[Congressional Record (Bound Edition), Volume 145 (1999), Part 2]
[Senate]
[Pages 2659-2664]
[From the U.S. Government Publishing Office, www.gpo.gov]




    OPINION OF SENATOR RUSSELL D. FEINGOLD IN THE TRIAL OF WILLIAM 
                           JEFFERSON CLINTON

  Mr. Feingold. Mr. President, I ask unanimous consent that my opinion 
in the recently concluded impeachment trial of President William 
Jefferson Clinton be printed in the Record.
  There being no objection, the opinion was ordered to be printed in 
the Record, as follows:

                 Opinion of Senator Russell D. Feingold

     I. Introduction
     II. Analysis of Alleged Federal Crimes
     A. Standard of Proof
     B. Perjury
     C. Obstruction of Justice
     III. High Crimes and Misdemeanors
     IV. Conclusion
       Only 154 Senators have ever been sworn to sit in a Court of 
     Impeachment for the trial of an American president. For this 
     senator, to sit in judgment of this President was a sorrowful 
     experience. The President and I began our careers in 
     Washington together in January 1993. On the crisp, winter day 
     of his first inauguration, I was moved by the poetry of Maya 
     Angelou, which celebrated the ``pulse of . . . [a] new day'' 
     in American politics and culture. All along in this process, 
     I have regretted that his presidency has come to this, but 
     have sought not to personalize that regret in a way that 
     would affect my judgment. Taking the oath of impartiality on 
     January 7 helped me to do that, but let me say, I very much 
     regret that the President's conduct brought us to this day.
       This somber experience requires a senator to blend three 
     different considerations: (1) the historical purposes of 
     impeachment and the record of past impeachments; (2) the 
     current legal and political merits and implications of these 
     impeachment proceedings; and

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     (3) the potential impact of the current impeachment 
     proceedings on future impeachments and the stability of the 
     American constitutional system.
       In attempting to reconcile these considerations, a senator 
     has only the Andrew Johnson impeachment trial to look to for 
     precise precedents for a presidential impeachment trial. Each 
     senator is expected to render independently his or her 
     judgment about the applicable law and then to apply that law 
     to his or her own individual understanding of the facts of 
     the case. This Opinion is an explanation of my attempt to 
     meet that challenge.


                            I. Introduction

       Strive as they may to minimize its import, the House 
     Managers and those advocating removal of the President must 
     recognize that the single most salient fact in this entire 
     case is that on November 5, 1996, 47,402,357 Americans voted 
     to reelect William Jefferson Clinton. That decision was the 
     right and the responsibility of the American people.
       By contrast, impeachment and removal from office prior to 
     the expiration of a president's four year term of office must 
     be viewed as an extreme and radical remedy, given that it 
     overrides the solemn, quadrennial decision of the American 
     people. For us to remove a duly elected president could well 
     be the most momentous constitutional event in the history of 
     our country, save the Civil War. The people choose their 
     leaders in America, and we must not lightly reverse their 
     will. To overrule the voters, the offense must be grave and 
     the case must be very strong.
       Too much of the rhetoric in this impeachment debate has 
     focused on whether the President should be permitted to keep 
     ``his'' job, in light of his unacceptable behavior. The 
     question is better phrased as whether the President's conduct 
     is sufficiently egregious to require the Congress to undo the 
     decision of more than 47 million Americans to give him that 
     job in the first place. Nor is it a valid argument or 
     palliative to suggest that the same number of Americans also 
     voted for Vice President Albert Gore Jr., and that he would 
     become president upon President Clinton's removal. This 
     argument is far too dependent on the particular nature of the 
     unusual positive connection between this President, this 
     Vice-President, and the American people. It flies in the face 
     of the few actual examples of past presidents who faced the 
     prospect of impeachment.
       In 1868, President Johnson, an unpopular president who had 
     been President Lincoln's vice-president, himself had no vice 
     president. A member of the Senate would have succeeded him 
     had he been convicted. In the case of President Nixon, whose 
     resignation merely substituted for a nearly certain removal 
     from office in an impeachment trial, Gerald R. Ford was 
     elevated to the presidency. He had never been elected 
     popularly to an office higher than the House of 
     Representatives. In any event, the political similarity of a 
     vice-president to a president cannot be taken seriously as an 
     argument that conviction will be less wrenching for the 
     country or damaging to the institution of the presidency. The 
     crucial fact in this case remains that on November 5, 1996, 
     the American people hired one man and one man alone to be 
     their president, and they have a right to expect that their 
     decision will be honored and preserved, except in the most 
     dire circumstances.
       This principle does not apply in the same way to the 
     impeachment of judges. Elected presidents and appointed 
     judges are chosen differently and their removal must be 
     considered differently. They are starkly different in the 
     nature and scope of their duties and in the sources of their 
     constitutional legitimacy.
       In the American constitutional system, it cannot soundly be 
     argued that every precedent from past impeachments of judges 
     must control in the impeachment of an elected president. I do 
     not suggest here a lower standard of behavior for presidents. 
     Rather, I believe that our system requires a higher standard 
     for removal of an elected president than for an appointed 
     judge. Judges serve for life ``during good behavior.'' That 
     is a long time, with no means of removing a judge except 
     impeachment. Presidents are chosen by the people in a sacred 
     democratic process. If the people become displeased with the 
     president they have chosen, they need only wait for the next 
     election or the end of his term.
       Thus, the analogy of an elected president to an appointed 
     judge is weak. Weaker still are the arguments that the 
     President must be removed because a corporate manager or 
     military officer would be removed under similar 
     circumstances. Corporate life is an arena of private behavior 
     and corporate positions do not proceed from popular 
     elections. Personnel decisions in the boardroom are of no 
     broad constitutional consequence. Military officers likewise 
     are not chosen by the voters. The corporate and military 
     analogies cannot justify overturning a presidential election.
       Yet, while overturning an election is the most severe 
     constitutional sanction in our democracy, this President has 
     chosen to conduct himself in such a manner as to run the risk 
     that the U.S. Senate reasonably could conclude that he has 
     committed ``high Crimes and Misdemeanors.'' That is not the 
     conclusion I ultimately reach. But at least with regard to 
     one of the charges in Article II, the President came 
     perilously close to committing an impeachable offense. Even 
     without his removal, this is a tragic occurrence in our 
     nation's history and a personal disappointment to me as one 
     who holds the abilities and many of the accomplishments of 
     this President in high esteem.
       This impeachment process has led members of the Senate to 
     consult the relatively scant history of American 
     impeachments. Much of the history relates to the impeachment 
     of federal judges, and this was of some limited relevance to 
     these proceedings. Of the greatest relevance, however, are 
     the histories of the impeachment and acquittal of Andrew 
     Johnson in 1868, and the virtual impeachment and conviction 
     of President Nixon, who resigned in the face of near certain 
     removal in 1974.
       Based on my reading and study, the actions of President 
     Clinton lie somewhere between the conduct of the presidents 
     in the Johnson and Nixon episodes. The general historical 
     view appears to be that the case against President Johnson 
     lacked a credible basis for removal, the primary accusation 
     being that President Johnson removed a cabinet secretary from 
     office in circumvention of the law. President Johnson 
     disputed the constitutionality of the statute he was alleged 
     to have violated, and apparently had a good basis for that 
     view. The United States Supreme Court ultimately struck down 
     a similar statute as unconstitutional. Myers v. United 
     States, 272 U.S. 52 (1926). Johnson argued that he was the 
     victim of a partisan Congress, determined to punish him for 
     his policies. History has adopted that view. The President's 
     defenders point to the Johnson case and they argue that the 
     impeachment of President Clinton is the same sort of partisan 
     exercise, unfounded in fact or law.
       The President's accusers point to the case of President 
     Nixon. In contrast to the relatively weak case against 
     President Johnson, most regard President Nixon's actions in 
     covering up his and others' efforts to interfere with the 
     1972 presidential election to be a classic example of the 
     type of conduct that the framers sought to discourage with 
     the ``high Crimes and Misdemeanors'' provision. President 
     Nixon's misdeeds almost certainly would have led to his 
     impeachment and conviction if he had not resigned. His 
     alleged crimes were clearly committed in the course of his 
     public duties, subverting the Constitution, compromising the 
     integrity of the processes of government, and using agents of 
     the government for illegal political purposes. The 
     President's accusers argue that the same is true of President 
     Clinton.
       With all due respect to historians and constitutional 
     scholars who may know more or feel differently, it is my 
     sense that the case against President Clinton is the first 
     close or ``hard'' case of presidential impeachment in our 
     nation's long history. This case lies in the middle. It is a 
     hard case and senators may see it either way.
       In the ordinary practice of law, there is a saying that 
     ``hard cases make bad law.'' Some people may invoke that 
     phrase when they complain that the President has ``gotten 
     away with it.'' Others may invoke it with concern that we 
     have somehow made it easier to impeach, if not convict, a 
     president. I have tried to remember that adage as we have 
     made our procedural and evidentiary decisions along the way. 
     Our actions in this trial and our decision today may hold 
     even greater significance for our nation's constitutional 
     structure than the past two presidential impeachments, as 
     wrenching and important as each of those was in our nation's 
     history and in its time. I hope, in the end, that this hard 
     case has made good law.


