and its institutions will be weakened. 
One exception or excuse will lead to another, the right of the most 
powerful of our leaders to act outside the law--or in violation of the 
law--will be established. Our republican institutions will be seriously 
undermined. They have been undermined already, and the damage accrues 
to all equally--Republicans, Democrats, liberals, and conservatives.
  If there is one thing this President can be relied on to do, it is to 
put his interests before those of his office and of the Republic. 
President Clinton has debased the presidency now and, if he is allowed 
to remain in office, the low level to which he has brought the 
presidency will continue, and that is not tolerable.
  I cannot will to my children and grandchildren the proposition that a 
president stands above the law and can systematically obstruct justice 
simply because both his polls and the Dow Jones index are high.
  Our duty in this case is as unpleasant as it was unsought. But our 
duty is clear. It was imposed on us, by history, without equivocation, 
212 years ago. It requires us to convict the President of Article II of 
these Articles of Impeachment. And that is how I vote, with clear 
conscience and saddened heart.
  Mr. FEINGOLD. Mr. Chief Justice, my colleagues, like many others, the 
day the President wagged his finger at the American people and 
indicated he had not been involved with Ms. Lewinsky, I had the sense 
that he wasn't telling the truth and I felt some genuine regret. The 
President and I began here in Washington in the same month, in 1993. I 
had high hopes and actually felt very close to what he was trying to 
accomplish. So all along in this process, I have had to fight an urge 
to personalize that regret in a way that would affect my ability to do 
my job in this impeachment trial. And I will tell you that taking that 
separate oath helped me get into the mindset necessary to do that task.
  But let me say that I do regret that the President's public conduct--
not his private conduct--has brought us to this day.
  But we are here, and I want to take a minute to praise my colleagues 
on the process. I think it would have been unfortunate had we not had 
any witness testimony--at least in the form of deposition testimony. I 
think it would have been an unfortunate historical precedent. I found 
the video testimony helpful. I didn't enjoy it, but I found it helpful 
in clarifying some of the things that I was thinking about. So I am 
glad, on balance, that we did not dismiss the case at the time it was 
first suggested.
  But as we get to the final stage and get immersed in the law and 
facts of this case, it is too easy to forget the most salient fact 
about this entire matter, and that is one simple fact that many others 
have mentioned: In November 1996, 47 million Americans voted to reelect 
President Clinton. The people hired him. They are the hiring authority. 
An impeachment is a radical undoing of that authority. The people hire 
and somehow, under this process, the Congress can fire. So, I caution 
against, with all due respect to the excellent arguments made, the 
attempt to analogize this to an employee-employer relationship, or a 
military situation, or even the situation of judges--those situations 
are all clearly different. Along with the choice of the Vice President, 
in no other case, do the American people choose one person, and in no 
other case can a completely different authority undo that choice.
  Having said that, the Presidential conduct in this case, in my view, 
does come perilously close to justifying that extreme remedy. There 
really have been three Presidential impeachments in our Nation's 
history. I see this one as being in the middle. The Andrew Johnson case 
is usually considered by historians to have been a relatively weak 
case. President Johnson had a different interpretation of the 
constitutionality of the statute that he believed allowed him to remove 
the Secretary of War, Mr. Stanton. He was not convicted, and 
subsequently the U.S. Supreme Court, I believe, ruled that in fact that 
was constitutional. I see that as having been a relatively weak case.

[[Page 2384]]

  The case of Richard Nixon, in my view, was a pretty strong case, 
involving a 1972 Presidential election and attempts to get involved 
with the aspects of that election--frankly--an attempt to cover up what 
happened during that 1972 election. I think that had more to do with 
core meaning of ``high crimes and misdemeanors.''
  This is a closer case; this is a close case. In that sense, it may be 
the most important of the three Presidential impeachments, in terms of 
the law of impeachment, as we go into the future. I agree neither with 
the House managers who say their evidence is ``overwhelming,'' nor with 
the President's counsel who says the evidence against the President is 
``nonexistent.'' The fact is, this is a hard case, and sometimes they 
say that hard cases make bad law. But we cannot afford to have this be 
bad law for the Nation's sake.
  So how do we decide? There have been a lot of helpful suggestions, 
but one thing that has been important to me is the way the House 
presented their case. That doesn't bind us, but they did suggest that 
two Federal statutes had been violated. Mr. Manager McCollum said that, 
``You must first determine if a Federal crime has occurred.'' Many 
others have said that. I will reiterate a point. If that is the 
approach you want to take, then it is clear, in my view as one Senator, 
that you must prove that beyond a reasonable doubt. Otherwise, you are 
using the power and the opprobrium of the Federal criminal law as a 
sword but refusing to let the President and the defense counsel have 
the shield of the burden of proof that is required in the criminal law.
  I do not have time to discuss the perjury count this afternoon, but 
will do so in a longer presentation for the Record. Suffice it to say I 
do not believe the managers have met their burden of proving perjury 
beyond a reasonable doubt.
  As to obstruction of justice, the President did come perilously 
close. Three quick observations make me conclude that, in fact, he did 
not commit obstruction of justice beyond a reasonable doubt. First, I 
am very concerned about the conversations between the President and 
Betty Currie concerning the specifics of his relationship with Ms. 
Lewinsky. But the critical question there is intent. Was his intent 
about avoiding discovery by his family and the political problems 
involved? Or was the core issue trying to avoid the Jones proceeding 
and the consequences of that?
  I don't think it has been shown beyond a reasonable doubt that the 
Jones proceeding was the President's concern. Perhaps Ms. Currie could 
have shed some light on this. That is why I was extremely puzzled when 
the House managers didn't call Betty Currie. Let me be the first to say 
that I don't think in this instance the House managers ``wanted to win 
too badly.'' I don't think they wanted to win badly enough to take the 
chance of calling Betty Currie, a crucial witness.
  I was very concerned about the false affidavit until I saw Ms. 
Lewinsky's Senate deposition testimony. I am persuaded that you cannot 
say beyond a reasonable doubt that she was urged by the President to 
make a false statement in that affidavit.
  Finally, I was very concerned about the hiding of the gifts. And 
maybe every one will disagree with me on this. But when I watched her 
testimony, I thought Ms. Lewinsky was the most indefinite about whether 
or not she had gotten that call from Ms. Currie than any other part of 
her testimony. I happen to believe that Ms. Lewinsky was the one who 
was the most concerned about the gifts. And I believe a showing beyond 
a reasonable doubt has not been made that the President masterminded 
the hiding of the gifts.
  So I cannot deny what Representative Graham said: If you call 
somebody up at 2:30 in the morning you are probably up to no good. But 
if you call somebody up at 2:30 in the morning you have not necessarily 
accomplished the crime of obstruction of justice.
  I realize there is a separate question of whether these same acts by 
the President, apart from the Federal criminal law, constitute high 
crimes and misdemeanors. I do not. I will discuss that in more detail 
in a future statement in the Record.
  But I would like to conclude by just talking a little bit about this 
impeachment issue in the modern context. When I say that the vote in 
1996 is the primary issue, I don't just mean that in terms of the 
rights of people. I mean it in terms of the goal of the Founding 
Fathers, and our goal today; that is, political stability in this 
country. We don't want a parliamentary system. And we don't want an 
overly partisan system.
  I see the 4-year term as a unifying force of our Nation. Yet, this is 
the second time in my adult lifetime that we have had serious 
impeachment proceedings, and I am only 45 years old. This only occurred 
once in the entire 200 years prior to this time. Is this a fluke? Is it 
that we just happened to have had two ``bad men'' as Presidents? I 
doubt it. How will we feel if sometime in the next 10 years a third 
impeachment proceeding occurs in this country so we will have had three 
within 40 years?
  I see a danger in this in an increasingly diverse country. I see a 
danger in this in an increasingly divided country. And I see a danger 
in this when the final argument of the House manager is that this is a 
chapter in an ongoing ``culture war'' in this Nation. That troubles me. 
I hope that is not where we are and hope that is not where we are 
heading.
  It is best not to err at all in this case. But if we must err, let us 
err on the side of avoiding these divisions, and let us err on the side 
of respecting the will of the people.
  Let me conclude by quoting James W. Grimes, one of the seven 
Republican Senators who voted not to acquit Andrew Johnson. I 
discovered this speech, and found out that the Chief Justice had 
already discovered and quoted him, and said he was one of the three of 
the ablest of the seven. Grimes said this in his opinion about why he 
wouldn't convict President Johnson:

       I cannot agree to destroy the harmonious working of the 
     Constitution for the sake of getting rid of an unacceptable 
     President. Whatever may be my opinion of the incumbent, I 
     cannot consent to trifle with the high office he holds. I can 
     do nothing which, by implication, may be construed as an 
     approval of impeachment as a part of future political 
     machinery.

  Mrs. HUTCHISON. If a university president, a minister or priest, 
general or admiral, or a corporate chief executive had engaged in a 
sexual relationship with an intern under his charge, he would lose his 
position, with scant attention paid to whether or not such a 
relationship were ``consensual.'' We place in certain individuals so 
great a measure of trust that they are seen as acting essentially in 
loco parentis.
  The question before us today is: Should the President of the United 
States be held to a lower standard?
  The answer is: No. To the contrary; we can bestow no higher honor 
than to select one individual to represent us all as President. In one 
person we endow the character of our nation, as the head of state and 
the head of government.
  It's with great disappointment, but firm resolve, that I have 
concluded the President has not lived up to this high standard and that 
he should be removed from office. The House managers have demonstrated 
beyond reasonable doubt that, in addition to indefensible behavior with 
an intern, which was not illegal, the President engaged in the 
obstruction of justice and, as an element of that obstruction, 
committed perjury before a federal grand jury, which is.
  This case began as an alleged civil rights violation of a young woman 
who came to the bar seeking justice. The Supreme Court unanimously 
decided to permit her case against the President to go forward. It was 
that case which led to the revelations regarding the President's 
relationship with Monica Lewinsky, the White House intern.
  Incredibly, an element of the President's defense is that we should 
take the long view. We are told by the President's defenders that we 
should not judge his actions toward one individual, in which he schemed 
to impede her ability to seek redress, because his

[[Page 2385]]

overall actions on civil rights are so positive. We are asked not to 
judge his treatment of one woman, or two women, but to evaluate his 
policies that affect all women.
  Would the President's defenders forgive a school teacher who molests 
a student, simply because the teacher's classes are popular and his 
students all go on to college? Should we ignore the police officer who 
personally enriches himself by accepting graft, so long as his arrest 
record is high? Would we look away from the corporate executive who 
illegally profits from insider information, as long as his shareholders 
are happy with the return on their investment? We would not sustain 
civil society for long with such moral relativism as our guide.
  The President had it solely within his power to keep the country from 
the course on which it has been for the past year. First, of course, he 
could have chosen not to engage in the behavior in question. Having 
behaved as he did, though, and having been discovered, the President 
could have acknowledged his own actions and accepted the consequences. 
This could have been an honorable resignation, or an admission, 
contrition, and a firm resolve to take responsibility; with a request 
for resolution in a manner short of impeachment and trial.
  Instead, the President chose to deny the allegations, and fight them 
with a coordinated scheme of manipulation and obstruction. He lied 
outright to the American people, to his close associates, and to his 
cabinet. An enduring image of this whole tale will be his finger-
pointing lie to the American people, even after admonishing us to 
listen closely, because he didn't want to have to say it again.
  Even in view of these actions, the President missed numerous 
opportunities to right this matter and get it behind him and the 
country. At virtually every opportunity, though, he chose an action 
that further prolonged the matter and led directly to his impeachment.
  The President chose to impede the pursuit of justice by the 
Independent Counsel, who was given the authority to investigate this 
matter by the President's own Attorney General.
  The President chose to construct a cover story with Ms. Lewinsky, 
should their relationship become public.
  The President chose to direct his personal staff to retrieve items 
from Ms. Lewinsky that he knew were under subpoena in a federal 
investigation.
  The President chose to seek the assistance of friends to find a job 
for Ms. Lewinsky, and to intensify that job search when it became clear 
that Ms. Lewinsky had become a target of the civil suit against him.
  The President chose to lie to his staff about the nature of his 
relationship with Ms. Lewinsky herself, with the expectation that these 
lies would become part of the public perception.
  And, the President chose to lie before a federal grand jury about his 
actions with regard to some of the elements of obstruction of justice, 
including the concealment of the gifts that were likely to become 
evidence in the civil case against him.
  As a result of these choices by the President of the United States, 
the Senate was left with no choice other than to confront the charges 
and hear the case pursuant to the President's impeachment in the House 
of Representatives.
  In so doing, the Senate conducted a fair and expeditious trial. We 
rejected the idea of an early test vote that would have truncated the 
process. We rejected the motion for an early dismissal. The Senate is 
fulfilling its Constitutional responsibility to hold a trial with a 
complete evidentiary record and a final vote on each article of 
impeachment sent to the Senate by the House of Representatives.
  Through skillful use of the written record compiled by the 
Independent Counsel, videotaped depositions, and hard evidence, the 
House managers presented a compelling case. The case for perjury was 
difficult. The President's testimony before the Grand Jury was guarded. 
He was fully aware of the evidence the prosecutors had with respect to 
this case. He chose his words carefully. He admitted his relationship 
with Ms. Lewinsky before the Grand Jury, but did so only after 
confronted with clinical evidence of its existence.
  But he lied to the Grand Jury to deny other key facts. He perjured 
himself as an element of a broader attempt to obstruct justice. There 
are two false statements that are the most persuasive. First, when 
asked if he directed Betty Currie to retrieve gifts from Ms. Lewinsky, 
he stated unequivocally, ``No sir, I did not do that.''
  The facts are contrary to that allegation. Ms. Lewinsky testified 
that Betty Currie called her to suggest that Ms. Lewinsky give her the 
gifts. We have cellular telephone records that indicate a call from Ms. 
Currie to Ms. Lewinsky at about the time the gifts were picked up. It 
was clear that Ms. Currie initiated a retrieval of the gifts at the 
direction of the President, for this was the only source of information 
she had that there were gifts. The evidence is overwhelming that the 
President directed Betty Currie to retrieve these gifts. Thus, his 
statement is false. Not only is this perjury, it is obstruction of 
justice.
  The President also lied before the Grand Jury about his conversations 
with White House aides regarding Ms. Lewinsky. He testified that ``I 
said to them things that were true about this relationship.'' We know 
this to be completely false from the testimony of Sidney Blumenthal, 
who stated directly and unequivocally that the President had lied to 
him about the nature of his relationship with Ms. Lewinsky.
  The legal standard for perjury is high. Under Section 18 U.S.C. 
1623(a), a person is guilty of perjury if he or she knowingly makes a 
false, material statement under oath in a federal court or Grand Jury. 
I believe these statements were false, intentional and material in that 
they attempt to put a false impression on key events in a series of 
attempts to obstruct justice. In effect, the President knew his 
relationship with Ms. Lewinsky was shameful, but not necessarily 
illegal. But he knew his obstruction of justice was illegal--so he lied 
about it to a Grand Jury.
  In many ways, obstruction of justice is even more corrosive than 
perjury to the machinery of our legal system. As the target of a grand 
jury and an independent prosecutor, the President has defended himself 
against charges of perjury by claiming he was caught off guard, was 
misinterpreted, was attempting to mislead but not lie.
  Obstruction of justice, though, is a quite different matter. It is an 
affirmative act that occurs at the person's own initiative; in this 
case, the President. It involves actions taken that were not instigated 
by anyone else.
  It has been said in his defense that the President did not initiate 
his perjury in that he was led to it by the prosecutor. But there is no 
similar argument regarding Article II, the Obstruction of Justice. 
Without the affirmative actions of the President, there would have been 
no Article II.
  The President sought out Mr. Blumenthal to tell his misleading story 
about the nature of his relationship and the character of Ms. Lewinsky.
  Separately, the President enlisted his personal secretary to further 
his obstruction of justice. He asked Ms. Currie to retrieve the gifts. 
He summoned her to coach her testimony under the guise of ``trying to 
figure out what the facts were.'' He did so within hours after coming 
back to the White House on January 17th from his deposition in the 
civil sexual harassment lawsuit. He required a face-to-face meeting 
with her the next day, a Sunday. It couldn't be done over the phone, 
and it couldn't wait until Monday. It was clear he needed her to 
reaffirm his false testimony. This is obstruction of justice.
  The edifice of American jurisprudence rests on the foundation of the 
due process of law. The mortar in that foundation is the oath. Those 
who seek to obstruct justice weaken that foundation, and those who 
violate the oath would tear the whole structure down.
  Every day, thousands of citizens in thousands of courtrooms across 
America are sworn in as jurors, as grand jurors, as witnesses, as 
defendants. On those oaths rest the due process of law

[[Page 2386]]

upon which all of our other rights are based.
  The oath is how we defend ourselves against those who would subvert 
our system by breaking our laws. There are Americans in jail today 
because they violated that oath. Others have prevailed at the bar of 
justice because of that oath.
  What would we be telling Americans--and those worldwide who see in 
America what they can only hope for in their own countries--if the 
Senate of the United States were to conclude: The President lied under 
oath as an element of a scheme to obstruct the due process of law, but 
we chose to look the other way?
  I cannot make that choice. I cannot look away. I vote ``Guilty'' on 
Article I, Perjury. I vote ``Guilty'' on Article II, Obstruction of 
Justice.
  I ask unanimous consent an analysis of the Articles of Impeachment be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                Analysis of the Articles of Impeachment

                   (By Senator Kay Bailey Hutchison)

       ``Do you solemnly swear that in all things appertaining to 
     the trial of the impeachment of William Jefferson Clinton, 
     president of the United States, now pending, you will do 
     impartial justice according to the Constitution and laws: So 
     help you God?''
       When the Chief Justice of the United States administered 
     this oath and I signed my name to it on January 7, 1999, as 
     one of one hundred triers of fact and law in the Court of 
     Impeachment of the President of the United States, I did so 
     with a heavy heart, but with a clear mind.
       That solemn occasion in the well of this Senate, and the 
     weight of the burden imposed on us as ``jurors'' in only the 
     second such proceeding in the history of our Nation, reminded 
     me with vivid clarity that our Constitution belongs to all of 
     us.
       I was reminded as well, however, that the laws of our 
     Country are applicable to us all, including the President, 
     and they must be obeyed. The concept of equal justice under 
     law and the importance of absolute truth in legal proceedings 
     is the foundation of our justice system in the courts.
       In this proceeding, I have drawn conclusions about the 
     facts as I see them, and I have applied the law to those 
     facts as I understand that law to be.


              underlying facts leading to this proceeding

       The details of an intimate personal relationship that 
     occurred during the years 1995, 1996, and 1997 between the 
     President of the United States and a 22 year-old female White 
     House Intern who was directly under his command and control 
     have been chronicled throughout the world and are described 
     in thousands of pages of evidence and materials filed with 
     both the House and the Senate in this case and in bookstores 
     across America. They involved intimate sexual relations 
     within the White House, personal gifts, jobs within and 
     outside of government, and ``missions accomplished.'' The 
     underlying details will not be repeated by me here.
       While some facts about that relationship and the timing of 
     some events were disputed at the trial in the Senate, their 
     essence has been publicly admitted by the President, by his 
     Counsel, and by the Intern in written or verbal form, 
     including sworn testimony in various forms.
       However inappropriate the behavior of the President was, 
     the legal issues in the impeachment trial do not deal with 
     this relationship. All accusations against the President here 
     relate instead to alleged attempts to prevent the disclosure 
     of this relationship in a pending civil rights lawsuit 
     against the President in an Arkansas Federal court and to the 
     public. That is the critical factor that has brought us to 
     this extraordinary moment in our Nation's history when we are 
     considering whether or not to remove from office the 
     President of the United States.


           core facts leading to the articles of impeachment

       In May, 1994, a female citizen and employee of the State of 
     Arkansas filed a lawsuit in an Arkansas Federal District 
     Court, alleging, in summary, that, in 1991 while President 
     Clinton was Governor of Arkansas, the Governor committed the 
     civil offense of sexual harassment against her by insisting 
     that she perform sexual acts identical or similar to those 
     later performed by the Intern.
       In the course of preparing for the trial of the Arkansas 
     case, the plaintiff, with the consent of the presiding 
     Federal Judge, attempted to develop evidence that defendant 
     Clinton had, before and afterward, engaged in patterns of 
     conduct that were similar to the allegations of the plaintiff 
     in the case.
       In December, 1997, the Arkansas Judge ordered defendant 
     Clinton to answer a written interrogatory naming every state 
     and federal employee with whom he had had sexual relations 
     since 1986. President Clinton answered: ``none.''
       In an alleged attempt to avoid giving a personal deposition 
     in the case pursuant to a December, 1997, subpoena, the White 
     House Intern, who had since become employed at the Pentagon, 
     on January 7, 1998, signed an affidavit denying any sexual 
     relationship with President Clinton. Six days later, on 
     January 13, the Intern accepted a job offer at a major 
     corporation in New York City. A friend called the President 
     shortly thereafter with the message: ``Mission 
     accomplished.''
       While the President was giving his own deposition in the 
     Arkansas case, his counsel tendered this affidavit to the 
     Arkansas Federal Court, referred to it, and vouched for its 
     accuracy in the presence of the President. The President, 
     knowing the affidavit to be false, sat by and said nothing. 
     The President's counsel subsequently advised the Court that 
     this affidavit was not reliable and should be ignored.
       Defendant Clinton was subpoenaed to give the above-
     mentioned deposition in the case and did so on January 17, 
     1998. In a rare event, the Arkansas Judge attended for the 
     purpose of supervising the deposition of the President in a 
     Washington lawyer's offices. While there, the Judge and 
     participating counsel for the parties, either knowingly or 
     unknowingly, formulated a definition of the meaning of the 
     words ``sexual relations'' to exclude certain forms of human 
     contact that in their commonly accepted meaning would be 
     included. But, allegedly upon the basis of this definition, 
     President Clinton denied, under oath, among other things, 
     that he had sexual relations with the Intern.
       On January 21, 1998, the existence of an alleged 
     inappropriate relationship between the President and the 
     White House Intern blazed across the Nation from a story 
     first published in the Washington Post carrying the headline: 
     ``Clinton Accused of Urging Aid to Lie; Starr Probes Whether 
     President Told Woman to Deny Alleged Affair to (plaintiff's) 
     Lawyers.''
       Evidence introduced and debated by the House Managers and 
     the President's Counsel in the Senate painted a picture of 
     frantic activities within and without the White House 
     throughout the month before and during the week following 
     this public disclosure, by the President, by his friends, by 
     White House staff and employees, and others. It was alleged, 
     among other things, that the President coached, manipulated, 
     and influenced false testimony of witnesses, including the 
     Intern, engineered the hiding of gifts and evidence that was 
     subject to subpoena, lied to his staff and friends about the 
     facts in order to assure that they would give false testimony 
     in public and legal proceedings, manipulated the Intern into 
     signing the false affidavit in the Arkansas Federal Court, 
     and, after failures to obtain employment for her elsewhere, 
     rewarded the Intern by obtaining for her an out-of-town job 
     in return for her cooperative falsehoods or silence. The 
     sequence and importance of such activities, much of which is 
     not disputed in the evidence, were debated aggressively by 
     the House Managers and the President's Counsel in the Senate, 
     but the essence of those activities was not seriously denied.
       After numerous public denials immediately after the public 
     disclosure, and after several days of alleged ``damage 
     control'' designed to synchronize false stories to be 
     provided by various parties in response to all inquiries, and 
     event of major, historic, and future national importance 
     occurred.
       On January 26, 1998, the President addressed the Nation 
     about this issue at a press conference in Washington, since 
     replayed in television broadcasts thousands of times. On that 
     occasion, the President looked sternly into the camera and 
     pointed his finger directly at the American people and 
     stated:
       ``I want to say one thing to the American people. I want 
     you to listen to me. I'm going to say this again: I did not 
     have sexual relations with that woman, (naming the Intern). I 
     never told anybody to lie, not a single time. Never. These 
     allegations are false.''
       During the following months, the gist of this 
     representation filled the news media around the World and in 
     every conceivable form, provided by every conceivable 
     spokesman for the President, including government employees, 
     Cabinet officials, lawyers, public relations specialists, 
     political advisors, friends, Members of Congress, and others.
       After an immunity agreement was reached between the 
     Independent Counsel (discussed below) and the Intern on July 
     28, 1998, the Intern delivered a dress to the Independent 
     Counsel that, according to her testimony, had been worn by 
     her on February 28, 1997, during a sexual encounter with the 
     President in the White House. The dress was tested for the 
     President's DNA. The test was positive.
       The President of the United States had lied directly to the 
     American people.


            The President's Appearance Before the Grand Jury

       After months of negotiation for an appearance by the 
     President, on July 17, 1998, the President was subpoenaed to 
     appear before a Federal grand jury in Washington by the 
     Independent Counsel assigned to investigate multiple issues 
     concerning the President, including issues involving 
     potential perjury by both the President and the Intern in the 
     Arkansas sexual harassment case, issues relating to the 
     President's relationship with the Intern, and issues relating 
     to alleged actions taken to influence the testimony of 
     witnesses in the Arkansas case and before the

[[Page 2387]]

     grand jury, attempts to discredit the Intern by describing 
     her as a ``stalker,'' as ``ignorant,'' and as ``stupid,'' all 
     done in an alleged effort to cover up and conceal the 
     underlying relationship between the President and the Intern, 
     to obstruct the right of the Arkansas plaintiff to pursue her 
     sexual harassment claims in the Arkansas Federal Court, and 
     to obstruct the proceedings of the grand jury itself.
       After various losing motions and court proceedings 
     asserting various executive privileges against a Presidential 
     appearance before the grand jury, the President, on August 
     17, 1998, gave testimony voluntarily to the grand jury by 
     deposition given in the White House and piped live to the 
     grand jury. The prior subpoena was withdrawn by the 
     Independent Counsel.
       During and since this appearance, the president has 
     repeatedly acknowledged publicly that he had an inappropriate 
     relationship with the White House Intern but has insisted 
     that he was misleading but truthful in his depositions in the 
     Arkansas case and before the Federal grand jury and did not 
     commit any act that would constitute an obstruction of any 
     legal proceeding or the rights of any party associated with 
     any portion of this historic tale.


                      Impeachment of the President

       The Ethics in Government Act, 28 U.S.C. Section 
     Sec. 595(c), directs any Independent Counsel appointed under 
     that law to advise the House of Representatives of any 
     substantial and credible information received during the 
     course of an investigation that may constitute grounds for 
     the impeachment of the President of the United States.
       On September 9, 1998, the Office of Independent Counsel 
     submitted its referral to the House of Representatives 
     consisting of thousands of pages of sworn testimony from many 
     parties, recorded telephone conversations, video tapes, 
     interviews, reports, legal briefs, and arguments, including 
     the following partial introduction:
       ``This Referral presents substantial and credible 
     information that President Clinton criminally obstructed the 
     judicial process, first in a sexual harassment lawsuit in 
     which he was a defendant and then in a grand jury 
     investigation.''
       The Judiciary Committee of the House, in its report to the 
     full House of Representatives, recommended four Articles of 
     Impeachment of the President. On December 19, 1998, the House 
     of Representatives declined to approve two of the proposed 
     Articles, but did approve the following two Articles, and 
     delivered H. Res. 611 to the Senate for trial in accordance 
     with the provisions of Section 3 of Article I of the 
     Constitution of the United States:
       Impeachment Article I, the ``perjury'' article, accuses the 
     President of violating his constitutional duty to take care 
     that the laws are faithfully executed, of willfully 
     corrupting and manipulating the judicial process, and of 
     impeding the administration of justice for personal gain and 
     exoneration, in that:
       While under oath before the Federal grand jury, the 
     President gave perjurious testimony before the grand jury 
     concerning one or more of the following: (i) the nature and 
     details of his relationship with the Intern; (ii) prior 
     perjurious, false, and misleading testimony he gave in the 
     Arkansas case; (iii) prior false and misleading statements he 
     allowed his attorney to make about the Intern's affidavit in 
     the Arkansas case; and (iv) his corrupt efforts to influence 
     the testimony of witnesses and to impede the discovery of 
     evidence in the Arkansas case.
       Impeachment Article II, the ``obstruction of justice'' and 
     ``witness tampering'' article, accuses the President of 
     violating his constitutional duty to take care that the laws 
     are faithfully executed, of preventing, obstructing, and 
     impeding the administration of justice, and, to that end, of 
     engaging personally and through his subordinates and agents 
     in a course of conduct or scheme designed to delay, impede, 
     cover up, and conceal the existence of evidence and testimony 
     related to the Arkansas Federal sexual harassment case.
       In support of the accusation, Article II accuses the 
     President of seven specific acts of obstruction: (i) 
     corruptly encouraging the Intern to execute false affidavit 
     in the Arkansas case, (ii) corruptly encouraging the Intern 
     to give false testimony in the Arkansas case if and when she 
     was called to testify personally in that case, (iii) 
     corruptly engaging in, encouraging, or supporting a scheme to 
     conceal evidence that had been subpoenaed in the Arkansas 
     case, (iv) obtaining a job for the Intern in order to 
     corruptly prevent her truthful testimony in the Arkansas 
     case, (v) corruptly allowing his attorney in the Arkansas 
     case to make false statements to the Federal Judge 
     characterizing the Intern's affidavit in order to prevent 
     questioning deemed relevant by the Judge, (vi) corruptly 
     influencing his personal secretary to give false testimony in 
     the Arkansas case, and (vii) making false and misleading 
     statements to witnesses in the Federal grand jury proceeding, 
     confirmed by the witnesses, in order to corruptly influence 
     the testimony of those witnesses.


                        the trial in the senate

       H. Res. 611 was received in the Senate on December 19, 
     1998. The trial commenced on January 7, 1999. During the 
     trial, we have listened to hours of arguments from the House 
     Managers and Counsel for the President, and have engaged in 
     hours of internal Senate debate, both public and private. We 
     have been provided with access to thousands of pages and 
     other forms of evidence relating to the accusations contained 
     in the two Articles of Impeachment.
       Under the Constitution, the power to impeach (or 
     ``accuse'') a President of an impeachable offense is vested 
     solely in the House of Representatives. As Senators and 
     triers of both the facts and the law, we cannot ``accuse,'' 
     ``venture outside the record,'' or ``create and assert new 
     allegations.'' We are bound to cast our votes of ``guilty'' 
     or ``not guilty'' solely on the two Article of Impeachment as 
     presented by the House.
       I do not hold to the view of our Constitution that there 
     must be an actual, indictable crime in order for an act of a 
     public officer to be impeachable. It is clear to this Senator 
     that there are, indeed, circumstances, short of a felony 
     criminal offense that would justify the removal of a public 
     officer from office, including the President of the United 
     States. Manifest injury to the Office of the President, to 
     our Nation, and to the American people, and gross abuses of 
     trust and of public office clearly can reach the level of 
     intensity that would justify the impeachment and removal of a 
     leader. One of the Articles of Impeachment presented by the 
     House Judiciary Committee to the full House of 
     Representatives in this case charged the President with 
     precisely such an offense. The House of Representatives did 
     not approve that Article, and such a charge is, therefore, 
     not before us in this proceeding.
       The two Articles of Impeachment before the Senate in this 
     proceeding do in fact accuse the President of committing 
     three actual crimes, ``perjury before the grand jury,'' 
     `'obstruction of justice,'' and ``witness tampering,'' that 
     meet the requirements for conviction of an indicted defendant 
     in a criminal case brought under Federal law. The House 
     Managers and Counsel for the President reviewed those laws 
     extensively. Thus, in order to find the President ``guilty'' 
     under either Article, this Senator must conclude that all of 
     the statutory prerequisites to conviction are present that 
     would be required to convict the President of one or more of 
     those crimes, if this proceeding were, instead, the 
     prosecution of felony criminal indictments in a United States 
     District Court under Federal law.
       The President's Counsel did not significantly challenge the 
     underlying facts in the case, but insisted throughout (i) 
     that no crimes have been committed, and (ii) that, even if 
     crimes have been committed, they ``do not rise to the level 
     of the high crimes and misdemeanors'' contemplated by the 
     Constitution that would permit a conviction in this 
     proceeding, since a finding of ``guilty'' by 67 Senators 
     under either Article would, under the Constitution, 
     automatically result in the removal of the President from 
     office and prohibit him forever from holding another office 
     of profit or trust under the United States.


 perjury, obstruction of justice, and witness tampering as impeachable 
                                offenses

       Section 4 of Article II of our Constitution provides:
       ``The President . . . shall be removed from Office on 
     Impeachment for, and Conviction of, Treason, Bribery, or 
     other high Crimes and Misdemeanors.''
       Because of the uniqueness of this Constitutional process in 
     which ``guilt'' and ``punishment'' are combined, each 
     Senator, as a trier of both fact and law, before voting as to 
     the guilt or innocence of the President under either of the 
     Articles must answer the basic question: Do the crimes of 
     perjury, witness tampering, and obstruction of justice as 
     alleged in this proceeding rise to the level of the ``high 
     crimes and misdemeanors'' included in our Constitution that 
     would justify the automatic removal from office of the 
     President of the United States?
       The Supreme Court of the United States has observed that 
     there is an occasional misunderstanding to the effect that 
     the crime of ``perjury'' is somehow distinct from 
     ``obstruction of justice.'' United States v. Norris, 300 U.S. 
     564, 574 (1937). They are not. While different elements make 
     up each crime, each is calculated to prevent a court and the 
     public from discovering the truth and achieving justice in 
     our judicial system. Moreover, it is obvious that ``witness 
     tampering'' is simply another means employed to obstruct 
     justice.
       This Senate on numerous occasions has convicted impeached 
     Federal Judges on allegations of perjury. Moreover, the 
     historical fact is that ``high crimes and misdemeanors,'' as 
     used and applied in English law on which portions of our 
     Constitution were founded, included the crimes of 
     ``obstructing the execution of the lawful process'' and of 
     ``willful and corrupt perjury.'' Blackstone, Commentaries on 
     the Laws of England, a treatise described by James Madison as 
     ``a book which is in every man's hand.'' See article entitled 
     ``The True History of High Crimes and Misdemeanors,'' by Gary 
     L. McDowell, Director of the Institute of United States 
     Studies at the University of London, appearing in the Wall 
     Street Journal, January 25, 1999.
       Some argue that the precedents of the Senate in cases 
     involving Federal Judges are not

[[Page 2388]]

     applicable because Federal Judges are not elected by the 
     people and the President is. This is a shocking analysis to 
     this Senator. That the President is elected should call for a 
     ``higher'' standard of conduct, not a lower one. The fact is 
     that the standards are set by the Constitution for all 
     officers of the Federal government. They are precisely the 
     same, and we are obligated to apply them evenly.
       It is argued by others that this test leaves Presidents at 
     risk of being impeached and convicted for trivial offenses. 
     The two-thirds vote requirement for conviction imposed by the 
     Constitution, itself, is designed to protect public officers 
     from precisely such a result.
       The President's Counsel and a number of Senators advance a 
     ``felony-plus'' interpretation of the Constitutional terms 
     ``high crimes and misdemeanors.'' They seem to agree that the 
     crimes of perjury and obstruction of justice are ``high 
     crimes'' under the Constitution, but they argue that, even if 
     guilt is admitted, nevertheless, a Senator should vote ``not 
     guilty,'' on any article of impeachment of a President, if 
     the ``economy is good,'' if the underlying facts in the case 
     are ``just about sex,'' or if the Senator simply feels for 
     whatever personal reason that the President ought to stay in 
     office despite having committed felonies while holding it.
       To this Senator, this astounding application of the plain 
     language of our Constitution strikes at the very heart of the 
     rule of law in America. It replaces the stability guaranteed 
     by the Constitution with the chaos of uncertainty. Not only 
     does it obliterate the noble ideal that our highest public 
     officer should set high moral standards for our Nation, it 
     says that the officer is free to commit felonies while doing 
     it if the economy is good, if the crime is just about sex, or 
     if, except for the crime, ``things are going pretty well 
     right now,'' or simply that ``they can indict and try the 
     President for the crime after leaving office in a couple of 
     years.''
       I will not demean our Constitution or the office of the 
     Presidency of the United States by endorsing the felony-plus 
     standard.


              Elements Required for Conviction of Perjury

       Lying is a moral wrong. Perjury is a lie told under oath 
     that is legally wrong. To be illegal, the lie must be 
     willfully told, must be believed to be untrue, and must 
     relate to a material matter. Title 18, Section 1621 and 1623, 
     U.S. Code.
       If President Washington, as a child, had cut down a cherry 
     tree and lied about it, he would be guilty of ``lying,'' but 
     would not be guilty of ``perjury.''
       If, on the other hand, President Washington, as an adult, 
     had been warned not to cut down a cherry tree, but he cut it 
     down anyway, with the tree falling on a man and severely 
     injuring or killing him, with President Washington stating 
     later under oath that it was not he who cut down the tree, 
     that would be ``perjury.'' Because it was a material fact in 
     determining the circumstances of the man's injury or death.
       Some would argue that the President in the second example 
     should not be impeached because the whole thing is about a 
     cherry tree, and lies about cherry trees, even under oath, 
     though despicable, do not rise to the level of impeachable 
     offenses under the Constitution. I disagree.
       The perjury committed in the second example was an attempt 
     to impede, frustrate, and obstruct the judicial system in 
     determining how the man was injured or killed, when, and by 
     whose hand, in order to escape personal responsibility under 
     the law, either civil or criminal. Such would be an 
     impeachable offense. To say otherwise would be to severely 
     lower the moral and legal standards of accountability that 
     are imposed on ordinary citizens every day. The same standard 
     should be imposed on our leaders.
       Nearly every child in America believes that President 
     Washington, as a child himself, did in fact cut down the 
     cherry tree and admitted to his father that he did it, saying 
     simply: ``I cannot tell a lie.''
       I will not compromise this simple but high moral principle 
     in order to avoid serious consequences to a successor 
     President who may choose to ignore it.


 elements required for conviction of witness tampering and obstruction 
                               of justice

       Whoever knowingly uses intimidation or physical force, 
     threatens, or corruptly persuades another person, or attempts 
     to do so, or engages in misleading conduct toward another 
     person, with intent to--
       (i) influence, delay, or prevent the testimony of any 
     person in an official proceeding;
       (ii) cause or induce any person to (A) withhold testimony 
     or evidence from an official proceeding, (B) alter or destroy 
     evidence in an official proceeding; (C) evade legal process 
     summoning that person as a witness or produce evidence in an 
     official proceeding to which the person has been summoned;
       (iii) harass another person and thereby hinder, delay, 
     prevent, or dissuade any person from attending or testifying 
     in an official proceeding; or
       (iv) corruptly influence, obstruct, or impede, or endeavor 
     to influence, obstruct, or impede, the due administration of 
     justice;

     is guilty of witness tampering and/or obstruction of justice. 
     Title 18, Sections 1512 and 1503, U.S. Code.
       The elements of these crimes are evident from the laws 
     themselves and do not need amplification here.


                my votes on the articles of impeachment

       Based upon my analysis of the facts of this case and my own 
     conclusions of law, I have concluded:
       (i) The President of the United States willfully, and with 
     intent to deceive, gave false and misleading testimony under 
     oath with respect to material matters that were pending 
     before the Federal grand jury on August 17, 1998, as alleged 
     in Article I presented to the Senate. I, therefore, vote 
     ``Guilty'' on Article I of the Articles of Impeachment of the 
     President in this Proceeding.
       (ii) The President of the United States engaged in a 
     pattern of conduct, performed acts of willful deception, and 
     told and disseminated massive falsehoods, including lies told 
     directly to the American people, that were designed and 
     corruptly calculated to impede, obstruct, and prevent the 
     plaintiff in the Arkansas Federal sexual harassment case from 
     seeking and obtaining justice in the Federal court system of 
     the United States, and to further prevent the Federal grand 
     jury from performing its functions and responsibilities under 
     law, I, therefore, vote ``Guilty'' on Article II of the 
     Articles of Impeachment of the President in this proceeding.


                article I, Perjury--Explanation of Vote

       This Article accuses the President, while giving sworn 
     testimony on August 17, 1998, before the Federal grand jury 
     in Washington, D.C., of willfully corrupting and impeding the 
     judicial process and the administration of justice by giving 
     false and perjurious testimony about his relationship with 
     the White House Intern, about his January 17, 1998, 
     deposition testimony in the Arkansas sexual harrassment case, 
     about his role in developing and tendering to the Federal 
     Judge in the Arkansas case an affidavit that was knowingly 
     false while giving his deposition in the Arkansas case, and 
     about his attempts to influence the testimony of White House 
     employees and other witnesses in the Arkanksas case who were 
     at the time also subject to the jurisdiction of the grand 
     jury.
       In reaching my decision with respect to this Article, I 
     have concluded beyond a reasonable doubt that the President 
     gave false and misleading testimony in the Arkansas sexual 
     harrassment case and in his appearance before the Federal 
     grand jury.
       At the trial in the Senate, the President's Counsel argued 
     that, even if it were to be admitted that the testimony in 
     both instances were false and misleading, the testimony 
     would, nevertheless, not amount to perjury because it does 
     not reach the level of ``materiality'' that is required for a 
     lie to rise to the level of a crime under Federal law.
       They attempt to trivialize the issues raised by Article I 
     by reference to such questions as ``Who touched whom, and 
     where,'' and to answers to questions by the President such as 
     ``It depends on what the meaning of `is' is.''
       The false testimony complained of in Article I of the 
     Articles of Impeachment relates to testimony before the grand 
     jury, and only indirectly to the testimony in the Arkansas 
     case. The Federal grand jury was investigating broad issues 
     and many persons at the time the President gave false and 
     misleading testimony before it.
       Willful, corrupt, and false sworn testimony before a 
     Federal grand jury is a separate and distinct crime under 
     applicable law and is material and perjurious if it is 
     ``capable'' of influencing the grand jury in any matter 
     before it, including any collateral matters that it may 
     consider. See, Title 18, Section 1623, U.S. Code, and Federal 
     court cases interpreting that Section.
       The President's testimony before the Federal grand jury was 
     fully capable of influencing the grand jury's investigation 
     and was clearly perjurious.


        article ii, obstruction of justice--explanation of vote

       When, on January 26, 1998, the President of the United 
     States pointed his finger at the American people and 
     represented to them that he was the victim of lies and not 
     their perpetrator, he lied to America. The evidence is 
     overwhelming that he did so because all of his ``ducks were 
     in a row.''
       The White House Intern had executed a false affidavit; 
     subpoenaed gifts had been hidden; his own false deposition 
     had been given; other witnesses had testified falsely based 
     upon his own false representations to them; retribution 
     against the White House Intern had been programmed should she 
     abandon loyalty; and loyalty had been confirmed by the 
     Intern's acceptance of a special new job in New York, that 
     represented, according to a friend of the President, 
     ``Mission accomplished.''
       Then came the dress, the tapes, and the Federal grand jury. 
     The attempt to obstruct and cover-up grew, expanded, and 
     developed a life of its own. It overpowered the underlying 
     offense itself. A new strategy was required, fast: The 
     President was advised: ``Admit the sex, but never the lies.'' 
     Shift the blame; change the subject. Blame it on the 
     plaintiff in the Arkansas case. Blame it on her lawyers. 
     Blame it on the Independent

[[Page 2389]]

     Counsel. Blame it on partisanship. Blame it on the majority 
     members of the House Judiciary Committee. Blame it on the 
     process.
       The blame belongs to the President of the United States. 
     This juror has concluded that the President is guilty of 
     obstructing justice beyond a reasonable doubt, as alleged in 
     Article II of the Articles of Impeachment in this proceeding.


                          concluding statement

       This has been a case about civil rights. It has been about 
     the right of the weakest and the strongest among us to have 
     equal access to our system of justice in order to pursue 
     legal and Constitutional rights and to fix responsibility for 
     alleged legal wrongs.
       During the last half of this passing century, we have 
     managed to maintain the proposition established over 200 
     years ago that every American is entitled to equal justice 
     under the law.
       In the middle of the century, our Country and our courts 
     began to recognize the inherent evil of discrimination based 
     on race and national origin. In the last two decades, we have 
     begun to address issues of gender. We have enacted sexual 
     harassment laws that have become the symbols of the high 
     moral standards of our Country. They permit half of our 
     citizens to work freely among us without fear of harm and 
     sexual abuse.
       It has been said by many, in attempts to demean this 
     proceeding, that this case is, simply, ``all about sex.'' In 
     some ways, it is. It is about the right of an employed female 
     American living in the State of Arkansas to hold a job 
     without being forced to engage in it by the Governor of that 
     State. That is not the question before us, and I express no 
     opinion on that subject. But I do know that the President of 
     the United States willfully and unlawfully obstructed her 
     efforts in the Federal courts of our Land to pursue her 
     cause. We are forced to leave it to history to determine 
     whether her cause was factually just, and to define the 
     message that the conduct of our Country's highest public 
     officer sends into the next century.
       If only the President had followed the simple, high moral 
     principle handed to us by our Nation's first leader as a 
     child and had said early in this episode ``I cannot tell a 
     lie,'' we would not be here today. We would not be sitting in 
     judgment of a President. We would not be invoking those 
     provisions of the Constitution that have only been applied 
     once before in our Nation's history.
       But we should all be thankful that our Constitution is 
     there, and we should take pride in our right and duty to 
     enforce it. A hundred years from now, when history looks back 
     to this moment, we can hope for a conclusion that our 
     Constitution has been applied fairly and survives, that we 
     have come to principled judgments about matters of national 
     importance, and that the rule of law in American has been 
     sustained.

  Mr. CONRAD. Mr. Chief Justice, I have served twelve years in the 
United States Senate.
  I respect this institution and all of you as colleagues. I especially 
respect the job our leaders have done in this trial. They have 
performed in the highest tradition of the United States Senate. Most of 
all, I respect our oath of office: to ``preserve, protect, and defend 
the Constitution of the United States.'' I know all of us take that 
oath seriously.
  At the end of this proceeding, however, we may reach different 
conclusions about what the Constitution compels us to do. The simple 
truth is that this case is not black and white. As Mr. Manager Graham 
said, reasonable people may come to different conclusions.
  There is one thing on which we all agree: The President's conduct was 
wrong. In fact, it was very wrong. But the question before us is not 
whether the President's conduct was wrong. The question is whether that 
conduct meets the Constitutional standard for removing a President from 
office.
  That requires us to make a profound judgment on whether we should 
overturn the results of a national election. 67 members in this chamber 
can nullify the votes of the 47 million Americans who voted for 
President Clinton. That is an awesome power. It must be used with great 
restraint.
  There are three questions we must answer in the affirmative to remove 
a President: First, did the President commit the crimes he is charged 
with? Second, are these crimes properly addressed by impeachment, or 
would they be better left to the criminal justice system? Third, do the 
charges rise to the level of high crimes and misdemeanors and justify 
the removal of the President of the United States?


                    the sufficiency of the evidence

  Let me start with the first question. The charges against the 
President are perjury and obstruction of justice.
  Five experienced Federal prosecutors representing both Republican and 
Democratic Administrations concluded that no responsible Federal 
prosecutor would bring perjury charges based on the facts in this case.
  The President in his grand jury testimony acknowledged an intimate 
and inappropriate relationship with Monica Lewinsky. The details of 
that relationship are in conflict. But I do not believe relatively 
minor differences in the details of that relationship would result in a 
perjury conviction.
  On the obstruction charges, again the federal prosecutors told us 
they would not bring charges based on the facts in this case.
  Ms. Lewinsky has testified that no one ever asked her to lie or 
promised her a job for her silence. Ms. Lewinsky further testified she 
never discussed the contents of her testimony with the President, ever. 
Finally, she also testified that she believed she could file a truthful 
affidavit.
  But there are two elements of the obstruction of justice charges that 
do trouble me.
  One is the transfer of gifts from Ms. Lewinsky to Betty Currie. That 
could constitute concealment of evidence. But Betty Currie has 
testified five times that Ms. Lewinsky called her to arrange for the 
transfer of gifts. And both the President and Betty Currie have denied 
that the President initiated the transfer.
  The second troubling charge is the questioning of Betty Currie by the 
President after his deposition in the Jones case. I find it hard to 
believe the President was just refreshing his memory when on two 
occasions he put the same set of questions to Ms. Currie. That could 
constitute witness tampering.
  But at the time of these conversations, Betty Currie was not a 
witness in any judicial proceeding. And she has testified that she did 
not feel pressured to agree with the President.
  Although I am not certain that there was no wrongdoing, I do conclude 
that the charges have not been proven beyond a reasonable doubt.


                           impeachable crimes

  That leads me to the second question: even if these charges were 
proven, is this a matter for impeachment, or should it be left to the 
ordinary course of judicial proceeding?
  For me, it is a question best answered by the rule of law that 
governs us all: the Constitution of the United States.
  James Madison kept a journal of the Constitutional Convention. In it, 
he said many of the Founders opposed impeachment altogether. Others 
believed impeachment was needed to protect against treason, bribery, or 
other ``attempts to subvert the Constitution.'' So a carefully crafted, 
very narrow compromise was adopted.
  Article II, section 4 originally read: ``The President . . . shall be 
removed from office on impeachment for, and conviction of, Treason, 
Bribery or other high crimes and misdemeanors against the United 
States.''
  James Wilson, a nineteenth century constitutional scholar has written 
that impeachment was designed for ``great and publick [sic] offences by 
which the Commonwealth was brought into danger.''
  These charges against the President just do not measure up to that 
standard. Hiding presents under a bed. Asking a secretary leading 
questions. These can hardly be the great and public offenses that our 
Founding Fathers had in mind. These charges, and the facts behind them, 
simply do not bring our commonwealth into danger.
  So is the President above the law? Most emphatically, no.
  William Rawles, a contemporary of the Founders and a distinguished 
commentator on the Constitution wrote: ``In general, those offenses 
which may be committed equally by a private person as a public officer, 
are not the subject of impeachment . . . [A]ll offenses not immediately 
connected with office, except the two expressly mentioned, are left to 
the ordinary course of judicial proceeding.''
  I do not argue that no private wrongs can rise to the level of 
impeachable offense, but they must be heinous crimes.
  Article I, section 3, of the Constitution says: ``Judgment in Cases 
of Impeachment shall not extend further

[[Page 2390]]

than to removal from Office . . . but the party convicted shall 
nevertheless be liable and subject to Indictment, trial, judgment and 
punishment according to law.''
  The President is not above the law. He can be prosecuted, indicted, 
convicted, and sentenced for alleged wrongful acts, just like any other 
American.
  We have our Founding Fathers' own words, distinguishing between 
public crimes and those that involve the President's conduct as a 
private individual. We have their deeds to guide us as well. When Vice 
President Aaron Burr killed Alexander Hamilton in a duel and was 
indicted for murder, impeachment was not even considered.
  Almost two hundred years later, the House Judiciary Committee 
dismissed a tax evasion charge against President Nixon when an 
overwhelming majority of the Committee concluded, in the words of 
Congressman Ray Thornton, ``these charges may be reached in due course 
in the regular process of law.''
  In the case before us today, the underlying offense is that the 
President had an extra-marital affair. He is alleged to have lied about 
that under oath, and to have obstructed justice. These are serious 
allegations, and we have considered them seriously.
  Offensive as they were, the President's actions have nothing to do 
with his official duties, nor do they constitute the most serious of 
private crimes. In my judgment, these are matters best left to the 
criminal justice system.


                          REMOVAL FROM OFFICE

  That brings me to the third and final question: do the charges so 
fundamentally threaten our democratic system of government that they 
constitute high crimes and misdemeanors and justify removal of the 
President from office?
  Our Founding Fathers told us two things about impeachment. First, the 
matter at hand had better be a very significant crime--a ``high crime'' 
that threatens our fundamental freedoms. These alleged crimes do not 
meet that standard. Second, they told us that it better not be 
partisan. That's why they required a \2/3\ vote in the Senate to remove 
a President.
  They feared the passions of what they called a ``faction.'' This is a 
classic case of just that. This proceeding was partisan in the House. 
It has become partisan here. I'm not casting aspersions here. I am 
stating a fact.
  Impeachment will fail. And it should. It lacks the fundamental 
legitimacy only a bipartisan consensus can provide.
  My colleagues, the Republic still stands. Our safety as a Nation is 
not in jeopardy. Our Constitution has not been shaken.
  Voting to impeach the President under these circumstances would 
undermine the core principle that lies at the heart of our system of 
government: the separation of powers. Our Founding Fathers made it 
difficult to remove a sitting President by design. They were convinced 
of the wisdom of having three co-equal branches of government. They did 
not want the President serving at the pleasure--or being removed at the 
displeasure--of the legislative branch.
  Our Founding Fathers were right. Removing a popularly elected 
President from office would have implications not only for this 
President, but for every President to follow, and ultimately for the 
very system of government who hold so dear. Thomas Jefferson once said, 
``I know of no safe depository of the ultimate powers of the society 
but the people themselves.''
  My colleagues, we are a democracy. In a government ``of the people, 
by the people, and for the people,'' we cannot ignore the will of the 
people. Removing the President under these circumstances would be the 
most fundamental violation of the rule of law. It would overturn the 
rule of the people as expressed in a free election. It would adopt 
minority rule, overturning the clear wishes of a majority of the 
American people.
  Our freedom and liberty are not threatened by the wrongful acts of 
this President. But our freedom and liberty might be threatened if a 
minority can overturn the will of the majority.
  There may yet come a time when we have no choice but to substitute 
our judgment for the will of the people. I pray I never see that time. 
I know it has not come in this case.
  My colleagues, I will vote against the articles of impeachment in the 
case of William Jefferson Clinton.
  Mr. HUTCHINSON. We are nearing one of the most important votes most 
of us will ever cast.
  As an Arkansan, the impeachment process has been long and difficult. 
President Clinton is a dominating political influence in Arkansas and 
still immensely popular in my home state, so I am acutely aware of the 
political implications of this vote for me.
  As an Arkansan, I share pride in one of our own having achieved so 
much and having attained the highest elective office in the land. 
Arkansas has produced more than its share of political leaders--the 
Joe. T. Robinsons, the Hattie Caraways, the John McClellans, and J.W. 
Fulbrights. But never before has an Arkansan reached the Presidency. I, 
with all of Arkansas, was proud. We knew William Jefferson Clinton's 
intellect, his grasp of policy issues. We knew his personality, his 
charisma. We had seen for years his remarkable political skills, his 
uncanny ability to connect with people. I believe I'm like most 
Arkansans--deeply conflicted--pride mixed with embarrassment, and most 
of all pain.
  This trial is not about private conduct. It is not about the 
President's personal behavior. We are all sinners. We are all flawed 
human beings. The President's personal life is his personal life. It's 
his business, not mine. The facts that are relevant are those relating 
to law.
  This trial is not about process. It seems to me that throughout this 
long drama, many have sought to put Ken Starr on trial or the House 
managers on trial. Was Ken Starr on a vendetta or was he just doing an 
unpleasant job? Whichever, we have to deal with the facts and the 
evidence. Did the House managers, as we have heard from the President's 
counsel so often, ``want to win too much?'' Frankly, both sides wanted 
to win, both sides were fervent in their presentations, and I'm glad we 
didn't hear half-hearted arguments. A vigorous prosecution and defense 
is the basis of a successful adversarial system. What we are doing is 
important. I'm glad they believe in what they are doing, but in the end 
it's the facts, the evidence, with which we must grapple. The process 
with all its flaws is secondary. The reality is, we are faced with a 
body of evidence.
  This trial is not about punishment. It's not about getting our pound 
of flesh from the Democrats. It's not about getting our retribution on 
the President. It's not political vengeance. It's not about polls. If 
polls had prevailed, Andrew Johnson would have been removed, and that 
would have been wrong. To argue that a popular President should not be 
removed regardless of his actions, merely because he is popular, is to 
lower our Constitutional Republic to a meaningless level.
  To say popularity should be a factor in our decision is to say that 
bad poll numbers and unpopularity is an argument for removal of a 
President. How contrary to our constitutional system. The popularity of 
this President should never have been mentioned, in my opinion. Nor 
should political consequences of our votes be the basis for our 
decision of whether to remove this President.
  What I had to weigh was the evidence. Voting to remove a President--
the very thought sobers and humbles me. But the facts are so 
inescapable, the evidence so powerful.
  I am convinced beyond a reasonable doubt that when the President 
testified before the federal grand jury and said that he had been 
truthful to his aides in what he had said about his relationship with 
Ms. Lewinsky--that he committed perjury and obstructed justice. When he 
told Sidney Blumenthal that Ms. Lewinsky was a stalker and he was a 
victim, he was not being truthful. He was trying to destroy her 
reputation and he would have, had it not been for the dress. He lied, 
and he lied about his lie to the grand jury.
  I am convinced beyond a reasonable doubt that when the President led

[[Page 2391]]

Betty Currie through a false rendition of his relationship with Ms. 
Lewinsky that he was tampering with a witness and obstructing justice. 
He did this not once, but twice. His explanation that he was refreshing 
his memory offends all common sense. When he denied this coaching 
before the grand jury, he obstructed justice and committed perjury. Of 
course, there is much more to this case, but how much do we need?
  If this trial was only about one man's actions, it might be easier. 
But this trial is about so much more--the office of the Presidency, the 
precedent of lowering the bar on the importance of our nation's rule of 
law. It's about the oath Bill Clinton took when he was sworn in as our 
President, to uphold our nation's laws. And it's about the oath the 
President took when he swore to tell the truth, the whole truth and 
nothing but the truth before the grand jury. The sanctity of the oath 
is the basis of our judicial system. To lessen the significance of 
violating the oath is in fact an attack on our legal system and the 
rule of law.
  There are men and women across America who languish behind bars today 
because they committed the crime of perjury, lying under oath. How can 
we tell America that our President, the highest government official in 
the land, is treated differently?
  While I was growing up in Gravette, Arkansas, life seemed much more 
simple than it is today. It was a simpler time. But then and now, the 
bedrock of our society is still truth and justice. This hasn't changed. 
On August 25, 1825, Daniel Webster said, ``Whatever government is not a 
government of laws, is a despotism, let it be called what it may.''
  Today is a somber day for our country. This trial has been a sad 
chapter of American history, and I have a heavy heart. As difficult as 
these votes will be, I know that I could not serve the people of 
Arkansas with a clear conscience unless I do what I believe is right 
and uphold the law. I will vote guilty on both articles of impeachment.
  Mrs. MURRAY. Mr. Chief Justice, this past year certainly has been a 
difficult time for America. I have to say, as a citizen, as a woman, 
and as a parent, I cannot begin to describe how deeply disappointed and 
angry I am with the President.
  I came to Washington, D.C. in 1992. Over the last 6 years I have 
worked with Bill Clinton. I trusted him. I thought I knew him. I 
refused to believe he would demean the presidency in the way that he 
has. His behavior was appalling and has hurt us all.
  But as a Senator, I have an obligation under the Constitution that 
transcends any sense of personal betrayal I might have. I am sworn to 
render my judgment based on the evidence presented and the larger 
question of what the framers of the Constitution meant when they wrote 
the impeachment clause.
  I have listened carefully throughout this debate. I have read and 
listened to every available article and argument. Like all of you, I 
have spent more hours on this case that I ever wanted to and have felt 
the tremendous weight of this decision.
  I believe that perjury and obstruction of justice can be considered 
high crimes. The question is whether the facts in this case support the 
allegations that the President committed these crimes.
  The Republican House managers presented a theory. But after listening 
carefully to both sides and, most importantly, reviewing the words of 
the witnesses themselves, they did not prove their theory of perjury 
and obstruction of justice beyond a reasonable doubt to me. If we are 
to remove a President for the first time in our Nation's history, none 
of us should have any doubts.
  We must also ask ourselves how it would affect the country to remove 
this President after such a partisan process. A conversation I had with 
a constituent not long ago really struck a chord with me. He said to 
me,

       I am old enough to remember President Nixon's resignation. 
     I know how deeply it affected the psyche of an entire 
     generation. I know it made many of us cynical of politics for 
     a long, long time. Please don't put us all through that 
     turmoil again. This country would be punished and hurt by a 
     presidential removal. This country doesn't deserve to be 
     punished for this President's behavior.

  So despite my personal disgust with the President's actions, I intend 
to vote ``not guilty'' on both articles of impeachment.
  Our founders were wise. They knew the President would be imperfect. 
They knew he would stumble and fall. While it would be wrong to suggest 
they approved of such behavior, they were not interested in the 
individual and his flaws. They sought to protect the nation.
  They set a very high standard for the legislative body to meet before 
overturning the results of an election--the very basis of our 
democracy. They declared it would only be for the crimes most 
threatening to our nation. They did not establish the impeachment 
process to punish a wrongdoer; they established it to protect America.
  This President's behavior was reprehensible, but it does not threaten 
our nation. In the past year, despite the scandal that ran on the front 
page nearly every day, our country has prospered. Our economy is 
growing. Our waters and air are cleaner. Our communities are safer. Our 
education system is stronger. America is not poised on the brink of 
disaster. Our democracy is safe.
  But what of our legacy in this process? What will I tell my daughter, 
or tell a classroom of young students? Well, it doesn't take a lawyer 
or a constitutional scholar to tell them that no matter how difficult 
it is, tell the truth. The lie will hurt you much, much more. It can 
consume you, your friends, your family, your nation. It can destroy 
those you love and diminish you forever in their eyes.
  This President now knows that. His legacy will be tainted with the 
anguish he inflicted on the people and country he loves because of his 
selfish and disgraceful behavior. It is a weight that he alone will 
bear for the rest of his life.
  We have heard a lot of emotions and strong feelings on this floor 
from both sides. I respect the deep convictions of everyone in this 
room. I am saddened it has appeared partisan. But it is my hope that we 
can now turn the page on this sad part of America's history and put an 
end to the recriminations.
  Mr. Chief Justice, point of personal privilege.
  It is hard to stand before you without Scott Bates behind me. I knew 
him as all of you did as a loyal, excellent Senate employee. But I also 
knew him as a Dad. We stood together as parents on a soccer field 
cheering on our daughters in victory and hugging them in defeat. He 
will be missed.
  But his absence should serve as a reminder that although we have been 
totally engrossed in this issue for far too long, there is life outside 
of these doors. There are friends to be hugged, kids to be educated, 
parents to take care of.
  I hope when this day is over, we will set aside our differences and 
remember there are a lot more important things each of us needs to be 
concentrating on, both professionally and personally. It's time to move 
on.
  Mr. McCAIN. Mr. Chief Justice, I intend to vote to convict the 
President of the United States on both articles of impeachment. To say 
I do so with regret will sound trite to some, but I mean it sincerely. 
I deeply regret that this day has come to pass.
  I bear no animosity for the President. I take no partisan 
satisfaction from this matter. I don't lightly dismiss the public's 
clear opposition to conviction. And I am genuinely concerned that the 
institution of the Presidency not be harmed, either by the President's 
conduct, or by Congress' reaction to his conduct.
  Indeed, I take no satisfaction at all from this vote, with one 
exception--and an important exception it is--that by voting to convict 
I have been spared reproach by my conscience for shirking my duty.
  The Senate faces an awful choice, to be sure. But, to my mind, it is 
a clear choice. I am persuaded that the President has violated his oath 
of office by committing perjury and by obstructing justice, and that by 
so doing he has forfeited his office.

[[Page 2392]]

  As my colleagues across the aisle have so often reminded me, the 
country does not want the President removed. And, they ask, are we not, 
first and foremost, servants of the public will? Even if we believe the 
President to be guilty of the offenses charged, and even if we believe 
those offenses rise to the level of impeachment, should we risk the 
national trauma of forcing his removal against the clearly expressed 
desire of the vast majority of Americans that he should not be removed 
even if he is guilty of perjury and obstruction of justice?
  I considered that question very carefully, and I arrived at an answer 
by reversing the proposition. If a clear majority of the American 
people were to demand the conviction of the President, should I vote 
for his conviction even if I believed the President to be innocent of 
the offenses he is charged with? Of course not. Neither, then, should I 
let public opinion restrain me from voting to convict if I determine 
the President is guilty.
  But are these articles of impeachment of sufficient gravity to 
warrant removal or can we seek their redress by some other means short 
of removing the President from office? Some of those who argue for a 
lesser sanction, including the President's able counsel, contend that 
irrespective of the President's guilt or innocence, neither of the 
articles charge him with high crimes and misdemeanors. Nothing less 
than an assault on the integrity of our constitutional government rises 
to that level. The President's offenses were committed to cover up 
private not public misconduct. Therefore, if he thwarted justice he did 
so for the perfectly understandable and forgivable purpose of keeping 
hidden an embarrassing personal shortcoming that, were it discovered, 
would harm only his family and his reputation, but would not impair our 
system of government.
  This, too, is an appealing rationalization for acquittal. But it is 
just that, a rationalization. Nowhere in the Constitution or in the 
expressed views of our founders are crimes intended to conceal the 
President's character flaws distinguished from crimes intended to 
subvert democracy. The President thwarted justice. No matter how unfair 
he or we may view a process that forces a President to disclose his own 
failings, we should not excuse or fail to punish in the 
constitutionally prescribed manner evidence that the President has 
deliberately thwarted the course of justice.
  I do not desire to sit in judgement of the President's private 
misconduct. It is truly a matter for him and his family to resolve. I 
sincerely wish circumstances had allowed the President to keep his 
personal life private. I have done things in my private life that I am 
not proud of. I suspect many of us have. But we are not asked to judge 
the President's character flaws. We are asked to judge whether the 
President, who swore an oath to faithfully execute his office, 
deliberately subverted--for whatever purpose--the rule of law.
  All of my life, I have been instructed never to swear an oath to my 
country in vain. In my former profession, those who violated their 
sworn oath were punished severely and considered outcasts from our 
society. I do not hold the President to the same standard that I hold 
military officers to. I hold him to a higher standard. Although I may 
admit to failures in my private life, I have at all times, and to the 
best of my ability, kept faith with every oath I have ever sworn to 
this country. I have known some men who kept that faith at the cost of 
their lives.
  I cannot--not in deference to public opinion, or for political 
considerations, or for the sake of comity and friendship--I cannot 
agree to expect less from the President.
  Most officers of my acquaintance would have resigned their commission 
had they been discovered violating their oath. The President did not 
choose that course of action. He has left it to the Senate to determine 
his fate. And the Senate, as we all know, is going to acquit the 
President. As much as I would like to, I cannot join in his acquittal.
  The House managers have made, and I believe some of my colleagues on 
the other side of the aisle would agree, a persuasive case that the 
President is guilty of perjury and obstruction. The circumstances that 
led to these offenses may be tawdry, trivial to some, and usually of a 
very private nature. But the President broke the law. Not a tawdry law, 
not a trivial law, not a private law.
  The tortured explanations with which the President's attorneys have 
tried to defend him against both articles fail to raise reasonable 
doubts about his guilt. It seems clear to me, and to most Americans, 
that the President deliberately lied under oath, and that he tried to 
encourage others to lie under oath on his behalf. Presidents may not be 
excused from such an abuse no matter how intrusive, how unfair, how 
distasteful are the judicial proceedings they attempt to subvert.
  The President's defenders want to know how can I be certain that the 
offenses, even if true, warrant removal from office. They are not 
expressly mentioned in the Constitution as impeachable offenses. Nor 
did the founders identify perjury or obstruction as high crimes or high 
misdemeanors. Were an ordinary citizen accused of perjury in a civil 
proceeding he or she would in all likelihood not be prosecuted or 
forced out of political necessity into a perjury trap.
  No, an ordinary citizen would not be treated as the President has 
been treated. But ordinary citizens don't enforce the laws for the rest 
of us. Ordinary citizens don't have the world's mightiest armed forces 
at their command. Ordinary citizens do not usually have the opportunity 
to be figures of historical importance.
  Presidents are not ordinary citizens. They are extraordinary, in that 
they are vested with so much more authority and power than the rest of 
us. We have a right; indeed, we have an obligation, to hold them 
strictly accountable to the rule of law.
  Are perjury and obstruction of justice expressly listed as high 
crimes and misdemeanors? No. Why? Because they are self-evidently so. 
Just as the President is self-evidently the nation's chief law 
enforcement officer, despite his attorneys' quibbling to the contrary. 
It is self-evident to us all, I hope, that we cannot overlook, dismiss 
or diminish the obstruction of justice by the very person we charge 
with taking care that the laws are faithfully executed. It is self-
evident to me. And accordingly, regretfully, I must vote to convict the 
President, and urge my colleagues to do the same.
  Mr. JOHNSON. Mr. Chief Justice, the great question now before the 
Senate is not whether the rule of law will prevail--it surely will--
both by the actions of this body and by possible proceedings within the 
judicial system.
  The question before the Senate is whether we should take action 
against the President beyond that allowed for in our nation's courts. 
We are, I believe, confronted by two threshold questions which must 
first be resolved before consideration can or need be given to weighing 
the evidence presented by the House Managers. First, is whether the 
Articles of Impeachment have been adequately drawn to allow the accused 
to know with precision the wrong-doing to which he is accused, and to 
require that a \2/3\ majority vote of the Senate be secured upon a 
single act of wrong-doing in order to convict. As a second threshold 
matter, if the Articles are at least adequately drawn, do they, if 
true, allege wrong-doing of sufficient import to justify for the very 
first time in our nation's long history, the over-turning of the 
people's will as expressed in a free, fair and democratic national 
election? I am troubled by the adequacy of the articles, but even 
accepting them, the second threshold question of impeachability is 
simply not met.
  Only if these threshold questions are adequately met in the mind of 
an individual Senator, can that Senator proceed to determine whether 
the weight of the evidence is sufficient to convict. And even if both 
threshold questions are ignored, it is impossible for me to say that 
the circumstantial evidence presented reaches a ``beyond a reasonable 
doubt'' standard on either article. Reasonable doubt means that if 
there

[[Page 2393]]

are multiple reasonable theories as to what occurred--if one of the 
reasonable theories is consistent with innocence, then an acquittal 
must follow. Especially relative to article two--I can understand the 
belief of some that a plausible scenario of obstruction was 
established. Some may even believe that the President was more likely 
than not obstructing justice. But the evidence is clearly not so 
powerful as to lead anyone to believe that no reasonable and innocent 
scenario remains.
  I am both profoundly honored and humbled to have this historic 
responsibility to participate with my Senate colleagues, Republican and 
Democrat, in perhaps the most grave proceeding envisioned by the 
authors of our national Constitution. I have listened carefully to both 
sides of this dispute, and I have also carefully reviewed the thoughts 
of many of our nation's leading scholars of history and constitutional 
law. It is clear to me that the results of this trial have 
ramifications which go far beyond the fortunes of William Jefferson 
Clinton.
  The decision made by the Senate this week will have an utterly 
profound impact on the relationship between the executive and 
legislative branches of our government for the rest of time. 
Accordingly, it is essential that the decisions made in this proceeding 
not be driven by transitory passions of partisan politics, but rather, 
with an eye toward the long-term stability and integrity of our 
democracy.
  My humble reading of history leads me to believe that the never-
failing bipartisan honoring of national presidential elections over 
these past two centuries has been one of the greatest sources of our 
national success. While holding a president accountable to all the same 
civil and criminal laws that apply to the general citizenry is 
absolutely essential, the writers of our Constitution properly intended 
for the reversal of fair elections at the hands of Congress to be 
exceedingly rare and difficult.
  The learned opinions of our nation's leading scholars overwhelmingly 
support the understanding that presidents should not be removed from 
office by Congress short of some horrific personal misconduct or 
misconduct which arises from executive authority and threatens the 
nation--such as treason or bribery. By requiring a \2/3\ vote for the 
over-turning of presidential elections, the founders of our nation also 
made it crystal clear that such an extraordinary step should not and 
cannot be taken unless there is an overwhelming bipartisan outcry 
against the President's actions.
  The American public and most Members of Congress, including myself, 
have criticized President Clinton's personal conduct in harsh terms. 
But the American public also seems to understand that at stake is not 
simply Bill Clinton's future, but the integrity of our election system 
and the long-term freedom of the executive branch from partisan 
congressional attack--this understanding about the need for stability, 
for proportionality, for continuity, is a natural and a deeply 
conservative inclination on the part of our citizenry.
  The writers of our Constitution wanted some degree of proportionality 
between a president's conduct and the penalties applied--otherwise they 
would have made impeachment applicable to all crimes and misdemeanors. 
It is certainly conceivable that the will of the people expressed in an 
election may someday be rightly overturned by Congress. But it is also 
certain to me that while this president's personal conduct (involving 
immaterial testimony to a lawsuit dismissed by a federal court as 
having no merit) is deserving of public condemnation, and even possible 
prosecution within the judicial system, it simply does not rise to the 
level of extraordinary danger to the nation that justifies removal from 
office.
  Some will no doubt say that I have set a high standard for 
overturning presidential elections. I would very much agree. 
Particularly as a recently former member of the House of 
Representatives, I have witnessed first hand the depth and the 
intensity of partisan anger that can occur from time to time in 
Congress and among portions of the national public. It is a reaction to 
that open partisanship demonstrated by the House and the Independent 
Counsel that surely is at the foundation of the American public's 
overwhelming contempt for this proceeding and the view that this 
process is politics as usual, an exercise in raw political power and 
beneath what should be the dignity of Congress.
  I have no certain solutions for that sad and angry state of affairs, 
other than to attempt to conduct my own political life in as thoughtful 
and moderate a manner as I am capable, but I believe the Constitution 
provided our nation with a strong bulwark against negative and hateful 
partisanship by creating an executive branch which is largely shielded 
from congressional partisanship and which is instead disciplined by law 
and by the electoral will of the people.
  I greatly fear that any lesser standard would result, even without an 
independent counsel law, in a situation whereby civil actions against 
standing presidents will be routinely brought as yet another 
destructive partisan political tactic. These multiple and nefarious 
actions will then be followed by never-ending legal discovery 
proceedings, and they in turn followed by impeachment articles or the 
threat of impeachment each time the House is controlled by a different 
political party than the Presidency. I fear the wrong decision here 
will lead our nation into an ever downward spiral where impeachment 
proceedings will be routine.
  It is critically important, in my view, for this United States Senate 
to say, ``Stop! Enough!'' We must send an unmistakable message to the 
House, the nation and the world, that we will not permit the stability 
and independence of the executive branch of our government to be 
jeopardized by anything less than heinous crimes or gross threats to 
the nation.
  This leaves, of course, other avenues for Congress and the public to 
express great displeasure with the President's dishonorable conduct. If 
illegal activity did in fact take place, that activity would be subject 
to discipline in the courts. While there are divided opinions on its 
wisdom, it is possible that some sort of collective censure may be 
agreed upon by the Senate, and certainly individual Senators are free 
to place their condemnations of the President's personal behavior in 
the Congressional Record. The House impeachment of the President, the 
public humiliation of Bill Clinton and his family, as well as the great 
private fortune this dispute will have consumed will also serve as 
punishment enough. But, I think it is also important for this Senate to 
understand that the writers of our Constitution did not create an 
impeachment process as one more form of punishment, but exclusively to 
protect the viability of our nation.
  Given my sacred oaths as a United States Senator and as a participant 
in this impeachment trial, and given my abiding commitment to the 
Constitution and the well-being of our nation, I have no choice but to 
vote against both Articles of Impeachment. I do not know nor do I care 
what the political consequences might be of the decision I make here--I 
am a Democrat elected six consecutive times state-wide from my largely 
Republican state, and I have long been proud of the bipartisan support 
extended to me by the good people of South Dakota. In turn, I have long 
recognized that neither political party has a monopoly on good ideas or 
bad, good people or bad. But I know this--the issue before me is too 
grave for politics. At the end of the day, when my service in this body 
is done, I want my children, my family and myself to view my decisions 
here as honorable, as an exercise in responsible judgement, and in a 
small way, as efforts that strengthened the bulwark of democracy that 
our Constitution represents.
  The President dishonorably lied to the American people, however, the 
two Articles before the Senate fail, first because they do not allege 
offenses that give rise to removal from office, and secondly, because 
it cannot be said that the evidence proves guilt of perjury or 
obstruction of justice beyond

[[Page 2394]]

all reasonable doubt (to such a degree that no innocent and reasonable 
explanation exists).
  I will vote not guilty on both Article one and Article two.
  Mr. LUGAR. Mr. Chief Justice, for the first time in 120 years, and 
only for the second time in U.S. history, the Senate is about to 
conclude a Presidential impeachment trial. Our Founding Fathers viewed 
the power to remove a President as a necessary constitutional 
safeguard, but they wanted to make certain that the process was 
sufficiently difficult that the will of the voters would be overturned 
only for the gravest of reasons. They wrote the words ``high crimes and 
misdemeanors'' as a threshold, but left it to us to determine what 
transgressions met this standard. All of us have endeavored to fulfill 
this enormous responsibility.
  From the beginning of the consideration of impeachment last year, 
many Members of Congress in both parties have made public statements 
expressing their opinions that the President lied to a federal grand 
jury and that he obstructed justice on numerous occasions. These 
judgments are apparently shared by large majorities of the American 
people as illustrated in frequent public opinion polls. The same polls 
have consistently found that a large majority of Americans do not want 
the President to suffer the Constitutional consequence of these 
breaches of law, namely, removal from office.
  Since the House voted for impeachment, almost all 45 Democrats and 
some Republicans in the Senate have voiced their skepticism about 
voting to remove President Clinton from office. Early in the trial, 44 
Democrats voted to dismiss the impeachment proceedings outright. Thus, 
a two-thirds majority vote needed for a guilty verdict has never been a 
likely outcome of the trial.
  In the background, most Senate Democrats and several Republicans have 
worked on a motion to censure President Clinton. Our distinguished 
colleague, Senator Feinstein, drafted a censure resolution that 
attracted substantial bipartisan support and was published in the New 
York Times of February 6, 1999. It stated:

       Whereas William Jefferson Clinton, President of the United 
     States, engaged in an inappropriate relationship with a 
     subordinate employee in the White House, which was shameless, 
     reckless and indefensible;
       Whereas William Jefferson Clinton, President of the United 
     States, deliberately misled and deceived the American people 
     and officials in all branches of the United States 
     Government;
       Whereas William Jefferson Clinton, President of the United 
     States, gave false or misleading testimony and impeded 
     discovery of evidence in judicial proceedings;
       Whereas William Jefferson Clinton's conduct in this matter 
     is unacceptable for a President of the United States, does 
     demean the Office of the President as well as the President 
     himself, and creates disrespect for the laws of the land;
       Whereas President Clinton fully deserves censure for 
     engaging in such behavior;
       Whereas future generations of Americans must know that such 
     behavior is not only unacceptable but also bears grave 
     consequences, including loss of integrity, trust and respect;
       Whereas William Jefferson Clinton remains subject to 
     criminal and civil actions;
       Whereas William Jefferson Clinton's conduct in this matter 
     has brought shame and dishonor to himself and to the Office 
     of the President; and
       Whereas William Jefferson Clinton, through his conduct in 
     this matter, has violated the trust of the American people: 
     Now, therefore, be it
       Resolved, That the United States Senate does hereby censure 
     William Jefferson Clinton, President of the United States, 
     and condemns his conduct in the strongest terms.

  Citizens might ask how a Senator could vote for a resolution stating 
that President Clinton ``deliberately misled and deceived the American 
people and officials in all branches of the United States Government'' 
and ``gave false or misleading testimony and impeded discovery of 
evidence in judicial proceedings'' and yet fail to vote ``guilty'' on 
articles of impeachment that specifically mention perjury and 
obstruction of justice. The answer to that question is at the heart of 
understanding the Senate trial.
  With few exceptions, Senators recognize that the Constitution gives 
only one outcome to a verdict of ``guilty,'' namely, removal from 
office. At the same time, many Senators are shocked by conduct which 
they call ``shameless, reckless, and indefensible,'' and they want 
their constituents to know that they have not been fooled or 
overwhelmed by Presidential charm. They have taken the initiative to 
explicitly denounce the bizarre conduct and the extraordinary 
corruption of this President. Members of both parties have deplored the 
fact that the President conducted an illicit sustained physical sexual 
relationship in spaces close to the Oval Office and publicly denied 
this to his family, his staff, and in televised statements to the world 
only to see all of the elaborate cover-up collapse after DNA tests on 
the dress of a young woman.
  But the impeachment trial of President Clinton is not about adultery. 
The impeachment trial involves the President's illegal efforts to deny 
a fair result in the suit brought by Ms. Paula Jones. I have no doubt 
that the President worked deliberately to deny justice in this suit. In 
doing so, he lied to a federal grand jury and worked to induce others 
to give false testimony, thus obstructing justice.
  Ms. Jones has often been described as a small person in our judicial 
system. In contrast, the President, who at the time of his inaugural 
takes a solemn oath to preserve and protect equal justice under the law 
for even the most humble of Americans, is a giant figure. As Senators 
who also take a solemn oath, we must ask ourselves the fundamental 
question: ``Is any man or woman above the law?''
  The legal defense team for the President does not admit that there is 
adequate proof of either perjury or obstruction of justice. They 
contend that Senators must embrace a theory of ``immaculate 
obstruction'' in which jobs are found, gifts are concealed, false 
affidavits are filed, and the character of a witness is publicly 
impugned, all without the knowledge or direction of the President, who 
is the sole beneficiary of these actions. The President's lawyers 
further contend that such crimes are, in any event, insufficient to 
remove the President. The drafters of the Constitution would have 
rejected these rationalizations for the indefensible Presidential 
misconduct at issue. They were political men with a profound reverence 
for the sanctity of the oath and our entire system of justice. They did 
not suggest that Senators park their common sense and their stewardship 
for the security of our country at the Senate door as they entered into 
an impeachment trial.
  In fact, we have discovered in this trial that the founding fathers 
wanted the Senate to act as ``triers'' of fact and in the roles of both 
trial court and jury. Most importantly, they wanted us to act as 
guardians of the Constitution and thus the liberty and the rights under 
law of each individual American. Liberty itself is directly threatened 
when a President subverts the very judicial system that secures those 
rights.
  During this trial, I have concluded that the prosecutors made their 
case. I will vote to remove President Clinton from office not only 
because he is guilty of both articles of impeachment, but also because 
I believe the crimes committed here demonstrate that he is capable of 
lying routinely whenever it is convenient. He is not trustworthy. 
Simply to be near him in the White House has meant not only tragic 
heartache for his wife and his daughter but enormous legal bills for 
staff members and friends who admired him and yearned for his success 
but who have been caught up in his incessant ``war room'' strategies to 
maintain him in office. Senator Feinstein begins her censure resolution 
with the appropriate word ``shameless.'' The President should have 
simply resigned and spared his country the ordeal of this impeachment 
trial and its aftermath.
  We have been fortunate that this damaged presidency has occurred 
during a time of relative peace and prosperity. In times of war or 
national emergency it is often necessary for the President to call upon 
the nation to make great economic and personal sacrifices. In these 
occasions, our President had best be trustworthy--a truth teller whose 
life of principled leadership and integrity we can count upon.

[[Page 2395]]

Some commentators have suggested that with the President having less 
than two years left in his term of office, the easiest approach is to 
let the clock expire while hoping that he is sufficiently careful, if 
not contrite, to avoid reckless and indefensible conduct. But as 
Senators, we know that the dangers of the world constantly threaten us. 
Rarely do two years pass without the need for strong Presidential 
leadership and the exercise of substantial moral authority from the 
White House.
  Of particular concern are the implications of the President's 
behavior for our national security. As Commander-in-Chief, President 
Clinton fully understood the risks that he was imposing on the 
country's security with his secret affair in the White House. Even in 
this post-Cold War era, foreign intelligence agents constantly look for 
opportunities for deception, propaganda, and blackmail. No higher 
targets exist than the President and the White House. The President 
even acknowledged in a phone call with Ms. Lewinsky that foreign agents 
could be monitoring their conversations. Yet this knowledge did not 
dissuade the President from continuing his affair. With premeditation, 
he chose his own gratification above the security of his country and 
the success of his presidency. Then he chose to compound the damage by 
systematically lying about it over the span of many months.
  I believe that our country will be stronger and better prepared to 
meet our challenges with a cleansing of the Presidency. The President 
of the United States is the most powerful person in the world because 
we are the strongest country economically and militarily, and in the 
appeal of our idealism for liberty and freedom of conscience. Our 
President must be strong because a President personifies the rule of 
law that he is sworn to uphold and protect. We must believe him and 
trust him if we are to follow him. His influence on domestic and 
foreign policies comes from that trust, which a lifetime of words, 
deeds, and achievements has built.
  President Clinton has betrayed that trust. His leadership has been 
diminished because most Americans have come to the cynical conclusion 
that they must read between the lines of his statements and try to 
catch a glimmer of truth amidst the spin. His subordinates have 
demeaned public life by contending that ``everybody does it'' as a 
defense of why the President has erred so grievously. But every 
President does not lie to a federal grand jury. Every President does 
not obstruct justice. The last President to do so was President Nixon, 
and he had sufficient reverence for the office to resign before the 
House even voted articles of impeachment.
  The impeachment trial must come to an end. The Presidency will be 
strengthened and our ability as Americans to meet important challenges 
will be strengthened if we begin to restore our faith in the truth and 
justice that our government must exemplify and preserve. It will not be 
enough simply to condemn the tragic misdeeds of President Clinton. He 
must be removed from office as the Constitution prescribes, and we must 
celebrate the strength of that same Constitution which also provides a 
path for a new beginning.
  Thank you, Mr. Chief Justice. I yield the floor.
  Mr. BIDEN. Let me begin by stating what I believe the American people 
view as the obvious. There are no good guys in this sordid affair. 
Rightly or wrongly, the public has concluded that the President is an 
adulterer and liar; that Ken Starr has abused his authority by unfair 
tactics born out of vindictiveness; that the House Managers have acted 
in a narrowly partisan way and are now desperately attempting to 
justify their actions for their own political reputation. Finally, they 
have concluded that Monica Lewinsky was both used and a user, while 
Linda Tripp, Lucianne Goldberg, Paula Jones and her official and 
unofficial legal team are part of a larger political plot to ``get the 
President''.
  All of that is beyond our ability to effect. Our job is not to 
dissect the motives or even the tactics of Ken Starr, the trial 
lawyers, Linda Tripp, and others. Our only job is to determine whether 
the President of the United States by his conduct committed the 
specific acts alleged in the two Articles of Impeachment. Not 
generally, but specifically: Did he do what is alleged? And if he did, 
do these actions rise to the level of high crimes and misdemeanors 
necessary to justify the most obviously anti-democratic act the Senate 
can engage in--overturning an election by convicting the President.
  It is very important--both for history's sake and for fairness' 
sake--that we keep our eye on the ball. When I tried cases, I learned 
from a man named Sid Balick--he used to say at the outset to the jury:

       Keep your eye on the ball. The issue is not whether my 
     client is a man you would want your daughter to date--a man 
     you would invite home to dinner. The issue is did my client 
     kill Cock Robbin--period.

  But if we listen to the oft-times confusing presentation of the House 
Managers--they would have us think that it is sufficient for us to 
conclude that we would not trust him with our daughters and not invite 
him home for dinner in order to convict.
  Much more is required. The House set the standard we must repair to 
in the Articles--did he commit a criminal offense? That is what they 
allege; that is what they must prove.
  The Managers keep saying that this case is about what standards we 
want our President to meet. We hear Flanders Fields intoned--the honor 
of our most decorated heroes. How incredibly self-serving and 
autocratic such a plea is.
  The American people are fully capable--without our guidance or 
advice--to determine what standards they want our President to meet. 
That is an appropriate question to ask ourselves when we enter the 
voting booth to vote--it is not when we rise on this floor to vote.
  Spare me from those who would tell the American people what standard 
they must apply when voting for President. Ours is an Impeachment 
standard and our oath to do justice under that standard.
  Impeachment is about what standard to use in deciding whether or not 
to remove a President duly elected by the people.
  These are two very different questions and we must not, we cannot, 
get them confused. You and I and the American people can apply any 
standard we want our President to meet when we go to the polls on 
election day.
  Only the Constitution can supply the standards to use in deciding 
whether or not to remove the President--and--in my view, this case does 
not meet that standard, for two reasons.
  First, the facts do not sustain the House Managers' case. According 
to the House's own theory, we must find that the President has violated 
federal criminal statutes--not just that he did bad things. In all good 
conscience, I just cannot believe that any jury would convict the 
President of any of the criminal charges on these facts. I also believe 
that it is our constitutional duty to give the President the benefit of 
the doubt on the facts. To me, the allegations that the President 
violated Title 18 were left in a shambles on this floor.
  But I do not have time to dwell on the facts. So let me turn to the 
second reason: the President's actions do not rise to the level 
required by the Constitution for the removal of a sitting President.
  We have heard it argued repeatedly that the Constitution does not 
create different standards for Judges and the President. But that 
argument fails to comprehend the organizing principle of our 
constitutional system--the separation of powers. The framers divided 
the power of the federal government into three branches in order to 
safeguard liberty. This innovation--the envy of every nation on earth--
can only serve its fundamental purpose if each branch remains strong 
and independent of the others.
  We needed a President who was independent enough to spearhead and 
sign the Civil Rights Act. We needed a President who was independent 
enough to lead the nation and the world in the

[[Page 2396]]

Persian Gulf War. We still need an independent President.
  The constitutional scholarship overwhelmingly recognizes that the 
fundamental structural commitment to separation of powers requires us 
to view the President as different than a federal judge. Consider our 
power to discipline and even expel an individual Senator. In such a 
case, we do not remove the head of a separate branch and so do not 
threaten the constitutional balance of powers. To remove a President is 
to decapitate another branch and to undermine the independence 
necessary for it to fulfill its constitutional role.
  Only a President is chosen by the people in a national election. No 
Senator, no Representative can make this claim. To remove a duly 
elected President clashes with democratic principles in a way that 
simply has no constitutional parallel. By contrast, there is nothing 
anti-democratic in the Senate removing a judge, who was appointed and 
not elected by the people.
  Another contention we continue to hear is that the Framers clearly 
thought that obstruction of justice of any kind by a President was a 
high crime and misdemeanor. For this they cite the colloquy between 
Colonel George Mason and James Madison, who argued that a President who 
abused his pardon power could be impeached. That colloquy illustrates 
that it is not any obstruction that would satisfy the Constitution--
rather, that the framers were immediately concerned about abuses of 
official power, such as the pardon power.
  The House Managers have relied repeatedly on Alexander Hamilton's 
explanation of impeachment found in Federalist No. 65. But careful 
reading demonstrates that these articles of impeachment are a 
constitutionally insufficient ground for removing the President from 
office. Federalist No. 65 states:

       The subjects of [the impeachment court's] jurisdiction are 
     those offenses which proceed from the misconduct of public 
     men, or, in other words, from the abuse or violation of some 
     public trust. They are of a nature which may with peculiar 
     propriety be denominated POLITICAL, as they relate chiefly to 
     injuries done immediately to the society itself.

  Hamilton had the word ``political'' typed in all capital letters to 
emphasize that this is the central, defining element of any impeachable 
offense. Having emphasized its meaning, he did not leave its definition 
to chance. While all crimes by definition harm society, impeachable 
offenses involve a specific category of offenses. Using Hamilton's 
terms, these are offenses committed when ``public men'' who ``violat[e] 
some public trust'' cause ``injuries done immediately to the society 
itself.'' The public trust that resides in, to use Hamilton's hoary 
phrase, ``public men'' is what we would call today official power.
  What other construction can be given these words? Hamilton did not 
define an impeachable offense to be any offense committed by public 
men. He did not define an impeachable offense to be any reprehensible 
act committed by a bad man. Only those acts that abuse public office 
and so harm the public directly and politically are impeachable.
  While I would like to take credit for this insight into Hamilton's 
meaning, I actually stand in a line of interpretation that stretches 
back to the founding era. William Rawle wrote the first distinguished 
commentary on the Constitution, ``A View of the Constitution of the 
United States of America.'' In this treatise, he came to precisely the 
same interpretation I have described. He said, ``The causes of 
impeachment can only have reference to public character and official 
duty. . . . In general those which may be committed equally by a 
private person as a public officer are not the subject of 
impeachment.''
  Joseph Story was not only a long-serving and important Justice of the 
Supreme Court of the United States, he was a preeminent constitutional 
scholar and author of a treatise that remains an important source for 
understanding the Constitution's meaning. He too emphasized that ``it 
is not every offense that by the constitution is . . . impeachable.'' 
Which offenses did he regard to be impeachable? ``Such kinds of 
misdeeds . . . as peculiarly injure the commonwealth by the abuse of 
high offices of trust.'' Justice Story tied the definition of 
impeachable offenses to the purpose that underlies the separation of 
powers--safeguarding the liberty of the people against abusive exercise 
of governmental power. He observed that impeachment ``is not so much 
designed to punish an offender as to secure the state against gross 
official misdemeanors.''
  There is no question that the Constitution sets the bar for 
impeachment very high--especially where the President is involved. 
Federalist 65 bears this out, as do numerous other commentaries.
  But Federalist 65 also sounds a warning--again, it is a warning that 
has been invoked over and over again--that impeachments inevitably risk 
being hijacked by partisan political forces.
  Federalist 65 worried that the ``animosities, partialities, 
influence, and interest on one side or the other'' would enable 
partisans to find a way to interpret words such as high crimes and 
misdemeanors to match the outcome they otherwise wished to reach--not 
necessarily out of any malevolence, but simply because of the great 
capacity that we all have to rationalize.
  Here the rationalization is pretty easy--the President is a disgrace 
to the office, I honor and revere the office of the Presidency, so 
there must be some way to get this man out of that office. Therefore, 
his actions must rise to the level of high crimes and misdemeanors.
  It is tempting to go down that road --but this is precisely the 
temptation that the Framers urged us to avoid.
  In Federalist 65, Hamilton defended the United States Senate as the 
only body that could possibly hear a presidential impeachment. ``Where 
else than in the Senate could have been found a tribunal sufficiently 
dignified, or sufficiently independent? What other body would be likely 
to feel confidence enough in its own situation to preserve, unawed and 
uninfluenced the necessary impartiality between an individual accused 
and . . . his accusers?''
  Hamilton was placing the responsibility to be impartial squarely upon 
us--a responsibility that has become embodied in the oath we took when 
the trial began.
  Charles Black, the renowned constitutional law professor from Yale, 
boiled down the attitude that we as Senators must adopt in order to 
achieve an impartiality and independence sufficient to the 
responsibilities of impeachment. He said we must act with a 
``principled political neutrality.''
  That is a tough standard to meet. In the Johnson impeachment, for 
example, James Blaine originally voted for the impeachment of the 
President in the House. Years later he admitted his mistake, saying 
that `the sober reflection of after years has persuaded many who 
favored Impeachment that it was not justifiable on the charges made, 
and that its success would have resulted in greater injury to free 
institutions than Andrew Johnson in his utmost endeavor was able to 
inflict.''
  And in our contemporary situation, former President Ford and our 
distinguished colleague and former majority leader, Robert Dole, have 
both urged us not to go down the road to impeachment, but to seek other 
means to express our displeasure.
  Charles Black knew that principled political neutrality was hard to 
achieve, so he suggested one approach. He suggested that prior to 
voting, a Senator should ask:

       Would I have answered the same question the same way if it 
     came up with respect to a President towards whom I felt 
     oppositely from the way I feel toward the President 
     threatened with removal?

  In reaching a final decision, the question I wish to pose to my 
colleagues is this: Can you legitimately conclude that you would vote 
to remove a sitting President if he were a person towards whom you felt 
oppositely than you do toward Bill Clinton?
  Given the essentially anti-democratic nature of impeachment and the 
great dangers inherent in the too ready exercise of that power, 
impeachment has no place in our system of constitutional democracy 
except as an extreme measure--reserved for breaches of the public trust 
by a President who so violates his official duties, misuses his 
official powers or places our system of

[[Page 2397]]

government at such risk that our constitutional government is put in 
immediate danger by his continuing to serve out the term to which the 
people of the United States elected him.
  In my judgment, trying to assume a perspective of principled 
political neutrality, the case before us falls far, far short on the 
facts and on the law.
  I ask unanimous consent that the text of a more comprehensive 
statement be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

   Senator Joseph R. Biden's Comprehensive Statement On Impeachment 
                             Deliberations

       There are no good guys in this sordid affair. Rightly or 
     wrongly, the public has concluded that the President is an 
     adulterer and liar. Ken Starr has abused his authority by 
     unfair tactics born out of vindictiveness. The House Managers 
     have acted in a narrowly partisan way and are now desperately 
     attempting to justify their actions for their own political 
     reputation and that Monica Lewinsky was both used and a user, 
     while Linda Tripp, Lucianne Goldberg, Paula Jones and her 
     official and unofficial legal team are part of a larger 
     political plot to ``get the President''.
       At this point, all that occurred before this is beyond my 
     ability to affect. My job as a United States Senator hearing 
     an impeachment trial is not to dissect the motives or even 
     the tactics of Ken Starr, the trial lawyers, Linda Tripp and 
     others. My only job is to determine whether the President of 
     the United States, by his conduct committed the acts alleged 
     in the two Articles of Impeachment before us. Not generally, 
     but specifically, did he do what is alleged--and if he did, 
     do these actions rise to the level of high crimes and 
     misdemeanors necessary to justify the most obviously anti-
     democratic act the Senate can engage in overturning an 
     election.


                      The Articles of Impeachment

       When the Framers designed our elected branches of 
     government, they established a system of separate but equal 
     branches. The independence of the President from the 
     Congress, and vice versa, is constitutionally anchored in the 
     fact that each answers directly to the people through the 
     ballot box. The people determine who will serve in either 
     branch.
       As I said in a speech last September at Syracuse Law School 
     and in another on the floor of the United State Senate, the 
     independence of the President from the Congress was no minor 
     detail in the constitutional design. The single major goal 
     and idea that best explains how the Framers constructed the 
     office of the Presidency was to make the presidency as 
     politically independent of the Congress as they could. They 
     believed his independence vital to the protection of our 
     liberties.
       It takes a strong and independent President to sign the 
     Emancipation Proclamation in the face of congressional 
     opposition, as Abraham Lincoln did. It takes a strong and 
     independent President to sign the executive order integrating 
     the Armed Services in the face of congressional resistance, 
     as Harry Truman did. It takes a strong and independent 
     president to veto legislation in the face of strong 
     majorities, as Ronald Reagan, George Bush and all of our 
     Presidents have done.
       We can, and we do, disagree about the wisdom of any 
     particular presidential decision, but none of us can doubt 
     that the institution of a strong and independent presidency 
     has enhanced our freedoms and made us a stronger nation.
       For us to remove a duly elected president will unavoidably 
     harm our constitutional structure.
       Accordingly, for this Senator, the starting point in my 
     thinking about the articles of impeachment must begin with 
     giving the President the benefit of the doubt, and to err on 
     the side of sustaining the independence of that office so 
     vital to the Framers and to the constitutional system they 
     designed. Impeachment must be used against a President only 
     as an extreme measure, when the President has so breached the 
     public trust that our system of government is put in danger 
     by his continuing to serve out the term to which the people 
     of the United States elected him.
       Have the House Managers presented a case of sufficient 
     severity, and have they proved it with sufficient clarity, to 
     justify the drastic and awesome, step of convicting a duly 
     elected President?
       On January 12, when the House Managers walked across the 
     rotunda to the Senate and presented their case against the 
     President, the country moved from the realm of sound bites 
     and political attacks to a serious and sober consideration of 
     the precise nature of the House's allegations against the 
     President, and of the full extent of the record evidence 
     against him.
       The House Managers have told us that in their judgment two 
     dangers to our system of government justify taking this 
     unprecedented and awesome step.
       First, they said that failing to remove the President will 
     undermine the rule of law and the administration of justice. 
     Permitting a serial perjurer and obstructor of justice to 
     escape punishment will bring disgrace on the oath ``to tell 
     the truth.'' It will mean that we can no longer with good 
     conscience punish other people who have committed perjury or 
     obstructed justice. The ultimate effects would be felt 
     throughout the judicial system. Like a pebble dropped into a 
     pond, they said, it will send out ripples to all corners of 
     our judicial system.
       Second, they said that failing to remove the President will 
     also condone his plot or scheme to deny a specific civil 
     rights plaintiff--Paula Jones--of a full opportunity to 
     litigate her civil rights claims against the President. 
     Regardless of the ripple effects of his actions, the acts 
     themselves were violations of law that amounted to a failure 
     of the President to ``take care that the laws be faithfully 
     executed,'' in violation of his oath of office.


           Multiple Violations of the Criminal Law Necessary

       As I have said in earlier speeches on the impeachment 
     power, not all crimes are impeachable, and an impeachable 
     offense does not have to be a crime.
       In this case, however, the House Managers have made it 
     quite clear that their case against the President depends 
     entirely on proving that he has committed crimes, and not 
     just a few crimes, but an elaborate scheme that included 
     ``lots and lots of perjury'' and ``many obstructions of 
     justice,'' to quote Mr. McCollum. The dangers the President 
     supposedly poses flow not from the President's reprehensible 
     conduct, or from the fact that he misled his family, his 
     aides, his cabinet and the nation about that conduct. This 
     impeachment is not about sex, they have insisted.
       I asked Mr. Barr about this during the trial, and he said 
     ``What brings us here . . . is the belief by the House of 
     Representatives in lawful public vote that this President 
     violated, in numerous respects, his oath of office and the 
     Criminal Code of the United States of America--in particular, 
     that he committed perjury and obstruction of justice.'' Mr. 
     McCollum made the same point in his opening presentation, 
     when he said, ``The first thing you have to determine is 
     whether or not the president committed crimes. It's only if 
     you determine he committed the crimes of perjury, obstruction 
     of justice and witness tampering, that you ever move on to 
     the question of whether he is removed from office. . . . None 
     of us would argue to you that the president should be removed 
     from office unless you conclude he committed the crimes that 
     he is alleged to have committed.''


           The Burden of Proof in Assessing the House's Case

       So the question before the Senate is whether the President 
     is a serial perjurer and a massive obstructor of justice.
       What standard of proof should a Senator apply in deciding 
     whether the record supports the accusations contained in the 
     articles of impeachment--the accusations that the President 
     violated the federal criminal law? The House Managers quite 
     correctly pointed out that the Senate has never sought to 
     determine for the entire body what the burden of proof should 
     be in an impeachment. In effect, we have left it to the good 
     judgment of each Senator to decide whether or not they are 
     convinced by the evidence presented to us.
       For this Senator, fundamental fairness as well as the 
     nature of the House's case dictate that I ought to be 
     convinced beyond a reasonable doubt that the President 
     violated the laws that the House alleges. Proof beyond a 
     reasonable doubt is the same standard applied in criminal 
     cases--it is the standard that would apply if the President 
     were tried in a criminal court for perjury or obstruction of 
     justice.
       It seems to me that fundamental fairness counsels that I 
     apply the same standard as a criminal court precisely because 
     the House asserts that what makes his actions impeachable is 
     that he has violated federal criminal statutes regarding 
     perjury and obstruction of justice. It strikes me as absurd 
     that the Senate would have the arrogance to throw out a duly 
     elected President on these grounds unless it was convinced 
     that he would be convicted of those charges. Otherwise, we 
     would be saying in effect that even though the President 
     would not be convicted on these crimes, we are nevertheless 
     throwing him out of office because he committed those crimes. 
     That would clearly be giving the President less protection 
     than we provide any other citizen when charged with a crime.
       Someone else can try to explain the logic of that decision, 
     but not me.
       In addition, the standard of proof beyond a reasonable 
     doubt seems to me compelled by the fact that in the House's 
     explanation of the harm to our system of government if the 
     President is not thrown out, their entire explanation rises 
     and falls depending upon whether or not the President would 
     be convicted in a court of law for the crimes alleged. If he 
     could not be convicted in a court of law, then the Senate is 
     not ``condoning'' perjury or obstruction of justice any more 
     than a criminal court is condoning those crimes when someone 
     is acquitted on such charges. But if the Senate is not 
     condoning those crimes, there is no conceivable basis for 
     concluding that the public will be harmed by the President's 
     remaining in office.

[[Page 2398]]

       Furthermore, in applying the standard of proof beyond a 
     reasonable doubt, the Senate simply must pay attention to the 
     precise legal definitions of the crimes. What the pundits 
     have condemned as legal hair splitting, and what the public 
     rightly condemns in the president's penchant for evasive 
     answers when responding to questions in a public setting, 
     must now necessarily occupy our attention with regard to the 
     President's answers under oath, such as a deposition or a 
     grand jury proceeding because the claim made by the House is 
     that the President violated specific criminal laws. If your 
     aim is to respect the rule of law, you must also respect the 
     rules of law--the precise legal definitions of the crimes, as 
     found in 18 U.S.C. Sec.  1623, the federal perjury statute, 
     and in 18 U.S.C. Sec. Sec.  1503 and 1512, the applicable 
     federal obstruction of justice statutes.
       I have now studied the record sent to us by the House, 
     listened to the presentations and arguments of the House 
     Managers and the President's counsel, reviewed the videotape 
     testimony of Monica Lewinsky, Vernon Jordan and Sidney 
     Blumenthal, and listened to the views of my colleagues.
       On that basis, I have reached the conclusion that the House 
     has not presented evidence that could persuade a criminal 
     jury beyond a reasonable doubt that the President has 
     violated the applicable federal criminal statutes. There are 
     too many holes, too many conclusions reached only by drawing 
     negative inferences against the President, and too much 
     evidence that apparently contradicts or is inconsistent with 
     the House's case.
       Now, let me be frank with you. I do not know for sure what 
     actually occurred. Notwithstanding that, I am forced to make 
     a judgment. In order to preserve the constitutional 
     separation of powers, the independence of the presidency and 
     the sovereignty of democratic elections, the President 
     deserves the benefit of the doubt. This record falls well 
     short of the certainty required to remove a President from 
     office.


           the constitutional balance the senate must strike

       While I believe that I must apply a standard of proof 
     beyond a reasonable doubt because of the nature of the 
     charges that the House has brought to us, it is also quite 
     true--and I have said as much on prior occasions--that the 
     Senate does not sit as a court of law when it tries an 
     impeachment. As Alexander Hamilton stated in Federalist 65, 
     impeachment is a political process.
       ``Political'' in Hamilton's usage had two meanings as it 
     relates to impeachments. The first I have mentioned already, 
     and I have spoken about in this chamber before: impeachable 
     offenses are offenses against the body politic. In the words 
     of James Wilson, ``in the United States . . . impeachments 
     are confined to political characters, to political crimes and 
     misdemeanors, and to political punishments.''
       The Senate's judgment in an impeachment trial is ultimately 
     political in a second sense, too. It is political in the 
     sense that the Senate has the responsibility to weigh all the 
     consequences to the body politic in making its decision--the 
     consequences that might flow from removing the President as 
     well as the consequences that might flow from failing to 
     remove him.
       That is what I mean, and what Hamilton meant, by the 
     ultimate judgment being a political one. As Senator Bumpers 
     reminded us, the consequences of the decision we make will 
     live on long after Bill Clinton has left office and long 
     after each of us has left office. We must hand our 
     constitutional structure on to our children and to future 
     generations with its foundation as solid as it was when it 
     was handed to us. It is our responsibility as Senators to 
     make a judgment as to how best to accomplish that objective.
       The obligation to evaluate the competing costs of retention 
     and removal, incidentally, is what clearly distinguishes 
     judicial impeachments and presidential impeachments--very 
     different institutional and long term consequences weigh in 
     the balance in these two cases.
       Removing the President from office without compelling 
     evidence would be historically anti-democratic. Never in our 
     history has the Senate overturned the results of an election 
     and removed a President from office. History could not more 
     plainly demonstrate what a dramatic step removing an elected 
     President would be. The founding of our republic was the most 
     dramatic assertion of the sovereignty of the people that the 
     world had ever known. Abraham Lincoln dedicated the 
     battlefield at Gettysburg to this proposition recalling that 
     our union stands for ``government of the people, for the 
     people, and by the people.''
       The sovereignty of the people is exercised through national 
     elections. All citizens, but particularly those of us who 
     have had the honor to stand for election, have an instinctive 
     respect for the will of the people as expressed through 
     national elections. Thomas Jefferson, in his first inaugural 
     address, aptly called this democratic instinct a ``sacred 
     principle.'' Reversing the people's sovereign decision would 
     be in radical conflict with the principle on which our nation 
     is founded as understood and applied throughout our history.
       For one branch to remove the head of a co-equal branch 
     unavoidably harms our constitutional structure. The framers 
     intentionally chose not to create a parliamentary system of 
     government. They meant for the President and Congress to be 
     independent of and co-equal with one another. Maintaining 
     each of those branches as strong and independent is 
     fundamental to the Constitution's very structure--a structure 
     they designed to safeguard the liberty of the governed 
     against abuses of power by those who govern.
       It is true that impeachment is part of this structure. 
     Removing a president from office for sufficient reasons and 
     upon sufficient proof is therefore consistent with that 
     structure. At the same time, the great dangers inherent in 
     the too ready exercise of that power mean that impeachment 
     should be seen as an extreme measure.
       The framers were accomplished, practical statesmen. They 
     recognized that impeachment could be misapplied to undermine 
     the primary structural guarantee of liberty--the separation 
     of powers. They worried that Congress would be tempted to use 
     the impeachment power to make the President ``less equal.'' 
     As Charles Pinckney warned his colleagues at the Philadelphia 
     Convention, Congress could hold impeachment ``as a rod over 
     the Executive and by that means effectively destroy his 
     independence.''
       How are we to keep the impeachment power within its 
     constitutional boundaries, so that it stands ready to be used 
     appropriately but does not become a ``rod'' in the hands of a 
     partisan Congress, threatening the independence of the 
     Presidency, as Charles Pinckney worried during the 
     Constitutional convention?
       The solution to this problem must lie in approaching the 
     Senate's ultimate decision from as much of a position of 
     bipartisanship as we can possibly achieve. This is the only 
     way in which we can possibly focus primarily on the 
     institutional consequences of our actions to see them in 
     terms of their long term consequences instead of their short 
     term partisan ones.
       Nonpartisan faithfulness to the Constitution's structure, 
     which protects the liberty of the governed must determine our 
     action today.
       This was my view of our role in 1974, when I rose on the 
     floor of the United States Senate and made a ``plea . . . for 
     restraint on the part of all parties involved in the 
     affair.'' That was in the case of the possible impeachment of 
     Richard Nixon. And it was my view last year, when I urged 
     restraint and bipartisanship as the attitude I hoped my 
     colleagues would adopt. And it remains my view.
       Viewed from that perspective, it is hard for me to see how 
     the harms flowing from keeping Bill Clinton in office 
     outweigh the harms to our constitutional democracy that would 
     result from removing him.


                   harmful consequences reconsidered

       I have listened attentively to the House Managers' case. In 
     all honesty, I can sympathize with their sense of outrage at 
     the President's actions and his unwillingness to be fully 
     accountable for those actions for so many months. 
     Notwithstanding that, from the vantage point of a restrained 
     view, and as nonpartisan a view as I can muster, the dangers 
     they see from keeping President Clinton in office seem less 
     dire than they claim. At the same time the harms to our 
     system of government from removing him seem to me to be quite 
     serious.
       The House Managers warn that failure to remove the 
     President would destroy or undermine the sound administration 
     of justice and threaten the rule of law. If true, that would 
     be a big deal.
       But we need to step back a moment and cool down the 
     rhetoric. Manager Graham suggested as much when he reminded 
     us all of the resiliency of the American system of 
     government. ``So when we talk about the consequences of this 
     case,'' he said, ``no matter what you decide, in my opinion, 
     this country will survive. If you acquit the President, we 
     will survive. If you convict him, it will be traumatic, and 
     if you remove him, it will be traumatic, but we will 
     survive.''
       That same calmer judgment ought to apply to the 
     administration of justice and the rule of law. The House 
     Managers presented no evidence whatsoever of the dire 
     consequences they predict. And there is no evidence of such 
     dire consequences that they could present--because their 
     evaluation of the consequences is nothing but speculation.
       I would submit to you that the consequences of failing to 
     remove the President will most likely be very different from 
     those described by the House. This is one pebble whose 
     ripples will in all likelihood simply wash up harmlessly on 
     the shores and be forgotten forever. I, frankly, do not see 
     how failing to remove the President will alter the conduct of 
     the next prosecutor having to decide whether to bring a 
     perjury indictment, nor do I think that juries will be 
     persuaded by a lawyer's argument that because the President 
     ``got away with it'' the jury should acquit his client. The 
     fact of the matter is, lots of perjury trials result in 
     acquittals without impacting the ability of the criminal 
     justice system to bring such charges where appropriate.
       The House Managers' cry of alarm ignores the fact that we 
     are in an impeachment trial. This is not a criminal 
     proceeding and

[[Page 2399]]

     thus the manner in which the Senate deals with the question 
     has no implications at all for how a court of law would deal 
     with it.
       The Constitution is very clear about this. In Article I, 
     Sec. 3, cl. 7, the Constitution provides that whether or not 
     a person is removed from office through impeachment that 
     party ``shall nevertheless be liable and subject to 
     Indictment, Trial, Judgment and Punishment, according to 
     Law.'' If the evidence is as overwhelming as the Managers 
     say, the President can be prosecuted for perjury and 
     obstruction after he leaves office.
       The American people have a very robust understanding that 
     impeachment is a political process--and a particularly clear 
     understanding that this impeachment has been thoroughly 
     politicized until it got to the Senate--I don't think anyone 
     is confusing it with a legal process. No one, therefore, will 
     take any solace from the President's acquittal in terms of 
     their ability to commit perjury or obstruct justice and 
     thereby avoid criminal charges.
       Now don't misunderstand me--I am not suggesting that 
     letting a guilty person off from a crime he or she has 
     committed is OK. I am saying, first, that the President has 
     not been charged with a crime in a criminal court, so that 
     failing to acquit him is not at all letting him off from a 
     crime, and second, that our decision will not have the kind 
     of ``sky is falling'' consequences described by the House in 
     any event. In my judgment, the rule of law and the sound 
     administration of justice in this country will be unaffected 
     by the action we take in the Senate, one way or the other.
       The House Managers have also warned that failing to remove 
     the President will also condone his plot or scheme to deny a 
     specific civil rights plaintiff--Paula Jones--her day in 
     court, by withholding from her, through acts of perjury and 
     obstruction, full information about the ``nature and 
     details'' of his relationship with Monica Lewinsky. Just how 
     accurate and complete a description is this one? In order to 
     answer that question, we need a fuller picture of the 
     ``nature and details'' of the Jones litigation itself.
       If you listened just to the House Managers, you would think 
     that the Jones lawsuit was just a run-of-the-mine typical 
     sexual harassment civil rights case.
       It was not. From the very beginning, that lawsuit had been 
     politically motivated. All the facts we know about this case, 
     even taking Paula Jones at her word that the incident in the 
     Excelsior Hotel actually occurred, demonstrate that the 
     lawsuit was also without merit. She had never been harmed in 
     any way in her job, and the President had never repeated 
     anything remotely resembling an unwanted sexual advance on 
     her again. She had received merit pay raises in her state 
     employment and she had received good job performance reviews. 
     She was unable to prove that she had been damaged in any way 
     by the President's actions.
       Actually, what damages she did assert--what caused her to 
     file the lawsuit, according to her testimony--was the result 
     of the publication of a hatchet-job article against President 
     Clinton run in the American Spectator. The article was one 
     salvo in an on going right wing probe into Clinton's life in 
     Arkansas, aimed simply at digging up anything that could be 
     politically damaging to the President. When the American 
     Spectator ran a story making an unflattering reference to a 
     ``Paula,'' Jones found a lawyer to file suit in order to 
     ``reclaim her good name.''
       The lawyers Paula Jones eventually found were also 
     underwritten by right wing conservative Republican money. In 
     fact, investigative reporters as recently as this past Sunday 
     continue to reveal more and more details of the tightly knit 
     web of conservative lawyers and conservative financial 
     backers who have hounded this President relentlessly since 
     the day he took the office.
       Now the President knew that the lawsuit was without merit--
     he might have behaved obnoxiously with Paula Jones, but he 
     did not commit sexual harassment. He also knew that the real 
     motivation of the lawsuit, the motivation that funded it and 
     kept it going, was a political assault on him, not a legal 
     assault. The law suit and its powers of discovery were being 
     used to engage in a fishing expedition throughout Arkansas in 
     search of political dirt. Leaks from that discovery appeared 
     regularly in the Washington press.
       The President knew something else, as well. He knew that 
     his illicit relationship with Monica Lewinsky had nothing to 
     do with the merits of the Jones litigation. On this matter, 
     you do not have to rely on the President's assessment or 
     mine, because the court independently concluded the same 
     thing. In the order denying the plaintiff's discovery into 
     the Lewinsky facts, Judge Wright said that the Lewinsky 
     facts, even if the allegations concerning them were true, had 
     nothing to do with the essential or core elements of Paula 
     Jones lawsuit.
       So keeping Lewinsky out of the politically motivated Jones 
     case did not jeopardize Paula Jones' chances of prevailing, 
     which were non-existent in any event. What it did do was to 
     prevent the president's political enemies from using the 
     Jones discovery procedures to pry open that secret 
     relationship and expose it, all to the political damage of 
     the President.
       In this context, it is understandable that the President 
     wanted to frustrate the Jones litigation. What is more, the 
     President can hardly be said to have prevented Paula Jones 
     from presenting a case, because there was no meritorious case 
     to present.
       That doesn't justify perjury or obstruction, of course, but 
     it does provide an accurate context for appraising the House 
     Managers' second claim. If they are permitted to convert a 
     meritless and politically motivated lawsuit into a 
     presidential conviction for impeachable offenses, the Senate 
     will be rewarding behavior that we ought to condemn. We need 
     to think more than once about rewarding this kind of 
     political witch hunt.
       All of what I have just said informs this Senator's 
     judgment concerning the harms to the country that would be 
     caused by failing to convict a President who had committed 
     the acts alleged by the House.
       In fact, if the rule of law and the fair administration of 
     justice will not be destroyed--contrary to the House 
     Managers' assertions--and if the American people understand 
     that the President's actions were in the context of a 
     politically-motivated lawsuit and involved concealing an 
     embarrassing improper relationship that was irrelevant to 
     that lawsuit--then it is very hard for this Senator to see 
     how the President's continuing in office poses the sort of 
     grave danger to our system of government that the Framers had 
     in mind when they gave the Congress the awesome power to 
     impeach and remove an elected President.
       In weighing the competing consequences of removal and 
     retention in office, we must honor the constitutional 
     obligation we undertook when we swore to do ``impartial 
     justice.''
       To that end, I think we all could benefit from the wisdom 
     on several participants in the impeachment of Andrew Johnson, 
     131 years ago.
       Two of them--Chief Justice Salmon Chase and Congressman 
     James G. Blaine--both of whom historians record as being 
     highly critical of Johnson and initially favoring his 
     removal--were nevertheless able to step back from the 
     partisanship of that moment and weigh the competing harms in 
     the way I have suggested is proper.
       Chief Justice Salmon Chase, who himself had political 
     presidential ambitions, wrote to a friend on the day the 
     trial ended, saying, ``What possible harm can result in the 
     country from continuance of Andrew Johnson months longer in 
     the presidential chair, compared with that which must arise 
     if impeachment becomes a mere mode of getting rid of an 
     obnoxious President?''
       And years later, James G. Blaine, who had voted for 
     impeachment in the House, said, ``The sober reflection of 
     after years has persuaded many who favored Impeachment that 
     it was not justifiable on the charges made, and that its 
     success would have resulted in greater injury to free 
     institutions that Andrew Johnson in his utmost endeavor was 
     able to inflict.''
       And in our contemporary situation, former President Ford 
     and our distinguished colleague and former majority leader, 
     Robert Dole, have both urged us not to go down the road to 
     impeachment, but to seek other means to express our 
     displeasure.
       We ought to follow these lessons, and to be attentive to 
     the damage that removing a duly elected President on these 
     charges will inflict on our system of government.
       A decision to remove Bill Clinton will not destroy our 
     system of government. But it will stand as a precedent--the 
     very first time the United States Senate has removed any 
     president from office. If we vote to convict and remove the 
     President after a highly partisan impeachment for conduct 
     that appears to be private and non-official, we will create 
     an opportunity for impeachments to become a tool of partisan 
     politics by other means.


                               conclusion

       Engaging in the balance that the Constitution requires, I 
     cannot vote to convict the President. The evidence of proof 
     beyond a reasonable doubt that the President violated federal 
     criminal statutes has not been presented. Even were the 
     evidence stronger, the Constitution demands that we weigh the 
     competing considerations in a nonpartisan manner.
       The President deserves our condemnation. He has brought 
     shame to himself.
       But we have not reached this point due to his failings 
     alone. It has taken the volatile combination of his 
     blameworthiness and the unalloyed animosity of others toward 
     him that have brought us to the brink of a profound 
     constitutional moment.
       Given the essentially anti-democratic nature of impeachment 
     and the great dangers inherent in the too ready exercise of 
     that power, impeachment has no place in our system of 
     constitutional democracy except as an extreme measure--
     reserved for breaches of the public trust by a President who 
     so violates his official duties, misuses his official powers 
     or places our system of government at such risk that our 
     constitutional government is put in immediate danger by his 
     continuing to serve out the term to which the people of the 
     United States elected him.
       I urge my colleagues to remain faithful to the 
     constitutional design and to our obligation to do impartial 
     justice.
       Below are significant issues of constitutional law, 
     positive law, or Senate procedure that have

[[Page 2400]]

     arisen during the impeachment trial of President Clinton. As 
     the impeachment process moved forward in the House to the 
     point where its arriving in the Senate appeared likely, I 
     began an intensive study of the Constitution, the Framers' 
     understanding, and our historical constitutional practices in 
     the Senate to prepare for a possible impeachment trial, which 
     I continued once the Senate assumed jurisdiction over the 
     matter. Over the past several months, I have shared some of 
     my conclusions with my colleagues and the public in speeches 
     and memoranda, portions of which are below. (Bracketed 
     comments are additions to the original text, inserted to 
     assist in comprehension.)


                             Bipartisanship

       Mr. President, during the past twenty-six years as a United 
     States Senator, I have been confronted with some of the most 
     significant issues facing our nation. Issues ranging from who 
     sits on the highest court in the land to whether we should go 
     to war. These are weighty issues. But none of these decisions 
     has been more awesome, more daunting, more compelling, than 
     the issue confronting us at the present time.
       The issue of whether to impeach a sitting President is a 
     monumental responsibility. A responsibility that no Senator 
     will take lightly.
       And as imposing as this undertaking is, I am sad to say 
     that I have had to contemplate this issue twice during my 
     service in the Senate; once during President Nixon's term and 
     now.
       And while the circumstances surrounding these two events 
     are starkly different, the consequences are starkly the same. 
     The gravity of removing a sitting President from office is 
     the same today as it was twenty-five years ago. Listen to 
     what I said on the floor of the United States Senate on April 
     10, 1974 during the Watergate crisis:
       ``In the case of an impeachment trial, the emotions of the 
     American people would be strummed, as a guitar, with every 
     newscast and each edition of the daily paper in communities 
     throughout the country. The incessant demand for news or 
     rumors of news--whatever its basis of legitimacy--would be 
     overwhelming. The consequential impact on the federal 
     institutions of government would be intense--and not 
     necessarily beneficial. This is why my plea today is for 
     restraint on the part of all parties involved in the 
     affair.''
       I could have said these same words today. It is uncanny how 
     much things stay the same.
       Furthermore, in 1974 I urged my colleagues in the United 
     States Senate to learn from the story of Alice in Wonderland. 
     Then I cautioned that we remember Alice's plight when the 
     Queen declared ``sentence first, verdict afterwards.''
       But the need for restraint is even greater today than it 
     was in 1974. In 1974, the impeachment question was not as 
     politically charged as it is today. In 1974 we were willing 
     to hear all the evidence before making a decision. Today, I 
     hope, for our nation's sake, that we do not follow the 
     Queen's directive in Alice in Wonderland and that we will 
     make a wise judgment after deliberate consideration.
       My legal training combined with more than a quarter century 
     of experience in the United States Senate has taught me 
     several important lessons. Two of these lessons are 
     appropriate now.
       First, an ordered society must first care about justice.
       Second, all that is constitutionally permissible may not be 
     just or wise.
       And it is with these two very important lessons guiding me, 
     that I embark upon a very important decision regarding our 
     country, our Constitution, and our President.
       The power to overturn and undo a popular election of the 
     people, for the first time in our nation's history, must be 
     exercised with great care and sober deliberation.
       We should not forget that 47.4 million Americans voted for 
     our President in 1996, 8.2 million more than voted for the 
     President's opponent.--[Speech, 10/2/98]

                           *   *   *   *   *

       Let me now stand back from the issues of substance and 
     procedure, and look at the impeachment mechanism as it has 
     actually functioned in our country's history. The proof of 
     the framers' design, after all, will be in how the mechanism 
     has worked in practice.
       As we have seen, the framers worried that impeaching a 
     sitting president would most likely be highly charged with 
     partisan politics and pre-existing factions, enlisting all 
     the ``animosities, partialities, and influence and interest'' 
     that inevitably swirl around a sitting president. History 
     shows that they had a right to be worried.
       Prior to the case of President Nixon, presidential 
     impeachment had only been used for partisan reasons.
       History tells us that John Tyler was an enormously 
     unpopular president, facing a hostile Congress dominated by 
     his arch political enemy, Henry Clay. After several years of 
     continual clashes, numerous presidential vetoes and divisive 
     conflicts with the senate over appointments, a select 
     committee of the House issued a report recommending a formal 
     impeachment inquiry.
       President Tyler reached out to his political enemies: he 
     signed an important bill raising tariffs which he had 
     formerly opposed--and he found other means of cooperating 
     with the Congress. In the end, even Henry Clay, speaking from 
     the Senate, urged a slowdown in the impeachment proceedings, 
     suggesting instead the lesser action of a ``want of 
     confidence'' vote rather than formal impeachment proceedings. 
     In early 1843, the resolution to proceed with an impeachment 
     inquiry was defeated on the House floor, 127 to 83.
       In 1868, Andrew Johnson came much closer to conviction on 
     charges of serious misconduct. Although Johnson's impeachment 
     proceedings ostensibly focused on his disregarding the tenure 
     in office act, historians uniformly agree that the true 
     sources of opposition to president Johnson were policy 
     disagreements and personal animosity. [Text note: The 
     conflict this time was between Johnson's moderate post Civil 
     War policies toward the Southern states and the overwhelming 
     Radical Republican majorities in both chambers. One 
     especially volatile division was over whether Southern 
     Senators and Representatives ought to be admitted to Congress 
     prior to the enactment of Constitutional amendments expressly 
     denying the right of state succession. The Republicans feared 
     dilution of their voting strength if the southerners were 
     seated, especially since an effect of President Lincoln's 
     Emancipation Proclamation would be to increase House 
     representation for the Southern states, by virtue of the fact 
     that each freed slave would count as a whole person, instead 
     of the abandoned constitutional formula of three-fifths.
       The Tenure in Office Act had been enacted over his veto to 
     restrict his ability to remove the Secretary of War --who was 
     allied with the Radical Republicans--from that office without 
     the Senate's consent. Johnson fired Edwin M. Stanton anyway, 
     claiming that the restriction on his removal authority was 
     unconstitutional.]
       The conflict this time was between Johnson's moderate post-
     Civil War policies toward the southern states and the 
     overwhelming Republican majorities in both chambers. The 
     Republicans feared dilution of their voting strength if the 
     southerners were seated.
       Johnson's defenders in the Senate were eventually able to 
     hold on to barely enough votes to prevent his conviction. In 
     professor Raoul Berger's view, ``Johnson's trial serves as a 
     frightening reminder that in the hands of a passion-driven 
     congress, the process may bring down the very pillars of our 
     constitutional system.''
       Yet, if the cases of Tyler and Johnson substantiate the 
     framers' fears, the Nixon situation vindicates the utility of 
     the impeachment procedures. Notice how different the Nixon 
     proceedings were from Tyler's and Johnson's. As the Nixon 
     impeachment process unfolded, there was broad bipartisan 
     consensus each step of the way.
       While it would be foolish to believe that Members of 
     Congress did not worry about the partisan political 
     repercussions of their actions, such factional considerations 
     did not dominate decision making.
       Political friends and foes of the president agreed that the 
     charges against the president were serious, that they 
     warranted further inquiry and, once there was definitive 
     evidence of serious complicity and wrongdoing, a consensus 
     emerged that impeachment should be invoked. The president 
     resigned after the House Judiciary Committee voted out 
     articles of impeachment by a 28-10 vote.
       For me, several lessons stand out from our constitutional 
     understanding of the impeachment process and our historical 
     experience with it. Furthermore, I believe that a consensus 
     has developed on several important points.
       While the founders included impeachment powers in the 
     Constitution, they were concerned by the potential partisan 
     abuse. We should be no less aware of the dangers of 
     partisanship. As we have seen, the process functions best 
     when there is a broad bipartisan consensus behind moving 
     ahead. The country is not well served when either policy 
     disagreements or personal animosities drive the process.
       Many scholars who have studied the Constitution have 
     concluded that it should be reserved for offenses that are 
     abuses of the public trust or abuses that relate to the 
     public nature of the President's duties. Remember, what is 
     impeachable is not necessarily criminal and what is criminal 
     is not necessarily impeachable.--[Speech, 10/2/98]

                           *   *   *   *   *

       I am here today to call for bipartisanship in the 
     impeachment process. It is a concept many will say they agree 
     with. But actions speak louder than words.
       The framers of the Constitution knew that the greatest 
     danger associated with impeachment was the presence of 
     partisan factions that could dictate the outcome.
       It is clear from the debates and from the commentaries on 
     the Constitutional Convention that the framers were concerned 
     that anything less than bipartisanship could, and would, do 
     great damage to our form of government. They knew that to 
     contemplate an action as profound as undoing a popular 
     election requires at a minimum that members of both parties 
     find that the alleged wrong is grave enough to overturn the 
     will of the majority of the American people.
       The framers also understood the sentiment expressed nearly 
     200 years later by Congresswoman Barbara Jordan during the 
     impeachment proceedings of Richard Nixon.

[[Page 2401]]

       She said, ``it is reason, and not passion, which must guide 
     our deliberations, guide our debate, and guide our 
     decision.''
       But the current debate is guided by faction, not reason. 
     One example: The House Judiciary Committee this month heard a 
     battery of witnesses address the question of what is an 
     impeachable offense. Democrats called legal experts who 
     testified that the President's acts are not impeachable 
     offenses, and Republicans called witnesses who were just as 
     certain they were. By the end of the hearing, anyone 
     listening would have the overwhelming impression that there 
     was no consensus in the legal community on the issue, that it 
     was an open question.
       Yet the vast majority of historians and legal scholars have 
     concluded--and stated publicly--that nothing that President 
     Clinton has been accused of rises to the level of an 
     impeachable offense. The hearing was a political charade. We 
     are told that ultimately, this is a political process. 
     Ultimately, it is. The question is whether it is going to be 
     a fair process. I argue that it can, and must be fair.
       In his marvelous book on the impeachment process, published 
     while the country was in the throes of President Nixon's 
     Watergate troubles, Professor Charles Black alerted us to the 
     danger of partisanship.
       Because the constitution and its history provide us with 
     more questions about impeachment than answers, he said, ``it 
     is always tempting to resolve such questions in favor of the 
     immediate political result that is palatable to us, for one 
     can never definitely be proved wrong, and so one is free to 
     allow one's prejudices to assume the guise of reason.''
       Black was echoing Alexander Hamilton, who warned in 
     Federalist 65 that impeachments:
       ``will seldom fail to agitate the passions of the whole 
     community, and to divide it into parties, more or less 
     friendly or inimical, to the accused. In many cases, it will 
     connect itself with the pre-existing factions, and will 
     enlist all their animosities, partialities, influence and 
     interest on the one side, or on the other; and in such cases 
     there will always be the greatest danger, that the decision 
     will be regulated more by the comparative strength of parties 
     than by the real demonstrations of guilt or innocence.''
       I don't think I am being partisan myself in warning about 
     the risks of partisan excess. As a 32 year-old Senator, I 
     expressed this same concern about the fate of a Republican 
     President. On April 10, 1974, I rose on the floor of the 
     United States Senate and said:
       ``In the case of an impeachment trial, the emotions of the 
     American people would be strummed, as a guitar, with every 
     newscast and each edition of the daily paper in communities 
     throughout the country.
       The incessant demand for news or rumors of news--whatever 
     its basis of legitimacy--would be overwhelming. The 
     consequential impact on the federal institutions of 
     government would be intense--and not necessarily beneficial. 
     This is why my plea today is for restraint on the part of all 
     parties involved in the affair.''
       I make the same plea for restraint today. And while the 
     circumstances surrounding these two events are starkly 
     different, the consequences for our Nation are the same. The 
     gravity of removing a sitting president from office is the 
     same today as it was twenty-four years ago.
       The American people understand that the consequences of 
     impeaching a sitting President are grave and, thus far, they 
     have shown a remarkable restraint--more than some of the 
     pundits and experts. But I believe they have reached two 
     clear conclusions: Congress should resolve the matter 
     expeditiously and resolve the matter in a fair and non-
     partisan manner.
       These conclusions have great significance to the 
     impeachment process. I believe the American people will 
     ultimately make their judgment about the proceedings and the 
     outcome based in part, on whether the House Judiciary 
     Committee votes along strict party lines and whether the 
     House of Representatives acts in a similar manner.
       That may not be fair, but I believe that is how they will 
     judge it. Therefore, it seems clear to me that for history's 
     sake, and with the Committee's legacy in mind, Chairman Hyde 
     and the Republican majority in the House must bend over 
     backwards to demonstrate that they have conducted this 
     proceeding based on principle, not politics.
       There is yet another issue where public opinion comes into 
     play. That is the question of whether the President's 
     transgressions warrant impeachment. We know from survey after 
     survey that the American people believe the President's 
     actions do not justify impeaching him.
       Should that have any bearing on the outcome? Many of my 
     colleagues say they will ignore public opinion. In most 
     cases, this is a sound position for a member of Congress to 
     take. When we are elected to the House and the Senate, we are 
     sent here to exercise judgment, not simply to be weathervanes 
     that shift with the political winds. The fact that this is an 
     impeachment proceeding doesn't change that--it makes it even 
     more important that we exercise our best judgment.
       But I believe it is a serious mistake to take the position 
     that public opinion should have no bearing on how we act and 
     what we do. Let me explain. Many people--and many legal 
     scholars--have said that impeachment should be reserved for 
     grave breaches of the public trust. Surely, if we are trying 
     to decide whether an offense is a breach of the public trust, 
     it is important to know what the public thinks. If the 
     American people think the President's actions do not warrant 
     impeachment, we should listen to their views, and take them 
     seriously.
       It would be a serious mistake to ignore public opinion for 
     another, more fundamental reason. This is their President we 
     are talking about. The President of the United States doesn't 
     serve at the pleasure of the legislature, as a prime minister 
     does in a parliamentary system. He is elected directly by the 
     people of the United States.
       The election of a President is the only nationwide vote 
     that the American people ever cast. That is a big deal. If 
     the American people don't think they have made a mistake in 
     electing Bill Clinton, we in the Congress had better be very 
     careful before we upset their decision.
       This was brought home to me several weeks before the 
     elections at a filling station in Wilmington. The woman 
     working the cash register looked up at me with something of a 
     scowl on her face. I assumed--incorrectly, it turned out--
     that she had voted against me the last time I ran. She said, 
     ``You're Joe Biden, aren't you?'' I nodded. She said, ``What 
     are you going to do to President Clinton on this Lewinsky 
     thing?'' I started to give her a noncommital answer about the 
     process needing to go forward, but she brought me up short. 
     ``Don't you or anyone else take my vote away, Joe. He's my 
     President! If you remove him, I will never vote again.''
       This woman--and the American people--understand the genius 
     of the American system in their bones. They know that the 
     Congress and the President are separate branches of 
     government. They understand that each branch is responsible 
     to them, not to the other branch of government. Just as they 
     know that the Senators from their state are theirs, and the 
     Representative from their district is theirs, they know that 
     the President is theirs, too.
       Anyone who wants to impeach Bill Clinton needs to keep in 
     mind what the American people think about it, because he is 
     their President.
       Let me be absolutely clear. This does not mean just doing 
     what the opinion polls say. It means proceeding in a manner 
     that the American people understand to be fair. In the case 
     of an impeachment, fair means bipartisan. It means putting 
     aside the disagreements that stem from partisan factions. The 
     time for partisan factions to play a role is in the process 
     of elections, where candidates advance competing policies and 
     platforms and the people vote. Once the election is held, our 
     leaders hold office until the next election. It is simply 
     antithetical to our constitutional democracy to use 
     impeachment to overturn an election on partisan grounds. It 
     violates the independence of the Presidency and it usurps the 
     people's voice.
       The Framers saw this danger when they wrote the impeachment 
     power into the Constitution. Hamilton warned that an 
     impeachment would ``connect itself with pre-existing 
     factions,'' just as Black much later saw that impeachment was 
     an occasion for ``prejudices to assume the guise of reason.''
       So those who wish to proceed with impeachment in the face 
     of the public's contrary opinion bear a special obligation 
     and confront a special risk. The obligation they face is that 
     they must proceed in a bipartisan manner, so that we can 
     defend the Congress's actions as fair and consistent with the 
     constitutional framework--so that if impeachment goes 
     forward, those who support it can look my constituent, or 
     their constituent, straight in the eyes and defend the 
     process as fair and just.
       Should they fail to do this, the risk they face is the 
     chance that they will inflict more damage on our system of 
     government and induce more cynicism and disgust with politics 
     than anything the President has done so far.
       So we must be prudent. Otherwise we will succumb to the 
     danger the Framers warned against. We will subject the 
     President to what amounts to a vote of no confidence. If you 
     disapprove of his presidency and its policies, or if you do 
     not like the man, vote to impeach. If, on the other hand, you 
     support his presidency and his policies, or if you do like 
     the man, vote to acquit. But that is not our system of 
     government.
       When Benjamin Netanyahu returned home after signing the Wye 
     accords, he faced a vote of no confidence. If he had lost, he 
     would have been out of office and another government would 
     have to be formed.
       That is simply not our system of government. Ours is not a 
     parliamentary system. That is not how impeachment is supposed 
     to operate.
       Reflect for just a moment on how different our government 
     is. Here, the President and the Congress are separate 
     branches of government. Each is elected directly by the 
     people. The President and Vice President are the only 
     officials elected by ALL the people. Through the electoral 
     process, they answer to all the people. In such a system, a 
     vote of no confidence, as a means of removing the

[[Page 2402]]

     head of government when the Congress disapproves of his 
     leadership, contradicts the theory of separated powers. It 
     would trample on the choice made by the people through the 
     electoral process.
       This is no small matter. It goes to the heart of the 
     constitutional design. As Jack Rakove, the Stanford 
     historian, noted during the recently held House hearings on 
     the standard for impeachment, the prevailing principle that 
     guided the Framers in shaping the institution of the 
     Presidency during the Philadelphia Convention, the one major 
     goal and idea that best explains how that office took shape 
     over the summer of 1787, was their intention on ``making the 
     presidency as politically independent of the Congress as they 
     could.''
       The Framers saw the system of separated powers and checks 
     and balances as a bulwark in support of individual liberty 
     and against government tyranny. The separation of powers 
     prevents government power from being concentrated in any 
     single branch of government. Permit one branch of government 
     to subjugate another to its partisan wishes, and you permit 
     the kind of concentration of power that can lead to tyranny.
       So the system the Framers established is utterly 
     incompatible with the idea that sharp partisan divisions 
     could be sufficient to impeach. Preserving our system, with 
     its checks and balances and separation of powers, ought to be 
     part of our consideration as we attempt to resolve the 
     current controversy.
       How do we ensure that impeachments do not become the 
     partisan showdowns that the Framers warned about? The answer 
     is both simple and elusive. The only thing that prevents the 
     impeachment power from being abused is the good faith of 
     Members of Congress.
       Professor Black proposed a simple test. He said that for 
     the purposes of impeachment, members take off their party's 
     hat--shed their partisan identity--and then try to take on 
     the identity of a member of the other party. In other words, 
     Republicans who favor Clinton's impeachment should try to 
     pretend they are Democrats, and see if they still hold that 
     same conclusion. Democrats who scoff at impeachment in the 
     present instance should try to see it from the Republican's 
     point of view.
       It is very difficult to perform this test, especially in 
     the highly charged partisan atmosphere in which we live, but 
     you get the point. Before we undertake such a solemn act as 
     impeachment, we should examine our reasoning very carefully 
     to be sure we are not simply following partisan instincts.
       Impeachment can be legitimate if and only if it emanates 
     from a bipartisan conviction that the President has committed 
     high crimes and misdemeanors--when people of opposing 
     viewpoints can come together in agreement over the 
     seriousness of the offense and the appropriateness of the 
     sanction.
       Partisanship need not disappear entirely--that would be 
     impossible. It simply must be held in check for a time--a few 
     weeks, perhaps a month--and by a relatively small number of 
     people, so that a bipartisan consensus can take shape.
       Look back at the Nixon impeachment. It took on legitimacy 
     when a core of Republicans on the House Judiciary Committee 
     were moved by the nature of President Nixon's offenses to 
     break party ranks and vote for articles of impeachment. In 
     the Senate, it was the stark reality of eroding Republican 
     support that prompted President Nixon to resign. There was 
     bipartisan consensus that what Nixon did was impeachable.
       Partisanship did not evaporate entirely during the 
     impeachment trial of Andrew Johnson. In fact, the entire 
     episode was riddled with partisanship, and overall it stands 
     as an excellent example of how not to conduct an impeachment.
       Still, seven Republican Senators did vote with the 
     Democrats for acquittal, shedding their partisan preferences, 
     to prevent that impeachment from succeeding. It took only 
     that amount of bipartisanship to save the country from an 
     impeachment that most people--in retrospect--have concluded 
     would have been a terrible mistake. The fact that a 
     conviction in the Senate requires a two-thirds majority 
     guarantees a measure of necessary bipartisanship except in 
     all but the most lopsided Senates.
       But bipartisanship should not wait until the matter reaches 
     the Senate chamber. In previous impeachments the votes in 
     both the House and the Senate have been by overwhelming 
     majorities. In the past, except for the Johnson impeachment, 
     the only times articles of impeachment reached the floor were 
     in cases of tremendous bipartisan consensus that the offenses 
     satisfy the constitutional standard and that the officer 
     ought to be removed.
       As for the Johnson impeachment itself, according to James 
     Blaine, one of the Republican House members who voted for 
     impeachment, he and others came in time to regret the effort. 
     In private correspondence, Blaine wrote that, ``the sober 
     reflection of after years has persuaded many who favored 
     impeachment that it was not justifiable on the charges made, 
     and that its success would have resulted in greater injury to 
     free institutions than Andrew Johnson in his utmost endeavor 
     was able to inflict.''
       The conclusion I reach is this. The burden is, as it always 
     has been, on those who seek to impeach and convict a 
     President. To overturn a popular election, they must convince 
     the American people and at least some in the President's 
     party that the President's actions meet the high standard for 
     impeachment settled upon by our founders in the Constitution.
       This is what I mean by bipartisanship.
       The standard is ``principled political neutrality.''
       And one measure of whether a member has met that principle 
     is to ask in Professor Black's words: ``Would they have 
     answered the same question the same way if it came up with 
     respect to a president towards whom [they] felt oppositely 
     from the way [they] feel toward the President threatened with 
     removal.''
       The American people will know whether each member met that 
     test. They will not demand unanimity, but they will demand 
     consensus.
       Thus far, the House Judiciary Committee has proceeded 
     without dignity, causing the American people to lose respect 
     for the Committee.
       As a result, the burden of demonstrating that they are 
     proceeding with a standard of ``principled political 
     neutrality'' will be politically difficult to meet.
       Ken Starr will make his case, the President should be 
     allowed to make his. Then let them decide if the President's 
     conduct meets the test of what the framers had in mind by 
     ``high crimes and misdemeanors.''
       The choice is not whether the President's self-evidently 
     shameful and possibly criminal conduct must be punished by 
     impeachment or be condoned. The choice is whether the process 
     for dealing with his conduct is removal from office or some 
     other means--censure, or perhaps even a criminal trial after 
     he has left office.
       To those who say that failure to bring articles of 
     impeachment against the President would amount to condoning 
     his immoral behavior or overlooking a criminal act, 
     notwithstanding the fact it does not meet the test of an 
     impeachable offense, I say they do not understand our system 
     of government. For the Constitution contemplates and the law 
     provides for such a circumstance--it is called a criminal 
     trial after his term is served. It is a way to punish the 
     President without doing damage to the system of separated 
     powers or overruling the judgment of the American people.
       Failure to impeach, even failure to proceed with a criminal 
     action, does not mean that the President has not paid for his 
     immoral behavior--he has already been sentenced to a hundred 
     years of shame in the history books, which is not an 
     insignificant penalty.
       So I say to my colleagues in the House, do your duty. 
     Proceed with principled political neutrality. For if you do, 
     history will judge you kindly. And if you do not, it will 
     judge you harshly.
       And for those of us who hold high public office and the 
     public trust, history is a judge.--[Speech, 11/18/98]


                            Burden of Proof

       What is the standard of proof? The Constitution does not 
     set forth an express standard of proof that the evidence must 
     meet in order to allow the Senate to convict the President. 
     Practice has left to each Senator to determine for him or 
     herself what standard to apply.
       From the judicial setting there are three major standards 
     from which to choose. Most civil trials require a plaintiff 
     to prove his or her case by a preponderance of the evidence. 
     This means that the plaintiff must prove that it is more 
     likely than not that the plaintiff's assertions are true. 
     Criminal trials require the most exacting degree of proof. 
     The prosecution must prove the defendant's guilt beyond a 
     reasonable doubt. A third, middle course is applied in some 
     cases. This standard, clear and convincing evidence, requires 
     proof that substantially exceeds a mere preponderance but 
     that does not eliminate all reasonable doubt. There must be a 
     very high degree of probability that the evidence proves what 
     the plaintiff asserts, but the proof may fall short of 
     certainty.
       Many Senators, analogizing to a criminal trial, have 
     expressed that they would require the House Managers to prove 
     their case ``beyond a reasonable doubt.'' In anticipation of 
     an impeachment trial of President Richard Nixon, Senators Sam 
     Ervin, Strom Thurmond, and John Stennis all declared that 
     they would apply the beyond a reasonable doubt standard. But 
     it is clear that individual Senators may opt for a civil 
     standard.
       This issue may not have more than rhetorical significance 
     for the impeachment trial of President Clinton. These 
     standards are meant to guide juries in their fact-finding 
     capacity. Insofar as the trial focuses on the question 
     whether the President's conduct justifies conviction and 
     removal from office, the proceedings will call on the Senate 
     in its judicial character. Resolving that question requires 
     the Senate to exercise its legal and political judgment in 
     order to determine whether the constitutional punishment fits 
     the misconduct. It does not call upon the Senate to make a 
     factual determination about what conduct actually occurred.--
     [Memorandum, 12/28/98]

                           *   *   *   *   *


[[Page 2403]]




           The Burden of Proof in Assessing the House's Case

       But can the President rightly be charged with having 
     committed the massive number of crimes that the House 
     Managers allege? As Mr. McCollum said, if we cannot conclude 
     that the President has violated the law, even the House 
     Managers would agree that he should not be removed from 
     office. Even if you accept their recitation of the dire 
     consequences of President Clinton remaining in office, if the 
     President cannot be shown to have been a serial perjurer and 
     a massive obstructor of justice, the Senate should acquit.
       What standard of proof should a Senator apply in deciding 
     whether the record supports these charges? Both the House 
     Managers and the President's counsel addressed this 
     significant issue. The House Managers quite correctly pointed 
     out that the Senate has never sought to determine for the 
     entire body what that burden of proof should be in an 
     impeachment. In effect, we have left it to the good judgment 
     of each Senator to decide whether or not they are convinced 
     by the evidence presented to us.
       For this Senator, fundamental fairness as well as the 
     nature of the House's case indicate that I ought to be 
     convinced beyond a reasonable doubt that the President 
     violated the laws that the House alleges. Proof beyond a 
     reasonable doubt is the same standard applied in criminal 
     cases--it is the standard that would apply if the President 
     were tried in a criminal court for perjury or obstruction of 
     justice.
       It seems to me that fundamental fairness counsels that I 
     apply the same standard a criminal court would apply 
     precisely because the House asserts that what makes his 
     actions impeachable is that he has violated the criminal 
     statutes regarding perjury and obstruction of justice. It 
     strikes me as absurd that the Senate would have the arrogance 
     to throw out a duly elected President on these grounds unless 
     it was convinced that he would be convicted of those charges. 
     Otherwise, we would be saying in effect that even though the 
     President would not be convicted on these crimes, we are 
     nevertheless throwing him out of office because he committed 
     those crimes. Someone else can try to explain the logic of 
     that decision to the voters, but not me.
       In addition, the standard of proof beyond a reasonable 
     doubt seems to me compelled by the fact that in the House's 
     explanation of the harm to our system of government if the 
     President is not thrown out, their entire argument rises and 
     falls depending upon whether or not the President would be 
     convicted in a court of law for the crimes alleged. If he 
     could not be convicted in a court of law, then the Senate is 
     not ``condoning'' perjury or obstruction of justice any more 
     than a criminal court is condoning those crimes when someone 
     is acquitted on such charges. The Senate, like a court, is 
     simply saying, ``not proven.'' But if the Senate is not 
     condoning those crimes, there is no conceivable basis for 
     concluding that the public will be harmed by the President's 
     remaining in office.
       [There is another way to look at this: In any impeachment, 
     a Senator must simply be convinced to his or her satisfaction 
     that the defendant committed the acts alleged. That standard 
     never changes. However, when the articles of impeachment 
     allege that offenses rise to an impeachable level because 
     these actions violate the law and have harmful consequences 
     to the country because the defendant has violated the law and 
     would not be punished, in that case a Senator must be 
     convinced that a defendant would in fact be punished by a 
     criminal court. In other words, the Senator must simply be 
     convinced that a court would find that there is proof beyond 
     a reasonable doubt.
       In contrast, if the charges were that the President had 
     lied to the American people, the Congress or foreign leaders, 
     and that the harmful consequences flowed from being unable to 
     rely upon his word, then a Senator must simply be convinced 
     that the President lied, relying upon whatever level of proof 
     is sufficient to convince him or her of that fact.]--
     [Memorandum, 1/21/98]


                                Censure

       In recent days, some have suggested that because the Starr 
     report provides prima facie evidence of what are arguably 
     impeachable offenses, the House and the Senate have a 
     constitutional responsibility to see the impeachment process 
     through to its conclusion. In my view, the constitutional 
     history that I have sketched here this evening shows this 
     position to be entirely mistaken. Indeed, if anything, 
     history shows a thoroughly understandable reluctance to have 
     the procedure invoked.
       Stopping short of impeachment would not be reaching a 
     solution ``outside the Constitution,'' as some suggest--it 
     would be entirely compatible and consistent with the 
     Constitution.
       The 28th Congress [which contemplated but then terminated 
     impeachment proceedings against President Tyler] hardly 
     violated its constitutional duty when the House decided that, 
     all things considered, terminating impeachment proceedings 
     after cooperation between the Congress and the President 
     improved was a better course of action than proceeding with 
     impeachment based on his past actions, even though it 
     apparently did so for reasons no more laudable than those 
     that initiated the process.
       Impeachment was and remains an inherently political 
     process, with all the pitfalls and promises that are thus put 
     into play. Nothing in the document precludes the Congress 
     from seeking means to resolve this or any other putative 
     breach of duty short of removing him from office. In fact, 
     the risky and potentially divisive nature of the impeachment 
     process may counsel in favor of utilizing it only as a last 
     resort.
       Of course, impeachment ought to be used if the breach of 
     duty is serious enough--what the Congress was prepared to do 
     in the case of Richard Nixon was the correct course of 
     action. However, nothing in the Constitution precludes the 
     congress from resolving this conflict in a manner short of 
     impeachment.
       The crucial question--the question with which the country 
     is currently struggling--is whether the President's breaches 
     of conduct--which are now well-known and which have been 
     universally condemned--warrant the ultimate political 
     sanction. Are they serious enough to warrant removal?
       In answering that, we need to ask ourselves, what is in the 
     best interest for the country?
       And while I have not decided what ultimately should happen, 
     I do want to suggest that it is certainly constitutionally 
     permissible to consider a middle ground as a resolution of 
     this matter. Such an approach might bring together those of 
     the President's detractors who believe there needs to be some 
     sanction, but are willing to stop short of impeachment, as 
     well as those of the President's supporters who reject 
     impeachment, but are willing to concede that some sanction 
     ought to be implemented.
       As a country, we have not often faced decisions as stark 
     and potentially momentous as the impeachment of a president. 
     On the other hand, we would be wise not to overstate such 
     claims--surely we have faced some moments just as stark and 
     serious as this one. We have survived those moments, and we 
     will survive this one.
       Whatever the outcome of the present situation, I am 
     confident that our form of government and the strength of our 
     country present us not with any constitutional crisis, but 
     rather with the constitutional framework and flexibility to 
     deal responsibly with the decisions we face in the coming 
     months.--[Speech, 10/2/98]


                     Crimes and Misdemeanors, High

       Let me say at the outset, that what President Clinton did 
     was reprehensible. It was a horrible lapse in judgment and it 
     has brought shame to him personally and to the office of the 
     president. His actions have hurt his family, his friends, his 
     supporters and the country as a whole. President Clinton has 
     said this himself.
       Let me also say that I have not made any decision as to 
     what I think should happen. I have not come to any conclusion 
     as to what consequences the President should face for his 
     shameful behavior. I believe the oath I have taken precludes 
     me and other Senators from prejudging, as I may be required 
     to serve as a judge and juror in the trial of the century.
       I can only make an assessment after hearing all of the 
     evidence: evidence against the President, and evidence in 
     support of the President.
       No one knows how this will turn out. However, I have given 
     the topic some thought and would like to explore some of the 
     issues that surely will confront responsible Members of 
     Congress and all Americans as we enter this difficult period 
     in our history.
       The framers of the Constitution who met in Philadelphia in 
     the summer 1787 considered offering the country a 
     constitution that did not include the power to impeach the 
     president. After all, any wrongs against the public could be 
     dealt with by turning the president out in the next election.
       One delegate to the constitutional convention, Charles 
     Pinckney of South Carolina, worried that the threat of 
     impeachment would place the president under the thumb of a 
     hostile congress, thereby weakening the independence of the 
     office and threatening the separation of powers. According to 
     James Madison's notes, Pinckney called impeachment a ``rod'' 
     that congress would hold over the president.
       In being reluctant to include an impeachment power, the 
     framers were not trying to create an imperial presidency. In 
     fact, what they were worried about was protecting all 
     American citizens against the tyranny of a select group.
       In their view, the separation of powers constituted one of 
     the most powerful means for protecting individual liberty, 
     because it prevented government power from being concentrated 
     in any single branch of government. To make the separation of 
     powers work properly, each branch must be sufficiently strong 
     and independent from the others.
       The framers were concerned that any process whereby the 
     legislative branch could sit in judgment of the president 
     would be vulnerable to abuse by partisan factions. Federalist 
     No. 65 begins its defense of the impeachment process by 
     warning of the dangers of abuse. It argues that impeachments:
       ``Will seldom fail to agitate the passions of the whole 
     community, and to divide them into parties, more or less 
     friendly or inimical, to the accused. In many cases, it will

[[Page 2404]]

     connect itself with the pre-existing factions, and will 
     enlist all their animosities, partialities, influence and 
     interest on one side, or on the other; and in such cases 
     there will always be the greatest danger, that the decision 
     will be regulated more by the comparative strength of the 
     parties than by the real demonstration of guilt or 
     innocence.''
       So the framers were fully aware that impeachment 
     proceedings could become partisan attacks on the president--
     charged with animosities generated by all manner of prior 
     struggles and disagreements, over executive branch decisions, 
     over policy disputes, over resentment at losing the prior 
     election. Federalist No. 65 expresses the view that the use 
     of impeachment to vindicate these animosities would actually 
     be an abuse of that power.
       This sentiment is as true today as it was when the 
     constitution was being written. It was also true when Richard 
     Nixon faced impeachment in 1974. In fact, it would have been 
     wrong for Richard Nixon to have been removed from office 
     based upon a purely partisan vote. No president should be 
     removed from office merely because one party enjoys a 
     commanding lead in either house of the Congress.
       Yet while the framers knew that impeachment proceedings 
     could become partisan, they needed to deal with strong anti-
     federalist factions.
       The anti-federalists strenuously argued that the federal 
     government would quickly get out of step with the sentiments 
     of the people and become vulnerable to corruption and 
     intrigue, arrogance and tyranny. This charge proved close to 
     fatal as the ratifying conventions in the states took up the 
     proposed constitution.
       The framers of the Constitution knew that the Constitution 
     would have been even more vulnerable to charges of 
     establishing a government remote from the people if the 
     president were not subject to removal except at the time of 
     re-election.
       James Madison's notes of the Philadelphia constitutional 
     convention record his observations of the debate. He:
       ``Thought it indispensable that some provision should be 
     made for defending the community against the incapacity, 
     negligence or perfidy of the chief magistrate [that is, the 
     president]. The limitation of the period of his service was 
     not a sufficient security. He might lose his capacity after 
     his appointment. He might pervert his administration into a 
     scheme of speculation or oppression. He might betray his 
     trust to foreign powers.''
       So in the end, the framers of the Constitution risked the 
     abuse of power by the Congress to gain the advantages of 
     impeachment.
       Once the decision to include the power of impeachment had 
     been made, the remainder of debate on the impeachment clauses 
     focused on two issues:
       1. What was to constitute an impeachable offense or what 
     were the standards to be?
       2. How was impeachment to work or what were the procedures 
     to be?
       As we shall see, the framers proved unable to separate 
     these two issues entirely. Understanding how they are 
     intertwined, however, helps us to understand the full 
     implications of the power.
       The Constitution provides that ``the House of 
     Representatives shall. . . have the power of impeachment.'' 
     (Article I, Section 2, Clause 5).
       The framers decision that the House of Representatives 
     would initiate the charges of impeachment follows the pattern 
     of the English Parliament--where the House of Commons 
     initiates charges of impeachment. Beyond this, the choice 
     must have seemed fairly compelled by two related 
     considerations.
       The first, already mentioned, was the need to provide the 
     people as a whole with assurances that the government they 
     were being asked to create would be responsive to the 
     interests and concerns of the people themselves.
       The second was the framer's substantive understanding of 
     the impeachment power. It was a power to hold accountable 
     government officers who had, in Hamilton's terms, committed 
     ``an abuse or violation of some public trust'' thereby 
     committing an injury ``done immediately to the society 
     itself.''
       If the gravamen of an impeachment is the breach of the 
     public's trust, no branch of the federal government could 
     have seemed more appropriate to initiate such a proceeding 
     than the House, which was conceived and defended as the 
     chamber most in tune with the people's sympathies and hence 
     most appropriate to reflect the people's views.
       The Constitution further provides that the president shall 
     be ``removed from office on impeachment for, and conviction 
     of, treason, bribery, or other high crimes and 
     misdemeanors.'' (Article II, Section 4).
       This language went through several changes during that 
     summer of 1787. In initial drafts, the grounds for 
     impeachment were restricted to treason and bribery alone. 
     When the matter was brought up on September 8, 1787, George 
     Mason of Virginia inquired as to why the grounds should be 
     restricted to these two provisions.
       He argued that ``attempts to subvert the constitution may 
     not be treason as above defined.'' Accordingly, he moved to 
     add ``maladministration'' as a third ground.
       James Madison objected to Mason's motion, contending that 
     to add ``so vague a term will be equivalent to a tenure 
     during the pleasure of the senate.'' Here again, we see the 
     worry that impeachment would be misused by the Congress to 
     reduce the independence of the president, allowing partisan 
     factions to interfere at the expense of the larger public 
     good.
       The objection apparently proved effective because mason 
     subsequently withdrew the motion and substituted the phrase 
     ``or other high crimes and misdemeanors.''
       What does the phrase mean? It is clear the framers thought 
     it to be limited in scope. But beyond this, constitutional 
     scholars have been debating the meaning of this phrase from 
     the very early days of the republic.
       Yet despite this on-going dialogue, I believe there are two 
     important points of agreement as to the original 
     understanding of the phrase, and a third issue where the 
     weight of history suggests a settled practice.
       First, as we have already seen, the framers did not intend 
     that the president could be impeached for 
     ``maladministration" alone.
       Second, a great deal of evidence from outside the 
     convention shows that both the framers and ratifiers saw 
     ``high crimes and misdemeanors'' as pointing to offenses that 
     are serious, not petty, and offenses that are public or 
     political, not private or personal.
       In 1829, William Rawle authored one of the early 
     commentaries on the Constitution of the United States. In it, 
     Rawle states that ``the legitimate causes of impeachment. . . 
     can only have reference to public character and official 
     duty.''
       He went on to say, ``in general, those offences which may 
     be committed equally by a private person as a public officer 
     are not the subjects of impeachment.''
       In addition, more than one hundred fifty years ago, Joseph 
     Story, in his influential Commentaries on the Constitution, 
     stated that impeachment is:
       ``Ordinarily'' a remedy for offenses ``of a political 
     character,'' ``growing out of personal misconduct, or gross 
     neglect, or usurpation, or habitual disregard of the public 
     interests, in the discharge of the duties of political 
     office.''
       The public character of the impeachment offense is further 
     reinforced by the limited nature of the remedy for the 
     offense. In the English tradition, impeachments were 
     punishable by fines, imprisonment and even death. In 
     contrast, the American Constitution completely separates the 
     issue of criminal sanctions from the issue of removal from 
     office.
       The Constitution states that ``judgment in cases of 
     impeachment shall not extend further than to removal from 
     office, and disqualification to hold and enjoy any office of 
     honor, trust or profit under the United States.'' (Article I, 
     Section 3, Clause 7).
       The remedy for violations of the public's trust in the 
     performance of one's official duties, in other words, is 
     limited to removal from that office and disqualification from 
     holding future offices. Remedies that I might add, correspond 
     nicely to the public nature of the offenses in the first 
     instance.
       Additional support comes from yet another commentator, 
     James Wilson, a delegate to the convention from Pennsylvania. 
     In his lectures on the Constitution, Wilson wrote that ``in 
     the United States and Pennsylvania, impeachments are confined 
     to political characters, to political crimes and 
     misdemeanors, and to political punishments.''
       All in all, the evidence is quite strong that impeachment 
     was understood as a remedy for abuse of official power, 
     breaches of public trust, or other derelictions of the duties 
     of office.
       The third point to make about the scope of the impeachment 
     power is this: to be impeachable, an offense does not have to 
     be a breach of the criminal law.
       The renowned constitutional scholar and personal friend and 
     advisor, the late Phillip Kurland, wrote that ``at both the 
     convention that framed the constitution and at the 
     conventions that ratified it, the essence of an impeachable 
     offense was thought to be breach of trust and not violation 
     of the criminal law. And this was in keeping with the primary 
     function of impeachment, removal from office.''
       If you put the notion that an impeachable offense must be a 
     serious breach of an official trust or duty, together with 
     the point that it does not have to be a criminal violation, 
     you reach the conclusion that not all crimes are impeachable, 
     and not every impeachable offense is a crime. [Speech, 10/2/
     98]

                           *   *   *   *   *

       Reference has been made to an exchange between George Mason 
     and James Madison at the Virginia Ratifying Convention. Mason 
     is reported to have worried that a president might ``stop 
     [an] inquiry'' into wrongdoing involving the president. 
     Madison is reported to have replied that this concern was not 
     substantial because the House of Representatives could 
     impeach the president if he did so. The exchange, it has been 
     argued, proves that the Framers viewed obstruction of justice 
     as clearly an impeachable offense.
       A more extended look at the colloquy shows that Mason's 
     precise concern was that the President would use his pardon 
     power to

[[Page 2405]]

     pardon people whose investigations might reveal presidential 
     involvement in criminal activities. Mason used this concern 
     as the basis for arguing that the pardon power should be 
     placed in the House, and not with the President. To this 
     concern, Madison replied that if the President so abused the 
     pardon power, he could be impeached. So it was an action that 
     abused an official power of the President that Madison 
     thought was impeachable.
       Here is a condensed version of the exchange as reported in 
     Eliot's Debates.
       Mr. GEORGE MASON, animadverting on the magnitude of the 
     powers of the President, was alarmed . . . Now, I conceive 
     that the President ought not to have the power of pardoning, 
     because he may frequently pardon crimes which were advised by 
     himself. It may happen, at some future day, that he will 
     establish a monarchy, and destroy the republic. If he has the 
     power of granting pardons before indictment, or conviction, 
     may he not stop inquiry and prevent detection?
       Mr. MADISON, adverting to Mr. Mason's objection to the 
     President's power of pardoning, said it would be extremely 
     improper to vest it in the House of Representatives, and not 
     much less so to place it in the Senate. . . . There is one 
     security in this case to which gentlemen may not have 
     adverted: if the President be connected, in any suspicious 
     manner, with any person, and there be grounds to believe he 
     will shelter him, the House of Representatives can impeach 
     him. . . . This is a great security.'' [Memorandum, 2/9/99]

                           *   *   *   *   *



     ii. the meaning of ``high crimes and misdemeanors'' under the 
                              constitution

       The Constitution establishes that the President ``shall be 
     removed from Office on Impeachment for and Conviction of 
     Treason, Bribery, or other high Crimes and Misdemeanors.'' 
     That instrument, by design, does not contain an express 
     definition of the phrase ``other high Crimes and 
     Misdemeanors.'' The framers intended the Constitution to 
     endure for centuries and recognized that they could not 
     provide a more specific definition that would justly serve 
     the nation's interest into an unknowable future. Instead, 
     they wisely entrusted the construction and adaptation of that 
     phrase to the judgment and conscience of the people's chosen 
     representatives in Congress. Thus, the Senate is left to 
     exercise what Alexander Hamilton termed our ``awful 
     discretion'' to judge whether the President's conduct 
     warrants removing him from office.
       While the Constitution calls upon each Senator to bring his 
     or her good faith political judgment to bear on the meaning 
     of the constitutional standard of ``other high Crimes and 
     Misdemeanors,'' it does not abandon us to an ad hoc or 
     partisan exercise of our discretion. Indeed, the framers 
     strongly urged in both the Philadelphia convention and the 
     state ratifying conventions that the constitutional standard 
     is not properly understood to allow impeachment to be used as 
     a tool of partisan punishment. The Constitution itself, the 
     history of its framing and ratification, and the construction 
     given through faithful interpretation and practice since its 
     ratification converge to provide powerful guidance for 
     determining what offenses justify impeachment and conviction. 
     These touchstones of constitutional interpretation reveal 
     that high crimes and misdemeanors are great offenses 
     characterized by two elements: (1) grave harm to the 
     constitutional system of government that (2) results from 
     official misconduct.


                     a. the history of impeachment

       The framers met in Philadelphia in 1787 because the 
     government under the Articles of Confederation was so 
     ineffectual as to have brought the fledgling union to ``the 
     last stage of national humiliation.'' They intended to 
     establish a government through which the people could 
     effectively define and pursue the general welfare. To do so, 
     the framers understood that the government whose charter they 
     were about to write would have to be entrusted with broad 
     coercive powers to act directly upon American citizens. At 
     the same time, the framers were practical statesmen who 
     understood that the powers necessary to make a government 
     effective could be misused to make it potentially an 
     instrument of oppression. Madison explained the dilemma:
       ``If men were angels, no government would be necessary. If 
     angels were to govern men, neither external nor internal 
     controls on government would be necessary. In framing a 
     government which is administered by men over men, the great 
     difficulty lies in this: you must first enable the government 
     to control the governed; and in the next place oblige it to 
     control itself.''
       To meet this potential threat to liberty, the framers 
     divided the federal government into three co-equal branches 
     and further divided the legislative branch into two houses in 
     order to require the concurrence of the branches before the 
     government's coercive power could be brought to bear on the 
     people. Thus, while Article 1, Section 1 of the Constitution 
     vests the legislative power in Congress, this power is 
     subject to presidential veto and judicial review for 
     constitutionality. Executive action generally requires a 
     legislative basis or appropriations or other legislative 
     support and is subject to judicial review.
       Finally, the establishment and jurisdiction of the federal 
     courts generally depends upon legislative authorization, 
     subject again to presidential veto. Within this structure 
     each branch is to be independent and is ``armed'' to defend 
     itself against encroachments by the others. As Justice Robert 
     Jackson observed, ``the Constitution diffuses power the 
     better to secure liberty . . . . It enjoins upon its branches 
     separateness but interdependence, autonomy but reciprocity.''
       Maintaining the independence of the three branches of 
     government dominated the debates regarding impeachment at the 
     Constitutional Convention. Initially, the framers considered 
     offering the country a constitution that did not include the 
     power to impeach the president. After all, any wrongs against 
     the public could be dealt with by turning the president out 
     in the next election. One delegate to the constitutional 
     convention, Charles Pinckney of South Carolina, worried that 
     the threat of impeachment would place the president under the 
     thumb of a hostile congress, thereby weakening the 
     independence of the office and threatening the separation of 
     powers. According to James Madison's notes, Pinckney called 
     impeachment a ``rod'' that congress would hold over the 
     president.
       In being reluctant to include an impeachment power, the 
     framers were not trying to create an imperial presidency; 
     they were concerned about protecting all American citizens 
     and the nation as a whole. In their view, the separation of 
     powers constituted one of the most powerful means for 
     protecting individual liberty, because it prevented 
     government power from being concentrated in any single branch 
     of government. To make the separation of powers work 
     properly, each branch must be sufficiently strong and 
     independent from the others.
       The framers' worry was largely animated by the concern that 
     any process whereby the legislative branch could sit in 
     judgment over the president would be vulnerable to abuse by 
     partisan factions. Federalist No. 65 begins its defense of 
     the impeachment process by warning of its potential for 
     abuse. It argues that impeachments:
       ``Will seldom fail to agitate the passions of the whole 
     community, and to divide them into parties, more or less 
     friendly or inimical, to the accused. In many cases, it will 
     connect itself with the pre-existing factions, and will 
     enlist all their animosities, partialities, influence and 
     interest on one side, or on the other; and in such cases 
     there will always be the greatest danger, that the decision 
     will be regulated more by the comparative strength of the 
     parties than by the real demonstration of guilt or 
     innocence.''
       The framers were fully aware that impeachment proceedings 
     could become partisan attacks on the president charged with 
     animosities generated by all manner of prior struggles and 
     disagreements over executive branch decisions, over policy 
     disputes, over resentment at losing the prior election. 
     Federalist No. 65 expresses the view that the use of 
     impeachment to vindicate these animosities would actually be 
     an abuse of that power.
       Although the framers were concerned about impeachment 
     proceedings becoming partisan, they needed to deal with 
     strong anti-federalist factions. They were very aware that 
     the anti-federalists strenuously urged that the federal 
     government would quickly get out of step with the sentiments 
     of the people and would become vulnerable to corruption and 
     intrigue, arrogance and tyranny. This charge proved close to 
     fatal as the ratifying conventions in the states took up the 
     proposed constitution. The framers of the constitution knew 
     that the constitution would have been even more vulnerable to 
     charges of establishing a government remote from the people 
     if the president were not subject to removal at all except at 
     the time of re-election.
       James Madison's notes of the Philadelphia Constitutional 
     Convention record his observations of the debate where he:
       ``Thought it indispensable that some provision should be 
     made for defending the community against the incapacity, 
     negligence or perfidy of the chief magistrate. The limitation 
     of the period of his service was not a sufficient security. 
     He might lose his capacity after his appointment. He might 
     pervert his administration into a scheme of speculation or 
     oppression. He might betray his trust to foreign powers.''
       So in the end, the framers of the constitution risked the 
     abuse of power by the Congress to gain the advantages of 
     impeachment.


