[Impeachment of President William Jefferson Clinton - The Evidentiary Record Pursuant to S. Res. 16 - Index to Senate Document 106-3, Vols. I-XXIV]
[Volume X - Transcript of December 8 and 9, 1998 presentation on behalf of the President, including presentation of Charles F. C. Ruff. Hearing Ser. No. 68]
[From the U.S. Government Publishing Office, www.gpo.gov]
IMPEACHMENT INQUIRY: WILLIAM JEFFERSON CLINTON, PRESIDENT OF THE UNITED STATES
PRESENTATION ON BEHALF OF THE PRESIDENT
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTH CONGRESS
SECOND SESSION
IMPEACHMENT INQUIRY PURSUANT TO H. RES. 581:
PRESENTATION ON BEHALF OF THE PRESIDENT
__________
DECEMBER 8 AND 9, 1998
__________
Serial No. 68
Printed for the use of the Committee on the Judiciary
-----------
U.S. GOVERNMENT PRINTING OFFICE
53-320 cc WASHINGTON : 1998
_______________________________________________________________________
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC
20402
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin BARNEY FRANK, Massachusetts
BILL McCOLLUM, Florida CHARLES E. SCHUMER, New York
GEORGE W. GEKAS, Pennsylvania HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina RICK BOUCHER, Virginia
LAMAR SMITH, Texas JERROLD NADLER, New York
ELTON GALLEGLY, California ROBERT C. SCOTT, Virginia
CHARLES T. CANADY, Florida MELVIN L. WATT, North Carolina
BOB INGLIS, South Carolina ZOE LOFGREN, California
BOB GOODLATTE, Virginia SHEILA JACKSON LEE, Texas
STEPHEN E. BUYER, Indiana MAXINE WATERS, California
ED BRYANT, Tennessee MARTIN T. MEEHAN, Massachusetts
STEVE CHABOT, Ohio WILLIAM D. DELAHUNT, Massachusetts
BOB BARR, Georgia ROBERT WEXLER, Florida
WILLIAM L. JENKINS, Tennessee STEVEN R. ROTHMAN, New Jersey
ASA HUTCHINSON, Arkansas THOMAS BARRETT, Wisconsin
EDWARD A. PEASE, Indiana
CHRISTOPHER B. CANNON, Utah
JAMES E. ROGAN, California
LINDSEY O. GRAHAM, South Carolina
MARY BONO, California
Majority Staff
Thomas E. Mooney, Sr., Chief of Staff-General Counsel
Jon W. Dudas, Deputy General Counsel-Staff Director
Diana L. Schacht, Deputy Staff Director-Chief Counsel
Daniel M. Freeman, Parliamentarian-Counsel
Paul J. McNulty, Director of Communications-Chief Counsel
Joseph H. Gibson, Chief Counsel
Rick Filkins, Counsel
Sharee M. Freeman, Counsel
Peter J. Levinson, Counsel
John F. Mautz, IV, Counsel
William E. Moschella, Counsel
Stephen Pinkos, Counsel
George M. Fishman, Chief Counsel David P. Schippers, Chief
Mitch Glazier, Chief Counsel Investigative Counsel
John H. Ladd, Chief Counsel
Raymond V. Smietanka, Chief Counsel Susan Bogart, Investigative
Laura Ann Baxter, Counsel Counsel
Daniel J. Bryant, Counsel Robert S. Hoover, Counsel
Cathleen A. Cleaver, Counsel John C. Kocoras, Counsel
Vince Garlock, Counsel Berle S. Littmann, Investigator
James W. Harper, Counsel Stephen P. Lynch, Professional
Susan Jensen-Conklin, Counsel Staff Member
Debra K. Laman, Counsel Charles F. Marino, Counsel
Blaine S. Merritt, Counsel Jeffrey J. Pavletic, Investigative
Nicole R. Nason, Counsel Counsel
Glenn R. Schmitt, Counsel Thomas M. Schippers, Investigative
Jim Y. Wilon, Counsel Counsel
Albert F. Tracy, Investigator
Peter J. Wacks, Investigator
Diana L. Woznicki, Investigator
Minority Staff
Julian Epstein, Minority Chief Counsel-Staff Director
Perry H. Apelbaum, Minority General Abbe D. Lowell, Minority Chief
Counsel Investigative Counsel
David G. Lachmann, Counsel Sampak P. Garg, Investigative
Cynthia A. R. Martin, Counsel Counsel
Henry Moniz, Counsel Steven F. Reich, Investigative
Stephanie J. Peters, Counsel Counsel
Samara T. Ryder, Counsel Deborah L. Rhode, Investigative
Brian P. Woolfolk, Counsel Counsel
Kevin M. Simpson, Investigative
Counsel
Lis W. Wiehl, Investigative