                 II. Analysis of Alleged Federal Crimes

     A. Standard of proof
       In drafting the two Articles of Impeachment against 
     President Clinton, the House of Representatives sought to 
     portray certain conduct by the President as meeting the 
     constitutional standard of ``High Crimes and Misdemeanors.'' 
     In the specific language employed by the House in the 
     Articles, and in the forceful arguments advanced by the House 
     Managers on the Senate floor, a strategic choice was made. A 
     particular approach was adopted that the House Managers 
     clearly believe puts their case in its strongest light. They 
     could simply have recited and attempted to prove certain 
     conduct by the President and then argued, independent of the 
     strictures of modern criminal law, that the President had 
     committed ``High Crimes and Misdemeanors'' as that term has 
     been understood throughout this nation's constitutional 
     history.
       Perhaps to make the facts of the case more easily 
     understandable, or perhaps because the conduct alone may lack 
     the gravity to justify the removal from office of the 
     President of the United States, the House Managers chose 
     another course, laden with the opprobrium of the modern 
     statutory federal criminal law. Rather than simply alleging a 
     course of general presidential misconduct, they placed 
     enormous reliance on their assertion that the President 
     committed the serious federal crimes of perjury and 
     obstruction of justice. Indeed, in his opening statement on 
     January 15, House Manager McCollum stated quite directly:
       ``The first thing you have to determine is whether or not 
     the President committed