                B. The Constitution's Text and Structure

       The Constitution does not define impeachable offenses, yet 
     its text and structure provide clear manifestation that these 
     words refer to official misconduct causing grave harm to our 
     constitutional system of government. The starting point for 
     any analysis of the Constitution's meaning must be its text, 
     which in relevant part reads, ``the President . . . shall be 
     removed from Office on Impeachment for and Conviction of 
     Treason, Bribery, or other high Crimes and Misdemeanors.''
       Here, the text sets forth a list that begins with terms 
     that have definite meaning (treason, which is defined in the 
     Constitution

[[Page 2406]]

     itself, and bribery, whose definition was fixed at common 
     law) and proceeds to relatively indefinite terms, high crimes 
     and misdemeanors. In this setting, two rules of construction, 
     ejusdem generis and noscitur a sociis, instruct that the 
     meaning of the indefinite terms are to be understood as 
     similar in kind to the definite terms. Application of these 
     canons of construction is bolstered here by the text itself. 
     The indefinite element, ``high Crimes and Misdemeanors,'' is 
     introduced by the term ``other.'' This specifically refers 
     the reader back to the preceding definite terms, treason and 
     bribery, as supplying the context and parameters for the 
     meaning of the indefinite phrase, ``high Crimes and 
     Misdemeanors.''
       Every criminal offense, including such trivial infractions 
     as parking offenses, involves public or societal harm. It is 
     for this reason that criminal cases are titled, ``The State 
     versus . . .'' or ``The Government versus. . . .'' Each of 
     the definite impeachable offenses, treason and bribery, are 
     distinct in that they cause grave harm to the public not in 
     some undifferentiated sense but in a way that strikes 
     directly at our system of constitutional government. The 
     Constitution defines treason as ``levying War against [the 
     United States] or in adhering to their Enemies, giving them 
     Aid and Comfort,'' which plainly involves the most serious 
     offense against our system of government. Similarly, bribery 
     inescapably involves a serious subversion of the processes of 
     government. In describing the common characteristics of 
     treason and bribery, Professor Charles Black of Yale Law 
     School explained that each offense ``so seriously threaten[s] 
     the order of political society as to make pestilent and 
     dangerous the continuance in power of their perpetrator.''
       Furthermore, Professor Edwin Corwin quoted with approval 
     the statement of Justice Benjamin Curtis who said in defense 
     of President Andrew Johnson that ``treason and bribery . . . 
     these are offenses which strike at the existence of [the] 
     government. `Other high crimes and misdemeanors.' Noscitur a 
     sociis. High crimes and misdemeanors; so high that they 
     belong in this company with treason and bribery.''
       In this constitutional setting, the terms treason and 
     bribery take on a second distinctive aspect. As used in 
     Article II, Section 4, each term involves official 
     misconduct. Bribery, by definition, occurs only where a 
     public official undertakes an official act in return for 
     payment or some other corrupt consideration. Likewise, 
     treason necessarily involves official misconduct in the 
     impeachment context. To be sure, it is possible for a private 
     citizen to commit treason by giving aid and comfort to the 
     enemies of the United States. It must be remembered that 
     impeachment proceedings may be pursued only against civil 
     officers of the United States. By limiting impeachable 
     treason to civil officers, the Constitution expressly 
     contemplates that treason will provide a grounds for 
     impeachment and conviction only where a civil office is used 
     to adhere to or aid the enemies of the United States.
       The textual construction expressed above--that high crimes 
     and misdemeanors refer to grave harms to our constitutional 
     system of government that result from official misconduct--
     comports with and draws significant support from the 
     Constitution's structure. First, the structure reflects the 
     framers' conscious decision not to adopt a parliamentary 
     system of government, in which the executive power is 
     subordinate to and controlled by the legislature. The 
     structure also reflects the framers' judgment that the 
     executive branch not be accorded primacy; their experience 
     with the tyranny of the British monarchy was too recent to 
     have permitted them to accept executive supremacy. Instead, 
     the Constitution establishes three branches that are 
     independent, strong, and co-equal. Construing the category of 
     high crimes and misdemeanors too broadly would threaten the 
     independence of the executive and judicial branches. This 
     specific concern animated James Madison in the Philadelphia 
     Convention and moved him to object to vague and potentially 
     expansive formulations of the grounds upon which the 
     President could be impeached and removed from office.
       The formulation of high crimes and misdemeanors must be 
     understood as consistent with the Constitution's overall 
     structure. In as much as the Constitution's structure 
     specifically rejects the parliamentary form, the power of 
     impeachment and removal must be construed and exercised in a 
     way that respects this fundamental constitutional judgment. 
     Understanding the grounds for impeachment to be limited to 
     cases of official misconduct that cause serious harm to our 
     system of government allows the Congress to protect the 
     public against oppressive official action without undermining 
     the necessary independence of the President or the judiciary.
       The Constitution's structure also supports limiting the 
     category of impeachable offenses to those involving official 
     misconduct. The constitutional separation of powers is 
     designed to safeguard liberty against tyrannical or 
     oppressive exercise of the government's power. In advocating 
     the specific governmental structure erected in the 
     Constitution, Madison repeatedly described the motivating 
     concern to be establishing internal mechanisms, specifically 
     the system of checks and balances, to control the federal 
     government's power and minimize threat to the liberty of the 
     people. This supports limiting the scope of impeachable 
     offenses to official misconduct; that is, to conduct in which 
     the civil officer misuses his or her official power. Other 
     sorts of misbehavior by civil officers are simply beyond the 
     concern of the separation of powers, of which the impeachment 
     powers are a significant component. Indeed, the Constitution 
     specifically provides that civil officers, including the 
     President, remain subject to criminal prosecution and 
     punishment for wrongdoing that does not involve official 
     conduct.


     C. History of the Debates and Ratification of the Constitution

       Moving beyond the text and structure of the Constitution 
     itself, the debates at the Philadelphia Convention of 1787, 
     where the Constitution was drafted, and those in the 
     subsequent state ratifying conventions provide important 
     insight into the meaning of ``high Crimes and Misdemeanors.'' 
     Close examination of these proceedings demonstrates that the 
     framers gave careful consideration to Congress's impeachment 
     powers. This consideration led them to understand the 
     Constitution as setting forth a very narrow category of 
     impeachable offenses.
       Through most of the convention, the drafts of the 
     Constitution denominated treason and bribery as the exclusive 
     grounds for impeachment and removal of civil officers. In 
     September 1787, as the convention was drawing to a close, 
     Colonel George Mason and James Madison undertook colloquy 
     that gave this provision its ultimate formulation. Because 
     treason was expressly and narrowly defined in the 
     Constitution itself, Mason was concerned that the impeachment 
     power would not reach ``great and dangerous offenses'' and 
     that ``attempts to subvert the Constitution may not be 
     treason'' as defined in Article III of the Constitution. 
     Mason moved to add ``maladministration'' as a catchall 
     category. Significantly, this offense, which had been an 
     accepted ground for impeachment in British practice, 
     comprises exclusively official misconduct.
       Madison objected to this addition, not because it was too 
     restrictive, but because it was too vague and so potentially 
     too expansive. He feared that ``so vague a term will be 
     equivalent to a tenure during the pleasure of the Senate.'' 
     Here again it is clear that the framers were concerned that 
     impeachment would be misused by the Congress to reduce the 
     independence of the President. In response Mason withdrew his 
     own original motion and moved to add ``or other high Crimes 
     and Misdemeanors.'' His motion was quickly approved.
       The purpose of Mason's motions was to include all offenses 
     that pose a threat to our system of constitutional government 
     similarly to that posed by treason. Madison expressed the 
     important concern that the expansion not be left so far open 
     as to erode the essential independence of the other branches, 
     and particularly of the President. In responding to Madison's 
     concern, Mason must be understood to have intended to narrow 
     a definition that already applied solely to official 
     misconduct. The colloquy between Mason and Madison, then, 
     strongly supports construing the phrase high crimes and 
     misdemeanors to cover only official misconduct that threatens 
     grievous harm to our governmental system.
       Madison was not alone in his concern that Congress might 
     use impeachment as a tool for encroachments upon the 
     executive branch. This concern was raised in various state 
     ratifying conventions as well. For example, in supporting the 
     Constitution at the Pennsylvania Convention, James Wilson 
     repeatedly assured the delegates that only ``great injuries'' 
     could serve as a basis for invoking impeachment. In his 
     lectures on the Constitution, Wilson went on to say that ``in 
     the United States and Pennsylvania, impeachments are confined 
     to political characters, to political crimes and 
     misdemeanors, and to political punishments.'' In the North 
     Carolina Convention, several defenders of the Constitution, 
     including James Iredell who was a delegate to the 
     Philadelphia Convention and later became a Justice of the 
     Supreme Court, argued that impeachment would ``arise from 
     acts of great injury to the community.'' The debates 
     surrounding ratification in New York produced the Federalist 
     Papers. Alexander Hamilton explained that,
       ``[t]he subjects of [the Senate's impeachment] jurisdiction 
     are those offenses which proceed from the misconduct of 
     public men, or, in other words, from the abuse or violation 
     of some public trust. They are of a nature which with 
     peculiar propriety may be denominated POLITICAL, as they 
     relate chiefly to injuries done to the society itself.''
       Like Hamilton, the founding generation understood 
     impeachment to be a political remedy for political offenses. 
     It is important to bear in mind what they meant by 
     ``political.'' They meant that which relates to government 
     and the pursuit of the general welfare; that which involves 
     the system of government or ``society in its political 
     character.'' They specifically did not mean political in the 
     sense of partisan which the framers affirmatively feared. 
     Charles Pinckney,

[[Page 2407]]

     James Wilson, and Alexander Hamilton, for example, each 
     decried construing the impeachment powers in ways that would 
     allow these powers to be put to partisan ends. They lodged 
     the power to try impeachments in the Senate precisely because 
     they thought the Senate would have the necessary 
     independence, stature, and impartiality to prevent the 
     impeachment powers from becoming a tool of factionalism and 
     partisanship. The framers expected that the Senate was, among 
     government institutions, uniquely capable of fidelity to the 
     constitutional limits partisanship that the framers 
     understood to be implicit in the phrase high crimes and 
     misdemeanors.
       Leading constitutional scholarship of the founding era 
     reflects the same view of the intended narrow scope of high 
     crimes and misdemeanors. Justice Joseph Story, in his 
     pathbreaking Commentaries on the Constitution, looked to 
     British practice to understand the scope of impeachment in 
     the United States Constitution. Recognizing that the U.S. 
     Constitution intended to confine impeachment to a narrower 
     set of offenses than those permitted under British law, he 
     observed that even in Great Britain, ``such kinds of misdeeds 
     . . . as peculiarly injure the commonwealth by the abuse of 
     high offices of trust are the most proper and have been the 
     most usual ground for this kind of prosecution in 
     parliament.'' Story went on to say that impeachment is a 
     remedy for offenses ``of a political character,'' ``growing 
     out of personal misconduct, or gross neglect, or usurpation, 
     or habitual disregard of the public interests, in the 
     discharge of the duties of political office.''
       The public character of the impeachment offense is further 
     reinforced by the limited nature of the remedy for the 
     offense. In the English tradition, impeachments were 
     punishable by fines, imprisonment and even death. In 
     contrast, the American Constitution completely separates the 
     issue of criminal sanctions from the issue of removal from 
     office. The Constitution states that ``judgment in cases of 
     impeachment shall not extend further than to removal from 
     office, and disqualification to hold and enjoy any office of 
     honor, trust or profit under the United States.'' The remedy 
     for violations of the public's trust in the performance of 
     one's official duties, in other words, is limited to removal 
     from that office and disqualification from holding future 
     offices.
       Therefore, the Constitution contemplates both an 
     impeachment and a criminal action as consequences for 
     Presidents who commit impeachable offenses. This differs from 
     the English model which only provides for criminal 
     punishments after an impeachment conviction. If, however, a 
     President engages in egregious but non-impeachable activity, 
     the Constitution subjects the President to criminal 
     liability. Impeachment therefore, is viewed not as a 
     mechanism to punish a President, but rather a device to 
     protect the populace. As Story said, impeachment proceedings 
     are ``not so much designed to punish an offender as to secure 
     the state against gross official misdemeanors.''
       Impeachment, therefore, is intended to preserve the 
     constitutional form of government by removing from office an 
     official who subverts the Constitution and is not intended to 
     be a remedy for someone who breaks the law in connection with 
     a private matter.
       At least one important early treatise writer, William 
     Rawle, concluded that only official misconduct could provide 
     a basis for impeachment. He contended that ``the causes of 
     impeachment can only have reference to public character and 
     official duty. . . . In general those which may be committed 
     equally by a private person as a public officer are not the 
     subject of impeachment.'' Additional support for this 
     proposition comes from the renowned constitutional scholar, 
     Phillip Kurland who wrote that ``at both the convention that 
     framed the Constitution and at the conventions that ratified 
     it, the essence of an impeachable offense was thought to be 
     breach of trust and not violation of the criminal law. And 
     this was in keeping with the primary function of impeachment, 
     removal from office.'' Finally, additional support for this 
     proposition comes from the United States Department of 
     Justice. As a legal memorandum produced by the Justice 
     Department's Office of Legal Counsel during impeachment 
     proceedings against President Nixon observed, ``[t]he 
     underlying purpose of impeachment is not to punish the 
     individual, but is to protect the public against gross abuse 
     of power.''


                d. constitutional practice and precedent

       Another important guide to the meaning of the Constitution 
     is the construction applied throughout our history by those 
     who have been charged with applying its provisions. The 
     significance of constitutional practice is heightened in the 
     absence of applicable judicial interpretation. As Justice 
     Frankfurter stated:
       ``The Constitution is a framework for government. Therefore 
     the way the framework has consistently operated fairly 
     establishes that it has operated according to its true 
     nature. Deeply embedded traditional ways of conducting 
     government cannot supplant the Constitution or legislation, 
     but they give meaning to the words of a text or supply them. 
     It is an inadmissibly narrow conception of American 
     constitutional law to confine it to the words of the 
     Constitution and to disregard the gloss which life has 
     written upon them.''
       In the history of the United States, the Senate has never 
     convicted any President of an impeachable offense. This fact 
     stands out as the sum total of the Senate's practical 
     construction of the Constitution's impeachment provisions as 
     they relate to the President of the United States. It must 
     serve as a chilling call to self-restraint in construing 
     those provisions.
       The Senate has convicted other civil officers of 
     impeachable offenses, including high crimes and misdemeanors. 
     There is reason to doubt whether these cases, mostly 
     involving federal judges, provide directly analogous 
     precedent for cases involving the President. First, the 
     Madison-Mason colloquy and the debates in the state ratifying 
     conventions demonstrate the framers' primary concern was with 
     the use of impeachment as a vehicle for encroachments on the 
     President's structurally necessary independence from the 
     legislature. Second, federal judges serve life terms and are 
     not elected. The automatic removal of the President upon 
     conviction of high crimes and misdemeanors has the widely 
     remarked upon consequence of artificially altering the 
     expected result of an election and thus is regarded as in 
     tension with democratic principles. Moreover, because the 
     President serves a limited term of four years, the need for 
     an artificial removal mechanism is less urgent than it is in 
     the case of judges who would otherwise serve an illimitable 
     term.
       These caveats aside, an examination of congressional 
     practice in the case of the fifteen officers who have been 
     impeached by the House strongly supports construing high 
     crimes and misdemeanors as aimed primarily at official 
     misconduct that results in grave harm to our constitutional 
     system of government. In every case, the misconduct cited as 
     impeachable involved the misuse of office or the power of 
     office. No case involved impeachment for conduct that did not 
     involve the exercise of the impeached person's office or 
     official power. The closest the Congress has come to 
     impeaching and convicting an officer for conduct not 
     involving abuse of office was the case of Judge Harry 
     Claiborne. Judge Claiborne was impeached, convicted, and 
     removed from office for committing tax evasion. 
     Superficially, this conduct did not itself involve his 
     judicial office in any direct way. The income he was 
     convicted of withholding, however, allegedly came from 
     improper payments to him, which were made because of his 
     judicial office. In their essence, then, the charges against 
     him were charges of serious abuse of office involving what 
     amounted to bribery, though the articles of impeachment did 
     not formally recount the source of the income at the heart of 
     the tax evasion case against Judge Claiborne. [Memorandum, 
     12/22/98]


                           evidence, rules of

       Are the Federal Rules of Evidence Applicable? Neither the 
     Senate nor its presiding officer, the Chief Justice, is 
     required to follow the Federal Rules of Evidence in ruling on 
     evidentiary objections during an impeachment trial. As a 
     matter of practice these decision makers have relied upon the 
     Federal Rules in considering evidentiary objections, but have 
     not always excluded evidence that the Federal Rules would 
     exclude or admitted evidence that the Federal Rules would 
     allow. The Senate's approach has been to receive all evidence 
     except where doing so would be unfair to one of the parties. 
     In determining what is fair, the Senate has placed great 
     weight on the Federal Rules.
       The refusal to adopt the Federal Rules of Evidence is 
     apparently based on the judgment that the Senate is highly 
     sophisticated as a jury examining political crimes and 
     weighing political remedies. Consequently, the Senate does 
     not need the sort of protections that juries commonly 
     require. The concern raised by not adopting the Federal Rules 
     is that, where the only limit on the discretion of individual 
     Senators is their sense of fairness, party-line voting may 
     emerge and the impeachment process could come to be viewed as 
     lacking the necessary impartiality.
       While the Senate has never accepted that it is bound by the 
     Federal Rules, it may vote to require their application in a 
     given case. In fact, the Senate did just that on at least one 
     occasion. During the Rule XI committee deliberations in the 
     impeachment trial of Judge Harry Claiborne, Senator Orrin 
     Hatch argued that the committee should accept the Federal 
     Rules as binding. Then-Senator Albert Gore argued against 
     accepting the Federal Rules.
       Is the Starr Report Admissible? Either or both parties may 
     seek to introduce the referral and supporting documentation 
     that independent counsel Kenneth Starr submitted to the House 
     Judiciary Committee. Much of this material would not be 
     admissible in a judicial proceeding. The referral itself is 
     not evidence, but a summation of evidence contained in the 
     attachments. The attachments include grand jury testimony 
     where witnesses were not subject to cross-examination and 
     other material could represent hearsay.
       There is some precedent for admitting the record and 
     proceedings from a judicial proceeding as substantive 
     evidence in an impeachment trial. In the impeachment trial of

[[Page 2408]]

     Judge Harry Claiborne, one of the House Managers, then-
     Representative Michael DeWine, argued that the Rule XI 
     committee should accept the record of the criminal trial in 
     which Judge Claiborne was convicted of tax evasion charges. 
     Specifically, Manager DeWine argued that accepting the 
     evidence would establish an important precedent in favor of 
     economy and efficiency in impeachment proceedings. The 
     committee accepted DeWine's argument and received the trial 
     record as substantive evidence.
       In Judge Claiborne's case, the committee agreed to receive 
     evidence that had been subject to cross-examination by Judge 
     Claiborne's attorneys. If the President's counsel objects to 
     the Senate receiving the Starr report and supporting 
     materials, he could distinguish the Claiborne precedent on 
     the ground that the President's lawyers had no opportunity to 
     cross examine grand jury witnesses.
       Is Evidence of Prosecutorial Misconduct Admissible? The 
     President's counsel may seek to introduce evidence of 
     prosecutorial misconduct. The House Managers or Senators may 
     object on the grounds that such evidence is irrelevant. 
     Either the President committed high crimes or misdemeanors, 
     or he did not; evidence relating to what the independent 
     counsel may have done to investigate the President is beside 
     the point.
       The President, however, would have a powerful contrary 
     argument, particularly if the Starr report and supporting 
     documents are admitted as substantive evidence. The report 
     itself represents the conclusions drawn by the independent 
     counsel. The supporting documents represent evidence and 
     testimony collected by the independent counsel without 
     opportunity for supplementation, challenge or cross-
     examination by the President. Understanding the independent 
     counsel's bias or impartiality is crucial to assessing the 
     weight and credibility of this type of evidence. For example, 
     the independent counsel's office will have chosen to pursue 
     certain lines of questioning with witnesses before the grand 
     jury. If the independent counsel acted from bias, there is a 
     reasonable inference that the roads the prosecutor chose not 
     to follow would have revealed evidence favorable to the 
     President. If, on the other hand, the independent counsel is 
     impartial, one may reasonably infer that he sought to uncover 
     all relevant information whether favorable or unfavorable to 
     the President.
       In addition, if officials in the Office of the Independent 
     Counsel threatened witnesses, that fact is relevant to 
     assessing the credibility of the testimony and evidence given 
     by those witnesses.
       In one previous case, the Rule XI committee voted to allow 
     the defense to present evidence of prosecutorial misconduct, 
     although it did not allow the defense to pursue elements of 
     its theory that were purely speculative and highly dubious.--
     [Memorandum, 12/28/98]


                            Findings of Fact

       Various proposals to have the Senate vote on ``findings of 
     fact'' prior to a final vote on the articles of impeachment 
     are circulating. The most onerous of these would ask the 
     Senate to ``find'' that the President had violated federal 
     laws against perjury and obstruction of justice.
       Under one presumed scenario, the findings of fact would 
     pass, while the subsequent vote on the articles would fail. 
     Thus, while the President would remain in office, his legacy 
     would be besmirched by an impeachment trial's finding that he 
     was guilty of crimes.
       There are several constitutional arguments against this 
     procedure, each based on the fact that it is either 
     equivalent to, or tantamount to, separating a vote on guilt 
     or innocence from a vote on removal.
       Very early in the Senate's history, the Senate did in fact 
     separate these two votes, notably in the case of Judge John 
     Pickering. Pickering was charged with drunkenness, among 
     other things, but not with any crimes. The Senate voted 
     separately on whether he was guilty under the articles and 
     then on whether or not he should be removed from office. 
     (They voted to convict and to remove.)
       This procedure might signal that the Senate believed that 
     in an impeachment trial a person could be found guilty by the 
     Senate of offenses that did not rise to the level of 
     ``treason, bribery, or other high crimes and misdemeanors.'' 
     Under that interpretation, the second vote would be necessary 
     to establish whether or not the offenses justified removal 
     from office.
       However, this possible interpretation of the trial 
     procedure was repudiated in the 1936 impeachment trial of 
     Judge Halstead Ritter, when the chair ruled that removal 
     followed automatically from a finding of guilty, so that a 
     separate vote on removal was not in order. The ruling was 
     based on the text of Article II, Section 4, of the 
     Constitution which provides that ``The President [and other 
     civil officers] shall be removed from Office on Impeachment 
     for, and Conviction of, treason, bribery, or other high 
     Crimes and Misdemeanors.''
       The dominant view of constitutional scholars is that the 
     chair's ruling in the Ritter case was correct. Notice that 
     there are two significant components of the Ritter 
     interpretation: (1) the president, vice president or other 
     civil officers can only be impeached for ``treason, bribery, 
     or other high crimes and misdemeanors,'' and (2) removal then 
     follows by operation of Constitutional law upon conviction.
       Against this background, the proposed findings of fact 
     could produce substantial constitutional mischief. Suppose 
     they received a \2/3\'s vote. If the offenses outlined in the 
     findings of fact are high crimes and misdemeanors, the 
     President would have been removed from office by operation of 
     Constitutional law.
       Suppose, further, that the Senate then took the final vote 
     on the articles and on that vote the yeas were less than \2/
     3\'s. Looking strictly at this vote, the President has been 
     acquitted, and remains in office.
       Who, then, is the President of the United States after 
     these two votes have been cast--Bill Clinton or Al Gore? In 
     other words, who decides whether the first vote convicted the 
     President of high crimes and misdemeanors?
       Senators might well argue that the very fact that the 
     Senate took the second vote proves that the first vote was 
     not on offenses that justified removal. That would be an 
     ironic position for many Republican Senators to be in, 
     however, as many of them are on record defending the 
     proposition that perjury and obstruction of justice are 
     clearly impeachable offenses.
       One argument against the proposed findings of fact, then, 
     is that it could create enormous uncertainty about who 
     occupies the office of President. The impact of that 
     uncertainty on foreign and domestic policy would potentially 
     be quite great, infecting every official action the President 
     might undertake. (Perhaps Bill Clinton and Al Gore could do 
     everything in tandem--co-sign all official documents, co-
     attend all foreign negotiations, etc. --thereby eliminating 
     the legal ambiguities by creating a true co-presidency.)
       The uncertainty would, in all likelihood, result in 
     litigation. Suit could be brought by someone adversely 
     affected by a law ``signed'' by Bill Clinton that would 
     otherwise have been pocket vetoed due to the adjournment of 
     Congress, claiming that the bill never became law. Or it 
     could be brought by someone seeking the benefits of a law 
     that Bill Clinton had ``vetoed,'' claiming that the veto had 
     no effect because Bill Clinton was not President.
       Even if such litigation would eventually lead to a 
     resolution of the uncertainty, the country would suffer 
     during the interim.
       There is a real possibility, however, that the Supreme 
     Court would find the question of what constitutes a ``high 
     crime and misdemeanor'' to be nonjusticiable. In United 
     States v. Nixon, the Court held that nearly all questions 
     regarding the Senate's power to try impeachments are 
     nonjusticiable, and it might well so find in this instance, 
     as well.
       Even if the findings of fact did not garner \2/3\'s 
     support, a second argument against the findings of fact can 
     be based on the two-part Ritter interpretation of the 
     impeachment power (i.e., impeachment available only for high 
     crimes and misdemeanors; removal follows automatically from 
     conviction). The contemplated bifurcated vote provides a 
     mechanism for doing exactly what the Ritter interpretation 
     and the prevailing view among scholars say the constitution 
     does not permit: impeaching and convicting a person of lesser 
     offenses than high crimes and misdemeanors.
       The consequences of sanctioning impeachment for ``low'' 
     crimes and misdemeanors in this way are spelled out nicely in 
     a draft op-ed by Jed Rubenfeld. He argues that if the Senate 
     proceeds with the proposed findings of fact,

       ``[t]he Senate would then have taken another big step 
     toward transforming impeachment into a tool of partisan 
     politics.
       ``The Clinton Impeachment would then establish the 
     proposition that it is a legitimate senatorial function in an 
     impeachment proceeding to ``find'' that the President 
     committed crimes or serious misconduct (but not high crimes). 
     In that case, why shouldn't a majority of the House impeach 
     every President who has engaged in conduct worthy of censure? 
     It would no longer matter whether this conduct rose to the 
     level of high crimes and misdemeanors, for after all, one of 
     the Senate's legitimate and proper functions would be to find 
     that the President had committed ``low'' or ``medium'' crimes 
     or other serious misconduct not requiring removal from 
     office.
       ``If the Senate wants to censure the President, let it. But 
     impeachment is not about finding criminal guilt or innocence, 
     and it is not about censure. It is about removal from office. 
     The Senate must vote, up or down, on conviction and removal. 
     Anything less or in-between is more partisan mud.''

       The idea that the House could routinely start up the Senate 
     impeachment trial apparatus on the basis of offenses 
     insufficient to constitute high crimes and misdemeanors 
     because the bifurcated vote procedure supplied the Senate 
     with a way to cope with such charges would probably have been 
     anathema to the Framers, who thought that impeachment ought 
     to be rarely used and reserved for the most serious breaches 
     of public trust.
       Judge Bork agrees that the bifurcated approach poses 
     serious separation of powers problems. He wrote in the 
     February 1, edition of the Wall Street Journal:


[[Page 2409]]


       ``That course would also create an unconstitutional 
     political weapon in the permanent struggle between the 
     legislative and executive branches. Had the Isenbergh-Kmiec 
     proposition been accepted during Iran-Contra, is there any 
     doubt that the Democratic House and Senate would have 
     impeached Ronald Reagan and, unable to convict him by a two-
     thirds vote, adopted findings of fact by a majority vote that 
     effectively condemned him as the perpetrator of high crimes 
     and misdemeanors? This is precisely what the separation of 
     powers does not allow and what anyone who thinks ahead should 
     disavow.''

       (The Isenbergh-Kmiec proposition mentioned by Judge Bork 
     refers to a law review article by Professor Isenbergh of 
     Chicago Law School arguing that the Ritter interpretation is 
     wrong--that in fact people can be impeached under the 
     Constitution for offenses less than high crimes and 
     misdemeanors, in which case lesser sanctions than removal are 
     also available to the Senate.)
       These are powerful arguments. There are responses to them, 
     however, which I believe make the ultimate judgment as to 
     whether or not the bifurcated procedure passes constitutional 
     muster open to reasonable disagreement.
       As to the complaint that the procedure unconstitutionally 
     bifurcates a unitary vote, the complaint just misconceives 
     what the findings of fact motion is. It is not a vote on 
     guilt or innocence of impeachable offenses at all because it 
     doesn't by its terms convict the President of anything. It is 
     antecedent to any question of conviction for impeachable 
     offenses or of remedy. It leaves Senators free to vote any 
     way they wish on guilt or innocence and thus does not split 
     up the conviction/remedy questions. If necessary, this could 
     be made crystal clear through careful drafting, such as by 
     phrasing the motion as, ``Without prejudice to the final 
     question of guilt or innocence on any of the articles of 
     impeachment, the Senate finds . . .''
       This interpretation also responds to the complaint urged by 
     Rubenfeld and echoed by Bork. Because the findings of fact 
     are toothless as regards guilt or innocence, passing such a 
     motion is not equivalent to convicting the President of low 
     crimes and misdemeanors. The Rubenfeld-Bork objection would 
     lie if and only if the Senate purported to convict the 
     President of such offenses, and then sought to avoid removing 
     him by rejecting the articles. But it is not doing that when 
     it makes findings of fact. Because such findings lack any 
     conceivable juridical effect, they are no more offensive to 
     the Constitution than a censure resolution.
       One could even imagine a findings of fact motion serving a 
     purpose that would be beneficial to the impeachment process. 
     Findings of fact could help provide a clear historical record 
     as to what this United States Senate believed did not rise to 
     the level of impeachable offenses (or did rise to that level, 
     depending upon the outcome of the vote on conviction). 
     Historically, the Senate has left to each individual Senator 
     the responsibility to make an overall unitary determination 
     as to the facts that have been proven, the requisite burden 
     of proof as to those facts, and the ultimate consequences 
     that flow from those facts, taking into account both the 
     costs of retaining the civil officer in office as well as the 
     costs of removing him or her. It could be argued that our 
     constitutional practices would be just as well served if the 
     basis for the final judgment was expressed in more discrete 
     and articulated collective judgments, first as to the facts 
     proven, and then as to their consequences.
       This last point runs counter to the Senate's current rules 
     and practices, of course. Rule XXIII of the rules of 
     impeachment provides that ``an article of impeachment shall 
     not be divisible for the purpose of voting thereon at any 
     time during the trial.'' This provision was adopted in 1986. 
     Some of its legislative history is pertinent:
       ``The portion of the amendment effectively enjoining the 
     division of an individual article into separate 
     specifications is proposed to permit the most judicious and 
     efficacious handling of the final question both as a general 
     matter and, in particular, with respect to the form of the 
     articles that proposed the impeachment of President Richard 
     Nixon. The latter did not follow the more familiar pattern of 
     embodying an impeachable offense in an individual article 
     but, in respect to the first and second of those articles, 
     set out broadly based charges alleging constitutional 
     improprieties followed by a recital of transactions 
     illustrative or supportive of such charges. The wording of 
     Articles I and II expressly provided that a conviction could 
     be had thereunder if supported by `one or more of the' 
     enumerated specifications. The general view of the Committee 
     at that time was expressed by Senators Byrd and Allen, both 
     of whom felt that division of the articles in question into 
     potentially 14 separately voted specifications might `be time 
     consuming and confusing, and a matter which could create 
     great chaos and division, bitterness, and ill will. . . .' ''
       The rule and its history suggests that the Senate currently 
     operates under a norm of maximum individual Senatorial 
     autonomy in reaching an overall unitary judgment as to guilt 
     or innocence, without the interposition of potentially 
     divisive antecedent motions seeking to clarify exactly what 
     acts the Senate as a body has found the accused to have 
     committed.
       It is possible to object to the proposed findings of fact 
     as being inconsistent with Rule XXIII. The rejoinder to that 
     objection, of course, is a version of what has already been 
     stated: the findings need not be construed as ``dividing'' 
     any article of impeachment, but rather as a motion antecedent 
     to an eventual vote on the articles. Still, the findings do 
     seem inconsistent with the spirit of Rule XXIII and with its 
     evident intention to avoid divisive preliminary votes of this 
     kind.
       Putting aside constitutional or rule-based objections to 
     the proposed findings of fact, Rubenfeld-Bork make a very 
     powerful practical argument that this bifurcation will have 
     pernicious consequences. We are currently living through 
     proof of how all-consuming an impeachment and trial of a 
     President can be. The country loses time and attention that 
     could be devoted to constructive matters of public interest, 
     trust in the ability of elected officials to work together by 
     placing the nation's business first is eroded, and the 
     Presidency is placed under a cloud of uncertainty during the 
     pendency of the proceedings. Lowering the impeachment bar 
     through the use of this bifurcated procedure would be unwise 
     and, as suggested earlier, would most likely be viewed with 
     alarm by the Framers who drafted the impeachment power into 
     the Constitution.
       There is, finally, an argument that such findings would 
     amount to an unconstitutional Bill of Attainder. The risk 
     that such findings would be found to be an unconstitutional 
     ``trial by legislature'' is enhanced (a) by the fact that 
     under some of the proposals, the finding would be that the 
     President had violated the law; (b) by the fact that the 
     findings would occur in the context of a Senate trial.
       Such Senate action could well have an adverse effect on 
     President Clinton's bar membership. Bar rules disqualify 
     individuals who have been convicted of perjury or obstructed 
     justice. If those consequences followed from the Senate 
     action, they could be construed as punishment, thus bringing 
     the findings of fact within the constitutional prohibition on 
     bills of attainder.--[Memorandum, 2/2/99]


                     Impeachment Rules, Changes to

       The existing Senate Rules establish the basic contours of 
     how an impeachment trial will proceed. Many questions remain 
     open, however--just as in civil cases, the federal rules of 
     civil procedure provide the basic contours, but the actual 
     route traveled by any trial depends upon the particular facts 
     and law of each case, the motions that parties choose to 
     bring, and, in general, the manner in which the parties 
     choose to litigate the matter.
       This section highlights the major questions that deserve 
     examination before the trial begins. It also discusses the 
     available mechanisms for resolving outstanding procedural 
     issues.
       Should any of the existing rules be modified? The existing 
     Rules were last amended in 1986. Should the Senate wish to 
     revise any of them, motions to do so would be in order on the 
     first day and would be fully debatable. Once actual the trial 
     begins motions are not debatable, and a motion to suspend, 
     modify, or amend the rules would require unanimous consent. 
     Before the trial begins (the period between the exhibition of 
     the articles of impeachment and the presentation of opening 
     statements by the parties), Senate precedent supports 
     allowing debate on preliminary motions that relate to how the 
     Senate will organize itself to conduct the trial. It appears 
     that such motions are subject to the Standing Rules of the 
     Senate, and not the limitations on debate contained in the 
     impeachment Rules. Thus, they could be filibustered during 
     the pre-trial stage. As a motion to suspend, modify, or amend 
     the rules, any such motion would be subject to a heightened 
     cloture requirement. Standing Rule XXII requires a two-thirds 
     vote to invoke cloture and end debate on a motion to suspend, 
     modify, or amend the rules.
       The impeachment rules provide for the proceedings to be 
     ``double-tracked'' (with legislative business conducted in 
     the morning session and the impeachment trial conducted in 
     the afternoon). Even after the trial has commenced, then, a 
     motion to suspend, modify, or amend could be made in a 
     morning legislative session, but would be subject to 
     filibuster with a two-thirds cloture requirement.--
     [Memorandum, 12/28/98]


                         Obstruction of Justice

       The House relies on two different federal obstruction of 
     justice statutes. The first, 18 U.S.C. Sec. 1503, is the 
     general obstruction of justice statute. The second, 18 U.S.C. 
     Sec. 1512(b), addresses witness tampering.
       A. Elements of the General Obstruction of Justice Statute
       To establish a violation of the general obstruction of 
     justice statute (Sec.  1503), the government must prove each 
     of the following:
       (1) that there was a pending judicial proceeding;
       (2) that the defendant knew this proceeding was pending; 
     and
       (3) that the defendant corruptly influenced, obstructed, or 
     impeded the due administration of justice or endeavored to 
     corruptly influence, obstruct, or impede the due 
     administration of justice.

[[Page 2410]]

       The first two elements are straightforward. The third 
     element is more complex. In general:
       ``Corruptly'' means to engage in an act voluntarily and 
     deliberately for the purpose of improperly influencing, 
     obstructing, or interfering with the administration of 
     justice.
       ``Endeavor'' means that the defendant also knowingly and 
     deliberately acted or made an effort which had a reasonable 
     tendency to bring about the desired result of interfering 
     with the administration of justice.
       The defendant must engage in misconduct that has the 
     ``natural and probable effect'' of interfering with the due 
     administration of justice. He need only ``endeavor'' to 
     obstruct justice; he need not succeed.
       B. Elements of the Witness Tampering Statute
       To establish a violation of the witness tampering statute 
     (Sec.  1512(b)), the government must establish that the 
     defendant:
       (1) knowingly
       (2) corruptly persuaded another person or attempted to do 
     so, or engaged in misleading conduct toward another person
       (3) with the intent
       to influence, delay, or prevent a witness's testimony from 
     being presented at official federal proceedings,
       to cause or induce any person to withhold testimony or 
     physical evidence from an official federal proceeding; or
       to prevent a witness from reporting evidence of a crime to 
     federal authorities.
       Unlike the general obstruction of justice statute, the 
     witness tampering statute does not require that the 
     defendant's misconduct be committed during the pendency of 
     federal proceedings. Thus, the defendant need not be aware of 
     any pending or contemplated federal proceedings or 
     investigations at the time he engages in his obstructive 
     conduct. Nonetheless, it must be proved that the defendant 
     intended by his prohibited conduct to obstruct a federal 
     proceeding or the reporting of a federal crime.
       There is no judicial consensus as to the meaning of 
     ``corrupt persuasion,'' but several courts have defined the 
     term to mean that the defendant's attempts to persuade ``were 
     motivated by an improper purpose.''
       The term ``misleading conduct'' is defined in 18 U.S.C. 
     Sec.  1515 to include (A) knowingly making a false statement; 
     (B) intentionally omitting information from a statement and 
     thereby causing a portion of such statement to be misleading, 
     or intentionally concealing a material fact, and thereby 
     creating a false impression by such statement; (C) with 
     intent to mislead, knowingly submitting or inviting reliance 
     on a writing or recording that is false, forged, altered, or 
     otherwise lacking in authenticity.
       At least one court has held that a defendant violates the 
     witness tampering statute when he tells a potential witness a 
     false story as if the story were true, intending that the 
     witness believe the story and testify to it before the grand 
     jury.--[Memorandum, 1/15/99]


                                Perjury

       Under federal law, a witness commits grand jury perjury if 
     shown, when under oath before a federal grand jury, to have 
     made a: knowingly false declaration that is of a material 
     matter that the grand jury has the power to investigate. 
     Proof only of an intent to mislead is not sufficient for a 
     perjury conviction.
       ``Knowingly false declarations'' can be proved by evidence 
     that the individual did not believe a declaration to be true 
     at the time it was made.
       Only unambiguous questions can form the basis of perjury 
     convictions. If a question can reasonably be interpreted in 
     multiple ways, perjury can not be based only on the 
     questioner's intended meaning and there must be evidence of 
     what the person answering understood when responding.
       Grand jury perjury can not be based on an answer that was 
     literally true even if misleading and nonresponsive to the 
     question asked. The burden is on the questioner to identify 
     evasive answers and press for clarity at the time rather than 
     let it pass and charge perjury later.
       Grand jury perjury convictions can be based on the 
     testimony of a single uncorroborated witness. And, even if no 
     single statement can be shown to be knowingly false, perjury 
     can be shown if the individual knowingly made multiple 
     material declarations under oath that are ``inconsistent to 
     the degree that one of them is necessarily false.''
       A ``material matter'' for perjury convictions under federal 
     law must have had some bearing on the substantive elements of 
     the issues that the grand jury was convened to investigate 
     and would have some bearing on influencing or impeding that 
     investigation, regardless of whether the statement actually 
     was misleading on a particular point.
       The Minority Views in the House Report argue that because 
     the judge in the Jones sexual harassment case ruled in 
     January 1998 that evidence relating to Monica Lewinsky was 
     not ``essential to the core issues in that case,'' Jones' 
     lawyers could not have introduced evidence about her 
     relationship with the President in order to attack his 
     credibility in that suit, so that his statements on the 
     subject are not material under perjury law.--[Memorandum, 12/
     30/98]


                        President, Indictment of

       The New York Times recently reported that Ken Starr and his 
     staff have recently concluded that the Constitution does not 
     prohibit them from indicting and prosecuting President 
     Clinton while he is still in office. The independent counsel 
     has a legitimate reason for seeking an indictment before the 
     end of President Clinton's term. The grand jury that is 
     currently impaneled and that has heard all the evidence will 
     expire by August. If the Independent Counsel waits until the 
     President leaves office, he will have to impanel a new grand 
     jury and present evidence all over again.
       This memorandum reviews the constitutional issues that 
     would be raised if a prosecutor were to attempt to indict and 
     prosecute a sitting President. It concludes that the 
     Constitution permits a prosecutor to indict a sitting 
     President, but does not allow the prosecutor to proceed to 
     prosecute the indictment until the President's term has 
     expired. Although the Constitution does not forbid indictment 
     of a sitting President, there are significant prudential 
     arguments counseling against such a move. Moreover, there may 
     be a statutory impediment to indicting the President.


                                I. Text

       Until recently, numerous commentators interpreted the 
     Constitution's text to prohibit criminal prosecution of any 
     officer before the officer was impeached and removed. The 
     only provision on point states, ``Judgment in cases of 
     impeachment shall not extend further than to removal from 
     office and disqualification to hold and enjoy any office of 
     honor, trust, or profit under the United States; but the 
     party convicted shall nevertheless be liable and subject to 
     indictment, trial, judgment and punishment, according to 
     law.'' Article I, section 3. This interpretation reads the 
     phrase ``the party convicted shall nevertheless . . .'' to 
     mean that only parties who have been convicted are subject to 
     judicial process. In other words, impeachment and conviction 
     is a prerequisite to judicial process.
       The better reading has always been that the Constitution's 
     text is ambiguous. It can just as easily be understood to 
     mean that impeachment and conviction, if that should occur 
     first, are not a bar to judicial process. This interpretation 
     has been vindicated by recent practice. The three judges 
     impeached and convicted in the late 1980s were all indicted 
     and prosecuted criminally first. In addition, Vice President 
     Spiro Agnew was indicted while in office, as was sitting Vice 
     President Aaron Burr in 1804. The provision cited does not 
     distinguish between the President and other officers subject 
     to impeachment. Thus, if the President is to be treated 
     differently than other impeachable officers, it must be on 
     some basis other than the Constitution's text.


                             II. Structure

       Even the most originalist minded cosntitutional scholars do 
     not limit their arguments to those based on language alone. 
     They also argue based on the structure of the document taken 
     as a whole. Shifting the focus from text to structure, there 
     is strong reason to conclude that the Constitution does not 
     forbid indictment of a sitting President but that it does 
     prohibit taking the further step of prosecuting him 
     criminally.
       The Constitution structures the federal government by 
     dividing it into three branches. In order to safeguard 
     liberty, each of these branches must be fully functioning at 
     all times. Anything that significantly impairs the 
     President's ability to act as a check on the other branches 
     may violate the Constitution's structural safeguards. By 
     contrast, there are hundreds of district court judges. A 
     criminal proceeding against one of them has only remote 
     ramifications for the constitutional role of the judiciary as 
     an collective institution.
       The constitutional status of the President is unique, and 
     materially distinguishable from that of other impeachable 
     officers, such as district court judges or even the Vice 
     President. First, the President, of course, is the head of 
     one of the three constitutional branches of government. The 
     other branches have collective heads. The legislative branch 
     is headed by the entire Congress, while the judiciary is 
     headed by the Supreme Court. To indict and prosecute the 
     President is in this sense the constitutional equivalent of 
     indicting and prosecuting the entire Congress or the entire 
     Supreme Court.
       Second, the presidency is a uniquely consuming office. Its 
     occupant is perpetually on duty. Nearly every President from 
     George Washington through George Bush has expressed just how 
     consuming the office is. For example, Lyndon Johnson related 
     that ``Of the 1,885 nights I was President there were not 
     many when I got to sleep before 1 or 2 a.m. and there were 
     few mornings when I didn't wake up by 6 or 6:30.'' The 
     Twenty-Fifth Amendment to the Constitution, which provides 
     for presidential succession in the case of disability, 
     recognizes not only how consuming the office is, but how 
     critical it is that the office be filled at all times.
       Third, the President acts as the embodiment of the nation 
     on the international stage and even in domestic matters. As 
     Justice Robert Jackson reminded us, the presidential office 
     locates the executive power

[[Page 2411]]

     ``in a single head in whose choice the whole nation has a 
     part, making him the focus of public hopes and expectations. 
     In drama, magnitude and finality his decisions so far 
     overshadow any others that almost alone he fills the public 
     eye and ear.''
       Against this structural argument stand rule of law 
     considerations. The continuing vitality of the rule of law as 
     a fundamental principle requires that the President be 
     subject to law as are all citizens. This commitment is voiced 
     in the President's constitutional duty to ``take care that 
     the laws be faithfully executed.'' The primary purpose of 
     this provision is to make it clear that the President, unlike 
     the King of England, has no ``dispensing power,'' that is, no 
     power to declare a law inapplicable to himself or anyone 
     else. Similarly, the courts have placed great weight on the 
     integrity of the criminal justice system. In a variety of 
     executive privilege cases, the courts have placed a great 
     premium on according prosecutors access to evidence and on 
     preserving evidence.
       Determining whether the Constitution permits either 
     indictment or prosecution of a sitting President requires 
     balancing these considerations.


      Punishments upon Conviction of High Crimes and Misdemeanors

       If the Senate convicts the President of high crimes and 
     misdemeanors, the Constitution requires that he be removed 
     from office. ``The President--shall be removed from office 
     upon impeachment for and conviction of--high crimes and 
     misdemeanors.'' The Constitution allows the Senate to impose 
     an additional punishment upon convicting the President; it 
     may disqualify the President from holding any office of 
     honor, trust or profit. Odd as it sounds, this 
     disqualification probably does not apply to membership in the 
     House of Representatives of the Senate. This is because the 
     text of the Constitution, in several clauses, makes it clear 
     that members of Congress are not ``officers.'' The very first 
     impeachment trial proceeded against Senator Blount. Senator 
     Blount was acquitted and many Senators refused to convict on 
     the basis of their constitutional interpretation that a 
     senator is not an officer and so is not subject to 
     impeachment.--[Memorandum, 12/28/98]

                           *   *   *   *   *

       Very early in the Senate's history, the Senate did in fact 
     separate these two votes, notably in the case of Judge John 
     Pickering. Pickering was charged with drunkenness, among 
     other things, but not with any crimes. The Senate voted 
     separately on whether he was guilty under the articles and 
     then on whether or not he should be removed from office. 
     (They voted to convict and to remove.)
       This procedure might signal that the Senate believed that 
     in an impeachment trial a person could be found guilty by the 
     Senate of offenses that did not rise to the level of 
     ``treason, bribery, or other high crimes and misdemeanors.'' 
     Under that interpretation, the second vote would be necessary 
     to establish whether or not the offenses justified removal 
     from office. However, this possible interpretation of the 
     trial procedure was repudiated in the 1936 impeachment trial 
     of Judge Halstead Ritter, when the chair ruled that removal 
     followed automatically from a finding of guilty, so that a 
     separate vote on removal was not in order. The ruling was 
     based on the text of Article II, Section 4, of the 
     Constitution which provides that ``The President [and other 
     civil officers] shall be removed from Office on Impeachment 
     for, and Conviction of, treason, bribery, or other high 
     Crimes and Misdemeanors.''
       The dominant view of constitutional scholars is that the 
     chair's ruling in the Ritter case was correct. Notice that 
     there are two significant components of the Ritter 
     interpretation: (1) the president, vice president or other 
     civil officers can only be impeached for ``treason, bribery, 
     or other high crimes and misdemeanors,'' and (2) removal then 
     follows by operation of Constitutional law upon conviction.--
     [Memorandum, 2/2/99]


                         Role of Chief Justice

       The Chief Justice of the United States is the Presiding 
     Officer over the Senate's deliberations when the President 
     has been impeached. His role is loosely analogous to that of 
     a trial judge, but with less ultimate authority. He directs 
     preparations for the trial, as well as the trial proceedings 
     themselves. Under the precedent of the Johnson trial, the 
     Chief Justice can make rulings on all evidentiary and 
     procedural motions and objections, although he can also refer 
     them directly to the Senate for its determination (this was 
     in fact Chief Justice Chase's practice on evidentiary motions 
     made during the Johnson trial). His rulings can be overruled 
     by majority vote of the Senators present and voting.
       The Constitution dictates that the Chief Justice acts as 
     the presiding officer during an impeachment trial of the 
     President. The extent and content of his role is subject to 
     determination by the Senate. There could be sentiment to 
     expand his powers, such as by making him the chair of a Rule 
     XI committee, on the theory that the Chief Justice will be 
     non-partisan and impartial. Other powers that might be 
     granted to the Chief could include authority to conduct pre-
     trial proceedings or to oversee settlement negotiations. If 
     the Chief Justice is perceived as impartial, his rulings on 
     evidence and other motions will carry great weight and place 
     a heavy burden on anyone seeking to overrule them. On the 
     other hand, a determined majority can substantially minimize 
     the effect of the Chief Justice on the proceedings by 
     reversing his rulings and refusing to grant him powers beyond 
     the inherent powers of the presiding officer.--[Memorandum, 
     12/28/98]


                         Role of House Managers

       The House of Representatives appoints a delegation of its 
     own members to serve as prosecutors of the impeachment. These 
     managers exhibit the articles of impeachment and perform all 
     functions normally performed by a prosecutor. They make an 
     opening and closing statement on the case, decide what 
     evidence to present and what witnesses to call, subject to 
     the Senate's decision to issue a subpoena to compel 
     attendance of involuntary witnesses. The managers lead 
     examination of witnesses they offer and cross-examine 
     witnesses called by the President's counsel. They may also 
     make procedural, evidentiary, and other motions.--
     [Memorandum, 12/28/98]


                      Role of President's Counsel

       The President may choose an attorney or agent to present 
     his defense. These attorneys perform the same functions in 
     defense of the President as the house Managers perform in 
     behalf of the impeachment. Neither the President's Counsel 
     nor the House Managers may appeal a ruling of the Chief 
     Justice. Only a member of the Senate may do that.--
     [Memorandum, 12/28/98]


                           Role of the Senate

       [The constitutional text, the Framer's understanding, and 
     our constitutional practices] Provide important anchors for 
     any impeachment inquiry, but they do not resolve all 
     questions of scope that may arise. Much remains to be worked 
     out--and only to be worked out--in the context of particular 
     circumstances and allegations.
       As Hamilton explained in the Federalist No. 65, impeachment 
     ``can never be tied down by . . . strict rules, either in the 
     delineation of the offence by the prosecutors, or in the 
     construction of it by the judges. . . .''
       After all of the legal research, we are still left with the 
     realization that the power to convict for impeachment 
     constitutes an ``awful discretion.''
       This brings us directly to the Senate's role. To state it 
     bluntly: I believe the role of the Senate is to resolve all 
     the remaining questions. Let me elaborate.
       The Senate's role as final interpreter of impeachments was 
     recognized from the beginning of the republic. For example, 
     to refer again to Joseph Story, after he devoted almost fifty 
     sections of his commentaries to various disputed questions 
     about the impeachment power, he concluded that the final 
     decision on the unresolved issues ``may be reasonably left to 
     the high tribunal, constituting the court of impeachment.''
       The court of impeachment he refers to is the United States 
     Senate. Similarly, the Federalist papers refer to Senators as 
     the judges of impeachment.
       Speaking of the Senate as the jury in impeachment trials is 
     perhaps a more common analogy these days, but the judge 
     analogy is more accurate.
       In impeachment trials, the Senate certainly does sit as a 
     finder of fact, as would a jury. But it also sits as a 
     definer of the applicable standards, as would a judge.
       The Senate, in other words, determines not only whether the 
     accused has performed the acts that form the basis for the 
     House's Articles of Impeachment, but also whether those 
     actions justify removal from office.
       Once again we find support for this view from the country's 
     history. In 2 of the first 3 impeachments brought forward 
     from the House to the Senate, the Senate acquitted the 
     accused.
       In each of the two acquittals, however, the Senate did not 
     disagree with the House on the facts. One case involved a 
     senator, William Blount, the other an Associate Justice of 
     the Supreme Court, Samuel Chase. In neither one was there any 
     question that the individuals had done the deeds that formed 
     the basis of the House's Articles of Impeachment.
       In each case, however, the Senate concluded that the deeds 
     were not sufficient to constitute valid grounds for 
     impeachment and so they acquitted.
       Eventually, then, if the current impeachment proceeds, it 
     will fall to the Senate to decide not only the facts, but the 
     law, and to evaluate whether or not the specific actions of 
     the president are sufficiently serious to warrant 
     impeachment.
       The framers intended that the senate have as its objective 
     doing that what was best for the country, taking context and 
     circumstance fully into account.
       I should try to be as clear as I can be about this point, 
     because the media discussion has come close to missing it. It 
     seems to be widely assumed that if the President committed 
     perjury, then he must be impeached and convicted.
       Conversely, you may think that unless it can be proven that 
     the President committed perjury or violated other laws, 
     impeachment cannot occur.

[[Page 2412]]

       Both statements are wrong. Not all crimes are impeachable, 
     and not every impeachable offense is a crime.
       The Senate could decline to convict even if the President 
     has committed perjury, if it concluded that under the 
     circumstances, this perjury did not constitute a sufficiently 
     serious breach of duty to warrant removal of this President. 
     On the other hand, the Senate could convict the President of 
     an impeachable offense even if it were not a violation of the 
     criminal law. For instance, if the Senate concluded that the 
     President had committed abuses of power sufficiently grave, 
     it need not find any action to amount to a violation of some 
     criminal statute.--[Speech, 10/2/98]

                           *   *   *   *   *

       The Senators have a multifaceted role that defies a simple 
     label. They act in part as a jury, which considers evidence 
     and makes the ultimate determination of whether to convict or 
     acquit the President. This role explains the limitations that 
     the rules impose on the ability of Senators to debate or 
     discuss motions and evidence in open session.
       Senators also act as judges, with authority to decide 
     whether a ruling by the Chief Justice should stand. This law 
     interpreting role is also a component of the ultimate 
     decision on conviction or acquittal. Senators must determine 
     not only whether the factual allegations against the 
     President are true, they must also determine whether the 
     facts alleged, if true, represent a high crime and 
     misdemeanor.
       Senators may also take actions that resemble those 
     typically undertaken by counsel for the parties. They may 
     propound questions (though only in writing) of witnesses or 
     of counsel; they may make objections to questions by counsel 
     or to evidence sought to be introduced; and they make any 
     motion that a party may make.
       The Senate has the power to compel the attendance of 
     witnesses by instructing the Chief Justice to issue subpoenas 
     and to enforce obedience to its orders. The Senate also has 
     authority to punish summarily contempts of and disobedience 
     to its orders, although the rules of impeachment do not 
     specify the penalties it may impose. Under the Standing Rules 
     of the Senate, the Senate can also refer a contempt citation 
     to the United States Attorney for the District of Columbia 
     for prosecution pursuant to 2 U.S.C. Sec. Sec. 191-194 for 
     criminal prosecution.--[Memorandum, 12/28/98]


                            Trial, Nature of

       The Constitution assigns the Senate the sole power to try 
     all impeachments. This power imposes upon the Senate a duty 
     to adjudicate every case in which the House of 
     Representatives impeaches a civil officer of the United 
     States. The framers were deeply concerned that impeachment 
     could become a partisan tool used to gain control and 
     influence over civil officers, and the President in 
     particular. They entrusted to the Senate the role of 
     adjudicating impeachments because the Senate's structurally 
     conferred capacity for deliberation, independence, and 
     impartiality would allow it to act as a check against 
     partisanship. The Constitution fortifies the Senate in this 
     role by providing that conviction requires a vote of two-
     thirds of the members present.
       The Constitution, however, does not define the Senate's 
     power to ``try'' impeachments and appears to leave broad 
     discretion for the Senate to interpret it as allowing 
     whatever method of inquiry and examination is best suited to 
     a given case. Justice White declared emphatically that ``the 
     Senate has very wide discretion in specifying impeachment 
     trial procedures. . . .'' The constitutional power, and 
     corresponding duty, to try impeachments does not absolutely 
     require the full Senate or a committee to take live witness 
     testimony subject to cross examination. The Senate has 
     routinely entertained and voted on motions for summary 
     adjudication. Indeed, it is difficult to imagine that the 
     Senate would be constitutionally required to hold live 
     evidentiary proceedings in every conceivable impeachment 
     case. If, for example, the House were to impeach an official 
     who is not a civil officer, it would be absurd to construe 
     the Constitution to require the Senate to go forward with an 
     evidentiary proceeding. Similarly, if the House were to 
     impeach a civil officer on the grounds of misconduct that is 
     not properly considered a high crime or misdemeanor, no 
     constitutional purpose is served by an evidentiary hearing.
       Even if an impeachment meets all of the constitutional 
     criteria to invoke a Senate trial, evidentiary proceedings 
     may be unnecessary. It is well-established that the House 
     managers charged with prosecuting the impeachment may 
     introduce the record of other proceedings as substantive 
     evidence in the Senate trial. The House managers have 
     independent discretion over their prosecution of the case, 
     and may decide to rest their case on the documentary record. 
     In addition, the impeached defendant may choose to present no 
     affirmative evidence in his defense. Where the parties have 
     decided that the documentary record is sufficiently 
     encompassing to allow adjudication, the Constitution does not 
     require the Senate to ferret out additional evidence.
       Strong support for summary adjudication as a faithful 
     discharge of the Senate's constitutional duty to try 
     impeachments can also be found in the operation of the 
     federal judiciary. The constitution guarantees ``the right of 
     trial by jury'' in ``suits at common law.'' There is a 
     tension between the right to trial by jury and summary 
     adjudication by the court. Where a federal court grants 
     summary judgment or dismisses a lawsuit, for example because 
     it fails to state a claim, there is no trial at all, let 
     alone a trial by jury. Nevertheless, the Supreme Court has 
     upheld the authority of the federal courts to grant motions 
     to dismiss and motions for summary judgment. There would seem 
     to be even less concern regarding summary adjudication in the 
     context of a Senate impeachment trial. This is because the 
     Senate acts as both judge (finder of law) and juror (finder 
     of fact) so there is no concern about the proper allocation 
     of the adjudicative function between judge and jury.
       The Constitution imposes upon the Senate a duty to try 
     impeachments so that the Senate can act as a check against 
     partisan abuse of the impeachment process. Fidelity to the 
     Constitution requires the Senate carefully to interpret the 
     law of impeachment as set forth in the Constitution and to 
     apply that law to the facts and circumstances of every 
     impeachment approved by the House of Representatives. As with 
     the federal judiciary, this adjudicative duty, however, does 
     not require the Senate to discover new evidence or to hold 
     evidentiary proceedings where the record does not warrant.--
     [Memorandum, 12/22/98]

                           *   *   *   *   *



           I. The History of Presidential Impeachment Trials

       We have had exactly one impeachment trial of a President, 
     Andrew Johnson, in 1868. This resulted in his acquittal by a 
     single vote. In 1974, the House Judiciary Committee voted to 
     send articles of impeachment with respect to President 
     Richard Nixon to the House floor, but President Nixon 
     resigned shortly thereafter, and the articles were never 
     voted on by the full House.
       However, fourteen other impeachment trials have been held 
     in the Senate over the country's history. In preparation for 
     these trials, almost all of which involved federal judges, 
     the Senate has developed a set of standing Rules of Procedure 
     and Practice for such trials, as well as a body of precedent 
     concerning questions of procedure that have arisen and been 
     answered in previous trials. These rules and precedent 
     provide a good basic outline to how the trial of President 
     Clinton will proceed in the Senate, unless they are altered 
     or amended prior to the beginning of President Clinton's 
     trial.


           II. Current Senate Rules of Procedure and Practice

       Senate procedures while hearing an impeachment are 
     strikingly different from those that operate during normal 
     legislative and executive business. Senators are combinations 
     of judges and jurors. Senators take an oath to do ``impartial 
     justice.'' They cannot debate or discuss matters in open 
     session. They are expected to commit questions to writing and 
     send them to the Presiding Officer. The Senate when sitting 
     to consider impeachment is a very different body than the 
     Senate we are used to seeing on C-SPAN.
       Major points to bear in mind:
       The trial and its rules take precedence over normal 
     business. Once the trial begins, the rules set forth a 
     schedule for continuing the trial until conclusion. The 
     fundamental provisions are Rule III, stating that the Senate 
     shall continue in session from day to day (Sundays excepted) 
     until the trial is concluded, and Rule XIII, stating that the 
     trial proceedings shall begin at 12 noon each day, unless 
     otherwise provided by the Senate.
       Majority rules. Motions and objections during the 
     proceedings are governed by majority vote.
       There are few opportunities to filibuster. Unlike the 
     normal Senate, almost all trial motions, decisions, and 
     orders are resolved under strict time limits--although these 
     time limits would not prevent a determined effort to prolong 
     the trial through repeated motions, whether by counsel or by 
     a group of Senators. In fact, during the trial itself, 
     motions, objections or challenges to rulings by the chair 
     raised by Senators (which must be submitted in writing to the 
     Presiding Officer) are voted on without debate at all, unless 
     the Senate elects to go into closed session. In that case, 
     each Senator is entitled to speak once for no more than 10 
     minutes.
       Where the impeachment Rules are silent, the Standing Rules 
     of the Senate apply.  Precedents extending back at least to 
     the Johnson impeachment support this.


      iii. how might the matter be resolved without a formal trial?

       A. The Senate's duty to try the impeachment. The 
     Constitution provides that ``the Senate shall have sole power 
     to try all impeachments.'' Some consider this provision to 
     impose a duty upon the Senate to try or adjudicate all 
     impeachments. Even if the Constitution imposes such a duty, 
     the Senate has not understood this duty to adjudicate as 
     necessarily requiring a formal trial. There is precedent for 
     the Senate considering dispositive motions that would allow 
     the Senate to render a judgment without holding a trial. (In 
     the impeachment proceedings against Judges Ritter, Claiborne,

[[Page 2413]]

     and Nixon, the Senate entertained motions to strike articles 
     of impeachment or to summarily adjudicate the matter.) 
     Although such a motion is not specifically discussed in the 
     impeachment rules, the Senate has not viewed dispositive 
     motions as seeking to suspend, modify, or amend the rules. As 
     a result, dispositive motions are ordinary trial motions 
     subject to the limits on debate set forth in the impeachment 
     rules and governed by simple majority vote.
       An additional method available to resolve the matter is 
     adjournment sine die. In the case of Andrew Johnson, the 
     Senate voted on three articles of impeachment, acquitting on 
     each. Rather than vote on the remaining eight articles, the 
     Senate simply adjourned the impeachment proceedings sine die. 
     The impeachment rules allow for a vote to adjourn sine die. 
     Adjournment sine die does not specifically pass judgment on 
     the articles of impeachment and so may not be satisfactory to 
     those who consider the Senate duty-bound to try the 
     impeachment.
       B. Different motions to adjudicate the matter without an 
     evidentiary trial. Several different motions would seem 
     possible, some drawing on analogies to judicial proceedings.
       1. A motion to dismiss would assert that the articles of 
     impeachment fail as a matter of law to state actions upon 
     which a conviction may constitutionally be based. Such an 
     assertion could be based upon the claim that the articles do 
     not state ``high crimes and misdemeanors.'' Because the 
     articles accuse President Clinton of committing perjury 
     before a grand jury and of obstructing justice (among other 
     things), a ``motion to dismiss'' would assert that such 
     actions can never support conviction for high crimes or 
     misdemeanors. Additionally, a ``motion to dismiss'' could be 
     a vehicle for the President to raise the contention that the 
     articles of impeachment lapsed when the 105th Congress 
     adjourned sine die.
       While there are no Senate rules governing the timing of 
     motions, analogy to the Federal Rules of Civil Procedure 
     would require a motion to dismiss to be made before the 
     President submits his answer to the summons, or along with 
     his answer to the summons.
       2. In contrast to the motion to dismiss, a motion for 
     summary judgment asserts (1) that the parties agree on all 
     material facts and (2) that those facts compel judgment for 
     the moving party. A party submitting a motion for summary 
     judgment is agreeing to have the dispute finally adjudicated 
     on the basis of the facts asserted in his moving papers. The 
     opposing party has the option of filing a cross motion for 
     summary judgment or of objecting that the parties are not in 
     agreement as to all material facts and that a trial is 
     required on the disputed facts. If the opposing party chooses 
     the first course of action (and this could be done by prior 
     agreement between the parties), then the Senate could enter 
     judgment in the case without holding any evidentiary trial.
       On a motion for summary judgment, the Senate by majority 
     vote could issue a judgment for the President if it concluded 
     that the undisputed facts fail to establish the existence of 
     a high crime or misdemeanor warranting the President's 
     removal from office. Because this motion rests on a view of 
     the undisputed facts in the specific case, granting the 
     President's motion for summary judgment would mean only that 
     the specific perjury and obstructions charged in these 
     articles of impeachment do not warrant conviction and removal 
     from office (or that the facts failed to establish that these 
     offenses had actually been committed). It would not imply 
     that perjury or obstruction of justice could never serve as 
     grounds adequate to impeach, convict, and remove a President 
     from office.
       3. The trial might also be ended by a motion for a directed 
     verdict. Such a motion in civil litigation is brought after 
     the plaintiff has concluded his case, and before the 
     defendant mounts a defense. The motion asserts that the 
     plaintiff's evidence is insufficient to sustain the claim, 
     and that no reasonable fact finder would disagree. Were the 
     House Managers to decide to submit the impeachment to the 
     Senate based solely on evidence already gathered by Starr, 
     the President could bring a ``motion for a directed verdict'' 
     prior to an evidentiary trial involving any live witness 
     testimony.
       4. Finally, the Senate's own precedents supply the 
     possibility of a fourth option, a motion for summary 
     disposition. Such a motion might be entertained as an 
     alternative to any of the motions just discussed, in order to 
     avoid contending with the technicalities of such motions.
       In the impeachment trial of Judge Harry Claiborne, for 
     example, the House Managers introduced a motion for summary 
     disposition. Both sides argued this motion without invoking 
     the federal rules of civil procedure or judicial opinions 
     relating to summary dispositions. The parties disputed only 
     whether the facts warranted further evidentiary proceedings 
     in the Senate or if the matter could be decided solely on the 
     basis of Judge Claiborne's conviction for tax evasion. The 
     Senate considered the motion without reference to judicial 
     standards.
       This approach is consistent with the Senate's position that 
     it is not bound by the federal rules of civil procedure. 
     Removing the motion from the technical categories and 
     requirements under those rules allows each Senator the 
     discretion to consider whether additional evidentiary 
     proceedings, including live testimony, will serve the public 
     interest.
       C. Should the Senate appoint a committee? If the matter is 
     not resolved on a summary basis, Rule XI provides that the 
     Senate can appoint a committee to ``receive evidence and take 
     testimony'' rather than having the Senate as a whole do so. 
     This procedure has been employed in the case of trials of 
     federal judges, and has been sustained by the Supreme Court. 
     Such a committee would not and could not decide the case, but 
     it could assemble the evidence submitted, prepare a 
     transcript of all testimony and submit it to the Senate. The 
     committee meetings could be televised so that noncommittee 
     Senators would be able to watch them as they occurred, and 
     videotapes could also be prepared for subsequent review. A 
     number of the early proponents of what is now Senate Rule XI 
     option are on record stating their view that such a committee 
     should not be used for a presidential trial.
       Composition of a Rule XI committee would be very important. 
     Traditionally, these committees have been composed of twelve 
     members, six from each party with the committee chair chosen 
     from the committee members in the majority party. The Chair 
     exercises the same role within the committee that the Chief 
     Justice fulfills in the full Senate. This is significant 
     because the decisions of the chair may be reversed only by a 
     majority vote. If the votes in committee are on straight 
     party lines, the ruling of the chair will be upheld in every 
     instance. A complicating factor in a presidential impeachment 
     is the requirement that the Chief Justice preside. This may 
     require that the Chief Justice serve as the chair of a Rule 
     XI committee if one is appointed. In this event, the rulings 
     of the Chief Justice would be upheld on any party-line 
     vote.--[Memorandum, 12/28/98]

                           *   *   *   *   *

       House Managers have asserted repeatedly that live witness 
     testimony will resolve discrepancies between the testimony of 
     witnesses, and therefore they ought to be called. There are 
     several points to be made against this point of view.
       Demeanor evidence is notoriously unreliable. Recall, for 
     example, Alger Hiss/Whittaker Chambers. Some people were 
     convinced by one side, some people by the other.
       Demeanor evidence is not necessarily dispositive, in any 
     event. Both witnesses can come across as reliable, honest and 
     trustworthy. Witnesses often give credible performances while 
     dissembling.
       The House Managers are poorly situated to claim the 
     necessity of hearing from live witnesses in order to resolve 
     credibility issues. The House Judiciary Committee heard from 
     no live witnesses, except Ken Starr, and yet the managers 
     have had no difficulty in deciding all credibility disputes 
     against the President or anyone giving testimony favorable to 
     his story.
       Any gains from live witnesses need to be assessed against 
     the costs. The costs will come when the Senate chamber 
     descends into the facts of the case with the specificity that 
     will come from live testimony.
       For example, one prominent disagreement that the House 
     Managers have cited is that between President Clinton and Ms. 
     Lewinsky regarding whether the President ever touched Ms. 
     Lewinsky's breasts or genitalia. If both witnesses are called 
     and reiterate their prior testimony, the Senate will 
     certainly get the opportunity to observe their demeanor. This 
     might shed some additional light on the question, but it 
     probably won't. The possibility of securing the additional 
     credibility data must be weighed against the serious negative 
     ramifications such proceedings would likely have.


                             a. indictment

       The Supreme Court engaged in a similar balancing exercise 
     in deciding Clinton v. Jones. In that case, the court held 
     that requiring the President to submit to judicial process in 
     a civil case and go through an entire civil trial would not 
     so damage the presidency as to justify interfering with the 
     ordinary judicial process that vindicates the rule of law. 
     Considering only indictment, as distinct from prosecution of 
     a criminal trial, seems to impose less of a burden on the 
     President. Indictment alone imposes no demands on the 
     President's time.
       An attempt to distinguish indictment could proceed on two 
     bases. First, the President is apt to be more concerned about 
     being criminally convicted than found civilly liable. Thus, 
     an indictment could be a greater distraction from the 
     President's duties than is a civil suit. Second, criminal 
     indictment, unlike filing a civil complaint, stigmatizes the 
     President.
       Each of these distinctions is subject to dispute. As the 
     Paula Jones suit itself demonstrates, a civil case can be 
     extremely distracting. If a criminal indictment is more 
     distracting, it seems doubtful that it is so much more 
     distracting as to be constitutionally significant. A 
     distinction based on stigma seems particularly weak in this 
     case.
       President Clinton has been impeached. Correctly or not, the 
     House of Representatives has construed this impeachment as

[[Page 2414]]

     analogous to a grand jury indictment. It is thus not obvious 
     that an actual criminal indictment would add materially to 
     the stigma the President has already suffered.
       Even accepting these grounds of distinction, the 
     independent counsel may seek a sealed indictment. A sealed 
     indictment would not be made known either publically or to 
     the President. If an indictment remains sealed until the 
     President leaves office, it is difficult to see how it could 
     either distract the President or stigmatize him.


                             b. prosecution

       Prosecution presents a different matter. Unlike an 
     indictment with nothing more, proceeding to an actual 
     prosecution would place significant physical and temporal 
     burdens on the President. Preparing for trial and then 
     actually presenting a defense would consume the President's 
     time and attention over a lengthy period. During the pendency 
     of criminal proceedings, the President would repeatedly face 
     a choice between spending the time necessary to mount a 
     meaningful defense and devoting time to fulfilling his 
     constitutional and statutory duties. Even if the President 
     were to choose to spend no time on his defense, it is 
     difficult to imagine that his mind could be fully focused on 
     his official duties.
       To so stigmatize and distract the President would seriously 
     undermine his ability to act as a check on the legislative 
     branch. It would also impose significant costs in terms of 
     the nation's standing internationally.
       The Supreme Court's decision in Clinton v. Jones could be 
     taken to support subjecting the President to criminal 
     prosecution while in office. In that case, the President had 
     argued that the civil lawsuit should be stayed until the 
     President's term in office expired. He based this position on 
     concerns that the demands of defending a civil lawsuit would 
     impermissibly interfere with his ability to discharge his 
     official duties. Admittedly, it is unlikely that defending 
     against a criminal prosecution is any more time consuming 
     than defending a civil lawsuit.
       There are, however, several crucial distinctions between a 
     civil and a criminal lawsuit. In the Jones case, the Supreme 
     Court emphasized that the burden imposed on the President 
     could be minimized through proper case management by the 
     trial judge. A court does not have the same broad array of 
     options available in a criminal proceedings. Perhaps most 
     significantly, the options for settling the suit without a 
     trial are quite different. President Clinton settled the 
     Paula Jones case by making a cash payment with no admission 
     of wrongdoing. The rough equivalent of settlement in a 
     criminal proceeding is a plea bargain. Such a ``settlement,'' 
     however, requires the defendant to admit to some criminality. 
     As such, there is far greater pressure on the president to 
     proceed to trial in a criminal prosecution as opposed to a 
     civil prosecution. Moreover, the President's attendance at a 
     civil trial is not nearly so crucial as is his attendance at 
     a criminal prosecution. The Sixth Amendment expresses the 
     constitutional commitment to allowing a criminal defendant's 
     presence at trial. Finally, consider what follows a judgment 
     in a criminal trial as opposed to a civil trial.
       The Paula Jones suit threatened the President with nothing 
     more than an assessment of monetary compensation. An adverse 
     verdict at a criminal trial threatens imprisonment. It is 
     clear that the Constitution does not allow the judiciary to 
     order the imprisonment of the President. Thus, at the very 
     least, sentencing would have to be stayed until the President 
     leaves office.
       Extending the holding in Clinton v. Jones to cover criminal 
     prosecutions is subject to an additional objection. The 
     course of events since the Court rendered that decision casts 
     significant doubt upon the conclusions the Court drew in that 
     case. In Clinton v. Jones, the Supreme Court doubted that the 
     civil lawsuit would consume much time or attention of the 
     President. It could not be plainer that this prediction was 
     wrong. While there is no reason to believe that the Court is 
     considering overruling Clinton v. Jones, there is very 
     powerful reason to apply the practical lessons we have 
     learned since that decision to any claim for extending the 
     Clinton v. Jones holding to criminal prosecutions. In light 
     of all that has occurred since that ruling, it is wildly 
     implausible to contend that a criminal proceeding against the 
     President would not significantly disrupt his ability to 
     fulfill his constitutional and statutory duties.
       Against this significant disruption is concern for the rule 
     of law. As a practical matter, it is critical to recall that 
     sentencing would be stayed until the President leaves office. 
     Given this, it is doubtful that staying the trial as well 
     would add significant concern from the standpoint of the rule 
     of law. It is important to bear in mind what the rule of law 
     requires. It demands that similarly situated citizens be 
     treated similarly. In light of the President's unique 
     constitutional role, it is error to contend that the 
     President must be treated identically to a private citizen. 
     The rule of law must encompass the fundamental law of the 
     Constitution, and account for the peculiar role of the 
     President within the constitutional structure. Accommodating 
     that role by staying criminal proceedings until the President 
     is out of office respects the rule of law as long as the 
     President is subject to criminal prosecution once out of 
     office. Under these circumstances, the President is subject 
     liability in the same way as any citizen.
       The New York Times reports that these conclusions accord 
     with the view of most scholars. According to the Times, most 
     scholars accept that the President may be indicted while in 
     office, but that he may not be prosecuted. This assessment of 
     the state of scholarship is probably accurate, but there is 
     significant dissent as to each conclusion. In other words, 
     the scholarship does not betray a consensus.


                             III. Practice

       There is very little practical experience dealing with the 
     question of indicting or prosecuting a sitting President. The 
     only precedent is the investigation of President Richard 
     Nixon. The biographer to special counsel Archibald Cox 
     reports that Cox had concluded that the separation of powers 
     forbids indicting a sitting President. Cox's successor, Leon 
     Jaworski, decided against seeking to indict President Nixon, 
     although his decision was based on prudential considerations 
     and he did not reach a certain constitutional interpretation.
       In 1972, Vice President Spiro Agnew argued to the Supreme 
     Court that a sitting Vice President could not be indicted. 
     Then-Solicitor General Robert Bork submitted an amicus brief 
     on behalf of the United States in which he argued that a 
     sitting Vice President could be impeached, but a sitting 
     President could not be. Judge Bork repeated this position 
     yesterday in an op-ed published in the New York Times.


                              IV. History

       A number of framers made statements that appear to assume 
     that the President may not be indicted while in office. In 
     The Federalist Alexander Hamilton claimed that the President 
     would be ``liable to be impeached, tried, and removed from 
     office; and would afterwards be liable to prosecution and 
     punishment in the ordinary course of law.'' In two other 
     numbers of The Federalist Hamilton repeated this sequence and 
     that criminal process comes ``after'' impeachment and 
     conviction. In none of these passages, however, is Hamilton 
     addressing the specific question of whether the President 
     could be subject to criminal process while in office. It may 
     represent no more than Hamilton's assumption as to what the 
     ordinary sequence would in fact be.
       Another framer, Gouverneur Morris, explained that the 
     Constitution vests the power to try impeachments in the 
     Senate rather than the judiciary because the judiciary would 
     ``try the President after the trial of impeachment.'' In the 
     First Congress, Vice President John Adams and Senator (later 
     Justice) Oliver Ellsworth expressed the view that ``the 
     President personally is not . . . subject to any [judicial] 
     process whatever.'' But their view was disputed, for example 
     by Senator William Maclay.
       The Supreme Court reviewed this historical record in 
     Clinton v. Jones. They concluded that history provides no 
     answer to this question. These comments reflect the view of 
     only a few, albeit influential, individuals and either were 
     not made in the context of whether a sitting President could 
     be indicted or were disputed.


                      V. Prudential Considerations

       Even if the Constitution does not prohibit indictment, that 
     does not mean there are not powerful prudential arguments 
     against indictment. Brett Kavanaugh, who was Associate 
     Independent Counsel in Ken Starr's office for three years, 
     put this argument most succinctly in a recent article he 
     published in the Georgetown Law Journal:
       The President is not simply another individual. He is 
     unique. He is the embodiment of the federal government and 
     the head of a political party. If he is to be removed, the 
     entire government likely would suffer, [and] the military or 
     economic consequences to the nation could be severe. . . . 
     Those repercussions, if they are to occur, should not result 
     from the judgment of a single prosecutor--whether it be the 
     Attorney General or special counsel--and a single jury. 
     Prosecution or nonprosecution of a President is, in short, 
     inevitably and unavoidably a political act.
       Thus, as the Constitution suggests, the decision about the 
     President while he is in office should be made where all 
     great national political judgments in our country should be 
     made--in the Congress of the United States.
       There is an additional, closely related, consideration--
     protecting Congress's constitutional impeachment power. If an 
     independent counsel can indict a sitting President, this act 
     alone tends to force Congress's hand with respect to 
     impeachment. The mere fact of an indictment is an additional 
     factor that generates some pressure to impeach and convict a 
     sitting President. That pressure is even more coercive in the 
     context of a prosecution and verdict than of indictment 
     alone.


                    VI. Department of Justice Policy

       Professor David Strauss recently argued that there is no 
     need to address the constitutional issues because the 
     independent counsel is statutorily barred from indicting a 
     sitting President. The United States Code instructs that the 
     independent counsel ``shall

[[Page 2415]]

     except where not possible comply with the written or other 
     established policies of the Department of Justice respecting 
     enforcement of the criminal laws.'' 28 U.S.C. 594(f). 
     Professor Strauss argues Judge Bork's Supreme Court brief in 
     the Spiro Agnew case established the Department's policy on 
     indicting a sitting President and that this policy is 
     confirmed in the practice of special counsels Cox and 
     Jaworski.
       This is a strong argument, but there is a response: the 
     brief in the Agnew case represents not a policy but an 
     interpretation of the Constitution. That interpretation, the 
     response would continue, has been demonstrated to be in error 
     by the subsequent decision in Clinton v. Jones. An article 
     published by Ken Starr's advisor on constitutional law, 
     Professor Ronald Rotunda, argues that Clinton v. Jones makes 
     clear what had previously been obscure--namely that a sitting 
     President may be indicted and prosecuted.--[Memorandum, 2/4/
     99]

  Mr. ABRAHAM. In light of our time constraints, I would like to focus 
my remarks today primarily on the one issue--more than any other--that 
has arisen during our deliberations: namely, whether the President 
should be convicted if we find he committed the acts alleged in the 
Articles.
  I believe this issue is not only central to the case at hand, it is 
also central to all future evaluations and applications of what we do 
here.
  In arguing for the President, White House lawyers have asserted that 
the threshold for Presidential removal must be very high--and I agree. 
At the same time, however, we must remember that there is an inverse 
relationship between the level at which we set the removal bar and the 
degree of Presidential misconduct we will accept.
  So, then, where do we set the bar?
  As we know, the Constitution says: The President, Vice President, and 
all civil Officers of the United States, shall be removed from Office 
on Impeachment for, and Conviction of, Treason, Bribery, or other high 
Crimes and Misdemeanors.
  Now it has been suggested by some that a ``high Crime'' must be a 
truly heinous crime. But that interpretation is obviously wrong. 
Treason is certainly among the most heinous crimes. But bribery is not.
  Taking a bribe, like treason, is however, a uniquely serious act of 
misconduct by a public official. That suggests a different meaning for 
``high Crime,'' one that is linked somehow to the fact that the person 
committing it holds public office.
  Alexander Hamilton's comment about the impeachment power, quoted by 
so many of us here, provides the clue. In Federalist 65, Hamilton says: 
``The subjects of its jurisdiction are those offenses which proceed 
from the misconduct of public men, or, in other words, from the 
violation of some public trust.''
  The President's lawyers invoked this line, but in my view they 
misread it. They argued that what it means is that a President's 
conduct must involve misuse of official power if he is to be removed 
from office.
  But that is not what the Constitution demands, or what Hamilton's 
comment, fairly read, suggests. Otherwise, as has been noted, we would 
have to leave in office a President or a federal judge who committed 
murder, so long as they did not use any powers of their office in doing 
so.
  Rather, as Hamilton's language connotes, and our own precedents in 
the judicial impeachment cases confirm, the connection the Constitution 
requires between an official's actions and functions is a more 
practical one: the official's conduct must demonstrate that he or she 
cannot be trusted with the powers of the office in question.
  This rule certainly encompasses official acts demonstrating unfitness 
for the office in question--but it also reaches beyond such acts.
  In my view, we need not determine the outer limits of this principle 
to decide the question before us today: whether the President's 
actions, as alleged in these Articles, constitute a violation of a 
``public trust'' as Hamilton uses the term.
  The answer to that question is plain when we consider the President's 
conduct in relation to his responsibilities.
  The President's role and status in our system of government are 
unique. The Constitution vests the executive power in the President, 
and in the President alone. That means he is the officer chiefly 
charged with carrying out our laws. Therefore, far more than any 
federal judge, he holds the scales of justice in his own hands.
  In the wrong hands, that power can easily be transformed from the 
power to carry out the laws, into the power to bend them to one's own 
ends.
  The very nature of the Presidency guarantees that its occupant will 
face daily temptations to twist the laws for personal gain, for party 
benefit or for the advantage of friends.
  To combat these temptations, the Constitution spells out--in no 
uncertain terms--that the President shall ``take care that the laws be 
faithfully executed,'' and the President's oath of office requires him 
to swear that he will do so.
  If he obstructed justice and tampered with witnesses in the Jones 
case, a federal civil rights case in which he was the defendant, the 
President violated his oath and failed to perform the bedrock duty of 
his office. He did not faithfully execute the laws.
  A President who commits these acts thereby makes clear that he cannot 
be trusted to exercise the executive power lawfully in the future, to 
handle impartially such specific Presidential responsibilities as 
serving as the final arbiter on bringing federal civil or criminal 
cases or determining the content of federal regulations--especially if, 
as will often be the case, he has a personal or a political interest in 
the outcome.
  Surely retaining a President in office under these circumstances 
constitutes exactly the type of threat to our government and its 
institutions so many have said must exist for conviction.
  That brings the President's alleged conduct squarely within the 
purview of our impeachment power, whose purpose, as described by 
Hamilton, is to deal with ``the violation of some public trust.''
  Furthermore, if the Articles' allegations are true, how can we leave 
the executive power in the hands of a President who, through his false 
grand jury testimony, even attempted to obstruct and subvert the 
impeachment process itself?
  For this particular grand jury before which the President testified 
was not only conducting a criminal investigation; it was also charged, 
under Congressional statute, with advising the House of Representatives 
as to whether it had received any substantial and credible information 
that might constitute grounds for impeachment.
  The framers placed the impeachment power in our Constitution as the 
ultimate safeguard to address misuse of the executive power.
  A President who commits perjury, intending to thwart an investigation 
that might otherwise lead to his impeachment, has, I believe, committed 
a quintessential ``high Crime.''
  Such conduct of necessity impedes, and could even preclude, Congress 
from fulfilling its constitutional duty to prevent the President from 
usurping power and engaging in unlawful conduct.
  To permit such behavior would set an unacceptable precedent, because 
it could, in the future, allow nullification of the impeachment process 
itself, rendering it meaningless.
  Hence, a President who acts to subvert what the Framers viewed as the 
ultimate Constitutional check on abuse of executive power, most 
certainly violates the public trust as defined by Hamilton.
  Throughout this discussion I have analyzed this case as though one or 
more of the underlying counts in each impeachment Article were 
established. I recognize that not everyone has reached this 
conclusion--and I confess that I have spent countless hours attempting 
to make this determination of guilt or innocence on each Article.
  However, after listening to and studying the evidence, I have 
concluded beyond any reasonable doubt that the President committed one 
or more of the acts alleged under each Article. Time does not permit me 
to fully explain the basis for my conclusions. But, in my view, that is 
where the evidence inescapably points.
  In my opinion, there is no way that the President could have 
testified as he

[[Page 2416]]

did in his Jones deposition concerning his relationship with Monica 
Lewinsky, unless he believed Ms. Lewinsky would validate his false 
statements if called as a witness.
  The President may not have explicitly told her to lie, but when he 
called her on December 17, he did say ``You can always say you were 
coming to see Betty or that you were bringing me letters.''
  To whom did he intend her to say this? They'd already agreed on the 
use of these cover stories in non-legal contexts. The only new audience 
was, clearly, the Jones court, and the President's comments that night 
were surely aimed at influencing Ms. Lewinsky's potential testimony 
before that court, if she were to be subpoenaed.
  That this was the President's intent, is confirmed by his own 
testimony in the Jones case. What did he say when asked if Ms. Lewinsky 
had come to see him? He said that Ms. Lewinsky had come to visit Betty 
Currie and perhaps deliver him papers.
  In my opinion, there is also no way you can refresh your memory by 
making assertions you know to be false to another person--as the 
President twice did to Betty Currie after that deposition. No, the 
purpose of those statements was to cause her to validate the false 
testimony he had just given, if she were to be subpoenaed.
  And finally, if you believe that was the President's intention, then 
you must conclude he committed material perjury later, in his grand 
jury testimony, when in response to the question: ``You are saying that 
your only interest in speaking with Ms. Currie in the days after your 
deposition was to refresh your own recollection?'' he answered with one 
word: ``Yes.''
  And there is more.
  Fellow Senators, none of us asked for this task, but we must live 
with the consequences of our actions, not just on this administration, 
but on our nation for generations to come.
  That responsibility cannot be shirked. It has led me to a difficult 
but inexorable decision.
  I deeply regret that it is necessary for me to conclude that 
President William Jefferson Clinton committed obstruction of justice 
and grand jury perjury as charged in the Articles of Impeachment 
brought by the House, that these are ``High Crimes and Misdemeanors'' 
under our Constitution, and that therefore I must vote to convict him 
on these charges.


                                opinion

  The President has been impeached on the grounds that he obstructed 
justice and tampered with witnesses in connection with a federal civil 
rights suit in which he was the defendant, and that he committed 
perjury before a grand jury charged with investigating whether his 
previous conduct warranted prosecution or possible impeachment. It is 
our duty to determine whether the President did what the Articles of 
Impeachment charge and, if so, whether his actions were ``high Crimes 
and Misdemeanors'' that under our Constitution should bar him from 
further service in his office.
  In considering these questions, I have done my best to imagine that I 
was deciding them, not about a President of the opposing political 
party, with whom I disagree on many issues, but about a President of my 
own party. I have tried to imagine what I would do if confronted with 
the same evidence concerning a popular Republican President whose 
policies I strongly supported. I have tried to decide the case before 
me just as I would the case of such a President.
  Let me start with the facts.
  After a great deal of listening, research and contemplation, I am 
compelled by the evidence to conclude that the President did engage in 
the conduct charged in both Articles. In reaching this conclusion, I 
rely exclusively on those elements of the case that I believe have been 
proven beyond a reasonable doubt. Because I believe these dictate my 
conclusion, I do not decide whether in an impeachment trial, the 
Constitution requires application of this highest of evidentiary 
standards, which governs in ordinary criminal cases, or whether it 
would also be proper for me to rely on any of the other conduct charged 
by the House, much of which I might well find proven under either of 
the lower civil law standards.
  Let me briefly outline the basis for my conclusions. I will start 
with the second Article, because the conduct giving rise to it actually 
occurred first.
  In my view the evidence shows beyond a reasonable doubt that, for 
over eleven months, from December 6, 1997 to November 13, 1998, when 
the President agreed to pay Paula Jones $850,000 to withdraw her sexual 
harassment lawsuit, the President engaged in a systematic course of 
obstructing justice and tampering with witnesses in Ms. Jones's case. 
There is no room for reasonable doubt that as part of this course of 
conduct the President made statements to Ms. Monica Lewinsky and Ms. 
Betty Currie that were intended to cause them to validate, through 
testimony he thought they could well be called upon to give, the false 
story he was planning to tell or had already told in his own 
deposition. These statements to Ms. Lewinsky and Ms. Currie constitute 
the second and sixth Acts of obstruction and witness tampering charged 
by the House. There is also no room for reasonable doubt that the 
President supported efforts to conceal gifts he had given to Ms. 
Lewinsky after those gifts had been subpoenaed as evidence in that 
case. That constitutes the third act of obstruction charged by the 
House.
  As to the first Article: I am convinced that the House has shown 
beyond a reasonable doubt that the President perjured himself before 
the grand jury in two instances. First, he stated that his only purpose 
in talking to Ms. Currie in the days following his Jones deposition was 
to refresh his own recollection, thereby falsely claiming to the grand 
jury that he did not intend to tamper with her potential testimony if 
she were called as a witness in the Jones case. Second, he reaffirmed 
the veracity of his Jones deposition denial of ``sexual relations'' 
with Ms. Lewinsky, under the definition of that term approved by the 
court in that case. This was not merely a ``lie about sex'' to protect 
his family. By the time of his grand jury appearance, the President had 
already acknowledged to his family his improper relationship with Ms. 
Lewinsky. Before the grand jury, the President falsely asserted the 
truth of his earlier sworn statements for the sole purpose of 
protecting himself from possible prosecution or impeachment.
  In light of these conclusions, the final overriding issue is whether 
the President's actions constitute ``high Crimes and Misdemeanors'' 
requiring his removal from office under Article II, section 4 of the 
Constitution. As has been acknowledged on both sides, reasonable people 
can differ on this question. And indeed it is only on this issue, 
whether the President must be removed, that Americans are 
consequentially divided. A decided majority of Americans agree that the 
President committed the crimes alleged in at least one of the Articles. 
And in their hearts I believe a significant majority of my colleagues 
do as well.
  The public, like us, is in disagreement over what the consequences 
should be. A clear majority oppose removal, but for a variety of 
reasons--ranging from a feeling that the President does not deserve to 
be removed, to a concern not to endanger current economic conditions, 
to a preference for the President over the Vice President, to the 
belief that, because the President has less than two years remaining in 
this term, removing his is not worth the disruption it would cause.
  These considerations would legitimately play a role in our decision 
if we were functioning as a legislative body in a parliamentary system 
deciding whether to retain the current government. But that is not our 
role here. The Constitution requires the Senate to sit not in an 
ordinary legislative capacity on this matter, but as a court of 
impeachment. That is why, at the beginning of a trial on Articles of 
Impeachment, Article I, section 3 of the Constitution states that 
Senators must take a special oath to do impartial justice. Accordingly, 
it is my view that our decision cannot be based on other 
considerations, but instead must be based on what the Constitution 
dictates, and taken with a view toward

[[Page 2417]]

the precedent we will establish regarding what is acceptable 
Presidential behavior.
  In arguing for the President, White House lawyers have asserted that 
the threshold for Presidential removal must be very high--and I agree. 
At the same time, however, we must remember that there is an inverse 
relationship between the level at which we set the removal bar and the 
degree of Presidential misconduct we will accept.
  So, then, where do we set the bar? What does the Constitution 
dictate? What precedent should we set for the ages?
  Let us start with the text of the Constitution, which states simply: 
``The President, Vice President and all civil Officers of the United 
States shall be removed from Office on Impeachment for, and Conviction 
of, Treason, Bribery, or other high Crimes and Misdemeanors.''
  The first interpretation that has been suggested is that a ``high 
Crime'' must be a truly heinous crime. But that is obviously wrong. 
Treason is certainly among the most heinous crimes. But bribery is not.
  Taking a bribe, like treason, is however uniquely serious misconduct 
by a public official. That suggests a different meaning for ``high 
Crime,'' one that is linked somehow to the fact that the person 
committing it holds public office.
  A comment by Alexander Hamilton in Federalist 65 provides the clue.
  In Federalist 65, speaking of impeachment, Hamilton says: ``The 
subjects of its jurisdiction are those offenses which proceed from the 
misconduct of public men, or, in other words, from the violation of 
some public trust.''
  The President's lawyers invoke this line, but they misread it. They 
argue that what it means is that to require removal, a President's 
conduct must involve misuse of official power.
  But that is not what the Constitution demands, or what Hamilton's 
comment fairly read suggests. Otherwise we would have to leave in 
office a President or a federal judge who committed murder, so long as 
they did not use any powers of their office in doing so. Rather, as 
Hamilton's language connotes, and our own precedents confirm, the 
connection the Constitution requires between the official's actions and 
functions is a more practical one: the official's conduct must 
demonstrate that he or she cannot be trusted with the powers of the 
office in question. This rule encompasses official acts demonstrating 
unfitness for the office in question, but it also reaches beyond such 
acts.
  We need not determine the outer limits of its principle to decide the 
question before us today: whether the President's actions here 
constitute a violation of a ``public trust'' as Hamilton uses the term. 
The answer to that question is plain when we consider his conduct in 
relation to his responsibilities.
  The President's role and status in our system of government are 
unique. The Constitution vests the executive power in the President, 
and in the President alone. That means he is the officer chiefly 
charged with carrying out our laws. Therefore, far more than any 
federal judge, he holds the scales of justice in his own hands.
  In the wrong hands, that power can easily be transformed from the 
power to carry out the laws into the power to bend them to one's own 
ends. The very nature of the Presidency guarantees that its occupant 
will face daily temptations to twist the laws for personal gain, for 
party benefit or for the advantage of friends in or out of power. To 
combat these temptations, the Constitution spells out in no uncertain 
terms that the President shall ``take care that the laws be faithfully 
executed,'' and his oath of office requires him to swear that he will 
do so.
  By obstructing justice and tampering with witnesses in the Jones 
case, a federal civil rights case in which he was the defendant, the 
President violated his oath and failed to perform the bedrock duty of 
his office. He did not faithfully execute the laws. He thereby made 
clear that he cannot be trusted to exercise the executive power 
lawfully in the future, to handle impartially such specific 
Presidential responsibilities as serving as the final arbiter on 
bringing federal civil or criminal cases or determining the content of 
federal regulations--especially if, as will often be the case, he has a 
personal or political interest in the outcome.
  Surely retaining a President in office under these circumstances 
constitutes the type of threat to our government and its institutions 
so many have said must exist for conviction. That brings his conduct 
squarely within the purview of our impeachment power, whose purpose, as 
described by Hamilton, is to deal with ``the violation of some public 
trust.''
  Obstruction of justice, witness tampering, and grand jury perjury are 
serious federal crimes. How do we explain to others who commit them, 
many out of motives surely as understandable as the President's, that 
while the President stays in the White House, his Department of Justice 
is trying to send them to prison? How can we expect ordinary citizens 
to accept that the President can remain in office after lying 
repeatedly under oath in court proceedings, but that it is still their 
duty to tell the truth?
  Finally, how can we leave the executive power in the hands of a 
President who, through his false grand jury testimony, has even 
attempted to obstruct and subvert the impeachment process itself? For 
the particular grand jury before which the President testified falsely 
was not only conducting a criminal investigation; it was also charged, 
under Congressional statute, with advising the House of Representatives 
whether it had received any substantial and credible information that 
might constitute grounds for impeachment.
  The framers placed the impeachment power in our Constitution as the 
ultimate safeguard to address misuse of the executive power. A 
President who commits perjury, intending to thwart an investigation 
that might otherwise lead to his impeachment, has committed a 
quintessential ``high Crime.'' This crime impeded, and could have even 
precluded, Congress from fulfilling its duty to prevent the President 
from usurping power and engaging in unlawful conduct. To permit such 
behavior could, in effect, allow nullification of the impeachment 
process itself, rendering it meaningless. Hence, a President who acts 
to subvert what the Framers viewed as the ultimate Constitutional check 
on abuse of executive power, most certainly violates the public trust 
as defined by Hamilton.
  To allow a President to continue in office after committing these 
acts would place the Presidency above the law and grant the President 
powers close to those of a monarch. This, in turn, presents a clear and 
present danger to the rule of law, the birthright of all Americans. 
Indeed, we Americans take the rule of law so thoroughly for granted 
that while it has been much invoked in these proceedings, there has 
been little discussion of what it means or why it matters. Simply put, 
the rule of law is the guarantee our system makes to all of us that our 
rights and those of our countrymen will be determined according to 
rules established in advance. It is the guarantee that there will be no 
special rules, treatment, and outcomes for some, but that the same 
rules will be applied, in the same way, to everyone.
  If America's most powerful citizen may bend the law in his own favor 
with impunity, we have come dangerously close to trading in the rule of 
law for the rule of men. That in turn jeopardizes the freedoms we hold 
dear, for our equality before the law is central to their protection.
  We are a great nation because, in America, no man--no man--is above 
the law. Americans broke from Great Britain because the mother country 
claimed it had a right to rule its colonies without restraint, as it 
saw fit. Our tradition of chartered rights--rights laid down in laws, 
which no king, Parliament or other official could breach--culminated in 
our Constitution. That Constitution, which is itself only a higher law, 
protects us from tyranny. Once the law becomes an object of convenience 
rather than awe,

[[Page 2418]]

that Constitution becomes a dead letter, and with it our freedoms and 
our way of life.
  Mr. Chief Justice, my grandparents did not come to this country 
seeking merely a more convenient, profitable life. They came here 
seeking the freedoms that were given birth on Bunker Hill and in the 
Convention at Philadelphia.
  I know some people mock as self-righteous or feckless the piety many 
Americans have toward their heritage and toward the Constitution that 
guards their freedom. But I will never forget that it is not the 
powerful or those favored by the powerful who need the law's 
protection.
  If we set a precedent that allows the President--the chief magistrate 
and the most powerful man in the world--to render the judicial process 
subordinate to his own interests, we tell ordinary citizens, like my 
grandparents, that Americans are no longer really equal in the eyes of 
the law. We tell them that they may be denied justice. And we thereby 
forfeit our own heritage of constitutional freedoms.
  None of us asked for this task, but we must live with the 
consequences of our actions, not just on this administration, but on 
our nation for generations to come. That responsibility cannot be 
shirked. It has led me to a difficult but inexorable decision. I deeply 
regret that it is necessary for me to conclude that President William 
Jefferson Clinton committed obstruction of justice and grand jury 
perjury as charged in the Articles of Impeachment brought by the House, 
that these are ``high Crimes and Misdemeanors'' under our Constitution, 
and that therefore I must vote to convict him on these charges.
  Ms. MIKULSKI. Mr. Chief Justice, I will vote against the articles of 
impeachment accusing the President of the United States of perjury 
before a grand jury and obstruction of justice.
  The Republican House Managers have asked the Senate to remove the 
President from office, overturning a free and fair election in which 
100 million Americans cast their vote. Short of voting on whether or 
not to send our sons and daughters to war, I can envision no more 
profound decision.
  I have taken this responsibility as seriously as anything I have done 
in my life. A little over a month ago, I escorted the Chief Justice 
into this chamber and stood with my colleagues when we took a 
collective oath, as an institution, to render impartial justice in this 
trial. Then, we individually signed our names and pledged our honor to 
faithfully fulfill our oath. That was an indelible and profound moment.
  I have sought to fulfill both responsibilities--to be impartial and 
to render justice. I have sought to be impartial, which I view as a 
test of character and will. And I have sought to pursue justice, which 
to me includes the responsibility to perform the homework--do the 
reading, review the evidence and weigh the facts.
  I have listened carefully, and with an open mind, to the 
presentations of the Republican House Managers and the President's 
Counsel. I have reviewed the evidence. I have read all of the key 
witnesses' testimony before the grand jury. I have intensely studied 
the law pertaining to perjury and obstruction of justice, discussed the 
issue with respected lawyers, developed an appropriate standard of 
proof, and reviewed the House testimony of Republican and Democratic 
former prosecutors for their views on the charges. Finally, I have read 
what our nation's founders wrote about impeachment during those months 
in 1787 when the Constitution was formed, and considered the writings 
of many of today's finest scholars.
  As I reviewed the historical underpinnings of impeachment, I have 
reflected on the intentions of the Founding Fathers who developed our 
famed system of ``checks and balances''--our Constitution. That system, 
designed with the precision of Swiss watchmakers and the concern of 
loving parents, has served our nation very well over the last 200 years 
and served as a guidepost for nations around the world as they 
struggled to establish democracies.
  I wondered what the Framers of the Constitution would think of this 
trial--how they would counsel us. In fact, we can use their rationale 
and their framework to guide us as we reach conclusions about the 
evidence and as we determine whether that evidence merits removing a 
president from office.
  Using all this as my guide, I have concluded that the evidence 
presented by the House Managers does not meet a sufficient standard of 
proof that President Clinton engaged in the criminal actions charged by 
the House. I conclude that the President should not be removed from 
office.
  In coming to that conclusion, I have used the highest legal standard 
of proof--``beyond a reasonable doubt,'' which is required in federal 
and state criminal trials. I believe that removing a president is so 
serious, and such an undeniably tumultuous precedent to set in our 
nation's history, that we should act only when the evidence meets that 
highest standard. The United States Senate must not make the decision 
to remove a President based on a hunch that the charges may be true. 
The strength of our Constitution and the strength of our nation dictate 
that we be sure--beyond a reasonable doubt.
  The House Managers' case is thin and circumstantial. It doesn't meet 
the standard of ``beyond a reasonable doubt.''
  The first article of impeachment, charging the president perjured 
himself before the grand jury, has not been proven beyond a reasonable 
doubt.
  For instance, the House Managers claim that President Clinton 
committed perjury when he used the term ``on certain occasions'' to 
define the number of times he had inappropriate contact with Ms. 
Lewinsky. The Managers believed the term ``on certain occasions'' meant 
fewer than the 11 times that were counted by Federal investigators and 
they labeled it ``a direct lie.''
  But there is no clear numeric or legal definition of ``certain 
occasions.'' To disagree about the definition of ``certain occasions'' 
is not perjury. And it is not material whether it was 11 times or ``on 
certain occasions.'' President Clinton admitted the relationship, which 
was the material point.
  The Republican House Managers also claimed President Clinton 
committed perjury by not recalling the exact date, time, or place of 
events that occurred two years before. This was because other witnesses 
recalled things slightly differently. I do not believe this is or can 
be perjury because well-established court standards state that ``the 
mere fact that recollections differ does not mean that one party is 
committing perjury.''
  Overall, the House Manager's assertions rest on Mr. Clinton's vague 
and unhelpful responses to the Independent Counsel's questions. While 
those responses may be frustrating to the Independent Counsel, the 
Republican House Managers, and, perhaps the American public, they are 
not perjurious as defined by law.
  Similarly, the case presented by the Republican House Managers has 
not presented sufficient direct evidence to prove beyond a reasonable 
doubt that the President obstructed justice. Instead, the House 
Managers relied on extensive conjecture about what the President may 
have been thinking. In fact, there is direct and credible testimony by 
multiple witnesses that is directly contrary to the House Managers 
conjecture, leaving ample room for doubt.
  The Republican House Managers also did not prove beyond a reasonable 
doubt that there was a causal connection between Ms. Lewinsky's job 
search and the affidavit she gave in the Jones lawsuit. Ms. Lewinsky 
testified clearly and repeatedly that she was never promised a job for 
her silence. That testimony is not challenged by any other witness. In 
fact, other witnesses support that testimony and her most recent 
deposition by the House Managers confirms it.
  From the outset of this trial, I established that I would use a two-
tier analysis for my deliberations. First, I would determine whether 
the evidence proved beyond a reasonable doubt that the President was 
guilty of the charges. Second, I would then determine whether or not 
those charges rose

[[Page 2419]]

to the level of ``high crimes and misdemeanors''--the standard required 
by the Constitution for conviction and removal of a President.
  Since my analysis of the charges brought by the Republican House 
Managers determined that they had not been proven beyond a reasonable 
doubt, the question of determining high crimes and misdemeanors is, I 
believe, moot. I will say, however, that I am again taken by the wisdom 
and prescience of the Founding Fathers in addressing this point. I, 
like many, have read and re-read the work of Alexander Hamilton with 
particular interest. On March 7, 1788, he wrote ``Federalist 65,'' 
outlining the reasons for, and consequences of, an impeachment trial in 
the Senate. In that writing, Mr. Hamilton asserted that the proper 
subject of an impeachment trial would be ``the abuse or violation of 
some public trust . . . as they relate to injuries done immediately to 
the society itself.''
  I believe it is clear from those words, and the words of others who 
drafted the Constitution, that impeachment was not intended to be used 
for an act that did not meet that standard. It was not meant to be used 
for punishment of the President. I believe that the Framers intended 
the last resort of impeachment to be used when a presidential action 
was a clear offense against the institutions of government. I do not 
believe that President Clinton's conduct, as wrong as it was, rises to 
that level.
  I wish to choose my words judiciously for I believe the behavior of 
the President was wrong, reckless and immoral. President Clinton has 
acknowledged that his behavior has harmed his family and the nation, 
and that his behavior, in the end, is what brought us to this day. Mr. 
Clinton engaged in an illicit, inappropriate relationship and tried to 
hide it out of shame and the fear of disgrace. Those actions are 
clearly deplorable and should be condemned in the most unequivocal 
terms. But the evidence simply and profoundly does not prove criminal 
wrongdoing.
  Certainly, the impeachment process has been a difficult period in our 
nation's history. It has challenged the strength of our institutions 
and the strength of our nation. But, Mr. Chief Justice, I still find 
reason for tremendous hope.
  First, I find hope in the unflagging commitment of the United States 
Senate to do the right thing for the right reason. I am proud to be a 
part of this Senate that was ably led by Mr. Lott and Mr. Daschle and 
conducted this trial in a serious, bipartisan, reflective, and 
cooperative spirit.
  I am reassured that Alexander Hamilton and other constitutional 
Framers saw fit to charge the Senate with the responsibility to try 
such a case. I hope and believe that we have fulfilled their 
expectations to be a sufficiently dignified and independent tribunal, 
one that could preserve ``unawed and uninfluenced, the necessary 
impartiality'' between the parties in this trial. I would like to thank 
my colleagues on both sides of the aisle for meeting their 
responsibilities with such commitment, honor, professionalism, and 
concern for this body and the judgment of history. I will modestly 
presume that history will say we discharged our duty well.
  I will never forget one of our finest hours--when, early in the 
process, we convened in the old Senate Chamber to deliberate. I had the 
honor to preside, with my Republican colleague Mr. Mack, over that 
colloquy in which we established a process that would maintain the 
dignity of the Senate and provide a framework for conducting the trial. 
That precedent set an important tone for the proceedings that followed 
and I believe that the good will generated in that historic meeting 
held throughout our deliberations.
  Finally, I also find tremendous hope in the growing national 
consensus that we must move forward together to address pressing 
problems in our neighborhoods, communities and cities. Over the last 
month, the nation has cried out for a focus on education, preserving 
Social Security and Medicare, investing in our economy, and providing 
global leadership.
  We should now heed those calls. I will not say that now we must 
``return to the nation's business.'' In fact, as difficult and time 
consuming as this process has been, I believe fulfilling our duty to 
``render impartial justice'' has been the nation's business. I am 
hopeful that with the conclusion of this trial, we may all return to 
the work of making our nation more prosperous, our families stronger, 
our children better educated, our communities more cohesive, and our 
world safer at home and abroad. I believe we will move on knowing that 
we have fulfilled our constitutional responsibilities with diligence 
and honor.
  Thank you.
  Mr. GRAMS. Despite the handicaps placed upon the House managers, I 
feel they did an excellent job in presenting their case in support of 
the articles of impeachment and laying out the facts. I listened to 
them carefully, as I listened to the White House Counsel and the 
President's lawyers in their vigorous defense of William Jefferson 
Clinton.
  I have heard some of my colleagues say that it was one particular 
fact or incident that led them to their conclusion. That was not the 
case with me. I needed to listen to all the facts throughout the trial, 
before I truly could decide how I would vote.
  But after carefully weighing all the evidence, all of the facts, and 
all the arguments, I have come to the conclusion--the same conclusion 
reached by 84% of the American public--that President Clinton committed 
perjury and wove a cloth of obstruction of justice.
  Lead presidential counsel Charles Ruff said in testimony before the 
House Judiciary Committee, and here during the Senate trial, that fair-
minded people could draw different conclusions on the charges.
  I disagree in one aspect, but agree in another. I personally feel 
there is no room to disagree on whether the President is guilty of the 
charges in both Article One and Article Two; he committed perjury and 
he clearly obstructed justice. But I agree we will differ on whether 
these charges rise to the level of high crimes which dictate 
conviction. Again, I believe they do and have voted yes, on both 
articles.
  The President was invited by letter to come and testify before the 
Senate. As the central figure in this trial, he alone knows what 
happened, and if truthful, he could have addressed the compelling 
evidence against him. He refused.
  It has been said that many have risked their political futures during 
this process. Perhaps--yet I will not hesitate telling constituents in 
my state how and why I voted the way I did. With a clear conscience, I 
will stand in their judgment and I will live with and respect whatever 
their decision on my political future may be.
  But remember, those who vote to acquit--that is, to not remove this 
President--will have the rest of their political lifetimes to explain 
their votes. They also will be judged.
  Collectively too, we will have to await what history will say about 
this trial and how it was handled. Will this Senate be judged as having 
followed the rule of law; that is, deciding this case on the facts, or 
will we be remembered as the rule-making body who deferred to public 
sentiment? The polls say this President is too popular to remove. If we 
base our decision on his popularity rather than the rule of law, we 
would be condoning a society where a majority could impose injustice on 
a minority group, only because it has a larger voice. A rule of law is 
followed so that justice is done and our Constitution is respected, 
regardless of popularity polls.
  The foundation of our legal system, I believe, is at risk, if the 
Senate ignores these charges. The constitutional language of 
impeachment for judges is the same as for the President. Judges are 
removed from the bench for committing perjury, and also face criminal 
charges, as do ordinary citizens. We must not accept double standards.
  The prospect of such a double standard was raised countless times by 
the House Managers. Consider the irony created by a two-tiered standard 
for perjury. A President commits perjury, yet remains in office. But 
would a cabinet member who committed perjury be

[[Page 2420]]

allowed to keep his or her job? Would a military officer who committed 
perjury be allowed to continue to serve? Would a judge who committed 
perjury remain on the bench? They would not, and yet our President, the 
nation's chief law enforcement officer, is allowed to keep his office 
after having committed the same offense.
  Again, in my view, this is a double standard and is completely 
unacceptable for a nation that prides itself on a legal system which 
provides equal justice under the law.
  As to our final duty, the final vote, I believe the so-called ``so 
what'' defense has controlled the outcome. ``He did it, but so what'' 
we have heard it a thousand times from a hundred talking heads. We have 
heard it from our colleagues, too, in both chambers. Well, for this 
Senator, ``so what'' stops at perjury and obstruction of justice. I 
will cast my vote with sorrow for the President, his family, and for 
the toll this trial has taken on the nation, but with certainty that it 
is the only choice my conscience and the Constitution permits me to 
make.
  Mr. BREAUX. Mr. Chief Justice and my colleagues. Thank you very much, 
Mr. Chief Justice, as so many people have said before, for serving with 
your patience and your fairness. If you care to extend your time with 
us, I would invite you to help preside over my Medicare commission--if 
you would like to help out in that regard.
  I also want to acknowledge and thank our two leaders for the fairness 
and the patience that they both have exhibited to all of us and the 
good job they have done keeping this body together, which I happen to 
think is extremely important as well.
  I think it is always very difficult for us to sit in judgment of 
another human being, and particularly is that very difficult when it 
involves moral behavior, or moral misbehavior as this case essentially 
is all about. I was always taught that there was a higher authority 
that made those types of decisions, but here we are, and that is part 
of our task.
  I think it is also especially difficult to make those kinds of 
decisions when they involve someone you know and someone you actually 
deal with in a relatively close relationship, almost on a day-to-day 
basis. It is difficult when it is someone that you can in private kid 
with or that you in private can joke with, as is the case for many of 
us with this accused whom we now sit in judgment of.
  I know this President and he is someone I have admired for his 
political accomplishments and I have admired for what he has been able 
to do for this country, but also quite well recognize the human 
frailties that he has, as all of us have. If this were a normal trial, 
many of us wouldn't even be here; we would have been excused a long 
time ago; we would never have been selected to sit in judgment of this 
President. We would have been excused because of friendship, we would 
have been excused because we know him, we would have been excused 
because we campaigned for him and with him, or we would have been 
excused for the opposite reasons--because he is a political adversary 
that we have campaigned against, that we have given speeches against, 
that we disagree with publicly on just about everything he stands for. 
None of us would find ourselves sitting in judgment of this individual 
if it were a normal trial. But, then again, it is not a normal trial, 
and these certainly are not normal times.
  For many of us, this is the first time we have ever had a President 
who has sort of been a contemporary--certainly for me, and many of my 
colleagues are in that same category. I was here, as were many of you 
in my generation, when President Johnson was here, and served 
throughout the time of President Johnson all the way through President 
Bush. I have met them all and knew them all to various degrees but 
never in the same way that I and many of us know this particular 
President, because he really is in the same generation as we are. I 
think we have that feeling, when we talk with him. I mean, many times I 
feel he knows what I am going to say before I say it and he understands 
what I am trying to convey to him before I even have said anything 
about the subject matter.
  I think that many of us have had, with him, the same type of life 
experiences, and that our lives have been shaped by similar events 
because we really are of the same generation. So it is very difficult, 
coming from that position and now sitting in judgment of a person for 
his moral behavior. So I think we have to be extremely careful, those 
of us who come from this side with that personal friendship and 
relationship, as well as those who come from the opposite side, as a 
political adversary. It is very difficult to set those emotions aside 
and say I am going to be fair in judging someone I just cannot stand 
politically, that I don't agree with on anything, and I wish he wasn't 
my President; in fact, I supported someone else. So, it is very 
difficult for all of us to try to set that aside and come to an honest 
and fair and decent conclusion.
  I think the American people have been able to do that. I think they 
have had a good understanding of what this case is about from the very 
beginning. They understood what it was about before the trial ever 
started, they understood what it was about during the trial, and I 
think they understand what it is all about after the trial. I think 
they understand what happened. I think they know when it happened, they 
know where it happened, and they know what was said about it. I think 
that they were correct from the very beginning.
  What we really have is a middle-aged man, who happens to be President 
of the United States, who has a sexual affair with someone in his 
office, and that when people started finding out about it, he lied 
about it, tried to cover it up, tried to mislead people about what 
happened. I would daresay that this is not the first time in the 
history of the world that this has ever happened. I daresay it probably 
will not be the last time that it will happen. It is probably not the 
first time it has happened in this city.
  All of that does not make it right; it does not make it acceptable. 
It does not make it excusable. It cannot be condoned and it cannot be 
overlooked. Actions that are wrong have consequences, and now the 
consequences must be determined by the Senate.
  The question here is not really whether anything wrong was done. For 
heaven's sakes, everybody knows that what was done was clearly wrong. 
It was unacceptable. It was embarrassing. It was indefensible and any 
other adjective you can possibly think of to really describe it. But 
that is not really the question before us, and we can all agree on 
that. I think the question is not even whether this was perjury or 
whether it was obstruction of justice under the terms of the 
Constitution.
  I think the only question before us is whether what happened rises to 
the highest constitutional standards of high crimes and misdemeanors 
under the Constitution, justifying automatic removal of this President 
from the office of President.
  I have concluded that the Constitution was designed very carefully to 
remove the President of the United States for wrongful actions as 
President of the United States in his capacity as President of the 
United States and in carrying out his duties as President of the United 
States. For wrongful acts that are not connected with the official 
capacity and duties of the President of the United States, there are 
other ways to handle it. There is the judicial system. There is the 
court system. There are the U.S. attorneys out there waiting. There may 
even be the Office of Independent Counsel, which will still be there 
after all of this is finished.
  But we here cannot expand the Constitution in this area. I think 
history supports my position. I will cite you just a quick two 
examples. Senator Slade Gorton earlier spoke about the situation with 
the Secretary of the Treasury, Alexander Hamilton. As Secretary, he was 
having an affair with a woman here in this city and they found out 
about it. He was paying off the husband of the wife that he was having 
an affair with. He was trying to get her to burn the evidence, which 
were letters that he had sent, to try to cover it up--

[[Page 2421]]

criminal acts. But the Congress that was investigating him, came to the 
conclusion that the behavior was private. It was wrong, it was 
terrible, it was criminal, but it was private behavior and he was not 
impeached. Not because, I think, as Slade tried to say, that he wasn't 
impeached because he admitted it, he only admitted it when he got 
caught. But he was not impeached because they decided that it was 
essentially private behavior. That was in 1792, and Adams and the 
Founding Fathers were here at that time and they came to that 
conclusion.
  More recently, the situation with President Richard Nixon, I think, 
is a clear example of what we are struggling with here, to find this 
connection between official duties and what he did. One of the articles 
that they accused President Nixon with was that he had, not once, but 
four times filed fraudulent income tax returns under the criminal 
penalty of perjury--that he deducted things that he should not have 
deducted and that he didn't report income that should have been 
reported. By a 26-to-12 vote, the House Judiciary Committee said, among 
other things, that ``the conduct must be seriously incompatible with 
either the constitutional form and principles of our Government or the 
proper performance of the constitutional duties of the President's 
office.'' They said that it did not demonstrate public misconduct, but 
rather private misconduct that had become public. I think the situation 
today is very similar.
  These are clear examples both in the beginning of our country's 
history and very recently about the need for this nexus or connection 
between the illegal acts and the duties of the office of the President.
  Let me conclude by saying I am voting not to convict and remove. But 
that is not a vote on the innocence of this President. He is not 
innocent. And by not voting to convict we can't somehow establish his 
innocence. If the standard of removal was bad behavior, he would be 
gone. I mean there would probably be no disagreement about that. But 
that is not the standard.
  I urge a ``no'' vote on conviction and removal and ask our colleagues 
to join in a bipartisan, strong, clear censure resolution and spell out 
what happened and where it happened and when it happened and what was 
said about what happened so that history will be able to, forever, look 
at that censure resolution and study it and learn from what we do 
today. That, my colleagues, I think is an appropriate and a proper 
remedy.
  Thank you.
  Mr. DOMENICI. I have listened carefully to the arguments of the House 
Managers and the counter-arguments by the White House counsel during 
this impeachment trial. I have taken seriously my oath to render 
impartial justice.
  While the legal nuances offered by both sides were interesting and 
essential, I kept thinking as I sat listening that the most obvious and 
important but unstated question was: What standard of conduct should we 
insist our President live up to?
  Only by taking into account this question do I believe that we in the 
Senate can properly interpret our Founding Fathers' impeachment 
criteria comprised of ``bribery, treason or other high crimes and 
misdemeanors.'' Clearly, the Constitution recognizes that a President 
may be impeached not only for bribery and treason, but also for other 
actions that destroy the underlying integrity of the Presidency or the 
``equal justice for all'' guarantee of the Judiciary.
  All reasonable observers admit that the President lied under oath and 
undertook a substantial and purposeful effort to hide his behavior from 
others in order to obstruct justice in a legal proceeding. My good 
friends and Democratic colleagues, Senators Joe Lieberman, Daniel 
Patrick Moynihan, Bob Kerrey, Diane Feinstein, and Robert Byrd, among 
others, have bluntly acknowledged publically that the President lied, 
misled, obstructed, and attempted in many ways to thwart justice's 
impartial course in a civil rights case. The sticking point has been: 
Does this misbehavior rise to the level of impeachable offenses?
  I have concluded that President Clinton's actions do, indeed, rise to 
the level of impeachable offenses that the Founding Fathers envisioned.
  I am not a Constitutional scholar, as I have told you before. But, 
more than 200 years ago, Chief Justice of the Supreme Court John Jay 
summed up my feelings about lying under oath and its subversion of the 
administration of justice and honest government:

       Independent of the abominable insult which Perjury offers 
     to the divine Being, There is no Crime more pernicious to 
     Society. It discolours and poisons the Streams of Justice, 
     and by substituting Falsehood for Truth, saps the Foundations 
     of personal and public rights. . . . Testimony is given under 
     solemn obligations which an appeal to the God of Truth 
     impose; and if oaths should cease to be held sacred, our 
     dearest and most valuable Rights would become insecure.

  Lying under oath is an ``insult to the divine Being . . . It 
discolours and poisons the Streams of Justice . . . and . . . saps the 
Foundations of personal and public Rights.''
  How can anyone, after conceding that the President lied under oath 
and obstructed justice, listen to this quotation and not conclude that 
this President has committed acts which are clearly serious, which 
corrupt or subvert the political and government process, and which are 
plainly wrong to any honorable person or to a good citizen?
  We must start by saying that this trial has never been about the 
President's private sex acts, as tawdry as they may have been.
  This trial has been about his failure to properly discharge his 
public responsibility. The President had a choice to make during this 
entire, lamentable episode. At a number of critical junctures, he had a 
choice either to tell the truth or to lie, first in the civil rights 
case, before the grand jury and on national television. Each time he 
chose to lie. He made that fateful choice.
  Truthfulness is the first pillar of good character in the Character 
Counts program of which I have been part of establishing in New Mexico. 
Many of you in this chamber have joined me in declaring the annual 
``Character Counts Weeks.'' This program teaches grade school 
youngsters throughout America about six pillars of good character. 
Public and private schools in every corner of my state teach children 
that character counts; character makes a difference; indeed, character 
makes all the difference.
  Guess which one of these pillars comes first? Trustworthiness. 
Trustworthiness.
  So what do I say to the children in my state when they ask, ``Didn't 
the President lie? Doesn't that mean he isn't trustworthy? Then, 
Senator, why didn't the Senate punish him?''
  Let me quote one of the most critical passages from Charles L. Black, 
Jr., and his handbook on impeachment, one of the seminal works on the 
impeachment process. He ponders this question: what kinds of non-
criminal acts by a President are clearly impeachable? He concludes that 
``high crimes and misdemeanors'' are those kinds of offenses which fall 
into three categories: ``(1) which are extremely serious, (2) which in 
some way corrupt or subvert the political and governmental process, and 
(3) which are plainly wrong in themselves to a person of honor, or to a 
good citizen, regardless of words on the statute books.''
  Well, there you have it in my judgment. The President lied under oath 
in a civil rights case, he lied before a grand jury and he lied on 
national television to the American people.
  Regarding Article II, obstruction of justice the House Managers 
proved to my satisfaction the following facts:
  (1) The President encouraged Monica Lewinsky to prepare and submit a 
false affidavit; (2) He encouraged her to tell false and misleading 
cover stories if she were called to testify in a civil rights lawsuit; 
(3) He engaged in, encouraged or supported a scheme to conceal his 
gifts to Monica Lewinsky that had been subpoenaed in the civil rights 
lawsuit; (4) He intensified and succeeded in an effort to find Monica 
Lewinsky a job so that she would not testify truthfully in the civil 
rights lawsuit; (5) He gave a false account of his relationship with 
Monica Lewinsky to Betty Currie in order to influence

[[Page 2422]]

Ms. Currie's expected testimony in the civil rights lawsuit; (6) At his 
deposition in a Federal civil rights action against him, William 
Jefferson Clinton allowed his attorney to make false and misleading 
statements to a Federal judge characterizing an affidavit, in order to 
prevent questioning deemed relevant by the judge. Such false and 
misleading statements were subsequently called to the attention of the 
judge by his attorney; (7) He lied to John Podesta, Sidney Blumenthal, 
Erskine Bowles and other White House aides regarding his relationship 
with Monica Lewinsky to influence their expected testimony before the 
Federal grand jury.
  In this day and age of public yearning for heroes, we criticize 
basketball, football and baseball players, and actors and singers who 
commit crimes or otherwise fail to be ``good role models.'' One of 
those celebrities said a few years ago that he was only a basketball 
player, not a role model. He said in essence: ``Want a role model, look 
to the President.''
  Do not underestimate, my friends, the corrupting and cynical signal 
we will send if we fail to enforce the highest standards of conduct on 
the most powerful man in the nation.
  Finally, I want to address a question that my good friend, Senator 
Byrd, raised over the weekend in a television show. After declaring 
that the President had lied and obstructed justice, and after 
concluding these acts were impeachable offenses, Senator Byrd, for whom 
I have great respect, noted that it was very hard, in his judgment, to 
impeach a president who enjoyed the public popularity that this 
President enjoys.
  Let me respond to that. Popularity is not a defense in an impeachment 
trial. Indeed, one of our Founding Fathers addressed this issue of 
popularity directly in the oft-quoted Federalist Papers: ``It takes 
more than talents of low intrigue and the little arts of popularity'' 
to be President. And, popularity isn't a pillar of Character Counts.
  What if a President committed the same acts as those alleged in this 
trial but he was presiding over a weak economy, a stock market at a 
three-year low, 12 percent unemployment, 16 percent inflation and a 
nation worried about their job security and families? I wonder if this 
would be a straight party line vote. I just wonder.
  Conversely, I wonder if you had a President who committed one of the 
impeachable crimes enumerated in the Constitution--bribery or treason. 
And the facts were obvious and clear: he gave a job to someone in 
exchange for a $5,000 bribe and the entire episode was on video tape. 
In this hypothetical, what if this bribery-perpetrating President was 
very popular but the House, nonetheless, impeached him. It would be the 
Senate's responsibility to hold a trial. In this example, economy is 
strong, the country is at peace, everyone's stock market investments 
are soaring. Would we then interpret the Constitution to provide a 
popularity defense? Would we create a ``booming economy exception'' to 
the conviction and removal clause of the Constitution? I doubt it. I 
doubt it very much. Let me repeat, temporary popularity of a President 
cannot be a legitimate defense against impeachment.
  The President has committed high crimes and misdemeanors, in 
violation of his oath of office. He lied under oath. He obstructed 
justice. His behavior was unworthy of the Presidency of the United 
States.
  Thus, I sadly conclude that the President is guilty of the charges 
made against him by the House of Representatives and I will vote to 
convict him on both counts before the Senate.
  Thank you, Mr. President.
  Mr. SARBANES. Mr. Chief Justice and colleagues, in his award-winning 
book ``The Making of the President, 1960,'' Theodore H. White refers to 
an American Presidential election as ``the most awesome transfer of 
power in the world.''
  He notes that:

       No people has succeeded at it better or over a longer 
     period of time than the Americans. Yet as the transfer of 
     this power takes place, there is nothing to be seen except an 
     occasional line outside a church or school or file of people 
     fidgeting in the rain, waiting to enter the voting booths. No 
     bands play on election day, no troops march, no guns are 
     readied, no conspirators gather in secret headquarters.

  And later in that opening chapter White observes:

       Good or bad, whatever the decision, America will accept the 
     decision and cut down any man who goes against it, even 
     though for millions the decision runs contrary to their own 
     votes. The general vote is an expression of national will, 
     the only substitute for violence and blood.

  I begin with those quotes to underscore the critical significance of 
a Presidential election in the structure of our national politics. Many 
learned commentators have observed that one of the original 
contributions to the art of government made by the Constitutional 
Convention was to develop a Presidential, as opposed to a 
parliamentary, system of government, wherein the executive is chosen by 
the electorate and is not dependent upon the confidence of the 
legislature for his office. As former Attorney General Katzenbach 
observed:

       It is a serious matter for the Congress to remove a 
     President who has been elected in a democratic process for a 
     term of four years, raising fundamental concerns about the 
     separation of powers.

  He goes on to note that if the removal power is not limited, as it 
clearly is, impeachment could be converted into a parliamentary vote of 
no confidence which, whatever its merits, is not our constitutional 
system. The separation of powers embraced in our Constitution and the 
fixed term of the President have been credited by many observers with 
providing stability to our political system.
  It is important therefore to recognize that in considering the matter 
before us we do so in the context of a Presidential election, wherein 
the people have chosen the single leader of the executive branch of our 
Government--the President.
  Since the Framers put the impeachment remedy in the Constitution, it 
is obvious they recognized that there may be circumstances which 
require the Congress to remove a duly elected President. However, in my 
judgment, as the Framers indicated, we need to be very careful, very 
cautious, very prudent, in undertaking that remedy lest we introduce a 
dangerous instability in the workings of our political institutions.
  Viscount Bryce, whose bust is at the foot of the steps in the hallway 
below, was a distinguished commentator about the American political 
system. He wrote in ``The American Commonwealth'' in discussing the 
impeachment of a President:

       Impeachment is the heaviest piece of artillery in the 
     congressional arsenal, but because it is so heavy, it is 
     unfit for ordinary use. It is like a 100-ton gun which needs 
     complex machinery to bring it into position, an enormous 
     charge of powder to fire it, and a large mark to aim at. Or 
     to vary this simile, impeachment is what physicians call a 
     heroic medicine, an extreme remedy proper to be applied 
     against an official guilty of political crimes.

  Let me turn next to the argument which seeks to draw an analogy 
between the impeachment of a President and the impeachment of judges, 
an argument that cites three recent cases in which judges have been 
removed from office. In my view, this analogy misses the mark.
  Two of the judges that the Senate convicted and thus removed from 
office had been accused in a criminal case, tried before a jury, found 
guilty beyond a reasonable doubt, and were in jail. Until we removed 
them they were still drawing their salary. In the third case, the 
defendant had been acquitted of bribery, but a judicial inquiry found 
that he had perjured himself to cover up the bribery misdeeds. 
Difference No. 1: Judges can be criminally prosecuted while in office; 
the President cannot. (At least that has been the theory up to this 
point.)
  Secondly, elected versus appointed. Judges are appointed to the bench 
for life. They can only be removed by impeachment. The President is 
elected by the people for a 4-year term and can only hold two such 
terms. As President Ford, when he was a Congressman, stated:

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

[[Page 2423]]

     A higher standard is expected of Federal judges than of any 
     other civil officers of the United States. The President and 
     the Vice President and all persons holding office at the 
     pleasure can be thrown out of office by the voters at least 
     every 4 years.

  Thirdly, one needs to consider the injury to the branch of Government 
which would result from the removal of the officer. The removal of one 
judge out of hundreds and hundreds of judges does not significantly 
affect the operation of the judicial branch of our Government. The 
removal of the President, the single head of the executive branch, 
obviously is in an entirely different category. The President, under 
our system, holds the executive power. In the end, executive branch 
decisions are his decisions.
  In the minority report in the House Watergate proceedings, Republican 
Members stated:

       The removal of a President from office would obviously have 
     a far greater impact upon the equilibrium of our system of 
     Government than removal of a single Federal judge.

  The House Judiciary Committee majority report accompanying the 
article of impeachment against Judge Walter Nixon in 1989 similarly 
stated as follows:

       Judges must be held to a higher standard of conduct than 
     other officials. As noted by the House Judiciary Committee in 
     1970, Congress has recognized that Federal judges must be 
     held to a different standard of conduct than other civil 
     officers because of the nature of their position and the 
     tenure of their office.

  In putting on their case, the House Republican managers sought to 
portray a simple logical progression--first that the material which 
they brought before the Senate showed violations of provisions of the 
Federal Criminal Code, i.e., perjury and obstruction of justice. Then 
they argued that if you find such crimes, you have high crimes and 
misdemeanors and, ergo, removal from office. But let us look at this 
supposed logical progression which I view as flawed at each step.
  First, I do not believe the House managers carried the burden of 
proof with respect to the commission of crimes. Since they relied on 
the Federal Criminal Code--charging crimes--in making their case, it is 
appropriate that they be held to the burden of proof of beyond a 
reasonable doubt--the standard used in criminal cases.
  In the House Judiciary Committee a panel of distinguished former 
Federal prosecutors testified that a responsible Federal prosecutor 
would not have brought a criminal prosecution on the basis of the case 
set out in the Starr Report on which the House Judiciary Committee 
relied. One of them, Thomas P. Sullivan, a veteran of 40 years of 
practice in Federal criminal cases, and U.S. Attorney for the Northern 
District of Illinois from 1977 to 1981, stated the following:

       If the President were not involved, if an ordinary citizen 
     were the subject of the inquiry, no serious consideration 
     would be given to a criminal prosecution arising from alleged 
     misconduct in discovery in the Jones civil case having to do 
     with an alleged coverup of a private sexual affair with 
     another woman or the follow-on testimony before the grand 
     jury. The case simply would not be given serious 
     consideration for prosecution.

  Now, let me move beyond this question of proving the case and address 
the next step in the managers' ostensible logical progression, namely 
that the crimes that they were trying to prove are high crimes and 
misdemeanors and, therefore, a vote for conviction and removal must 
follow.
  Actually, in considering this issue we must bear in mind the ultimate 
question: Does the conduct warrant removal from office? The House logic 
seems to be that any perjury, any obstruction of justice, warrants 
removal. As serious as those charges are, not all such conduct in all 
instances may rise to the level of an impeachable offense. In 
considering this matter, it is important to understand that the House 
articles included within them not only the charges but also the 
penalty. In the ordinary criminal case, there is a two-step judgment--
guilt and then sentence. In an impeachment case, the finding of guilty 
carries with it removal from office--the remedy provided by the 
Constitution.
  There is an important precedent for the view that in certain 
circumstances offenses of the sort alleged here may not rise to the 
level of a high crime and misdemeanor. That precedent is found in the 
tax article of impeachment of Richard Nixon which was before the House 
Judiciary Committee in 1974. That article charged President Nixon with 
knowingly filing tax returns which fraudulently claimed that he had 
donated pre-Presidential papers before the date Congress had set for 
eliminating such a charitable tax deduction. (It was worth $576,000 in 
deductions.) This deduction was claimed in tax returns that contained 
the following assertion just above the taxpayer's signature:

       Under penalties of perjury, I declare that I have examined 
     this return, including accompanying schedules and statements, 
     and, to the best of my knowledge and belief, it is true, 
     correct and complete.

  The House Judiciary Committee voted down that article of impeachment 
by a vote of 12 for, 26 against. As one of nine Democrats who joined 
the Republicans in voting against this article of impeachment in the 
Nixon case, I did not believe that in the circumstances of that case it 
rose to the level of a high crime and misdemeanor, I did not believe it 
was conduct against which the Founding Fathers intended the Congress to 
invoke the impeachment remedy.
  Let me turn briefly to the procedure followed in this impeachment 
matter, since good procedure enhances the chances of good results while 
bad procedure does the opposite. I am prompted to do so by various 
comments made by House managers criticizing the Senate for the 
procedure we have followed. I think the Senate has handled this matter 
well under very difficult circumstances. Given that the House managers 
questioned our procedure, let us look at the procedure on the House 
side.
  The House, which brought in no ``fact'' witnesses, came to the Senate 
and said to us, ``In order to evaluate testimony that is in the record, 
you must bring witnesses in and look them in the eye in order to assess 
their credibility.'' Obviously, one must ask, how did the House 
managers assess the credibility of witnesses when they brought none 
before them and yet voted to bring articles of impeachment recommending 
the President's removal to the Senate?
  Secondly, the other day, in response to a reasonable request by the 
President's lawyers on how the House planned to proceed in using 
deposition excerpts, a House manager said, ``I believe the appropriate 
legal response to your request is that it is none of your damn business 
what the other side is going to put on.'' This same attitude marked the 
treatment of President Clinton's lawyers before the House Judiciary 
Committee.
  Contrast this with the House Judiciary Committee's conduct in the 
matter of President Nixon's impeachment when the President's lawyers 
sat in with the committee in its closed sessions when committee staff 
presented findings of fact. The President's lawyers were able to 
challenge material, to ask questions, to supplement all presentations. 
Fact witnesses were called in and were subjected to questions by all. 
There was an understanding of the gravity of the matter for the Nation 
and the absolute imperative of having a fair process.
  In this matter the House Judiciary Committee took only a few weeks to 
report impeachment articles. In the Nixon case the committee took 6 
months. In the Judge Hastings case, the House Judiciary Committee 
received an 841-page report from the Judicial Conference as to why 
Hastings should be removed. Nevertheless, the committee undertook its 
own examination of the evidence. It heard 12 fact witnesses, deposed or 
interviewed 60 others, and held 7 days of hearings.
  In closing, it is very important to keep in mind the distinction 
between the person who is President and the Office of President of the 
United States provided for in our Constitution.
  President Clinton has engaged in disgraceful and reprehensible 
conduct which has severely sullied and demeaned his tenure as 
President. Because of his shameful and reckless behavior he has brought 
dishonor upon

[[Page 2424]]

himself, deeply hurt his family, and grievously diminished his 
reputation and standing now, and in history.
  But the diminishing of Bill Clinton must not lead us to diminish the 
Presidency for his successors as our Nation moves into the new 
millennium. There is a danger to the Nation in deposing a political 
leader chosen directly by the people and we must be wary of the 
instability it would bring to our political system.
  In the report of the staff of the impeachment inquiry in 1974 on the 
constitutional grounds for Presidential impeachment, the conclusion 
states:

       Not all presidential misconduct is sufficient to constitute 
     grounds for impeachment. There is a further requirement--
     substantiality. In deciding whether this further requirement 
     has been met, the facts must be considered as a whole in the 
     context of the office, not in terms of separate or isolated 
     events. Because impeachment of a President is a grave step 
     for the nation, it is to be predicated only upon conduct 
     seriously incompatible with either the constitutional form 
     and principles of our government or the proper performance of 
     constitutional duties of the presidential office.

  I do not believe the conduct examined here meets this test.
  I will vote against removing the President.
  Mr. CAMPBELL. Mr. Chief Justice and colleagues, my friends, I am not 
going to try to dazzle you with my knowledge of the law which is 
minimal, or the forty hand-written pages I've taken during these 
proceedings. But, I signed the same oath you did with a pen that should 
have had on it ``United States Senate,'' but did not. It said, ``Untied 
States Senate.''
  We were asked to turn the pens back in. I heard they are going to be 
valuable collectors' items, and I am not turning mine in. I want to see 
what it's worth.
  And there you have it. An imperfect Senator being asked to judge an 
imperfect President.
  One of our colleagues noted yesterday that we all come from different 
backgrounds. It's true and, perhaps, I am living proof of the greatness 
of this nation because I could be here at all.
  The same body where someone named Daniel Webster, John F. Kennedy and 
Harry Truman once served also welcomed a mixed blood kid from the wrong 
side of the tracks. The offspring of an alcoholic father and a 
tubercular mother; in and out of orphanages; a law breaker and high 
school drop out who lied, cheated, stole and did many other shameful 
things make me a poor judge indeed of someone else who used poor 
judgment.
  I would rather take a beating than to judge someone else for their 
indiscretions. But, as one of our colleagues said yesterday, ``We 
didn't ask for this.''
  Still, with all my own human failings, I, like you, must try to 
separate them from the rule of law. I wish I had the historical 
knowledge of Senator Byrd or the legal knowledge of Orrin Hatch or the 
government experience of John Warner. But, I don't--I must use common 
sense.
  I want to tell you an anecdote--about a conversation I had with the 
President right after he made his rather startling confession before 
this nation and a group of reverends which I watched from my Denver 
office as millions of others were also watching at the same time.
  I was so moved by his statement that I wrote him a personal note 
telling him how sorry I was for what his family was going through. I 
told him I would not be one to pile on; that I would make no statements 
to the press; nor would I be a party to the impeachment process going 
on in the other body.
  As I look around this room, I see several others who subscribed to 
that same conduct as this proceeding moved to the Senate and took on 
soap opera proportions, and members of both parties ran pell mell to 
the cameras at each recess.
  I sit right there in the back row fifteen feet from the cloakroom. 
But, at each recess by the time I walk to the cloakroom and glance at 
the TV, some of my colleagues have already sprinted somewhere else to 
be in front of the cameras. As you know, I used to be on the U.S. 
Olympic Team, and I tell my speedy friends--you could have made the 
team.
  About three days after I wrote to the President, he called me to 
thank me for my note and we spoke for about 15 minutes. I asked him how 
his family was dealing with it and he told me they were having good 
days and bad, but it was hardest on his daughter, Chelsea, because she 
was away at college without the family unit to console her. He told me 
he would keep my note always. I felt badly then, and I do now.
  As I look around this room in which so many great people in our 
history have spoken and I read their names written in the desk drawers 
along with those who no one remembers, I tell you that I like this 
President.
  He came through a difficult childhood as I did, and I genuinely like 
him and feel sorry for both him and his family. But after agonizing as 
many of my Senate friends have, I remember the first question my then 
nine-year-old son, Colin, asked me 17 years ago when I told him I was 
going to run for public office. He asked, ``Dad, are you going to lie 
and stuff?''
  I told him, ``No.'' I don't have to learn how to lie--I still 
remembered how to lie from my delinquent days. I'm still trying to 
forget it.
  I told him, human frailties not withstanding, elected officials 
should not ``lie and stuff.''
  Every one of us knows that when we step into the public arena, we are 
judged by a different standard. Being honest and truthful becomes more 
important because we must set the examples.
  As a senator, if I ever forget it, this body will not have to throw 
me out because I will have brought it on myself, and I'll save this 
body the time and expense and resign.
  I would not fear being thrown out. When I was young and not yet 
house-broken, I was thrown out of a lot of places. I swore a lot of 
oaths--not when I went in, but when I came out.
  There is a difference: one is about anger in private--the other is 
about honor in public. If we are not going to honor our oath, why don't 
we get rid of it and have an every-man-for-himself kind of elected 
official?
  Better yet, let's change it. Mr. Chief Justice, you could say: 
``Senators-elect. Raise your right hand and repeat after me: `On my 
honor, I'll do my best, to help myself and lie like the rest.' ''
  I took a solemn oath--perhaps it is the only thing in common I share 
with John F. Kennedy, Harry Truman and Daniel Webster as well as the 
founders of this nation--and that is why honoring it is all the more 
important to me.
  Simply speaking, the President did, too. And, so even though I like 
him personally, I find I can only vote one way. And that is guilty on 
both articles.
  Thank you, Mr. Chief Justice. I yield the floor.
  Mr. KERREY. Mr. President, in the impeachment case of President 
Clinton I have read the depositions, reviewed the massive volume of 
evidence and carefully followed the detailed presentations of both the 
House managers and the President's counsel. The instructions for my 
decision come from two places: the oath I took to do impartial justice 
and the Constitution of the United States.
  Nebraskans, including me, are angry about the President's behavior. 
We find it deplorable on every level. It has permanently and deservedly 
marred his place in history. But impeachment is not about punishing an 
individual; it is about protecting the country. We punish a President 
who behaves immorally, lies and otherwise lacks the character we demand 
in public office with our votes. Presidents are also subject to 
criminal prosecution when they leave office.
  Impeachment must be reserved for extreme situations involving crimes 
against the state. Why? Because the founders of our country and the 
framers of our Constitution correctly placed stability of the republic 
as their paramount concern. They did not want Congress to be able to 
easily remove a popularly elected President. They made clear they 
intended a decision to impeach to be used to protect the nation against 
only the highest of crimes.
  On December 19, 1998, the House of Representatives, on an almost 
straight

[[Page 2425]]

party-line vote, approved and delivered to the Senate two articles of 
impeachment. The Constitution permits me to judge and decide upon only 
these articles, not to wander through all of the President's conduct 
looking for any reason for removal.
  Some Nebraskans have told me the President should be removed from 
office by the Congress because he is no longer trusted, has lost the 
respect of many, and has displayed reprehensible behavior. As strong as 
those feelings are, the Constitution does not provide for overturning 
an election even if all of these things are true.
  Three recent letters to the editor in the Omaha World-Herald help 
make the point. The first, from a man in Kearney, says that by voting 
to dismiss the trial, I ``voted to support sexual harassment,'' among 
other things. A second, from Honey Creek, Iowa, raises allegations 
regarding the President and China, says he is ``dangerous'' and urges 
Senator Hagel and I to ``oust him now.'' The third, from Omaha, reminds 
readers of an often quoted comment I once made about the President's 
credibility and asks how, in light of that, I could vote to leave him 
in office.
  However, the House did not charge the President with these offenses. 
Impeachment is not a judgment of a President's character, all his 
actions, or even his general fitness for office. We make those 
decisions every four years at the ballot box. Our job in contemplating 
the extraordinary step of overturning an election is to judge only 
those charges the House actually brought.
  Because the premium on Constitutional stability is so high, I decided 
to judge the case against the strictest possible standard: proof beyond 
a reasonable doubt. In other words, the President can be convicted only 
if there is no reasonable interpretation of the facts other than an 
intent to commit perjury and obstruction of justice. The following is a 
summary of my analysis of this case:
  Article One accuses the President of perjury in his August 17, 1998, 
testimony to a Federal grand jury, during which he waived his rights 
against self incrimination. Most important in determining guilt or 
innocence is the rule of law governing perjury, which makes it clear 
that a person has not committed perjury just because they misled or 
even lied. Perjury occurs when a false statement is made under oath 
with willful intent to mislead in a material matter. Lying is immoral; 
perjury is illegal. I should not accuse the President of ignoring the 
rule of law and then ignore it myself in making a judgment.
  After reading and watching the President's grand jury testimony, 
listening to the arguments of the House managers and the President's 
lawyers, discussing this case with prosecutors and reviewing the 
impeachment trial of U.S. District Judge Alcee Hastings, I have 
concluded the President did not commit the crime of perjury beyond a 
reasonable doubt. I frequently found the President's testimony 
maddening and misleading, but I did not find it material to a criminal 
act.
  Article Two accuses the President of obstructing justice in seven 
instances. The House managers relied on circumstantial evidence, saying 
that common sense provides only one conclusion about why the President 
acted the way he did. However, the direct evidence, including the 
testimony of Monica Lewinsky herself, rebutted the circumstantial 
evidence. Second, while the House managers were correct in saying that 
common sense could lead to a conclusion that the President intended to 
obstruct justice, common sense could also lead to other reasonable 
conclusions about the reasons for his actions. Third, with respect to 
the allegations of obstructing justice in the civil case, Paula Jones' 
lawsuit was thrown out, then eventually settled. In the end, justice 
was done.
  As reprehensible as I find the President's behavior to be, I do not 
believe that high crimes and misdemeanors as defined by the Framers 
have been proved beyond a reasonable doubt. Accordingly, I will vote to 
acquit on both Articles. My vote to acquit is not a vote to exonerate. 
While there is plenty of blame to go around in this case, the person 
most responsible for it going this far is the President of the United 
States. He behaved immorally, recklessly and reprehensibly. These were 
his choices. In the final analysis, they do not merit removal, but they 
do merit condemnation.
  While I am confident this vote is the right one--not just for this 
case, but as a precedent for future Congresses and Presidents too--I 
understand that reasonable people could reach the opposite conclusion. 
The bitterness in America on both sides of this debate has saddened me. 
I hope and pray that with this vote behind us the people's Congress can 
return without rancor to the important work of our country.
  Mr. VOINOVICH. We are not here today because the President had a 
relationship that he himself has described as inappropriate and wrong. 
As House Manager James Rogan appropriately noted, ``Had the President's 
bad choice simply ended with this indiscretion, we would not be here 
today. Adultery may be a lot of things, but it is not an impeachable 
offense. Unfortunately, the President's bad choices only grew worse.'' 
It is not the President's inappropriate relationship, but his 
deliberate and willful attempts to conceal and mislead that bring us to 
this point.
  The very foundation of this nation is the rule of law not of men. The 
framers of our Constitution specifically provided Article II, Section 4 
of the Constitution which states, ``The President, Vice President, and 
all civil Officers of the United States, shall be removed from Office 
on Impeachment for, and Conviction of, Treason, Bribery, or other high 
Crimes and Misdemeanors.''
  On January 7, 1999, as one of my first official duties as a United 
States Senator, I took an oath to consider the evidence and arguments 
in the impeachment case against the President. We answered in the 
affirmative when the Chief Justice of the Supreme Court administered 
the following oath:

       Do you solemnly swear that in all things appertaining to 
     the trial of the impeachment of William Jefferson Clinton, 
     President of the United States, now pending, you will do 
     impartial justice according to the Constitution and laws, so 
     help you God?

  I understood that the private inappropriate conduct of the President 
alone did not then and does not now rise to a level necessitating his 
removal from office. My responsibility is to fulfill the oath I took to 
determine impartially based on the facts, evidence and testimony 
whether the President committed high Crimes and Misdemeanors as 
outlined in the Constitution.
  During my 33 years in public office, I have had to make some very 
difficult decisions. As governor, I had to make determinations on 
hundreds of requests for commutations and pardons. To my recollection, 
in no case have I labored more than I have over the Articles of 
Impeachment of our President.
  After an exhaustive study, which included reading volumes of 
transcripts, watching the taped testimony and listening to the able 
arguments made by the House Managers, the White House counsel and my 
colleagues in the Senate, I have reached the conclusion that, beyond a 
reasonable doubt, the President committed both perjury and obstruction 
of justice as outlined in Articles I and II in the Articles of 
Impeachment.
  I also have concluded that the President's obstruction of justice was 
premeditated and undertaken over a long period of time beginning when 
he learned that Monica Lewinsky was placed on the witness list in the 
Jones case.
  It is particularly disturbing that he used his brilliant mind and 
superb interpersonal skills to sweep other people into his scheme, 
thereby impairing their credibility, all to extricate himself from 
taking responsibility for his conduct. But for a conclusive DNA 
analysis, he may have succeeded in that scheme.
  By committing perjury and obstructing justice, the President is 
guilty of high Crimes and Misdemeanors. As constitutional scholar 
Charles Cooper said, ``The crimes of perjury and obstruction of 
justice, like the crimes of treason and bribery, are

[[Page 2426]]

quintessentially offenses against our system of government, visiting 
injury immediately on society itself.''
  He violated his oath of office and failed to fulfill his 
responsibility under the Constitution, which provides that the 
President ``shall take Care that the Laws be faithfully executed.'' 
Judge Griffin Bell has correctly noted, ``A president cannot faithfully 
execute the laws if he himself is breaking them.'' The President has 
undermined the fundamental principle that we are a nation ruled by laws 
and not by men. There is no way in good conscience that we as a nation 
can have a lawbreaker remain as President of the United States when his 
conduct in office has included the very same acts that have resulted in 
the impeachment of Federal judges and have sent hundreds of people to 
prison. Ours is a nation of equal justice under the law.
  I believe the framers of the Constitution had a President like Bill 
Clinton in mind when they drafted the impeachment provisions in Article 
II, Section 4--a very popular, brilliant communicator with 
extraordinary interpersonal skills who abuses his power, violates his 
oath of office, and evades responsibility for his actions because he 
believes he is above the law.
  One who has committed high Crimes and Misdemeanors disqualifies 
himself from serving as President, Commander-in-Chief, and chief law 
enforcement officer. The President also represents much more than these 
titles and responsibilities. He is a symbol of the greatness of the 
American people. Presidential scholar Clinton Rossiter observed that 
the president of the United States is ``the one-man distillation of the 
American people.'' And, President William Howard Taft described the 
president as ``the personal embodiment and representative of their 
dignity and majesty.''
  By virtue of his own conduct, William Jefferson Clinton has forfeited 
his elected right to hold the office of president. I sincerely believe 
that this country can survive the removal of a popular president who 
has forfeited public trust. But, our country cannot survive the 
abandonment of trust itself.
  Mr. LAUTENBERG. Mr. Chief Justice, the Senate must now fulfill a 
weighty and solemn duty. For only the second time in the more than two 
hundred years since our founding fathers established the Constitution, 
we must vote on Articles of Impeachment against a President.
  When considering this issue, which goes to our core constitutional 
responsibilities as Senators, each of us must come to a conclusion 
based on his or her conscience. Guided by the Constitution, we must 
bring all of our moral beliefs, our education, our careers, and our 
experiences as public servants to the question. And we must try to 
reach a decision that will serve the best interests of the nation for 
generations to come.
  As I reflect on the impeachment proceedings, I think first of the 
range of emotions I have felt. From the moment I realized that the 
President had engaged in this shameful relationship, I have struggled 
with my thoughts.
  I was angry, of course. I was ashamed for the President, a talented 
man--someone I consider a friend. How could he risk so much with his 
disgraceful behavior?
  And I was saddened. I do not know how the President will reconcile 
himself to his family. I could imagine the embarrassment and the 
humiliation of the First Lady and his daughter Chelsea. I pitied them 
as they felt the searing glow of the public spotlight.
  I am sure that colleagues, on both sides of the aisle, have 
empathized with similar emotions.
  But now we must put those feelings aside. We have a very specific 
charge under the Constitution. That hallowed document delineates our 
duty. Under Article II, Section 4, we must determine whether the 
President has committed ``high Crimes or Misdemeanors'' requiring his 
removal from office.
  In my view, our founding fathers meant to set a very high standard 
for impeachment. Clearly, the phrase ``high Crimes or Misdemeanors'' 
does not include all crimes. But what are the crimes that meet that 
standard? I find the words of George Mason to be compelling. He 
understood the phrase to mean ``great and dangerous offenses'' or 
``attempts to subvert the Constitution.''
  When applying this standard, we must also consider the national 
interest. The founding fathers vested the impeachment power in the 
Senate, and not the judiciary, precisely because this body would be 
accountable to the people.
  In the words of Alexander Hamilton, only the Senate would ``possess 
the degree of credit and authority'' required to act on the weighty 
issue of whether to remove a federal official. In my view, this means 
that we must look not just at the facts and the law, but we must also 
try to determine what is in the best interests of the nation.
  But we should not read the polls, or some other temporary gauge of 
the public temperament. Instead, we must look back through history, and 
toward the future, to reach a decision that will reflect well on the 
Senate and the nation for generations to come.
  In my view, this case does not involve efforts to subvert the 
Constitution, and the national interest will not be served by removing 
the President from office.
  Before turning to the evidence, I want to express my concern with the 
way in which the Articles of Impeachment are written.
  They do not specify which statements and actions by the President are 
unlawful. Instead, they make general allegations. With this approach, 
we cannot fulfill our duty to the American people. The American people 
must know specifically what Presidential conduct justifies overturning 
an election.
  While the Articles could have been more clearly written, there is a 
more fundamental problem. There is simply insufficient evidence for a 
vote to convict. Whether you apply the standard of beyond a reasonable 
doubt, or even the lower standard of clear and convincing evidence, the 
House Managers have not proved their case.
  With regard to Article I, the evidence does not support a charge of 
perjury. The President may have been uncooperative and evasive. He 
certainly was misleading. But he never committed perjury as that term 
is defined in the law. Consequently, the President should be acquitted 
on Article I.
  There is also insufficient evidence to convict the President on 
Article II, which charges him with obstruction of justice. The main 
problem with this Article is that testimony from the principal 
witnesses do not support the allegations. Monica Lewinsky, Betty 
Currie, and Vernon Jordan testified that the President did not tamper 
with witnesses, conceal evidence, or take any other actions that would 
constitute obstruction of justice. All of the witnesses support the 
President's version of events.
  I realize that some of you may view the evidence differently. But I 
think we must still consider whether this is an appropriate case for 
the Senate to use the awesome power of impeachment to overturn a 
national election.
  I further ask you to consider the precedent we would set with a 
conviction of this President. We risk making the impeachment power 
another political weapon to be wielded in partisan battles.
  Our founding fathers warned against this. In the Federalist Papers, 
Number 65, Alexander Hamilton noted that the prosecution of impeachable 
offenses would ``connect itself with the pre-existing factions.'' And 
that this would create ``the greatest danger, that the decision will be 
regulated more by the comparitive strength of parties than by the real 
demonstrations of innocence or guilt.''
  Prior to the present case, the House of Representatives had seriously 
considered Articles of Impeachment against only two Presidents--Andrew 
Johnson and Richard Nixon. In the more than two hundred years since the 
Constitution was established, the House set the impeachment machinery 
in motion in only two occasions.
  Today, no one doubts that the serious abuses of our constitutional 
system by the Nixon Administration warranted

[[Page 2427]]

impeachment proceedings. And the bipartisan approach of Congress 
solidified President Nixon's decision to resign.
  But history has not been kind to those who pushed the impeachment of 
President Johnson upon the nation. Scholars agree that the charges were 
baseless--a purely partisan campaign. Indeed, Chief Justice Rehnquist, 
who has presided so effectively in this case, wrote in his book on 
impeachment that if the Senate had convicted President Johnson ``a long 
shadow would have been cast over the independence'' of the presidency.
  So for most of our history, the fears of our founding fathers have 
not been realized. Congress has not resorted to impeachment even when 
previous administrations faced far-ranging scandals--the Whiskey Ring 
scandal during the tenure of President Grant; the Teapot Dome scandal 
in the Harding administration.
  And more recently allegations that Presidents Reagan and Bush were 
not truthful regarding the Iran-Contra scandal.
  Historically, Congress has held its hand when circumstances might 
have warranted a pull of the impeachment lever. But contrast that 
history with the circumstances surrounding this case.
  President Clinton was a defendant in a civil lawsuit. In determining 
whether that lawsuit should be allowed to go forward while the 
President was in office, the Supreme Court of the United States noted 
that the case involved ``unofficial conduct.'' That case was eventually 
dismissed, and the plaintiff reached a settlement with the President.
  But with that lawsuit in place, the plaintiff's attorneys had license 
to probe into the President's personal life. The private lives of many 
people were paraded through the press.
  And then the Independent Counsel joined the hunt. Although he was 
originally appointed to investigate a real estate transaction in 
Arkansas, and even though he eventually cleared the President of any 
wrongdoing in that matter and other reckless accusations, the 
Independent Counsel turned his attention to a private affair.
  I think this background cautions against the use of the awesome and 
irrevocable power of impeachment. Think for a minute about how future 
partisans might proceed. We have a readily accessible legal system. 
Anyone with the filing fee can bring a lawsuit. And our laws provide 
great leeway in the discovery process.
  If we take the wrong path now, we can expect to see future Presidents 
hauled into court. They will be questioned repeatedly, and it will not 
be hard for skilled attorneys to hurl charges of perjury and 
obstruction of justice. We cannot allow the Presidency to be weakened 
in this way.
  Once again, we find the wisdom of our founding fathers providing 
guidance.
  James Wilson, who participated in the Philadelphia Convention at 
which the Constitution was drafted, observed that the President is 
``amenable to [the law] in his private character as a citizen, and in 
his public character by impeachment.''
  In other words, the legal system, our civil and criminal laws provide 
the proper venue for a President who has failed in his private 
character.
  And in this case, the legal system can and will continue to address 
the President's personal transgressions.
  The Paula Jones lawsuit has been settled. When he leaves office, the 
President could be subject to further prosecution. But there is simply 
no injury to our constitutional system, no aspect of what James Wilson 
called the President's public character, which must be remedied through 
a Senate conviction under the impeachment power. Of course, I 
understand the great pain inflicted by the President's private 
character. As I said earlier, his behavior was reprehensible. He has 
shamed himself, his family, and the nation.
  And I understand the desire to punish the President for his conduct. 
But we must remember the many ways in which the President has already 
been punished. He has suffered enormous embarrassment and humiliation. 
Beyond that personal pain, he has also been subject to public 
condemnation. Every Member of Congress is on the record rebuking his 
behavior.
  Of course, this may not satisfy some. They may want more punishment. 
But please remember--the purpose of the impeachment power is not to 
punish. Instead, impeachment serves to protect the nation from corrupt 
officials.
  So, to render a proper verdict, we must put aside the powerful desire 
to punish. And I submit that to impeach the President in this case 
would be a terrible use of the impeachment power, lacking 
proportionality and perspective.
  Now, we must step back from the partisan precipice. We must not 
weaken the Presidency for future generations. We must reject these 
Articles of Impeachment and help restore the balance of power between 
the branches of the government.
  Let us put this matter behind, heal the wounds inflicted by 
partisanship, and rededicate ourselves to the challenges facing our 
nation.
  Mr. BOND. On Friday, February 12, 1999, I voted to convict President 
William Jefferson Clinton on both counts of the Impeachment Articles 
brought by the United States House of Representatives charging that he 
committed perjury and obstruction of justice. My reasons follow.


                               Background

  On January 16, 1998, at the request of the United States Attorney 
General Janet Reno, the three judges of the United States Court of 
Appeals for the District of Columbia Circuit expanded the previously 
entered Order authorizing the Office of Independent Counsel Kenneth W. 
Starr to look into certain matters relating to a lawsuit brought 
against President William Jefferson Clinton by former Arkansas state 
employee Paula Jones alleging sexual harassment. Pursuant to that 
Order, Ms. Jones' attorneys issued subpoenas for evidence and deposed 
Mr. Clinton and others seeking information on a pattern of conduct that 
might be relevant to the issues in the Jones case.
  The President denied in a deposition in the Jones case and in a 
forceful statement to the American public that he had sexual relations 
with ``that woman,'' referring to Monica Lewinsky. Subsequently, 
however, Ms. Lewinsky turned over a stained blue dress that she had 
worn in an encounter with the President; a scientific examination 
revealed that the DNA on the dress was President Clinton's DNA.
  The Office of Independent Counsel convened a federal grand jury to 
look into the matter and deposed Mr. Clinton in The White House on 
August 17, 1998, about his participation in the Jones lawsuit.
  The Office of Independent Counsel then referred the matters developed 
in the investigation to the United States House of Representatives, 
which on December 19, 1998, voted two Articles of Impeachment against 
Mr. Clinton alleging that he committed perjury before the federal grand 
jury in four instances and that on seven occasions he had obstructed 
justice by tampering with witnesses and evidence in the Jones case 
proceedings.
  For the sake of brevity, I shall only cover several of the 
allegations and evaluate the evidence supporting them.


                              allegations

  Counsel for the President has admitted that there was an 
inappropriate relationship between the President and Ms. Lewinsky and 
that they had concocted a cover story to conceal their relationship and 
activities. On December 17, 1997, at approximately 2 a.m., Mr. Clinton 
telephoned Ms. Lewinsky after he learned that she had been summoned for 
a deposition in the Jones case. According to this testimony he called 
to tell her of the death of the brother of Mr. Clinton's secretary. Ms. 
Lewinsky states that he told her about the death of the brother, but 
that he also reminded her of their cover story and notified her that 
she was included on the witness list in the Jones case.
  According to Ms. Lewinsky's testimony, Mr. Clinton further stated 
that they might be able to avoid her testimony if she executed an 
affidavit. Although Mr. Clinton had also reminded

[[Page 2428]]

Ms. Lewinsky of her cover story, the White House Counsel made much of 
the fact that Ms. Lewinsky said that the President did not tell her to 
file a false affidavit and did not link the cover story to the need to 
file an affidavit.
  I do not believe it is at all inconsistent with a scheme or out of 
the ordinary to note that the President would not make such a 
connection. As an experienced attorney, the President would know he 
would be in grave danger if he ever explicitly asked anyone to file a 
false affidavit or to lie under oath. To paraphrase a statement made 
during the trial by Vernon Jordan, ``He is no fool.'' He would have 
known that such a statement could be revealed by subsequent judicial 
inquiry.
  Mr. Clinton did not have to tell Ms. Lewinsky expressly to execute a 
false affidavit. She knew that in the absence of contrary instructions 
she was to continue to follow their story. She was referred by the 
President's best-friend Vernon Jordan to an attorney who drafted the 
affidavit for her. The President, through Mr. Jordan, was kept advised 
of the progress of the affidavit.
  During the time that Mr. Jordan was serving as liaison between the 
attorney and the President in the procuring of the affidavit, he was 
also pursuing a job search for Ms. Lewinsky, which he admitted was 
under his control.
  The President's lawyer was presented the affidavit and offered it 
into the evidence when the President was summoned before federal Judge 
Susan Webber Wright to participate in the deposition on January 17, 
1998, by the Jones attorneys. The President's attorney, Mr. Bennett, 
referred to the deposition in evidence and stated that it showed that 
there ``is absolutely no sex of any kind in any manner, shape or form'' 
with Mr. Clinton. Mr. Bennett further stated, ``In preparation of the 
witness for this deposition, the witness (Mr. Clinton) is fully aware 
of Ms. Lewinsky's affidavit, for I have not told him a single thing he 
doesn't know  * * * '' (Clinton deposition transcript, Evidentiary 
Record, Vol. XIV, at p. 23.) Although the videotape of the deposition 
showed the President looking in the direction of the attorney when the 
affidavit was presented, Mr. Clinton subsequently stated that he was 
not paying attention and had no knowledge of the representations made 
by his attorney about the affidavit.
  I believe that to be totally incredible.
  The President had known that Ms. Lewinsky would be a prime subject of 
the deposition and he had asked Ms. Lewinsky to file an affidavit and 
took steps to be kept advised of the progress of that affidavit. 
Subsequent events showed that his attorney, Mr. Bennett did not at the 
time know the falsity of the affidavit and that Mr. Clinton was 
apparently the only one at the deposition who was fully aware of the 
fraud that was being perpetrated on the court.
  When Mr. Bennett later learned the falsity of the affidavit, he did 
what any attorney hates to do and that is to advise the court that he 
provided false information. He asked that the affidavit and his 
characterization of it be disregarded.
  I believe Mr. Clinton encouraged the execution of a false affidavit, 
secured job assistance to help prevent truthful testimony, and allowed 
his attorney to make false statements as alleged in Article II, 
paragraphs 1, 4, and 5.
  When Mr. Clinton testified before the federal grand jury on August 
17, 1998, he was asked:

       A. If he misled Judge Wright in some way then you would 
     have corrected the record and said, excuse me Mr. Bennett, I 
     think the judge is getting a mis-impression by what you are 
     saying?
       A. . . . I wasn't even paying much attention to this 
     conversation.
       Q. Do you believe, Mr. President, that you have an 
     obligation to make sure that the presiding federal judge was 
     on board and had the correct facts?
       A. I don't believe I ever even focused on what Mr. Bennett 
     said in the exact words he did until I started reading this 
     transcript carefully for this deposition.--(Deposition of 
     President Clinton, page 30, lines 2-5.)

  I therefore believe he provided perjurious, false and misleading 
testimony to the Federal grand jury concerning statements he allowed 
his attorney to make to a federal judge as alleged in Article I, 
paragraph 3.
  On December 28, 1997, the President met in his White House office 
with Ms. Lewinsky and exchanged gifts. During the course of the 
conversation Ms. Lewinsky raised the question of what to do with other 
gifts he had provided her and which had been subpoenaed by the 
attorneys for Paula Jones. According to Ms. Lewinsky, he made no 
definitive statement about the gifts.
  Very shortly thereafter, according to Ms. Lewinsky's testimony, Mr. 
Clinton's personal secretary Bettie Currie initiated a series of 
telephone conversations, in which in effect Ms. Currie communicated to 
Ms. Lewinsky that she understood from the President that Ms. Lewinsky 
had something for her. Pursuant to those telephone calls Ms. Currie 
picked up gifts from Ms. Lewinsky and took them back to Ms. Currie's 
apartment where she stored them under her bed.
  During the course of proceedings in the Senate, Ms. Lewinsky was 
asked in a deposition about these telephone calls and expanded upon her 
testimony about them. A prior statement by Ms. Currie that Ms. Lewinsky 
had actually initiated the call was recanted by Ms. Currie, and I 
believe the testimony of Ms. Lewinsky is credible. By hiding the gifts 
rather than presenting them to the Jones attorneys pursuant to the 
subpoena Ms. Lewinsky committed a felonious act and, if Ms. Currie had 
knowledge of the subpoena, she also committed a felonious act of 
concealing materials covered by a valid subpoena. Mr. Clinton, by 
orchestrating, facilitating, and encouraging the suppression of 
evidence under subpoena, also committed a felonious act. I, therefore, 
believe that the charge in Article II, paragraph 3, of the Impeachment 
Articles is proven.
  During the course of his deposition by the Jones attorneys, President 
Clinton continued to rely on his cover story and on the perjurious 
affidavit submitted by Ms. Lewinsky. During that deposition he referred 
repeatedly to Ms. Currie as one who would corroborate the cover story 
which he and Ms. Lewinsky had devised. Immediately after his testimony 
on Saturday, January 17, 1998, he called Ms. Currie and summoned her to 
come into his office on a Sunday, January 18, 1998. There he stated 
five rhetorical questions to Ms. Currie: (1) ``I was never really alone 
with her . . . right?''; (2) ``You were always there when Monica was 
there . . . right?''; (3) Monica came to see me and I never touched her 
right . . . right?''; (4) ``She wanted to have sex with me and I can't 
do that . . . ?''; (5) ``You could see and hear everything . . . 
right?''
  Each of these statements supported the position taken by the 
President in the Jones deposition, but each one of these statements was 
false. The President was transmitting to Ms. Currie what he wanted her 
to say should she be called as a witness in this case. For good 
measure, he even went back to her a couple of days later and walked her 
through the statements again. It is uncontroverted that he made those 
statements, but he attempted to justify them on the basis that he was 
trying to refresh his memory.
  His statements to Ms. Currie on January 18, 1998, and several days 
later constituted relating a false and misleading account of relevant 
events to influence corruptly the testimony of a witness in a federal 
civil rights action as alleged in Article II, paragraph 6, of the 
Impeachment proceedings.
  Subsequently, he also made statements to his subordinates including 
Sidney Blumenthal, John Podesta, and Erskine Bowles. The statements he 
made to them were also known by him to be false and were designed to 
provide misleading information through them which could be and 
subsequently was transmitted under oath in the judicial proceedings by 
the subordinates.
  His statements to his subordinates on January 21, 23, and 26, 1998, 
were false and misleading statements to potential witnesses in a 
federal grand jury proceeding to influence corruptly the testimony of 
those witnesses as alleged in Article II, section 7, of the Articles of 
Impeachment.
  At his federal grand jury testimony on August 17, 1998, Mr. Clinton 
falsely

[[Page 2429]]

and corruptly denied he had attempted to influence the testimony of 
witnesses and impede the discovery of evidence in civil rights actions 
as set out in the analysis above. Thus, the committed the acts as 
charged in Article I, paragraph 4, the count charging perjury. (See 
Clinton grand jury transcript at 107-08, Evidentiary Record, Vol. III, 
Part 1 of 2, pp. 559-60.)
  I believe that the evidence presented on the above charges was clear 
and convincing that the President engaged in a continuing scheme to 
fabricate and establish in federal court proceedings a false story 
about his relationship with Ms. Lewinsky and that through 
circumstantial evidence, the direct testimony of Ms. Lewinsky, Ms. 
Currie, Mr. Blumenthal, and others, plus the corroborating evidence, he 
was shown to have committed the acts charged.
  The totality of his actions can be judged in the success with which 
he maintained his cover story. Had it not been for the DNA on the 
stained dress, there is little likelihood that the false cover story 
would have been exposed for the lie that it was. In perpetrating that 
false and misleading story Mr. Clinton tampered with witnesses, 
obstructing justice in the civil rights lawsuit brought against him by 
Paula Jones. He also falsely misrepresented these acts in testimony 
before the grand jury August 17, 1998.