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     crimes. It is only if you determine he committed the crimes 
     of perjury, obstruction of justice, and witness tampering 
     that you will move to the question of whether he is removed 
     from office. In fact, no one, none of us, would argue to you 
     that the President should be removed from office unless you 
     conclude that he committed the crimes that he is alleged to 
     have committed.''
       The very names of these crimes connote in modern America 
     the type of conduct that is hard to reconcile with the 
     continuation in office of the chief law enforcement officer 
     of this nation. The House Managers' strategy was clever. It 
     had an emotional power deeply rooted in the nation's 
     abhorrence of disrespect for the law. It also placed the 
     triers of fact and law in the position of potentially having 
     to justify a decision that the President committed these 
     federal crimes, but that these particular instances of 
     alleged perjury and obstruction of justice did not constitute 
     ``High Crimes and Misdemeanors'' as intended by the Framers.
       I see nothing inappropriate in this approach and, in some 
     ways, it assisted me in organizing my thoughts about this 
     case. An obligation, however, does attend the House Managers' 
     decision to rely on proving that the President committed 
     actual federal statutory crimes. That obligation relates to 
     the standard of proof.
       I cannot justify concluding that the President should be 
     removed from office for committing these federal crimes 
     unless the case is proved by the same standard of proof that 
     any federal prosecutor would be required to meet in a federal 
     criminal case. This standard requires that the President be 
     shown to have committed one of the two crimes alleged 
     ``beyond a reasonable doubt,'' as that standard of proof is 
     understood in our criminal justice system. The ``beyond a 
     reasonable doubt'' standard is guaranteed to defendants in 
     criminal cases by the due process clause of the Constitution. 
     Victor v. Nebraska, 511 U.S. 1 (1994). To apply any lesser 
     standard in this trial would be unfair not only to the 
     President, but also to the tens of millions of Americans 
     whose right to have the President finish his term could be 
     overridden by a mere likelihood or possibility that he 
     actually committed such serious crimes.
       In other words, the House Managers are free to use the 
     ``sword'' of the language of the federal criminal law but 
     cannot simultaneously deprive the president of the ``shield'' 
     that same criminal law provides any defendant by requiring 
     the prosecution to prove its case by the highest standard of 
     proof in our legal system.
     B. Perjury
       Article I charges the President with committing numerous 
     acts of perjury in his Grand Jury testimony of August 17, 
     1998. To convict an individual of perjury under 18 U.S.C. 
     Sec.  1621 or Sec.  1623, the prosecution in a criminal case 
     must prove beyond a reasonable doubt that the defendant: (1) 
     knowingly or willfully made a (2) false, (3) material 
     declaration (4) under oath (5) in a proceeding before or 
     ancillary to any court or grand jury of the United States. To 
     be perjurious, the false statements must be knowingly or 
     willfully false and material to the proceeding in which they 
     are given. Literally true statements, even if misleading, are 
     not perjurious. And if a witness honestly believes that his 
     or her testimony is true at the time the testimony is given, 
     it is not perjurious, even if it is later shown to have been 
     false.
       Before turning to the allegations of perjury in Article I, 
     I must comment on the failure of the House to specify the 
     perjurious statements on which it based its charge. The 
     President's counsel made a convincing argument that if 
     Article I were offered as an indictment in a criminal case, 
     it would be dismissed out of hand for this failure. And 
     despite being alerted to this deficiency in the President's 
     answer and his opening trial memorandum, the House Managers 
     steadfastly refused to be specific and complete in their 
     discussion of the perjury charges, constantly referring to 
     alleged acts of perjury as mere examples.
       As a Senator who has tried to apply a thorough and 
     impartial legal analysis to these charges, I have found this 
     refusal to specify the alleged perjurious statements somewhat 
     frustrating. Unfortunately, even at the conclusion of this 
     trial, it is still very difficult to be sure of what the full 
     list of alleged perjuries includes. Indeed, it is even 
     difficult to be sure if the House Managers continue to rely 
     on all of the charges they raised in their trial memorandum 
     and opening presentation.
       The House listed four ``categories'' of perjury before the 
     Grand Jury. With respect to the first category, ``the nature 
     and details of his relationship with a subordinate Government 
     employee,'' I find that some of the examples that the House 
     Managers raised in their trial memorandum and in presenting 
     their case in the trial are truly frivolous. The Grand Jury 
     was investigating perjury and obstruction of justice in the 
     civil case pursued by Paula Jones. Once the President 
     admitted that his relationship with Monica Lewinsky included 
     inappropriate sexual conduct, of what possible materiality to 
     the Grand Jury's inquiry was the question of how many times 
     such conduct occurred?
       The testimony of the President concerning whether he 