                      High Crimes and Misdemeanors

  Having resolved in my mind the question that clear and convincing 
evidence shows that William Jefferson Clinton obstructed justice and 
committed perjury before a grand jury, the next issue is whether these 
activities rise to the level of offenses for which removal from office 
is the appropriate remedy. Defenders of the President have said that no 
one would press charges in a case like this, that it was not grave 
enough to merit a criminal proceeding, and that it certainly was not 
sufficient to warrant removing the President from office.
  With respect to the seriousness of the offense, it is worthy of note 
that during the year 1997, 182 people were sentenced by federal judges 
for perjury and another 144 were sentenced for obstruction and witness 
tampering. These prosecutions were brought by Clinton Administration 
appointees and in many instances in front of Clinton-appointed judges.
  The case of Dr. Barbara Battaglia is particularly compelling. In a 
law suit brought by a patient of a Veterans Administration hospital 
alleging sexual harassment, Dr. Battaglia was asked in a deposition if 
she had had consensual sex with the plaintiff. Her answer to that 
question was a simple, ``No.'' When that denial was shown to be a lie, 
she was convicted of a felony and sentenced to house arrest with an 
electronic monitoring device. She has lost her ability to practice 
medicine and also her ability to utilize her law degree to practice 
law.
  The serious nature of these offenses is particularly clear when 
considered in the context of the proceedings. The United States Supreme 
Court had ruled unanimously that Mr. Clinton, as President, had to 
answer the lawsuit filed by Paula Jones. A federal judge was assigned 
to the suit and presided over the deposition in which Mr. Clinton 
testified and at which time he and his lawyer presented the false 
affidavit.
  It is totally inconsistent within the context of this case and the 
sound functioning of the judicial system to say that the Supreme Court 
meant that Mr. Clinton should respond to these charges but he was not 
bound to respond truthfully. His actions in procuring and using false 
affidavits, causing the hiding of subpoenaed evidence, and tampering 
with a potential witness by giving false information to use in any 
testimony effectively denied the plaintiff the civil rights the Supreme 
Court ruled she had. To say that the acts are not grave, not high-
crimes, and not a threat to the judicial system, is untenable. No 
lawyer could make such a statement in open court and not be subjected 
to the loss of a license to practice law.
  Likewise, his lies to a grand jury from his White House office were a 
serious challenge to the administration of justice.
  Moreover, the debates of the authors of the Constitution showed that 
they considered obstructing justice would warrant the President's 
impeachment and conviction. George Mason asked if the President could 
advise someone to commit a crime and then before an indictment or 
conviction use the power of a pardon to stop inquiry and prevent 
detection. James Madison responded that, ``If the President be 
connected, in any suspicious manner, with any person, and there be 
grounds to believe he will shelter him, the House of Representatives 
can impeach him.'' (See Elliott, Debates on the Adoption of the Federal 
Constitution, at 498.)
  Another argument has also been made by the White House counsel and 
supporters of the President that to remove the President from office on 
impeachment would be to nullify the election. This argument suggests 
that impeachment is never an appropriate remedy, provided the President 
is popular and the country is enjoying good times. The Office of the 
President is not so brittle that it would be gravely damaged by 
removing the current President or any other President. The Founding 
Fathers certainly did not envision that impeachment could only apply to 
an unpopular President or one who was leading the country in hard-
times.
  At the height of a Cold War with United States forces engaged in 
Vietnam, impeachment proceedings against President Richard M. Nixon 
forced him to leave office. The country was not wounded, it did not 
lose its way; Vice President Gerald Ford assumed the Presidency and 
continued the course of government. In this case, Vice President Al 
Gore would assume office and would be expected to continue the policies 
of the Clinton Administration.
  The United States Senate in recent years did not shirk from driving 
from office a colleague accused of obstructing justice in a sexual 
harassment case. No one objected that we had ``nullified'' the votes of 
the citizens of his state.
  Some of my colleagues have argued that the President has been so 
strong and forceful in foreign policy and conducted such wise relations 
with other nations that we could not afford to lose him. That argument, 
too, smacks of a referendum on the President's conduct of office, not a 
judgment on his wrongful acts. If we were to judge impeachment on the 
basis of the policies of the President, then impeachment could always 
be expected to be purely a partisan matter turning on the approval or 
disapproval of formulation or implementation of policy by the 
President. The framers rightfully dismissed any option that the proper 
or improper administration of the regular powers of the President would 
be involved in a decision on impeachment, either positively or 
negatively.
  In addition, we have the precedents set by the removal by the Senate 
of judges who have been found to have committed perjury. During my 
tenure in the Senate we have twice removed judges for committing 
perjury because of the serious adverse impact perjury has on our 
judicial system. If a judge is removable for committing the significant 
act of perjury, can the one who appoints the judge be held to a lower 
standard?
  The President not only appoints the judges, he appoints the Attorney 
General, the United States Attorneys, and the Supreme Court Justices. 
Certainly we should impose no lower standard on the person with the 
ultimate responsibility for the proper administration of justice than 
on those he appoints.


                               Conclusion

  It is precisely in good times, with the President high in the polls, 
that it is incumbent upon the Senate to exercise very thoroughly and 
carefully the responsibility under the Constitution to make the 
difficult decision on whether the President has committed high-crimes 
and misdemeanors warranting his removal from office. If we are to have 
a government of laws and not of men and not of public opinion polls, 
then we must judge the President on the evidence presented to us. I 
believe that the acts that he committed constitute high-crimes and 
misdemeanors warranting his conviction.

[[Page 2430]]

  I should note that the Senate made a serious mistake in beginning the 
proceedings by limiting the ability of the House Managers to call 
witnesses. The absence of witnesses to testify to the acts alleged as 
the basis of impeachment charges significantly impeded the progress 
toward resolving the allegations against the President. I trust that 
the Senate will not make the same mistake in future impeachment 
proceedings.
  Mr. ROBB. Mr. Chief Justice, colleagues, sitting in judgment of the 
President of the United States is not easy for any of us. It is 
particularly difficult for me because of the personal and political 
relationship I have had with this President over the last 20 years. We 
served together as Governors in the early eighties, as several of you 
did. We traveled together on foreign trade missions. We shared similar 
priorities for our States. At my urging, he joined the fledgling 
Democratic Leadership Council, which would later become an intellectual 
and organizational resource for his Presidential campaign.
  From our earliest meetings, I recognized in him, as many of you have 
recognized, gifts of head and heart and a truly extraordinary range of 
political and communication skills that marked him with a potential for 
greatness. It was not as a friend, however, but as a U.S. Senator that 
I took an oath to render impartial justice under the Constitution in 
this impeachment trial. I was fully prepared to convict and remove the 
President from office if I concluded that the articles charged met the 
test of high crimes and misdemeanors as envisioned by the framers of 
our Constitution, and if the evidence convinced me of his guilt beyond 
any reasonable doubt. That is the standard I would require to remove 
this President or any President from office.
  As we wrestle with the decisions before us today, I believe that it 
is incumbent upon us to reflect on the consequence of these decisions 
tomorrow; for while this trial is about this President, it is also 
about the future of this Republic. We simply cannot escape the fact 
that what we do today will affect the strength and stability of our 
Nation because the actions we take, the precedent we set, directly 
affects the separation of powers and the independence of the Presidency 
as an institution.
  The writings of the framers and the overwhelming consensus of the 
scholarship that has followed demonstrate that the mechanism for 
removing a President was central to maintaining the delicate balance of 
power among the three branches of Government. The Founding Fathers 
struggled to resolve the tension between making it too difficult to 
remove a President, thereby creating a king, and making it too easy, 
thereby creating a weak Chief Executive who would serve at the pleasure 
of the legislature. As more than 400 scholars concluded last November, 
the lower the threshold for impeachment, the weaker the President.
  The resolution of this dilemma--where to set the standard for 
removal--occupied the brilliant minds of several Virginians who took 
part in our constitutional debates two centuries ago. When George Mason 
offered specific language to define an impeachment standard, James 
Madison worried about making the standard too low. In worrying, he 
replied that so vague a term would be equivalent to a tenure at the 
pleasure of the Senate. After much deliberation, our founders finally 
agreed that the President should be removed only for committing 
treason, bribery, or other high crimes and misdemeanors against the 
United States. Thereafter, as we all know, a Committee on Style, which 
had no authority to make substantive changes, dropped the last four 
words, considering them redundant.
  Alexander Hamilton defined impeachable activities as those that 
relate chiefly to the injuries done immediately to society itself. 
During the debate, Edmund Randolph, a Virginia Governor, reflected 
concerns. He stated that the Executive will have great opportunities of 
abusing his power, particularly in time of war when the military force 
and, in some respects, the public's money will be in his hands. 
Clearly, our founders created impeachment not to punish the President, 
but to protect the Republic. They had lived under a king and they 
didn't want another.
  History and common sense tell us, therefore, that the threshold for 
impeachment should be high--very high. It should be difficult, not 
easy, to impeach a President of the United States because impeachment 
is the ultimate sanction for protecting the Republic. It is a weapon to 
be respected and feared, but wielded only under the most compelling 
circumstances. Similarly, history and common sense tell us that 
removing a President is not the same as removing a Federal judge. In 
James Madison's records of the debate at the Federal Constitution, he 
wrote, ``The judiciary hold their places not for a limited time, but 
during good behavior.'' The Executive was to hold his place for a 
limited term, like the members of the legislature.
  Like them--particularly the Senate, whose Members would continue in 
appointment in the same term of 6 years--he would periodically be tried 
for his behavior by his electors, who would continue or discontinue him 
in trust, according to the manner in which he had discharged it. 
Likewise, removing a President is not the same as removing a member of 
the Armed Forces for violating the military code of conduct. The 
Uniform Code of Military Justice is required to maintain the good order 
and discipline for waging war and securing peace. And all of us who 
have served in the Armed Forces understood that we swore an oath to 
obey a code not required of any civilian, even those with the power to 
send us into harm's way--a civilian Commander in Chief, our Secretary 
of Defense, and Members of Congress.
  Finally, removing a President is not the same as punishing a citizen 
in a court of law. Like any citizen, a President can be fully punished 
in court after he leaves office, and the failure to convict him in an 
impeachment trial in no way precludes a subsequent criminal 
prosecution.
  If a President is subject to the law, then he is clearly not above 
it, as some have claimed.
  Some also argued that since the President's oath requires him to 
faithfully execute the laws, any violation of those laws should thereby 
warrant his removal from office. While that argument may be appealing, 
it simply was not the standard adopted by the framers. Their standard 
was narrowly confined to treason, bribery, or other high crimes or 
misdemeanors. And it is against this standard that we are called upon 
to judge the conduct of this President.
  I believe the President lied. When he came before the television 
cameras and addressed the American people, wagging his finger and 
denying that he had sexual relations with a subordinate employee, he 
lied. This offensive public conduct, which has caused me the greatest 
personal anguish, is an act that will be forever seared into our 
Nation's memory. His deception was calculated, politically motivated, 
and directed at each and every one of us.
  Though clearly reprehensible, this lie did not violate any law and 
was not the subject of any article of impeachment. So, while I am 
convinced that the President lied to us, I am not convinced beyond a 
reasonable doubt that he lied to the grand jury, which is the sole 
basis for the first of the two impeachment articles.
  Despite the apparent strength of the evidence, the House of 
Representatives defeated an article alleging perjury in the President's 
civil deposition. They voted to impeach the President for perjury based 
solely on his testimony before the grand jury. Article I alleges that 
the President willfully provided perjurious, false, and misleading 
testimony to the grand jury.
  I listened intently to the arguments presented by both sides, and I 
have read the President's grand jury testimony carefully. In my 
judgment, the President's grand jury testimony ultimately boiled down 
to a few irreconcilable discrepancies, and while often slippery, hair-
splitting, legalistic, and, in the words of the President's counsel,

[[Page 2431]]

``maddening,'' was not perjurious beyond a reasonable doubt.
  On article I, therefore, I will vote not guilty.
  Article II alleges obstruction of justice, a crime difficult to prove 
because it requires a determination beyond a reasonable doubt about 
what a person intended by his words or deeds.
  In this case, it is extremely difficult to determine whether the 
President's intentions were to obstruct justice in a civil or a 
criminal proceeding, or whether his intention was to mislead his family 
and the Nation about an embarrassing personal relationship. While his 
intent is difficult to prove, the unconstitutional bundling of charges 
contained in article II is clear to me.
  Article I, section 3, of the Constitution clearly requires that in an 
impeachment trial no person shall be convicted without the concurrence 
of two-thirds of the Members present. The rule of law requires 
concurrence by two-thirds.
  While article I, in my judgment, violates this constitutional 
requirement, at least it focuses on a single event. Article II is 
flagrantly worse. Drafted in the disjunctive and containing 7 subparts 
each alleging a separate act of obstruction of justice, the bundling of 
these allegations would allow removal of the President if only 10 
Senators agreed on each of the 7 separate subparts. If, for example, 10 
Senators voted to convict based solely on subpart 1 and a different 
group of 10 Senators voted to convict based on subpart 2, and so on, it 
would be possible to reach a total of 70 votes for conviction. But that 
total would not have been reached with a two-thirds concurrence on any 
individual subpart.
  Such a pleading is not allowed under the Federal Rules of Criminal 
Procedure and would be thrown out by every Federal court in the land. 
Surely the founders did not envision removing a President from office 
if no more than 10 Senators could agree on a given allegation.
  Trying to justify this unconstitutional bundling by citing a similar 
approach in the Richard Nixon case is weak because the Nixon charges 
were not presented to the Senate. Trying to justify this 
unconstitutional bundling by citing the Senate impeachment rules is no 
more compelling since our rules cannot conflict with the Constitution. 
We simply cannot remove a President from office with an article of 
impeachment that so clearly violates constitutional standards that we 
are required by law to follow.
  On article II, therefore, I will vote not guilty.
  Thus, I will vote not to convict on both articles because the 
factual, legal, and constitutional standard for removal was not met.
  I am not prepared to say, however, that perjury and obstruction of 
justice are not impeachable offenses, because I believe it would be a 
mistake to attempt to do that which the founders chose not to do--to 
define what is impeachable with specificity.
  For impeachment to remain what our forefathers intended it to be--a 
deterrent to misconduct and a means to protect the Republic--future 
generations should be free in each case to examine the facts, apply the 
law, and follow the Constitution and to render impartial justice. That 
is the impeachment process we have inherited from those who came before 
us, and that is the precedent we bequeath to the ongoing chronicles of 
American history.
  The legacy of this trial, I believe, is not what becomes of one man. 
This trial is larger than one man. The legacy of this trial is that the 
Senate, sitting as a Court of Impeachment, proved worthy of the faith 
of our founders to render justice.
  No matter what judgment is rendered, however, this trial cannot 
exonerate the President. A vote against conviction is not a vote to 
condone his lying to the American people, nor does it suggest that any 
Member of the U.S. Senate believes that perjury or obstruction of 
justice charges are anything but serious. They are very serious 
charges.
  Sadly, the vote we are poised to take on these charges has divided 
our Nation. In the eyes of too many of our citizens, this vote will 
represent either a nonmilitary coup attempt against a duly elected 
President or a victory for those bent on accelerating the moral decline 
of the Nation. In truth, this vote represents neither. A vote for 
acquittal indicates nothing more and nothing less than what it says. 
The case to remove the President from office was not proven.
  We sit in judgment today not because we are free from human 
failings--I certainly have my share--but because our forefathers 
bestowed upon the Senate the responsibility of protecting the Republic 
by judging the President when articles of impeachment are exhibited by 
the House of Representatives. In doing so, they carefully and 
deliberately limited the scope of our judgment.
  We are judging the President in his capacity as President, and we are 
called upon to decide only one issue--whether he should be removed from 
office. The Senate does not have the duty nor the capacity to rule on 
the broader character of the President. In our limited role, we are not 
called upon to judge him as husband and father, for that is the 
province of his family. We are not called upon to judge him as accused 
citizen, for that is the province of the courts. We are not called upon 
to judge him as sinner, for that is the province of God. And we are not 
called upon to judge his legacy, for that is the province of history.
  Mrs. BOXER. Mr. Chief Justice, thank you for your dignity. And to 
both our leaders, thank you for your patience.
  Colleagues, I will vote to acquit the President, and it is not 
because his poll numbers are high or because the economy is good. And 
it is not because Bill Clinton is a Democrat.
  When I was in the House of Representatives, an impeachment resolution 
was filed against Republican President Ronald Reagan--an impeachment 
resolution because of Iran-Contra, which involved selling arms to a 
terrorist nation with the proceeds going to the Nicaraguan contras. 
This was against the law of the United States of America--against the 
law--against the rule of law.
  I voted for that law, but I never went on that impeachment resolution 
against Ronald Reagan because I felt it would have hurt the country and 
because there was no bipartisan support for it.
  I think the same should be said of this impeachment. There is no 
bipartisan support for it and the President's removal would hurt the 
country.
  One more preface: It has been said that what the President did in 
this case was worse than what Senator Packwood did.
  In this case, we have a consensual affair, wanted by both parties. It 
was irresponsible and indefensible: a young woman, a relationship wrong 
in every way, a president trying desperately to hide the affair.
  The young woman was secretly tape recorded and forced to testify. Her 
mother was forced to testify.
  The more than 20 women who complained about Senator Packwood alleged 
forced sexual misconduct against them. One victim was 17 years old. 
They wanted to tell their stories.
  So each of us can decide for himself or herself the relationship of 
one case to the other. But surely that is not the issue before us.
  Neither is the Paula Jones case, which was thrown out of court by a 
Republican female judge who ruled that there was no sexual harassment 
by the President. Testimony about a consensual sexual affair was 
immaterial.
  Yes, the case was later settled, but that doesn't change its history: 
no sexual harassment, determined by a Republican female judge.
  So, Senator Packwood is not before us, nor is Paula Jones. What is 
before us is the sanctity of the Constitution.
  Let me now offer an apology to my constituents for voting in favor of 
the Independent Counsel Law in its current form--a law that has given 
one person an unlimited budget, unlimited scope, unlimited time and an 
unlimited ability to hurt people, and to hurt them badly.
  The Senate is now sitting as a court of impeachment, primarily 
because, for

[[Page 2432]]

over four years, we had an Independent Counsel spending more than $42 
million searching for an impeachable offense.
  And while I condemn the President's behavior, it was no excuse for 
the Ken Starr witchhunt, which went from a real estate deal, to several 
other fruitless investigations, to a sex deal built around illegally 
recorded phone conversations with someone named Linda Tripp. Linda 
Tripp, who says she's like all of us. Heaven help us if all of us act 
like Linda Tripp, secretly recording our dear friends. What a country 
this would be!
  I also want to comment on one other matter which is personal to me, 
and that is my daughter's family connection to the First Lady.
  While none of my Senate colleagues questioned the propriety of my 
participation in the impeachment matter--for which I thank you all--I 
was the target of a barrage or questions by the media and others 
outside this body.
  I just want to say that yes, my daughter is married to the First 
Lady's brother, a brother who loves and admires his sister and doesn't 
want to see her hurt. So, I am far from being a defender of the 
President's behavior.
  But I am a fierce defender of our Constitution.
  That is why I have joined a small number of senators, led by the 
distinguished senator from West Virginia, in fighting amendments to 
that precious document.
  Believe me, being against the line-item veto and the balanced budget 
amendment were not popular positions in my state; my positions made my 
reelection tougher. But I have never doubted that defending the 
Constitution is worth risking my Senate seat, which I cherish so much.
  And it is because of my deep reverence for the Constitution that I 
believe we must reject the articles of impeachment before us today.
  Why? Because the high crimes and misdemeanors constitutional 
requirement for removal has not been met--not even close.
  The Constitution does not say remove the President if he fails to be 
a role model for our children. It does not say remove the President if 
he violates the military code of conduct, or the Senate Ethics Code. It 
does not say remove the President if he brings pain to his family.
  It says very clearly that the President shall be impeached and 
removed from office only for committing treason, bribery or other high 
crimes and misdemeanors.
  In his Commentaries on the Constitution, Justice Joseph Story 
endorsed the view that ``those offenses which may be committed equally 
by a private person as a public officer are not the subject of 
impeachment.'' This means that presidential impeachable offenses are, 
generally, acts which could not be done by anyone other than the 
president.
  Impeachment and removal from office was not meant to be a punishment 
of the President, but rather a protection of the country from a tyrant 
who would use his or her power against the people and the Constitution.
  This President is not a tyrant who is threatening our democracy and 
freedom or the delicate balance of powers set up by our Constitution. 
So the ``high crimes and misdemeanors'' standard established by the 
Constitution has not been met in my view.
  We must also reject these articles because there is every reason to 
doubt the House managers' case on perjury and obstruction of justice. 
They have presented not one shred of direct evidence for their claims, 
and the details of their circumstantial case have been decimated in 
many respects. As one manager said on national television, he couldn't 
win the case in a court of law as it was presented in the House.
  I don't see how the case was strengthened in the Senate. In fact, I 
believe that it was weakened in the Senate.
  When you have clear statements by Monica Lewinsky that the President 
never, ever told her to hide gifts and never discussed the contents of 
her affidavit--when you have Betty Currie saying she never felt 
intimated by the President and Vernon Jordan saying the job search was 
never connected to anything else--it seems to me there is substantial 
doubt on both counts.
  That leads to another point. Rejecting these articles of impeachment 
does not place this President above the law. As the Constitution 
clearly says, he remains subject to the laws of the land just like any 
other citizen of the United States.
  As Article I, Section 3 of the Constitution says, the President 
``shall . . . be liable and subject to Indictment, Trial, Judgment and 
Punishment, according to Law.'' So it should be a comfort to those who 
believe the President committed crimes surrounding his affair that the 
President, indeed, is subject to the rule of law--our Founders made 
that certain.
  At this point, I want to thank Senator Tom Harkin for his challenge 
to the House Managers that the Senate is not a jury. In so ruling, 
Chief Justice Rehnquist, in my view, gave us the charge to look at the 
big picture, and that is very important.
  Part of that picture is how the House of Representatives acted in 
this matter. I served in the House for ten years, and I never saw the 
minority party denied a vote on an alternative of their choosing in an 
important matter. Yet Democrats and moderate Republicans were denied a 
vote on censure, and I believe this was a disaster for democracy in 
that body.
  Listen to what a Republican House Member who voted against 
impeachment wrote to a constituent:

       I regret that Congressional Republicans were so blinded by 
     their opposition to President Clinton that they voted to 
     impeach him rather than stand by the traditional principles 
     of their Party. I also regret that threats were made against 
     me by the Republican leadership in an attempt to keep me from 
     voting my conscience.

  Those are the words of one of the five brave Republicans who voted 
against impeachment in the House. To me that speaks volumes about the 
kind of illegitimate process that got us here, and I believe in my 
heart that history will judge the House proceedings very harshly.
  But I believe that the Senate, if it rejects the articles in a 
bipartisan way, will be viewed in a better light, and history will say 
that in 1999 the Senate decided that impeachment should not be used by 
one party to overturn the results of a presidential election that it 
did not like.
  As Chief Justice Rehnquist wrote of the Senate acquittal of President 
Andrew Johnson in 1868:

       The importance of the acquittal can hardly be overstated. 
     With respect to the chief executive, it has meant that as to 
     the policies he sought to pursue, he would be answerable only 
     to the country as a whole in the quadrennial presidential 
     elections, and not to Congress through the process of 
     impeachment.

  If I may, Mr. Chief Justice, I understand from your wise words that 
the President does not and should not serve at the pleasure of the 
House and Senate.
  The Senate did the right thing in 1868--and by its decision not to 
remove the President, it brought stability to our nation. We should do 
no less now.
  Voting against the articles of impeachment is the right thing to do 
to keep faith with our Constitution and to keep faith with our 
democracy for generations to come.
  Mr. MACK. Mr. Chief Justice, today the Senate finds itself at an 
unlikely crossroads in American history. We have assembled as a court 
of impeachment to sit in judgement of our President, William Jefferson 
Clinton, on the charges of perjury and obstruction of justice. We have 
worked our will in this matter according to a process rooted in English 
common law, written by our Founders into the Constitution, and 
exercised against the Chief Executive only once before in American 
history.
  This is not a task to be taken lightly, and we have not arrived 
easily at our decision. The Senate today is engaged in weighty 
struggles that go to the very heart of our private and public lives. We 
are at an unlikely juncture between principle and public opinion, 
repentance and the rule of law, perception and punishment, forgiveness 
and findings of fact. These are difficult issues, Mr. Chief Justice. We 
approach our task fully aware that our decisions today will reverberate 
across this great

[[Page 2433]]

land and throughout the length and breadth of history.
  There has been much discussion about how we got here. And while the 
answer to that question may be varied in all its permutations, then 
amplified in the echo-chamber that is our modern public debate, it can 
be said with assurance that this whole unseemly business began when the 
President, caught in an improper private act, took deliberate steps to 
conceal it. And for all the other parties blamed for our presence here 
today--the media, the independent counsel, the political factions 
opposed to the President, the House of Representatives--it must be 
clearly understood that this process began with the deliberate and 
wilful acts of the President of the United States to lie in a Supreme 
Court sanctioned civil rights inquiry and obstruct the due course of 
justice. It all started with the high-handed disregard for the law 
exhibited by the nation's Chief Executive. It ends today.
  Mr. Chief Justice, when the sound and fury of the moment has passed, 
and this episode can be observed with the objectivity that comes with 
the passage of time, I believe it will be self-evident that we have 
followed the Constitution to the best of our abilities. In a free, 
democratic society such as ours, the foundation of freedom is an 
independent judiciary, the rule of law, and most importantly the 
Constitution. Our Constitution is the framework for American society, 
and I have been constantly reminded throughout these proceedings of the 
importance of our duty to honor the dignity of this document.
  The magnitude of this undertaking deserves no less than a sincerity 
of purpose and an absolute confidence in the wisdom of our Founders. 
The American people should not be swayed by those who argue the 
prominence of this case--in all its tawdry and unseemly detail--has 
made unnecessary a thorough process of determining the truth. We stand 
in judgement of the President. Our decisions will be remembered 
throughout history. Our precedent may be followed by future Senates. 
Yet, still we have heard throughout this exercise the unfortunate call 
to end these proceedings, save a few weeks, and inject the politics of 
expediency into a monumental Constitutional undertaking. I find these 
arguments display a remarkable lack of confidence in the sound and just 
system outlined by our Founders to address very serious charges levied 
against the President of the United States.
  I am grateful the Senate rejected those calls and put in place a 
responsible mechanism for the thorough airing of fact and argument. I 
am confident our process during this trial, though far from perfect, 
was appropriate. We allowed time for detailed presentations on the part 
of the House of Representatives and the President. We held an extensive 
question-and-answer session to review and clarify matters presented by 
both sides. And we have allowed for the appropriate and necessary 
deposition of key witnesses. Unfortunately, the simple fact is that the 
outcome of this matter was, in many minds, predetermined. In spite of 
this, the integrity of the process was, time and again, fought for and 
protected. Now--today-- it only remains for us to cast our votes.


                               Background

  I wish to address my remarks not so much to the people listening in 
this room today, but rather to those future generations who will look 
back at the record and transcripts for guidance, direction, and a more 
thorough understanding of the process that played out in this chamber 
during the first two months of 1999. I mentioned earlier the 
significance of the Constitution. I cannot stress enough the essential 
role that this historical document has played in the trial of William 
Jefferson Clinton. This document laid the framework for what has taken 
place. Be it understood, the Senate tried the President because the 
Constitution requires that we do so. There is no exception for popular 
Presidents, such as William Jefferson Clinton. The Constitution 
provides for this process to be applied to everyone evenhandedly.
  Although the trial of this President was not a trial in the 
traditional sense, it is important to note that if the impeachment of a 
President presents itself again, there is nothing restricting a more 
traditional trial from occurring. In fact, I would encourage future 
Senates to utilize a judicial proceeding more closely aligned to a 
typical courtroom trial. Every impeachment trial will have its own 
dynamic environment, determined by the political and social context in 
which it occurs. The trial of William Jefferson Clinton occurred in a 
prosperous time. The citizens of this nation are largely satisfied, the 
President enjoys consistently high approval ratings, and the economy is 
outstanding. Impeaching and then trying the President has not 
engendered popular public support. I make these observations for future 
generations who reflect on this process simply to explain the mood of 
our nation and the political environment in which this proceeding 
occurred. As a result, we should not deceive ourselves into believing 
that public opinion did not impact this process. I would like to 
believe, however, that the competing demands of expediting the process 
versus honoring our Constitutional duties created a struggle that 
produced the most fair trial possible under the circumstances. 
Accordingly, the process we followed and the rules complied with may 
not be appropriate for the next trial. The decisions made in this 
environment should not be considered to set precedent that is 
inflexible. In fact, the precedent we set deserves thoughtful 
consideration and reasoned critique when reflected upon in the years 
and decades to come.
  In that light, our official duties in this matter began on December 
19, 1998, when the United States House of Representatives impeached the 
President, William Jefferson Clinton. After listening to the evidence, 
reading the trial memorandums and the record, and carefully considering 
the arguments presented by both the House Managers and White House 
counsel, I believe the President is guilty of both articles.
  Before I address the merits of the case against the President, I 
think it is necessary to discuss whether the crimes of perjury and 
obstruction of justice constitute high crimes and misdemeanors as 
contemplated by the Framers of our Constitution. This topic has been 
the subject of much controversy in the past months.
  It is true that private acts are the genesis of the matter before us. 
Had the acts stayed private, we would not be here today. The President, 
however, brought these private acts under our public purview and 
created a matter of public concern when he used his position and his 
power to deny and obstruct the civil rights of Paula Jones.
  Contrary to what has been asserted, this is not just a case about a 
sexual encounter between the President and a young White House intern. 
This instead is a case about depriving Paula Jones, an individual who 
sought and was granted the right to file a civil rights action against 
the President, of her constitutional right to a day in court, a right 
which nine justices of the Supreme Court unanimously decided that she 
deserved. And--almost unbelievably--on the heels of this Supreme Court 
mandate, the President seemed to strengthen his efforts to deny Paula 
Jones' civil rights. Once these acts moved into the public arena, 
forming the basis for charges as serious as perjury and obstruction of 
justice, it is my opinion these acts became high crimes and 
misdemeanors as envisioned by our Founders. While our only precedent 
involves the impeachments of federal judges, I am satisfied the 
standards used in these cases also apply to the charges levied against 
the President.
  The President of the United States is the head of the Executive 
Branch and the Chief Law Enforcement Officer of this nation. When the 
Founding Fathers established our tripartite system of government, it 
was decided that the three branches of government would operate as 
checks and balances on one another. As a result, no branch would be 
more powerful than the other. This structure is at the very core of our 
success as a Republic.
  By obstructing justice and lying under oath, William Jefferson 
Clinton

[[Page 2434]]

violated his duty as Chief Law Enforcement Officer, disrespected the 
Judicial Branch of the government, and undermined the foundations of 
our judicial system's truth-seeking process. If I were to determine 
that the President's actions did not constitute high crimes and 
misdemeanors, I would be asserting that the Executive Branch and the 
Office of the Presidency are more important than the Judicial Branch, 
and that the President of the United States is not obligated to abide 
by the rule of law. As a citizen and as a Senator, I cannot, in good 
faith, ignore the separation of powers argument. In my view, the 
President's conduct was in violation of the rule of law and his actions 
have betrayed the trust of the people of the United States. It is my 
firm belief that the serious offenses committed by William Jefferson 
Clinton are high crimes and misdemeanors and warrant impeachment, 
conviction, and removal from office.
  Amazingly, we continue to hear the argument that although the 
President's actions rise to the level of high crimes and misdemeanors, 
he should not be removed from office. The Constitution provides if a 
President is found guilty of high crimes, then he is automatically 
removed from office. Our Constitution does not allow for finding the 
President guilty of high crimes and misdemeanors, and then permitting 
him to stay in office. Only an amendment to the Constitution would make 
such a step permissible.
  There were several points during the trial of the President when I 
had a visceral reaction to certain charges raised by the House 
Managers. This reaction occurred, each time, at precisely the point 
when the Managers discussed the President's strategy to attack the 
character of Monica Lewinsky, Kathleen Willey and others. The callous 
disregard for the soul of another human being and the unsympathetic 
wounding of the character of another carried out by the President using 
the apparatus of the Presidency is chilling and deserves condemnation 
by those who cherish freedom.
  Before I proceed to my view of the specific articles, it may help to 
explain that I approach this process unencumbered by a law degree. 
While that in no way gives me license to disregard the legal aspects of 
the matter before me, it does permit me to translate legal concepts 
into layman's terms. As I worked my way through the voluminous record 
and sat through days of the trial, I found it easiest to understand 
this case if I approached it in chronological order. Given that, I will 
discuss the Obstruction of Justice count first, because in the course 
of this tragic series of events, I believe the President started down 
this slippery slope by the actions he took, as opposed to the words he 
spoke. Sadly, the words, uttered under an oath to tell the truth, came 
later.


                         Obstruction of Justice

  I view obstruction of justice, in its most simple terms, as actions 
that somehow interfere with the fact-finding or truth-seeking mission 
of a lawsuit. The record before us is replete with examples which, in 
my opinion, prove that the President of the United States intended to, 
and did in fact, obstruct justice. Specifically, I believe the 
President obstructed justice by corruptly engaging in, encouraging, and 
supporting a scheme to conceal evidence that had been subpoenaed in the 
Jones case; by encouraging Ms. Lewinsky to file a false affidavit in 
the Jones case; by allowing his attorney to make false and misleading 
statements to a federal court judge; by relating false and misleading 
statements to Ms. Currie and presidential aides in order to influence 
their testimony; and by intensifying and succeeding in an effort to 
secure job assistance for Ms. Lewinsky in order to encourage her to 
testify favorably toward the President in the Jones case.
  I believe the first example of obstruction occurred when the 
President was issued a subpoena in the Paula Jones case. This case was 
a federal civil rights action in which the President was sued for 
sexual harassment, hostile work environment harassment, and intentional 
infliction of emotional distress. As part of the discovery process in 
the Jones case, subpoenas were issued to several former state and 
federal employees suspected of having sexual relations with the 
President. Included in these was a subpoena which requested the 
President to produce the gifts he had received from Monica Lewinsky. 
This request was denied by the President on five different occasions, 
as ultimately five separate subpoenas were issued. As a last resort, 
Judge Wright granted Paula Jones' motion to compel the President to 
produce gifts. The President, however, still did not turn over the 
gifts and instead replied that he had none. The President's 
unwillingness to comply is ironic given that later--in his grand jury 
testimony--he stated that he receives and gives hundreds of gifts a 
year, and that the whole gift-giving concept is inconsequential to him. 
The President's behavior belies his testimony.
  The gift concealment continued beyond the President refusing to turn 
over the presents Ms. Lewinsky gave him. Ms. Lewinsky was also 
subpoenaed in the Jones case and was asked to turn over gifts the 
President had given to her. According to Ms. Lewinsky, when she 
suggested to the President that the gifts be hidden, he responded that 
he would have to ``think about it.'' I am aware that the record does 
not reflect a specific directive by the President to Ms. Lewinsky to 
hide the gifts. My reading of the record and my interpretation of the 
evidence, however, leads me to the inescapable conclusion that the 
Chief Law Enforcement Officer of the country, and a well-educated 
lawyer to boot, did not fulfill his duty to turn gifts over himself and 
did not abide by his duty again when Ms. Lewinsky asked him what she 
should do with her gifts.
  There is some confusion over exactly how the President's secretary, 
Ms. Currie, came to be in possession of the gifts that the President 
gave Ms. Lewinsky. I find it compelling, however, that when the 
President and Ms. Lewinsky met on the morning of December 28, Ms. 
Lewinsky suggested that the gifts the President had given to her should 
be hidden. A few hours later phone calls were made from Ms. Currie to 
Ms. Lewinsky. On that same afternoon, Ms. Currie arrived at Ms. 
Lewinsky's residence to pick up the gifts, and ultimately, the gifts 
were found under Ms. Currie's bed. In my view, this is sufficient 
evidence to connect the President's involvement with the gift 
concealment. I find it hard to believe that Ms. Currie would on her 
own, without influence from the President, decide to hide Ms. 
Lewinsky's gifts.
  As an aside, I feel compelled to point out a pattern that seems to 
have evolved during this administration. The hiding of evidence in a 
personal residence harks back to the mysterious reappearance of the 
Whitewater billing records in the White House residence several years 
ago. There seems, in my mind, a proclivity on the part of the President 
to cause the disappearance of key evidence whenever wrongdoing is 
alleged. Hence, gifts under the bed equate to billing records in the 
White House residence.
  In view of the President's actions up to this point, I am convinced 
the President was involved in Ms. Currie's receipt of the gifts. The 
simple truth is that, in spite of repeated requests, the gifts the 
President received were never produced and only some of the gifts given 
to Ms. Lewinsky were produced. In my view, it was no accident that 
gifts which were not handed over were instead hidden beneath the 
President's secretary's bed.
  As the Jones case progressed, so did the President's determination to 
obstruct justice. As fate would have it, Monica Lewinsky was named as a 
witness in the civil rights action. Upset and scared, the President 
suggested to Ms. Lewinsky that if she were subpoenaed she could file an 
affidavit in an effort to avoid testifying in a deposition. Ms. 
Lewinsky did in fact file an affidavit. The affidavit was claimed by 
the President to be truthful because of what Ms. Lewinsky understood 
``sexual relations'' to mean at that time.
  While the President maintains the truth of the affidavit even until 
this day, Ms. Lewinsky testified before the

[[Page 2435]]

grand jury that, in fact, it was not a truthful affidavit. 
Specifically, she testified before the grand jury that she was willing 
to submit a false affidavit under the penalty of perjury because she 
did not think that her affair with the President was anyone's business. 
I assume that we would still not have Ms. Lewinsky's admission that the 
affidavit was false, but for the fact that she was in fear of being 
prosecuted for perjury herself.
  I think the President's behavior in regard to the affidavit of Ms. 
Lewinsky fits squarely in the definition of obstruction of justice. I 
am not impressed with the President's argument that this conduct became 
``irrelevant'' when Judge Wright later determined that the Lewinsky 
matter was not essential to the Jones lawsuit.
  On the contrary, I am compelled by the fact that when the President 
was weaving this contorted web, it was his clear intent to conceal his 
relationship with Ms. Lewinsky. At the time the Lewinsky affidavit was 
prepared, the President could not have known Judge Wright would later 
determine that the Lewinsky matter was unrelated to the Jones lawsuit 
due to the consensual nature of the President and Ms. Lewinsky's 
relationship. Rather, the President was making every effort to see that 
nothing about his relationship with Ms. Lewinsky was disclosed.
  The next crucial event arrived on the day of the President's 
deposition in the Jones case. At the deposition, the President's 
attorney, Bob Bennett, stated that Ms. Lewinsky's affidavit was true. 
Specifically, Mr. Bennett stated that ``there is no sex of any kind, 
shape, or form.'' The President claims, not surprisingly, that he was 
not paying attention when his attorney made these statements, and in 
addition, that the Lewinsky affidavit was technically true because the 
word ``is'' means ``at this time.''
  My review of the President's videotaped testimony leads me to believe 
the President was paying attention to Mr. Bennett. When watching the 
videotape, it is apparent to me the President's attention is riveted on 
every person who speaks. He is attentive and his eyes track the 
speakers as they engage in dialogue. I believe the President purposely 
allowed Mr. Bennett to mislead the court. Part of the record before us 
includes a letter from Mr. Bennett asking the trial court not to rely 
on the affidavit or his comments regarding the document. Thus, it 
appears Mr. Bennett also believed that the President allowed him to 
mislead the court.
  Moreover, I am not persuaded by the President's argument that the 
affidavit was technically true because ``is'' means ``at this time.'' I 
am offended by the President's lack of respect for the truth-seeking 
process our justice system is designed to foster and protect. Indeed, I 
am disturbed that the President would attempt to manipulate each and 
every word. To take the President's interpretation of ``is'' to its 
logical conclusion that nothing was occurring at that very minute is 
ridiculous.
  Clearly, things did not go well at the Jones deposition. In fact, the 
President admitted later in his grand jury testimony that he was 
surprised by the depth of the inquiry regarding Monica Lewinsky. This 
probing questioning made the President increasingly desperate. On 
Saturday, after the President's deposition, he called his secretary, 
Ms. Currie, and asked her to come to the White House the following day. 
Both the President and Ms. Currie testified that such a Sunday meeting 
was out of the ordinary. When Ms. Currie arrived, the President called 
her into the Oval Office and made several statements, which he later 
described as questions, regarding Monica Lewinsky. Ms. Currie testified 
before the grand jury, that the President said the following to her:

       I was never really alone with Monica, right?
       You were always there when Monica was there, right?
       Monica came on to me, and I never touched her, right?
       You could see and hear everything, right?
       She wanted to have sex with me, and I cannot do that.

  This conversation was repeated between the President and Ms. Currie 
again two days later. Though Ms. Currie testified that on both 
occasions she felt ``no real pressure'' to agree with the President, 
she did nonetheless think he wanted her to agree with him. And, agree 
she did.
  Lawyers for the President have defended his actions by stating that 
the President was refreshing his memory with Betty Currie because he 
was aware that the media frenzy regarding Monica Lewinsky was about to 
break loose. I find this explanation unconvincing for numerous reasons. 
The first, and perhaps most obvious reason is that a person does not 
typically refresh his recollection with statements he knows to be 
false. It is beyond belief that the President could assert such a 
defense. He knew he was alone with Ms. Lewinsky, and even he testified 
he would have been an ``exhibitionist'' if he had conducted these acts 
in public view. In fact, when asked during the grand jury proceedings 
if Ms. Currie was nearby when he and Ms. Lewinsky had intimate contact, 
the President responded: ``I never--I didn't try to involve Betty in 
that in any way.'' Further, the President's statements to Ms. Currie 
implying that she was always present, and that she could see and hear 
everything, defy logic by indicating that Ms. Currie was always with 
the President and Ms. Lewinsky. The President clearly knew that was not 
the case.
  The sum of this evidence convinces me the President was not only 
obstructing justice by tampering with a potential future witness, but 
also violating the gag order that had been put into effect by Judge 
Wright in the Jones case. The irony here is that one reason Ms. Currie 
became a potential witness was due to the President's own urging. 
Throughout the Jones deposition the President repeatedly offered ``you 
should ask Betty.'' Then, on the very next day following these remarks, 
he summoned Ms. Currie to the White House and asked and answered his 
own leading questions. Importantly, the following week, Ms. Currie was 
subpoenaed to testify in the Jones matter.
  I have also concluded the President's conversations with his aides 
concerning his relationship with Ms. Lewinsky constitute witness 
tampering. The President told his aides, John Podesta, Sidney 
Blumenthal, and Erskine Bowles, misleading and untrue statements about 
his relationship with Monica Lewinsky. In fact, Mr. Podesta testified 
in the grand jury proceedings that the President was extremely explicit 
in his comments about denying any physical relationship and any sexual 
contact with Ms. Lewinsky.
  Although the President's approach to this group of potential 
witnesses differed from his approach to Ms. Currie in that he did not 
ask this group to agree with his statements, I find these conversations 
equally disturbing. To mislead his key aides, who he admitted might be 
called to testify before the grand jury, demonstrates that there are no 
bounds on the President's attempts to protect himself. He was willing 
to mislead any person who might have blocked his intricate obstruction 
plan.
  In addition, I believe that the President obstructed justice by 
intensifying and succeeding in an effort to secure job assistance for 
Ms. Lewinsky in order corruptly to prevent her from truthfully 
testifying in the Jones case. Although the President promised Ms. 
Lewinsky assistance with her New York job search prior to her name 
appearing on a witness list in the Jones case, it seems odd and much 
too coincidental that the President's assistance intensified after he 
learned that Ms. Lewinsky was on the witness list.
  In October, Ms. Lewinsky expressed her interest to the President in 
moving to New York and finding a job. In early November, Ms. Lewinsky 
had a meeting with Vernon Jordan to discuss potential jobs in New York 
City. Ms. Lewinsky testified before the grand jury that this meeting 
resulted in no activity taking place. However, unbeknownst to Ms. 
Lewinsky, her job search would take a 360 degree turn in December. 
Possibly the most important day was December 6, 1997, when the 
President learned that Ms. Lewinsky's name had appeared on a list of 
potential witnesses in the Jones case. A little over a month later, Ms.

[[Page 2436]]

Lewinsky was offered and accepted a job with Revlon in New York City.
  Because I feel the sequence of events that took place in December is 
extremely telling; I will lay these events out. On December 6, the 
President learned Ms. Lewinsky was a potential witness in the Jones 
case. On December 7, the President and Mr. Jordan met at the White 
House. According to both parties, however, Ms. Lewinsky was never 
discussed. On December 8, Mr. Jordan received Ms. Lewinsky's resume by 
courier. On December 11, Mr. Jordan met with Ms. Lewinsky and made 
phone calls to various New York companies on her behalf. On December 
17, after a job in New York seemed like a much more likely prospect for 
Ms. Lewinsky, the President telephoned Ms. Lewinsky at 2:00 a.m. to 
inform her that her name was on a witness list in the Jones case. On 
December 19, Ms. Lewinsky was served a subpoena in the Jones case. On 
December 31, Ms. Lewinsky and Mr. Jordan ate breakfast together at the 
Park Hyatt Hotel. On January 7, Ms. Lewinsky signed an affidavit to be 
filed in the Jones case in which she denied having sexual relations 
with the President. On January 8, Ms. Lewinsky interviewed in New York 
with MacAndrews and Forbes, a company recommended by Mr. Jordan. On 
that same day, Ms. Lewinsky informed Mr. Jordan that the interview did 
not go well. Mr. Jordan made a call to the Chairman of the Board and 
Chief Executive Officer at MacAndrews and Forbes. On the morning of 
January 9, Ms. Lewinsky was given a second interview. On that same 
morning, Ms. Lewinsky was given an informal job offer, which she 
accepted. On January 13, 1998, Ms. Lewinsky received a formalized job 
offer.
  It is apparent from the above time line that the President's efforts 
in finding Ms. Lewinsky a job in New York intensified at an excessive 
rate once it was discovered that Ms. Lewinsky was going to be a witness 
in the Jones case. The President was well aware of the fact that Ms. 
Lewinsky's testimony could be harmful to him, and thus, it was in his 
best interest to get Ms. Lewinsky a job in New York as soon as 
possible. It seems to be no coincidence that the President did not tell 
Ms. Lewinsky that she was a potential witness until eleven days after 
he learned of this news. Rather, it appears the President was using 
these eleven days to ensure that Ms. Lewinsky understood the President 
was her friend and was trying to assist her in her New York job hunt. 
Interestingly, Ms. Lewinsky was not informed of her witness status 
until after interviews in New York had been scheduled for her by Vernon 
Jordan.


                     Perjury Before The Grand Jury

  The President is also charged with making perjurious, false, and 
misleading testimony to a Federal grand jury concerning his corrupt 
efforts to influence the testimony of witnesses and to impede the 
discovery of evidence in the Jones civil rights action. My review of 
this charge, and the evidence offered, leads me to conclude that the 
President engaged in several separate acts of perjury. Specifically, 
the President lied under oath regarding the nature and details of his 
relationship with Ms. Lewinsky; lied regarding his conversation with 
Ms. Currie on the day following his Jones deposition; lied regarding 
his knowledge of Ms. Lewinsky's affidavit in the Jones case; lied 
regarding statements made to aides about his relationship with Ms. 
Lewinsky; lied regarding prior false and misleading statements he 
allowed his attorney Bob Bennett to make to a federal judge in the 
Jones case; and lied when he denied engaging in a plan to hide gifts 
that had been subpoenaed in the Jones case.
  After the Jones deposition, on January 26, 1998, the President went 
on national television and declared: ``I did not have sexual relations 
with that woman, Miss Lewinsky.'' In addition, he denied that he urged 
her to lie about the affair. Over the next seven months, the President 
continued to deny the relationship. In the face of mounting evidence to 
the contrary, the Office of the Independent Counsel sought and received 
permission from the Attorney General to expand its investigation to 
include whether the President lied under oath in his Jones deposition.
  Seven months later, on August 17, 1998, the President appeared before 
a grand jury to answer questions regarding his Jones deposition and his 
alleged affair with Ms. Lewinsky. Prior to his testimony, the President 
took a solemn oath to tell the truth. Specifically, when asked during 
the grand jury proceedings what this oath meant to him, the President 
stated: ``I have sworn on an oath to tell the grand jury the truth, and 
that's what I intend to do.'' Moreover, the President stated: ``I will 
try to answer, to the best of my ability, other questions including 
questions about my relationship with Ms. Lewinsky; questions about my 
understanding of the term ``sexual relations,'' as I understood it to 
be defined at my January 17, 1998 deposition; and questions concerning 
alleged subornation of perjury, obstruction of justice, and 
intimidation of witnesses.''
  In my opinion, however, the President violated his stated intention 
to answer questions honestly and to the best of his ability. Perjury is 
defined by the United States Code as ``whoever under oath in any 
proceeding before or ancillary to any court or grand jury of the United 
States knowingly makes any false material declaration or makes or uses 
any other information, including any book, paper, document, record, 
recording, or other material, knowing the same to contain any false 
declaration.'' See 18 U.S.C. Sec. 1623. I believe that the President's 
statements fall within the above definition because his statements were 
both false and material to the proper inquiry of the grand jury.
  First, the President gave false and misleading testimony during the 
grand jury proceedings concerning the nature and details of his 
relationship with Monica Lewinsky. On August 17, 1998, the President 
read a prepared statement to the grand jury as a response to the 
question of whether he was physically intimate with Monica Lewinsky. 
The prepared statement said:

       When I was alone with Ms. Lewinsky on certain occasions in 
     early 1996 and once in early 1997, I engaged in conduct that 
     was wrong. These encounters did not consist of sexual 
     intercourse. They did not constitute sexual relations as I 
     understood that term to be defined at my January 17, 1998, 
     deposition. But they did involve inappropriate intimate 
     contact.
       These inappropriate encounters ended, at my insistence, in 
     early 1997. I also had occasional telephone conversations 
     with Ms. Lewinsky that included inappropriate sexual banter.
       I regret that what began as a friendship came to include 
     this conduct, and I will take full responsibility for my 
     actions.

  During Ms. Lewinsky's grand jury testimony, she stated that the 
President had contact with various parts of her body. Even under the 
limited interpretation that the President has given the Jones 
definition of ``sexual relations,'' the contact between the President 
and Ms. Lewinsky, as testified to by Ms. Lewinsky, constituted sexual 
relations on the part of both parties.
  Before the grand jury, the President referred to his prepared 
response nineteen times in order to avoid providing honest and complete 
answers to the questions posed. By referring to his prepared statement, 
the President asserted that his encounters with Ms. Lewinsky did not 
constitute ``sexual relations.'' The fact is that the evidence 
overwhelmingly affirms that the President had sexual contact with Ms. 
Lewinsky and his attempts at legal hairsplitting to maneuver around the 
truth failed.
  To address part of the perjury charge creates the need to resolve the 
credibility conflict between the President and Ms. Lewinsky. By finding 
that the President committed perjury in regard to testimony concerning 
the nature and details of his relationship with Ms. Lewinsky, it is 
clear that I find the testimony of Ms. Lewinsky to be more honest and 
forthright. Some may question why I believe the testimony of Ms. 
Lewinsky over the testimony of the President. First and foremost, I 
believe Ms. Lewinsky had no motive to lie, whereas the President had 
every motive to conceal the details of this intimate relationship. Not 
only was his Presidency on the line, but his credibility with his staff 
would be destroyed if the truth were exposed. Even more

[[Page 2437]]

importantly, the President's credibility is questionable because he had 
to fear that discovery of the truth would cause his family immense 
devastation.
  Furthermore, I believe Ms. Lewinsky is more credible because her 
statement is corroborated. Ms. Lewinsky told the intimate details of 
her relationship to her therapists, her friends, Linda Tripp, her 
mother, and her aunt. Thus, it is not difficult to find that Ms. 
Lewinsky is a more credible witness than the President.
  I further believe the President made perjurious and misleading 
statements before the grand jury when he disclosed his version of his 
conversations with Betty Currie. As stated earlier, I believe that the 
rhetorical questions the President asked Ms. Currie on two separate 
occasions were an effort to coach a potential witness in the Jones 
case. During his grand jury testimony, the President testified that he 
questioned Ms. Currie because he thought the story would break in the 
press, he needed to get the facts down, and he was trying to refresh 
his memory. The reality is the President was never trying to refresh 
his memory. Ms. Currie even acknowledged in the grand jury proceedings 
that based on the way the President stated the questions and his 
demeanor, she believed he wished for her to agree with his statements.
  In addition, according to the President's own grand jury testimony, 
he told no one of his relationship with Monica Lewinsky. Specifically, 
during grand jury questioning, the President was asked with regard to 
his relationship with Ms. Lewinsky: ``Had you told anyone?'' The 
President answered: ``Absolutely not.'' Question: ``Had you tried, in 
fact, not to let anyone else know about this relationship?'' Answer: 
``Well, of course.'' Question: ``What did you do?'' Answer: ``Well I 
never said anything about it, for one thing. And I did what people do 
when they do the wrong thing. I tried to do it where nobody else was 
looking at it.''
  Thus, if the President was hiding his intimate encounters with Ms. 
Lewinsky, how would Ms. Currie have been capable of refreshing his 
memory on details of his secret relationship? The truth is that the 
President was fully aware of the fact he touched Ms. Lewinsky. 
Likewise, the President was fully aware that there had been instances 
when he was alone with Ms. Lewinsky. The only reason the President 
asked Ms. Currie those five infamous rhetorical questions was to 
provide a false and misleading account of the events to Ms. Currie in 
the hope Ms. Currie would substantiate the false testimony he gave in 
his deposition. The President's grand jury testimony that he was trying 
to refresh his memory was simply a story concocted to cover up the fact 
that he obstructed justice. Thus, his grand jury testimony was 
perjurious.
  In addition to making false statements with regard to the potential 
testimony of Betty Currie, the President also made false statements 
with regard to tampering with the potential testimony of his aides. The 
President testified to the grand jury that he said to his aides things 
that were true about his relationship with Ms. Lewinsky. ``I said, I 
have not had sex with her as I defined it.'' This statement is, 
however, patently untrue, as White House Deputy Chief of Staff John 
Podesta's testimony indicates. Mr. Podesta testified that the President 
was explicit in stating that no sexual contact of any kind occurred 
between the two parties.
  Furthermore, during the grand jury proceedings, the President 
testified that when he was asking Ms. Currie about the times he was 
alone with Ms. Lewinsky, he was referring to 1997. The President 
stated: ``Keep in mind, sir, I just want to make it--I was talking 
about 1997. I was never, ever trying to get Betty Currie to claim that 
on the occasions when Monica Lewinsky was there when she wasn't 
anywhere around, that she was. I would never have done that to her, and 
I don't think she thought about that. I don't think she thought I was 
referring to that.'' The President was then asked: ``Did you put a date 
restriction? Did you make it clear to Ms. Currie that you were only 
asking her whether you were never alone with her after 1997?'' The 
President responded: ``Well, I don't recall whether I did or not, but I 
assumed--if I didn't, I assumed she knew what I was talking about, 
because it was the point at which Ms. Lewinsky was out of the White 
House and had to have someone wave her in, in order to get in the White 
House.'' In my view, this is just one more example of the President 
creating a false story to cover up the fact that his conversation with 
Betty Currie constituted witness tampering.
  The President also provided perjurious, false, and misleading 
testimony to a Federal grand jury regarding his knowledge that the 
contents of an affidavit executed by Ms. Lewinsky were untrue. 
Attorneys for Paula Jones were seeking evidence of sexual relationships 
the President may have had with other state or federal employees. In 
this process, Ms. Lewinsky was subpoenaed as a witness. The President 
suggested that Ms. Lewinsky should file an affidavit to avoid having to 
testify. If the truth had been told in this affidavit, and if Ms. 
Lewinsky had been honest about the nature of her relationship with the 
President, Ms. Lewinsky indisputably would have been an important 
witness.
  The President stated before the grand jury, when asked about the 
Lewinsky affidavit: ``Did I hope [Monica Lewinsky would] be able to get 
out of testifying on an affidavit? Absolutely. . . Did I want her to 
execute a false affidavit? No, I did not.'' The President's testimony 
is not credible and is misleading in light of the fact that it was 
virtually impossible for Ms. Lewinsky to file a truthful affidavit that 
would have permitted the President to achieve his objective of not 
having Ms. Lewinsky testify. This is just one more instance were the 
President lied, misled, and violated his solemn oath to tell the truth.
  In addition, the President gave perjurious testimony in regard to 
false and misleading statements he allowed his attorney Bob Bennett to 
make to a federal judge in the Jones case. When asked during his grand 
jury testimony how he could have lawfully sat silent while his attorney 
made a false statement, the President explained that he was not paying 
``a great deal of attention.'' As I stated earlier, from reviewing the 
President's videotaped deposition numerous times, I believe that it is 
apparent that the President was indeed paying attention when his 
attorney made these false statements.
  Finally, in his grand jury testimony, the President stated he told 
Ms. Lewinsky that if the attorneys for Paula Jones asked for the gifts, 
she had to provide them. In light of the fact that all of the gifts the 
President gave Ms. Lewinsky were never produced and some of the gifts 
were found under Ms. Currie's bed, I do not believe that the 
President's grand jury testimony regarding his conversation with Ms. 
Lewinsky was truthful.
  Accordingly, after considering all of the evidence, I believe that 
the President is guilty of both Article I and Article II.


                               Conclusion

  Mr. Chief Justice, the President of the United States has put the 
Senate in a difficult position. His actions have caused all of us to 
examine the uncomfortable details surrounding his reckless affair with 
a young White House intern. But it was not his unfortunate actions with 
the White House intern that brought us to this moment. Rather, it was 
his wilful and deliberate attempt to cover it up in a judicial 
proceeding and then lie under oath to a Federal grand jury. We are not 
here because we disagree with the President's politics. In fact, I 
happen to consider the President a very capable man, who has, by his 
own actions, destroyed his place in history. For me to watch someone 
strategically dismantle all they have worked for is disturbing, to say 
the least. However, in spite of the human side of this tragedy, there 
is no escaping that we are here simply because of the President's 
intentionally deceptive behavior and his unwillingness to abide by the 
law.
  We were handed very serious charges against the President by the 
House of Representatives. In disposing of this matter, we have followed 
the only template we have: the Constitution and the

[[Page 2438]]

precedent of previous Senates. We have followed the Founders to the 
best of our abilities. Despite cries all around to end the trial and 
ignore our Constitutional mandate, the Senate allowed for a process 
rooted in the search for truth. All sides had an opportunity to make 
their case, question witnesses, and answer inquiries posed by 
individual Senators.
  Although this journey was less than perfect, we did not fail in this 
endeavor. We did not fail our Founders, we did not fail the House of 
Representatives or the President, and we did not fail the American 
people. I attended the meetings of the Senate, reviewed the material in 
the record, asked questions of the House Managers and White House 
counsel, and reviewed the depositions of witnesses. I am satisfied that 
our proceedings over the past month allowed me sufficient information 
to arrive at my decision.
  I am convinced beyond a reasonable doubt that William Jefferson 
Clinton is guilty of the charges levied by the House of Representatives 
and should be removed from office. By employing that standard I do not 
wish to influence others who find a different standard to be more 
appropriate.
  I am proud of the United States Senate and how it conducted itself 
during this process. Despite extraordinary difficulty, we did our job 
according to the Constitution and to the best of our ability. I am 
hopeful that through this process we have provided future generations 
with enough information to make an informed judgement of this 
President's actions. In the end, however, history will be the final 
arbiter.
  Thank you, Mr. Chief Justice. I yield the floor.
  Mr. FITZGERALD. As a freshman Senator, I am saddened that the first 
issue I confront in my service to the people of Illinois is the 
impeachment of a President of the United States. It is difficult to 
imagine a task less welcome and more awesome to me. As a newly elected 
Senator, I have barely begun to know the Senate, my colleagues, our 
rules and procedures, our precedents, or, finally, even our duty. I 
have watched you all so carefully--looking for examples, and guidance--
and wondering at the gravity of these days.
  On a personal note, before I begin, I want to thank those on both 
sides of the aisle--Senators who, in difficult days, have been so 
gracious to a newcomer. Thank you for taking the time, and making the 
effort, to welcome the newest among you. Through these hours, I have 
developed a deep respect for my new colleagues, for the Senate as an 
institution, and for the Constitution that has anchored our Republic 
for over two hundred years. I thank God for the wisdom of the Framers, 
and their ability to construct enduring institutions that allow us to 
confront, peacefully, the question of whether our President should be 
removed from office. We now come to the conclusion of this 
Constitutional process, itself an extraordinary example of the rule of 
law that makes our nation the envy of the world.
  The people of Illinois have entrusted me with the duty to uphold the 
Constitution, a duty I share with all of you. In addition, we share the 
responsibility of abiding by the separate oath which we took in this 
proceeding to ``do impartial justice according to the Constitution and 
the laws.''
  As a trier of fact and law, I find that the President has committed 
perjury and obstruction of justice as charged in the two Articles of 
Impeachment, and that those offenses constitute ``high crimes and 
misdemeanors.'' I will vote for conviction on both counts.
  I reach this decision after detailed examination of the evidence 
presented, the arguments of counsel, Senate precedents, and the 
impeachment clause of the Constitution.


                         The Standard of Proof

  The initial decision I made was to determine the appropriate burden 
of proof. Failure to impose a burden of proof on the House Managers 
would severely weaken the Presidency, a result the Founders feared and 
sought to avoid. The precedents of the Senate make it clear that there 
is no single standard that each of us must apply.
  The President has argued that we should apply the criminal standard 
of ``proof beyond a reasonable doubt.'' In recent impeachment trials of 
federal judges, a number of Senators also argued that conviction was 
only appropriate if the proof met this standard. Some commentators have 
suggested that Senators could use the preponderance-of-the-evidence 
standard typically applied in civil cases, or some standard in between.
  I have concluded that, to support a conviction, allegations must be 
proven by ``clear and convincing'' evidence. The criminal standard is 
not warranted, because the relief in this instance, i.e., the removal 
of the President, is not punitive, but remedial. In contrast, the civil 
standard would place the Presidency at too great a risk. The ``clear 
and convincing'' evidence standard strikes a prudent balance, providing 
sufficient protection for the authority of the Presidency and the 
expression of popular will represented by the President's election, 
while avoiding the risk of a President remaining in office despite 
clear and convincing evidence of impeachable offenses.


             Article I: Perjury Before A Federal Grand Jury

  The House has presented clear and convincing evidence that the 
President committed perjury when he testified before a Federal grand 
jury on August 17, 1998.
  On January 17, 1998, President Clinton testified in a civil 
deposition in the Jones v. Clinton lawsuit, after the Supreme Court had 
ruled unanimously that a civil suit against a sitting President could 
proceed. After the deposition, the Independent Counsel secured the 
approval of the Attorney General, and the three-judge Federal court 
which superintends the Independent Counsel law, to expand his 
jurisdiction to inquire into whether the President testified truthfully 
in his deposition. On August 17, 1998, the President, as the target of 
the investigation testified by video to a Federal grand jury in 
Washington, D.C.
  The President's deposition testimony in the Jones case was false in 
numerous respects, and his grand jury statements that he had sought to 
be completely truthful in his deposition testimony cannot be accurate. 
[Grand Jury Testimony of President Clinton, 8/17/98, H. Doc. 105-311, 
pp. 458-59] The falsehoods are of such a quantity and kind that a 
reasonable reading of the evidence suggests the President had to know 
at the time he gave his deposition in the Jones case that he was not 
being truthful. His testimony to the grand jury that he intended to be 
truthful at his deposition is false.
  Example: the President had testified in his deposition that he 
believed that, in the preceding two weeks, no one had reported to him 
any conversations with Ms. Lewinsky about the Jones suit. [Jones 
Deposition of President Clinton, 1/17/98, S. Doc. 106-3, Vol. 22, p. 
22] In testifying to the grand jury that he was truthful in his 
deposition, the President reaffirmed this portion of his deposition 
testimony. [Grand Jury Testimony of President Clinton, 8/17/98, H. Doc. 
105-311, p. 458] We know, however, that Vernon Jordan had, within the 
two weeks prior to the President's deposition, told the President that 
Ms. Lewinsky had signed her affidavit. [Deposition Testimony of Vernon 
Jordan, 2/2/99, 145 Congressional Record S1241 (daily ed. Feb. 4, 
1999)] The President's grand jury testimony was material to the issue 
of whether the President had sought to influence the content of Ms. 
Lewinsky's affidavit and thereby obstruct justice.
  The President again committed perjury before the Federal grand jury 
when he tried to explain why he made a series of false statements to 
his secretary, Betty Currie, on two separate occasions. At his 
deposition, the President was questioned about Ms. Lewinsky. The 
President attempted to employ Ms. Currie as an alibi witness. In the 
wake of the deposition, the President asked Ms. Currie to come to the 
office on a Sunday. Once there, the President asked Ms. Currie a series 
of leading questions concerning her recollection of events regarding 
Ms. Lewinsky. [Grand Jury Testimony of Betty Currie, 1/7/98, H. Doc. 
105-316, pp.

[[Page 2439]]

559-60] A few days later, the President again queried Ms. Currie with 
leading questions. [Id. at p. 561]
  When questioned during his grand jury testimony about the series of 
leading questions he had directed to Ms. Currie, the President 
responded: ``I was trying to figure out what the facts were. I was 
trying to remember.'' [Grand Jury Testimony of President Clinton, 8/17/
98, H. Doc. 105-311, p. 591] He also claimed that he was only trying to 
``ascertain what the facts were, trying to ascertain what Betty's 
perception was.'' [Id. at p. 593]
  While Ms. Currie would not say she felt pressured by the President, 
she did testify that she believed that the President was seeking her 
agreement with those statements. [Grand Jury Testimony of Betty Currie, 
1/7/98, H. Doc. 105-316, p. 559] It is unreasonable to conclude that 
the President was trying to refresh his recollection by making patently 
false statements to Ms. Currie, in the days immediately following his 
deposition for the Jones case. Ms. Curry could not possibly have known 
the answers to some of the President's ``questions,'' and the President 
clearly already knew the answers to others.
  We took an oath to do impartial justice. We did not take an oath to 
check our common sense at the door of this Chamber. The President's 
proffered explanation of the questions he directed to Ms. Currie defies 
common sense. I believe he sought, instead, to influence Ms. Currie's 
anticipated testimony by imparting to Ms. Currie his preferred version 
of the events. His false explanation was material to the grand jury's 
inquiry and constitutes perjury.
  The President also committed perjury when he testified and then 
reiterated before the Federal grand jury, in answer to a question about 
false accounts he gave to his aides regarding Ms. Lewinsky, that ``I 
said to them things that were true.'' [Grand Jury Testimony of 
President Clinton, 8/17/98, p. 106, H. Doc. 105-311, pp. 557-58]
  In fact, the President said to his aides things that were false. 
Presidential aide Sidney Blumenthal testified in his Senate deposition 
that the President had told him that Ms. Lewinsky had threatened him, 
and that she was called ``the stalker.'' [Deposition Testimony of 
Sidney Blumenthal, 2/3/99, 145 Congressional Record S1301 (daily ed. 
Feb. 6, 1999)] Mr. Blumenthal testified he now knows that the President 
lied to him. [Id. at S1302] The President knew what he said to Mr. 
Blumenthal was false because the President knew the facts. The one fact 
the President did not know was that Ms. Lewinsky would produce DNA 
evidence that would provide incontrovertible physical evidence to 
contradict him.
  The President's statements before a Federal grand jury regarding 
accounts he gave to his aides of Ms. Lewinsky were false, and the 
falsehoods were material to the grand jury's investigation into whether 
the President had testified falsely in the Jones deposition.


                   Article II: obstruction of justice

  The House has presented clear and convincing evidence that President 
Clinton obstructed justice by engaging in a course of conduct designed 
to impede, cover up, and conceal evidence and testimony related to the 
Federal civil rights action brought against him.
  The evidence shows that the President improperly influenced Ms. 
Lewinsky to file a false affidavit in the Jones suit. I believe that 
the only version of the evidence that makes sense is that offered by 
the House. Thus, I conclude that the President influenced the entire 
process that led to the filing of the false affidavit, from its 
inception to its conclusion. He did so through direct conversations 
with Ms. Lewinsky, and through his close friend, Mr. Jordan, who was 
able to monitor the process through an attorney that he, Mr. Jordan, 
procured for Ms. Lewinsky.
  Ms. Lewinsky admitted that on December 17, 1997, the President 
informed her by telephone at 2 a.m. that she was on the witness list in 
the Jones case, and suggested that she might avoid testifying by filing 
an affidavit. [Deposition Testimony of Monica Lewinsky, 2/1/99, 145 
Congressional Record S1218 (daily ed. Feb. 4, 1999)] And the President 
told Ms. Lewinsky to call Betty Currie if she was subpoenaed. [Id.]
  The President's assertion that he thought Ms. Lewinsky could have 
avoided testifying by filing a truthful affidavit is unbelievable. I 
believe that the President knew that a truthful affidavit by Ms. 
Lewinsky would have ensured that she would have been called as a 
deposition witness, and that her subsequent truthful testimony would 
have been legally damaging to the President. In fact, in the very 
conversation in which the President suggested that Ms. Lewinsky file an 
affidavit, they discussed the cover stories they could use to avoid 
public knowledge of the truth. [Id. at S1219]
  Vernon Jordan testified in his Senate deposition that he ``was acting 
on behalf of the President to get Ms. Lewinsky a job.'' [Deposition 
Testimony of Vernon Jordan, 2/2/99, 145 Congressional Record S1293 
(daily ed. Feb. 6, 1999)] Mr. Jordan confirmed in the deposition that 
``The President was obviously interested in her job search.'' [Id. at 
S1314] It was Mr. Jordan --one of the President's closest friends--whom 
Ms. Lewinsky called when she was subpoenaed. Mr. Jordan met with Ms. 
Lewinsky and arranged a lawyer for her. [Deposition Testimony of Vernon 
Jordan, 2/2/99, 145 Congressional Record S1234-36 (daily ed. Feb. 4, 
1999)] Mr. Jordan delivered Ms. Lewinsky to her lawyer's office. [Id. 
at S1238] Mr. Jordan monitored the drafting and content of Ms. 
Lewinsky's affidavit. [Grand Jury Testimony of Monica Lewinsky, 8/6/98, 
H. Doc. 105-311, p. 920] Ms. Lewinsky herself delivered a copy of her 
first signed affidavit to Mr. Jordan's office. Ms. Lewinsky testified 
that she and Mr. Jordan conferred about the contents of the affidavit 
and agreed to delete one portion inserted by her lawyer and make other 
changes. [Id. at pp. 921-22, 1229-30 (Exhibit 3)]
  Mr. Jordan kept the President informed throughout the affidavit-
drafting process. He personally notified the President that Ms. 
Lewinsky had signed the false affidavit. [Deposition Testimony of 
Vernon Jordan, 2/2/99, 145 Congressional Record S1241 (daily ed. Feb. 
4, 1999)]
  The evidence also clearly and convincingly demonstrates that after 
Ms. Lewinsky's name appeared on the witness list in the Jones case, the 
President, through Mr. Jordan, provided intensified assistance to Ms. 
Lewinsky in finding a job in order to encourage her to file the false 
affidavit. Mr. Jordan accepted responsibility for the job search and 
has admitted that he and Ms. Lewinsky discussed both the job search and 
her affidavit in most conversations. [Id.] Mr. Jordan attempted to 
separate each aspect of his work with Ms. Lewinsky. He testified that 
``[t]he affidavit was over here. The job was over here.'' [Id.] 
Whatever Mr. Jordan's belief, it cannot have been lost on Ms. Lewinsky 
that she had a very prominent and powerful lawyer soliciting job offers 
for her at the same time she was being asked to help that lawyer's 
friend, the President, who had first suggested that she file an 
affidavit.
  On the day after Ms. Lewinsky signed the false affidavit, Mr. Jordan 
personally called the CEO of a Fortune 500 company to secure a job for 
her, a job she was offered on the subsequent day. [Id. at S1241-42] On 
the day that Ms. Lewinsky received the job offer, Mr. Jordan called the 
President, through Ms. Currie, and left the message ``mission 
accomplished.'' [Grand Jury Testimony of Vernon Jordan, 5/28/98, S. 
Doc. 106-3, p. 1898] The President's own testimony in his deposition 
for the Jones case followed exactly the false claims of Ms. Lewinsky's 
false affidavit. While the President's lawyers encouraged the 
perception that this convergence was a coincidence, I do not buy it.
  The evidence is clear and convincing that the President continued to 
involve Ms. Currie in his lies and obfuscation. Ms. Lewinsky testified 
that on December 28, 1997, she met with President Clinton and informed 
him that she had been subpoenaed, and that the subpoena required her to 
produce all gifts she had received from the President. She testified 
that the subpoena specifically requested a hat pin, which

[[Page 2440]]

alarmed her. [Grand Jury Testimony of Monica Lewinsky, 8/6/98, H. Doc. 
105-311, p. 852] The President responded that the subpoena 
``concerned'' him. [Id. at p. 872] When Ms. Lewinsky asked him what she 
should do in response to the subpoena for the gifts, the President 
answered, ``I don't know,'' or ``Let me think about that.'' [Id.] He 
never gave the only appropriate answer, which was to comply.
  Ms. Lewinsky testified that later that same day, Ms. Currie 
telephoned her, saying, ``I understand that you have something for 
me,'' or ``the President said that you have something to give me.'' 
[Id. at pp. 874-75] Ms. Currie had an unclear memory about this 
incident, but said that ``the best [she] remembered,'' Ms. Lewinsky 
called her. [Grand Jury Testimony of Betty Currie, 5/6/98, H. Doc. 105-
316, p. 581]
  Ms. Lewinsky's testimony that Ms. Currie instigated the retrieval of 
the gifts is credible and convincing. In contrast, Ms. Currie's 
testimony that Ms. Lewinsky instigated the retrieval is not persuasive. 
I do not believe that the President's personal secretary would have 
acted upon a request from Ms. Lewinsky to retrieve the gifts without 
asking the reason for such an exchange or informing the President of 
the request. It is too bizarre that she would simply pick up a box of 
gifts and deposit them under her bed. It defies a common-sense reading 
of the evidence and the evidentiary narrative.
  The evidence is also clear and convincing that the President 
obstructed justice by coaching Ms. Currie, a potential witness in the 
Jones case, to provide false testimony in the Jones case, and by 
arranging for the concealment of gifts subpoenaed by the Jones lawyers.
  On Saturday, January 17, 1998, a few hours after completing his own 
deposition in the Jones case, the President called Ms. Currie and asked 
her to come to the White House on Sunday, January 18, 1998. [Id. at p. 
558] The President's assertions and leading questions to Ms. Currie on 
January 18 and January 20 or 21, 1998, were indisputably false. The 
President knew that Ms. Currie was a potential witness when he made 
these false statements to her. In his deposition in the Jones case, the 
President brought Ms. Currie's name up, without prompting, in at least 
sixteen different answers to questions, clearly anticipating and 
inviting the Jones attorneys to subpoena her to back up his account.
  I am unable to conclude that the President was attempting to 
``refresh his recollections'' by calling Ms. Currie and requesting her 
to come to the White House on a weekend and making false statements to 
her. Simple common sense tells us that he was letting her know what he 
had said in his deposition and that he was hoping that she would later 
corroborate his false account.


                      High crimes and misdemeanors

  Although I have determined that the House has proven the acts alleged 
in both Articles of Impeachment by clear and convincing evidence, the 
inquiry does not end here. I must also consider whether the acts 
constitute ``high crimes and misdemeanors,'' as required by the 
Constitution. This has been a singularly difficult question for this 
body, but I conclude that the President's offenses rise to the level of 
``high crimes and misdemeanors'' within the meaning of the 
Constitution.
  The Framers of our Constitution provide that the Senate can only 
convict a President for ``treason, bribery, or other high crimes and 
misdemeanors.'' The Framers relied, in part, on William Blackstone for 
their understanding of the common law they inherited from England. In 
the fourth book of his Commentaries on the Laws of England, Blackstone 
addressed the criminal law. He distinguished between crimes that ``more 
directly infringe the rights of the public or commonwealth, taken in 
its collective capacity,'' and ``those which in a more peculiar manner 
injure individuals or private subjects.'' [IV William Blackstone, 
Commentaries on the Laws of England 74, 176 (special ed., 1983)]
  Within the latter category, Blackstone included crimes such as 
murder, burglary, and arson. The former category of ``public'' crimes 
included offenses that were counted as ``offenses against the public 
justice.'' Blackstone included within this category the crimes of 
perjury and bribery side-by-side. [Id. at 127, 136-39] Blackstone's 
formulation equating perjury and bribery as ``public'' offenses 
suggests that, within the definition of the Constitution, perjury may 
also be a high crime and misdemeanor.
  Because perjury, at its core, involves an effort to obstruct justice, 
other acts that obstruct justice may very well be considered ``public'' 
offenses as the Framers would have understood them. Indeed, Blackstone 
writes that ``impediments of justice'' are ``high misprisions'' and 
``contempts'' of the King's courts. [Id. at 126-28]
  The intent of the Framers and subsequent interpretation of this 
clause show that impeachment and conviction of the President is a 
Constitutional remedy for serious offenses against our system of 
government. Alexander Hamilton, in Federalist No. 65, explained that 
impeachable offenses, ``relate chiefly to injuries done immediately to 
the society itself,'' and arise ``from the abuse or violation of some 
public trust.''
  Certainly, perjury before a grand jury and obstruction of justice are 
offenses against the American system of government, as they strike at 
the rule of law itself. These acts subvert the truth-seeking process 
that is the very essence and foundation of the judicial branch. These 
acts, when committed by a President, are a repudiation of our judicial 
system by the Chief Executive of the country, undermining the checks 
and balances and disturbing the delicate balance between the branches 
of the Federal government that is at the heart of our Constitutional 
form of government.
  The President's counsel attempted to diminish the severity of the 
crimes of perjury before a Federal grand jury and obstruction of 
justice. But the Founding Fathers understood that these crimes are 
offenses against the public trust. Perjury was among the few offenses 
outlawed by statute by the First Congress, in 1790. And today, perjury 
is punishable by up to five years imprisonment in a federal 
penitentiary. [18 U.S.C. Sec. Sec. 1621-1623] The Supreme Court, in a 
1976 plurality opinion, wrote, ``[p]erjured testimony is an obvious and 
flagrant affront to the basic concepts of judicial proceedings.'' 
[United States v. Mandujano, 425 U.S. 564, 576]
  We do not need to decide whether the President's perjury before the 
grand jury would have risen to the level of a ``high crime and 
misdemeanor'' had the target of the grand jury been someone other than 
the President, nor do we need to decide whether a President's perjury 
in a civil trial in and of itself rises to the level of an impeachable 
offense. I have reservations about considering such acts ``high 
crimes'' or ``high misdemeanors.'' But where, as here, the President 
committed perjury in a Federal grand jury investigation of which he was 
the target, I am convinced that his acts fall into the category that 
warrants removal from office.
  Further support for this conclusion comes from Senate precedent in 
the impeachment, conviction, and removal from office of two Federal 
judges in the 1980s--Walter Nixon and Alcee Hastings. Judge Nixon was 
impeached and convicted for lying to a grand jury that was 
investigating him, and Judge Hastings was impeached and convicted for 
making numerous false statements under oath in testimony in his own 
criminal trial.
  Obstruction of justice is particularly serious. Two federal criminal 
statutes, Sections 1503 and 1512 of Title 18 of the U.S. Code, 
specifically prohibit corruptly influencing or obstructing the due 
administration of justice or the testimony of a person in an official 
proceeding.
  Federal appellate courts have applied these statutes to individuals 
who provide misleading stories to a potential witness without 
explicitly asking the witness to lie. For example, in 1988, a Federal 
appellate court upheld the conviction of an individual for attempting 
to influence a witness even though that witness was not scheduled to 
testify before the grand jury nor ever appeared before a grand jury. 
The court held

[[Page 2441]]

that a conviction under Section 1503 is appropriate so long as there is 
a possibility that the target of the defendant's activities will be 
called upon to testify in an official proceeding. [United States v. 
Shannon 836 F. 2d 1125, 1127 (8th Cir. 1988)]
  The Supreme Court has called the President's responsibility to 
enforce the laws, ``the Chief Executive's most important Constitutional 
duty.'' [Lujan v. Defenders of Wildlife, 504 U.S. 555, 577 (1992)] A 
President who obstructs the very laws he is called upon to enforce has 
committed high crimes and misdemeanors as set out in the impeachment 
clause of the United States Constitution.


                           Impartial Justice

  Some argue that the Senate, sitting as a court of impeachment, should 
allow public opinion polls to influence its judgment, claiming that 
these proceedings are not judicial, but political in nature. I believe 
the Constitution, the intent of the Framers, and the Senate's own 
impeachment procedures show that when the Senate convenes to fulfill 
its obligation to ``try all impeachments,'' as Article I of the 
Constitution prescribes, it takes on a judicial role quite distinct 
from its normal legislative proceedings. The Constitution also states, 
in Article III, that ``the trial of all Crimes, except in Cases of 
Impeachment, shall be by Jury. . .,'' implying that an impeachment 
trial is a trial similar to all others. When a President stands 
accused, the Constitution requires the Chief Justice of the Supreme 
Court to preside, explicitly introducing the judicial branch into the 
trial by the Senate. And Alexander Hamilton, in Federalist No. 65, 
discusses ``the judicial character of the Senate'' when it meets as ``a 
court for the trial of impeachments.''
  We are required to take a special oath for impeachments, above and 
beyond our oath of office, to ``do impartial justice according to the 
Constitution and the laws.'' What can this oath mean if it does not 
place on us a special, judicial burden, unique among our Senatorial 
duties, to apply rules of impartiality and independence in pursuit of a 
verdict that is just? If an innocent President can be convicted, or a 
guilty President can be acquitted, even in part because of the polls 
that purport to reflect the will of the moment, then we violate our 
Constitutional duty and assault the very foundations of our system of 
justice.
  Carved into the West Pediment of the U.S. Supreme Court building in 
Washington are four simple words: ``Equal Justice Under Law.'' Standing 
watch in front of that building is a statue of Justice, blindfolded 
because justice must be blind. Even the President must respect the laws 
of the land. To the extent that we allow the popularity or unpopularity 
of a particular President to inform our votes for either conviction or 
acquittal, we undermine the principle of ``Equal Justice Under Law,'' 
and we chip away at the blindfold that covers the eyes of Justice.


                               Conclusion

  As a trier of fact and law, I find that the President has committed 
perjury and obstructed justice as charged in the two Articles of 
Impeachment, and that those offenses constitute ``high crimes and 
misdemeanors.'' I will vote to convict on both counts.
  For me, this is not an easy verdict to reach, and comes after great 
deliberation. I am 38 years old. Today is my 38th day as a Senator. 
Those 38 days feel like they have lasted my entire life. As a freshman, 
I have had to confront, very suddenly, difficult truths that at the 
very least have challenged the idealism that propelled me here in the 
first place. But through the din of argument and counter-argument, it 
has occurred to me that the President's acts, however serious, are not 
nearly as consequential as our response. I have listened to those who 
assert that perjury before a grand jury and obstruction of justice are 
not removable offenses--or that if they are, removal of a President, in 
this time, is too disruptive to contemplate.
  And truly, the call to do nothing is seductive. I hear it, too. We 
are so comfortable--so prosperous--that it is difficult to be bothered 
with unpleasantness. But as the youngest member of this body, I believe 
we must hold firm to the oldest truths. The material blessings of peace 
and prosperity are but the fruit of liberty that does not come without 
a price --a liberty sustained, only and finally, by the rule of law, 
and those willing to defend it. Our commitment to impartial justice, 
now and forever, is an abstraction more profound and precious than a 
soaring Dow and a plummeting deficit. I vote as I do because I will not 
stand for the proposition that a President can, with premeditation and 
deliberation, obstruct justice and commit perjury before a grand jury. 
It cannot be.
  Mr. ROTH. Mr. Chief Justice, the House of Representatives presented 
to the Senate two Articles of Impeachment alleging that the President 
of the United States committed ``high crimes and misdemeanors'' in the 
form of perjury and obstruction of justice. These are serious offenses, 
not unlike those which in the past have been sufficient to remove other 
federal officials from office.
  In deciding how to vote on the Articles of Impeachment, each Senator 
had to undertake a two-step analysis: first, to determine the facts--
the conduct in which the accused engaged; and second, to determine 
whether that conduct constituted ``treason, bribery, or other high 
crimes and misdemeanors'', which, under the Constitution, require 
removal from office. This second step calls for the Senate to determine 
the facts and evaluate the effect of the conduct on the office and on 
the operations of government.
  Having listened to the presentations made to the Senate by the House 
Managers and by Counsel for the President, it is my opinion that the 
President committed perjury and obstructed justice, and that this 
misconduct--based on constitutional definitions and historical 
precedents--meets the standard for convicting an official of an 
impeachable offense.
  As the impeachment process is not a criminal proceeding, it is not 
necessary that the evidence shows that the accused is guilty of a 
criminal offense under the United States Code. The Framers wrote the 
Constitution before Congress wrote, and then amended, the criminal 
code. Nor is it required that relevant facts be established to the same 
standard as in a criminal trial, as Congress cannot punish the 
President, other than to remove him from office. Simply put, the 
Framers' objective was to provide a remedy to protect the American 
people and their institutions of government from an unfit officeholder. 
In view of this, I believe that such remedy is to be available if there 
is clear and convincing evidence to establish the underlying facts 
which demonstrate that an officeholder is unfit to serve.
  In determining whether alleged conduct is a ``high crime and 
misdemeanor'', Senators must examine each case individually. They must 
consider the officeholder's position in government and look at the 
effect of the officeholder's conduct in light of the particular 
position he or she holds. The fact that the Senate has convicted and 
removed federal judges for committing perjury does not necessarily mean 
that it should automatically remove a President who commits perjury. 
The precedents regarding federal judges are instructive, but they are 
not conclusive.
  The 1974 House Judiciary Committee Staff Report during the Nixon 
Impeachment Inquiry, drawing on two centuries of precedents, explains 
this concept in connection with a presidential impeachment. The report 
states that the impeachment of the President should be ``predicated 
only upon conduct seriously incompatible with either the constitutional 
form and principles of our government or the proper performance of 
constitutional duties of the presidential office.'' In other words, 
Congress must determine whether the particular misconduct in which 
President Clinton engaged is serious enough to warrant removal from 
that particular office. This is what I call the ``incompatibility'' 
test.
  The ``incompatibility'' test requires Senators to exercise their 
expertise in, and knowledge of, government and to use their best 
judgment, focusing on the offenses committed and the effect

[[Page 2442]]

of those offenses on the office and on the operation of government. It 
is this kind of threat to the republic which we must evaluate in 
applying the ``incompatibility'' test. Accordingly, under this test we 
should focus on the unique nature of the Presidency and the offenses 
the President committed.
  The Constitution created three separate branches of government in 
order to limit the powers of government and to enhance the liberty of 
the American people. Each branch is supreme in its own area but must 
respect and defer to the others, when they are operating in their 
assigned areas. Reduced to the simplest characterization, the 
legislature makes the laws, the executive executes the laws, and the 
judiciary interprets the laws and dispenses justice. As the head of the 
executive branch, the President stands alone as the official 
responsible for executing the laws of our country.
  The duty of a branch to respect the other branches is a duty that can 
only be carried out by federal officeholders. It cannot be borne by 
private citizens. And it is fundamental to the operations of the 
federal government. Our government could not function if the branches 
did not respect one another. I believe President Clinton violated this 
fundamental duty to respect the judicial branch by subverting its 
function.
  When a private citizen sued President Clinton under our civil rights 
statutes, the President took the position that he was unique in our 
system of law and could not be sued while President. When the Supreme 
Court ruled 9-0 that the President could be sued, the President decided 
to frustrate the judicial process while appearing outwardly to comply 
with the requirement of our constitutional plan. As a practical matter, 
he sought to veto this Supreme Court decision.
  The evidence shows that he undertook a deliberate and multifaceted 
plan to thwart the Supreme Court ruling. That plan included the 
commission of perjury and obstruction of justice, which are very 
serious and fundamental wrongs. Even worse is that his conduct was 
conscious and calculated. It was not a mistake of the moment. Rather he 
deliberated and chose to commit perjury. He deliberated and chose to 
obstruct justice. In making these conscious and calculated choices, he 
placed his personal and political interests above his presidential duty 
to respect the judicial branch.
  This is what concerns me greatly. If the President is willing to 
place his personal and political interests above his duties as 
President, he is not fit for the office he holds.
  The President has, as one branch of the federal government, a duty to 
respect the requirements of the judicial branch and its proceedings. 
The President has, as the chief executive, an express duty to take care 
that the laws be faithfully executed. In committing perjury and in 
obstructing justice, he exhibited an attitude dangerous to the 
operation of government--an attitude where he viewed himself as more 
important than the rule of law, where his personal and political 
interests took precedence over the public interest in administering 
equal justice under law.
  Ours is a nation ruled by law, not by men, and not by personalities. 
The judgment that we render here will set a precedent for the ages. If 
Congress concludes that the office of the Presidency should remain 
occupied by one who has sullied it with premeditated criminal conduct 
in violation of constitutional and legal duty, then it will have 
diminished America's right of self-defense against unfit officeholders, 
something that the Framers specifically provided for in the 
Constitution.
  A President who commits perjury before a federal grand jury and 
obstructs justice poisons the well from which justice is administered. 
As far as I know, this President has the dubious distinction of being 
the first and only President in the history of the United States to lie 
directly to a federal grand jury. After taking an oath to tell the 
truth, the whole truth, and nothing but the truth, he deliberately 
violated that oath. The first Chief Justice of the United States, John 
Jay, accurately stated that there is no crime more extensively 
pernicious to society than perjury. If the President commits perjury 
and we conclude that nevertheless he may remain in office, by what 
authority does any judge ask any litigant to swear under oath?
  As far as I am concerned, this is not just an empty question that has 
no relevance in today's society. Every day, in courtrooms and grand 
jury rooms across the country, witnesses are asked to hold up their 
right hand and take an oath to tell the truth. The judicial process in 
the United States depends on the sanctity of that oath. The 
prosecutorial function of the United States depends on the sanctity of 
that oath. It is the cornerstone of our system of justice. We simply 
cannot allow people across the country to look at the conduct of our 
President and raise legitimate questions about whether they need to 
comply with their solemn oaths.
  Moreover, how can judges refer violations of perjury or obstruction 
of justice to the executive branch for prosecution, when the chief 
executive himself has committed these offenses? On prior occasions, the 
Senate has removed judges for perjury because it was ``incompatible'' 
to ask litigants not to commit perjury in a courtroom presided over by 
someone who had himself committed perjury. A similar 
``incompatibility'' exists where the sanction for perjury or 
obstruction of justice must be applied by the executive branch presided 
over by someone who has likewise committed these violations.
  The President must be removed before the corrosive effect of his 
conduct eats away at the rule of law and undermines the legal system. 
To imagine this President remaining in office brings to mind Alexander 
Pope's troubling question: ``If gold should rust, what will iron do?'' 
If our President commits perjury and obstruction of justice, what can 
we expect of our citizens?
  The Senate should seek to protect the legal system from that threat. 
And that is why I voted to convict and remove William Jefferson Clinton 
from office.
  Mr. BURNS. Mr. Chief Justice and my Senate colleagues, we now close 
one of the most serious chapters in the history of this Senate. While 
some may not agree with the outcome, and others may not like the way I 
voted, I'm satisfied the Constitution has been followed. We must now 
accept this verdict and try to work together without talk of revenge or 
gloating.
  In reaching my conclusions, I asked myself two questions: Were the 
articles of impeachment proven, and if so, should the president be 
removed from office?
  I believe the president perjured himself before a grand jury. He put 
the protection of his presidency ahead of the protection of the 
institution of the presidency. He gave false testimony about his 
efforts to keep other witnesses from telling the truth. We have already 
learned in our history that lies lead to more lies, and the pattern in 
this case led to perjury.
  I also feel strongly that a case for obstruction of justice was 
proven conclusively. The Senate heard the many actions and motives of 
the president, and it was easy to connect the dots. Those dots reveal a 
clear and convincing case against the president.
  I believe the president tampered with the testimony of witnesses 
against him; that he allowed his lawyers to present false evidence on 
his behalf; that he directed a job search for a witness in exchange for 
false testimony; and that he directed the recovery and hiding of 
evidence under subpoena.
  Does this warrant the president's removal from office? I agree with 
my respected colleague, Senator Byrd, that this reaches the level of 
high crimes and misdemeanors, for a number of reasons: The president's 
actions crossed the line between private and public behavior when those 
actions legally became the subject of a civil rights lawsuit against 
him, and when he tried to undermine that lawsuit. His actions were an 
attack on the separation of powers between the executive and judicial 
branches when he abused his power in an effort to obstruct justice. 
Remember, he impeded a lawsuit the highest court in our land allowed to 
proceed on a 9-0 vote.

[[Page 2443]]

  It's clear even to some of the president's supporters that he 
committed many of the offenses he has been charged with. But given this 
outcome, I hope for our system of justice and for our character as a 
nation that these votes are never seen as treating actions such as 
perjury and obstruction of justice lightly, whether by a president or 
by any citizen.
  Our new world of communications has made more information available 
to us than ever before. But it also contributed to the media overkill 
that jaded the American people to this process long ago. When the 
Lewinsky story became public, the president conducted a poll in which 
he learned that Americans would tolerate a private affair, but not 
perjury or obstruction of justice. His goal from that point on to was 
to poison the well of public opinion. Once the focus shifted away from 
the facts and toward opinion, once the clatter and clutter echoed on 
24-hour talk television, the president's goal was reached. But the 
facts remain, and they are not in dispute.
  Montanans didn't send me to the Senate to be a weathervane, shifting 
in the wind, but to be a compass. It may be common to say the 
president's offenses don't ``rise to the level of high crimes and 
misdemeanors,'' but I believe that would ignore our history and what we 
stand for as a nation.
  That's why I also oppose censuring the president. The Constitution 
gives us one way to deal with impeachable offenses: a yes or no vote on 
guilt. Anything else would be like amending the Constitution on the fly 
and infringing on the separation of powers between the branches of 
government.
  As we accept this outcome and move forward, we have plenty of time 
left ahead to help out Montana's farm and ranch communities, which is 
my top priority. We have time to save Social Security in a way that 
fixes the program without raising taxes. We have time to give control 
of education back to parents and teachers, and to give federal funds to 
classrooms, not bureaucrats. We have time to cut the record burden of 
taxation on Montanans, many of whom are forced to take more than one 
job to make ends meet.
  We should all roll up our sleeves and get to work.
  Mr. INHOFE. Mr. Chief Justice, in the absence of hearing something 
that I haven't heard or seeing something that is unforeseen up to now, 
it is my plan to vote for conviction on the two Articles of 
Impeachment.
  I think this is probably the most important vote I will cast during 
the course of my lifetime. I say it very sincerely. I believe we are 
going to rise to the occasion.
  I had an experience back in 1975, 24 years ago. I was a member of the 
State Senate in Oklahoma. I can remember being called for jury duty, 
and I was very happy to find myself assigned to a murder case about 
which I had already expressed a definite opinion. I said I believed 
this defendant was surely guilty, and besides, I was the author of the 
capital punishment bill in the state legislature. So I thought for sure 
I wasn't going to be qualified as a juror.
  Well, I went through the qualification procedure and somehow they 
qualified me. Five days later, I was the foreman of the jury that 
acquitted that accused murderer. This can happen. It is an experience 
that taught me a lot about our judicial system.
  I sometimes say one of the few qualifications I have for the U.S. 
Senate is I am not a lawyer. So that when I read the Constitution, I 
know what it says; when I read the oath of office, I know what it says; 
when I read the law, I know what it says. I don't have to clutter up my 
mind with what the definition of ``is'' is. So it makes it a little 
easier for me.
  From a nonlawyer perspective let me share a couple of observations.
  First, insofar as perjury is concerned--lying under oath--I might be 
wrong, but I don't think there is a Senator in this Chamber who doesn't 
believe the President lied under oath.
  I quote from the White House counsel, Charles Ruff, himself who said: 
``Reasonable people can believe the President lied under oath.''
  I quote from Senator Chuck Schumer who said: ``He lied under oath 
both in the Paula Jones deposition and what he said in the grand 
jury.''
  I quote from Representative Robert Wexler, a strong supporter of the 
President, who serves on the House Judiciary Committee, who said: ``The 
President did not tell the truth. He lied under oath.''
  I quote from former U.S. Senator Paul Simon, one of my favorite 
Democrat colleagues, who appeared with me on a television program 
before the trial, who said: ``You have to be an extreme Clinton zealot 
to believe perjury was not committed.''
  Second, as a non-attorney, I have a hard time reconciling the idea 
that there might be certain permissible exceptions to telling the truth 
under oath. Maybe you who are attorneys, and have a different 
background than mine, see it differently. But how can you reconcile 
this idea that under some conditions--if the subject matter is sex or 
something else--you can lie under oath? I really have a hard time with 
this.
  I know that morality is not supposed to be the issue here. We are 
supposed to concentrate on the two specific Articles of Impeachment. 
However, I don't think anyone can completely compartmentalize himself 
and totally disregard other things going on.
  All of us get many, many letters from young children, parents, 
teachers, and others who are deeply distressed about the President's 
behavior and its impact on the moral health of the Nation. I think I am 
very fortunate because my kids are all in their upper thirties and my 
eight grandchildren (make that nine--I count them when they are 
conceived) are all under 6, so I don't get those embarrassing 
questions. But I know many parents are struggling with this.
  The other thing that concerns me is the reprehensible, consistent 
attitude this president has displayed over the years against women. 
Take Paula Jones as just one example. She may not win a popularity 
poll, but her civil rights have just as much standing as anyone else's, 
do they not? Is not our country based on the principle that even the 
least among us is entitled to equal treatment under the law?
  It amazes me how these feminist organizations continue to hold this 
President in such high regard--groups such as the National Organization 
of Women. I went back and read their bylaws. They claim to want to 
protect women with regard to ``equal rights and responsibilities in all 
aspects of citizenship, public service, employment . . . including 
freedom from discrimination.''
  And here we have a president who not only misused his power to seduce 
a college-age intern, but who has also engaged in extensive similar 
misconduct outside of his marriage. It is not just Monica Lewinsky. 
There is Gennifer Flowers, Elizabeth Ward Gracen, Paula Jones, Kathleen 
Willey, Dolly Kyle Browning, Beth Coulson, Susan McDougal, Cristy 
Zercher--the list goes on and on.
  This President has a consistent pattern of using and abusing women. 
You know that. I imagine most of you watched the Monica Lewinsky tapes 
as I did. I don't know why the House managers didn't pick this up--
somehow they let it slip through--about when she told this story 
concerning the two security badges. She came here to Washington, this 
wide-eyed kid, and there is a blue badge that lets you get into the 
White House proper and a pink badge that lets you only into the Old 
Executive Office Building. And she wanted to be in there--in the West 
Wing--where she could see what was going on.
  She had the pink badge so she had to be escorted to the West Wing by 
someone else. So the very first day she meets and talks to the 
President in person, he begins the relationship we're talking about. He 
didn't even know her name. And then he reached across and grabbed her 
pink badge, yanked it down, and said, ``This is going to be a 
problem.'' I don't think there is anyone in the room who doesn't know 
what he was referring to. He was preparing to use this girl and abuse 
her and discard her like an old shirt. But I know that

[[Page 2444]]

these are not things the lawyers expect us to consider.
  I do want to give another observation, though. I thought the playing 
field would be very uneven when this trial started. The members of the 
Judiciary Committee who are the House managers are all lawyers. But 
mostly, they are Congressmen first. Many of these Congressmen-lawyers 
had not been in a courtroom for literally years. And here they were 
taking on the most prestigious, the most prominent, the most skilled, 
the most experienced, the highest priced lawyers anywhere in America. 
And yet when they finished with their opening statements, there was no 
doubt the House managers had risen superbly to the occasion, and I 
believe they have done a great job throughout.
  The White House lawyers are very skilled, very persuasive people. I 
would make this observation--again, a non-lawyer observation: I felt 
that three or four of them should have quit their opening remarks about 
5 minutes sooner than they did. They had a tendency to close their 
presentations with arguments that undermined their credibility.
  Cheryl Mills, for example, was really doing well, and she was very 
persuasive until she started at the very last talking about the 
President's record on civil rights, as if the civil rights of a person 
his associates had dubbed as ``trailer park trash'' were not 
significant, or the dignity of the intern he had branded ``a stalker'' 
was not significant. I really think she destroyed her otherwise very 
persuasive presentation.
  I think the same thing was true with Gregory Craig. He ended by 
talking about how conviction in this case would somehow ``destroy a 
fundamental underpinning of democracy'' by overturning the results of 
an election, as if Bob Dole would come in if that were to happen.
  Even our good friend, Dale Bumpers--I knew Dale Bumpers long before I 
came here to the U.S. Senate--did a great job. But I think he should 
have quit early, too, because at the very last it sounded like he was 
predicating the innocence of this President on his foreign policy. And 
as I just look at Iraq and what is going on over there, I think if that 
had been the test for this, I could have made up my mind a lot earlier.
  Another perspective I bring to this is as chairman of the Armed 
Services Subcommittee on Readiness. Having been in the service myself, 
and knowing how important discipline is, I am very disturbed that we 
have so many cases where severe punishment is dealt to individuals who 
have engaged in conduct far less serious than that of the President. 
Consider:
  Captain Derrick Robinson, an Army officer, was caught up in the 
Aberdeen sex misconduct case and is serving time in Leavenworth for 
admitting to consensual sex with an enlisted person who was not his 
wife.
  Delmar Simpson is serving 25 years in a military prison because a 
court-martial found that, even though his relationship with a female 
recruit was consensual, the power granted him by his rank made such 
consensual sex with a subordinate unacceptable. Think of the power 
granted this President by his rank.
  Remember Kelly Flinn. She is not flying B-52s anymore. She was forced 
out the Air Force for lying about an adulterous affair.
  Sergeant Major Gene McKinney, the Army's top enlisted man, was tried 
for perjury, adultery, and obstruction of justice--all concerning 
sexual misconduct. He was convicted of obstruction, but not before his 
attorney asserted at the trial how people in uniform rightly ask: ``How 
can you hold an enlisted man to a higher standard than the President of 
the United States, the Commander in Chief?''
  So I have looked at this and studied it. I think anyone who votes to 
acquit has to say that we are going to hold this President to a lower 
standard of conduct and behavior than we hold other people. I do not 
understand how they can come to any other conclusion.
  My wife and I have been married 40 years. I have a thing called the 
wife test. You go home and when you want to get an opinion that is 
totally apolitical, you ask your wife. So I went home and I presented 
the case--as explained so eloquently by the White House lawyers and 
others--on why we could have a lower standard of conduct for a 
President than we have for a judge. And I know the argument. And I 
expressed the argument to my wife in the kitchen. I said, there are a 
thousand judges, only one President. I went through the whole thing. 
Then she looked up and said, ``I thought the President appointed the 
judges.'' You know, my wife is so dumb, she is always asking me 
questions I can't answer.
  But I really believe that in this case we are getting at the truth. I 
really believe that the President of the United States should be held 
to the very highest of standards.
  You know, Winston Churchill said: ``Truth is incontrovertible. 
Ignorance may deride it, panic may resent it, malice may destroy it, 
but there it is.''
  I think we have seen the truth. And I think the final truth is that 
this President should be held to the very highest of standards.
  Sometimes when I am not really sure I am right, I consult my best 
friend. His name is Jesus. And I asked that question. Now I will quote 
to you the response that is found in Luke: ``From one who has been 
entrusted with more, much more will be asked.''
  Mr. Chief Justice, I think Jesus is right.
  Mr. CLELAND, Mr. Chief Justice, inasmuch as the impeachment trial of 
the President has focused on the importance of oaths, I have begun to 
reflect on the oaths I have taken in my life. In terms of affirming my 
allegiance to this nation and the United States Constitution, I have 
taken an oath four times. I have followed up each oath with my 
signature.
  The first such oath I took was when I was 21 years old. I was sworn 
in to the United States Army as a young Second Lieutenant. Later I 
followed my flag and my Commander-in-Chief in being a part of the armed 
military forces in the Vietnam War.
  After the war, I took another oath. This time I was sworn in as head 
of the Veterans' Administration under President Carter. I still 
remember that turbulent time after the Vietnam War when so many of my 
fellow veterans were returning from that conflict. The words from 
Abraham Lincoln's second inaugural address seemed to constantly echo in 
my mind: ``. . .to care for him who has borne the battle and for his 
widow and his orphan.'' Having been wounded in Vietnam myself I felt a 
grave responsibility to carry out my oath on behalf of my fellow 
veterans.
  The next time I took an oath it was January, 1997. It was on the 
occasion of being sworn into the United States Senate. As Vice 
President Al gore swore the new Senators in, I placed my right elbow on 
my Bible and raised my left hand in an oath to defend the Constitution 
against ``all enemies, foreign and domestic.'' Once in the Senate, I 
was fortunate to have been selected to follow distinguished former 
Georgia Senators Richard B. Russell and Sam Nunn in service on the 
Senate Armed Services Committee. I fully expected that any threat to 
our Constitution, our electoral process, or our delicately-honed system 
of checks and balances would come from outside our country, not from 
within.
  I was wrong.
  This leads me to my most recent oath to do ``impartial justice'' in 
the Senate in the impeachment trial of the President of the United 
States. In my personal view, this final oath, sealed with my signature 
in a book which will become part of the archives of American history, 
is a culmination of the other three oaths I have taken.
  I have sworn to defend this country.
  I have sworn to take care of its defenders.
  I have sworn to uphold the Constitution for which my fellow defenders 
have suffered and died.
  How can I now turn my back and ignore the challenge to that 
Constitution posed by this precedent-setting, first-time ever 
impeachment of an elected President of the United States?
  I cannot.

[[Page 2445]]

  When my name is called in regular order for my vote on the articles 
of impeachment, I will vote ``not guilty.''
  I have reached my decision after much effort. I have tried to keep an 
open mind and an open heart. I have attempted to search the depths of 
American history and the lore of our English forebearers for insight 
and guidance. I have counseled privately with experts on American 
history and constitutional law. I have met with knowledgeable sources 
inside and outside the government. I have personally listened to 
constituents in my state and throughout the nation. I have talked to 
them on the phone, read their letters and scanned their e-mail. I have 
tried to weave an appropriate course through the barrage of media talk 
and the system of political reporters doing their duty.
  I have given it my best shot.
  I understand now what Alexander Hamilton meant when he predicted 212 
years ago that individual Senators faced with an impeachment trial had 
the ``awful discretion'' of removing a President. Yet, I believe 
Hamilton was correct when long ago he advocated placing his faith in 
the Senators, where he hoped to find, ``dignity and independence.'' I 
believe that under the circumstances the Senate has conducted itself 
appropriately, and has complied with Hamilton's standards of conducting 
an impeachment trial with ``dignity and independence.'' I also believe 
the Senate should continue to follow the standards set by our Founding 
Fathers regarding the use of impeachment power. According to the 
Founders as articulated in the Constitution, the impeachment clearly 
should be reserved for ``bribery, treason or other high crimes and 
misdemeanors.'' This language did not just turn up in the Constitution 
overnight. The language grew and evolved over a period of months in 
Philadelphia in 1787.
  One of the Founding Fathers who especially impressed me is George 
Mason. Mason had an interesting background. Like many of our country's 
early statesmen, he was from Virginia. For me, Mason is a bridge of 
insight into what the impeachment clause in the Constitution is all 
about.
  Mason was a soldier. Indeed, he was an officer, a colonel. He, too, 
understood the grave responsibility of military leadership, of leading 
men in combat and in caring for them afterwards. He certainly knew 
about the gravity of his own personal oath. It was Mason, then, who 
articulated during the Constitutional Convention that the phrase in the 
Constitution regarding impeachment must be more fully fleshed out and 
should more appropriately read ``. . . and other high crimes and 
misdemeanors against the state.''
  Here was a soldier of the American Revolution. Here was an officer in 
that Revolution working with his fellow statesmen charting out a course 
for the Nation's future. Here was a brother of the bond from Northern 
Virginia who wanted to make sure the actual Constitutional language was 
clear that any impeachment must rise to a high level. According to the 
thrust of Mason's argument, for an impeachment of the President to be 
legitimate, the impeachable offenses must pose a threat to the nation 
itself. The Committee which reviewed the language believed that the 
phrase ``against the state'' was redundant, and, in effect, assumed.
  President Clinton has committed serious offenses. His personal 
conduct in this matter was, as I have said before, wrongful, 
reprehensible and indefensible. He has admitted to personal offenses, 
and will be appropriately judged for his misconduct elsewhere. In my 
judgement, under all the others I have taken under the United States 
Constitution, his offenses do not rise to the required level for 
impeachable offenses under the United States Constitution.
  I will be voting against conviction and removal from office of the 
President on both articles because I do not believe that these 
particular charges reach the high standard for impeachment which I 
believe that George Mason and the other Founders intended: that such an 
offense must be conduct which threatens grievous harm to our entire 
system. I provided more detail about the reasons for these conclusions 
in an earlier statement I submitted for the Record, and I ask unanimous 
consent that those remarks be inserted following this statement.
  As the Senate concludes this trial, I am reminded of other words from 
Abraham Lincoln's second Inaugural Address: ``with malice toward none, 
with clarity for all, let us bind up the nation's wounds . . .'' If 
Lincoln can say that as the nation was concluding the most divisive 
time in our history, which ultimately resulted in the first impeachment 
trial of an American President, surely we can say that to each other 
and to our nation as we conclude this historical second impeachment 
trial.
  It is time to end this trial.
  It is time to let the President conclude the term he was elected to 
by the American people.
  It is time to put an end to partisan bickering about the motives and 
conduct of all of those who have become involved in this sad episode.
  It is time for us all to bind up the nation's wounds.
  It is time to get on with the business of the American people we were 
elected to conduct.
  I ask that a supplement of my statement be printed in the Record.
  Thank you.
  There being no objection, the statement was ordered to be printed in 
the Record, as follows:

         The Impeachment of President William Jefferson Clinton

       Mr. CLELAND. Mr. President, let me begin by saying that the 
     reason we are here today, the reason the United States Senate 
     is being asked to exercise what Alexander Hamilton termed the 
     ``awful discretion'' of impeachment, is because of the 
     wrongful, reprehensible, indefensible conduct of one person, 
     the President of the United States, William Jefferson 
     Clinton. Indeed, I believe it is conduct deserving of the 
     censure of the Senate, and I will support such a resolution 
     when it comes before us.
       The question before the Senate, however, is not whether the 
     President's conduct was wrong, or immoral, or even 
     censurable. We must decide solely as to whether or not he 
     should be convicted of the allegations contained in the 
     Articles of Impeachment and thus removed from office. In my 
     opinion, the case for removal, presented in great detail in 
     the massive 60,000 page report submitted by the House, in 
     many hours of very capable but often repetitive presentations 
     to the Senate by the House Managers and the President's 
     defense team, and in many additional hours of Senators' 
     questioning of the two sides, fails to meet the very high 
     standards which we must demand with respect to Presidential 
     impeachments. Therefore, I will vote to dismiss the 
     impeachment case against William Jefferson Clinton, and to 
     vote for the Senate resuming other necessary work for the 
     American people.
       To this very point, I have reserved my judgment on this 
     question because of my Constitutional responsibility and Oath 
     to ``render impartial justice'' in this case. Most of the 
     same record presented in great detail to Senators in the 
     course of the last several weeks has long been before the 
     public, and indeed most of that public, including editorial 
     boards, talk show hosts, and so forth, long ago reached their 
     own conclusions as to the impeachment of President Clinton. 
     But I have now heard enough to make my decision. With respect 
     to the witnesses the House Managers apparently now wish to 
     depose and call before the Senate, the existing record 
     represents multiple interrogations by the Office of the 
     Independent Counsel and its Grand Jury, with not only no 
     cross-examinations by the President's counsel but, with the 
     exception of the President's testimony, without even the 
     presence of the witnesses own counsel. It is difficult for me 
     to see how that record would possibly be improved from the 
     prosecution's standpoint. Thus, I will not support motions to 
     depose or call witnesses.
       In reaching my decision on impeachment, there are a number 
     of factors which have been discussed or speculated about in 
     the news media which were not a part of my calculations.
       First of all, while as political creatures neither the 
     Senate nor the House can or should be immune from public 
     opinion, we have a very precise Constitutionally-prescribed 
     responsibility in this matter, and popular opinion must not 
     be controlling consideration. I believe Republican Senator 
     William Pitt Fessenden of Maine said it best during the only 
     previous Presidential Impeachment Trial in 1868:
       ``To the suggestion that popular opinion demands the 
     conviction of the President on these charges, I reply that he 
     is not now on trial before the people, but before the Senate 
     . . . The people have not heard the evidence as we have heard 
     it. The responsibility is not on them, but upon us. They have 
     not taken an oath to `do impartial justice according to the 
     Constitution and the laws.' I have taken

[[Page 2446]]

     that oath. I cannot render judgment upon their convictions, 
     nor can they transfer to themselves my punishment if I 
     violate my own. And I should consider myself undeserving of 
     the confidence of that just and intelligent people who 
     imposed upon me this great responsibility, and unworthy of a 
     place among honorable men, if for any fear of public 
     reprobation, and for the sake of securing popular favor, I 
     should disregard the convictions of my judgment and my 
     conscience.''
       Nor was my decision premised on the notion, suggested by 
     some, that the stability of our government would be severely 
     jeopardized by the impeachment of President Clinton. I have 
     full faith in the strength of our government and its leaders 
     and, more importantly, faith in the American people to cope 
     successfully with whatever the Senate decides. There can be 
     no doubt that the impeachment of a President would not be 
     easy for the country but just in this Century, about to end, 
     we have endured great depressions and world wars. Today, the 
     U.S. economy is strong, the will of the people to move beyond 
     this national nightmare is great, and we have an experienced 
     and able Vice President who is more than capable of stepping 
     up and assuming the role of the President.
       Third, although we have heard much argument that the 
     precedents of judicial impeachments should be controlling in 
     this case, I have not been convinced and did not rely on such 
     testimony in making my decision. After review of the record, 
     historical precedents, and consideration of the different 
     roles of Presidents and federal judges, I have concluded that 
     there is indeed a different legal standard for impeachment of 
     Presidents and federal judges. Article II, Section 4 of the 
     Constitution provides that ``the President, Vice President, 
     and all civil officers of the United States, shall be removed 
     from Office on Impeachment for, and Conviction of, Treason, 
     Bribery, or other high Crimes and Misdemeanors.'' Article 
     III, Section I of the Constitution indicates that judges 
     ``shall hold their Offices during good Behavior.'' Presidents 
     are elected by the people and serve for a fixed term of 
     years, while federal judges are appointed without public 
     approval to serve a life tenure without any accountability to 
     the public. Therefore, under our system, impeachment is the 
     only way to remove a federal judge from office while 
     Presidents serve for a specified term and face accountability 
     to the pubic through elections. With respect to the differing 
     impeachment standards themselves, Chief Justice Rehnquist 
     once wrote, ``the terms `treason, bribery and other high 
     crimes and misdemeanors' are narrower than the malfeasance in 
     office and failure to perform the duties of the office, which 
     maybe grounds for forfeiture of office held during good 
     behavior.''
       And my conclusions with respect to impeachment were not 
     based upon consideration of the proper punishment of 
     President Clinton for his misdeeds. During the impeachment of 
     President Nixon, the Report by the Staff of the Impeachment 
     Inquiry concluded that ``impeachment is the first step in a 
     remedial process--removal from office and possible 
     disqualification from holding future office. The purpose of 
     impeachment is not personal punishment; its function is 
     primarily to maintain constitutional government.'' Regardless 
     of the outcome of the Senate impeachment trial, President 
     Clinton remains subject to censure by the House and Senate, 
     and criminal prosecution for any crimes he may have 
     committed. Whatever punishment President Clinton deserves for 
     his misdeeds will be provided elsewhere.
       Finally, I do not believe that perjury or obstruction of 
     justice could never rise to the level of threatening grievous 
     harm to the Republic, and thus represent adequate grounds for 
     removal of a President. However, we must approach such a 
     determination with the greatest of care. Impeachment of a 
     President is, perhaps with the power to declare War, the 
     gravest of Constitutional responsibilities bestowed upon the 
     Congress. During the history of the United States, the Senate 
     has only held impeachment trials for two Presidents, the 1868 
     trial of President Johnson, who had not been elected to that 
     office, and now President Clinton. Although the Senate can 
     look to impeachment trials of other public officials, 
     primarily judicial, as I have already said, I do not believe 
     that those precedents are or should be controlling in 
     impeachment trials of Presidents, or indeed of other elected 
     officials.
       My decision was based on one overriding concern: the impact 
     of this precedent-setting case on the future of the 
     Presidency, and indeed of the Congress itself. It is not Bill 
     Clinton who should occupy our only attention. He already 
     stands rebuked by the House impeachment votes, and by the 
     words of virtually every member of Congress of both political 
     parties. And even if we do not remove him from office, he 
     still stands liable to future criminal prosecution for his 
     actions, as well as to the verdict of history. No, it is Mr. 
     Clinton's successors, Republican, Democrat or any other 
     Party, who should be our concern.
       The Republican Senator, Edmund G. Ross of Kansas, who 
     ``looked down into my open grave'' of political oblivion when 
     he cast one of the decisive votes in acquitting Andrew 
     Johnson in spite of his personal dislike of the President, 
     explained his motivation this way:
       ``In a large sense, the independence of the executive 
     office as a coordinate branch of the government was on trial 
     . . . If . . . the President must step down . . . upon 
     insufficient proofs and from partisan considerations, the 
     office of President would be degraded, cease to be a 
     coordinate branch of government, and ever after subordinated 
     to the legislative will. It would practically have 
     revolutionized our splendid political fabric into a partisan 
     Congressional autocracy.''
       While our government is certainly on a stronger foundation 
     now than in the aftermath of the Civil War, the basic point 
     remains valid. If anything, in today's world of rapidly 
     emerging events and threats, we need an effective, 
     independent Presidency even more than did mid-19th Century 
     Americans.
       While in the history of the United States the U.S. Senate 
     has never before considered impeachment articles against a 
     sitting elected official, we do have numerous cases of each 
     House exercising its Constitutional right to, ``punish its 
     Members for disorderly behavior, and, with the concurrence of 
     two-thirds expel a Member.'' However, since the Civil War, 
     while a variety of cases involving personal and private 
     misconduct have been considered, the Senate has never voted 
     to expel a member, choosing to censure instead on seven 
     occasions, and the House has rarely chosen the ultimate 
     sanction. Should the removal of a President be subject to 
     greater punishment with lesser standards of evidence than the 
     Congress has applied to itself when the Constitution appears 
     to call for the reverse in limiting impeachment to cases of 
     ``treason, bribery and other high crimes or misdemeanors?'' 
     In my view, the answer must be NO.
       Thus, for me, as one United States Senator, the bar for 
     impeachment and removal from office of a President must be a 
     high one, and I want the record to reflect that my vote to 
     dismiss is based upon a standard of evidence equivalent to 
     that used in criminal proceedings--that is, that guilt must 
     be proven ``beyond a reasonable doubt''--and a standard of 
     impeachable offense which, in my view, conforms to the 
     Founders' intentions that such an offense must be one which 
     represents official misconduct threatening grievous harm to 
     our whole system of government. To quote Federalist No. 65, 
     Hamilton defined as impeachable, ``those offenses which 
     proceed from the misconduct of public men, or, in other 
     words, from the abuse or violation of some public trust. They 
     are of a nature which may with peculiar propriety be 
     denominated POLITICAL, as they relate chiefly to injuries 
     done immediately to the society itself.'' As I have said 
     before, I can conceive of instances in which both perjury and 
     obstruction of justice would meet this test, and I certainly 
     believe that most, if not all, capital crimes, including 
     murder, would qualify for impeachment and removal from 
     office. However, in my judgment, the current case does not 
     reach the necessary high standard.
       In the words of John F. Kennedy, ``with a good conscience 
     our only sure reward, with history the final judge of our 
     deeds,'' I believe that dismissal of the impeachment case 
     against William Jefferson Clinton is the appropriate action 
     for the U.S. Senate. It is the action which will best 
     preserve the system of government which has served us so well 
     for over two hundred years, a system of checks and balances, 
     with a strong and independent chief executive.
       In closing, I wish to address those in the Senate and 
     House, and among the American public, who have reached a 
     different conclusion than have I in this case. I do not 
     question the sincerity or legitimacy of your viewpoint. The 
     process itself pushes us to make absolute judgments--yes or 
     no to conviction and removal from office--and the nature of 
     debate yields portraits of complex issues in stark black-and-
     white terms, but I believe it is possible for reasonable 
     people to reach different conclusions on this matter. Indeed, 
     I recognize that, while my decision seeks to avoid the 
     dangers of setting the impeachment bar too low, setting that 
     bar too high is not without risks. I believe the House 
     Managers spoke eloquently about the need to preserve respect 
     for the rule of law, including the critical principle that no 
     one, not even the President of the United States, is above 
     that rule. However, I have concluded that the threat to our 
     system of a weakened Presidency, made in some ways 
     subordinate to the will of the legislative branch, outweighs 
     the potential harm to the rule of law, because that latter 
     risk is mitigated by: an intact, independent criminal justice 
     system, which indeed will retain the ability to render final, 
     legal judgment on the President's conduct; a vigorous, 
     independent press corps which remains perfectly capable of 
     exposing such conduct, and of extracting a personal, 
     professional and political price; and an independent Congress 
     which will presumably continue to have the will and means to 
     oppose Presidents who threaten our system of government.
       By the very nature of this situation, where I sit in 
     judgment of a Democratic President as a Democratic Senator, I 
     realize that my decision cannot convey the non-partisanship 
     which is essential to achieve closure on this matter, one way 
     or the other. Indeed, in

[[Page 2447]]

     words which could have been written today, the chief 
     proponent among the Founding Fathers of a vigorous Chief 
     Executive, Alexander Hamilton, wrote in 1788, in No. 65 of 
     The Federalist Papers, that impeachments ``will seldom fail 
     to agitate the passions of the whole community, and to divide 
     them into parties, more or less friendly or inimical, to the 
     accused. In many cases, it will connect itself with the pre-
     existing factions, and will enlist all their animosities, 
     partialities, influence and interest on side, or on the 
     other; and in such cases there will always be the greatest 
     danger, that the decision will be regulated more by the 
     comparative strength of the parties than by real 
     demonstration of guilt or innocence.''
       I have, however, in making my decision laid out for you the 
     standards which I believe to be appropriate whenever the 
     Congress considers the removal from office of an elected 
     official, whether Executive Branch, or Legislative Branch. I 
     will do my best to stand by those standards in all such cases 
     to come before me while I have the privilege of representing 
     the people of Georgia in the United States Senate, regardless 
     of the party affiliation of the accused. I only hope and pray 
     that no future President, of either Party, will ever again 
     engage in conduct which provides any basis, including the 
     basis of the current case, for the Congress to consider the 
     grave question of impeachment.

  Mr. FRIST. I rise to explain my decision to convict President William 
Jefferson Clinton on two Articles of Impeachment charging him with High 
Crimes and Misdemeanors. I have heard from thousands of fellow 
Tennesseans during this trial, and their opinions were deeply split. 
While I looked to the people of Tennessee for guidance, responsibility 
for my final vote ultimately turned on my own conscience. I am sure 
that this will be one of the most important votes I cast as a United 
States Senator, and I am honored to explain fully my vote.


                  Introduction and the Burden of Proof

  I sought throughout President Clinton's trial to be true to my oath 
to do ``impartial justice according to the Constitution and laws of the 
United States.'' When I raised my right hand and swore that oath on 
January 7, I accepted a solemn responsibility. I did not approach this 
trial with some preordained outcome in mind; I carefully listened 
during the five weeks of this trial to the evidence and the arguments, 
and sought to do justice.
  In considering the allegations against President Clinton, I believed 
that I should apply a ``beyond a reasonable doubt'' burden of proof--
even though the Constitution does not specify a particular burden of 
proof in impeachment trials. The Constitution entrusts the decision to 
convict an impeached officer to the individual judgment of each 
Senator; however, I wanted to give the President the benefit of the 
same high standard of proof applied in criminal trials. I would remove 
a President from office only if the House Managers met this rigorous 
burden of proof.
  The jury instructions used in federal courts explain what must be 
established to meet this burden of proof:

       Proof beyond a reasonable doubt does not mean proof beyond 
     all possible doubt. Possible doubts or doubts based purely on 
     speculation are not reasonable doubts. A reasonable doubt is 
     based on reason and common sense. It may arise from evidence, 
     the lack of evidence, or the nature of the evidence.
       Proof beyond a reasonable doubt means proof which is so 
     convincing that you would not hesitate to rely and act on it 
     in making the most important decisions in your own lives.

  In the end, I concluded beyond a reasonable doubt that President 
Clinton repeatedly lied under oath before a federal grand jury. I also 
concluded beyond a reasonable doubt that he engaged in a calculated, 
premeditated campaign to obstruct justice. I now wish to address each 
of those articles of impeachment in turn.


                           Grand Jury Perjury

  The circumstantial and direct evidence demonstrates beyond a 
reasonable doubt that President Clinton committed perjury during his 
grand jury appearance. The criminal law of the United States forbids 
perjury before a grand jury. To prove a case of grand jury perjury, a 
prosecutor must demonstrate: (1) that the defendant testified under 
oath before a grand jury; (2) that the testimony so given was false in 
one or more respects; (3) the false testimony concerned material 
matters; and (4) the false testimony was knowingly given. There are 
three instances during the President's August 17, 1998 grand jury 
testimony in which these four elements were established.
  First, he lied when he denied that he had ``sexual relations'' with 
Ms. Lewinsky, even under his own interpretation of the definition of 
that term. Quite simply, Ms. Lewinsky offered a detailed account of 
numerous times when they did engage in such relations, even under 
President Clinton's interpretation of that term. Her testimony is 
corroborated by contemporaneous accounts she offered to a number of 
friends and professional counselors. President Clinton conjured up a 
tortured definition of the term ``sexual relations'' to explain the 
blue dress (and its physical evidence corroborating sexual relations) 
to the grand jury--while still asserting the truthfulness of his 
earlier denial of ``sexual relations'' in his deposition in the Paula 
Jones sexual harassment suit. This attempt to have it both ways, in 
turn, forced him to lie before the grand jury about the details and 
nature of his relationship with Ms. Lewinsky. There is no doubt in my 
mind that President Clinton lied about this matter. Moreover, this lie 
was material; that is, it had the tendency to affect the grand jury's 
investigation. That investigation focused on President Clinton's 
possible perjury and obstruction of justice in the Jones case. Lying to 
the grand jury to attempt to deny the earlier perjury in the Jones 
deposition was clearly material to that investigation.
  Second, President Clinton lied to the grand jury about his attempt to 
coach Ms. Currie immediately following the deposition. This coaching, 
which I will discuss in more detail later, was explicitly denied by the 
President before the grand jury. His testimony that he made a series of 
false statements to Ms. Currie and sought her agreement with them 
merely in an attempt ``to refresh [his] memory about what the facts 
were'' and that he was ``trying to get as much information as quickly 
as [he] could'' is false. He did not ask her what she recalled; he made 
false declarations and sought her agreement with them. One cannot 
refresh one's recollection by making knowingly false statements to 
another. This is a classic example of why courts instruct juries to use 
their common sense in resolving factual disputes. Moreover, President 
Clinton coached her twice in the exact same manner: Once on January 18, 
1998, and again on January 20 or January 21. He had just finished lying 
in his civil deposition on January 17, and he wanted to enlist her 
support for his lies if she was called by Paula Jones' lawyers--as she 
was on January 22. Again, this issue was plainly material to an 
investigation into President Clinton's possible obstruction of justice.
  Third, President Clinton lied to the grand jury about attempting to 
influence the testimony of his aides whom he knew would be called 
before the grand jury. These allegations are discussed later. For now, 
it is only important to note that he testified that he ``said to them 
things that were true about this relationship. . . . So, I said things 
that were true. They may have been misleading. . . .'' In fact, he lied 
to his aides, as even Sidney Blumenthal stated in his videotaped 
deposition testimony. It is understandable that President Clinton would 
not admit to the grand jury that he lied to these aides, because to do 
so would admit that he obstructed justice. He could have asserted his 
fifth amendment right against self-incrimination; however, he chose to 
lie. He denied that he had lied to these aides. The Supreme Court has 
addressed just this sort of a lie, stating: ``A citizen may decline to 
answer the question, or answer it honestly, but he cannot with impunity 
knowingly and willfully answer with a falsehood.''


                         Obstruction of Justice

  The evidence establishes beyond a reasonable doubt that President 
Clinton obstructed justice. He suggested that Ms. Lewinsky submit a 
false affidavit in a civil case. He coached a potential witness (Ms. 
Currie) in the civil case and the grand jury investigation by repeating 
a series of assertions to her that he knew to be false in the hope that 
she would adopt those assertions as her own. Last, he made false

[[Page 2448]]