     engaged in conduct with Ms. Lewinsky that would have been 
     considered ``sexual relations'' as that term was defined in 
     the Jones case is the one instance of testimony in this 
     category cited by the House Managers that was clearly 
     material to the Grand Jury's investigation of possible 
     perjury in the deposition. As to the specific facts at issue, 
     we still have only the conflicting testimony of the two 
     witnesses, Ms. Lewinsky and the President. While there are 
     good common sense reasons to doubt the President's version of 
     a wholly non-reciprocal sexual relationship, perjury has not 
     been proven beyond a reasonable doubt. Even if we accept Ms. 
     Lewinsky's version of what kind of touching occurred, the 
     ultimate question of whether President Clinton's statements 
     on this issue in the Grand Jury were actually false turns on 
     the question of what his intent was in engaging in those 
     particular acts with Ms. Lewinsky. I simply cannot say that 
     there is no reasonable doubt on this point. Even Ms. Lewinsky 
     stated in her deposition that the President's intent was 
     something on which she did not feel comfortable commenting.
       A second category of alleged perjury consists of statements 
     by the President before the Grand Jury concerning his earlier 
     testimony in the deposition in the Jones case. This is 
     ``bootstrapping.'' It is particularly troubling because the 
     House of Representatives, and even one of the House Managers, 
     rejected an Article of Impeachment that alleged that the 
     President committed perjury in the Jones deposition. I reject 
     the House Managers' argument that the President reaffirmed 
     his entire Jones deposition before the Grand Jury and 
     therefore should be found guilty of perjury in the Grand Jury 
     if any of his deposition testimony was false. The basis for 
     this breathtaking position, as laid out by House Manager 
     Rogan in response to Senator Nickles' question, is the 
     statement made by the President in response to a question 
     from the Independent Counsel concerning what the oath he 
     swore to tell the truth in the Jones deposition meant to him. 
     He said, ``I believed then that I had to answer the questions 
     truthfully, that's correct.'' In my mind, that was not a 
     reaffirmation of his entire Jones deposition testimony 
     sufficient to make any perjury in that deposition perjury 
     ``by reference'' before the Grand Jury.
       The President did state a few times in the Grand Jury that 
     he intended to answer the Jones' lawyers questions in the 
     deposition in a misleading but technically true manner, and 
     House Manager McCollum highlighted a few of those statements 
     in his closing argument concerning this category of perjury. 
     For purposes of the charge of perjury before the Grand Jury 
     in these statements, the key issue is not whether the 
     President succeeded in negotiating the line between perjury 
     and misleading but true testimony, but whether he intended to 
     negotiate that line. Frankly, my reading of his testimony in 
     the Jones deposition is that it was, in fact, his intent to 
     tell the truth. In the Jones deposition, he was cagey and 
     evasive, but he appeared to be trying mightily not to tell an 
     out and out lie. Even though he may very well have crossed 
     the line on a number of occasions, I have to find that there 
     is reasonable doubt that the President was committing perjury 
     in the Grand Jury when he said that his intent was to testify 
     truthfully in the Jones deposition.
       The third part of Article I deserves only brief mention. It 
     boils down to the charge that the President lied when he said 
     he wasn't paying attention when his lawyer offered Monica 
     Lewinsky's affidavit in the Jones deposition and argued that 
     it meant that ``there is absolutely no sex of any kind, in 
     any manner, shape, or form, with President Clinton.'' The 
     only evidence that the House Managers offered to support 
     their charge of perjury is the videotape of the deposition in 
     which President Clinton is seen looking, we are told, in the 
     direction of his lawyer when this conversation occurred. The 
     House Managers tried to bolster this shockingly thin reed on 
     which to base a perjury charge with a similarly inconclusive 
     affidavit from a law clerk to Judge Susan Webber Wright. This 
     is perhaps the weakest of the many inferences about the 
     President's state of mind that the House Managers urge us to 
     accept in order to convict. I am virtually certain that a 
     perjury charge based on this kind of evidence would not be 
     pursued by a federal prosecutor, and absolutely certain that 
     a jury would not find guilt on such a charge beyond a 
     reasonable doubt. I certainly cannot.
       The fourth and final part of Article I alleges that the 
     President committed perjury when he testified in the Grand 
     Jury concerning ``his corrupt efforts to influence the 
     testimony of witnesses and to impede the discovery of 
     evidence'' in the Jones case. This presumably refers to the 
     President's statements to the Grand Jury concerning the gift 
     exchange and his conversations with Betty Currie and other 
     aides after his Jones deposition. With respect to the 
     President's testimony about the gifts, I find it significant 
     that Monica Lewinsky revealed for the first time in her 
     Senate deposition that she had told the FBI shortly after the 
     President's deposition that one of his statements about the 
     gifts ``sounded familiar.'' Her Senate deposition was the 
     first time that anyone