statements to his top advisors, knowing that they would then repeat 
those statements to a federal grand jury.
  The United States criminal code makes it illegal for one to obstruct 
justice. The precise wording of the general obstruction of justice 
statute--Title 18, section 1503 of the United States Code--provides: 
``Whoever . . . corruptly . . . influences, obstructs, or impedes, or 
endeavors to influence, obstruct, or impede, the due administration of 
justice, shall be punished. . . .'' Courts have interpreted the word 
``corruptly'' to mean that the defendant had an intent to obstruct, 
impair, or impede the due administration of justice. In other words, 
one need not use threats of force or intimidation to obstruct justice. 
Thus, one who merely proposes to a potential witness that the witness 
lie in a judicial proceeding is guilty of obstructing justice.
  Also, an additional federal statute, section 1512 of Title 18, deals 
specifically with witness tampering. It provides: ``Whoever . . . 
corruptly persuades another person, or attempts to do so, or engages in 
misleading conduct toward another person with intent to . . . 
influence, delay, or prevent the testimony of any person in an official 
proceeding . . . shall be fined under this title or imprisoned. . . .'' 
Unlike section 1503, section 1512 has been interpreted as applying to 
more than just ``pending'' judicial proceedings; courts have found it 
adequate that a defendant ``feared'' that such a proceeding might begin 
and sought to influence the testimony of those who may be witnesses in 
such a proceeding.
  With this statutory backdrop in mind, I turn first to the allegation 
that President Clinton urged Ms. Lewinsky to submit a false affidavit 
and deny their sexual relationship. The evidence establishes that he 
telephoned her between 2:00 and 2:30 a.m. on December 17, 1997. 
According to Ms. Lewinsky, President Clinton informed her that she was 
on the witness list in the Paula Jones sexual harassment lawsuit. He 
then suggested that, if she were subpoenaed to give a deposition, ``she 
could sign an affidavit to try to satisfy [Ms. Jones's] inquiry and not 
be deposed.'' As has been pointed out, a truthful affidavit about their 
relationship would not have prevented her deposition; in fact, a 
truthful affidavit would have encouraged the deposition. 
Notwithstanding this obvious fact, President Clinton's lawyers 
vigorously asserted at trial that a ``limited but truthful'' affidavit 
could have misled the Jones lawyers sufficiently to avoid her being 
deposed.
  The problem with this defense is that President Clinton on December 
17, in the very same telephone conversation in which he suggested the 
affidavit, also encouraged Ms. Lewinsky to continue with the ``cover 
stories'' they had used to hide their relationship. According to Ms. 
Lewinsky, he told her that she ``should say she visited [the White 
House] to see Ms. Currie and, on occasion when working at [the White 
House] she brought him letters when no one else was around.'' Of 
course, Ms. Lewinsky was going to the White House to see President 
Clinton, and the only time she ``brought him letters'' was to cover 
their illicit rendezvous. These cover stories, hatched as explanations 
to prevent co-workers from discovering their sexual relationship, 
amounted to obstruction of justice when the President suggested their 
use in judicial proceedings. These cover stories ultimately found their 
way into drafts of Ms. Lewinsky's affidavit. The evidence establishes 
beyond a reasonable doubt that President Clinton was urging Ms. 
Lewinsky to file a false and misleading affidavit in the Jones case.
  As one court has observed, conduct amounting to less than an explicit 
command to lie can nonetheless form the basis for an obstruction 
conviction: ``The statute prohibits elliptical suggestions as much as 
it does direct commands.'' There is no reasonable doubt that President 
Clinton was suggesting that Ms. Lewinsky file an affidavit consistent 
with their previously-agreed upon cover stories. Ms. Lewinsky testified 
that she understood after that conversation that she would deny their 
relationship to Paula Jones' lawyers.
  The evidence also establishes beyond a reasonable doubt that 
President Clinton sought to tamper with the testimony of his secretary, 
Ms. Currie. Within a few hours of completing his deposition in the 
Jones case on Saturday, January 17, 1998, President Clinton called 
Betty Currie and made an unusual request: She should come to work to 
meet with him the following day, Sunday. Sunday afternoon, she met with 
him at her desk outside the Oval Office. Ms. Currie testified that he 
seemed ``concerned.'' He told her that he had been asked questions the 
previous day about Ms. Lewinsky. According to Ms. Currie, he then said, 
```There are several things you may want to know.''' After that, he 
made a series of statements:

       ``You were always there when she was there, right?''
       ``We were never really alone.''
       ``Monica came on to me, and I never touched her, right?''
       ``You can see and hear everything, right?''
       ``Monica wanted to have sex with me, but I told her I 
     couldn't do that.''

  Ms. Currie further testified that, although President Clinton did not 
``pressure'' her, she observed from his demeanor and the way he said 
these statements that he wanted her to agree with those statements. She 
did agree with each statement, though she knew them to be false or 
beyond her knowledge.
  There is no reasonable doubt that this meeting was an attempt by 
President Clinton to coach Ms. Currie's probable testimony. In fact, 
during the previous day's deposition, President Clinton invoked Ms. 
Currie's name in relation to Ms. Lewinsky on at least six different 
occasions, even going so far as to tell Ms. Jones' lawyers that they 
would have to ``ask Betty'' whether he was ever alone with Ms. Lewinsky 
between midnight and 6:00 a.m. Simply put, he made her a potential 
witness in the Jones case. One who attempts to corruptly influence the 
testimony of a prospective witness has obstructed justice. (In fact, 
the Jones lawyers issued a subpoena for Ms. Currie a few days after 
President Clinton's deposition.)
  President Clinton's assertion that he posed these statements to Ms. 
Currie merely to refresh his recollection and test her own memory of 
the events is undercut by his repetition of the coaching exercise a few 
days later. According to Ms. Currie, either two or three days later he 
called her in again, presented the same statements (with which she 
again agreed), and had the same ``tone and demeanor'' as he had during 
the Sunday coaching session. This amounted to egregious witness 
tampering.
  Last, the unrefuted evidence establishes beyond a reasonable doubt 
that President Clinton obstructed justice by giving a false account of 
his relationship with Ms. Lewinsky to aides that, by his own admission, 
he knew might be called by the grand jury. John Podesta, then-Deputy 
Chief of Staff to President Clinton, testified before the grand jury 
about a conversation with President Clinton on January 23, 1998:

       [H]e said to me he had never had sex with her [Ms. 
     Lewinsky], and that--and that he never asked--you know, he 
     repeated the denial, but he was extremely explicit in saying 
     he never had sex with her.

                           *   *   *   *   *

       Well, I think he said--he said that--there was some spate 
     of, you know, what sex acts were counted, and he said that he 
     had never had sex with her in any way whatsoever--that they 
     had not had oral sex.

  This, as we now know, was false. Yet, according to Mr. Podesta, 
President Clinton ``was very forceful. I believed what he was saying.''
  More important, on January 21, 1998, President Clinton told aide 
Sidney Blumenthal the following utterly false story:

       He said, ``Monica Lewinsky came at me and made a sexual 
     demand on me.'' He rebuffed her. He said, ``I've gone down 
     that road before, I've caused pain for a lot of people and 
     I'm not going to do that again.''
       She threatened him. She said that she would tell people 
     they'd had an affair, that she was known as the stalker among 
     her peers, and that she hated it and if she had an affair or 
     said she had an affair then she wouldn't be a stalker any 
     more.

  This story is eerily reminiscent of President Clinton's coaching of 
Betty Currie (``Monica wanted to have sex with me, but I told her I 
couldn't do

[[Page 2449]]

that.''). President Clinton sought to portray himself as a victim of 
Ms. Lewinsky. At the time, Mr. Blumenthal ``certainly believed his 
story. It was a very heartfelt story, he was pouring out his heart, and 
I believed him.'' Mr. Blumenthal admitted to the Senate that he now 
knows the President's story was a lie.
  President Clinton does not deny the testimony of either Mr. Podesta 
or Mr. Blumenthal. Their testimony establishes a clear-cut case of 
obstruction. The President admitted knowing that both were likely to be 
called to testify before the grand jury. According to their testimony, 
he provided them with a false account of his relationship with Ms. 
Lewinsky--and President Clinton does not deny their version of events. 
The unrefuted evidence establishes obstruction of justice. As the 
Second Circuit Court of Appeals has stated: ``The most obvious example 
of a section 1512 [witness tampering] violation may be the situation 
where a defendant tells a potential witness a false story as if the 
story were true, intending that the witness believe the story and 
testify to it before the grand jury.''
  I did not vote to convict President Clinton on every ground presented 
by the House Managers. For example, though I was concerned that the 
intensification of efforts to secure Ms. Lewinsky a private sector job 
were undertaken to influence her testimony (and secure a false 
affidavit from her), I had reasonable doubt that there was a 
sufficiently direct nexus between the two to justify finding against 
President Clinton on that basis. The videotaped testimony of Vernon 
Jordan nearly made the case, but fell just short. Accordingly, I did 
not consider that element of the obstruction of justice case to be 
grounds for removing President Clinton.
  Another serious allegation of obstruction of justice concerned the 
mysterious fact that subpoenaed gifts from President Clinton to Ms. 
Lewinsky were found underneath Ms. Currie's bed. The evidence tends to 
establish that President Clinton directed Ms. Currie to get gifts from 
Ms. Lewinsky; however, I cannot say that the proof establishes beyond a 
reasonable doubt that this occurred. In the absence of hearing directly 
from Ms. Currie as a witness on this issue and having the chance to 
look her in the eye and gauge her credibility, I cannot resolve beyond 
a reasonable doubt the testimonial conflict between Ms. Lewinsky and 
Ms. Currie on who initiated the return of the gifts. The weight of the 
evidence suggests that Ms. Currie initiated the return on instructions 
from President Clinton; however, without Ms. Currie's testimony, I 
cannot say that case has been proven ``beyond a reasonable doubt.''
  For this reason, I am disappointed that the Senate chose to cut 
itself off from hearing from whatever fact witnesses either side wished 
to call. I voted to allow live testimony, but the motion was 
unsuccessful. Although there was ample evidence upon which to convict 
for many allegations, some allegations remain in doubt. Rather than 
have a traditional trial, we listened to lawyers argue, then argue some 
more, and then a bit more. The only time we actually had a chance to 
see witnesses was when we were allowed to see the videotapes of Ms. 
Lewinsky, Mr. Jordan, and Mr. Blumenthal. I learned from those tapes. 
The presence of live witnesses in accord with Senate precedent would 
have been helpful. I regret that the Senate chose not to allow live 
witnesses and that we did not see their cross-examination. We did not 
use the most powerful weapons in our truth-seeking arsenal. This 
truncated ``trial'' may have been politically expedient, but I doubt 
history will judge it kindly.


                      High Crimes and Misdemeanors

  Having found that President Clinton committed the crimes of perjury 
and obstruction of justice, my duty to uphold the Constitution of the 
United States made it clear that these offenses were high crimes and 
misdemeanors requiring his removal from office. There is no serious 
question that perjury and obstruction of justice are high crimes and 
misdemeanors. Blackstone's famous Commentaries--widely read by the 
framers of the Constitution--put perjury on equal footing with bribery 
as a crime against the state. Perjury was understood to be as serious 
as bribery, which is specifically mentioned in the Constitution as a 
ground for impeachment. Today, we punish perjury and obstruction of 
justice at least as severely as we punish bribery. Apparently, the 
seriousness of perjury and obstruction of justice has not diminished 
over time.
  Indeed, our own Senate precedent establishes that perjury is a high 
crime and misdemeanor. The Senate has removed seven federal judges from 
office. During the 1980s, three judges were convicted for the high 
crime and misdemeanor of perjury. Federal judges are removed under the 
exact same Constitutional provision--Article II, section 4--upon which 
we remove presidents. To not remove President Clinton for grand jury 
perjury lowers uniquely the Constitution's removal standard, and thus 
requires less of the man who appoints all federal judges than we 
require of those judges themselves.
  I will have no part in the creation of a constitutional double-
standard to benefit the President. He is not above the law. If an 
ordinary citizen committed these crimes, he would go to jail. Many 
senators have voted to remove federal judges guilty of perjury, and I 
have no doubt that the Senate would do so again. Those who by their 
votes today confer immunity on the President for the same crimes do 
violence to the core principle that we are all entitled to equal 
justice under law.
  Moreover, I agree with the view of Judge Griffin Bell, President 
Jimmy Carter's Attorney General and a former Judge of the United States 
Court of Appeals, Fifth Circuit. Judge Bell has stated: ``A President 
cannot faithfully execute the laws if he himself is breaking them.'' 
These offenses--perjury and obstruction of justice--are not trivial; 
they represent an assault on the judicial process. Again, Judge Bell's 
words are instructive:

       Truth and fairness are the two essential elements in a 
     judicial system, and all of these statutes I mentioned, 
     perjury, tampering with a witness, obstruction of justice, 
     all [are] in the interest of truth. If we don't have truth in 
     the judicial process and in the court system in our country, 
     we don't have anything. So, this is serious business.

  I agree. The crimes of perjury and obstruction of justice are public 
crimes threatening the administration of justice. They therefore fit 
Alexander Hamilton's famous description of impeachable offenses in 
Federalist No. 65: ``[O]ffences which proceed from the misconduct of 
public men, or, in other words, from the abuse or violation of some 
public trust.'' The electorate entrusted President Clinton to enforce 
the laws, yet he chose to engage in a pattern of public crime against 
our system of justice. We must not countenance the commission of such 
serious crimes by the chief executive of our nation.
  The President broke his oath to tell the truth, the whole truth, and 
nothing but the truth, so help him God. He likewise broke his oaths to 
take care that the laws be faithfully executed.
  Just how important are oaths? We take oaths to substantiate the 
sanctity of some of our highest callings. Years ago, I took the 
Hippocratic Oath to become a physician. In January 1995, I took an oath 
of office as a United States Senator to preserve, protect, and defend 
the Constitution of the United States. Then, just last month, I had to 
take a special oath of impartial justice for this impeachment trial. 
Raising your right hand and swearing before God is meant to be serious 
business. Swearing falsely is equally serious. I recall the conclusion 
of the Hippocratic Oath:

       If I fulfill this oath and do not violate it, may it be 
     granted to me to enjoy life and art, being honored with fame 
     among all men for all time to come; if I transgress it and 
     swear falsely, may the opposite of all this be my lot.

  President Clinton broke his oaths; the opposite of honor and fame 
should be his lot.
  Many of my colleagues have publicly expressed their belief that 
President Clinton broke his oaths and committed the crimes of perjury 
and obstruction of justice. Some have gone further and said that these 
are high crimes and

[[Page 2450]]

misdemeanors. Yet they flinched from removing President Clinton from 
office, hoping that we could just move on, put this behind us, and 
``heal'' the Nation.
  Although our acquittal of President Clinton may bring initial relief 
at the end of this ordeal, it will also leave unfortunate, lasting 
lessons for the American people: Integrity is a second-class value; the 
hard job of being truthful is to be left to others; and virtue is for 
the credulous. Though we do not know how these lessons will manifest 
themselves over time in our society, they will not be lost. Thus, I do 
not believe the acquittal of President Clinton will heal the wounds of 
this ordeal; rather, acquittal regrettably will inject a slow-acting 
moral poison into the American consciousness.


                          Concluding Thoughts

  There is one aspect of the case that made me uncomfortable: The 
perjury and obstruction of justice arose out of an illicit sexual 
relationship between President Clinton and a young White House intern. 
President Clinton no doubt sought to shield the knowledge of that 
relationship from his family and staff, and that impulse is 
understandable. However reprehensible his affair might be, both it and 
his efforts to hide it were originally of no concern to the public or 
the Senate. None of us can claim to be free from sin.
  What began as an attempt to keep an affair secret from family and co-
workers, however, escalated into illegal activity when keeping that 
affair secret trumped the civil rights of Paula Jones to seek redress 
in court, and, in turn, thwarted the investigation of a federal grand 
jury. President Clinton chose to cheat. Cheating the judicial process, 
whether to keep an ordinary citizen from having her day in court or to 
avoid criminal indictment, is wrong.
  Dr. William Osler was a late 19th century physician and is regarded 
as the father of modern surgery. In a lecture to his medical students 
about the pursuit of truth, he said:

       Start with the conviction that absolute truth is hard to 
     reach in matters relating to our fellow creatures, healthy or 
     diseased, that slips in observation are inevitable even with 
     the best trained faculties, that errors in judgment must 
     occur in the practice of an art which consists largely in 
     balancing probabilities.
       Start, I say, with this attitude of mind, and mistakes will 
     be acknowledged and regretted; but instead of a slow process 
     of self-deception, with ever-increasing inability to 
     recognize truth, you will draw from your errors the very 
     lessons which may enable you to avoid their repetition.

  President Clinton's repetition of wrong, often illegal choices most 
disturbs me. He faced a series of choices about his affair once our 
system of justice became concerned with it. He could have come clean in 
the civil deposition and urged Ms. Lewinsky to do the same. He did not. 
When the story became public, he could have then come clean to the 
American public and revised his deposition testimony. Instead, he took 
a poll. Having learned that the American people would forgive him for 
adultery, but not for perjury or obstruction of justice, he declared 
that he would just have to ``win.'' He then wagged his finger at us on 
national TV and chided us for believing what has since proven true. He 
embarked on a quiet smear campaign against Ms. Lewinsky, calling her a 
``stalker'' and sending aides into the grand jury to repeat that mean-
spirited falsehood. Above all else, he could have come clean when he 
went before the grand jury. Indeed, the discovery of the infamous blue 
dress served as a powerful reminder to tell the truth. But he continued 
to lie.
  The pattern of behavior is disturbing. That pattern is driven by 
President Clinton's choice, on every occasion in this saga, to put his 
self-interest above the the public interest. Indeed, President Clinton 
is well down the dangerous road Dr. Osler described to his students: 
``A slow process of self-deception.''
  To me, his perjury before the grand jury was defining. Some of my 
fellow senators urged him not to lie in that grand jury, lest he be 
impeached. He had a chance to try to set matters right by the American 
people and by our system of justice. Instead, he lied. It has been 
said, ``Character is what we know about ourselves. Reputation is what 
others know about us.'' What we now know about President Clinton's 
conduct before the bar of justice illuminates his integrity: We learned 
that he always cheated and put himself above the law. We can pray that 
God forgive President Clinton for his sins, but we cannot ignore the 
consequences of his behavior to our society.
  We in the Senate faced the difficult choice of deciding whether to 
remove President Clinton. To find him ``not guilty'' of perjury and 
obstruction of justice and leave him in office would corrode the 
respect we all have for the Office of President. More troubling, the 
example to our youth would be destructive. I have three sons, 15, 13, 
and 11 years old. As anyone with children knows, President Clinton's 
conduct has undermined all our efforts to instill in our children two 
essential virtues: truthfulness and responsibility. If we allow a known 
perjurer and obstructor of justice to continue in the Office of 
President and lead us into the 21st Century, we set a sad example for 
future generations.
  In a recent sermon on the topic, ``What Do I Tell My Children about 
the Crisis in Washington?'' a minister quoted from Michael Novak's book 
The Experience of Nothingness:

       The young have a right to learn a way of discriminating 
     right from wrong, the posed from the authentic, the excellent 
     from the mediocre, the brilliant from the philistine, the 
     shoddy from the workmanlike. When no one with experience 
     bothers to insist--to insist--on such discrimination, they 
     rightly get the idea that discernment is not important, that 
     no one cares either about such things--or about them.

  President Clinton committed perjury and obstructed justice. In so 
doing, he broke his oath of office and his oath to tell the truth. He 
broke the public trust. I took an oath to do impartial justice by the 
Constitution and laws of our country. I had a duty to the Constitution 
and laws of this nation to convict President Clinton, so I voted to 
remove him from office and restore the trust of the American people in 
the high Office of President. Prosperity is never an excuse to keep a 
President who has committed High Crimes and Misdemeanors.
  Though many of my colleagues agreed with these conclusions, two-
thirds of the Senate did not. I am concerned about the message this 
acquittal will send to our youth. So, I am convinced that you and I now 
have a shared duty: Rather than give in to easy cynicism, we should 
work toward integrity and responsibility in all that we do. We must 
remind our children that telling the truth and accepting responsibility 
for wrongdoing are virtues with currency. Our nation's future depends 
on how earnestly we fulfill that shared duty.
  Mr. BUNNING. This is my first speech on the floor of the U.S. Senate. 
I had hoped my opening speech would be about Social Security. This 
year, in my opinion, we have a golden window of opportunity to reform 
and strengthen this vital program and I had hoped to use my first 
comments on the Senate floor to help open the debate on real Social 
Security reform.
  Unfortunately, it didn't turn out that way. Of necessity, my opening 
speech in this body is about the Articles of Impeachment against 
President Clinton. It was not my choice!
  In fact, none of us have much choice in this matter. Here in the U.S. 
Senate, we have been charged with the responsibility of looking at the 
facts as presented by the managers from the House of Representatives. 
Each of us took an oath to do impartial justice.
  And the Constitution doesn't give us much wiggle room when it comes 
to choices. The Framers were pretty explicit about our options. If we 
determine that the President is guilty of the charges as outlined in 
the two Articles of Impeachment, the penalty is removal from office. We 
have no other choice.
  Because we are all political animals, I think it is natural that the 
legitimacy of this process and the outcome of this debate will be 
clouded to some degree by the perception that it is a partisan 
exercise.
  Many of the President's defenders and many of our friends in the 
media,

[[Page 2451]]

in fact, have insisted all along that the whole process has been driven 
by partisan Republicans who are intent to removing a Democrat President 
they do not like from office.
  The difficulty you run into when you start throwing around the term 
``partisan'' politics is that is seldom a one-way street.
  Is it any more ``partisan'' to blindly support the impeachment of a 
President of the other party than it is to blindly support a President 
of your own regardless of the facts? Of course not. Just as each of us, 
in keeping with our oath to do impartial justice, must strive to avoid 
a partisan, knee-jerk solution to the process, we must also not let 
ourselves be deterred from doing what we feel is right simply to avoid 
charges of partisanship.
  So, hiding behind the charge that the process has been tainted by 
political partisanship gives us no relief from our responsibility to 
look at the facts nor does it expand our choices.
  So, it is the facts that matter. And each of us must weigh them 
individually. We are not talking about public opinion polls. They 
should have no bearing on the case at this point. It is a question of 
facts pure and simple.
  Each of us must weigh those facts individually. We might reach 
different conclusions. But if I determine that the president is guilty, 
and if you determine that the president is guilty, based on those facts 
we don't have any options. We must vote to convict and to remove the 
President from office.
  I am personally convinced that the President is guilty under both of 
the Articles of Impeachment presented to us by the House Managers.
  The managers from the House have presented a strong case that 
President Clinton committed perjury. The circumstantial and supporting 
evidence is overwhelming that Bill Clinton did lie under oath to the 
grand jury when he testified about his attorney's use of a false 
affidavit at his deposition. He lied under oath to the grand jury when 
he testified about the nature of his relationship with Miss Lewinsky. 
He lied under oath to the grand jury about his conversations with Betty 
Currie.
  That is perjury. That is a felony. We cannot uphold our reverence for 
the rule of law and ignore it.
  The circumstantial and supporting evidence is also overwhelming that 
the President did willfully obstruct justice when he encouraged Miss 
Lewinsky to file a affidavit in the Jones case; when he coached Betty 
Currie on how to respond to questions about his relationship with Miss 
Lewinsky.
  When he lied to aides whom he knew would be called as grand jury 
witnesses, when he promoted a job search for Miss Lewinsky, and when he 
encouraged Miss Lewinsky to return the gifts he had given her, he was 
attempting to obstruct justice.
  After listening to the facts and the evidence, and after listening to 
the President's defense team try to refute the charges, I have 
determined that he is guilty as charged.
  I have tried to the best of my ability to reach this determination 
impartially without being biased by my political affiliation. Have I 
been successful? I believe so.
  I am encouraged in the belief that I have reached the proper 
conclusion for the proper reasons by the harsh wording of the 
resolution being circulated by some of the defenders of the President, 
senators who oppose impeachment but support a censure resolution.
  The most recent version of a censure resolution that I have seen 
admits that the President engaged in shameless, reckless and 
indefensible conduct. It goes on to say that the President of the 
United States deliberately misled and deceived the American people and 
officials of the United States government.
  It also says that the President gave false or misleading testimony, 
and impeded discovery of evidence in judicial proceedings and that, as 
a result, he deserves censure.
  These are the people who are opposed to the Articles of Impeachment.
  The Constitution doesn't really give us that kind of choice. If the 
President is guilty of these charges, he must be convicted and he must 
be removed from office. Censure is not an option.
  I would rather be speaking about Social Security but I wasn't given a 
choice in the matter.
  I would prefer not to vote to convict any President of Articles of 
Impeachment. But I don't have a choice in that matter either.
  If he is guilty, he must be convicted. And I believe he is guilty as 
charged.
  There is one central, elemental ingredient that is necessary to the 
success of our ability, as a nation, to govern ourselves. That is 
trust.
  Before a President takes office, he swears a solemn oath, to 
``preserve, protect and defend the Constitution of the United States.''
  We accept his word on that.
  When the Vice President, United States Senators and members of the 
House of Representatives take office, they are required to take an oath 
``to support and defend the Constitution of the United States against 
all enemies, foreign and domestic.''
  We trust that they will live up to that oath.
  We administer these oaths and we accept them as binding because 
government, at least in this nation, is, above all else, a matter of 
trust. Trust is the glue that holds it all together. If that trust is 
destroyed or tarnished, it seriously undermines the basic foundations 
of our government.
  The President's defenders try to excuse him by saying that if he did 
lie under oath and obstruct justice, he did it to protect himself and 
his family from personal embarrassment about sexual indiscretions, and 
somehow this makes the lies all right.
  It doesn't. When he lied and when he tried to hide his lies from the 
grand jury, he broke trust with the nation's justice system. He broke 
faith with the American people.
  Not only did he break the law, he also violated the sacred trust of 
the office of the President. And in so doing, he violated his oath of 
office.
  And that raises the two Articles of Impeachment to a level that 
definitely justifies his removal from office.
  It is a matter of trust. And it leaves us no choice but to vote for 
conviction.
  Mr. DURBIN. From the opening statement to the closing argument, 
Chairman Henry Hyde and the House managers stated repeatedly that what 
is at stake in this trial is the rule of law.
  In a compelling reference to the life of Sir Thomas More, Mr. Hyde 
quoted from ``A Man for All Seasons'' by Robert Bolt to remind us that 
More was prepared to die rather than swear a false oath of loyalty to 
the King and his church.
  But Mr. Hyde did not read my favorite passage from that work. Let me 
share it with you and tell you why I think it is important to us in 
this deliberation.

       MORE. The law, Roper, the law. I know what's legal not 
     what's right. And I'll stick to what's legal.
       ROPER. Then you set Man's law above God's!
       MORE. No far below; but let me draw your attention to a 
     fact--I'm not God. The currents and eddies of right and 
     wrong, which you find such plain-sailing, I can't navigate, 
     I'm no voyager. But in the thickets of the law, oh there I'm 
     a forester. I doubt if there's a man alive who could follow 
     me there, thank God.
       ALICE. While you talk, he's gone!
       MORE. And go he should if he was the devil himself until he 
     broke the law!
       ROPER. So now you'd give the Devil benefit of law!
       MORE. Yes. What would you do? Cut a great road through the 
     law to get after the Devil?
       ROPER. I'd cut down every law in England to do that!
       MORE. Oh? And when the last law was down, and the Devil 
     turned round on you--where would you hide, Roper, the laws 
     all being flat? This country's planted thick with laws from 
     coast to coast--Man's laws, not God's--and if you cut them 
     down--and you're just the man to do it--d'you really think 
     you could stand upright in the winds that would blow then? 
     Yes, I'd give the Devil benefit of law, for my own safety's 
     sake.

  Sir Thomas More's words remind us the law must be followed not only 
by the accused but also by the accusers.
  And every day in America many who are accused of crimes are released 
because this government has violated their constitutional rights--
denied them due process--forsaken the rule of law.

[[Page 2452]]

  How American of us--we are prepared to release an accused because the 
accuser has not played by the rules * * * the rules of law.
  The House managers built their case on one key question: Did the 
President respect the rule of law?
  But the same managers who exalted the rule of law from their opening 
words would have us ignore the process which brought us to this moment:
  An independent counsel in name only whose conduct before the House 
Judiciary Committee led Sam Dash, former Watergate counsel and Mr. 
Starr's ethics advisor, to resign in protest.
  Listen to Dash's words to Kenneth Starr in his letter of resignation 
concerning Starr's appearance and testimony:

       In doing this you have violated your obligation under the 
     Independent Counsel Statute and have unlawfully intruded on 
     the power of impeachment, which the Constitution gives solely 
     to the House. . .. By your willingness to serve in this 
     improper role (advocating for impeachment) you have seriously 
     harmed the public confidence in the independence and 
     objectivity of your office.

  Much has been made about the so-called pep rally which some House 
Democrats held for President Clinton at the White House after the 
impeachment vote. If you wonder how those members could act in such an 
apparently partisan manner after the historic vote on December 19, 
1998, I hope you will recall that the Republican members of the House 
Judiciary Committee gave Mr. Starr nothing less than a standing ovation 
when he completed testimony which Mr. Dash characterized as 
``unlawful'' and ``improper''.
  Is it any wonder why the American people think this whole impeachment 
process reeks of partisanship and the excesses of the Independent 
Counsel have created a bipartisan sentiment to amend if not abolish 
that statute?
  Did Mr. Starr respect the rule of law?
  And the House Judiciary Committee--so anxious to complete its work in 
a lame-duck session that it would vote for impeachment without calling 
a single material witness. Then those same managers came to the Senate 
and argued justice cannot be served without live witnesses on the 
Senate floor.
  When I listen to Paul Sarbanes recount the painstaking efforts to 
avoid partisanship during the impeachment hearing on President Nixon, 
it is a stark contrast to the committee process which voted these 
articles of impeachment against President Clinton.
  Did the House Judiciary Committee respect the rule of law?
  And the House of Representatives, an institution which I was proud to 
serve in for 14 years, was so hellbent on impeachment that it bent the 
rules, denied the regular order of business and refused the House a 
vote to censure this President so the Majority would have a better 
chance to visit the disgrace of impeachment on his record.
  Did the House of Representatives respect the rule of law?
  But it would be too facile to dismiss this case simply because the 
process which brought us to this point is so suspect--too easy to 
discard the fruit of this poisoned tree.
  Justice and history will not give us this easy exit. We must ignore 
the birthing of this impeachment and judge it on its merits.
  First, let me stipulate the obvious. The personal conduct of this 
President has been disgraceful and dishonorable. He has brought shame 
on himself and his Presidency. No one--not any Senator in this Chamber 
nor any person in this country--will look at this President in the same 
way again.
  I have known Bill Clinton for 35 years. I remember him as a popular 
student when we both attended Georgetown. And I know despite all of the 
talk about ``compartmentalization'' that this man has suffered the 
greatest humiliation of any President in our history. I hope his 
marriage and his family can survive it.
  But our job is not to judge Bill Clinton as a person, a husband, a 
father. Our responsibility under the Constitution is to judge Bill 
Clinton as a President, not whether he should be an object of scorn but 
whether he should be removed from office.
  Did William Jefferson Clinton commit perjury or obstruct justice, and 
for these acts should he be removed from office?
  When this trial began I believed that President Clinton's only refuge 
was in a strict reading of ``high crimes and misdemeanors''--that James 
Madison, George Mason and Alexander Hamilton would have to serve as his 
defense team and save this President from removal.
  The managers' case was compelling, but as the defense team rebutted 
their evidence I saw the charges of perjury crack, obstruction of 
justice crumble and impeachment collapse.
  The managers failed in Article I on perjury to meet the most basic 
requirement of the law: specificity. In the Andrew Johnson impeachment 
trial, Senator William Fessenden of Maine pointed out the unfairness of 
failing to name specific charges:

       It would be contrary to every principle of justice to the 
     clearest dictates of right, to try and condemn any man, 
     however guilty he may be thought, for an offense not charged, 
     of which no notice has been given to him, and against which 
     he has had no opportunity to defend himself.

  Senator Fessenden understood the rule of law.
  And by what standard should the President be judged?
  When the House managers discussed the gravity of the case for 
impeachment, they said repeatedly: ``These are crimes.'' But when asked 
why they failed to meet the most basic criminal procedural requirements 
of pleading and proof, Mr. Canady said: ``This proceeding is not a 
criminal trial.''
  And what is the difference between charging a crime and proving 
something less than a crime? The difference is known as the rule of 
law--a rule which requires fair notice and due process whether the 
accused is President or penniless.
  How many times have we seen the House managers run into the brick 
wall of sworn testimony contradicting their charges. On gifts--Monica 
Lewinsky said hiding them was Betty Currie's idea--Betty Currie claimed 
it was Lewinsky's idea--neither of them claimed it was the President's 
idea. On the affidavit issue--the House Managers could not produce one 
witness--not Lewinsky, not Jordan and not the President to support 
their charge of obstruction.
  Time and again the House managers failed to prove their case--failed 
to produce testimony or evidence and at best played to a draw. I don't 
need to remind my colleagues in the Senate that playing to a draw on 
this field comes down in favor of the President.
  The House managers failed to meet their burden of proof.
  And let me say a word about witnesses.
  We have spent a lot of time on this issue. I do not know who came up 
with the limitation of three witnesses for the managers. But is there 
anyone in this chamber who believes that Sidney Blumenthal was a more 
valuable witness to this case than Betty Currie?
  Surely my colleagues in the Senate remember that the House managers 
spent three solid days building their obstruction of justice case on 
concealing gifts and tampering with witnesses. And Betty Currie was 
critical to the most credible charges against the President.
  Then when the House managers were given a chance to call this key 
witness, they refused.
  And what can we conclude from this tactical decision? Let me read 
Rule 14.15 from Instructions for Federal Criminal Cases.

       If it is peculiarly within the power of either the 
     government or the defense to produce a witness who could give 
     relevant testimony on an issue in the case, failure to call 
     that witness may give rise to an inference that this 
     testimony would have been unfavorable to that party. No such 
     conclusion should be drawn by you, however, with regard to a 
     witness who is equally available to both parties or where the 
     testimony of that witness would be merely cumulative.
       The jury must always bear in mind that the law never 
     imposes on a defendant in a criminal case the burden or duty 
     of calling any witnesses or producing any evidence.

  Betty Currie was no help to the House managers in her deposition and 
they clearly concluded she was more likely to hurt than help their case 
if

[[Page 2453]]

called as a witness. The key witness in the obstruction of justice 
charge never materialized and neither did the proof the House managers 
needed.
  How will history judge this chapter in our history?
  The House managers and many of my colleagues believe an acquittal 
will violate the basic American principle of equal justice under the 
law--they argue that acquitting the President will cheapen the 
Presidency--and imperil our nation and its values.
  I have heard my colleagues stand in disbelief that the American 
people could still want a man they find so lacking in character to 
continue as their President. William Bennett and his pharisaical 
followers have profited from books and lectures decrying the lack of 
moral outrage in our nation against Bill Clinton.
  I hope my colleagues will pause and reflect on this conclusion that 
the American people have somehow lost their moral compass--that the 
polls demonstrate our people have lost their soul--and that we, their 
elected leaders, have to impeach this President to remind the American 
people of the values--the integrity--the honor which is so important to 
our nation.
  May I respectfully suggest that those who appoint themselves as the 
guardians of moral order in America risk the vices of pride and 
arrogance themselves. Before we don the armor and choose our side in 
what Manager Hyde calls a ``cultural war,'' let us not give up on the 
wisdom and judgement of the people we represent.
  Like Abraham Lincoln, I am a firm believer in the American people. If 
given the truth they can be depended upon to meet any national crisis.
  And the American people have this right. The President's personal 
conduct was clearly wrong. He has endured embarrassment and will spend 
the rest of his natural life and forever in the annals of history 
branded by this experience. The American people clearly believe that 
the process which brings him before us in this trial was too partisan, 
too unfair, too suspect.
  What has occurred here is a personal and family tragedy--it is not a 
national tragedy which should result in the removal of this President 
from office.
  In 1798, Thomas Jefferson wrote to James Madison: ``History shows 
that in England, impeachment has been an engine more of passion than 
justice.''
  Jefferson feared that even our process for impeachment could be a 
formidable partisan weapon. He feared that a determined faction in 
Congress would use it ``. . .for getting rid of any man whom they 
consider as dangerous to their views, and I do not know that we could 
count on one-third in an emergency.''
  In 1868, with the suffering and death of our Civil War still fresh in 
everyone's mind, this Senate came within one vote of impeaching a 
President who was viewed as too sympathetic to the vanquished South.
  In 1999, after six years and millions of tax dollars spent in 
investigation of this President, I believe the Senate will once again 
cool the political passions, preserve the Presidency, protect the 
Constitution, and prove to Thomas Jefferson that his trust in this body 
and that great document was not misplaced.
  I will vote to acquit William Jefferson Clinton on both Articles of 
Impeachment and support a strong resolution of censure to bring this 
sad chapter in American politics to a close.
  Mr. KYL. This case is about the rule of law--specifically, whether 
actions and statements of President Clinton in federal court 
proceedings have done such harm to the rule of law that he should be 
removed from office. I conclude in the affirmative, and reluctantly 
vote to convict on both Articles of Impeachment.
  Chairman Henry Hyde observed that the House of Representatives had 
come to the Senate ``as advocates for the rule of law, for equal 
justice under law, and for the sanctity of the oath.'' (145 Cong. Rec. 
S221 (January 14, 1999).)
  These are not just grand words.
  The rule of law refers to our judicial process, which is governed by 
uniform standards and procedures that we say will always be guaranteed 
and applied fairly and equally. We are willing to submit ourselves to 
this process because we have worked hard for 210 years to ensure that 
it produces impartial justice for all.
  Equal justice means that each of us, including the least among us, 
has rights that the state is bound to protect; and it surely includes 
the requirement that those who make the laws (including the President) 
must live under them like anybody else.
  And oaths are essential to the rule of law because the judicial 
process is about seeking the truth; and that requires that we be able 
to trust what is said. The oath formalizes the commitment to tell the 
truth, and the whole truth--a commitment so important that its 
violation is itself a crime.
  I believe there are two questions to be answered.
  The first is whether the President impermissibly took the law into 
his own hands in a federal civil rights case and seven months later 
before a federal grand jury in order to suppress the truth. The second 
question is whether, if the President did engage in the impeachable 
conduct, it is a breach serious enough to warrant removal from office.
  The Constitution permits only one vote: to acquit or convict. This 
leaves some in the anomalous position of determining guilt on an 
impeachable offense, but having to vote to acquit because they deem the 
offense insufficiently serious to warrant removal. While the fact that 
the offense is impeachable should itself resolve the issue of 
``proportionality,'' I would not consider it impermissible to reach a 
contrary conclusion, as some will do in this case.
  For my part, I answer both questions in the affirmative. The 
President ``wilfully provided perjurious, false, and misleading 
testimony'' under oath to a grand jury and he ``prevented, obstructed, 
and impeded the administration of justice.'' (H. Res. 611).
  While the House of Representatives asserted that the President's 
actions were criminal, violations of specific criminal statutes are not 
essential for wrongful conduct to constitute the ``high crimes and 
misdemeanors'' that demonstrate unfitness to continue as Chief 
Executive. Most authorities agree a President cannot be prosecuted 
while in office for crimes allegedly committed during his term. So, for 
example, whether a lie under oath would necessarily later result in a 
criminal perjury conviction cannot be known with certainty, and an 
impeachment trial is not an effective forum for establishing criminal 
guilt. It is conduct, not a proven crime, that is the basis for 
impeachment.
  This is one of the reasons why it is clear that each Senator may 
apply his or her standard of proof--it need not be the criminal 
standard ``beyond a reasonable doubt.'' (See Senate Proceedings in the 
Impeachment Trial of Judge Claiborne, S. Doc. No. 99-48, at 150.) 
Moreover, because the Senate constrained the House of Representatives 
as it did--by limiting the number of witnesses that could be deposed, 
by effectively foreclosing other discovery, and by precluding ``live'' 
testimony--it would be unfair to impose a ``beyond reasonable doubt'' 
standard.
  The President's counsel argued that the Senate should not consider 
Article I because the House of Representatives defeated a perjury count 
relating to the Jones civil action. But Article I also included 
allegations of ``perjurious, false, and misleading'' statements in the 
Jones case; so the argument is meritless. Moreover, the President's 
falsehoods in the Jones civil suit also formed part of his strategy to 
obstruct justice.
  What is striking about this case is the President's persistent, 
sustained, carefully calculated, deliberate, and callous manipulation 
of the judicial process for over a year.
  Without attempting to summarize all of the evidence, I conclude that 
the President lied before the federal grand jury about (1) the nature 
of details of his relationship with Ms. Lewinsky; (2) his assertion 
that he told the truth in the Jones deposition; (3) the false and 
misleading statements that he allowed his lawyer to make to a federal 
judge

[[Page 2454]]

in the Paula Jones civil case; and (4) his corrupt efforts to influence 
the testimony of his aides who were potential grand jury witnesses.
  And it seems clear to me that the President obstructed justice--that 
he corruptly: (1) encouraged Ms. Lewinsky to execute a false affidavit; 
(2) encouraged Ms. Lewinsky to lie if called as a witness; (3) 
encouraged Ms. Lewinsky to conceal gifts; (4) encouraged cooperation of 
Ms. Lewinsky through job assistance; (5) allowed his attorney to make 
false and misleading statements about the affidavit; (6) attempted to 
influence the testimony of his secretary, Ms. Currie; and (7) attempted 
to influence the testimony of other aides.
  The final question is whether the President should be removed for his 
actions.
  As a preliminary matter, there can be no doubt that perjurious, 
false, and misleading statements made under oath in federal court 
proceedings are indeed impeachable offenses. The fact that the House of 
Representatives reached this conclusion, of course, establishes the 
precedent as to the kind of conduct in this case. But, it is also 
confirmed by the impeachment and conviction of federal judges--of Judge 
Harry Claiborne, removed in 1986 for filing a false income tax return 
under penalty of perjury, of Judge Walter Nixon, removed in 1989 for 
perjury before a grand jury, and of Judge Alcee Hastings, removed in 
1989 for perjury related to financial misconduct. I cannot agree with 
those colleagues who assert that there is a different standard for a 
President--that it would require a more egregious kind of perjury to 
remove a President than a judge. Nothing in the Constitution suggests 
such a double standard.
  John Jay, the first Chief Justice of the United States, said ``there 
is no crime more extensively pernicious to society'' than perjury, 
precisely because it ``discolors and poisons the streams of justice.'' 
(Grand Jury Charge (C.C.D.N.Y. (Apr. 5, 1792)) (Jay, C.J.), in 2 The 
Documentary History of the Supreme Court of the United States, 1789-
1800: The Justices on Circuit: 1790-1794, at 253, 255 (Maeva Marcus 
ed., 1988).)
  As to obstruction of justice, on which there is no other direct 
precedent, Chief Justice Rehnquist, our presiding officer, in his 
history of impeachment, Grand Inquests, wrote that ``the counts 
relating to the obstruction of justice and to the unlawful use of 
executive power [by President Nixon] were of the kind that would surely 
have justified removal from office.''
  The House managers pointed out, accurately, that even though perjury 
and obstruction of justice are not specifically listed as impeachable 
offenses in the Constitution, the Federal Sentencing Guidelines treat 
these offenses more seriously than they do the crime of bribery--one of 
two specifically enumerated impeachable offenses. Significantly, where 
bribery is committed in connection with a judicial proceeding (such as 
bribing a witness in a case), its seriousness under the Guidelines 
rises to that of perjury and obstruction. When misdeeds, in other 
words, take place in connection with a judicial process, to try to 
affect or control that process, they get extra attention in our legal 
system. They are not simply brushed aside. Far from it. Perjury and 
obstruction are like bribery; they are ``other high crimes'' by any 
reasonable construction.
  The President's counsel argued that the President's conduct could not 
be impeachable because he did not abuse the power of his office in 
conducting ``matters of state,'' and did not violate the public trust. 
But impeachable offenses are not limited to the President's conduct of 
``matters of state.'' If this were so, Richard Nixon could never have 
been impeached. If this were so, a twenty dollar bribe for a Senator to 
vote for a bill would be impeachable, while a million dollar bribe to 
cover up political dirty tricks would not be.
  It simply cannot be, as some have argued, that the only impeachable 
offenses are those that can only be committed by the President. If a 
President commits murder, can he not be removed? Must we wait until his 
term is over to deal with his crime? It is clear that seriously 
wrongful official conduct is impeachable. But it is just as clear that 
impeachment cannot be limited to that.
  It is not only the exercise of presidential power but also the 
violation of a public duty that can constitute impeachable conduct. As 
the head of the Executive Branch, the President has the duty under 
Article II of the Constitution to ``take Care that the Laws be 
faithfully executed.'' The 1974 House Judiciary report on the 
``Constitutional Grounds for Presidential Impeachment'' summarized that 
impeachment of a President can ``be predicated only upon conduct 
seriously incompatible with either the constitutional form and 
principles of our government or the proper performance of 
constitutional duties of the presidential office.'' (Staff of House 
Comm. on the Judiciary, 93rd Cong., 2d Sess. (Comm. Print 1974), 
Constitutional Grounds for Presidential Impeachment, at 27.) Surely the 
violation of constitutional obligations can constitute high crimes or 
misdemeanors for which the President may be impeached. And surely, such 
violation would constitute an abuse of trust by the Chief Executive.
  By his oath of office and Article II responsibilities, President 
Clinton is supposed to see that the sexual discrimination laws are 
faithfully executed. But he thought the Jones case was illegitimate, so 
he took the law into his own hands. His conduct in this case clearly 
violated his public duties, his oath, and the public trust. And it 
interfered with the proper functioning of another branch of the 
government.
  The same is true for his deliberate efforts to impede legitimate 
discovery efforts in federal court proceedings. Such action ``is 
incompatible with . . . the constitutional form and principles of our 
government,'' as the 1974 House Judiciary report said. It simply cannot 
be that a President who wrongfully interferes with the proper 
functioning of another branch of our government by attempting to 
subvert justice in federal court proceedings cannot be impeached 
because he did not do it as President, but, rather, as a citizen.
  That the underlying conduct covered up is sexual, is, if anything, an 
aggravating not a mitigating factor. In sex-discrimination litigation, 
where there is frequently no corroboration for the plaintiff, a 
defendant who lies can easily subvert justice. Had the blue dress not 
been found, with its incontrovertible tangible evidence, I doubt Paula 
Jones would have gotten a dime in settlement.
  Judgements about the severity of the impeachable conduct in this case 
will lead different Senators to reach different conclusions. That is 
why some of us are willing to say reasonable people can differ. For 
those who fear the long-term consequences to the rule of law, however, 
I believe there can be only one result. Anyone who so willfully, 
callously, and persistently connived to deny the federal court and 
grand jury the truth, and who used and abused the highest office in the 
land to advance his personal cover-up is not only no longer worthy of 
trust--which all agree is essential to the conduct of his office--but 
also must be removed to avoid the perpetuation of a legal double 
standard. If federal judges (such as Judges Claiborne, Nixon, and 
Hastings) are removed for similar conduct; if average Americans are 
imprisoned for it, can the rule of law long survive ``special 
exceptions'' for powerful people we like, or who are doing a good job, 
or who hold elective office? None of these rationalizations are 
defenses to illegal or impeachable conduct.
  As I said, sexual harassment cases are precisely the kind of judicial 
proceedings that demand the maximum cooperation of and truth-telling by 
the defendant, because of the lack of third-party witnesses or 
corroborating evidence. In these cases, justice is denied if 
obstruction, witness tampering, or perjury prevent the truth from 
coming out. Can anyone say this is not serious? To what standard of 
seriousness does it not rise? How many plaintiffs will have to lose 
their sexual harassment, domestic violence, or sexual assault cases 
because defendants lie and obstruct justice (and there is no blue dress 
to keep them honest) before it becomes serious?

[[Page 2455]]

  An acquittal in this case will make it harder to deal properly with 
similar conduct in the future. We will be hard pressed to perpetuate a 
double standard, so the lowest common denominator of conduct will be 
established as the permissible norm. And this cannot help but weaken 
the ability of courts to enforce truth-telling and prevent obstruction 
of justice.
  The precedent set by this case may not change the law overnight, but 
this unforgettable episode is now part of the institutional life of our 
country. The chief magistrate perverted justice and remained in power. 
The lesson is corrosive. Like water dripping on a rock, it eventually 
makes a deep hollow in the American justice system.
  It is true the President could be sent to jail later. How does that 
validate his right to appoint judges and be head of U.S. law 
enforcement now? How does that square with his leadership of the armed 
forces right now, as our Commander-in-Chief? Should the standard for 
the President not be at least as high as for those he appoints and 
leads?
  In the end, my colleagues who would censure rather than convict the 
President are right about one thing: the President's conduct is 
``unacceptable.'' But, if conduct is unacceptable, we cannot accept 
it--meaning, we have to do something about it that does not leave it 
stand. And under our Constitution that means removal of the President 
through conviction on the Articles of Impeachment.
  Henry Hyde closed the House case by warning that public cynicism is 
the greatest threat we face. Our failure to remove the President will 
only fuel the cynicism of Americans such as Louie Valenzuela of 
Glendale, Arizona. He was quoted recently in a man-on-the-street 
interview about this case. ``They talk about justice,'' he told the 
Arizona Republic. ``They talk about doing the right thing,'' said Mr. 
Valenzuela. ``But they always look the other way when someone rich, 
famous or powerful does something wrong. Look at O.J. Simpson. Clinton 
will be next. Asi es. (That's just the way it is.)''
  That is not the way it has to be. But how it is, is up to us.
  Mr. SPECTER. Mr. Chief Justice, colleagues, a great deal has been 
spoken in the Chamber about separation of powers and tomes have been 
written on it. And in reading the Constitution, Article I, creating the 
Congress; and Article II, the Executive branch; and Article III, the 
Judiciary, we have seen the wisdom of limiting power through the 
separation of power among the three branches of the Federal government.
  The one provision of the Constitution--the impeachment provision--
reaches across that divide. It is my thinking that before the Congress 
can exercise the power of removal, especially of an American President, 
there has to be a very, very heavy burden of proof.
  I had occasion, fairly recently, to go very deeply into the issue of 
separation of powers when I argued the Base Closing Commission case 
regarding the Philadelphia Navy Yard case, which was unfairly closed--a 
subject that I will not amplify on--and I had an opportunity to appear 
before the Supreme Court.
  In my two earlier speeches during the closed session on the motion to 
dismiss and the issue of depositions, I did end within the allotted 
time. But I will say that the Chief Justice is a good deal more 
tolerant here than in the Supreme Court. In the Supreme Court when I 
argued the Base Closing case, I was cut off in mid-syllable. I didn't 
know that was possible. But with the forcefulness of the Presiding 
Officer, he was able to limit the speakers to the precise time 
allotted. I did not do well in the outcome of that case in the Supreme 
Court. I had done better on my previous appearances in the Supreme 
Court when I was representing the district attorney's office on law and 
order.
  But that sojourn into that case brought me into 200 years of 
reflection and analysis on case law on separation of powers, something 
that is not often done by practicing lawyers, and certainly not 
Senators. It instilled in me a very, very deep appreciation of 
separation of power.
  So when I approached this case--and it has been the toughest case I 
have ever seen, and I think it has been a very, very intense drain on 
this body and all of us individually--the focus I had was: what is the 
burden that you ought to have to show if the Senate is going to remove 
a President? As I reviewed the evidence, I am not satisfied at all that 
that burden was met.
  Perjury is a very tough offense to prove under the standards 
established by the Supreme Court of the United States in the famous 
Bronston case. Bronston was giving testimony in a bankruptcy proceeding 
in New York and was asked about bank accounts in Zurich, and said, ``My 
company had a bank account for about 6 months,'' leading to the 
implication that he did not have a personal bank account when in fact 
he did. His conviction in the District Court was upheld by the Second 
Circuit, but reversed by a unanimous Supreme Court because the 
interrogator, the prosecutor, has to go further. You have to ask the 
last questions to prove perjury.
  The President was very artful, very careful and full of guile as he 
wound his way through the grand jury proceedings. We heard the 
testimony again and again. The President said he told his aides 
``things that were true.'' Well, he didn't comment about the things 
that he told them that were false. But nobody said, ``Did you tell them 
things that were false as well?'' to set the stage for a perjury 
prosecution.
  When asked about Monica Lewinsky--was he alone with her?, on a series 
of rambling answers he said he wasn't alone with her in the hallway. 
But that is not the end of the question. He wasn't alone with her in 
the hallway. But nobody followed up, and said, ``Were you alone with 
her somewhere else?'' which he was not asked. Had he been asked whether 
he was alone with her somewhere else and denied that, there may have 
been a record to establish perjury. On this record, he did not commit 
perjury under the Bronston case.
  The testimony of Betty Currie we heard again and again and again. In 
late January 1998, Betty Currie testified that when the President gave 
her that series of questions, she thought the President was trying to 
lead her, to mold her testimony. Then when she came back to testify in 
July, she said, well, it was different on that occasion. She testified 
that the President gave her the option of either agreeing or 
disagreeing.
  Betty Currie was not a witness in this proceeding. Her deposition was 
not even taken because of very, very restrictive rules which the U.S. 
Senate established for what the House managers could do. The House 
managers were on very, very sharp notice that if they asked for too 
many depositions, they might get none at all. They made their selection 
of witnesses and they left off Betty Currie.
  But had House managers been able to present their case in the normal 
course of events, I dare say the proceeding would have been even 
faster. We heard some 12 days of speeches, 6 days of opening speeches; 
3 and 3 on each side. We could have done that in 2 hours. We then spent 
2 days propounding questions through the Chief Justice where we learned 
very, very little. We heard arguments on the motion to dismiss, and on 
depositions, and arguments on what to do about the witnesses on those 
videotapes. Again and again, we heard legal arguments, but we did not 
hear from witnesses.
  We are bound by this record. It is my view that, on this record, the 
burden of proof has not been met, the kind of a burden that would have 
to be sustained, in my judgment, for the Senate to remove an American 
President.
  Ms. SNOWE. Mr. Chief Justice, distinguished colleagues, let me begin 
by expressing my appreciation to the Chief Justice for his wisdom, for 
his infinite patience, and for conferring upon this body the judicial 
temperament envisioned by the Framers.
  I would also like to commend both the Senate majority and minority 
leaders for upholding the dignity of this body, by preserving 
judiciousness and fairness, and maintaining bipartisanship and 
civility.
  Colleagues, we have arrived at a juncture in our public lives that 
will

[[Page 2456]]

largely define our place before the judgment of history, and I think it 
will be said that justice and the Constitution were well served.
  Indeed, the consequences of our decision are manifest in the words of 
Alexander Hamilton, who wrote of ``the awful discretion which a court 
of impeachment must necessarily have, to doom to honor or to infamy the 
most confidential and the most distinguished characters of the 
community.''
  Those words should weigh heavily upon us. But while the gravity of 
our task is humbling, the genius of our Constitution is ennobling; for 
we deliberate not under the imposing shadow cast by the exceptional men 
who framed this Nation, but in the illuminating light of their wisdom.
  Impeachment was designed by the Framers to be a circuitbreaker to 
protect the Republic, when ``checks and balances'' would not contain 
the darker vagaries of human nature. Impeachment empowers the Senate--
under the most extraordinary of circumstances--to step outside its 
legislative role, reach into the executive branch, and remove a 
popularly elected President.
  Impeachment was not, however, devised as an adjunct or independent 
arm of prosecution. It is not for the U.S. Senate to find solely 
whether the President committed statutory violations.
  Rather, we have a larger question--whether there is evidence that 
persuades us, in my view beyond a reasonable doubt, that the 
President's offenses constitute high crimes and misdemeanors that 
require his removal.
  Here is the precise point of our challenge--to give particular 
meaning to the elusive phrase, ``high crimes and misdemeanors.'' This 
task is critical, because impeachment is not so much a definition, as 
it is a judgment in a particular case--a judgment based not upon an 
exact or universal moral standard--but upon a contemporary and 
historical assessment of interest and need.
  ``High crimes and misdemeanors'' speak to offenses that go to the 
heart of matters of governance, social authority, and institutional 
power--offenses that, in Hamilton's words, ``relate chiefly to injuries 
done immediately to the society itself.''
  And these crimes must be of such magnitude that the American people 
need protection, not by the traditional means of civil or criminal 
law--but by the extraordinary act of removing their duly elected 
President.
  For removal is not intended simply to be a remedy; it is intended to 
be the remedy. The only remedy by which the people--whose core 
interests are meaningfully threatened by the President's conduct--can 
be effectively protected.
  This, to me, is what President Woodrow Wilson meant when he referred 
to ``nothing short of the grossest offenses against the plain law of 
the land.'' This, to me, is what Framer George Mason meant when he 
emphasized ``great and dangerous offenses.''
  So in determining whether this President has committed a ``great and 
dangerous offense'' requiring removal, we must first weigh all of the 
credible evidence to identify which acts were actually committed. Then, 
we must assess the gravity or degree of the misconduct. This process 
requires that we review the acts from their origin, and the 
circumstances in their totality.
  The allegations in article I do not paint a pretty picture. Indeed, 
we are all struggling with having to reconcile the President's lowly 
conduct with the Constitution's high standards. And we should all be 
concerned with the minimal threshold that he has set, and the poor 
example he has created for leadership in this country.
  The President himself admits he gave evasive and incomplete 
testimony. He admits he worked hard to evade the truth. He admits he 
misled advisers, Congress, and the Nation. And he looked all of America 
in the eye--wagging his finger in mock moral indignation when he did 
it.
  The fact is, the truth is not our servant. The truth does not exist 
to be summoned only when expedient. And I find his attempts to contort 
the truth profoundly disturbing. A President should inspire our most 
noble aspirations. Unfortunately, he has fueled our darkest cynicisms.
  And I resent the ordeal he has put this country through--and we 
should make no mistake about it--whatever else may be said, we are here 
today because of the President's actions. I resent the shadow he has 
cast on what should be--and I feel still is--an honorable profession; 
public service. And I think all of us who take our oaths to heart 
should resent it.
  Finally, as a woman who has fought long and hard for sexual 
harassment laws, I resent that the President has undermined our 
progress. No matter how consensual this relationship was, it involved a 
man in a position of tremendous power, with authority over a 21-year-
old female subordinate, in the workplace--and not just any workplace. 
He has shaken the principles of these laws to their core and it saddens 
me deeply.
  But as I work my way through my distaste, my dismay, and my 
disappointment, I return to the discipline that the Constitution 
imposes upon us as triers of fact. My job here is to review the 
evidence, and to measure that evidence against my standard of proof, 
and the constitutional standard of high crimes and misdemeanors.
  So let's look at the evidence. Article I does not go to perjury about 
the underlying relationship--that charge was dismissed by the House. 
Instead, the article before us alleges perjury based on statements 
about statements about conduct. Unfortunately, what this comes down to 
is a case of ``perjury once removed''--an inherently tenuous charge.
  As triers of fact, we are asked under article I not to find whether 
the President lied, but whether he committed the specifically defined 
act of perjury. Here, the law is clear that there must be proof that an 
untruth was told; that it was told willfully; and that it was told 
about a subject matter material to the case. These are the hard rules 
of the statute.
  In this instance, article I alleges perjury in statements the 
President made explaining the nature and details of the relationship. 
Significantly, the underlying subject matter of most of these 
statements was ruled irrelevant and inadmissable in the underlying 
civil case that was itself dismissed and settled. To me, these facts 
undermine the materiality of these statements.
  Article I also alleges perjury in the President's statements 
explaining his concealment of that relationship. Here, I find 
insufficient evidence of the requisite untruth and the requisite 
intent. Given, again, that we are talking here about ``perjury once 
removed,'' I cannot conclude that the President is guilty on article I.
  As I look at article II, I have similar concerns and conflicts. Are 
there any among us who can look at the disturbing pattern that has been 
laid out for us and not be deeply troubled?
  Just look at the allegations. The President may have influenced the 
filing of an affidavit. The President may have initiated the 
concealment of potential evidence. And the President may have 
accelerated a job search, in hopes of influencing a witness.
  But for all of this, there is only circumstantial evidence. Despite a 
64,000 page record and countless hours of argument and testimony, there 
is no direct evidence supporting any of these allegations.
  To the contrary, where there is direct evidence, the testimony is 
against the allegations. Indeed, not one witness with firsthand 
knowledge has come forward since the beginning of this matter to 
corroborate the charges. So, while I can draw inferences from the 
evidence, I cannot draw conclusions beyond a reasonable doubt.
  The Framers clearly prescribed caution when measuring high crimes, 
and such caution is all the more important when a case rests on purely 
circumstantial evidence. Mindful of this caution, I still find that one 
allegation stands out from the rest; the President's attempt to 
influence the potential testimony of his personal assistant.
  Let's look at the facts. In the President's civil deposition, the 
President suggested, at least three times, that the attorneys should 
ask questions of

[[Page 2457]]

his personal assistant. At the end of the deposition, the judge 
reminded him of the confidentiality order not to discuss the testimony 
with others.
  Within 2\1/2\ hours, the President called his personal assistant to 
arrange a rare Sunday meeting. At that meeting, the President disclosed 
to her the contents of his deposition. In a manner that all but reveals 
the President's motives, he included in his discussion with her false 
statements about the circumstances of his relationship. Indeed, she 
would later testify that she believed the President sought her 
agreement with those statements he was posing.
  Consider this critical exchange in the testimony of the President's 
assistant:
  She was asked, ``Would it be fair to say then--based on the way he 
stated it and the demeanor he was using at the time he stated it to 
you--that he wished you to agree to that statement?'' The President's 
assistant nodded. She was then asked, ``And you're nodding your head 
yes, is that correct?'' And she answered, ``That's correct.''
  And he again violated the gag order when he revisited these 
statements with her several days later.
  As an experienced lawyer, the President knew that, by the force of 
his own testimony, he made his assistant a potential witness.
  As a former State attorney general, the President knew he was 
violating the confidentiality order when he spoke with her.
  As a defendant who repeatedly named his assistant, the President knew 
that his assistant would be subpoenaed.
  And she was subpoenaed just 3 days later. But even if she hadn't, the 
President did not need absolute or direct knowledge that his assistant 
would testify. Under the law of obstruction, which, unlike perjury, 
does not expressly require materiality, he only had to know that she 
could offer relevant facts.
  Make no mistake about it, I find the President's behavior deplorable 
and indefensible.
  If I were a supporter, I would abandon him. If I were a newspaper 
editor, I would denounce him. If I were an historian, I would condemn 
him. If I were a criminal prosecutor, I would charge him. If I were a 
grand juror, I would indict him. And if I were a juror in a standard 
criminal case, I would convict him of attempting to unlawfully 
influence a potential witness under title 18 of the United States Code.
  However, I stand here today as a U.S. Senator, in an impeachment 
trial, with but one decision--does the President's misconduct, even if 
deplorable, represent such an egregious and immediate threat to the 
very structure of our Government that the Constitution requires his 
removal?
  To answer this broad question, we need to ask several finer 
questions.
  Do the people believe that their liberties are so threatened that he 
should not serve his remaining 23 months? Is the President's violation 
on par with treason and bribery? What are the inescapable and 
unprecedented effects of removing a duly elected President? And can the 
President's wrongdoing be more effectively remedied by criminal 
prosecution, in a standard court of law, after he leaves office?
  These are the questions which drive our consideration of the 
``gravity'' and ``degree'' of the President's conduct. To this end, I 
return to the words of another Maine Senator, William Pitt Fessenden, 
who during the Andrew Johnson trial said that removal must ``be 
exercised with extreme caution'' and in ``extreme cases.'' It must, he 
said, ``address itself to the country and the civilized world as a 
measure justly called for by the gravity of the crime . . ''
  In this case, I understand how reasonable minds could differ, for I 
have struggled long and hard with my own decision.
  But the Constitution tempers our passion and measures our judgment. 
And the Constitution requires each of us to determine not just whether 
the President violated a statute. For had the Framers intended the 
offenses charged in this case to require removal in any and all 
circumstances, they would have specifically included them in the 
impeachment provisions of the Constitution.
  Because they did not, we are compelled to ask ourselves whether the 
nature and circumstances of his conduct are such that we have no choice 
but to inflict upon him what one of the House managers called ``the 
political equivalent of the death penalty.''
  If I could conclude that this President's conduct is of that nature, 
I would vote to remove him. Because if there is one thing I've learned 
throughout my 25 years in elective office, it is that the really tough 
decisions leave us with but one choice--doing what we know to be right 
and true.
  In this instance, among the seven allegations charged in article II, 
I have only been persuaded beyond a reasonable doubt that the President 
committed one of them. After due consideration of all the factual 
circumstances relating to this one finding, and the constitutional 
dictates and implications of this matter as a whole, I am persuaded 
that the President's wrongdoing can and should be effectively addressed 
by the additional remedy expressly provided by the Framers in the 
Constitution--namely, trial before a standard criminal court. And I am 
further persuaded that future Presidents, and future generations can be 
effectively deterred from such wrongdoing by this impeachment and a 
potential prosecution.
  The President's behavior has damaged the Office of the Presidency, 
the Nation, and everyone involved in this matter. There are only two 
potential victims left--the Senate and the Constitution--and I am 
firmly resolved to allow neither to join the ranks of the aggrieved.
  From the day I swore my oath of impartiality, I determined that the 
only way I could approach this case was to ask myself one question, 
``if I were the deciding vote in this case, could I remove this 
President under these circumstances?'' The answer, I have concluded, is 
``no''--and therefore, I will vote against both articles of 
impeachment.
  Mr. Chief Justice, I came to this process with an open notebook and 
an open mind, determined to honor my oath to do impartial justice and 
serve the best interests of the Presidency, the American people, and 
the Nation. I stand confident that in doing so, my manner has been 
impartial, and my judgment has been measured. Therefore, in my mind and 
in my heart, I believe to a moral certainty that my verdict is just.
  As men and women of honor, that is the highest expectation to which 
we can aspire. For we are writing history with indelible ink, but 
imperfect pens.
  In the end, when future generations dust off the record of what we 
have done here, may they say we validated the Framers' faith in the 
Senate. May they say we reached within ourselves to discover our most 
noble intentions. And may they say we achieved a conclusion worthy not 
just of our time, but of all time.
  One comment about mindset. The Senate really approached this matter 
as if it were a waste of time from the outset. There was an early 
effort to structure a vote to show that more than one-third of the 
Senators would not be for conviction and, therefore, to end it. Then 
when we had the vote on the motion to dismiss and 44 Senators voted to 
dismiss. It confirmed what we all knew; and that is that there would 
not be a two-thirds vote. I think that put a mindset in this body 
really not to conduct a trial.
  The Constitution calls for a trial. The proceeding we had does not 
measure up in any way, shape or form to a trial. It is true that there 
are some few cases submitted on a record where judges are going to 
decide it. But a trial customarily requires witnesses. Had witnesses 
appeared on the floor of the U.S. Senate with examination and cross-
examination, you would have gotten a feel for what happened here. If 
Betty Currie had appeared on the floor of the U.S. Senate, or even if 
her deposition had been taken, there could have been a clarification of 
inconsistencies in her two lines of questioning.
  A word for the future: It would be my hope that if, as, and when the 
Senate has to revisit impeachment that it would be done differently. 
Senator

[[Page 2458]]

Lieberman made a suggestion on a December 20 television show that there 
ought not to be party caucuses, that there only ought to be joint 
caucuses. I have passed that recommendation on. I realized that given 
the history of the Senate and our party caucuses, that would be a very, 
very abrupt change.
  But I came out of some of our party caucuses and walked over and 
talked to my friends on the other side of the aisle. The people that I 
had agreed with on many, many, many issues. We were just irreconcilably 
opposed, just totally opposed. My only conclusion was that it was the 
kind of argument and the kind of discussion on what happened in the 
caucuses--really choosing sides and having teams--as opposed to trying 
to make an analytical, judicial decision as to what was involved here.
  So it is my hope that if we ever have to undertake this again we will 
do it differently.
  My position in the matter is that the case has not been proved. I 
have gone back to Scottish law where there are three verdicts: guilty, 
not guilty, and not proved. I am not prepared to say on this record 
that President Clinton is not guilty. But I am certainly not prepared 
to say that he is guilty. There are precedents for a Senator voting 
present. I hope that I will be accorded the opportunity to vote ``not 
proved'' in this case.
  We really end up, colleagues, very much, in my judgment, where at 
least I started on the matter. I had thought at the outset that this 
was not an appropriate case for impeachment because the requisite two-
thirds would not be present, and had hoped that impeachment would be 
bypassed, but instead we would allow the President to finish his term 
of office, which I thought an inevitability, just as it has worked out 
that way, and that the criminal process would do whatever was 
appropriate after his term was finished; if indicted, if convicted, 
whatever a judge would have to say as to sentencing. I am still hopeful 
that the rule of law will be vindicated in that process.
  We obviously have learned much from this proceeding. It is my hope 
that we will leave a mark to guide future Senates if we ever have to 
repeat this very, very trying sort of an experience.
  Mr. Chief Justice, I ask unanimous consent that a full text and 
exhibits A, B, and C be included in the Record as if read on the Senate 
floor.
  The removal of an American president through impeachment carries a 
high burden of proof and persuasion. For conviction in the criminal 
courts on charges of perjury and obstruction of justice, the proof must 
be beyond a reasonable doubt. An extra measure of certainty is 
necessary to persuade the Senate that the national interest mandates 
invoking the extraordinary remedy of removing the President.


                The Constitutional Standard for Removal

  The starting point is Article II, Section 4 of the Constitution:

       The President . . . shall be removed from Office on 
     Impeachment for, and Conviction of, Treason, Bribery, or 
     other High Crimes and Misdemeanors.

  From that language, there is reason to interpret ``other High Crimes 
and Misdemeanors'' as relating back to specific categories of offenses 
earlier enumerated, such as ``Treason and Bribery''; but I think that 
is too limited. Nor do I agree with the simplistic definition that 
perjury and obstruction of justice, being felonies and therefore more 
serious than misdemeanors in the criminal law, are automatically 
impeachable offenses.
  The Framers did not foresee the circumstances before us. The omission 
of ``perjury'' and ``obstruction of justice'' from the enumerated 
offenses probably reflected the Framers' thought that it would be 
unlikely that a President would be testifying under oath or be a 
participant in a judicial proceeding. Yet, it is equally clear that 
perjury and obstruction of justice are serious crimes. For the 
President to commit either, he would be placing his own interest above 
his public duty and the people's interest in due process.
  In 1970, then-Congressman Gerald R. Ford offered this definition:

       . . . an impeachable offense is whatever a majority of the 
     House of Representatives considers to be at a given moment in 
     history . . .

  While that may state the raw power of Congress, it is too subjective 
to provide any real guidance. Instead, I look to the Framers at the 
Constitutional Convention, the Federalist papers, and the English and 
United States impeachment cases.
  Commenting on impeachment at the Constitutional Convention James 
Wilson said:

       . . . far from being above the laws, he (the President) is 
     amenable to them in his private character as a citizen, and 
     in his public character by impeachment

  The President's attorneys have argued that the charges arise from 
private conduct unrelated to his official duties. The issue then arises 
whether his conduct is ``in his public character'' by virtue of his 
Constitutional duty:

       . . . he (the President) shall take care that the Laws be 
     faithfully executed . . . Article II, Section 3--

  Such a public duty may be insufficient for impeachment under 
Alexander Hamilton's definition of impeachment in Federalist No. 65:

       . . . those offences (sic) which proceed from the 
     misconduct of public men, or, in other words, from the abuse 
     or violation of some public trust. They are of a nature which 
     may with peculiar propriety be denominated POLITICAL, as they 
     relate chiefly to injuries done immediately to the society 
     itself.

  From Hamilton's statement, the conventional wisdom has evolved that 
impeachment is essentially a political question. The Framers, cases and 
commentaries have not articulated a handy definition of ``high crimes 
and misdemeanors.''
  Whether to impeach and convict transcends the facts and law to what 
is in the national interest at a specific time in the nation's history 
on the totality of the circumstances.
  Consideration of the national interest may include whether there is a 
clear and present danger to the integrity or stability of the national 
government; or whether the conduct is so vile or reprehensible as to 
establish unfitness for office; or whether the electorate has lost 
confidence in the President to the extent that he cannot govern.
  The precedents and commentaries leave substantial latitude for 
Senators to establish their own standards. The ultimate definition may 
be analogous to Supreme Court Justice Potter Stewart's struggle to 
define obscenity when he concluded: '' . . . perhaps I could never 
succeed in intelligibly doing so. But I know it when I see it.''


                       Partisanship In The House

  The extreme partisanship of the impeachment proceeding in the House 
prejudiced the matter before it came to the Senate. While it takes two 
to tango or be partisan, somehow the House Republicans bore the brunt 
of the public disdain on the partisan charge. It was more than the 
party line votes. The whole process was filled with rancor, acrimony 
and bitterness which contributed significantly to the public view that 
it was all politics without real substances.
  It has been widely noted that there must be significant bi-partisan 
support to remove a president. President Nixon's forced resignation 
occurred only when Republican elders like Senators Goldwater and Scott 
joined Democrats in urging his resignation.
  In an early Sunday TV talk show on December 20, 1998, the day after 
the House sent the Articles to the Senate, Senator Joseph Lieberman and 
I appeared together on ``Face the Nation'' where he urged that there be 
no party caucuses but only joint caucuses. I recommended that to 
Senator Lott in my memorandum of December 29 and urged that policy to 
colleagues on both sides of the aisle. Perhaps, it was too much to 
expect or even hope that would be done given the Senate's history and 
practice of party caucuses.
  As noted in this floor statement, the Senate struggled to achieve bi-
partisanship, mostly without success, but we did avoid the rancor and 
bitterness which prevailed on the House side.


The Improbability of Two-Thirds for Conviction Overshadowed the Process

  From the outset, the conventional wisdom was there would not be two-
thirds of the Senate in favor of conviction. That pervasive view has 
cast a

[[Page 2459]]

long shadow over the impeachment proceedings. When the Senate convened 
on January 6th, there was immediate informal consideration on taking a 
test vote to determine if there were 34 Senators opposed to conviction 
which would end the matter. There appeared to be even more than that 
number so opposed who based their judgments on news media accounts. 
That trial balloon was abandoned when many Senators objected on the 
ground that the Constitution called for a trial and the Senate owed the 
House the Constitutional deference to give the House Managers a chance 
to prove their case.
  In mid-November, I wrote in a New York Times ``op ed'' article that 
impeachment should be bypassed and the President should be held 
accountable through the criminal process after his term ended. When the 
House of Representatives returned Articles of Impeachment in mid-
December, I felt at that stage the Senate had a constitutional duty to 
proceed to a trial.


               The Constitutional Requirement for a Trial

  The Constitution explicitly provides for a trial:

       The Senate shall have the sole Power to try all 
     impeachments (emphasis added). Article I, Section 3, Clause 6

  The same clause refers to being convicted and the next clause refers 
to judgment, so the constitutional mandate for a trial is plain. Senate 
Impeachment Rules 6 and 17 deal with witnesses.
  The Senate was schizophrenic in wanting to avoid what many considered 
to be a pointless trial. Others considered it to be our Constitutional 
duty to hold a trial and give appropriate deference to the House's 
action on the Articles. In a series of halting half-steps, the Senate 
stumbled through a ``pseudo-trial'', a ``sham trial''--really no trial 
at all. In the end, it would have taken less time to let the House 
Managers put on their case with a full White House defense than the 
helter-skelter procedures adopted by the Senate.


                      The Adverse Public Reaction

  From the time the Senate reconvened on January 6, 1999, the public 
pressure to conclude the trial promptly was palpable. The improbability 
of a two-thirds vote for conviction was only one factor although the 
totality of the other factors contributed to that improbability.
  The adverse public reaction was reflected in consistent polling data 
and the feel on the streets in our various states. Notwithstanding the 
serious charges of perjury and obstruction of justice, Democratic 
Senators argued and many people agreed that a private sexual liaison 
should not have caused a multi-year, multi-million dollar 
investigation. If the Independent Counsel, they argued, could establish 
no wrongdoing in Whitewater, Travelgate and Filegate, why elevate a 
charge based on sex to an impeachable offense?
  I think it is a significant distinction that President Clinton, 
unlike President Nixon, was not charged with covering up an underlying 
crime. President Clinton had the option of not answering deposition 
questions and/or simply not defending the Paula Jones lawsuit. At worst 
that would have resulted in a default judgment being entered against 
him with an assessment of damages. As it worked out, a non-defense 
might still have led to dismissal of the case as a matter of law and on 
the eventual settlement. In any event, the President would have avoided 
his present predicament by not responding.
  Once the President undertook his course of action, then he must 
answer to the serious charges of perjury and obstruction of justice 
even though he was not covering up criminal activity.
  Attorney General Reno made a major mistake in acting to expand Judge 
Kenneth Starr's jurisdiction to include the Lewinsky matter. In mid-
January 1998, contemporaneously with the Attorney General's action, I 
commented that the public would suspect a vendetta on the part of Judge 
Starr because there had been so many apparently unproductive 
investigations going on for so long. This was not a criticism of Judge 
Starr, but an inevitable public reaction. The public's suspicion of 
Judge Starr carried over to impeachment.
  When I challenged Attorney General Reno in the Judiciary Committee 
oversight hearing on July 15, 1998 about why she acted to expand Judge 
Starr's authority, she refused to answer the question saying only:

       The application speaks for itself, Senator.


                            The Witness War

  The failure of the House to call witnesses during their hearings 
injected a Trojan Horse into the Articles. The House had good reason 
not to call witnesses because of its concern to finish its work before 
the 106th Congress convened to take up the nation's important pending 
business. But, that set the stage for the witness issue to haunt the 
Senate from the outset.
  Early in January, there was a strenuous effort for bi-partisanship on 
witnesses and procedures. At a joint caucus on January 8th, by almost 
spontaneous combustion, agreement was reached 100-0 on preliminary 
procedures leaving depositions and witnesses until later.
  Immediately thereafter, bi-partisanship broke down. While this may 
seem self-serving from the Republican point of view, Republicans had 
more to gain from bi-partisanship than Democrats to avoid the rancor of 
the House proceedings and give legitimacy to impeachment. Many 
Democrats openly said the President would be helped by party line votes 
making the Senate look like the House.
  The Democrats then lined up solidly behind the President with a 
number of Republicans, sometimes more than six, teetering on joining 
the Democrats. There are obviously limits to what elected officials 
will do to vote a straight party line if it puts their seats in 
jeopardy. The Senate Democrats had the effective cover of a popular 
President and their party line votes followed while a significant 
number of Republicans faced constituents opposed to impeachment in 
their election cycles.
  The sequence of partisan maneuvering on witnesses is important to 
understanding how the House Managers were precluded from presenting 
their case in a fair way. Appendix A describes those events in some 
detail. The ultimate result was a sharply limited number of deposition 
witnesses, three, with videotaped depositions only and no live witness 
at trial.
  In my Senate tenure, I have not seen a more contentious issue than 
the calling of witnesses either live or videotaped. It goes beyond the 
public pressure to terminate or at least abbreviate the Senate 
proceeding. The argument that the well of the Senate should not be the 
stage for lewd and lascivious testimony was answered by the commitment 
of the House Managers to avoid such testimony. The argument that Monica 
Lewinsky should not appear on the Senate floor once occupied by Daniel 
Webster and John F. Kennedy has to give way to the Senate's duty to try 
this President. The Senate did not choose the President's consorts and 
potential witnesses, but the Senate is duty bound to ``try'' the case 
as mandated by the Constitution and do ``impartial justice'' as the 
Senators' oath specified.


                           The Live Witnesses

  I was one of three Senator presiders/observers designated by Senator 
Lott, the Majority Leader, for the depositions of Monica Lewinsky, 
Vernon Jordan and Sidney Blumenthal. Observing these live witnesses 
confirmed my thinking that the full Senate should have seen and heard 
their testimony in the tradition of trial practice. While a videotape 
is very informative, there is no substitute for the more precise 
evaluation of demeanor and its many nuances which comes across fully 
only through live testimony.
  When the videotapes were played in the Senate chamber, the contrast 
was stark with the same live testimony I saw and heard. On a number of 
occasions, the sound was inaudible and the tape could not be rewound. 
There was a far superior opportunity in person to observe the 
witnesses' facial responses, their reactions and their general 
demeanor. In addition, only a portion of their videos was played. 
Although Senators had a chance for full private viewings, it is 
inevitable that many Senator-jurors did not utilize that opportunity to 
observe all the videos.

[[Page 2460]]

  Ms. Monica Lewinsky was a very impressive witness: poised, 
articulate, well-prepared. Seeing her testify in person, I understand 
why the President's counsel had fought so strenuously to keep her away 
from the well of the Senate. Had she told her whole story in the well 
of the Senate, a rapt national TV audience would have been watching and 
the dynamics of the proceeding might have been dramatically changed.


                Lawyers' Arguments Instead of Testimony

  Instead of hearing testimony from live witnesses, the Senate listened 
to twelve days of lawyer's arguments. Six days were consumed with 
opening statements which should have taken a few hours. For two days, 
Senators submitted questions through the Chief Justice for responses 
from attorneys which added little illumination to what was already on 
the record. Two more days were spent arguing the motion to dismiss and 
the resolution on depositions where the lawyers essentially repeated 
earlier arguments with an additional day for votes on those issues.
  Finally, limited evidence was presented with three videotaped 
depositions--Monica Lewinsky, Vernon Jordan and Sidney Blumenthal. 
Another day was consumed on votes rejecting live witnesses and 
permitting use of the videotapes. On the day designated for 
presentation of those depositions, only snippets were shown with most 
of the time consumed by lawyers' arguments. A final day for closing 
arguments was held with lawyers again presenting arguments which had 
been repeated on eleven prior days.
  So, in place of a traditional trial with live witnesses such as 
Monica Lewinsky, Betty Currie, Vernon Jordan, Erskine Bowles, John 
Podesta, Sidney Blumenthal, possibly Kathleen Willey or whomever the 
House Managers chose to call, the Senate heard days of repetitious 
lawyers' argument from a grand jury record.


                          The Perjury Article

  The President's version was limited to his deposition in the Paula 
Jones case on January 17, 1998 and his grand jury testimony on August 
17, 1998. In their totality, those two cameo appearances raised more 
questions by far than they answered. As expected, the President was 
exceptionally well prepared on the law and exceptionally adroit and 
manipulative on the facts or, more accurately, on evading the facts.
  The law on perjury is set forth in the case of Bronston versus United 
States, 409 U.S. 342 (1973), where the Supreme Court of the United 
States established a rigorous standard for proving perjury. Bronston, 
under oath in a 1966 bankruptcy hearing, was asked whether he ever had 
bank accounts in Swiss banks and he replied: ``the company had an 
account there for about six months, in Zurich.''
  His answer that the company had an account there for about six months 
was accurate. It was not accurate that it was the only account the 
company had. The Supreme Court exonerated Bronston on the charge of 
perjury because the questioner did not press further to get a specific 
answer on whether the company had an account in addition to the one 
responded to by Bronston.
  Utilizing the holding in Bronston to the utmost, the President 
couched his answers with great care relying on the questioner not to 
pursue the unanswered issues. For example, the President did not deny 
lying to his aides, but rather evaded the question and there was no 
follow-up. John Podesta, President Clinton's Deputy Chief of Staff at 
the time, testified that on January 23, 1998:

       He [President Clinton] said to me he had never had sex with 
     her [Monica Lewinsky], and that--and that he never asked--you 
     know, he repeated that denial, but he was extremely explicit 
     in saying he never had sex with her--[H]e [President Clinton] 
     said that he never had sex with her [Monica Lewinsky] in any 
     way whatsoever--that they had not had oral sex.

  In a Senate deposition, Sidney Blumenthal, an assistant to the 
President, testified that the President lied to him. In testimony 
before the grand jury, Mr. Blumenthal testified that the President told 
him that he had ``rebuffed'' Ms. Lewinsky's advances. Mr. Blumenthal 
further testified that the President told him the following:

       She [Monica Lewinsky] threatened him. She said that she 
     would tell people they'd had an affair, that she was known as 
     the stalker among her peers, and that she hated it and if she 
     had an affair or said she had an affair then she wouldn't be 
     the stalker any more.
       He [President Clinton] told me that she [Monica Lewinsky] 
     came on to him and that he had told her he couldn't have 
     sexual relations with her and that she threatened him. That 
     is what he told me.

  In his testimony before the grand jury, President Clinton stated,

       I told them [his aides] things that were true about this 
     relationship. They [things the President said to his aides] 
     may have been misleading, and if they were I have to take 
     responsibility for it, and I'm sorry.

  Note that the President does not deny lying but only that:

       I told them things that were true about this relationship.
  The President did say some things which were true. The questioner did 
not then pursue the line of interrogation by asking if, in addition to 
saying some things which were true, the President told his aides other 
things which were lies. On that clever, ambiguous record, the President 
escapes the perjury net.
  Similarly, President Clinton dodged the perjury charges on his 
testimony on being alone with Monica Lewinsky. She testified they were 
alone when they had eleven sexual encounters either in the President's 
personal office or the adjacent hallway. In his January 17th 
deposition, the President was asked if he was ever alone with Monica 
Lewinsky in any room of the White House. The President responded,

       I have no specific recollection, but it seems to me that 
     she was on duty on a couple of occasions working for the 
     legislative affairs office and brought me some things to 
     sign, something on the weekend.

  Further, when the President was asked if he was ever alone with Ms. 
Lewinsky in the hallway between the Oval Office and the kitchen area, 
the President responded,

       I don't believe so, unless we were walking back to the back 
     dining room with the pizza. I just, I don't remember. I don't 
     believe we were alone in the hallway, no.

  The President again gets away with vague, unresponsive replies. When 
the President says ``I don't believe we were alone in the hallway, 
no'', there is then no pursuit as to whether they were alone in other 
places. He succeeds in avoiding and misleading, but does not make the 
unequivocal false statement required by Bronston to constitute perjury.
  The President was treated differently than other witnesses before a 
grand jury when he was permitted to read from a prepared statement:

       I engaged in conduct that was wrong. These encounters did 
     not consist of sexual intercourse. They did not constitute 
     sexual relations as I understood that term to be defined at 
     my January 17th, 1998 deposition. But they did involve 
     inappropriate intimate contact.
  The President then declined to respond to Monica Lewinsky's specific 
charges and was not pressed for answers. He made a blanket denial of 
having sex with Monica Lewinsky relying on a tortured interpretation of 
Judge Wright's definition of sexual relations:

       I thought the definition included any activity by the 
     person being deposed, where the person was the actor and came 
     in contact with those parts of the bodies with the purpose or 
     intent of gratification, and excluded any other activity. For 
     example, kissing is not covered by that, I don't think.

  He further stated that:

       My understanding was, what I was giving to you, was that 
     what was covered in those first two lines was any direct 
     contact by the person being deposed with those body parts of 
     another person's body, if the contact was done with an intent 
     to arouse or gratify. That's what I believe it means today.

  The question was not pursued whether there was a sexual relationship 
where Ms. Lewinsky was the actor who made contact with the President's 
body with an intent to arouse or gratify. When asked specifically about 
oral sex, the President responded,

       . . . (Y)ou asked me did I believe that oral sex performed 
     on the person being deposed was covered by that definition, 
     and I said no. I don't believe it's covered by the 
     definition.

  And there is the curious contention by the President on what the 
meaning

[[Page 2461]]

of the word ``is'' is. A videotape of his deposition shows the 
President sitting quietly and listening to his attorney, Robert 
Bennett's arguments to Judge Wright based on Ms. Lewinsky's affidavit 
which the President knew to be perjurious.
  In his grand jury testimony, the President defended his silence 
during this statement:

       I was not paying a great deal of attention to this 
     exchange. I was focusing on my own testimony.

  The President also told the grand jury that Mr. Bennett's statement 
that there ``is'' no sex of any kind was not necessarily false, but 
rather:

       It depends on what the meaning of the word ``is'' is. If 
     the--if he--if ``is'' means is and never has been, that is 
     not--that is one thing. If it means there is none, that was a 
     completely true statement.
  On this state of the record, the Senate should have pressed the 
President for responses to so many important unanswered questions. 
Since the President was, in effect, asking the Senate to leave him in 
office, why was the Senate not justified in, at least, insisting on 
answers to key questions. When Senators submitted interrogatories to 
the Chief Justice for responses from the attorneys, I submitted the 
following question:

       Would the President honor a request by the Senate to 
     testify? If not, why not? If he declined to testify either on 
     his own initiative or a Senate invitation, would the Senate 
     be justified in drawing an adverse inference from his failure 
     to testify?
  With so many other questions submitted, this one was not asked. 
During the trial, White House Counsel said the President would respond 
to written questions, but that offer was rescinded. On January 25th the 
President refused to answer ten written questions submitted by 
Republican Senators.
  On February 3rd, twenty-six Republican Senators sent the President a 
letter requesting a deposition. As expected, he declined. In a context 
where the Senate voted against live witnesses and permitted only three 
deposition witnesses, it was not surprising that there was no political 
will to press the President for his testimony. I believe that was a 
serious mistake. In the context where the Senate could not even 
consider exercising the political will to ask, let alone compel, the 
President to leave the Oval Office for a day or a few days to testify 
at his impeachment trial or even to give a deposition, how could the 
Senate be expected to exercise the much greater political will to 
remove the President from office?
  In her civil lawsuit, Paula Jones had been able to compel the 
President to give a deposition. In the grand jury proceeding, the 
Independent Counsel, in effect, compelled the President to testify. 
Why, then, shouldn't the Senate exercise the commensurate power in an 
impeachment proceeding to obtain the President's testimony when there 
were so many open questions.
  In my legal judgment, the Senate has the power to subpoena the 
President. (My memorandum to Senator Lott dated December 10, 1998, 
attached as Appendix B, discusses the Senate's legal authority to 
subpoena the President at pages 8 through 11. My memorandum to Senator 
Lott dated December 29, 1998, attached as Appendix C, discusses 
possible testimony by the President at pages 12 and 13.) Senate 
Impeachment Rule 6 gives the Senate the subpoena power. The Supreme 
Court of the United States held President Nixon was subject to subpoena 
to turn over the famous tapes under the established principle ``That 
the public * * * has a right to every man's evidence.'' President 
Nixon's case, although not dealing with impeachment, is further 
instructive in the Supreme Court's sweeping language on the need for 
all the facts even where the President is subject to subpoena:

       The need to develop all relevant facts in the adversary 
     system is both fundamental and comprehensive. The ends of 
     criminal justice would be defeated if judgments were to be 
     founded on a partial or speculative presentation of the 
     facts. The very integrity of the judicial system and public 
     confidence in the system depend on full disclosure of all the 
     facts, within the framework of the rule of evidence. To 
     ensure that justice is done, it is imperative to the function 
     of the courts that compulsory process be available for the 
     production of evidence needed either by the prosecution or 
     the defense.


                 the article on obstruction of justice

  Following President Clinton's deposition in the Paula Jones case on 
January 17, 1998, the President called his personal secretary, Betty 
Currie, at home and asked her to come into the office on the following 
day. On Sunday, January 18, President Clinton met with Ms. Currie and, 
according to Ms. Currie, made the following statements to her, one 
right after the other:

       You were always there when she was, right?
       We were never really alone.
       Monica came on to me, and I never touched her, right?
       You can see and hear everything, right?

  Ms. Currie testified at first (1/27/98) that, based on his demeanor 
and the way he made the statements, the President wanted her to agree 
with them.
  Six months later (7/22/98) when she testified for the second time, 
Ms. Currie said that although the President stated ``right?'' at the 
end of the statements, she understood that she could agree or disagree 
with them.
  I find the testimony of Betty Currie on January 27, 1998 most 
troubling. Why would the President ask a series of questions when he 
knew the answers unless he sought to influence her testimony? But then, 
Ms. Currie undercut her January 27th testimony when she testified on 
July 22, 1998 that she understood from the President that she could 
disagree with him on those questions.
  In order to make a finding on an important issue like this which 
could lead to the removal of the President, the Senate should have 
heard Ms. Currie in person to clarify her testimony. In the absence of 
such clarification on this state of the record, there is at least a 
reasonable doubt on this issue.
  Monica Lewinsky testified that she met with the President in the Oval 
Office on December 28, 1997 and that the President gave her several 
Christmas presents at this meeting. Ms. Lewinsky further testified that 
at some point in the conversation, she said to the President, ``Maybe I 
should put the gifts away outside my house somewhere or give them to 
someone, maybe Betty.'' Ms. Lewinsky recalled that the President 
responded either, ``I don't know'' or ``Let me think about that.''
  The President testified that he has no distinct recollection of 
discussing the gifts with Ms. Lewinsky on December 28. He told the 
grand jury that:

       My memory is that on some day in December, and I'm sorry I 
     don't remember when it was, she said, well, what if they ask 
     me about the gifts you have given me. And I said, well, if 
     you get a request to produce them, you have to give them 
     whatever you have.

  In the afternoon of December 28, 1997, Betty Currie drove to Ms. 
Lewinsky's Watergate apartment and collected a box containing most of 
the President's gifts. Ms. Currie then drove home and placed this box 
under her bed. According to Ms. Lewinsky, the transfer originated in a 
phone call from Ms. Currie in which Ms. Currie stated, ``I understand 
you have something to give me,'' or, ``The President said you have 
something to give me.''
  Betty Currie testified that it was Ms. Lewinsky who first raised the 
idea of the gift transfer, either in person or over the telephone. Ms. 
Currie testified that she did not remember the President ever telling 
her to call Ms. Lewinsky or to pick something up from Ms. Lewinsky.
  Monica Lewinsky testified that Ms. Currie came over to pick up the 
gifts at ``around 2:00 pm or so''. Cellular phone records reveal that 
Ms. Currie phoned Monica Lewinsky's home at 3:32 on December 28th and 
had a conversation of one minute or less.
  The evidence against the President on the gifts issue is equivocal 
where the idea returning the gifts in the conversation between the 
President and Monica Lewinsky originates with Ms. Lewinsky; Ms. Currie 
says she does not remember the President telling her to call or pick up 
something from Ms. Lewinsky; the time of the call as shown on the cell 
phone records conflicts (3:32 pm) with Ms. Lewinsky's version of the 
sequence of events and the President gave Monica Lewinsky more gifts on 
December 28, 1997, the same day that efforts were made for the return 
of some of the gifts.

[[Page 2462]]

  In December, 1997 and January, 1998, the President's close friend, 
Washington attorney Vernon Jordan, helped find Monica Lewinsky a job in 
New York City. On Friday, December 5, 1997, the President's attorneys 
received a witness list for the Paula Jones case. Monica Lewinsky was 
included on this list.
  On December 11, 1997, Judge Susan Webber Wright issued an order which 
stated that Paula Jones was entitled to ``information regarding any 
individuals with whom the President had sexual relations or proposed or 
sought to have sexual relations and who were during the relevant time 
frame state or federal employees.'' This order made it clear that Ms. 
Jones would be able to subpoena Monica Lewinsky.
  On December 11, 1997 Mr. Jordan and Ms. Lewinsky met and Mr. Jordan 
took concrete actions to help Ms. Lewinsky find a job. Mr. Jordan 
placed calls on her behalf to three business contacts. Mr. Jordan also 
told her to send letters to three additional business contacts that he 
provided to her. This meeting and the phone calls took place prior to 
the issuance of Judge Wright's order of the same day.
  On January 7th, Ms. Lewinsky signed an affidavit denying a sexual 
relationship with the President. On January 8th, Ms. Lewinsky had an 
interview with McAndrews and Forbes in New York. Afterwards, she phoned 
Vernon Jordan to report that the interview had gone poorly. Vernon 
Jordan immediately phoned Mr. Ron Perelman, the CEO of McAndrews and 
Forbes, and asked for his help. The next day, Ms. Lewinsky was given 
another interview and was extended an offer to work for Revlon, a 
subsidiary of McAndrews and Forbes.
  Vernon Jordan defended his efforts to help Monica Lewinsky get a job 
as a payback for help he secured as a young lawyer in getting a job 
when he was a victim of racial discrimination. Jordan testified that he 
told no one at Revlon that Monica Lewinsky was a witness in a case 
involving the President and that Revlon offered Monica Lewinsky a job 
because she was qualified.
  If the Revlon job offer was part of a plan or conspiracy to obstruct 
justice, then Vernon Jordan would have had to be part of that. The 
House Managers raise no such contention.
  An important piece of evidence on this issue was the uncontradicted 
testimony of Monica Lewinsky that she intended to deny her relationship 
with the President from the outset before she was subpoenaed or the 
President coached her or Vernon Jordan helped her get a job.


                   Limitations on the House Managers

  The signals to the House Managers from the Senate were unmistakable 
that the Senate was unlikely to approve depositions if the list was too 
long. Responding to that advance notice, the House Managers submitted 
only three names for depositions necessarily leaving off potentially 
important witnesses like Ms. Currie. Given the absence of live 
witnesses and limitations on depositions, the House Managers have been 
compelled to rely on transcripts from questioning by the Independent 
Counsel in grand jury proceedings. Those transcripts have left many key 
issues unresolved.


                            tv and the trial

  The Senate proceeding posed a curious dichotomy with one hundred 
sitting silent Senators in the Chamber and non-stop Senators' 
interviews in the corridors and media galleries. The case was really 
not being tried in the Senate Chamber, but in a sense was being tried 
in the Senate corridors, on the evening TV interview shows and on the 
Sunday talk shows.
  I declined TV interviews after the day the trial began on the ground 
that my oath to do ``impartial justice'' was in jeopardy by interviews 
on the day's proceedings which might conflict with my juror's 
functions. Again, oddly, on the occasions when Senators were permitted 
to speak on the Senate floor on the motion to dismiss and the 
resolution on depositions, the sessions were closed so that the public 
could not hear our debate.
  Efforts to open the Senate proceeding during final deliberations also 
failed to get the two-thirds vote to overturn the Senate rule closing 
the Chamber. I thought the public and posterity should know the reasons 
for our votes as a guide for today and the future. The informal, seat-
of-the pants, corridor comments may be found in the CNN or MSNBC files, 
but there will be no Senate videotape to record what could be important 
Senators' views.


                               conclusion

  Each Senator individually and the Senate collectively took an oath to 
do ``impartial justice''.
  The Senate has done only ``partial justice'', a double entendre, both 
(1) in the sense of not doing ``impartial justice'' to the House 
Managers by unduly restricting them in the presentation of their case; 
and, (2) ``partial justice'' in the sense of hearing only part of the 
evidence.
  When the Senate prohibited live witnesses and permitted only three 
videotaped depositions, the House Managers had one hand tied behind 
their back. There has been no ``trial'' but only a ``pseudo-trial'' or 
a ``sham trial''. The best the House Managers could do was to cut, 
paste and glue together transcripts from the Independent Counsel's 
grand jury proceedings. Ms. Lewinsky testified briefly on videotape and 
the President gave two vague, evasive depositions.
  The House Managers could not meet the heavy burden of proof beyond a 
reasonable doubt. That is the only appropriate statement where the 
underlying charges are the crimes of perjury and obstruction of 
justice.
  Had the House Managers sustained that burden under these Articles, 
there was a further burden of persuasion, as I see it, to establish 
that the national interest warranted removal from office.
  Perjury and obstruction of justice are serious offenses which must 
not be tolerated by anyone in our society. However, I remain 
unconvinced that impeachment is the best course to vindicate the rule 
of law on this offensive conduct. President Clinton may still be 
prosecuted in the Federal criminal courts when his term ends. His 
lawyers have, in effect, invited that prosecution by citing it as the 
preferable remedy to impeachment.
  A criminal trial for the President after his term ends may yet be the 
best vindicator for the rule of law.
  If the full weight of the evidence with live witnesses had been 
presented to the Senate instead of bits and pieces of cold transcript, 
it is possible that the Senate and the American people would have 
demanded the President's appearance in the well of the Senate. Under 
firm examination, the President might have displayed the egregious 
character described harshly by his defenders in their proposed censure 
petitions. That sequence might have led to his removal.
  But on this record, the proofs are not present. Juries in criminal 
cases under the laws of Scotland have three possible verdicts: guilty, 
not guilty, not proven. Given the option in this trial, I suspect that 
many Senators would choose ``not proven'' instead of ``not guilty''.
  That is my verdict: not proven. The President has dodged perjury by 
calculated evasion and poor interrogation. Obstruction of justice fails 
by gaps in the proofs.
  Many Senators have sought to express their gross displeasure by 
findings of fact or censure. I reject both. The Constitution says 
judgment in cases of impeachment shall not extend beyond removal and 
disqualification from future office. Under the crucial doctrine of 
separation of powers, the Congress is not and should not be in the 
business of censuring any President. We are properly in the business of 
examining our own conduct as Senators. On that score, on the record of 
this ``pseudo-trial'', it is my view that the Senate failed to fulfill 
the Constitutional mandate to ``try'' this case.
  I ask unanimous consent that Appendices A, B and C be printed in the 
Record.
  There being no objection, the appendices were ordered to be printed 
in the Record, as follows:

                               Appendix A

  When the Republican and Democratic caucuses could not agree on the 
preliminary procedures and witness issue,

[[Page 2463]]

including depositions, a vote was set for late afternoon on January 
7th. That vote was canceled in an effort to achieve a bi-partisan 
compromise. A joint caucus was then held in the Old Senate chamber at 
9:30 am on January 8th where the outline of a procedural agreement was 
reached for the first stage without resolving the witness or deposition 
issues, but deferring them until we knew more about the opposing 
parties' cases.
  While a resolution of agreement was being drafted in the early 
afternoon fleshing out the compromise, Senator Lott asked Senator Kyl, 
Senator Sessions and me to explore the case to determine what 
witnesses, if any, the Senate should hear to make its decision. In mid 
afternoon, Senators Kyl and Sessions and I met with Chairman Henry Hyde 
and some of the House Managers to inform them of the joint discussions, 
to get a preliminary idea of their thinking on witnesses and to set up 
a meeting for the afternoon of January 11 to get their specification on 
what witnesses they believed necessary for the Senate trial. Later on 
the afternoon of January 8th, Resolution 16 was agreed to 100 to 0.
  In an effort to carry out a bi-partisan approach, I called Senator 
Lieberman on the morning of January 11th to invite him and/or other 
Senate Democrats to an afternoon meeting with House Managers. He said 
he would check with Senator Daschle and then called back to decline. 
Senators Kyl, Sessions and I met with the House Managers that afternoon 
to review their witness list. We advised them that the Democrats were 
opposed to witnesses and there was opposition among Republican Senators 
to a lengthy trial with many witnesses. We said their best opportunity 
for witnesses would be to show conflicts in the record testimony which 
could establish the need for seeing and hearing the witnesses to 
evaluate their demeanor. They responded they needed witnesses beyond 
conflicts to show the tone and tenor of their case. We said they might 
consider using their 24 hours of opening statements to develop the 
need, as they saw it, for specific witnesses.
  I called White House Counsel Charles Ruff on January 12th advising 
him of the meeting with House Managers stating that Senators Kyl, 
Sessions and I were interested in meeting with the President's 
attorneys. Mr. Ruff called back on January 13th declining the 
invitation.
  On January 25th, in advance of consideration of Senator Byrd's motion 
to dismiss and Senator Lott's resolution on taking depositions, Senator 
Lott requested Senator Kyl and me to talk again to House Managers to 
determine how many witnesses they would need and for what purpose. 
Senator Lott had extended an invitation to join in those discussions to 
Senator Daschle who declined. Before that meeting was held on January 
25th, I advised Senator Lieberman of the scheduled meeting and told him 
Senator Daschle declined Senator Lott's invitation.
  Between our January 11 and January 25th meetings with House Managers, 
there had been numerous public comment by Republican Senators opposing 
many witnesses even for depositions with some expressing possible 
opposition to any deposition witnesses. When Senator Kyl and I met with 
House Managers on January 25th, we said it was problematic whether 
there would be 51 or more votes for a lengthy witness list.
  In arguments before the full Senate, House Managers complained about 
the limitations on deposition witnesses and expressed their interest in 
calling live witnesses with latitude to develop their cases as they saw 
fit in accordance with regular trial practice.
  Late in the evening on January 26th after closed door Senate debate 
on calling witnesses for depositions, Senator Carl Levin and I 
discussed a bi-partisan compromise. We continued that discussion early 
the next morning and presented our views to our respective caucuses on 
January 27th. While Senator Levin and I did not agree on all points, we 
were closer together than our caucuses. At mid-day on January 27th on 
an almost straight party line vote, the Senate decided to take 
depositions of only three witnesses.
  For the balance of the afternoon of January 27th and all day on the 
28th, there were strenuous efforts to agree on deposition procedures. 
Democrats were adamant that the depositions should not be videotaped; 
or, if videotaped, on the commitment that they could be viewed only by 
Senators and limited staff. Republicans insisted that the depositions 
should be videotaped deferring the decision on whether they would be 
used as a substitute for live witnesses. Late in the afternoon Senator 
Lott's resolution was adopted to videotape the depositions without 
specifying their use after defeating Senator Daschle's amendment to 
limit the depositions to a typed transcript without videotapes.
  After those depositions were taken, on February 4, 1999, the Senate 
voted to exclude live witnesses and to see the videotapes of the three 
deposed witnesses after the defeat of Senator Daschle's amendment to 
limit the depositions to the typed transcript only without videotapes.

                               Appendix B

                                                December 10, 1998.
     To: Senator Trent Lott, Majority Leader.
     From: Senator Arlen Specter.

       As a follow up to our recent meeting, this memorandum sets 
     forth my thinking on how to handle the impeachment proceeding 
     if it reaches the Senate and my analysis on some of the legal 
     issues as follows:
       1. May the Senate consider in the next Congress articles of 
     impeachment passed by the House in this Congress?
       2. Must the Senate trial begin the day following the House 
     presentment?
       3. Is censure authorized in an impeachment proceeding?
       4. Must/should the Senate hear testimony from live 
     witnesses?
       5. How long will the Senate impeachment trial take?
       6. Possibility of conviction
       7. Concluding observations


 may the senate in the 106th congress consider articles of impeachment 
     passed by the House of representatives in the 105th congress?

       Yes. Precedents hold that the Senate may carry an 
     impeachment over into a subsequent Congress. As noted in the 
     addenda to the Rules on Senate Impeachment Proceedings:
       ``Articles of impeachment against Harold Louderback, a 
     United States district judge for the northern district of 
     California were exhibited on March 3, 1933, at the end of the 
     second session of the 72d Congress, and the trial occurred 
     during the first session of the 73d Congress, . . .
       ``At the end of the 100th Congress, the Senate adopted a 
     resolution to continue into the 101st Congress the 
     proceedings in the impeachment of Alcee L. Hastings, a United 
     State judge for the southern district of Florida''.
       Notwithstanding a contrary opinion given at the House 
     proceeding, it is my judgment that these practical precedents 
     would virtually certainly be upheld if any judicial challenge 
     was attempted because of the decision of the United States 
     Supreme Court in the case involving Judge Nixon where the 
     Court held the Senate had the authority to establish 
     procedures under the impeachment clause.


  must rule iii on senate impeachment procedure be read literally to 
require continuous consideration by the senate the day following house 
                presentation of articles of impeachment?

       No. While Rule III appears to impose such a rigid 
     requirement on its face, the Rules taken on the whole and 
     prior practice show the Senate may establish a more flexible 
     schedule.
       The specific language of Rule III provides: ``Upon such 
     articles of impeachment being presented to the Senate, the 
     Senate shall, at 1 o'clock afternoon of the day (Sunday 
     excepted) following such presentation, or sooner if ordered 
     by the Senate, proceed to the consideration of such articles, 
     and shall continue in session from day to day (Sundays 
     excepted) after the trial shall commence (unless otherwise 
     ordered by the Senate) until final judgment shall be 
     rendered.''
       Other Rules provide for intervening action between the time 
     the articles are presented by the House to the Senate and 
     subsequent proceedings before the Senate. For example, Rule 8 
     provides for a writ of summons to be issued to the person 
     impeached with a date to appear before the Senate.
       The impeached party is given a date to answer the Articles 
     and the House is then given a date to reply.
       For example, in the trial of President Andrew Johnson, the 
     President was given 17 days to prepare his answer (his 
     counsel had requested 47 days to prepare). The House managers 
     took one day to file their brief reply to the President's 
     answer. In the 1989 trial of Judge Walter Nixon, the Judge 
     was

[[Page 2464]]

     given 29 days to prepare his answer, and the House was given 
     12 days to file its response.
       These rules and that prior practice demonstrate that there 
     is a necessary time lapse between the presentation of the 
     Articles to the Senate and the commencement of further Senate 
     hearings or proceedings.


   is censure an authorized consequence or remedy in an impeachment 
                              proceeding?

       No. The specific language in the Constitution Article 1, 
     Section 3, Clause 7 contains the clear implication that 
     judgment in an impeachment proceeding shall not include 
     censure or any consequence or remedy other than that 
     specified in the Constitution: ``Judgment in Cases of 
     Impeachment shall not extend further that to removal from 
     Office, and disqualification to hold and enjoy any Office of 
     Honor, Trust or Profit under the United States.'' The 
     language ``shall not extend further'' than the enumerated 
     consequences or remedies precludes any judgment beyond 
     ``removal from office'' and ``disqualification to hold and 
     enjoy any Office of Honor, Trust or Profit under the United 
     States''.
       Further support for the conclusion that impeachment does 
     not contemplate penalties like censure is contained in the 
     historical references. Of the fifteen individuals impeached 
     by the House of Representatives, all seven convicted by trial 
     in the Senate were removed from office.
       Contrasted to censure, impeachment and removal from office 
     are not intended to be a punishment. In his ``Commentaries on 
     the Constitution of the United States,'' Justice Joseph Story 
     notes that impeachment ``is not so much designed to punish an 
     offender as to secure the state against gross political 
     misdemeanors. It touches neither his person nor property but 
     simply divests him of his political capacity.''
       Consequently, the impeachment process does not contemplate 
     Congress imposing any penalty, including censure, as part of 
     an impeachment proceeding. Once the impeachment proceeding is 
     concluded, it is a different issue as to whether Congress can 
     pass a resolution of censure in the same manner Congress 
     enacts resolutions generally.


    would the constitutional requirements of the senate impeachment 
proceeding be satisfied by the factual recitations in the starr report 
   or is the senate obligated to hear testimony from live witnesses?

       While the Constitution provides no explicit answer, 
     inferences from the Constitution, the Senate Rules on 
     Impeachment and the prior practice strongly suggest that live 
     witnesses were contemplated by the framers instead of merely 
     a hearsay report.
       The Constitution explicitly provides for a trial in the 
     provision of Article 1, Section 3, Clause 6: ``The Senate 
     shall have the sole Power to try all impeachments'' (Emphasis 
     added). The seriousness and magnitude of removal of a Federal 
     official, especially the President, suggests that the jury 
     (senators) should have the best evidence and that would 
     require something more than a hearsay document no matter how 
     extensive and explicit the Starr Report may be.
       That clause further provides: ``and no person shall be 
     convicted without the concurrence of two-thirds of the 
     Members present'' (Emphasis added). The use of the word 
     ``convicted'' again refers to a phase or the consequence of 
     trial and the analogy to a criminal proceeding. While the 
     Senate is not bound by traditional rules of evidence so that 
     we might consider matters not admissible in a court of law, 
     it would seem questionable or appear unseemly to base our 
     judgment exclusively on hearsay on such an important 
     proceeding.
       The provisions of Article 1, Section 3, Clause 7 carry 
     forward the analogy of trial referring to the ultimate 
     ``judgment'': ``Judgment in cases of impeachment shall not 
     extend further . . .'' (Emphasis added).
       The Senate Rules on Impeachment further contemplate, 
     although do not necessarily mandate, a proceeding with live 
     witnesses and opportunities for the examination and cross-
     examination of such witnesses. For instance, Rule 6 provides 
     that: ``The Senate shall have power to compel the attendance 
     of witnesses. . . .'' Rule 17 provides that: ``Witnesses 
     shall be examined by one person on behalf of the party 
     producing them, and then cross-examined by one person on the 
     other side.''
       Although the Rules never explicitly give the parties the 
     right to call witnesses, the language ``on behalf of the 
     party producing them'' in Rule 17 implies that the parties do 
     have such a right. The practice of the Senate confirms this 
     implication that the parties have the right to call 
     witnesses. For example, in the trial of Andrew Johnson, 
     witnesses for the President were called and heard over a 
     period of one week. In the trial of Alcee Hastings, both 
     sides were allowed to call a total of 55 witnesses.
       The foregoing analysis does not conclusively rule out the 
     propriety of proceeding on the Starr Report.
       The House of Representatives relied upon the Starr Report 
     for the facts even though the practice of the House in prior 
     impeachment hearings has been to take testimony from 
     witnesses. ``Hinds' Precedents of the House of 
     Representatives'' notes that witnesses were called during the 
     House impeachment hearings on Senator Blount and Judge Perry. 
     More recently, during the House deliberations on the 
     impeachments of President Nixon, Judge Claiborne, Judge 
     Hastings and Judge Nixon, numerous witnesses were called to 
     lay a factual basis for the impeachment charges. In the case 
     of Judge Nixon alone, witnesses provided testimony to the 
     House committee for over a month.
       As a practical matter, it is obvious the House did not take 
     the time to hear witnesses because the House proceedings were 
     structured to finish in the abbreviated time frame between 
     the election of November 3rd and the end of the year. 
     Starting in mid-November and seeking to finish shortly after 
     mid-December, that time frame was even further constricted.


            HOW LONG WILL THE SENATE IMPEACHMENT TRIAL TAKE?

       It depends entirely on what the Senate seeks to do and what 
     parameters are established.
       If the Senate peremptorily chooses to dismiss the House 
     articles without consideration, there is authority that could 
     be accomplished at the outset by a majority vote on a motion 
     to adjourn. Since there is no specific Rule relating to the 
     adjournment of an impeachment trial, the general rules of the 
     Senate would apply. A motion to adjourn the Senate requires 
     only a majority vote and is not subject to debate. The Senate 
     impeachment proceeding could be concluded by adjournment 
     with, in effect, a dismissal which would be the equivalent of 
     a nol pros in a criminal case. That is the equivalent of a 
     judgment of acquittal. The Senate would then resume its 
     normal business.
       There is historical precedent to concluding the Senate 
     impeachment proceeding by passing a motion to adjourn. In the 
     impeachment trial of Andrew Johnson, the Senate voted on 
     three of the eleven articles of impeachment. After failing to 
     secure a conviction on these three articles, Senator Williams 
     moved that the Senate sitting as a court of implement adjourn 
     sine die. The motion carried and the trial of Andrew Johnson 
     ended prior to a vote on the remaining eight articles.
       If the Senate chose to accept the facts of the Starr 
     Report, the entire trial could be relatively brief if the 
     President did not put on a factual defense.
       An adequate Senate trial need not necessarily be long. The 
     key witnesses would be Monica Lewinsky, Betty Currie and 
     Vernon Jordan and possibly Kathleen Willey. There may be a 
     few other peripheral witnesses such as Judge Susan Webber 
     Wright. It is hard to calculate but it will probably be a 
     matter of weeks, not months. That estimate would be expanded 
     if President Clinton testifies and/or if he puts on a factual 
     defense.


                       Possibility of conviction

       This matter has had unprecedented and unpredictable turns 
     of events. The President's August 17th short speech was a 
     bomb. The House's release of the President's grand jury 
     deposition reversed the tide. The President's answers to the 
     House questions reversed the reversal.
       It is entirely conceivable that a Senate trial could defy 
     conventional wisdom and find the two-third votes for 
     conviction if the evidence is properly presented focusing on 
     abuse of power and obstruction of justice instead of lying 
     about sex. While impossible to quantify with precision, it 
     may be that there are now about fifty votes for conviction, 
     perhaps a half dozen open minds and maybe another dozen 
     senators might be persuadable if they think there is 
     insufficient political cover to acquit.
       Monica Lewinsky has the potential to be a strong witness 
     because her recollection is so extraordinary. She was able to 
     pinpoint with precision the two dates when, as she put it, 
     the President received telephone calls from a congressman 
     with a nickname and a sugar grower in Florida with a name 
     something like ``Fanuli''. It was later confirmed that the 
     President had talked on those two dates to Congressman Sonny 
     Montgomery and a Florida sugar grower named Alfonso Fanjul.
       Although Betty Currie's testimony was watered down as the 
     investigation proceeded, questioning her from her first 
     statement might provide highly incriminating testimony on the 
     obstruction charge. Vernon Jordan's testimony has substantial 
     potential on the abuse of power issue. Jordan testified he 
     reported to the President ``mission accomplished'' after 
     Monica Lewinsky's perjurious affidavit was obtained and 
     Jordan secured a job for Ms. Lewinsky with Revlon. When her 
     initial interview went badly, Jordan called Ronald Perelman, 
     head of Revlon's holding company, and Ms. Lewinsky was 
     recalled the next day for another interview and given a job 
     on the spot.
       The case is also reportedly strong on the perjury charge 
     against the President on the incident involving Kathleen 
     Willey. Judge Susan Webber Wright's testimony, in observing 
     the President's attentiveness at this deposition in the 
     Jones' case, could undercut the President's contention that 
     he wasn't paying attention when his lawyer strenuously argued 
     for the President's innocence at his deposition based on the 
     Lewinsky affidavit. At that time, the President conclusively 
     knew it was perjurious.

[[Page 2465]]




                        concluding observations

       As you know, my own initial preference was for both Houses 
     to abandon impeachment proceedings and to then hold the 
     President accountable through the judicial criminal process 
     once his term was over leaving the Congress free to attend to 
     the nation's other business: social security, health, 
     education, etc.
       My view on waiting to hold the President accountable after 
     he leaves office was based on the blunt proposition that it 
     was more trouble to get rid of him than to keep him. It may 
     well be that the public opposition to impeachment had the 
     same basis. Once we get to the Senate trial, my view may 
     change if it is no more trouble to get rid of him than to 
     keep him. Perhaps the public will have a similar change of 
     heart.
       If the House returns Articles of Impeachment, the Senate 
     should proceed with a dignified trial with the calling of 
     witnesses because the seriousness of the issue and the 
     historical impact call for an unhurried, deliberative trial. 
     To the maximum extent possible, we should make the proceeding 
     non-partisan. Concessions to the minority on some procedural 
     matter would be worthwhile. As the majority party in charge, 
     we should take the lead on non-partisanship. We should avoid 
     the House bickering at all reasonable costs.
       The Senate prides itself on being the world's greatest 
     deliberative body. This trial will be by far the highest 
     visibility for the Senate in its history to date and for the 
     foreseeable future. While the President will be on trial, the 
     Senate will also be on trial.

                               Appendix C

                                                December 29, 1998.
     To: Senator Trent Lott, Majority Leader.
     From: Senator Arlen Specter.

       Supplementing my memorandum of December 10 and our 
     telephone conversation of December 22, this memo suggests 
     procedures to deal with the Senate trial in light of the 
     public dissatisfaction with the House proceedings, public 
     impatience with impeachment generally and ways to achieve a 
     judicious, non-partisan Senate trial. Since this memorandum 
     was written while I have been traveling, the rules and case 
     citations could be checked only by long-distance telephone.


    can procedures be structured to shorten the length of the trial?

       Yes. While it is impossible to say with certainty the 
     duration of any trial, procedures can be put into place to 
     abbreviate the trial with a reasonable likelihood of reaching 
     a verdict within a few weeks (perhaps even three weeks as 
     earlier predicted by you--Senator Lott) as contrasted with 
     some assessments that the trial would take months or the 
     better part of a year.
       The Senate already is under pressure and will probably be 
     under greater pressure to finish at an early date which 
     accounts for the call for short-circuiting the trial through 
     a plea-bargained censure. It is obviously in the national 
     interest to end the trial as soon as possible without rushing 
     to judgment and it would doubtless meet with public approval 
     to announce at the outset a plan to accomplish that.
       Several steps could be taken to abbreviate the trial time:
       (1) Require submission of pre-trial memoranda by the 
     parties followed by a pre-trial conference with the Chief 
     Justice to establish the parameters of the trial;
       (2) Organize the House Managers' case, with input from the 
     Senate, to focus on only the key witnesses and indispensable 
     lines of questions; and
       (3) Establish long trial days and Saturday sessions.
       Without management and limitations, the lawyers could take 
     a long, indeterminate time. By analogy to Federal court 
     litigation, this trial could be managed by having the parties 
     submit pre-trial memoranda which would identify any pre-trial 
     motions, list prospective witnesses and lines of questions, 
     etc., and approximate the time involved at each stage.
       The Chief Justice would then meet with the parties and 
     issue a pre-trial order establishing the trial parameters 
     just as the presiding judge does in Federal court trials.


                     an activist, bipartisan senate

       In an impeachment trial, Senators function in a very 
     unusual way in that we are both jurors and judges. A majority 
     of Senators may overrule the Chief Justice's rulings. We 
     decide individually for ourselves what is the burden of proof 
     and what evidence on what conduct is sufficient for a guilty 
     verdict.
       The Senate will be proceeding without precedent on most 
     issues. The Senate has broad latitude as noted by the Supreme 
     Court of the United States in the case of Judge Nixon where 
     the Court held the Senate had authority to establish its 
     procedures under the Impeachment Clause.
       This case and these times call for a more activist approach 
     by the Senate than prior impeachment trials. While it was not 
     inconvenient or problemsome to allow the House managers to 
     set the pace for the Hastings, Nixon or Claiborne trials, 
     this is obviously a very different matter. The impeachment 
     trials of President Johnson and those which occurred earlier 
     offer little guidance on how the Senate should proceed today.
       The existing Senate rules on impeachment are a starting 
     point. They can be changed by a majority vote unless there is 
     disagreement in which case proposed changes are debatable and 
     subject to a two-thirds vote.
       It is only through bipartisanship that the Senate can 
     succeed in having a judicious, non-partisan trial which can 
     gain public acceptance. So, all significant procedures must 
     have the concurrence of most Senators from both parties.
       In my judgment, it would be appropriate and practical to 
     structure the presentation of the evidence by having a small 
     bipartisan Senate committee work with the House managers and 
     President's lawyers on what the Senate wants presented in a 
     tightly focused case, taking into consideration any 
     differences with the House managers which could then be 
     worked out.
       Arguments in appellate courts customarily take the form of 
     the appeals judges focusing on the questions they want 
     addressed by counsel as opposed to having the lawyers decide 
     how to use their allotted time. It would be analogous to such 
     appellate proceedings to have the Senate direct, or work out 
     collaboratively with the House the evidence the Senate wants 
     to hear.
       I suggest that a small committee, perhaps five Senators 
     with three Republicans and two Democrats, work up a trial 
     format and trial brief. It will be helpful for the Senators 
     to have prosecution or criminal defense experience. This 
     Senate committee, or perhaps one Republican and one Democrat, 
     should participate in preparation of the pre-trial memorandum 
     and pre-trial conference.


                          Long Trial Sessions

       Substantial evidence could be presented with trial days 
     from 9:30 am to 5 pm or even 9 am to 6 pm with Saturday 
     sessions. The Philadelphia criminal courts had the minimum 
     trial day established from 9:30 am to 5 pm. Senate 
     Impeachment Rule 3 provides for Saturday sessions in 
     impeachment trials.
       I recommend against the so-called double track with the 
     Senate sitting half days on the trial and half on other 
     Senate business. There is too much legitimate public concern 
     to have the trial proceed expeditiously and end as soon as 
     possible. Even with the trial ending at 5 pm or 6 pm, some 
     Senate business could be conducted in the evenings on 
     confirmations or other business which can be handled by 
     unanimous consent.
       We might consider canceling our February and March recesses 
     for the trial, which would likely produce significant public 
     approval.


                    The Importance of Live Witnesses

       I strongly recommend live witnesses on the key issues 
     although there is no prohibition against use of hearsay such 
     as the Starr Report. Prior impeachment cases establish the 
     precedent for live witnesses and the Senate rules provide 
     procedures for live witnesses. Live witnesses have 
     customarily testified in House impeachment proceedings. In 
     the Senate, for example, live witnesses testified in cases 
     involving President Johnson and in the most recent 
     impeachment case on Judge Alcee Hastings. Senate Rules 6 and 
     17 establish procedures for dealing with witnesses.
       The dignity, tenor and stature of the Senate Trial call for 
     live witnesses on an impeachment of this magnitude. 
     Everything the Senate does will be subjected to a microscope 
     both contemporaneously and historically. While it is a 
     sweeping generalization, I think it is fair and accurate to 
     say that no trial in history to date has been or will be so 
     closely watched.
       We have some gauge as to how closely this trial will be 
     scrutinized from the work of the Warren Commission which has 
     been the most closely dissected investigation in history. 
     Notwithstanding constant pressure from Chief Justice Warren, 
     who wanted the inquiry concluded at an early date, the staff 
     lawyers insisted on extended tests and extensive 
     interrogation knowing the record would be closely examined. 
     At that time, we couldn't conceive of the extent of the 
     scrutiny, but we had some inkling of what was coming. At this 
     time, the Senate should be on notice to cross every ``t'' and 
     dot every ``i'' twice.
       It may be sufficient to use the Starr Report to establish 
     some of the lesser proofs for the record.
       Without attempting to be dispositive on who are all the key 
     witnesses and what are all the indispensable lines of 
     questioning, a suggested focused strategy would be to call:
       (1) Monica Lewinsky to testify on the perjury issue by 
     covering the numerous times she and the President were alone 
     (he claimed they were never alone) and the specifics of their 
     conduct on the issue as to whether they had sex.
       It may be wise to have her testify in a closed session on 
     the details of their sexual relationship. In retrospect, the 
     Judiciary Committee might have been wise to hear some of the 
     testimony by Prof. Hill and Justice Thomas in a closed 
     session. In the confirmation hearing of Justice Breyer, 
     testimony was taken in a closed session on his finances.
       Even though most, if not all, of Ms. Lewinsky's testimony 
     has already been made public, it would be less offensive to 
     public taste and arguably less prejudicial or more 
     considerate of the President to avoid the spectacle of 
     television on the specifics of

[[Page 2466]]

     their sex. Any objection to the closed or secret hearing 
     could be largely answered by releasing a transcript to the 
     public at the end of each daily session.
       If the President testifies, consideration should also be 
     given to a closed session on the specifics of their sexual 
     activities. It is arguably, and perhaps realistically, 
     different to have a closed session with the President, but 
     these questions will have to be thrashed out at the time 
     depending on the feel of the case if, as and when they arise.
       In order to have a closed session, there would have to be a 
     modification of Rule 20 which requires the Senate doors to be 
     open except during deliberation.
       (2) Vernon Jordan to testify about contacts with the 
     President including his telephone call where he reported 
     ``mission accomplished'' after arranging with another lawyer 
     to get Ms. Lewinsky's perjurious affidavit and getting her a 
     job with Revlon.
       (3) Betty Currie to testify on the President's efforts to 
     alter and mold her version of what happened. Even though Ms. 
     Currie gave several statements, the essential elements of her 
     testimony could be put on the record at trial by going 
     through her first statement to the FBI.
       The President's possible testimony is considered later in 
     this memorandum.


 should the Senate trial be terminated by an arranged disposition for 
                                censure?

       No, for several reasons:
       (1) The Constitution specifies the two remedies or 
     consequences in cases of impeachment which necessarily 
     excludes censure: ``Judgment in Cases of Impeachment shall 
     not extend further than to removal from Office, and 
     disqualification to hold and enjoy any Office of honor, Trust 
     or Profit under the United States''--Article 1, Section 3, 
     Clause 7. The language ``shall not extend further'' 
     specifically precludes censure or any other remedy not 
     enumerated in the Constitution.
       The argument is now being strenuously advanced by many, 
     including some Senators, that the impeachment trial should be 
     ended at an early stage by a motion to adjourn the Senate and 
     then, by pre-arrangement, taking up a Resolution of Censure 
     to be approved by the Senate and House. In my judgment, that 
     would be a perversion of and at variance with the 
     Constitution or, simply stated, unconstitutional.
       (2) Censure would be meaningless for this President--not 
     worth a ``tinker's dam.''
       (3) Censure would be a bad precedent which could be used 
     whenever the Congress of one party wanted to express 
     displeasure or embarrass the President of the other party. 
     Simply stated, the Congress is not in the business of 
     censuring the President under our Constitutional separation 
     of powers.
       (4) Censure would prejudice a possible later criminal 
     prosecution of the President after he leaves office. There 
     will be an inevitable sense that censure will constitute a 
     form of punishment or final judgment, although not 
     technically double jeopardy, which would preclude a later 
     prosecution, as a practical matter.
       The prospects for censure have been dampened by Vice 
     President Gore's statement that the President would not 
     accept censure conditioned on the President's admitting to 
     lying under oath even if that admission could not to be used 
     against him in any criminal proceeding. Even if the President 
     would admit to lying under oath, he would most certainly 
     object to the procedures necessary to rule out use of that 
     admission in a criminal prosecution.
       Only a court, not the Senate or Congress, can grant 
     immunity from future criminal prosecution. The Senate can 
     take steps to have immunity granted by the Court. But that 
     action can be taken only after the President or any witness 
     asserts the privilege against self-incrimination under the 
     Fifth Amendment. The Court then grants immunity and the 
     testimony cannot be later used against that person in a 
     criminal prosecution.
       Since the President has announced his unwillingness to 
     admit to lying under oath, it is fruitless to suggest the 
     Fifth Amendment course.


                 president clinton's possible testimony

       For the Senate to have all the facts--or all versions of 
     the facts from which Senator-jurors must determine what the 
     facts are, the Senate should hear from the President. It may 
     be that the President will choose to testify; and as a matter 
     of comity, the Senate should await the President's decision.
       If the President elects not to testify, the Senate will be 
     faced with a difficult legal question and perhaps an even 
     more difficult political question. On its face, Impeachment 
     Rule 6 gives the Senate the authority to compel the President 
     to testify:
       ``The Senate shall have the power to compel the attendance 
     of witnesses'' and ``to enforce obedience to its orders, 
     mandates, writs, precepts and judgments.''
       Notwithstanding that express language, some doubt has 
     arisen as to whether the President is subject to compulsory 
     process (subpoena) because of Rule 8 which provides:
       ``A writ of summons shall issue to the person impeached 
     reciting said articles and notifying him to appear before the 
     Senate upon a day and at a place to be fixed by the Senate . 
     . . and file his answer to said articles of impeachment. . .
       ``If the person impeached, after service, shall fail to 
     appear, either in person or by attorney, on the day so fixed 
     therefore as aforesaid, or appearing, shall fail to file his 
     answer to such articles of impeachment, the trial shall 
     proceed, nevertheless, as upon a plea of not guilty.''
       Some have cited President Johnson's refusal to appear at 
     the Senate trial as authority for the proposition that the 
     President cannot be compelled to attend and testify. That 
     inference is unsound because Rule 8 refers to responding to 
     the summons and filing an answer ``either in person or by 
     attorney.'' So the attorney's action satisfies the rule 
     without the appearance or other action by the President. 
     Accordingly, the impeached party complied with the Senate 
     rules in President Johnson's case which did not raise the 
     issue of the Senate's power to compel the President to 
     testify.
       There is no precedent for a case where the impeached 
     official declined to testify and the Senate attempted to 
     compel his testimony. The other impeachment cases offer no 
     close analogy where, as here, critical facts are known to 
     only two people, one of whom is the impeached official.
       Analogies from other, although dissimilar, trials suggest 
     the President would be subject to being subpoenaed. The 
     Supreme Court of the United States held President Nixon was 
     subject to compulsory process to turn over the famous tapes 
     under the established principle: ``That the public . . . has 
     a right to every man's evidence.''
       President Nixon's case, although not dealing with 
     impeachment, is further instructive in the Supreme Court's 
     sweeping language on the need for all the facts:
       ``The need to develop all relevant facts in the adversary 
     system is both fundamental and comprehensive. The ends of 
     criminal justice would be defeated if judgments were to be 
     founded on a partial or speculative presentation of the 
     facts. The very integrity of the judicial system and public 
     confidence in the system depend on full disclosure of all the 
     facts, within the framework of the rules of evidence. To 
     ensure that justice is done, it is imperative to the function 
     of the courts that compulsory process be available for the 
     production of evidence needed either by the prosecutions or 
     the defense.''
       Since this is not a criminal trial, there would be no rule 
     that a defendant has the right not to testify. Although not a 
     controlling analogy, a party in a civil case may be called 
     involuntarily to the witness stand by his/her opponent ``as 
     on cross'' which means he/she may be cross-examined.
       In my legal judgment, President Clinton could be compelled 
     to testify based on Senate Rule 6, analogies to compulsory 
     process in President Nixon's case and civil litigation and 
     the fact that President Clinton was subject to compulsory 
     process in the Paula Jones case and Starr grand jury. 
     Consideration of enforcing such a subpoena can be left to a 
     later day if, as and when the issue arises.
       If the President did testify, it could have a profound 
     effect on the public's view of the case and on the Senator-
     jurors. The President's lawyers could not shield him from 
     cross-examination and he could not avoid the specifics on his 
     contacts with Ms. Lewinsky as he did in his abbreviated grand 
     jury testimony.
       If the President sticks to his story that he did not have 
     sex with Ms. Lewinsky and did not lie under oath at his 
     deposition in the Paula Jones case, his credibility could be 
     severely impugned by pointed cross-examination and he could 
     be viewed very negatively by the public and the Senator-
     jurors. Or, it may be that the public and many Senator-jurors 
     would not be any more adversely affected by his Senate trial 
     testimony than they were by the videotapes of his grand jury 
     testimony.
       At this moment, it is impossible to judge what the feel or 
     tenor of the trial would be on subpoenaing the President if, 
     as and when he declined to testify after serious 
     incriminating evidence was presented against him. If subpoena 
     sentiments formed along party lines, it would be the most 
     severe test of acting only with a bipartisan consensus.
       Over several centuries, litigation experience has 
     demonstrated the unpredictability of trials. That is why they 
     are called trials. A two-thirds majority may not appear out 
     of thin air, as noted by Congressman DeLay, but it could 
     appear from forceful presentation of the key evidence 
     including cross-examination of the President. If the trial 
     turned heavily against the President, it is conceivable, 
     although highly unlikely at this point, that a plea bargain 
     could be structured with the Independent Counsel's 
     concurrence that the President would resign with his pension, 
     his law license and immunity from prosecution.
       Once a trial starts, the genie is out of the bottle and 
     anything can happen. Emotions in all directions are at an 
     all-time high with Republicans, the President, Democrats or 
     anybody else in the line of fire at risk for the ultimate 
     public scorn. And the public's other business would not be 
     attended to forever how long the trial took.
       That is why I continue personally to favor putting off 
     holding the President accountable until after his term ends 
     through the criminal process. That accommodates the

[[Page 2467]]

     public's short-term desires for the Congress, the President 
     and the Supreme Court to focus on the nation's business and 
     the long-term national interest to later hold the President 
     accountable for the serious charges through indictment if the 
     grand jury so decides, and to sentencing by a judge if a jury 
     convicts.


                          The Public Reaction

       Prospects are reasonably good that the public would not 
     react unfavorably to a non-partisan, judicious, focused, 
     relatively brief Senate trial. In addition, the public would 
     likely understand the Senate has an explicit Constitutional 
     duty to hold a trial after Articles of Impeachment are passed 
     by the House. There has already been a bipartisan recognition 
     of this duty by Senators who are Democrats.
       Public reaction, as gauged by the polls, was adverse to the 
     House proceedings, at least in part, because of their highly 
     partisan, strident tenor; and because the House never zeroed 
     in or highlighted the highly incriminating evidence. There 
     may even be some grudging public approval that Congress is 
     willing to take action on a significant matter contrary to 
     the polls.
       A favorable public reaction will depend largely if not 
     exclusively on the public's feeling that the proceedings are 
     bipartisan, so the Senate must take extreme care to make the 
     trial bipartisan. As the majority party, we Republicans 
     should bend over backwards to avoid even the appearance of 
     seeking partisan advantage which marred the House 
     proceedings.
       I strongly support the suggestion that there should be no 
     separate party caucuses on impeachment issues. It would be 
     useful to convene all Senators at an early date, such as 
     January 8, 1999, when we will all be in town, to discuss 
     ideas on how to proceed. I recollect one such meeting of all 
     Senators from both parties a couple of years ago on 
     appropriations or budget issues near the end of the session.


                               Concluson

       History will cast a long shadow on what the Senate does in 
     this impeachment proceeding.
       The Senate should not, in effect, sweep the matter under 
     the rug by relying on the hearsay Starr Report for the key 
     facts. Some say the Starr Report is a sufficient factual 
     basis for Senate action because the facts are not in dispute. 
     That is not true. A close reading of the President's grand 
     jury testimony and his famous 82 answers to interrogatories 
     demonstrate that he has not conceded the accuracy of the key 
     incriminating evidence.
       As detailed above, the Senate can leave it to the criminal 
     courts to put the facts on the historical record and have the 
     indicting grand jury, trial jury and presiding judge hold the 
     President accountable to whatever extent warranted after his 
     term ends.
       A rush-to-judgment censure plea bargain would complete the 
     trifecta of inappropriate action by the Senate as well as the 
     House and President.
  Mr. LEVIN. Mr. Chief Justice, colleagues, first a personal note to 
our leaders: How proud I am of them, and we all are of you, for holding 
us together during this very, very difficult time. We will all be 
closer for having come through this, regardless of what this vote is or 
how we individually vote.
  The burden of proof on the House that the President has committed 
high crimes and misdemeanors and should be removed from office is a 
heavy burden, because the effect is so dire in a democracy that depends 
upon the election of the President. In my judgment, the House of 
Representatives has not carried that burden of proof as to the specific 
allegations against the President. The House repeatedly relies on 
inferences while ignoring direct testimony to the contrary. There is 
nothing unusual about the reliance on inferences. It happens in trials 
all the time. What is unusual here is that the House's case relies on 
inferences from the testimony of people whose direct testimony 
contradicts the inference. Let me just cite some examples in the 
obstruction of justice article.
  First, the House managers in their report, in their brief, made the 
following statements: ``As evidenced by the testimony of Monica 
Lewinsky, the President encouraged her to lie.'' That is the words of 
the House brief. Second, ``The testimony of Monica Lewinsky leads to 
the conclusion that it was the President who initiated the retrieval of 
the gifts and the concealment of the evidence.'' Third, ``The President 
needed the signature of Monica Lewinsky on the false affidavit and that 
was assured by the efforts to secure her a job.''
  Those are all direct quotes. Each one of those relies on inferences. 
Each one of them is contradicted by the explicit testimony of people 
from whom those inferences are drawn.
  Let's just take them one by one. The House managers' inference that 
the President ``encouraged''--that is their word--Monica Lewinsky to 
lie was contradicted by Monica Lewinsky's proffer, which was then 
incorporated into her grand jury testimony, that the President 
``never'' encouraged her to lie. That is her word. They say by 
inference the President encouraged her to lie. She says, ``The 
President never encouraged me to lie.''
  The House managers' inference that it was, ``President Clinton who 
initiated the retrieval of the gifts and the concealment of the 
evidence on December the 28th,'' was contradicted by Monica Lewinsky's 
direct testimony that she initiated the concealment of the gifts. It is 
uncontested that on December 22 she took some of the gifts and 
concealed the rest--some of the gifts to her lawyer's office. She 
decided on her own that she would not turn over the gifts in response 
to that subpoena because they would embarrass her, or they would, in 
her words, disclose that there was a special relationship. So on the 
22nd she decided on her own to withhold some of the gifts. And yet we 
are told by the managers by inference that somehow or other it is the 
President who initiated the withholding and the concealment of the 
gifts.
  And then on the 28th, when they met at the White House, it was Monica 
Lewinsky who said, ``Maybe I should get some of the gifts to Betty.'' 
She initiated the issue. And then the President said either nothing or, 
``Let me think about it.'' And then the question came up: Well, who 
then made the phone call relative to the pickup of the gifts? Was it 
Monica Lewinsky calling Betty Currie or was it Betty Currie calling 
Monica Lewinsky?
  And here is where another inference is drawn, that if in fact it was 
Betty Currie who initiated the call, then the inference is that the 
President told Betty Currie to call Monica Lewinsky. There is a 
conflict there between Betty Currie and Monica Lewinsky.
  But one of the most intriguing issues in this whole matter, one that 
I have really given a lot of thought to, is the question: Why would the 
President give Monica Lewinsky gifts on December 28 if he was concerned 
about it and wanted to withhold and hide the gifts? It is one of the 
questions that didn't get a lot of focus up here, by the way.
  The President gave Monica Lewinsky at least three things that day: 
That bear carving that Dale Bumpers referred to that came from 
Vancouver, a small blanket, and a stuffed animal.
  Now, here is the way the House addressed that issue. They asked 
themselves in their brief the question: Why would the President give 
Ms. Lewinsky gifts at the same time he was asking her to conceal others 
that he had already given her? Answer from the House in their brief: 
The only logical inference--only logical inference--is that the gifts, 
including the bear, symbolizing strength, were a tacit reminder to Ms. 
Lewinsky that they would deny the relationship even in the face of a 
Federal subpoena. That is the inference that they say is the only 
logical inference from giving three gifts to Monica Lewinsky, including 
a bear.
  Now, there is a real problem with that. First of all, that bear was 
obtained by the President in Vancouver weeks before there was a witness 
list. We are not even offered speculation as to how the President could 
foresee that Monica Lewinsky would be on a witness list and pick up a 
symbol of strength while in Vancouver so that he could give it to her 
as a reminder to deny their relationship in the face of some future, 
unforeseen Federal subpoena.
  But even more to the point, Monica Lewinsky was asked directly at the 
grand jury--directly--this question as to whether or not she 
interpreted the gift of that bear as a signal to her to ``be strong in 
your decision to conceal the relationship.'' Her direct, one-word 
answer was ``No.'' And yet the managers come here saying the only 
logical inference that can be drawn from three gifts being given from 
the President on the 28th is that the President was signaling to her to 
be strong in the face of a Federal subpoena. That is the kind of 
inference we are asked to draw.

[[Page 2468]]

  Now, I was raised on the burden of proof, both as a prosecutor in 
civil rights cases and as a defense lawyer. The House cannot carry the 
burden of proof on the critical allegations of criminal misconduct that 
they have made when they depend on those kinds of inferences, a pile of 
inferences that run directly contrary to direct testimony on critical 
points. Impeachment and removal should be based on sturdier foundations 
than that kind of a heap of inferences. They would have us overlook the 
forest of direct testimony while getting lost in the trees of their 
multiple inferences.
  The December 11 issue has been discussed here. It was extraordinary 
to me, listening here as both factfinder and judge, that it could be 
represented to us that on December 11 the first activity calculated to 
actually help Monica Lewinsky get a job occurred. That is what they 
alleged on the floor of the Senate. The first activity--these are their 
words--calculated to help Ms. Lewinsky actually get a job took place on 
December 11, and that something happened on that day to trigger Vernon 
Jordan's meeting and real activity. Something happened that day. What 
was it? Judge Wright's order.
  In their House brief, it is said that that order came in the morning, 
which was wrong, and in the presentation here in the opening arguments 
Manager Hutchinson said the following: ``The witness list came in, the 
judge's order came in. That triggered the President to action. And the 
President triggered Vernon Jordan into action. That chain reaction here 
is what moved the job search along.''
  Wrong. It disintegrated here. Vernon Jordan's meeting was before the 
judge's order. And yet that is what we are asked to base the removal of 
a President on. And then the thinking shifts to another theory. Removal 
of an elected President from office has got to be made of sturdier 
stuff than those kinds of inferences.
  Finally, on the double standard issue--and I think we all must be 
concerned about that--a former prosecutor who appeared in front of the 
House said the following. And Senator Sarbanes quoted one line of this, 
and I want to repeat that, because it is so important, and then add one 
other thing that they said. ``In conversations with many current and 
former Federal prosecutors in whose judgment I have great faith, 
virtually all concur that if the President were not involved, if an 
ordinary citizen were the subject of the inquiry, no serious 
consideration would be given to a criminal prosecution arising from 
alleged misconduct in discovery in the Jones civil case having to do 
with an alleged coverup of a private sexual affair with another woman 
or the follow-on testimony before the grand jury. I believe the 
President should be treated in the criminal justice system in the same 
way as any other United States citizen.
  ``If that were the case here,'' these former prosecutors said, ``it 
is my view that the alleged obstruction of justice and perjury would 
not be prosecuted by a responsible U.S. attorney.''
  I know this is not a criminal case, this is an impeachment trial, but 
I would think that our standards should be at least as high as would be 
in a criminal case, and that if this President would not be prosecuted, 
much less convicted for these specific charges--and these were criminal 
charges that were very specifically made by the managers against the 
President--if that prosecution and conviction would not take place in a 
criminal case, we should be loathe, I believe, and very, very cautious 
and careful before we remove an elected President from office.
  I learned about the burden of proof and presumption of innocence as a 
young boy, long before law school, when my father, who was a lawyer, 
taught me that American justice is dependent on these principles. As I 
grew up and became a lawyer myself, I experienced firsthand the 
significance of these bedrock principles and learned that it applies to 
all Americans accused of crimes, including the President. These 
principles of the burden of proof and the presumption of innocence help 
guide me now as we exercise our constitutional duty to judge the 
specific accusations of criminal behavior lodged against the President 
of the United States.
  The burden of proof on the House of Representatives that the 
President has committed serious crimes and should be removed from 
office is a heavy one, because overturning an election in a democracy 
is a drastic and dire action. The House has not carried that burden of 
proof as to the specific accusations against the President.
  The arguments of the House Managers in support of the Articles suffer 
from fundamental weaknesses. They repeatedly rely on inferences while 
ignoring direct testimony to the contrary; they omit key materials 
which contradict their charges; and they contain serious misstatements 
of key facts. In a matter of such consequence as the removal of an 
elected President from office, such a case should not lead to 
conviction.
  Let me cite some key examples from Article II, the allegation of 
obstruction of justice. First, the House Managers in their report, 
brief, and arguments to the Senate repeatedly rely on inferences to 
prove key points and ignore direct testimony to the contrary. In 
opening arguments, House Manager Hutchinson made the following claims:

       As evidenced by the testimony of Monica Lewinsky, [the 
     President] encouraged her to lie.
       . . . (T)he testimony of Monica Lewinsky . . . leads to the 
     conclusion that it was the President who initiated the 
     retrieval of the gifts and the concealment of the evidence.

       . . . The President needed the signature of Monica Lewinsky 
     on the false affidavit, and that was assured by the efforts 
     to secure her a job.

  Mr. Chief Justice, as we close this chapter in the Senate's life and 
prepare our records for the annals of history, there are several points 
which I wish to highlight in a series of appendices.
  I ask unanimous consent that the appendices be printed in the Record.
  There being no objection, the appendices were ordered to be printed 
in the Record, as follows:

                               Appendix A

       The indisputable, underlying reality of the impeachment 
     case was that Monica Lewinsky's denial of a sexual 
     relationship with the President was part of a long-term 
     understanding and pattern, long before the subpoena in the 
     Paula Jones case.
       ``Q: Had you talked with him earlier about these false 
     explanations about what you were doing visiting him on 
     several occasions?
       A: Several occasions throughout the relationship. Yes. It 
     was a pattern of the relationship to sort of conceal it.''--
     Grand Jury Testimony of Monica Lewinsky, Part One; 
     Independent Counsel Appendices, Page 844.
       ``A Juror: Did you ever discuss with the President whether 
     you should deny the relationship if you were asked about it?
       A: I think I always offered that.''--Grand Jury Testimony 
     of Monica Lewinsky, Part One; Independent Counsel Appendices, 
     Page 1077.
       ``A: And she [Linda Tripp] told me that I should put it in 
     a safe deposit box because it could be evidence one day. And 
     I said that was ludicrous because I would never--I would 
     never disclose that I had a relationship with the President. 
     I would never need it.''--Grand Jury Testimony of Monica 
     Lewinsky, Part One; Independent Counsel Appendices, Page 
     1107.
       ``A Juror: And what about the next sentence also? Something 
     to the effect that if two people who are involved say it 
     didn't happen, it didn't happen. Do you recall him saying 
     that to you?
       A: Sitting here today, very vaguely . . . And this was--I 
     mean, this was early--obviously not something we discussed 
     too often, I think, because it was--it's a somewhat 
     unpleasant thought of having to deny it, having it even come 
     to that point.
       A Juror: Is it possible that you also had these discussions 
     after you learned that you were a witness in the Paula Jones 
     case?
       A: I don't believe so. No.
       A Juror: Can you exclude the possibility?
       A: I pretty much can.''--Grand Jury Testimony of Monica 
     Lewinsky, Part One; Independent Counsel Appendices, Page 
     1119.
                                  ____


                               Appendix B

       Did Ms. Lewinsky think her affidavit in the Paula Jones 
     case was false when she signed it?
       ``Ms. L had a physically intimate relationship with the 
     President. Neither the Pres. nor Mr. Jordan (or anyone on 
     their behalf) asked or encouraged Ms. L to lie. Ms. L was 
     comfortable signing the affidavit with regard to the `sexual 
     relationship' because she could justify to herself that she 
     and the Pres. did not have sexual intercourse.''--Proffer of 
     Monica Lewinsky to the Independent Counsel.

[[Page 2469]]

       ``Q: When he said that you might sign an affidavit, what 
     did you understand it to mean at that time?
       A: I thought that signing an affidavit could range from 
     anywhere between maybe just somehow mentioning, you know, 
     innocuous things or going as far as maybe having to deny any 
     kind of relationship.''--Grand Jury Testimony of Monica 
     Lewinsky, Part One; Independent Counsel Appendices, Page 844.
       ``Q: You were trying to be truthful throughout [the 
     proffer]?
       A: Exactly.''--Grand Jury Testimony of Monica Lewinsky, 
     Part One; Independent Counsel Appendices, Page 1142.
       ``A: But I did some justifying in signing the affidavit, 
     so--
       Q: Justifying--does the word `rationalizing' apply as well?
       A: Rationalize, yes.''--Grand Jury Testimony of Monica 
     Lewinsky, Part One; Independent Counsel Appendices, Page 925.
                                  ____


                               Appendix C

       House Managers implied that when the President allegedly 
     told John Podesta Ms. Lewinsky threatened him, the President 
     was lying. But Monica Lewinsky did write a threatening letter 
     to President Clinton.
       ``If you believe the aides testified truthfully to the 
     grand jury about what the President told them about his 
     relationship, the President told them many falsehoods, 
     absolute falsehoods. So when the President described them 
     under oath to the grand jury as truths, he lied and committed 
     the crime of perjury. One example of this comes from Deputy 
     Chief John Podesta. . . [a]nother is Sidney Blumenthal. His 
     testimony was that on January 23 the President told him that. 
     . . Lewinsky threatened him and said that she would tell 
     people that they had had an affair. . .''--House Manager 
     McCollum, Congressional Record, January 15, 1999, Page S266.
       ``Q: You mentioned that in that July 3rd letter that you 
     sent to the President through Betty you made a reference to 
     the fact that you might have to explain things to your 
     parents. What did you mean by that?. . . Were you meaning to 
     threaten the President that you were going to tell, for 
     example, your father about the sexual relationship with the 
     President?
       A: Yes and no.''--Grand Jury Testimony of Monica Lewinsky, 
     Part One; Independent Counsel Appendices, Page 807.
                                  ____


                               Appendix D

       There was much debate about the consequences of calling 
     live witnesses. The President's lawyers argued that calling 
     witnesses would require them to engage in extensive discovery 
     and would significantly stretch-out the trial. It is relevant 
     in evaluating that claim to look at the impeachments of Judge 
     Nixon and Judge Alcee Hastings. In both of those cases, the 
     Judges' attorneys were given extensive discovery, including 
     Justice Department files, to prepare their defense. See 
     letter of Senator Wyche Fowler, Chairman of the Senate 
     Impeachment Trial Committee, and letter of Professor Terence 
     Anderson, University of Miami School of Law, below:


                                                  U.S. Senate,

                                    Washington, DC, July 18, 1989.
     John C. Keeney,
     Deputy Assistant Attorney General, Criminal Division, 
         Department of Justice, Washington, DC.
       Dear Mr. Keeney: As Chairman of the Senate Impeachment 
     Trial Committee on the Articles of Impeachment against Judge 
     Nixon, I write to request the Department's assistance in the 
     Committee's efforts to assure that Judge Nixon receives a 
     fair trial in the Senate. The Committee has determined that 
     it would make a useful contribution to the trial process if 
     the Department were willing to permit the Committee, through 
     its staff, to review the documents (excluding grand jury 
     materials governed by Rule 6(e)) in the possession of the 
     Department, including those possessed by the Federal Bureau 
     of Investigation, that were requested by Judge Nixon in his 
     June 1, 1989 letter to the Attorney General, which was the 
     subject of your response on June 21, 1989.
       The review would be consistent with that conducted in the 
     case of the Hastings impeachment matter. That is, the focus 
     of the review would be to determine if there is evidence that 
     the investigations were conducted in a manner intended to 
     mislead a court or trier of fact as to Judge Nixon's guilt or 
     innocence. In the event that it is determined that particular 
     documents should properly be made part of the pending 
     impeachment proceedings, and accordingly made available to 
     the parties for use at trial, the committee would hear from 
     the Department prior to disclosing any documents that you 
     believe contain particularly sensitive matters, so that we 
     may address any continuing concerns that you have. No 
     documents or portions of documents would be made available to 
     the parties without the consent of the Department.
       Your expeditious response to this request would be most 
     helpful to the committee in attempting to complete discovery 
     by July 31st.
           Sincerely,
     Wyche Fowler, Jr.
                                  ____

                            The University of Miami School of Law,
                               Coral Gables, FL, January 28, 1999.
     Hon. Carl Levin,
     U.S. Senate.

                   Discovery Precedents From Hastings

       Dear Senator Levin: Ms. Linda Gustitus asked that I 
     describe the process by which and the materials to which I 
     was given access as counsel for then Judge Hastings during 
     the impeachment trial proceedings before the United States 
     Senate. After the matter was referred to an Impeachment Trial 
     Committee, I submitted requests for production of documents 
     to the House, to the Investigating Committee of the Judicial 
     Council of the Eleventh Circuit, to the Federal Bureau of 
     Investigation, and the Justice Department. Over the initial 
     objections of the House Managers, at the ``request'' of the 
     Impeachment Trial Committee I received documents from all but 
     the Justice Department. In lieu of direct production, the 
     Impeachment Trial Committee examined the sensitive Justice 
     Department materials to determine what should be supplied. I 
     was also permitted to take at least three discovery 
     depositions. The proceedings that resulted in this production 
     are reported in Report of the Senate Impeachment Trial 
     Committee on the Articles of Impeachment Against Judge Alcee 
     L. Hastings, S. Hrg. 101-194, Pt. I (Pretrial Matters).
       By way of illustrations I enclose an appendix to a 
     memorandum that I submitted to the Impeachment Trial 
     Committee. That appendix describes in some detail the 
     materials that I received from the FBI and my estimate that 
     in the aggregate the production amounted to about 16,000. The 
     enclosed copy was reproduced from S. Hrg. 101-194, Pt. I at 
     433-436. Please let me know if I can be of further 
     assistance.
           Sincerely,
                                              Terence J. Anderson.
                                                 Professor of Law.

                               Appendix E

       Many of us in the Senate thought the House of 
     Representatives failed to meet its responsibilities by not 
     calling witnesses before the House Judiciary Committee. A 
     review of impeachments shows that in every impeachment but 
     the one (where the subject of the impeachment was mentally 
     incompetent and the House relied on the record of his 
     decisions as a judge), the House called fact witnesses. 
     According to information obtained by my staff from the 
     Congressional Research Service, there have been 16 
     impeachments by the House. 14 of those impeachments have 
     resulted in trials in the Senate; two did not because the 
     impeached officials resigned.
       15 of those impeachments had fact witnesses in the House; 
     one didn't. That was the case of Judge Pickering. He was 
     impeached for being mentally incapacitated. There were 
     charges of drunkenness and ``ungentlemanly language'' in the 
     courtroom. The articles against him, however, all dealt with 
     his rulings and decisions that ``proved'' he was mentally 
     incompetent. During the House inquiry, a number of affidavits 
     were presented.
                                  ____


                               Appendix F

       Independent counsel Kenneth Starr intervened in the Senate 
     impeachment trial by obtaining a court order addressed to 
     Monica Lewinsky requiring her to meet privately with House 
     Managers, based on a motion and ex parte hearing with no 
     notice to the Senate counsel or White House counsel. The 
     independent counsel then mischaracterized his own action in 
     seeking that order, describing it as seeking an 
     ``interpretation'' rather than an ``order''.
       See the letters to Kenneth Starr, Robert Bittman, Jacob 
     Stein, & Robert Bittman; the Emergency Motion on Immunity 
     Agreement; the letter to Congressman Henry Hyde; the letter 
     to Sen. Daschle; Congressman Hyde's press release; the order 
     of Judge Norma Holloway Johnson and the transcript of Mr. 
     Starr's remarks as follow:


                                               Washington, DC,

                                                 January 21, 1999.
     Hon. Kenneth W. Starr,
     Office of Independent Counsel,
     Washington, DC.

     Re: Interview of Monica Lewinsky.

       Dear Independent Counsel Starr: I am writing to you as the 
     Lead Manager of the Managers of the Impeachment Trial of 
     William Jefferson Clinton, currently underway in the United 
     States Senate. We are in the process of selecting witnesses 
     for testimony in these proceedings. The attorneys for Monica 
     Lewinsky have declined to make her available for an 
     interview.
       We have reviewed a copy of Ms. Lewinsky's Immunity 
     Agreement. Pursuant to paragraph 1(c) of that Agreement, it 
     would appear that she is required to submit to interviews and 
     debriefings if so requested by the Office of Independent 
     Counsel.
       We would like to arrange an interview with Ms. Lewinsky 
     prior to any such testimony. We would be happy to accommodate 
     her wishes as to the precise time and location of that 
     interview. However, it is important that this interview be 
     scheduled to take place on the earliest possible date, 
     specifically Friday, Saturday, or Sunday. Your assistance 
     with this interview will be appreciated.

[[Page 2470]]

       Thank you for your prompt attention.
           Sincerely,

                                                Henry H. Hyde,

                                         On Behalf of the Managers
     on the Part of the House.
                                  ____

                                                    Law Offices of


                                               Plato Cacheris,

                                 Washington, DC, January 21, 1999.
     Robert J. Bittman, Esquire
     Deputy Independent Counsel, Office of the Independent 
         Counsel, Washington, DC.
       Dear Bob: In your call today you mentioned that the 
     managers requested Ms. Lewinsky's cooperation by way of an 
     interview. As I told you, we believe it is inappropriate for 
     Ms. Lewinsky to be placed in the position of a partisan--
     meeting with one side and not the other--in this unique 
     proceeding. Therefore, we have recommended against interviews 
     with either side.
           Sincerely,
     Jacob A. Stein.
     Plato Cacheris.
                                  ____



                                          Independent Counsel,

                                 Washington, DC, January 21, 1999.
     Jacob A. Stein, Esq.
     Stein, Mitchell & Mezines,
      Washington, DC.
     Plato Cacheris, Esq.
     Law Offices of Plato Cacheris,
     Washington, DC.
       Dear Jake and Plato: Pursuant to her Immunity Agreement 
     with this Office, we hereby request that Monica Lewinsky meet 
     for an interview with the House of Representatives' 
     Impeachment Managers this Friday, Saturday, or Sunday, 
     January 22, 23, or 24, 1999.
       As you will recall, both parties contemplated congressional 
     proceedings at the time we entered into the Immunity 
     Agreement. The Agreement specifically requires Ms. Lewinsky 
     to ``testify truthfully . . . in any . . . congressional 
     proceedings.'' It further requires Ms. Lewinsky to ``make 
     herself available for any interviews upon reasonable 
     request,'' and stipulates that these interviews may include 
     ``representatives of any other institutions as the OIC may 
     require.''
       While I understand Ms. Lewinsky's misgivings, I must 
     disagree with one statement in your letter to me today: your 
     assertion that submitting to an interview would make Ms. 
     Lewinsky into a partisan. The Managers are acting on behalf 
     of the House of Representatives as a whole, not on behalf of 
     a political party. There task is constitutional in nature.
       Please feel free to call me if you have any questions.
           Sincerely,
                                                Robert J. Bittman,
     Deputy Independent Counsel.
                                  ____



                                    Stein, Mitchell & Mezines,

                                 Washington, DC, January 22, 1999.
     Robert J. Bittman, Esquire
     Office of the Independent Counsel
     Washington, DC.
       Dear Bob: 
       1. We have your January 21, 1999 letter.
       2. The Agreement does not require Ms. Lewinsky to be 
     interviewed by the House Managers or any Congressional body.
       3. Paragraph 1.C. of the Agreement states: ``Ms. Lewinsky 
     will be fully debriefed concerning her knowledge of and 
     participation in any activities within the OIC's 
     jurisdiction. This debriefing will be conducted by the OIC, 
     including attorneys, law enforcement agents, and 
     representatives of any other institutions as the OIC may 
     require. Ms. Lewinsky will make herself available for any 
     interviews upon reasonable requests.''
       4. This paragraph deals with OIC debriefings, not OIC's 
     acting as an agent for others.
       5. The Senate itself has provided its own rules for witness 
     interviews. As we understand them, there first must be a 
     deposition with equal access. As of now the Senate has not 
     voted for depositions.
       6. Ms. Lewinsky will, of course, respond to a subpoena to 
     appear and testify before the Senate. Yesterday, we raised 
     with you the issue of immunity for any proposed congressional 
     testimony. You opined that your office could grant such 
     immunity in conformance with Title 18 U.S.C. Sec. Sec. 6002, 
     6005. It is our understanding that only the Senate by 
     majority vote can do that. We would appreciate your supplying 
     your legal authority for your position.
           Sincerely,
     Jabob A. Stein.
     Plato Cacheris.
                                  ____


 [In the United District Court for the District of Columbia, Misc. No. 
                              99-  (NHJ)]

                      In Re Grand Jury Proceedings


  emergency motion of the united states of america for enforcement of 
                           immunity agreement

       The United States of America, by Kenneth W. Starr, 
     Independent Counsel, respectfully submits this motion for an 
     order requiring Ms. Lewinsky to comply with the terms of her 
     Immunity Agreement (the ``Agreement'') with the Office of the 
     Independent Counsel (``OIC''). Ms. Lewinsky has refused an 
     OIC request that she be debriefed by the House of 
     Representatives, as required by the Agreement. The United 
     States respectfully requests that this Court orders Ms. 
     Lewinsky to comply with the Agreement by allowing herself to 
     be debriefed.
     I. Factual background
       As this Court is no doubt aware, the United States Senate 
     is currently conducting an Impeachment Trial of the President 
     of the United States. According to public reports, it is 
     expected that the House will be required to submit to the 
     Senate its motion to call witnesses as early as Monday, 
     January 25. Again according to public reports, some potential 
     witnesses have spoken with the House Managers as the Managers 
     attempt to determine which witnesses should be mentioned in 
     their motion to the Senate.
       On January 21, 1999, House Judiciary Committee Chairman 
     Henry J. Hyde, on behalf of the House of Representatives, as 
     represented by its duly-appointed Managers, asked for the 
     OIC's assistance in having Ms. Lewinsky debriefed by the 
     House. See Letter from Henry J. Hyde to Kenneth W. Starr 
     (Jan. 21, 1999) (Attachment A). The House stressed that it 
     needs this debriefing to occur no later than Sunday, January 
     24.
       That same day, the OIC sent a letter to Ms. Lewinsky's 
     counsel requesting that Ms. Lewinsky allow herself to be 
     debriefed by the House Managers. See Letter from Robert J. 
     Bittman, Deputy Independent Counsel, to Jacob A. Stein, Esq. 
     and Plato Cacheris, Esq. (Jan. 21, 1999) (Attachment C). At 
     approximately 1:20 p.m. this afternoon, Ms. Lewinsky informed 
     the OIC that she does not intend to comply with this request. 
     See Letter from Jacob A. Stein and Plato Cacheris to Robert 
     J. Bittman (Jan. 22, 1999) (Attachment D).
     II. The immunity agreement plainly requires Ms. Lewinsky to 
         be debriefed by any institution that the OIC specifies
       Ordinary contract law principles govern immunity 
     agreements. See In re Federal Grand Jury Proceedings, Misc. 
     No. 98-59 (NHJ), slip op. at 12 (D.D.C. May 1, 1998) (under 
     seal) (``Courts generally interpret immunity and proffer 
     agreements, like plea agreements, under principles of 
     contract law.''), appeal dismissed sub nom. In re Sealed 
     Case, 144 F.3d 74 (D.C. Cir. 1998) (per curiam); accord 
     United States v. Black, 776 F.2d 1321, 1326 (6th Cir. 1985) 
     (``Like a plea agreement, an immunity agreement is 
     contractual in nature and may be interpreted according to 
     contract law principles.''); United States v. Irvine, 756 
     F.2d 708, 710 (9th Cir. 1985) (per curiam) (``Generally 
     speaking, a cooperation-immunity agreement is contractual) in 
     nature and subject to contract law standards.''); United 
     States v. Hembree, 754 F.2d 314, 317 (10th Cir. 1985) 
     (characterizing an immunity agreement as ``simply a 
     contract'').
       Under contract law, an agreement is interpreted according 
     to its plain terms. See Nicholson v. United States, 29 Fed. 
     Cl. 180, 191 (1993). The operative portion of the Immunity 
     Agreement states: ``C. Ms. Lewinsky will be fully debriefed 
     concerning her knowledge of and participation in any 
     activities within the OIC's jurisdiction. This debriefing 
     will be conducted by the OIC, including attorneys, law 
     enforcement agents, and representatives of any other 
     institutions as the OIC may require. Ms. Lewinsky will make 
     herself available for any interviews upon reasonable 
     request.'' Immunity Agreement para. 1.C (emphasis added) 
     (Attachment E). This provision follows paragraph 1.B, which 
     expressly requires Ms. Lewinsky to ``testify truthfully . . . 
     in . . . congressional proceedings.''
       By the plain terms of the Agreement, Ms. Lewinsky has 
     agreed to be debriefed by representatives of any institution, 
     when so required by the OIC. She is also required to ``make 
     herself available for any interviews upon reasonable 
     request.'' The duly-appointed House Managers represent the 
     House of Representatives, which plainly is an institution. 
     The OIC has unambiguously requested that Ms. Lewinsky submit 
     to each debriefing. Accordingly, Ms. Lewinsky must allow 
     herself to be debriefed by the House Managers or she will 
     have violated the Agreement.
       To be sure, Ms. Lewinsky has the right to have her 
     ``debriefing . . . conducted by the OIC.'' The OIC, of 
     course, is fully willing to conduct these debriefings, if Ms. 
     Lewinsky so desires. The suggestion in her counsel's letter 
     that this provision is void if the OIC is ``acting as an 
     agent for other,'' Attachment D at para. 4, is contrary to 
     the Agreement, as there is no such limitation on Ms. 
     Lewinsky's duties. A party to an agreement may not invent 
     clauses to a contract that are not contained therein.
       In any event, the OIC is not acting as an agent for the 
     House Managers. The OIC has its own, continuing duty to 
     provide the House with information relating to impeachment. 
     See 28 U.S.C. Sec. 595(c).
       Ms. Lewinsky's counsel's other suggestion--that a 
     debriefing would be contrary to Senate Rules, see Attachment 
     D at para. 5--is equally without merit. Senate Resolution 16 
     (106th Cong.) states, in relevant part: ``If the Senate 
     agrees to allow either the House or the President to call 
     witnesses, the witnesses shall first be deposed and the 
     Senate shall decide after deposition which witnesses shall 
     testify, pursuant to the impeachment rules.'' Although it is 
     plain that depositions may not be conducted absent a vote of 
     the Senate, nothing in this resolution restricts the ability 
     of the House to debrief witnesses in a non-deposition 
     setting. Indeed, it would be

[[Page 2471]]

     strange for the Senate to prohibit the House and the 
     President from doing the investigation necessary to determine 
     whether they wish to call witnesses and which witnesses to 
     list in their motions.
     III. This court should grant an order requiring Ms. Lewinsky 
         to comply with the immunity agreement or forfeit its 
         protection
       Under the Agreement, this Court has the authority to 
     determine whether Ms. Lewinsky has ``violated any provision 
     of this Agreement.'' Immunity Agreement para. 30. ``[A] 
     declaratory judgment will ordinarily be granted only when it 
     will either serve a useful purpose in clarifying the legal 
     relations in issue or terminate and afford relief from the 
     uncertainty, insecurity, and controversy giving right to the 
     proceeding.'' Tierney v. Schweiker, 718 F.2d 456 (D.C. Cir. 
     1983) (internal quotation marks omitted). In this case, a 
     declaratory judgment will resolve the uncertainty arising 
     from this controversy between the OIC and Ms. Lewinsky by 
     settling whether she has the right to refuse to be debriefed 
     without forfeiting the protections of the Agreement.
       Indeed, declaratory judgment is a common remedy when a 
     party to a contract intends conduct that may be a breach: `` 
     `(A) party to a contract is not compelled to wait until he 
     has committed an act which the other party asserts will 
     constitute a breach, but may seek relief by declaratory 
     judgment and have the controversy adjudicated in order that 
     he may avoid the risk of damages or other untoward 
     consequence.' '' (Application of President & Directors of 
     Georgetown College, Inc.) 331 F.2d 1000, 1002 n.6 (D.C. Cir. 
     1964) (quoting Keener Oil & Gas v. Consolidated Gas Utilities 
     Corp., 190 F.2d 985, 989 (10th Cir. 1951)); see Gilbert, 
     Segall & Young v. Bank of Montreal, 785 F. Supp. 453. 462 
     (S.D.N.Y. 1992); Fine v. Property Damage Appraisers, Inc., 
     393 F. Supp. 1304, 1309-10 (E.D. La. 1975). Accordingly, this 
     Court has the power to issue a declaratory judgment before 
     Ms. Lewinsky's actions become irreversible.
     IV. Conclusion
       The Immunity Agreement plainly requires that Ms. Lewinsky 
     allow herself to be debriefed by any institution at the 
     request of the OIC. Ms. Lewinsky has the right to insist that 
     the OIC conduct the debriefing, but she must comply with the 
     plain terms of the Immunity Agreement. Accordingly, the 
     United States respectfully requests that this Court enter an 
     order requiring Ms. Lewinsky to submit to debriefing by the 
     House.
       The Senate's schedule requires the House to submit its 
     motion to call witnesses as early as Monday, and the House 
     has stressed its need to debrief Ms. Lewinsky this weekend. 
     Accordingly, the United States respectfully requests that 
     this Court act on this motion as an emergency matter. 
     Specifically, we request a hearing on this matter today.
       Respectfully submitted,
     Kenneth W. Starr,
       Independent Counsel.
     Robert J. Bittman,
       Deputy Independent Counsel.
     Joseph M. Ditkoff,
       Associate Independent Counsel.
     Richard C. Killough,
       Assistant Independent Counsel.
                                  ____



                                               Washington, DC,

                                                 January 23, 1999.
     Hon. Henry J. Hyde,
     Chairman, Committee on the Judiciary,
     Washington, DC.
       Dear Mr. Manager Hyde: We understand that the Office of 
     Independent Counsel, on behalf of the House Managers, sought 
     a court order to compel Ms. Lewinsky to submit to an 
     interview with the Managers in preparation for her possible 
     testimony. We further understand that Chief Judge Norma 
     Holloway Johnson has granted the order sought by the 
     Independent Counsel.
       As you know, Senate Resolution 16, which was passed by a 
     100-0 vote just over two weeks ago, expressly deferred any 
     consideration or action related to additional witness 
     testimony until after opening presentations, a question-and-
     answer period and an affirmative vote to compel such 
     testimony. These actions by the Managers, undertaken without 
     notice to the Senate or the President's Counsel, raise 
     profound questions of fundamental fairness and undermine the 
     ability of this body to control the discovery procedures that 
     will take place under the imprimatur of its authority.
       In light of these concerns, we ask that you withdraw any 
     and all requests to Mr. Starr that he assist your efforts to 
     interview Ms. Lewinsky. The Senate, in a matter of days, will 
     have an opportunity to formally address this issue pursuant 
     to the procedures established by Senate Resolution 16. 
     Moreover, we insist that you take no action related to the 
     proposed interview of any witness until such time as the 
     Senate has given you the authority to do so.
           Sincerely,
                                                       Harry Reid.
       [Also signed by 43 Senators.]
                                  ____



                                               Washington, DC,

                                                 January 23, 1999.
     Hon. Tom Daschle,
     Democratic Leader, U.S. Senate,
     Washington, DC.
       Dear Mr. Democratic Leader: I am in receipt of your letter 
     of today expressing your concern with the House of 
     Representatives' request to interview Monica Lewinsky.
       It has always been the position of the House Managers that 
     a full trial with the benefit of relevant witnesses is in the 
     best interest of the Senate and the American people. 
     Representatives of President Clinton and many Senators have 
     publicly stated that they want the Senate to preclude the 
     testimony of witnesses. Many other Senators have made it 
     clear that they prefer the witness lists for both sides to be 
     sharply focused and limited to only the most relevant 
     witnesses. The Managers have been mindful of these Senators' 
     concerns.
       It is clear that the two most important witnesses in this 
     trial are President Clinton and Ms. Lewinsky. Yesterday, I 
     wrote to Majority Leader Lott and you to express the 
     Managers' willingness to participate in the fair examination 
     of the President if the Senate chooses to invite him to 
     testify. The presentation of the President's counsel ended 
     just two days ago. We are in the process of evaluating that 
     presentation and determining what witnesses we will request 
     the Senate to call. We believe that interviewing Ms. Lewinsky 
     will help us make this determination. Counsel for the 
     President may have already interviewed witnesses or may wish 
     to interview witnesses they will propose to the Senate. That 
     is their prerogative. The Senate has required us to submit a 
     proffer of anticipated testimony of any proposed witnesses. 
     Interviews of potential witnesses will assist the parties in 
     providing the Senate with informative proffers.
       The House of Representatives has not violated S. Res. 16. 
     When the House passed H. Res. 10 appointing the Mangers, it 
     authorized that the Managers may ``in connection with the 
     preparation and the conduct of the trial, exhibit the 
     articles of impeachment to the Senate and take all other 
     actions necessary, which may include * * * sending for 
     persons and papers . . . .'' Implicit in this authority is 
     the ability to conduct interviews and gather additional 
     information relevant to the articles of impeachment.
       The Managers, who represent the House of Representatives, 
     retain powers separate and apart from the Senate. The 
     Managers are not, just as the President's Counsel are not, an 
     office or subset of the Senate. The Managers, like the 
     President's Counsel, may conduct activities, such as further 
     investigation and legal research, that are not specifically 
     authorized by the Senate.
       Senate Resolution 16 does not prohibit the Managers from 
     conducting further investigation or interviews of witnesses. 
     If the resolution was intended to restrict the Managers in 
     this way, we believe that it would violate principles of 
     bicameralism, the ability of each House to establish its own 
     rules of procedure, and would therefore be an 
     unconstitutional infringement on the prerogatives of the 
     House.
       Implicit in the right of the Managers to report to the 
     House amendments to articles of impeachment, is the right of 
     the Managers to receive and evaluate additional information. 
     For example, if the Managers received additional exculpatory 
     or inculpatory information, they could file amendments to the 
     articles of impeachment in the House.
       Senate Resolution 16 set a schedule for deciding whether to 
     depose witnesses. The decision to depose witnesses is subject 
     to a request from the House Managers. The House Managers have 
     decided that they need to talk with Ms. Lewinsky before 
     making a recommendation to the Senate to depose her. The 
     action of the House Managers is not unusual. It is not 
     unfair, and it is not contrary to the rules of the Senate.
       With all due respect to the Senate, the rules and the 
     constitutional principles of bicameralism do not require that 
     the House obtain the permission of the Senate merely to 
     conduct an interview of a potential witness. A decision to 
     merely interview a witness as opposed to conducting a 
     deposition, does not interfere with the Senate's ability to 
     control the procedures set forth under S. Res. 16.
           Sincerely,

                                                Henry J. Hyde,

                                  On behalf of the Managers on the
                             Part of the House of Representatives.

 [From the U.S. House of Representatives, Committee on the Judiciary, 
                        Henry J. Hyde, Chairman]

                  Managers' Response to Judge's Ruling

       (Washington, D.C.)--Paul McNulty, chief spokesman for the 
     House Managers, made the following statement today following 
     Judge Johnson's ruling that Monica Lewinsky must cooperate 
     with the managers' request for an interview, in keeping with 
     her immunity agreement:
       ``Monica Lewinsky received extraordinary protection in 
     exchange for her truthful testimony. Judge Johnson ruled that 
     she has an obligation to cooperate in the search for truth.
       ``Ms. Lewinsky's testimony has never been more important 
     than it is now. In the last

[[Page 2472]]

     four days, the White House has challenged the reliability of 
     her testimony in a number of key instances relating to her 
     conversations with the President and Ms. Currie.
       ``Ms. Lewinsky can resolve some of these crucial conflicts, 
     and House Managers have a responsibility to interview her 
     before deciding to call her as a witness. This is Lawyering 
     101--any good lawyer would talk to a witness before deciding 
     to put her on the witness stand. When the House of 
     Representatives appointed the Managers, it also granted them 
     the investigative authority necessary to find the truth.
       ``The White House's protests are psuedo-objections designed 
     to divert attention from the President's behavior.''
                                  ____


  [In the United States District Court for the District of Columbia, 
                         Misc. No. 99-32 (NHJ)]

                      In re Grand Jury Proceedings


                                 order

       Upon consideration of the Emergency Motion of the United 
     States of America for Enforcement of Immunity Agreement, it 
     is hereby ordered that the Motion is granted. It is further 
     ordered that Monica S. Lewinsky allow herself to be debriefed 
     by the House Managers, to be conducted by the Office of the 
     Independent Counsel if she so requests, or forfeit her 
     protections under the Immunity Agreement between Ms. Lewinsky 
     and the OIC.

     January 23, 1999.
                                           Norma Holloway Johnson,
     Chief Judge.
                                  ____


          Excerpt from CBS Radio Transcript, January 24, 1999


 kenneth starr delivers remarks concerning the upcoming interview with 
                   monica lewinsky; Washington, d.c.

       QUESTION: Sir, people are saying on the Capitol Hill that 
     you're trying to influence the trial by bringing back Monica, 
     before they had a chance to vote.
       What do you say about that?
       STARR: Well, as I indicated, we had a request from the Lead 
     Manager, Chairman Hyde, it was a formal request. And we 
     responded as I felt that we were obligated to do to that 
     request. And we then took what I felt was the appropriate 
     action and we went to court.
       I want to make it very clear that Chief Judge Johnson has 
     only interpreted the agreement between Ms. Lewinsky, who's 