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     learned about that FBI interview. Surely this was 
     ``exculpatory information'' that the Independent Counsel and 
     the House Managers had the responsibility to disclose to the 
     President's counsel and bring to our attention.
       The President denied that he instructed Betty Currie to 
     pick up the gifts from Monica Lewinsky. By charging the 
     President with perjury for that statement, the House Managers 
     have essentially tried to convert their obstruction charge 
     into a perjury charge. But there is an unresolved conflict of 
     testimony on the issue of who initiated the hiding of the 
     gifts. As I will explain later, that conflict raises 
     reasonable doubt in my mind about that portion of the 
     obstruction charge. It is similarly dispositive of the 
     perjury charge, which essentially amounts to a claim that the 
     President lied when he said he did not obstruct justice by 
     urging Betty Currie to pick up the gifts.
       The President stated in the Grand Jury that in his 
     conversations with aides after his deposition in the Jones 
     case he attempted to be literally truthful, but misleading, 
     in order to conceal his affair with Ms. Lewinsky. The 
     questioning here by the Independent Counsel was far too 
     general to support a perjury conviction for his statement in 
     the Grand Jury that he ``said things that were true'' to his 
     aides. He certainly said many things that were true to his 
     aides, and he told some lies. The clear import of his 
     testimony was that he was trying to conceal his relationship 
     with Ms. Lewinsky from his aides while being generally 
     truthful to them. I do not believe that the President 
     willfully or knowingly lied when he said this to the Grand 
     Jury, nor do I believe that these statements were material to 
     the Grand Jury's inquiry, since he was never asked about and 
     he never denied making specific statements to his aides that 
     were not true.
       As I will discuss later with respect to Article II, the 
     President's conversations with Betty Currie give me the most 
     pause and cause me the most concern in this whole matter. 
     While it may be hard to believe the President's explanation 
     in the Grand Jury that he was ``trying to figure out what the 
     facts were,'' his intent in having the oblique and tortured 
     conversation with Ms. Currie is not clear enough to find 
     beyond a reasonable doubt that he committed perjury in the 
     Grand Jury when he discussed that conversation.
       In sum, I do not believe that the House Managers have 
     proved the elements of perjury beyond a reasonable doubt. But 
     I also must say that even if one or two of these charges did 
     meet that test, I would have some skepticism about Article I. 
     It was a highly unusual situation that led to the President's 
     appearance before the Grand Jury. Targets of criminal 
     investigations are almost never subpoenaed to testify in the 
     Grand Jury, and when they are subpoenaed, they invariably 
     invoke their Fifth Amendment rights. Here, of course, the 
     President did not invoke his right against self-incrimination 
     but instead answered questions about the charges against him. 
     And now he faces charges that he committed perjury when he 
     denied committing the crimes of perjury in the deposition and 
     obstruction of justice that the Grand Jury was investigating. 
     I am uncomfortable with these prosecutorial tactics, which 
     come very close, it seems to me, to using the Grand Jury not 
     only to investigate potential crimes but to trap the 
     President into committing them.
     C. Obstruction of justice
       In Article II, the House charged President Clinton with 
     obstruction of justice and witness tampering. Once again, to 
     successfully convict defendants in criminal cases of these 
     charges, prosecutors must prove each of the elements of the 
     crime beyond a reasonable doubt. And that is the standard I 
     believe is most appropriate here.
       In the case of obstruction, the elements of a violation of 
     18 U.S.C. Sec.  1503 are that: (1) a judicial proceeding was 
     pending; (2) the defendant knew it was pending; and (3) the 
     defendant corruptly endeavored to influence, obstruct, or 
     impede the due administration of justice in the proceeding. 
     The courts have indicated that the requirement that the 
     defendant ``corruptly endeavor to influence'' provides the 
     element of intent in this crime. To ``corruptly endeavor to 
     influence'' is to act voluntarily and deliberately with the 
     purpose of improperly influencing or obstructing the 
     administration of justice.
       Witness tampering under 18 U.S.C. Sec.  1512 requires proof 
     that the defendant (1) corruptly persuaded or attempted to do 
     so or engaged in misleading conduct toward another person (2) 
     with intent (a) to influence or prevent that person's 
     testimony in an official proceeding; or (b) to cause or 
     induce any person to withhold testimony or physical evidence 
     from an official proceeding.
       The charges against the President in Article II have been 
     referred to by the House Managers as the ``seven pillars of 
     obstruction.'' Some of these charges are more easily 
     interpreted as allegations that the federal witness tampering 
     statute has been violated. In any event, the crucial disputed 
     element in all the charges against the President is intent to 
     influence or obstruct the proceeding. The House Managers made 
     little effort to distinguish between the two criminal 
     statutes, which both include that element. Indeed, if the 