     advised by her very able lawyers, and our office. She did not 
     direct an order in any sense other than to interpret the 
     meaning of the agreement, which we asked her to interpret. 
     So, I want it to be very, very clear that the judge was 
     simply acting at our request to interpret the terms of the 
     agreement, which we believe are quite clear.
       QUESTION: Senator Harkin said yesterday that Judge Johnson 
     may not have acted on, you know, constitutionally. Do you 
     have any comment on that?
       STARR: Well we think that we have taken the appropriate 
     action in going to the court and the court acted 
     appropriately in interpreting the agreement, which is all 
     that she did. So if there is an issue, the issue has to be 
     one that's entrusted to the wisdom of the Senate. And their 
     relationship with the House managers.
       But from our standpoint, the agreement we felt was clear, 
     we asked the judge to determine whether our interpretation of 
     the agreement was clear. And she has issued her ruling.
                                  ____


                               Appendix G

       Although the House Managers argued strenuously about the 
     need to call witnesses in the Senate trial, their position in 
     the House of Representatives on the same subject was the 
     opposite.
       ``Well, they've already testified . . . I don't think we 
     need to reinvent the wheel. To keep calling people to 
     reiterate what they've already said under oath.''--Rep. Henry 
     Hyde, CNN, October 10, 1998.
       ``I don't really believe that we need more live testimony 
     from those type of witnesses. We have sworn testimony from 
     Monica Lewinsky, from Betty Currie, from all the principal 
     players. We also have sworn testimony from corroborating 
     witnesses to their testimony . . . And--and . . . I don't 
     think we need any former witnesses. I don't think we need to 
     bring any in.''--Rep. Bill McCollum, NBC ``Saturday Today'', 
     November 28, 1998.
       ``Bringing in witnesses to rehash testimony that's already 
     concretely in the record would be a waste of time and serve 
     no purpose at all.''--Rep. George Gekas, New York Times, 
     November 6, 1998.

                               Appendix H

       Although the House Managers argued strenuously about the 
     need to call witnesses in the Senate trial, they also claimed 
     that the record conclusively proved the President's guilt.
       ``A reasonable and impartial review of the record as it 
     presently exists demands nothing less than a guilty 
     verdict.''--House Manager Bryant, Congressional Record, 
     January 14, 1999, Page S232.
       ``Finally, before turning to that merger of the law and the 
     facts, which I believe will illustrate conclusively that this 
     President has committed and ought to be convicted on perjury 
     and obstruction of justice . . .''.--House Manager Barr, 
     Congressional Record, January 15, 1999, Page S274.
       ``[L]adies and gentlemen of the Senate, there are 
     conclusive facts here that support a conviction.''--House 
     Manager Bryant, Congressional Record, February 8, 1999, Page 
     S1358.

                               Appendix I

       At times, the House Managers took different and oft-time 
     conflicting positions on the need to call witnesses in the 
     Senate trial.
       ``I submit that the state of the evidence is such that 
     unless and until the President has the opportunity to 
     confront and cross-examine witnesses like Ms. Lewinsky, and 
     himself, to testify if he desires, there could not be any 
     doubt of his guilt on the facts.''--House Manager Bryant, 
     Congressional Record, January 14, 1999, Page S232.
       ``[I]f we had Mr. Jordan on the witness stand--which I hope 
     to be able to call Mr. Jordan--you would need to probe where 
     his loyalties lie, listen to the tone of his voice, look into 
     his eyes and determine the truthfulness of his statements. 
     You must decide whether he is telling the truth or 
     withholding information.''--House Manager Hutchinson, 
     Congressional Record, January 14, 1999, Page S234.
       ``The case against the President rests to a great extent on 
     whether or not you believe Monica Lewinsky. But it is also 
     based on the sworn testimony of Vernon Jordan, Betty Currie, 
     Sidney Blumenthal, John Podesta and corroborating witnesses. 
     Time and again, the President says one thing and they say 
     something entirely different . . . . But if you have serious 
     doubts about the truthfulness of any of these witnesses, I, 
     again, as all my colleagues do, encourage you to bring them 
     in here.''--House Manager McCollum, Congressional Record, 
     January 15, 1999, Page S266.
       ``[O]n the record, the weight of the evidence, taken from 
     what we have given you today, what you can read in all these 
     books back here . . . I don't know what the witnesses will 
     say, but, I assume if they are consistent, they'll say the 
     same that's in here.''--House Manager McCollum, Congressional 
     Record, January 15, 1999, Page S266-S267.
       ``[N]o one in this Chamber at this juncture does not know 
     all the facts that are pertinent to this case. That is a 
     magnificent accomplishment on the part of the managers.''--
     House Manager Gekas, Congressional Record, January 15, 1999, 
     Page S267.
                                  ____


                               Appendix J

       The House of Representatives articles were intended to 
     charge President Clinton with specific crimes.
       ``[T]his honorable Senate must do the right thing. It must 
     listen to the evidence; it must determine whether William 
     Jefferson Clinton repeatedly broke our criminal laws and thus 
     broke his trust with the people.''--House Manager 
     Sensenbrenner, Congressional Record, January 14, 1999, Page 
     S227.
       ``Moreover, in engaging in this course of conduct, 
     referring here to the words of the obstruction statute found 
     at section 1503 of the Criminal Code, the President's actions 
     constituted an endeavor to influence or impede the due 
     administration of justice in that he was attempting to 
     prevent the plaintiff in the Jones case from having a `free 
     and fair opportunity to learn what she may learn concerning 
     the material facts surrounding her claim'. These acts by the 
     President also constituted an endeavor to `corruptly persuade 
     another person with the intent to influence the testimony 
     they might give in an official proceeding'. Such are the 
     elements of tampering with witnesses found at section 1512 of 
     the Federal Criminal Code.''--House Manager Barr, 
     Congressional Record, January 15, 1999, Page S274-S275.
       ``Under both sections of the Federal Criminal Code, that 
     is, 1503, obstruction, and 1512, obstruction in the form of 
     witness tampering, the President's conduct constituted a 
     Federal crime and satisfies the elements of those statutes.--
     House Manager Barr, Congressional Record, January 15, 1999, 
     Page S275.
       ``The evidence, however, clearly establishes that the 
     President's statement constitutes perjury, in violation of 
     section 1623 of the U.S. Federal Criminal Code for the simple 
     reason the only realistic way Ms. Lewinsky could get out of 
     having to testify based on her affidavit. There was no other 
     way it could have happened. The President knew this. Ms. 
     Lewinsky knew this. And the President's testimony on this 
     point is perjury within the clear meaning of the Federal 
     perjury statute. It was willful, it was knowing, it was 
     material, and it was false.--House Manager Barr, 
     Congressional Record, January 15, 1999, Page S275.
       ``Please keep in mind also, it is not required that the 
     target of the defendant's actions actually testify falsely. 
     In fact, the witness tampering statute can be violated even 
     when there is no proceeding pending at the time the defendant 
     acted in suggesting testimony. As the cases discussed by 
     Manager Cannon demonstrate, for a conviction under either 
     section 1503, obstruction, or 1512, obstruction by witness 
     tampering, it is necessary only to show it was possible the

[[Page 2473]]

     target of the defendant's actions might be called as a 
     witness. That element has been more than met under the facts 
     of this case.--House Manager Barr, Congressional Record, 
     January 15, 1999, Page S276.
       ``In my opening statement before this body, I outlined the 
     four elements of perjury: An oath, intent, falsity, 
     materiality. In this case, all those elements have been 
     met.''--House Manager Chabot, Congressional Record, February 
     8, 1999, Page S1341.
       ``In the past month, you have heard much about the 
     Constitution; and about the law. Probably more than you'd 
     prefer; in a dizzying recitation of the U.S. Criminal Code: 
     18 U.S.C. 1503. 18 U.S.C. 1505. 18 U.S.C. 1512. 18 U.S.C. 
     1621. 18 U.S.C. 1623. Tampering. Perjury. Obstruction. That 
     is a lot to digest, but these are real laws and they are 
     applicable to these proceedings and to this President.''--
     House Manager Barr, Congressional Record, February 8, 1999, 
     Page S1342.
                                  ____


                               Appendix K

       Though written in his diary almost 200 hundred years ago, 
     John Quincy Adams' thoughts on the impeachment of Justice 
     Samuel P. Chase, who was acquitted, are relevant to the 
     impeachment of President Clinton.
       On the day that Justice Chase was acquitted in 1805, John 
     Quincy Adams wrote the following:
       ``. . . This was a party prosecution, and is issued in the 
     unexpected and total disappointment of those by whom it was 
     brought forward. It has exhibited the Senate of the United 
     States fulfilling the most important purpose of its 
     institution. . . It has proved that a sense of justice is yet 
     strong enough to overpower the furies of factions; but it 
     has, at the same time, shown the wisdom and necessity of that 
     provision in the Constitution which requires the concurrence 
     of two-thirds for conviction upon impeachments.''

                               Appendix L


 Additional Statement of Senator Carl Levin regarding the Independent 
                                Counsel

       Mr. President, four and one half years ago, the Special 
     Court under the independent counsel law appointed Kenneth 
     Starr to investigate certain specific and credible 
     allegations concerning President Clinton's involvement in the 
     Madison Guaranty Savings and Loan Association of Little Rock, 
     Arkansas. Three and half years later--and after what appears 
     to be the most thorough criminal investigation of a sitting 
     President, Mr. Starr was unable to find any criminal 
     wrongdoing on the part of the President in what came to be 
     known as ``Whitewater.'' A similar conclusion was reached by 
     Mr. Starr with respect to additional investigations assigned 
     to Mr. Starr along the way--namely, allegations with respect 
     to the White House use of FBI files and the discharge of 
     White House employees from the White House Travel Office.
       A year ago Mr. Starr's investigation was coming to an end. 
     That's when Linda Tripp walked through Mr. Starr's door with 
     promises of taped phone conversations between Ms. Tripp and 
     Monica Lewinsky about Ms. Lewinsky's sexual relationship with 
     President Clinton. And what was the alleged crime? That 
     President Clinton and Ms. Lewinsky were about to lie about 
     their relationship--if they were asked about it by the 
     attorneys for Paula Jones in her sexual harassment case 
     against President Clinton. Mr. Starr had to know that the 
     relationship between President Clinton and Monica Lewinsky 
     had been a consensual one. Mr. Starr had to know that, 
     because Ms. Tripp was informed by Ms. Lewinsky of every 
     aspect of her relationship with President Clinton. And at 
     this point--January 12, 1998--neither Monica Lewinsky nor 
     President Clinton had been deposed.
       I am convinced that no ordinary federal prosecutor, if 
     confronted with the same situation involving a private 
     citizen, would have pursued this case. But Mr. Starr was no 
     ordinary federal prosecutor. Without jurisdiction with 
     respect to these matters, he immediately gave Ms. Tripp 
     immunity in exchange for access to her tapes, and he wired 
     her to tape a private luncheon conversation with Ms. 
     Lewinsky. Shortly after Mr. Starr wired Ms. Tripp, he 
     confronted Ms. Lewinsky and, according to her, threatened her 
     with 27 years in prison and the prosecution of her mother in 
     order to get her cooperation and to tape Betty Currie, the 
     President, and/or Vernon Jordan. Mr. Starr brought his 
     enormous criminal investigative resources to bear on 
     testimony yet to be given in a civil lawsuit involving a 
     consensual, sexual relationship.
       At the time Ms. Lewinsky was threatened by Mr. Starr, her 
     affidavit in the Jones case had not been filed. She was still 
     in a position to retrieve it or amend it. Also, President 
     Clinton had not been deposed. He had not given his testimony 
     in the Paula Jones suit. In effect, Mr. Starr and his agents 
     lay in wait--waiting for the President to be surprised at the 
     Jones deposition with information about Monica Lewinsky. And 
     how did that information about Monica Lewinsky get in the 
     hands of the Jones attorneys? Ms. Tripp gave them the 
     information. And she was able to do that even though she was 
     under an immunity arrangement with Mr. Starr, because--as Mr. 
     Starr acknowledged to the House Judiciary Committee under 
     questioning--Mr. Starr's agents never directed Ms. Tripp to 
     keep her information confidential, even though Mr. Starr had 
     a major concern that the Lewinsky matter would leak to the 
     press. Mr. Starr's agents did not tell Ms. Tripp not to talk 
     to the Jones attorneys or anyone else in order to ensure that 
     the story would not leak to the press.
       So the enormous criminal investigative resources of the 
     federal government were brought to bear on the President of 
     the United States to catch him by surprise in a future 
     deposition in a civil proceeding on a matter peripheral to 
     the lawsuit, prior to any of the suspected unlawful conduct.
       Once the President testified in that civil suit, Mr. Starr 
     convened a grand jury to investigate the truthfulness of Mr. 
     Clinton's testimony. Again, using the virtually unlimited 
     resources of the federal government with respect to a 
     criminal investigation, Mr. Starr called countless witnesses 
     before the grand jury--recalling numerous witnesses multiple 
     times. Betty Currie testified on 5 different occasions; so 
     did Vernon Jordan. Monica Lewinsky testified 3 times and was 
     interviewed over 20 separate times. I don't believe any 
     regular prosecutor would have invested the time and money and 
     resources in the kind of investigation that Kenneth Starr 
     did.
       At the end, Mr. Starr wrote a report arguing for 
     impeachment to the House of Representatives. He didn't just 
     impartially forward evidence he thought may demonstrate 
     possible impeachable offenses.
       The Starr report spared nothing. Lacking good judgment and 
     balance, the Starr report contained a large amount of 
     salacious detail, and skipped over or dismissed important 
     exculpatory evidence, such as Monica Lewinsky's statement 
     that no one asked her to lie and no one promised her a job 
     for her silence. Mr. Starr violated the standards enunciated 
     by Judge Sirica when he addressed the status of the grand 
     jury report in the Watergate matter. In that case, Judge 
     Sirica wrote in granting Leon Jaworski, the Watergate 
     prosecutor, the right to forward grand jury information to 
     the House of Representatives:

       ``It draws no accusatory conclusions. . . It contains no 
     recommendations, advice or statements that infringe on the 
     prerogatives of other branches of government. . . It renders 
     no moral or social judgments. The Report is a simple and 
     straightforward compilation of information gathered by the 
     Grand Jury, and no more. . . The Grand Jury has obviously 
     taken care to assure that its Report contains no 
     objectionable features, and has throughout acted in the 
     interests of fairness. The Grand Jury having thus respected 
     its own limitations and the rights of others, the Court ought 
     to respect the Jury's exercise of its prerogatives.'' (In re 
     Report and Recommendation of June 5, 1972, Grand Jury 
     Concerning Transmission of Evidence to the House of 
     Representatives, U.S. District Court, District of Columbia, 
     March 18, 1974.)

       What a far cry the Watergate grand jury report was from Mr. 
     Starr's. The Starr Report violates almost every one of the 
     standards laid out by Judge Sirica in the Watergate case.
       The House of Representatives the Judiciary Committee then 
     almost immediately released the Starr report and the 
     thousands of pages of evidence to the public.
       Because of that release--enormous damage had been done to 
     the public's sense of decorum and to appropriate limits 
     between public and private life.

  Mr. LEVIN. Mr. Hutchinson's arguments rely on inferences. Relying on 
inferences is not unique to proving a case. What is unique is that in 
this case, the House Managers use inferences primarily from bits and 
pieces of testimony of people who explicitly deny those inferences in 
their direct testimony. The House Managers' inference that the 
President encouraged Monica Lewinsky to lie was contradicted by Monica 
Lewinsky's direct testimony that the President never ``encouraged'' her 
to lie.
  The House Managers' inference that ``it was President Clinton who 
initiated the retrieval of the gifts and the concealment of the 
evidence on December 28, 1997,'' was contradicted by Monica Lewinsky's 
direct testimony that she initiated the concealment of gifts. Not only 
is it an uncontested fact based on direct testimony that it was Monica 
Lewinsky who on December 22, 1997, following the receipt of a subpoena 
for gifts and having decided on her own to withhold gifts which would 
``give away any kind of special relationship,'' brought to her attorney 
only those gifts that were ``innocuous'' and typical of the kind of 
gifts an intern might receive. It is also an uncontested fact based on 
direct testimony that it was Monica Lewinsky who, on December 28, 1997, 
expressed her interest in wanting

[[Page 2474]]

to hide the gifts when she said to the President that maybe she should 
transfer the gifts to Betty Currie. Ms. Lewinsky testified that the 
President either didn't respond to her comment or said he'd think about 
it.
  But what makes the Managers' inference even more speculative is the 
fact that at the December 28th visit, the President gave Ms. Lewinsky 
even more gifts, including a bear carving from Vancouver, a small 
blanket and a stuffed animal. Why would the President give Ms. Lewinsky 
gifts at the same time he is asking her to conceal others he had 
already given her? I was struck by the House's answer. ``The only 
logical inference,'' according to the House Managers, ``is that the 
gifts--including the bear symbolizing strength--were a tacit reminder 
to Ms. Lewinsky that they would deny the relationship--even in the face 
of a federal subpoena.''
  That inference, called ``the only logical inference,'' is not only 
the rankest form of speculation, it is also contrary to the direct 
evidence.
  The undisputed grand jury testimony was that the bear carving was 
brought back by the President from Vancouver, a trip which occurred 
weeks before Monica Lewinsky's name appeared on any witness list. We're 
not even offered speculation as to how the President could foresee that 
Monica Lewinsky would be on a witness list, and pick up a symbol of 
strength while in Vancouver so that he could give it to her as a 
reminder to deny their relationship in the face of some future, 
unforseen federal subpoena. But even more to the point, when Ms. 
Lewinsky was asked the direct question at the grand jury whether she 
interpreted the gift of the Vancouver bear carving as a signal to her 
to ``be strong in your decision to continue to conceal the 
relationship,'' her direct, one-word answer was ``no.''
  The Managers' reliance on inferences from testimony of persons whose 
direct testimony contradicts the inferences was a recurring pattern 
during this trial. The Managers alleged that the signing of the 
affidavit and the obtaining of the job for Ms. Lewinsky were linked, 
based on inference from bits and pieces of testimony of Monica Lewinsky 
and Vernon Jordan. But Vernon Jordan and Monica Lewinsky explicitly 
denied any such linkage. Ms. Lewinsky said, ``There was no agreement 
with the President, Jordan, or anyone else that [I] had to sign the 
Jones affidavit before getting a job in New York.'' Mr. Jordan told the 
grand jury in answer to the question whether the job search and 
affidavit signing were linked, ``unequivocally, indubitably, no.''
  Impeachment and removal should be based on sturdier foundations than 
the heap of inferences that have been placed before us, when those 
inferences are pieced together from bits of testimony of witnesses 
whose direct, explicit testimony contradicts the inferences. The House 
Managers would have us overlook the forest of direct testimony while 
getting lost in the trees of their multiple inferences.
  The House Managers' case also omitted directly relevant, 
contradictory material and misstated key facts. For instance, the House 
Managers argued in their brief that relative to the job search 
assistance for Ms. Lewinsky, ``nothing happened in November of 1997.'' 
But, in fact, our Ambassador to the United Nations, at the request of 
the Deputy Chief of Staff of the White House, offered Ms. Lewinsky a 
U.N. job on November 3rd.
  The House Managers' report explicitly represented that ``(t)he first 
activity calculated to help Ms. Lewinsky actually get a job took place 
on December 11,'' and that ``(s)omething happened that changed the 
priority assigned to the job search.'' What happened, the Managers 
argued, was a court order ``on the morning of December 11'' by Judge 
Wright requiring President Clinton to provide information about prior 
relationships involving state and federal employees. The Senate was 
told by the House Managers that ``(s)uddenly, Mr. Jordan and President 
Clinton were now very interested in helping Ms. Lewinsky find a good 
job in New York'' and that Vernon Jordan got active on the afternoon of 
December 11 when he and Ms. Lewinsky met.
  Manager Hutchinson said in his argument to the Senate:

       The witness list came in. The judge's order came in. That 
     triggered the President to action. And the President 
     triggered Vernon Jordan into action. That chain reaction here 
     is what moved the job search along.

  But that key argument disintegrated before our eyes when it turned 
out that Judge Wright's December 11 order came late in the day, well 
after the meeting between Vernon Jordan and Monica Lewinsky, and in 
addition, the meeting had been scheduled many days before.
  With respect to the perjury article, the House Managers failed to 
meet their burden as well. The President admitted to the grand jury 
that he did have ``inappropriate intimate contact'' with Monica 
Lewinsky when he was alone with her, and the House Managers failed to 
identify specific statements that would meet the requirements of a 
perjury charge.
  The lack of substantive evidence supporting the charges explains why 
a panel of five highly regarded former Democratic and Republican 
federal prosecutors, who appeared before the House Judiciary Committee, 
testified that this case against the President would not have been 
pursued by a responsible federal prosecutor. Thomas Sullivan, who 
served for four years as U.S. Attorney for the Northern District of 
Illinois, and whom Chairman Hyde described as having ``extraordinarily 
high'' qualifications had this to say:

       . . . (I)n conversations with many current and former 
     Federal prosecutors in whose judgment I have great faith, 
     virtually all concur that if the President were not 
     involved--if an ordinary citizen were the subject of the 
     inquiry--no serious consideration would be given to a 
     criminal prosecution arising from alleged misconduct in 
     discovery in the Jones civil case, having to do with an 
     alleged coverup of a private sexual affair with another woman 
     or the follow-on testimony before the grand jury . . . I 
     believe the President should be treated in the criminal 
     justice system in the same way as any other United States 
     citizen. If that were the case here, it is my view that the 
     alleged obstruction of justice and perjury would not be 
     prosecuted by a responsible United States Attorney.

  Finally, I have had a deep concern about the impeachment process 
which formed the basis of this trial. While my decision to reject the 
articles is based on the inadequate proof of the crimes alleged, the 
process which brought this matter to trial was deeply flawed.
  The articles of impeachment before us are based on materials, the so-
called Starr Report, compiled by an outside prosecutor, not by the 
legislative branch itself, which has under the Constitution the 
``sole'' responsibility for impeachment. Instead of doing an 
independent investigation, the House of Representatives unwisely 
delegated, in my judgment, the critically important investigative 
function to an outside prosecutorial foe of the President and an actual 
advocate of his impeachment. The House took that prosecutor's record 
and his testimony and made them the basis of articles of impeachment 
presented to us.
  The contrast to the Watergate investigation and the impeachment of 
President Nixon is stark. In the Watergate investigation, the Senate 
convened a select committee in February 1973 to investigate the 
Watergate break-in and other campaign irregularities in the 1972 
election. That committee took testimony for a year. In February 1974, 
the House voted to direct the House Judiciary Committee to conduct an 
inquiry into impeachment. The Committee conducted its own 
investigation, including subpoenaing the White House tapes and calling 
numerous fact witnesses. The Committee also obtained the report of the 
grand jury meeting under the authority of Leon Jaworski, the Watergate 
prosecutor. In deciding to allow the grand jury report to be forwarded 
to the House Judiciary Committee, Judge Sirica found that the report:
       `` draws no accusatory conclusions. . . contains no 
     recommendations, advice or statements that infringe on the 
     prerogatives of other branches of government. . . . (and) 
     renders no moral or social judgments. The Report is a simple 
     and straightforward compilation of information gathered by 
     the Grand Jury, and no more. . . .'' (In re Report

[[Page 2475]]

     and Recommendation of June 5, 1972, Grand Jury Concerning 
     Transmission of Evidence to the House of Representatives, 
     U.S. District Court, District of Columbia, March 18, 1974.)

  The report sent to the House of Representatives in the matter before 
us violated almost every standard followed by Judge Sirica. The Starr 
Report didn't present the evidence in an impartial manner as 
contemplated in the independent counsel law. It drew a host of 
``accusatory conclusions'' and rendered judgments. The report contained 
a large volume of needlessly salacious detail and omitted or dismissed 
important exculpatory evidence. The impeachment process has suffered as 
a result.
  Moreover, the House made a significant and irreparable mistake in the 
actual drafting of the articles. Each article alleges multiple acts of 
wrongdoing. Thus, it would be impossible to determine after a vote on 
the articles whether a two-thirds majority of the Senate actually 
agreed on a particular allegation. Article I, for example, charges that 
President Clinton committed one or more of the 4 possible acts of 
perjury; Article II charges that President Clinton committed one or 
more of 7 possible acts of obstruction. Without separate votes on each 
of the alleged acts, it would be impossible to determine whether two-
thirds of the Senate agreed that the President had committed any of the 
actions alleged. Since the Constitution requires conviction upon a vote 
of two-thirds of the Senate, the articles as drafted do not allow us to 
guarantee to the American people that we are complying with the 
requirements of the U.S. Constitution. This is a flaw that cannot be 
fixed, because the Senate does not have authority to amend the 
articles.
  Alexander Hamilton in the Federalist Papers asked this question, 
``Where else than in the Senate could have been found a tribunal . . . 
[which] . . . would be likely to feel confidence enough in its own 
situation to preserve, unawed and uninfluenced, the necessary 
impartiality between an individual accused and . . . his accusers ?''
  Each of us, however we vote, will soon answer that question, as we 
stand between the accuser and the accused, weighing the evidence. The 
issue before us is not whether the President's conduct was 
reprehensible; that is clear beyond any reasonable doubt. The issue is 
whether the President committed the alleged crimes for which he should 
be removed from office, a proposition which places on his accusers a 
heavy burden of proof. It is a burden the House Managers have not met, 
and I will, therefore, vote against the articles of impeachment.
  I would like to add my thoughts on censure as well, since this may be 
the only appropriate opportunity to do so. I support the censure 
resolution authored by Senator Feinstein, and I commend her for her 
openness, diligence and hard work in bringing to fruitition a 
bipartisan product. The President should know, the American people 
should know, and history should know that by voting to acquit on 
impeachment, we did not vote to acquit the President for his egregious 
conduct. I know of no Senator who is not deeply troubled by the 
President's conduct. While I do not believe the President's conduct in 
his private, consensual sexual relationship should have become the 
business of the American public, it did in fact become so, and when it 
did the President had the duty to tell the truth. And no matter how 
wrong or improper that disclosure of the President's private life was, 
it does not justify the lies the President told to the American people, 
his family and his staff.
  I hope that our votes today on impeachment will conclude this 
unfortunate chapter in our political history and that the President, 
through a forthright acknowledgment of the wrongfulness of his 
behavior, will lead the nation toward healing the wounds these events 
have opened. I believe the American people want an end to this matter 
more than anything, and that any further criminal investigation of the 
President with respect to the matters under Mr. Starr's jurisdiction 
should be immediately concluded. While Senator Feinstein's censure 
resolution states that President Clinton remains subject to criminal 
indictment, that is in the resolution as a statement of fact and not as 
a statement of encouragement. Indictment after this impeachment trial 
would not be appropriate nor would it be in the public interest. 
Today's votes should bring this tragic episode to an end.
  Ms. SNOWE. Mr. Chief Justice, distinguished colleagues, let me begin 
by expressing my appreciation to the Chief Justice for his wisdom, for 
his infinite patience, and for conferring upon this body the judicial 
temperament envisioned by the Framers.
  I would also like to commend both the Senate majority and minority 
leaders for upholding the dignity of this body, by preserving 
judiciousness and fairness, and maintaining bipartisanship and 
civility.
  Colleagues, we have arrived at a juncture in our public lives that 
will largely define our place before the judgment of history, and I 
think it will be said that justice and the Constitution were well 
served.
  Indeed, the consequences of our decision are manifest in the words of 
Alexander Hamilton, who wrote of ``the awful discretion which a court 
of impeachment must necessarily have, to doom to honor or to infamy the 
most confidential and the most distinguished characters of the 
community.''
  Those words should weigh heavily upon us. But while the gravity of 
our task is humbling, the genius of our Constitution is ennobling; for 
we deliberate not under the imposing shadow cast by the exceptional men 
who framed this Nation, but in the illuminating light of their wisdom.
  Impeachment was designed by the Framers to be a circuitbreaker to 
protect the Republic, when ``checks and balances'' would not contain 
the darker vagaries of human nature. Impeachment empowers the Senate--
under the most extraordinary of circumstances--to step outside its 
legislative role, reach into the executive branch, and remove a 
popularly elected President.
  Impeachment was not, however, devised as an adjunct or independent 
arm of prosecution. It is not for the U.S. Senate to find solely 
whether the President committed statutory violations.
  Rather, we have a larger question--whether there is evidence that 
persuades us, in my view beyond a reasonable doubt, that the 
President's offenses constitute high crimes and misdemeanors that 
require his removal.
  Here is the precise point of our challenge--to give particular 
meaning to the elusive phrase, ``high crimes and misdemeanors.'' This 
task is critical, because impeachment is not so much a definition, as 
it is a judgment in a particular case--a judgment based not upon an 
exact or universal moral standard--but upon a contemporary and 
historical assessment of interest and need.
  ``High crimes and misdemeanors'' speak to offenses that go to the 
heart of matters of governance, social authority, and institutional 
power--offenses that, in Hamilton's words, ``relate chiefly to injuries 
done immediately to the society itself.''
  And these crimes must be of such magnitude that the American people 
need protection, not by the traditional means of civil or criminal 
law--but by the extraordinary act of removing their duly elected 
President.
  For removal is not intended simply to be a remedy; it is intended to 
be the remedy. The only remedy by which the people--whose core 
interests are meaningfully threatened by the President's conduct--can 
be effectively protected.
  This, to me, is what President Woodrow Wilson meant when he referred 
to ``nothing short of the grossest offenses against the plain law of 
the land.'' This, to me, is what Framer George Mason meant when he 
emphasized ``great and dangerous offenses.''
  So in determining whether this President has committed a ``great and 
dangerous offense'' requiring removal, we must first weigh all of the 
credible evidence to identify which acts were actually committed. Then, 
we must assess the gravity or degree of the misconduct. This process 
requires that we review the acts from their origin, and the 
circumstances in their totality.

[[Page 2476]]

  The allegations in article I do not paint a pretty picture. Indeed, 
we are all struggling with having to reconcile the President's lowly 
conduct with the Constitution's high standards. And we should all be 
concerned with the minimal threshold that he has set, and the poor 
example he has created for leadership in this country.
  The President himself admits he gave evasive and incomplete 
testimony. He admits he worked hard to evade the truth. He admits he 
misled advisers, Congress, and the Nation. And he looked all of America 
in the eye--wagging his finger in mock moral indignation when he did 
it.
  The fact is, the truth is not our servant. The truth does not exist 
to be summoned only when expedient. And I find his attempts to contort 
the truth profoundly disturbing. A President should inspire our most 
noble aspirations. Unfortunately, he has fueled our darkest cynicisms.
  And I resent the ordeal he has put this country through--and we 
should make no mistake about it--whatever else may be said, we are here 
today because of the President's actions. I resent the shadow he has 
cast on what should be--and I feel still is--an honorable profession; 
public service. And I think all of us who take our oaths to heart 
should resent it.
  Finally, as a woman who has fought long and hard for sexual 
harassment laws, I resent that the President has undermined our 
progress. No matter how consensual this relationship was, it involved a 
man in a position of tremendous power, with authority over a 21-year-
old female subordinate, in the workplace--and not just any workplace. 
He has shaken the principles of these laws to their core and it saddens 
me deeply.
  But as I work my way through my distaste, my dismay, and my 
disappointment, I return to the discipline that the Constitution 
imposes upon us as triers of fact. My job here is to review the 
evidence, and to measure that evidence against my standard of proof, 
and the constitutional standard of high crimes and misdemeanors.
  So let's look at the evidence. Article I does not go to perjury about 
the underlying relationship--that charge was dismissed by the House. 
Instead, the article before us alleges perjury based on statements 
about statements about conduct. Unfortunately, what this comes down to 
is a case of ``perjury once removed''--an inherently tenuous charge.
  As triers of fact, we are asked under article I not to find whether 
the President lied, but whether he committed the specifically defined 
act of perjury. Here, the law is clear that there must be proof that an 
untruth was told; that it was told willfully; and that it was told 
about a subject matter material to the case. These are the hard rules 
of the statute.
  In this instance, article I alleges perjury in statements the 
President made explaining the nature and details of the relationship. 
Significantly, the underlying subject matter of most of these 
statements was ruled irrelevant and inadmissable in the underlying 
civil case that was itself dismissed and settled. To me, these facts 
undermine the materiality of these statements.
  Article I also alleges perjury in the President's statements 
explaining his concealment of that relationship. Here, I find 
insufficient evidence of the requisite untruth and the requisite 
intent. Given, again, that we are talking here about ``perjury once 
removed,'' I cannot conclude that the President is guilty on article I.
  As I look at article II, I have similar concerns and conflicts. Are 
there any among us who can look at the disturbing pattern that has been 
laid out for us and not be deeply troubled?
  Just look at the allegations. The President may have influenced the 
filing of an affidavit. The President may have initiated the 
concealment of potential evidence. And the President may have 
accelerated a job search, in hopes of influencing a witness.
  But for all of this, there is only circumstantial evidence. Despite a 
64,000 page record and countless hours of argument and testimony, there 
is no direct evidence supporting any of these allegations.
  To the contrary, where there is direct evidence, the testimony is 
against the allegations. Indeed, not one witness with firsthand 
knowledge has come forward since the beginning of this matter to 
corroborate the charges. So, while I can draw inferences from the 
evidence, I cannot draw conclusions beyond a reasonable doubt.
  The Framers clearly prescribed caution when measuring high crimes, 
and such caution is all the more important when a case rests on purely 
circumstantial evidence. Mindful of this caution, I still find that one 
allegation stands out from the rest; the President's attempt to 
influence the potential testimony of his personal assistant.
  Let's look at the facts. In the President's civil deposition, the 
President suggested, at least three times, that the attorneys should 
ask questions of his personal assistant. At the end of the deposition, 
the judge reminded him of the confidentiality order not to discuss the 
testimony with others.
  Within 2\1/2\ hours, the President called his personal assistant to 
arrange a rare Sunday meeting. At that meeting, the President disclosed 
to her the contents of his deposition. In a manner that all but reveals 
the President's motives, he included in his discussion with her false 
statements about the circumstances of his relationship. Indeed, she 
would later testify that she believed the President sought her 
agreement with those statements he was posing.
  Consider this critical exchange in the testimony of the President's 
assistant:
  She was asked, ``Would it be fair to say then--based on the way he 
stated it and the demeanor he was using at the time he stated it to 
you--that he wished you to agree to that statement?'' The President's 
assistant nodded. She was then asked, ``And you're nodding your head 
yes, is that correct?'' And she answered, ``That's correct.''
  And he again violated the gag order when he revisited these 
statements with her several days later.
  As an experienced lawyer, the President knew that, by the force of 
his own testimony, he made his assistant a potential witness.
  As a former State attorney general, the President knew he was 
violating the confidentiality order when he spoke with her.
  As a defendant who repeatedly named his assistant, the President knew 
that his assistant would be subpoenaed.
  And she was subpoenaed just 3 days later. But even if she hadn't, the 
President did not need absolute or direct knowledge that his assistant 
would testify. Under the law of obstruction, which, unlike perjury, 
does not expressly require materiality, he only had to know that she 
could offer relevant facts.
  Make no mistake about it, I find the President's behavior deplorable 
and indefensible.
  If I were a supporter, I would abandon him. If I were a newspaper 
editor, I would denounce him. If I were an historian, I would condemn 
him. If I were a criminal prosecutor, I would charge him. If I were a 
grand juror, I would indict him. And if I were a juror in a standard 
criminal case, I would convict him of attempting to unlawfully 
influence a potential witness under title 18 of the United States Code.
  However, I stand here today as a U.S. Senator, in an impeachment 
trial, with but one decision--does the President's misconduct, even if 
deplorable, represent such an egregious and immediate threat to the 
very structure of our Government that the Constitution requires his 
removal?
  To answer this broad question, we need to ask several finer 
questions.
  Do the people believe that their liberties are so threatened that he 
should not serve his remaining 23 months? Is the President's violation 
on par with treason and bribery? What are the inescapable and 
unprecedented effects of removing a duly elected President? And can the 
President's wrongdoing be more effectively remedied by criminal 
prosecution, in a standard court of law, after he leaves office?
  These are the questions which drive our consideration of the 
``gravity'' and ``degree'' of the President's conduct. To

[[Page 2477]]

this end, I return to the words of another Maine Senator, William Pitt 
Fessenden, who during the Andrew Johnson trial said that removal must 
``be exercised with extreme caution'' and in ``extreme cases.'' It 
must, he said, ``address itself to the country and the civilized world 
as a measure justly called for by the gravity of the crime . . ''
  In this case, I understand how reasonable minds could differ, for I 
have struggled long and hard with my own decision.
  But the Constitution tempers our passion and measures our judgment. 
And the Constitution requires each of us to determine not just whether 
the President violated a statute. For had the Framers intended the 
offenses charged in this case to require removal in any and all 
circumstances, they would have specifically included them in the 
impeachment provisions of the Constitution.
  Because they did not, we are compelled to ask ourselves whether the 
nature and circumstances of his conduct are such that we have no choice 
but to inflict upon him what one of the House managers called ``the 
political equivalent of the death penalty.''
  If I could conclude that this President's conduct is of that nature, 
I would vote to remove him. Because if there is one thing I've learned 
throughout my 25 years in elective office, it is that the really tough 
decisions leave us with but one choice--doing what we know to be right 
and true.
  In this instance, among the seven allegations charged in article II, 
I have only been persuaded beyond a reasonable doubt that the President 
committed one of them. After due consideration of all the factual 
circumstances relating to this one finding, and the constitutional 
dictates and implications of this matter as a whole, I am persuaded 
that the President's wrongdoing can and should be effectively addressed 
by the additional remedy expressly provided by the Framers in the 
Constitution--namely, trial before a standard criminal court. And I am 
further persuaded that future Presidents, and future generations can be 
effectively deterred from such wrongdoing by this impeachment and a 
potential prosecution.
  The President's behavior has damaged the Office of the Presidency, 
the Nation, and everyone involved in this matter. There are only two 
potential victims left--the Senate and the Constitution--and I am 
firmly resolved to allow neither to join the ranks of the aggrieved.
  From the day I swore my oath of impartiality, I determined that the 
only way I could approach this case was to ask myself one question, 
``if I were the deciding vote in this case, could I remove this 
President under these circumstances?'' The answer, I have concluded, is 
``no''--and therefore, I will vote against both articles of 
impeachment.
  Mr. Chief Justice, I came to this process with an open notebook and 
an open mind, determined to honor my oath to do impartial justice and 
serve the best interests of the Presidency, the American people, and 
the Nation. I stand confident that in doing so, my manner has been 
impartial, and my judgment has been measured. Therefore, in my mind and 
in my heart, I believe to a moral certainty that my verdict is just.
  As men and women of honor, that is the highest expectation to which 
we can aspire. For we are writing history with indelible ink, but 
imperfect pens.
  In the end, when future generations dust off the record of what we 
have done here, may they say we validated the Framers' faith in the 
Senate. May they say we reached within ourselves to discover our most 
noble intentions. And may they say we achieved a conclusion worthy not 
just of our time, but of all time.
  Mr. KOHL. Mr. Chief Justice, throughout this process my colleagues 
from both sides of the aisle have conducted themselves with decency and 
dignity, exactly the qualities President Clinton's conduct lacked. But 
we risk opening the floodgates to more party-line impeachments if we 
oust a President from office for behavior that--while truly 
deplorable--isn't truly removable. Lowering the standard would do as 
great a disservice to the Constitution as the President's behavior has 
done to the Oval Office. So I am voting to acquit on both articles.
  I state these conclusions with a certainty I do not feel. We have 
heard many say these votes are the most difficult they will ever cast, 
and I agree. This case is made up of many small questions, matters of 
opinion and fact: Did the President lie? Did he commit perjury? Did he 
obstruct justice? Did he weaken the judicial system? Did he undermine 
the Constitution? Are these ``high'' crimes? Is this what the Founders 
envisioned when they talked about removal of a President?
  Most of us have answers for each of these questions. Most of us will 
lay them out in well-worded, well-argued statements. But the sum of the 
answers is not the sum of this case. The sum of our opinions, our 
findings of fact, and our legal briefs cannot sum up the deep disquiet 
I feel about the failings, lies, and weakness displayed by the 
President. Under the cold body of evidence before us runs the bad blood 
of bad character, and that deeply disturbs me.
  The evidence does not prove high crimes, but it does prove low 
character in our highest office--and that matters, it is relevant, it 
is material. This nation is not defined merely by demographics, 
boundaries, geological features, and government regulations; it is also 
about families and individuals who struggle to be larger, braver, and 
stronger than their circumstances. It is a nation that has a history of 
putting lives, faith, and hope in causes bigger than any one person: 
justice, democracy, freedom. Similarly, the office of the Presidency is 
not just a set of protocols, formalities, and policies. It is the human 
face we put on our country, and that face ought to be as honest, just, 
strong and brave as we all aspire to be--and as our history demands 
that we be.
  That's why character matters. I cannot find a way to fit my concern 
for that spirit into these very formal, legal proceedings, but I also 
cannot, in good conscience, let go of my deep concern for the harm and 
the loss this President has caused. I will not vote for either article 
of impeachment, but I also will not let go of my firm belief that this 
President has done real damage to the Office of the Presidency. And I 
will not let go of a commitment to do everything I can to restore and 
protect the idea that good character is essential in those who ask to 
serve and represent this country.
  Let me explain in more detail why I am voting against both articles. 
First, removing a President is a drastic measure, called for in only 
the most extraordinary circumstances. And our Founding Fathers clearly 
wanted it to be used sparingly: that's why they limited impeachment to 
only ``high crimes and misdemeanors'' involving abuse of power, 
incapacity to hold office, or a serious threat to our Constitution or 
system of government.
  But the President's conduct, however reprehensible, related to purely 
personal matters. He lied to the American people. He lied to his 
family, his friends and his staff. He lied under oath and evidence 
suggests that he may have obstructed justice. Simply put, his conduct 
was disgraceful and, possibly, illegal.
  However, his actions did not relate to abuse of power. They had 
nothing to do with his official acts or his capacity to hold office. 
They did not threaten our Constitution or system of government. Though 
serious offenses to our American values and decency, they do not rise 
to the level of constitutional ``high" crimes.
  Some of my colleagues have a different view, and I respect their 
position. But even the House prosecutors respect mine. In response to 
one of my questions, House Manager Graham acknowledged that 
``reasonable people can disagree'' about whether the President should 
be removed. In fact, he went on to say:
  ``[I]f I was sitting where you're at, I would probably get down on my 
knees before I made that decision, because the impact on society is 
going to be real either way. And if you find the President guilty in 
your mind from the

[[Page 2478]]

facts, that's he a perjurer and he obstructed justice, you've got to 
somehow reconcile continued service in light of that event. And I think 
it's important for this body not to have a disposition plan that 
doesn't take in consideration the good of this nation. . . . [Y]ou've 
got to consider what's best for this nation.''
  Representative Graham deserves credit for putting candor above 
partisanship, and inviting us to decide ``what's best for this 
nation.'' To do that, it makes sense to consider the views of the 
American people. Most of them know what this case is about and most of 
them oppose this impeachment. Nothing we've heard clearly justifies 
rejecting the overwhelming weight of their opinion and removing a 
twice-elected President.
  Indeed, if ``reasonable people can disagree,'' as the House 
prosecutors concede, have we really met the high threshold established 
for removal?
  To ask that question is to answer it.
  It is true, of course, that we have removed judges for lying under 
oath; for example, ten years ago the Senate removed Judge Nixon on that 
basis. But impeaching the President, our highest elected official, is 
far different. Judge Nixon was appointed. He held office during ``good 
Behaviour.'' At the time of his Senate trial, he was already convicted 
and sitting in jail. He lied about bribery, not sex. And most 
importantly, the only way a judge can be removed is by impeachment. A 
President, on the other hand, can be removed every four years through 
an election, and is automatically removed after eight years by the 22nd 
Amendment.
  Second, in addition to the constitutional problems, the prosecution 
has not proved its allegations by clear and convincing evidence. This 
is especially true on the ``obstruction of justice'' charge, which is 
by far the more serious allegation. The House Managers argue that more 
witnesses would have made a difference in bolstering their case, and 
they may be right. But why then did the House choose not to call 
witnesses in its own proceedings, even though it had called ``fact'' 
witnesses in nearly every other impeachment?
  Third, as many of us told the House in the Judge Nixon impeachment 
trial, lumping together a series of charges in each article--at least 
four perjury charges and seven obstruction of justice charges here--
isn't fair or responsible. Alarmingly, the President could be found 
guilty without a two-thirds majority believing any single charge. For 
example, in theory, even if each obstruction charge were rejected by a 
90 to 10 margin, the President could be convicted--because ten 
different Senators convicting on each of seven separate charges adds up 
to 70--more than a two-thirds majority.
  Mr. Chief Justice, this kind of ``one from column A and two from 
column B'' approach may work for a Chinese restaurant, but not for 
removing a President--or a judge. And this lack of specificity 
shortchanges the American people, who may never understand which 
charges were believed and which ones weren't.
  Still, President Clinton is not ``above the law.'' His conduct should 
not be excused, nor will it. The President can be criminally 
prosecuted, especially once he leaves office. In other words, his acts 
may not be ``removable'' wrongs, but they could be ``convictable'' 
crimes. Moreover, the House vote of impeachment--and the President's 
misconduct with Monica Lewinsky--will forever scar this President's 
legacy. Finally, the Senate can and should censure the President, and 
we ought make our condemnation of his conduct as strong as possible.
  In sum, Mr. Chief Justice, President Clinton's conduct was wrong, 
reckless and indefensible. Under the Constitution it does not justify 
removal. But for those who love this country, it demands outrage and 
disappointment. It demands a commitment from this President and future 
Presidents, this Congress and future Congresses--not now, and not ever 
again, to let personal weakness and personal failing stain or shake our 
democracy. Thank you.


                                 facts

  Mr. THOMPSON. In 1994, Paula Corbin Jones sued President Clinton for 
sexual harassment which she alleged he committed against her in 1991, 
when he was Governor of Arkansas. The Supreme Court of the United 
States permitted the lawsuit to proceed in 1997.
  Monica Lewinsky began work as a White House intern on July 10, 1995. 
At the time, she was twenty-one years old. She later worked in the 
Office of Legislative Affairs at the White House. In 1996, she left the 
White House for a job at the Department of Defense.
  The first day that Ms. Lewinsky spoke with President Clinton, 
November 15, 1995, she and the President engaged in sexual relations. 
Their sexual relationship lasted until 1997. The two also engaged in 
telephone sex at least seventeen times, and they exchanged numerous 
gifts. The two agreed to keep their relationship secret through the use 
of cover stories. Ms. Lewinsky, if discovered in the Oval Office, was 
to say that she was delivering papers, although her job duties never 
included delivering papers. Once she left the White House, her visits 
to the President were disguised as visits to Presidential secretary 
Betty Currie.
  The President told Ms. Lewinsky that she could return to the White 
House after the 1996 election had concluded. Although Ms. Lewinsky 
tried numerous times to regain employment at the White House, she was 
never able to do so. After being informed by a friend, Linda Tripp, 
that she would never be permitted to return to the White House, Ms. 
Lewinsky decided to seek employment in New York, initially receiving 
and rejecting a job offer with the United States Ambassador to the 
United Nations. She then decided to seek employment in New York in the 
private sector. On November 5, 1997, she met with Vernon Jordan, a 
prominent Washington lawyer and friend of President Clinton, to seek 
his assistance in securing such a position. This meeting was arranged 
by Ms. Currie. Mr. Jordan took no action to help her in November, and 
does not remember meeting her at this time.
  On December 5, 1997, attorneys for Ms. Jones notified the President's 
attorneys of their list of witnesses. That list included Ms. Lewinsky. 
Although she was unaware at the time that her name was on the Jones 
litigation witness list, Lewinsky coincidentally decided to terminate 
her relationship with the President the following day, but was unable 
to see him at the White House. President Clinton and Ms. Lewinsky 
initially exchanged angry words that day over the telephone, but later 
that day, she came to the White House at his invitation. During this 
meeting, Ms. Lewinsky told the President that Mr. Jordan had not 
appeared to have done anything to help her in her job search. In a 
conversation Ms. Lewinsky described as ``sweet'' and ``very 
affectionate,'' he told her that he would speak to Mr. Jordan about her 
job situation. The President did not at that time inform Ms. Lewinsky 
that her name was on the witness list.
  Ms. Currie again called Mr. Jordan, and on December 8, 1997, Ms. 
Lewinsky called to set another appointment with Mr. Jordan for December 
11. Although Ms. Lewinsky provided Mr. Jordan with a list of 
corporations in which she was interested in obtaining employment, Mr. 
Jordan determined based on his own contacts which companies he would 
pursue on Ms. Lewinsky's behalf. Following his meeting with Ms. 
Lewinsky, acting by his own admission at the behest of the President, 
Jordan called three corporate executives in New York. He also called 
the President to report on his efforts on behalf of Ms. Lewinsky.
  December 11, 1997 was also the date on which Judge Susan Webber 
Wright, the presiding judge in the Jones litigation, issued an order 
permitting Jones' attorneys to pursue discovery concerning the names of 
any state or federal employees with whom the President had had sexual 
relations, proposed sexual relations, or sought to have sexual 
relations.
  On December 17, 1997, between 2:00 and 2:30 a.m., the President 
telephoned Ms. Lewinsky. He informed her that Ms. Currie's brother had 
been killed, as well as that her name was on the Jones witness list. 
The President indicated that if Ms. Lewinsky were subpoenaed,

[[Page 2479]]

she should let Ms. Currie know. He also told her that she might be able 
to sign an affidavit in that event to avoid testifying. In addition, he 
suggested that she could say that she was coming to see Betty or was 
bringing him papers. Ms. Lewinsky says that she understood implicitly 
that she was to continue to deny their relationship.
  Ms. Lewinsky was subpoenaed to testify in the Jones litigation on 
December 19, 1997. The subpoena also required Ms. Lewinsky to produce 
all gifts that she had received from the President, and enumerated one 
specific gift that the President had given Ms. Lewinsky, a hatpin. 
Because Ms. Currie was in mourning, Lewinsky called Jordan, who invited 
her to his office. She was in a highly emotional state, and that fact, 
combined with her statements in the conversation that demonstrated her 
personal fascination with the President, prompted Jordan to ask whether 
she, a person for whom he was providing job assistance, had had sexual 
relations with the President. He says she denied such relations. Jordan 
took a telephone call from the President during that meeting, and made 
plans to see him that night. Jordan later called Frank Carter, a 
Washington lawyer, to arrange a meeting at which he would refer Ms. 
Lewinsky to Mr. Carter as a client.
  Notwithstanding Ms. Lewinsky's denial of sexual relations with the 
President, Jordan asked President Clinton that same evening the same 
question. The President also denied having had sexual relations with 
Ms. Lewinsky. Jordan also conveyed a number of Lewinsky's statements to 
the President, and informed Clinton that Lewinsky had received a 
subpoena to testify in the Jones case. Following a discussion in which 
Lewinsky informed Jordan of the nature of the telephone calls she had 
had with the President, Jordan drove Lewinsky to a meeting at Mr. 
Carter's office on December 22.
  The President met with Ms. Lewinsky on December 28, 1997, at which 
time they again exchanged gifts. They discussed the subpoena, and she 
expressed concern, which the President shared, about the specific 
enumeration of the hatpin, since that suggested that someone knew 
details of their relationship. Ms. Lewinsky then suggested taking the 
gifts out of her apartment or giving them to Ms. Currie. The President 
responded, ``I don't know'' or ``Let me think about that.'' Later that 
same day, Ms. Lewinsky's consistent recollection is that Ms. Currie 
called her and stated, ``I understand you have something to give me'' 
or ``the President said you have something to give me.'' Ms. Currie 
later drove to Ms. Lewinsky's apartment, picked up a box containing 
gifts the President had given Ms. Lewinsky, and hid that box under her 
bed without asking any questions.
  On December 31, 1997, Jordan and Lewinsky had breakfast. Lewinsky, 
fearing that her relationship with the President would become known and 
wanting to ensure that she not appear responsible for its becoming 
known, told Jordan that she possessed notes she had addressed to the 
President that suggested the nature of their relationship. According to 
Lewinsky, Jordan told her to dispose of those notes. Jordan initially 
denied that he ever had breakfast with Lewinsky, but later recalled 
having done so when shown the receipt. But he denied ever telling 
Lewinsky to destroy any notes.
  Ms. Lewinsky pursued filing an affidavit to obviate the need for her 
to testify in the Jones case. On January 6, 1998, she communicated to 
Mr. Jordan concerns she had about the affidavit that Mr. Carter had 
drafted for her. Jordan telephoned Carter with her suggestions. 
Although Mr. Jordan denies the allegations, Ms. Lewinsky contends that 
she informed Jordan about the details of Carter's proposed affidavit, 
and that she and Jordan made changes to it prior to her signing it. 
Lewinsky also spoke with the President about Carter's questions to her 
about how she obtained her Pentagon job. The President told her that 
she ``could always say that the people in Legislative Affairs got it 
for you or helped you get it.''
  On January 7, 1998, Lewinsky signed an affidavit denying sexual 
relations with the President. She later testified that the affidavit 
was false. She showed Jordan the affidavit, and Jordan spoke with the 
President after conferring with Ms. Lewinsky about the changes. 
Lewinsky testified that she believed that the President would be 
satisfied with any affidavit that Jordan approved.
  The following day, Lewinsky was interviewed at a company that Jordan 
had called on her behalf. Believing that the interview had proceeded 
poorly, she called Jordan, who then called the head of the holding 
company of the firm with which she had interviewed. Jordan asked that a 
second interview be granted Lewinsky. She interviewed again the next 
day, and was made an informal job offer. Jordan testified that his 
``magic'' was responsible for that offer. Lewinsky informed Jordan of 
her success, and he telephoned Ms. Currie to notify her: ``Mission 
accomplished.'' He later informed the President.
  The President was scheduled to be deposed in the Jones litigation on 
January 17, 1998. The President knew that one of the issues was his 
relationship with Ms. Lewinsky. For the affidavit to successfully 
deflect questions to the President concerning that relationship, the 
affidavit would have had to have been filed in time for the court to 
consider it and for the President's lawyers to see it before the 
deposition. The President's lawyers called Ms. Lewinsky's attorney once 
on January 14, twice on January 15, and once on January 16. On the 
15th, Lewinsky's lawyer, Mr. Carter, sent President Clinton's counsel a 
copy of the affidavit. Mr. Carter also called the court twice on that 
day to ensure that the affidavit could be filed on January 17.
  During his deposition, President Clinton made numerous false 
statements while under oath. These included the sexual nature of his 
relationship with Ms. Lewinsky, and whether they had exchanged gifts. 
He relied on the same cover stories as he had discussed with Ms. 
Lewinsky. The President's lawyer used Ms. Lewinsky's affidavit in an 
attempt to deflect questions about the President's relationship with 
her, specifically stating that the President had already seen that 
affidavit. As the President appeared to be paying close attention, he 
did not contradict his attorney when he represented to the court that 
``there is absolutely no sex of any kind in any manner, shape or form 
with President Clinton. . . .'' And he testified, when asked by his 
attorney, that Ms. Lewinsky's affidavit was absolutely true. However, 
the judge insisted that President Clinton answer additional questions 
about his relationship with Ms. Lewinsky. These questions were asked 
based on the judge's peculiar ruling that used only one-third of a 
standard courtroom definition of ``sexual relations'' and the 
plaintiff's attorneys' insistence in using that truncated definition as 
a reference for questions they posed to the President about the nature 
of his relationship with Ms. Lewinsky, rather than asking specific 
questions concerning what had occurred. In six instances, the President 
answered questions by referencing Betty Currie, such as in using the 
cover story that Ms. Lewinsky had come to the White House to visit Ms. 
Currie, and on one occasion, expressly stated that his questioners 
should ``ask Betty.'' Indeed, Ms. Jones' attorneys later placed Ms. 
Currie's name on their witness list.
  After the deposition, at 7 p.m. that evening, the President called 
his secretary, Betty Currie, at home. She later testified that she 
could not remember the President ever calling her at home so late on a 
Saturday. In that conversation, he asked Ms. Currie to see him in the 
Oval Office the following day, a Sunday. This was also an unusual 
occurrence. While in the Oval Office, and contrary to the admonition 
from the Jones case judge not to discuss his deposition testimony with 
anyone, the President made the following statements to Ms. Currie: (1) 
``I was never really alone with Monica, right?'' (2) ``You were always 
there when Monica was there, right?'' (3) ``Monica came on to me, and I 
never touched her, right?'' (4) ``You could see and hear everything, 
right?'' (5) ``She

[[Page 2480]]

wanted to have sex with me, and I could not do that.''
  Once the President met with Ms. Currie on January 18, Ms. Currie 
began to seek Ms. Lewinsky. She paged Ms. Lewinsky four times that 
night. Later than 11:00 p.m. that evening, the President called Ms. 
Currie at home to determine if she had yet reached Ms. Lewinsky. She 
had not. In a period of less than two hours on the morning of the 19th, 
Ms. Currie paged Ms. Lewinsky an additional eight times. The President 
then called Mr. Jordan, who called the White House three times, paged 
Ms. Lewinsky, and called Mr. Carter, all within twenty-four minutes of 
receiving the President's call. Mr. Jordan called Mr. Carter again that 
afternoon and learned that Mr. Carter had been replaced as Ms. 
Lewinsky's attorney. Mr. Jordan then called the White House six times 
in the next twenty-four minutes trying to relay this information. Mr. 
Jordan called Mr. Carter again, and then called the White House again.
  On January 20, the White House learned that a story about the 
President's relationship with Ms. Lewinsky would appear in the next 
day's edition of The Washington Post. On January 21, the President told 
his chief of staff and two deputies that he did not have sexual 
relations with Ms. Lewinsky. He later told one of those deputies, John 
Podesta, that he had not had oral sex with Ms. Lewinsky.
  Later on January 21, the President told his aide, Sidney Blumenthal, 
that Lewinsky had made a sexual demand on him, and that he rebuffed 
her. The President told Blumenthal that Lewinsky had threatened him. 
President Clinton also indicated that Lewinsky said that she was known 
among her peers as the stalker, that she hated it, and that she would 
say that she had an affair with the President whether it was true or 
not, so that she would not be known as the stalker any more. He also 
told Blumenthal that he felt like a victim who could not get out the 
truth. Blumenthal later testified that he believes the President lied 
to him. The President testified that he was aware at the time that he 
made his statements that his aides might be summoned before the grand 
jury.
  The President also met with his political consultant, Dick Morris, on 
January 21. The President authorized that Morris conduct an overnight 
poll measuring potential public reaction to the affair. The poll 
concluded that the American people would forgive the President for 
adultery, but not for perjury or obstruction of justice. The President 
then indicated that ``we just have to win, then.'' The President's 
lawyers could not answer senators' questions why such a poll had been 
undertaken if the President had not committed any of these acts.
  Shortly after the President met with Mr. Blumenthal, press reports 
began to appear that, quoting White House sources, characterized Ms. 
Lewinsky as a stalker, and as an ``untrustworthy climber obsessed with 
the President.'' Although Mr. Blumenthal in his Senate deposition 
denied any knowledge of how White House sources were attributed to 
these stories, one journalist by the time of this writing has sworn to 
an affidavit stating that Mr. Blumenthal made such characterizations to 
him. A second similar affidavit has also been filed, corroborating the 
first one.
  Ultimately, Ms. Lewinsky was granted immunity from prosecution by the 
independent counsel. The independent counsel received from Ms. Lewinsky 
a dress that according to DNA testing was stained by the President's 
semen.
  On August 17, 1998, the President testified before the grand jury 
convened by the independent counsel. In a prepared statement, the 
President made a number of false statements. He stated that he engaged 
in inappropriate conduct with Ms. Lewinsky in 1996 and 1997, whereas 
the conduct actually began in 1995, when she was an intern. Based on 
Ms. Lewinsky's testimony and the dress, he appears to have testified 
untruthfully about whether he engaged in sexual relations even as that 
term had been defined at his deposition in the Jones case. And he also 
testified that he was not paying attention to his attorney when the 
attorney described the affidavit; that his relationship with Ms. 
Lewinsky had originally begun as a ``friendship;'' that he made the 
statements to Ms. Currie after his deposition in an effort to refresh 
his recollection; and that he told his aides statements that were true 
about his relationship with Ms. Lewinsky. Nonetheless, when testifying 
before the grand jury, the President no longer made a number of the 
assertions that he had made in the deposition, including denying that 
he was ever alone with Ms. Lewinsky. With respect to his deposition 
testimony, the President told the grand jury that his ``goal in this 
deposition was to be truthful, but not particularly helpful . . . I was 
determined to walk through the mine field of this deposition without 
violating the law, and I believe I did.''
  The Independent Counsel filed a report with the House of 
Representatives that referred allegations of possible impeachable 
offenses. The House of Representatives voted to pass two articles of 
impeachment against President Clinton, for perjury before the grand 
jury and for obstruction of justice. Two other articles of impeachment, 
which had been based on perjury in his deposition in the Jones case and 
misstatements to the House in response to questions propounded to the 
President by the House of Representatives, failed to pass the House.


                    ``HIGH CRIMES AND MISDEMEANORS''

  The most fundamental question, against which the President's actions 
must be measured, is ``what constitutes an impeachable offense?'' The 
Constitution makes impeachable ``treason, bribery and other high crimes 
or misdemeanors.'' The Constitution also says that upon conviction in 
the Senate the President ``shall be removed.'' Therefore, the question 
becomes, in effect, ``what actions constitute grounds for removal?''
  It should be noted at the outset that what we have in effect is a 
``mandatory sentence'' wherein if there is a finding of guilt then one 
particular sentence must be imposed--in this case removal from office. 
However, unlike judges in a criminal case, the Senate may take into 
consideration the ``punishment'' in determining guilt. Some have 
contended that the President may be guilty of high crimes and 
misdemeanors, but his actions may not be sufficient for removal. I 
believe the better analysis is that the Senate may conclude that the 
President's conduct is not sufficient for removal and that that 
determination, by definition, means that the President is not guilty of 
high crimes and misdemeanors. I believe that this analysis is important 
in understanding the scope of our discretion and helps us get away from 
the notion that there is an objective standard for high crimes and 
misdemeanors if we could only find it. Historical analysis covering 
over six hundred years reveals that there is no ``secret list'' of high 
crimes and misdemeanors, but rather our forefathers perpetuated a 
framework that allows for a certain amount of subjectivity which may 
encompass changing times and differing circumstances.
  Such a conclusion emerges from an examination of English law, 
original state Constitutions, our federal Constitutional Convention, 
the ratification debates, American impeachment precedents and scholarly 
commentary.
  The phrase ``high crimes and misdemeanors'' can be traced back to the 
thirteen hundreds in England. It was clear from the outset that the 
phrase covered serious misconduct in office whether or not the conduct 
constituted a crime. Commentators say that the English impeachment 
tradition covered political crimes against the state and injuries to 
the state. Beyond that, it is difficult to glean covered conduct from 
the English tradition.
  Apparently there was only one discussion during the Constitutional 
Convention that dealt with the phrase high crimes and misdemeanors and 
that occurred on September 8, 1787. As reported out of Committee, 
impeachable offenses included only ``treason and bribery.'' Mason 
wanted to add ``maladministration,'' which was also contained in many 
state constitutions. Madison was under the impression that

[[Page 2481]]

such language would leave the President at the mercy of the Senate. 
Madison relented and we wound up with the phrase as we have it today. 
The founding fathers quite clearly rejected impeachment for 
Congressional disapproval of policy. Impeachable offenses were 
``political'' offenses and, as under English law, not necessarily 
criminal. Other guidance that can be derived from the Convention is the 
fact that the founders were acutely aware of their rejection of bills 
of attainder as existed in the English system and, therefore, they 
thought that impeachable offenses should be something that any 
reasonable man could anticipate. He should not be punished for some 
crime made up after the fact. Also, there was to be a requirement for 
``substantiality.'' This mechanism was not designed for trivial 
offenses.
  We cannot determine the precise intent of the framers because their 
deliberations were in secret and nothing was printed from their 
deliberations. They intended for the ratifiers at the state Conventions 
to be the more authoritative voice for interpretation of the provisions 
in the Constitution. It is fair to conclude that the attitude of the 
ratifiers was reflected to a certain extent in the Federalist papers. 
The most definitive comments concerning impeachment were by Hamilton in 
Federalist 65 wherein he stated:

       The subjects of [impeachment] are those offenses which 
     proceed from the misconduct of public men, or, in other 
     words, from the abuse or violation of some public trust. They 
     are of a nature which may be with peculiar propriety 
     denominated political, as they relate chiefly to injuries 
     done immediately to the society itself.

  The ratifiers at the North Carolina convention spoke in terms of 
serious injuries to the Federal government. James Iredell, later to 
become an Associate Justice on the Supreme Court, stated that 
impeachment was ``calculated to bring [great offenders] to punishment 
for crimes which it is not easy to describe but which everyone must be 
convinced as a high crime and misdemeanor against governments . . . the 
occasion for its exercise will arise from acts of great injury to the 
community.'' He gave as an example of an impeachable offense the giving 
of false information to the Senate. Impeachment was not for ``want of 
judgment'' but rather to hold him responsible for ``willfully abusing 
his trust.'' Iredell also called attention to the complexity if not 
impossibility of defining the scope of impeachable offenses with any 
more precision than the above. And the ratifiers at the Virginia 
Convention clearly agreed that a President could be impeached for non-
indictable offenses.
  There was continued discussion and debate after ratification 
concerning the impeachment process. James Madison contended that the 
wanton removal of meritorious officers would subject a President to 
impeachment and removal from office. Forty years later, Justice Story, 
in his Commentaries insisted that ``not every offence'' is a high crime 
and misdemeanor, that ``many offences, purely political . . . have been 
held to be within the reach of parliamentary impeachments, not one of 
which is in the slightest manner alluded to in our statute book,'' that 
``the only safe guide'' in determining ``high crimes and misdemeanors'' 
``must be the common law,'' and left open the possibility that actions 
a civil officer took that were unconnected to his office might be 
properly the subject of impeachment.
  Therefore, it seems that despite the framers' and ratifiers' 
incomplete discussion, our inability to put our hands on documentation 
reflecting some of their thoughts, and the fact that perhaps they 
simply did not think of some of the problems that might arise in the 
future, we see a certain framework develop--certain perimeters within 
which our decision should be made.
  The Senate's own precedents do not change this evaluation because 
they are not terribly instructive either. In impeachment cases, the 
Senate has convicted on seven occasions, acquitted on five, dismissed 
two cases on jurisdictional grounds and one case was withdrawn because 
of resignation. An acquittal serves very little value as precedent 
beyond the facts of the case since an acquittal can be based on any 
number of grounds (jurisdictional, failure to prove the factual 
allegations, offenses not rising to the level of impeachable conduct, 
etc.) and the motivation for the vote is not reflected when the verdict 
is rendered ``not guilty.'' There is little more help derived from 
convictions, in terms of precedential value. There has only been one 
impeachment trial for a President, that of Andrew Johnson, and that, of 
course, resulted in an acquittal. A large majority of the remainder of 
the cases have been those of federal judges.
  The question has arisen whether judicial impeachments are to be 
considered by the same standards as presidential impeachments. It seems 
to me that certainly the application of the standard of ``high crimes 
and misdemeanors'' for a president must differ from that of a judge. 
Removing the President removes the elected head of the nation. Removing 
a single judge does not carry the same implications for the country. 
And while a President should act according to the highest standards of 
probity, it is quite easy to imagine circumstances that would warrant 
judicial impeachment that would not justify presidential impeachment, 
such as making official decisions based purely on political 
considerations. It is also possible that certain crimes would be 
impeachable if a judge committed them, because of the specific nature 
of the judicial office in our system of government, but would not be 
impeachable for a President.
  It has been argued that the standard should be different for 
presidents than judges because the former serves for a fixed term and 
the latter serve ``during good behavior.'' I do not share that view. 
The standard itself is the same for each category: treason, bribery, 
and other high crimes and misdemeanors. But the difference in tenure is 
relevant in a way. Because impeachment is not punishment and is 
political, the Framers vested the process in the legislative branch. 
Prosecution for crimes was lodged in the judiciary. Thus, a President, 
who cannot be prosecuted while in office, can be impeached and removed 
from office before he faces criminal prosecution. While a judge can 
also be impeached and removed before being convicted of a crime, it is 
also the case that criminal punishment can be, and has been, imposed on 
sitting judges. But since courts were expressly not given the power to 
remove civil officers, federal judges who have been criminally 
convicted and have refused to resign have continued to draw their 
salary ``during good behavior,'' i.e., until they were impeached. That 
is the only significance with respect to impeachment of judges and of 
presidents based on their differing terms of service.
  Scholars have looked to the purposes to be served by the impeachment 
process as well as history in making their own analysis as to the 
meaning ``high crimes and misdemeanors.'' For Charles Black they would 
include offenses (1) which are extremely serious, (2) which in some way 
corrupt or subvert the political and governmental process, and (3) 
which are plainly wrong in themselves to a person of honor or to a good 
citizen regardless of words on the statute books.
  Also qualifying according to Professor Black would be ``serious 
offense against the nation or its governmental or political 
processes.'' Furthermore, he would include purely personal actions that 
would make a President unviable as a national leader. Murder, of 
course, would be the prime example here. He would also include a 
totally different category of offenses which seriously threaten the 
order of political society as to make dangerous the continuation in 
power of the President. Finally, he would include actions that would 
``undermine government and confidence in government'' such as serious 
tax fraud.
  Professor Michael J. Gerhardt on the issue of purely personal conduct 
of the President states: ``Even if such a crime were unrelated to the 
President's Constitutional duties, his criminal act considerably 
cheapens the Presidency, destroys his credibility with the other 
branches (and other nations, for that matter), and shows such lack of 
respect for human life and disdain for the law

[[Page 2482]]

(which he has sworn to enforce faithfully) that Congress could 
reasonably conclude that he had seriously breached his trust and no 
longer deserves to hold office.'' Again, murder was the easy example.
  However, he contends further that an official may be impeached for 
conduct in office that does not relate to his or her former 
responsibilities if an office holder violates his public trust and 
loses the confidence of the people. Then he must forfeit the privilege 
of holding at least his or her present office. ``In this context, 
conduct that may plainly be unrelated to the responsibilities of a 
particular office may still relate to an official's capacity to fulfill 
the functions of that office and to hold the people's trust.'' He gives 
the example of income tax fraud.
  Gerhardt points out that not all statutory crimes demonstrate 
unfitness for office, but that on the other hand, there are some 
indictable offenses for which certain high level government officials 
may be impeached. Among them are offenses which ``demonstrate serious 
lack of judgment or disdain for the law and the commission lowers 
respect for the office.'' In other words, there are certain statutory 
crimes, that, if committed by public officials, reflect, in Congress' 
estimation such lapses of judgment, breaches of the public trust and 
disregard for the public welfare, the law, and the integrity or 
reputation of the office held, that the occupant may be impeached.
  What I derive from this, is that there is no ``holy grail'' of 
impeachable offenses. The framers provided the Senate with a framework 
within which to operate and history provides us with a map, but not a 
destination. Our conclusions must depend upon the particular 
circumstances of the case, the nature of the act or acts involved, and 
their effects on society or integral parts of our political structure.
  Today we are faced with an unprecedented situation. The President 
engaged in inappropriate personal conduct. It had nothing to do with 
his official duties, but it did involve a federal employee under his 
supervision, government time and government facilities. In an attempt 
to conceal and cover up that activity, he lied, misled and helped 
conceal evidence both physical and testimonial in a court proceeding. 
In doing so he elicited the help of other government employees. 
Therefore, the subject matter was essentially private, but the forum, a 
United States court, became public. One side says that he ``only lied 
about sex,'' and it had nothing to do with his official duties, 
therefore, it ``clearly does not rise to the level of an impeachable 
offense.'' The other side says that any perjury and any obstruction of 
justice ``clearly does rise to the level of an impeachable offense.'' I 
do not think that either position is consistent with history or proper 
analysis.
  For example, I agree with Professor Black that not every imaginable 
act that might technically constitute obstruction of justice would 
necessarily be impeachable.
  On the other hand, opponents of conviction in the present case, have 
raised the bar for impeachment to unreasonable heights. Usually they 
concede that an impeachable offense does not have to be a crime, but 
often it is maintained that the abuse of power has to come from his 
public position such as Nixon's abuse of the CIA or FBI. Of course, 
this immediately runs headlong into the murder hypothetical and many 
other hypotheticals of serious, although totally personal, conduct as 
well.
  They then make the further argument that the violation has to be ``an 
offense against the state.'' While I agree that an offense against the 
state is one of the categories of offenses that impeachment was 
primarily designed to cover, offenses against the state's governmental 
and political processes, including the court system, as well as 
attempts to subvert them, are also impeachable. Besides, it would seem 
to me, that subversion or serious damage to our governmental 
institutions constitute offenses against the state.
  They also point out that one of the purposes of impeachment is to 
protect the nation from the offender President. I agree again that this 
may be one of the purposes of impeachment. However, it is not the only 
purpose, and protection of the public is not always a requirement. If 
an offense has been laid bare and totally exposed, and the President is 
completely incapable of continuing his conduct, this lack of imminent 
threat to the nation does not necessarily mean that he should not and 
cannot be impeached. President Nixon probably would not have been 
forced from office if that were the only criteria.
  Opponents of conviction also overlook the fact that we may look to 
the effects of the President's conduct. Actions, even private actions, 
that serve to undermine the government or the people's confidence in 
the government or the President, may also be impeachable. In other 
words, opponents of impeachment rightly point out some of the 
categories that are applicable in impeachment cases, but they set them 
forth as exclusive when, in fact, they are not.
  The impeachment bar has been raised even higher most recently by 
respected commentators in the media. The New York Times editorial page, 
for example, takes a position that the President's action must 
``threaten the welfare or stability of the state.'' On another 
occasion, they stated that the President's actions must ``show some 
fundamental harm to the security interest or stability of the state or 
some attempt to undermine the Constitution.'' The problem with this is 
that there is absolutely no authority to support such a contention. 
Such a theory relies exclusively upon the ``protect the nation'' theory 
of impeachment. The founders certainly did not mean that the President 
had to be on the verge of throwing the nation into chaos or endangering 
national security in order to be impeached.
  It is extremely important that we refrain from latching onto a 
definition of ``high crimes and misdemeanors'' simply because it leads 
us inexorably to a conclusion which we may desire. Clearly, a 
President's offense or offenses must be serious and/or have serious 
consequences. Also, while they do not have to be crimes, my own opinion 
is that in most cases they will be crimes. They must be crimes against 
the state, but we cannot adopt an unreasonable restriction of that 
term. The President does not have to order tanks to move on the J. 
Edgar Hoover building. Offenses against the state can include activity 
which will undermine our governmental institutions. How can we say that 
bribing a judge to effect an outcome in a law suit involving a 
President's purely personal conduct constitutes an impeachable offense, 
but say that insinuating perjury into that same law suit to effect the 
same outcome is clearly not impeachable? And while it is true that the 
founders meant to cover ``public'' behavior, I believe they also meant 
to cover behavior that has a negative effect on the public if it is of 
sufficient gravity. Furthermore, if the President's conduct poses a 
threat and danger to a country, that certainly is a legitimate (though 
not exclusive) consideration. If that same conduct serves to undermine 
the President's credibility and moral authority, that could also pose a 
danger to the country and is similarly a legitimate consideration. And, 
again his conduct does not necessarily have to deal with his office. In 
the Constitution, a named offense is bribery (treason, bribery or other 
high crimes and misdemeanors), and bribery itself does not necessarily 
have to do with the President's official capacity, if the President is 
making the bribe.
  I believe that the founders did not intend to make our job easy. They 
provided no list of offenses. They refused to spare us from the 
difficult analysis that we must now go through. We must take into 
consideration the offense or offenses, the capacity in which they were 
committed, the effect on our public institutions, the effect on our 
people and our people's attitude toward the Presidency and our other 
institutions, whether the President's conduct was one or more isolated 
events, or a pattern of conduct, the period of time over which the 
conduct was carried out and ultimately decide whether in view of all of 
these circumstances, it is in the best interest of the country to 
remove this President.

[[Page 2483]]

  The significance of a ``pattern of conduct'' is recognized by John R. 
Labovitz in his book Presidential Impeachment.  Labovitz concluded that 
focusing on whether the President has committed ``an impeachable 
offense'' is of limited usefulness, since few individual crimes warrant 
removal, such as a single act of treason or a single act of bribery. 
Even in the case of President Nixon, ``[i]t was necessary to combine 
distinct actions into a pattern or course of conduct to establish 
grounds for removal from office.'' As he also wrote:
       The concept of an impeachable offense guts an impeachment 
     case of the very factors--repetition, pattern, coherence--
     that tend to establish the requisite degree of seriousness 
     warranting the removal of a president from office. Just as a 
     recidivist deserves a more stringent sentence than a first 
     offender, so presumably a repeated offender is more likely to 
     deserve removal from an office of public trust, and 
     especially the highest trust in the land. . . . [I]t is 
     necessary to take a less divided view of the charges. Because 
     the remedy is not additive, the offenses must be considered 
     cumulatively in deciding whether or not it should be imposed. 
     The House must decide whether or not to prosecute an 
     impeachment on the basis of the charges taken as a whole. 
     And, unless the Senate is to take the determination of the 
     House without question, it too must judge the combined 
     seriousness of the wrongdoing that is proved.
  I believe that this statement is very relevant to the obstruction of 
justice charge, which I will discuss later.


                     ARTICLE I--GRAND JURY PERJURY

  Article I, after alleging generally that President Clinton violated 
his oath of office and failed to take care that the laws be faithfully 
executed by manipulating the judicial process for his personal gain, 
alleges that on August 17, 1998, following taking an oath to tell the 
truth, he

     willfully provided perjurious, false, and misleading 
     testimony to the grand jury concerning one or more of the 
     following: (1) the nature and details of his relationship 
     with a subordinate Government employee; (2) prior perjurious, 
     false, and misleading testimony that he gave in a Federal 
     civil rights action brought against him; (3) prior false and 
     misleading statements he allowed his attorney to make to a 
     Federal judge in that civil rights action and (4) his corrupt 
     efforts to influence the testimony of witnesses and to impede 
     the discovery of evidence in that civil rights action.
       In doing this, William Jefferson Clinton has undermined the 
     integrity of his office, has brought disrepute on the 
     Presidency, has betrayed his trust as President, and has 
     acted in a manner subversive of the rule of law and justice, 
     to the manifest injury of the people of the United States.
       Wherefore, William Jefferson Clinton, by such conduct, 
     warrants impeachment and trial, and removal from office and 
     disqualification to hold and enjoy any office of honor, 
     trust, or profit under the United States.

  Never has the Senate convicted on an article worded such as this. 
Several crimes or categories of crimes (the exact number cannot be 
determined from reading the article) are charged in this one article. 
The perjurious statements are not described, nor are their dates. In 
large part, this article charges that the President committed perjury 
because he denied prior perjury.
  At the outset, it is clear that a count such as this in an indictment 
would not survive court challenge. However, it is equally clear that 
the Senate is not bound to follow normal legal rules. Impeachment, 
Hamilton wrote in Federalist No. 65, ``can never be tied down by such 
strict rules, either in the delineation of the offense by the 
prosecutors or in the construction of it by the judges, as in common 
cases serve to limit discretion of courts in favor of personal 
security.'' Nevertheless, we should examine the basis for such rules 
and determine the extent, if any, we should apply them to our 
deliberations.
  The reason for rules against charging several offenses in one article 
is clear. A group of senators as few as seventeen could conclude that 
the President was guilty of one offense in the article, and a group of 
other senators could conclude that the President was guilty of another 
offense in the article and so on. This could result in the President 
being found guilty on one article without two-thirds of the senators 
ever agreeing upon a single offense that the President committed.
  Compounding this problem, the individual items alleged in the article 
are vague because they could reach different instances of objectionable 
conduct within a general heading. The problem with failing to 
specifically identify the offenses charged is that it does not give the 
person charged fair notice. Although I believe that the president had 
actual notice for the most part, what is actually being charged in this 
article has not been without dispute.
  The articles pending against President Clinton are unique. Never has 
the Senate considered articles that are simultaneously omnibus, vague, 
and based upon ``one or more'' of the charges being proved.
  Again, we have substantial leeway in considering these matters, but 
we must be fair. We are creating precedent, and this is not good 
practice. The rule of law must apply to the President when it inures to 
his benefit just as when it inures to his detriment.
  The House relies on Rule XXIII of the Senate's impeachment rules as 
granting this body's tacit approval for the drafting of impeachment 
articles in the form of those from President Nixon's impeachment 
proceedings. The House also argues that its committee report provided 
adequate notice of charges, occupying 20 pages just to list ``the most 
glaring instances of the president's perjurious, false, and misleading 
testimony before a federal grand jury and requir[ing] 13 pages just to 
list the most glaring incidents in the president's course of conduct 
designed to prevent, obstruct, and impede the administration of 
justice.'' But this argument underlines the problem. These allegations 
were not made in the articles themselves, and even now, can it truly be 
said that these were the entirety of the charges that could have been 
raised at trial, or even in a later impeachment?
  Articles of impeachment henceforth should not permit conviction based 
upon ``one or more'' findings of guilt. They should list specific 
conduct, preferably in separate articles. Removal of elected or 
appointed government officials, especially a president, should occur 
only when the public can be sure that the process has been appropriate. 
Articles such as those before the Senate in this case do not further 
that goal. The Senate should amend Rule XXIII to permit impeachment 
articles to be divided, so as to eliminate any incentive for the House 
to adopt duplicitous articles of impeachment.
  In prior impeachments charging false statements, the House has always 
delineated the date and substance of the false statement. Indeed, in 
every impeachment proceeding since Judge Pickering in 1803, articles of 
impeachment exhibited by the House have included allegations of 
specific misconduct. Although the Senate has at times voted in favor of 
articles containing multiple or cumulative allegations, it has only 
done so where specific allegations were made in other separate articles 
and where the omnibus article was written in the conjunctive. Never has 
the Senate voted for conviction on an article that charged an 
individual with ``one or more'' improper actions.
  Unfortunately, instead of following precedent, the House in the case 
before us deviated from previous practice. In prior cases, the House 
avoided lumping together several amorphous charges into one article, 
with conviction permitted if ``one or more `` alleged offenses had been 
proved--in all cases but one: Richard Nixon. Here, the House explicitly 
followed the Watergate example, probably thinking that they would be on 
safe ground. Unfortunately, the articles drafted against President 
Nixon were deficient in the extreme.
  The first article of impeachment against President Nixon charged that 
the President had ``engaged in a course of conduct or plan designed to 
delay, impede and obstruct investigations of [the] unlawful entry [of 
the headquarters of the Democratic National Committee]; to cover up, 
conceal and protect those responsible; and to conceal the existence and 
scope of other unlawful activities. The means used to implement this 
course of conduct or plan have included one or more of the following.'' 
The article of impeachment then listed nine separate charges, each

[[Page 2484]]

extremely broad. The second Nixon article charged dozens of 
indeterminate criminal offenses within several wide-ranging categories.
  The charges contained in the Nixon articles are alarmingly vague and 
duplicitous. The articles before us are not that deficient, but they 
represent a second step down a road we should not take. While these 
problems with Article I in isolation may not be sufficient to defeat 
this article, they are more than technicalities, and pose potentially 
serious consequences for the future.
  The Senate, of course, did not have occasion to consider the 
impeachment articles against President Nixon. Only once in its history 
has the Senate actually considered an article of impeachment charging 
violations of ``one or more'' alleged acts. Among the articles of 
impeachment against Judge Walter Nixon in 1989 was an article alleging 
that Judge Nixon made ``one or more" false statements. Unlike the 
articles against Presidents Nixon or Clinton, however, the article in 
question in the case of Judge Nixon specifically enumerated the alleged 
material false statements, including the date and nature of the 
statement made. The Senate, though defeating a motion to dismiss the 
article, nevertheless acquitted Judge Nixon on this article. Several 
Senators explained their votes to acquit on this article due to the 
multiplicitous (actually, duplicitous) and disjunctive ``one or more'' 
form of the article.
  I agree with those senators who criticized the form of the omnibus 
article of impeachment that was brought against Judge Nixon. An article 
of impeachment charging a defendant with ``one or more'' acts is not 
only unfair to the defendant, but it does not permit senators to 
perform adequately their constitutional duty and the American people to 
understand their actions. If the Senate were to convict on a ``one or 
more'' acts count of an article of impeachment, the votes to convict 
would obscure the real basis for each senator's vote. Ultimately, the 
American people would be deprived of knowing the basis on which the 
President they duly elected was removed from office.
  The Senate also has never been asked to convict someone for conduct 
that formed the basis for an article of impeachment that was rejected 
by the House. Although in a literal sense, no such article is before 
the Senate, in a practical sense that is the situation. The House 
failed to pass an article of impeachment against President Clinton that 
accused him of, on January 17, 1998, ``willfully provid[ing] 
perjurious, false, and misleading testimony in response to questions 
deemed relevant by a Federal judge concerning the nature and details of 
his relationship with a subordinate Government employee, his knowledge 
of that employee's involvement and participation in the civil rights 
action brought against him, and his corrupt efforts to influence the 
testimony of that employee.'' Yet, in Article I, the Senate is asked to 
convict the President based on ``one or more'' sets of actions, one of 
which is the President's ``prior perjurious, false, and misleading 
testimony he gave in a Federal civil rights action brought against 
him.'' That portion of Article I has resulted in the House recharging 
all the allegations of perjury made by the President in his civil 
deposition that were dismissed when the House rejected an article of 
impeachment that was based on that deposition. The House does so 
explicitly: ``In addition to his lie about not recalling being alone 
with Ms. Lewinsky, the President told numerous other lies at his 
deposition. All of those lies are incorporated in Article I, Item 2.'' 
House Trial Memo. at 61. The House claims that the President's 
statement in his grand jury testimony that he intended to be unhelpful 
but truthful in his deposition, and that he did not violate the law in 
his deposition, amount to perjury in the grand jury if a single 
statement in his deposition was perjurious. However, the President did 
not broadly reaffirm the truth of all his deposition testimony. Indeed, 
before the grand jury, the President revised many statements he had 
made in the Jones deposition.
  Two perjury statutes have been enacted as part of the federal 
criminal code. 18 U.S.C. Sec. Sec.  1623 and 1621. The elements of 
section 1623 are that the defendant (1) knowingly make a (2) false (3) 
material declaration (4) under oath in a proceeding before or ancillary 
to any court or grand jury of the United States. Statements which are 
misleading but literally true cannot form the basis for a perjury 
conviction. Bronston v. United States, 409 U.S. 352 (1973). The most 
difficult element of the offense is materiality. A statement is said to 
be material ``if it has a natural tendency to influence, or is capable 
of influencing, the decision of the decisionmaking body to whom it is 
addressed.'' United States v. Durham, 139 F.3d 1325, 1329 (10th Cir. 
1998); see Kungys v. United States, 485 U.S. 759 (1988). The Supreme 
Court has characterized the conduct prohibited by Sec.  1621 as 
follows: ``A witness testifying under oath or affirmation violates this 
section if she gives false testimony concerning a material matter with 
the willful intent to provide false testimony, rather than as a result 
of confusion, mistake, or faulty memory.'' United States v. Dunnigan, 
507 U.S. 87, 94 (1993). As with Sec.  1621, testimony that is 
misleading but literally true does not fall within the ambit of Sec.  
1623.
  A preliminary matter before consideration of these charges concerns 
the burden of proof of the charges in the articles of impeachment which 
I believe should apply. It is well established that senators are free 
to weigh the evidence in particular cases under a standard they 
consider appropriate. My own view is that different cases will be 
considered under different standards, depending on the nature of the 
particular charge. Impeachment is neither a civil nor a criminal 
proceeding, but a hybrid. It is therefore inappropriate to always apply 
one or the other of the criminal or civil burdens of proof. When the 
consequences to the nation of the alleged conduct are most serious, 
such as treason, then the Senate should consider the case under a clear 
and convincing standard, for fear of leaving a likely traitor in office 
simply because his guilt has not been established beyond a reasonable 
doubt. By contrast, when the charges allege harms that are not 
imminently serious to the national well-being, it becomes more 
appropriate to apply the criminal burden of proof: beyond a reasonable 
doubt. I concede that the charges alleged here, while serious, do not 
fall within the former category, and I will therefore review the facts 
under the beyond a reasonable doubt standard.
  With that background, I now consider the facts relating to the three 
perjury specifications concerning the President's grand jury testimony 
that are properly before the Senate. The first is his testimony 
concerning ``the details and nature of his relationship with a 
subordinate Government employee.'' The President admitted in the grand 
jury that he had an inappropriate relationship with Ms. Lewinsky.
  To be sure, President Clinton contended that the relationship began 
in 1996, rather than 1995. The House managers note that this is 
significant because Ms. Lewinsky was an intern in 1995. The House also 
points out that the President admitted inappropriate conduct ``on 
certain occasions,'' when, in reality, there were eleven such 
occasions, and that he had ``occasional'' telephone encounters with Ms. 
Lewinsky when there were at least seventeen that contained sexual 
banter. I do think that these statements constitute perjury. They were 
false, were made willfully, and were material. Something that happens 
seventeen times in a year does not occur ``occasionally.'' Given the 
sensitivity of Ms. Lewinsky's status as an intern, I believe that the 
President deliberately told the grand jury that his relationship with 
her began in 1996, when she no longer had that status. Finally, the 
statement is material because it concerns a matter that the grand jury 
was investigating as part of its work: the nature of the President's 
relationship with Ms. Lewinsky. For these reasons, the statement was 
perjurious.
  The President's statement to the grand jury that he regretted that 
what began as a friendship changed into an inappropriate sexual 
relationship was

[[Page 2485]]

also knowingly false, since the two engaged in sexual relations twice 
on the same day that they first spoke. Thus, the statement was made to 
deceive, and given that it related to a subject of the grand jury's 
inquiry, it was material. Therefore, I agree that this statement also 
constitutes perjury, so that the first item of Article I has been 
proved. The second item charged in Article I addresses statements the 
President made in the grand jury regarding the truth of his deposition 
testimony. For the reasons above stated, I consider finding perjury 
based on an article of impeachment that the House rejected to be 
questionable.
  The third item charged in Article I concerns grand jury testimony 
involving ``false and misleading statements he allowed his attorney to 
make to a Federal judge in that civil rights action.'' Before the grand 
jury, President Clinton testified that he was ``not even sure I paid 
attention to what he [Mr. Bennett] was saying'' when his attorney 
represented to the court that Ms. Lewinsky's affidavit stated that 
there was no sex of any kind between her and the President. As a 
factual matter, given the videotape that shows the President 
concentrating very carefully on his attorney's words and the great 
importance that he placed on that affidavit and its filing in time, 
this statement's characterization of the President's attention was 
certainly false. However, the President said that he ``was not even 
sure" that he was paying attention. It is possible, although unlikely, 
that he was not sure in August that he was paying attention to that 
specific statement in January. That would make the statement literally 
true and thus, by definition, not perjurious. And in any event, I 
cannot determine beyond a reasonable doubt that his statement was 
perjurious. Indeed, the real issue is whether President Clinton used 
the affidavit to obstruct justice: whether he actually was paying 
attention to his unsuspecting attorney when the affidavit was actually 
used to obstruct justice is of questionable materiality.
  The fourth item of the perjury allegations in Article I concerns 
``his corrupt efforts to influence the testimony of witnesses and to 
impede the discovery of evidence in that civil rights action.'' The 
first set of facts under this category evidently concerns President 
Clinton's statements to Ms. Currie on January 18, 1998, which he 
described as having been made to refresh his recollection. The 
President's stated reason for making these statements to Ms. Currie was 
false. He knew that they were not true, and the President knew that Ms. 
Currie could not testify to their truthfulness. Thus, his statement of 
purported purpose for making them, as communicated to the grand jury, 
was made willfully, with the intent to deceive the grand jury. They 
were material as well, since they went to the issue of whether he had 
committed a federal crime. They thus constitute perjury.
  The second set of facts at issue in item four of Article I apparently 
concerns whether the President truthfully told the grand jury that when 
the subject of the subpoenaed gifts arose at his December 28, 1997 
meeting with Ms. Lewinsky, he told her ``if they asked her for the 
gifts, she'd have to give them whatever she had, that that's what the 
law was.'' Although Ms. Lewinsky never testified that the President 
said this to her, she once indicated that it sounded familiar. Thus, I 
am not convinced beyond a reasonable doubt that the President lied when 
he testified that he made this statement.
  The third set of facts in item four of Article I addresses alleged 
lies that he made to the grand jury concerning the truth of statements 
that he made to White House aides. Before the grand jury, the President 
stated that he had told his aides that he did not have sex with Ms. 
Lewinsky as he defined it, and that he told them ``things that were 
true about this relationship.'' In reality, the President told them 
false statements, such as a broader denial of sexual activity than that 
defined as even he had defined it, and that Ms. Lewinsky was a stalker 
who came on to him, but whom he rebuffed. The President's statements to 
the grand jury in this regard were false, and were intended to deceive 
the grand jury about a federal crime of obstruction of justice through 
the telling of false statements to persons he knew might become 
witnesses before that grand jury, and therefore committed perjury.
  As noted above, not all impeachable offenses are crimes, and not all 
crimes are impeachable offenses. While I conclude that one of the three 
sets of facts at issue in item four of Article I does not constitute 
perjury, I conclude that the statements concerning Betty Currie, and 
the statements concerning what he told his aides do constitute perjury. 
I also find that the President committed perjury with respect to item 
one of Article I with respect to his statements that he and Ms. 
Lewinsky's relationship began as a friendship, that it started in 1996, 
and that he had ``occasional'' encounters with her. These are the only 
examples of grand jury perjury that I believe have been proved in the 
entirety of Article I. The question then is whether these examples of 
perjury warrant removal of the President for the commission of high 
crimes and misdemeanors.
  Make no mistake, perjury is a felony, and its commission by a 
President may sometimes constitute high crimes and misdemeanors. But is 
removal appropriate when the President lied about whether he was 
refreshing his recollection or coaching a witness about the nature of a 
sexual relationship? Is removal appropriate when the President lied to 
the grand jury that he denied to his aides that he had engaged in sex 
only as he had defined it, when in fact he had denied engaging in oral 
sex? Is removal warranted because the President stated that his 
relationship began as a friendship in the wrong year and actually 
encompassed more telephone encounters than could truthfully be 
described as ``occasional''? To ask the question is to answer it. In my 
opinion, these statements, while wrong and perhaps indictable after the 
President leaves office, do not justify removal of the President from 
office.
  In no way does my conclusion ratify the White House lawyers' view 
that private conduct never rises to impeachable offenses, or that only 
acts that will jeopardize the future of the nation warrant removal of 
the President. It simply recognizes how the principles the Founding 
Fathers established apply to these facts.
  I therefore vote to acquit the President of the charges alleged 
against him in Article I.


                   ARTICLE II--OBSTRUCTION OF JUSTICE

  Article II charges that President William Jefferson Clinton, in 
violation of his oath of office, and in violation of his constitutional 
obligation to take care that the laws be faithfully executed

     has prevented, obstructed, and impeded the administration of 
     justice, and has to that end engaged personally, and through 
     his subordinates and agents, in a course of conduct or scheme 
     designed to delay, impede, cover up, and conceal the 
     existence of evidence and testimony related to a Federal 
     civil rights action brought against him in a duly instituted 
     judicial proceeding.
       The means used to implement this course of conduct or 
     scheme included one or more of the following acts:
       (1) On or about December 17, 1997, William Jefferson 
     Clinton corruptly encouraged a witness in a Federal civil 
     rights action brought against him to execute a sworn 
     affidavit in that proceeding that he knew to be perjurious, 
     false, and misleading.
       (2) On or about December 17, 1997, William Jefferson 
     Clinton corruptly encouraged a witness in a Federal civil 
     rights action brought against him to give perjurious, false 
     and misleading testimony if and when called to testify 
     personally in that proceeding.
       (3) On or about December 28, 1997, William Jefferson 
     Clinton corruptly engaged in, encouraged, or supported a 
     scheme to conceal evidence that had been subpoenaed in a 
     Federal civil rights action brought against him.
       (4) Beginning on or about December 7, 1997, and continuing 
     through and including January 14, 1998, William Jefferson 
     Clinton intensified and succeeded in an effort to secure job 
     assistance to a witness in a Federal civil rights action 
     brought against him in order to corruptly prevent the 
     truthful testimony of that witness in that proceeding at a 
     time when the truthful testimony of that witness would have 
     been harmful to him.
       (5) On January 17, 1998, at his deposition in a Federal 
     civil rights action brought against him, William Jefferson 
     Clinton corruptly allowed his attorney to make false and 
     misleading statements to a Federal judge characterizing an 
     affidavit, in order to prevent

[[Page 2486]]

     questioning deemed relevant by the judge. Such false and 
     misleading statements were subsequently acknowledged by his 
     attorney in a communication to that judge.
       (6) On or about January 18 and January 20-21, 1998, William 
     Jefferson Clinton related a false and misleading account of 
     events relevant to a Federal civil rights action brought 
     against him to a potential witness in that proceeding, in 
     order to corruptly influence the testimony of that witness.
       (7) On or about January 21, 23, and 26, 1998, William 
     Jefferson Clinton made false and misleading statements to 
     potential witnesses in a Federal grand jury proceeding in 
     order to corruptly influence the testimony of those 
     witnesses. The false and misleading statements made by 
     William Jefferson Clinton were repeated by the witnesses to 
     the grand jury, causing the grand jury to receive false and 
     misleading information.
       In all of this, William Jefferson Clinton has undermined 
     the integrity of his office, has brought disrepute on the 
     Presidency, has betrayed his trust as President, and has 
     acted in a manner subversive of the rule of law and justice, 
     to the manifest injury of the people of the United States.
       Wherefore, William Jefferson Clinton, by such conduct, 
     warrants impeachment and trial, and removal from office and 
     disqualification to hold and enjoy any office of honor, 
     trust, or profit under the United States.''

  Section 1503(a) of Title 18 of the United States Code states:

       Whoever corruptly, or by threats or force, or by any 
     threatening letter or communication, endeavors to influence, 
     intimidate, or impede any grand or petit juror, or officer of 
     any court of the United States, or officer who may be serving 
     at any examination or other proceeding before any United 
     States magistrate judge or other committing magistrate, in 
     the discharge of his duty, or injures any such grand or petit 
     juror in his person or property on account of any verdict or 
     indictment assented to by him, or on account of his being or 
     having been such juror, or injures any such officer, 
     magistrate judge, or other committing magistrate in his 
     person or property on account of the performance of his 
     official duties . . . shall be punished as provided in 
     subsection (b).

  Courts have interpreted this provision to require the government to 
prove: ``(1) that there was a pending judicial proceeding, (2) that the 
defendant knew this proceeding was pending, and (3) that the defendant 
then corruptly endeavored to influence, obstruct, or impede the due 
administration of justice.'' United States v. Monus, 128 F.3d 376, 387 
(6th Cir. 1998).
  Here, there is no doubt that a judicial proceeding was pending and 
that President Clinton knew that the proceeding was pending. The 
question is whether he corruptly intended to influence, obstruct, or 
impede the due administration of justice. Courts have held that to act 
corruptly means to act with the intent to influence, obstruct, or 
impede the proceeding in question. United States v. Mullins, 22 F.3d 
1365, 1369 (6th Cir. 1994); United States v. Littleton, 76 F.3d 614, 
619 (4th Cir. 1996); United States v. Russo, 104 F.3d 431, 435 (D.C. 
Cir. 1997). Because the prohibited intent is so closely related to the 
prohibited act, courts have required a nexus between the obstructing 
conduct and the target proceedings. Thus, the defendant's acts must 
have the ``natural and probable effect'' of interfering with the due 
administration of justice. United States v. Aguilar, 515 U.S. 593, 599 
(1995). But the defendant need only endeavor to obstruct justice to 
commit this offense. There is no requirement that he actually succeed 
in obstructing justice. Id. at 599, 600.
  Among the acts that courts have concluded violate Sec.  1503(a) 
include the creation of false documents to be presented in evidence, 
United States v. Chihak, 137 F.3d 252 (5th Cir. 1998); and instructing 
a subordinate to conceal evidence, United States v. Lefkowitz, 125 F.3d 
608 (8th Cir. 1997). These actions are alleged to have occurred in 
Article II.
  Section 1512(b) of Title 18 prohibits witness tampering. 
Specifically, it prohibits knowingly using one or more of the 
prohibited forms of persuasion with the intent to prevent a witness's 
testimony from being presented at official federal proceedings or with 
the intent to prevent a witness from reporting evidence of a crime to 
federal authorities. United States v. Thompson, 76 F.3d 442, 452-53 (2d 
Cir. 1996). Unlike Sec.  1503, Sec.  1512(b) does not require that the 
defendant be aware of the pendency of federal proceedings. United 
States v. Romero, 54 F.3d 56, 62 (2d Cir. 1995). Courts differ about 
the standard of corrupt persuasion, but even the more stringent courts 
agree that it is sufficient if the defendant attempts to persuade a 
witness ``to violate her legal duty to testify truthfully in court.'' 
United States v. Morrison, 98 F.3d 619, 630 (D.C. Cir. 1996). Contrary 
to the representations of White House counsel at the impeachment trial, 
it is not necessary that the defendant threaten or cause physical harm 
to a witness to fall within subsection (b). When the defendant's 
misconduct takes the form of deceiving a potential witness with the 
intent that the witness later repeat the deception in federal 
proceedings, the crime does not require that the potential witness was 
in fact deceived, nor that there was any particular likelihood that 
that potential witness would in fact ever be called upon to testify. 
United States v. Gabriel, 125 F.3d 89, 102-03 (2d Cir. 1997). The 
prohibited intent of this subsection is intent to obstruct a federal 
proceeding.
  There are seven specifications of obstruction of justice in Article 
II. The first two charge that on or about December 17, 1997, President 
Clinton corruptly urged a witness in a federal civil rights action to 
execute a false affidavit and to give false testimony if called to 
testify. That is the day he informed Ms. Lewinsky that she was on the 
Jones witness list, that she should contact Ms. Currie if she were 
subpoenaed, and that she could file an affidavit in the case to avoid 
testifying. In this conversation, the President told Ms. Lewinsky that 
she could ``always say you were coming to see Betty or that you were 
bringing me letters.''
  The President conducted an improper relationship with an employee of 
the federal government, Monica Lewinsky. He carried on that 
relationship off the Oval Office. He engaged in sexual banter over 
unsecured telephone lines to Ms. Lewinsky's residence, compromising 
himself and making himself susceptible to blackmail.
  And on December 17, 1997, the President raised to Ms. Lewinsky both 
the cover stories and filing an affidavit to prevent these facts from 
being disclosed. While Ms. Lewinsky testified that he did not expressly 
tell her to raise the cover stories in the affidavit, his intent was 
unmistakable: to corruptly endeavor to influence Ms. Lewinsky to file 
an affidavit that would prevent Paula Jones's attorneys from learning 
of the President's relationship with Ms. Lewinsky, a relationship of 
the type that the judge in her case had ruled to be relevant. And even 
if not directly linked to the affidavit, there is no question from Ms. 
Lewinsky's consistent testimony that the President was asking her to 
use those cover stories if she were ultimately asked to testify, since 
that was the context of the conversation. The White House's repeated 
retort that the relationship with Ms. Lewinsky was consensual, while 
the allegations by Ms. Jones were of non-consensual sex, is therefore 
irrelevant. President Clinton did not tell Ms. Lewinsky to lie, but 
neither did he need to, as she understood that she was to raise the 
cover stories. Ms. Lewinsky admitted that the affidavit was indeed 
false. And since Lewinsky's truthful testimony would have definitely 
led to her being called as a witness, the President clearly understood 
that Ms. Lewinsky would file an affidavit he had strong reason to 
believe would be false. That is obstruction of justice, as shown by the 
cases that have held creation of false documents to be presented in 
evidence to fit within the statutory prohibition. Moreover, this charge 
must be considered in connection with the President's discussions with 
Ms. Lewinsky as her affidavit was being prepared, his conversation with 
Mr. Jordan after he spoke with her, and his lawyer's deep involvement 
in ensuring that the affidavit was filed and that the President had an 
opportunity to see it before that occurred, all of which shed light on 
what the President intended Ms. Lewinsky to do in that affidavit and if 
she testified.
  The third item of Article II charges that President Clinton, on or 
about December 28, 1997, corruptly engaged in, encouraged, or supported 
a scheme to conceal evidence that had been subpoenaed in a federal 
civil rights action

[[Page 2487]]

against him. That is the day the President discussed the subpoenaed 
gifts with Ms. Lewinsky, and there is no doubt that the President 
indicated that he was ``bothered'' by the specific gift, a hatpin, that 
the subpoena requested. In none of the many times that Ms. Lewinsky 
testified did she ever say that the President told her to turn over the 
gifts, although once she said that the remark seemed familiar, and a 
number of times she testified that he asked to think about her 
suggestion that she give the gifts to Ms. Currie. The gifts, of course, 
ultimately were secreted under Ms. Currie's bed, and there is no doubt 
in Ms. Lewinsky's mind that Ms. Currie initiated the call that led to 
that exchange of the gifts. Since only the President and Ms. Lewinsky 
were present when the subject of giving the gifts to Ms. Currie was 
raised, and since Ms. Lewinsky did not call Ms. Currie, the only way 
that Ms. Currie could have called Ms. Lewinsky and not be surprised to 
obtain the gifts was if the President had told her to contact Ms. 
Lewinsky to retrieve them. This is also consistent with the President's 
course of conduct in this matter.
  The President thus corruptly acted to obstruct the Jones case by 
asking Ms. Currie to retrieve and secret the gifts. That constitutes 
obstruction of justice, as demonstrated by the cases that have 
convicted defendants of that charge for having instructed subordinates 
to conceal evidence.
  The White House's arguments to the contrary are unpersuasive. It is 
irrelevant that the President did not initiate the subject of the gifts 
in his conversation with Ms. Lewinsky. It is also irrelevant that he 
did not tell her to conceal the gifts. What is relevant is that the 
President, after thinking about the gifts, instructed Ms. Currie to 
retrieve the gifts from Ms. Lewinsky. The President's and Ms. Currie's 
denials simply cannot be squared with the evidence.
  Also irrelevant is the fact that Ms. Currie's cell phone call to Ms. 
Lewinsky occurred at 3:30 p.m., whereas Ms. Lewinsky testified that the 
gift pickup occurred at 2 p.m. Notwithstanding the White House's 
willingness to excuse the President's error by two or more months 
concerning when his improper relationship with Ms. Lewinsky began, 
while insisting that the cell phone call's 90 minute mistiming is fatal 
to the theory that Ms. Currie instituted the gift exchange, the cell 
phone call at 3:30 does not prove that Ms. Lewinsky instituted the gift 
exchange. First, Ms. Lewinsky testified that she might have been 
mistaken about the time that Ms. Currie picked up the gifts. Second, 
there is no evidence that the cell phone call was the one in which Ms. 
Currie's gift pickup was proposed. Ms. Lewinsky testified that she 
received other telephone calls from Ms. Currie that day to learn when 
Ms. Currie was coming to her apartment and also to know when she should 
actually come outside to meet Ms. Currie.
  The White House also maintains that the President would not have 
given Ms. Lewinsky additional gifts on December 28 if he planned to 
hide the gifts. The facts do not support that theory. The President 
gave Ms. Lewinsky those gifts before, pondering Ms. Lewinsky's idea, he 
determined that he would ask Ms. Currie to retrieve them. Since he had 
no intent to retrieve the gifts at the time he gave her the gifts on 
December 28, there is no inconsistency with his later direction to Ms. 
Currie to pick them up.
  The fourth item of Article II alleges that the President, beginning 
on December 7, 1997, and continuing through January 14, 1998, 
intensified and succeeded in an effort to secure job assistance to a 
witness in a federal civil rights action brought against him to 
corruptly prevent the truthful testimony of that witness. Following a 
meeting with Ms. Lewinsky in November in which she sought his 
assistance, Mr. Jordan took no action and provided no help. He does not 
even remember this meeting. Thus, he made no serious effort to find her 
a job until after December 7, once the President, not Ms. Lewinsky, 
asked him to conduct a job search for Ms. Lewinsky. That followed Ms. 
Lewinsky's appearance on the Jones lawyers' witness list, and followed 
the President's promise to Ms. Lewinsky that he would ask Mr. Jordan to 
do more to help her find a job.
  Although Ms. Currie, not the President, called Mr. Jordan, he was 
aware that the request came from the President and that he acted at the 
behest of the President. Jordan did not call the companies Ms. Lewinsky 
suggested, but rather, the companies where he was likely to produce a 
job for her. After December 19, Jordan obviously became aware that the 
President may have been asking him to assist Ms. Lewinsky obtain a job 
because he may have had a sexual affair with Ms. Lewinsky. That 
prompted him to ask both Ms. Lewinsky and the President whether such a 
relationship had occurred. Jordan continued to help find Ms. Lewinsky 
employment once they both denied that this was the case. However, he 
took no additional action until the day after Ms. Lewinsky signed the 
affidavit, when he called the CEO of McAndrews & Forbes to successfully 
obtain a second interview for her at Revlon after she told him that the 
first had proceeded badly. Thus, it is true that Mr. Jordan intensified 
his job assistance to Ms. Lewinsky at the President's request, 
following the President's, but not Mr. Jordan's knowledge, that she 
appeared on the Jones witness list. Jordan took no further action on 
her behalf until satisfying himself that each had denied that there had 
been any sexual relationship. He then obtained a job for Ms. Lewinsky 
by calling the CEO of the holding company of the company that offered 
Ms. Lewinsky a job. That call was made the day after Ms. Lewinsky 
signed her affidavit. Because President Clinton did ask Mr. Jordan to 
intensify his job efforts to assist Ms. Lewinsky to obtain a job after 
he knew she was on the Jones witness list, the President corruptly 
obstructed justice by attempting to influence the testimony of a 
witness in a case against him.
  The White House responses to this charge miss the mark. That Ms. 
Lewinsky had begun her job search in July, and after a few months had 
not landed a job of her liking is irrelevant to whether, not having 
obtained a job, the President took steps to make sure she did obtain 
one once her name appeared on the witness list. That Ms. Lewinsky 
testified that no one ever promised her a job in return for her silence 
does not change the fact that these efforts were undertaken. That Linda 
Tripp suggested that Ms. Lewinsky originally speak with Mr. Jordan 
means nothing because he took no action following that meeting; only 
after the President requested that Mr. Jordan assist Ms. Lewinsky once 
her name appeared on the witness list did he do so. That Mr. Jordan 
testified that he acted with no sense of urgency is also of no import: 
it was the President who acted with a sense of urgency, using Mr. 
Jordan as his agent. Nor is it of consequence that Mr. Jordan placed no 
undue pressure on the persons he contacted in support of Ms. Lewinsky. 
The corrupt influence in obstruction of justice that matters is 
directed to the witness, not to the prospective employer of the 
witness. President Clinton knew, and Mr. Jordan knew, that the ``Jordan 
magic'' in finding people employment did not depend in any way on undue 
pressure being applied. Thus, the White House's contention that there 
was no connection between Ms. Lewinsky obtaining her Revlon offer and 
Mr. Jordan's call to Mr. Perelman is denied by Mr. Jordan himself. 
President Clinton could be sure that Mr. Jordan would find Ms. Lewinsky 
a job when her testimonial support of his denials was critical without 
his own need to do anything. It is also irrelevant that she did not 
obtain a job offer in each company Mr. Jordan called. Nothing in the 
record shows that the President ever requested Mr. Jordan to find 
employment for any White House intern who was not on a witness list in 
a federal case pending against him. The President obstructed justice 
through using Mr. Jordan to find Ms. Lewinsky a job once her name 
appeared on the Jones witness list.
  The fifth item of Article II claims that the President obstructed 
justice by corruptly allowing his attorney to

[[Page 2488]]

make false and misleading statements to a federal judge. In the 
President's presence, his attorney represented to the court, based on 
Ms. Lewinsky's affidavit, that the President had seen the affidavit, 
and that it showed that ``there is absolutely no sex of any kind in any 
manner, shape or form with President Clinton,'' a statement his lawyer 
later retracted out of professional ethics obligations. The affidavit 
stated, inter alia, that ``I have never had a sexual relationship with 
the President, he did not propose that we have a sexual relationship . 
. .'' and ``the occasions that I saw the President after I left my 
employment at the White House in April, 1996, were official receptions, 
formal functions or events related to the U.S. Department of Defense, 
where I was working at the time. There were other people present on 
those occasions.'' The President testified that the affidavit was 
``absolutely true.'' The President knew that Ms. Lewinsky's affidavit 
would be used to perpetrate a fraud on the court, and because he was 
briefed on its contents by his attorney in advance, he knew that his 
attorney misunderstood the affidavit, and would inadvertently present 
the affidavit to the court in a false light. Yet, he took no action to 
either change his lawyer's understanding or to prevent the use of the 
affidavit under those conditions. Moreover, with knowledge that the 
affidavit used the cover stories that he had reminded Ms. Lewinsky to 
continue on December 17, he testified to those same cover stories. 
Regardless of whether he was paying attention at the moment that this 
happened, the President clearly knew at the time the deposition 
commenced that the affidavit would be used in a way that perpetrated a 
fraud on the court and on Ms. Jones's proceedings. He corruptly impeded 
Ms. Jones's efforts to prove the fact relevant to her case that Mr. 
Clinton had had a sexual relationship with another government employee. 
He did so intentionally by allowing that affidavit to be portrayed by 
an officer of the court as proof that there was in fact no sexual 
relationship between the President and another government employee. 
That is obstruction of justice. The White House has addressed these 
facts only with respect to whether the President's statement denying 
that he was in fact paying attention to his attorney as opposed to 
looking at him constituted perjury, but has never refuted the 
President's knowledge that a false affidavit would be used in the 
deposition to obstruct the proceeding.
  The sixth item of Article II concerns the President's obstruction of 
justice by relating false and misleading statements to Betty Currie in 
order to corruptly influence her testimony. The President's 
conversation with Ms. Currie followed his telephone call to her, a call 
that she testified was made later on a Saturday than any call she had 
ever received from the President at home. The conversation occurred on 
a Sunday, when it was rare for Ms. Currie to come to the White House. 
The conversation occurred in the Oval Office, where the President would 
exercise the full powers and trappings of his office in the presence of 
a subordinate. The conversation addressed issues from the President's 
testimony in the Jones case, despite the fact that at the end of his 
deposition, the presiding judge ordered him not to discuss his 
testimony with anyone. In that conversation, the President told Ms. 
Currie statements that he knew to be false about his relationship with 
Ms. Lewinsky, and that she also knew were false. Two or three days 
later, that is, the day the President learned that the court had 
permitted Independent Counsel Starr to expand his inquiry into the 
Lewinsky matter or the day after, the President repeated these same 
statements to Ms. Currie.
  The President's call to Ms. Currie followed rapidly upon his 
deposition in the Jones case, its questions concerning Ms. Lewinsky, 
and his repeated answers to such questions by invoking Ms. Currie's 
name, one of which invited the Jones attorneys to ``ask Betty.'' In 
fact, Ms. Jones' lawyers placed Ms. Currie's name on their witness 
list. The ``questions'' that he asked were leading, and even according 
to Ms. Currie, were more like statements than questions. He asked her 
to agree that he was never really alone with Ms. Lewinsky, even though 
they both knew that he had been alone with her. He asked her to agree 
that she was always there when Ms. Lewinsky was there, even though she 
could not logically know whether Ms. Lewinsky had ever been there when 
Ms. Currie was absent. He asked her to agree that Ms. Lewinsky came on 
to him and that he never touched her, even though Ms. Currie would have 
had no ability to know those ``facts.'' He asked her to agree that she 
had seen and heard everything, when that was also not the case. And he 
suggested to her that Ms. Lewinsky wanted to have sex with him and that 
he could not do that.
  These statements constitute witness tampering. The President engaged 
in misleading conduct, through the use of false statements and 
omissions to mislead, toward Ms. Currie, with intent to influence her 
testimony in a federal court proceeding. He acted corruptly, because he 
acted with the improper purpose of obtaining false testimony from a 
witness who would corroborate the lies he issued in the Jones 
deposition to obstruct that case. As stated above, witness tampering 
convictions need not rest on the defendant's actually having deceived 
the potential witness or any particular likelihood that the potential 
witness would in fact ever be called upon to testify. United States v. 
Gabriel, 125 F.3d 89, 102-03 (2d Cir. 1997).
  The White House arguments in response to these facts is inadequate. 
It is inadequate as a matter of law for the White House to contend that 
the President did not know that Ms. Currie was an ``actual or 
contemplated witness,'' and is difficult to accept that proposition 
factually. Nor as a matter of law is it ``critical,'' as the White 
House contends, that Ms. Currie testified that she felt no pressure to 
agree with the President. Witness tampering under 
Sec. 1512 can be accomplished through ``misleading conduct,'' which 
includes the making of false statements or intentional omissions that 
make statements misleading. The White House counsel repeatedly argued 
that threats are necessary for witness tampering, even after senatorial 
questions demonstrated the White House's misstatements of the law. The 
White House also misstated the law of witness tampering by claiming 
that there ``must be a known proceeding.'' In fact, the defendant need 
not know that there is any pending federal proceeding to constitute 
witness tampering. United States v. Kelley, 36 F.3d 1118, 1128 (D.C. 
Cir. 1994). The White House contends that the President could not have 
tampered with Ms. Currie in the proceeding in which she was ultimately 
a witness, the independent counsel's investigation, since the President 
could not have known that it existed, at least as of January 18. But 
the statute does not require that the defendant know of any pending or 
even contemplated proceedings so long as he engages in misleading 
conduct with respect to a potential witness. United States v. Romero, 
54 F.3d 56, 62 (2d Cir. 1995).
  The White House's factual defense to this charge is also 
insufficient. The President could not have made these false statements 
to Ms. Currie for the purpose of refreshing his recollection. Nor could 
he have spoken with her for the purpose of seeking information for the 
same reason. These claims also do not explain why he simply did not ask 
her the questions over the telephone on the night of the seventeenth, 
if that was his intention, or explain why he spoke with her a second 
time.
  The seventh item of Article II alleges that the President obstructed 
justice by relaying false and misleading statements to his aides. On 
January 21, the President told his chief of staff and two deputies that 
he had not had sexual relations with Ms. Lewinsky. On January 23, he 
told one of those deputy chiefs of staff, John Podesta, that he did not 
engage in oral sex with Ms. Lewinsky. The President on January 21 told 
his aide, Sidney Blumenthal, that Ms. Lewinsky had threatened him. 
President Clinton also indicated that Lewinsky was known among her 
peers as the stalker, and that she would say

[[Page 2489]]

that she had an affair with the President whether it was true or not, 
so that she would not be known as the stalker any more. Blumenthal 
later testified that he believes the President lied to him. The 
President testified that he was aware at the time that he made his 
statements that his aides might be summoned before the grand jury. 
These facts constitute paradigmatic witness tampering. The President 
knowingly engaged in misleading conduct, as defined in the statute, 
towards his aides, with intent to influence the testimony of those 
aides in an official proceeding.
  Once again, the White House's arguments to the contrary are 
unavailing. The charge is not that the President lied to his friends, 
as the White House maintains, but that he lied to potential witnesses 
about his conduct that the grand jury was investigating. It is not 
relevant, as the White House contends, that the President did not 
attempt to influence his aides' own personal knowledge, only their 
knowledge of the President's views, nor, as stated above, is it 
relevant as a matter of law that the President did not know that any of 
these individuals would ultimately become witnesses. Most surprising 
was the claim that Mr. White House Counsel Ruff raised for the first 
time in closing argument that the President could not be convicted of 
obstructing justice with respect to his conversations with Mr. 
Blumenthal because the fact that the President claimed executive 
privilege with respect to his conversation with Mr. Blumenthal meant 
that he never expected the grand jury to hear about it. The President's 
conversation with Mr. Blumenthal was not subject to a legitimate claim 
of executive privilege for two independent reasons. First, it was not a 
discussion that related to the President's official duties. Second, it 
constituted evidence of crime in and of itself. There was no 
possibility that any court would have ever upheld such a personally 
self-serving and frivolous misuse of executive privilege, and the 
President, as a former constitutional law professor during the time of 
Watergate fully understood that, as does Mr. Ruff. Indeed, Mr. 
Blumenthal was required to testify to the grand jury about this 
conversation notwithstanding the fact that the President did invoke an 
unwarranted executive privilege claim in an attempt to prevent its 
disclosure. Nor is there evidence that the President intended to claim 
executive privilege at the time that he had his conversation with 
Blumenthal. In any case, there was no reason for the President to tell 
this tale to Mr. Blumenthal except to disseminate it to his press 
contacts and on any occasion when he might appear before the grand 
jury.
  Each and every allegation of obstruction of justice and witness 
tampering has thus been proven. The question then arises whether the 
conclusion that the President has broken the law in this respect 
warrants his removal from office. Since all have been proven, I am far 
less concerned that the ``one or more'' language appears in this 
article. It is appropriate to charge an omnibus article in which a 
series of specific charges are leveled, a finding of guilt on each of 
which is required for conviction.
  President Clinton has committed a pattern of acts of obstruction of 
justice. The record demonstrates that the President, when his 
misconduct became relevant to a civil court proceeding in which he was 
a defendant, used all the methods at his disposal, including his status 
as President, to obstruct these proceedings and to keep the truth from 
emerging, including:
  coaching and encouraging a witness, another federal employee, Betty 
Currie, to give false testimony;
  facilitating and encouraging Monica Lewinsky to submit an affidavit 
that he had reason to believe would be false;
  through Vernon Jordan, securing employment for Monica Lewinsky in 
order to keep her from divulging to the court the true nature of their 
relationship;
  using government employees to transfer false information to the grand 
jury;
  allowing a false affidavit to be used to perpetrate a fraud on a 
federal court;
  after lying in a civil deposition, authorized a poll and made a cold, 
calculated decision based on those poll results to continue his 
obstruction;
  attempting to speak to Monica Lewinsky before she might testify 
truthfully to the independent counsel about their relationship;
  following his inability to contact Monica Lewinsky, telling 
defamatory lies about her in order to discredit her with his aides and 
with the public;
  facilitating the hiding of evidence in a civil lawsuit;
  providing false and misleading testimony in both a civil deposition 
and before a grand jury in order to protect his personal interests;
  lying to the American people in order to cover up his own personal 
misconduct;
  still failing to acknowledge that he committed the above actions, 
while admitting only as little as he has been forced to by the 
discovery of definitive physical evidence.
  For at least nine months and in some respects up until today, the 
President has done everything within his power to bring about a 
miscarriage of justice in both a civil court proceeding and a criminal 
court proceeding. He took these actions for the sole purpose of 
protecting himself personally, politically and legally. For those who 
emphasize the private nature of his original misconduct, I would ask if 
he should be protected because he obstructed justice for such a low 
purpose? Time and again, and with premeditation, he was willing to use 
government personnel to assist in his coverup and his lies, 
acknowledging part of the truth only when confronted with physical 
evidence. And he carried his lies and cover up right on into legal 
proceedings with the grace and ease of someone who regarded a court of 
law as deserving of no more respect than if he were dealing with a 
stranger on the street. It is this persistent relentless, remorseless 
pattern of conduct that requires a verdict of guilty. He was willing to 
lie, defame, hide evidence and enlist anyone necessary, including 
government employees over and over again. At every juncture when he had 
the opportunity to stop, relent or come clean with a forgiving public, 
he chose instead to go forward. And even today he refuses to 
acknowledge the damage he has done to the Presidency and the Judiciary, 
choosing instead to rely upon his high job approval rating and 
acknowledging only what he is forced to after the production of 
physical evidence.
  Consider what those who oppose impeachment say about his actions:
  Senator Bumpers, one of the counsel for the President during his 
trial, described the President's conduct as ``indefensible, outrageous, 
unforgivable, shameless.'' The New York Times editorialized that 
``President Clinton behaved reprehensibly, [and] betrayed his 
constitutional duty to uphold the rule of law. . . .'' A censure 
resolution offered by members of his own party in the House, including 
one of the strongest opponents of impeachment in the Judiciary 
Committee, concluded that President Clinton ``egregiously failed in 
[]his obligation'' ``to set an example of high moral standards and 
conduct himself in a manner that fosters respect for the truth;'' 
``violated the trust of the American people, lessened their esteem for 
the office of President, and dishonored the office which they have 
entrusted to him;'' ``made false statements concerning his 
reprehensible conduct with a subordinate;'' and ``wrongly took steps to 
delay discovery of the truth.'' Respected members of the President's 
party in this body expressed or shared the expression of the view that 
his actions were ``disgraceful,'' that it was ``dismay[ing]'' to 
consider ``the impact of his actions on our democracy and its moral 
foundations,'' that it was ``immoral'' and ``harmful'' since ``the 
President's private conduct can and often does have profound public 
consequences'' and ``compromised his moral authority,'' and they 
described his deception as ``intentional and premeditated.''
  So we castigate the President in the most bitter terms; decry his 
disgraceful conduct and his damage to the institutions we hold most 
dear; disgrace him with the most condemnatory language at our command 
and yet refuse

[[Page 2490]]

to even consider his removal from office? By such action we treat the 
loss of public office as the worst fate imaginable, reserved for only 
the most treasonous of villains. Has public office become so precious 
in the United States that we treat it as a divine right? Actually, by 
such treatment we cheapen it.
  At a time when all of our institutions are under assault, when the 
Presidency has been diminished and the Congress is viewed with 
scepticism, our Judiciary and our court system have remarkably 
maintained the public's confidence. Now the President's actions are 
known to every school child in America. And in the midst of these 
partisan battles, many people still think this matter is just ``lying 
about sex.'' But little by little, there will be a growing appreciation 
that it is about much more than that. And in years to come, in every 
court house in every town in America, juries, judges, and litigants 
will have the President's actions as a bench mark against which to 
measure any attempted subversion of the judicial process. The notion 
that anyone, no matter how powerless, can get equal justice will be 
seen by some as a farce. And our rule of law--the principle that many 
other countries still dream about--the principle that sets us apart, 
will have been severely damaged. If this does not constitute damage to 
our government and our society, I cannot imagine what does. And for 
that he should be convicted.
  Mr. MOYNIHAN. Mr. Chief Justice, Senators, I speak to the matter of 
prudence. Charles L. Black, Jr. begins his masterful account 
Impeachment: A Handbook with a warning: ``Everyone must shrink from 
this most drastic of measures. . . . [t]his awful step.''
  For it is just that. The drafters of the American Constitution had, 
from England and from Colonial government, fully formed models of what 
a legislature should be, what a judiciary should do. But nowhere on 
earth was there a nation with an elected head of an executive branch of 
government.
  Here they turned to an understanding of governance which marks the 
American Constitution as a signal event in human history--what the 
Framers called ``the new science of politics.'' What we might term the 
intellectual revolution of 1787. The victors in the Revolution could 
agree that no one, or not many, wanted another monarchy in line with 
the long melancholy succession since Rome. Yet given what Madison 
termed ``the fugitive and turbulent existence of . . . ancient 
republics,'' who could dare to suggest that a modern republic could 
hope for anything better?
  Madison could. And why? Because study had produced new knowledge, 
which could now be put to use. This great new claim rested upon a new 
and aggressively more ``realistic'' idea of human nature. Ancient and 
medieval thought and practice were said to have failed disastrously by 
clinging to illusions regarding how men ought to be. Instead, the new 
science would take man as he actually is, would accept as primary in 
his nature the self-interestedness and passion displayed by all men 
everywhere and, precisely on that basis, would work out decent 
political solutions.
  This was a declaration of intellectual independence equal to anything 
asserted in 1776. Until then, with but few exceptions, the whole of 
political thought had turned on ways to inculcate virtue in a small 
class that would govern. But, wrote Madison, ``If men were angels, no 
government would be necessary.'' We would have to work with the 
material at hand. Not pretty, but something more important: 
predictable. Thus, men could be relied upon to be selfish; nay, 
rapacious. Very well: ``Ambition must be made to counteract ambition.'' 
Whereupon we derive the central principle of the Constitution, the 
various devices which in Madison's formulation offset ``by opposite and 
rival interests, the defect of better motives.''
  Impeachment was to be the device whereby the Congress might 
counteract the ``defect of better motives'' in a President. But any 
such behavior needed to be massive and immediately threatening to the 
state for impeachment ever to go forward. Otherwise a quadrennial 
election would serve to restitute wrongs.
  Further, they had a model for this process in the impeachment of 
Warren Hastings which had begun in April of 1786 with Edmund Burke 
presenting twenty-two ``Articles of Charge of High Crimes and 
Misdemeanors.'' The debate in the House of Commons continued into 1787 
and was reported in the Pennsylvania Gazette.
  Burke was hardly a stranger to the Americans at Philadelphia. He had 
championed the cause of the American colonies during the Revolution, 
and was now doing much the same as regards the governance of British 
India. He accused the Governor General of the highest crimes possible 
against, inter alia, the peoples of India.
  At Philadelphia, the standard for impeachment was discussed only 
once--on Saturday, September 8, 1787. At that point in the convention, 
the draft of the clause in the Constitution pertaining to impeachment 
referred only to ``treason and bribery.''
  Here are Madison's notes of the debate that day:

       The clause referring to the Senate, the trial of 
     impeachments against the President, for Treason & bribery, 
     was taken up.
       Col. MASON. Why is the provision restrained to Treason & 
     bribery only? Treason as defined in the Constitution will not 
     reach many great and dangerous offences. Hastings is not 
     guilty of Treason. Attempts to subvert the Constitution may 
     not be Treason as above defined. As bills of attainder which 
     have saved the British Constitution are forbidden, it is the 
     more necessary to extend: the power of impeachments. He mov.d 
     to add after ``bribery'' ``or maladministration.'' Mr. GERRY 
     seconded him.
       Mr. MADISON So vague a term will be equivalent to a tenure 
     during pleasure of the Senate.
       Mr. GOV.r MORRIS, it will not be put in force & can do no 
     harm. An election of every four years will prevent 
     maladministration.
       Col. MASON withdrew ``maladministration'' & substitutes 
     ``other high crimes & misdemeanors ag.st the State.''

  The convention later replaced the word ``State'' with ``United 
States.'' And on September 12, 1787, the Committee of Style--which had 
no authority to alter the substantive meaning of the text--deleted the 
words ``against the United States.''
  Thus the Framers clearly intended that a President should be removed 
only for offenses ``against the United States.'' It may also be 
concluded that the addition of the words ``high Crimes and 
Misdemeanors'' was intended to extend the impeachment power of Congress 
so as to reach ``great and dangerous offences,'' in Mason's phrase.
  The question now before the Senate is whether the acts that form the 
basis for the Articles of Impeachment against President Clinton rise to 
the level of ``high Crimes and Misdemeanors.'' Which is to say, ``great 
and dangerous offences'' against the United States.
  Over the course of 1998, as we proceeded through various revelations, 
thence to Impeachment and so on to this trial at the outset of 1999, I 
found myself asking whether the assorted charges, even if proven, would 
rise to the standard of ``great and dangerous offences'' against the 
United States. More than one commentator observed that we were dealing 
with ``low crimes.'' Matters that can be tried in criminal courts after 
the President's term expires. Early in his address to the Senate our 
distinguished former colleague Dale Bumpers made this point:

       Colleagues, you have such an awesome responsibility. My 
     good friend, the senior Senator from New York, has said it 
     well. He says a decision to convict holds the potential for 
     destabilizing the Office of the Presidency.

  The former Senator from Arkansas was referring to an article in The 
New York Times on December 25th in which I said this:

       We are an indispensable nation and we have to protect the 
     Presidency as an institution. You could very readily 
     destabilize the Presidency, move to a randomness. That's an 
     institution that has to be stable, not in dispute. Absent 
     that, do not doubt that you could degrade the Republic 
     quickly.

  This could happen if the President were removed from office for less 
than the ``great and dangerous offences'' contemplated by the Framers.
  In Grand Inquests, his splendid and definitive history of the 
impeachments

[[Page 2491]]

of Justice Samuel Chase in 1804, and of President Andrew Johnson in 
1868, Mr. Chief Justice Rehnquist records how narrowly we twice escaped 
from a precedent that would indeed have given us a Presidency (and a 
Court) subject to ``tenure during the pleasure of the Senate.''
  It is startling how seductive this view can be. In 1804 it was the 
Jeffersonians, including Jefferson himself, who saw impeachment as a 
convenient device for getting rid of a Justice of the Supreme Court 
with whose opinions they disagreed. Not many years later Radical 
Republicans sought the same approach to removing a President with whom 
they disagreed over policy matters.
  It could happen again. Impeachment is a power singularly lacking any 
of the checks and balances on which the Framers depended. It is solely 
a power of the Congress. Do not doubt that it could bring radical 
instability to American government.
  We are a blessed nation. But our blessings could be our ruin if we do 
not see how rare they are. There are two nations on earth, the United 
States and Britain, that both existed in 1800 and have not had their 
form of government changed by force since then. There are eight--I 
repeat eight--nations which both existed in 1914 and have not had their 
form of government changed by violence since then: the United States, 
the United Kingdom, Australia, Canada, New Zealand, South Africa, 
Sweden, and Switzerland.
  Senators, do not take the imprudent risk that removing William 
Jefferson Clinton for low crimes will not in the end jeopardize the 
Constitution itself. Censure him by all means. He will be gone in less 
than two years. But do not let his misdeeds put in jeopardy the 
Constitution we are sworn to uphold and defend.
  Mr. GRAHAM. ``We hold these truths to be self-evident, that all men 
are created equal, that they are endowed by their Creator with certain 
unalienable rights, that among these are Life, Liberty, and the pursuit 
of happiness. That to secure these rights, governments are instituted 
among men, deriving their just powers from the consent of the 
governed.''
  Those words were a radical declaration when spoken in 1776. Never 
before had it been asserted that the purpose of government was to 
secure the individual freedoms and liberties of its citizens. To the 
contrary, previous governments existed for the opposite purpose; to 
control the people and suppress their aspirations.
  Eleven years after the Continental Congress approved these 
revolutionary sentiments--and after a violent war which severed the 
colonies' tie to King George III--many of the same individuals who had 
declared independence gathered again in Philadelphia to secure those 
rights so recently and tenuously won.
  The governmental structure they constructed during those weeks in the 
oppressive summer heat was far from simple. But its complexity wasn't 
an accident, or simply a result of the diverse geographical and 
economic interests represented at the Constitutional Convention. As our 
colleague Senator Patrick Moynihan has so aptly observed, our 
government was the first to insert conflict as a conscious element, to 
achieve inefficiency by design.
  Our nation's founders had personal knowledge of and experience with 
English history, in which both Kings and Parliaments had at times 
exerted excessive power over the people. They realized that liberty 
would be enhanced if political power was divided instead of 
centralized.
  Unlike other forms of democracy, where a no confidence vote of the 
national legislature can bring down a government at any time, the 
Framers took great pains to establish a delicate balance of powers--and 
a careful system of checks and balances--between the nation and the 
states and among the executive, legislative, and judicial branches of 
the federal government. They created a structure in which every branch 
would have the strength needed to keep excessive power from flowing 
into the hands of any other branch and thus threatening the liberties 
of the people.
  This determination to achieve balance is reflected in the discussion 
of impeachment and removal from office in Article I, Section 3 of the 
Constitution. By requiring action from both houses of Congress, and 
mandating a two-thirds Senate majority for removal, the Framers 
purposely made it difficult for Congress to undo the results of a 
properly constituted Presidential election--one of the most disruptive 
acts imaginable in a democracy--and relieve a President of his or her 
constitutional duties. The Framers wisely recognized that impeachment, 
when improvidently used, could create an overbearing Congress from the 
ruins of a destabilized and delegitimized Presidency.
  But the Framers' attention to balance was not limited to the 
procedures of impeachment. They also made clear their belief that 
impeachment and removal from office should only be an option in 
situations in which a President becomes a threat to the government and 
the people it serves. We see this in their small number of enumerated 
offenses--Treason, Bribery, other High Crimes and Misdemeanors--and in 
their commentary.
  For example, at the Constitutional Convention in 1787, George Mason 
said that the term ``high crimes and misdemeanors'' referred to ``great 
and dangerous offenses'' and ``attempts to subvert the Constitution.''
  Mr. Chief Justice, the President's self-indulgent actions were 
immoral. Disgraceful. Reprehensible. History should--and, I suspect, 
will--judge that William Jefferson Clinton dishonored himself and the 
highest office in our American democracy.
  But despite their disreputable nature, President Clinton's actions 
should not result in his conviction and removal from office. After 
careful objective study of each article presented by the House of 
Representatives, I have concluded that the charges against the 
President do not meet the high constitutional standards established by 
the Framers. Removal of this President on the grounds established by 
the House Managers would upset the delicate balance of powers so 
meticulously established 212 years ago.
  Mr. Chief Justice, the Framers set high standards for removal because 
they understood that the office of the Presidency would be held by 
imperfect human beings. They assembled a government that could 
withstand personal failings.
  We should be outraged that William Jefferson Clinton's personal 
failings debased himself and his office. But they did not cause 
permanent injury to the proper functioning of our government. He did 
not upset the constitutional balance of powers.
  I hope that the Chief Justice, my colleagues, and the American people 
will not misinterpret my comments. While it has not been proven that 
President William Jefferson Clinton committed the high crimes and 
misdemeanors required for removal from office, he is not above the law. 
His acquittal in this impeachment trial is not exoneration.
  The framers made this clear in Article I of the Constitution. They 
established that an impeached President, even if convicted and removed 
from office, would still ``be liable and subject to Indictment, Trial, 
Judgement, and Punishment, according to law.'' When this President 
leaves office, he could face sanction or conviction for his actions.
  Mr. Chief Justice, during the questioning phase of this trial, I 
sought assurances from the President, through White House Counsel Mr. 
Charles Ruff, that he would not attempt to circumvent this judicial 
process by seeking a pardon for his actions. Counsel Ruff responded as 
follows:

       I have stated formally on behalf of the President in 
     response to a very specific question by the House Judiciary 
     Committee that he would not, and, indeed, we have said in 
     this Chamber, and we have said in other places, that the 
     President is subject to the rule of law like any other 
     citizen and would continue to be on January 21, 2001, and 
     that he would submit himself to whatever law and whatever 
     prosecution the law would impose on him. He is prepared to 
     defend himself in that forum at any time following the end of 
     his tenure. And I committed on his behalf, and I have no 
     doubt that he would so state

[[Page 2492]]

     himself, that he would not seek or accept a pardon.

  I take Counsel Mr. Charles Ruff at his words. Once the President 
leaves office, he will be subject to the same prosecutorial and 
judicial review that all Americans face.
  Mr. Chief Justice, now that we are at the end of this divisive and 
unpleasant experience, what have we learned?
  We have learned that the Constitution works. The Framers made it 
clear that the President should only be impeached and removed from 
office in cases where he becomes a threat to the government and the 
governed. The President's acquittal will uphold the sanctity of the 
office and prevent a weakening of the balance of powers that protects 
our individual rights and liberties.
  We have reaffirmed the principle that no man is above the law. While 
I believe that the President is not guilty of high crimes and 
misdemeanors in this court of impeachment, he will be subject to legal 
sanction in other forums when he becomes a private citizen.
  Mr. Chief Justice, the President's misdeeds will affect his standing 
in history. But they do not justify the first removal of a President of 
the United States from the office to which he was elected by the 
American people. When my name is called on the roll, I will vote ``not 
guilty'' on both articles of impeachment.
  Mr. ALLARD. As we all know, this impeachment trial has been a 
difficult process for the Senate and for our nation.
  As this trial draws to a close each of us has the solemn duty of 
voting our conscience according to the dictates of the Constitution. I 
do not take this responsibility lightly.
  For me, the vote in this trial will be the second most important of 
my Congressional career. The only other vote to rank higher was my vote 
to authorize the Gulf War and thereby send American soldiers into 
combat.
  My ultimate goal as we moved into this process was to maintain 
precedent and not shatter a very thoughtful process laid out in the 
Constitution and within Senate rules.
  At the start of this Senate impeachment trial I took an oath to do 
impartial justice according to the Constitution and laws. I worked hard 
to adhere to that oath, and I pray that I have kept that oath.
  This is particularly important to me since much of my thinking in 
this case centers on my conclusion that the President has violated his 
oath of office.
  I have determined to base my decision on the facts of the case, not 
the polls, the performance of the economy, the President's popularity 
or where he is in his term of office.
  Finally, I have felt that if any of the parts of an article 
constitute grounds for impeachment, then an affirmative vote on the 
article is warranted.
  While the Senate is clearly divided on conviction and removal, one 
thing we have all learned is the importance of the Constitution.
  We may be separated by political party or ideology, but we are united 
in our belief in the Constitution as the governing charter of our 
republic.
  Presidents come and go, and Senators come and go. The Constitution 
remains. It is the foundation of our political system.
  The Constitution is what preserves the rule of law, and guarantees 
that we remain a nation of laws, not of men.
  And, as we have all learned, in the impeachment and trial of a 
President, the Constitution is the document that directs how we shall 
proceed as members of the Congress.
  Some have argued that this trial has divided America. In the short 
run, yes. But in the long run, it has united us and made us stronger.
  We are stronger because we have once again demonstrated that we 
determine who shall lead this nation by democratic means, not by force 
of arms.
  During the past month, I have listened to the evidence and I have 
weighed it carefully. It is now time for me to cast my vote and to 
explain my reasoning to my colleagues and to my constituents.
  We have before us two articles of Impeachment. The first deals with 
perjury, the second with obstruction of justice.
  The first article alleges that the President violated his 
Constitutional oath and his August 17, 1998 sworn oath to tell the 
truth before a federal grand jury.
  He did so by willfully providing perjurious, false and misleading 
testimony in one or more of the following: (1) the nature and details 
of his relationship with a subordinate government employee; (2) prior 
perjurious, false and misleading testimony he gave in a Federal civil 
rights action brought against him; (3) prior false and misleading 
statements he allowed his attorney to make to a Federal judge in that 
civil rights action; and (4) his corrupt efforts to influence the 
testimony of witnesses and to impede the discovery of evidence in that 
civil rights action.
  In my view the House managers demonstrated that at least three of the 
four provisions are true. The physical evidence is there, and the 
testimony supports that position.
  I realize that with enough lawyers, one can certainly cloud things, 
and confuse and distract, but I believe the facts speak for themselves.
  To me, once you cut through all the legal details and hours and hours 
of argument, this case is very clear. The President lied under oath. He 
lied not once, but repeatedly.
  On this article, the only question for me is whether it rises to the 
level of an impeachable offense. I believe that it does. And this has 
certainly been the prior view of the Senate since it has on several 
occasions convicted and removed Federal judges for perjury.
  Most recently in 1989, when Federal District Judge Nixon was 
convicted and removed from office for ``knowingly and contrary to his 
oath mak[ing] a material false or misleading statement to a grand 
jury.''
  Here the judge's violation of the oath ``to tell the truth, the whole 
truth, and nothing but the truth'' was deemed an impeachable offense. I 
simply cannot justify a different standard for the President.
  Some have argued that the standard for him should be lower because he 
is elected by the people, while federal judges are appointed by the 
President and confirmed by the U.S. Senate to serve for life. While I 
respect those who hold this view, I cannot agree with it.
  I hold the President to a higher standard because he is the chief law 
enforcement official of the nation. If he is above the law, then we 
have a double standard; one for the powerful, and one for the rest.
  Now let me address the second article. The charge is that the 
President violated his Constitutional oath in that he prevented, 
obstructed, and impeded the administration of justice.
  Obstruction of justice is clearly an impeachable offense. History and 
prior practice support this view, and it seems that many members of 
this body agree that obstruction does warrant removal from office.
  The question then is whether the House managers have demonstrated 
obstruction of justice. I believe that they have.
  When we review the witness depositions of Monica Lewinsky, Vernon 
Jordan, and Sidney Blumenthal, we compare those with the depositions of 
the President, and when we review all the evidence gathered and 
presented by the House managers, and by the independent counsel and the 
grand jury, there are at least four areas of obstruction by the 
President.
  These relate to the encouraging of a false affidavit, the concealment 
of gifts, the assistance in employment, and the attempt to refresh the 
memory of his secretary Betty Currie which done a second time several 
days later is pure and simple trying to influence her testimony.
  While we may never know with absolute certainty what occurred, the 
evidence is overwhelming that the President took numerous actions 
designed to impede the administration of justice.
  I am also of the view that if the President committed perjury, then 
he obstructed justice. Perjury is a form of obstruction of justice.

[[Page 2493]]

  I will therefore vote for conviction on both articles. I don't 
believe I will be voting to undo an election. We have a process of 
succession to the Presidency which maintains control in the Vice 
President of the same party with the same agenda.
  Let me now explain why I feel conviction is so important in this 
case. It has to do with the role of the oath in our society. This is 
why the President's removal is necessary to protect the republic.
  When I was sworn in as a United States Senator I took the following 
oath to uphold the Constitution as did each one of you:

       I do solemnly swear that I will support and defend the 
     Constitution of the United States against all enemies, 
     foreign and domestic; that I will bear true faith and 
     allegiance to the same; that I take this obligation freely, 
     without any mental reservation or purpose of evasion, and 
     that I will well and faithfully discharge the duties of the 
     office on which I am about to enter. So help me God.

  I took the same oath on three occasions when I served in the U.S. 
House of Representatives. The President takes a similar oath when he 
enters office:

       I do solemnly swear that I will faithfully execute the 
     Office of President of the United States, and will to the 
     best of my ability, preserve, protect and defend the 
     Constitution of the United States.

  Both of these oaths are required by the Constitution.
  Article VI of the Constitution requires that all Senators, 
Representatives, Members of the State Legislatures, and all executive 
and judicial Officers of the United States and the States shall be 
bound by oath or affirmation to support the Constitution. The oath of 
office lies at the center of this impeachment debate.
  As George Washington stated in his Second Inaugural Address on March 
4, 1793:

       Previous to the execution of any official act of the 
     President the Constitution requires an oath of office. This 
     oath I am now about to take, and in your presence: That if it 
     shall be found during my administration of the Government I 
     have in any instance violated willingly or knowingly the 
     injunctions thereof, I may (besides incurring constitutional 
     punishment) be subject to the upbraidings of all who are now 
     witnesses of the present solemn ceremony.

  The sworn oath is central not only to our Constitution, but also to 
the administration of justice. Our legal system would not function 
without it.
  Witnesses in trials swear under oath to ``tell the truth, the whole 
truth, and nothing but the truth.''
  Similarly, parties in civil lawsuits answer written questions or 
``interrogatories'' put to them by their opponents. All answers are 
given under penalty of perjury. The answering party must sign a 
statement attesting to the truthfulness of the answers.
  Testimony before a federal grand jury is given under oath, with the 
witness swearing to ``tell the truth, the whole truth, and nothing but 
the truth.'' And the citizens who sit on a grand jury take an oath to 
seek the truth.
  The Federal Rules of Evidence make reference to the importance of the 
oath in our judicial system.
  Rule 603 states that the oath is ``calculated to awaken the witness' 
conscience and impress the witness' mind with the duty'' to tell the 
truth.
  The Supreme Court has commented in a number of cases on the question 
of perjury. In the 1975 case of United States v. Mandujano the Court 
opinion noted:

       In this constitutional process of securing a witness' 
     testimony, perjury simply has no place whatever. Perjured 
     testimony is an obvious and flagrant affront to the basic 
     concepts of judicial proceedings. Effective restraints 
     against this type of egregious offense are therefore 
     imperative.

  In the much earlier 1937 case of United States v. Norris the Court 
observed:

       There is occasional misunderstanding to the effect that 
     perjury is somehow distinct from ``obstruction of justice.'' 
     While the crimes are distinct, they are in fact variations on 
     a single theme: preventing a court, the parties, and the 
     public from discovering the truth. Perjury, subornation of 
     perjury, concealment of subpoenaed documents, and witness 
     tampering are all forms of obstruction of justice.

  As the House prosecutors have argued, the principle of ``Equal 
Justice Under Law'' is at the very heart of our legal system.
  In order to survive it requires not only an impartial judiciary and 
an ethical bar, but also a sacred oath. Without the sanctity of the 
oath, ``Equal Justice Under Law'' cannot be guaranteed.
  In addition to our legal system, other sectors of our society rely on 
oaths to ensure truthfulness and uphold values.
  At a very early age we frequently ask our young people to take an 
oath: The Boy Scout Oath is as follows:

     On my honor I will do my best
     To do my duty to God and my country
     and to obey the Scout Law;
     To help other people at all times;
     To keep myself physically strong,
     mentally awake, and morally straight.

  And the Girl Scout Promise:

     On my honor, I will try:
     To serve God and my country,
     To help people at all times,
     And to live by the Girl Scout Law.

  Members of our armed forces take the following oath of enlistment:

       I do solemnly swear that I will support and defend the 
     Constitution of the United States against all enemies, 
     foreign and domestic; that I will bear true faith and 
     allegiance to the same; and that I will obey the orders of 
     the President of the United States and the orders of the 
     officers appointed over me, according to regulations and the 
     Code of Military Justice. So help me God.

  Police officers, local officials and members of many civic 
organizations take an oath.
  What is the purpose of an oath, and why do we rely on an oath in so 
many sectors of our society?
  The oath in legal proceedings is designed to ensure truthfulness.
  The oath taken by public officials and the military is designed to 
uphold the Constitution and preserve the rule of law.
  The oath taken by scouts and members of civic organizations is 
designed to encourage values and good citizenship.
  A violation of these oaths is taken seriously, and is often punished 
under the law. Why? To protect the organization, to protect the 
government, to protect the republic.
  The President's oath is the most important oath any person takes in 
our Constitutional system. If that oath can be ignored it will set a 
very damaging precedent for our society.
  Throughout this impeachment process there have been many proposals 
concerning the best means of resolution.
  At each turn however, Members of the Congress have ultimately 
recognized that the appropriate path to take is the path laid out in 
the Constitution. That path was a full trial in the U.S. Senate.
  I am proud to have been among those who argued for a trial.
  Whatever the outcome, I will leave this process confident that the 
system has worked. While I may disagree with the final vote, I will 
respect that vote and I will urge that we move forward united and 
determined to do the people's business.
  Mr. McCONNELL. Mr. Chief Justice, as the senior Senator from 
Kentucky, it is my distinct privilege today to rise and speak at the 
desk formerly occupied by one of the greatest Senators in the history 
of our country and the greatest Senator from the commonwealth of 
Kentucky: Henry Clay.
  Henry Clay is best remembered for two things: (1) the Compromise of 
1850, and (2) a famous statement he made after being told that 
advocating the Compromise of 1850 would doom his chances for the 
presidency. At that critical moment Clay replied: ``I had rather be 
right than be President.''
  In many respects, William Jefferson Clinton had a similar choice over 
the past several months. He could do the right thing. Or he could cling 
to his Presidency--regardless of the costs and regardless of the 
consequences. Consequences to his family, to his friends, to his aides, 
to his Cabinet, and, most importantly, to his country.
  Time after time, the President came to a fork in the road. Time after 
time, he had the opportunity to choose the noble and honorable path. 
Time after time, he chose the path of lies and lawlessness--for the 
simple reason that he did not want to endanger his hold on public 
office.

[[Page 2494]]

  Nowhere is the President's cold, calculated choice more clear than in 
the private conversation he had with his confidant and long-time 
advisor, Dick Morris, just after he raised his right hand to God and 
testified under oath in a civil rights lawsuit that he had not had any 
sexual relations with a young intern named Monica Lewinsky.
  After that critical denial, the President did what he does best: he 
put his finger to the wind to determine which path he should take. He 
asked Mr. Morris to conduct a poll to determine whether the American 
people would forgive him for adultery, for perjury, and for obstruction 
of justice. Morris came back with bad news.
  The public, in Morris's words was ``just not ready for it.'' They 
would forgive him for adultery, but not for perjury and obstruction of 
justice.
  The President then faced a fundamental choice. He could tell the 
truth--and admit that he perjured himself in the Jones suit. Or he 
could cling to public office--and deny, delay and obstruct.
  The choice for President Clinton was clear. He told Morris: ``Well, 
we just have to win.''
  And, thus the course was charted. The President would seek to win at 
any cost. If it meant lying to the American people. If it meant lying 
to his Cabinet. If it meant lying to a federal grand jury. If it meant 
tampering with witnesses and obstructing justice. If it meant falsely 
branding a young woman with the scarlet labels of liar and ``stalker.'' 
The name of the game was winning. Winning at any cost.
  Based on the evidence before the Senate, I want to walk you down the 
road that Bill Clinton has traveled these past several months. That 
twisted, tortured road that he has forced the American people and their 
government to plod along--for what seems to many of us like an 
eternity.


       Crossroads #1: An Illicit Relationship with a Young Intern

  The first fork in the President's road came on November 15, 1995, 
when he met a young, White House intern named Monica Lewinsky. He could 
be her President. He could be her boss. He could even be her friend. 
Or, he could choose to be in a relationship with her that was clearly 
inappropriate.
  The President chose the wrong path. As we heard Ms. Lewinsky testify, 
on the day of their first meeting, which also happened to be the day of 
their first sexual encounter, President Clinton looked at Ms. 
Lewinsky's intern pass, tugged on it and said, ``This is going to be a 
problem.''
  But the President persisted down that problematic path. He had 
approximately 10 more sexual encounters with Ms. Lewinsky over the next 
21 months.
  It is important, however, to note that had the President stopped 
there, we would not be here. At that point, the President's defenders 
could have credibly argued, ``it's a private matter; it's just about 
sex.''
  But, Bill Clinton didn't stop there.


            Crossroads #2: A Job and an Affidavit and Gifts

  In December of 1997, the President came to another fork. At that 
time, he learned the following critical facts:
  1. Ms. Lewinsky had been placed on the witness list in the Jones 
case;
  2. Judge Susan Webber Wright had ordered the President to provide 
information concerning any government employee with whom he had engaged 
in sexual activity; and
  3. Ms. Lewinsky had been served with a subpoena and ordered to 
produce any gifts she had received from the President.
  At this point, the President had a choice. He could tell Ms. Lewinsky 
to obey the law, tell the truth, and turn over the gifts. Or, he could 
not.
  Again, President Clinton chose the path of lies and deceit. Let's 
again, hear this account from Ms. Lewinsky:

       ``[I]t wasn't as if the President called me and said, ``You 
     know, Monica, you're on the witness list, this is going to be 
     really hard for us, we're going to have to tell the truth . . 
     . And by him not calling me and saying that, you know, I knew 
     what that meant. . . .
       [A]s we had on every other occasion and every other 
     instance of this relationship, we would deny it.''

  The evidence indicates that the President was not interested in the 
truth, but rather, was only interested in getting Ms. Lewinsky to sign 
a false affidavit and getting her a job in New York where, from the 
President's way of thinking, she was less apt to be contacted by the 
Jones lawyers.
  I must say that I am baffled at how the President of the United 
States--the leader of the free world--was intimately involved in both 
of these efforts. The evidence indisputably establishes that the 
President worked with his close friend Vernon Jordan to secure: (1) a 
job offer for Ms. Lewinsky in New York, and (2) a lawyer for Ms. 
Lewinsky to prepare and file her false affidavit. As Mr. Jordan's 
testimony made clear, his efforts on behalf of Ms. Lewinsky were at the 
behest of the President.
  The evidence also indicates that during this same time period the 
President participated in a scheme to conceal gifts in the Jones civil 
rights suit. Ms. Lewinsky's testimony is clear that she met with the 
President on December 28 and suggested to him that she could ``put away 
or maybe give to Betty or give to someone the gifts[.]'' Ms. Lewinsky 
further testified that later that same day the President's loyal 
secretary, Betty Currie, initiated a call to her to pick up the gifts. 
I find Ms. Lewinsky's testimony to be credible. Moreover, it is 
corroborated by Ms. Currie's cell phone record.
  And, of course, the President didn't stop there.


       Crossroads #3: False Statements in a Civil Rights Lawsuit

  The President came to another fork in the road where he had to decide 
whether to testify truthfully under oath regarding his relationship 
with Ms. Lewinsky. And, again, the President chose the path of lies and 
deceit.
  He walked into the deposition room, raised his right hand, swore to 
tell the truth, the whole truth, and nothing but the truth, and then 
proceeded to give false statements. In a civil case about alleged 
sexual misconduct with a subordinate government employee, the President 
testified under oath that he never had a ``sexual relationship'', a 
``sexual affair'' or ``sexual relations'' with a subordinate government 
employee named Monica Lewinsky.
  But, again, as egregious as those actions were, had the President 
stopped there, we still might not be here.


            Crossroads #4: Tampering with a Loyal Secretary

  The stakes for President Clinton continued to go higher and higher. 
Following his deposition, the President had to decide what to do with 
his loyal secretary, Ms. Betty Currie. And, again, the undisputed 
evidence shows that the President took the path of lies and deceit.
  Contrary to federal obstruction of justice laws and contrary to Judge 
Wright's Protective Order instructing President Clinton ``not to say 
anything whatsoever about the questions . . . asked, the substance of 
the deposition, . . ., [or] any details . . . ,'' President Clinton 
left the deposition, went back to the White House, and called Ms. 
Currie at home to ask her to come to the White House the next day--
which, I might add, was a Sunday.
  At that somewhat surreal Sunday afternoon meeting, the President--in 
violation of Judge Wright's Protective Order--told Ms. Currie that he 
had been asked several questions about Monica Lewinsky at his 
deposition. Then the President--in violation of the federal obstruction 
of justice law--fired off a string of fundamentally declarative 
statements to his secretary.

       ``You were always there when she was there, right? We were 
     never really alone.
       You could see and hear everything.
       Monica came on to me, and I never touched her, right?
       She wanted to have sex with me and I couldn't do that.''

  And, of course, the President didn't stop there. According to Ms. 
Currie, the President again called her into the Oval Office a few days 
later, and again, repeated the same false statements to her that he had 
made under oath in his civil deposition.


Crossroads #5: False Statements to Senior Officials and to the American 
                                 People

  The winding road continued its perilous twists and turns. The 
President next came to a point where he had to decide whether to tell 
the truth to his

[[Page 2495]]

Cabinet, his top aides, and, most importantly, to the American people.
  Again, the President rejected the right path, telling his Cabinet and 
staff that the allegations were untrue. He claimed to his then-Deputy 
Chief of Staff, John Podesta, for example, that he ``never had sex with 
[Ms. Lewinsky] in any way whatsoever.'' Specifically, he told Podesta 
that ``they had not had oral sex.'' And, the President admits in his 
grand jury testimony that he knew that his aides could be called to 
testify before the grand jury. Ultimately, his top aides were called to 
testify, and they repeated his lies.
  And, as everyone in America knows, the President lied to the nation. 
I do not need to recite the defiant, indignant, finger-wagging denial 
that the President gave to 270 million Americans who had placed their 
trust in him as the chief law enforcement officer of this land.
  But, it didn't have to go any further. I think that there's still a 
chance that had the President stopped there at that awful, disgraceful 
moment, we would not be here, today.


           Crossroads #6: False Statements to the Grand Jury

  On August 17, 1998, the President came to the most important 
crossroads. He stood before a federal criminal grand jury--a federal 
criminal grand jury that was trying to determine whether he had 
committed perjury and obstructed justice. He had one last chance to do 
the right thing. He could tell the truth, the whole truth, and nothing 
but the truth to the grand jury. Or, he could commit perjury.
  Again, President Clinton chose the wrong path. During that criminal 
probe, the President admitted to an ``inappropriate'' relationship with 
Ms. Lewinsky, but continued to falsely deny ever having sexual 
relations with her, in the face of corroborating evidence that included 
an undisputed DNA test and the testimony of Ms. Lewinsky and two of her 
therapists.
  The President's strained, persistent, and--in the words of his own 
lawyer--``maddening'' denials of the obvious were blatantly and 
patently false.
  The President also declared under oath to the grand jury that his 
post-deposition coaching of Betty Currie about his relationship with 
Monica Lewinsky was a mere attempt to refresh his ``memory about what 
the facts were.'' This statement is also blatantly and patently false.
  In fact, there is no reasonable interpretation that would make the 
President's statements about coaching Ms. Currie to be true. Ms. Currie 
was not always there. She could not always see and hear everything. She 
could not know whether the President ever touched Ms. Lewinsky. And, 
she did not know whether Ms. Lewinsky ever had sex with the President. 
It is difficult to comprehend how the President could be refreshing his 
own memory through the act of making false statements to a potential 
witness.
  Moreover, it is my opinion that these false statements by the 
President under oath were clearly material. A false and misleading 
denial of a sexual relationship with a subordinate government employee 
and a false and misleading denial of tampering with a potential witness 
goes to the very heart of whether the President obstructed justice or 
committed perjury.
  Based on the evidence in the record, I am firmly convinced that the 
President has committed both perjury and obstruction of justice. He 
lied to the grand jury about the nature of his relationship with Ms. 
Lewinsky. He lied to the grand jury about coaching his loyal secretary, 
Betty Currie. He obstructed justice by encouraging Ms. Lewinsky to give 
false testimony, by participating in a scheme to conceal gifts that 
were subpoenaed, by tampering with his secretary on two occasions, and 
by lying to top aides that he knew could be called to testify before 
the grand jury.


                      High Crimes and Misdemeanors

  The Senate's inquiry, however, does not end there. We must decide 
whether perjury and obstruction of justice are high crimes and 
misdemeanors. Based on the Constitution, the law, and the clear Senate 
precedent, I conclude that these offenses are high crimes and 
misdemeanors.


                            Senate Precedent

  First, Senate precedent establishes that false statements under oath 
by a public official are high crimes and misdemeanors. In 1986, I sat 
on the impeachment committee that heard the evidence against Judge 
Harry Claiborne. After hearing the evidence, I, along with an 
overwhelming number of my colleagues, concluded that Judge Claiborne 
had made false statements under the pains and penalties of perjury by 
failing to disclose certain amounts of income on his tax forms. The 
Senate--understanding the gravity of a public official making false 
statements under oath--voted to remove Judge Claiborne from office.
  In 1989, the Senate held impeachment trials against Judge Hastings 
and Judge Nixon--both of whom had been accused of making false 
statements under oath. In Judge Nixon's case, the false statements were 
made directly to a criminal grand jury. The Senate--again understanding 
the gravity of a public official, who has sworn to uphold the laws, 
violating those very laws by lying under oath--voted to remove Judge 
Hastings and Judge Nixon from office.
  My colleagues on both sides of the aisle had no hesitation about 
removing these federal officials for making false statements under 
oath. As Senator Herb Kohl explained:

       ``One might argue, as Judge Nixon does, that his false 
     statements were not material. . . . But Judge Nixon took an 
     oath to tell the truth and the whole truth. As a grand jury 
     witness, it was not for him to decide what would be material. 
     That was for the grand jury to decide. . . .
       So I am going to vote `guilty' on articles I and II. Judge 
     Nixon lied to the grand jury. He misled the grand jury. These 
     acts are criminal and warrant impeachment.''

  I think Senator Kohl's statements accurately reflect the sentiment of 
the 89 Senators who voted to convict Judge Nixon for lying to a federal 
grand jury. And, I might add, one of those senators voting to remove 
Judge Nixon for perjury was then-Senator, now-Vice President Al Gore.
  Of those 89 Senators, 48 of us are still here in this distinguished 
body. Will we send the same message about the corrosive impact of 
perjury on our legal system or will we simply lower our standards for 
the nation's chief law enforcement officer?
     Constitution and Federal Law
  Second, Article II, Section 4 of the Constitution plainly sets forth 
that bribery is a high crime and misdemeanor, and our federal laws tell 
us clearly that perjury and obstruction of justice are equivalent 
offenses to bribery. In fact, the federal sentencing guidelines 
actually mandate a harsher punishment for perjury than for bribery and 
a harsher punishment for obstruction of justice than for bribery. So, I 
am completely and utterly perplexed by those who argue that perjury and 
obstruction of justice are not high crimes and misdemeanors.
  If federal law mandates a harsher penalty for perjury and obstruction 
of justice, how can this Senate--who drafted, debated, and passed those 
federal laws--now argue that perjury and obstruction of justice are 
lesser offenses than bribery?
  Listen to the Supreme Court's declaration: ``[f]alse testimony in a 
formal proceeding is intolerable.'' ABF Freight System v. NLRB, 510 
U.S. 317, 323 (1994). Moreover, the high Court has labeled perjury as 
an ``egregious offense,'' United States v. Mandujano, 425 U.S. 564, 576 
(1976), calling it ``an obvious and flagrant affront to the basic 
concepts of judicial proceedings.'' Id.
  Even the President's own Justice Department understands that our 
nation of laws cannot tolerate perjury and obstruction of justice. 
President Clinton and his Justice Department have prosecuted 
approximately 600 cases of perjury since he came to office. And today--
as we debate whether perjury is a serious offense--over 100 people are 
locked behind bars in federal prison for committing the criminal act of 
perjury.
  Perjury and obstruction hammer away at the twin pillars of our legal 
system: truth and justice. Every witness in every deposition is 
required to raise his or her right hand and swear to tell the truth, 
the whole truth, and nothing but the truth, so help them

[[Page 2496]]

God. Every witness in every grand jury proceeding and in every trial is 
required to raise his or her right hand and swear to tell the truth. 
Every official declaration filed with the court is stamped with the 
express affirmation that the declaration is true. In the words of our 
nation's first Supreme Court Chief Justice, John Jay: ``if oaths should 
cease to be held sacred, our dearest and most valuable rights would 
become insecure.''
  The facts clearly show that the President did not value the sacred 
oath. He was interested in saving his hide, not truth and justice. I 
submit to my colleagues that if we have no truth and we have no 
justice, then we have no nation of laws. No public official, no 
president, no man or no woman is important enough to sacrifice the 
founding principles of our legal system.
  On this point, I am proud to quote Justice Louis Brandeis--a native 
of my hometown of Louisville and the man for whom the University of 
Louisville Law school is named:

       ``In a government of laws, existence of the government will 
     be imperiled if it fails to observe the laws scrupulously. 
     Our government is the potent, the omnipresent teacher. For 
     good or for ill, it teaches the whole people by its example. 
     Crime is contagious. If the government becomes a lawbreaker; 
     it breeds contempt for law; it invites every man to become a 
     law unto himself; it invites anarchy.''

  William Jefferson Clinton is not and should not be a law unto 
himself.


                Crossroads for the United States Senate

  President Clinton's decisions have led the United States Senate to 
its own critical crossroads. And, now we must choose our path.
  We can do the right thing. Or we can lower our standards and allow 
Bill Clinton to cling to public office--regardless of the consequences 
to our nation, to our system of justice, and to our future generations.
  More than 150 years ago, Alexis de Tocqueville wisely observed that 
``man rarely retains his customary level in very critical 
circumstances; he rises above or sinks below his usual condition, and 
the same thing is true of nations.''
  So what will we do this day? Will we rise above or will we sink 
below? Will we condone this President's conduct or will we condemn it? 
Will we change our standards or will we change our President?


                  An Earlier Crossroads for the Senate

  As most of you will recall, the Senate faced a similar choice just a 
few short years ago. It was one of our own who had clearly crossed the 
line. It was one of our own who had engaged in sexual misconduct and 
obstruction of justice.
  He, like President Clinton, was an intelligent and accomplished man. 
Senator Carol Moseley-Braun called him ``brilliant'' and said he was a 
man who ``ha[d] certainly been fair.'' But, that brilliant and fair man 
had crossed the line.
  At that critical moment in Senate history, we could have taken the 
wrong path and called it a private matter, saying ``it's just about 
sex.'' But, my friend, Senator Dianne Feinstein was right when she 
said: ``This is not private, personal conduct. This is conduct that 
took place in public service, and many of the people involved are 
themselves Federal employees.''
  At that moment, the Senate could have said, ``He lied about his 
conduct to everybody, so lying in an official proceeding is ok.'' Or, 
we could have said, ``He was covering it up before the investigation, 
so it's irrelevant and immaterial that he's covering it up during the 
investigation.''
  The Senate could have said, ``We can't overturn a federal election. 
After all, he'll be out of office in a few years.'' Or: ``He may be 
prosecuted in the courts, so there's no reason for us to act.''
  And, finally, the United States Senate could have defended its own 
member by arguing that, ``A United States Senator should be held to a 
lower standard than others, not a higher standard. After all, there are 
only 100 U.S. Senators in the country. Any one of them is just too 
precious to lose.''
  But, we didn't say any of those things. Those doubletalking defenses 
were reserved exclusively for President Clinton.
  During the Packwood debate, we made the tough choice. And, I have to 
say, that decision was one of the most difficult things I have ever had 
to do in my career in public service. To recommend expelling from the 
United States Senate a colleague, a member of my own party, and most 
importantly, a friend with whom I had served in the Senate for over a 
decade.
  We sent a clear message to the nation that no man is above the law. 
That no man is so important to the well-being of our strong and 
prosperous nation that we have to compromise the fundamental, founding 
principles of truth and justice. We chose to rise above, not sink 
below. Rather than change our standards, we changed our Senator.
  Let me also make a political point, here. We Republicans were aware 
during the Packwood debate that we would likely lose that Senate seat 
if Senator Packwood was removed from office. So, we had a choice: 
Retain the Senate seat or retain our honor. We chose honor, and never 
looked back.
  I think that the United States Senate has a clear choice today. Do we 
want to retain President Clinton in office, or do we want to retain our 
honor, our principle, and our moral authority?
  For me, and for many members in my impeachment-fatigued party, I 
choose honor.


                             Losing Balance

  I want to close my remarks today with an insightful and fascinating 
statement from Richard Nixon. A few years after his tragic downfall, 
President Nixon explained:

       It's a piece of cake until you get to the top. You find you 
     can't stop playing the game the way you've always played it. 
     So you are lean and mean and resourceful, and you continue to 
     walk on the edge of the precipice, because over the years, 
     you have become fascinated by how closely you can walk 
     without losing your balance.

  Ladies and gentleman of this fine and distinguished body, I submit to 
you that William Jefferson Clinton has lost his balance. He has lost 
his sense of right and wrong. Of truth and justice. And, by doing so, 
he has--to paraphrase Alexander Hamilton in Federalist No. 65--abused 
and violated the trust of the American people.
  Again, let me quote my esteemed colleague, Senator Dianne Feinstein, 
who said just a few months ago: ``my trust in his credibility has been 
badly shattered.''
  Senator Feinstein is not an island on this issue of shattered trust. 
There are many others who have expressed similar sentiments. A recent 
poll confirms what we all know, that is, the American people do not 
trust their Commander-in-Chief. A majority of Americans believe that 
President Clinton has lied to the country and that he will lie to the 
country again.
  The New York Times, which I rarely ever quote, had this to say about 
the President's violation of the public trust:

       ``The American President is a person who sometimes must ask 
     people in the ranks to die for the country. The President is 
     a person who asks people close around him to serve the 
     government for less money than their talents would bring 
     elsewhere. The President sometimes requires that people out 
     in the country sacrifice their dollars or their convenience 
     for national goals. All he is asked to provide in return is 
     trustworthiness, loyalty and judgment. . . . President 
     Clinton has failed that simple test abjectly, not merely with 
     undignified private behavior in a revered place, but with his 
     cavalier response to public concern.''

  In 1829, at his home in Lexington, Kentucky, Henry Clay opined that 
``[g]overnment is a trust, and the officers of the government are 
trustees[.]'' I believe that fundamental principle to be true, and I 
believe that William Jefferson Clinton has abused and violated that 
public trust.
  His cold, calculated actions betrayed the trust vested in him by the 
American people and the high office of the presidency. The President of 
the United States looked 270 million Americans in the eye, and lied--
deliberately and methodically. He took an oath to faithfully execute 
the laws of this nation, and he violated that oath. He pledged to be 
the nation's chief law enforcement officer, and he violated that 
pledge. He took an oath to tell the

[[Page 2497]]

truth, the whole truth, and nothing but the truth, and he willfully and 
repeatedly violated that oath.
  I firmly believe that the evidence establishes beyond a reasonable 
doubt that William Jefferson Clinton made statements to the federal 
grand jury regarding the nature of his relationship with a subordinate 
government employee and the purpose of his post-deposition conversation 
with a loyal secretary that were false, misleading, and perjurious, and 
warrant removal from office. Thus, I find the President guilty under 
Article I.
  I believe with equal conviction that the evidence establishes beyond 
a reasonable doubt that William Jefferson Clinton willfully engaged in 
a deliberate course of conduct designed to delay, impede, cover up, and 
conceal the existence of evidence and testimony relating to a Federal 
civil rights action against him, and that this conduct warrants removal 
from office. Thus, I find the President guilty under Article II.
  Mr. KENNEDY. Every four years, citizens of our country exercise one 
of the most important rights of our democracy--the right to vote for 
the President of the United States. This constitutional privilege is 
valued by all Americans and envied by millions around the world. It 
proves that the will of the majority will prevail, and that power will 
be transferred peacefully through the election process from one 
President to the next, time and again.
  The essence of our democracy is the power of the right to vote. Many 
of our greatest battles in the Senate and the country in recent decades 
have been waged to extend and protect that right.
  I think especially of the Voting Rights Acts, which have been at the 
heart of our civil rights debates. I think of our success in 1970 in 
lowering the voting age to 18, so that young Americans who were old 
enough to fight in the Vietnam War would be old enough to vote about 
that war, which America never should have fought. I think of the 
Supreme Court's great decision on one person, one vote, and our efforts 
in Congress to protect it.
  I also think of the success of democracy in other lands--in Chile and 
Argentina and other nations in our hemisphere--and in Greece, in South 
Africa, and in many other countries.
  The Framers of the Constitution clearly understood the fundamental 
place of the right to vote in the new democracy they were creating. 
They clearly did not intend the Impeachment Clause to nullify the vote 
of the people, except in the most extraordinary cases of great danger 
to the nation.
  The entire history of the debates at the Constitutional Convention 
demonstrates their clear intent to limit impeachment as narrowly as 
possible, to prevent a willful partisan majority in Congress from 
undermining the right to vote and the power of the President the people 
had elected.
  The Framers of the Constitution also made clear that the President 
was not to be subordinate to the Senate or the House of 
Representatives. The new government they created was based on another 
fundamental principle as well--the principle of separation of powers 
among the three coequal branches of government--the Executive Branch, 
the Legislative Branch, and the Judicial Branch. They specifically did 
not create a parliamentary system of government, in which the President 
would serve at the pleasure of Congress.
  In their wisdom, the Framers recognized that in certain extreme 
cases, a narrow exception to the orderly transfer of Presidential power 
through national elections every four years was necessary to protect 
the nation from an abusive President. And so they created the 
impeachment process, by which the President could be removed from 
office by the Senate and the House of Representatives in extreme cases 
where the President had committed ``Treason, Bribery, or other high 
Crimes and Misdemeanors''.
  The Framers of the Constitution made clear that the orderly transfer 
of Presidential power through national elections was to be scrupulously 
followed. They took great care to guarantee that this transfer would 
rarely, if ever, be undermined by the impeachment of the President. 
Removal of the President would come only after the House of 
Representatives--with the sole power to impeach--and the Senate--with 
the sole power to conduct a trial--found that the President had 
committed ``Treason, Bribery, or other high Crimes and Misdemeanors,'' 
a term borrowed from the English impeachment experience.
  Clearly, the Framers intended the House and the Senate to use the 
impeachment power cautiously, and not wield it promiscuously for 
partisan political purposes. Sadly, in this case, Republicans in the 
House of Representatives, in their partisan vendetta against the 
President, have wielded the impeachment power in precisely the way the 
Framers rejected--recklessly and without regard for the Constitution or 
the will of the American people.
  First, Republicans on the House Judiciary Committee essentially 
swallowed the referral of Independent Counsel Kenneth Starr whole, 
without seriously questioning it or calling any witnesses. They used 
the referral as the foundation for Articles of Impeachment which were 
released to the public before the White House counsel had an 
opportunity to complete their testimony before the Committee.
  Why were the House Judiciary Committee and the House of 
Representatives on the fast track to impeachment? Because, as House 
Manager Hyde told the Senate, ``we were operating under time 
constraints which were self-imposed but I promised my colleagues to 
finish it before the end of the year. I didn't want to drag it out.'' 
In the battle between speed and fairness, should speed have prevailed 
over fairness? Clearly not. But the lame duck Republican House of 
Representatives was bent on acting before the last Congress ended, 
fearful that their slimmer majority in the current Congress would not 
approve any articles of impeachment at all.
  In their most blatant attempt of all to stack the deck against the 
President, the House Republican leadership refused to allow a fair vote 
on censure as an alternative to impeachment an alternative that would 
have ended this unseemly charade two months ago. Instead, Members of 
the House were given a single choice--a vote to impeach the President 
or do nothing.
  After their partisan victory in the House of Representatives, the 
House Managers brought their vendetta against the President to the 
Senate. They brought thousands of pages of evidence, containing 22 
statements by Monica Lewinsky, 6 statements by Vernon Jordan, 3 
statements by Sidney Blumenthal, the videotaped deposition of President 
Clinton in the Jones case, and the videotaped record of his appearance 
before the grand jury. Their opening statements attempted to shed the 
most favorable light on the evidence, but it was quickly apparent that 
they had not and could not persuade two-thirds of the Senate to remove 
the President.
  While trying to persuade Senators to convict President Clinton, the 
House Managers argued relentlessly for the opportunity to examine 
witnesses during the trial. The hypocrisy in the position of the House 
Managers on witnesses was obvious. They did not think it was necessary 
to call witnesses in the House proceedings. They demeaned the House by 
their partisan excesses. But they were shameless in their attempt to 
force the Senate to wallow in witnesses.
  Our Republican friends have desperately been trying to produce a two-
thirds majority to remove the President from office. But their efforts 
have succeeded only in turning a serious constitutional process into a 
partisan process that demeaned both the House and the Senate and became 
a painful ordeal for the entire country.
  In pursuing the allegations of perjury and obstruction of justice, 
the House Managers presented an ever changing, constantly shifting list 
of charges to the Senate. Veteran prosecutors testified before the 
House Judiciary Committee that they would never prosecute such a case, 
and that it would be irresponsible for the Senate to attempt to use 
these allegations as a basis to remove the President from office.

[[Page 2498]]

  Some of the allegations of perjury by the House Managers were 
laughable. Clearly, it was not perjury for the President to use the 
phrase ``certain occasions'' to describe the frequency of his contacts 
with Miss Lewinsky, or to use the word ``occasional'' to describe the 
frequency of his telephone conversations with her.
  Even the few allegations of perjury and obstruction of justice that 
are arguably more serious are far from proven beyond a reasonable 
doubt, which is the standard that I believe should be applied by the 
Senate in considering the facts of this case. Indeed, I do not believe 
they were proved by clear and convincing evidence. But even if any such 
allegations were true, they still fall far short of the constitutional 
standard required for impeaching a President and removing him from 
office.
  President Clinton's behavior was wrong. All of us condemn it. None of 