     intent element of these crimes were proven, some of the 
     alleged improper conduct of the President could fall under 
     both statutes, which is one reason I have referred to the 
     case against the President as a close one, with regard to 
     Article II.
       The House Managers have regularly urged the Senate to look 
     at the entirety of the charges against the President and not 
     to pick apart the individual allegations. I think the more 
     appropriate analysis, however, is to look at each allegation 
     and determine if the elements of obstruction are proven 
     beyond a reasonable doubt. In many cases, the House Managers 
     seem to take the position that the intent to obstruct or 
     influence can be inferred from a pattern of behavior. But 
     each allegation cannot be considered part of a ``pattern of 
     obstruction'' unless it meets the elements of obstruction (or 
     witness tampering) on its own. Otherwise, Article II become a 
     series of ``bootstraps,'' which are alleged to add up to 
     obstruction of justice without any specific action actually 
     constituting a violation of federal law.
       Nonetheless, there is no question in my mind that Article 
     II is the more serious of the two articles of impeachment, 
     because the factual allegations are more troubling and 
     because it charges conduct that involved a number of 
     individuals, in and out of government, other than the 
     President. If the allegations are true, this conduct would 
     undermine respect for the rule of law and injure our system 
     of justice even more deeply than perjury, which, of course, 
     is a serious violation as well. Because I took these charges 
     very seriously, I wanted to give the House Managers every 
     reasonable opportunity to prove them. I supported the 
     issuance of subpoenas to witnesses for depositions and the 
     presentation of the witnesses' testimony to the Senate 
     because I wanted to be very clear in my own mind about what 
     had taken place before deciding whether to acquit or convict 
     on this particular article.
       The first two obstruction charges against the President 
     arise out of his late night telephone conversation with 
     Monica Lewinsky on December 17, 1997. The House Managers 
     charge that during that call the President encouraged Ms. 
     Lewinsky to file a false affidavit and to lie if called upon 
     to testify in the Jones case. While I may agree with House 
     Manager Graham that a telephone call at the hour of 2:30 a.m. 
     is not likely to be a casual call, the burden on the House 
     Managers is to prove that the President committed a crime 
     during the call, not merely to invite an inference that he 
     was ``up to no good.'' And the direct evidence--testimony 
     from Ms. Lewinsky--does not support the Managers' theory. She 
     testified repeatedly that she never, ``ever'' discussed the 
     contents of her affidavit with the President. In addition, 
     according to Ms. Lewinsky, the discussion of ``cover 
     stories'' in the December 17 phone call was not in connection 
     with her possible affidavit or testimony in the Jones case.
       There simply is not enough evidence that the President 
     intended to influence Ms. Lewinsky's affidavit or testimony 
     to find that the law was broken. According to Ms. Lewinsky, 
     they discussed the possibility of her filing an affidavit in 
     order to avoid testifying, but did not discuss the details of 
     that affidavit. She testified that she thought the contents 
     of affidavit could include a ``range of things,'' running 
     from the innocuous to the deceitful. Indeed, the main 
     evidence offered by the House Managers seems to be that the 
     President and Ms. Lewinksy over the period of the 
     relationship developed ``cover stories'' and planned to 
     conceal their affair. The House Managers suggest that we must 
     infer from the mention of these cover stories during the 
     December 17 conversation a signal to Ms. Lewinsky that they 
     should be employed in the affidavit or in Ms. Lewinsky's 
     testimony if she were called.
       The ``cover stories'' had been developed over a year 
     earlier. The House Managers argue that they were transformed 
     into obstruction of justice and witness tampering when Ms. 
     Lewinsky became a witness in the Jones case by their mere 
     mention in the telephone conversation of December 17. That is 
     an interesting theory, but evidence of the President's intent 
     to obstruct justice in that conversation is simply lacking. I 
     do not believe a federal criminal prosecution would ever be 
     brought with such a slim factual foundation, notwithstanding 
     the earnest statements to the contrary by a number of the 
     House Managers who are former prosecutors.
       Another allegation refuted by the depositions taken by the 
     House Managers was the charge based on the efforts of Vernon 
     Jordan to secure Monica Lewinsky a job. Jordan admitted that 
     he sought a job for Ms. Lewinsky at the request of the 
     President. However disturbing the conduct and whatever 
     innuendo it invites, it was not against the law for the 
     President to seek to aid a woman with whom he had carried on 
     an illicit relationship. It only amounts to obstruction of 
     justice or witness tampering if it is proven that the job 
     assistance was offered with the intent of preventing her from 
     testifying or influencing her testimony in the Jones case. 
     Numerous facts cut against this allegation: (1) the 
     President's efforts to help Ms. Lewinsky find a job started 
     long before she was a witness in the Jones case; (2) Vernon 
     Jordan's intensified efforts predated