us condones it. He failed to tell the truth about it, and he misled the 
country for many months. But nothing he did rises to the high 
constitutional standard required for impeachment and removal of a 
President from office.
  I believe that conclusion is required by the Constitution. At the 
time of the Constitutional Convention in 1787, the Framers engaged in a 
vigorous debate about the role of the President, the new chief 
executive they were creating. In addition to determining the basic 
powers of the office, many of those at the convention debated whether 
or not impeachment should apply at all to the President. As University 
of Chicago Law School Professor Cass Sunstein told the House Judiciary 
Subcommittee on the Constitution, ``Many of the framers wanted no 
impeachment power whatsoever . . . [t]hey suggested that in a world of 
separation of powers and election of the President, there was no place 
for impeachment. . . . That position was defeated by reference to 
egregious hypotheticals in which the President betrayed the country 
during war or got his office through bribery. Those are the cases that 
persuaded the swing votes that there should be impeachment power.'' In 
the end, the Framers reluctantly agreed that there might be limited 
circumstances in which a President should be removed from office by 
Congress in order to protect the country from great harm, without 
waiting for the next election.
  Once the Framers concluded that the President could be removed by the 
legislature in such cases, they debated the standard for impeachment. 
Nine days before the final Constitution was signed, the impeachment 
provision was limited only to treason and bribery. George Mason then 
argued that the provision was too restrictive, and should be amended to 
include the phrase, ``or maladministration.'' But, vigorous opposition 
came from others who believed that such a vague phrase would give 
Congress too much power to undermine the President. Mason withdrew his 
original proposal and substituted the phrase, ``other high Crimes and 
Misdemeanors against the State''--a phrase well-known from English law.
  The Constitutional Convention adopted the modification by a vote of 
eight states to three--confident that only serious offenses against the 
nation would provide the basis for impeachment. Later, the Committee of 
Style removed the words, ``against the State,'' but because the 
Committee had been instructed not to change the meaning of any 
provision, the impeachment clause should be interpreted as it was 
originally drafted.
  The debate surrounding the Impeachment Clause was significant. By 
first expanding and then narrowing the clause, the Framers clearly 
intended that the President could be removed from office for ``crimes'' 
beyond treason and bribery, but that he could not be removed for 
inefficient administration or administration inconsistent with the 
dominant view in Congress. Impeachment was not to be the illegitimate 
twin of the English vote of ``No Confidence'' under a parliamentary 
system of government. The doctrine of separation of powers was 
paramount. The President was to serve at the pleasure of the people, 
not the pleasure of the Congress, and certainly not at the pleasure of 
a willful partisan majority in the House of Representatives.
  As Charles Black stated in his highly regarded work on impeachment, 
the two specific impeachable offenses--treason and bribery--can help 
identify both the ``ordinary crimes which ought also to be looked upon 
as impeachable offenses, and those serious misdeeds, not ordinary 
crimes, which ought to be looked on as impeachable offenses. . . .'' 
Using treason and bribery as ``the miners' canaries,'' Professor Black 
states that ``high crimes and misdemeanors, in the constitutional 
sense, ought to be held to be those offenses which are rather obviously 
wrong, whether or not `criminal,' and which so seriously threaten the 
order of political society as to make pestilent and dangerous the 
continuance in power of their perpetrator.''
  The distinguished historian, Professor Arthur Schlesinger, told the 
House Judiciary Subcommittee on the Constitution, the ``[e]vidence 
seems to me conclusive that the Founding Fathers saw impeachment as a 
remedy for grave and momentous offenses against the Constitution; 
George Mason said, great crimes, great and dangerous offenses, attempts 
to subvert the Constitution.''
  In addition to Professor Schlesinger, over 430 law professors and 
over 400 historians and constitutional scholars have stated 
emphatically that the allegations against President Clinton do not meet 
the standard set by the Constitution for impeachment. The scholarly 
support for the argument that the charges against President Clinton do 
not rise to the level of impeachable offenses--even if they are true--
is overwhelming, and it cannot be ignored.
  The law professors wrote, ``[i]t goes without saying that lying under 
oath is a very serious offense. But even if the House of 
Representatives had the constitutional authority to impeach for any 
instance of perjury or obstruction of justice, a responsible House 
would not exercise this awesome power on the facts alleged in this 
case.''
  The historians wrote, ``[t]he Framers explicitly reserved 
[impeachment] for high crimes and misdemeanors in the exercise of 
executive power. Impeachment for anything else would, according to 
James Madison, leave the President to serve `during the pleasure of the 
Senate,' thereby mangling the system of checks and balances that is our 
chief safeguard against abuses of power . . . Although we do not 
condone President Clinton's private behavior or his subsequent attempts 
to deceive, the current charges against him depart from what the 
Framers saw as grounds for impeachment.''
  The House Managers apparently made no attempt to obtain scholarly 
support for their opposition. It is a fair inference that they did not 
do so because they knew they could not obtain it.
  The House Managers argue that because the Senate convicted and 
removed three federal judges for making perjurious statements, we must 
now convict and remove the President. But, to determine whether or not 
President Clinton should be removed from office requires the Senate to 
do more than make simplistic analogies to federal judges.
  Removal of the President of the United States and removal of a 
federal judge are vastly different. The President is unique, and his 
role is in no way comparable to the role of the over 900 federal judges 
we have today. The impact on the country of removing one of 900 federal 
judges is infinitesimal, compared to the impact of removing the only 
President we have. And the people elect the President for a specific 
four year term, while federal judges are appointed for life, subject to 
good behavior. These distinctions are obvious, and they make all the 
difference.
  Other precedents also undermine the House Managers' insistence that 
the Senate is bound to remove President Clinton from office. The House 
Judiciary Committee refused on a bipartisan basis to impeach President 
Nixon for deliberately lying under oath to the Internal Revenue 
Service, although he under reported his taxable income by at least 
$796,000. During the 1974 Judiciary Committee debates, many Republican 
and Democratic members of the

[[Page 2499]]

Committee agreed that tax fraud was not the kind of abuse of power that 
impeachment was designed to remedy.
  Finally, the House Managers argue that President Clinton must be 
removed to protect the rule of law and cleanse the office. It is not 
enough, they say, that he can be prosecuted once he leaves office. But 
protecting the rule of law under the Constitution is not the proper 
standard for removal of the President. Before impeaching and convicting 
the President, the Senate must find that he committed ``Treason, 
Bribery, or other high Crimes and Misdemeanors.'' As Professor Laurence 
Tribe testified before the House Judiciary Subcommittee on the 
Constitution, ``[i]f the proposition is that when the President is a 
law breaker, has committed any crime, then the rule of law and the take 
care clause requires that one impeach him, then we have rewritten the 
[impeachment] clause.''
  The Constitution has guided our country well for two centuries. The 
decision we make now goes far beyond this President. As we decide 
whether President Clinton will be removed from office, the future of 
the Presidency and the well-being of our democracy itself are at stake.
  How will history remember this Congress? The Radical Republicans in 
the middle of the 19th century were condemned in the eyes of history 
for using impeachment as a partisan vendetta against President Andrew 
Johnson. And I believe the Radical Republicans at the end of the 20th 
century will be condemned even more severely by history for their 
partisan vendetta against President Clinton.
  The impeachment process was never intended to become a weapon for a 
partisan majority in Congress to attack the President. To do so is a 
violation of the fundamental separation of powers doctrine at the heart 
of the Constitution. It is an invitation to future partisan majorities 
in future Congresses to use the impeachment power to undermine the 
President. It could weaken Republican and Democratic Presidents alike 
for years to come.
  This case is a constitutional travesty. We deplore the conduct of 
President Clinton that led to this yearlong distraction for the nation. 
But we should deplore even more the partisan attempt to abuse the 
Constitution by misusing the impeachment power.
  Ms. COLLINS. Mr. Chief Justice, my colleagues, the issue now before 
the Senate may well be the most significant of our public careers. 
Other than declaring war, it is difficult to imagine a weightier 
decision that could come before us than whether to remove the President 
of the United States from office.
  Our Founders designed impeachment to protect our system of government 
against officials who lose their moorings in the law or who endanger 
our most basic institutions. They designed it neither as a popular 
referendum nor as a mechanism by which--as in parliamentary systems--
the legislature can remove the head of government based on nothing more 
than a policy difference. Instead, this process is a check upon rogue 
chief executives, designed equally to remove the politically popular 
malefactor and to protect the innocent, but unpopular, official. It is 
a vital, but extraordinary, remedy that should neither be shunned out 
of political expediency nor invoked for political gain.
  The question before us is not whether President Clinton's conduct was 
contemptible or utterly unworthy of the great office he holds. It was. 
The question before us is whether the President has committed an 
impeachable offense for which he should be removed from that office.
  The Framers thought carefully about where to vest the ultimate power 
to remove a president. They chose the United States Senate. This was 
not an obvious choice. The power to convict and remove could as easily 
have been assigned to a court of law, where a jury would apply the law 
to the facts in the ordinary way.
  But the Framers gave the power to try impeachments to the Senate. 
They did so because they recognized that an impeachment trial should 
not be an ordinary trial, requiring an ordinary application of law to 
fact. The Framers wanted the Senate to make not only a determination of 
guilt, but also a judgment about what is best for our nation and its 
institutions.
  Throughout this impeachment trial, in order to lessen the ambiguity 
in this process, I have sought to find a way to allow the Senate to 
express its view of the facts we have so carefully considered for the 
past month. The vote we now approach is to convict or acquit. It is a 
blunt instrument that does not allow me to express clearly my belief 
that President Clinton willfully lied to a federal grand jury, and that 
he wrongfully tried to influence testimony and to conceal evidence 
related to Paula Jones' lawsuit.
  As this case has been argued in this chamber, I have become convinced 
that the perjury charges of Article I are not fully substantiated by 
the record. The President's grand jury testimony is replete with lies, 
half-truths, and evasions. But significantly, not all evasion is lying, 
and not all lying is perjury. Even blatantly misleading testimony that 
all fair-minded people would consider dishonest may not actually 
constitute perjury, as the law defines it.
  Time and time again, the attorneys questioning President Clinton 
before the grand jury--perhaps out of a misguided sense of deference--
neglected to pin him down as he gave nonresponsive, evasive, confusing, 
or simply absurd responses. The only remedy for imprecise answers is 
more precise questioning. Unfortunately, this did not occur, and 
consequently, the record is too murky to require the President's 
removal based on Article I.
  The evidence supporting Article II is more convincing. Indeed, the 
case presented by the House Managers proves to my satisfaction that the 
President did, in fact, obstruct justice in Paula Jones' civil rights 
case. While the circumstances surrounding Monica Lewinsky's filing of a 
false affidavit are unclear, there is no doubt in my mind that the 
frantic efforts to find Ms. Lewinsky a job, the retrieval and 
concealment of gifts under the bed of the President's secretary, and, 
most egregious, the President's blatant coaching of Betty Currie--not 
once, but twice--were clear attempts to tamper with witnesses and 
obstruct justice. Indeed, if I were a juror in an ordinary criminal 
case, I might very well vote to convict faced with these facts.
  Nevertheless, I do not think that the President's actions constitute 
a ``high crime'' or ``misdemeanor'' as contemplated by Article II, 
Section 4 of the Constitution. This is, I readily acknowledge, a 
judgment that can neither be made nor explained with anything 
approaching scientific precision. But I can point to two factors that 
influence my conclusion.
  First, obstruction of justice is generally more serious in a criminal 
case, as opposed to a civil case, as it interferes with the effective 
enforcement of our nation's laws and not solely with the adjudication 
of private disputes. Consistent with this conclusion, the vast majority 
of obstruction prosecutions involve underlying criminal actions, and 
the statutory penalties are more severe in the context of criminal 
trials. This is not to suggest for a moment that we should tolerate 
obstruction of justice in civil cases, but only to observe that our 
legal system treats it as a less serious offense.
  Second, I believe that for impeachment purposes, obstruction of 
justice has more ominous implications when the conduct concealed, or 
the method used to conceal it, poses a threat to our governmental 
institutions. Neither occurred in this case.
  Therefore, I will cast my vote not for the current President, but for 
the presidency. I believe that in order to convict, we must conclude 
from the evidence presented to us with no room for doubt that our 
Constitution will be injured and our democracy suffer should the 
President remain in office one moment more.
  In this instance, the claims against the President fail to reach this 
very high standard. Therefore, albeit reluctantly, I will vote to 
acquit William Jefferson Clinton on both counts.
  In voting to acquit the President, I do so with grave misgivings for 
I do not

[[Page 2500]]

mean in any way to exonerate this man. He lied under oath; he sought to 
interfere with the evidence; he tried to influence the testimony of key 
witnesses. And, while it may not be a crime, he exploited a very young, 
star-struck employee whom he then proceeded to smear in an attempt to 
destroy her credibility, her reputation, her life. The President's 
actions were chillingly similar to the White House's campaign to 
discredit Kathleen Willey.
  As much as it troubles me to acquit this President, I cannot do 
otherwise and remain true to my role as a Senator. To remove a 
popularly elected president for the first time in our nation's history 
is an extraordinary action that should be undertaken only when the 
President's misconduct so injures the fabric of democracy that the 
Senate is left with no option but to oust the offender from the office 
the people have entrusted to him.
  President Clinton has written a shameful and permanent chapter of 
American history. He alone is responsible for this year of agony that 
the American people have endured. I do not, however, take solace in the 
prospect of a censure, nor do I take comfort in the possibility that 
the President may be prosecuted for his wrongdoing after he leaves 
office. Rather, I look to the verdict of history to provide the 
ultimate punishment for this president, a verdict that no public 
relations gloss or smear campaign can obscure. As Maine's great poet, 
Henry Wadsworth Longfellow, wrote in 1874, ``Whatever hath been written 
shall remain, nor be erased, nor written o'er again.'' When the history 
of the Clinton presidency is written, every book will begin with the 
fact that William Jefferson Clinton was impeached, and that will be not 
only the ultimate censure but also the final verdict on this sad 
chapter in our nation's history.
  Mr. HARKIN. A few weeks ago, I used a barnyard term that is quite 
known in Iowa to describe what I thought of this case. The longer this 
case has gone on, the more I am convinced this characterization is 
correct.
  This case should never have been brought before the Senate. I think 
it is one of the most blatant partisan actions taken by the House of 
Representatives since Andrew Johnson's case was pushed through by the 
radical Republicans of his time.
  I think it is important for us to take a look at how this case got 
here. One might ask why is it important how it got here?
  Well, if you believe that the end justifies the means, it is probably 
not very important. But if you believe the end doesn't justify the 
means, that those who are charged with enforcing the law cannot break 
the law in order to bring someone to the bar of justice, and if you 
believe the rule of law applies not only to the defendant, the 
President in this case, but also to the prosecutors and those sworn to 
uphold that rule of law, then it is important to look at how the case 
got here.
  First, we have a statute, the independent counsel statute which at 
best I believe is flawed and at worst unworkable which allows someone 
to be targeted without regard to money or time. In fact, it has 
essentially created a fourth branch of Government with no checks or 
balances.
  Again, the conduct, I want to point out, of Ken Starr does not excuse 
the behavior of the President but has everything to do with our 
perspective on the case and how we approach it, how we weigh our 
decision. We are not jurors, we are judges and the supreme Court of 
Impeachment, which has some of the elements of a court of equity. If 
somebody approaches this court, they better do it with clean hands.
  Where the political motivation is so blatant, as it has been in this 
case, I think we in the Senate should have our guard up, not only on 
what the case is about, but how it got here. This is the sort of 
political impeachment case that Madison and Hamilton wanted to avoid, 
and I refer you to Federalist Paper No. 65, and Hamilton warned the 
greatest danger would be ``that the decision will be regulated more by 
the comparative strength of parties than by the real demonstrations of 
innocence or guilt.'' That is why he argued for it to come to the 
Senate and have a two-thirds requirement in order to convict and 
remove.
  So in the beginning, Ken Starr is picked by a three-judge panel to 
investigate Whitewater. Whitewater turns into Travelgate. Travelgate 
turns into Filegate, and then one wonders, how did Monica Lewinsky ever 
drop in on this?
  If we look back, when Ken Starr was a private attorney, in 1994, he 
had dealings with Paula Jones' attorneys in terms of her then-pending 
lawsuit. So he had prior involvement himself with the Paula Jones case.
  So the Paula Jones case proceeds forward. And in October of 1997, an 
entity called the Rutherford Institute, funded by conservative forces 
in the United States, found some new attorneys for Paula Jones and 
became heavily involved in the case.
  Now some time around that time, Linda Tripp, with whom Monica 
Lewinsky had shared her most intimate details of her involvement with 
the President, begins talking with these attorneys. That is sort of the 
status of the case as of December 1997.
  And here I ask unanimous consent to have printed an article from the 
New York Times, dated January 24, which more or less documents this.
  There being no objection, the article was ordered to be printed in 
the Record, as follows:

                [From the New York Times, Jan. 24, 1999]

  Quietly, Team of Lawyers Who Disliked Clinton Kept Jones Case Alive

                (By Don Van Natta Jr. and Jill Abramson)

       Washington.--This time last year, Hillary Rodham Clinton 
     described, in a now-famous appearance on the NBC News program 
     ``Today,'' how a ``vast right-wing conspiracy'' was trying to 
     destroy her husband's Presidency.
       As it turns out, some of the most serious damage to Bill 
     Clinton's Presidency came not from his high-profile political 
     enemies but from a small secret clique of lawyers in their 
     30's who share a deep antipathy toward the President, 
     according to nearly two dozen interviews and recently filed 
     court documents.
       While cloaking their roles, the lawyers were deeply 
     involved--to an extent not previously known--for nearly five 
     years in the Paula Jones sexual misconduct lawsuit. They then 
     helped push the case into the criminal arena and into the 
     office of the independent counsel, Kenneth W. Starr.
       The group's leader was Jerome M. Marcus, a 39-year-old 
     associate at the Philadelphia law firm of Berger & Montague, 
     whose partners are major contributors to the Democratic 
     Party.
       Although Ms. Jones never met him or knew he had worked on 
     her behalf, Marcus drafted legal documents and was involved 
     in many of the important strategic decisions in her lawsuit, 
     according to billing records and interviews with other 
     lawyers who worked on the case. As much as any of Ms. Jones's 
     attorneys of record, Marcus helped keep Ms. Jones's case 
     alive in the courts.
       Marcus recruited others to assist his efforts, including 
     several friends from the University of Chicago Law School. 
     One of those who was approached, Paul Rosenzweig, briefly 
     considered doing work for Ms. Jones in 1994, according to 
     billing records and interviews, but decided not to. In 
     November 1997, Rosenzweig joined Starr's office, where he and 
     Marcus had several telephone conversations about the Jones 
     case.
       It was Rosenzweig who fielded a ``heads-up'' phone call 
     from Marcus on Jan. 8, 1998, that first tipped off Starr's 
     office about Monica S. Lewinsky and Linda R. Tripp. The tip 
     was not mentioned in the 445-page Starr report, even though 
     the information revived a moribund Whitewater investigation 
     that would not have produced, it now seems, an impeachment 
     referral to Congress.
       Marcus did make his views known publicly last month when he 
     wrote an impassioned commentary in The Washington Times 
     urging the impeachment of Clinton. ``The cancer is deadly,'' 
     Marcus wrote. ``It, and its cause, must be removed.'' He 
     identified himself in the newspaper simply as ``a lawyer in 
     Philadelphia.''
       In his long efforts to promote Ms. Jones's lawsuit, and 
     helping Mrs. Tripp find her way to Starr, Marcus found other 
     allies, including another Chicago law classmate, Richard W. 
     Porter. Porter had worked as an aide to former Vice President 
     Dan Quayle and was a partner of Starr's at the law firm of 
     Kirkland & Ellis, based in Chicago.
       George T. Conway 3d, a New York lawyer educated at Yale, 
     shared Marcus's low view of President Clinton. When the Jones 
     case led to Ms. Lewinsky, Marcus and Conway searched for a 
     new lawyer for Mrs. Tripp. Marcus and Porter helped arrange 
     for Mrs. Tripp to take her explosive allegations to Starr.
       Their effort are only now coming into focus, as a few of 
     their associates have begun

[[Page 2501]]

     to discuss their activities and their names appear repeatedly 
     in the final legal bills submitted by the original Jones 
     legal team. Messrs. Marcus, Porter and Conway did not respond 
     to numerous requests for comment.
       In their arguments before the Senate this week, the 
     President's lawyers said that there was collusion between 
     Starr's office, Mrs. Tripp and the lawyers for Ms. Jones in 
     the weeks leading up to the President's deposition last 
     January. If witnesses are called in the Senate impeachment 
     trial, the President's lawyers may explore the issue further, 
     several Clinton legal advisers said.
       Charles G. Bakaly 3d, the spokesman for Starr, denied there 
     was collusion between the independent counsel's office and 
     the Jones team, including Marcus. ``There was absolutely no 
     conspiracy between the Jones lawyers and our office,'' Bakaly 
     said. ``Judge Starr has testified to the circumstances as to 
     how this matter came to our attention, and the actions that 
     we took thereafter.''
       Clinton said in his grand jury testimony in August that his 
     political enemies ``just thought they would take a wrecking 
     bail to me and see if they could do some damage.'' That 
     wrecking ball was wielded by Marcus and his colleagues, who 
     managed to drive Paula Corbin Jones's allegation of sexual 
     misconduct into the courtroom and beyond.


                 three classmates at chicago law school

       Marcus, Porter and Rosenzweig were classmates at the 
     University of Chicago Law School, graduating in 1986. Conway 
     met the others through the Jones case. Some of the lawyers 
     were also involved with the Federalist Society, a legal group 
     that includes conservative and libertarian luminaries like 
     Starr, Robert H. Bork and Richard Epstein, a University of 
     Chicago law professor.
       Porter was the most overtly political member of the group, 
     having worked on the staff of Vice President Quayle and on 
     the Bush-Quayle campaign, where he did opposition research.
       Porter was also an associate of Peter W. Smith, 62, a 
     Chicago financier who was once the chairman of College Young 
     Republicans and a major donor to Gopac, a conservative 
     political group affiliated with former Speaker Newt Gingrich. 
     Beginning in 1992, Smith spent more than $80,000 to finance 
     anti-Clinton research in an effort to persuade the mainstream 
     press to cover Clinton's sex life. Among others, his efforts 
     involved David Brock, the journalist who first mentioned the 
     name ``Paula'' in an article on Clinton.
       Smith declined an interview request.
       In 1993, Brock said, Smith helped introduce him to the 
     Arkansas state troopers who accused Clinton of using them to 
     procure women when he was Governor of Arkansas. Brock wrote 
     an article based on the troopers' account of Clinton's sexual 
     escapades that was published in the January 1994 issue of The 
     American Spectator, a conservative magazine. According to 
     Brock, Smith wanted to establish a fund for the troopers, in 
     case they suffered retribution. Brock said he opposed 
     payments because they would undermine the troopers' 
     credibility.
       To allay his concerns, Brock said, Smith urged him to speak 
     to Porter, who was then working at Kirkland & Ellis, the 
     Chicago law firm that employed Starr in its Washington 
     office. Brock said he had hoped his talk with Porter would 
     put an end to any planned payments to the troopers, but Smith 
     did pay them and their lawyers $22,600.
       In 1992, Smith also paid Brock $5,000 to research another 
     bit of Arkansas sex lore regarding Clinton, a rumor that has 
     since proved to be baseless.
       Brock did not pursue an article.
       Brock's trooper article in The American Spectator mentioned 
     a woman identified as ``Paula,'' and in May 1994, Ms. Jones 
     filed her lawsuit against President Clinton. Ms. Jones's 
     lawyers of record were from the Washington area, Gilbert K. 
     Davis and Joseph Cammarata, whom Marcus had helped recruit.


                 lawyers of record had help from start

       The Davis and Cammarata billing records show that from 
     their earliest involvement in the case, they were consulting 
     with Marcus and Porter. Conway also helped draft briefs, 
     Cammarata said.
       ``Marcus was involved,'' Cammarata said, ``but he insisted 
     that he not be identified. But that was fine with me. We were 
     just two guys involved in the middle of a world war. We 
     welcomed his help.''
       No one was more important to the Jones case than Marcus. 
     Besides helping to write several important briefs, Marcus 
     spoke numerous times at the most critical moments in the case 
     with Cammarata and Davis, offering legal advice that 
     Cammarata said was ``vital.''
       According to the billing records, Porter also offered 
     ``legal strategy'' and once wrote a memo on ``investigative 
     leads'' that might embarrass the President.
       ``Porter was a cheerleader,'' Cammarata said. ``He used to 
     call up and say, `Maybe we can find you some money.' ''
       One of President Clinton's legal advisers said he noticed a 
     marked difference in quality between the routine legal 
     pleadings filed by the Cammarata and Davis team, and the 
     polished, scholarly briefs written by the shadow legal team 
     headed by Marcus and Conway.
       Marcus, meanwhile, was so successful at keeping the extent 
     of his role a secret that even Cammarata only found out 
     recently that Marcus had trouble finding lawyers to agree to 
     represent Ms. Jones. ``No one wanted to touch this case,'' 
     Cammarata said. ``No one wanted to take on the President of 
     the United States.''
       Another friend of Marcus also briefly considered assisting 
     the Jones lawyers.
       In June 1994, Rosenzweig, a lawyer at a small law firm in 
     Washington, with experience working in the Justice 
     Department, expressed interest in doing legal work on behalf 
     of Ms. Jones, but he did none, lawyers involved in the case 
     said.


                law firm included influential democrats

       Conway wanted his role kept hidden as well, because his New 
     York law firm, Wachtell, Lipton, Rosen & Katz, included 
     influential Democrats like Bernard W. Nussbaum, a former 
     White House counsel. Conway's name does not appear on any 
     billing records.
       Although the billing records show communication between 
     Porter and the Jones lawyers from 1994 to 1997, he denied in 
     a written statement last fall doing legal work for Ms. Jones.
       Because Porter is a partner at the firm where Starr worked 
     until he took a leave of absence last August, any role played 
     by Porter in the Jones case could have posed a conflict of 
     interest for Starr once he became independent counsel. Starr 
     has said he did not discuss the Jones case with Porter.
       Starr has acknowledged contacts with Davis, specifically 
     six telephone discussions the two had in 1994, before Starr 
     became independent counsel. In fact, Starr has been 
     criticized for not disclosing the phone conversations to 
     Attorney General Janet Reno when he was seeking to expand his 
     investigation to the Lewinsky matter. Starr has said it did 
     not occur to him to mention the conversations because he did 
     not do work on the Jones case and simply offered his publicly 
     stated position on a point of constitutional law that 
     Presidents are not immune from civil lawsuits.
       Before the Jones lawyers argued before the Supreme Court in 
     May 1996, paving the way to the fateful 9-0 decision that the 
     President was not immune from civil lawsuits, Conway went to 
     Washington for a practice argument. He joined Davis, 
     Cammarata, Judge Robert Bork and Theodore Olson, a Washington 
     lawyer and friend of Starr, at the Army-Navy Club here.
       When Cammarata and Davis quit as Ms. Jone's lawyers after 
     she failed to reach a settlement with President Clinton's 
     lawyers in 1997, Marcus and his colleagues established ties 
     to her new lawyers at the Dallas law firm of Rader, Campbell, 
     Fisher & Pyke and the Rutherford Institute of 
     Charlottesville, Va., which helped pay her legal expenses.
       In November 1997, Rosenzweig went to work as a prosecutor 
     in Starr's office. And from November to January, Rosenzweig 
     spoke several times by telephone with Marcus and discussed 
     the Jones case, a lawyer with knowledge of the conversations 
     said. But Bakaly, a spokesman for Starr, said that Rosenzweig 
     did not tell any of his colleagues about what he learned 
     about developments in the Jones case.
       By this time, Mrs. Tripp was cooperating with the Jones 
     lawyers. She was also taping her conversations with Ms. 
     Lewinsky, which her friend, Lucianne Goldberg, a Manhattan 
     literary agent, had incorrectly assured her was legal. In 
     December, Mrs. Tripp became frantic that she might be 
     prosecuted because such taping is illegal in Maryland, where 
     Mrs. Tripp lives. Mrs. Tripp and Ms. Goldberg thought of a 
     possible solution: perhaps she could receive immunity from 
     prosecution from Starr.
       Ms. Goldberg called Smith, the Chicago financier, and 
     Porter for advice on how Mrs. Tripp might approach Starr. In 
     a teleconference during the first week of January 1998, Ms. 
     Goldberg talked to Porter and Marcus. Meanwhile, Marcus 
     sought new lawyers for Mrs. Tripp. Conway suggested an old 
     friend, James Moody, a Washington lawyer and fellow 
     Federalist Society member, whom Mrs. Tripp retained.
       Because he was Starr's former law partner, Porter did not 
     want to be the first one to call the independent counsel's 
     office on behalf of Mrs. Tripp. So Marcus made the call to 
     Rosenzweig.

  Mr. HARKIN. So now we have the involvement of Linda Tripp giving 
information to Paula Jones' attorneys. From about late October, early 
November until January 1998, a lawyer by the name of Jerome Marcus in 
Philadelphia, who has done extensive work for the Jones legal team, had 
been talking to a friend of his, Paul Rosenzweig, a prosecutor in Mr. 
Starr's office, about the Lewinsky matter. We didn't know the exact 
nature of these discussions, but we do know they talked a number of 
times. But we do know that on January 8 Marcus contacted Rosenzweig and 
told him about the relationship of Monica Lewinsky and the President.
  Right after this, Linda Tripp contacts the Office of Independent 
Counsel to talk about Lewinsky and tells them

[[Page 2502]]

about the tapes she has made, the telephone tapes, the tapes of her 
telephone conversations with Monica Lewinsky. The day after that, Tripp 
is wired by FBI agents working with Starr, meets with Lewinsky, and 
records their conversation without Lewinsky's knowledge--and doing this 
without any authorization to do it. They didn't get it until 4 days 
later.
  Now, all this is done prior to President Clinton ever giving a 
deposition or testifying before a grand jury. And so Clinton has done 
nothing yet in terms of testifying. So one might ask, What was Starr 
and his team after? If, in fact, this was a consensual sexual 
relationship between Clinton and a young woman who was an adult, what 
did it have to do with Whitewater or anything else they were 
investigating?
  Well, here is why it had something to do with it. Let me quote from 
an article written by Joseph Isenburgh, a professor of law at the 
University of Chicago. I happen to have read it because he was 
supporting this findings of fact procedure, and I wanted to see what 
his thoughts were. But later on in his treatise he said this:

       What is perverse about the impeachment of President Clinton 
     is the idiotic premise on which it rests. The President 
     wasn't forced to respond to judicial process in the Paula 
     Jones sexual harassment suit because he committed a crime of 
     paramount public concern. That case, remember, was dismissed 
     as meritless.

  I am continuing to quote him:

       The misconduct at issue here had no independent 
     significance. It is, itself, merely a byproduct of a judicial 
     process directed at the President, essentially of a ``sting'' 
     set-up in the courts.

  ``A `sting' set-up in the courts.'' That is what Ken Starr and the 
Jones attorneys, working in tandem, were doing, setting him up. And you 
can see this clearly when you watch Clinton on videotape in the 
deposition before the Paula Jones attorneys. They present him with this 
definition of ``sexual relations'' that even the judge herself said was 
confusing. They knew what they were going after. But President Clinton 
did not know that they had all this information about his involvement 
with Monica Lewinsky--a classic sting operation.
  Also, keep in mind that Linda Tripp briefed the Paula Jones attorneys 
the night before that deposition and gave them the tapes of her 
telephone conversations. In light of this, it is interesting to note 
that in today's New York Times, February 10, the conduct of the 
independent counsel is so suspect and potentially violative of Justice 
Department policy and law that he now is under investigation for a 
number of reasons which I won't read. But I ask unanimous consent that 
it be printed in the Record. And you can read it in today's New York 
Times.
  There being no objection, the articles were ordered to be printed in 
the Record, as follows:

              [From the New York Times, February 9, 1998]

        Inquiry to Ask Whether Reno Was Misled by Starr's Office

               (By David Johnston and Don Van Natta, Jr.)

        Washington, Feb. 9--The Justice Department has decided to 
     begin an inquiry to determine whether Kenneth W. Starr's 
     prosecutors misled Attorney General Janet Reno about possible 
     conflicts of interest when they obtained permission to 
     investigate the Lewinsky matter in January 1998, Government 
     officials said today.
       Among other concerns, the inquiry will focus on whether the 
     prosecutors should have disclosed the contacts between Mr. 
     Starr's office and the Paula Jones legal team in the weeks 
     leading up to Mr. Starr's decision to ask Ms. Reno to expand 
     his inquiry beyond the Whitewater matter, said the officials, 
     who spoke on the condition of anonymity.
       In recent months, documentation has emerged indicating that 
     there were conversations between a prosecutor in Mr. Starr's 
     office and a lawyer working behind the scenes with the Jones 
     legal team from November 1997 to January 1998.
       But a series of newly disclosed notes taken at the initial 
     meetings on Jan. 15 and Jan. 16, 1998, between Mr. Starr's 
     prosecutors and Justice Department officials, shows that the 
     prosecutors flatly asserted that there had been no contacts 
     with the Jones team.
       For example, Eric H. Holder Jr., the Deputy Attorney 
     General, wrote in this three pages of notes of a Jan. 15, 
     1998, meeting with Mr. Starr's prosecutors: ``They've had no 
     contact with plaintiff's attys.''
       Handwritten notes by two other Justice Department 
     officials, Monty Wilkinson and Josh Hochberg, corroborate the 
     statements attributed to Mr. Starr's prosecutors.
       Moreover, notes taken by another participant in the 
     meeting, Steven Bates, a prosecutor in Mr. Starr's office, 
     indicate that Jackie M. Bennett, one of Mr. Starr's deputies, 
     told the Justice Department officials: ``We've had no contact 
     with the plaintiffs' attorneys. We're concerned about 
     appearances.''
       The notes have become crucial evidence in the Justice 
     Department inquiry, which will be conducted by the Office of 
     Professional Responsibility, which investigates prosecutorial 
     misconduct. The lawyers' notes became public just last month 
     as part of the Senate record of documents related to the 
     impeachment trial of the President.
       The truthfulness of Mr. Starr's prosecutors is one of 
     several issues that the department wants to examine, the 
     Government officials said. Lawyers in the ethics office also 
     intend to investigate whether Mr. Starr abused his authority 
     to convene grand juries, or improperly pressed witnesses like 
     Ms. Lewinsky, and disclosed secret grand jury information to 
     reporters, the officials said.
       Mr. Clinton's lawyers and supporters have long contended 
     that there was collusion between Mr. Starr's office and the 
     conservative Jones lawyers, noting that Linda R. Tripp found 
     her way to the Office of Independent Counsel through a group 
     of private lawyers who performed legal work on the Jones 
     case. Mr. Starr has insisted that his office sought 
     permission from Ms. Reno to expand his jurisdiction when he 
     learned of allegations that President Clinton's close friend 
     Vernon E. Jordan, Jr. was helping Monica S. Lewinsky find a 
     job in exchange for her silence as a possible witness in the 
     Jones lawsuit.
       Charles G. Bakaly 3d, a spokesman for Mr. Starr's office, 
     would not comment on the Justice Department's plans to start 
     an investigation. But Mr. Bakaly said the notes showed that 
     prosecutors had supplied the Justice Department with a 
     thorough status report on the then-nascent inquiry.
       ``I don't know how else to put it,'' Mr. Bakaly said. 
     ``There was no misleading of Justice. This was a very fluid 
     evolving situation. Unlike most public corruption cases, this 
     one was ongoing; felonies were still possibly being 
     committed.''
       This latest inquiry has exacerbated tensions that have 
     existed between the Justice Department and the Office of 
     Independent Counsel almost since the beginning of the 
     Lewinsky scandal.
       At one point last spring, Ms. Reno asked her senior aides 
     to research whether she had the authority to discipline Mr. 
     Starr in some way that stopped short of removing him, said a 
     former Justice Department official who spoke on condition of 
     anonymity.
       Some aides told her that it would be a mistake, comparing 
     it to the ``Saturday Night Massacre'' when President Nixon 
     ordered the firing of the Watergate special prosecutor 
     Archibald Cox in October 1973.
       But, the official said, Ms. Reno shot back: ``I'm not 
     asking you to make a political judgment. I'm asking you to 
     make a legal judgment.''
       Deepening hostilities between the Justice Department and 
     Mr. Starr's office delayed the start of the new ethics 
     inquiry. The ethics investigators recently wrote to Mr. Starr 
     outlining the scope and authority for the investigation, the 
     officials said. Mr. Starr's prosecutors are challenging the 
     inquiry, asserting that the Attorney General does not have 
     the authority to delve into highly sensitive grand jury 
     material or investigative decisions that led Ms. Reno to 
     refer the case to Mr. Starr.
       Ms. Reno's aides have said that investigative authority is 
     implied by language in the independent counsel statute, which 
     gives the Attorney General the sole responsibility to remove 
     an independent prosecutor.
       Over time, Justice Department officials, including Ms. 
     Reno, have become troubled by what they view as possible 
     violations of Justice Department guidelines. From issues like 
     calling the Secret Service before the grand jury to the 
     crossfire over leaks to reporters, Mr. Starr's prosecutors 
     and Justice Department officials have feuded privately.
       ``As time went on, people became more and more frustrated 
     with him,'' the Justice Department official said of Mr. 
     Starr. ``He seemed less concerned with Department of Justice 
     policies.''
       The ethics lawyers are trying to determine whether 
     prosecutors in Mr. Starr's office had a vested interest in 
     the outcome of the Jones case, an interest that would have 
     undercut their ability to impartially investigate allegations 
     related to the lawsuit. If that conflict existed, the 
     officials said, it would have been an important factor as Ms. 
     Reno weighed whether to recommend to a three-judge panel that 
     Mr. Starr take on the Lewinsky matter.
       At this point, the ethics unit of the Justice Department 
     must determine whether Mr. Starr and his prosecutors violated 
     departmental rules and prosecutorial guidelines. Their 
     findings could lead to recommendations for disciplinary 
     action, like reprimands or suspension of employment.
       The relationship between Ms. Reno and Mr. Starr began as a 
     wary but cordial one that a Government official compared to 
     ``Thatcher and Gorbachev.''
       At times, Ms. Reno has expressed exasperation over Mr. 
     Starr's conduct, fuming over

[[Page 2503]]

     letters sent by Mr. Starr's prosecutors accusing the Justice 
     Department of trying to undercut the inquiry.
       Mr. Starr's prosecutors had also grown angry and suspicious 
     about Ms. Reno's aides, suggesting that the Justice 
     Department was under the control of the White House and had 
     quietly tried to squelch Mr. Starr's effort, the officials 
     said.
       Since October, several news organizations have reported how 
     Mr. Starr's office first learned about the Lewinsky matter. 
     On Jan. 8, 1998--four days before Linda R. Tripp contacted 
     Mr. Starr's office--Jerome M. Marcus, a Philadelphia lawyer 
     who did extensive work for the Jones legal team, informed 
     Paul Rosenzweig, a prosecutor in Mr. Starr's office, about 
     the Lewinsky accusations.
       The early tip was not disclosed in Mr. Starr's 445-page 
     referral to Congress. Nor was it disclosed to the Justice 
     Department. And The New York Times reported last month that 
     there were several conversations between Mr. Marcus and Mr. 
     Rosenzweig from November 1997 to January 1998.
       David E. Kendall, one of the President's personal lawyers, 
     complained to Ms. Reno in October that ``very serious 
     questions'' were raised about those contacts.
       The allegations of collusion prompted lawyers at the 
     Justice Department to turn their attention to their own 
     recollections and their own handwritten notes, of statements 
     made by Mr. Starr's representatives on Jan. 15, 1998, 
     officials said today.
       One former Justice Department lawyer said in an interview 
     that Ms. Reno was especially disappointed in the fact that 
     the early phone call was not shared with her senior aides in 
     January 1998.
       Last month, The New York Times reported that Mr. Marcus was 
     the leader of a small secret group of lawyers working behind 
     the scenes on the Jones case. Mr. Marcus drafted legal 
     documents and was involved in many of the most important 
     strategic decisions in the Jones lawsuit, according to 
     billing records in the Jones case and interviews with other 
     lawyers who worked with him.
       Mr. Marcus recruited other conservative lawyers to assist 
     with his efforts, approaching among others, Paul Rosenzweig, 
     who briefly considered doing work for Ms. Jones in 1994, the 
     billing records show, but decided not to.
       In November 1997, Mr. Rosenzweig joined Mr. Starr's office, 
     where he and Mr. Marcus had several conversations about the 
     Jones case, said a lawyer familiar with their discussions.
       Mr. Bakaly, the spokesman for Mr. Starr, has adamantly 
     denied any suggestion of collusion. When Mr. Starr testified 
     before the House Judiciary Committee on Nov. 19 of last year, 
     he was asked by the chief counsel for the minority, Abbe D. 
     Lowell, about the ``substantial contacts'' that Mr. Starr had 
     had with Jones lawyers.
       In a series of questions, Mr. Lowell tried to suggest that 
     Mr. Starr should have revealed the contacts to the Justice 
     Department in January 1998, and that Richard W. Porter, a 
     partner of Mr. Starr's at the law firm, Kirkland & Ellis, had 
     declined a request to represent Ms. Jones.
       ``I know Richard Porter; I've had communications with him 
     from time to time,'' Mr. Starr testified. ``But in terms of a 
     specific discussion with respect to what the law firm may be 
     doing or may not be doing, I'm not recalling that 
     specifically, no.''
                                  ____


                [From the New York Times, Feb. 9, 1998]

     Tracing the Past: How Legal Paths of Jones and Lewinsky Joined

                   (By Tim Weiner with Neil A. Lewis)

       WASHINGTON--Shortly after 10 a.m. on Jan. 17, a Saturday, 
     the president of the United States stepped out of the White 
     House into the back of a black limousine and rode a block to 
     his lawyer's office to undergo a six-hour grilling in the 
     case of Paula Jones vs. William Jefferson Clinton.
       For six weeks, the president's lawyers had known that he 
     might be asked a startling question: Did you have a sexual 
     relationship with Monica Lewinsky? When the question came, 
     the president's body tensed and his jaw tightened, said a 
     lawyer involved in the case, and, under oath, he denied it.
       The questions continued: Had the president been alone with 
     Lewinsky? Had he given her gifts? He said he might have been 
     alone with her briefly while she performed some clerical 
     task, and he might have given her some presidential 
     souvenirs, the lawyer recalled.
       The deposition ended, President Clinton returned to the 
     White House, canceled dinner plans with his wife and called 
     his personal secretary, Betty Currie, asking her to meet him 
     at the White House the next morning.
       When they met, the president asserted that he had never 
     been alone with Lewinsky at the White House, said lawyers 
     familiar with Mrs. Currie's account. But that assertion did 
     not square with Mrs. Currie's recollection.
       In addition, Mrs. Currie had turned over to investigators a 
     hat pin, a brooch and a dress she retrieved from Lewinsky, 
     the lawyers said, items that are believed to have been given 
     to her by the president but which do not fit his description 
     of have been given to her by the president but which do not 
     fit his description of White House souvenirs. It is not clear 
     who, if anyone, instructed Mrs. Currie to retrieve the gifts.
       Was Clinton less than truthful about his relationship with 
     Lewinsky, the 24-year-old former White House intern? Was he 
     using his trusted secretary to hide evidence from Mrs. Jones, 
     the former Arkansas state employee suing him over what she 
     says was a crude sexual advance nearly seven years ago?
       The president's battle with the Whitewater independent 
     counsel, Kenneth Starr--and, perhaps, Clinton's place in 
     history--may depend on the answers. If he lied, or if he 
     urged others to lie or conceal evidence, he could face the 
     threat of impeachment.
       How did Clinton become the first president forced to 
     testify under oath about his private life? How did the Jones 
     case--once demeaned by the president's lawyers as third-rate 
     ``tabloid trash''--come to threaten Clinton's presidency? The 
     answers lie in a detailed look at the recent past.
       When Mrs. Jones' lawyers learned of Lewinsky's existence, 
     it was as if two live wires had met in an incendiary tangle.
       The lawyers' hunt for information about Lewinsky, which 
     they sought to buttress Mrs. Jones' charge of sexual 
     misconduct by Clinton, led directly to Starr's investigation 
     into the possibility of perjury and obstruction of justice at 
     the highest levels. Now Starr is demanding that Mrs. Jones' 
     lawyers turn over everything they have learned in their 
     search for women who contend they have had sexual encounters 
     with Clinton.
       The two cases merged that Saturday morning. As the 
     president testified, with Mrs. Jones staring him in the face 
     during the deposition, Lewinsky was at home at the Watergate, 
     recovering from the shock of her life.
       Twelve hours earlier, she ended an intense encounter with 
     federal investigators pursuing the president on Starr's 
     behalf. The investigators confronted Lewinsky with the 
     devastating news that her colleague and confidante Linda 
     Tripp had been taping their intimate telephone conversations 
     for months.
       Tripp had told Starr's investigators that Lewinsky lied in 
     her affidavit in the Jones case by denying that she had ever 
     had sex with Clinton. While Tripp was working undercover for 
     Starr, she was preparing to file an affidavit in Jones vs. 
     Clinton, swearing that Lewinsky ``had a sexual relationship 
     with President Clinton.''
       The tapes presented the threat of prison for Lewinsky 
     unless she disavowed her affidavit and cooperated with Starr. 
     The tapes recorded Lewinsky saying that the president ``won't 
     settle'' the Jones case because ``he's in denial,'' according 
     to published excerpts of the tapes. If so, refusal had turned 
     that private lawsuit into a potential personal and political 
     disaster.
       The miasma enveloping the White House began rising four 
     months ago.
       On Oct. 1, the Rutherford Institute, a conservative legal 
     center in Virginia, publicly offered to help Mrs. Jones. The 
     institute found Mrs. Jones new lawyers from the Dallas firm 
     of Rader, Campbell, Fisher & Pyke and offered to pay her 
     legal expenses.
       In the first week of October, a woman telephoned the 
     Rutherford Institute with an anonymous tip: a woman named 
     Monica had had sex with the president in the White House. The 
     same tipster, described by the man who took the call as ``a 
     nervous young woman,'' called back in late October, providing 
     a surname: Lewinsky.
       Days after the first tip, the Dallas lawyers telephoned 
     Tripp. Newsweek quoted her in its Aug. 11 issue as a witness 
     to a supposed sexual encounter between the president and 
     Kathleen Willey, a White House volunteer. A lawyer involved 
     in the chain of events said Tripp later gave the lawyers 
     Lewinsky's name. Tripp's lawyer, James Moody, denies that. 
     The question is unresolved.


                 lewinsky gets help with job interviews

       On Oct. 7, Lewinsky sent the first of nine packages from 
     her office at the Pentagon to the White House and to the 
     office of Vernon Jordan, Clinton's friend and confidant. The 
     packages contained, among other things, letters and documents 
     relating to her search for a new job. A key question for 
     Starr is whether the White House and Jordan helped her find a 
     job for reasons beyond altruism.
       Two weeks later, Lewinsky secured a job interview with Bill 
     Richardson, the chief U.S. delegate to the United Nations, 
     arranged by a White House deputy chief of staff, John 
     Podesta, at Mrs. Currie's request.
       On Oct. 22, Richardson had a 40-minute interview with 
     Lewinsky in Richardson's living room at the Watergate 
     apartment and hotel complex, where she lives and where he 
     maintains an apartment. In November, Lewinsky was offered a 
     job on Richardson's public relations staff.
       But Lewinsky eventually declined the offer. She wanted a 
     better-paying position in the private sector in New York.
       In early December, Jordan talked to Lewinsky about helping 
     her find that job. The go-between for their discussions was 
     again Mrs. Currie. Jordan set up interviews for Lewinsky at 
     three companies where he had personal and corporate 
     connections: Revlon, American Express and Young & Rubicam, 
     the advertising agency.
       Dec. 5 was the deadline for submitting witness lists in the 
     Jones case. And on that list, on that day, the president's 
     lawyers saw Lewinsky's name for the first time.

[[Page 2504]]

       From that moment on, the paths of two people from two 
     different worlds--Paula Jones from Lonoke, Ark., and Monica 
     Lewinsky from Beverly Hills, Calif.--were on course to 
     collide at the White House.


                    subpoena seeks gifts to lewinsky

       Dec. 19, a Friday, Mrs. Jones' lawyers served Lewinsky with 
     a subpoena requesting information, including any gifts from 
     the president. She called a Washington lawyer, Francis 
     Carter, on Jordan's recommendation.
       Christman Eve was Lewinsky's last day of work at the 
     Pentagon. She still did not have a new job.
       On or about Dec. 28, a Sunday, she had a private talk with 
     Clinton at the White House, said lawyers in the case. The 
     president told her not to worry about being drawn into a 
     lawsuit and advised her to describe her earlier White House 
     visits as meetings with Mrs. Currie, the lawyers said.
       As for the subpoenaed gifts, the president said Lewinsky 
     could not produce them if she no longer had them, according 
     to the lawyers' account. Mrs. Currie has told investigators 
     that she retrieved a box of gifts from Lewinsky--including 
     the dress, the brooch and the hat pin--and subsequently 
     turned the items over to Starr.


                    affidavit includes denial of sex

       On Jan. 7, a Wednesday, Lewinsky completed an affidavit 
     saying she never had sex with the president, said her lawyer 
     William Ginsburg. The affidavit was not immediately filed 
     with Mrs. Jones' lawyers.
       The judge in the case had suggested that testimony be 
     limited to accounts of sexual favors received by Clinton in 
     exchange for government jobs. Lewinsky contended she knew 
     nothing of the sort, Ginsburg said; her affidavit was 
     intended to keep her out of the Jones trial.
       Tripp has suggested to lawyers in the case that Lewinsky 
     did not intend to file the affidavit until she had secured a 
     job. That suggestion has not been independently corroborated 
     by Lewinsky or anyone else.
       On Jan. 8, Lewinsky had a final job interview at Revlon, 
     and Jordan made telephone calls on her behalf to the company, 
     where he serves as a director. One of those calls went to 
     Revlon's chairman, Ronald O. Perelman. A few days later, 
     Revlon offered Lewinsky a job.
       Now events approached critical mass.
       On Jan. 12, Tripp made contact with Starr's office, saying 
     that Lewinsky had had an affair with the president and that 
     she, Tripp, had secret tapes to prove it. The same day, 
     Carter told Mrs. Jones' lawyers that Lewinsky had denied any 
     sexual relationship with the president in her affidavit.
       On Jan. 13, Tripp, with a tiny tape recorder provided by 
     Starr's office, met Lewinsky for a long lunch, during which 
     Lewinsky is said to have described her conversations about 
     her affidavit with Jordan.
       On Jan. 14 or Jan. 15, Lewinsky handled Tripp three pages 
     of ``talking points,'' aimed at persuading Tripp to deny any 
     knowledge of sexual impropriety by Clinton in the Jones 
     lawsuit. It is unclear who wrote the document.
       On Jan. 15, Starr's office told the Justice Department 
     about Tripp's accusations. A panel of federal judges 
     authorized Starr to investigate whether Clinton and Jordan 
     had encouraged Lewinsky to lie under oath in her affidavit.
       On Jan. 16, a Friday, the case reached an explosive state. 
     The Federal Bureau of Investigation confronted Lewinsky. That 
     day and the next, reporters began asking White House 
     officials pointed questions, including whether the president 
     had tried to influence other people's testimony in Jones vs. 
     Clinton, a former White House official said. News of Starr's 
     expanded investigation had already leaked.
       Clinton knew none of this. Nor did he know, as he 
     confronted Mrs. Jones on Jan. 17, that he would be so 
     extensively questioned about Lewinsky. Mrs. Jones lawyers 
     appeared to know more details about Lewinsky than the 
     president's lawyers had anticipated.
       The next morning, Clinton summoned Mrs. Currie to the White 
     House and reviewed with her some of the questions and answers 
     he had given the previous day about Lewinsky, said lawyers 
     familiar with Mrs. Currie's account. The president told her 
     he had never been alone with Lewinsky and that he had 
     resisted her sexual advances, these lawyers said.
       If this was an effort at damage control, it failed. The 
     story of Tripp's tapes was already leaking out, and Starr was 
     already aiming this investigation directly at the White 
     House, preparing to summon a parade of aides, including Mrs. 
     Currie, to a grand jury.
       On Jan. 21, a Wednesday, the inquiry was national news. 
     That day, Tripp signed an affivadit for Mrs. Jones' lawyers. 
     It said Lewinsky had ``revealed to me in detailed 
     conversations that she had a sexual relationship with 
     President Clinton since November 15, 1995.''
       If that is so, the president ``committed perjury'' in his 
     sworn deposition, and ``embarked on a very aggressive cover-
     up campaign'' afterward, one of Mrs. Jones' lawyers, Donovan 
     Campbell, said in court papers filed last Thursday.
       Those charges are now at the heart of one of the strangest 
     investigations ever carried out against a president of the 
     United States.

  Mr. HARKIN. So I just want to end this part of my discussion by 
saying we have heard a lot about the rule of law recently, about how it 
applies. Now, how about how it applies to those who are supposed to 
enforce the law, how it applies to Ken Starr and the Office of 
Independent Counsel?
  Mr. Hyde went on many times in his opening and closing arguments 
about what this teaches our kids about honesty and truthfulness, that 
the rule of law means something. Well, yes, it means something. It 
means something to our kids and future generations that honesty and 
truthfulness and the rule of law also applies to those who are cloaked 
with the authority to enforce that law. We must teach our kids that the 
ends do not justify the means, that law enforcement officials cannot 
break the law in order to bring someone to the bar of justice.
  So now, in this long process, the case is before the House Judiciary 
Committee. And only Ken Starr testifies on the facts. He gives them all 
these documents. But it is interesting to note, he does that before the 
election. He waits until after the election to give them all the 
Whitewater, Filegate, and Travelgate charges, which he drops. That 
happens after the election. They hear Ken Starr. And it is interesting 
to note that at the end of his long testimony, every Republican on the 
House Judiciary Committee gives him a standing ovation. What kind of 
political statement does that make? This was nothing like the kind of 
balanced evidentiary material given the Judiciary Committee in the 
House by Leon Jaworski in the Watergate case concerning then-President 
Nixon.
  So in summary, what we have here is an out-of-control independent 
counsel with his own political agenda and vendetta, a blank check to 
spend millions to look into every nook and cranny of President 
Clinton's public as well as personal life. You add this to a zealous 
group of House Republican Judiciary Committee members who fanned the 
flames, and some Members who already, prior to this, filed a resolution 
to impeach the President. What you have here is a blatant, vindictive 
political case.
  The American people figured it out a long time ago. They know the 
truth of what happened. And the truth is very simple. The President had 
a consensual, illicit affair with a young woman. He tried to cover it 
up. He misled others to cover it up. That is the truth. All this other 
stuff we are delving into is the details of about who touched who 
where, how many times they met, who exchanged gifts. The truth is 
simple and straightforward, and the American people figured it out, and 
they have a judgment about this.
  They said it is wrong, but it's personal. And he violated his 
marriage oath, not his oath of office. It is a sin, but not a crime. It 
is between him and his wife and his family and his God. And it is not 
an impeachable offense. I have said many times the American people can 
abide sin but not hypocrisy.
  Throughout this entire case, hypocrisy abounds. Much has been said 
about the rule of law and the truthfulness and honesty regarding 
President Clinton. How about as it applies to Starr? How about 
truthfulness, when he doesn't include, in his presentation, that very 
important statement that Monica Lewinsky said: ``No one ever asked me 
to lie''? How about honesty when it comes to him not providing 
exculpatory material?
  Having failed to get Bill Clinton on the stated reasons for the 
independent counsel--on Whitewater, Travelgate and Filegate--they shift 
to illicit sex and a classic sting operation.
  So we are left with two charges. Perjury. This falls far short, and 
there is no evidence to support the fact that he perjured himself 
before the jury. Evasive? Yes. Dodging? Yes. But not knowingly making a 
false statement under oath material to the case. Doesn't fit.
  Second article. Obstruction of justice. The House managers built 
their case on what they called the seven pillars of obstruction, which 
we have seen turned out to be seven sand castles of speculation. I 
think the most telling

[[Page 2505]]

point was Monica Lewinsky, on her own tape last Saturday, when Mr. 
Bryant asked her, ``You didn't have a personal reason to file a false 
affidavit?'' And she said, ``Yes, I did.'' He said, ``Why?'' She said, 
``Because I didn't want to get involved with the Jones case. I didn't 
think it was any of their business.'' End of story on obstruction 
because everything else rests on that.
  That is why I have said, the more we look at this case, the more it 
is a counterfeit case. Like a counterfeit dollar bill, even to a 
trained eye, you look and it may look real, but you put it under a 
microscope and you see it's counterfeit. That's what happened in this 
case.
  The House managers' case was based on inferences and conjecture. The 
White House's case was based on direct facts in evidence, and that is 
the difference.
  In closing, two wrongs don't make a right. President Clinton did have 
an illicit affair. It was wrong and demeaning. Ken Starr abused 
justice, set up a sting operation, the wiring of Linda Tripp, the 
leaks, the salacious material.
  Clinton's wrong, I submit, was more of a sin. Ken Starr's wrong is 
more of a crime. The damage to the rule of law is done more by Ken 
Starr than by Bill Clinton. At the beginning, I said the House had a 
heavy burden, given the history and partisanship of this case, to prove 
articles I and II and that they rise to an impeachable level. They 
never met that burden. Accordingly, I will vote not guilty on both 
charges.
  Finally, as you know, there has been much talk of a censure 
resolution. As I said before, I said I believe the appropriate form is 
for each Senator to express his or her opinion on this matter. I 
personally see no need to join 99 others, and in doing so, set a 
dangerous precedent that could be easily abused in the future. So here 
is my censure of the President.
  I want to state emphatically, I do not condone his behavior that has 
been so thoroughly exposed and seared in the American conscious ad 
nauseam. It is the sordid affair of all sordid affairs. The President 
brought dishonor to himself. He brought tremendous pain and 
embarrassment to his family, friends and colleagues. And rather than 
ennobling the Presidency, his behavior has been the butt of jokes and 
ridicule.
  This behavior was totally at odds with his many achievements and 
conduct in his official capacity as President. The President has stated 
clearly he has sinned and that he has misled his family, his friends, 
his staff, and the American people. He has said that he is sorry and he 
has asked for forgiveness.
  I do so now and say it is time to put this sad chapter behind us; 
move on to the important work of this Nation.
  Mr. REID. Mr. Chief Justice, I extend to you my personal appreciation 
for the dignity that you have extended to each of us during these 
proceedings. I also say that I have been disappointed. It appears the 
vote is going to be very comparable to the vote in the House, down 
partisan lines, even though during the break I understand two of my 
colleagues from the other side of the aisle announced that they would 
not vote for conviction on the articles of impeachment.
  But in spite of this, I want to extend my appreciation to the 
Republican leaders. Senator Nickles has been available any time that 
there is a problem that has arisen during this proceeding. And you, 
Senator Lott, have 10 more votes than we have and you on many occasions 
during this proceeding could have steamrolled us. You chose not to do 
that. I think that is the reason we have had this feeling of harmony, 
even though we have had some disagreement on what is going to 
transpire. So I, again, on behalf of all Democratic Senators, express 
our appreciation to you for the work you have done.
  Often as I stand before this body, I am reminded of the lessons of 
great books. Today, though, the beginning of a novel keeps running 
through my mind--Charles Dickens' ``A Tale of Two Cities'':

       It was the best of times, it was the worst of times.

  I have often felt, these last weeks, as if I were trapped in a work 
of fiction. Like all really interesting fiction, the story now before 
us reduces itself to an examination of the human soul--or, to be more 
accurate, to an examination of human souls. I use the plural because 
this trial has been about the flaws of two people, each with the gifts 
to make them great, and of the contrast between them--one who has 
failed to rise above his flaws and the other who has embraced them. 
Much of what we call great literature is about the petty failings which 
destroy great men. It is about how common sins, of which we are all to 
some degree guilty, bring low the mighty and turn to ashes the fruits 
of victory in the mouths of monarchs.
  We have heard much in this historic Senate Chamber about the judgment 
of history, but I daresay that, even more than by historians, the 
truest judgment of these events will be written as novels and plays. On 
the one level, these works will deal with some or all of the seven 
deadly sins: Pride, anger, greed, gluttony, sloth, envy, and, yes, 
especially lust.
  But on another level, those plays and novels will deal with the theme 
of all literature. They will be written about conflicts between great 
men, great men who are flawed; great men, each with their own public 
and private failings. We are here to sit in judgment of the President 
of the United States, a very public man, for his very private failings. 
Bill Clinton fell from grace. Driven by the private sin of lust, he 
violated his marriage vows and when his sins were uncovered by his 
enemies, he tried to conceal them by lying to his wife, his friends, 
and ultimately to all of us. It is a common story, the sin of lying. It 
begins in the Old Testament with many examples--Cain, of course, is a 
good example, who asked, ``Am I my brother's keeper?''--and with the 
lie, the kiss of Jesus by Judas Iscariot in the New Testament.
  It may be the beginning of a great work of art, it may be the first 
chapter in a summer day's light reading, but it is not a good reason, 
it is not the beginning of a good reason, for removing an elected 
President of the United States.
  The core issue is one which has apparently eluded many in this 
Capitol, but which is obvious to the American people. Great dreams are 
dreamed by people with human flaws. Great policies and actions are 
sometimes set in motion by those with broken souls. Great deeds are not 
always done by good men. Recent history gives us many examples. Winston 
Churchill, one of my heroes, a man who initially stood alone in leading 
the defense of Western civilization, was by most standards an 
alcoholic--at least modern standards. Franklin Roosevelt, Churchill's 
stalwart comrade and the author of policies which saved the very lives 
of families of many in this Chamber today, died in the arms of his 
lover. Each of us, each one of us in this Chamber, every human being, 
is flawed. Each of us needs all the forgiveness and forbearing we can 
be granted by the charity of others.
  Bill Clinton has been a friend of the State of Nevada. He has been a 
friend to me. But he has committed grievous wrongs against his family 
and his friends. He has dishonored his high office and lowered the 
standard of public behavior. I have no doubt that he has strayed from 
the path of goodness. But I do have very real doubts as to whether he 
perjured himself or suborned perjury. But I have no doubt whatsoever 
that, under the circumstances of this case, the crimes alleged do not 
rise to the level of an impeachable offense. Because of what the 
President did in public and in violation of the public trust, if I have 
the opportunity I will vote to censure. I will not vote to impeach.
  I said a few moments ago that great men are not always good men. But 
there is an obvious corollary: Good men are not always capable of doing 
great deeds and they are not even always capable of doing good. I began 
today by saying this trial was about the flaws of two people. Both are 
men with God-given gifts. Both are extraordinary in their intellect, 
perseverance, and dedication to certain core values. Both are capable 
of great goodness and even good greatness. Both have sinned. One is the 
President of the United

[[Page 2506]]

States. His sins are of the flesh and of the spirit. About these I have 
already spoken. The other is the special prosecutor, Ken Starr, who has 
pursued the President beyond all bounds of reason and decency. His are 
the sins of unremitting, undiluted, unrepentant McCarthyism. They are 
the sins of pride, the sins of anger--they are damning sins indeed.
  I don't use lightly McCarthy's name or accuse others of his tactics. 
I am old enough to remember how he misused and abused this sacred 
Chamber. My friend and my client, the late newspaper publisher, Hank 
Greenspun, was a victim of his lies, a victim who had the courage to 
stand up and fight back. Others fought, but many also suffered 
irreparable harm because of Senator McCarthy.
  I know McCarthy's tactics were the back room stab, the whispered 
smear, the half-truth, the leaked calumny. I know that he subpoenaed 
witnesses and forced them to choose between betraying their friends or 
committing perjury. I know he destroyed the careers of innocent men and 
women, drove some to suicide and sent others to jail. But at least 
McCarthy had an excuse, of sorts. For all his lies, leaks and libels, 
there really was a Communist threat. There really were Communist spies. 
Some of the people he accused really did commit treason. They were 
guilty of treason. At least, Mr. Chief Justice, McCarthy and his 
cohorts had that excuse. Kenneth Starr doesn't have an excuse.
  Before I came to the national legislature 17 years ago, I was a trial 
lawyer. At various times, I prosecuted and defended people charged with 
crimes. Long before that, I served as a police officer. I never argued 
a case in the U.S. Supreme Court, but I tried more than 100 jury 
trials, hundreds of other cases before various courts, and argued 
before different appellate courts. I tried criminal cases, lots of 
them, and I know something about when a case should be pursued and when 
it should be dismissed. I know something about the impact that a 
criminal charge has on any man or woman, about how they agonize over 
telling their children, how they struggle to face the community. I know 
something about prosecutorial misconduct, and I know something about 
prosecutorial discretion.
  Every American is entitled to equal justice, no matter their rank in 
society; equal justice but not equally unfair justice.
  The independent counsel's argument throughout his tenure seems to be 
that any U.S. attorney, any criminal prosecutor would treat any 
defendant in the same unredeemedly savage and unfair fashion in which 
Mr. Starr and his office have treated the witnesses, the defendants in 
peripheral cases and the President of the United States. Almost $60 
million has been spent--Whitewater, Filegate, Travelgate and now this. 
I think not.
  No prosecutor of integrity, of principle, of fairness would have 
tried to bootstrap a sexual affair into something criminal. A truly 
independent prosecutor would not make deals time after time with 
organizations established to embarrass the President, cavort with 
attorneys for Paula Jones, do business with Linda Tripp and others to 
entrap the President. A fairminded prosecutor would not have leaked 
salacious details to the press in an effort to force the target to 
resign from office. And, most fervently, a principled prosecutor would 
have the common sense and the common decency not to misuse their office 
to go all out, no holds barred, to ``get'' that targeted individual out 
of pride, anger and envy.
  I invite each of you to look at Justice Scalia's brilliant dissent in 
the Morrison versus Olson case where he talks about the 
constitutionality of the independent prosecutor. He predicted what we 
are now witnessing. Justice Scalia was visionary. Here is one of the 
things he said:

       The context of this statute is acrid with the smell of 
     threatened impeachment.

  He was right. What else did he say? His opinion was 8 or 9 years ago. 
He said then:
  . . . Congress appropriates approximately $50 million annually for 
general legal activities, salaries, and expenses of the Criminal 
Division of the Department of Justice.
  Fifty million dollars the whole year covers everything for the whole 
civil division of the Department of Justice. We are spending more than 
that to go after one man. Scalia could see that coming.
  He also said, and my friend, the Senator from Vermont, earlier today 
talked about what Justice Jackson had said, but he also quoted Scalia. 
Scalia said:

       If the prosecutor is obliged to choose his case, it follows 
     that he can choose his defendants. Therein is the most 
     dangerous power of the prosecutor: that he will pick people 
     that he thinks he should get, rather than cases that need to 
     be prosecuted . . . [I]t is not a question of discovering the 
     commission of a crime and then looking for the man who has 
     committed it, it is a question of picking the man and then 
     searching the law books, or putting investigators to work, to 
     pin some offense on him.

  Justice Scalia could see this coming, and we got just what he said we 
would get.
  This is a bad situation. When you have someone of the brilliance of 
Ken Starr and the viciousness of Ken Starr, you get what we have here 
today.
  I want to use this occasion to say something to the American people, 
to the people of the State of Nevada, to leave them with the hope that 
those in high office have not been bereft of all reason, sense and 
sensibility. What the President did was wrong. It was immoral. I don't 
believe it constitutes a crime justifying his removal from office. What 
Mr. Starr did, and continues to do, is also wrong, and it is also 
immoral.
  But their conduct is not the standard to which we must hold 
ourselves. We, all of us in Government, can do better. We must do 
better. The American people have the right to expect that or it doesn't 
matter how great we are, how great our ideas or how powerful our 
values. Set the standard high and judge by that standard. That is how 
the system is supposed to work, and in the long run it is how our 
constitutional form of government, with a legacy of more than 200 
years, has worked and, with the help of a power greater than any of us, 
will continue to work.
  Mr. EDWARDS. I add my praise, Mr. Chief Justice, for the work you 
have done, but I would add one other thing. The last time I saw you 
before this impeachment trial you were leading a sing-along at the 
Fourth Circuit Judicial Conference. I thought it might be a good idea 
for this group.
  The CHIEF JUSTICE. A healing device.
  (Laughter.)
  Mr. EDWARDS. Thank you, Mr. Chief Justice. I have prepared remarks. 
But I am not going to use them. I made that decision about 20 minutes 
ago.
  I have been sitting, listening to my fellow Senators speak, and I 
want to speak to you from the heart. I want to speak to you about a 
struggle, because I have been through a struggle. It is a real 
struggle. And I suspect that there are an awful lot of you who have 
been through the same struggle--both before we voted on the motion to 
dismiss and, for me, since we voted on the motion to dismiss.
  For me, the law is a sacred thing. And that is part of my life. I 
have seen what the law can do. It is a powerful, powerful thing. It can 
do extraordinary things for ordinary people. And I believe we have been 
given a sacred responsibility. I will tell you what that sacred 
responsibility means to me personally. It means that when I walked in 
here the first day of this impeachment trial I was 100 percent 
completely open to voting to remove this President.
  And I have to tell you all something, my friends on this side of the 
aisle, that wasn't a hard thing for me to do. I think this President 
has shown a remarkable disrespect for his office, for the moral 
dimensions of leadership, for his friends, for his wife, for his 
precious daughter. It is breathtaking to me the level to which that 
disrespect has risen.
  So I said to myself, what is the right and fair thing to do? And this 
is what I have done. I have looked--many times until 3 a.m. in the 
morning--at the evidence in this case. Because I think that is the way 
we need to make this decision.

[[Page 2507]]

  The perjury charge, I believe, is just not there. The evidence is not 
there to support it. I know many of you believe it is there. I respect 
your view on that. I don't believe it is there. The obstruction charge 
is a totally different matter. And this is the way I have thought about 
the obstruction charge.
  I view, in my mind's eye, the scales of justice. And on one side, 
where the prosecution makes an allegation, I put their evidence. On the 
other side I put the defense evidence. And I do believe that for a 
charge this serious that the proper standard is beyond a reasonable 
doubt.
  So after that evidence is put on both sides of the scale of justice, 
what happens? I want to just very briefly go through what I think are 
the four main charges for obstruction.
  First, the false affidavit. The prosecution side: There is, in my 
judgment, clearly a false affidavit. The President had a conversation 
with Monica Lewinsky about filing an affidavit where he said to her, 
``You can file an affidavit; that might be a way for you to avoid 
testifying.'' That is on the prosecution side.
  I want to make a really important point for me personally here. I 
think there is an enormous difference between what has been proven and 
what we suspect, because I have to tell you all, I suspect a lot that 
has not been proven.
  What is on the defense side? On the defense side: what has been 
proven in this case is that President Clinton never saw the affidavit, 
never had a discussion with anyone about the contents of that 
affidavit. He didn't know what was in it. He never told, according to 
her, Monica Lewinsky or anyone what should be in the affidavit.
  So that is the evidence on the scales of justice: One for the 
prosecution; that evidence for the defense. For me it is a very clear 
thing. The scales tilt in favor of the defense, and they certainly 
don't tilt strongly enough to be beyond a reasonable doubt.
  The second charge--and the one that bothers me the most--coaching 
Betty Currie. The evidence on the side of the prosecution: President 
Clinton has a conversation with Betty Currie just after he has been 
questioned in his deposition where he makes very declarative statements 
to her--it happens twice--very declarative statements to her about what 
he remembers, many of which we now know to be false. And his 
explanation for that conversation lacks credibility, to say the least, 
that he was trying to refresh his memory. I doubt if anybody buys that. 
That is on one side, that is on the prosecution side.
  What is on the other side? On the other side we have Betty Currie 
saying it had no influence on her. But that is not the most troublesome 
thing for me. The troublesome thing is this: For that conversation to 
be obstruction of justice, it must have been proven that it was 
President Clinton's intent to affect her sworn testimony.
  Now, what are the other possibilities? We have a man who has just 
been confronted with this problem, who is political by nature. And do 
we really believe that the first thing he thought about is, ``I'm going 
to go protect myself legally''? I suspect the first thing he thought 
about is ``I'm going to protect myself politically.'' He was worried 
about his family finding out. He was worried about the rest of the 
staff finding out. He was worried about the press finding out. Do I 
know which of these things are true? Absolutely not. I don't know which 
of them are true. Doesn't that answer the question? If we don't know 
which of those things are true, have they been proven? If we don't know 
what was in his head at that moment, how can we find that the 
prosecution has proven intent beyond a reasonable doubt?
  The third charge, the job search. On the prosecution side of the 
scales of justice, we have an intensified effort to find a job for 
Monica Lewinsky. I think that has been proven. I think that has been 
proven clearly. On the other side, we have testimony from Monica 
Lewinsky that she was never promised a job for her silence. We have 
evidence that the job search, although not as intense, was going on 
before anyone knew she would be a witness. We have Vernon Jordan 
testifying under oath--I sat there and watched it and looked him in the 
eye--that there was never a quid pro quo, that the affidavit was over 
here and the job search was over here.
  The reality is, when you put all that evidence on the scale--
prosecution evidence on one side, defense evidence on the other--at 
worst the scale stays even. And the prosecution has got to prove this 
case in order to remove the President of the United States beyond a 
reasonable doubt. They just have not proven it no matter what we 
suspect. No matter what we suspect. So that is the false affidavit 
which we have talked about, coaching Betty Currie, the job search.
  Now to the gifts. Let's see what the proof is. What is the proof--not 
the suspicion. On the prosecution side, we know that the President's 
secretary went to Monica Lewinsky's house, got the gifts, took them 
home and hid them under her bed. I have to tell you, on its face, that 
is awful suspicious, and it is strong, heavy evidence. The problem is, 
there is evidence on the other side. That evidence doesn't stand alone.
  First, we have the testimony of Betty Currie that Monica Lewinsky 
called her. Second, we have the fact that President Clinton gave her 
other gifts on that Sunday, which makes no sense to me. I heard the 
House managers try to explain it away. I have been a lawyer for 20 
years, and I have been in that place of trying to explain away 
something that makes no sense. It doesn't make sense. Monica Lewinsky, 
herself, testified that she brought up the issue of gifts--not 
President Clinton--and that the most President Clinton ever said was 
something to the effect of ``I'm not sure. Let me think about that.''
  Now when that evidence goes on the defense side and the only evidence 
on the prosecution side is the fact that those gifts are sitting under 
the bed of Betty Currie, what happens to the scale? At best, the scale 
stays even. In my judgment, it actually tilts for the defense. There is 
no way it rises to the level of ``beyond a reasonable doubt.''
  Every trial I have ever been in has had one moment, one 
quintessential moment when the entirety of the trial was described, and 
in this case we have such a moment. There was a question that had my 
name on it. The reality is, Senator Kohl wrote it--I tagged on--but it 
was a great question. The question was, Is this a matter about which 
reasonable people can differ? I will never forget Manager Lindsey 
Graham coming to this microphone and his answer was ``Absolutely.'' Now 
if the prosecution concedes that reasonable people can differ about 
this, how can we not have reasonable doubt?
  These things all lead me to the conclusion that however reprehensible 
the President's conduct is, I have to vote to acquit on both articles 
of impeachment.
  I have one last thing I want to say to you all, and it is actually 
most important. If you don't remember anything else I said, and you 
weren't listening to anything else I have said, please listen to what I 
am about to say because it is so important to me.
  I have learned so much during the 30 days that I have been here. I 
have had a mentor in Senator Byrd, who has probably been a mentor to 
many others before me. I have formed friendships with people on both 
sides. Senators Leahy and Dodd, who I worked with on these 
depositions--wonderful, wonderful Senators. I have learned what 
leadership is about from these two men sitting right here--Senators 
Lott and Daschle. I have loved working with Senators DeWine and 
Thompson. And Senator Specter and I worked together on a deposition. He 
showed me great deference and respect. I have no idea why, but he did; 
and I appreciate it. I have deep respect and admiration for my senior 
Senator from North Carolina, who has been extraordinarily kind and 
gracious to me since I arrived here.
  Let me tell you what I will be thinking about when my name is called 
and I cast my vote, hopefully tomorrow. I will be thinking about juries 
all over this country who are sitting in deliberation in rooms that are 
not nearly as

[[Page 2508]]

grand as this but who are struggling, just as you all have and I have, 
to do the right thing. I have to say, I have a boundless faith in the 
American people sitting on those juries. They want to do what is right. 
They want to do what is right in the worst kind of way.
  An extraordinary thing has happened to me in the last 30 days. I have 
watched you struggle, every one of you. I have watched you come to this 
podium. I have listened to what you have had to say. I talked to you 
informally; I watched you suffer. I believe in my heart that every 
single one of you wants to do the right thing. The result of that for 
me is a gift. And that gift is that I now have a boundless faith in 
you.
  Thank you, Mr. Chief Justice.
  Mr. AKAKA. Mr. Chief Justice and esteemed colleagues, I rise to offer 
my thoughts on the momentous decision we will render shortly. At the 
start, I deeply regret that the American people have been denied the 
opportunity to hear the Senate's final deliberations on the impeachment 
charges against President Clinton. I say this because I have been 
thoroughly impressed with the thought, tenor, and passion brought to 
this deliberation by my colleagues on both sides of the aisle. I wish 
the American people could have the opportunity to observe what I have 
had the privilege of witnessing for the past two days. Whether seated 
in the gallery, watching on television, listening on radio, or 
following on-line, the public would have benefitted tremendously from 
the opportunity to hear, in real time and full context each of our 
remarks. The opportunity to read a transcript later this week in the 
Record will not come close to viewing these proceedings. It lacks the 
power of the moment.
  When I took the oath to do impartial justice on January 7, 1999, I 
knew, as one of 100 Senators, that I was assuming the unique role of 
judge and juror in the Senate impeachment trial of William Jefferson 
Clinton. Over these weeks, I have listened to the presentations by the 
House Managers, the White House counsel, and the President's defense 
team without prejudice. I have analyzed the video testimony of Monica 
Lewinsky, Vernon Jordan, and Sidney Blumenthal, and read numerous grand 
jury transcripts, the referral from the Independent Counsel, and the 
House report and related documents.
  The House of Representatives approved two articles of impeachment by 
straight party line votes after bitter and divisive partisan debate, 
forwarding to the Senate the impeachment articles to remove the 
President of the United States as authorized by the Constitution. At 
the same time, the partisan nature of the House action invites 
challenge to its legitimacy. And, although we have more often than not 
voted along party lines during the impeachment trial, I am proud of 
this body and its genuine effort to pursue a bipartisan course during 
our trial of the President. We have disagreed without being 
disagreeable.
  The body has not strayed too far from the comity and tone that marked 
our first bipartisan caucus to set the framework for this proceeding.
  We have taken the admonition of the senior Senator from West Virginia 
to heart and avoided descending into the pit of caustic partisanship 
and recrimination.
  After reviewing volumes of evidence and weighing weeks of 
presentations before the Senate, I have concluded that a case has not 
been made on either of the articles of impeachment against President 
Clinton. Conviction and removal from office, as charged by the House 
Managers, is simply not warranted.
  The record does not sustain the level of proof necessary to convict 
and remove the President. Certain facts are indisputable: the President 
lied to the American people and to his wife and daughter about an 
extramarital affair; he lied to his staff; and he was misleading in his 
deposition in the Jones v. Clinton civil suit and his grand jury 
testimony.
  However, impeachment is not a Constitutional means to punish a 
President ``when he gets out of bounds,'' as proposed by the House 
Managers. The constitutional standard is whether high crimes and 
misdemeanors were committed, and that test has not been met.
  In 1974, the House Judiciary Committee rejected an article of 
impeachment against President Nixon based on the filing of a false tax 
return. It was reasoned that the President's misleading tax return was 
unrelated to his duties as president, although a minority believed the 
count was unsupported by the evidence. Thus we see that all crimes that 
may be punishable by the courts are not punishable by impeachment.
  Rather, impeachment is narrowly limited by the Constitution to 
offenses of treason, bribery, or other high crimes and misdemeanors. 
After listening to many presentations on this issue, I am convinced 
that impeachment and removal from office should only be used for crimes 
against the country or threats to our national security.
  Our founding fathers carefully defined the terms of impeachment in a 
manner that establishes a high threshold and requires the charges to be 
of an egregious nature. That is why the Senate has only once before 
held an impeachment trial for a President.
  The House Managers recommend impeachment because it is the only way 
in which the President's misconduct can be punished. Yet, I remind my 
colleagues that the President remains subject to criminal and civil 
penalties after he leaves office in two years.
  As I will point out, the facts and other evidence accumulated and 
presented to the Senate do not meet the constitutional standard for 
impeachment and removal that our founding fathers established.
  Article One charges the President with perjury before the grand jury 
in August 1998, for willfully giving false testimony under oath in a 
judicial proceeding. Yet to prove this charge the House Managers 
introduced material from the Jones suit during their Senate 
presentation even though the House rejected an article of impeachment 
dealing with Paula Jones suit. Nonetheless, despite this blurring of 
the lines between criminal and civil matters, a perjury conviction 
requires that the testimony be material to the case at hand. Judge 
Susan Webber Wright's rulings in the Jones case specifically excluded 
evidence concerning Monica Lewinsky because it was immaterial.
  Furthermore, Thomas Sullivan, former U.S. Attorney for the Northern 
District of Illinois, testified before the House Judiciary Committee 
that perjury ``can be particularly arcane, including the requirements 
that the government prove beyond a reasonable doubt that the defendant 
knew his testimony to be false at the time he or she testified, that 
the alleged false testimony was material, and that any ambiguity or 
uncertainty about what the question or answer meant must be construed 
in favor of the defendant.'' Mr. Sullivan also noted that generally, 
``federal prosecutors do not use the criminal process in connection 
with civil litigation involving private parties,'' because, ``there are 
well established remedies available to civil litigants who believe 
perjury or obstruction has occurred.''
  Article Two charges the President with seven different instances of 
obstruction of justice. The House Managers insist that the evidence 
shows that these separate acts constitute a deliberate attempt by the 
President to obstruct justice. The White House argues that the 
President did not seek to influence witnesses nor impede discovery. 
Legal scholars have argued that the lumping together of these seven 
charges would cause most courts to throw out the charges, and witness 
testimony undermines the House charges. After the smoke cleared from 
the charges and countercharges, it was evident to me that the 
connections between the actions of the President and the actions by the 
witnesses were circumstantial, at best.
  Moreover, I agree with White House counsel Charles F. Ruff, who in 
his closing arguments said of the House Managers, ``I believe their 
vision to be too dark, a vision too little attuned to the needs of the 
people, too little sensitive to the needs of our democracy.''

[[Page 2509]]

  In the obstruction of justice count, the Managers charge the 
President with asking Monica Lewinsky to lie, a charge that she denies 
in two dozen depositions, and testimony given under the protection of 
immunity. There is no evidence that the President ever asked her to 
provide a false affidavit in the Jones case or to testify falsely. 
Vernon Jordan, the President's close friend and advisor, testified that 
although he met with Ms. Lewinsky and was given a draft of the 
affidavit, he refused to review the document and referred the young 
woman to her attorney for advice and counsel.
  The House Managers say the President is guilty of obstructing justice 
when he ordered his secretary, Betty Currie, to retrieve gifts given by 
the President to Monica Lewinsky. However, Ms. Lewinsky's testimony, on 
a number of occasions, indicates that it was she who asked Mrs. Currie 
to keep the gifts, not the President.
  The House states that the President asked Vernon Jordan to intensify 
an on-going job search in Ms. Lewinsky's behalf after Judge Webber 
Wright ruled that Paula Jones's attorney could investigate the 
President's sexual relations with state or federal employees.
  Mr. Jordan and Ms. Lewinsky first met in November 1997, a month 
before Ms. Lewinsky was listed as a witness in the Jones case. Sinister 
motives do not appear to be involved in the inquiries by Mr. Jordan on 
her behalf that led to two job rejections and one job offer. Efforts by 
the House Managers to link the job search and the affidavit unravel 
when the dates on which Mr. Jordan and Ms. Lewinsky first met, when Ms. 
Lewinsky's name first appeared on the Paula Jones case witness list, 
and the drafting of the affidavit are analyzed.
  The President, Ms. Lewinsky, and Mr. Jordan have testified that no 
one was seeking Ms. Lewinsky's silence, and Ms. Lewinsky further 
testified that she realized in October 1997 that she would not be 
returning to the White House for employment and she renewed her job 
search in New York City.
  The additional testimonies of Ms. Lewinsky, Mr. Jordan, and Mr. 
Blumenthal added no new information to the case against the President. 
I voted against deposing these witnesses since they already had been 
deposed many times.
  Moreover, we each received thousands of pages of testimony from the 
grand jury, various depositions, statements given under oath, and 
documents relating to the impeachment charges. We know that Ms. 
Lewinsky had been questioned on at least 23 separate occasions, 
including after the President's grand jury testimony and as recently as 
January 22, 1999, by the House prosecutors before testifying February 
1, 1999, on video. During arguments in favor of deposing Ms. Lewinsky, 
House Manager Bryant urged the deposition because he believed the 
Senate should observe her demeanor, her tone, and her tenor in 
responding to questions.
  I respectfully disagreed with Mr. Bryant then, as I do now. My 
decision was bolstered when I viewed Ms. Lewinsky's videotaped 
testimony in which she reaffirmed her grand jury testimony. I saw no 
purpose in bringing her to the witness table again, nor Mr. Jordan, who 
had been questioned five times, nor Mr. Blumenthal, who has answered 
questions under oath four times. These witnesses did not change their 
testimonies, nor did they provide information that was omitted in 
previous testimony.
  The witnesses' statements are a matter of record, and they comprise 
thousands of pages encompassed in the volumes of testimony and sworn 
affidavits that are the basis of the House articles of impeachment. I 
concur with House majority counsel David Schippers who said during the 
House Judiciary impeachment proceedings, ``As it stands, all of the 
factual witnesses are uncontradicted and amply corroborated.''
  In conclusion, I cannot overstate my disappointment with the actions 
of the President. He deliberately misled the American people and 
greatly diminished the public's trust in the office of the presidency. 
However, I have concluded that the two articles of impeachment, as 
drafted and presented by the House, fail to meet the level of high 
crimes and misdemeanors, and I will vote to acquit the President.
  Mr. LEAHY. Thank you, Mr. Chief Justice.
  I ask unanimous consent that a fairly lengthy brief on this issue be 
printed in the Record at the conclusion of my remarks.
  The CHIEF JUSTICE. Without objection, it is so ordered.
  (See Exhibit 1.)
  Mr. LEAHY. Mr. Chief Justice, I ask unanimous consent to have my 
remarks made part of the public record.
  The CHIEF JUSTICE. Without objection, it is so ordered.
  Mr. LEAHY. Mr. Chief Justice, like others, I want to thank you for 
your professionalism and good humor in these proceedings even though I 
suspect there are days that both you and I wish we were back at our 
homes in Vermont rather than here.
  But I want to tell the Senators also of an extraordinary day that my 
good friend, Senator Stevens of Alaska, and I spent. We left Sunday 
afternoon from Washington for the funeral of King Hussein of Jordan. We 
came back at about 2 o'clock yesterday morning. The delegation was an 
extraordinary one: Two other Members of Congress, senior members of the 
President's staff; even the parents of the King's widow, Queen Noor of 
Jordan, were with us.
  And the airplane, Air Force One, that is so recognizable around the 
world as a symbol of America, underscored our country's presence even 
as it landed. And Ted will recall the TV was on in the plane. We could 
see they interrupted national television in Jordan to show our plane 
landing. What was most remarkable to the people assembled from around 
the world for the funeral was the dramatic appearance not only of the 
President of the United States, William Jefferson Clinton, but three 
former U.S. Presidents--Gerald Ford, Jimmy Carter and George Bush--they 
joined with President Clinton as an extraordinary demonstration not 
only of bipartisanship but of a united American commitment to the peace 
policies of King Hussein, and the U.S. role in a continuing peace 
process.
  The symbol of American presence and the American continuity could not 
have been stronger with these four Presidents. It was a privilege to be 
there, a privilege I will always cherish.
  In the frenetic hours on the ground, I observed the leaders from the 
Middle East and around the world.
  I saw leader after leader making a strong effort to come to President 
Clinton and to speak with him. I listened to his conversation. It was 
clear to me he had a very good understanding of the issues that faced 
not only our country, but their country, and an understanding about how 
America's interest affect all of us.
  Probably the greatest contrast was in President Clinton's brief 
meeting with Boris Yeltsin, the President of Russia, a country that 
long symbolized our polar opposite during the cold war. We saw an aging 
President Yeltsin, unable to stand without two men helping him, a man 
who had to leave very shortly thereafter--well before the funeral was 
over--because his strength had faded. What a contrast.
  We saw a dynamic Tony Blair, the Prime Minister of England. We saw 
the leaders of Israel, Japan, Syria, Kuwait, Saudi Arabia, Libya, 
Pakistan, India, Germany, France, Ireland, Egypt, and others coming 
together, brought together by their respect for King Hussein. Much of 
their attention was focused on the leader of the United States.
  The questions raised by this trial came back to me. I thought, do we 
abandon our elected leader because of concern about his personal 
conduct? Now, if this question was in my mind, it was in the minds of a 
lot of people there. I have been privileged to know many of them, and 
many asked me the question, Are we really serious about impeachment and 
removal? They asked that because they said the United States is not a 
parliamentary system of government, and the one thing that they can 
rely on is when we elect a President, even if it is not the President 
they wished we had elected, there

[[Page 2510]]

are 4 years to deal with him and they can determine their foreign 
policy with the most powerful Nation on Earth accordingly.
  They said they have great respect for our strength and leadership, 
and they asked if it is really possible that partisanship in the 
Congress could destroy that heritage overnight.
  In my notes, as I flew back throughout the dark night, I asked 
myself, Are we going to spend our heritage of continuity and strength 
this way? Are we going to convict the President on these charges in 
this record? Are we going to destroy a heritage and continuity we 
earned, from our own Revolution, through a Civil War, through World 
Wars, through deaths and assassinations of Presidents, through great 
economic prosperity and devastating recession and depression. I 
completed my notes by writing, ``It is no longer a question of whether 
we do this to Bill Clinton, but whether we do it to ourselves.''
  The record of this impeachment trial is a time capsule. We leave it 
for succeeding generations. As the trial began, we reopened the records 
of 1868. I looked at those records. I thought, someday someone will 
review ours in the same way. We leave behind a trail of precedents. Our 
successors will try to understand them. If we act wisely, they will try 
to emulate it. Our actions can stir a chord that will vibrate 
throughout the history of our Republic.
  So in explaining my decisions in this trial, I know that I am 
addressing myself to fellow Vermonters and fellow Senators, but also to 
future generations. In that future generation is my own grandson and 
perhaps even his grandchildren.
  The conclusion I have reached on the articles of impeachment is 
imbued with this solemn knowledge and sense of duty. My conclusion is 
we must not avenge the faults of William Jefferson Clinton upon our 
Nation, our children and our Constitution.
  Extreme partisanship and prosecutorial zealotry have strained this 
process in its critical early junctures. Partisan impeachments are 
lacking in credibility. The framers knew this. We all know this.
  Socrates said: ``The greatest flood has soonest ebb; the sorest 
tempest, the most sudden calm.''
  In many ways, I say to my friends, especially our two distinguished 
leaders who worked so hard on this, in many ways the Senate's work has 
been the calm after the storm. We began the 106th Congress, the last of 
the 20th century, facing a challenge no Senate has been called upon to 
address since the aftermath of the Civil War. We took a special oath 
administered to Senators who must determine whether to override the 
election by the people of the United States of their President and 
remove him from office.
  The Constitution purposely restrains the Congress, and carefully 
circumscribes our powers to remove the head of the executive branch of 
the Federal Government. The Constitution intentionally makes it 
difficult to override the electoral judgment of the American people. I 
will cast my vote wary of the dangers posed by the House managers' 
seductive invitation to vote to remove the President for symbolic 
purposes.
  We all agree the President's conduct was inexcusable. It was deeply 
disappointing, especially to those who know the President and who 
support the many good things he has done for this country and the 
world. His conduct in trying to keep this relationship secret from his 
wife and family, his friends and associates, from the public glare of a 
politically charged lawsuit, may be understandable on the human level, 
but it has had serious consequences for him personally and for the 
legacy of his Presidency.
  The President has admitted before a Federal grand jury terribly 
embarrassing personal conduct and has seen a videotape of that grand 
jury testimony broadcast to the entire Nation, with excerpts replayed 
over and over again. This modern day version of the public stockade has 
been difficult to witness for those who know this man and his family 
and care about them.
  The Jones lawsuit has now been settled and $850,000 has been paid on 
a case that the District Court judge had dismissed for failing to state 
a claim.
  The Clinton Presidency has been permanently tarnished. The Senate 
trial provided a forum to replay the embarrassing and humiliating facts 
of the President's improper relationship. No one cay say the Presidency 
has emerged unscathed.
  For me, the most regrettable action is the nationally televised 
statement to the American people, where he shook his finger defiantly 
and said the allegations were untrue. That was not charged in the 
articles of impeachment, but it was intended to mislead the American 
people. That statement was wrong. And even though he later apologized 
for his action, I feel strongly that no President should so 
intentionally deceive the American people.
  But condemning the President is not the purpose of the impeachment 
trial. Impeachment cannot be about punishing the officeholder. One of 
the predecessors of mine and of Senator Jeffords, Senator George 
Edmunds of Vermont, explained in 1868, that:

       [p]unishment by impeachment does not exist under our 
     Constitution. . ..[The accused] can only be removed from the 
     office he fills and prevented from holding office, not as 
     punishment, but as a means merely of protection to the 
     community. . ..

  So our focus has to be on whether conduct which the House has charged 
has been proven and warrants President Clinton's removal from office to 
protect the public.
  The President's indiscretions alone did not bring us to this point. 
Raising this matter to the level of a constitutional impeachment only 
began with the referral from the special prosecutor, Kenneth Starr. 
Justice Robert Jackson, when he was attorney general, observed that the 
most dangerous power of prosecutors is the power to ``pick people that 
he thinks he should get rather than cases that need to be prosecuted.'' 
I am concerned that is what has happened in the case of President 
Clinton.
  Does anyone recall after the fruitless years of investigation of this 
President, the past year of upheaval, that it was the talking points 
given to Ms. Tripp by Ms. Lewinsky which were supposed to be the 
smoking gun that proved a vast conspiracy to suborning perjury? I don't 
think anybody doubts Ms. Lewinsky's account that she wrote the talking 
points based on her discussions with Ms. Linda Tripp, and she never 
discussed them with the President.
  Monica Lewinsky consistently maintained that no one ever asked or 
encouraged her to lie; she was never promised a job for her silence. 
Indeed, in her 24th interview, the Senate videotaped deposition 
demanded by the House managers, she testified to her own purposes in 
keeping her relationship secret. She acted in what she thought was her 
own best interests. She sought to conceal this relationship because she 
did not want to be humiliated in front of the whole world. And the 
record establishes it was Linda Tripp rather than President Clinton who 
acted in the conflicting roles as Ms. Lewinsky's intimate confidante 
and ultimate betrayer.
  As a former prosecutor, one of the questions I asked is whether these 
criminal charges of perjury and obstruction would have been brought 
against Bill Jones rather than Bill Clinton. Experienced prosecutors, 
Republican and Democrat, testified before the House Judiciary Committee 
that no prosecutor would have proceeded based on the record compiled by 
Mr. Starr, and prosecutors I have talked to have said they wouldn't 
even get to a jury with it. As a former prosecutor, I agree and note 
that during the course of the Senate proceeding, the case has gotten 
weaker.
  The testimony in the record shows that Ms. Lewinsky had no intention 
of revealing her relationship with the President. She is the person who 
originated and carried out the plan to hide certain gifts from the 
Jones lawyers. The only crimes shown to possibly have occurred are not 
high crimes but those for which Ms. Lewinsky and Ms. Tripp have already 
received immunity from prosecution from Ken Starr. To influence our 
judgment, the managers

[[Page 2511]]

have argued that the consequences of the President's acquittal of their 
unproven charges would be dire for our children, I have been married 
for 37 years to a woman I love; my wife and I have raised three 
wonderful children. I don't need the House of Representatives to tell 
me how to raise my children. I trust the parents of America to raise 
their children, to explain what the President did was wrong, to point 
out the humiliation and other consequences brought on himself and his 
Presidency. That is not our the Congress' job. That is the job for 
parents in this country.
  I don't believe the Constitution calls upon us to remove a duly 
elected President for symbolic purposes. Rather, I believe the 
precedent set by conviction without proof and removal without 
constitutional justification would be far more dangerous for our 
Republic than his actions.
  The House managers have warned that should the President be 
acquitted, it would damage the ``rule of law.'' I strongly disagree, 
because the supreme rule of law in this country is the Constitution; 
that is what we have to uphold.
  Partisan impeachment drives are doomed to fail. The Senate must 
restore sanity to this impeachment process. We must exercise judgment 
and do justice. We have to act in the interest of the Nation. History 
will judge us based on whether this case was resolved in a way that 
serves the good of the country, not the political ends of any party or 
the fortunes of any person.
  We have all talked about President Andrew Johnson's impeachment. Few 
people will recall that after the unsuccessful effort to remove him 
from office, former President Johnson returned to serve this country as 
a U.S. Senator. I look forward to the day when the Senate can close our 
work as an impeachment court and that we can all return to our work--
our important work we face as U.S. Senators representing our States.
  I have served here with 259 Senators, including the 100 here now. I 
have respected all of you. I have had great affection for many of you 
on both sides of the aisle. I count among my best friends many Senators 
on both sides of the aisle. This is a difficult time. I will not 
question any Senator's vote on this. But the Senator from Vermont 
cannot vote to convict and I will not.
  Thank you.

                               Exhibit 1


 Procedural and Factual Insufficiencies in the Impeachment of William 
 Jefferson Clinton--Analysis by Senator Patrick Leahy, Ranking Member, 
                       Senate Judiciary Committee

                                Content

     I. Oath of Office
     II. How Did We Get Here?
       A. The President's Conduct
       B. Special Prosecutor Starr
       C. The House Judiciary Committee
       D. Vote by the House of Representatives
         1. Lame Duck House
         2. Rejected Charges
     III. Secret Evidence
     IV. The Articles Are Unfairly Drafted
       A. Article I is Defectively Vague
       B. Both Articles Charge Multiple Offenses
     V. The Senate's Duty
       A. Standard of Proof
       B. The Charges Have Not Been Proven
         1. Article I
         2. Article II
       C. There Is No Need to Call Witnesses
       D. Removal Is Not Warranted
     VI. Prior Judicial Impeachments for Perjury
     VII. ``Findings of Fact'' Fallacies
     VIII. Effect on Children and National Security
     IX. Deliberations on Dispositive Trial Motions Should Be Open
     X. Conclusion


                           I. OATH OF OFFICE

       On the first day of this Congress, the Vice President of 
     the United States administered the oath of office to the most 
     recently elected Members of the Senate. I was honored by the 
     people of Vermont to be among those Members and to take the 
     oath of office to serve here as a representative of Vermont. 
     With this oath I have again sworn to protect and defend the 
     Constitution of the United States.
       We were reminded by the Majority Leader at the beginning of 
     the last Congress that the oath we take was formulated in 
     1868 to help bring the country back together. As Senator Lott 
     has noted, following the Civil War, some urged continued use 
     of an ironclad test oath that barred those who had served the 
     Confederacy from serving in the Federal Government. It took 
     ``nearly a quarter of a century of confusion and acrimony'' 
     for the Senate to settle upon the oath that we take today.\1\
       The same year in which our oath was developed, our country 
     experienced its first, and until now, its only presidential 
     impeachment trial. History has judged harshly the ``Radical 
     Republicans'' who pursued that impeachment against President 
     Andrew Johnson. A notable exception is William Maxwell 
     Evarts, a Vermonter who was criticized by many Republican 
     party leaders for defending a President of the opposite 
     political party.
       I have been proud of another Vermonter, Gregory Craig, who 
     has played a critical role in the defense of President 
     Clinton.
       This Senate is the last of the 20th Century. We began this 
     first session of the 106th Congress facing a challenge that 
     no other Senate in over 100 years has been called upon to 
     address. To deal with that challenge, we all took another 
     oath, an oath to do ``impartial justice according to the 
     Constitution and laws. ``That is the oath administered to 
     Senators who must determine whether to override the election 
     of the President of the United States and remove him from 
     office. That oath calls upon Senators to rise above partisan 
     politics and our personal feelings about President Clinton.
       I focus first on the oaths we take to be Members of the 
     Senate and to serve in this impeachment trial since the House 
     Managers opened and closed their presentation to the Senate 
     pointing to the oaths the President swore to uphold when he 
     assumed on two occasions the office of the President.
       The Managers have emphasized that the President's inaugural 
     oath of office imposes a constitutional duty to ``take care 
     that the Laws be faithfully executed.'' Their argument is 
     that the presidential oath spelled out in Article II, section 
     1 of the Constitution establishes a special standard of 
     conduct for the President and when the President violates a 
     law which he has sworn faithfully to execute, he should be 
     removed.
       Frustrated by the restrictions placed on Congress's 
     impeachment power, which limits the ground for removal to 
     ``Treason, Bribery or other high Crimes and Misdemeanors,'' 
     the Managers seek to find alternative constitutional footing 
     to remove this President. But, the Constitution simply does 
     not say that a President shall be removed for ``Treason, 
     Bribery, or other conduct inconsistent with his presidential 
     oath and duties.'' Nor does it say that a President shall be 
     removed for ``Treason, Felony, or other Crime,'' which is the 
     formulation used in the Constitution's Extradition Clause.\2\
       The Framers purposely restrained the Congress and carefully 
     circumscribed our power to remove the head of the co-equal 
     Executive Branch of the Federal Government. As Professor 
     Laurence Tribe pointed out last November, during a House 
     subcommittee hearing on the history of impeachment, the 
     presidential oath and Take Care clause cannot properly be 
     invoked so as to make the President of the United States more 
     vulnerable to impeachment and removal from office than other 
     federal officials. ``[I]t simply cannot be the case under our 
     Constitution that removing a sitting president should be 
     easier, not harder, than removing a vice president, a cabinet 
     officer, or a sitting federal judge.'' \3\
       The Managers have invited the Senate to lower the bar for 
     impeachment and removal of a President by distorting the 
     constitutional text and using the presidential oath in a 
     manner never contemplated by the Framers. I cast my vote 
     mindful of the dangers this seductive invitation poses not 
     only for this President but, more importantly, for the future 
     of the presidency and our constitutional framework.
       As my oaths demand, I will work to protect and defend the 
     Constitution. I will continue to defend our constitutional 
     democracy against encroachments from all sides.
       Over the last few years, we have seen scores of 
     constitutional amendments introduced each Congress and 
     several voted upon each year. I have spoken about the assault 
     by amendment being made against the Constitution and defended 
     the Constitution against these ``bumper sticker'' proposals 
     for constitutional edits. The impeachment of the President is 
     a matter of similar importance. What we do, in terms of the 
     standards we apply and the judgments we make, will either 
     follow the Constitution or alter the intent of the Framers 
     and lower those standards for all time. I have heard more 
     than one Senator acknowledge that in this sense it is not 
     just the President but also the Senate on trial in this 
     matter.
       In considering what to do we cannot and must not ignore how 
     we arrived at this point lest our actions countenance 
     repetition in the future. We are now in a position to write 
     the lessons we want heeded by future Members who have the 
     privilege to serve America in Congresses into the next 
     century and millennium.


                        II. HOW DID WE GET HERE?

       When former Senator Dale Bumpers spoke to the Senate about 
     the task before us, he posed a question that many Senators 
     have asked themselves over the course of these impeachment 
     proceedings. He asked, ``How do we come to be here?'' \4\ I 
     raised virtually the same question in an opinion editorial 
     published on December 13, 1998, in the Los

[[Page 2512]]

     Angeles Times. I noted Barbara Tuchman's gripping account in 
     The Guns of August of how the world teetered into the 
     catastrophe of World War I. She recalled a former German 
     chancellor's question to his successor: ``How did it all 
     happen?'' ``Ah, if only we knew,'' was the reply.
       Future generations may ask the same question of us as they 
     ponder not only how but also why this sorry episode of 
     admitted presidential misconduct led this great country to 
     the brink of paralysis over the possibility of removing a 
     popular President, whose leadership has given this country 
     not just a balanced budget but a surplus two years running, 
     the lowest unemployment in decades and the strongest economy 
     in the world. Our economy is in the best shape in a 
     generation in no small part because of the President's 
     economic policies. We should be working with the President to 
     make the hard choices and develop the bipartisan cooperation 
     that are needed to move the country forward into the 21st 
     Century with a secure Social Security, strong Medicare and 
     needed investments in education.
       Instead, we find ourselves facing the first impeachment 
     trial of a duly-elected President and only the second 
     impeachment trial of a sitting President in the history of 
     this country. We find ourselves in this situation due to the 
     poor judgment of the President, whose personal conduct was 
     inexcusable; the antics of a Special Prosecutor run amok; and 
     the political posturing of partisan House Republican leaders, 
     who misconstrued the constitutional role of the House and 
     advanced a take-it-or-leave it strategy of impeachment or 
     nothing. Each step of this unfortunate process has notably 
     lacked one important element: the exercise of sound judgment.
       That is why the country has looked to the Senate to restore 
     political sanity to this process. The demand on us is not 
     simply to uphold the ``rule of law,'' about which the 
     Managers have repeatedly lectured us. Our oath requires far 
     more than the ministerial act of applying the law to the 
     facts or accepting blindly the facts and conclusions 
     presented by either side in this trial. We are required to 
     evaluate the facts, not in isolation, but in the context of 
     our precedent and the history of impeachments, and with our 
     focus always on what is good for the country. In short, we 
     are required to do what has been missing up to now: exercise 
     judgment, and do so in an impartial fashion. The beginning 
     point in this process must start with the President.
     A. The President's Conduct
       We can all agree that the President's conduct with a young 
     woman who was working in the White House was wrong. It was 
     also deeply disappointing, especially to those who know the 
     President and who support the many good things he has done 
     for this country and the world. His conduct in trying to keep 
     his inexcusable relationship secret from his wife and family, 
     his friends and associates, and from the public glare of a 
     politically-charged lawsuit, though understandable on a human 
     level, has had terrible consequences for him personally and 
     for the legacy of his presidency.
       For me, one of the President's most regrettable actions was 
     his nationally-televised statement to the American people in 
     which he shook his finger and defiantly told us that the 
     allegations were untrue. Although not charged in the Articles 
     of Impeachment, that statement was intended to mislead the 
     American people with respect to the nature of his 
     relationship with Ms. Lewinsky. While I understand the 
     pressures that he was under at the time, that statement was 
     wrong. Although the President later apologized for his 
     actions, I feel very strongly that no President should 
     intentionally deceive the American people and I condemn him 
     for having done so.
        Senator Bumpers reminded us of the human costs that have 
     been paid by this President and his family. The President has 
     admitted before a Federal grand jury terribly embarrassing 
     personal conduct and has seen a videotape of that grand jury 
     testimony broadcast to the entire nation, with excerpts 
     replayed over and over again. This modern day version of the 
     public stockade has been difficult to witness for those who 
     know this man and his family. His punishment has also taken 
     its financial toll. The underlying lawsuit has now been 
     settled and $850,000 paid on a case that initially sought 
     only $75,000 in compensatory damages--a case that the 
     District Court judge had dismissed for failing to state a 
     claim.
       His presidency has been permanently tarnished by 
     impeachment. The Senate trial has provided a forum to replay 
     the embarrassing and humiliating facts of the President's 
     improper relationship. No one can say this President or his 
     presidency has emerged unscathed.
     B. Special Prosecutor Starr
       But the President's indiscretions and conduct did not alone 
     bring us to this point. Raising this matter to the level of a 
     constitutional impeachment only began with an investigation 
     and referral from Special Prosecutor Kenneth Starr.
       Justice Robert Jackson, when he was Attorney General in 
     1940, observed that the most dangerous power of the 
     prosecutor is the power to ``pick people that he thinks he 
     should get, rather than cases that need to be prosecuted.'' 
     When this happens, he said, ``it is not a question of 
     discovering the commission of a crime and then looking for 
     the man who has committed it, it is a question of picking the 
     man and then . . . putting investigators to work, to pin some 
     offense on him.'' ``it is here,'' he concluded, ``that law 
     enforcement becomes personal, and the real crime becomes that 
     of being unpopular with the predominant or governing group, 
     being attached to the wrong political views, or being 
     personally obnoxious to or in the way of the prosecutor 
     himself.'' \5\
       In the case of President Clinton, things became personal a 
     long time ago, When Whitewater failed to produce, the 
     President's detractors began searching for a scandal. 
     ``Travelgate'' went nowhere. ``Filegate'' was another dead 
     end. Vincent Foster's tragic death was a suicide. Last 
     summer, it was reported that the Special Prosecutor had his 
     investigators scouring the countryside looking for women who 
     may have been intimate with Bill Clinton at some point over 
     the last several years. I spoke out then, noting my concern 
     and trying to sound a cautionary note that the permanent 
     investigation of the President was taking yet another wrong 
     turn.\6\
       Finally, after four years of fruitless investigations, 
     Special Prosecutor Starr renewed his acquaintance with Linda 
     Tripp and began the Monica Lewinsky phase of his 
     investigation. According to Mr. Starr, that contact with 
     Linda Tripp began on January 8, 1998, days before Ms. 
     Lewinsky had filed her affidavit in the Jones case and before 
     the President's deposition in that matter.\7\ As an officer 
     of the court, he could have immediately referred Ms. Tripp's 
     information to others with authority over such matters. But 
     he did not.
       Most law enforcement authorities strive to prevent crimes 
     from occurring. Not so with Special Prosecutor Starr. He 
     engaged all the influence, power and authority he could 
     muster to get the President. He adopted Ms. Tripp as his 
     agent, arranged to provide her with immunity from 
     prosecution, and had her wear a wire and lunch with Monica 
     Lewinsky while surreptitiously recording her. He then tried 
     over an extended period of many hours to convince Ms. 
     Lewinsky to agree likewise surreptitiously to record 
     conversations and help him make a case against the President.
       Does anyone recall after the past year of upheaval the 
     crimes the Special Prosecutor was seeking to find last 
     January? Recall that the ``talking points'' given to Ms. 
     Tripp by Ms. Lewinsky were supposed to be the ``smoking gun'' 
     showing that the President was involved in a vast conspiracy 
     and cover-up to suborn perjury from Ms. Tripp. No one now 
     doubts Ms. Lewinsky's account that she, and she alone, wrote 
     the talking points based on her discussions with Ms. Tripp. 
     Moreover, no one now doubts that Ms. Lewinsky never even 
     discussed those talking points with the President, the 
     President's attorneys, the President's friend Vernon Jordan, 
     or anyone associated with the White House.
       Also recall that Mr. Starr justified his pursuit of this 
     investigation based on Vernon Jordan helping Ms. Lewinsky 
     find a job in New York. His theory, as described in his 
     referral, was that Ms. Lewinsky was influenced to lie about 
     her relationship with the President through the assistance of 
     Mr. Jordan in finding her a job.\8\ Yet it was not the 
     President but Linda Tripp who, in early October 1997, first 
     suggested that Ms. Lewinsky move to New York and first 
     discussed with Ms. Lewinsky that she enlist Mr. Jordan's help 
     with her New York job search.\9\ Indeed, Linda Tripp's role 
     in this scandal is a pivotal one.
       Fresh from conferring with Mr. Starr's investigators, armed 
     with promises of immunity from prosecution, Linda Tripp met 
     with the Jones lawyers on the eve of the President's 
     deposition and briefed them on the President's relationship 
     with Ms. Lewinsky. Even Mr. Starr eventually admitted that 
     his office could--and should--have kept ``better control'' of 
     Ms. Tripp.\10\
       A number of concerns have been raised about how this 
     investigation was initiated and conducted by the Special 
     Prosecutor, including whether Mr. Starr withheld material 
     information from the Attorney General when seeking to extend 
     his jurisdiction over the Lewinsky matter, whether he 
     concealed his prior consultations with the attorneys in the 
     Jones case, threatened a potential witness with the loss of 
     the custody of her child, and subpoenaed a minor at school. I 
     have also expressed my concern over the aggressiveness and 
     lack of prosecutorial discretion of his investigation in 
     requiring the testimony of mother against daughter, attorney 
     against client, and Secret Service protectors against 
     protectee--the latter raising serious security issues that 
     could jeopardize the future safety of presidents--and 
     requiring bookstores to disclose their customers' choice of 
     reading material.\11\
       Finally, the persistent and politically damaging leaks of 
     secret grant jury proceedings have tarnished Mr. Starr's 
     investigation and fueled concern over his partisanship. 
     Indeed, soon after he had been appointed as special 
     prosecutor, leaks from ``law enforcement sources'' about the 
     Whitewater investigation under his supervision prompted Mr. 
     Starr to confirm publicly his understanding of the grand jury 
     secrecy

[[Page 2513]]

     rules. He issued a press release on October 20, 1994, 
     pledging that the Office of Independent Counsel (``OIC'') 
     would ``abide by all of the obligations imposed upon us to 
     protect the integrity of the grand jury process and our 
     ethical obligations as professionals, including those 
     requiring the secrecy of our proceedings.
       Despite this pledge by Mr. Starr, a federal judge 
     determined in June 1998 that the evidence established a prima 
     facie case that Mr. Starr's office had violated federal 
     secrecy rules prohibiting attorneys for the government from 
     disclosing confidential grand jury material. A final 
     adjudication of the matter has not been made.
       Then we come to the matter of the referral from Mr. Starr's 
     office. The Independent Counsel statute authorizes an 
     independent counsel to ``advise the House of Representatives 
     of any substantial and credible information . . . that may 
     constitute grounds for an impeachment.'' \12\ This provision 
     should not be construed to make an independent counsel the 
     House's Grand Inquisitor, nor to require an independent 
     counsel to become an advocate for impeachment. Rather, a 
     simple, straightforward delivery of the facts collected by 
     the independent counsel, unadorned by surmise, conjecture and 
     conspiracy theories is all that is authorized.
       Nevertheless, Mr. Starr used this statutory authorization 
     as a springboard to advocate impeachment. His conduct stands 
     in stark contrast to that of the Special Prosecutor in 
     Watergate. As Georgetown University Law Professor Robert 
     Drinan, who served with distinction on the House Judiciary 
     Committee, observed last November in testimony before the 
     House Judiciary Subcommittee on the Constitution:
       ``It is noteworthy that in 1974, the Special Prosecutor 
     gave information and facts to the House Judiciary Committee. 
     He did not, however, recommend impeachment. He knew that the 
     power to recommend impeachment was committed solely to the 
     House of Representatives by the Constitution itself.'' \13\
       I am not alone in questioning Mr. Starr's conduct and his 
     misinterpretation of his role. His own ethics advisor felt 
     compelled to resign his position after Mr. Starr appeared 
     before the House Judiciary Committee as the chief cheerleader 
     for impeachment.
       Thereafter, Mr. Starr went from chief cheerleader to chief 
     ``talking head,'' making a lengthy television appearance on 
     the news show 20/20. This was only days after he told the 
     House Judiciary Committee, ``We [the OIC] go to court and not 
     on the talk-show circuit.'' \14\ In this regard, it bears 
     mention that Mr. Starr's public relations advisor and his 
     highly touted ``career prosecutors'' have also appeared on 
     countless talk shows over the past year.
       Even during the Senate impeachment trial, Mr. Starr has 
     overstepped his proper role and intruded into the Senate's 
     prerogatives on how these proceedings should be conducted. In 
     effect, he became the chief prosecutor for impeachment. In 
     contravention of a unanimously adopted consent resolution on 
     how the trial would proceed, the Managers enlisted Mr. 
     Starr's help to force Monica Lewinsky to meet with them as 
     part of her immunity agreement. If she did not say the right 
     things, she subjected herself and her mother and father to 
     prosecution.
       Press accounts make clear that while Mr. Starr's 
     representatives were allowed to attend the interview of Ms. 
     Lewinsky on January 24, 1999, neither the Senate nor the 
     President's counsel were extended such courtesy. This 
     collusive move between the Managers and Mr. Starr was unfair 
     to the President's counsel and contemptuous of the Senate, 
     which had resolved to defer the issue of witnesses until 
     later in the trial.
       Mr. Starr's continued meddling during the Senate 
     impeachment trial has been roundly criticized by both 
     Democrats and Republicans. With his appetite whetted by one 
     weekend's interference with the Senate impeachment trial, the 
     very next weekend, on Sunday, January 31, 1999, Mr. Starr's 
     office leaked word to the New York Times that he had 
     determined he could indict a sitting President. Even the 
     House Managers balked at this interference, saying Mr. 
     Starr's latest leak was ``not helpful at all.'' \15\
     C. The House Judiciary Committee
       The next protagonist in this constitutional saga was the 
     House Judiciary Committee. In addition to the serious 
     substantive concerns raised by the way the Committee drafted 
     the Articles of Impeachment--which I will discuss later--the 
     Committee also made at least four critical procedural errors.
       First, the Republicans on the House Judiciary Committee 
     used the muscle of the majority to force its partisan will. 
     History tells us that, to be successful, impeachments must be 
     handled in a bipartisan manner. Chairman Henry Hyde himself 
     has observed on more than one occasion that bipartisanship is 
     crucial to any impeachment proceeding because a political, 
     partisan impeachment will not be trusted.
       The Framers anticipated that impeachments might be driven 
     by partisanship rather than real demonstrations of guilt. The 
     distinguished historian Arthur M. Schlessinger, Jr., stressed 
     the need for bipartisanship in impeachment proceedings in his 
     testimony before the House Judiciary Subcommittee on the 
     Constitution on November 9, 1998, stating:
       ``The Framers further believed that, if the impeachment 
     process is to acquire popular legitimacy, the bill of 
     particulars must be seen as impeachable by broad sections of 
     the electorate. The charges must be so grave and the evidence 
     for them so weighty that they persuade members of both 
     parties that removal must be considered. The Framers were 
     deeply fearful of partisan manipulation of the impeachment 
     process. . . . The domination of the impeachment process by 
     `faction' would in the view of the Framers deny the process 
     legitimacy.'' \16\
       In the 24 years that I have had the honor of serving as a 
     United States Senator, there have been three impeachments, 
     all of Federal judges. Questions have been raised about how 
     our actions as a body and as individual Members in those 
     prior judicial impeachments should serve as precedent for 
     this impeachment trial. I will address the significant 
     difference: Those three judicial impeachments were, from 
     beginning to end, handled in a bipartisan fashion. In each 
     case, the House of Representatives was unanimous, or nearly 
     so, in voting to impeach and there was strong bipartisan 
     support in the Senate to convict. Unfortunately, this was not 
     the model followed in the impeachment proceedings against 
     President Clinton.
       Second, the Committee skirted the important threshold 
     question whether, as a matter of constitutional 
     interpretation, the accusations set out in Mr. Starr's 
     referral stated a sufficient basis to justify the President's 
     impeachment and removal. Despite the concurrence of over 800 
     historians and constitutional scholars that no impeachable 
     offenses had been alleged,\17\ the majority on the House 
     Judiciary Committee never questioned Mr. Starr's initial 
     judgment that the President had committed impeachable 
     offenses. Had the Committee addressed itself to this issue at 
     the start, a factual inquiry may have been unnecessary.
       Third, having avoided this threshold issue, the Committee 
     then failed to conduct an independent fact-finding inquiry, 
     as it was instructed to do by House Resolution 581. This 
     resolution, adopted on October 8, 1998, directed the 
     Committee ``to investigate fully and completely whether 
     sufficient grounds exist for the House of Representatives'' 
     to impeach the President. For making such investigation, the 
     resolution authorized the Committee to issue subpoenas for 
     the attendance and testimony of any person, to take 
     depositions of potential witnesses, to require the production 
     of documents and other things, and to issue interrogatories.
       House Resolution 581 was patterned from the resolution 
     adopted by the House in February 1974, directing the 
     Judiciary Committee to investigate President Nixon. That 
     Committee spent almost five months gathering its own evidence 
     and hearing testimony from multiple witnesses before debating 
     and voting to adopt articles of impeachment.\18\
       By contrast, the House Judiciary Committee in 1998 relied 
     entirely on the referral of Special Prosecutor Starr. The 
     Committee called not a single witness with first-hand 
     knowledge of the facts to testify about the matters contained 
     in Mr. Starr's referral. The Committee instead relied on the 
     one-sided testimony procured by Mr. Starr's lieutenants in 
     the grand jury. Though this testimony was under oath, it 
     certainly was not tested by cross-examination nor was the 
     Special Prosecutor's office interested in any information 
     that might have been exculpatory to the President.
       The most probative testimony by Ms. Lewinsky before the 
     grand jury, for example, about no one asking her to lie or 
     promising her a job, was elicited by a diligent grand juror. 
     Yet another startling omission of exculpatory information 
     from Mr. Starr's referral was only discovered during the 
     Senate deposition of Ms. Lewinsky. She testified in response 
     to Manager Bryant's inquiry about whether the President told 
     her she should turn the gifts over to the Jones lawyers that 
     she had previously told Mr. Starr's agents that the President 
     saying, ``well, you have to turn over whatever you have,'' 
     sounded familiar to her.\19\
       Nevertheless, the House Judiciary Committee gave a standing 
     ovation to this Special Prosecutor, who misconstrued his 
     statutory role on advising the House and who failed the most 
     basic of a prosecutor's duties to be fair and to disclose 
     exculpatory information in his possession.
       Fourth and finally, the House Judiciary Committee minimized 
     the constitutional role of the House in the impeachment 
     process. The Committee erroneously relegated the House to the 
     role of mere ``accuser'', leaving to the Senate the heavier 
     responsibility of determining whether the conduct at issue 
     warranted removal of the President. Chairman Hyde said, on 
     September 11, 1998, at the beginning of the House impeachment 
     process, ``We are acting as a grand jury . . . we are 
     operating as a grand jury.'' \20\
       This view persisted during the House floor debate on the 
     Articles of Impeachment against President Clinton. Manager 
     Buyer told his colleagues that the House served ``the grand 
     jury function.'' \21\ Yet another House Member said, ``the 
     role of the House and our duty to the American people is to 
     act simply as a grand jury in reference to the

[[Page 2514]]

     impeachment charges presented.'' \22\ This erroneous view of 
     the role of the House of Representatives in the impeachment 
     process has persisted even in this trial, with one Manager 
     telling us that the House of Representatives ``operates much 
     more like a grand jury than a petit jury.'' \23\
       Having incorrectly analogized its role to that of a grand 
     jury, the House then applied a grand jury ``probable cause'' 
     standard in reviewing the evidence. Manager Barr confirmed 
     this mistake, stating, ``the House performed admirably in 
     essentially reaching the conclusion that there is probable 
     cause to convict the President of perjury and obstruction of 
     justice.'' \24\ Manager Hyde likewise described the House as 
     having ``a lower threshold . . . which is to seek a trial in 
     the Senate.'' \25\
       Harvard Law Professor Laurence Tribe warned House 
     Republicans against misinterpreting and minimizing their 
     constitutional impeachment role. He testified before the 
     House Judiciary Subcommittee on the Constitution that, ``the 
     fallacy is that this is not, despite the loose analogies that 
     some invoke, not like a grand jury.'' \26\ His warning went 
     unheeded.
       Minimizing the House' role has had serious consequences. It 
     explains why the majority in the House Judiciary Committee 
     forfeited the opportunity and shirked its responsibility to 
     conduct any independent examination of the facts. The House's 
     constitutional responsibility for charging the President 
     should not be misinterpreted to justify applying only a grand 
     jury's ``probable cause'' standard of proof.
       It also amounted to giving the House a ``free vote'' since 
     they could duck any responsibility for actually removing the 
     President. On the contrary, House Members who vote to impeach 
     should also be convinced this President has so abused the 
     public trust and so threatens the public that he should be 
     removed. Sending impeachment articles to the Senate means 
     exactly what the articles say: That based on the evidence 
     reviewed by the House, the President has committed acts 
     warranting his conviction and removal.
       Even some Republican Members of the House who voted for 
     impeachment admitted, belatedly, in a letter to the Senate 
     Majority Leader that they did not mean it. They said they 
     actually did not want this President removed and urged the 
     Senate to consider censure.\27\
       In spite of what the House Managers believe, the 
     impeachment process is not a ``cause.'' It should not be 
     about partisan political pique or about sending a message. 
     Rather, along with the power to declare war, it is one of the 
     gravest constitutional responsibility of the Congress. This 
     impeachment asks the question whether the conduct charged in 
     the Articles of Impeachment passed by the House require the 
     Senate to override the judgment of the American people and 
     remove from office the person they elected to serve as 
     President.
       That is what the impeachment process is all about--removal 
     from office. It is the Constitution's fail-safe device. It is 
     not to be undertaken lightly or without justification for it 
     has serious consequences.
       We suffered a lengthy Senate impeachment trial because 
     House Republicans misinterpreted their constitutional role. 
     House Republican leaders mistakenly relegated the House to a 
     limited role, depreciated the function of impeachment and 
     expressly left to the Senate responsibility for reviewing the 
     charges and determining whether the charges warrant the 
     President's removal from office. Articles of Impeachment are 
     simply not an appropriate vehicle for the expression of 
     political disapproval to be punted by a partisan vote in the 
     House to the Senate for some face-saving compromise verdict.
       Not surprisingly, given their misinterpretation of their 
     own role, the first ruling that the Chief Justice was called 
     upon to make in this trial was to correct the Managers' 
     mischaracterization of the role of the Senate. The Chief 
     Justice sustained Senator Harkin's objection and corrected 
     the Managers, stating, ``the Senate is not simply a jury; it 
     is a court in this case. Therefore counsel should refrain 
     from referring to the Senators as jurors.'' \28\
     D. Vote by the House of Representatives
       Proceedings in the full House were themselves a sorry 
     spectacle. On December 19, 1998, a lame duck session of the 
     House of Representatives approved two Articles of Impeachment 
     against President Clinton on the slimmest of partisan 
     margins.
       1. Lame Duck House
       The two Articles of Impeachment now before the Senate were 
     decided by the votes of a handful of Members who were 
     defeated in the November election or are no longer serving. 
     Article I passed with an 11-vote margin, which is the number 
     of House Republicans replaced by Democrats in the new 
     Congress due to election defeats and retirements. Article III 
     (now Article II in the Senate) passed with only a 5-vote 
     margin, which is the number of House Representatives who lost 
     their reelections in November and were replaced by Democrats. 
     There is no record of any prior impeachment reaching the 
     Senate on so slim a margin.
       The House Republican leadership pressed an extreme, all-or-
     nothing action through a lame duck House without allowing an 
     opportunity to vote on a censure or other alternative.
       Those who claim that censure is unconstitutional are just 
     plain wrong. There is ample historical precedent for censure. 
     Both the House and the Senate have adopted resolutions 
     expressing disapproval of various individuals, including 
     sitting Presidents. The Senate censured Andrew Jackson in 
     1834; the House censured James Buchanan in 1860. As early as 
     1800, with ``Founding Fathers'' then serving in Congress, the 
     House debated a resolution to censure John Adams, though this 
     resolution was ultimately rejected.
       Perhaps it should not be surprising that the final votes in 
     the divisive speakership of Newt Gingrich set the Congress 
     and the nation on this course. Mr. Starr's investigation has 
     dragged on for five years, with no end in sight. The entire 
     House impeachment inquiry lasted a short three months. Why 
     the sudden push to bring this matter to the floor? There were 
     at least five good reasons--the five seats that the 
     Republicans had lost in the election--which might have 
     altered the outcome on at least one Article of Impeachment. 
     The sixth reason is also clear: Speaker Gingrich had said he 
     was resigning from the House, and his seat would be vacant 
     when the new House convened.
       An impeachment resolution supported by only one political 
     party against a twice-elected incumbent of the opposing party 
     is divisive and damaging for the country. During Watergate, 
     constitutional scholar Charles L. Black, Jr., wrote that a 
     close vote along party lines ``would go to the Senate 
     tainted, or at least suspicious, and would be unlikely to 
     satisfy the country, because party motives would be 
     suspected.'' \29\ The impeachment of a President must be 
     bipartisan. A partisan impeachment cannot command the respect 
     of the American people. It is no more valid than a stolen 
     election.
       House Republicans have permanently marked this President as 
     impeached, but I do not believe that history will judge them 
     kindly either. Instead, the manner in which these impeachment 
     proceedings were conducted in the House Committee on the 
     Judiciary and in the full House of Representatives will serve 
     as a model of mistakes that should be avoided in the future.
       2. Rejected Charges
       In the end, the House did not approve the 11 articles 
     recommended by Special Prosecutor Starr or the 15 articles of 
     impeachment recommended by the Republican Committee staff. 
     The House rejected outright two of the four articles reported 
     along party lines by the House Judiciary Committee, and 
     authorized Managers to exhibit only two Articles of 
     Impeachment in the Senate. In considering these two Articles, 
     the Senate has been forced to sort through what is left of 
     the allegations against the President in light of the matters 
     rejected by the House.


                          III. SECRET EVIDENCE

       Before the vote, press reports indicated that wavering 
     House Members were escorted by Republican House Judiciary 
     Members to review certain ``secret evidence'' that the 
     President's counsel had never been allowed to review or given 
     an opportunity to rebut.
       That action was fundamentally unfair. a bedrock principle 
     of our system of justice is that the prosecutor, not the 
     accused, has the burden of proof. The accused is presumed 
     innocent unless and until adequate proof of guilt is 
     presented. Such proof may take many forms--direct or 
     circumstantial, testamentary or physical. But whatever form 
     it takes, it must be introduced, admitted into evidence, and 
     subject to examination and inspection before it may be 
     considered by the fact finders.
       I note that in 1974, the House Judiciary Committee made 
     available to President Nixon and his counsel all the 
     documents and other material considered by the Committee, 
     whether in executive or open session.\30\ In short, during 
     the House Judiciary Committee's investigation of Watergate, 
     there was no secret evidence and President Nixon and his 
     counsel were allowed to see--fully and completely--every item 
     of evidence in the possession of the House Judiciary 
     Committee.
       As both a judge and juror in the Senate, I take seriously 
     my responsibility to ensure that the Senate's consideration 
     of these Articles of Impeachment is fair. Part of that 
     fairness requires that the only evidence we consider relates 
     to the Articles actually approved by the House--not what the 
     House refused to charge and not matters that are not charged 
     by the Articles of Impeachment. During the depositions 
     authorized by the majority in the Senate, I and the other 
     Presiding Officers from both parties stood firm on this 
     principle and insisted that the Managers' questions remain 
     focused on the subject matters already in the Senate record 
     and on the Articles before us.
       Certain House Republicans suggested before this trial began 
     that Senators should review the ``secret evidence'' as part 
     of their deliberative processes. This suggestion was first 
     advanced at about the time that the ``secret evidence'' began 
     leaking to the press. From what I have read about it, it 
     seems as flimsy as it is inflammatory, and completely 
     irrelevant to any issue now before the Senate. Clearly, 
     Senators should not allow

[[Page 2515]]

     themselves to be influenced by shady accusations and innuendo 
     that would be excluded from any judicial proceeding in the 
     land. Consideration of the Articles must be based on only one 
     record--the trial record--and evidence that is not admitted 
     at trial must play no part in our deliberations.
       I should note that the House Managers have selectively 
     tried to keep secret certain unfavorable evidence elicited 
     during the Senate trial. For example, they argued strenuously 
     and successfully to subpoena witnesses for depositions and 
     for permission to introduce parts of those depositions into 
     evidence. The parts they introduced do not, as the Legal 
     Times pointed out ``tell the whole story.'' \31\
       As one of the Presiding Officers at those depositions, I am 
     well aware of the parts of those depositions intentionally 
     omitted by the Managers. In fact, following their 
     presentation of the evidence obtained from the depositions, I 
     asked unanimous consent that the record be made complete and 
     include Vernon Jordan's brief remarks at the end of his 
     deposition, ``defending his own integrity.'' \32\ There is no 
     question but that the Managers attacked and impugned Mr. 
     Jordan's word and his integrity. Senator Boxer echoed this 
     unanimous consent request at the conclusion of the Managers' 
     rebuttal presentation.\33\ Due to Republican objections, 
     however, neither request was accepted and, unfortunately, the 
     Senate trial record does not contain that moving and 
     important part of Mr. Jordan's deposition.


                 IV. THE ARTICLES ARE UNFAIRLY DRAFTED

       Close examination of the Articles exhibited by the Managers 
     reflects the underlying unfairness in the impeachment 
     proceedings in the House.
     A. Article I is Defectively Vague
       Article I is drafted with such vague accusations, a 
     significant question arises whether Senators can responsibly 
     and constitutionally pass judgment on it.
       The notion that William Jefferson Clinton committed perjury 
     before the Starr grand jury has been a legal conclusion in 
     search of a basis for some time. In his referral to the House 
     of Representatives, Special Prosecutor Starr urged only three 
     allegations of possible perjury before the grand jury as 
     grounds for seeking to remove the President. Article I merges 
     those three allegations into one generalized allegation that 
     President Clinton gave false testimony ``as to the nature and 
     details of his relationship with Ms. Lewinsky.'' In addition, 
     the House Judiciary Committee has joined three additional 
     categories of allegedly false testimony, without specifying 
     the allegedly perjurious statements. Those additional 
     categories cover statements that the President made or 
     allowed his attorney to make during the Jones case, in spite 
     of the fact that a majority of the House of Representatives 
     rejected such statements as a basis for a separate article of 
     impeachment.
       Since the outset of the Senate trial, the charges of grad 
     jury perjury have continued to be a moving target. In their 
     initial Trial Brief, the Managers alluded to 26 instances of 
     grade jury perjury. Manager Rogan spoke of 34 instances. In 
     their Reply Brief, the Managers tallied up 48 instances of 
     grand jury perjury.
       Yet, Article I does not identify a single statement before 
     the grand jury that the House of Representatives alleges to 
     have been perjurious, false and misleading. All the Senate is 
     told in Article I is that the allegedly perjurious statements 
     fall into ``one or more'' of four broad categories. This is 
     wholly inconsistent with criminal law and Senate standards 
     for identifying perjury.
       First, requiring the President to defend himself against 
     such an unspecified charge is fundamentally unfair. Vague, 
     generalized charges of perjury, such as the charge now before 
     the Senate, would never hold up in a court of law. Under 
     federal law, a perjury indictment must set forth the precise 
     falsehood alleged and the factual basis of its falsity with 
     sufficient clarity to permit a jury to determine its 
     veracity.\34\ The Justice Department's manual for Federal 
     prosecutors acknowledges this basic principle of law.\35\
       This is not just a technical matter of proper, lawyerly 
     pleading. It is a matter of fundamental fairness and due 
     process. As the respondent in this proceeding, the President 
     has been denied the basic fairness of having clear notice of 
     the specific charges against him and of knowing in advance of 
     the trial precisely what the House of Representatives accuses 
     him of having done that merits removing him from the office 
     to which the people of the United States have twice elected 
     him.
       Providing specificity in perjury articles has been the 
     practice in past impeachments. Two prior impeachments before 
     the Senate, both of Federal judges, involved perjury charges. 
     In both instances, the House of Representatives identified 
     each alleged falsehood in a separate Article of Impeachment. 
     In the case of Judge Alcee Hastings, 14 of the Articles 
     alleged that he had committed perjury with respect to a 
     different specific statement. In the case of Judge Walter 
     Nixon, two of the Articles alleged perjury, again, each with 
     respect to a single discrete statement.
       This time, however, the House of Representatives chose to 
     be unacceptably vague. Republicans on the House Judiciary 
     Committee flatly refused to pin themselves down to specific 
     statements in the resolution they drafted or in their 
     Committee debate. In fact, the only change the House 
     Judiciary Committee made to Article I had the effect of 
     making it even more ambiguous and obscure: They amended it to 
     allege that the President testified falsely as to ``one or 
     more'' of the four categories, rather than all of them. By so 
     doing, they have undermined the basic fairness of these 
     proceedings.
       Second, the lack of specificity in Article I makes it 
     impossible to know whether the requisite majority of the 
     House of Representatives agreed that any specific statement 
     was perjurious. To impeach President Clinton under Article I. 
     House Members had only to find that he made one or more of an 
     unspecified number of unspecified false statements, broadly 
     categorized. Accordingly, it is impossible to know whether 
     the House properly exercised its exclusive, constitutional 
     power of impeachment.
       If there are 3, 4, 7, 34 or possibly 48 allegations of 
     perjury, but only one vote by the House, how can the Senate 
     be sure, how can the President be sure, and, most 
     importantly, how can the American people be sure that a 
     majority of the House agreed on any single allegation of 
     perjury? Only a narrow majority of 228 members of the prior 
     House of Representatives voted in favor of Article I. If as 
     few as 11 members of that slim majority did not agree on 
     which of the 3 to 48 perjury allegations were to be forwarded 
     to the Senate, that Article did not have the support of a 
     majority of the House and should not be considered by the 
     Senate.
       Third, the lack of specificity makes any Senate vote for 
     conviction on Article I similarly constitutionally suspect. 
     If, as the Managers' Reply Brief indicates, there are 48 
     separate allegations of perjurious statements by the 
     President before the grand jury, then as few as two Senators 
     could believe any particular allegation of perjury had been 
     established and the Senate as a whole could nonetheless 
     convict and remove the President--so long as enough other 
     pairs of Senators thought alternative allegations were 
     established. This falls far short of the two-thirds of the 
     Senate required to concur before a President is removed from 
     office.
       The Managers ignore the grave constitutional questions 
     raised by the vagueness of Article I presented to the House 
     and now to the Senate for a vote. Instead they defend the 
     fairness of this Article by asserting that if President 
     Clinton had suffered from any lack of specificity, he could 
     have filed a motion in the Senate for a bill of 
     particulars.\36\ Just as the Managers had to be corrected by 
     the Chief Justice about the role of the Senate, they also 
     overestimated their power to detail the particulars of the 
     conduct underlying Article I.
       The Constitution vests the sole power of impeachment in the 
     House of Representatives, not in a handful of managers 
     appointed by that body. Just as prosecutors may not save a 
     defective indictment without usurping the constitutional role 
     of the grand jury, these Managers may not save a defective 
     bill of impeachment without usurping the constitutional role 
     of the full House. Put another way, 13 Members may not take 
     it upon themselves to guess what was in the minds of over 200 
     Members of the 105th Congress when they voted to impeach the 
     President. The full House must pass on any amendments to the 
     Articles.
       That is how it has always been done. In 1933, for example, 
     impeached Judge Harold Louderback moved the Senate to require 
     the House to make one of its articles ``more definite and 
     certain.'' In that instance, the Managers wisely consented to 
     the motion. An amendment to the articles was then approved by 
     the full House and presented to the Senate.\37\
       Similarly, in the case of Judge Nixon, it was the House of 
     Representatives that amended its articles in light of 
     evidence presented during the Senate proceedings. That 
     amendment was made to correct the text of one of the 
     statements that the House alleged to be false.
       The Managers do not have the power to make the Article more 
     specific, nor have they tried. Instead, they have exploited 
     the vagueness in Article I by continuing to add to the litany 
     of alleged falsehoods by the President. Any advantage gained 
     by the House Managers by purposely crafting Article I in this 
     vague fashion diminishes the fairness of the entire 
     proceeding.


               B. Both Articles Charge Multiple Offenses

       Both of the Articles before us allege that the President 
     committed ``one or more'' of a laundry list of misdeeds. In 
     fact, as I already mentioned, Article I was specifically 
     amended in Committee to use this ``one or more'' formulation. 
     Manager Rogan tried to spin this as ``a technical amendment 
     only,'' \38\ but it was obviously much more.
       With this amendment, Article I not only fails to identify a 
     single allegedly perjurious statement, it fails even to 
     identify a single broad category of statements. It lists four 
     broad categories that could allude to virtually every word 
     the President said before the grand jury and says, in effect, 
     take your pick. If you think he said something, anything, 
     that was not true, then vote to convict. Article II, which 
     lumps together seven alleged acts of obstruction, does the 
     same.

[[Page 2516]]

       Manager McCollum treated the decision Senators must make on 
     Article I like a choice diners would make from a Chinese 
     take-out menu: chose some from column A and, if you like, 
     some from column B. He explained that Senators could vote to 
     remove the President if ``you conclude he committed the 
     crimes that he is alleged to have committed--not every one of 
     them necessarily, but certainly a good quantity, and there 
     are a whole bunch of them that have been charged.'' \39\
       The Senate has made clear that it expects precision in 
     articles of impeachment. In the last two impeachments, of 
     Judges Hastings and Nixon, the House tacked on an omnibus or 
     ``catchall'' charge that included all the others. I and other 
     Senators expressed concern with this blunderbuss approach. 
     During the Hastings proceedings, I specifically asked whether 
     the catchall Article could be interpreted as requiring a 
     finding of guilt as to all the allegations in order to 
     convict. By asking the question, I hoped to avoid the 
     constitutional problem that I just described, of conviction 
     based on less than a two-thirds vote. The Presiding Officer 
     ruled that a Senator would be within his right to interpret 
     the Article as I proposed, but expressed the view that a 
     Senator would be within his right to interpret the Article as 
     I proposed, but expressed the view that a Senator could vote 
     guilty based on any one of the alleged acts of 
     misconduct.\40\ Ultimately, the Senate rejected the omnibus 
     Articles against Judges Hastings and Nixon, while convicting 
     them of more specific charges of perjury.
       Articles of impeachment that contain multiple allegations 
     are troubling in several respects. First, they make it 
     virtually impossible for the impeached person to prepare an 
     adequate defense. Second, they permit the House to impeach, 
     and the Senate to convict, based on less than the majority or 
     super majority vote required by the Constitution. Third, they 
     allow individual Members to avoid accountability to the 
     American people, who may never know exactly which charges 
     their representatives regarded as proven and warranting 
     removal from office.
       President Kennedy, in Profiles in Courage, described the 
     omnibus Article against President Andrew Johnson as a 
     ``deliberately obscure conglomeration of all the charges in 
     the preceding Articles, which had been designed . . . to 
     furnish a common ground for those who favored conviction but 
     were unwilling to identify themselves on the basic issues.'' 
     \41\ The House Managers in the Johnson case called for the 
     first vote to be on that deliberately obscure Article because 
     it was thought to be the easier way to get a conviction. 
     Today's Managers are hoping that this tactic works better in 
     1999 than it did in 1868, when President Johnson was 
     acquitted.
       But impeachment is not a shell game. Deliberate obfuscation 
     trivializes what should be a grave and solemn process.
       In 1989, after the Senate rejected the omnibus Article 
     against Judge Nixon, then Minority Leader Bob Dole and others 
     urged the House to stop bunching up its allegations and, from 
     there on out, to charge each act of wrongdoing in a separate 
     article.\42\ The House has unfortunately chosen to ignore 
     this plea in this matter of historic importance, contrary to 
     fundamental notions of fairness, proper notice, and justice.


                          V. THE SENATE'S DUTY

       The Senate does not sit as an impeachment court in a 
     vacuum. The fairness of the process by which the Articles 
     reached the Senate, and the specificity and care with which 
     the Articles are drafted to identify the charges fairly to 
     the respondent, are significant considerations in deciding 
     whether to vote for conviction or acquittal. Senators are not 
     merely serving as petit jurors who will be instructed on the 
     law by a judge and are asked to find facts. Senators have a 
     greater role and a greater responsibility in this trial. The 
     Senate is the court in this case, as the Chief Justice 
     properly observed. Our job is to do justice and be fair in 
     this matter and to protect the Constitution.
       In casting our final votes on the Articles the Senate 
     should be clear about the questions that our votes answer and 
     equally clear about the questions not before us. The question 
     is not whether Bill Clinton has suffered, for surely he has 
     as a result of his conduct, nor whether he has suffered 
     enough. The question is not even whether Bill Clinton should 
     be punished and sent to jail on a criminal charge, for the 
     Constitution does not confer that authority on this court of 
     impeachment.
       This vote only and necessarily requires addressing the 
     following questions: has the conduct charged in each Article 
     been proven to my satisfaction; and, if so, does the charged 
     conduct amount to a high crime or high misdemeanor warranting 
     the President's conviction and removal from the office to 
     which he was elected by the American people in 1996. I will 
     address each of these questions in turn.
     A. Standard of Proof
       In this impeachment trial, the President starts out with 
     fewer rights than any criminal defendant in any court in this 
     country. He starts out with no clear rules of evidence, 
     conviction based on a mere two-thirds vote, rather than a 
     unanimous verdict required for any criminal conviction, and 
     no higher court of appeal. This makes the obligation imposed 
     by our oath to make this process fair and impartial that much 
     more important.
       Fulfilling our duty in the impeachment trial involves 
     evaluating the evidence presented by the Managers and the 
     President to determine whether the allegations have been 
     proven. Juries in legal cases are asked to evaluate evidence 
     presented according to a specific ``standard of proof.'' The 
     Constitution is silent on the standard of proof to be applied 
     in impeachment trials, and the Senate has refused to bind 
     itself to a single standard for all impeachments. As a 
     result, each Senator may follow the burden of proof he or she 
     believes is appropriate to determine whether the House's 
     charges have been adequately proven.
       The fact that each Senator may evaluate the evidence under 
     any standard of proof of their choice presents a remarkable 
     challenge to the Managers and to the President's counsel. One 
     commentator has noted that, ``this practice can often work . 
     . . to the disadvantage of all the participants in an 
     impeachment trial by precluding them from knowing in advance 
     what standard the Senate will actually apply.'' \43\
       The standard of proof in criminal proceedings is ``beyond a 
     reasonable doubt'' and in civil proceedings is generally ``a 
     preponderance of the evidence.'' An impeachment trial is 
     neither a civil or criminal proceeding, leading some 
     commentators to suggest that ``a hybrid of the criminal and 
     civil burdens of proof may be desirable. . . . Too lenient a 
     proof standard would allow the Senate to impose the serious 
     punishments for impeachment `even though substantial doubt of 
     guilt remained.' Too rigid a standard might allow an official 
     to remain in office even though the entire Senate was 
     convinced he or she had committed an impeachable offense.'' 
     \44\
       The fact that the Senate has adopted no uniform standard of 
     proof for each Member to follow is not for lack of attention. 
     The Senate considered the standard of proof question when 
     impeachment proceedings against President Nixon were 
     contemplated, but adopted none. Thereafter, a member of the 
     Watergate impeachment inquiry staff, now a professor of law, 
     concluded that the standard of proof in impeachment trials 
     will vary with the seriousness of the charges:
       ``If a president were charged with conduct amounting to 
     treason, for example, it seems highly unlikely that a senator 
     would insist on proof of treason beyond a reasonable doubt 
     before he would vote for the president's removal from office. 
     . . . On the other hand, a greater quantum of proof might be 
     required for less flagrant wrongdoing.'' \45\
       More recently, in 1986, Judge Harry Claiborne moved to 
     establish ``beyond a reasonable doubt'' as the standard of 
     proof at his impeachment trial. The Senate rejected that 
     motion by a 17 to 75 vote. I joined those Members voting 
     against adoption of a uniform standard of proof because I 
     believe, as the Presiding Officer made clear at the time, 
     that in fulfilling his or her oath each Senator is free to 
     apply any standard of proof, including reasonable doubt.
       The charges here stem from alleged efforts by the President 
     to conceal a personal inappropriate relationship. While the 
     relationship itself may be fair game for public rebuke and 
     censure, only when questions were raised about whether his 
     conduct crossed the line into criminal activity did this 
     matter become the subject of an impeachment inquiry. Indeed, 
     Manager McCollum argued that the President must not be 
     convicted and removed from office except upon a finding that 
     he committed a crime.\46\ Fairness dictates that we use the 
     exacting standard of proof that is used--and that is 
     constitutionally mandated--in criminal trials.
       I note that Majority Leader Trent Lott reached the same 
     conclusion 25 years ago, as a young Member of the House 
     Judiciary Committee considering articles of impeachment 
     against President Nixon. He joined other Republican Members 
     in writing:
       ``Because of the fundamental similarity between an 
     impeachment trial and an ordinary criminal trial . . . the 
     standard of proof beyond a reasonable doubt is appropriate in 
     both proceedings. Moreover, the gravity of an impeachment 
     trial and its potentially drastic consequences are additional 
     reasons for requiring a rigorous standard of proof. This is 
     especially true in the case of a presidential impeachment. . 
     . . The removal of a President by impeachment in mid-term . . 
     . should not be too easy of accomplishment, for it 
     contravenes the will of the electorate. In providing for a 
     fixed our-year term, not subject to interim votes of No 
     Confidence, the Framers indicated their preference for 
     stability in the executive. That stability should not be 
     jeopardized except on the strongest possible proof of 
     presidential wrongdoing.'' \47\
       Were the President accused of treason or serious public 
     corruption, the best interests of the Nation might well 
     demand a somewhat lower standard. He is not, however, accused 
     of such crimes. We hundred Senators are stand-ins for over a 
     quarter billion Americans. President Clinton has been twice 
     elected to his office, and we should only undo that choice 
     based on the charges before us on proof tested against the 
     highest standard. Under the circumstances, in evaluating the

[[Page 2517]]

     evidence that could result in the impeachment and removal of 
     the President of the United States, I will use the highest 
     standard of proof used in any court of law in this country, 
     that is, proof beyond a reasonable doubt.
     B. The Charges Have Not Been Proven
       I do not believe that the Managers proved their case beyond 
     a reasonable doubt. To reach their conclusions, they had to 
     tease inculpatory inferences from exculpatory evidence and 
     generally view the record in the most sinister light 
     possible. Having taken an oath to do impartial justice, my 
     vote must be based on the evidence in the record, not on 
     speculation and surmise.
       1. Article I
       The record does not come close to supporting the 
     allegations in Article I. Perjury is a complex charge, 
     requiring more than just lying or even lying under oath. To 
     constitute perjury, a lie must be both material and willful. 
     Lying under oath about trivial or inconsequential matters, 
     even if willful, is not a crime. Lying under oath as a result 
     of confusion, mistake or faulty memory, even if about 
     material matters, is also not a crime. In addition, there is 
     no crime of perjury where a witness's answers are literally 
     true, even if unresponsive, misleading or false by negative 
     implication.
       The American people saw President Clinton's grand jury 
     testimony when the videotape was made public by the House 
     Judiciary Committee. We saw him admit that:
       He had engaged in wrongful conduct;
       He had been alone with Ms. Lewinsky on numerous occasions;
       His inappropriate relationship with Ms. Lewinsky lasted 
     over a two-year period;
       Many of their encounters involved inappropriate intimate 
     contact; and
       He had given her a number of gifts.
       Given these admissions, the Managers had a heavy burden to 
     prove that the President testified falsely about any material 
     matter.
       Perhaps for this reason, the Managers repackaged the three 
     alleged falsehoods identified by the Special Prosecutor in 
     their Senate presentation. In their Reply Brief, the Managers 
     claimed that the President perjured himself no less than 48 
     times during his grand jury appearance. They hoped that the 
     sheer number of allegations would overcome the essential 
     triviality of each individual charge. It does not.
       In this regard, the most remarkable charge leveled by the 
     Managers is that the President's prepared statement, in which 
     he made his many admissions, was itself perjurious. The 
     President said that his relationship with Ms. Lewinsky 
     ``began as a friendship''; Ms. Lewinsky disagreed, although 
     she allowed for the possibility that the President had a 
     different perception of how the relationship had evolved.\48\ 
     The President said that the inappropriate intimate contacts 
     occurred in early 1996 and 1997; Ms. Lewinsky claimed the 
     contacts began on November 15, 1995. The President described 
     being alone with Ms. Lewinsky only on ``certain occasions,'' 
     and described their telephone conversations as 
     ``occasional''; there is nothing in the record to the 
     contrary. Indeed, Ms. Lewinsky used the same term to describe 
     these events, since a few dozen meetings or telephone 
     conversations over a two-year period may appropriately be 
     described as ``occasional''.
       Such allegations trivialize the serious business in which 
     we are now engaged. Can anyone really believe that the 
     President should be removed from office because of a six-week 
     discrepancy as to when his admittedly inappropriate affair 
     began? Or because of general statements that are allegedly 
     contrary to specific numbers? Or because he did not inform 
     the grant jury that the relationship began with a crude 
     sexual overture by Ms. Lewinsky, as she herself was compelled 
     to describe in humiliating detail, at the whim of the Special 
     Prosecutor's inquisitors and for no legitimate investigatory 
     purpose?
       Another set of statements that the Managers consider 
     perjurious relate to the President's state of mind. The 
     Managers claim, without support, that the President did not 
     genuinely believe, for example, that Ms. Lewinsky could file 
     a truthful affidavit that might relieve her of having to 
     testify in the Jones case. Such unsupported speculation about 
     what was in the President's mind is not, as the President's 
     counsel stated, ``the stuff or fuel of a perjury 
     prosecution.'' \49\
       Asked to identify which of the President's statements were 
     of particular importance to the perjury charge. Manager Rogan 
     pointed to the President's explanations for his attorney 
     Robert Bennett's statement, during the Jones deposition, that 
     Ms. Lewinsky's affidavit showed there ``is'' no sex of any 
     kind. Never mind that, in generally, a person cannot be held 
     criminally liable for false statements or representations by 
     the person's counsel to a judge or magistrate.\50\
       Manager Rogan first took issue with the President's 
     argument that the statement at issue was technically accurate 
     because his intimate contact with Ms. Lewinsky had been over 
     for many months. While the President has been derided for 
     legal hairsplitting over `'what the meaning of `is` is.'' No 
     amount of derision can transform this sort of argumentative 
     testimony into a perjurious statement.
       The President also testified that he had not paid much 
     attention to what his attorney was saying, and, indeed, did 
     not focus on it until months after the deposition, when he 
     read the transcript in preparation for his grand jury 
     appearance. The Managers assert that the President was paying 
     attention, and they base this on the President's blank stare 
     at the time in question. How can we possibly know, from that, 
     what was going on in his mind?
       Appreciating the weakness of their assertion, the Managers 
     obtained an affidavit from Barry W. Ward, law clerk to the 
     presiding judge in the Jones suit, and submitted it with 
     their motion to expand the record. Mr. Ward's affidavit 
     states that when he attended the deposition of President 
     Clinton in that case, he ``observed President Clinton looking 
     directly at Mr. Bennett while this statement was being 
     made.'' The Managers used this statement to argue in their 
     motion brief, at p. 21, that ``Mr. Ward's declaration proves 
     that Mr. Ward saw President Clinton listening attentively 
     while exchange between Mr. Bennett and the presiding Judge 
     occurred.'' According to a Legal Times report on February 1, 
     1999, Mr. Ward ``vigorously disputes that interpretation.'' 
     Contrary to the Managers' assertion, Mr. Ward stated in a 
     subsequent interview that, ``I have no idea if he was paying 
     attention. He could have been thinking about policy 
     initiatives, for all I know.'' \51\
       The only explanation for the misleading characterization of 
     Mr. Ward's affidavit in the Managers' motion brief is the 
     same one offered by Senator Bumpers to explain yet another 
     unsupported inference asserted by the Managers. He said, ``I 
     am a trial lawyer and I will tell you what it is: it is 
     wanting to win too badly.'' \52\
       As a former prosecutor, one of the questions I have asked 
     myself is whether, based on these facts, criminal charges of 
     perjury or obstruction of justice would have been brought 
     against any person other than the President of the United 
     States. If William Jefferson Clinton were Billy Blythe or 
     Bill Jones, would any prosecutor in the country have 
     successfully brought such charges? Experienced prosecutors, 
     Republican and Democratic, testified before the House 
     Judiciary Committee that no prosecutor would have proceeded 
     based on the record compiled by Mr. Starr. I agree and note 
     that during the course of these Senate proceedings, the case 
     has only gotten weaker.
       2. Article II
       The same is true of Article II, which charges the President 
     with obstruction of justice. The Managers repeatedly urged 
     Senators to look at ``the big picture,'' view the evidence as 
     a whole, and not to get ``hung up'' on the details. This is 
     lawyer-speak for, ``my case does withstand scrutiny.''
       To begin with, the principal witnesses to the President's 
     alleged scheme to obstruct justice testified that there was 
     no such scheme. Monica Lewinsky has clearly and consistently 
     maintained that no one ever asked or encouraged her to lie, 
     and that she was never promised a job for her silence. Betty 
     Currie, the President's secretary, and Vernon Jordan, a 
     distinguished attorney, also exonerated the President of any 
     wrongdoing or any conspiracy with them to obstruct justice. 
     For example, Ms. Currie testified that the President did not 
     ask her on December 28, 1997, or at any time, to obtain and 
     hide gifts he had given Ms. Lewinsky, and Mr. Jordan 
     testified that his involvement in Ms. Lewinsky's job search 
     was unrelated to any participation by Ms. Lewinsky in the 
     now-settled Jones criminal connotation when observed in the 
     context of the whole plot,'' \53\ but I fail to see why 
     exculpatory testimony cannot be viewed for what it is: 
     exculpatory.
       The Managers do their best to transmogrify other 
     exculpatory testimony into evidence of criminality. For 
     example, Ms. Lewinsky testified that the President declined 
     to review her affidavit before she signed it and did not 
     discuss the content of the affidavit with her ``at all, 
     ever.'' \54\ Manager Rogan cited this as evidence of 
     obstruction on the theory that the President would have 
     reviewed the affidavit if he really believed it could be 
     truthful. In case we rejected this theory, Manager McCollum 
     speculated that the President had reviewed 15 prior drafts of 
     the affidavit--speculation at odds with Ms. Lewinsky's 
     testimony that she did not show the President her affidavit 
     in final and draft form. But neither Mr. Rogan's theory nor 
     Mr. McCollum's speculation can overcome or obscure the 
     fundamentally exculpatory nature of Ms. Lewinsky's testimony 
     on this point. Indeed, if the President had reviewed or 
     discussed Ms. Lewinsky's affidavit, the Managers would 
     doubtless have trumpeted the incident as proof positive of 
     obstruction.
       Unable to conjure inculpatory evidence out of the 
     President's refusal to review Ms. Lewinsky's affidavit, the 
     Managers invited the Senate to infer guilt from the ``fact'' 
     that it was the President, not Ms. Lewinsky, who benefited 
     from the filing of her affidavit. Manager Bryant went 
     further, arguing that Ms. Lewinsky ``had no motivation, no 
     reason whatsoever'' to want to avoid testifying in the Jones 
     case.\55\ But when Manager Bryant questioned Ms. Lewinsky on 
     this point, she corrected him:
       `Q. [Y]ou didn't file the affidavit for your best interest, 
     did you?

[[Page 2518]]

       A. Uh, actually, I did.
       Q. To avoid testifying.
       A. Yes.'' \56\
       This testimony should have come as no surprise, since most 
     people would want to avoid the time, expense, and 
     embarrassment of being dragged into a civil lawsuit to 
     testify about their private affairs. Moreover, Ms. Lewinsky 
     had already made clear that she had sought to conceal her 
     relationship with the President in a vain attempt to avoid 
     being ``humiliated in front of the entire world.'' \57\ On 
     her own initiative, she devised code names for use when 
     communicating with the President's secretary \58\; deleted 
     correspondence from her computer and urged Linda Tripp to do 
     the same \59\; and composed false and misleading ``talking 
     points'' for Ms. Tripp to use in the Jones case. In fact, Ms. 
     Lewinsky was admittedly ``so desperate'' for Linda Tripp not 
     to reveal anything about the relationship that she ``used 
     anything and anybody that [she] could think of as leverage 
     with her.'' \60\
       Equally unavailing was the Managers' insistence that the 
     President must have known Ms. Lewinsky's affidavit would be 
     false because no truthful affidavit could have saved her from 
     having to testify. Both the President and Ms. Lewinsky 
     testified that, in their view, it was possible to craft a 
     truthful affidavit that might have accomplished this 
     objective. The Managers have never explained why we should 
     not credit this unrebutted testimony.
       The Managers have stretched the facts in other ways as 
     well, most notably with respect to the timing of Ms. 
     Lewinsky's job search. In their Trial Brief, in their opening 
     presentations, and in their charts, the Managers posited that 
     Mr. Jordan intensified his efforts to find Ms. Lewinsky a job 
     on December 11, 1997, only after, and because, the judge in 
     the Jones case ordered the President to answer far-ranging 
     questions about other women. The same theory appeared on page 
     11 of the Majority Report prepared for the House of 
     Representatives.
       The President's counsel, in their opening presentations to 
     the Senate, made clear beyond any doubt that Mr. Jordan met 
     with Ms. Lewinsky before the judge issued her ruling, and 
     that the meeting had been scheduled several days before that. 
     Without acknowledging their error, the Managers retreated to 
     the argument that Mr. Jordan's assistance on December 11 was 
     triggered not by Judge Wright's order, but rather by the 
     appearance of Ms. Lewinsky's name on the witness list six 
     days earlier. But the Managers themselves refuted this 
     argument in their Trial Brief, which states that there was 
     ``still no urgency to help Ms. Lewinsky'' after the witness 
     list arrived on December 5.\61\ Moreover, although Manager 
     Hutchinson later insinuated that Mr. Jordan and the President 
     discussed Ms. Lewinsky's job search during their meeting on 
     December 7,\62\ the Managers' Trial Brief acknowledges that 
     the December 7 meeting was ``unrelated'' to Ms. Lewinsky.\63\
       More generally, the Managers failed to show any connection 
     between Ms. Lewinsky's status as an affiant and possible 
     deponent in the Jones case and her New York job search. Every 
     witness to testify on this point, including the President, 
     Ms. Lewinsky, and Mr. Jordan, agreed that those events were 
     unrelated. Beyond this, the record is clear that Ms. Lewinsky 
     first mentioned the possibility of moving to New York in 
     early July 1997; that people other than Mr. Jordan tried to 
     help Ms. Lewinsky get a job at the United Nations in early 
     October 1997; and that Ms. Lewinsky notified her employer 
     that she would be leaving her job and moving to New York in 
     November 1997--all well before her name surfaced on the Jones 
     witness list.
       The Managers have also stretched and distorted the evidence 
     regarding the box of gifts that Ms. Currie retrieved from Ms. 
     Lewinsky on or about December 28, 1997. The Managers have 
     argued that the Senate ``may reasonably presume'' that Ms. 
     Currie retrieved the gifts, which had been subpoenaed by the 
     Jones attorneys, at the behest of the President.\64\ In 
     making this argument, the Managers ask us to disregard Ms. 
     Lewinsky's testimony that it was her idea to give the gifts 
     to Ms. Currie; the President's testimony that he never told 
     Ms. Currie to retrieve the gifts; Ms. Currie's testimony that 
     it was Ms. Lewinsky, not the President, who asked her to 
     retrieve the gifts; and the fact that the President gave Ms. 
     Lewinsky additional gifts on the very morning that he is 
     alleged to have asked for them back. They also ask us to 
     ignore Ms. Lewinsky's testimony that she decided on her own 
     to protect her own privacy by turning over only ``innocuous'' 
     gifts to the Jones lawyers.\65\ Finally, they ask us to 
     ignore exculpatory information concealed by Mr. Starr and 
     revealed to the Senate for the first time in Ms. Lewinsky's 
     deposition that the President's statement, ``well, you have 
     to turn over whatever you have,'' sounded familiar to her.
       The Managers have made much of a conversation between Ms. 
     Lewinsky and Mr. Jordan on December 31, 1997, that touched 
     upon certain notes, or possibly drafts of notes, Ms. Lewinsky 
     wrote to the President. Accordingly to Ms. Lewinsky, Mr. 
     Jordan suggested ``something the[e] effect'' of, ``check to 
     make sure they are not here,'' which Ms. Lewinsky interpreted 
     to mean, ``get rid of whatever is there.'' \66\ Mr. Jordan 
     recalled having discussed the notes with Ms. Lewinsky, but 
     denied having told her to destroy them. Did Ms. Lewinsky 
     misunderstand Mr. Jordan, or is one witness lying? The Senate 
     need not decide, since by either account, the President was 
     not a party to any conversation about notes and, indeed, 
     neither the notes nor the December 31 conversation between 
     Ms. Lewinsky and Mr. Jordan are mentioned in the two Articles 
     of Impeachment approved by the House.
       Perhaps the longest stretch by the Managers is their theory 
     regarding presidential aides Sidney Blumenthal, John Podesta, 
     and Bruce Lindsey. It simply cannot be that the target of a 
     grand jury investigation obstructs justice by making false or 
     misleading denials of wrongdoing in personal conversations 
     with friends and colleagues, even if he knows that they may 
     be compelled to testify about those conversations. Indeed, 
     until recently, most federal courts held that false denials 
     of wrongdoing--even when made under oath or to a federal 
     agent--could not be a basis for criminal liability.
       The Managers have focused particular attention on the 
     President's conversation with Sidney Blumenthal on January 
     21, 1998, the day the Lewinsky scandal erupted. According to 
     Mr. Blumenthal, the President said that Ms. Lewinsky had told 
     him that she was called ``the stalker'' by her peers, and 
     that she would claim they had an affair because then she 
     would not be known as ``the stalker'' anymore. Curiously, Ms. 
     Lewinsky herself, in the now-famous ``talking points'' she 
     prepared before her relationship with the President became 
     public, encouraged Ms. Tripp to defuse questions about Ms. 
     Lewinsky by saying, ``[S]he turned out to be this huge liar. 
     I found out she left the W[hite] H[ouse] because she was 
     stalking the P[resident] or something like.''\67\ Ms. 
     Lewinsky acknowledged in her original proffer to Mr. Starr 
     that she was well aware of her reputation at the White House 
     and sought a detail from the Pentagon ``so people could see 
     Ms. L[ewinsky]'s good work and stop referring to her as `The 
     Talker.' '' \68\ Regardless, we can all agree that if the 
     President tried to conceal his own misconduct by maligning 
     Ms. Lewinsky, he acted shamefully. But this is a far cry from 
     acting criminally.
       The Managers asked us to look at the ``big picture''. The 
     ``big picture'' with respect to Ms. Lewinsky is that she had 
     no intention of revealing her relationship with the 
     President, regardless of whether he helped her find a new 
     job; she acted independently and in her own best interest in 
     filing her affidavit in the Jones case; she originated and 
     carried out her plan to hide evidence from the Jones lawyers; 
     and Linda Tripp rather than Bill Clinton was her principal 
     advisor and ultimate betrayer. In fact, the only crimes shown 
     to have possibly occurred are not high crimes but those for 
     which Ms. Lewinsky and Ms. Tripp have received immunity from 
     prosecution from Mr. Starr.
       What remains when you sweep aside the cobwebs of 
     unsupported speculation and conspiracy theory? To my mind, 
     the case on obstruction boils down to the charge that the 
     President, in the wake of his deposition in the Jones case, 
     ``coached'' his secretary about what to say if asked about 
     Ms. Lewinsky. The President has argued that Ms. Currie was 
     not then a witness in the Jones case and was not likely to be 
     one given the approaching deadline for completing discovery. 
     Moreover, he did not know that Mr. Starr had initiated an 
     investigation. In fact, once he learned that Mr. Starr was 
     investigating and that Ms. Currie might be a witness, the 
     President told Ms. Currie, ``Don't worry about me. Just 
     relax, go in there and tell the truth.'' \69\
       I was seriously troubled by the President's counsel's 
     initial suggestion that Ms. Currie was never subpoenaed in 
     the Jones case. Still, Mr. Ruff's candid correction and 
     apology to the Senate stands in stark contrast to the 
     Managers' refusal to correct their own misleading 
     representations.
       In the end, reasonable minds may differ over why the 
     President spoke to Ms. Currie as he did in mid-January 1998. 
     His explanation--that he was ``trying to think of the best 
     defense we could construct in the face of what I thought was 
     going to be a media onslaughter'' \70\--is not implausible. 
     Using a trusted employee as a sounding board to test 
     responses that might later be made public is also not 
     implausible nor criminal. The President also had a legitimate 
     interest in determining whether Ms. Currie was the source of 
     the Jones lawyers apparent knowledge regarding Ms. Lewinsky. 
     In the end, in light of the plausible and innocent 
     explanations for these conversations. I do not accept as 
     proven beyond a reasonable doubt the Mangers' conclusion that 
     they were criminal ``coaching'' sessions. I cannot vote to 
     overturn a national election based on the ambiguous record of 
     this discrete episode.
       Back on March 8th of last year, one of my Republican 
     colleagues on the Judiciary Committee stated his view that no 
     impeachment proceeding should be brought unless there was 
     ``an open-and-shut case'' because ``Americans cannot stand 
     the trauma of an impeachment matter unless it is cut-and-
     dried.'' \71\ Even more clearly, the country

[[Page 2519]]

     cannot tolerate a President's being removed from office based 
     on the shifting patchwork of circumstantial evidence and 
     surmise that the Managers have concocted.
     C. There Was No Need to Call Witnesses
       Witnesses would not fill the holes in the Managers' case.
       The Managers only became interested in hearing from 
     witnesses once they faced trouble obtaining a conviction in 
     the Senate. They had an opportunity to interview witnesses 
     when this matter was still before the House. But the House 
     Judiciary Committee called no fact witnesses. The House of 
     Representatives called no witnesses at all. Rather, the House 
     Republicans voted out these Articles based on what they were 
     told by Special Prosecutor Starr.
       They took the position that witnesses were not necessary. 
     For example, in November 1998, Manager Gekas stated that 
     ``[b]ringing in witnesses to rehash testimony that's already 
     concretely in the record would be a waste of time and serve 
     no purpose at all.'' \72\ Similarly, on December 19, 1998, 
     during the floor debate on the articles, Manager Hyde stated:
       ``No Fact witnesses, I have heard that repeated again and 
     again. Look, we had 60,000 pages of testimony from the grand 
     jury, from depositions, from statements under oath. That is 
     testimony that we can believe and accept. We chose to believe 
     it and accept it. Why reinterview Betty Currie to take 
     another statement when we already had her statement? Why 
     interview Monica Lewinsky when we had her statement under 
     oath, and with a grant of immunity that if she lied she would 
     forfeit?'' \73\
       Having chosen to proceed in the House without witnesses, 
     the Managers were in no position to demand that the Senate 
     hear witnesses. A Senate impeachment trial is not a make-up 
     exam for an incomplete inquiry by the House.
       In attempting to explain his inconsistent positions on 
     witnesses, Manager Hyde said, ``we were operating under time 
     constraints which were self-imposed but I promised my 
     colleagues to finish it before the end of the year. I didn't 
     want it to drag out.'' \74\ But self-imposed time constraints 
     do not begin to explain why Mr. Hyde's Committee declined to 
     call a single fact witness. The Committee did hold two-day-
     long hearings. It heard from a panel of convicted felons who 
     testified, to nobody's surprise, that perjury is a crime. And 
     it heard from the prosecutor, Kenneth Starr, who had no 
     first-hand knowledge of any facts in the case, and had not 
     even spoken with anyone who had. Those two days could have 
     been spent hearing fact witnesses and surely they would have 
     been, if the Committee majority thought for one moment that 
     fact witnesses would have any new and incriminating evidence 
     to share.
       Mr. Hyde's second justification for failing to call 
     witnesses in the House was grounded in his mistaken view of 
     that body's role in the impeachment process. According to Mr. 
     Hyde, ``[t]he threshold in the House was for impeachment, 
     which is to seek a trial in the Senate. . . . All we could do 
     was present evidence sufficient to convince our colleagues 
     that there ought to be a trial over here in the Senate.'' 
     \75\ I have already explained the fallacy of this position. 
     When these Articles of Impeachment fail, as I believe they 
     must, I hope it will send a clear message to the House of 
     Representatives not to do a slapdash, partisan job on 
     something as momentous and wrenching for the nation as a 
     presidential impeachment.
       Contrary to the suggestions of some Managers, there is no 
     authority for the notion that the Senate must hear witnesses. 
     It is true, as one Manager noted, that the Senate heard 
     witnesses during the impeachment trial of President Johnson, 
     notwithstanding the House's failure to do so. As most 
     historians agree, however, the Johnson impeachment was an 
     illegitimate attempt by the Reconstruction Republicans to 
     unseat a President whose policies they disliked. It was 
     hardly a model of procedural correctness.
       Most recently, in the 1980's, the Senate removed three 
     impeached federal judges without hearing any witnesses on the 
     Senate floor. Indeed, in the impeachment trial of Judge 
     Claiborne in 1986, a majority of the Senate approved a motion 
     by then-Majority Leader Dole not to hear any live testimony. 
     Instead, in each case, the Senate reviewed a written record 
     of testimony prepared by a special committee of Senators. The 
     Senate did this over the objections of the judges being 
     removed.
       If the President is willing to forego the opportunity to 
     cross-examine the witnesses being relied upon by the 
     Managers, that eliminates the most pressing need for further 
     discovery in this matter. After all, Ms. Lewinsky, Ms. Currie 
     and other witness were interviewed multiple times by the 
     Special Prosecutor's lawyers and investigators and then 
     testified repeatedly before the grand jury. That is about as 
     one sided as it gets--no cross examination, no opportunity to 
     compare early statements with the way things are reconfigured 
     and re-expressed after numerous preparation sessions with Mr. 
     Starr's office.
       These witnesses testified under threat of prosecution by 
     Mr. Starr. Ms. Lewinsky is still under a very clear threat of 
     prosecution, even though she has a limited grant of immunity. 
     This Special Prosecutor has shown every willingness to 
     threaten and prosecute even those who have played minor, 
     tangential roles in his investigations of the President, such 
     as Julie Hiatt Steele, and those who have already been 
     relentlessly pursued in serial prosecutions, such as Webster 
     Hubbell and Susan McDougal.
       Thus, if the President has not initiated efforts to obtain 
     more discovery and witnesses and is willing to have the 
     matter decided on the current Senate record, the Managers 
     carried a heavy burden to justify extending these proceedings 
     further and requiring the reexamination of people who have 
     already testified.
       During his opening remarks, Manager McCollum said, ``I 
     don't know what the witnesses will say, but I assume if they 
     are consistent, they'll say the same that's in here,'' \76\ 
     referring to the voluminous record before the Senate. 
     Nevertheless, the majority in the Senate acceded to the 
     Manager's request to conduct depositions, which only 
     confirmed that subjecting the witnesses to further 
     examination would not provide any new revelations.
       In fact, during the deposition of Ms. Lewinsky, Manager 
     Bryant conceded, ``Obviously, you testified extensively in 
     the grand jury, so you're going to obviously repeat things 
     today. We're doing the depositions for the Senators to 
     view.'' \77\ Likewise, during Mr. Jordan's deposition, 
     Manager Hutchinson acknowledged the witness's five prior 
     grand jury appearances and conceded, ``I know that probably 
     about every question that could be asked has been asked, but 
     there are a number of reasons I want to go over additional 
     questions with you, and some of them will be repetitious of 
     what's been asked before.'' \78\
       There was no reason to protract this process further merely 
     to hear more redundant testimony live on the floor of the 
     Senate, in light of the President's agreement to forfeit this 
     opportunity to examine the witnesses.
     D. Removal Is Not Warranted
       The question each Senator must address is whether the 
     conduct charged in the Articles meets the constitutional 
     standard of high crime and misdemeanor warranting conviction 
     and removal. The Managers, the President's counsel and, in 
     particular, former Senator Dale Bumpers have provided us with 
     erudite history lessons on the misconduct the Framers meant 
     to cover by this standard.
       We have heard debate whether this standard covers only 
     conduct performed in the President's public capacity or also 
     covers private conduct. A strong case can be made that the 
     Framers never intended that a President be subject to 
     impeachment and removal for private conduct--no matter how 
     egregious. Instead, they purposely limited the ground for 
     impeachment to offenses against the state or grave abuses of 
     official power.
       But this argument presents the proverbial ``slippery 
     slope.'' Does this mean that a President may not be removed 
     for murder? The Framers may very well have responded ``no.'' 
     In fact, during the impeachment trial of Chief Justice Samuel 
     Chase, the presiding officer was then Vice-President Aaron 
     Burr, who at the same time was under indictment in both New 
     Jersey and New York for the murder of Alexander Hamilton in a 
     duel in 1804. As Chief Justice Rehnquist notes in Grand 
     Inquests, ``This fact caused one contemporary wag to remark 
     that whereas in most courts the murderer was arraigned before 
     the judge, in this court the judge was arraigned before the 
     murderer!'' \79\ Nonetheless, Burr was not the subject of the 
     impeachment trial, Chief Justice Chase was.
       No matter how the Framers would treat serious private 
     misconduct, I do not hesitate to conclude that heinous 
     crimes, such as murder, would warrant the remedy of removal. 
     As Professor Charles Black explained:
       ``Many common crimes--willful murder, for example--though 
     not subversive of government or political order, might be so 
     serious as to make a president simply unviable as a national 
     leader; I cannot think that a president who had committed 
     murder could not be removed by impeachment. But the 
     underlying reason remains much the same; such crimes would so 
     stain a president as to make his continuance in office 
     dangerous to public order.'' \80\
       The House Judiciary Committee in 1974 summed up the thorny 
     issue of how to evaluate the constitutional standard for 
     impeachable and removable conduct as follows: ``Not all 
     presidential misconduct is sufficient to constitute grounds 
     for impeachment. There is a further requirement--
     substantially.'' \81\
       Professor Black also addressed the ``substantially'' of the 
     misconduct necessary to meet the constitutional standard for 
     impeachment and removal, with the following illustration:
       ``Suppose a president transported a woman across a state 
     line or even (so the Mann Act reads) from one point to 
     another within the District of Columbia, for what is quaintly 
     called an `immoral purpose.' Or suppose a president did not 
     immediately report to the nearest policeman that he had 
     discovered that one of his aides was a practicing 
     homosexual--thereby committing `misprision of a felony.' Or 
     suppose the president actively assisted a young White House 
     intern in concealing the latter's possession of three ounces 
     of marijuana--thus himself becoming

[[Page 2520]]

     futility of `obstruction of justice.' . . . Would it not be 
     preposterous to think that any of this is what the Framers 
     meant when they referred to `Treason, Bribery, and other high 
     Crimes and Misdemeanors,' or that any sensible constitutional 
     plan would make a president removable on such grounds?'' \82\
       In my view, the charges that the President committed 
     perjury and obstructed justice to conceal an illicit 
     relationship with Monica Lewinsky not only fail as a matter 
     of proof, but to the extent they raise legitimate questions 
     about his conduct they fail the test of substantiality. As 
     one Vermonter recently write to the editor of the Burlington 
     Free Press, ``If there ever was a situation in which the 
     phrase making a mountain out of a mole hill is apt, it is the 
     impeachment trial to date.'' \83\
       The Managers tried to address the criticism that the 
     conduct underlying the Articles is so insubstantial as to 
     leave the American public scratching their heads. Manager 
     Canady conceded that no President ``should be impeached and 
     removed from office for trivial or insubstantial offenses . . 
     . A President should not be impeached and removed from office 
     for a mistake or judgment. He should not be impeached and 
     removed from office for a momentary lapse.'' \84\ Similarly, 
     Manager Graham acknowledged ``absolutely'' that reasonable 
     people could disagree about whether the President should be 
     removed, even where the charges proven.\85\ Manager Graham 
     further opined during questioning by Senators that:
       ``I would not want my President removed for any criminal 
     wrongdoing, I would want my President removed only when there 
     was a clear case that points to the right decision for the 
     future of he country. . .I would not want my President 
     removed for trivial offenses, and that is the heart of the 
     matter here.'' \86\
       My decision on this matter should not be misinterpreted to 
     mean that I countenance perjury or obstruction of justice, or 
     that I do not appreciate the need for enforcement of our laws 
     prohibiting such conduct for the functioning of our judicial 
     system. If committed, these are serious crimes. Nevertheless, 
     as Manager Graham recognized, reasonable people can and do 
     disagree on the ultimate questions in this trial.
       I do not agree with the Managers that they have proven 
     these crimes were committed or that the conduct at issue here 
     is sufficiently heinous to warrant impeachment and removal of 
     the President. Chairman Henry Hyde recognized that ``one 
     hardly exhausts moral imagination by labeling every untruth 
     and every deception an outrage.'' \87\
       The American people understand this point instinctively. In 
     my home State of Vermont, for instance, the majority of 
     people are overwhelmingly opposed to the removal of this 
     President from office. They were against it in August 1998, 
     when the House posted Mr. Starr's salacious referral on the 
     Internet. They were against it in November 1998, when Mr. 
     Starr appeared before the House Judiciary Committee to try to 
     breath some life back into his case for impeachment. They 
     were against it in December 1998, when the House Republicans 
     made even shriller pitches for impeachment to the American 