[[Page 2663]]

     by at least a week his knowledge that she had been 
     subpoenaed; (3) both Ms. Lewinsky and Mr. Jordan testified 
     that they thought that the job search and the submission of 
     Ms. Lewinsky's affidavit were not connected.
       Vernon Jordan's role in this whole story is nonetheless 
     troubling. It is clear he made extraordinary efforts to help 
     Ms. Lewinsky obtain employment, and he kept the President 
     informed of his progress. But I cannot conclude beyond a 
     reasonable doubt that his efforts must be attributed to a 
     plan on the part of the President to prevent Ms. Lewinsky 
     from testifying truthfully in the Jones case. Just as 
     plausible is that the President's motive to help Ms. Lewinsky 
     was loyalty or guilt, or to make it less likely that she 
     would reveal the relationship, which had long since ceased to 
     be sexual, to one of her friends or the press.
       Another charge in Article II deals with the President's 
     failure to prevent his lawyer from relying on Ms. Lewinsky's 
     misleading affidavit during the Jones deposition. But 
     evidence of the President's intent to obstruct justice is 
     completely lacking here. As a witness in a deposition, the 
     President did not have a duty to monitor his lawyer's 
     statements. One can only imagine what the President was 
     thinking about as he listened to the lawyers and Judge Wright 
     debate whether he was going to have to answer questions about 
     his relationship with Ms. Lewinsky.
       Before turning to the most serious allegations of 
     obstruction and witness tampering, let me comment on the 
     final charge in Article II, which concerns the President's 
     statements to aides who later were called before the Grand 
     Jury to testify. This charge has been a sideshow and a 
     distraction from the beginning. While the charge is listed in 
     Article II as one of the ``means used to implement'' the 
     ``course of conduct or scheme designed to delay, impede, 
     cover up, and conceal the existence of evidence and 
     testimony'' in the Jones case, it actually alleges an effort 
     to obstruct the Grand Jury investigation. Furthermore, it 
     assumes that in the days when the Lewinsky story was 
     breaking, the President's conversations with his aides were 
     aimed at influencing their eventual testimony in the Grand 
     Jury, rather than dealing with the public firestorm that was 
     enveloping the White House and the enormous personal 
     embarrassment and humiliation that the President faced as his 
     affair became public.
       There is much for the Congress and the nation to criticize 
     about the President's behavior in this matter. Concealing the 
     truth and the intimate details of this relationship from his 
     close aides ranks well down on the list for me. I am much 
     more outraged by his very public, very forceful denial of the 
     affair to the American people on national television. Yet 
     that denial does not appear to be part of a scheme to 
     obstruct the Grand Jury. And the fact that the President's 
     more elaborate lie about the nature of his relationship with 
     Ms. Lewinsky in his conversation with Sidney Blumenthal found 
     its way into press accounts is essentially irrelevant to the 
     question of whether the President committed a crime. Yet the 
     House Managers spent hours and hours trying to substantiate 
     their claim that there was a White House effort, masterminded 
     by the President, to discredit and attack Ms. Lewinsky. They 
     even called Sidney Blumenthal as a witness and explored this 
     issue in depth with him. Then, on the day our deliberations 
     started, they sought to introduce new evidence and take new 
     depositions because they believe that Mr. Blumenthal was 
     untruthful in his deposition.
       After all this, the House Managers still have not explained 
     what crime is lurking in the conspiracy they think they have 
     found. The President cannot be impeached and removed from 
     office for being a ``bully,'' or being ``mean,'' or because 
     his Administration has a muscular spin operation. On this 
     charge, not only is there a reasonable doubt that the 
     President intended to obstruct justice when he misled his 
     aides about his relationship with Ms. Lewinsky, there is no 
     evidence at all that he did.
       Let me turn to the two charges of Article II that I view as 
     the most serious and substantial--the concealment of gifts 
     given by the President to Ms. Lewinsky and the President's 
     two conversations with his personal secretary, Betty Currie, 
     after he was deposed in the Jones case.
       It is significant that both of these allegations involve 
     Ms. Currie. And the gift concealment allegation raises what 
     is probably the most serious factual dispute in this case--
     the question of whether it was Ms. Lewinsky or Ms. Currie who 
     suggested hiding the gifts. Yet even when given the 
     opportunity to call a limited number of witnesses for 
     depositions, the House Managers chose not to call Betty 
     Currie. I was troubled by this at the time, particularly 
     since the testimony of Sidney Blumenthal seemed so tangential 
     to the case. Other than Monica Lewinsky, Betty Currie was the 
     most important witness in this case, and the House Managers 
     chose not to depose her.
       While I was inclined to give the House Managers the benefit 
     of the doubt on their witness selection, I am prohibited from 
     giving them the benefit of the doubt on whose testimony to 
     believe on key disputes of fact. Without seeing Ms. Currie 
     testify, I have no basis on which to compare her credibility 
     to that of Ms. Lewinsky on the issue of who initiated the 
     hiding of the gifts. Furthermore, Ms. Lewinsky testified that 
     she was concerned about the Jones lawyers' request for the 
     gifts long before her December 28 meeting with the President 
     and her delivery of the gifts to Ms. Currie later that day.
       I was struck by Ms. Lewinsky's testimony on this point in 
     her Senate deposition. She seemed indefinite when she 
     reaffirmed her earlier testimony that Betty Currie had called 
     her about the gifts, rather than vice versa. In this 
     instance, I appreciated the opportunity to view Ms. 
     Lewinsky's demeanor when she testified. She seemed 
     significantly less certain about who raised the idea of 
     hiding the gifts. I certainly do not conclude that she was 
     lying, but her memory of the sequence of events did not seem 
     as clear on this point as it was on many of the issues 
     discussed in the deposition. The fact that the President gave 
     Ms. Lewinsky even more gifts on December 28 lends additional 
     weight to the theory that it was Ms. Lewinsky who wanted to 
     hide the gifts, not the President.
       With an unresolved direct conflict between the testimony of 
     the two primary witnesses on this allegation, I simply cannot 
     find beyond a reasonable doubt that the President 
     masterminded the gift exchange to obstruct the Jones case.
       Finally, we come to what for me has been the most difficult 
     charge of Article II--the President's alleged ``coaching'' of 
     Betty Currie. Neither the President's testimony in the Grand 
     Jury concerning these conversations nor his lawyers' valiant 
     efforts to explain them were wholly convincing. For the 
     President to call his secretary into the Oval Office on a 
     Sunday--the day after his deposition in the Jones case--and 
     feed her a number of falsehoods about his relationship with 
     Ms. Lewinsky is very alarming.
       The central issue, however, is the President's intent. 
     Knowing that the secret of his relationship with Lewinsky was 
     out, but not yet knowing who had told the Jones lawyers about 
     it, the President could very well have been concerned mostly 
     about public exposure and what his wife would soon learn. He 
     knew that Betty Currie was aware of his friendship with Ms. 
     Lewinsky, but he did not know how much she knew or had 
     surmised about what went on behind closed doors. Since all of 
     that activity had ended quite a long time before, it is not 
     inconceivable that the President was trying to find out what 
     Ms. Currie knew or even influence what Ms. Currie would say 
     to other White House staff, without being specifically 
     concerned with her being a witness in the Jones case.
       It is worth noting here that I am unconvinced by the 
     argument frequently made by the House Managers that Monica 
     Lewinsky was a crucial witness in the Jones case whose 
     testimony might have changed the course of that litigation. 
     Despite the fact that Monica Lewinsky was at one time a White 
     House intern and later a White House employee, there is no 
     allegation of sexual harassment in the relationship, and Ms. 
     Lewinsky consistently characterized her interaction with the 
     President as affectionate and consensual.
       The Jones case later was dismissed on legal grounds that 
     were wholly unrelated to any issue on which Ms. Lewinsky 
     could have shed light. Thus, it is my view that the President 
     hoped that Ms. Lewinsky would not have to testify in the 
     Jones case because he did not want their affair to become 
     public, not because he was concerned about the impact of her 
     testimony on Paula Jones' claims. When he called Ms. Currie 
     into his office on January 18, he knew that someone had told 
     the Jones lawyers about Monica Lewinsky. In that context, it 
     is at least plausible that he was concerned about the 
     imminent explosion of press attention and the political 
     damage that would result from it, rather than his legal 
     situation.
       Whatever our suspicions about the President's intentions in 
     his conversations with Ms. Currie, the available evidence 
     does not entitle us to a convincing inference about his state 
     of mind that would support a finding of guilt. Therefore, 
     although I still have concerns about this allegation of 
     witness tampering, and I believe it was a serious charge to 
     which the President's defense was weak, I do not believe that 
     the House Managers have carried their burden to show beyond a 
     reasonable doubt that the President's intent was to obstruct 
     justice in the Jones case. I cannot reach this conclusion, 
     however, without expressing my deepest concern and sadness 
     that I am able to say only that the President apparently just 
     barely avoided committing the crime of obstruction of justice 
     in his conversations with Betty Currie.