     people. And judging from the calls and mail I have received, 
     Vermonters are more certain than ever that they want Bill 
     Clinton to serve out his term.
       Of course, we must not be led by the polls. The Framers 
     wanted impeachments to be tried in the Senate, not in the 
     court of public opinion. This is not a referendum. Still, 
     whether the evidence is sufficient to warrant the President's 
     removal turns at least in part on whether it makes him unfit 
     to govern, and on that question, the voice of the governed 
     should be heard.
       The Managers have eloquently expressed their concern about 
     the ``kind of message'' it would send to America should the 
     Senate refuse to convict and remove the President on the 
     Articles. Chairman Hyde expressed his view that the message 
     would be that ``charges of perjury, obstruction of justice 
     are summarily dismissed--disregarded, ignored, brushed off'' 
     and that there is a double standard for the President.\88\
       With all due respect for the Managers' belief on this 
     score, I disagree. First, our assessment of whether the 
     President's personal misconduct meets the constitutional 
     standard for impeachment, conviction and removal should not 
     be misconstrued to reflect our views on the seriousness of 
     perjury or obstruction of justice. Professor Tribe, in his 
     testimony last November before a House Judiciary subcommittee 
     confronted this issue directly, stating:
       ``It is always possible to argue, when confronted by 
     serious crime, that the system would crumble if everyone 
     followed the wrongdoer's example. If everyone took President 
     Richard Nixon's allegedly false filing of tax returns under 
     oath, including backdating documents, as a model to emulate, 
     the nation's tax system, and thus its defenses, would 
     crumble. Yet there was no realistic basis to suppose that the 
     Nixon example would start any such stampede, and the simple 
     proposition that, if all did as Nixon had done, the 
     consequences would be catastrophic did not mislead the House 
     Judiciary Committee into treating the President's alleged tax 
     evasion as an impeachable offense: By a vote of 26-12, the 
     Committee soundly declined to treat it as such.'' \89\
       Second, the Managers are also wrong that Senate acquittal 
     of the President would essentially set-up a ``double-
     standard'' and put the President above the law. The Managers 
     ignore the fact that the Constitution itself establishes a 
     purposely high and difficult standard for the Senate to 
     remove a duly elected head of a co-equal branch of 
     government. In a court of law, not a Senate court of 
     impeachment, the President, in his personal capacity, stands 
     subject to the same standard as any American.


              VI. PRIOR JUDICIAL IMPEACHMENTS FOR PERJURY

       Just ten years ago, the Senate voted to convict two Federal 
     judges on charges of perjury. The Managers read those 
     precedents to mean that perjury, if proved, is always an 
     impeachable offense--that Presidents ought not be held to a 
     lower standard of impeachability than judges. While the 
     failure of proof in this case obviates the need to resolve 
     the precedential effect, if any, that judicial impeachments 
     may have on the impeachment of a President, the Managers' 
     simplistic, ``one-size-fits-all'' approach is unsound.
       Perjury is not included in the impeachment section of 
     Article II of the Constitution, even though, as Manager Buyer 
     noted, the Framers were familiar with the crime.\90\ Treason 
     is the defining crime in the Constitution--it is a crime 
     against and undermining the very existence of the Government. 
     Bribery is also expressly included--no officer of the United 
     States can continue if he is corrupted by accepting a bribe 
     to do something other than faithfully execute his public 
     duties. Perjury may, if proved, provide a basis for 
     impeachment, but only if it is determined to be within 
     ``other high Crimes or Misdemeanors.''
       In the recent judicial impeachments, the lies at issue were 
     aimed at concealing gross abuses of official power, Judge 
     Alcee Hastings lied to conceal his participation in a 
     conspiracy to fix cases in his own court. Judge Walter Nixon 
     lied to conceal his corrupt efforts to influence a state 
     prosecutor to drop a case. Significantly, Judge Nixon had 
     been convicted by a Federal jury and was serving a 5-year 
     prison sentence at the time he was impeached and removed; he 
     simply could not continue to function as a Federal judge and 
     perform his duties.
       House Managers have also referred to the impeachment of a 
     third judge, Judge Harry Claiborne, but he was impeached for 
     filing a false tax return and not perjury per se. In any 
     event, as with Judge Nixon, Judge Claiborne had been 
     convicted after a jury trial and was serving a federal prison 
     term when he was impeached.
       By contrast, President Clinton is not accused of lying to 
     conceal public misconduct. He is accused of lying to conceal 
     the ``nature and details'' of an extramarital affair--an 
     affair that he admitted had occurred.
       Beyond this, there are very basic differences in terms and 
     functions between Federal judges and the President. Judges 
     are appointed for life. Presidents are elected for fixed 
     terms and accountable in political terms. A President can be 
     subject to review by the people if he runs for reelection. 
     Moreover, removing an appointed Federal judge, while 
     extremely serious, implicates none of the momentous, anti-
     democratic consequences of removing an elected President.
       Another difference between Federal judges and the President 
     is that, under the Constitution, only the former ``hold their 
     Offices during good Behavior.'' \91\ The proposition, 
     however, that this clause creates a different constitutional 
     standard for removal of judges than for removal of the 
     President or other civil officers is dangerous. Such an 
     interpretation would invite attacks on the independence of 
     the federal judiciary and undermine the balance among the 
     three co-equal branches of our federal government. Indeed, 
     Alexander Hamilton opined in Federalist No. 79 that 
     impeachment was the only provision for removal ``which we 
     find in our own Constitution in respect to our own judges.''
       The past few years have been seen unprecedented attacks on 
     controversial decisions by Federal judges. Should such 
     decisions be deemed malfeasance by the party in control of 
     Congress, then impeachment proceedings against judges who 
     render unpopular decisions could provide a platform for 
     endless political posturing. More importantly, this would 
     chill the independent operation of our Federal judiciary.
       As Professor Michael Gerhardt has explained, the good 
     behavior clause does not mean that Federal judges may be 
     impeached on the basis of a lower standard than the 
     President, but it does suggest that they may be impeached 
     `'on a basis that takes account of their special duties or 
     functions.'' \92\ A judge who lives under oath is uniquely 
     unfit to continue in an office that requires him to 
     administer oaths and sit in judgment. It is perfectly 
     appropriate for the Senate when sitting as a court of 
     impeachment to take into account the type of duties that the 
     impeached official is called upon to perform and whether the 
     charges, if proved, clearly impair the official's ability to 
     perform those duties. The outcome of this analysis may very 
     well differ depending on the job of the impeached official.

[[Page 2521]]

                  VII. ``FINDINGS OF FACT'' FALLACIES

       As the impeachment trial wore on, without any prospect of a 
     conviction and removal, a popular Republican exit strategy 
     was to force a preliminary vote on so-called ``findings of 
     fact'' that the President committed perjury and obstructed 
     justice, to be followed by a second vote on removal. I 
     opposed this initiative because, in my view, it reflected a 
     basic misunderstanding of the Senate's constitutional 
     function when sitting as a court of impeachment.
       The Senate's constitutional role is to determine whether to 
     convict the President of an impeachable offense and remove 
     him from office. This is a unitary question, requiring a 
     unitary answer. In recognition thereof, the Senate has rules 
     prohibiting dividing articles of impeachment.
       A presidential impeachment trial is not an appropriate 
     forum for ``finding'' that a public official has committed a 
     crime. Crime and punishment are issues expressly reserved by 
     the Constitution to our criminal courts, where an accused is 
     entitled to due process rights far in excess of the minimal 
     procedural protections being accorded the President in the 
     Senate trial. In the current case there are also additional 
     complicating factors since the Senate made up its procedures 
     as it went along and the specific charges against the 
     President have constantly shifted.
       Impeachment is not about punishing the officeholder but 
     about protecting the public. Senator George Edmunds of 
     Vermont explained in 1868 that ``[p]unishment by impeachment 
     does not exist under our Constitution. . . . [The accused] 
     can only be removed from the office he fills and prevented 
     from holding office, not as punishment, but as a means merely 
     of protection to the community . . . .'' \93\ Our focus must 
     be on whether the conduct with which the House has charged 
     President Clinton has been proven and warrants his removal 
     from office to protect the public.
       Branding the President is not the function of impeachment. 
     On the contrary, a congressional finding of guilt for 
     criminal conduct would be an illegitimate exercise in shaming 
     the President and an abuse of the impeachment process in 
     support of a future criminal prosecution, which recent leaks 
     from prosecutor Starr's office confirm he is considering.
       A preliminary vote on guilt in the form of ``findings of 
     fact'' would set the dangerous precedent that a Senate 
     impeachment trial could be used for the purpose of 
     criticizing conduct that the constitutionally-required number 
     of Senators did not believe was impeachable. The last 
     protection against impeachment by an opposing party with 
     majority control of Congress would be eviscerated. This would 
     trivialize the constitutional impeachment process and invite 
     future illegitimate impeachments.
       ``Findings of fact'' that the President committed the acts 
     charged in the Articles would be tantamount to conviction on 
     the impeachment Articles themselves and more accurately 
     described as ``findings of guilt'' without the remedy 
     prescribed by the Constitution. As a matter of constitutional 
     law and Senate practice, such ``findings'' cannot and should 
     not be separated from the vote on removal. Article II, 
     section 4 of the Constitution provides that, upon conviction 
     by the Senate, the President ``shall be removed from 
     Office.'' By making removal mandatory upon conviction, the 
     Constitution precludes the Senate from taking the 
     politically-expedient, oxymoronic route of convicting without 
     removing.
       Proponents of the Republican proposals pointed to 
     eighteenth century precedents long ago repudiated. In the 
     first three judicial impeachment trials that ended in 
     conviction, the Senate, having voted to convict, took a 
     separate vote on removal from office. But in each case, the 
     first vote required a two-thirds supermajority, as specified 
     by the Constitution, not a simple majority as is now 
     proposed. Moreover, the Senate rejected this early precedent 
     in 1936; since then, it has been the understanding of the 
     Senate that removal follows automatically from conviction. 
     The lack of solid precedent for ``findings of fact'' speaks 
     volumes.
       This unprecedented exit strategy was opposed by Republicans 
     and Democrats who did not want to circumvent the Constitution 
     merely to find a convenient end to this impeachment trial. 
     Former Judge Robert Bork termed these proposals 
     ``preposterous readings of the Constitution as well as 
     utterly impractical.'' \94\ Former Reagan Attorney General 
     Edwin Meese cautioned that the Senate ``should not flirt with 
     unconstitutional action, especially where conviction and 
     removal of the President are at stake.'' \95\
       Robert Frost said that the best way out is always through. 
     In the end, the Senate's best way out was to fulfill its 
     proper role in the impeachment process by voting on the 
     Articles.


             VIII. EFFECT ON CHILDREN AND NATIONAL SECURITY

       My consideration of the Articles would be incomplete 
     without addressing one final point raised by the House 
     Managers about the effect of our decision. They have 
     cautioned that should this President be acquitted, the 
     consequences would be dire for our children, military morale, 
     and the functioning of our judicial system. I reject these 
     doomsday scenarios and believe that the precedent set by 
     conviction without proof and removal without constitutional 
     justification would be far more dangerous for our Republic.
       For example, when he was asked whether acquitting the 
     President would endanger the stability of our government. 
     Manager Hyde responded that it would, because it would set a 
     bad example for our children.\96\ I was surprised by this 
     answer. This is hardly the sort of danger that the Framers of 
     the Constitution were concerned with when they met in 
     Philadelphia in 1787. They had just paid a great price to 
     liberate themselves from a tyrant. They wanted to ensure that 
     their new Chief Executive could not become a tyrant. They 
     wanted to ensure that he could be removed if he posed a 
     threat to the democratic system of government that they had 
     fought so hard to establish. They were not trying to ensure 
     that the President would be a good role model for the 
     nation's children.
       More importantly, as a father and grandfather, I work hard 
     to be a role model for my children and grandchild. They do 
     not need the President to serve that role. They do not have 
     to look to the Congress to impeach and remove this President 
     to know the difference between right and wrong.
       I trust the parents of America to raise their children, to 
     explain what the President did was wrong, and to point out 
     the humiliation and other consequences he has brought on 
     himself and his presidency for an entire year and for as long 
     as history books are written. I do not believe that the 
     Constitution calls upon us to remove a duly elected President 
     for symbolic purposes.
       The Managers have also struggled to raise the specter that 
     a vote of acquittal on the Articles would risk our national 
     security by undermining the morale of our military, who would 
     appear to be held to a double standard. I have more faith in 
     our military. If the Managers' position were correct then we 
     would have seen ill-effects from President Busy's pardon of 
     former Defense Secretary Caspar Weinberger, who had been 
     indicted on several counts, including for lying before a 
     grand jury. But we did not.
       In fact, at that time, Manager Hyde applauded the decision 
     to pardon Mr. Weinberger, saying, ``I'm glad the president 
     had the chutzpah to do it.'' Far from censuring this accused 
     perjurer or deploring the bad example he had set, Mr. Hyde 
     denounced the Independent Counsel who had brought this 
     ``political'' prosecution and stated: ``I just wish [us] out 
     of this mess, this six years and this $30-40 million that had 
     been spent [by independent counsel Lawrence E. Walsh]. It's 
     endless and it is a bottomless pit for money, with no 
     accountability.'' \97\
       The fact that the Constitution sets a high standard for 
     removal of a President has no bearing on the standard of 
     conduct applicable to military service. In addition, it does 
     not place the President above the law. Indeed, all of us in 
     Congress have special immunity under the speech and debate 
     clause. That has never been argued to place us above the law 
     nor undermine military morale.


     IX. DELIBERATIONS ON DISPOSITIVE TRIAL MOTIONS SHOULD BE OPEN

       Accustomed as we and the American people are to having our 
     proceedings in the Senate open to the public and subject to 
     press coverage, the most striking prescription in the ``Rules 
     of Procedure and Practice in the Senate when Sitting on 
     Impeachment Trials'' has been the closed deliberations 
     required on any preliminary question or motion, and now on 
     the final question whether the Articles of Impeachment should 
     be sustained or rejected.
       The requirement of closed deliberation, more than any other 
     rule, reflects the age in which the rules were originally 
     adopted in 1868. Even in 1868, not everyone favored secrecy. 
     During the trial of President Johnson, the senior Senator 
     from Vermont, George F. Edmunds, moved to have the closed 
     deliberations on the Articles transcribed and officially 
     reported ``in order that they world might know, without 
     diminution or exaggeration, the reasons and views upon which 
     we proceed to our judgment.'' \98\ The motion was tabled.
       In the 130 years that have passed since that time, the 
     Senate has seen the advent of television in the Senate 
     Chamber, instant communication, distribution of Senate 
     documents over the Internet, the addition of 46 Senators 
     representing 23 additional States, and the direct election of 
     Senators by the people in our States.
       Opening deliberations would help further the dual purposes 
     of our rules to promote fairness and political accountability 
     in the impeachment process. I supported the motion by 
     Senators Harkin, Wellstone and others to suspend this rule 
     requiring closed deliberations and to open our deliberations 
     on Senator Byrd's motion to dismiss and at other points 
     earlier in this trial. We were unsuccessful. Now that the 
     Senate has approached final deliberations on the Articles of 
     Impeachment, I had hoped that this secrecy rule would be 
     suspended so that the Senate's deliberations would be open 
     and the American people could see them. In a matter of this 
     historic importance, the American people should be able to 
     witness their Senators' deliberations.
       Some have indicated objection to opening the Senate's final 
     deliberations because petit

[[Page 2522]]

     juries in courts of law conduct their deliberations in 
     secret. Analogies to juries in courts of law are misplaced. I 
     was privileged to serve as a prosecutor for eight years 
     before I was elected to the Senate. As a prosecutor, I 
     represented the people of Vermont in court and before juries 
     on numerous occasions. I fully appreciate the traditions and 
     importance of allowing jurors to deliberate and make their 
     decisions privately, without intrusion or pressure from the 
     parties, the judge or the public. The sanctity of the jury 
     deliberation room ensures the integrity and fairness of our 
     judicial system.
       The Senate sitting as an impeachment court is unlike any 
     jury in any civil or criminal case. A jury in a court of law 
     is chosen specifically because the jurors have no connection 
     or relation to the parties or their lawyers and no 
     familiarity with the allegations. Keeping the deliberations 
     of regular juries secret ensures that as they reach their 
     final decision, they are free from outside influences or 
     pressure.
       As the Chief Justice made clear on the third day of the 
     impeachment trial, the Senate is more than a jury; it is a 
     court. Courts are called upon to explain the reasons for 
     decisions. Furthermore, to the extent the Senate is called 
     upon to evaluate the evidence as is a jury, we stand in 
     different shoes than any juror in a court of law. We all know 
     many of the people who have been witnesses in this matter; we 
     all know the Managers--indeed, one Senator is a brother of 
     one of the Managers--and we were familiar with the underlying 
     allegations in this case before the Managers ever began their 
     presentation.
       Because we are a different sort of jury, we shoulder a 
     heavier burden in explaining the reasons for the decisions we 
     make here. I appreciate why Senators would want to have some 
     aspects of our deliberations in closed session: to avoid 
     embarrassment to and protect the privacy of persons who may 
     be discussed. Yet, on the critical decisions we are now being 
     called upon to make on our votes on the Articles themselves, 
     allowing our deliberations to be open to the public helps 
     assure that American people that the decisions we make are 
     for the right reasons.
       In 1974, when the Senate was preparing itself for the 
     anticipated impeachment trial of former President Richard 
     Nixon, the Committee on Rules and Administration discussed 
     the issue of allowing television coverage of the Senate 
     trial. Such coverage did not become routine in the Senate 
     until later in 1986. In urging such coverage of the possible 
     impeachment trial of President Nixon, Senator Metcalf (D-MT), 
     explained:
       ``Given the fact that the party not in control of the White 
     House is the majority party in the Senate, the need for 
     broadcast media access is even more compelling. Charges of a 
     `kangaroo court,' or a `lynch mob proceeding' must not be 
     given an opportunity to gain any credence whatsoever. 
     Americans must be able to see for themselves what is 
     occurring. An impeachment trial must not be perceived by the 
     public as a mysterious process, filtered through the 
     perceptions of third parties. The procedure whereby the 
     individual elected to the most powerful office in the world 
     can be lawfully removed must command the highest possible 
     level of acceptance from the electorate.'' \99\
       Opening deliberation would ensure complete and accurate 
     public understanding of the proceedings and the reasons for 
     the decisions we make here. Opening our deliberations on our 
     votes on the Articles would tell the American people why each 
     of us voted the way we did.
       The last time this issue was actually taken up and voted on 
     by the Senate was more than a century ago in 1876, during the 
     impeachment trial of Secretary of War William Belknap. 
     Without debate or deliberation, the Senate refused then to 
     open the deliberations of the Senate to the public. That was 
     before Senators were elected directly by the people of their 
     State, that was before the Freedom of Information Act 
     confirmed the right of the people to see how government 
     decisions are made. Keeping closed our deliberations is 
     wholly inconsistent with the progress we have made over the 
     last century to make our government more accountable to the 
     people.
       Constitutional scholar Michael Gerhardt noted that ``the 
     Senate is ideally suited for balancing the tasks of making 
     policy and finding facts (as required in impeachment trials) 
     with political accountability.'' \100\ Public access to the 
     reasons each Senator gives for his vote on the Articles is 
     vital for the political accountability that is the hallmark 
     of our role.
       I likewise have urged the Senate to adjust these 130-year-
     old rules to allow the Senate's votes on the Articles of 
     Impeachment to be recorded for history by news photographers. 
     This is a momentous official and public event in the annals 
     of the Senate and in the history of the nation. This is a 
     moment of history that should be documented for both its 
     contemporary and its lasting significance.
       Open deliberation ensures complete accountability to the 
     American people. Charles Black write that presidential 
     impeachment ``unseats the person the people have deliberately 
     chosen for the office.'' \101\ The American people must be 
     able to judge if their elected representatives have chosen 
     for or against conviction for reasons they understand, even 
     if they disagree. To bar the American people from observing 
     the deliberations that result in these important decisions is 
     unfair and undemocratic.
       The Senate should have suspended the rules so that the 
     Senate's deliberations on the final question of whether to 
     convict the PResident of these Article of Impeachment were 
     held in open session. After this impeachment trial is over, I 
     urge the Senate to re-examine the rule on closed 
     deliberations in impeachment trials and revise the rule to 
     reflect the open and accountable government that is now the 
     pride and hallmark of our democracy.


                             X. CONCLUSION

       The House Managers have warned that should the President be 
     acquitted we will set a dangerous precedent and damage the 
     ``rule of law.'' I strongly disagree. Instead, we will have 
     set the following important precedent for the future: that 
     partisan impeachment drives are doomed to failure.
       It is up to the Senate, now, to restore sanity to this 
     process, exercise judgment, do justice and act in the 
     interests of the nation. We all knew before the trial began 
     that history will judge us on whether this case was resolved 
     in a way that serves the good of the country, not the 
     political ends of any party. I commend my colleagues in the 
     Senate and in particular Majority Leader Lott and Minority 
     Leader Daschle for working hard to maintain bipartisanship 
     and fairness in our proceedings.
       In all the references to the first presidential impeachment 
     trial, a little-known historical fact has been overlooked. 
     After the unsuccessful effort to remove him from office, 
     former President Johnson returned to serve this country as a 
     United States Senator. I look forward to the day when the 
     Senate has concluded the impeachment of President Clinton and 
     the Senate can close its work as an impeachment court and 
     turn to the other important work we face as Senators.


                               footnotes

     1. Cong. Rec., Jan. 7, 1997, p. S5.
     2. U.S. Constitution, Art. IV, sec. 2.
     3. House Comm. on the Judiciary, Hearing before the Subcomm. 
     on the Constitution, Background and History of Impeachment, 
     105th Cong., 2d Sess., Ser. No. 63, Nov. 9, 1998, p. 228 
     [hereinafter ``Hearing of Nov. 9, 1998''].
     4. Cong. Rec., Jan.
     5. Robert Jackson, ``The Federal Prosecutor,'' Address 
     Delivered at the Second Annual Conference of United States 
     Attorneys, Apr. 1, 1940, quoted in Morrison v. Olson, 487 
     U.S. 654, 728 (1988) (Scalia, J., dissenting).
     6. See Michael Frisby, ``Starr is Assailed for Reportedly 
     Probing Alleged Extramarital Affairs by Clinton,'' The Wall 
     Street Journal, June 26, 1997, sec. B, p. 2 (quoting Sen. 
     Patrick Leahy).
     7. House Comm. on the Judiciary, Hearing on Impeachment 
     Inquiry: William Jefferson Clinton, President of the United 
     States, Appearance of Independent Counsel, 105th cong., 2d 
     Sess., Ser. No. 66, Nov. 19, 1998, p. 28 [hereinafter 
     ``Hearing of Nov. 19, 1998''].
     8. Referral of Independent Counsel Kenneth W. Starr, 105th 
     cong., 2d Sess., House Doc. 105-310, Sept. 11, 1998, p. 145 
     [hereinafter ``Starr Referral''].
     9. Appendices to Starr Referral, Part 1, House Doc. 105-311, 
     Sept. 18, 1998, p. 710 (2/1/98 handwritten proffer by Monica 
     Lewinsky: ``Ms. Linda Tripp informed Ms. L that a friend of 
     Ms. Tripp's in the NSC . . . suggested to Ms. Tripp that Ms. 
     L leave Washington, DC.''); id., p. 824 (8/6/98 grand jury 
     testimony of Ms. Lewinsky: ``I know I had discussed with 
     Linda and either I had the thought or she had suggested that 
     Vernon Jordan would be a good person who is a close friend of 
     the President and who has a lot of contacts in New York, so 
     that might be someone who might be able to help me secure a 
     position in New York, if I didn't want to go to the U.N.''); 
     id., p. 1393 (7/27/98 FBI interview of Ms. Lewinsky: ``LINDA 
     TRIPP suggested to LEWINSKY that the President should be 
     asked to ask VERNON for assistance'').
     10. Interview of Kenneth W. Starr by Diane Sawyer on ABC 20/
     20, Nov. 25, 1998, 10:00 p.m. ET.
     11. Statements by Sen. Patrick Leahy, Cong. Rec., Feb. 23, 
     1998, p. S803; Cong. Rec., Mar. 27, 1998, p. S2696; Cong. 
     Rec., Sept. 24, 1998, p. S10873.
     12. 28 U.S.C. Sec. 595(c).
     13. Hearing of Nov. 9, 1998, p. 113.
     14. Hearing of Nov. 19, 1998, p. 32.
     15. Lynn Sweet, ``Starr draws bipartisan fire,'' Chicago Sun-
     Times, Feb. 1, 1999, p. 13.
     16. Hearing of Nov. 9, 1998, p. 101.
     17. ``Historians in Defense of the Constitution,'' reprinted 
     in Hearing of Nov. 9, 1998, pp. 334-339; Letter from Law 
     Professors to House of Representatives, reprinted in Hearing 
     of Nov. 9, 1998, pp. 374-385.
     18. House Comm. on the Judiciary, Report on Impeachment of 
     Richard M. Nixon, President of the United States, 93rd cong., 
     2d Sess., Report No. 93-1305, Aug. 20, 1974 [hereinafter 
     ``Rodino Report''], pp. 8-9, reprinted in House Comm. on the 
     Judiciary, Impeachment: Selected Materials, 105th Cong., 2d 
     Sess., Ser. No. 10, Nov. 1998, pp. 28-29.
     19. Cong. Rec., Feb. 4, 1999, p. S1228.
     20. Cong. Rec., Sept. 11, 1998, H7594.
     21. Cong. Rec., Dec. 19, 1998, p. H12036.
     22. Cong. Rec., Oct. 8, 1998, p. H10087 (statement by Rep. 
     Cliff Stearns).
     23. Cong. Rec., Jan. 15, 1999, p. S273.
     24. Cong. Rec., Jan. 15, 1999, p. S273.
     25. Cong. Rec., Jan. 22, 1999, p. S887.
     26. Hearing of Nov. 9, 1998, p. 282.
     27. Letter from Reps. Sherwood Boehlert, Michael N. Castle, 
     Benjamin A. Gilman, and James C. Greenwood to Sen. Trent 
     Lott, reprinted in The New York Times, Dec. 22, 1998, sec. A, 
     p. 28 (``We write as Republicans who voted to impeach 
     President Clinton. . . . We are not convinced, and do not 
     want our votes interpreted to mean that we view removal from 
     office as the only reasonable conclusion of this case'').
     28. Cong. Rec., Jan. 15, 1999, p. S279.
     29. Charles L. Black, Jr., Impeachment: A Handbook 8-9 
     (1974).
     30. See Rodino Report, pp. 8-9.

[[Page 2523]]

     31. T.R. Goldman, ``Outtakes From the Final Frame: 
     Transcripts Don't Tell the Whole Story,'' Legal Times, vol. 
     XXI, No. 37, Feb. 8, 1999, p. 10.
     32. Cong. Rec., Feb. 6, 1999, p. S1315.
     33. Cong. Rec., Feb. 6, 1999, p. S1318.
     34. E.g., United States v. Reilly, 33 F.3d 1396, 1416 (3d 
     Cir. 1994).
     35. Criminal Resource Manual Sec. 1746.
     36. E.g., Cong. Rec., Jan. 22, 1999, p. S872.
     37. Journal of the Senate, Apr. 18, 1933, pp. 317-318.
     38. House Comm. on the Judiciary, Impeachment Inquiry: 
     William Jefferson Clinton, President of the United States--
     Consideration of Articles of Impeachment, 105th Cong., 2d 
     Sess., Ser. No. 18, Dec. 10-12, 1998, p. 279.
     39. Cong. Rec., Jan. 15, 1999, p. S260.
     40. Cong. Rec., Oct. 20, 1989, p. S13787.
     41. John F. Kennedy, Profiles in Courage 138 (1956).
     42. See Proceedings of the United States Senate in the 
     Impeachment Trial of Walter L. Nixon, Jr., 101st Cong., 1st 
     Sess., S. Doc. 101-22, Nov. 13, 1989, pp. 457-458 (statement 
     of Sen. Bob Dole); see also Cong. Rec., Nov. 7, 1989, p. 
     S27700 (statement of Sen. Herb Kohl); Cong. Rec., Nov. 15, 
     1989, p. S29239 (statement of Sen. Joseph Biden); Cong. Rec., 
     Nov. 21, 1989, p. S31652 (statement of Sen. Frank Murkowski).
     43. Michael Gerhardt, The Federal Impeachment Process: A 
     Constitutional and Historical Analysis 113 (1996).
     44. Black, supra, p. 17.
     45. John R. Labovitz, Presidential Impeachment 196 (1978).
     46. Cong. Rec., Jan. 15, 1999, p. S260.
     47. Rodino Report (Minority Views), pp. 379-380.
     48. Cong. Rec., Feb. 4, 1999, p. S1213.
     49. Cong. Rec., Jan. 20, 1999, p. S817.
     50. See, e.g., 18 U.S.C. Sec. 1001(b).
     51. T.R. Goldman, ```The Blank Stare' and Other Strange 
     Evidentiary Tales from the Senate Trial,'' Legal Times, vol. 
     XXI, No. 36, Feb. 1, 1999, pp. 1, 18.
     52. Cong. Rec., Jan. 21, 1999, p. S846.
     53. Cong. Rec., Jan. 14, 1999, p. S64.
     54. Cong. Rec., Feb. 2, 1999, p. S1226.
     55. Cong. Rec., Jan. 14, 1999, p. S231.
     56. Cong. Rec., Feb. 4, 1999, p. S1219.
     57. Appendices to Starr Referral, Part 1, p. 954 (8/6/98 
     grand jury testimony of Monica Lewinsky).
     58. Supplemental Materials to Starr Referral, Part 1, p. 555 
     (1/27/98 grand jury testimony of Betty Currie).
     59. Appendices to Starr Referral, Part 1, p. 1187 (8/20/98 
     grand jury testimony of Monica Lewinsky).
     60. Appendices to Starr Referral, Part 1, p. 901 (8/6/98 
     grand jury testimony of Monica Lewinsky).
     61. Cong. Rec., Jan. 14, 1999, p. S65.
     62. Cong. Rec., Feb. 6, 1999, p. S1293.
     63. Cong. Rec., Jan. 14, 1999, p. S65.
     64. Cong. Rec., Jan. 15, 1999, p. S277.
     65. Cong. Rec., Feb. 4, 1999, p. S1222.
     66. Appendices to Starr Referral, Part 1, p. 716.
     67. Appendices to Starr Referral, Part 1, p. 1243.
     68. Appendices to Starr Referral, Part 1, p. 710.
     69. Appendices to Starr Referral, Part 1, p. 591.
     70. Appendices to Starr Referral, Part 1, p. 591.
     71. Jim Abrams, ``GOP Senator: Congress Should Be Cautious 
     About Impeachment,'' The Associated Press Political Service, 
     Mar. 9, 1998.
     72. Eric Schmitt, ``Judiciary Chairman Asks Clinton to Admit 
     or Deny 81 Findings,'' The New York Times, Nov. 6, 1998, sec. 
     A, p. 1 (quoting Rep. Gekas).
     73. Cong. Rec., Dec. 19, 1998, p. H12003.
     74. Cong. Rec., Jan. 22, 1999, p. S998.
     75. Cong. Rec., Jan. 22, 1999, p. S998.
     76. Cong. Rec., Jan. 15, 1999, p. S267.
     77. Cong. Rec., Feb. 4, 1999, p. S1212.
     78. Cong. Rec., Feb. 4, 1999, p. S1229.
     79. William H. Rehnquist, Grand Inquests 18 (1992).
     80. Black, supra, p. 39.
     81. House Comm. on the Judiciary, Constitutional Grounds for 
     Presidential Impeachment: Report by the Staff of the 
     Impeachment Inquiry, 93rd Cong., 2d Sess., Feb. 1974, p. 27.
     82. Black, supra, p. 35-36.
     83. Burlington Free Press, Jan. 26, 1999.
     84. Cong. Rec., Jan. 22, 1999, p. S877.
     85. Cong. Rec., Jan. 23, 1999, p. S937.
     86. Cong. Rec., Jan. 22, 1999, p. S885.
     87. David G. Savage, ``Hyde View on Lying is Back Haunting 
     Him,'' Los Angeles Times, Dec. 4, 1998, sec. A, p. 1.
     88. Cong. Rec., Jan. 25, 1999, p. S973.
     89. Haring of Nov. 9, 1998, p. 227.
     90. Cong. Rec., Jan. 16, 1999, p. S283.
     91. U.S. Constitution, Art. III, sec 1.
     92. Gerhardt, supra, p. 106-107.
     93. Cong. Globe Supp'l, Impeachment Trial of President Andrew 
     Johnson, 40th Cong., 2d Sess., vol. 4, p. 426 (emphasis in 
     original).
     94. Robert H. Bork, ``Read the Constitution: It's Removal or 
     Nothing,'' The Wall Street Journal, Feb. 1, 1999, sec. A, p. 
     21.
     95. Edwin Meese III & Todd Gaziano, ``Two Impeachment Votes 
     Could Cause Long-Term Harm,'' Roll Call, vol. 44, No. 53, 
     Feb. 4, 1999, p. 6.
     96. Cong. Rec., Jan. 23, 1999, p. S948.
     97. ``Hyde View on Lying is Back Haunting Him,'' supra.
     98. Cong. Globe Supp'l, Impeachment Trial of President Andrew 
     Johnson, 40th Cong., 2d Sess., vol. 4, p. 424.
     99. Comm. On Rules and Administration and its Subcomm. On 
     Standing Rules of the Senate, Hearings on Senate Rules and 
     Precedents Applicable to Impeachment Trials, 93rd Cong., 2d 
     Sess., Aug. 5 and 6, 1974, p. 37.
     100. Gerhardt, supra, p. 174.
     101. Black, supra, p. 17.

  Mr. GRASSLEY. Mr. Chief Justice, my fellow Senators, as this trial 
nears the end, we have to ask the question how we got here with a 
tragedy like this. There are many losers. There are no winners. There 
are surely no heroes. There are lots of lessons to be learned, and I 
think all of our prayers ought to go out to those who were ensnared in 
the web of controversy.
  In reflecting on this case and my role in it under the Constitution, 
the word ``sad'' comes to mind. I have not relished sitting in judgment 
of a twice-elected, popular President. I would prefer to make history 
in other ways. I also regret the nature of the subject of this case. It 
is not easy having our entire society suddenly thrust into an open, 
nonstop debate about things that ought to make all of us blush.
  Some say that this impeachment effort is part of a right-wing 
conspiracy, it is a Republican plot to get a Democratic President. 
Let's look at how we got here and see if that argument holds up.
  We are here because the President did wrongful acts and he admits to 
that. We are here because of the independent counsel law. The President 
himself led the charge to reauthorize the Independent Counsel Act. 
Thirty-three of my colleagues on this side of the aisle were in the 
Senate at that particular time. All but one of you voted for 
reauthorization.
  On June 30, 1994, the President signed that reauthorization bill. He 
issued a statement and here is what he said:

       This law, originally passed in 1978, is a foundation stone 
     for the trust between Government and our citizens. . .

  He says,

       Opponents called it a tool of partisan attack against 
     Republican Presidents and a waste of taxpayer funds. It was 
     neither. In fact, the independent counsel statute has been in 
     the past and is today a force for Government integrity and 
     public confidence.

  Those were the words of President Clinton, June 30, 1994.
  Before reauthorization, it was the President himself who advocated 
the appointment of a special prosecutor. That appointment was made by 
the President's own Attorney General. After reauthorization, the 
Attorney General supported the appointment of an independent counsel. 
The independent counsel was then appointed by a special three-judge 
panel, as required by law.
  Also under the law, the Attorney General can initiate the dismissal 
of an independent counsel if he oversteps his bounds or acts 
improperly. Not only was this never done by the President's Attorney 
General but, in contrast, she even agreed several times to expand his 
jurisdiction, including to cover the Monica Lewinsky matter.
  Also under the law, the independent counsel is obliged to send to the 
House any evidences of crimes that might be impeachable.
  In short, this case came about through a legitimate, legal process. 
It is a process that historically was vigorously defended by this side 
of the aisle. There are various checks and balances built into the 
process. They are designed to prevent abuse by the independent counsel, 
but they were never triggered, even though the President's own Attorney 
General could move for dismissal.
  No, this President is in this predicament because of his own private 
wrongdoing and because of public policy he pursued. There is no 
conspiracy.
  The President's actions are having a profound impact, of course, upon 
our society. His misdeeds have caused many to mistrust elected 
officials. Cynicism is swelling among the grassroots. His breach of 
trust has eroded the public's faith in the office of the Presidency. 
The President's wrongdoing has painted all of us in Washington with a 
very broad brush.
  In the past 12 months, thousands of Iowans have registered their 
opinions with me. One letter from a middle school principal speaks 
volumes.
  At an assembly to mark the new school year, a video entitled 
``Attitude is Everything'' was presented to the student body. The video 
was all about American heroes--college athletes, Olympic medalists, 
astronauts and world leaders.
  Logically, the video also included President Clinton. The school 
principal wrote to me the following. He said, when the President's 
picture appeared, the entire student body--ages 11 to 14--snickered. He 
said their spontaneous reaction struck a chord. He wrote:

       Although they may not fully understand the adult 
     connotations and political ramifications. . .they do know 
     that if you want to be trusted and [if you want to be] 
     respected, you must tell the truth. . ..[A]s an educator in 
     Iowa's public schools for the past 16 years. . .our students' 
     reaction to President Clinton's picture is one of the saddest 
     moments I can recall. In that instant, I realized how deeply 
     his conduct has affected our country.

  Mr. Chief Justice, there is that word ``sad'' again. It seems to come 
to the fore in people's minds over this case, over this President's 
conduct, and over the impact it has had on our country.

[[Page 2524]]

  The true tragedy in this case is the collapse of the President's 
moral authority. He undermined himself when he wagged his finger and 
lied to our people on national television, denying that relationship 
with Ms. Lewinsky. That did more damage to his credibility than any 
other single act.
  There was no better reason than that for the resignation of the 
President. I did not personally call for his resignation in August. 
That is something the President should decide on his own. But once you 
lose your moral authority to lead, you are a failure as a leader. FDR 
once spoke of the Presidency in this way:

       The Presidency is not merely an administrative office. . 
     ..It is preeminently a place of moral leadership.

  Mr. Clinton should take note.
  Next, there is the issue of the abuse of power and authority. The 
President used his position to enter into an improper relationship with 
a subordinate--not just a subordinate, a young intern. He later used 
his power to find her a job.
  Another abuse of power: The full powers of the White House were on 
lease to stonewall the process and to attack the credibility of those 
who investigated him.
  This White House has perfected the art of stonewalling around the 
truth. I fear that future White Houses will learn much from these 
experts and will refine and improve their own truth-fighting arsenals. 
Truth and openness will be casualties.
  Last, there is the issue of the poor example the President's actions 
serve for the Nation, especially for our youth. Is it now OK to lie 
because the President does it? And in the same manner, by wordsmithing, 
by trying to figure out what the meaning is of the word ``is''?
  I received a call recently from a mother of a teenage son in Des 
Moines. All last year, she thought the investigation of the President 
was a wasteful, partisan witch hunt. She was totally against the 
investigation and impeachment.
  And then her son got into some serious trouble, and it involved 
lying. She confronted him with the wrong. Her son responded: ``What I 
told you is the truth as I understood it at the time.''
  The mother grew furious, and she said at that moment she knew that we 
couldn't have a President like Bill Clinton. She knew firsthand the 
damage that his conduct had done to her family and to our country. At 
that point, she said she changed her position in favor of impeachment.
  These are all questions and issues that emerge from the broader 
contours of this case, outside the narrow charges in the articles.
  With respect to the impeachment charges, many of the President's 
arguments are based on contorted interpretations of the facts. These 
interpretations aren't credible. They represent lawyering at its best 
or, as some would say, at its worst.
  It is clear to me that the President committed serious crimes when he 
coached his secretary, Betty Currie, and when he misled his aides, 
Sidney Blumenthal and John Podesta. Each of these aides ended up being 
a witness in official court proceedings. I believe, based on the 
evidence before the Senate, that the President lied to these witnesses 
so they would repeat those lies before official court proceedings. That 
is obstruction of justice.
  In addition, I find it very interesting that a power lawyer like 
Vernon Jordan would be so active in the job hunt for Ms. Lewinsky. 
Regardless of what she felt or thought, I believe the President was 
arranging to get her a job. That way, she wouldn't provide harmful 
testimony in the Paula Jones sexual harassment lawsuit. Again, 
obstruction of justice.
  Mr. Chief Justice, these actions weren't just outrageous, and, more 
important, morally wrong, but they were also illegal. They were a 
direct assault on the integrity of the judicial process. The President 
is guilty of the offenses charged under article II.
  The first article charges that the President committed perjury on 
several occasions. While I am not convinced he committed perjury on 
each occasion charged, I believe he did commit perjury when he lied 
about his efforts to obstruct justice. That is the fourth count.
  I don't believe the President's statement that he was merely trying 
to refresh his memory when he spoke with Betty Currie about his 
relationship with Ms. Lewinsky, and I don't believe the President's 
statement that he was only trying to protect himself from embarrassment 
when he concocted elaborate lies about Ms. Lewinsky and then conveyed 
those lies to his aides.
  The President was not forthright when he testified before the grand 
jury. Time and time again, he gave answers that were misleading and 
sometimes deliberately false. The American people have a right to 
expect their President to be completely truthful, as they can expect 
you and me to be completely truthful. And the American people have a 
right to expect their President to be truthful, especially when placed 
under oath. I will vote guilty on article I as well.
  Mr. Chief Justice, these were not easy decisions. They are the 
product of soul-searching, as it is for all of you. So they leave me 
with a good conscience. I believe my votes reflect the truth of what 
happened in this case.
  The Senate is about to close this chapter in American history. It may 
or may not be the final chapter in this story. Nonetheless, our 
decision in this impeachment trial will stand against the test of time. 
You only truly understand the present when it is past. In that respect, 
future generations will serve as our jury and, in the end, history will 
serve as the final judge. Thank you.
  Mr. CRAIG. I promised to share with the people of Idaho and the 
nation what comments I made in the closed session of the Senate 
deliberating on the impeachment of President Clinton.
  What I told my colleagues as we deliberated was this:
  If we were in a church, the minister would admonish us from the 
pulpit to hate the sin and forgive the sinner. But we're not in a 
church.
  If we were in a court of law, the judge would tell us to hate the 
crime, and punish the criminal. But we're not in a court of law.
  We're part of a constitutionally-directed impeachment tribunal, and 
our job is to love the Constitution and protect the office of the 
president. Our decision should not be about saving or rejecting William 
Jefferson Clinton, but about protecting the office of the president and 
keeping our Constitution strong.
  I believe he committed the crimes and acts charged in the articles of 
impeachment, and I will vote to convict and remove him from office.
  That was my statement to the Senators in closed deliberations, and I 
stand by it today.
  But this statement was not the full explanation of my vote and my 
reasoning that I believe is owed to the people of Idaho and the nation. 
Therefore, let me take a few moments now to clarify why I voted to 
convict President Clinton on the articles of impeachment.
  First, I believe the House made its case on the facts. I was 
persuaded by what I saw, read, and heard that the president 
deliberately lied under oath in the case brought by Paula Jones to 
enforce her civil rights. I was also persuaded that he encouraged 
others to lie under oath and committed other acts designed to obstruct 
justice. In reaching these conclusions, it was important to me that the 
Senate is not bound to a specific constitutional or statutory standard 
in judging the evidence; instead, each Senator is left to his or her 
own experience and conscience. That is both the political and judicial 
nature of the impeachment process prescribed by the Constitution.
  However, reaching this conclusion about the facts does not trigger 
automatic conviction and removal of the president. A Senator must still 
resolve two questions: whether the acts committed were the kind of 
``high crimes and misdemeanors'' warranting removal from office, and 
whether the interests of the nation are served by removal. Impeachment 
by the House expresses that chamber's opinion on those two questions, 
but it is up to the Senate to render final judgment.

[[Page 2525]]

  And it is these two questions that have caused the most perplexity in 
this impeachment process--not to mention the most furious debate, hand 
wringing, and logical contortions.
  For example, we have heard much during these proceedings about 
proportionality--in other words, about ensuring that the punishment or 
sanction fits the crime. Some of our colleagues have suggested that 
while the crimes of perjury and obstruction of justice may rise to the 
level of impeachable offenses, that conclusion is not inevitable on 
every set of facts. More to the point, they argue there is something in 
this particular case that diminishes the seriousness of the offense or 
renders it a private, as opposed to public, crime: perhaps the context 
of the misdeeds, or the subject matter of the perjury, or the motive 
behind the obstruction of justice.
  Yet considerations such as these have not prevented the government 
from prosecuting citizens who committed such crimes. Furthermore, while 
we are not bound by statutory definitions of crimes here, these 
arguments frustrate the very goal our Founders had in mind when they 
established the extraordinary remedy of impeachment: to protect the 
executive office and the nation from a lawless president. The Framers 
of the Constitution believed that governments are established in the 
first place to protect the rights of the governed. It follows that the 
most serious breach of duty in public office--the most serious threat 
to the order of society itself--is for the enforcers of the law to 
break the law. How much more grave that breach becomes when it is 
committed by the one individual in the nation who personifies the 
federal government: the president. How much more abhorrent it is when, 
in covering up his crimes, that president exploited the very public 
trust he betrayed.
  There is no question in my mind that perjury and obstruction of 
justice are the kind of public crimes that the Founders had in mind, 
and the House managers have demonstrated these crimes were committed by 
the president. As for the excuses being desperately sought by some to 
allow President Clinton to escape accountability, it seems to me that 
creating such loopholes would require tearing holes in the 
Constitution--something that cannot be justified to protect this 
president, or any president.
  This brings me to the final question: whether the public interest 
will be served by the president's removal from office. Let me say there 
are those in my State who have been seeking this result ever since the 
president was elected, because they simply don't agree with him. I, 
too, generally disagree--sometimes loudly--with President Clinton's 
approach to public policy.
  However, political and policy differences are emphatically not the 
focus of this question. Instead, the Founders intended us to focus on 
the safety of the nation. That is a very high threshold, appropriate to 
the serious impact of the vote we must case. In this case, many are 
arguing that our nation is not at risk; we're prosperous; the 
government is not collapsing; there is no immediate or external threat 
to the country.
  But I would submit that if a generation of young people are taught by 
our actions in this case that a lie carries no consequences, then the 
nation is at risk. If our citizens conclude that lawlessness in the 
highest office is acceptable, that their elected representatives are 
complicit in that corruption, and that nothing can be done to stop it, 
then the nation is at risk. If future presidents think they can go 
further in lying or obstruction of justice when they apply the 
``Clinton Indicator,'' then the nation is at risk. If the Executive 
Office of the President is occupied by an individual who is generally 
believed to have lied and betrayed the public trust--if the symbol, the 
icon of the presidency is compromised, the nation is at risk.
  Some have suggested that removing this president from office would 
put the nation at risk. That is false argument and something no one 
should fear. Instead, we should place our faith in the Constitution and 
the wisdom of its Framers, who provided a roadmap for a peaceful, 
swift, and orderly transition of power to the vice president. That 
transition poses no threat to the nation.
  On the other hand, I believe exonerating President Clinton with a 
vote for acquittal does create a threat to our nation. In short, I am 
convinced that the nation is at risk today--not because of the 
possibility of the president's removal through the impeachment process, 
but because of the damage he has caused to the Executive office of the 
President, and the damage that continues to be done by his remaining in 
office.
  For all these reasons, I believe my vote to convict and remove this 
president from office is an appropriate response, a necessary response, 
a constitutionally-compelled response.
  I said at the beginning of this process that it would be my goal to 
ensure that we proceeded in a fair and constitutional manner. I believe 
we have done so--and managed along the way to generally rise above 
partisanship and the politics of the day. While I fundamentally 
disagree with many of my colleagues in the final result, I salute them 
for their sincerity and the seriousness of their purpose. No matter 
what the result, the Senate discharged its constitutional duty well.
  However, reluctant as I am to say it, I do not believe this sorry 
chapter in our history is closed. On the first day of this trial, as I 
watched the Chief Justice take the chair, I was angry--profoundly angry 
that this president had brought this nation to this point because of 
his own self-gratification, setting what was good for himself above 
what was good for the nation. It is unconscionable what the president 
has put the country through, continues to put the country through, and 
will continue to put the country through for his own personal and 
political ends. My differences with the president on this point 
transcend party or policy; I am saddened that this sorry chapter will 
continue, that the book will be open and the pages of this chapter will 
be turning as long as this president remains on office. Our young 
people, our citizens, our Constitution deserve a better end to a better 
story.
  Mr. DODD. Mr. Chief Justice, 33 days ago, at about this hour, we 
gathered in the old Senate chamber in a closed session to begin the 
journey that has brought us to where we are today.
  We are only hours away from casting what Robert C. Byrd has 
appropriately described as the most important vote any of us have cast 
or are likely to cast in our service as United States Senators.
  For only the second time in our nation's glorious history, we, as 
temporary custodians of these 100 seats, will decide whether to take 
the most extraordinary and grave action that could ever be asked of us 
as Senators. The decision to declare war or amend our Constitution 
pales in comparison to trying the impeachment of a popularly elected 
President of the United States.
  Unlike the House of Representatives, we did not decide to initiate 
this impeachment action.
  We did not seek this burden.
  It has been thrust upon us.
  Our responsibilities were limited to how to proceed in this trial and 
what verdict to render.
  Despite our procedural differences along the way, the Senate has 
fulfilled Alexander Hamilton's vision as a ``tribunal sufficiently 
dignified.'' The credit for that result belongs primarily to Tom 
Daschle, the Democratic Leader, and Trent Lott, the Majority Leader.
  Let history record that these two leaders, saddled with different 
challenges, led us with patience, fairness, good humor and dignity.
  I have listened intently to those of you who have spoken on this 
matter, and I would urge all Senators to add the reasoning for your 
vote to this record. For in many respects, it will be our words, our 
thinking, our rationale that will be revisited in the coming millennium 
when and if those who succeed us in this Chamber are ever asked to 
confront the judgment that is upon us.
  The contemporary press will record what decisions we have reached. 
But

[[Page 2526]]

the cold, dispassionate eye of history will also scrutinize why 
collectively and individually we reached our conclusion, and what 
impact this ordeal has had on the Constitution, the Congress, the 
courts, the presidency, and the maintenance of our tripartite federal 
system of government.
  I agree heartily with those who say we should not decide this matter 
only on the polls and the popularity of this President. But nor should 
we totally disregard the voices of those who elected this President or 
who have sent us here to represent them--including the voices of those 
who voted against us.
  It is not entirely insignificant that of the 13 House Republican 
managers who have presented their case, 7 were unopposed in the last 
election, and 3 were reelected with such significant majorities they 
were virtually unopposed. I find it disquieting that the passion for 
conviction of 10 of the 13 House Republican managers may not have been 
tempered by the voices of dissent within their congressional districts.
  I sincerely hope that as we consider the facts of this case, the law 
in this case, and the impact of removing this President, we will give 
equal consideration to the impact on the office of the presidency.
  It is clear from the Federalist Papers that the Framers wanted a 
strong, independent, ``energetic executive,'' and in the words of 
Alexander Hamilton, one free from ``the propensity of the legislative 
department to intrude upon the rights, and to absorb the powers of the 
other departments. . . .''
  As our presiding Chief Justice properly noted in his book ``Grand 
Inquests,'' ``the constitutional convention that met in Philadelphia in 
1787 borrowed many of its ideas from existing governments and from 
political philosophers. But it did make two original contributions to 
the art of government. The first was the idea of a presidential, as 
opposed to a parliamentary system of government. . . .''
  In the introduction to his treatise on impeachment, the noted 
constitutional scholar Charles Black reminds us that ``the presidency 
is a prime symbol of our national unity. The election of the President 
is the only political act that we perform together as a nation; voting 
in the presidential election is certainly the political choice most 
significant to the American people, and most closely attended to by 
them. No matter, then, can be of higher political importance than our 
considering whether, in any given instance, this act of choice is to be 
undone, and the chosen President dismissed from office in disgrace.'' 
Professor Black adds forebodingly, ``everyone must shrink from this 
most drastic of measures.''
  In all candor, I must say I saw little evidence of the House majority 
shrinking from the drastic measure of impeachment.
  I revere the presidency and I wish all future occupants of the Oval 
Office to inherit a strong, independent, and ``energetic'' office.
  I fear the precedent of this impeachment case will come to haunt us.
  Now to the specifics of this case.
  This scandal has seriously bruised every institution that has come in 
contact with it. But none has been battered more than the executive 
branch itself.
  The culpability for this damage lies first and foremost with 
President Clinton. His illicit affair with a young woman, a 
subordinate, in the West Wing of the White House has properly been 
greeted with universal condemnation. President Clinton's subsequent 
misleading and false statements to his staff, his cabinet, the country, 
and others is abhorrent. History will judge his actions and significant 
lapses of judgment harshly, as it should.
  If he is acquitted by this Senate, he will not as some have suggested 
``get off scot free.'' To stand as the only popularly elected President 
to be impeached will relegate him as the Hester Prynne in the pantheon 
of our chief executives. Do not allow your decision to convict this 
President to be influenced by the false and ludicrous notion that he 
will emerge from this national nightmare unscathed if we vote to 
acquit.
  President Ford is often quoted as having said ``the grounds for 
impeachment are whatever the House of Representatives says they are by 
a majority vote.'' I do not take issue with that statement except to 
say that it strikes me as being somewhat cavalier. In the Senate, the 
grounds for conviction and removal of a President must not be so 
loosely fashioned; the grounds for conviction must be restricted to the 
articles of impeachment as passed by the House. I am dismayed by the 
argument of some that conviction can be based on reasons totally beyond 
the scope of the articles before us.
  Whether we like it or not, we have a constitutional duty to confine 
our judgment to the specific accusations.
  The standard of proof that we use to arrive at our decision is 
properly up to each Senator. But we do not have a similar luxury to 
decide what grounds we may use to convict. Those grounds are set by the 
House and must be proven by them.
  By very narrow margins, on nearly party line votes, the House 
Republican managers have presented us with two articles of impeachment 
accusing the President of perjury and obstruction of justice.
  The House managers have very specifically charged the President with 
violation of the criminal code, insisting that the facts prove each and 
every element of the criminal charges.
  While it is certainly true that no person, including the President, 
is above the law, it is equally true that no President is below the 
law, either. By insisting that this President is in violation of 
specific crimes in the criminal code, have not the House managers 
deprived somewhat the Members of the Senate of the individual judgment 
when exercising a standard of proof? The standard of proof in all 
criminal cases is ``beyond a reasonable doubt.'' If those who vote to 
convict on either count use a lesser standard than would be used in the 
case of any other citizen, then a vote to take the ``drastic measure'' 
of conviction and removal of the President from office would be based 
on an unequal standard of justice.
  I found it unsettling that while the House Republican managers were 
passionately asking the Senate to convict this President of the 
criminal charges, two of the most active managers were simultaneously 
expressing their own reservations. First, House manager Lindsey Graham 
candidly told the Senate in response to a question that reasonable 
people could reasonably conclude to acquit this President. It appeared 
to me that manager Graham was less than convinced this President was 
guilty beyond a reasonable doubt.
  Secondly, House manager Asa Hutchinson, in a moment of candor on a 
national television news program, conceded he would not be confident of 
a conviction in a case such as the one he now asks us to reach judgment 
of conviction beyond a reasonable doubt.
  Does it not also strike us as strange that when given the opportunity 
to call any of three or four witnesses, the House managers chose not to 
invite Betty Currie to testify? Other than the President and Monica 
Lewinsky, no other person was as involved in the allegations brought by 
the House managers, and yet they made the calculated decision not to 
take her deposition. Why?
  For these reasons and the careful, detailed distinction drawn between 
the inferences made by the House managers and the direct testimony of 
deposed witnesses, as outlined by Senator Carl Levin, I cannot conclude 
beyond a reasonable doubt that this President is guilty of the criminal 
charges enumerated in either article of impeachment.
  Thus, not only do I ``shrink from this most drastic of measures''--I 
positively affirm we must not remove this President from office.
  Some final thoughts.
  The criminalization of our political process must stop before 
irreparable damage is done to the institutions of our federal system.
  It is right to condemn in harsh words the behavior of the President. 
It should be equally appropriate to condemn the damage done by an 
independent counsel statute that has spawned runaway, brakeless 
prosecutors who storm the country trampling on our system of

[[Page 2527]]

justice, completely unchecked by any branch of government.
  The damage this President has caused his office can and will be 
repaired.
  The damage done by the Office of Independent Counsel and by court 
decisions that allow unlimited discovery in civil lawsuits, may be far 
more difficult to repair.
  That fragile balance between our three co-equal branches of 
government is being subjected to unprecedented strains as a result of 
events that have occurred over the past several years.
  I would urge our leaders to include an examination of these issues as 
part of our agenda in the 106th Congress.
  Mr. JEFFORDS. On January 7, 1999, the House of Representatives 
presented the Senate with two articles of impeachment against President 
William Jefferson Clinton. The articles charged the President with 
lying under oath before a federal grand jury and with obstruction of 
justice. In the days following the House's presentation of the 
articles, many have criticized the Senate for continuing on where the 
House left off. They argue that if there are not enough votes in the 
Senate to remove the President, then the Senate should not have 
bothered proceeding with the trial. While this may seem like a 
reasonable way of disposing of an unpopular process, the Senate has a 
Constitutional duty to hold an impeachment trial. Although the 
Constitution provides little guidance, one thing was clear: In order to 
fulfill this duty, we had to come together as a body and proceed in a 
manner that was judicious, deliberative and fair. That meant that 
before the Senate could make any decision on the articles of 
impeachment, each side had to be given the opportunity to present its 
case.
  Now that we have heard from the House Managers, the President's 
counsel and viewed the deposition testimony of three key witnesses, it 
is the appropriate time to render judgment on the articles of 
impeachment. I must state at the outset that this has been one of the 
most difficult experiences that I have endured in my 23 years in 
Congress.
     A. A Loss of Respect.
  This process has been distressing on a personal level because I came 
into it with a great deal of respect and admiration for President 
Clinton. Over the past six years, we have enjoyed a good working 
relationship. While we do not share the same party and we often 
approach issues from different points of view, the President and I have 
worked together on a number of important projects. Given my esteem for 
the President, I have been saddened and gravely disappointed by much of 
what I have learned over the last few weeks. Whatever the final 
outcome, I will leave this trial with the knowledge that the President 
has indeed committed shameful acts, misled the American people and 
brought disrepute on the office of Presidency. By his own actions, he 
has ensured himself a place in history alongside President Andrew 
Johnson.
     B. Setting An Important Precedent.
  This process has been trying on a professional level because I 
recognize the enormous historical significance of my decisions. This 
trial will establish precedents to examine and judge the conduct of all 
future Presidents. While our founding fathers clearly intended 
impeachment for only the greatest offenses, confronted with a series of 
tawdry acts, the facts and circumstances do not neatly fit into the 
definition of ``other high crimes and misdemeanors.'' I am gravely 
concerned that a vote to convict the President on these articles may 
establish a low threshold that would make every President subject to 
removal for the slightest indiscretion or imperil every President who 
faces a Congress controlled by the opposing party. Yet, at the same 
time, I am concerned that a vote of acquittal could be mistaken by 
future generations to mean that perjury and obstruction of justice are 
not impeachable offenses.


    II. Have the House Managers Proven the Articles of Impeachment?

     A. The Standard of Proof: Clear and Convincing Evidence
  The Constitution provides very little guidance to the Senate for its 
trying of the impeachment of the President. There is absolutely no 
reference at all to the standard of proof that senators shall use when 
evaluating the Articles of Impeachment. I believe the fact that the 
Framers gave this body the duty to try an impeachment, but no guidance 
as to what standard of proof to use in the trial, gives each senator 
the discretion to select the standard he or she deems appropriate.
  In making my decision, I have focused on the nature of the 
proceeding; The impeachment trial is a unique process, it is neither 
criminal nor civil. I also focused on the purpose of the proceeding; 
The Senate holds an impeachment trial to determine whether there is 
proof that the President's misconduct rises to the level which 
demonstrates that he or she is no longer fit to hold office.
  Given the nature and purpose of an impeachment trial, I have decided 
that the ``preponderance of the evidence'' standard would not be 
appropriate as being too low a standard. On the other hand, I believe 
that ``proof beyond a reasonable doubt'' would raise too high a 
standard. The question we must ask ourselves is: Do the President's 
actions demonstrate that he is unfit to serve, thus warranting his 
removal in order to protect the public? Since we are concerned with the 
public's protection I would suggest that the clear and convincing 
standard, which lies somewhere in between, would be more appropriate to 
make the very fateful decision of removing the President from office.
  Accordingly, I have used the clear and convincing evidence standard 
to judge the impeachment charges against President Clinton. I 
understand that this standard is little used, however, I feel that in 
impeachment trials it is most appropriate to use a standard that is 
somewhere in between the extremes.
     B. Article I: Perjury Before the Grand Jury.
  Article I alleges that the President provided perjurious false and 
misleading testimony before the federal grand jury. The House Managers 
applied the federal perjury statute found at 18 U.S.C. Sec. 1623 to the 
President's testimony. The elements of perjury are met when: (1) while 
under oath (2) one knowingly (3) makes a false statement as to (4) 
material facts. While I agree that some of the President's statements 
before the federal grand jury were false and misleading, I have 
concluded that some of the allegations simply do not rise to the level 
of perjury and that the House Managers have not proven the remaining 
perjury charges by clear and convincing evidence.
  The first allegation is that the President committed perjury before 
the grand jury when he testified about the nature of his relationship 
with Monica Lewinsky. In his testimony before the grand jury, the 
President admitted that his relationship with Ms. Lewinsky was ongoing 
and that it involved inappropriate intimate contact. Based on the House 
Managers' presentation, there is no doubt in my mind that the 
President's prepared statement to the grand jury was inaccurate in 
part. While I disagree with the House Managers' conclusion that the 
President's use of the terms ``on certain occasions'' and 
``occasional'' were intentionally misleading, I agree with the House 
Managers that the President lied about when and how his relationship 
with Ms. Lewinsky began. However, given that the President admitted to 
the key issue before the grand jury, I am not persuaded that lies about 
these immaterial details justify a charge of perjury. I also reject the 
related allegations pertaining to the President's testimony regarding 
the definition of sexual relations used in the Jones case.
  The second allegation of this Article is that the President committed 
perjury in his grand jury testimony by repeating the perjurious answers 
he had given in his civil deposition. The House Managers have certainly 
proven that the President lied about a number of issues in his civil 
deposition. However, Article I concerns the President's grand jury 
testimony, not his deposition testimony and the House Managers seem to 
rely upon the President's

[[Page 2528]]

reaffirmation of his deposition testimony as proof that he committed 
perjury. Since I do not find that the President reaffirmed his 
deposition testimony before the grand jury, I reject this allegation of 
perjury.
  The third allegation is essentially that the President committed 
perjury when he testified before the grand jury that he was not paying 
attention to Mr. Bennett's misstatement that the Lewinsky affidavit 
meant that ``there was no sex of any kind in any manner, shape or 
form.'' Although the video tape of the President's civil deposition 
does show the President staring in Mr. Bennett's direction, we cannot 
know what the President was actually thinking at that time. We have all 
had moments where we appear to be paying attention to a speaker, when 
we are actually lost in our own thoughts. Because the House Managers 
could not possibly prove whether or not the President was actually 
paying attention to the exchange, they have not met the burden of 
proving that the President's testimony was false.
  The final allegation in Article I is that the President testified 
falsely about his attempts to obstruct justice in the Jones case. I 
reject this perjury allegation outright because I believe it was 
improper for the House Managers to include a restatement of the 
obstruction of justice allegations within Article I. I have considered 
the obstruction of justice allegations in Article II.
     C. Article II: Obstruction of Justice
  The second article of impeachment charges the President with 
obstruction of justice. Article II charges that the President 
prevented, obstructed and impeded the administration of justice, both 
personally and through his subordinates and agents, in a Federal civil 
rights action. To prove a case of obstruction of justice under the 
Federal statute found at 18 U.S.C. Sec. 1503, the House Managers must 
prove that the President acted with intent and that he ``endeavored to 
influence, obstruct or impede the due administration of justice.'' 
After considering these allegations, I have concluded that the House 
Managers failed to prove all but one of the obstruction of justice 
charges. My basis for this conclusion is the following:
  The first allegation in Article II is that the President obstructed 
justice by having his friend Vernon Jordan assist Ms. Lewinsky in her 
New York job search in exchange for her silence in the Jones case. To 
prove this allegation, the House Managers presented compelling 
circumstantial evidence that Mr. Jordan assisted Ms. Lewinsky with both 
her job search and with her affidavit. The House Managers also pointed 
to the fact that Ms. Lewinsky received her job offer just two days 
after she signed a false affidavit. However, there are also 
circumstantial facts that belie the ``quid pro quo'' claim. First, 
there is evidence that the President enlisted Mr. Jordan's help well 
before Ms. Lewinsky's name appeared on the Jones witness list. Second, 
Mr. Jordan testified in his Senate deposition that he had ``stepped 
up'' the job search before he learned that Ms. Lewinsky was involved. 
On a final note, a conspiracy takes two willing actors. I would have a 
hard time convicting the President of this charge when both Mr. Jordan 
and Ms. Lewinsky have denied that there was any connection between the 
job search and the false affidavit.
  Another allegation is that the President obstructed justice by 
encouraging Ms. Lewinsky to file a false affidavit in the Jones case. 
The House Managers have shown that when the President informed Ms. 
Lewinsky that her name had appeared on the Jones witness list, he 
suggested that she might file an affidavit to avoid being deposed. To 
find that the President obstructed justice, however, I must infer from 
the evidence that the President was encouraging Ms. Lewinsky to file a 
false affidavit. I cannot make this leap when Ms. Lewinsky herself 
testified that President Clinton made no connection between their false 
cover stories and the contents of the affidavit. Indeed, Ms. Lewinsky 
testified repeatedly that the President never discussed the contents of 
the affidavit with her and that, at the time of their conversation, she 
did not think that the affidavit necessarily had to be false.
  Article II also alleges that the President obstructed justice by 
encouraging Ms. Lewinsky to hide his gifts. The thrust of the House 
Managers claim is that the President instructed Ms. Currie to pick up 
the gifts from Monica Lewinsky on December 28, 1997, so that Ms. 
Lewinsky would not have to turn the gifts over to Paula Jones' 
attorneys. I would agree that the circumstances of the President's 
secretary, Ms. Currie picking up the gifts several hours after Ms. 
Lewinsky suggested to the President that Ms. Currie might hold onto 
them for safekeeping are certainly suspect. If the House Managers could 
prove that Ms. Currie initiated the gift pickup there would be clear 
and convincing evidence that the President was in fact encouraging Ms. 
Lewinsky to hide the gifts. Because there is conflicting evidence on 
this critical issue, the House Managers did not meet their burden.
  In addition, Article II alleges that the President obstructed justice 
by making false and misleading statements to his aides about Ms. 
Lewinsky. Given that the President had an ongoing relationship with Ms. 
Lewinsky, it was spurious, mean spirited, defamatory and morally wrong 
for the President to refer to Ms. Lewinsky as a stalker or to in any 
way impugn her reputation. The House Managers and all of us have every 
reason to be incensed by the President's actions. That being said, it 
is clear that the President made these remarks in his continuing effort 
to conceal the true nature of his relationship with Ms. Lewinsky. There 
is no evidence that the President knew that these aides would be called 
to testify. Therefore, I believe that this allegation has no merit.
  While I found the other charges alleged in Article II to be either 
legally or factually deficient, there is one allegation of obstruction 
of justice which I believe that the House Managers have proven by clear 
and convincing evidence; the President's post-deposition statements to 
Bettie Currie. Ms. Currie testified that on two occasions in the days 
following the President's deposition in the Jones case, the President 
called her into his office and made a series of remarks to her ``You 
were always there when she was there, right? We were never alone. You 
could see and hear everything. Monica came on to me and I never touched 
her, right? She wanted to have sex with me and I couldn't do that.''
  I simply do not believe the President's explanation that he was 
questioning Ms. Currie in an ``effort get as much information as 
quickly as I could'' or that he was ``trying to ascertain what the 
facts were'' or ``what Ms. Currie's perception was.'' I am also not 
persuaded by the fact that Ms. Currie testified that she did not feel 
pressured to agree with the President. Rather, I agree with the House 
Managers that if the President was actually seeking information he 
would not have been asking rhetorical questions. I also believe that 
the President's explanation would be more plausible if his statements 
to Ms. Currie were not false.
  The fact is that the President gave false testimony in the Jones 
deposition, that during his deposition he repeatedly referred to Ms. 
Currie as someone who could back up his testimony and that immediately 
following the deposition he summoned Ms. Currie into work on a Sunday 
and cleverly spoon-fed his cover stories to her. Despite the 
President's counsel's protestation, there was still a possibility that 
Ms. Currie could be called to testify in the Jones case. Accordingly, I 
believe that when the President called Ms. Currie to his office and 
repeatedly recounted these false statements he ``endeavored to 
influence, obstruct or impede the due administration of justice'' in 
violation of the federal obstruction statute.

[[Page 2529]]




   III. Has President Clinton Committed a High Crime Warranting His 
                          Removal from Office?

     A. To Decide Whether the President's Actions are a High 
         Crime, We Must Look at the Underlying Circumstances.
  The House Managers have left us with the impression that once we 
conclude that the President has committed either perjury or obstruction 
of justice, we have a Constitutional duty to vote to remove the 
President from office. They maintain that perjury and obstruction of 
justice must be considered high crimes per se because they carry the 
same penalties as bribery. I reject this premise. In fact, the severity 
of a bribery sentence is dependent on subject matter and the amount of 
the bribe. Similarly, a conclusion that the President committed 
obstruction of justice should not automatically warrant his removal. It 
is incumbent upon each of us to examine the underlying facts and 
circumstances to determine whether or not the President has committed a 
high crime.
     B. Background: How Did We Get Here Anyway?
  Now, having found that the President is guilty of obstructing justice 
in the Paula Jones case, I had to determine whether the violation is a 
``high crime'' warranting removal from office. This led me to think 
about what justice was actually being obstructed and to consider the 
underlying circumstances that brought us here today.
  In the narrow legal sense, this entire impeachment trial rests on the 
Independent Counsel statute and the Paula Jones case.
  As many of my colleagues remember, Congress enacted the Independent 
Counsel statute in the wake of the Watergate scandal, after President 
Nixon ordered the dismissal of special Watergate prosecutor Archibald 
Cox over his refusal to drop a subpoena for Nixon's incriminating White 
House tapes. Congress designed the Independent Counsel statute to 
insulate and protect investigations of alleged criminal conduct by the 
President and other high-level federal officials. Unfortunately, the 
statute has not worked as Congress envisioned it would. This well 
intended statute has resulted in a proliferation of interminable, 
expensive investigations against public officials. It has cost our 
taxpayers more than $130 million and considering all the time, effort 
and expense, there have been very few successful prosecutions resulting 
from the statute.
  One such investigation under the statute originated in August 1994, 
when Judge Kenneth Starr was appointed as an Independent Counsel to 
investigate alleged wrongful acts in the so-called Whitewater land 
deal. During the course of the next four years, the Office of 
Independent Counsel (``OIC'') expanded its investigation of President 
Clinton a number of times. At the same time, the President was 
defending a civil rights action by Paula Jones, a former Arkansas state 
employee who alleged that President Clinton sexually harassed her 
during the time he served as Governor. Last January, the OIC was able 
to expand its investigation and redirect its D.C. based Whitewater 
Grand Jury panel to investigate the President's concealment of his 
extramarital affair with White House employee Monica Lewinsky.
  We must not forget that the reason that the President's relationship 
with Ms. Lewinsky was even an issue in the Jones suit was because Paula 
Jones was trying to show that the President's treatment of Ms. Jones 
was part of a pattern and practice of sexual harassment. Judge Wright 
initially ruled that Paula Jones was entitled to information on the so-
called Jane Does, because that evidence might help establish the 
President's pattern of sexually harassing conduct. However, Judge 
Wright ultimately ruled that evidence about the President's harassment 
of other women would not change her decision to dismiss the case 
because Paula Jones failed to establish that she, herself was harassed. 
I quote from the Judge's April 1, 1998 decision:

       One final matter concerns alleged suppression of pattern 
     and practice evidence. Whatever relevance such evidence may 
     have to prove other elements of plaintiff's case, it does not 
     have anything to do with the issues presented by the 
     President's motion for summary judgment, i.e., whether 
     plaintiff herself was the victim of alleged quid pro quo or 
     hostile work environment sexual harassment. . . . Whether 
     other woman 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. [emphasis 
     added]

  Why is this ruling so important in my decision? Well, we are 
essentially here today because the Whitewater investigation was 
expanded to determine whether President Clinton's efforts to conceal 
his consensual relationship with Ms. Lewinsky obstructed Paula Jones' 
right to justice. The plain fact is that the Jones case was thrown out 
because Judge Wright ruled that Paula Jones had no case and that even 
if the President had revealed the true nature of his consensual 
relationship with Ms. Lewinsky, it would not have changed the outcome 
of Paula Jones case. While President's relationship with Ms. Lewinsky 
was morally wrong, there is absolutely no evidence that the President 
was sexually harassing Ms. Lewinsky.
  Although I have concluded that the President obstructed justice by 
trying to influence the testimony of Bettie Currie, the fact is that 
the President's actions did not actually hinder Paula Jones. Indeed, in 
the midst of the OIC investigation, Paula Jones appealed Judge Wright's 
ruling and the President agreed to pay her $850,000 in an out-of-court 
settlement. Some might even argue that as a perverse result of the 
President's obstruction of justice, Paula Jones ended up with greater 
monetary relief than she would have otherwise received. Therefore, 
while the articles of impeachment came about as a direct result of 
President Clinton's actions in the Jones case, it is clear that in the 
end, the President's actions did not negatively effect Paula Jones' 
justice. In other words, there was no justice to obstruct in the Jones 
case.
     C. Is the President Fit to Serve?
  Most of us now believe that the President lied about his relationship 
with Ms. Lewinsky when he testified under oath and that he also lied 
about the nature of his relationship to his staff, his family and the 
American people. I have concluded that the President not only lied 
about the affair but that he took at least one illegal action in an 
attempt conceal the truth from Paula Jones. However, I believe that 
President Clinton took these steps to avoid deep personal 
embarrassment, not to seize, maintain or subvert the power of the 
state.
  Let us not forget that the ultimate question we must each answer is 
whether on these facts arising out of these circumstances this 
President poses such a danger to the state that we can no longer permit 
him to remain in office. The ultimate issue here is a determination of 
whether the President is fit to serve.
  Consider our constitutional guidance: The President of the United 
States ``shall be removed from Office on Impeachment for, and 
Conviction of, Treason, Bribery, or other high Crimes and 
Misdemeanors.'' The Framers intentionally set this standard at an 
extremely high level to ensure that only the most serious offenses 
would justify overturning a popular election. The concept of 
``maladministration'' was considered and rejected.
  I believe that whether the President's misconduct occurred in the 
private sphere or in his public or official capacity is also an 
important distinction to make when deciding his fitness to serve. 
Clearly, there are those private acts which in no way reflect on a 
president's fitness for office. On the other hand, there are public or 
official acts which I think no reasonable person would doubt reflect 
poorly on a president's fitness for office and would warrant 
impeachment and removal. I think we can all see the difference in 
gravity between the offenses of which President Clinton stands accused 
and a hypothetical accusation that he took a bribe. While the former 
reflects poorly on his character and discretion, the latter reflects on 
his fitness to serve and describes a classic case of abuse of office.
  For the President to do what he did was reprehensible and morally 
wrong. I

[[Page 2530]]

believe that the President lied to avoid embarrassment. However, the 
Framers did not envision such behavior as being encompassed by the 
phrase ``other high crimes and misdemeanors.''
  The bottom line is that old maxim that bad facts lead to bad law. 
Such a low threshold for removal of a president from office would be 
dangerous. After careful consideration, I have concluded that President 
Clinton has not committed an offense that indicates the President is 
not fit to serve. Therefore, I will not vote to convict President 
Clinton.
     D. Time to Move On.
  I do not want the President to come away from this trial thinking 
that he is forgiven, or that what he has done is not serious, because I 
think it was most serious. I do not want the people of this nation to 
think that a vote of acquittal means that the President's conduct is 
acceptable because it is not acceptable. Lying and obstruction are 
wrong. I also hope that my vote does not lend any credence to the 
notion that sexual harassment is not that important, because it is 
important. A determination to let the President serve out his term 
should not be taken as an exoneration of his actions. At the same time, 
I think it is extremely important that we leave this chapter behind us 
and move on to the nation's business.
  Mr. WELLSTONE. Mr. Chief Justice, I want to explain my views publicly 
on the impeachment articles sent to us by a partisan vote of the House 
of Representatives, and on the removal of the President from office 
which they would prompt.
  First, I am shocked and saddened that our Republican colleagues 
persistently have blocked our efforts to have open and public debates 
and discussion in our deliberations in this matter, and most especially 
in our deliberations on the final votes on whether to remove the 
President. Whatever their motives, this is not what a free, 
representative, accountable democracy is all about. Simply publishing 
partial transcripts of our proceedings, which include only some formal 
statements made by senators and not the deliberations themselves--and 
doing so only at the end of the trial--is, in my view, a great leap 
sideways.
  I also want to describe what I think--and frankly have thought for 
months--is a more appropriate mechanism to express our disapproval of 
the President's behavior: a tough, bipartisan censure resolution which 
makes clear our contempt for what he's done in lying to his family, his 
friends, his staff, and the American people about his relationship with 
Monica Lewinsky; and the disgrace which those lies have placed upon his 
Presidency for all time.
  In recent months, hundreds of Constitutional scholars--including many 
respected conservatives--have argued that, in their view, the 
Constitution does allow this censure vote; the Senate's precedents 
allow it; we have done it before. It's true that the Constitution is 
silent on the question of what else we can do in addition to removal; 
it is also true that the Constitution in no way prevents us from moving 
forward on censure. The argument that we are somehow blocked 
constitutionally from censuring the President is contrived, and fraught 
with partisan pleading.
  Even so, if we are ultimately blocked by a filibuster from a vote on 
censure, the President will not have escaped the judgment of Congress 
or the American people. Any Senator, in any venue they choose, can 
offer their own forceful, public censure of the President, repeatedly 
if they like. I certainly have. A corporate expression of the Senate's 
condemnation of the President's actions, while of course preferable, is 
not essential, for all of us already have made known our views.
  We all condemn the President's behavior. It has been said so many 
times, it hardly bears repeating, were it not for the wilful, partisan 
attempts to mischaracterize a vote against removal as a vote to condone 
what the President has done. That is, of course, preposterous; the 
President has been impeached by the House. That has only happened once 
before in our history. The trial has gone forward, and every member of 
this body has condemned the President's behavior as unacceptable, 
meriting only scorn and rebuke.
  It is clear that the President already has paid a terrible price in 
the eyes of history, not least in the shame and humiliation that this 
permanent mark on his presidency has caused him, his family, his 
friends and supporters, and his Administration. The message is clear, 
including to our young people: When one fails to tell the truth, there 
are real, sometimes even awful consequences and costs. The President's 
behavior was shameful, despicable, unworthy, a disgrace to his office. 
And in this long, sordid, painful process, I believe he has been held 
accountable for what he has done.
  Pursued overzealously by Kenneth Starr and by House Judiciary 
Committee Republicans, the articles were then approved by the full 
House in a grossly unfair and partisan proceeding that was destructive 
both of our polity and our politics. All of us should be deeply 
troubled by it, and all should work together to put it behind us. In my 
view, these allegations should never have reached the Senate. But they 
have, and the trial has now been held. It has changed few, if any, 
minds on the basic facts, on how the law should be applied to those 
facts, or on the high bar for removal set by the Constitution.
  Finally we bring to a close this long, sad year of investigations, 
hearings, and speeches. It has been a painful year. In many ways, it 
has been a lost year. Think of what we might have done this past year, 
had we not done this. Think of the news we could have made, had not all 
seen this. Think of the good laws that we could have written, had not 
this stood in the way. Think of the opportunities lost, the hopes 
staved off. We must ask with Langston Hughes, ``What happens to a dream 
deferred?''
  Sadly, so many opportunities for better, more prudent and 
proportionate judgment fell by the wayside. First, and most important, 
the President should have avoided this sorry relationship. Then, a 
little over a year ago, the President could have been more forthcoming 
and told the whole truth, instead of misleading us all. The American 
people could have handled it. Then, the Independent Counsel could have 
shown greater discretion in judging whether to bring this case forward. 
The leadership of the House of Representatives could have allowed a 
vote on censuring the President, instead of pushing the case forward to 
impeachment. They were wrong to thwart the will of what I expect would 
have been a House majority in so doing. And the Senate could have voted 
to dismiss the case and promptly and resolutely censured the President.
  Instead, against better judgment, against all indications of the 
people's will, and against any shred of charity, an ardent and zealous 
minority pressed on. They had the right. They had the power. But they 
were wrong, and I believe history will so judge them. It is a supreme 
irony that the most conservative forces in our politics today have for 
months wielded the most radical option made available in the 
Constitution against this President: impeachment and removal. Aware of 
its dangers, our founders designed constitutional protections against 
its abuse. This process has shown that those protections are not 
perfect; they require reasoned judgment in their application; judgment 
that has been missing in this process from day one.
  Let us resolve to learn the lessons of this long, sad year. Let us 
learn now, having come this far, the wisdom of the founders that 
impeachment is and must be a high barricade, not to be mounted lightly. 
Let us learn that because it requires the overwhelming support of the 
Senate to succeed, it cannot and should not proceed on a merely 
partisan basis. Let us learn that the desire to impeach and remove must 
be shared broadly, or it is illegitimate.
  Let us learn that the subject matter of impeachment must be a matter 
of great gravity, calling into question the President's very ability to 
lead, and endangering the nation's liberty, freedom, security. Let us 
learn that the case against the President must be a

[[Page 2531]]

strong and unambiguous one in fact and in law, for even a President 
deserves the benefit of our reasonable doubts.
  The charges brought against President Clinton do not rise to those 
levels. And even if they did, the case against him is neither strong 
nor unambiguous. As the White House defense team has made clear, there 
are ample grounds for doubt about both the facts and law surrounding 
each of the two articles before us.
  It is true that the impeachment process has further alienated 
millions of Americans from their government, and that is a tragic harm 
for which the President bears considerable responsibility. It is also 
true, as we were told by Chairman Hyde yesterday, that the nobility and 
fragility of a self-governing people requires hard work, every day, to 
get it right, to fight the good fight, to discern the common good. But 
I believe, unlike him, that it is the impeachment process itself, both 
here and in the other body--its partisanship, its meanness and 
unfairness, its leadership by those who want to win too badly--which 
has increased people's cynicism; not the prospect of the President's 
``getting away'' with something.
  Our nation was founded on the Jeffersonian principle, ``that 
government is the strongest of which every man feels himself a part.'' 
What Jefferson and the other Founders feared was the warning of their 
counterpart Rousseau: ``As soon as any man says of the affairs of State 
`What does it matter to me?' the state may be given up as lost.'' But 
while the many signs of disaffection among our people are growing, I do 
not think we have reached the point of no return; there is time in this 
Congress to recover from this episode, and to move on.
  Despite the claims of pundits that Americans have simply tuned out, I 
think a deeper reality is present in their reactions, and in the polls. 
In fact, most Americans, in their wisdom, have reached a subtle, 
sophisticated judgment in this case, and have already moved beyond it. 
As is so often the case, they're way ahead of Washington. It is true 
that they abhor the President's behavior, but don't believe it merits 
his removal. In addition, they believe that there are larger issues 
facing the nation than the misdeeds that nearly all now concede the 
President committed: peace in the Middle East; the hunger of children; 
the health of Americans; saving our social security safety net; 
debating whether hundreds of billions of dollars of surplus should go 
to bolster Medicare, or to some combination of universal savings 
accounts or tax cuts. These are the things that the people sent us here 
to work on. These are the things that I hear about when I return to my 
state.
  So let us now bring to a close, with our votes, this long, sad year 
of investigation and impeachment. And let us resolve that there shall 
be many a year before we have another one like it. It is time for our 
country to pull together to seek an end to the fractious partisanship 
that has defined this period, and to re-engage a full-throated, genuine 
debate about our nation's future that can help us find again that 
common ground that unites us as Americans, and that can serve as a firm 
foundation for resolving the many serious problems that still face our 
country--impeachment or not--today and tomorrow.
  We should, as White House attorney Charles Ruff said, listen to the 
voices not merely of the advocates who have been before us, but of 
Madison, Hamilton, and the others who met in Philadelphia 212 years 
ago; of the generations of Americans since then; of the American people 
now, and of future generations of Americans. And if we do, we will do 
the right thing.
  Congressman John Lewis observed in his final impeachment speech, in 
the end, we are ``one house, one family, one people; the American 
house, the American family, the American people.'' We are called 
together to come to judgment on this President, and then to return 
promptly to the pressing issues that lay before us, and that require 
our urgent attention. That judgment is by now clear: Bill Clinton 
should remain President; the censure of this body, and the historic 
impeachment that will ever attach to his name, will leave a permanent 
mark on his presidency.
  I thank you, Mr. Chief Justice, for the fine work that you have done, 
and I thank both the majority leader and the minority leader for their 
leadership. I said to Senator Lott, I think yesterday, I am still 
furious that we are in closed session and will say that, but I 
appreciate the way in which you have kept us together. I thank the two 
of you.
  I was thinking I might do something a little different, because even 
if I were to give a great speech to the best of my ability, I don't 
know that there are any more arguments that can be made. I was thinking 
like, I might agree--actually I have a printed statement--I might agree 
to just have my statement included in the Record and not speak any 
further, if I can get some support for some legislation. (Laughter.)
  Just on some children's legislation. Does it look like we are at that 
point? It does? Well, I like that show of support, and I think, Mr. 
Chief Justice, what I will do is give to you in a moment a full 
statement and just simply say to everybody here about three things in 2 
minutes.
  One, I wish we had done this in open session, and I cover that more 
in my full statement.
  Second of all, I think that a decision to acquit is certainly not a 
decision to condone the President's behavior which I think merits scorn 
and rebuke.
  Third of all, I think that the standard, and I want to say this to 
Senator Domenici, talking about children, to me the standard is guilty 
beyond a reasonable doubt. I think the evidence has to be unambiguous 
and strong. I don't think it was. Senator Levin said that very well, so 
I don't need to repeat any of those arguments.
  Fourth of all, Tim Hutchinson, Senator Hutchinson, I like what you 
said about the polls. I actually make a different argument. I raised 
the question earlier when we were raising questions about popular will 
and does it matter. I actually meant about the last election, it seems 
to me if it ever does, it is on such a decision. I think before you 
overturn an election, you really have to meet a very high threshold. I 
don't think the House managers have done so.
  Finally, I think a lesson that I have learned as a political 
scientist, when I teach class again, is I do not think the articles 
work and this process works when it is clearly not bipartisan. I think 
it becomes illegitimate. It just doesn't work.
  You did not have broad support coming from the House, and you do not 
have it here. That is why I think it was doomed from the start.
  Finally, it has been a long, sad year, and I wish--I just wish--that 
those who could have really rendered decisions with judgment had done 
so, starting with the President and his sorry affair. He could have 
told the truth to the people in the country. The people would have 
appreciated that. I could also talk about Starr, and I could also talk 
about the House, and I could also talk about us. But I do not think I 
need to do so.
  Let's get on with the work of democracy. We have had some strong 
views here, but I am looking forward to working with you.
  Mr. STEVENS. I thank our majority leader. Throughout this ordeal, no 
one has tried to poll me on any substantive matter or influence my 
vote. That, to me, means a great deal. I view this process as the most 
serious task I have faced as a Senator over the past 30 years, and I 
appreciate the recognition by the leadership of the solemnity of our 
duties under these circumstances and the fact that we each must reach 
our own conclusions based on the evidence.
  As Senators, each of us joined in this oath:

       I . . . do solemnly swear that I will support and defend 
     the constitution of the United States against all enemies, 
     foreign and domestic; that I will bear true faith and 
     allegiance to the same; that I take this obligation freely, 
     without any mental reservation or purpose of evasion; and 
     that I will well and faithfully discharge my duties of the 
     office on which I am about to enter. So help me God.

And now, we took an additional oath:

       [I] solemnly swear that in all things appertaining to the 
     trial of the impeachment of

[[Page 2532]]

     William Jefferson Clinton, President of the United States, 
     now pending, [I] will do impartial justice according to the 
     Constitution and laws, so help [me] God.

  As free citizens of the world's most successful democracy we are 
inexorably tied to the pledges and commitments we make. These 
obligations, and the unlimited benefits they bestow on us, depend on 
our willingness to be truthful with one another. The President took the 
two most serious oaths any American ever encounters: the oath to 
faithfully execute our laws, administered by the Chief Justice, our 
Presiding Officer, on the steps of this building, and the oath to tell 
the truth, the whole truth, and nothing but the truth to a jury of his 
peers.
  I am most concerned that the action we take here to day not denigrate 
the role of oaths and truth in our society. To be fair to the 
President, I feel he believed that he admitted to the Grand Jury that 
he had not testified truthfully under oath in his deposition. In fact 
he did not, and he did not tell the truth to the grand jury either.
  Both the House Managers and the President's lawyers have seized on 
apparent conflicts in the evidence and recorded testimony before this 
Court of Impeachment. Nonetheless, the evidentiary record and the 
presentations of both sides, as supplemented by their responses to our 
questions, leave no doubt in my mind that if I were sitting as a juror 
in a criminal case I would find that the accused is guilty of perjury 
as charged in Article I. Following the jury's verdict, it would then 
fall to the judge to determine appropriate punishment within the bounds 
of the federal sentencing guidelines provided by Congress.
  But an impeachment trial is no ordinary proceeding. We sit as judge 
and jury--rulers on law and triers of fact. The Constitution charges us 
with a great responsibility. Section 4 of Article II of the 
Constitution requires that the President be removed from office upon 
conviction of high crimes and misdemeanors. No President has ever been 
removed under these circumstances. To me, that history alone should 
make each of us seriously consider whether the facts presented to us 
require that the Senate exercise this awesome power.
  The process by which our Founding Fathers determined that this power 
should be vested in the Congress is adequately briefed in the record. I 
found particularly helpful the testimony and scholarly papers from the 
hearings before the House Judiciary Committee on November 9, 1998.
  Remember in the House committee deliberations, the minority submitted 
a joint resolution of censure for consideration in lieu of the Articles 
finally voted upon. It restated:

       Expressing the sense of Congress with respect to the 
     censure of William Jefferson Clinton. Resolved by the Senate 
     and House of Representatives of the United States of America 
     in Congress assembled, That it is the sense of Congress 
     that--
       (1) on January 20, 1993, William Jefferson Clinton took the 
     oath prescribed by the Constitution of the United States 
     faithfully to execute the office of President; implicit in 
     that oath is the obligation that the President set an example 
     of high moral standards and conduct himself in a manner that 
     fosters respect for the truth; and William Jefferson Clinton, 
     has egregiously failed in this obligation, and through his 
     actions violated the trust of the American people, lessened 
     their esteem for the office of President, and dishonored the 
     office which they have entrusted to him;
       (2)(A) William Jefferson Clinton made false statements 
     concerning this reprehensible conduct with a subordinate;
       (B) William Jefferson Clinton wrongly took steps to delay 
     discovery of the truth; and
       (C) in as much as no person is above the law, William 
     Jefferson Clinton remains subject to criminal and civil 
     penalties; and
       (3) William Jefferson Clinton, President of the United 
     States, by his conduct has brought upon himself, and fully 
     deserves, the censure and condemnation of the American people 
     and the Congress; and by his signature on this Joint 
     Resolution, acknowledges this censure and condemnation.

  On December 19, 1998, the House minority in the full house offered 
this resolution on the House floor which stated:

       That it is the sense of the House that--
       (1) on January 20, 1993, William Jefferson Clinton took the 
     oath prescribed by the constitution of the United States 
     faithfully to execute the office of President; implicit in 
     that oath is the obligation that the President set an example 
     of high moral standards and conduct himself in a manner that 
     fosters respect for the truth: and William Jefferson Clinton, 
     has egregiously failed in this obligation, and through his 
     actions violated the trust of the American people, lessened 
     their esteem for the office of President, and dishonored the 
     office which they have entrusted to him:
       (2)(A) William Jefferson Clinton made false statements 
     concerning his reprehensible conduct with a subordinate:
       (B) William Jefferson Clinton wrongfully took steps to 
     delay discovery of the truth, and
       (C) inasmuch as no person is above the law, William 
     Jefferson Clinton remains subject to criminal and civil 
     penalties and
       (3) William Jefferson Clinton, President of the United 
     States, by his conduct has brought upon himself and fully 
     deserves the censure and condemnation of the American people 
     and this House.

  As a former United States Attorney, Solicitor of the Department of 
the Interior, and defense attorney, I believe I understand the rule of 
law. The conduct which the President engaged in was clearly wrong, and 
his actions clearly warrant his Impeachment, which the House of 
Representatives has done. But with regard to the allegations in Article 
I, I do not believe his criminal activity rises to the level of ``High 
Crimes and Misdemeanors'' which require his removal from office by this 
Senate.
  Article, II, charging obstruction of justice, to me, involves a very 
different matter than the perjury charge in Article I. Article II 
involves the use of Presidential powers to impede or imperil the 
impartial administration of justice in a civil as well as before the 
grand jury. We have pledged to ``Support and Defend the Constitution,'' 
and I suggest that in our present roles we must do so by fulfilling and 
reaffirming the freedoms and obligations of all Americans under that 
document. By micromanaging the briefing of witnesses and the 
concealment of evidence and by testifying before the grand jury to what 
he knew was not the whole truth, the President has obstructed justice. 
His oath as President requires him to faithfully execute laws, and by 
his actions he has violated this oath.
  In his 1992 book ``Grand Inquests,'' the Presiding Officer of this 
Court (and the Chief Justice of the United States) wrote:

       The framers [of the United States Constitution] and the 
     authors of the Federalist Papers had not envisioned political 
     parties as we now know them . . . Would the dominant role 
     played by political parties make the Senate a partisan 
     tribunal which would be willing to undermine the fundamental 
     principles of the Constitution in order to remove a political 
     enemy from office?

  I also wonder whether the Framers anticipated that in 85 of the 106 
Congresses, the minority party has held more than the necessary one-
third strength to prevent the removal of a President?
  The action of the House of Representatives was not partisan. But, it 
is obvious from the final vote that future generations could reach such 
a conclusion. In fact, it is obvious that many of our Democratic 
Senators have done so. In this Senate, a final vote strictly on party 
lines should not occur. The fundamental principles referenced by the 
Chief Justice--particularly the balance of power between the 
legislative and executive branches of our Federal Government--should 
not be undermined. The most basic principle at issue is the obligation 
of each branch to dedicate itself to protect the separation of powers 
of our three branches of Government.
  In my judgment, the power of the Senate to reach across to the 
executive branch and remove a President of the United States may be 
exercised only when the President's actions seriously threaten our 
nation's security, when he violates his oath to ``faithfully execute 
the law of the United States,'' or does such violence to the rule of 
law that removal from office is clearly the only way to protect our 
nation from the possibility that he might do great harm to our people.
  While I believe the President violated his oath, it does not 
necessarily follow that he must be removed. For myself,

[[Page 2533]]

if I knew my vote would be the deciding vote here, I would not vote to 
remove this President, despite his unlawful acts. He has not brought 
that level of danger to the nation which, in my judgment, is necessary 
to justify such an action.
  The President remains answerable, as all Americans should be, to the 
criminal processes of our justice system. We do not have the power to 
convict him of a crime; the Constitution forbids it. Instead, the 
Constitution provides that the Senate, by a \2/3\ majority of those 
voting, may remove him from office. For me, that makes this more than a 
factual issue, so I do not vote as I would were I a juror in a criminal 
case.
  As I prepared my decision, it was apparent to me that there was no 
alternative that will dispose of this matter consistent with the 
sanctity of oaths and the importance of truth other than to adopt 
findings of fact. Not to do so and to not remove the President 
undermines the great success of a nation based upon observance and 
loyalty to our oaths.
  Having no other alternative, I shall vote guilty on Article II. As I 
previously pointed out, I would not do so if I knew such action would 
remove the President from office. I do so to demonstrate my firm 
conviction not only that the President has obstructed justice, but also 
that we should have followed the procedure which would establish the 
facts clearly and then determine if the President should be removed 
from office.
  When we had our first meetings on this issue, I told my colleagues we 
had forces in Kuwait on high alert, forces in Bosnia, an alarming 
situation in North Korea, and Asian flu plaguing the economies of 
emerging nations, and Pakistan and India drawing closer and closer to 
conflict. President Yeltsin, when I saw him yesterday, was a very ill 
leader, a leader of a nation that has the ability to threaten our 
freedom. NATO could well order an assault in Kosovo if negotiations 
there break down.
  The world has one stable superpower--the United States of America. 
Removal of the President by the Senate for the first time in history 
could destabilize our nation--leaving him in office will not.
  The long national ordeal our country has undergone over the past year 
has been agonizing for all of us. Since the Senate convened as a Court 
of Impeachment, I have received thousands of e-mails and letters from 
every reach of my state, from the most remote Eskimo village to our 
largest urban center.
  I have literally received letters from every walk of life: from 
doctors, lawyers, and Indian chiefs. Many are filled with advice on how 
I should cast my vote, the most important vote I will ever cast as a 
Senator. But whether they believe the president should be removed from 
office or not, all express deep concerns about the future of our 
country and the example we set for future generations. I have laid 
awake many nights pondering those very questions, and I share the 
anguish that many have felt.
  When I was appointed to the Senate 30 years ago Christmas Eve, I had 
a motto that I have tried to live by. ``To hell with the politics. Just 
do what's right for Alaska.'' Today, as one of 100 men and women who 
have been chosen to exercise this mighty power that our founding 
fathers conveyed on us over 200 years ago, I modify my creed: ``To hell 
with the politics. Just do what's right for the nation.''
  There are many who will disagree with the votes I cast in this 
historic trial. But I hope all will know that I have done my best to 
live by the oaths that I took, and to do what I think is right for the 
nation.
  Mr. LIEBERMAN. Mr. Chief Justice, throughout the history of this 
great country, we have endured trials that have strained the sinews of 
our democracy and sometimes even threatened to tear apart our 
unparalleled experiment in self-government. Each time the nation has 
returned to the Constitution as our common lodestar, trusting in its 
vision, its values and its ultimate verity. Each time we have emerged 
from these tests stronger, more resilient, more certain of Daniel 
Webster's claim of ``one country, one constitution, one destiny.'' 
(Speech to a Whig Party rally in New York City, March 15, 1837.) And 
each time our awe of the Founders' genius has been renewed, as has our 
reverence for the brilliantly-calibrated instrument they crafted to 
guide their political progeny in the unending challenge of governing as 
a free people.
  At this moment, we face a test that, although not as grave or 
perilous as some before, is nevertheless unlike anything this nation 
has ever experienced. As my colleagues well know, the impeachment trial 
of William Jefferson Clinton marks the first time in our history that 
the United States Senate has convened as a court of impeachment to 
consider removing an elected President from office. But what also makes 
this trial unprecedented are the underlying charges against President 
Clinton, which stem directly from his private sexual behavior. The 
facts of this case are complicated, embarrassing, demoralizing, and 
infuriating. They raise questions that Madison, Hamilton, and their 
brethren could never have anticipated that the Senate would have to 
address in the solemn context of impeachment.
  The public examination of these difficult questions--about private 
and public morality, about the role of the Independent Counsel, and 
about our expectations of Presidential conduct--has been a wrenching, 
dispiriting and at times unseemly process for the nation. It has 
divided us as parties and as a people, reaching its nadir in the 
partisan bickering and badgering that unfortunately defined the 
impeachment vote in the House of Representatives and compromised the 
legitimacy of this process in the eyes of many Americans. It has set 
off a frenzy in the news media that has degraded and devalued our 
public discourse and badly eroded the traditional boundaries between 
public and private life, leaving a pornographer to assume the role or 
arbiter of our political mores. And it has so alienated the American 
people that many of them are hardly paying attention to a trial that 
could result in the most radical disruption of the presidency--
excepting assassination--in our nation's history.
  Yet despite the significant pain this trauma has caused for the 
country, I take heart from the fact that we have once again reaffirmed 
our commitment to the Constitution and the fundamental principles 
underpinning it. The conduct of the trial here in the Senate has been 
passionate at times, but never uncivil, and while some votes have 
broken along party lines, they have never broken the spirit of common 
purpose we share. Indeed, throughout the past several weeks we as a 
body have grown closer as we have continually measured our actions with 
the same constitutional yardstick, and each of us has sought to remain 
faithful to the Founders' vision as we understand it in fulfilling our 
responsibilities as triers of the President. This, I believe, is in the 
end a remarkable testament to the foresight of our forefathers, that 
even in this most unusual of crises, we could and would rely on the 
Constitution as our compass to find a peaceable and just resolution.
  We are about to achieve that resolution and complete our 
constitutional responsibilities by rendering a judgment, a profound 
judgment, about the conduct of President Clinton and the call of the 
House of Representatives to remove him from office. This is the duty we 
accepted when we swore to do ``impartial justice,'' and it is a duty 
that I, as each of you, have pondered night and day since this trial 
began.
  As I have stated previously on this Senate floor, I have been deeply 
disappointed and angered by this President's conduct--that which is 
covered in the Articles, and the more personal misbehavior that is 
not--and like all of us here, I have struggled uncomfortably for more 
than a year with how to respond to it. President Clinton engaged in an 
extramarital sexual relationship with a young White House employee in 
the Oval Office, which, though consensual, was irresponsible and 
immoral, and thus raised serious questions about his judgment and his 
respect for the high office he holds. He

[[Page 2534]]

then made false or misleading statements about that relationship to the 
American people, to a Federal district court judge in a civil 
deposition, and to a Federal grand jury; in so doing, he betrayed not 
only his family but the public's trust, and undermined his moral 
authority and public credibility.
  But the judgment we must now make is not about the rightness or 
wrongness of the President's relationship with Monica Lewinsky and his 
efforts to conceal it. Nor is that judgment about whether the President 
is guilty of committing a specific crime. That may be determined by a 
criminal court, which the Senate clearly is not, after he leaves 
office.
  No, the question before us now is whether the President's conduct--as 
alleged in the two articles of impeachment--makes his continuance in 
office a threat to our government, our people, and the national 
interest. That, I conclude, is the extraordinarily high bar the Framers 
set for removal of a duly-elected President, and it is that standard we 
must apply to the facts to determine whether the President is guilty of 
``High Crimes and Misdemeanors.''
  Each side has had ample opportunity to present its case, illuminating 
the voluminous record from the House, and we Senators have been able to 
ask wide-ranging questions of both parties. The House was also 
authorized to conduct depositions of the three witnesses it deemed most 
important to its case. I have listened intently throughout, watched the 
videotaped depositions, and been very impressed by both the House 
Managers and the counsel for the President. The House Managers, for 
their part, have presented the facts and argued the Constitution so 
effectively that they impelled me more than once to seriously consider 
voting for removal.
  But after much reflection and review of the extensive evidence before 
us, of the meaning of the term ``high Crimes and Misdemeanors,'' and, 
most importantly, of the best interests of the nation, I have concluded 
that the facts do not meet the high standard the Founders established 
for conviction and removal. No matter how deeply disappointed I am that 
our President, who has worked so successfully to lift up the lives of 
so many people, so lowered himself and his office, I conclude that his 
wrongdoing in this sordid saga does not justify making him the first 
President to be ousted from office in our history. I will therefore 
vote against both Articles of Impeachment.
  In reaching the judgment that President Clinton is not guilty of high 
crimes or misdemeanors, I started from the same premise that the 
Founders did--the right of the people to choose their leaders is 
paramount in America, derived directly, as Thomas Jefferson wrote in 
the Declaration of Independence, from the equality of rights endowed to 
the people by our Creator. The supremacy of this first democratic 
principle was well described by Alexis De Tocqueville in Democracy in 
America: ``The people reign in the American political world as the 
Deity does in the universe. They are the cause and the aim of all 
things; everything comes from them, and everything is absorbed in 
them.'' (Heffner ed. 1956 p. 58)
  In debating the President's fate, we must remember that we are 
deciding is whether to supersede the people's decision about who should 
lead them--to substitute our judgment for theirs. On this point, the 
Framers of the Constitution were clear. They had boldly rejected the 
autocratic rule of a monarch and put in his place a President elected 
by, and accountable to, the people. Their deliberations show that they 
did not want even the legislature to exercise too much control over the 
popularly-chosen President. The Framers provided impeachment to serve 
as the narrowest of escape valves in the most extreme of cases. As a 
result, they set an extraordinarily high bar--both procedurally and 
substantively--for Congress to overcome before we, rather than the 
voters, could remove a President from office.
  Specifically, they required a majority of the House of 
Representatives to impeach and permitted removal only upon the 
concurrence of two-thirds of the Senate--which the Framers surely knew, 
and the current proceedings have demonstrated, is exceedingly difficult 
to obtain. They also established a very strict substantive standard, 
authorizing the Congress to remove a President from office only upon 
``Impeachment for, and Conviction of, Treason, Bribery, or other high 
Crimes and Misdemeanors.'' (U.S. Constitution, Art. II, sec. 4)
  The first time I read that clause, ``high Crimes and Misdemeanors,'' 
I assumed it included any criminal offense--and only criminal 
offenses--and I thought that it gave Congress broad latitude to impeach 
and remove from office a President who had committed any violation of 
the criminal code. But the more I studied the history, the less clear 
that interpretation became. The phrase ``high Crimes and Misdemeanors'' 
was a term of art to the Framers, and it meant something very different 
from ordinary crimes, the response to which must be left to the 
criminal justice system. The Framers chose the term high crimes, to 
connote a very specific type of offense, like treason or bribery, which 
has a direct impact on the government and undermines the chief 
executive's ability or will to continue serving without corruption and 
in the national interest. As Alexander Hamilton explained in the 
Federalist Papers, high crimes and misdemeanors are ``those offenses 
which proceed from the misconduct of public men, or, in other words, 
from the abuse or violation of some public trust. They are of a nature 
which may with peculiar propriety be denominated political, as they 
relate chiefly to injuries done immediately to the society itself.'' 
(The Federalist Papers, No. 65 Rossiter ed. 1961 p. 396 (emphasis in 
original)).
  It is not necessary here to offer a lengthy dissertation on the 
Constitutional Convention's impeachment debates. But I would like to 
share a statement of James Madison that illuminates the reasons why the 
Framers wanted to authorize impeachment and removal, as well as the 
intended scope of that power. In response to the suggestion that it was 
dangerous to authorize the legislature to remove the President, Madison 
argued that it was:

       indispensable that some provision should be made by 
     defending the Community against the incapacity, negligence or 
     perfidy of the chief Magistrate. The limitation of the period 
     of his service, was not a sufficient security. He might lose 
     his capacity after his appointment. He might pervert his 
     administration into a scheme of peculation or oppression. He 
     might betray his trust to foreign powers . . . In the case of 
     the Executive Magistracy which was to be administered by a 
     single man, loss of capacity or corruption was more within 
     the compass of probable events, and either of them might be 
     fatal to the Republic. (II Records of the Federal Convention 
     of 1787, pp. 65-66 (Farrand ed. 1888))

``Loss of capacity or corruption''--that is the evil at which the 
Constitution's impeachment clauses were directed, in Madison's view.
  Although neither the words of the Constitution nor the writings of 
Hamilton, Madison or any of the other Framers of the Constitution 
provide a precise list of those offenses that prove ``the abuse or 
violation of some public trust,'' or the ``loss of capacity or 
corruption'' that would constitute ``high Crimes and Misdemeanors,'' 
their words and our history offer some help in supplying a more 
detailed meaning to those terms.
  First, the Framers saw impeachment as an extreme remedy meant to 
respond to only a limited universe of offenses. They took great care to 
ensure that their chosen substantive standard did not have the effect 
of providing Congress so much discretion over the President's fate that 
it could use its power to infringe on the President's independence. It 
was for this precise reason that Madison successfully argued against 
allowing for removal for ``maladministration,'' for fear that ``[s]o 
vague a term will be equivalent to a tenure during pleasure of the 
Senate.'' (II Records of the Federal Convention of 1787, p. 550 
(Farrand ed. 1888))
  Second, pervading the Framers' discussions--and the Constitutional 
language they ultimately adopted--was the view that impeachment was 
intended to protect the nation and the

[[Page 2535]]

national interest and not to provide the legislature an alternative to 
the criminal justice system for holding accountable the President or 
any other violator of the nation's criminal laws. In crafting our 
Constitution's impeachment clauses, the Framers specifically and 
consciously departed from the English practice, in which Parliament 
could use its impeachment power to impose criminal sanctions. 
Emphasizing that the legislative branch has no constitutional role 
whatsoever in meting out punishment, whether for the Chief Executive or 
any other citizen, was so important to the Framers that they declared 
it not once, but twice in the Constitution--first when they outlawed 
bills of attainder (Art. I, sec. 9, cl. 3), and again when they 
emphasized that ``Judgment in Cases of Impeachment shall not extend 
further than to removal from Office, and disqualification to hold and 
enjoy any Office of honor, Trust or Profit under the United States: but 
the Party convicted shall nevertheless be liable and subject to 
Indictment, Trial, Judgment and Punishment, according to Law'' (Art. I, 
sec. 3, cl. 7).
  It is this linguistically-driven irony--that the Constitution's 
impeachment clauses employ the language of criminal law to authorize a 
process entirely outside of and distinct from the criminal justice 
system--that has created so much confusion over our precise task here. 
The House Managers often appear to suggest that if they show that the 
President committed a crime, then they have met their burden, because 
it is our responsibility to hold accountable a President who violates 
the law and to send a message that the President is not above the law.
  But as Professor Charles Black so well explained in Impeachment: A 
Handbook, criminality in and of itself is neither a necessary nor a 
sufficient basis for concluding that a President has committed a high 
crime or misdemeanor, because our goal is to protect the nation's 
interests, not to punish a President for violating the criminal law. He 
states: ``I think we can say that `high Crimes or Misdemeanors,' in the 
constitutional sense, ought to be held to be those offenses which are 
rather obviously wrong, whether or not `criminal,' and which so 
seriously threaten the order of political society as to make pestilent 
and dangerous the continuance in power of their perpetrator. The fact 
that such an act is also criminal helps, even if it is not essential, 
because a general societal view of wrongness, and sometimes of 
seriousness, is, in such a case, publicly and authoritatively 
recorded.'' (1998 ed. pp. 39-40)
  If the purpose of impeachment was to ensure that the President is 
held accountable for violating the law, then the Framers would have 
authorized Congress to impeach and remove, not just for high crimes but 
for any crimes. They did not do that. They gave us the power of 
impeachment and removal for one reason and one reason only: to protect 
the Republic from a Chief Executive who, by his acts, has demonstrated 
that he can no longer be trusted to govern in the national interest. 
Responses to all other forms of malfeasance were left to the other 
branches.
  That is why I conclude that the appropriate question for each of us 
to ask is not whether the President committed perjury or obstruction of 
justice, but whether he committed a high crime or misdemeanor--a term I 
understand from the history to encompass two categories of offenses. 
The first includes those that are like treason or bribery in that they 
represent a gross misuse of official power to directly injure the State 
or its people. Those guilty of such offenses must be removed from 
office because they have explicitly demonstrated, by their conduct, 
that they will place their personal interests above the national 
interest.
  The President's counsel and others suggest that we should stop here, 
arguing that Congress has no authority to remove a President for any 
offense not committed through the use of official power. (See Trial 
Memorandum of President Clinton pp. 19-20) I cannot agree. Instead, 
Madison's argument that we must have an escape valve that allows the 
legislature to remove a President when the need arises to defend ``the 
Community against the incapacity, negligence, or perfidy of the chief 
Magistrate,'' coupled with Hamilton's definition of ``high Crimes and 
Misdemeanors'' as an ``abuse or violation of some public trust,'' 
convince me that it is more than just misuse of official power that can 
require the Senate to remove an office holder. Acts that, although in 
their immediate nature and effect differ from treason or bribery 
because they do not stem from a misuse of official power, may 
nevertheless undermine the offender's ability to discharge his duties 
in the interests of the American people. In other words, the second 
category of offenses that equal ``high Crimes and Misdemeanors'' are 
non-official acts that unequivocally demonstrate the same threat posed 
by treason or bribery: that the President can no longer be trusted to 
use his power in the best interests of the nation.
  It is for this reason that I reject the contention that a President's 
giving false or misleading statements under oath or his impeding the 
discovery of evidence in a lawsuit arising out of his personal conduct 
may never constitute a high crime or misdemeanor. I have no doubt that 
under certain circumstances such offenses could demonstrate such a 
level of depravity, deceit and disregard for the administration of 
justice that we would have no choice but to conclude that the President 
could no longer be trusted to use the authority of his office and make 
the decisions entrusted to him as Chief Executive in the best interest 
of the nation. It is because I hold this position that I found reaching 
a decision in this case such a difficult matter.
  Before evaluating the charges against the President, and determining 
whether his misconduct in fact meets the high threshold the 
Constitution establishes for removal, each of us had to resolve the 
important question of what standard of proof should be used for judging 
the evidence against the President. It is widely agreed that the House 
Managers have the burden of convincing Members of the Senate that the 
President has committed a high crime or misdemeanor, but there are 
differences of opinion on the level of certainty each of us in the 
Senate must reach before we can conclude that the House has met its 
burden.
  During the Impeachment Trial of Judge Alcee Hastings, I gave a great 
deal of thought to this question, and after weighing the competing 
interests of preserving the integrity of the judiciary, maintaining the 
independence of the judiciary, and protecting the personal interests of 
the office holder, I concluded that the House had to prove its case by 
``clear and convincing evidence.'' (See 135 Cong. Rec. S 14359-61 (Oct. 
27, 1989)) Clear and convincing evidence is evidence that, in one 
formulation, produces in the mind ``a firm belief or conviction as to 
the matter at issue'' (U.S. Fifth Circuit District Judges Association, 
Pattern Jury Instructions Sec. 2.14 (1998 ed.)) or, put another way, 
persuades the finder of fact that the claim ``is highly probable'' 
(Committee on Model Jury Instructions, Ninth Circuit Manual of Model 
Jury Instructions Sec. 1.12.2 (1997 ed.)).
  There are valid arguments for adopting the higher standard of 
``beyond a reasonable doubt'' in this case, most importantly that the 
national trauma caused by the removal of a President so far surpasses 
the damage imposed by the removal of a single judge, that the Senate 
must remove a President only if it has a very high degree of certainty 
in the facts underlying its decision. On the other hand, just as the 
trauma of removing a President is greater than that flowing from 
removing a judge, the danger an errant President poses to the Republic 
far exceeds the threat presented by a misbehaving judge. This need to 
protect the integrity of the Republic and the welfare of its people 
argues against setting the standard of proof so high that it would 
result in leaving in power an individual whose fitness to continue 
serving in the national interest is seriously in doubt, remembering 
that no matter what the standard, removal still requires two-thirds of 
the Senators' support.
  In 1974, then Senate Majority Leader Mike Mansfield recommended that 
the

[[Page 2536]]

standard of ``clear and convincing evidence'' was ``a logical middle 
ground between the burden of proof requirement in criminal proceedings 
(`beyond a reasonable doubt') and the burden of proof requirement in 
civil proceedings (`by a preponderance of the evidence').'' He added 
these words of insight and reason:

       An impeachment proceeding is not a criminal proceeding 
     since the Court of Impeachment is barred by the Constitution 
     from imposing any of the usual criminal law sanctions in the 
     event of conviction, and it is not a civil proceeding because 
     the extraordinary formality and complexity of the process and 
     the serious consequences of a conviction and removal (in at 
     least the case of an impeachment of the President of the 
     United States) militate against accepting as adequate the low 
     threshold requirement of a civil action. The burden of proof, 
     like the terminology and various other requirements, must be 
     unique because impeachment itself is unique. It is unique in 
     that it is a hybrid of the legislative and the judicial, the 
     political and the legal. (Senate Committee on Rules and 
     Administration Executive Session Hearings on Senate Rules and 
     Precedents Applicable to Impeachment Trials, Aug. 5-6, 1974, 
     p. 193)

For similar reasons, Professor Charles Black in his Handbook on 
Impeachment (p. 17) offers the standard of ``overwhelming preponderance 
of the evidence'' as appropriate for impeachment trials.
  Taken together, those arguments persuaded me to adopt as the 
appropriate standard of proof the same one I chose in Judge Hastings' 
impeachment trial: clear and convincing evidence. In other words, to 
vote for either of the articles before us, I must conclude that there 
is clear and convincing evidence that President William Jefferson 
Clinton has committed a high crime or misdemeanor.
  This brings me to the crux of this case, where it is necessary to 
apply the standard of proof I have adopted to the evidence the Managers 
have presented, in order to reach judgment on the Articles before us.
  A number of specific allegations contained in the Articles lack 
sufficient legal or evidentiary support. For example, it strikes me as 
highly doubtful that an obstruction case can be made from the 
President's statements to aides who later testified to the grand jury. 
The House asserts that these statements constituted obstruction because 
the President knew his aides would repeat those statements to the grand 
jury, thereby providing misleading information to the grand jury. But 
the House has not adequately explained how the President saying 
privately to his aides the same thing he was saying to the public could 
constitute obstruction, particularly when we have been presented no 
evidence showing that the President made those statements for the 
purpose of having them repeated to the grand jury.
  Similarly, the Managers have not offered a convincing legal theory 
showing how the President obstructed justice simply by failing to 
dispute his attorney's statements about his relationship with Ms. 
Lewinsky during the President's deposition. And, the Managers have 
failed to substantiate their allegation that the President committed 
perjury by misstating the date of his initial sexual encounter with Ms. 
Lewinsky when he told the grand jury ``When I was alone with Ms. 
Lewinsky on certain occasions in early 1996 and once in early 1997, I 
engaged in conduct that was wrong'' (Aug. 17, 1998 Grand Jury Testimony 
of President Clinton pp. 8-9). The Managers have not offered evidence 
that the President's error was intentional, nor did they provide a 
convincing explanation how such a misstatement was material to the 
grand jury's investigation.
  Although the Managers offered slightly more weighty evidence 
concerning the involvement of the President and his friend, Vernon 
Jordan, in Ms. Lewinsky's job search at the same time she was filing a 
false affidavit in the Jones case, their case on this point leaves me 
suspicious but unconvinced. The evidence is highly circumstantial, 
amounting largely to an overlap in the timing between Ms. Lewinsky's 
appearance on the Jones' witness list and Mr. Jordan's efforts to find 
Ms. Lewinsky a job at the President's request. Both Ms. Lewinsky and 
Mr. Jordan testified that there was no connection between the two 
events. Although the fact that Ms. Lewinsky's job search and the 
drafting of her affidavit occurred simultaneously and that Mr. Jordan 
was involved with both raises questions, nevertheless the ultimate lack 
of any direct evidentiary connection prevents me from reaching any 
settled conclusion on the matter.
  The House has provided more persuasive evidence to support a number 
of its other allegations. For example, I am troubled by the President's 
grand jury testimony that he did not have sexual relations with Ms. 
Lewinsky within the meaning of the definition offered him in his Jones 
deposition. (See, e.g., Aug. 17, 1998 Grand Jury Testimony of President 
Clinton pp. 9, 109) Ms. Lewinsky testified that they had several such 
encounters. (Aug. 26, 1998 Grand Jury Testimony of Monica Lewinsky pp. 
6-40) The President's counsel responded to this allegation by saying: 
``This claim comes down to an oath against an oath about immaterial 
details concerning an acknowledged wrongful relationship.'' (Trial 
Memorandum of President Clinton p. 44)
  I disagree. The President's statement almost certainly was material 
to the grand jury's investigation. The grand jury was not investigating 
whether or not Ms. Lewinsky and the President had a relationship per 
se, but rather whether the President perjured himself in his Jones 
deposition and obstructed justice. Given that in his Jones deposition, 
the President specifically denied having sexual relations with Ms. 
Lewinsky, it seems not only material, but central to the grand jury's 
investigation to determine whether the President told the truth when he 
said he did not have sexual relations with her.
  The fact that Ms. Lewinsky was testifying under an immunity agreement 
and would therefore be subject to prosecution if she lied, and that 
most of her other testimony is uncontroverted, so much that the 
President's counsel relies on it at several key points, leads me to 
view her testimony about the details of her sexual relationship with 
the President as credible. The same is true of her consistent testimony 
that it was Betty Currie who called her and told Ms. Lewinsky she 
understood she had something for her--the gifts from the President. 
(See Feb. 1, 1999 Deposition of Monica Lewinsky, 145 Congressional 
Record S1225 (Feb. 4, 1999.))
  Although it is a less central matter, I am puzzled by the President's 
including in his prepared grand jury testimony the statement that ``I 
regret that what began as a friendship came to include this 
[inappropriate] conduct.'' (Grand Jury Testimony of President Clinton 
p. 9.) As the House Managers pointed out, according to Ms. Lewinsky, 
she and the President engaged in ``this conduct'' on the first day they 
met.
  The series of questions which Betty Currie (a friendly witness to the 
President) testified that the President asked her on the day after his 
deposition in January 1998 and again a few days later are most 
troubling--both as to the credibility of the President's testimony to 
the grand jury regarding those statements and as to whether his intent 
in making those statements was to wrongly influence Ms. Currie's 
potential testimony. The President testified that he asked Ms. Currie 
those questions ``to refresh my memory about what the facts were.'' 
(Grand Jury Testimony of President Clinton p. 131.) In their trial 
memorandum (pp. 52-53), the President's counsel assert that his 
statement is consistent with Ms. Currie's testimony that the President 
seemed to be trying to gather information. But the President did not 
testify that he was trying to gather information generally. He stated 
that he was trying to refresh his own memory. And this, unfortunately, 
seems to me to be an implausible explanation of what he was doing. In 
his testimony before the grand jury on August 17, 1998, the President 
admitted that he had ``inappropriate intimate contact'' with Ms. 
Lewinsky and that the relationship occurred ``when I was alone with Ms. 
Lewinsky.'' (Grand Jury Testimony of President Clinton pp. 8-9.) He 
therefore must have known in January 1998, when he asked Ms. Currie the 
series of questions, that the statements

[[Page 2537]]

they contained (for example, that ``I was never alone with Monica 
Lewinsky,'' that Ms. Currie ``could see and hear everything,'' and that 
``Monica came on to me, and I never touched her, right?'') either were 
not true or were beyond Ms. Currie's knowledge and that Ms. Currie 
could not possibly help refresh his memory.
  The President called Ms. Currie in on January 18, 1998 to ask her 
those questions after the surprise questions he was asked the day 
before in the Jones deposition about his relationship with Ms. 
Lewinsky, and after he repeatedly invoked Ms. Currie's name in 
connection with Ms. Lewinsky in response to those questions. (See Jan. 
17, 1998 Deposition of President Clinton, reprinted in Senate Doc. 106-
3 Vol. XXII, pp. 17, 20, 21, 22, 23, 24, 25, 26, 27.) Certainly, if the 
Jones lawyers wanted to further investigate the President's 
relationship with Ms. Lewinsky, the President's own statements would 
have led them directly to Ms. Currie.
  In summary, although the House managers have left me thoroughly 
unconvinced of some of their allegations, the evidence presented on 
others does lead me to believe that it is likely that there were 
occasions on which the President made false or misleading statements 
and took actions which could have had the effect of impeding the 
discovery of evidence in judicial proceedings. Whether any of his 
conduct constitutes a criminal offense such as perjury or obstruction 
of justice is not for me to decide. That, appropriately, should and 
must be left to the criminal justice system, which will uphold the rule 
of law in President Clinton's case as it would for any other American. 
What I must do is uphold the Constitution and decide whether the House 
Managers have presented clear and convincing evidence that the 
President has committed a high crime or misdemeanor, which is to say 
whether they have demonstrated that his misconduct has so compromised 
his capacity to govern in the national interest that he must be 
removed.
  I conclude that the House Managers have not met that high burden. I 
am, of course, profoundly unsettled by President Clinton's 
irresponsibility in carrying on a sexual relationship with an intern in 
the Oval Office and by the disregard for the truth he showed in trying 
to conceal it from his family, his staff, the courts and the American 
people. But the Managers have failed to convince me with the evidence 
they have presented that his misbehavior, as charged in the articles of 
impeachment, makes him a threat to the national interest, and that we 
can no longer expect the President to govern free of corruption in the 
nation's best interests.
  Indeed, the Managers have barely addressed this point of consequences 
at all, providing almost no evidence or argument that the republic 
needs protecting from this President. Rather, they have presented their 
case largely as if the Senate were a criminal court, as if our sole 
responsibility were to determine whether the President is guilty of the 
crimes of perjury and obstruction of justice, as if those specific 
crimes were the indisputable equivalent of high crimes or misdemeanors 
automatically warranting the President's removal. And in doing do, I 
believe, they have failed to cross the higher constitutional threshold 
of proving that the President has forfeited his right to fill out the 
term for which the people elected him.
  The voice of the American people, in fact, indicates that just the 
opposite is true. According to every public poll we have seen, a clear 
majority of the American people have continued to support the President 
throughout this ordeal. Nearly two-thirds of them say repeatedly that 
they approve of the job that President Clinton is doing in running the 
country, and that they oppose his removal. In my state of Connecticut, 
a survey done by The Hartford Courant just last week showed that 68 
percent of my constituents rate the President's job performance as 
excellent or good, and a full three quarters of them believe he 
deserves to stay in office.
  In noting this, I recognize that it would be a dereliction of my duty 
to substitute public opinion polls for reasoned judgment about our 
national interest in resolving this constitutional crisis. But it would 
also be a serious error to ignore the people's voice, because in 
exercising our authority as a court of impeachment we are standing in 
the place of the voters who re-elected the President two years ago. In 
this case, the prevailing public opposition to impeachment has 
particular relevance, for it provides substantial evidence that the 
President's misconduct has not been so harmful as to shatter the 
public's faith in his ability to fulfill his Presidential duties and 
act in their interest.
  It is possible, of course, that a popular President could 
nevertheless be corrupt and pose a threat to the nation, which is to 
say that public opinion is not the only barometer of fitness for 
office. But in this democracy it is an indispensable measure, and in 
light of the ultimately unconvincing evidence the Managers have 
presented to demonstrate the President's loss of capacity or 
corruption, the public's opposition to removal carries weight in my 
deliberations. It carries particular weight given the overwhelming 
amount of information the news media has provided us about the details 
of the President's behavior, which strongly suggests that the American 
people have not reached their conclusions in ignorance of the 
President's flaws or faults.
  The public opinion polls tell us more than that the majority of 
people support his continuance in office. Those two-thirds who 
consistently give him high ratings for his job performance have also 
strongly expressed their disapproval of his sexual behavior and his 
deliberate lies to the nation. Indeed, surveys have routinely shown 
that, as a consequence of this scandal, less than one-fifth of the 
American people claim that they share the President's moral and ethical 
values, a result I find stunning and which may be unparalleled in our 
history.
  How can so many Americans simultaneously hold the views that the 
President has demeaned his office and yet should not be evicted from 
it? We will be trying to answer that question and to weigh the 
consequences of those seemingly conflicting opinions for a long time to 
come. But I believe the explanation must have something to do with the 
context of the President's actions. As the record makes abundantly 
clear, the President's false or misleading statements under oath and 
his broader deception and cover-up stemmed directly from his private 
sexual behavior, something that no other sitting American president to 
my knowledge has ever been questioned about in a legal setting. The 
President neither lied about nor was trying to conceal presidential 
malfeasance or a heinous crime, such as murder or rape, but instead 
sought to hide a sexual relationship with an intern that was deeply 
embarrassing, shameful, even indefensible, yet not illegal.
  Indeed, troubled as I am by much of the evidence the Managers 
presented and the arguments they made, on each occasion I considered 
voting for removal I invariably came back to this question of context, 
and I asked myself: Are these the kinds of offenses the Founders 
envisioned when they entrusted us with the awesome power of invoking 
our democracy's ultimate sanction? Does this tawdry, tragic episode 
justify, for the first time in our proud history, ejecting from office 
the individual the American people chose to lead the country? And each 
time I had to answer no.
  To reach this conclusion, that the context matters in judging the 
President's misconduct, is in the eyes of the House Managers and many 
of the President's critics an abdication of duty and honor. It is, they 
contend, to wink at any immorality, any transgression that is connected 
to sexual behavior, to sacrifice our most precious principles at the 
altar of moral relativism. And worse, by choosing to acquit the 
President, they argue, we are setting an awful precedent for presidents 
to come.
  I understand and share the frustrations that lead to these 
criticisms. As I stated in the speech I made on this floor on September 
3rd of last year, I was deeply angered by the President's recklessness 
and his purposeful deceit. The conduct he had acknowledged at

[[Page 2538]]

that point in his grand jury testimony was not only immoral but 
harmful. The President is, as eminent historian Clinton Rossiter noted, 
the American people's ``one authentic trumpet,'' (Rossiter ``The 
American Presidency'' 1955 p. 23) and when the notes he sounds falter 
in the expression of our common values, it has an effect, one that 
cannot be ignored. That was made clear to me in talking with many 
parents and children about this matter over the last several months, 
hearing the dismay and distrust in their voices, which was powerful 
evidence to me that the President had undercut his moral authority and 
undermined public confidence in his word.
  My disappointment and anger with the President's actions were 
reawakened as I listened to the evidence the Managers have presented. 
And like many of my colleagues, I am left dissatisfied with the all-or-
nothing nature of the choice we have been asked to make in this 
proceeding, between removing this President from office on the one 
hand, or not removing him on the other, which could imply exoneration 
or even vindication.
  But as unsatisfying as that choice is, it is the only one that the 
Founders empowered the Senate to make in this impeachment proceeding. 
Our responsibility is not to pass judgment on the morality of the 
President's behavior, or to find whether he committed a specific crime. 
Impeachment is not an instrument of protest, or of prosecution, but one 
of protection, of our country, its people, and our democratic ideals. 
When the roll is called on each article and I answer ``not guilty,'' I 
want it understood that I am saying ``not guilty of a high crime or 
misdemeanor,'' and that is all I can say.
  With that understood, I do believe the Constitution allows for one 
recourse that would provide a means for us as the people's 
representatives to register our and their disapproval, and would, I 
believe, help us to bring appropriate closure to this terrible chapter 
in our nation's history. It is well within the Senate's constitutional 
prerogatives to adopt a resolution of censure expressing our contempt 
for the President's misconduct, both that which is charged in the 
articles and that which is not. Such a censure would not amount to a 
punishment, nor would it be intended to do so. What it would do, 
particularly if it united Senators across party lines and positions on 
removal, is fulfill our responsibility to our children and our 
posterity to speak to the common values the President has violated, and 
make clear what our expectations are for future holders of that highest 
office.
  And what it could do, I believe, is to help us to begin healing the 
wounds the President's misconduct and the impeachment process's 
partisanship have done to the American body politic, and to the soul of 
the nation. I have observed that roughly two-thirds of the public 
consistently expresses its opposition to the President's removal. But I 
do not think we can leave this proceeding, especially those of us who 
have voted against the Articles, without also noting that roughly one-
third of the American people have consistently expressed their belief 
that this President is unfit to lead this nation. That is a startlingly 
large percentage of our people who have totally lost confidence in our 
nation's leader.
  This extraordinary divergence of opinion tells us that there is a 
rift in our public life that extends far beyond the specific 
circumstances of this case, a rift that the President's misconduct has 
only exacerbated. A statement of censure is not an antidote that will 
magically eliminate this division, but I believe it will help by 
demonstrating that we can find common moral ground and articulate our 
common values even though we Senators and our constituents have 
disagreed about impeachment. For that reason, I hope that once this 
trial is concluded, we will put aside our partisan loyalties and our 
political hesitations and overcome parliamentary obstacles to join 
together in passing a resolution that affirms our belief that the 
presidency is and must continue to be, in the words of Clinton 
Rossiter, ``the one-man distillation of the American people,'' (The 
American Presidency p. 11), the steward of our freedom and our values.
  In closing, Mr. Chief Justice, I would like to quote from a wise and 
compelling insight that Manager Hyde put forward in his final argument. 
The most formidable obstacle the Managers faced in making their case, 
he said, was public cynicism, ``the widespread conviction that all 
politics and all politicians are by definition corrupt and venal.'' He 
went on to say, ``That cynicism is an acid eating away at the vital 
organs of American public life. It is a clear and present danger 
because it blinds us to the nobility and the fragility of being a self-
governing people.''
  While I disagree with Manager Hyde's ultimate conclusion in this 
case, I could not agree more with his eloquent assessment of this 
threat to our democracy. It is a problem I addressed at the end of the 
campaign finance investigation that the Governmental Affairs Committee 
conducted in 1997, when I argued that the mad chase for money that 
dominates and distorts our political system gives the American people, 
already deeply skeptical of the motives of politicians, good reason to 
doubt whether they have a true and equal voice in their government. And 
it is a problem that I fear has grown significantly worse in the wake 
of this unseemly saga and the damage it has done to the public's esteem 
for and expectations of their leaders.
  The long and painful process of impeachment is about to come to an 
end, and thankfully so, but the enormous challenge we face in restoring 
the public's faith in our public institutions and those who serve in 
them is just beginning. This is the next great test for the President 
and for each of us, the fight against cynicism's corrosive influence 
and the loss of public trust. If we once again seek the help of our 
common Creator and the counsel of our shared Constitution, and through 
our actions express their ideals and fulfill their expectations, I am 
confident we can in time renew a sense of common purpose and reassure 
the citizenry we serve that America is indeed, as Webster proclaimed, 
one country with one destiny. Thank you.
  Mr. BROWNBACK. I find that William Jefferson Clinton did commit 
perjury and obstruct justice; that these offenses rise to the level of 
``high Crimes and Misdemeanors;'' that William Jefferson Clinton should 
be convicted under the Articles of Impeachment; and that he must be 
removed as President of the United States.
  This is a sad chapter in our nation's long and illustrious history. A 
man of extraordinary talent took a mistake and turned it into a 
tragedy. William Jefferson Clinton is no ordinary man. Gifted and 
charismatic, brilliant and refined, he took raw ability and focus and 
turned it into a Presidency. Such is the stuff of story books and 
heroes. Sadly for this tale, the hero had a habit he would not break, 
and, when it called him back to darkness, he sought to hide it at all 
cost. And there the tragedy occurred.
  President Clinton repeatedly chose to lie and obstruct justice rather 
than tell the truth and comply with court orders throughout this 
ordeal. By his words and deeds he chose to place himself above the law. 
By his words and deeds he has undermined the rule of law in America to 
the great harm of this nation. By his own words and deeds, he has 
undermined the truth-finding function of the judiciary, at great harm 
to that branch of our government. By his words and deeds, he had done 
great harm to the notions of honesty and integrity that form the 
underpinnings of this great republic.
  The following represents the specific facts upon which I find William 
Jefferson Clinton is guilty of perjury before a Federal Grand Jury and 
obstruction of justice, and must be removed as the President of the 
United States:


             article i--perjury before a federal grand jury

  In his conduct while President of the United States, William 
Jefferson Clinton, in violation of his constitutional oath faithfully 
to execute the office of President of the United States and, to the 
best of his ability, preserve, protect, and defend the Constitution of 
the United States, and in violation of his

[[Page 2539]]

constitutional duty to take care that the laws be faithfully executed, 
has willfully corrupted and manipulated the judicial process of the 
United States for his personal gain and exoneration, impeding the 
administration of justice, in that:
  On August 17, 1998, William Jefferson Clinton swore to tell the 
truth, the whole truth, and nothing but the truth before a Federal 
grand jury of the United States. Contrary to that oath, William 
Jefferson Clinton willfully provided perjurious, false and misleading 
testimony to the grand jury concerning the nature and details of his 
relationship with a subordinate Government employee:
  A. Testimony that conflicts with Ms. Lewinsky's account of the 
relationship:
  Ms. Lewinsky testified as to the extent of her sexual relationship 
with President Clinton, and her statements were corroborated by 
numerous individuals with whom she contemporaneously shared the details 
of her encounters with the President, including two professionals. Her 
testimony indicated direct contact by the President with certain areas 
of her body. The conduct described by Ms. Lewinsky clearly falls within 
the definition of sexual relations as President Clinton understood the 
term to be defined in the Paula Jones case and during his grand jury 
testimony.
  In his prepared statement to the grand jury, President Clinton stated 
that the sexual encounters between he and Ms. Lewinsky ``did not 
constitute sexual relations as I understood that term to be defined at 
my January 17th, 1998 deposition.'' President Clinton acknowledged that 
the type of activity described by Ms. Lewinsky constituted sexual 
relations as he understood the term to be defined during the Paula 
Jones' deposition: ``I understood the definition to be limited to, to 
physical contact with those areas of the bodies with the specific 
intent to arouse or gratify.'' However, during questioning under oath, 
President Clinton repeatedly denied engaging in the activities 
described by Ms. Lewinsky.
  President Clinton was even asked by a grand juror whether ``if Monica 
Lewinsky says that while you were in the Oval Office area you touched 
[certain area of her body that falls within the definition of sexual 
relations as understood by the President in the Paula Jones case], 
would she be lying.'' President Clinton responded: ``That is not my 
recollection. My recollection is that I did not have sexual relations 
with Ms. Lewinsky and I'm staying on my former statement about that.''
  If Ms. Lewinsky's testimony is true, President Clinton committed 
perjury during his grand jury testimony. I have had the opportunity to 
read the portions of grand jury testimony provided by both President 
Clinton and Ms. Lewinsky concerning their characterizations of their 
sexual relations. I also had the opportunity to watch Ms. Lewinsky's 
videotaped deposition in which she reaffirmed her previous grand jury 
testimony concerning the extent of their sexual relations. Based upon 
(1) the corroboration of Ms. Lewinsky's testimony by numerous witnesses 
with whom she had spoken contemporaneously, (2) the detailed nature of 
Ms. Lewinsky's testimony, (3) the evasiveness of President Clinton's 
testimony, (4) the apparent sincerity of Ms. Lewinsky in her videotaped 
deposition before the Senate, and (5) the President's refusal to be 
deposed by the Senate, I find that the President provided false and 
misleading testimony before a federal grand jury that constitutes 
perjury.
  B. Testimony concerning his account of the relationship to Betty 
Currie:
  On January 18, 1998, President Clinton met with Mrs. Currie at the 
White House and told her ``there are several things you may want to 
know'' about the President's relationship with Monica Lewinsky. During 
his grand jury testimony, President Clinton stated that ``I was not 
trying to get Betty Currie to say something that was untruthful.'' 
However, as discussed further in the obstruction of justice charges, 
President Clinton said to Mrs. Currie ``Monica came on to me, and I 
never touched her, right?'' Based upon both Ms. Lewinsky and President 
Clinton's testimony concerning their intimate contact, and upon Ms. 
Lewinsky's Senate deposition, I must conclude that Ms. Lewinsky's 
account of their intimate activity is accurate. As a result, I must 
further conclude that President Clinton was lying when he told Mrs. 
Currie that he had not touched Ms. Lewinsky, and that the President 
committed perjury when he testified before the grand jury that he had 
not asked Mrs. Currie ``to say something that was untruthful.''
  Mr. Clinton further testified that his only interest in speaking to 
Mrs. Currie that day after the President was deposed in the Paula Jones 
case was to ``refresh [his] own recollection'' and ``not to impart 
instructions on how she was to recall things in the future.'' As will 
be discussed further below, I conclude that President Clinton made a 
series of statements to Betty Currie in an attempt to improperly 
persuade her to provide false testimony. As a result, based upon the 
evidence presented in the record, I believe that President Clinton's 
interest in talking to Mrs. Currie the day after he was deposed by 
Paula Jones' attorneys was to impart instructions on how Mrs. Currie 
was to recall events concerning the President's illicit affair and not 
to refresh the President's memory. The President's statements before 
the grand jury concerning his interest in talking to Mrs. Currie would 
thus constitute perjury.
  C. Testimony concerning his account of the relationship to Sidney 
Blumenthal and John Podesta:
  In his grand jury testimony, President Clinton asserted in his 
conversations with Mr. Blumenthal and Mr. Podesta, that ``I said things 
that were true. They may have been misleading.'' President Clinton 
further states that ``what I was trying to do was give them something 
they could--that would be true, even if misleading in the context of 
this deposition.'' Mr. Clinton told Sidney Blumenthal that ``Monica 
Lewinsky came at me and made a sexual demand on me'' and that the 
President had rebuffed her. Mr. Blumenthal also testified that the 
President claimed that Ms. Lewinsky threatened the President, saying 
``that she would tell people they'd had an affair, that she was known 
as the stalker among her peers, and that she hated it and if she had an 
affair or said she had an affair then she wouldn't be the stalker any 
more.'' When Mr. Blumenthal asked the President whether Mr. Clinton had 
been alone with Ms. Lewinsky, the President replied ``I was within 
eyesight or earshot of someone.''
  Even President Clinton acknowledges that he was alone with Monica 
Lewinsky, and, therefore not within eyesight or earshot of anybody, on 
numerous occasions. Mr. Clinton also acknowledges that he and Ms. 
Lewinsky engaged in ``inappropriate intimate contact'' which, if Ms. 
Lewinsky's testimony is true, amounted to sexual relations as President 
Clinton understood the term to be defined in the Paula Jones case. As a 
result, the President lied, not simply misled Mr. Blumenthal, when Mr. 
Clinton stated that he had ``rebuffed her.''
  John Podesta testified that President Clinton had told Mr. Podesta 
that the President ``had never had sex with her [Ms. Lewinsky] in any 
way whatsoever.'' Mr. Podesta further testified that President Clinton 
elaborated that the President and Ms. Lewinsky ``had not engaged in 
[sexual activity that falls within the definition of sexual relations 
as President Clinton understood the term to be defined in the Paula 
Jones case].''
  During Mr. Clinton's grand jury testimony, he refused to directly 
contradict Mr. Podesta's characterization of their conversation: ``I'm 
not saying that anybody who had a contrary memory is wrong.'' President 
Clinton was asked ``[i]f [the White House aides] testified that you 
denied sexual relations or relationship with Monica Lewinsky, or if 
they told us that you denied that, do you have any reason to doubt 
them?'' The President responded ``no.''
  Based on the evidence concerning the extent of the sexual 
relationship between President Clinton and Ms. Lewinsky, and based on 
the President's own admission concerning the accuracy of statements 
made by his aides, I

[[Page 2540]]

conclude that President Clinton committed perjury when he characterized 
the manner in which he conveyed false statements to Mr. Podesta and Mr. 
Blumenthal. President Clinton did not simply mislead his aides, he lied 
to them about his relationship with Ms. Lewinsky.


                   article ii--obstruction of justice

  In his conduct while President of the United States, William 
Jefferson Clinton, in violation of his constitutional oath faithfully 
to execute the office of President of the United States and, to the 
best of his ability, preserve, protect, and defend the Constitution of 
the United States, and in violation of his constitutional duty to take 
care that the laws be faithfully executed, has prevented, obstructed, 
and impeded the administration of justice, and has to that end engaged 
personally, and through his subordinates and agents, in a course of 
conduct or scheme designed to delay, impede, cover up, and conceal the 
existence of evidence and testimony related to a Federal civil rights 
action brought against him in a duly instituted judicial proceeding.
  The means used to implement this course of conduct or scheme 
included:
  A. On or about December 28, 1997, William Jefferson Clinton corruptly 
engaged in, encouraged, or supported a scheme to conceal evidence that 
had been subpoenaed in a Federal civil rights action brought against 
him.
  Ms. Lewinsky testified that on December 28, 1997 she told President 
Clinton that she had been subpoenaed and that the subpoena required her 
to produce gifts given her by the President. According to Ms. Lewinsky, 
she asked the President ``should I--maybe I should put the gifts away 
outside my house somewhere or give them to someone maybe Betty.'' Ms. 
Lewinsky testified that President Clinton responded ``I don't know'' or 
``Let me think about that.''
  Later that day (December 28), Ms. Lewinsky testified that she 
received a phone call from Mrs. Currie, who stated ``I understand you 
have something to give me'' or ``the President said you have something 
to give me.'' Mrs. Currie then retrieved the gifts that President 
Clinton had given to Ms. Lewinsky and hid them under her bed. Based 
upon the fact that Mrs. Currie was clearly acting under instructions 
from President Clinton, I find that President Clinton obstructed 
justice by attempting to hide evidence requested in a subpoena in a 
federal civil rights case.
  B. Beginning on or about December 7, 1997, and continuing through and 
including January 14, 1998, William Jefferson Clinton intensified and 
succeeded in an effort to secure job assistance to a witness in a 
Federal civil rights action brought against him in order to corruptly 
prevent the truthful testimony of that witness in that proceeding at a 
time when the truthful testimony of that witness would have been 
harmful to him.
  At President Clinton's request, Vernon Jordan met with Monica 
Lewinsky in November of 1997 to discuss assistance that Mr. Jordan 
could provide Ms. Lewinsky in securing a job in New York. However, Mr. 
Jordan took no action until December 11, 1997, five days after 
President Clinton learned that Monica Lewinsky was on the witness list 
in the Paula Jones case and that Mr. Jordan had not yet provided Ms. 
Lewinsky with any assistance in securing a job in New York. On the day 
that Mr. Clinton learned that Ms. Lewinsky was on the witness list, the 
President assured her that he would talk to Mr. Jordan to ensure that 
Mr. Jordan stepped up his efforts to secure her a job in New York.
  Mr. Jordan stepped up his activities on December 11, 1998, because, 
on that date, Judge Susan Webber Wright ordered that Paula Jones was 
entitled to information concerning any government employee with whom 
the President had sexual relations. On January 7, 1998, Ms. Lewinsky 
signed a false affidavit, stating that she had not engaged in a sexual 
relationship with the President. On January 8, 1998, after Ms. Lewinsky 
believed that her interview with MacAndrews and Forbes in New York had 
gone poorly, Mr. Jordan called the company's CEO, Ron Perelman, to ask 
his assistance with securing employment for Ms. Lewinsky within Mr. 
Perelman's company. All of this activity was done in order to ensure 
that Ms. Lewinsky did not provide damaging testimony against President 
Clinton and thus constituted an effort to obstruct justice in the Paula 
Jones case.
  C. On or about January 18 and January 20-21, 1998, William Jefferson 
Clinton related a false and misleading account of events relevant to a 
Federal civil rights action brought against him to a potential witness 
in that proceeding, in order to corruptly influence the testimony of 
that witness.
  Mrs. Currie was summoned to the White House on Sunday, January 18, 
1998 for a private meeting with President Clinton. The President was 
under court order not to talk about the case to anyone. Nonetheless, 
after telling Mrs. Currie that he had been deposed in the Paula Jones 
case and that Ms. Jones' attorneys had asked the President several 
questions about Ms. Lewinsky, President Clinton then made a series of 
statements to Mrs. Currie:

       I was never really alone with Monica, right?
       You were always there when Monica was there, right?
       Monica came on to me, and I never touched her, right?
       You could see and hear everything, right?

  The testimony of Mrs. Currie and President Clinton demonstrate that 
these statements were an attempt to influence the future testimony of 
Mrs. Currie regarding the President's relationship with Monica 
Lewinsky. President Clinton admitted being alone with Ms. Lewinsky. 
Mrs. Currie also testified that the President and Ms. Lewinsky had been 
alone. Given the fact that President Clinton and Ms. Lewinsky had been 
alone on a number of occasions, a fact that President Clinton would be 
unlikely to forget considering the intimate nature of their encounters, 
the President was not refreshing his memory when he stated to Mrs. 
Currie that he and Ms. Lewinsky had never been alone. President Clinton 
was attempting to improperly persuade Mrs. Currie to testify that he 
and Ms. Lewinsky were never alone.
  Mrs. Currie testified that President Clinton and Ms. Lewinsky were 
alone a number of times. Despite the legal hairsplitting engaged in by 
the White House, I interpret the statement ``You were always there when 
Monica was there, right?'' to mean that President Clinton was 
attempting to improperly persuade Mrs. Currie to testify that Ms. 
Lewinsky was always within Mrs. Currie's sight during her visits to the 
President.
  Based upon Ms. Lewinsky's testimony, President Clinton's statement 
that ``Monica came on to me, and I never touched her, right?'' would 
clearly be false. In addition, because even President Clinton admitted 
to ``inappropriate intimate contact,'' I assume that President Clinton 
is at least admitting to having touched Ms. Lewinsky. As a result, I 
must conclude that President Clinton did touch Ms. Lewinsky. I must 
then further conclude that, because Mr. Clinton was making a statement 
to Mrs. Currie that the President knew to be false, he could only have 
made such a claim in order to improperly persuade Mrs. Currie to 
testify that President Clinton had never touched Ms. Lewinsky.
  In his grand jury testimony, President Clinton admitted that he did 
not allow Mrs. Currie to ``watch whatever intimate activity [the 
President] did with Ms. Lewinsky.'' In addition, when asked whether he 
would ``not have engaged in those physically intimate acts if [the 
President] knew that Mrs. Currie could see or hear that,'' President 
Clinton responded ``[t]hat's correct.'' However, on the Sunday after he 
was deposed in the Paula Jones case, Mr. Clinton told Mrs. Currie ``You 
could see and hear everything, right?'' I find these two concepts to be 
inherently contradictory. President Clinton could not, on the one hand, 
shield Mrs. Currie from seeing or hearing any intimate activity, while, 
on the other hand, be sincerely stating that Mrs. Currie could see and 
hear everything. I must then conclude that President Clinton made this 
statement in an attempt to improperly persuade Ms.

[[Page 2541]]

Currie to testify that President Clinton and Ms. Lewinsky engaged in no 
activity that Mrs. Currie could neither see nor hear.
  D. On or about January 21, 23, and 26, 1998, William Jefferson 
Clinton made false and misleading statements to potential witnesses in 
a Federal grand jury proceeding in order to corruptly influence the 
testimony of those witnesses. The false and misleading statements made 
by William Jefferson Clinton were repeated by the witnesses to the 
grand jury, causing the grand jury to receive false and misleading 
information.
  On January 21, 1998, President Clinton met with Sidney Blumenthal, a 
senior White House aide. During the course of their conversation, Mr. 
Blumenthal asked President Clinton what the President had done wrong. 
According to Mr. Blumenthal, the President responded ``[n]othing'' and 
``I haven't done anything wrong.''
  Mr. Blumenthal asked the President why, if he had done nothing wrong, 
would the President want to appear on television and admit wrongdoing, 
which is what the President implied he wanted to do. At that point, 
according to Mr. Blumenthal, the President stated that ``Monica 
Lewinsky came at me and made a sexual demand on me'' and that the 
President had rebuffed her. Mr. Blumenthal also testified that the 
President claimed that Ms. Lewinsky threatened the President, telling 
him ``that she would tell people they'd had an affair, that she was 
known as the stalker among her peers, and that she hated it and if she 
had an affair or said she had an affair then she wouldn't be the 
stalker any more.''
  According to Mr. Blumenthal, President Clinton also stated that ``I 
feel like somebody who is surrounded by an oppressive force that is 
creating a lie about me and I can't get the truth out.'' When Mr. 
Blumenthal asked the President whether Mr. Clinton had been alone with 
Ms. Lewinsky, the President replied ``I was within eyesight or earshot 
of someone.''
  Based upon the grand jury testimony presented by Ms. Lewinsky and 
President Clinton, and upon the deposition provided to the Senate by 
Ms. Lewinsky as well as the President's failure to provide the Senate 
with a deposition, I have concluded that the statements made by 
President Clinton to Mr. Blumenthal are false. If the President had 
agreed to be deposed by the Senate, his testimony might have 
strengthened the credibility of the statements that he had made to Mr. 
Blumenthal. However, the credibility of such statements have no 
foundation in the evidence presented to the Senate. As a result, I must 
conclude that President Clinton had a motive other than an interest in 
conveying the truth when he made these statements to Mr. Blumenthal.
  President Clinton has tried to argue that the President made these 
statements to Mr. Blumenthal, not to obstruct justice, but merely to 
mislead him. However, when asked whether he knew that Sidney Blumenthal 
and John Podesta might be called into a grand jury, President Clinton 
responded ``That's right.'' Therefore, I must conclude that President 
Clinton lied to Sidney Blumenthal in order to plant false testimony on 
a potential grand jury witness, a witness the President himself admits 
he knew might be called.
  John Podesta testified that President Clinton had told Mr. Podesta 
that the President ``had never had sex with her [Ms. Lewinsky] in any 
way whatsoever.'' Mr. Podesta further testified that President Clinton 
elaborated that the President and Ms. Lewinsky ``had not engaged in 
[sexual activity that falls within the definition of sexual relations 
as President Clinton understood the term to be defined in the Paula 
Jones case].'' As stated above, Mr. Clinton acknowledges that he knew 
that Mr. Podesta might be called as a witness by the grand jury. As 
also discussed above, it is my opinion, based on the evidence, that 
President Clinton and Ms. Lewinsky did engage in sexual activity that 
falls within the definition of sexual relations as President Clinton 
understood the term to be defined in the Paula Jones case. As a result, 
Mr. Clinton lied to Mr. Podesta. In addition, because President Clinton 
knew that Mr. Podesta might be called as a witness by the grand jury, I 
must conclude that the President lied to Mr. Podesta, not simply to 
mislead him and his White House colleagues, but in order to plant false 
testimony on a potential grand jury witness.


                      high crimes and misdemeanors

  Perjury before a Federal Grand Jury and Obstruction of Justice do 
rise to the level of being a ``high crime or misdemeanor'' that is the 
standard set forth in the Constitution for impeachment. Indeed in 
recent years the United States Senate has impeached two federal judges 
for perjury. Were we not to remove the President for the same offense 
we would be breaking established precedent.
  Furthermore, would it be right to set a lower standard for the 
President than the judges he appoints? I think not. The President must 
be held to the same standard, if not a higher one.
  Perjury and obstruction of justice are crimes against the state. 
Perjury goes directly against the truth-finding function of the 
judicial branch of government. If the President can lie under oath, 
others will plead the same defense, sacrificing the truth.
  The President is the Chief Law Enforcement Officer in the land. He or 
she should be the ultimate example of a law-abiding citizen, not one 
who willfully and repeatedly violates the law when it serves his or her 
narrow interest. The unlawful actions by the President will have the 
long term effect of reducing compliance with the law by others if the 
President can get away with it.
  The Constitution states that impeachment and removal is to occur when 
``the President, Vice President and all civil officers'' commit 
``treason, bribery, or other high crimes and misdemeanors.''
  I find bribery and perjury to be offenses of the same nature. Both 
seek to thwart well established legal processes. Bribery seeks to 
produce an outcome different from justice by obscuring our priorities. 
Perjury seeks to produce an outcome different from justice by obscuring 
the truth.
  Obstruction of justice committed by the President undermines the 
entire judicial system and is thus a crime against the nation falling 
clearly in the category of a ``high crime.''


                          concluding comments

  Whether or not the vote taken today is considered a victory for 
President Clinton, it will be, in many ways, a loss for America. We 
have lost many things over the past few months: trust in public 
officials, respect for the rule of law, confidence in the truth of the 
White House's public statements. But perhaps the most tragic loss has 
been the steady erosion of our societal standards.
  It is hard to imagine that a generation or two ago, a majority of 
Americans would have greeted news of Presidential crimes and cover-ups 
with a shrug. We did not expect our leaders to be perfect, but we did 
expect them to provide moral leadership, and to obey the laws they were 
charged with upholding and executing. We expected Presidents to commit 
sins; but we would not allow them to commit crimes. We held the office 
of the Presidency, and the honor of the nation, in the highest esteem.
  We looked to the leaders of our nation as examples to admire, rather 
than avoid. Parents would point to the President of the United States 
and tell their son or daughter that if they worked hard and did right, 
they might one day hold that office. That is not so today. Perhaps in 
the future the admiration of that office can be restored.
  Our loss is compounded by the manner of our response. In many 
quarters, the news of Presidential perjury and obstruction of justice 
has been greeted with a shrug, if not a wink. We are no longer outraged 
by the outrageous. We have grown comfortable with presidential 
misconduct, even as we prosecute, convict, and imprison the less 
powerful for the same crimes.
  If we are to believe the media, much of our reluctance to enforce the 
laws of our land springs from our material concerns. We have heard, 
from many quarters, the assertion that things are good

[[Page 2542]]

in America, we are at peace, the stock market is doing well, so why 
rock the boat? Why shake things up?
  We seem to have forgotten that all of our prosperity would be 
impossible without the rule of law, and without a cultural 
predisposition to honor and uphold the law. Reducing the administration 
of justice to opinion polls debases our country. Putting pocketbook 
concerns over standards of right and wrong impoverishes our culture. If 
we do not sustain the moral and legal foundation on which our system of 
government and our prosperity is based, both will surely and steadily 
diminish.
  The great southern writer Walker Percy once stated that his greatest 
fear for our future was that of ``seeing America, with all of her great 
strength and beauty and freedom . . . gradually subside into decay 
through default and be defeated . . . from within by weariness, 
boredom, cynicism, greed, and in the end, helplessness before its great 
problems.''
  I am optimistic about our future, but this point is an important one. 
America is at a place in history where our great enemies have been 
defeated. Our economy is strong, our incomes up, our expectations high. 
We are the only remaining world superpower.
  Our future looks bright. But our continued success is not a 
historical certainty. It will be determined by the character of our 
nation--by the condition of our culture, as much as our economy. The 
standards we hold--for ourselves, and for our leaders--are a good 
indicator of what we soon shall be.
  For all of the reasons described above, I have chosen, with great 
sadness but firm resolve to vote for the conviction and removal of 
William Jefferson Clinton as President of the United States of America.
  Mr. BRYAN. We are about to embark upon a roll call vote that only one 
other Senate in the history of our Republic has been called upon to 
cast. It is a weighty decision. We have taken an oath that requires us 
to render ``impartial justice according to the Constitution and the 
laws.'' By so doing each of us has undertaken a solemn obligation to be 
fair to the President, fair to the American people, and faithful to our 
constitutional responsibility.
  One hundred thirty-one years ago, the 40th Congress faced a similar 
decision. Then, as now, the Nation was divided. Then, as now, the 
passions of the day raged across the land. Then, as now, the critics of 
the President were in the majority in the Senate. Confounding the 
cynics of that day, the Senate rose above itself by the slenderest of 
margins, a single vote, and acquitted President Andrew Johnson. More 
than a century later, that decision has stood the test of time.
  The Senate's acquittal reaffirmed a basic constitutional doctrine 
that the Executive branch, and the Legislative branch shall be separate 
and co-equal; and that the Executive Branch should not be subservient 
to the prevailing views of a Congressional majority.
  How different the course of our constitutional history might have 
been had President Andrew Johnson been convicted. Our system of 
government today might be more like a parliamentary system undermining 
the independence of the chief executive.
  Future Presidents may have been forced to operate within the 
omnipresent shadow of impeachment whenever a legislative majority was 
hostile to their views or policies. I think it is fair to conclude the 
office of the Presidency would be a profoundly different one had Andrew 
Johnson been convicted. It is in that historical context we meet.
  In this century, there have been five judicial impeachments that have 
reached the Senate. In each of those proceedings, the actions of the 
House and Senate were decided by a bipartisan vote, and all five judges 
were convicted, and removed from office.
  In the history of the Republic, there have been but two presidential 
impeachments, that of Andrew Johnson and William Jefferson Clinton. 
Each Presidential impeachment, however, has come to the Senate under an 
ominous cloud of partisanship.
  The Constitution wisely imposes a heavy burden of proof upon the 
House of Representatives to convict and remove a duly elected 
President. And when that constitutional process is tainted by partisan 
actions, the Articles of Impeachment must be subjected to an additional 
measure of scrutiny.
  The Constitution provides in Article II, Section 4 that ``The 
President . . . shall be removed from office on Impeachment for the 
Conviction of, Treason, Bribery, or other high Crimes and 
Misdemeanors.''
  What constitutes impeachable conduct, as contemplated by the 
Constitution, is the central issue of this trial.
  The Framers of the Constitution labored at some length to fashion an 
impeachment article. As their guide, they looked to the English 
experience in their parliamentary system. They followed that history in 
deciding to involve both the House of Representatives and the Senate 
giving them different roles--the former to charge and impeach, and the 
latter to convict or acquit.
  Unlike the British parliamentary system with its monarch, the Framers 
decided impeachment would apply against its highest office holders, 
expressly including the President. Further, the Framers determined that 
impeachment would in and of itself be limited. Rather than including 
capital punishment and other criminal penalties as a part of 
impeachment as Britain did, the Framers limited impeachment to the 
removal of the individual from office upon conviction.
  As the drafting of the Constitution's impeachment clause proceeded, 
the drafters struggled with how to characterize the offenses for which 
a president could be impeached, convicted, and removed from office. 
Initially, offenses such as ``malpractice'', ``neglect of duty'', and 
``corruption'' were considered. As the Constitutional Convention drew 
to a close, the Convention's Committee of Eleven proposed ``treason or 
bribery'' as the appropriate standard.
  George Mason suggested the addition of ``maladministration'' due to 
his concern that limiting the offenses to only treason or bribery would 
still allow a president to commit ``many great and dangerous offences'' 
which would not be subject to impeachment. [The Records of the Federal 
Convention].
  However, James Madison believed ``maladministration'' was ``. . . 
[s]o vague a term [it] will be equivalent to a tenure during [the] 
pleasure of the Senate.'' [The Records of the Federal Convention]. 
George Mason then proposed the addition of ``high crimes and 
misdemeanors against the State'', which the Committee on Style modified 
by deleting ``against the State'' believing that language unnecessary.
  Alexander Hamilton in Federalist Paper Number 65 argues that the 
Senate could convict and remove a President only for ``those offenses 
which proceed from the misconduct of public men, or in other words from 
the abuse or violation of some public trust. They are of a nature which 
may with peculiar propriety be denominated political, as they relate 
chiefly to injuries done immediately to the society itself.''
  Nearly two centuries later, Charles Black explained in his 
``Impeachment Handbook'', the purpose of impeachment is to protect the 
nation, rather than to punish the individual holding the office of 
president. Thus, the behavior at issue must reach a level of 
endangering the state.
  The House voted to impeach President Clinton on two Articles; perjury 
before the Grand Jury, and obstruction of justice. Two other Articles 
accusing the President of perjury in a deposition in a civil case, and 
of abusing his power by not responding to the 81 requests for admission 
made on November 5, 1998 in a manner the House desired were not 
approved.
  Article I charging perjury is poorly and rather vaguely worded. 
Nevertheless, it appears to contain 11 separate allegations. The House 
Managers in their presentation in Article II allege seven acts of 
Presidential misconduct constituting obstruction of justice.
  The Office of Independent Counsel was authorized by the Attorney 
General of the United States to conduct an investigation of the 
President's relationship with Ms. Lewinsky. Mr. Starr

[[Page 2543]]

has 25 attorneys and 5 non-FBI investigators on his personal staff, and 
access to the virtually unlimited resources of the FBI. The 
investigation continued for eight months culminating in a record of 
over 60,000 pages of materials including sworn testimony from Grand 
Jury appearances, depositions, and sworn statements.
  That the relationship between the President and the Office of 
Independent Counsel was a contentious one, is beyond dispute. Mr. Starr 
has been an aggressive Special Prosecutor. Many believe that his 
prosecutorial zeal violated any reasonable standard of fairness. He has 
been no shrinking violet in his pursuit of the President.
  Yet even Mr. Starr and his staff, after careful analysis, concluded 
that 8 of the 11 allegations of perjury before the Grand Jury, and one 
of the allegations of obstruction of justice lacked sufficient 
prosecutorial merit to be submitted to the House. Certainly, it cannot 
be contended that these allegations can sustain the burden of proof to 
establish the President's guilt, or to rise to the level of impeachable 
conduct necessary to remove a duly elected president.
  The Constitution's impeachment process was not created to mete out 
punishment against the individual serving as President. Rather, the 
impeachment process is to protect the nation from a President who has 
brought grave harm to the office and to the country. These are 
distinctly different goals.
  As is so often the case, the American people have a clear 
understanding of the circumstances that bring us together.
  The President had an improper relationship in the White House with a 
22-year-old intern.
  The President lied to his family, his staff and the American people 
in denying the existence of the relationship.
  The President pursued a course of conduct to conceal his improper 
relationship with the White House intern.
  The President's conduct was wrong and it was immoral. It remains for 
us to determine the constitutional consequences, if any, to be attached 
to this conduct.
  The House Managers rely heavily upon circumstantial evidence and draw 
from that evidence a series of inferences which lead them to conclude 
that the President is guilty of perjury and obstruction of justice.
  The President's counsel artfully attack the weaknesses in the 
Managers' case and assert that exculpatory direct evidence raises 
sufficient doubt under the law, and therefore, the President is 
entitled to be acquitted.
  On this record, as one of the House prosecutors pointed out 
reasonable people can differ as to the conclusions they reach.
  It is acknowledged that the House Managers have the burden of proof 
in establishing the President's guilt under legal definitions. Open to 
question is the standard of proof to be applied, a mere preponderance 
of the evidence as in a civil trial, clear and convincing evidence as 
in alleging fraudulent behavior, or beyond a reasonable doubt as in a 
criminal case.
  The House alleges that specific crimes have been committed, to wit 
perjury and obstruction of justice as defined in law. Under these 
circumstances, I believe the appropriate standard is the criminal 
standard--proof beyond a reasonable doubt.
  But is it impeachable conduct? Does it rise to the constitutionally 
required standard of bribery, treason or other high crimes and 
misdemeanors. I think not.
  The President's conduct is boorish, indefensible, even reprehensible. 
It does not threaten the Republic. It does not impact our national 
security. It does not undermine or compromise our position of 
unchallenged leadership in international affairs.
  Although I conclude that the evidence presented in this case does not 
reach the standard commanded by the Constitution to convict and remove 
a President, it does not follow that we are precluded from registering 
our strong disapproval of the President's personal conduct.
  There is a way. After our vote on these Articles of Impeachment, and 
assuming, as most believe, there are not the votes to convict the 
President--the Senate should proceed immediately to adopt a bipartisan 
resolution of censure.
  It is important for us to do this. There are two reasons. First, the 
American people need to hear from us in strong and unambiguous language 
that the President's personal conduct is unacceptable and unworthy of 
the President of the United States.
  The record of these proceedings must also reflect that the acquittal 
of the President can in no way be construed as an exoneration of his 
conduct. A censure resolution should not be embarked upon lightly or 
for political reasons, but it should be used in this case.
  And finally, a response to the injunction that we have frequently 
heard over the past several weeks: that no man is above the law. That 
is a core value. It goes to the very essence of our beliefs as 
Americans. No violence is done to this sacred principle by pursuing the 
course of action I have chosen.
  For those who believe that the President is guilty of perjury and 
obstruction of justice--criminal offenses--there is a forum available 
for that determination. It is our criminal justice system and William 
Jefferson Clinton may be called to the bar of justice to respond to 
these criminal charges--armed with no greater legal protection than 
that accorded the most humble among us. And that is how it should be.
  Mr. ASHCROFT. When the impeachment trial began on January 7th, I took 
an oath to render ``impartial justice according to the Constitution and 
laws: So help me God.'' This oath distinguishes impeachment from all my 
other responsibilities in the Senate. Although the Constitution 
requires Senators to take an oath of office and gives the Senate 
numerous powers and responsibilities, only the obligation to try 
impeachments demands the swearing of a special, separate oath. While 
many commentators have sought to mark this trial as a political event, 
the oath leaves room only for impartial justice. I interpret this oath 
as requiring that I decide this case based on the evidence in the 
record, the arguments of the parties, and the applicable law--and on no 
other basis.
  If I were to look beyond the evidence in the case, to public opinion 
polls, then a path to a decision would be clear. A large majority of 
Americans, for example, believe that the President committed perjury, 
but do not think that he should be removed from office. I am sure that 
those surveyed considered a variety of factors and did not limit 
themselves to the Senate record. More than anything else, these poll 
results reflect the American people's capacity for forgiveness. I share 
this desire to forgive the President for his admitted mistakes. 
However, the forgiveness we grant in our capacity as individuals must 
be distinguished from the government's responsibility to remedy 
wrongdoing. We routinely ask jurors to sentence defendants in 
accordance with the law, even though they may forgive the defendant. 
That is the same responsibility that the Constitution and my oath 
impose on me in this proceeding.
  On the other hand, if I were simply to vote my conscience as to 
whether I believe the President's continued service is good for our 
country and our culture, that is a clear path as well. From the very 
outset, I have stated consistently that if the allegations were true 
concerning the President's relationship with Ms. Lewinsky, then the 
President has disgraced himself and his office, and should resign. In 
my view, the confessed facts of the President's conduct in the Oval 
Office make his continued presence an obstacle to the healing our 
culture. The honorable course would be for the President to resign, to 
allow the nation to heal from the wounds he has inflicted.
  My oath, however, forecloses either of these paths, and instead 
forces me to undertake the far more difficult task of sifting through 
the record, weighing evidence, determining credibility and reaching a 
final, impartial judgment on the articles of impeachment. As a result, 
I cannot explain my judgment by resort to any grand principles or by 
broad statements about my opinion of

[[Page 2544]]

the President as a leader. I can only explain my vote through a 
detailed examination of the articles of impeachment, the evidence 
presented and the relevant law.


                     article i--grand jury perjury

  The first article of impeachment charges President Clinton with 
committing perjury before the grand jury when he testified on four 
subjects. Attorneys for the President complain that the House Managers 
failed to specify the particular grand jury statements of the President 
that constituted perjury. I agree that the President deserves 
sufficient specificity to provide him the basis for a defense. However, 
during the course of the House Managers' presentation it became clear 
that the perjury allegations focused on a handful of specific 
statements the President made to the grand jury.


       the president and ms. currie--refreshing memory with lies

  Perhaps the single most obvious instance of a false statement by the 
President stems from his explanation of his conversations with Ms. 
Betty Currie in the days immediately following his deposition testimony 
in Jones v. Clinton. Ms. Currie told the grand jury that on the evening 
of his deposition the President called her and requested that she make 
a rare Sunday appearance at the White House. When she arrived, the 
President called her in and confronted her with an unusual series of 
statements and questions, including: ``Monica came on to me, and I 
never touched her, right?''; ``You were always there when Monica was 
there, right?''; and ``I was never really alone with Monica, right?'' 
(See Sen. Rec. Vol. IV, part 1 at 559-60; Ms. Currie 1/27/98 GJ at 70-
75.). When the President was asked to explain this conversation to the 
grand jury, he stated that he was ``trying to refresh [his] memory 
about what the facts were.'' (See Sen. Rec. Vol. III, part 1 at 651; 
Mr. Clinton 8/17/98 GJ, at 131.) (See also Sen. Rec. Vol. III, part 1 
at 593-94; Mr. Clinton 8/17/98 GJ, at 141-42 (Q: ``[Y]ou are saying 
that your only interest in speaking with Ms. Currie in the days after 
your deposition was to refresh your own recollection? A: Yes.''))
  This statement is demonstrably false. A person cannot refresh his or 
her memory by repeating lies. The President's leading questions were 
falsehoods. The President knew that he had been alone with Ms. 
Lewinsky, knew that they had been together outside of Ms. Currie's 
presence, and knew that he had touched Ms. Lewinsky. Repeating these 
falsehoods to Ms. Currie could not have refreshed the President's 
memory ``about what the facts were.''
  What is more, Ms. Currie testified that the President reviewed these 
same statements and questions with her again two or three days later. 
(See Sen. Rec. Vol. IV, part 1, at 560-61; Ms. Currie 1/27/98 GJ, at 
80-82.) The President does not have specific memory of this second 
conversation, but does not dispute Ms. Currie's recollection. If the 
President were trying to refresh his memory, he would not go through 
the same questions again two or three days later. However, if the 
President were trying to coach Ms. Currie's testimony and ensure that 
her version of events was consistent with his false deposition 
testimony, then rehearsing these questions and answers a second time 
would be helpful. Based on all the evidence, I have concluded beyond a 
reasonable doubt that the President's testimony concerning these 
conversations with Ms. Currie was false. The evidence clearly shows 
that the President gave false testimony to the grand jury in order to 
cover up his illegal effort to influence Ms. Currie's testimony.


                   the president's lies to his aides

  Another clear example of a false statement by the President in his 
grand jury testimony is his claim that he was truthful with his aides 
in discussing his relationship with Ms. Lewinsky. The exact nature of 
what the President said to his aides in the immediate aftermath of his 
deposition was of interest to the grand jury as part of its 
investigation of whether the President obstructed justice. When asked 
about these conversations, the President told the grand jury that ``I 
said to them things that were true about this relationship.'' (See Sen. 
Rec. Vol. III, part 1, at 558; Mr. Clinton 8/17/98 GJ, at 106.)
  The testimony of the President's own aides, however, makes it clear 
that the President was not truthful with his aides. He did not mislead 
them, he lied to them. For example, one presidential aide, John 
Podesta, testified that the President told him that he did not have sex 
with Ms. Lewinsky ``in any way whatsoever'' and provided additional, 
more detailed denials concerning the relationship. (See Sen. Rec. Vol. 
IV, part 3, at 3311; Mr. Podesta 6/16/98 GJ, at 92.) Sidney Blumenthal, 
another presidential aide, testified that the President told him that 
``Ms. Lewinsky came at me and made a sexual demand on me,'' that he 
``rebuffed her,'' and that Ms. Lewinsky ``was known as the stalker.'' 
(See Sen. Rec. Vol. IV, part 1, at 185; Mr. Blumenthal 6/4/98 GJ, at 
49.) In his Senate deposition Mr. Blumenthal unequivocally stated that 
he now believes the President lied to him. (See Congressional Record 
S1249; Mr. Blumenthal 2/3/99 Dep.) As the President's closest aides 
have conceded, the President was not truthful with them. In reviewing 
all the evidence, it is clear beyond a reasonable doubt that the 
President was not truthful with his aides and that his grand jury 
testimony concerning these discussions was false.


   the president's testimony about his relationship with ms. lewinsky

  The first example included in the grand jury perjury article approved 
by the House focuses on the President's grand jury testimony concerning 
``the nature and details of his relationship with'' Ms. Lewinsky. His 
testimony on this matter also appears to be false.
  Although some of the detailed testimony underlying this example of 
perjury is nothing short of sordid, the President's lack of credibility 
on this matter is straightforward. For a number of months last year, 
Ms. Lewinsky was on record as having told federal investigators that 
she and the President had engaged in a sexual relationship. The 
President publicly and repeatedly denied the truth of these 
allegations. It was a classic ``he said, she said'' situation. Then 
physical evidence of a sexual relationship between the President and 
Ms. Lewinsky was discovered. After this physical evidence came to 
light, it ceased to be a ``he said, she said'' situation. He changed 
his story and admitted an ``inappropriate intimate relationship'' to a 
federal grand jury, while she was vindicated.
  However, the President declined to follow his oath to tell the grand 
jury the whole truth and admit the true nature of the relationship. 
Instead, the President attempted to walk an impossibly fine line, 
admitting to a relationship which involved sufficient contact to 
explain the physical evidence but insufficient contact to make the 
President's earlier deposition statements about the relationship 
perjurious. The President's testimony on this matter, therefore, was at 
the heart of the grand jury's investigation into whether the President 
committed perjury in the Jones case. The physical evidence strongly 
suggested that the President had committed perjury in his deposition, 
and this grand jury testimony was the basis for his defense. The 
President's testimony flatly contradicts Ms. Lewinsky's testimony 
concerning the nature and details of their relationship. Ms. Lewinsky's 
testimony provides a much more plausible explanation of the physical 
evidence, and makes clear that the President perjured himself in his 
sworn deposition testimony.
  With respect to the nature and details of their relationship we are 
once again present with a ``he said, she said'' situation. But now 
there are two differences. First, the President's implausibly contorted 
version of events appears to be tailored precisely to avoid admitting a 
prior perjury. Second, we have the benefit of a prior ``he said, she 
said'' dispute between the same two people, in which subsequent 
evidence conclusively proved that she was telling the truth and he was 
lying. Under these circumstances, I am convinced beyond a reasonable 
doubt that the President lied about ``the nature

[[Page 2545]]

and details of his relationship'' with Ms. Lewinsky.


          the president's testimony concerning his deposition

  The House included two other examples of grand jury perjury in the 
first article of impeachment. The article alleges that the President 
lied to the grand jury concerning both his prior, perjurious deposition 
testimony and whether he was paying attention to his lawyer's 
statements during that same deposition. While there is considerable 
evidence that supports the notion that the President did lie to the 
grand jury regarding these two matters, I am not convinced beyond a 
reasonable doubt that the President's statements on these matters 
constitute perjury.
  The President began his grand jury testimony with the assertion that 
he was truthful in his deposition testimony. However, later in his 
grand jury testimony, the President clarified and corrected much of his 
false and misleading deposition testimony. As a result, it is clear 
that the President's claim that his deposition testimony was truthful 
was itself a false statement. However, it is equally clear that this 
false statement cannot form the basis for a perjury conviction for two 
reasons. First, when viewed in its entirety, the President's grand jury 
testimony makes this one statement immaterial. It is the equivalent of 
the statement of a murderer who begins his confession with the 
statement that ``I didn't do anything wrong.'' Second, in light of the 
House's decision to reject a separate article focusing on deposition 
perjury, I am uncomfortable allowing this one line to be used as a 
means to ``backdoor'' allegations that the President lied in that 
forum.
  The allegation that the President lied to the grand jury when he 
testified that he was not paying attention to his lawyer when he used 
Ms. Lewinsky's affidavit to deny that there was any sexual relationship 
between the President and Ms. Lewinsky is a closer matter. During the 
President's deposition in the Jones case, the President's lawyer, Mr. 
Bennett, argued to the Court that Ms. Lewinsky's affidavit demonstrated 
``there is absolutely no sex of any kind in any manner, shape or form'' 
between the President and Ms. Lewinsky. (See Sen. Rec. Vol. XIV, at 
23).
  The President allowed his lawyer to make this representation to the 
Court, even though the President knew that representation and the 
underlying affidavit were both false. When confronted with these facts 
before the grand jury, the President attempted to excuse his behavior 
with the claim that he was not paying attention and this ``whole 
argument just passed me by.'' (See Sen. Rec. Vol. III, part 1, at 481; 
Mr. Clinton 8/17/98 GJ, at 29). The available evidence and common sense 
suggest that the President was paying attention. I have reviewed the 
videotape of the President's deposition, and he appears to be paying 
attention to his lawyer before, during and after his lawyer's 
representation. Common sense suggests the President was paying 
attention because his lawyer made this statement in an effort to keep 
the President from answering a question the Jones lawyer had just 
directed to him. The President would have needed to pay attention to 
the question in order to answer it, and it is hard to believe he would 
have tuned out his lawyer's objection to the question.
  What is more, in light of the President's admitted fears about the 
true nature of his relationship with Ms. Lewinsky becoming public, it 
is implausible that he would have not paid attention to his lawyer's 
efforts to use the Lewinsky affidavit to prevent questioning about 
their relationship. The President does not dispute that he suggested 
that Ms. Lewinsky file an affidavit in a December 17, 1997, telephone 
call. The President's stated objective in suggesting the filing of an 
affidavit was to keep Ms. Lewinsky from becoming an issue in the Jones 
litigation. The notion that the President would not pay attention to 
his lawyer's efforts to have that suggestion bear fruit strains 
credulity. Finally, it is worth noting that immediately following Mr. 
Bennett's representation, the presiding judge cautioned Mr. Bennett 
against coaching the witness. That caution would not have been 
necessary had the witness, Mr. Clinton, not been paying attention to 
his lawyer's words.
  If I were applying a preponderance of the evidence or a clear and 
convincing evidence standard, I certainly would reject the President's 
claim that the ``whole argument just passed me by.'' However, applying 
a beyond a reasonable doubt standard, I have reached a different 
conclusion. The problem for me is that the President's statement 
concerns his own mental state. Although the evidence and common sense 
suggest the President was paying attention to Mr. Bennett, I have not 
been able to remove all doubts from my mind on this score.


                The Legal Elements Of Grand Jury Perjury

  On the other hand, I am convinced beyond a reasonable doubt that the 
President made false statements to the grand jury concerning his 
conversation with Ms. Currie, his statements to other aides, and the 
nature and details of his relationship with Ms. Lewinsky. Moreover, in 
light of the legal standards for grand jury perjury, I am convinced the 
President's conduct satisfies every element of felony perjury under 