                   III. High Crimes and Misdemeanors

       Many Senators chose to reach the issue of the 
     ``impeachability'' of the offenses charged against the 
     President as a threshold question of law prior to hearing the 
     House Managers' full case. Many voted for Senator Byrd's 
     motion to dismiss on this basis. For two reasons, I believed 
     it was appropriate to allow the facts of the case to be more 
     fully presented and put into evidence before making a legal 
     judgment.
       First, I believed that as a matter of deference and respect 
     for the constitutional role of the House of Representatives, 
     the case, including evidence, should be presented before the 
     Senate reached a judgment. The Constitution gives the House 
     the sole power of

[[Page 2664]]

     impeachment, and a determination of whether certain offenses 
     constitute ``Treason, Bribery, or other high Crimes and 
     Misdemeanors'' is necessarily a part of the House's decision 
     to impeach a president. While the Senate's exclusive power to 
     try, convict, and remove a president makes it the final 
     arbiter of whether the conduct alleged is ``impeachable,'' I 
     believe it is incumbent on the Senate to permit the House 
     Managers a reasonable opportunity to set out their case 
     against the President before making a decision on that 
     question. Whatever misgivings I may have about the way the 
     House exercised its constitutional power to impeach in this 
     instance, I felt compelled to permit the House Managers a 
     reasonable opportunity to make their case before I would 
     exercise my role as both a trier of fact and a judge of law.
       Second, the historical and legal authorities on the 
     question of what constitutes ``other high Crimes and 
     Misdemeanors'' are varied and not wholly consistent. I 
     believed that I could apply those authorities with more 
     certainty to a clear and complete set of facts, after hearing 
     the evidence, than to a set of allegations that might never 
     be proved. I recognize that when courts entertain motions to 
     dismiss in civil cases, they assume that all facts alleged in 
     a complaint are true and determine the scope and impact of 
     the particular statute or legal doctrine on which the claim 
     for relief is based. But in this case, I felt more 
     comfortable reaching the legal question of ``impeachability'' 
     after hearing the evidence. I was comfortable allowing this 
     limited deference to the prerogatives of the House Managers 
     in the interest of a thorough and constitutional process.
       Having decided that the House Managers failed to prove that 
     the President committed the federal crimes they alleged, the 
     question remains whether the underlying acts themselves, 
     whether criminal or not, constitute conduct that under the 
     Constitution constitute ``high Crimes and Misdemeanors'' that 
     should result in the President's removal from office. On the 
     issue of what constitutes ``high Crimes and Misdemeanors,'' 
     as in many other issues in this impeachment and trial, there 
     has been heated and polarizing rhetoric. The House Managers 
     and their supporters argued vigorously that the criminal acts 
     they charged were, on their face, high crimes. White House 
     counsel and many historians and legal scholars argued the 
     contrary, that these acts could in no way be considered high 
     crimes.
       Other than bribery and treason, the Constitution itself 
     gives no exhaustive or exclusive list of those offenses for 
     which presidents should be removed from office. We are given 
     only the phrase ``other high Crimes and Misdemeanors'' for 
     guidance. The key to understanding the meaning of this phrase 
     in my view are the words ``other'' and ``high.''
       As University of Chicago Law School Professor Joseph 
     Isenbergh has written:
       ``* * * without the word `high' attached to it, the 
     expression `crimes and misdemeanors' is nothing more than a 
     description of public wrongs, offenses that are cognizable in 
     some court of criminal jurisdiction.''
       Isenbergh notes that in the 18th Century, the word ``high'' 
     when attached to the word ``crime'' or ``misdemeanor,'' 
     described a crime aiming at the state or the sovereign rather 
     than a private person, and thus a ``high Crime or 
     Misdemeanor'' was not simply a serious crime, but one aimed 
     at the highest powers of the state. This concept had been 
     asserted by William Blackstone and others, and was well 
     understood by the Framers of the Constitution.
       Indeed, Alexander Hamilton wrote in Federalist Paper No. 65 
     that the crimes to be considered in a court of impeachment 
     are:
       ``[T]hose 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 
     particular propriety be denominated POLITICAL, as they relate 
     chiefly to injuries done immediately to the society itself.''
       Writing at the time of the Nixon impeachment, Yale 
     University Law Professor Charles Black commented that the 
     crimes enumerated in the Constitution, treason and bribery, 
     are crimes that ``so seriously threaten the order of 
     political society as to make pestilent and dangerous the 
     continuance in power of their perpetrator.'' In my view, 
     ``other high Crimes and Misdemeanors'' must be interpreted as 
     crimes or acts of a similar gravity and impact on society as 
     those enumerated crimes.
       To determine whether the conduct that led to impeachment 
     for these crimes meets the definition of a high crime, the 
     underlying circumstances must govern and a determination must 
     be made if the offense, in Black's words, ``threatens the 
     order of political society.'' While it is certainly true that 
     an act need not be criminal in a technical sense to 
     constitute a threat to the well-being of the State, the acts 
     in this case were not assaults on the State or the liberties 
     of the people that threaten the order of political society, 
     as contemplated by the Framers. This conduct does not justify 
     overturning the will of the people as expressed in the 1996 
     election.


                             IV. Conclusion

       As I listened carefully to the trial proceedings over the 
     past month, I was impressed with the efforts of counsel for 
     both sides in making their cases. Even understanding the role 
     of counsel as advocates, however, I was troubled by the 
     exaggerated claims with regard to the strength of each side 
     of the case.
       The House Managers referred to the evidence in support of 
     removal as ``overwhelming,'' while the President's counsel 
     described the House Managers' evidence as ``nonexistent.'' I 
     find neither statement to be true and maybe a little 
     reminiscent of the heated words of the Senator Charles Sumner 
     of Massachusetts in his Opinion following the impeachment 
     trial of President Andrew Johnson:
       ``In the judgment which I now deliver I cannot hesitate. To 
     my vision the path is clear as day. Never in history was 
     there a great case more free from all just doubt. If Andrew 
     Johnson is not guilty, then never was a political offender 
     guilty before; and, if his acquittal is taken as a precedent, 
     never can a political offender be found guilty again. The 
     proofs are mountainous. Therefore, you are now determining 
     whether impeachment shall continue a beneficent remedy in the 
     Constitution, or be blotted out forever, and the country 
     handed over to the terrible process of revolution as its sole 
     protection.''
       I cannot view the Clinton impeachment case from either 
     extreme. This, unfortunately, was a close case that raised 
     the very real specter of the nullification of an American 
     presidential election. It is, however, at such a moment, when 
     the high standard for impeachment and conviction becomes 
     especially important.
       The reason I describe the decision of the American people 
     to elect a president as the most salient fact in this case is 
     not simply because it is the right of the American people to 
     choose their president. It is also because of the 
     constitutional goal of our Founding Fathers to create a 
     system of political stability. Just as the Framers wished to 
     avoid the uncertainty of a parliamentary system, we today in 
     this last year of the twentieth century should be concerned 
     about political instability and the threat that excessive 
     partisanship poses to our constitutional order.
       I see the four year elected term of our president as a 
     unifying force in our country. Yet this is the second time in 
     my adult life that a President of the United States has 
     undergone a serious impeachment process. And I am only 45 
     years old. In the nearly two hundred years prior to the case 
     of President Nixon, this happened only once.
       Are these two recent impeachments a fluke? Is it 
     coincidence that two of our recent presidents were thought by 
     some to be sufficiently unfit to be president to warrant this 
     procedure? I wonder how we will feel about the stability of 
     our system if another presidential impeachment occurs 
     sometime in the next ten or twenty years.
       I see a danger in this. I see a danger in this in an 
     increasingly diverse country. I see a danger in this in an 
     increasingly divided country. I see a danger when national 
     elections seem never to be over. I see a danger when the lead 
     House Manager in his concluding remarks in this trial asserts 
     that we are engaged in a ``culture war'' in this country. I 
     hope that is not where we are, and I hope that is not where 
     we are heading.
       In making a decision of this magnitude, it is best not to 
     err at all. If we must err, however, we should err on the 
     side of avoiding such divisions, and of respecting the will 
     of the people. Senator James W. Grimes of Iowa, one of the 
     seven Republicans who voted to acquit President Andrew 
     Johnson in 1868, said in his Opinion at the conclusion of the 
     trial:
       ``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 into an 
     approval of impeachment as a part of future political 
     machinery.''
       Spoken almost 131 years ago, these words express nearly 
     perfectly my sentiments on the grave constitutional questions 
     I was required to address in this case.

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