section 1623 of the federal criminal code, Title 18. There are five 
elements to the crime of grand jury perjury. To constitute perjury a 
statement must be made under oath, before a grand jury, with intent, 
and the statement must be both false and material.
  I have already discussed why I have concluded that these statements 
were false, and there is no question that they were made under oath to 
a grand jury. The only two remaining elements are intent and 
materiality. Neither of these standards is difficult to satisfy in the 
context of grand jury perjury. Congress passed a special statute, 
section 1623, to make it easier to prosecute grand jury perjury out of 
a recognition that grand jury perjury is a more serious threat to the 
administration of justice than other perjuries. As a result, the intent 
requirement is not demanding--the defendant need only make the 
statement with knowledge of its falsity. As the well-respected American 
Criminal Law Review published by Georgetown University concludes: 
``Section 1623, unlike 1621 [the general perjury statute], does not 
require proof that the allegedly false testimony was submitted 
willfully. Rather, it requires that such testimony was knowingly stated 
or subscribed. This requirement is ordinarily satisfied by proof that 
the defendant knew his testimony was false at the time he provided 
it.''
  The one thing that emerges from the presentations made by both the 
White House and the House Managers is that the President made his grand 
jury statements with a great deal of forethought and precision. The 
President's false statements did not result from inadvertence or 
confusion. The President knew these statements were false. For example, 
he knew full well that his conversation with Ms. Currie was not 
designed to refresh his memory.
  Likewise, the materiality standard is easily satisfied in this case. 
Courts are generally quick to find grand jury perjury to be material in 
deference to the broad investigatory authority of a federal grand jury. 
As the Second Circuit observed in United States v. Kross, 14 F.3d 751, 
754 (2d Cir.), cert. denied, 513 U.S. 828 (1994): ``Because the grand 
jury's function is investigative, materiality in that context is 
broadly construed.'' The grand jury in this case was investigating 
whether the President committed perjury in his Jones deposition or 
obstructed justice in the Jones lawsuit. Specifically, the grand jury 
was concerned that the President may have lied in denying a sexual 
relationship with Ms. Lewinsky and obstructed justice by coaching Ms. 
Currie and his other aides. Therefore, the President's grand jury 
testimony concerning what he said to his aides and the nature of his 
relationship with Ms. Lewinsky was directly relevant to the grand 
jury's investigation. The President's statements were not just 
material--they were at the heart of the grand jury's inquiry.


                     The President's Legal Defenses

  Lawyers for the President raised a number of legal smoke screens in 
his defense that do not change the ultimate conclusion that the 
President

[[Page 2546]]

committed perjury. For example, they emphasize the so-called Bronston 
defense, in which a misleading statement does not constitute perjury if 
it is technically true. However, the Bronston defense provides no 
defense to a statement that is literally false. As United States 
Supreme Court Justice Breyer, while still on the First Circuit, 
observed: ``The Bronston Court held only that a defendant cannot be 
convicted of perjury for true but misleading statements, not that a 
defendant is immune from prosecution for perjury whenever some 
ambiguity can be found by an implausibly strained reading of the 
questions he is asked.'' United States v. Doherty, 867 F.2d 47, 69 (1st 
Cir.), cert. denied, 492 U.S. 918 (1989).
  Likewise, the White House has attempted to rely on the two-witness 
rule--i.e., the notion that a perjury prosecution cannot rest on an 
oath versus an oath. That rule of law would not apply here if it were a 
correct statement of the law because there is ample corroborating 
evidence. But the truth of the matter is that section 1623 expressly 
rejects the two-witness rule, stating that: ``it shall not be necessary 
that such proof be made by any particular number of witnesses.'' As the 
American Criminal Law Review puts it: ``the obvious purpose of this 
language [is] to prevent the application of the two-witness rule in 
section 1623 prosecutions.'' That view is supported by the Supreme 
Court's analysis of the purpose of section 1623 in Dunn v. United 
States, 442 U.S. 100, 108 & n.6 (1979).
  In the end, the White House's legal arguments cannot obscure the fact 
that the President committed perjury in his grand jury testimony. The 
House Managers successfully carried their burden. They proved the facts 
underlying the first article of impeachment beyond a reasonable doubt, 
and the evidence satisfied every element of proof for grand jury 
perjury.


        article ii--obstruction of justice and witness tampering

  The second article of impeachment approved by the House alleges that 
the President obstructed justice and provides seven examples of 
specific conduct that obstructed justice either in the Jones litigation 
or in the federal grand jury's investigation. I have examined each of 
these examples in detail and will share my analysis. As with perjury, 
perhaps the clearest example of obstruction of justice stems from the 
President's conversation with Ms. Currie the day after his sworn 
deposition testimony in the Jones case.


                    coaching ms. currie's testimony

  As noted in the discussion of perjury, the President called in Ms. 
Currie the day after his sworn deposition testimony and confronted her 
with a series of questions and answers, such as ``Monica came on to me, 
and I never touched her, right?''; ``You were always there when Monica 
was there, right?'' and ``I was never really alone with Monica, 
right?''; (See Sen. Rec. Vol. IV, part 1, at 559-560; Ms. Currie 1/27/
98 GJ, at 70-75.). According to Ms. Currie, the President repeated this 
rehearsal of questions and answers two or three days later. As 
discussed earlier, the President's explanation for this conversation--
that he was trying to refresh his memory--is simply not credible. The 
true purpose of these conversations becomes clear in light of the 
President's sworn deposition testimony. On several occasions during his 
deposition, the President invoked Ms. Currie's name in answering 
questions concerning his relationship with Ms. Lewinsky. Indeed, at one 
point, the President specifically directed the Jones lawyers to ``ask 
Betty whether Ms. Lewinsky was alone with him or with Ms. Currie 
between the hours of midnight and 6:00 a.m. (See Sen. Rec. Vol. XIV, at 
35).
  In other words, during his deposition, the President attempted to use 
Ms. Currie as an alibi witness to deny that he had been alone with Ms. 
Lewinsky. It is telling in this regard that in his conversation with 
Ms. Currie the President sought Ms. Currie's agreement that ``he was 
never alone with her, right?'' This was the exact point as to which the 
President directed the Jones' lawyers to ``ask Betty.'' In short, 
having invoked Ms. Currie as an alibi in his deposition, the President 
wasted no time in contacting Ms. Currie and making sure her story would 
square with the President's sworn testimony. Indeed, the President 
contacted Ms. Currie and explained that Ms. Lewinsky's name had come up 
during the deposition despite Judge Wright's admonition not to discuss 
the deposition with anyone other than his lawyers.
  There is simply no innocent explanation for this conversation with 
Ms. Currie. It was a violation of Judge Wright's order. It was not an 
attempt to refresh the President's memory. Instead, the evidence shows 
beyond a reasonable doubt that this was an unlawful attempt to obstruct 
justice by altering Ms. Currie's testimony in the Jones case.


          the president, ms. lewinsky, and the false affidavit

  This coaching of Ms. Currie is not the only example of obstruction of 
justice by the President. For instance, the first example cited in the 
obstruction of justice article alleges that the President corruptly 
encouraged Ms. Lewinsky to file a false affidavit in the Jones 
litigation. The President does not dispute that he called Ms. Lewinsky 
at 2:30 a.m. in the morning on December 17, 1997, to inform her that 
she was on the witness list in the Jones case. The President likewise 
does not dispute that he hoped Ms. Lewinsky would not have to testify 
and suggested to her that she could file an affidavit to reduce her 
chances of being deposed or called to testify in the Jones proceeding. 
(See Sen. Rec. Vol. III, part 1, at 567-73; Mr. Clinton 8/17/98 GJ, at 
115-121). The President's defense is that although he wanted Ms. 
Lewinsky to file an affidavit to avoid testifying, he did not want her 
to file a false affidavit. As the President put in his grand jury 
testimony, ``I did hope she'd be able to get out of testifying on an 
affidavit? Absolutely. Did I want her to execute a false affidavit? No, 
I did not.'' (See Sen. Rec. Vol. III, part 1, at 571; Mr. Clinton 8/17/
98 GJ, at 119). This claim that an affidavit could be both truthful and 
result in a reduced chance of Ms. Lewinsky testifying is critical to 
the President's defense because it is a crime to corruptly persuade a 
potential witness to delay or prevent their testimony.
  The fundamental problem with the President's defense is that a 
truthful affidavit that disclosed the nature of his relationship with 
Ms. Lewinsky would have been inconsistent with the President's stated 
goal of reducing her chances of being called to testify. A truthful 
affidavit would have guaranteed that Ms. Lewinsky would have been 
called as a witness. It is folly to suggest that an affidavit that 
admitted the relationship but emphasized its consensual nature could 
have prevented Ms. Lewinsky from being called. Judge Wright had already 
approved discovery of government employees involved in relationships 
with the President without regard to whether they were consensual.
  Additional evidence that the President encouraged Ms. Lewinsky to 
file a false affidavit comes from the President's revival of previously 
developed cover stories in this same 2:30 a.m. telephone conversation. 
Specifically, according to Ms. Lewinsky, the President reminded her 
that ``you can always say you were going to see Betty or that you were 
bringing me letters?'' (See Sen. Rec. Vol. III, part 1, at 843; Ms. 
Lewinsky 8/6/98 GJ, at 123). To be sure, Ms. Lewinsky has testified 
that the ideas of filing an affidavit and using the cover stories were 
not explicitly linked in her mind. However, there must have been some 
implicit link, in fact, because Ms. Lewinsky's draft affidavit featured 
one of the cover stories. Although it was dropped in the editing 
process to eliminate any suggestion that the President and Ms. Lewinsky 
were alone, the draft affidavit suggested that Ms. Lewinsky had brought 
the President papers.
  In addition, the notions that the President wanted Ms. Lewinsky to 
file a false affidavit and that only a false affidavit would have the 
desired effect of keeping Ms. Lewinsky from being called as a witness 
are supported by the fact that the filed affidavit was false. The 
affidavit Ms. Lewinsky filed

[[Page 2547]]

was false, in the following particulars: (1) it stated that Ms. 
Lewinsky did not ``possess any information that could possibly be 
relevant to the allegations made by Paula Jones . . .'', (2) it stated 
that on the occasions on which Ms. Lewinsky saw the President after she 
left employment at the White House in April 1996 were official 
receptions and formal functions related to her job, and that ``there 
were other people present on those occasions,'' and (3) it stated 
that--contrary to the President's admission before the grand jury that 
he and Ms. Lewinsky had an inappropriate intimate relationship--``the 
President . . . always behaved appropriately in my presence.'' (See 
Sen. Rec. Vol. III, part 1, at 1235). Moreover, any doubt about the 
falsity of Ms. Lewinsky's affidavit is removed by her decision to enter 
into an immunity agreement to prevent her prosecution for perjury with 
respect to the affidavit.
  Finally, the President's claim that he did not want Ms. Lewinsky to 
file a false affidavit is belied by the fact that the President allowed 
his attorney to use the false affidavit in an effort to keep the Jones 
lawyers from questioning him about his relationship with Ms. Lewinsky. 
The President's attorney, Mr. Bennett, relying on the Lewinsky 
affidavit, represented to the Court that ``there is absolutely no sex 
of any kind in any manner, shape or form, with President Clinton.'' 
(See Sen. Rec. Vol. XIV, at 23). Mr. Bennett expressly told the court 
that the President was ``fully aware of Ms. Lewinsky's affidavit.'' 
(See Sen. Rec. Vol. XIV, at 23). It is difficult to credit the 
President's claim that he did not want Ms. Lewinsky to file a false 
affidavit when he allowed his lawyer to use a false affidavit--of which 
he was ``fully aware''--to keep him from being questioned about Ms. 
Lewinsky.
  The House has alleged that the President's decision to allow Mr. 
Bennett to use this affidavit--knowing it to be false--was an 
additional example of obstruction of justice. I am not convinced that 
the President's failure to correct his attorney's representation to the 
Court amounts to an obstruction of justice. However, the President's 
actions in allowing his attorney to use a false affidavit to his 
litigation advantage undermines his claim that he never wanted Ms. 
Lewinsky to file a false affidavit. When all the evidence is 
considered, it is clear beyond a reasonable doubt that the President 
wanted Ms. Lewinsky to file a false affidavit.


                           the cover stories

  The second example cited by the House in its obstruction of justice 
article was the President's suggestion that Ms. Lewinsky could use 
cover stories to disguise the true nature of their relationship from 
the Jones lawyers. These cover stories, of course, were used by the 
President and Ms. Lewinsky long before her name appeared on the witness 
list in the Jones litigation. As a result, the cover stories--that she 
was visiting Ms. Currie or bringing the President papers--were 
instantly familiar to Ms. Lewinsky. But even though these cover stories 
were not criminal--only deceptive--in their origins, the President's 
revival of these cover stories after Ms. Lewinsky became a witness in a 
civil suit against the President stands on a very different footing.
  The President's reiteration of the cover stories in the same 
conversation that he told her she was on the witness list is evidence 
of an effort to alter her testimony. As demonstrated above, Ms. 
Lewinsky included one of the cover stories in her false draft 
affidavit. Although the President emphasizes that the cover stories had 
an element of truth to them, that claim is not a defense to a witness 
tampering or obstruction of justice charge. For the federal witness 
tampering statute it is enough that the President attempted to 
influence Ms. Lewinsky's testimony through corrupt or misleading 
conduct, see 18 U.S.C. 1512, and for obstruction of justice it is 
enough that the President endeavored to influence the due 
administration of justice, see 18 U.S.C. 1503. As a result, the 
President's revival of the cover stories constituted obstruction of 
justice. His actions obstructed the true course of justice and denied 
an American citizen a fair hearing of her claim.


                           The Gift Exchange

  The third example of obstruction of justice cited in the House 
article concerns the efforts to conceal the President's gifts to Ms. 
Lewinsky from the Jones lawyers. The House alleges that the President 
orchestrated a scheme by which Ms. Lewinsky concealed the gifts from 
the Jones lawyers by conveying them to Ms. Currie. In defending against 
this charge, the President must overcome the undisputed fact that the 
gifts sought by the Jones lawyers ended up beneath the President's 
personal secretary's bed.
  These gifts clearly were relevant evidence in the Jones litigation. 
The subpoena served on Ms. Lewinsky required the production of ``each 
and every gift including but not limited to, any and all dresses, 
accessories, and jewelry, and/or hat pins given to you by, or on behalf 
of, Defendant Clinton.'' (See Sen. Rec. Vol. III, part 2, at 2704.) Ms. 
Lewinsky discussed this subpoena with the President on December 28, 
1997, and both expressed their concern that the subpoena covered the 
hat pin. Ms. Lewinsky testified that when the subject of what to do 
with the gifts came up the President responded: ``I don't know'' or 
``let me think about it.'' (See Sen. Rec. Vol. III, part 1, at 872; Ms. 
Lewinsky 8/6/98 GJ, at 152.) The President, by contrast, told the grand 
jury that he instructed Ms. Lewinsky that if the Jones' lawyers ``asked 
for the gifts, [Ms. Lewinsky would] have to give them whatever she had, 
that that's what the law was.'' (See Sen. Rec. Vol. III, part 1, at 
495; Mr. Clinton 8/17/98 GJ, at 43.)
  Ms. Lewinsky left the White House and returned home only to receive a 
call in which Ms. Currie told her, ``I understand that you have 
something to give me'' or ``the President said you have something to 
give me.'' (See Sen. Rec. Vol. III, part 1, at 874; Ms. Lewinsky 8/6/98 
GJ, at 154-55.) Ms. Currie does not recall making this call, and 
instead suggests that Ms. Lewinsky initiated the gift exchange. It is 
uncontroverted, however, that Ms. Currie went to Ms. Lewinsky's 
apartment to pick up the gifts and that those gifts were stored under 
Ms. Currie's bed. The net result of these events is that the gifts that 
evidenced a relationship the President was trying to conceal in 
litigation against him were kept from the Jones lawyers. This net 
result makes the President's sworn testimony that he directed Ms. 
Lewinsky to turn over the gifts difficult to credit. It is difficult to 
believe that Ms. Lewinsky would disregard the President's advice on 
this issue.
  This evidence makes it more likely than not than the President 
obstructed justice by orchestrating the concealment of the gifts. 
However, to prove obstruction of justice, the House must show that the 
President directed Ms. Currie to pick up the gifts. That is the missing 
link in the House's case. Although that is the most likely explanation 
for the concealment of the gifts, both parties to that conversation--
Ms. Currie and the President--deny that such a discussion took place. 
As a result, there is a reasonable doubt in my mind as to whether the 
President obstructed justice by concealing the gifts, and I find this 
issue in his favor.


                             The Job Search

  The next example of obstruction cited by the House is the job search. 
The evidence is clear that the President asked Vernon Jordan to help 
Ms. Lewinsky find a job in New York City. Mr. Jordan was unequivocal 
that he, not Ms. Lewinsky, was running the job search, and that he was 
finding Ms. Lewinsky a job at the ``behest'' of the President. (See 
Cong. Rec. S1245; Mr. Jordan Dep. 2/2/99). This word choice is telling. 
The Dictionary defines ``behest'' as ``an authoritative order,'' or 
secondarily as ``an urgent prompting,'' and suggests ``command'' as a 
synonym. Merriam-Webster's Collegiate Dictionary (Tenth Edition 1993) 
p. 103.
  The only remaining question is whether the President directed Mr. 
Jordan to find Ms. Lewinsky a job in order to get Ms. Lewinsky to 
``withhold testimony, or withhold a record, document or other object, 
from an official proceeding,'' or for some other purpose. In evaluating 
this issue, the President's past failure to provide job

[[Page 2548]]

assistance to Ms. Lewinsky is relevant. Since Ms. Lewinsky left the 
White House in April 1996, she was anxious to get back and enlisted the 
President's support. He never helped her return to the White House. 
Eventually, Ms. Lewinsky despaired of ever receiving any job assistance 
from the President to help her return to the White House and turned her 
sights to a job in New York. Once again, the President's level of job 
assistance was underwhelming until Ms. Lewinsky's name appeared on the 
witness list in the Jones case. At that point, Mr. Jordan, at the 
``behest'' of the President, put the job search into full gear.
  However, Mr. Jordan's involvement with Ms. Lewinsky was not limited 
to finding her a job. He also found her a lawyer, a lawyer who oversaw 
the filing of an affidavit that turned out to be false. The same 
affidavit the President suggested Ms. Lewinsky could file in their late 
night telephone call. The same affidavit that the President's lawyer 
attempted to use to keep the Jones lawyers from questioning the 
President about Ms. Lewinsky.
  Mr. Jordan also shared a breakfast with Ms. Lewinsky in which they 
discussed draft notes between Ms. Lewinsky and the President. Mr. 
Jordan initially denied that this breakfast meeting had taken place. 
However, when confronted with a receipt for breakfast, Mr. Jordan 
conceded the meeting took place and that the subject of the notes came 
up. Ms. Lewinsky testified that Mr. Jordan told her to make sure that 
those incriminating notes were destroyed. Mr. Jordan denies that he 
gave her that advice. Ms. Lewinsky's testimony on this subject is 
certainly entitled to great weight because she has consistently 
remembered the breakfast and what transpired, while Mr. Jordan 
previously denied that the breakfast had occurred. But this conflict in 
the testimony need not be resolved. Mr. Jordan is not on trial. The 
President is, and the fact that the person he designated to get Ms. 
Lewinsky a job was also discussing incriminating notes relevant to the 
Jones litigation and finding her a lawyer to file an affidavit in that 
case undermine the President's claim that the job search and the Jones 
litigation were unrelated.
  Although Ms. Lewinsky has testified that the President never 
expressly conditioned her job assistance on her continued cooperation 
in the Jones litigation, her conduct shows an implicit connection 
between the job search and the Jones litigation. When she received a 
subpoena from the Jones lawyers she went to her job counselor. When she 
had concerns about what to do with incriminating notes, she discussed 
the matter with her job counselor.
  The evidence demonstrates that the motivation for the job search was 
not to enhance Ms. Lewinsky's career or to find her a ``dream job.'' 
The President had the opportunity to give her a ``dream job'' at the 
White House and declined. Instead, the evidence shows beyond a 
reasonable doubt that the job search was intimately tied to the Jones 
litigation and designed to ensure Ms. Lewinsky's continuing 
cooperation.


                Mr. Bennett's Use Of The False Affidavit

  The next example of obstruction of justice is the President's 
decision to stand mute while his attorney used an affidavit the 
President knew to be false to make representations to a federal judge 
that the President knew to be false. As I have noted, I do not think 
the President's act of omission constitutes a separate act of 
obstruction. However, I do think the President's failure to object to 
the use of this false affidavit sheds light on many of the President's 
acts of commission that do constitute obstruction of justice and 
witness tampering, such as his suggestion that Ms. Lewinsky file an 
affidavit to avoid testifying in the Jones case.


                 Influencing The Testimony Of His Aides

  The final example of obstruction cited by the House involves the 
President's false statements to aides who were potential grand jury 
witnesses. Most of the evidence on this point is not in dispute. The 
President insisted before the grand jury that he was truthful with his 
aides. However, the President's own aides now admit that he lied to 
them. There is no dispute that those lies were repeated to the grand 
jury. The only remaining question is whether the President told these 
lies to his aides with the expectation that they would resurface in the 
grand jury.
  The White House's principal defense on this point is that the 
President's lies to his aides were no different than the lies he had 
told the entire American people. This is a strange defense. 
Essentially, it attempts to make a virtue out of the fact that the 
President lied to every American, without respect to whether they were 
potential witnesses. The legal point appears to be that the President's 
aides could not obstruct the due administration of justice because the 
grand jurors already were exposed to the President's false denials.
  There are several problems with this argument, not the least of which 
is that it is based on a false premise. The President did not merely 
repeat the same denials he made to the public at large. The President's 
denials to his aides were embellished and substantially more detailed. 
The President did not tell the American people that Ms. Lewinsky was a 
stalker or categorically state that there was no sex ``in any way 
whatsoever,'' though he labored hard to leave that false misimpression. 
He did share these details with his aides, and they repeated them to 
the grand jury. These details, moreover, were not immaterial to the 
grand jury's investigation. These details, such as the characterization 
of Ms. Lewinsky as a stalker, directly attack the credibility of the 
principal witness against the President in the grand jury proceeding. 
As a result, I am convinced beyond a reasonable doubt that the 
President obstructed justice when he lied to his aides.


        the law of obstruction of justice and witness tampering

  The President's conduct clearly violates the federal criminal 
statutes against obstruction of justice and witness tampering. The 
federal obstruction of justice statute requires the government to prove 
three elements: ``(1) there was a pending federal judicial proceeding; 
(2) the defendant knew of the proceeding; and (3) the defendant acted 
corruptly with the specific intent to obstruct or interfere with the 
proceeding or due administration of justice.'' 35 American Criminal Law 
Review 989, 992 (1998). There is no real dispute in this case that the 
President knew that the Jones suit was pending when he engaged in the 
conduct covered by the obstruction of justice article. The only 
relevant legal question is whether he intended to obstruct justice in 
the Jones case.
  There is ample evidence in the record to suggest that obstructing 
justice in the Jones case was the President's precise intent. Indeed, 
the President's own testimony makes clear that he viewed the Jones 
litigation as illegitimate. He stated that he ``deplored'' the Jones 
lawsuit and felt it was only going forward ``because of the funding 
they had from my political enemies.'' (See Sen. Rec. Vol. III, part 1, 
at 532; Mr. Clinton 8/17/98 GJ, at 80.) As a result, the President 
concedes that, in his words, he was ``not trying to be particularly 
helpful'' to the Jones lawyers. (See Sen. Rec. Vol. III, part 1, at 
480; Mr. Clinton 8/17/98 GJ, at 28.) Moreover, the discussion of the 
specific examples of obstruction of justice make clear that the 
President's advice that Ms. Lewinsky file a false affidavit, the 
President's coaching of witnesses, and the job search were all done 
with the object of obstructing justice in the Jones litigation.
  The Victim and Witness Protection Act of 1982 criminalized a 
particular form of obstruction of justice, witness tampering. Part of 
that act, section 1512(b) of the federal criminal code, sets out the 
four elements of witness tampering. ``Under section 1512(b), the 
government must prove that the defendant: (1) knowingly (2) engaged in 
intimidation, physical force, threats, misleading conduct or corrupt 
persuasion, (3) with intent to influence, delay or prevent testimony or 
cause any person to withhold a record, object or document (4) from an 
official proceeding.'' 35 American Criminal Law Review 989, 1004 
(1998). Each of these elements is satisfied in this case.

[[Page 2549]]

  The President's attorneys have emphasized that the President never 
physically threatened any potential witness. In particular, they point 
to Ms. Currie's testimony that she never felt threatened or intimidated 
in her conversations with the President. However, that is simply not 
relevant under the federal witness tampering statute, which 
criminalizes not just physical intimidation, but corrupt persuasion and 
misleading conduct as well. What is more, the statute makes clear that 
it applies to any witness in any official proceeding, and the statute 
specifies in subsection (e) that ``an official proceeding need not be 
pending or about to be instituted at the time of the offense.'' As with 
the perjury counts, the President's legal defenses misstate the 
applicable law. Just as federal law does not require two witnesses to 
support a conviction for grand jury perjury, the assertion that witness 
tampering requires actual intimidation simply misstates the law.


                      high crimes and misdemeanors

  My careful examination of the evidence, legal precedent and arguments 
made by both sides convinces me that the President committed perjury, 
obstructed justice and violated the federal witness tampering statutes. 
Having reached this conclusion, the remaining step in my analysis of 
the cases to examine whether these criminal acts require the 
President's removal from office. In other words, do perjury and 
obstruction of justice constitute high crimes and misdemeanors? The 
precedents of the Senate provide an unequivocal answer: the Senate has 
repeatedly treated perjury as a high crime and misdemeanor that 
justifies--indeed, necessitates--removal.
  Three times in the last fifteen years the House has impeached and the 
Senate has removed a federal judge for perjury or related crimes. In 
two of the three cases, moreover, the judge was removed for lies that 
had nothing to do with his official duties. Judge Harry Claiborne was 
removed for filing false tax returns under penalty of perjury. Judge 
Walter Nixon was removed for lying to a federal grand jury about his 
efforts to influence a state judicial proceeding. The Senate's 
precedents on perjury as an impeachable offense are clear. Moreover, 
there is simply no basis in the Constitution to apply a less demanding 
standard of the President than has been traditionally applied to 
federal Judges. A single provision of the Constitution creates a single 
standard of impeachment for all ``Officers of the United States,'' 
Judges and the President alike. To be sure, the Constitution specifies 
that federal Judges ``shall hold their offices during good behavior.'' 
Art. III, sec. 1. However, this clause has always been understood as 
establishing life tenure, as opposed to a relaxed standard for 
impeachment, and no Judge has ever been impeached or removed for ``bad 
behavior.'' In sum, the notion that the President--with his infinitely 
greater effect on the culture, for good or ill--would be held to a 
lesser standard than one of 800 federal Judges has as little basis in 
common sense as it has in the Constitution's text.
  Of course, even if we did not have the benefit of the Senate's 
precedents treating perjury as a high crime, and had to consider this 
issue as an original matter, I would have little difficulty concluding 
that perjury and obstruction of justice qualify as high crimes and 
misdemeanors. The Constitution's use of the adjective ``high'' to 
modify the phrase ``crimes and misdemeanors'' suggests that there may 
be some crimes and misdemeanors that do not form the basis for 
impeachment. However, those crimes, such as perjury and obstruction of 
justice, that undermine public confidence in government and strike at 
the integrity of our systems of government and justice surely must be 
covered by the phrase ``high crimes and misdemeanors.''
  In addition, the scope of ``high crimes and misdemeanors'' is 
informed by the two crimes specifically enumerated in the Constitution 
as a basis for impeachment, treason and bribery. Both these crimes, in 
common with perjury and obstruction of justice, threaten the proper 
functioning of government--either directly in the case of treason, or 
indirectly, by undermining the government's integrity, in the case of 
bribery. Perjury is bribery's twin. Perhaps the clearest illustration 
of this point is that the President could have accomplished the same 
result in this case--interfering with the Jones litigation--by bribing 
a witness or the Judge. Perjury, like bribery, has been grouped among 
the most serious crimes at least since the founding of our nation
  John Jay, one of the three authors of the Federalist Papers and our 
nation's first Chief Justice, provides a glimpse of the framers' views 
on the seriousness of perjury. When riding circuit in Bennington, 
Vermont in the Summer of 1792, Chief Justice Jay instructed the Grand 
Jury in a perjury persecution. His instruction is worth quoting at 
length;

       Independent of the abominable insult which perjury offers 
     to the divine Being, there is no crime more extensively 
     pernicious to Society. It discolours and poisons the streams 
     of justice, and by substituting falsehood for truth, saps the 
     Foundation of personal and public rights. Controversies of 
     various kinds exist at all times, and in all communities. To 
     decide them, Courts of justice are instituted. Their 
     decisions must be regulated by evidence, and the greater part 
     of the evidence will always consist of the testimony of 
     witnesses. This testimony is given under those solemn 
     obligations which an appeal to the God of Truth impose; and 
     if oaths should cease to be held sacred, our dearest and most 
     valuable rights would become insecure.

  There is ample evidence to support Chief Justice Jay's view that, of 
all crimes, perjury is among the most pernicous to society, and one 
that has always been thought to rise to the level of ``high crimes and 
misdemeanors.'' It is not surprising then, that the Kentucky 
Constitution of 1792 directed that: ``Laws shall be made to exclude 
from office and from suffrage those who thereafter be convicted of 
bribery, perjury, forgery or other high crimes or misdemeanors.'' Art. 
VIII, cl. 2. Moreover, the belief that perjury is an impeachable high 
crime is not limited to the framers. Less than a decade ago in a law 
review article, Chief Justice Rehnquist, the presiding officer in this 
impeachment trial, summed up our national experience with impeachment 
by noting that ``impeachment has been confined to flagrant abuse of 
office--perjury, bribery, and the like.'' William Rehnquist, The 
Impeachment Clause: A Wild Card in the Constitution, 85 Northwestern 
University Law Review 903, 910 (1991).
  The point has also been raised that the President's conduct does not 
rise to the same levels as President Nixon's conduct in Watergate. That 
may well be true, but it is also irrelevant. Not every high crime and 
misdemeanor is created equal, but all require removal under the express 
terms of the Constitution. However, whatever differences exist between 
President Clinton's conduct and Watergate, the reaction of Watergate 
Special Prosecutor Leon Jaworski to President Nixon's misconduct is 
telling. Of all the misconduct portrayed on the famous Nixon tapes, 
Jaworski found one strip of dialogue ``the most repulsive on the tape. 
In that strip the President--a lawyer--coached [his aide] to testify 
untruthfully and yet not commit perjury. It amounted to subornation of 
perjury. For the number-one law enforcement officer of the country it 
was, in my opinion, as demeaning an act as could be imagined.'' Leon 
Jaworski, The Right and the Power--The Prosecution of Watergate 47 
(1976).
  That is perjury. The nation's first Chief Justice stated that ``there 
is no crime more extensively pernicious to Society.'' Our current Chief 
Justice described it as a ``flagrant abuse of office.'' And the 
Watergate Special Prosecutor thought subornation of perjury by the 
President ``as demeaning an act as could be imagined.'' There is no 
doubt in my mind that perjury and the closely related crime of 
obstruction of justice are high crimes and misdemeanors. Moreover, 
having concluded that the President committed these high crimes, the 
Constitution leaves me with no further discretion--it states that the 
President ``shall be removed from office for impeachment for, and 
conviction of, treason, bribery, or other high crimes and 
misdemeanors.''
  Some have argued that the Senate retains some discretion not to 
remove

[[Page 2550]]

a President even if the evidence shows that he committed acts that 
constitute high crimes or misdemeanors. This simply misreads the 
Constitution. The Constitution is unequivocal that the President shall 
be removed upon conviction of a high crime. As Justice Story observed 
in his Commentaries on the Constitution, ``the Senate, on the 
conviction, [is] bound, in all cases, to enter a judgment of removal 
from office.'' The Senate recognized this constitutional imperative in 
the trial of Judge Halsted Ritter in 1936, when it expressly rejected 
the need for a second vote on the question of removal, after the Senate 
had convicted him of high crimes. Conviction without removal would be a 
direct affront to the Constitution. It is no less an affront to refuse 
to convict despite facts that support conviction for a high crime 
because of an unwillingness to trigger the consequences demanded by the 
Constitution. Such an action subverts both the Constitution and the 
rule of law. It arrogates to Senators the authority to second guess the 
Constitution and conclude that although the President has committed 
crimes for which others should be removed, in this case the President 
should be permitted to remain in office. It is a brazen act of jury 
nullification.
  The Constitution empowers the Senate to conclude that the facts do 
not support the crimes alleged in the articles of impeachment. 
Likewise, the Senate may conclude that the crimes alleged in the 
articles do not rise to the level of high crimes and misdemeanors. But 
nothing in the Constitution allows the Senate to refuse to convict if 
it finds that the facts support the articles, and the articles allege 
high crimes. There has been much talk in this case about the rule of 
law. A power to refuse to convict in the face of evidence of a high 
crime is the antithesis of the rule of law. It is the rule of whim. 
Such an action would go beyond repudiating the value of the Senate 
precedents that perjury is an impeachable offense, it would destroy the 
value of all Senate precedents. As Justice Story warned while riding 
circuit over 160 years ago, if jury nullification were permitted, ``it 
would be almost impracticable to ascertain, what the law . . . actually 
is.'' United States v. Battiste, 24 F. Cas. 1042 (Cir. Ct. D. Mass. 
1835).
  Any discretion that exists in the constitutional framework to refuse 
to act in the face of impeachable offenses lies in the House of 
Representatives. The law has long recognized the legitimacy of 
prosecutorial discretion. But the law has also long criticized jury 
nullification. Unlike a normal jury, the Senate has the power to 
determine both law and facts. What it lacks is the raw power to refuse 
to convict in the face of law and facts that both support conviction.
  I cannot leave this discussion of perjury and obstruction of justice 
as high crimes and misdemeanors without a comment on the consequences 
of failing to remedy perjury and obstruction of justice by the number-
one law enforcement in the nation. Chief Justice Jay warned of the 
dangers of diluting the importance of oaths: ``[I]f oaths should cease 
to be held sacred, our dearest and most valuable rights would become 
insecure.'' If the President of the United States--our nation's leader 
and the man surveys still identify as the most admired in America even 
after all this--can commit perjury and obstruct justice without any 
immediate consequence, it is difficult to see how oaths will continue 
to be held sacred. We can either abandon all perjury prosecutions or 
acknowledge that the President is above the law. Those are the choices: 
lawlessness or hypocrisy. Either option carries grave risks that oaths 
will ``cease to be held sacred.''
  Removing the President, by contrast, will not only reinforce the 
importance of oaths; it will demonstrate the importance of personal 
responsibility and accountability. Rather than signaling that some in 
society are too talented or important for the normal rules to apply, 
removing the President will teach that actions have consequences, no 
matter who you are. We have an opportunity either to set a good example 
for our children or to enshrine the ``Clinton defense'' and the 
``Clinton exception'' to the importance of telling the truth. We need 
to send a message that the grand words that grace the Supreme Court--
equal justice under law--mean what they say.


                               conclusion

  After sifting through the evidence presented by both sides, all 
relevant legal precedents, and all the arguments by counsel, it is 
plain that the President committed perjury and obstructed justice. The 
prosecutors have done more than show that the President lied and 
tampered with witnesses. They have proven the elements of these crimes 
beyond a reasonable doubt. These federal crimes are not technical 
violations of an obscure law. They are crimes as old as the nation. 
They strike at the heart of the integrity of our government. Not 
surprisingly, Congress always has treated them as high crimes and 
misdemeanors that require the removal of a guilty party. In light of 
the President's criminal misconduct, I will vote to convict the 
President on both articles of impeachment.
  This is the only conclusion consistent with my oath to do impartial 
justice. In large measure, this case is all about the importance of 
oaths. The President's failure to honor his oath has necessitated this 
entire proceeding. Although some might see a vote to acquit as 
expedient, I will not further damage the sacredness and vitality of 
oaths by disregarding my own.
  I have not relished the responsibility of serving as a finder of fact 
and determiner of law in an impeachment trial. I am eager to return to 
a legislative agenda to provide Americans and Missourians with tax 
cuts, retirement security, educational opportunity and greater safety 
from drugs and crime. It is regrettable that the President's misconduct 
forced Congress to consider this matter. I hope the unprecedented time 
that Senators have spent together in this work will enable us to make 
strong progress on the people's business when we return to the Senate.
  Finally, while I have not relished this duty, and sincerely wish the 
President would have spared the nation this ordeal, this responsibility 
is among the most important assigned to the Senate under our 
Constitution. It has been my goal to do my very best to do my duty as 
prescribed by the Constitution. While the Constitution calls upon the 
Senate to remove an unfit President, it does not charge the Senate with 
punishing the President. Indeed, the Constitution specifically limits 
the Senate's remedies and leaves the President ``subject to . . . 
punishment, according to law'' through the courts. The Constitution 
requires a clear choice: acquit the President and leave him in office, 
or convict him and remove him. The framers deemed it wise not to allow 
the Senate to leave a President in place, but wound him with 
punishments short of removal. Thus, once we discharge our impeachment 
responsibilities, the Senate should move energetically to its 
legislative agenda. To accomplish legislative goals for the nation, it 
will be necessary for Congress and the President to work together. If 
Senators wish to condemn the President's conduct, they should do so on 
their own, and should not tie up the Senate and divert energy from 
doing the people's work.
  Mr. THURMOND. Mr. Chief Justice, the vote I cast on the articles of 
impeachment was one of the hardest votes that I have had to make in all 
my years in the United States Senate, not that I do not think I made 
the correct decision. While I am saddened that we had to make the 
judgment we made in this impeachment trial, each of us had a duty to 
undertake this task, and I do not shirk from duties.
  The House Managers performed their duty admirably, making a 
comprehensive, coherent, and eloquent presentation. The White House 
attorneys presented a spirited defense. Similarly, due in part to the 
outstanding leadership of the Senate Majority Leader, I am confident 
that history will record that we in the Senate exercised our duty to 
conduct the trial appropriately and fairly. I believe the Founding 
Fathers would be pleased with the process and procedure.
  The purpose of impeachment is not to punish a man. It is not a way to 
express displeasure or disagreement with

[[Page 2551]]

a President or his policies. Impeachment is a mechanism designed to 
preserve, protect, and defend the Constitution, the Country, and Office 
of the Presidency. My primary concern, from the first day of this 
scandal, was the impact it would have on the Office of the Presidency.
  This case is not about illicit conduct or even about not telling the 
truth about illicit conduct. Instead, the case is about two activities. 
The first is whether the President intentionally made false statements 
under oath to a Federal grand jury, to the Judiciary of the United 
States. The second is whether the President obstructed justice before a 
United States District Court and a Federal grand jury, again to the 
Judiciary of the United States.
  A Senator's role in an impeachment trial is a mix of roles from our 
judicial system, including being part judge and part jury. At least in 
reviewing the evidence, we do act as jurors, and we should view 
evidence the way the courts expect jurors to view it. We use our common 
sense and our knowledge of human behavior based on our everyday 
experiences in life. In this case, the defense has attempted to take 
each act, separate it out, and artificially place it in isolation. I 
cannot view the evidence in this fashion. I cannot ignore common sense.
  As to perjury, I have no doubt that the evidence presented to the 
Senate proves that the President did not tell the truth to the Federal 
grand jury. He made numerous false statements to make his illicit 
conduct seem more benign; to make his efforts at witness tampering with 
his secretary seem innocuous; and to make his testimony in the Paula 
Jones case appear truthful.
  As to obstruction of justice, in my mind there can be no dispute but 
that the President intentionally interfered with the Judiciary. When 
the President spoke to Monica Lewinsky about her being a witness in the 
Paula Jones case, he did not discuss the contents of her affidavit 
because he did not have to. Based on their previous conversations and 
the pattern of their relationship, she knew exactly what he meant; he 
meant for her to file a false and misleading affidavit with the Federal 
court. When the President spoke to his secretary and suggested to her 
an explanation for his relationship with Monica Lewinsky that he knew 
was not true, he was engaged in classic witness tampering. There can be 
no other acceptable explanation. When the President failed to reveal to 
the Federal judge during his Paula Jones deposition that the Monica 
Lewinsky affidavit was false, he was obstructing the fact-finding 
process of the District Court. I can accept no other explanation.
  The President has violated his sacred oath to faithfully execute the 
laws of the United States. Regardless of the bounds of private conduct 
and of the importance of allowing people to keep their private lives 
private, those bounds are broken when someone violates an oath to tell 
the truth in a court of law. Those bounds are also broken when someone 
interferes with a court of law in its efforts to find the facts and 
find the truth.
  The President's conduct in this matter was an egregious affront to 
the judicial system. We have a Chief Executive who has intentionally 
decided not to take care that the laws be faithfully executed. Indeed, 
he intentionally interfered with the lawful duties of a co-equal branch 
of government. This should not be tolerated.
  No one is above the law. I cannot accept the argument that a 
different legal standard applies to judges than to the President. The 
Congress has never accepted that argument before. There is no support 
for it in the words of the Constitution, which establishes one standard 
of impeachment for ``the President, Vice President and all civil 
Officers of the United States.'' There is no support for it in the 
debates at the Constitutional Convention or in the Federalist Papers. 
Is it reasonable to conclude that our standards for removal from office 
for criminal conduct is less for the Chief Law Enforcement Officer than 
it is for civil officers who are appointed to apply the law?
  Because the President is the Commander in Chief, I must think about 
our men and women in uniform. I do not suggest that the President 
should be strictly subject to the Uniform Code of Military Justice 
during his term in office. However, if we vote not guilty on the 
articles on these facts, what message do we send to our soldiers about 
duty, honor, and country? Given that the President is the Chief Law 
Enforcement Officer, if we vote not guilty, what message do we send 
American citizens about respect for the rule of law? For that matter, 
what message do we send our children and grandchildren for generations 
to come about the consequences of not telling the truth?
  We have been told that we should not remove the President from office 
because doing so would ``overturn the results of an election.'' The 
Senate does not have this power. Our power extends no further than 
removal of the President, and the law provides that his running mate, 
the Vice President, takes the oath of office. If the President is 
removed, the Administration does not change from one party to another. 
The Constitution wisely provides for continuity. The impeachment 
process only provides for the removal of the current occupant.
  Indeed, we are not engaged in a Constitutional crisis. The 
Constitution provides the roadmap for what we are doing. We are simply 
following our Constitutional duty. We did not ask for this burden. It 
was thrust upon us by the misconduct of the current occupant of the 
Office of the Presidency.
  Before today, perjury and obstruction of justice were clearly high 
crimes and misdemeanors under the Constitution, My vote is consistent 
with this. The President is not above the law. The Constitutional 
standard is no different for him than for anyone else. It is for these 
reasons that I voted guilty on both articles of impeachment.
  Mr. CRAPO. Mr. Chief Justice, very soon we will all cast what is 
clearly among the most serious votes any members of Congress could ever 
be asked to make. I will vote to convict President William Jefferson 
Clinton on both of the two articles of impeachment before the U.S. 
Senate--perjury before a grand jury and obstruction of justice. To me, 
the evidence presented over the previous four weeks is not reasonably 
subject to any conclusion other than that the President did commit the 
crimes alleged against him.
  From the very beginning of this matter, I have been circumspect about 
commenting on President Clinton's conduct. As a newly elected Senator, 
I was inundated with interview requests from national media. I chose 
not to appear on these programs and restricted my comments to a 
discussion of the process. I felt it was incumbent upon me as a member 
of the impeachment court to avoid commenting on the evidence until the 
trial has concluded.
  At the outset, each Senator was administered a separate oath by the 
Chief Justice of the Supreme Court. This special oath was separate and 
distinct from the oath of office that each Senator takes when sworn 
into office. To my knowledge, this is the only other occasion in which 
our Founding Fathers required a separate and distinct oath of U.S. 
Senators to perform a constitutional responsibility.
  Once again, the incredible wisdom of our Founding Fathers was 
evident. As each Senator took the oath to provide impartial justice, a 
realization fell over us that we had just embarked on a very solemn 
duty. No longer was the Senate a legislative body, it was a court of 
impeachment. A unique court, to be sure, not identical to traditional 
civil and criminal courts, but a court nonetheless.
  This oath to render ``impartial justice'' was a promise to God under 
our Constitution. It also represented a duty to all Idahoans to 
represent them impartially. I committed that I would conduct myself in 
a fashion so that at any time I could affirm that I fully honored this 
commitment. I was present at all the Senate proceedings, and fully 
reviewed the evidence presented before the Senate. I was ready to vote 
either to acquit or to convict, depending on the evidence, argument, 
and law presented to the Senate.
  In approaching this decision, several questions must be answered. Did 
the

[[Page 2552]]

President commit the crimes alleged? And if so, are these crimes ``high 
crimes and misdemeanors'' requiring the removal of the President from 
office under the impeachment provisions of the U.S. Constitution? After 
carefully weighing the evidence and the law presented to the Senate, I 
have concluded after many sleepless nights and troubling days that the 
evidence shows that President Clinton committed the crimes alleged in 
the Articles of Impeachment. These crimes involve perjury and 
obstruction of justice in federal criminal grand jury proceedings and 
in a federal civil rights action. Although the ``beyond a reasonable 
doubt'' standard of traditional criminal trials is not applicable in 
impeachment proceedings, I am convinced the evidence presented in this 
case meets even this high standard.
  Notwithstanding the impression created by some of the media and talk 
shows, there seems to be general consensus that the President committed 
the acts alleged against him. The core debate is whether these acts 
rise to the level of high crimes and misdemeanors as required to 
impeach and remove the President from office under the Constitution.
  Some argue that this entire matter is just an effort to impeach the 
President for ``private'' conduct and that impeachment is proper only 
for ``public'' conduct that violates the public trust. But it is 
important to clarify that these proceedings are not about sex or even 
lying about sex. Both the President's counsel and the House managers 
correctly made the point that private conduct by the President is a 
matter properly left between the President and his wife and family. The 
allegations in this case, however, relate to public acts that go to the 
heart of the rule of law in America--perjury and obstruction of justice 
in a civil rights case and before criminal grand jury proceedings. I am 
deeply concerned that we will do great damage to our system of law and 
the freedom it defends if we diminish the seriousness of these crimes 
and thereby suggest to future offenders that they can commit these 
crimes with little to fear.
  It is telling that on three separate occasions the U.S. Senate has 
removed federal judges from office for perjury. Judges are tried under 
the same Constitutional provision requiring proof of treason, bribery 
or high crimes and misdemeanors as are presidents. Judge Claiborne was 
removed from office for lying on his income tax returns. Judge Hastings 
was removed for lying under oath in a trial. Judge Nixon was removed 
for making false statements to a grand jury. Clearly, under prior 
Senate precedent, perjury is a ``high crime and misdemeanor.''
  In America, our freedom is assured by the rule of law. Our law seeks 
to provide equal and impartial justice to all. All Americans--the poor, 
the rich, the weak, the powerful--are entitled to the same protection 
under the law. And even, the most powerful among us must be subject to 
those laws. Tampering with the truth-seeking functions of the law 
undermines our justice system and the foundations on which our freedoms 
lie. All Americans must abide by the rule of law, including the 
President of the United States, who is the highest official in the land 
and who has the additional duty to ensure that the laws are faithfully 
executed.
  The primacy of the rule of law over the rule of individuals is one of 
the most important safeguards of freedom in our Constitution. Our 
entire legal system is dependent on our ability to find the truth. That 
is why perjury and obstruction of justice are crimes. Federal 
sentencing guidelines place perjury, witness tampering, and obstruction 
of justice in the same realm of seriousness as bribery. Commission of 
these crimes is a direct effort to prevent our legal system from 
performing one of its core functions--finding the truth.
  The offenses are even worse when committed against the poor or 
powerless by the wealthy or powerful. Our Constitution guarantees, 
fortunately, that the most ordinary person has the right to her day in 
court even if she is not well liked by the public or has become 
characterized in a bad light by her opponents. And even if the person 
from whom she seeks justice is the President.
  In 1792, Chief Justice John Jay gave one of the best historical 
explanations of the reason crimes against the truth-seeking process in 
our system of justice are so dangerous to our freedom:

       Independent of the abominable Insult which Perjury offers 
     to the divine Being, there is no Crime more Pernicious to 
     Society. It discolors and poisons the Streams of Justice, and 
     by substituting Falsehood for Truth, saps the Foundations of 
     personal and public Right. . . . Testimony is given under 
     those solemn obligations which an appeal to the God of Truth 
     impose; and if oaths should cease to be held sacred, our 
     dearest and most valuable Rights would become insecure.--
     Chief Justice John Jay, Charge to a Grand Jury of the Circuit 
     Court of the District of Vermont, June 25, 1792.

  Perjury and obstruction of justice are public crimes that strike at 
the heart of the rule of law--and therefore our freedom--in America. I 
conclude that these acts do constitute high crimes and misdemeanors 
under the impeachment provisions of the U.S. Constitution. Therefore, I 
will vote to convict President Clinton on both of the impeachment 
articles.
  Fortunately, this trial is over and I now can direct my full 
attention to fulfilling the other oath I took when I was sworn in as a 
United States Senator. Many challenges and opportunities face Idahoans 
and all Americans. I will, as I always have, give all my energy to 
working on a bipartisan basis to solve problems, strengthen America and 
protect our future.
  Mr. DORGAN. Thank you Senator Lott, Senator Daschle, and Mr. Chief 
Justice for the skill and dignity you have given these proceedings.
  I wish every American could see and hear the Senate in these 
deliberations.
  There is a kind of majesty to see the Senate chamber filled with 
Senators listening to each other in debate and deliberation.
  We are different people, coming from different regions with different 
philosophies, and that is what creates the unique character of this 
wonderful institution.
  I want to tell you briefly today about Teddy Roosevelt.
  Over a century ago, Teddy Roosevelt was consumed with grief following 
the death of his wife and mother who died on the same day. He decided 
to change his life and move out west. When he stepped off the train in 
the Badlands of North Dakota, he was wearing a cowboy suit hand-
tailored from Brooks Brothers, rimless glasses, a Bowie knife with 
``Tiffanys'' engraved on the handle, and Sterling silver spurs with his 
initials on each rowel.
  The local cowboys thought he was a joke. One unlucky cowboy picked a 
fight with Teddy in a Badlands saloon in Medora. In minutes, the cowboy 
was punched senseless by this funny looking easterner.
  And then Teddy Roosevelt was accepted. Being different, looking 
different didn't much matter to the folks in the Badlands after that.
  Here in the Senate we're very different people too. No saloon fights 
here, though. We engage in verbal battles. And the Senate works because 
we accept each other, and we share a common purpose.
  The discussion we are having today reminds me again of the unique 
skills and passion for our country possessed by each and every member 
of the Senate.
  How do we apply these skills and that passion here and now?
  Mark Twain once said, with tongue in cheek, that ``the next best 
thing to a lie, is a true story no one will believe.''
  Well, this sorry chapter in our rich history embraces both. Lies, 
yes! And truth that is almost unbelievable.
  We meet here as Senators to consider whether to remove from office a 
president elected by the American people. In the entire history of our 
country, the Senate has never voted to remove a president. In fact, it 
has been tried only once. The Framers of our Constitution made it very 
hard to do; and they made it, with a 2/3 vote required in the Senate, 
impossible to do on a ``partisan'' basis.
  The matter that calls us to this duty is a sordid one.

[[Page 2553]]

  It is truly a scandal and a drama without heroes and without winners.
  It is about a president who should be, and I'm sure is, ashamed of 
his behavior. Is there anyone here in the Senate who had a sexual 
relationship with one of their interns? Of course not! The President 
did. He had a sexual relationship with an intern, and he lied about it, 
to the country, to all of us, to try to conceal it.
  This President has betrayed our trust and I have expressed to him 
personally how profoundly disappointed I am with his actions.
  This matter is also about an Independent Counsel who you and I know 
has leaked confidential information from secret proceedings of a grand 
jury, and whose actions in detaining Monica Lewinsky should be 
troubling to every Senator. And an Independent Counsel who came to 
Congress with such prosecutorial passion that his ethics advisor 
resigned in protest.
  And it is about many others as well. Major figures and bit players, 
some who conspired in disgraceful ways, and others who were innocently 
swept into the maelstrom of a sensational scandal.
  But, for all of the intrigue, the matter here is less complicated 
than some would have us believe.
  Here is a short chronology.
  Several years after the day she claims that then-Governor Bill 
Clinton made unwanted sexual advances toward her, Paula Jones appeared 
at a conservative political gathering to announce she was filing suit 
against the President.
  Some while later, following the Supreme Court ruling that the case 
could go forward, the President was called to a deposition in the Jones 
case.
  In that deposition, which the Judge later determined to be 
immaterial, and in a case that was later dismissed, Bill Clinton denied 
having a sexual relationship with Monica Lewinsky. That was a lie. Oh, 
I know about the convoluted definition of sex that was used, but I 
think he lied. But that's not a matter before us. The impeachment 
article about that deposition was defeated in the U.S. House.
  Following the President's testimony in the Jones case, the 
Independent Counsel, appointed three years earlier to investigate a 
Whitewater land deal, and controversies called Travelgate and Filegate, 
swung into action to investigate this sex scandal. Linda Tripp was 
wired, Monica Lewinsky was detained by the Independent Counsel and the 
FBI, and they told her she shouldn't call her lawyer. A grand jury 
began hearing witnesses and after many months the President appeared 
before that grand jury to answer questions.
  Then, one-and-a-half months before the 1998 general election, the 
U.S. House, with cooperation from the Independent Counsel, released to 
the American public all of their investigative material and the secret 
proceedings of the grand jury.
  Following the election, the U.S. House Judiciary Committee began 
their impeachment hearings. The Independent Counsel, in a virtual 
footnote to his presentation before the House on the sex scandal, 
admitted he had not been able to implicate the President on Whitewater, 
Travelgate or Filegate--but he got him on the sex matter. And so the 
House managers and the Independent Counsel used the President's bad 
behavior to weave their charges of perjury and obstruction of justice.
  And finally the U.S. House on a partisan vote sent to the Senate the 
two articles of impeachment.
  That's the chronology as I see it.
  And so we gather--conducting a trial of this sordid mess.
  What are we to do? What is our duty? What is, as Lincoln said, ``our 
last full measure of devotion'' to this country.
  I am deeply troubled by this President's behavior. But I am also 
troubled by the constitutional gravity of removing a President. Some, 
with a mere wave of the hand seem to say that ``it's not such a big 
deal.'' But they are wrong. This decision affects the very roots of our 
democracy.
  The selection of the head of government by the governed in a free 
election is rare. It is still the case in too many countries that power 
shifts through the barrel of a gun--through raw, naked power and 
violence.
  In our country, the American people choose their President by the 
simple, elegant act of voting. It is through voting--not fighting--that 
power shifts. Our governments change without an army marching. With no 
shots being fired. What a remarkable thing to behold.
  The Constitution does contain a very special provision allowing for 
the removal of a President ``for bribery, treason, and other high 
crimes and misdemeanors.'' It does that because the Framers wanted to 
provide a method to remove a president who was acting in a manner that 
threatens the country.
  But the Framers worried that a partisan majority could try to remove 
a President for political gain.
  Hamilton, in the Federalist 65 said, ``the greatest danger . . . that 
the decision will be regulated more by the comparative strength of the 
parties than by the real demonstration of innocence or guilt.''
  Mason said that the President should be removed for ``great and 
dangerous offenses'' that amount to ``attempts to subvert the 
Constitution.'' Hamilton wrote that impeachable offenses result from a 
``violation of public trust'' and ``relate chiefly to injuries done to 
society itself.''
  It is also clear that the impeachment process was not meant to punish 
a transgressor. In fact, the Constitution provides that any such 
``crimes'' would still be punishable in the criminal justice system.
  In short, impeachment is a device to prevent grave danger to the 
Nation.
  I believe that the Framers of the Constitution would be startled by 
this impeachment effort.
  That this impeachment process was passionately partisan in its birth 
in the U.S. House is not in question. In fact, two of the House 
managers who brought these articles of impeachment to us called for the 
impeachment of President Clinton long before they had ever heard of 
Monica Lewinsky. Seventeen Republican Congressmen had called for 
impeachment hearings long ago. Theirs was a cause searching for a 
reason.
  Nearly two years ago, before Linda Tripp, before Monica Lewinsky, 
before Betty Currie, before knowledge of sex with an intern, before a 
stained dress, before the deposition in the Jones case, before the 
testimony to the grand jury, two of the House Managers who argued for 
these impeachment articles had introduced an impeachment inquiry 
resolution. Representative Bob Barr and Representative Lindsey Graham 
said then that it was about ``the rule of law.'' They were asking for 
the nullification of an election before they knew the existence of a 
Monica Lewinsky and before the action that led to the two articles of 
impeachment now before us.
  Isn't there room to wonder then, that maybe this is exactly the 
partisan passion that persuaded our Framers to place the impeachment 
bar just above the vertical leap of those Members of Congress who would 
carry ``fill in the blank'' impeachment papers for every reason and 
every season.
  Take the partisan flavor away. I don't think the case has been made 
that the President's behavior, while reprehensible, poses a grave 
danger to the Nation. Therefore I cannot vote to nullify the results of 
the last election. The people chose Bill Clinton and I do not believe 
the case made against the President meets the constitutional threshold 
for removing a president.
  I respect those here who differ. I do not allege that your guilty 
vote is partisan. You have reached a different conclusion charge than I 
did, and I respect you for that.
  But I cannot vote for these articles of impeachment. This is not a 
case of high crimes and misdemeanors. It's a case of bad behavior by a 
President who has shamed himself.
  But let us not respond to his bad behavior by hurting our country.
  Let us not aim at Bill Clinton and hit the Constitution.
  I do not vote to support our President. I vote against these articles 
of impeachment to support our Constitution.

[[Page 2554]]

  In the final analysis, however, the President should take no solace 
in this vote. I and others in the Senate have joined in a censure 
resolution that expresses a harsh judgement about the President's 
actions.
  Now, it is time for the country to move on.
  Mr. KERRY. Mr. Chief Justice, my colleagues, I want to thank the 
Chief Justice for his important stewardship of these proceedings. And I 
thank Senator Lott and Senator Daschle for their patient leadership in 
helping to bridge the divide of partisan votes so that these are not 
partisan deliberations.
  There is a special spirit in this Chamber. No matter all the easy 
criticisms directed our way, this is a great institution and in our own 
way we are witnessing--living out--the remarkable judgment of the 
Founding Fathers.
  Let me turn to the question of removing President William Jefferson 
Clinton.
  Many times the House managers have argued to us that if you find the 
facts as you argue them, you must vote to convict and thereby remove. 
But of course, that, like a number of things that they said, is really 
not true. You can, of course, find the facts and still acquit, because 
you don't want to remove on a constitutional basis or, frankly, on any 
other balance that a Senator decides to make in the interest of the 
Nation.
  Now, I agree that perjury and obstruction of justice can be grounds 
for removal or grounds for impeachment. The question is, Are they in 
this case? I will not dissect the facts any further because I don't 
have the time but also because I believe there are issues of greater 
significance than the facts of this case.
  Let's assume you take the facts as the House managers want you to. I 
would like to talk about some of the things in the arena outside of the 
mere recitation of facts--critical considerations in this matter.
  I have listened to all of the arguments for removal, and I must say 
that even as I understand what many have said, there seems to be a gap 
between the words and the reality of what is happening in this country.
  Some have said it sets a double standard for judges, despite the fact 
that the vast majority of scholars say there is a difference between 
impeachment of judges and the President, despite a difference clearly 
spelled out in the Constitution, and despite all of the distinguishing 
facts of each one of those cases involving judges.
  Some have said we will have a negative impact on kids, on the 
military, and on the fabric of our country.
  And while I agree that this is absolutely not about polls and 
popularity, some are making a judgment that clearly the country itself 
does not agree with. The country does not believe the fiber of our 
Nation is unraveling over the President's egregious behavior, because 
most people have a sense of proportion about this case that seems 
totally lacking in the House managers' presentation.
  No parent or school in America is teaching kids that lying or abusing 
the justice system is now OK. In fact, the President's predicament, I 
argue, does not make it harder to do so. If anything, there may now be 
a greater appreciation for the trouble you can get into for certain 
behavior. More parents are teaching their children about lying, about 
humiliation, about family hurt, about public responsibility, than 
before we ever heard the name of Monica Lewinsky.
  The clear answer to children who write letters about the President is 
that since being discovered he has been in a lot of trouble, may even 
be criminally liable, has suffered public humiliation, and all of 
history will not erase the fact of this impeachment, this trial, or the 
lessons of this case.
  But the bottom line for us is our constitutional duty, our 
responsibility to balance based on common sense and sense of honor.
  There is a simple question but a question of enormous consequence: Do 
we really want to remove a President of the United States because he 
tried to avoid discovery in a civil case of a private, consensual 
affair with a woman who was subsequently determined to be irrelevant to 
the case, which case itself was thrown out as wholly without merit 
under the law? That is the question.
  Let me be clear about the President's behavior so no one 
misinterprets. I am as deeply disturbed by it as all of us are here in 
the Senate. But I am not sure we need additional moralizing about 
something that the whole Nation has already condemned and digested. The 
President lied to his countrymen, to family, friends, to all of us. And 
if one is not enormously concerned by gifts not surrendered, 
conversations which can't refresh recollection, jobs produced with 
uncommon referral and speed, certainly one must be unsettled by the 
mere lack of easy compliance with judicial inquiry by a President. That 
is of grave concern to all. It deserves our censure.
  But let me say as directly as I can that no amount of inflated 
rhetoric, or ideological or moral hyperextension can lift the personal, 
venial aspects of the President's actions to the kind of threat to the 
fabric of the country contemplated by the Founding Fathers. I must say 
that I am truly somewhat surprised to see so many strict 
constructionists of the Constitution giving such new and free 
interpretation to the clear intent of the framers.
  And I have, frankly, been stunned by the overreach, the moral 
righteousness, even the zealotry of arguments presented by the House 
managers.
  No matter the words about not hating Bill Clinton, no matter the 
disclaimers about partisanship, I truly sensed at times not just a 
scorn but a snarling, trembling venom that told us the President is a 
criminal and that ``we need to know who our President is.''
  Well, the President is certainly a sinner. We all are. And he may 
even have committed a crime. But just plain and simply measured against 
the test of history so eloquently articulated by the Senator from New 
York this morning and by the Senator from Delaware yesterday, just 
plain and simply, this is not in any measure on the order of a high 
crime and misdemeanor so clearly contemplated by the Founding Fathers.
  Unlike President Nixon's impeachment case, no government power or 
agency was unleashed or abused for a goal directly affecting public 
policy. No election was interfered with. No FBI or IRS power was 
wrongfully employed. At worst, this President lied about his private, 
consensual affair and tried wrongfully, but on a human level--
understandable to most Americans, at least as to the Paula Jones case--
to cover it up. I think, in fact, that most Americans in this country 
understood there was in that inquiry a violation of a zone of privacy 
that is as precious to Americans as the Constitution itself.
  The fact that the House dropped the Paula Jones deposition count 
underscores the underlying weakness on which all of this is based. So I 
ask my colleagues, are we really incapable of at least measuring the 
real human dimensions of what took place here and contrasting it 
properly with the constitutional standards we are presented by 
precedent and history?
  We have heard some discussion of proportionality. It is an important 
principle within our justice system and in life itself. The 
consequences of a crime should not be out of proportion to the crime 
itself. As the dictionary tells us, it should correspond in size, 
degree or intensity.
  I must say that no one yet who will vote to remove has fully 
addressed that proportionality issue.
  If you want to find perjury because you believe Monica about where 
the President touched her, and you believe that adopting the definition 
given to him by a judge and by Paula Jones' own lawyers, and you can 
reach into the President's mind to determine his intent, then that is 
your right. But having done that, if you think a President of the 
United States should be removed, an election reversed, because of such 
a thin evidentiary thread, I think you give new meaning to the concept 
of proportionality. If you do that, you turn away from the central fact 
that

[[Page 2555]]

the President opened his grand jury testimony by acknowledging 
``inappropriate, intimate contact'' with Monica Lewinsky.
  Enough said, you would think. But no, not enough for this independent 
prosecutor. While not one more question really needed to be asked, a 
torrent of questions followed. Every question thereafter calculated to 
either elicit an admission of a lie in a case found to be without 
merit, or to create a new lie which could bring us here.
  With the President's acknowledgment of intimate contact, everyone in 
this Chamber understood what had happened. Everyone in America 
understood what had happened. For what reason did we need eighty 
percent of the questions asked about sexual relations? For the simple 
reason that the Presidential jugular instinct of the so-called 
independent counsel was primed by what all of us have come to know--he 
had colluded with Paula Jones' attorneys and Linda Tripp to set the 
Monica trap in the January deposition, and now he was going to set the 
perjury trap in the grand jury. Mr. Bennett's own comments in the 
deposition underscore this:

       ``I mean, this is not what a deposition is for, Your Honor. 
     He can ask the President, What did he do? He can ask him 
     specifically in certain instances what he did, and isn't that 
     what this deposition is for? It is not to sort of lay a trap 
     for him.''

  I wonder if there is no former district attorney, now Senator; no 
former attorney general, now Senator; no former U.S. attorney, now 
Senator; former officer of the court, now Senator, who is not deeply 
disturbed by a so-called independent counsel grilling a sitting 
President of the United States of America about his personal sex life, 
based on information from illegal phone recordings?
  Is there no one finding a countervailing proportionality in this case 
when confronted by our own congressionally created Javert who is not 
just pursuing a crime but who is at the center of creating the crime 
which we are deliberating on now?
  Think about it. When Mr. Starr was appointed, when we authorized an 
independent counsel, when the grand jury was convened, the crime on 
trial before us now had not even been committed, let alone 
contemplated.
  I wonder also if there is no one even concerned about Linda Tripp--
who now gives definition to the meaning of friendship--working with 
Paula Jones' attorneys even as she was in the guidance and control of 
Mr. Starr as a Federal witness. Some of you may want to turn away from 
these facts. Secondly, the House managers never even acknowledged them 
in their presentations. I raise them, my colleagues, not for 
ideological or political purposes, but fundamental fairness demands 
that we balance all of the forces at play in this case.
  Now, much has also been made in this trial of the rights of Paula 
Jones and her civil rights case--that we must protect Paula Jones' 
rights against the President of the United States.
  My fellow colleagues--please let us have the decency to call this 
case what it was. This was no ordinary civil rights case. It was an 
assault on the Presidency and on the President personally, and the 
average American's understanding of that is one of the principal 
reasons our fellow citizens figured this case out long ago.
  But there is more to it than that:
  Mr. Starr became involved in the Paula Jones suit before he became 
independent counsel.
  He had contacts with Paula Jones' attorneys before his jurisdiction 
was expanded.
  He wired Linda Tripp before his jurisdiction was expanded.
  Many sources documented that without any expansion of jurisdiction, 
in 1997, he had FBI agents interrogating Arkansas State troopers, 
asking about Governor Clinton's private life--especially inquiring into 
Paula Jones.
  After Paula Jones filed her suit in 1994, announcing it at a 
conservative political convention, and with new counsel affiliated with 
the Rutherford Institute, her spokesperson said, ``I will never deny 
that when I first heard about this case, I said, ``OK, good. We're 
gonna get that little slime ball.''
  She later said: ``Unless Clinton wants to be terribly embarrassed, 
he'd better cough up what Paula needs. Anybody that comes out and 
testifies against Paula better have the past of a Mother Teresa, 
because our investigators will investigate their morality.''
  Even Steve Jones, Paula Jones' husband, was part of an operation to 
poison the President's public reputation by divulging the secrets of 
his personal life--threatening even to employ subpoena power to depose, 
under oath, every State trooper in Arkansas who may have worked for the 
Governor. Steve Jones pledged that: ``We're going to get names; we're 
going to get dates; we're going to do the job that the press wouldn't 
do. We're going to go after Clinton's medical records, the raw 
documents, not just opinions from doctors. . .we're going to find out 
everything.''
  Into all of this came Ken Starr, and the police power of our Nation.
  This was not a civil rights suit in the context most of us would 
recognize. Indeed, there existed an extended and secret Jones legal 
team of outside lawyers--including George Conway and Jerome Marcus, 
experts on sexual harassment and Presidential immunity, who ghostwrote 
almost every substantive argument leveled by Paula Jones' lawyers; Ken 
Starr's friend Theodore Olson, and Robert Bork, the former Supreme 
Court nominee, who together advised the Jones team; Richard Porter, a 
law partner of Ken Starr and former Bush-Quayle opposition research 
guru, who also wrote briefs for the Jones team; and the conservative 
pundit and longtime Clinton opponent Ann Coulter, who worked on Paula 
Jones' response to President Clinton's motion for a dismissal. The 
connections between this crack--and covert--legal team, and Ken Starr's 
staff and his witnesses--including Paul Rosenzweig, Jackie Bennett, and 
Linda Tripp--as well as familiar figures including Lucianne Goldberg, 
add up to something far more than a twisted and disturbing game of six 
degrees of separation.
  I do not suggest that this was the right wing conspiracy bandied 
about on the talk shows. But I ask you--are we not able to acknowledge 
that this was a legal and political war of personal destruction--not 
just a civil rights case?
  And we cannot simply dismiss the fact that all of this turmoil--these 
entire proceedings--arise out of this deeply conflicted, highly 
partisan, ideologically driven, political civil rights case with 
incredible tentacles into and out of the office of the independent 
counsel.
  Moreover, I remind my colleagues, Mr. Starr is supposed to be 
independent counsel--not independent prosecutor. He was and is supposed 
to represent all of the Congress and nowhere do I remember voting for 
him to make a referral of impeachment--a report of facts, yes--a 
referral of impeachment, no.
  Now there is a rejoinder to all of this. Nothing wipes away what the 
President did or failed to do.
  So, some of you may say, So what? The President lied. The President 
obstructed justice. No one made him behave as he did. And yes, you're 
right. The President behaved without common sense, without courage, and 
without honor, but we are required to measure the totality of this 
case. We must measure how political this may have been; whether process 
was absurd; whether the totality of what the President did meets the 
constitutional threshold set by the Founding Fathers.
  We must decide whether the removal of the President is proportional 
to the offense and we must remember that proportionality, fairness, 
rule of law--they must be applied not just to convict, but also to 
defend--to balance the equities.
  I was here during Iran-contra and I remember the extraordinary care 
Senator Rudman, Senator Inouye, and Senator Sarbanes exerted to avoid 
partisanship and maintain proportionality. I wish I did not conclude 
that their example frankly is in stark contrast to the experience we 
are now living.
  The House managers often spoke to us of principle and duty. And 
equally frequently we were challenged to stand up for the rule of law.

[[Page 2556]]

  Well, we all believe in rule of law. But we also believe in the law 
being applied fairly, evenly--that the rule of law is not something to 
cite when it serves your purposes, only to be shunted aside when it 
encumbers.
  But where was the managers' duty to their colleagues in the House--in 
the committee--on the floor; where was the same self-conscious sense of 
pain for what they were going through, when they denied a bipartisan 
process for impeachment; where was their commitment to rule of law in 
denying the President's attorneys access to the exculpatory evidence 
which due process affords any citizen?
  Rule of law is a process in a democratic institution, and there is a 
duty to honor process.
  I believe the Senate has distinguished itself in that effort and I 
want to express my deep respect for the strongly held views of all my 
colleagues. Reasonable people can differ and we do, but we can still 
come together in an affirmation of the strength of our Constitution.
  Chairman Hyde says ``let it be done''--I hope it will be. Right 
requires we be proportional as to all aspects of this case. I hope that 
what we do here will apply the law in a way that gives confidence to 
all our citizens, that everyone can look at the final result of our 
deliberations and say justice was done. And we have called an end to 
the process by which we savage each other, and are beginning to heal 
our country.
  Mr. DeWINE. Mr. Chief Justice, my friends in the Senate, each of the 
articles before us contains numerous examples of conduct, any of which 
as alleged would constitute grounds for the President's removal from 
office. I have determined that most of these allegations have not been 
proven by clear and convincing evidence.
  Let me now turn to the three, at least for me, remaining allegations. 
First is the allegation that the President obstructed justice. When? 
After his Paula Jones deposition, he had his two, by now very famous, 
conversations with Betty Currie. The facts are familiar, but they are 
telling. On January 17, 1998, the President gave his deposition in the 
Paula Jones case. The Jones lawyers zeroed in on the relationship 
between Monica Lewinsky and the President. It was clear that the Jones 
lawyers had specific knowledge of the details of this relationship. In 
the President's answers, he referred repeatedly to Betty Currie. 
Further, counsel for Ms. Jones questioned the President in detail about 
Betty Currie, about her job, her hours at work, et cetera.
  I submit that any first year law school student who attended that 
deposition would know that Paula Jones was a prospective witness or 
would know that Betty Currie was a prospective witness. In fact, 5 days 
after the deposition Betty Currie was subpoenaed by the Jones lawyers. 
When the President returned to the White House after the deposition, he 
knew Betty Currie was a prospective witness.
  Sure enough, within 3 hours of the conclusion of the deposition, the 
President called Betty Currie at home on a Saturday night and asked her 
to come to the White House the next afternoon, Sunday. During the 
course of that Sunday afternoon meeting, the President informed Betty 
Currie that Monica's name came up during the deposition. According to 
Betty Currie's testimony, the President said to her--and we are all, of 
course, familiar with this--``You were always there when Monica was 
there, right?'' ``We were never really alone, right?'' ``Monica came on 
to me and I never touched her, right?'' ``You could see and hear 
everything, right?'' ``She wanted to have sex with me and I couldn't do 
that.''
  We are all familiar with that, but I think most significantly, and to 
me the most telling thing, is that 2 or 3 days later the President 
again spoke to Betty Currie and again made the same statements and used 
the same demeanor.
  The President does not dispute that he made these statements to Betty 
Currie. He explained he was just trying to refresh his memory about 
what the facts were. The President's explanation is simply not 
credible. It defies logic. Why would the President make five 
declarative statements to Betty Currie to ``refresh his memory'' when 
he knew that Betty Currie could not possibly know whether most of these 
statements were true? In fact, we know and the President knew that the 
statements were false.
  Betty Currie was a key potential witness who could contradict the 
President's sworn testimony in the Paula Jones deposition. She was also 
the President's subordinate. On two separate occasions the President 
made blatantly false statements to her to try to corrupt the due 
process of justice and with the intent to corruptly persuade her with 
the intention to influence her testimony. This charge of obstruction of 
justice, I believe, has been proven by clear and convincing evidence, 
and I might add it has been proven beyond a reasonable doubt.
  Let me now turn to the second allegation, the allegation that the 
President committed perjury on August 17, 1998, when he testified about 
these two post-deposition meetings with Betty Currie. I know there may 
be some who are still struggling with the perjury charge. I simply say 
this: If you believe, as I do, that the obstruction of justice charge 
is made based on the statements made to Betty Currie, then any fair 
reading of the grand jury testimony will indicate to you that you also 
have to find he committed perjury.
  Here is what he said:

       What I was trying to determine is whether my recollection 
     was right and she [Betty Currie] was always in the office 
     complex when Monica was there and whether they thought she 
     could hear any conversation we had, or did she hear any. I 
     thought what would happen is it would break in the press, and 
     I was trying to get the facts down. I was trying to 
     understand what the facts were.

  He also says, the President:

       I was not trying to get Betty Currie to say something that 
     was untruthful. I was trying to get as much information as 
     quickly as I could.

  I submit if the President is guilty of obstruction of justice in his 
statements to Betty Currie, then clearly, clearly, he also must be 
guilty of perjury in his account of these events to the grand jury. The 
two findings are inextricably connected. One cannot reach the first 
conclusion without reaching the second. I believe it has been proven by 
clear and convincing evidence that the President committed perjury. And 
I might also add, I believe it has been proven beyond a reasonable 
doubt. The evidence clearly shows that the President obstructed justice 
and then lied under oath about this obstruction in his grand jury 
testimony.
  Now, on the third charge, I believe the evidence shows that the 
President further perjured himself in the grand jury to avoid a perjury 
charge in his prior deposition. This perjury had to do with the nature 
and details of his relationship with Monica Lewinsky.
  I know that many people have come to the well and have expressed 
concern about how we got here, what brings us here today. I share some 
of those concerns. Congresses, beginning with this one, will have to 
deal with the aftermath of this sorry affair: court cases that have 
weakened the Presidency, a discredited independent counsel law.
  You will forgive me if I point out that I was one of the 80-some 
Members of the House who voted against the independent counsel law when 
it came up--please forgive me for that aside. I voted against it 
because I share some of the same concerns we have heard expressed here 
today and yesterday. We also will have to deal with the Secret Service 
that is now vulnerable to subpoenas and Presidents who are vulnerable 
to civil rights suits while in office.
  These are important issues, but I submit they are issues not for 
today but rather for another day. None of us wanted to be here, but we 
are where we are, the facts are what they are, and we know what we 
know. What we know is that the President obstructed justice and 
committed perjury. What must we do with this President who has 
obstructed justice and then committed perjury?
  Obstruction of justice and perjury strike at the very heart of our 
system of justice. By obstructing justice and committing perjury, the 
President has directly, illegally, and corruptly attacked a coequal 
branch of Government, the judiciary. It has been proven

[[Page 2557]]

by clear and convincing evidence that the President of the United 
States has committed serious crimes.
  But while I have found specific violations of law, it is not 
insignificant, in my final decision, that these specific criminal acts 
were committed within a larger context, a larger context of a 
documented pattern of indefensible behavior--behavior that shows a 
reckless disregard for the law and for the rights of others.
  I have concluded that the President is guilty of behaving in a manner 
grossly incompatible with the proper function and purpose of his 
office. In 1974, the House Judiciary Committee used those precise words 
to define an impeachable offense.
  I have also concluded that the President is guilty of the abuse or 
violation of a public trust. Alexander Hamilton, in Federalist No. 65, 
used those precise words to define an impeachable offense. What the 
President did is a serious offense against our system of government. It 
undermines the integrity of his office and it undermines the rule of 
law.
  Here is what Thomas Paine said about the rule of law:

       Let a crown be placed on the law by which the world may 
     know that, so far as we approve of monarchy, in America the 
     law is king.

  The law is indeed king in America. There isn't one law for the 
powerful and one for the meek. That is what we mean when we say we are 
a ``nation of laws.'' We elect a President to enforce these laws. In 
fact, the Constitution commands that the President ``take care that the 
laws be faithfully executed.''
  How can we allow a man who has obstructed justice and committed 
perjury to remain as the chief law enforcement officer of our country? 
How can we call ourselves a nation of laws and leave a man in office 
who has flouted those laws? We define ourselves as a people not just by 
what we hold up, not just by what we revere, but we also define 
ourselves by what we tolerate. I submit that this is something we 
simply, as a people, cannot tolerate.
  Mr. Chief Justice, I will vote to convict the President on both 
counts and to remove him from office.
  I ask unanimous consent that my full statement be included in the 
Record immediately following these remarks.
  The CHIEF JUSTICE. Without objection, it is so ordered.

                Supplemental Statement of Senator DeWine

       Mr. Chief Justice, members of the Senate: The President has 
     been impeached on two separate articles by the House of 
     Representatives.
       Article I charges that the President willfully provided 
     perjurious, false and misleading testimony to the grand jury.
       Article II charges that the President obstructed justice 
     (1).
       Each article contains numerous examples of conduct, any of 
     which, it is alleged, would constitute grounds for the 
     President's removal from office.
       I have examined each of these separate grounds or 
     allegations.
       I have determined that most of these allegations have not 
     been proven by clear and convincing evidence (2).
       I now turn to the three allegations that I believe have the 
     most merit.
       I. I examine first the allegation that the President 
     obstructed justice when on January 18 and January 20 or 21, 
     1998, he related a false and misleading account of events 
     relevant to a Federal civil rights action brought against him 
     to a potential witness in the proceeding--Betty Currie--in 
     order to corruptly influence her testimony.
       These are the essential facts: On January 17, 1998, the 
     President gave his deposition in the Paula Jones case. Jones' 
     lawyers zeroed in on the relationship between Monica Lewinsky 
     and the President. It was clear that the Jones lawyers had 
     specific knowledge of the details of this relationship. In 
     the President's answers, he referred--repeatedly--to Betty 
     Currie. For example, when asked whether he walked with Ms. 
     Lewinsky down the hallway from the Oval Office to his private 
     kitchen in the White House, the President said Ms. Lewinsky 
     was not there alone or that Betty was there (3); when asked 
     about the last time he spoke with Monica Lewinsky, he falsely 
     testified that he only recalled that she was only there to 
     see Betty (4); when asked whether he prompted Vernon Jordan 
     to speak to Monica Lewinsky, he stated that he thought Betty 
     asked Vernon Jordan to meet with Monica (5); and he said that 
     Monica asked Betty to ask someone to talk to Ambassador 
     Richardson about a job at the United Nations (6). Further, 
     counsel for Ms. Jones questioned the President in detail 
     about Betty Currie, her job, and her hours of work (7).
       Anyone reading the transcript would have to expect that 
     Jones was the President's subordinate. On two separate 
     occasions, the President made blatantly false statements to 
     her to try to corruptly influence the due administration of 
     justice and to attempt to corruptly persuade her with the 
     intent to influence her testimony (8).
       This charge of obstruction of justice has been proven by 
     clear and convincing evidence. (Let me state, for the record, 
     it has also been proven beyond a reasonable doubt.)
       II. Let me now turn to the second allegation--that the 
     President committed perjury on August 17, 1998, when he 
     testified about these two post-deposition meetings with Betty 
     Currie.
       Here is what the President said to the Grand Jury about 
     these meetings. He first testified that ``what I was trying 
     to determine was whether my recollection was right and that 
     she [Betty Currie] was always in the office complex when 
     Monica was there, and whether she thought she could hear any 
     conversations we had, or did she hear any . . . I thought 
     what would happen is that it would break in the press, and I 
     was trying to get the facts down. I was trying to understand 
     what the facts were'' (9).
       The President also testified that ``I was not trying to get 
     Betty Currie to say something that was untruthful. I was 
     trying to get as much information as quickly as I could'' 
     (10).
       When asked again about these statements, the President 
     said: ``I was trying to refresh my memory about what the 
     facts were . . . And I believe that this was part of a series 
     of questions I asked her to try to quickly refresh my memory. 
     So, I wasn't trying to get her to say something that wasn't 
     so'' (11).
       He was asked this specific question; ``If I understand your 
     current line of testimony, you are saying that your only 
     interest in speaking with Ms. Currie in the days after you 
     deposition was to refresh your own recollection?'' The 
     President responded: ``Yes'' (12).
       If the President is guilty of obstruction of justice in his 
     statements to Betty Currie, then clearly, he must also be 
     guilty of perjury in his account of these events to the grand 
     jury. The two findings are inextricably connected--one cannot 
     reach the first conclusion without also reaching the second.
       It has been proven by clear and convincing evidence that 
     the President committed perjury (13). (Let me state for the 
     record that it has also been proven beyond a reasonable 
     doubt.)
       III. The last allegation I would like to discuss is the 
     charge that the President committed perjury on August 17, 
     1998 before a Federal Grand Jury when he testified concerning 
     the nature and the details of his relationship with Monica 
     Lewinsky. Specifically, it is alleged that the President 
     committed perjury when he denied kissing or touching certain 
     body parts of Ms. Lewinsky. The President's denials were 
     quite specific on this point (14).
       Monica Lewinsky's testimony is just as unequivocal. She 
     describes, in graphic detail, ten separate encounters where 
     such intimate activities occurred (15). Ms. Lewinsky's story 
     is corroborated by numerous consistent contemporaneous 
     statements she made to her friends and counselors. Her 
     testimony is further corroborated by phone logs and White 
     House exit and entry logs.
       Counsel for the President have failed to show any motive 
     for Monica Lewinsky to lie about these details.
       Conversely, the President clearly had a motive to lie. He 
     could not, in his Grand Jury testimony, admit such sexual 
     activity without directly contradicting his deposition 
     testimony in the Paula Jones case. Such a contradiction would 
     have subjected him to a perjury charge in that case. To avoid 
     a perjury charge concerning the Jones deposition, the 
     President had to carefully craft an explanation so it was 
     clear he did not touch Monica Lewinsky. He had to do this to 
     avoid falling within the definition of ``sexual relations'' 
     that had been given him in the Jones deposition.
       The President's story defies common sense and human 
     experience. This is particularly true if you consider the 
     number of times the President and Monica Lewinsky were alone 
     and, in the President's words, engaged in ``inappropriate 
     behavior.'' It is also probative that the President's DNA was 
     found on Monica Lewinsky's dress.
       The charge of perjury has been proven by clear and 
     convincing evidence. (Let me state, for the record, that it 
     has also been proven beyond a reasonable doubt.)
       That concludes my findings of fact. The evidence clearly 
     shows that the President obstructed justice and then lied 
     under oath about this obstruction in his grand jury 
     testimony. He further perjured himself in the grand jury to 
     avoid a perjury charge in his prior deposition.
       I wish this were not true. When I began my examination of 
     this case, I assumed that I would vote not guilty. I assumed 
     that the evidence simply would not be sufficient to convict.
       Unfortunately, the facts are otherwise.
       Many people, including myself, are deeply concerned about 
     how we got here. Congresses--beginning with this one--will 
     have

[[Page 2558]]

     to deal with the aftermath of this sorry affair: Court cases 
     that have weakened the Presidency; a discredited independent 
     counsel law; a Secret Service vulnerable to subpoenas; and 
     Presidents who are subjects to civil suits while in office.
       These are important issues. But they are issues for another 
     day.
       None of us wanted to be here. But we are where we are. The 
     facts of the President's misconduct are what they are. We 
     know what we know. And although each of us may find some of 
     the acts more offensive than others, all of them are 
     disturbing, all are very serious, and all lead to the same 
     conclusion: The President obstructed justice and committed 
     perjury.
       What must we do with this President who has obstructed 
     justice, and then committed perjury about that obstruction?
       Obstruction of justice and perjury strike at the very heart 
     of our system of justice. By obstructing justice and 
     committing perjury, the President has directly, illegally, 
     and corruptly attacked a co-equal branch of government, the 
     judiciary.
       The requirement to obey the law applies to us all, in all 
     cases. To say a President can obstruct justice is to put the 
     President above the law, and above the Constitution.
       Perjury is also a very serious crime. The Constitution 
     gives every defendant a choice: Testify truthfully, or remain 
     silent. No one can be forced to testify in a manner that 
     involves self-incrimination. But a decision to place one's 
     hand on the Bible and invoke God's witness--and then lie--
     threatens the judiciary. The judiciary is designed to be a 
     mechanism for finding the truth--so that justice can be done. 
     Perjury perverts the judiciary, turning it into a mechanism 
     that accepts lies--so that injustice may prevail.
       It has been proven by clear and convincing evidence that 
     the President of the United States has committed serious 
     crimes. But although I have found specific violations of law, 
     it is not insignificant in my final decision that these 
     specific criminal acts were committed within a larger context 
     of a documented pattern of indefensible behavior--behavior 
     that shows a reckless disregard for the law and for the 
     rights of others.
       I have concluded that the President is guilty of ``Behaving 
     in a Manner Grossly Incompatible with the Proper Function and 
     Purpose of (his) Office.'' In 1974, the House Judiciary 
     Committee used those precise words to define an impeachable 
     offense (16).
       I have also concluded that the President is guilty of ``the 
     abuse or violation of (a) public trust.'' Alexander Hamilton, 
     in the Federalist No. 65, used those precise words to define 
     an impeachable offense.
       What the President did is a serious offense against the 
     system of government. It undermines the integrity of his 
     office. And it undermines the rule of law.
       Here's what Thomas Paine said about the rule of law: ``Let 
     a crown be placed (on the law), by which the world may know, 
     that so far as we approve of monarchy, that in America the 
     law is king'' (17).
       The law is indeed king in America. There isn't one law for 
     the powerful and one for the meek. That's what we mean when 
     we say we are a nation of laws. We elect a President to 
     enforce these laws. The Constitution commands that he ``take 
     care that the laws be faithfully executed.''
       How can we allow a man who has obstructed justice and 
     committed perjury to remain as the chief law enforcement 
     officer of our country?
       How can we call ourselves a nation of laws, and tolerate a 
     man in office who has flouted those laws?
       We define ourselves as a people not just by what we revere, 
     but by what we tolerate. This, in my view, is simply not 
     tolerable. I will vote to convict the President on both 
     counts, and to remove him from office.
       I wish to acknowledge the assistance of many talented 
     individuals who have helped me address these difficult 
     questions of fact, law, and policy. I have been given able 
     counsel by Karla Carpenter, Helen Rhee, Louis DuPart, Robert 
     Hoffman, Laurel Pressler, and Michael Potemra on my Senate 
     staff; my good friends William F. Schenck, Curt Hartman, 
     Nicholas Wise, and Charles Wise; and my son and valued 
     adviser Patrick DeWine. All deserve my sincere thanks; of 
     course, the responsibility for the conclusions remains mine 
     alone.


                                 notes

       1. Specifically, the article charges that ``the President 
     has prevented, obstructed, and impeded the administration of 
     justice and has to that end engaged personally, and through 
     his subordinates and agents, in a course of conduct or scheme 
     designed to delay, impede, cover-up, and conceal the 
     existence of evidence and testimony related to a Federal 
     civil rights action brought against him in a duly instituted 
     judicial proceeding.''
       2. Each Senator must determine the standard of proof to be 
     applied in judging an impeachment case. In weighing the facts 
     of this impeachment, I have used the standard of proof of 
     ``clear and convincing evidence''. The Modern Federal Jury 
     Instruction describes clear and convincing evidence as 
     ``proof (that) leaves no substantial doubt in your kind . . . 
     that establishes in your mind, not only the proposition at 
     issue is probable, but also that it is highly probable. It is 
     enough if the party with the burden of proof establishes his 
     claim beyond any `substantial doubt he does not have to 
     dispel every `reasonable doubt'.'' Modern Federal Jury 
     Instructions, section 73.01 (1998). I have rejected the 
     standard of proof ``beyond a reasonable doubt,'' which 
     applies to criminal cases. This standard is not applicable to 
     a case in which the defendant is threatened not with loss of 
     liberty but with loss of office. I have also rejected the 
     standard of ``preponderance of the evidence.'' This standard, 
     which would provide for conviction if the scales of evidence 
     were tipped ever so slightly against the President, would not 
     treat removal from office with the seriousness and gravity it 
     deserves.
       3. Question: Do you recall ever walking with Jane Doe 6 
     Lewinsky down the hallway from the Oval Office to your 
     private kitchen there in the White House?
       Answer: . . . Now, to go back to your question, my 
     recollection is that, that at some point during the 
     government shutdown, when Ms. Lewinsky was still an intern 
     but was working the chief of staff's office because all the 
     employees had to go home, that she was back there with a 
     pizza that she brought to me and to others. I do not believe 
     she was there alone, however. I don't think she was. And my 
     recollection is that on a couple of occasions after that she 
     was there but my secretary Berry Currie was there with her. 
     She and Betty are friends. That's my, that's my recollection. 
     And I have no other recollection of that.
       4. Question: When was the last time you spoke with Monica 
     Lewinsky?
       Answer: I'm trying to remember. Probably sometime before 
     Christmas. She came by to see Betty sometime before 
     Christmas. And she was there talking to her, and I stuck my 
     head out, said hello to her.
       Question: Stuck your head out of the Oval Office?
       Answer: Uh-huh, Betty said she was coming by and talked to 
     her, and I said hello to her.
       Question: I believe I was starting to ask you a question a 
     moment ago and we got sidetracked. Have you ever talked to 
     Monica Lewinsky about the possibility that she might be asked 
     to testify in this lawsuit?
       Answer. I'm not sure, and let me tell you why I'm not sure. 
     It seems to me the, the--I want to be as accurate as I can 
     here. Seems to me the last time she was there to see Betty 
     before Christmas we were joking about how you-all, with the 
     help of the Rutherford Institute, were going to call every 
     woman I'd ever talked to, and I said, you know----
       Mr. Bennett: We can't hear you, Mr. President.
       Answer: and I said that you-all might call every woman I 
     ever talked to and ask them that, and so I said you would 
     qualify, or something like that . . .
       Question: Was anyone else present when you said something 
     like that?
       Answer: Betty, Betty was present, for sure. Somebody else 
     might have been there, too, but I said that to a lot of 
     people. I mean that was just something I said.
       5. Question: You know a man named Vernon Jordan?
       Answer: I know him well.
       Question: You've known him for a long time.
       Answer: A long time.
       Question: Has it ever been reported to you that he met with 
     Monica Lewinsky and talked about this case?
       Answer: I knew that he met with her. I think Betty 
     suggested that he meet with her. Anyway, he met with her. I, 
     I thought that he talked to her about something else. I 
     didn't know that--I thought he had given her some advice 
     about her move to New York. Seems like that's what Betty 
     said.
       Question: So Betty, Betty Currie suggested that Vernon 
     Jordan meet with Monica Lewinsky?
       Answer: I don't know that.
       Question: I thought you just said that. I'm sorry.
       Answer: No, I think, I think, I think Betty told me that 
     Vernon talked to her, but I, but my impression was that 
     Vernon was talking to her about her moving to New York. I 
     think that's what Betty said to me.
       Question: Did you do anything, sir, to prompt this 
     conversation to take place between Vernon Jordan and Monica 
     Lewinsky?
       Answer: I can tell you what my memory is. My memory is that 
     Vernon said something to me about her coming in, Betty had 
     called and asked if he would see her and he said he would, he 
     said he would, and then she called him and then he said 
     something to me about it . . .
       Question: My question, though, is focused on the time 
     before the conversation occurred, and the question is whether 
     you did anything to cause the conversation to occur.
       Answer: I think in the mean--I'm not sure how you mean the 
     question. I think the way you mean the question, the answer 
     to that is no, I've already testified. What my memory of this 
     is, if you're asking did I set the meeting up, I do not 
     believe that I did. I believe that Betty did that, and she 
     may have mentioned, asked me if I thought it was all right if 
     she did it, and if she did ask me I would have said yes, and 
     so if that happened, then I did something to cause the 
     conversation to occur. If that's what you mean, yes. I didn't 
     think there was anything wrong with it. It

[[Page 2559]]

     seemed like a natural thing to do to me, But I don't believe 
     that I actually was the precipitating force. I think that she 
     and Betty were close, and I think Betty did it. That's my 
     memory of it.
       6. Question: Have you ever asked anyone to talk to Bill 
     Richardson about Monica Lewinsky?
       Answer: I believe that, I believe that Monica, what I know 
     about that is I believe Monica asked Betty Currie to ask 
     someone to talk to him, and she, and she talked to him and 
     went to an interview with him. That's what I believe 
     happened.
       Question: And the source of that information is who?
       Answer: Betty. I think that's what Betty--I think Betty did 
     that. I think Monica talked to Betty about moving to New 
     York, and I, my recollection is that that was the chain of 
     events.
       Question: Did you say or do anything whatsoever to create a 
     possibility of Monica Lewinsky getting a job at the U.N.?
       Answer: To my knowledge, no, although I must say I wouldn't 
     have thought there was anything wrong with it. You know, she 
     was a--she had worked in the White House, she had worked in 
     the Defense Department, and she was moving to New York. She 
     was a friend of Betty. I certainly wouldn't have been opposed 
     to it, based on anything I knew, anyway.
       7. Question: How long has Betty Currie been your secretary?
       Answer: Since I've been president.
       Question: How is her work schedule arranged? Does she have 
     a certain shift that she works, or do you ask her to work 
     certain hours the following day? Please explain how her 
     schedule is determined.
       Answer: She works, she comes to work early in the morning 
     and normally stays there until I leave at night. She works 
     very long hours, and then when I come in on the weekend, or 
     on Saturday, if I work on Saturday, she's there, and normally 
     if I'm, if I'm working on Sunday and I'm having a schedule of 
     meetings, either she or Nancy Hernreich will be there. One of 
     them is always there on the weekend. Sometimes if I come over 
     just with paperwork and work for a couple of hours, she's not 
     there, but otherwise she's always there when I'm there.
       Question: Have you ever met with Monica Lewinsky in the 
     White House between the hours of midnight and six a.m.?
       Answer: I certainly don't think so.
       Question: Have you ever met--
       Answer: Now, let me just say, when she was working here, 
     during, there may have been a time when we were all--we were 
     up working late. There are lots of, on any given night, when 
     the Congress is in session, there are always several people 
     around until later in the night, but I don't have any memory 
     of that. I just can't say that there could have been a time 
     when that occurred, I just--but I don't remember it.
       Question: Certainly if it happened, nothing remarkable 
     would have occurred?
       Answer: No, nothing remarkable. I don't remember it.
       Question: It would be extraordinary, wouldn't it, for Betty 
     Currie to be in the White House between midnight and six 
     a.m., wouldn't it?
       Answer: I don't know what the facts were. I meant I don't 
     know. She's an extraordinary woman.
       Question: Does that happen all the time, sir, or rarely?
       Answer: Well, I don't know, because normally I'm not there 
     between midnight and six, so I wouldn't know how many times 
     she's there. Those are questions you'd have to ask her. I 
     just can't say.
       8. There are two statutes regarding obstruction of justice 
     that are relevant to the facts of this case: 18 U.S.C. 1503 
     which provides ``Whoever corruptly . . . influences, 
     obstructs, or impedes, or endeavors to influence, obstruct, 
     or impede, the due administration of justice . . .'' shall be 
     guilty of the crime of obstruction of justice and 18 U.S.C. 
     1512 which provides ``Whoever knowingly . . . corruptly 
     persuades another person, or attempts to do so, or engages in 
     misleading conduct toward another person, with intent to--(1) 
     influence, delay or prevent the testimony of any person in an 
     official proceeding . . .'' shall be guilty of the crime of 
     witness tampering.
       9. President's Grand Jury testimony, August 17, 1998, pp. 
     55-56.
       10. Ibid., p. 56.
       11. Ibid., pp. 131-2.
       12. There are two federal perjury statutes relevant to the 
     facts of this case: 18 U.S.C. 1621 which provides that 
     ``Whoever--having taken an oath before a competent tribunal, 
     . . . or person, in any case, in which a law of the United 
     States authorizes an oath to be administered, that he will 
     testify, declare, depose, or certify truly, . . . willfully 
     and contrary to such oath states or subscribes any material 
     matter which he does not believe to be true . . .'' shall be 
     guilty of an offense against the United States; and 18 U.S.C. 
     1623 which provides that ``Whoever under oath . . . in any 
     proceeding before . . . any . . . court or grand jury of the 
     United States knowingly makes any false material declaration 
     . . .'' shall be guilty of an offense against the United 
     States. A statement is material ``if it has a natural 
     tendency to influence, or is capable of influencing, the 
     decision of the decisionmaking body to whom it is 
     addressed.'' A statement is no less material because it did 
     not or could not confuse or distract the decision maker. In 
     this case, the President made false statements to a grand 
     jury investigating ``whether Monica Lewinsky or others 
     suborned perjury, obstructed justice, intimidated witnesses 
     or otherwise violated federal law other than a Class B or C 
     misdemeanor or infraction in dealing with witnesses, 
     potential witnesses, attorneys, or others concerning the 
     civil case Jones v. Clinton.'' [January 16, 1998 Order of the 
     Special Division of the United States Court of Appeals for 
     the District of Columbia Circuit to expand the jurisdiction 
     of independent counsel Kenneth W. Starr.] The President's 
     false statements strike at the very heart of what the grand 
     jury was investigating--perjury and obstruction of justice--
     and are material.
       13. Grant Jury Testimony, President Clinton, 8/17/98, pp. 
     593-94.
       14. Question: So, touching, in your view then and now--the 
     person being deposed touching or kissing the breast of 
     another person would fall within the definition?
       Answer: That's correct sir.
       Question: And you testified that you didn't have sexual 
     relations with Monica Lewinsky in the Jones deposition, under 
     that definition, correct?
       Answer: That's correct, sir.
       Question: If the person being deposed touched the genitalia 
     of another person, would that be and with the intent to 
     arouse the sexual desire, arouse or gratify, as defined in 
     definition (1), would that be, under your understanding then 
     and now----
       Answer: Yes, sir.
       Question: --Sexual relations?
       Answer: Yes, sir.
       Question: Yes, it would?
       Answer: Yes, it would. If you had direct contact with any 
     of these places in the body, if you had direct contact with 
     intent to arouse or gratify, that would fall within the 
     definition.
       Question: So, you didn't do any of those three things----
       Answer: You----
       Question: --With Monica Lewinsky?
       Answer: You are free to infer that my testimony is that I 
     did not have sexual relations, as I understood this term to 
     be defined.
       Question: Including touching her breast, kissing her 
     breast, or touching her genitalia?
       Answer: That's correct.
       Grant Jury Testimony, President Clinton, 8/17/98, p. 94-95.
       15. These incidents occurred on November 15th, 1995 
     (Deposition Testimony, Monica Lewinsky, 8/26/98, p. 6, lines 
     22-25; p. 7, 11.1-21); November 17th, 1995 (Ibid., p. 10, 
     11.20-25; p. 11, 11.1-25); December 31st, 1995 (Ibid., p. 16, 
     11.2-10); January 7th, 1996 (Ibid., p. 18, 11.15-19); January 
     21st, 1996 (Ibid., p. 24, 11.11-23); February 4th, 1996 
     (Ibid., p. 28, 11.23-25; p. 29, 11.1-20); March 31st, 1996 
     (Ibid., p. 36, 11.2-24); April 7th, 1996 (Ibid., p. 39, 
     11.19-25; p. 40, 11.1-6); February 28th, 1997 (Ibid., p. 45, 
     11.23-25; p. 46, 11.1-15); and March 29th, 1997 (Ibid., p. 
     49, 11.5-14).
       16. See House Comm. on the Judiciary, 93rd Cong., 
     Constitutional Grounds for Presidential Impeachment 18 (Comm. 
     Print 1974).
       17. Quoted in Maxwell Taylor Kennedy, ed., Make Gentle the 
     Life of This World: The Vision of Robert F. Kennedy. p. 106.

  Ms. LINCOLN. Mr. Chief Justice, I thank you for your thoughtfulness 
and patience in these proceedings. I apologize that my back is to you.
  I would also like to thank the majority leader and the minority 
leader. I have been awed by their patience--just as Job had the 
patience--to deal with all of us on our particulars that we have wanted 
to express here and the time constraints we have all felt. They have 
done a wonderful job in accommodating all of us and certainly giving 
these proceedings the dignity that I think all Americans have expected. 
I do appreciate that.
  As the youngest female Senator in the history of our country, as a 
farmer's daughter raised on the salt of the earth with basic Christian 
values, and as a young mother whose first priority in life is my family 
and the well-being of the world that they live in, I regret that my 
first opportunity to speak on the floor of this historic Chamber is 
under these circumstances. And I am reluctant to speak here today. I 
had intended to wait until I had more experience under my belt before I 
addressed my esteemed colleagues here. You will find that I am not 
quite as eloquent, or as lengthy, as my predecessor; but I will work on 
that. But because of the historical aspects of this proceeding, I feel 
it is important that my thoughts and my judgments are expressed here 
today.
  I, like President Clinton and my colleague, Senator Hutchinson, grew 
up in a small town in Arkansas, the oldest

[[Page 2560]]

city in Arkansas. My colleague expressed regret that the black and 
white of right and wrong is not as easy as it was growing up in that 
small rural community. I am reminded of the wisdom that my grandmother 
shared with me as a younger woman returning home from college. I sat on 
our back porch and I expressed to her my agony over what difficult 
times I was growing up in, and that she could not possibly know or 
understand because right and wrong were so much easier in her day. She 
quickly corrected me. Right and wrong becomes more difficult for each 
of us as we grow older, because the older we get the more we know 
personally about our own human frailties.
  I will not discuss the historical or the legal aspects about what we 
are doing here today and what we have been doing in these past weeks. I 
am not a lawyer; neither am I a historian. But I do want to thank each 
of you for your legal and your historical aspects, and the heartfelt 
wisdom and guidance that you have shared with me and with all of us as 
colleagues.
  I want desperately to cast the right vote for the people that I 
represent in Arkansas and for all the people of this great country. My 
heart has been heavy and I have deliberated within my own conscience, 
knowing that my decision should not come out of my initial emotion of 
anger toward the President for such reckless behavior, but should be 
based on the facts. I have approached this both as a parent and as a 
public servant, with the ultimate goal of doing what is right for our 
country. Since hearing of the President's misconduct, I have in no way 
tried to make excuses for the President or to defend such dishonorable 
behavior. I have tried to determine how we should communicate to our 
children and our Nation that this very visible misconduct is 
unacceptable.
  I have sought to reconcile in my mind what is appropriate 
condemnation of such action and what is the best course of action for 
the future of the Presidency and for this country. In my efforts to 
reach a fair conclusion, I have listened to the presentation of 
evidence from both sides. I have examined the historical intent of our 
Founding Fathers with regard to impeachment and my constitutional 
responsibility as a Senator--however young I may be. I have sought the 
counsel of colleagues, family, friends and constituents; and, of 
course, I have prayed for guidance for myself and for our country.
  My home State of Arkansas has been under the scrutiny of a powerful 
microscope these past 6 years and, yes, regardless of how closely we 
may be viewed, any of us, character does count in each and every one of 
us. But who of us in this Chamber does not have a chapter in our 
individual books of life that we might be ashamed of or might regret--a 
chapter that might be revealed under such a powerful microscope, 
something we might be so ashamed of that we might mislead others to 
spare our families, our very children, the pain and sorrow?
  Many have referenced what they would do if another President of their 
own party were in this situation, and they have indicated that they 
would still vote the same.
  But the true test, I say, is what each of us would want done if we 
were in this President's position. How would we want to be treated? And 
who of us would not go to great lengths to protect our children and our 
families from the pain and embarrassment that we have seen over the 
course of these years?
  I have also heard many people say that the President should be 
removed from office because he set a poor example for our children. It 
is all of our responsibility to set an example for our children. It is 
not just the President's. Ultimately, my husband and I have the 
responsibility to teach our children. And we will teach our children 
that misconduct is unacceptable. The President's conduct, however 
troubling, does not take away my responsibility to teach what is right 
to my children. Future generations depend on each of us--not just the 
President--to teach and to lead.
  Many are amazed that the general public, although they believe that 
the President's behavior was wrong, does not want him removed from 
office. I am not so amazed by this as I find it reassuring. This 
expression of humanity and forgiveness from the real-life people of 
this Nation that we represent reassures us that in our highly 
technical, fast-paced and somewhat impersonal society, we as a country 
but, more importantly, we as human beings, are still equipped to handle 
this or any other situation.
  It is striking to me that we are at a crossroads in our Nation at 
this entrance into the 21st century. We are being tested--not by war or 
by pestilence--but by conflict that is our own trouble from within. 
This requires us to reflect on not only the lessons we have learned 
but, more importantly, those that we want to leave. These lessons 
should not only demonstrate how we as a country prosper, or how our 
people advance, but how we treat and relate to one another as 
individuals.
  So today, after much careful thought and deliberation, I have come to 
the conclusion that the President's actions, while dishonorable, do not 
rise to the level of an impeachable offense warranting his removal from 
office. Impeachment was never intended to be a vehicle or a means of 
punishment. And the standard to prove high crimes and misdemeanors has 
not been met by the disjointed facts strung together by a thread of 
inferences and assumptions that were presented here.
  I have and will support a strong bipartisan censure resolution that 
tells the President and this Nation that the President's misconduct 
with a subordinate White House employee was deplorable, and that future 
generations must know that such conduct will lead to a profound loss of 
trust, integrity and respect. I believe there has to be consequences 
here not only to demonstrate that something wrong has been done but to 
finally bring closure to this ordeal, not just for us but also for the 
American people.
  Above all else, I believe we have been entrusted not only to be 
judges and jurors in this trial, but we have also been entrusted with 
the last word. Senator Kerrey from Nebraska spoke strongly to this--
that the last word from this body's collective voice should be a 
chorus, loud and clear, of how great this land and our people are.
  The President, actually in his own words from his 1993 inaugural 
address, aptly replied. He said, ``There is nothing wrong with this 
country that cannot be fixed by what is right with this country.''
  The most important thing we can do in the last days of this trial is 
to present the good in the U.S. Senate, in our government, and in our 
Nation for the sake of our children and future generations. I hope and 
pray that in the following weeks this body will grasp the leadership 
role and to begin the process of healing our Nation, restoring pride in 
our Government, and inspiring faith in our leaders once again.
  Mr. HELMS. Mr. Chief Justice, 26 years ago this past November, I was 
first elected to serve as a United States Senator from North Carolina. 
I had not believed it possible that I would be the first Republican 
directly elected to the U.S. Senate by the people of North Carolina.
  I have often told many of the thousands of young people with whom I 
have visited during the past 26 years that one of three commitments I 
made to myself on that election night in November 1972 was that I would 
never fail to see a young person, or a group of young people, who want 
to see me.
  That was one of the most meaningful decisions I ever made. I am told 
that I have met with something in the neighborhood of almost 70,000 
young people according to our records for the past 26 years.
  These are wonderful young Americans and I am persuaded that they are 
by all odds the most valuable treasure held by our country.
  For the better part of the past year, these young people have almost 
without fail asked me about what they described as ``the problems'' of 
President Clinton. The vast majority of the time, the young people have 
talked about the moral and spiritual principles so deeply etched in the 
hearts of those patriots whom we today call our Founding

[[Page 2561]]

Fathers--or the Framers of our Constitution--or both--when America was 
created.
  So, in the first few weeks of this New Year 1999, I have begun my 
remarks to the young visitors with the recitation of two statements 
that I sincerely believe have much to do with whether (and how) this 
blessed nation can and will survive.
  The first statement: ``A President cannot faithfully execute the laws 
if he himself is breaking them.''
  The second statement: ``The foundations of this country were not laid 
by politicians running for something--but by statesmen standing for 
something.''
  The first statement was voiced by a former distinguished Democratic 
U.S. Attorney General of the United States, The Honorable Griffin Bell.
  The second was sent to me at Christmas time by a friend whose name 
and voice I suspect is familiar to most if not all Senators, my dear 
friend, George Beverly Shea, who for so many years has thrilled and 
inspired millions as he stood beside Billy Graham and, singing with 
that remarkably deep voice ``* * * How great Thou art.''
  Our trouble today is that the American people every day, must choose 
between what is popular and what is right. There is a constant deluge 
of public opinion polls telling us which way to go, almost without fail 
showing the popular way.
  But I must put it to you that we will, at our own peril, look to 
opinion polls to decide how we vote, when the real need is to look to 
our hearts, to our consciences and to our soul. So many decisions are 
made in the Senate--be it on the fate of treaties, or legislation, or 
even presidents--decisions having implications, not merely for today, 
but for generations to come, reminding that if we don't stand for 
something, the very foundations of our Republic will crumble.
  Perjury and obstruction of justice are serious charges, as nobody 
knows better than you, Mr. Chief Justice, charges that have been proved 
during the course of this trial. Therefore, the outcome of this trial 
may determine whether America is becoming a fundamentally unprincipled 
nation, bereft of the mandates by the Creator who blessed America 210 
years ago with more abundance, more freedom than any other nation in 
history has ever known.
  There is certainly evidence fearfully suggesting that the Senate may 
this week fail to convict the President of charges of which he is 
obviously guilty. What else can be made of the behavior of many in the 
news media whose eyes are constantly on ratings instead of the survival 
of America?
  This trial has been dramatized as if it were a Hollywood movie 
trivializing what should be respected as our solemn duty.
  The new media technology is creating an explosion of media outlets 
and 24-hour news channels--and a brand new set of challenges.
  A friend back home called me after an impressive presentation by one 
of the House managers and said, ``You know, Jesse, I found Asa 
Hutchinson persuasive. But I had to tune into CNN to see whether it was 
effective--because I knew without the media's immediate stamp of 
approval, it wouldn't make a damn bit of difference.''
  He had a valid point. Mr. Chief Justice, the awesome power of the 
media with its instant analysis is frightening. A political event 
occurs. The TV commentators immediately offer their lofty opinions; 
overnight surveys are taken and many politicians are all too often 
cowed into submission by poll results.
  In these proceedings, the House Managers of course provided a forest 
of evidence clearly indicating that the President of the United States 
perjured himself before a federal grand jury and obstructed justice. 
The imaginative White House attorneys of course chopped down a few 
trees here and there--and then proclaimed that the whole forest had 
burned down. The press gallery bought that whole concept.
  Some years ago, there was a western movie starring Jimmy Stewart and 
John Wayne called ``The Man Who Shot Liberty Valance.'' Jimmy Stewart 
portrayed a tender-footed young lawyer who ran afoul of the local 
outlaw, Liberty Valance.
  Through a twist of fate, the character played by Jimmy Stewart 
received credit for ridding the county of the outlaw, even though it 
was John Wayne's gun that brought Liberty Valance down. Yet it was 
Stewart who rode public acclaim into a political career in the United 
States Senate, while Wayne's character faded into obscurity.
  Late in life, Stewart's character, still a Senator, returned from 
Washington to attend John Wayne's funeral. Stewart felt guilty, of 
course, that the truth of Wayne's heroism remained untold. He related 
the entire story to the local newspaper, only to find the editor 
totally disinterested.
  ``When the legend becomes fact,'' the editor said, ``print the 
legend.''
  With its vote on Articles of Impeachment, the United States Senate is 
preparing to add to the legend of this whole sordid episode, Mr. Chief 
Justice. We have the facts before us and we should heed those facts 
because truth must become the legend.
  We must not permit a lie to become the truth.
  A couple of weeks ago, a Falls Church Episcopal minister, the 
Reverend John Yates delivered a remarkable sermon to his parishioners. 
The Reverend Dr. Yates had this to say about lying--and liars:

       . . . if a person will lie, and develops
       a pattern of lying as a way of life,
       that person will do anything. Someone
       who becomes good at lying loses his
       fear of being discovered and will move
       on to any number of evil actions. He
       becomes arrogant and self-assured.
       He comes to believe he is above the
       law. You should fear people like this.
       If such a person is caught red-handed
       in a lie and confronted with the evidence,
       that sort of man or woman will be
       forced to admit it, but he won't like
       it. It will make him angry and vengeful.
       He will do all he can to move and leave
       it behind. It's what the Bible calls
       evidence of a seared conscience, not a
       sensitive conscience, but a seared
       conscience.''

  If we allow the lies of the President of the United States of America 
to stand, Mr. Chief Justice, then I genuinely fear for America's 
survival.
  Shortly before his death, Senator Hubert Humphrey visited this 
chamber for the last time. He knew it was the last time; we knew it was 
the last time. Hubert's frail body was wracked with cancer, his steps 
were halting, his voice feeble. But as he walked down the aisle, Hubert 
saw me standing at my desk over there. He walked over to me, arms 
outstretched. Tears welled up in my eyes as Hubert hugged me softly 
saying, ``I love you''.
  I loved Hubert Humphrey too, Mr. Chief Justice, and I told him so.
  Hubert and I disagreed on almost all policy matters, large and small. 
Often Hubert got the better of me in debates, a few times I did it to 
him. But I loved Hubert Humphrey because we agreed on so much more--
duty, honor, patriotism, faith and justice, the very essence of 
America.
  But we are obliged to ponder: What is the essence of America now? 
Public life once was about honest debate on the merits, but it is now 
often a debate on the merits of honesty. And it was the President of 
the United States who brought us where we are today.
  In November of 1955, a young editor named William F. Buckley 
undertook an ambitious mission, now completed. Bill had decided to 
start a conservative journal of ideas that would fuel an entire 
political movement.
  In his ``Publisher's statement'', printed in the very first edition 
of National Review, he declared that his magazine ``stands athwart 
history yelling `Stop!' ''
  Mr. Chief Justice, I plead with Senators to look around and see what 
Bill Clinton's scandal has wrought. National debate is now a national 
joke. Children tell their parents and teachers that it's okay to lie, 
because the President does it. Our citizens tune out in droves, 
preferring the daily distractions of everyday life to an honest 
appraisal of the depths to which the Presidency of the United States 
has sunk.
  If this is progress and if this is the path history is taking, the 
Senate does have an acceptable alternative:

[[Page 2562]]

  We simply must summon our courage and yell, ``Stop tampering with the 
soul of America''.
  Mr. HOLLINGS. Mr. Chief Justice, I shall vote with a clear conscience 
not to convict; rather, to acquit. And I have no better authority, of 
course, than my own Congressman, the manager, Lindsey Graham, when 
asked--and I will never forget it--by the Senators from North Carolina 
and Wisconsin: ``Under the law and the facts as then submitted at the 
end of the presentation, could reasonable people find differently with 
respect to guilt?'' and Congressman Graham said, ``Why, of course,'' 
that reasonable people could differ. And when the manager says there is 
reasonable doubt, that ends the case.
  But let's remember that the impeachment clause is not intended to 
punish the President, but to protect the Republic. And the mistake in 
this entire presentation on both sides, in my judgment, has been that 
they have been trying a criminal case rather than a political case. 
What is really for the good of the country? I go to the understanding 
of the impeachment clause with respect to the author himself, George 
Mason, who said, ``must be guilty of high crimes and misdemeanors 
against the State.'' And Justice Story, in the midcentury, said that 
you could only impeach a President for conduct that only the President 
could engage in.''
  I will never forget, when they gave us the booklet, in the Nixon 
impeachment, by the eminent professor of constitutional law, Charles 
Black, he said that ``an impeachable offense must constitute a deep 
wrong to the country, an abuse of Presidential power.'' And everybody 
is talking about the polls and I think they are significant. When 80 
percent of the people believe the President lied, and I believe he 
did--not on the perjury charge, and not on the obstruction of justice, 
of course, but I believe he lied--and 80 percent of the people believe 
he lied, but 70 percent of the people said keep him there. Why? Because 
there wasn't a deep wrong to the country.
  Let's get to it. Fooling around--that was what Monica Lewinsky called 
it--seen as sex and not, fooling around is not a crime. In fact, actual 
intercourse constitutes adultery, a crime which the managers, I would 
say, are very familiar with.
  We must remember that the fooling around was between consenting 
adults, both of them sexually experienced. Incidentally, in private 
both of them are admitted liars. The President said he lied. Monica 
said that she grew up lying, was taught to lie.
  But the managers said, ``Oh, this isn't about sex, this is about 
crime.'' Really? I have been at the law too long. A sues B for the 
crime of adultery, sexual misconduct. A and B both swear under oath and 
through their pleadings and their testimony and not before a halfway 
grand jury. I always wondered, what if prosecutors went under oath 
before a grand jury? We would have to build new courthouses. But be 
that as it may, they swear under oath in testimony before the judge who 
is trying the case on its merits, and A or B loses--whoever the loser--
are they taken over to criminal court and charged for lying under oath 
and obstruction of justice?
  I called a prosecutor in Congressman Graham's district, an 18-year 
experienced prosecutor, a Republican, George Duckworth. I said, 
``George, have you ever taken lying under oath and obstruction of 
justice for sexual misconduct--have you ever taken that to criminal 
court?'' He said, ``It's never happened.''
  I then went to the chief of all the State prosecutors, John Justice, 
who happens to be from my State, and he said he had never heard of it.
  So we are beginning to get to really what is going on, and that is 
not to say, whoopee, everybody lies about sex and we can go ahead and 
do that. We are not saying that at all, because the President can be 
charged with it, as anybody can. It might be a rare case, but we ought 
to remember, rather than that one witness that they found--and I guess 
they will find another one--but the Republican district attorneys who 
testified on the House side, the deputy attorney general in charge of 
the Criminal Division, William Weld, they said they would never bring 
the case.
  This case never should have been brought. Any respectable prosecutor 
would have been embarrassed actually to so charge.
  I will never forget when this commenced, David Pryor, the Senator 
from Arkansas almost 4 years ago, said: Wait a minute, 41 TDY FBI 
agents coming from one side of Arkansas to the other, 81 support 
personnel, asking, ``Did you ever sleep with Bill Clinton? Do you know 
anybody who slept with him? I heard you know. We're going to take you 
before the grand jury.'' Locking up witnesses who did not testify to 
what they wanted attested to, paying off others and securing them and 
hiding the witnesses, and on and on; and thereafter subpoenaing the 
mother in tears; the Secret Service, the White House steward, the 
bookstore; some 4\1/2\, 5 years and $50 million. And they come up with 
private sexual misconduct, in privacy. I know it is a public office. It 
is a public office, but we operate in private in our own offices. To 
make this thing public after all of that expense and effort, I would be 
embarrassed as a prosecutor to bring it.
  But not Kenneth Starr. He wasn't embarrassed. He should never have 
taken it. A member of the Kirkland & Ellis law firm that had an 
interest in the case, the Jones case, was participating at the time. 
Instead of recusing himself, he immediately started pursuing that case 
with the official hand of Government.
  Three years ago, seven former independent prosecutors expressed 
dismay at Starr's ethics. He was representing private clients inimical 
to the defendant, our President. The New York Times and other 
newspapers editorialized that he ought to step aside. But instead of 
removing himself, he continued to talk to political groups, all the 
time leaking information and, yes, holding up his findings after 4\1/2\ 
years until after the election and saying he found nothing with respect 
to Filegate, Travelgate, Whitewater, or any of the other cases for 
which he was commissioned--no embarrassment at all.
  He injected himself so in the House proceedings to where finally his 
ethics advisor, Sam Dash--who, of course, had been the principal 
participant in Watergate--had to resign. Then he injected himself over 
here on the Senate side, and last weekend, during a key moment, of 
course, he said he was going to bring a criminal indictment. He leaked 
that information.
  So now we have the Justice Department investigating the independent 
prosecutor for his misconduct in the way he treated the main witness 
with respect to her access to counsel. And you have an 8-to-1 vote in 
the American Bar Association, which has been inserted; they say let 
this independent prosecutor thing die.
  Yes, we have, like Bryant said, broad overreaching of power. Not by 
Clinton. He got into an elicit affair, and he tried like everybody else 
to cover it up. They sought to characterize it as lying, lying, lying, 
lying under oath. We had the chief of the managers; he lied not just 
from January till August, but 30 years --and others over there. The 
hypocrisy of that crowd.
  Yes, we had broad overreaching of powers, mindful, of course, of the 
reason that we declared our independence 223 years ago--``sending 
hither swarms of officers to harass our people and seek out their 
substance.'' We have it now, and we have a chance to try it. We have an 
impeachment case, but we are trying to impeach the wrong person. That 
is why the American people are as concerned as they are. That is what 
you find in the polls that we keep talking about.
  Let's understand, of course, that President Clinton debased the 
Office of the Presidency, but let's say once and for all that we are 
not going to have the political hijacking of the Office of the 
Presidency. Let's be certain when we vote this week that we don't 
debase the Constitution.
  Mr. WYDEN. Mr. Chief Justice, our leaders, Senators Lott and Daschle, 
my colleagues, my friends.
  I doubt that I will ever know what the President of the United States 
was

[[Page 2563]]

up to when he lied to Betty Currie about the nature of his relationship 
with Monica Lewinsky. Did the President lie to Ms. Currie because he 
didn't want her to know the truth about the affair? Did the President 
lie because he wanted her to defend him to the White House staff? Did 
the President lie because he wanted her to repeat those lies under 
oath? I doubt that I am ever going to get the real answer to those 
questions.
  But I believe I do know why it has been excruciatingly difficult for 
the U.S. Senate to get to the bottom of the Currie controversy and 
several others that we have been wrestling with for weeks now. If I 
might paraphrase a legal doctrine, this impeachment has become the 
fruit of a poisonous tree. This impeachment is a deadly plant that has 
flowered in the toxic soil of partisanship.
  Given the highly contentious nature of the charges against the 
President, there is no question in my mind that the congressional 
leadership should have first established a bipartisan process for 
investigating the serious allegations.
  It is my view that had the Founding Fathers decided that the first 
step in the impeachment process would be taken by the U.S. Senate, 
Senator Lott and Senator Daschle would have produced a truly bipartisan 
inquiry, and we would have been able to find common ground on several 
of the key issues. I don't think it would have produced a string of 
100-0 votes, but I believe that we would have had a more bipartisan 
result than what we are going to see at the end of these deliberations. 
But this process began elsewhere. And I only want to make one comment 
about the House.
  In my view, the House didn't even try to locate the common ground. 
And I use that word ``try'' specifically because it is one thing to 
work your head off and not be able to bring people together. We have 
all been there. But that is not what went on in the House. They didn't 
even try to come together. It has been well documented, for example, 
that the Speaker of the House and the House minority leader went for 
months at a time without even talking to each other. I am not going to 
assign fault to one or the other, but the fact is that by the end of 
last year, our two major political parties were at war with each other 
over the allegations against the President.
  This toxic partisanship is not, in my view, what public service is 
all about. I am a Democrat, for good reasons; and there are sincere, 
important differences of philosophy on issues between Senators on the 
respective sides. But I have always felt doing what is right is more 
important than adhering to party dogma, and that is what I wanted to do 
in this matter.
  The framers of the Constitution tried to give us a heads-up, a 
warning about how the impeachment process could become unduly partisan.
  Alexander Hamilton, in Federalist 65, said that the types of crimes 
for which impeachment is the appropriate remedy are ``political.'' And 
he added, ``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.''
  Thomas Jefferson, after almost having been kept from office in a 
partisan maneuver to replace him with Aaron Burr, set a deeply moving 
tone for looking beyond partisan confrontation in his first inaugural 
address.
  My colleagues and friends, it doesn't have to be all partisan all the 
time. There is an alternative to slash-and-burn Government. And it is a 
topic, I regret to say, that I know a fair amount about.
  I won a very, very bitter Senate campaign against a man I am proud to 
call my friend, my colleague, Senator Gordon Smith. Our part of the 
country had never seen a campaign so relentlessly negative. The whole 
country was watching the race to succeed Bob Packwood, but our campaign 
didn't enlighten very many people. It brought out the worst in us. I 
was so disgusted with it and what I had become, that with only a few 
short weeks to go in the campaign I got rid of all my ads and basically 
started over.
  Shortly after Senator Smith won his election, we got together and 
talked about how we regretted the bitter nature of the campaign and 
what we had become. We decided from that point on we would put the 
greater good, that of the people of Oregon, before any differences we 
might have. The New York Times has started to call us the ``odd 
couple''--a Jew from the city, a Mormon from the country. What kind of 
odds would you have given for that kind of relationship? But it works.
  The votes that we are going to cast now are in little doubt. So I 
wish to express my concern that as the Senate completes its work on 
impeachment that we have the ability to come back and tackle our other 
constitutional responsibilities in a bipartisan fashion.
  The public is tired of us being at each other's throats. They are 
tired of beltway politics that places toxic partisanship over the 
public interest. Gordon Smith and I found out the hard way, and they 
are right.
  Perhaps even at this late hour we can find our way to a little 
miracle and wrap up this impeachment debate through a bipartisan 
statement that makes it clear that each of us finds the President's 
conduct repugnant. If we miss that chance, let's keep looking for every 
possible opportunity to come together.
  Senator Frist and I have a bipartisan education bill. No speeches 
about that now, but every Governor in the country is for it. My point 
is that this impeachment process has brought us to a critical moment in 
our history. We can either rise to the occasion by forging new and 
healthier ways to deal with our differences, or we can sink from the 
collective weight of a partisan mess that we have all helped to create.
  In arriving at my decision in this case, I kept coming back to the 
reality that Congress has not once removed a President, not once in 211 
years. The Constitution places the burden for such a grave step very 
high. Such a showing is not only to protect our Nation from partisan 
prosecution, but also to impose safeguards that are necessary, given 
the severity of the potential punishment--a political death penalty, as 
House Manager Lindsey Graham said.
  When I say ``punishment,'' I am not only referring to the punishment 
imposed on the President, but in particular to the destructive impact 
of such an action to our Nation as a whole. The House managers did not, 
in my view, prove their case beyond a reasonable doubt. In my opinion, 
they didn't get particularly close.
  As stated earlier, I do find the President's lying to Betty Currie 
about his relationship with Monica Lewinsky to be very, very 
disturbing. The House managers have a hunch that the President's intent 
was criminal. To borrow from House Manager Graham, they think it is 
likely he was up to no good. My friends, hunches are not impeachable, 
nor should they be. If the evidence required to convict a President of 
the United States in an impeachment trial is allowed to be less than 
that required in a shoplifting trial, the constitutional foundation for 
the Presidency will disintegrate before our very eyes. That is 
something that a few future Presidents in this body ought to consider 
for just a moment.
  Today I am going to vote to acquit on both counts. But I don't want 
that to be my final contribution today.
  I had a lot of farfetched dreams as a boy, but never once did I dream 
that I could serve with all of you on the floor of the U.S. Senate. My 
parents fled Nazi Germany, and not all of my family got out. We lost 
family in Hitler's brutal Kristallnacht. So you might understand how I 
grew up revering the greatness of America and the institutions of our 
democracy.
  I will tell you, I never, ever believed that some skinny fellow with 
modest oratorical skills and a face for radio--(laughter)--could have a 
chance to serve in the United States Senate.
  What I want to be able to tell my grandchildren is that this was the 
point in American history where we drew a line in the sand and said 
``no more'' to the excessive partisanship. A time when we said ``no 
more'' to a brand of politics that each of us knows is bringing out the 
worst in good people. We have good leaders in the U.S.

[[Page 2564]]

Senate--in Trent Lott, in Tom Daschle--who have shown, in the last 
month, just how hard they are willing to work to bring us together.
  My friends, let the toxic partisanship end. Let it end here, and let 
it end now.
  Mr. SMITH of Oregon. Mr. Chief Justice, colleagues, first let me 
thank the Chief Justice for the dignity he has lent to this trial. I 
have so appreciated the keenness of his intellect and the fairness of 
his spirit.
  I also join the Senator from Mississippi in thanking these two 
magnificent men who lead this Chamber. I express to you, my colleagues, 
the genuine affection that I feel for each of you. I am often asked the 
question, who do you like and who do you dislike? The ones I especially 
like are very easy to name; and then when it comes to those I dislike, 
I cannot name one. I genuinely thank you for allowing me to participate 
with you in this difficult and historic time.
  I want to also thank my colleague, Ron Wyden, for his comments about 
me yesterday. When Ron and I ran for the Packwood seat, I think 
America--and certainly Oregon--saw one of the most difficult and mean 
elections in the history of our State. Yet since that time, when I won 
the Hatfield seat, Ron and I have become friends. It was a remarkable 
thing to both of us that by doing something as simple as having a joint 
town hall meeting, Republican and a Democrat from the same State, it 
led to a full-page story in the New York Times. That is a sad 
commentary.
  The truth of the matter is that if Ron Wyden and I can become friends 
and do things to the credit and benefit of our State, so can you all. I 
actually believe that this trial will bring us closer together over 
time, and I hope lay a foundation for some very good work in the 106th 
Congress.
  Today, as Oregon's other Senator, I will cast two votes to convict 
and remove the President of the United States. Reaching this verdict 
has been a very difficult ordeal for me, and I would like to tell you 
why. This Mr. Smith did not come to Washington, DC to oppose President 
Clinton. Indeed, over the last 2 years there have been many issues, 
ranging from the expansion of NATO to the promotion of free trade and 
the fight against big tobacco, in which I have supported him and worked 
closely with him. As I have met with President Clinton in his office, 
traveled with him aboard Air Force One, he has consistently treated me 
with great civility and has often inspired me with his eloquence.
  To be in his presence is to experience the magic of his enormous 
personal and political talents. It is the magnitude of his talents that 
makes the magnitude of his misdeeds so disappointing. There can be no 
doubt that President Clinton's conduct has made a mockery of most of 
his words, or that his example has been corrosive beyond calculation to 
our culture and to our children. These personal conclusions, however, 
do not provide a constitutional basis for his removal. Only his high 
crimes could justify such a vote.
  As you know, the House of Representatives argued two articles of 
impeachment to us. Article I alleged four instances of perjury before a 
grand jury; Article II alleged seven instances of obstruction of 
justice.
  The House managers presented us with volumes of direct and 
circumstantial evidence, and the White House lawyers worked skillfully 
to plant the seeds of reasonable doubt. But as the trial progressed, I 
found that these seeds of doubt could only grow in proportion to my 
ability to suspend common sense. I struggled throughout the trial to 
find a way to acquit the President, if possible, on both or at least 
one of the articles. But in the end, the facts kept getting in my way. 
The stained blue dress. The Dick Morris poll asking whether the 
President could get away with perjury. Monica in tears in the Oval 
Office being told she could not come back to the White House, and then 
being threatened that it is a crime to pressure the President in that 
way.
  These facts and so many, many more led me to the logical, inescapable 
conclusion that what began as private indiscretions became public 
felonies. It is even more ironic to me that I had not made up my mind 
on article I until Mr. Ruff was in his closing arguments. We had just 
seen a videotape of Mr. Blumenthal saying that what he had been told 
was a lie, and we saw Mr. Ruff play the videotape of Mr. Clinton's 
grand jury testimony in which he said, ``What I told him was truthful 
but misleading.'' That was a lie. And it was to a grand jury. It 
revealed the calculations of his mind to obstruct justice. So common 
sense caught up with this juror.
  Having concluded that the President did, indeed, commit perjury and 
attempt to obstruct justice, I had to ask if these offenses were high 
crimes and misdemeanors as contemplated by the founders of this Nation. 
Like many of you, I found answers and comfort in the Federalist Papers 
Essay No. 65 written by Alexander Hamilton spoke directly to the 
ultimate power of impeachment. You remember his words; I won't repeat 
them. They will be in the Record many times.
  When Senator Moynihan speaks, he is kind of like E.F. Hutton to me--I 
listen. He had a wonderful statement yesterday about the kinds of 
impeachable offenses. He cited the example of Justice Chase and 
President Johnson.
  Senator Moynihan said that they were nearly impeached for their 
opinions, and to have done so would have been wrong. But it is not Bill 
Clinton's opinions that affect my vote, it is his conduct.
  Now, what is his conduct here? Last night, I think we all saw a 
brilliant statement by Senator Edwards. I think we saw firsthand why he 
has made so much money talking to jurors. We are seeing right now why I 
had to make my money selling frozen peas. I went through the same 
calculations as Senator Edwards, but I want to point out to you some 
very different reasoning that led me to come down on the other side. 
See, Senator Edwards is talking about what you do when you talk to a 
jury about taking someone's life or their liberty. That is not what we 
are doing here. We are talking about protecting the public trust, 
protecting the Constitution. So the arguments that he made ultimately 
aren't the ones that we ought to be using to decide whether to remove 
President Clinton from office.
  Now, what was so bad about President Clinton's conduct? The scales 
that Senator Edwards spoke to us about, the fulcrum of justice, won't 
work if President Clinton's conduct is sanctioned by this body or by 
any court. What President Clinton did was an attack on the Government, 
and specifically on the judicial branch of Government. You see, the 
courts aren't supposed to write law, though, Mr. Chief Justice; they do 
too much of that. The courts don't have any power to raise taxes or 
appropriate money, and they can't raise an army or send a navy. They 
can find the truth and act upon the truth. And if what Bill Clinton did 
is OK, then we have weakened the weakest of the branches of our 
Government, and that is a high crime under the Constitution.
  I mentioned Mr. Hamilton. I think it is worth noting again that after 
the publication of Federalist Paper No. 65, he became the Secretary of 
the Treasury for President George Washington. He also became involved 
in an adulterous relationship with a woman named Maria Reynolds. Her 
husband, upon learning of the affair, demanded of Mr. Hamilton a job at 
the Treasury Department in exchange for keeping his silence and keeping 
Mr. Hamilton from personal humiliation and political scandal. Hamilton 
refused Mr. Reynolds a position on the public payroll, but he agreed to 
pay him blackmail from his personal funds. News of this arrangement 
soon found its way to Mr. Hamilton's opponents. When confronted, 
without being under oath, Hamilton confessed the truth and the whole 
truth. He knew and respected the boundaries between the public and the 
private. He wrote them down for our country, and he lived his life 
within those boundaries, never veering recklessly over the line of 
impeachability.
  Consider the painful contrast this creates when measured against the

[[Page 2565]]

public life of President Clinton. When his scandalous conduct with a 
subordinate female became entwined with another woman's civil rights 
action against him, which a unanimous Supreme Court ruled that she had 
the right to bring, President Clinton set about to cover himself by 
lying to his staff, to his Cabinet, to the Congress, and to the 
country. And then, as the evidence so clearly shows, it demonstrates 
that when brought to court--the weakest of our branches of Government--
and placed under oath, he lied again and again and again.
  Now, in the end, I suspect this place is going to divide pretty much 
down the middle. I simply sound a warning note to raise your awareness 
to the fact that, ultimately, history and biographies and accounts yet 
to be revealed, facts yet to be uncovered, shoes yet to drop, will 
determine which of us voted right. But we have to decide on the 
evidence today, and the evidence to me is clear. Soldiers and sailors 
are discharged and punished for far less than what the President did. 
And judges are impeached by the House and removed by the Senate for far 
less than this. Indeed, we have to ask, is the President to be held to 
a lower standard than those he sends to war or those he appoints to 
dispense justice? I cannot and I never will agree to such a low 
standard for the Presidency of the United States.
  Pollsters tell me how strongly Americans and Oregonians feel about 
this case and how conflicted their feelings. Large majorities have 
concluded that the President is guilty of the felonies charged. Yet, 
large majorities have also concluded that they do not want him to be 
removed from office. These numbers remind me that the demands of 
justice are sometimes hard. I hope, however, that we remember obedience 
to the law will protect our liberties as nothing else can.
  You see, political prisoners around the world look to the United 
States for hope, not because we have a popular President, but because 
we have laws to protect us from a popular President. If the President 
of the United States is allowed to break our laws when they prove 
embarrassing to him or conflict with his political interests, then 
truly some public trust has been violated, a trust which, as Hamilton 
says, ``relates chiefly to injuries done immediately to society 
itself.''
  These felonies are impeachable offenses, and the Constitution makes 
our duty clear, even though it appears harsh and difficult. When the 
Chief Justice calls my name, ``Senator, how say ye?'' I will say guilty 
twice, because I refuse to say that high political polls and soaring 
Wall Street indexes give license to those in high places to act in low 
and illegal ways. Perjury and obstruction of justice are high crimes, 
and they are utterly inconsistent with any Federal office--ours as 
well, but especially with the office of the President of the United 
States.
  I harbor no illusions that two-thirds of the Senate will vote as I 
will. Therefore, I hope the President will spend the balance of his 
office repairing the damage done to his family, our democratic 
institutions, and our country. I will continue to support his proposals 
when I believe they are right, and I will oppose them when I believe 
them to be wrong.
  Now, the other man in this Chamber that I deeply regard--and because 
I am so junior I do it from a distance--is Senator Robert Byrd. I have 
appreciated his public struggle with this issue because it has 
validated my own struggle. When he said this last week on ``This Week 
with Sam Donaldson and Cokie Roberts,'' he could have been speaking my 
words: ``We have to live with the Constitution. We have to live with 
our consciences.'' And so do I.
  Mr. HAGEL. I write this statement at my desk on the floor of the 
United States Senate. After weeks of listening, reading, reviewing, 
reflection, analysis and contemplation I have come to the conclusion 
that I will vote to convict the President on both Articles of 
Impeachment.
  The Constitution is very clear. It requires Members of the United 
States Senate to vote for or against each Article of Impeachment. No 
improvising. No substitutions. No censures. No findings of fact. The 
completeness of the charges against the President is powerful. The 
issue is abuse of power. Did the President abuse his power and 
therefore violate the Nation's trust in him? We must remember that 
trust is the only true currency elected officials have.
  Perjury and obstruction of justice are not just federal crimes. When 
committed by an elected official they are abuses of power. When 
committed by a president they constitute an abuse of the highest power. 
The standards and expectations for America's elected officials cannot 
be calibrated. When elected officials bring down those standards and 
expectations and violate the people's trust . . . they rip the very 
fabric of our Nation. There is then a dishonoring of the spirit that is 
the guardian of American justice.
  There can be no shading of right and wrong. The complicated currents 
that have coursed through this impeachment process are many. But after 
stripping away the underbrush of legal technicalities and nuance, I 
find that the President abused his sacred power by lying and 
obstructing justice. How can parents instill values and morality in 
their children? How can educators teach our children? How can the rule 
of law for every American be applied equally if we have two standards 
of justice in America--one for the powerful and the other for the rest 
of us?
  What holds this Nation, this society, this culture, together? Yes, 
laws are part of it. But it is really the strong moral foundation 
anchored by values and standards--the individual sense of right and 
wrong, personal responsibility, accountability for one's actions. This 
is what holds a free people together. Respect for each other--not 
because a law dictates that action--but rather because it's the right 
thing to do.
  The President violated his Constitutional oath and he broke the law. 
His crimes do rise to the level of high crimes and misdemeanors 
prescribed in the Constitution. The President's actions cannot be 
defended by dancing on the pin head of legal technicality. Every 
American must know actions have consequences. Even for presidents. All 
Americans must have faith in our laws and know that there is equal 
justice for all. The core of our judicial process is the rule of law.
  Americans deserve to always expect the highest standard of conduct 
from their elected officials. If that expectation is defined down over 
time, it will erode the very base of our democracy and put our Republic 
in peril. That is the point of the Impeachment Clause of our 
Constitution . . . to protect the Republic. The Impeachment Clause of 
our Constitution is there to ensure the fitness of an individual to 
hold high office. President Clinton's conduct has debased his office 
and violated the soul of justice--truth. He has thereby debased and 
violated the American people. I have no other course to follow than to 
vote to convict President William Jefferson Clinton on both Articles of 
Impeachment.
  Mr. ROCKEFELLER. Mr. Chief Justice, I rise today to announce, or 
simply declare, that I will vote not guilty on both articles of 
impeachment and to urge my colleagues to spare the country the 
injustice of removing a President who has been twice elected to his 
office by the American people, and whom they continue to trust to lead 
them.
  As a Senator, I have taken my trial oath very, very seriously. For my 
part, I have listened intently to the presentations, carefully 
considered the evidence, read everything that I could get my hands on, 
and thought about those matters carefully. I have read, and reread, the 
key language of our Constitution, and thought long and hard about the 
words of our Founding Fathers. In fact, the Constitution, in many ways, 
came alive for me for the first time.
  I am humbled by the wisdom and foresight of our founders as I 
struggle through some of the most profound questions that our democracy 
can present to us. What is the balance of power between the three 
branches of Government? How do we measure public trust, and under what 
circumstances may the Senate exercise

[[Page 2566]]

its most devastating power--the power to overturn a popular election, 
and a power, therefore, to remove a President from office?
  As I confront these questions, I am acutely conscious of the terrible 
disappointment of our Nation in the personal and public behavior of our 
President. No one of us would defend his actions. No one of us would 
say that he is free of serious fault.
  I have condemned in the strongest possible terms that I know how to 
do--and I have done it to him directly--the conduct of the President in 
the Lewinsky matter. And I share the sense of outrage that so many of 
my constituents from West Virginia have shared with me.
  When first confronted with this shameful affair, the President 
deliberately misled his family, his friends, and his staff. He went on 
national television, and, as far as I am concerned, lied to the 
American people, and he walked a troubling line between truth and 
deception in his sworn testimony, all in an effort to keep this scandal 
out of the humiliating glare of public scrutiny.
  It is without question a very serious moral matter. But the ultimate 
power of the U.S. Senate--the power to convict and remove the President 
for high crimes and misdemeanors--is not a power to pass moral judgment 
or render moral punishment. It is not even a power to render a judicial 
conviction or judicial punishment. The power of the Senate is drawn 
carefully and narrowly by the Constitution of the United States, and it 
is a power to sit in judgment of a President only as a means of 
protecting our Nation from great harm. It is a power to remove a 
President only if he has committed treason, bribery or other high 
crimes and misdemeanors against the state.
  As U.S. Senators, the Constitution must be our predominant guidepost. 
It must be the compass we come back to at every point of hesitation or 
ambiguity or doubt. ``Treason, bribery, or other high crimes and 
misdemeanors''--these words are powerful, extraordinary, and carefully 
crafted. We know how very grave treason and bribery are, and we know 
that they involve a fundamental corruption of public office. But what 
about high crimes and misdemeanors? The words, ``or other high crimes 
and misdemeanors,'' on its face means high crimes and high 
misdemeanors.
  Borrowing from my good friend, Senator Biden, the word, ``treason,'' 
was defined in the Constitution itself. The word, ``bribery,'' was not. 
It was a definition fixed at common law. These are both relatively 
definite terms. But ``high crimes and misdemeanors'' are indefinite.
  In this setting, two rules of construction led us to add the word--
Madison and Mason to add the word--``or other,'' in their famous 
colloquy. The word, ``other,'' is, to me, fascinating, because what it 
does is essentially return us to the previous clause, which is 
``treason and bribery.'' It says that ``high crimes and misdemeanors'' 
must necessarily be interpreted at the same level of, even though less 
definite than, ``bribery and treason.''
  I think that is clear. I think that is uncontested.
  As U.S. Senators, the Constitution must be, as I said, our guidepost. 
We know from the statements of our founders that the phrase was 
intended in a very careful way--``high crimes and misdemeanors''--to 
cover only very grave and threatening abuses of Presidential duty and 
public office.
  The House managers contend, as did Independent Counsel Ken Starr 
before them, that in the course of hiding his illicit affair from the 
world, the President committed perjury, obstruction of justice, and 
those crimes are so serious that they constitute, by definition, high 
crimes and misdemeanors, demanding conviction and immediate removal 
from office, something that has never happened before in the history of 
our Nation.
  Most of this body are lawyers. And I think that most would agree--all 
of us would agree--the questions that must be answered by all of us in 
this Senate are:
  First, did the President commit perjury or obstruction of justice as 
charged by the articles of impeachment?
  Second, did the President's conduct rise to the level of high crimes 
and misdemeanors requiring removal?
  The answer to both of these questions must be yes in order for the 
President to be removed from office. If either one of these questions 
fails, then by definition the Constitution demands that the President 
be acquitted.
  On the basis of the case presented over the last several weeks, on 
the basis of the evidence and the deposition testimony, which I 
reviewed carefully and in full, and on the basis of the constitutional 
arguments made by each side, I have concluded unequivocally that the 
answer to both questions is no, and that the articles of impeachment 
are not well founded and must be rejected.
  First and foremost, the House managers have utterly failed to prove 
beyond a reasonable doubt that the President committed perjury or 
obstructed justice. Their case is speculative, circumstantial, and 
contradicted by facts.
  Admittedly, the burden of proof on the House managers is a very heavy 
one.
  We have a presumption in this country of innocence until proven 
guilty. And we have a presumption that national elections should be 
upheld.
  With the fate of a twice-elected President before us in this Senate, 
I believe that the evidence must be the universally accepted standard 
of proof that is applied to other criminal cases. It must be proven 
beyond a reasonable doubt.
  What does that mean, to prove a case beyond reasonable doubt? It 
means that it is proven to a moral certainty, that the case is clear, 
that the case is concise. It means that, if there are doubts about the 
evidence, about the case, then he must be acquitted.
  In the case presented by the House managers in the managers' version 
of the Clinton-Lewinsky story, there are many, many reasonable doubts.
  There are the doubts about the articles themselves, which are 
ambiguous, and what conduct actually purported to be criminal. There 
are serious doubts about the perjury charge in which the President 
openly acknowledges his inappropriate behavior--and his effort to keep 
it secret from the Nation. There are doubts about the obstruction 
charges in which the President is accused of a vast conspiratorial 
scheme to influence witnesses and testimony, even though everyone 
involved has denied that any such effort occurred. No person, 
regardless of the stature or position, could, or should be, convicted 
on evidence that is so ambiguous and so questionable, and to my way of 
thinking ultimately, weak.
  Second, and equally important, no matter how deplorable the 
President's conduct, the charges clearly do not meet the constitutional 
test for conviction. They simply do not rise to the level of treason, 
bribery or other high crimes and high misdemeanors, as I would put it. 
Any other conduct, any other charges, are left to the judgment of the 
people in casting of their votes, and to the judgment of the courts 
once the President has left office.
  Despite the anger that we feel at the President, despite misgivings 
that we have about his honesty, despite his lies to the American 
people, we cannot allow emotions--or, I might say, homilies--or 
partisanship to interfere with our judgment. The Constitution alone 
puts us in the box from which we dare not venture.
  On impeachment, our constitutional history is well established. And 
we in the Senate and across the Nation must abide by it, and abide by 
it strictly. We may remove a President only for using his great office 
to commit high crimes against the Nation, against the state, and 
against the people. There is no question in my mind that the President 
has not done this. We would be derelict in our duties as Senators if we 
removed him for anything less.
  So, given the weakness of the evidence supporting the charges made by 
the House, given the serious doubt in the Senate that the charges rise 
to the level of demanding removal from office, how do we find ourselves 
so far down this dangerous constitutional path?

[[Page 2567]]

  How do we in the Senate find ourselves so close to the brink of 
removing a President from office without clear and compelling evidence 
that crimes against the state were committed?
  How was an independent counsel investigation allowed to turn into a 
five-year, $50 million crusade against the President?
  And, why have we not been able to debate the real issues for the 
future of our nation--strengthening Medicare, reforming Social 
Security, ending the steel import crisis so West Virginia steelworkers 
can get their jobs back?
  It is clear that, in the end, justice will be done, and the 
Constitution will have protected the nation. I have been dismayed by 
growing partisanship, but the bottom line is that the President should 
not be removed from office, and he will not be removed from office.
  With the greatest respect for each of my colleagues, I must say there 
is something very wrong with the fact that we have been forced to take 
this so far, and that the Senate has been rendered impotent for so 
long. Even in the face of unceasing calls to end this investigation--
from people in every state, from every background and political party--
it has marched on relentlessly.
  I do not believe that it was ever the will of the House of 
Representatives or the Senate to pursue these charges against the 
President to such great and absurd lengths. Yet we have--and in the 
process, a growing crack in the civil and moral foundation of our 
government has been revealed.
  It has become clear to me that a destructive momentum has taken hold, 
and supplanted the better judgement of some in this Congress and in 
this country.
  From the start, there has been a core of political interests that has 
sought every opportunity and pursued every tactic to attack this 
Presidency. Every President faces critics who will go to great lengths 
to fight his policies. But this President has faced unprecedented and 
unyielding attempts by a small group of determined activists to destroy 
him, his family, and his work.
  Unfortunately, these efforts at destruction have been aided by a 
media inside the beltway that has accepted nearly every rumor--proven 
or unproven--and splashed it across the front page or put it at the top 
of the evening newscast. Ratings and revenues too often have taken 
priority over sound and judicious coverage of the news. Far from 
serving the public interest, this has only fueled the efforts of those 
who have sought to undermine the reasoned pursuit of truth and justice.
  As I made clear earlier, none of this diminishes my belief that the 
President's actions were wrong and indefensible. His personal failures 
in this matter deserve our condemnation.
  But his failures do not deserve--and have never deserved--the 
relentless attempts at political and personal destruction that he has 
been subject to. His failures do not deserve--and have never deserved--
the triggering of a constitutional process that our Founding Fathers 
reserved for the most serious crimes against the nation.
  I do not say this to fan the flames of partisan division. After all, 
each of us--Republican or Democrat--has and will make mistakes, and 
each of us must be held accountable for our mistakes. But no member of 
the Senate, no member of the House, no elected official who serves this 
country to his or her best ability deserves the sort of insidious venom 
that has become such a common part of our political discourse.
  Let me also be clear that I say this not solely in defense of 
President Clinton--but principally in defense of civility and fairness 
in our political society. I say this with sincere hope that we can 
bring to an end the destructive momentum that has gripped this nation 
and this city. Because, as disturbing as the President's actions are, I 
am far more concerned by the fanaticism of those who have driven our 
great nation so close to the precipice.
  For our system of Democracy to be successful for another two 
centuries, it must be driven by people's best instincts--not their 
worst. It must be founded in moral strength and guided by civil 
discourse. We must, as Minority Leader Gephardt has so eloquently 
stated, end the politics of personal destruction.
  I have great hope that we can do this, because as I look around, I 
see a vast majority of Americans who are tired of good leaders being 
destroyed by a vindictive minority. I see a majority of Americans who 
understand clearly that President Clinton should not be removed from 
office for his deep personal failings. I see a majority of Americans 
who know better than to believe everything and anything they hear in 
the media.
  The American people want us to seek the truth--they, in fact, demand 
it. But with equal vigor, they demand that we cast fair judgement; and 
they demand that in seeking the truth, we do not seek to destroy lives 
and careers.
  I believe that this Senate is prepared to cast a fair judgment on the 
President. We have been through a trying time in our nation's history--
a time that not one of us has relished or gained the least bit of 
satisfaction from. We have all done our best to seek impartial justice, 
and I am certain that history will judge us well in this pursuit.
  But history will cast a very severe judgement if we do not go forward 
with the purpose of healing the wounds that this episode has caused, 
and restoring the moral and civil foundation of our political society.
  I leave my colleagues with the wisdom of James Madison in Federalist 
Paper 62 when he addressed the important role of the Senate in 
tempering the actions of the House. ``. . . [A] senate,'' he wrote, 
``as a second branch of the legislative assembly, distinct from, and 
dividing the power with, a first, must be in all cases a salutary check 
on the government.''
  By dismissing these charges against the President, we will have done 
our duty to provide that salutary check, and we will have taken the 
first step in restoring the trust and faith of the people of this 
nation. It is time to do as the American people have asked: end this 
sad episode and get back to work.
  Mr. MURKOWSKI. Mr. Chief Justice, it seems to be a prerequisite to 
speak today for Senators to indicate the number of grandchildren each 
has. I am proud to say Nancy and I have 11, but I won't indulge you 
with naming each of them.
  I along with all of you will soon cast our votes on the Articles of 
Impeachment that have been presented against President Clinton. With 
the exception of voting on a declaration of war, I can think of no more 
serious vote that a Senator will cast in his or her lifetime than on 
removing a President from office. History may or may not tell which 
vote is correct.
  We have deliberated more than 67 hours. Five weeks ago, we met in the 
old Senate Chamber and on a 100-0 vote departed on a course of action 
to resolve this matter. The House Managers presented the case against 
the President. White House counsel presented their defense and then 
Senators spent two days submitting questions to both sides. We then 
resolved the question of witnesses by allowing the use of videotapes, 
and heard final arguments from both sides on Monday. For the past two 
days, Senators have offered their statements on this matter and we are 
on target to reach a final vote on the two Articles in less than 48 
hours. That's our Constitutional duty. I am proud and honored to have 
participated in this historical deliberation and respect each of you 
and your words.
  There are several recollections about the facts in this case that 
trouble me. Perhaps it is because I am not a lawyer.
  In Ms. Lewinsky's testimony, she indicated that on the first day she 
met the President, she was wearing a pink identification tag which 
provides limited access to the White House. The President reached out 
and held it and said: ``Well, this could be a problem'' or words to 
that effect. That tells us something about the President's character.
  Furthermore, after the Lewinsky story broke in the press, the 
President had Dick Morris conduct a poll and when Morris told the 
President that the public would forgive him for adultery but not for 
perjury or obstruction

[[Page 2568]]

of justice, the President responded: ``We will just have to win then.'' 
That tells me something else about the President.
  It should also be noted that we would not be here if Ms. Lewinsky had 
not kept the blue dress which contained the DNA evidence implicating 
the President beyond a doubt. Without that dress, it would be an old 
story of ``He said/She said.'' Think about that.
  Finally, we are all held accountable for our actions. But the 
President refuses to be held accountable. And I have a problem with the 
repeated reference from the First Lady that the President ministers to 
troubled people, suggesting that Monica Lewinsky was such a person.
  What has been happening, not just here in Washington, but all around 
the country is something far more disturbing than the trial of a 
President. What we have been witnessing is a contest for the very moral 
soul of the United States of America--and that the great casualty so 
far of the national scandal is the notion of Truth.
  Truth has been shown to us as an elastic commodity.
  It has been said that this trial is not about the partisan political 
gamesmanship between the President's Democratic supporters and the 
Republican forces on the other side, as the media would have you think.
  Indeed one pundit said that more Americans get their ideas and 
reactions of the impeachment process from Jay Leno than they do from 
CNN.
  The polls show Americans favoring leaving the President in office 
while they say Republicans appear bent on political suicide.
  It has been said that Republicans see accountability, discipline and 
punishment as fundamental to the very structure of American society and 
that the President ought to be the ``stern father'' image and a figure 
of moral authority.
  Clinton's liberal supporters model American society on the 
``nurturing parent'' concept. To them, the Presidency is less a figure 
of moral authority than a helpful and powerful friend capable of doing 
good.
  Where were you when former President Nixon resigned? I wondered at 
the time whether the republic would survive Watergate. We did survive 
and many believe we are a stronger nation because of that process.
  In reaching a judgment in this case, I have reviewed the evidence 
presented by the House Managers and the able defense offered by the 
President's counsel. I have concluded that the President is guilty on 
both Articles and that the two Articles more than satisfy the 
Constitutional standard of high crimes and misdemeanors.
  I believe the President should be removed from office not because he 
engaged in irresponsible, reckless, and reprehensible conduct in the 
Oval Office with a White House intern. He should be removed from office 
because he engaged in conduct designed to undermine the foundation, the 
very bedrock, of the concept of due process of law and, by extension, 
the very notion of the rule of law.
  There is no question in my mind that President Clinton intentionally 
provided false and misleading testimony and committed perjury before 
the Grand Jury when he told the Grand Jury he was ``trying to figure 
out what the facts were'' when he made the following statements to his 
Secretary Betty Currie the day after his civil deposition testimony:
  ``I was never really alone with Monica, right?''
  ``You were always there when Monica was there, right?''
  ``Monica came on to me, and I never touched her, right?''
  ``She wanted to have sex with me, and I cannot do that.''
  Mr. Chief Justice, it is just not credible to believe that these 
statements were designed to help the President elicit facts since he, 
and not Betty Currie, knew precisely the type of indiscreet activities 
he and Monica Lewinsky had engaged in. To believe his testimony, one 
would have to assume the unbelievable--that the President engaged in 
these acts with Ms. Lewinsky in the full expectation that Ms. Currie 
witnessed them.
  It is only reasonable to assume that the President's statements to 
Ms. Currie, made on more than one occasion (twice), were designed for 
one, and only one simple purpose: to coach and influence her future 
testimony. He was clearly seeking to undermine judicial proceedings by 
encouraging her to lie under oath for the single purpose of protecting 
him. His conduct not only amounts to false testimony, but provides a 
clear basis to conclude that the President sought to obstruct justice.
  Moreover, it is undisputed that gifts the President gave to Monica 
Lewinsky, gifts that were subpoenaed in the civil suit against the 
President, were removed from Ms. Lewinsky's possession and hidden under 
Betty Currie's bed. There is no rational reason that Ms. Currie, on her 
own, decided to seek the return of the gifts. The only inference that a 
reasonable person could conclude is that the President asked Ms. Currie 
to retrieve the gifts in an effort to conceal evidence from the court; 
evidence that was clearly relevant in the civil case.
  The House Managers have presented a credible case showing that the 
President increased the pressure on his friend, Vernon Jordan, to 
obtain a private sector job for Ms. Lewinsky when she was named as a 
potential witness in the civil case brought against the President. It 
was not a coincidence of events, but rather a concerted effort by the 
President to secure employment for Ms. Lewinsky to ensure an affidavit 
that did not harm his interests. Mr. Jordan is not at fault; he was 
merely a pawn in the President's strategy to obstruct justice by 
encouraging the submission of a false affidavit from Ms. Lewinsky.
  Mr. Chief Justice, the charges against the President concern perjury, 
witness tampering, and concealing of evidence. These offenses clearly 
rise to the level of obstructing justice in the same sense that bribing 
a witness to testify falsely or destroying evidence amount to 
obstruction of justice.
  Today, there are 115 people incarcerated in federal prisons because 
they were convicted of perjury. On Saturday, we heard the videotape 
testimony of Dr. Barbara Battalino who had been an attorney and a VA 
doctor. Her crime? She lied about sex under oath in a civil proceeding. 
Her penalty? She lost her medical license. She lost her right to 
practice law. She was fired from her job. The Clinton Justice 
Department prosecuted her for perjury and she was sentenced to 6 months 
of imprisonment under electronic monitoring and paid a $3,500 fine.
  Should not the standard applied to Dr. Battalino apply to the 
President of the United States who swore an oath to ``preserve, protect 
and defend the Constitution,'' when he entered office and who swore an 
oath to tell the truth when he testified before the Grand Jury? Or 
should we condone the standard the President suggested in his Grand 
Jury testimony, when he testified that he ``said things that were true, 
that may have been misleading?'' Think about that statement!
  Mr. Chief Justice, the foundation of our republic is that we are a 
nation governed by laws, not by men. For the rule of law to be 
maintained, there must be a credible system of justice. Any effort to 
undermine the integrity of the judicial system subverts the principle 
of a nation of laws. And that system of justice depends for its very 
survival on maintaining the integrity of the oath that a person swears 
to tell the truth. Otherwise, if we turn a blind eye and allow people 
to lie under oath, destroy or hide evidence, or conspire to present 
false and misleading testimony, the entire notion of justice and truth 
become meaningless.
  The President's counsel on Monday asked the question: ``Would it put 
at risk the liberty of the people to retain the President in office?'' 
Unfortunately, I believe the answer is yes. The right of an individual 
to a fair trial is endangered when the President of the United States 
remains in office having undermined the rule of law by obstructing 
justice and committing perjury.
  Why should a citizen tell the truth in a court room when it does not 
serve his interest if the President is allowed to

[[Page 2569]]

perjure himself because it does not serve his interest?
  Why should an individual not try to influence the testimony of a 
witness, when the President suffers no adverse consequences when he 
seeks to influence the testimony of a witness?
  Does anyone in this chamber believe that obstruction of justice is 
not a high crime and misdemeanor? Does anyone in this chamber believe 
that President Clinton did not attempt to obstruct justice? If your 
answer to those questions is in the affirmative, I believe you must, I 
repeat, you must vote to convict and remove the President. That is the 
mandate of the Constitution.
  Article II, Section 4 of the Constitution provides the President. . . 
. shall be removed from Office on Impeachment for, and Conviction of, 
Treason, Bribery, or other High Crimes and Misdemeanors.
  There is nothing in the Constitution that says that a President with 
a high popularity rating shall not be removed if convicted. The Framers 
believed that it was so important to rid the government of officials 
convicted for such offenses that the Framers gave us no latitude on the 
question of removal from office.
  Mr. Chief Justice, the nation has endured more than a year of what 
started as a scandal and turned into an obstruction of justice and an 
impeachment. Again, had there been no DNA evidence, Ms. Lewinsky would 
have been smeared in the press as a stalker and this case would be 
closed.
  I hope my colleagues in good conscience can put party aside and 
uphold the oath we took a month ago to be impartial in our judgment of 
President Clinton. This is a sad day for our contemporary country but a 
magnificent day for the Founders who recognized that no man is above 
the law and gave us the tools to remove those who violate the public 
trust.
  Mr. BYRD. Mr. Chief Justice:

     I think my country sinks beneath the yoke,
     It weeps, it bleeds,
     And each new day,
     a gash is added to her wounds.

  I am the only remaining Member of Congress who was here in 1954 when 
we added the words ``under God'' to the Pledge of Allegiance. That was 
on June 7, 1954. One year from that day we added the words ``In God We 
Trust'' to the currency and coin of this country. Those words were 
already on some of the coins. But I shall always be proud to have voted 
to add those words, ``under God'' and ``In God We Trust.'' They mean 
much to us today as we meet here.
  This is my 47th year in Congress. I never dreamed that this day would 
ever come. And, until 6 months ago I couldn't place myself in this 
position. I couldn't imagine that, really, an American President was 
about to be impeached.
  A few years ago, when my youngest grandson, who now is a Ph.D. in 
physics, was just a little tot, he came up to my den and looked around 
and said, ``Papa, who made this mess?''
  Now, Senators, who made this mess? The mess was created at the other 
end of Pennsylvania Avenue. The House of Representatives didn't make 
it. The U.S. Senate didn't make it. But, nevertheless, we sit here 
today in judgment of a President.
  Mr. Chief Justice, I thank you for presiding over this gathering with 
such grace and dignity. But the Chief Justice is not here because he 
wanted to be. He is not here because we asked him to come. He is here 
because the Constitution commanded that he be here. Senators are not 
here because you wanted to be here today.
  We are here because the Constitution said that the Senate shall have 
the sole power to try all impeachments.
  Soon we will vote and, hopefully, end this nightmarish time for the 
nation. Like so many Americans, I have been deeply torn on the matter 
of impeachment. I have been angry at the President, sickened that his 
behavior has hurt us all and led to this spectacle. I am sad for all of 
the actors in this national tragedy. His family and even the loyal 
people around him whom he betrayed--all have been hurt. All of the 
institutions of government--the presidency, the House of 
Representatives, the Senate, the system of justice and law, yes, even 
the media--all have been damaged by this unhappy and sorry chapter in 
our nation's history.
  The events of this last year have engendered so much disillusionment, 
distrust, bitter division and discord among the people of the United 
States. There can be, I fear, no happy ending, no final act that leads 
to a curtain call in which all the actors link hands and bow together 
amid great applause from the audience. No matter what happens here, 
many, many people will be left tasting only the bitter dregs of 
discontent.
  I was proud of this Senate when, early last month, we gathered in the 
Old Senate Chamber to choose a path on which to proceed. We agreed on a 
Constitutional road map to follow during the early days of this trial. 
We followed that road map to the letter, considering a motion to 
dismiss the proceedings as well as one to provide for the deposition of 
witnesses. When there was a question or conflict, we decided the answer 
together. I commend Senator Daschle and Senator Lott for their untiring 
efforts to maintain bipartisanship.
  Hamilton observed that impeachable offenses ``are those offenses 
which proceed from the misconduct of public men, or, in other words, 
from the abuse or violation of some public trust . . . to injuries done 
immediately to the society itself.'' Hamilton also observed that the 
impeachment court could not be ``tied down'' by strict rules, ``either 
in the delineation of the offense by the prosecutors (the House of 
Representatives) or in the construction of it by the judges (the 
Senate).''
  Supreme Court Justice Joseph Story said: ``The jurisdiction is to be 
exercised over offenses, which are committed by public men in violation 
of their public trust and duties . . . injuries to the society in its 
political character,'' . . . ``such kind of misdeeds . . . as 
peculiarly injure the commonwealth by the abuse of high offices of 
trust.''
  Story observed that ``no previous statute is necessary to authorize 
an impeachment for any official misconduct,'' . . . because ``political 
offenses are so various and complex . . . so utterly incapable of being 
defined, or classified, that the task of positive legislation would be 
impracticable, if it were not almost absurd to attempt it.''
  There are those--without my repeating the sordid details of what we 
have all heard over and over and over again--there are those who say 
that the President lied to protect his family. We all understand that. 
I have a feeling for that. But I can never forget his standing before 
the television cameras and saying to the American people, what he said: 
``Now I want you to listen to me. . .'' Don't you Senators think that 
that was a bit overdone if the purpose was to protect his family?
  ``O, what a tangled web we weave when first we practice to deceive.''
  Impeachment is a sword of Damocles that hangs over the heads of 
presidents, vice presidents, and all civil officers, always ready to 
drop should it become necessary. But, the impeachment of a President is 
uniquely and especially grave. We must recognize the gravity and 
awesomeness of it, and act in accordance with the oath we took to do 
``impartial justice''. We are the wielders of this weapon, responsible 
for using it sparingly and with prudence and wisdom.
  This is only the second time that this nation has ever impeached a 
President. President Nixon resigned when it was made clear to him that, 
if impeached and tried, he would be convicted and removed from office. 
In that instance, both the country and the Congress were of the same 
mind that the President's offenses merited his removal. It was not a 
partisan political impeachment; it was a bipartisan act. But where 
political partisanship becomes such an overwhelming factor as to put 
the country and the Congress at odds, as it has with this impeachment, 
something draws us back. We must be careful of the precedent we set. 
One political party, alone, should not be enough to bring Goliath's 
great sword out of the Temple.
  Regrettably, this process has become so partisan on both sides of the 
aisle

[[Page 2570]]

and particularly in the House and was so tainted from the outset, that 
the American people have rebelled against it. The President lied to the 
American people, and, while a great majority of the people believe, as 
I do, that the President made false and misleading statements under 
oath, still, some two-thirds of the American people do not want the 
President removed from office. I do not think that this is just a 
reflection of the American people's traditional bias for the underdog, 
but rather, of the much more basic American dislike of unfairness. Many 
people, perhaps even most people, do not believe that this process has 
been a fair process. They are further supported in their viewpoint by 
the polarization and partisanship so regrettably displayed in Congress.
  Indeed, the atmosphere in Washington has become poisoned by politics 
and even by personal vendettas. As a result, perspective and a clear 
sense of proportion and balance have been lost by all too many people. 
As a byproduct of the venom, a process intended to be serious and sober 
has, instead, devolved into a virulent, off-color soap opera event, 
watched by an incredulous people grown weary of its content.
  We have known for weeks that the votes were not here to convict this 
President. And yet some wanted to press on, in a desperate attempt to 
bring witnesses onto the Senate Floor. What a dreadful national 
spectacle that would have been! That is one reason why I offered a 
motion to dismiss the proceedings. Both the House Managers and the 
White House defense team had presented their case and had presented it 
well. We had gotten into the 16 hours of questioning by Senators, while 
all went along swimmingly for a while, the proceedings began to 
degenerate into a dueling press conference on both sides of the aisle. 
Moreover, the House Managers had already taken steps to begin the 
deposition of Monica Lewinsky, and the fact that they were doing this 
before the Senate had even voted to depose witnesses, led me to believe 
that it was time to call the whole thing off before the Senate slipped 
into the snake pit of bitter partisanship like the House of 
Representatives had done. Always with a weather eye open concerning the 
image of the Senate and its place in history, I made the motion to 
dismiss which had been provided for in the original agreement by 100 
Senators on January 8, following the great bipartisan meeting we had 
all attended in the old Senate Chamber. Many people all around the 
country, as well as here within the beltway, misunderstood my reasons 
for moving to dismiss. I didn't do that to protect Mr. Clinton, as some 
people have so mistakenly surmised. I knew that the votes were not here 
then to convict him, and we all know they are not here now. I just 
didn't want the Senate to sink further into the mire. I did not want 
this body to damage its own quotient of public trust the way the House 
and the White House have diminished theirs.
  I called for these proceedings to be dismissed, out of genuine 
concern for the divisive effect that an ultimately futile trial would 
have on the Senate and on the nation.
  The House Articles charged the President with having committed 
perjury. This word ``perjury''--lawyers can dance all around the head 
of a pin on that word. I won't attempt to dance all around on the head 
of the pin on the word ``perjury.'' The President plainly lied to the 
American people. Of course, that is not impeachable, but he also lied 
under oath in judicial proceedings.
  Mr. Clinton's offenses do, in my judgment, constitute an ``abuse or 
violation of some public trust.'' Reasonable men and women can, of 
course, differ with my viewpoint. Even though the House of 
Representatives rejected the second article that came out of the 
Judiciary Committee, the evidence against Mr. Clinton shows that he 
willfully and knowingly and repeatedly gave false testimony under oath 
in judicial proceedings.
  When the President of the United States, who has sworn to protect and 
defend the Constitution of the United States, and to see to it that the 
laws be faithfully executed, breaks the law himself by lying under 
oath, he undermines the system of justice and law on which this 
Republic--not this ``democracy''--this Republic has its foundation.
  In so doing, has the President not committed an offense in violation 
of the public trust? Does not this misconduct constitute an injury to 
the society and its political character? Does not such injury to the 
institutions of Government constitute an impeachable offense, a 
political high crime or high misdemeanor against the state? How would 
Washington vote? How would Hamilton vote? How would Madison or Mason or 
Gerry vote? My head and my heart tell me that their answer to these 
questions would be, ``Yes.''
  But the matter does not end there. The Constitution states, without 
equivocation, that the President, Vice President or any civil officer, 
when impeached and convicted, shall be removed from office. Hence, one 
cannot convict the President without removing him from office.
  Should Mr. Clinton be removed from office for these impeachable 
offenses? This question gives me great pause. The answer is, as it was 
intended to be by the framers, a difficult calculus. This is without 
question the most difficult, wrenching and soul-searching vote that I 
have ever, ever cast in my 46 years in Congress. A vote to convict 
carries with it an automatic removal of the President from office. It 
is not a two-step process. Senators can't vote maybe. The only vote 
that the Senator can cast, under the rules, as written, is a vote 
either to convict and remove or a vote to acquit.
  So should I vote ``Guilty'' when my name is called, believing that 
President Clinton's offenses constitute high misdemeanors? Should I 
vote guilty and vote to remove him from office? Some critics may say--
some of my colleagues may say--they may ask, if you believe he is 
guilty, how can you not vote to remove him from office?
  There is some logic to the question, but simple logic can point one 
way while wisdom may be in quite a different direction. It is not a 
popularity contest, of course. But remember our English forbears, who, 
on June 20, 1604, submitted to King James I the Apology of the Commons, 
in which they declared that their rights were not derived from kings, 
and that, ``The voice of the people in things of their knowledge is 
[as] the voice of God.'' ``Vox populi, vox Dei.''
  The American people deeply believe in fairness, and they have come to 
view the President as having ``been put upon'' for politically partisan 
reasons. They think that the House proceedings were unfair. History, 
too, will see it that way. The people believe that the Independent 
Counsel, Mr. Starr, had motivations which went beyond the duties 
strictly assigned to him.
  In the end, the people's perception of this entire matter as being 
driven by political agendas all around, and the resulting lack of 
support for the President's removal, tip the scales for allowing this 
President to serve out the remaining 22 months of his term, as he was 
elected to do. When the people believe that we who have been entrusted 
with their proxies, have been motivated mostly or solely by political 
partisanship on a matter of such momentous import as the removal from 
office of a twice-elected President, wisdom dictates that we turn away 
from that dramatic step. To drop the sword of Damocles now, given the 
bitter political partisanship surrounding this entire matter, would 
only serve to further undermine a public trust that is too much damaged 
already. Therefore, I will reluctantly vote to acquit.
  In 399 B.C., Socrates was convicted and sentenced by the Athenian 
jury to die. If only 30 votes on that Athenian jury had switched, 
Socrates would not have been convicted. If only twenty Senators--or 
less--on my side of the aisle who are expected to acquit, were to 
switch their votes, President Clinton would be convicted, and before 
this coming Sabbath day, he would be removed from the Oval Office. 
President Clinton will be acquitted by the Senate; yet, he will not be 
vindicated.
  The crowds will still cheer the President of the United States, but 
the American people have been deeply hurt

[[Page 2571]]

and, while they may forgive, they will not forget. The pages of history 
will not be expunged--ever!
  Be assured that there will be no winners on this vote. The vote cast 
by every Senator will be criticized harshly by various individuals and 
sundry interest groups. Yet, it is well for the critics to remember 
that each Senator has not only taken a solemn oath to support and 
defend the Constitution, but also to do ``impartial justice'' to Mr. 
Clinton and to the nation, ``So help me, God''. The critics and the 
cynics have not taken that oath; only Senators have done so. Carrying 
out that oath has not been easy. That oath does not say anything about 
political party; politics should have nothing to do with it.
  The frenzy of pro-and-con opinions on every aspect of this case 
emanating from every conceivable source in the land has made coming to 
any sort of ``impartial'' conclusion akin to performing brain surgery 
in a noisy, rowdy football stadium. It will be easy for the cynics and 
the critics who do not have to vote, to stand on the sidelines and 
berate us. But only those of us who have to cast the votes will bear 
the judgment of history.
  Mr. Chief Justice, none of us knows whether the attitudes of the 
American people will take a different turn after this trial is over and 
this drab chapter is closed. ``Fame is a vapor; popularity an accident; 
riches take wings; those who cheer today may curse tomorrow; only one 
thing endures--character!'' It is the character of the Senate that will 
count. And while the politics of destruction may be satisfying to some, 
the rubble of political ruin provides a dangerous and unstable 
foundation for the nation.
  And yet we must move ahead. The nation is faced with potential 
dangers abroad. No one can foresee what will happen in Russia or in 
North Korea or in Kosovo or in Iraq. To remove Mr. Clinton at this time 
could create an unstable condition for our nation in the face of 
unforeseen and potentially dangerous happenings overseas.
  Preceding Senators have sounded the clarion note of separation of 
powers! I have sounded that same trumpet many times when the line item 
veto was before the Senate, but to no avail. Some of the voices that 
have rung throughout this chamber in these deliberations, were 
curiously still on that occasion. The Supreme Court of the United 
States saved the Constitution and struck that law down. But the Supreme 
Court has no voice in the decision that confronts the Senate at this 
hour. It is for the Senate alone to make. When these Senate doors are 
flung open, we must hope that the vote that follows will strengthen, 
not weaken, our nation.
  Let there be no preening and posturing and gloating on the White 
House lawn this time when the voting is over and done. The House of 
Representatives has already inflicted upon the President the greatest 
censure, the greatest condemnation, that the House can inflict upon any 
President. And it is called impeachment! That was an indelible judgment 
which can never be withdrawn. It will run throughout the pages of 
history and its deep stain can never be eradicated from the eyes and 
memories of man. God can forgive us all, but history may not.
  Within a few hours, the mechanics of this matter will finally be 
concluded. But it will not yet be over. For the nation must still 
digest the unpleasant residue of these events. Mr. Chief Justice, 
hatred is an ugly thing. It can seize the psyche and twist sound 
reasoning. I have seen it unleashed in all its mindless fury too many 
times in my own life. In a charged political atmosphere, it can destroy 
all in its path with the blind fury of a whirlwind. I hear its ominous 
rumble and see its destructive funnel on the horizon in our land today. 
I fear for our nation if its turbulent winds are not calmed and its 
storm clouds somehow dispersed. In the days to come, we must do all 
that we can to stop the feeding of its vengeful fires. Let us heap no 
more coals to fan the flames. Public passion has been aroused to a 
fever pitch, and we as leaders must come together to heal the open 
wounds, bind up the damaged trust, and, by our example, again unite our 
people. We would all be wise to cool the rhetoric.
  For the common good, we must now put aside the bitterness that has 
infected our nation, and take up a new mantle. We have to work with 
this President and with each other, and with the members of the House 
of Representatives in dealing with the many pressing issues which face 
the nation. We must, each of us, resolve through our efforts to rebuild 
the lost confidence in our government institutions. We can begin by 
putting behind us the distrust and bitterness caused by this sorry 
episode, and search for common ground instead of shoring up the 
divisions that have eroded decency and good will and dimmed our 
collective vision. We must seek out our better natures and aspire to 
higher things. I hope that with the end of these proceedings, we can, 
together, crush the seeds of ugliness and enmity which have taken root 
in the sacred soil of our republic, and, instead, sow new respect for 
honestly differing views, bipartisanship, and simple kindness towards 
each other. We have much important work to do. And, in truth, it is 
long past time for us to move on.

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