Counsel
C O N T E N T S
----------
HEARING
Page
December 8, 1998................................................. 1
December 9, 1998................................................. 277
OPENING STATEMENTS
Hyde, Hon. Henry J., a Representative in Congress from the State
of Illinois, and Chairman, Committee on the Judiciary..........2, 278
WITNESSES
Ackerman, Bruce, Sterling Professor of Law and Political Science,
Yale University................................................ 37
Beer, Samuel H., Eaton Professor of the Science of Government
Emeritus, Harvard University................................... 32
Ben-Veniste, Richard, Esquire, Former Assistant U.S. Attorney.... 197
Craig, Gregory B., Esq., Assistant to the President and Special
Counsel........................................................ 6
Davis, Richard J., Esq., Weil, Gotschal & Manges................. 294
Dennis, Edward S.G., Jr., Morgan, Lewis & Bockius................ 314
Drinan, Hon. Robert J., S.J., Former Member of Congress from
Massachusetts.................................................. 125
Hamilton, James Esq., Swidler, Berlin, Shereff & Friedman,
Washington, DC................................................. 197
Holtzman, Elizabeth, Former Member of Congress from Massachusetts 118
Katzenbach, Hon. Nicholas, Former Attorney General of the United
States......................................................... 14
Noble, Ronald, Esq., Professor of Law, New York University Law
School......................................................... 318
Owens, Hon. Wayne, former Member of Congress from Utah........... 131
Ruff, Charles F.C., Counsel to the President..................... 406
Sullivan, Thomas P., Esq., Former U.S. Attorney, Northern
District of Illinois........................................... 283
Wilentz, Sean, the Dayton Stockton Professor of History.......... 20
Weld, William Hon., Former Governor of Massachusetts............. 327
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Ackerman, Bruce, Sterling Professor of Law and Political Science,
Yale University: Prepared statement............................ 41
Beer, Samuel H., Eaton Professor of the Science of Government
Emeritus, Harvard University: Prepared statement............... 35
Ben-Veniste, Richard, Esq., Former Assistant U.S. Attorney:
Prepared statement............................................. 202
Davis, Richard J., Esq., Weil, Gotschal & Manges: Prepared
statement...................................................... 298
Delahunt, Hon. William D., a Representative in Congress from the
State of Massachusetts: Testimony by Kenneth Starr from
December 1, 1998 hearing....................................... 374
Dennis, Edward S.G., Jr., Morgan, Lewis & Bockius: Prepared
statement...................................................... 316
Drinan, Hon. Robert J., S.J., Former Member of Congress from
Massachusetts: Prepared statement.............................. 127
Canady, Charles T., a Representative in Congress from the State
of Florida:
Letter dated December 7, 1998, from Douglas W. Kmiec......... 109
Letter dated December 7, 1998, from Harvey C. Mansfield...... 105
Letter dated December 7, 1998, from Griffin B. Bell.......... 117
Letter dated December 9, 1998, from Donald C. Alexander and
other materials relating to 1974 inquiry on the tax fraud
article of impeachment against President Nixon...........188, 459
Remarks of Mr. Owens'........................................ 134
Statement by Professor Walter Berns.......................... 106
Cannon, Hon. Christopher B., a Representative in Congress from
the State of Utah: Documents titled Certificate of Service, and
Declaration of Charles F.C. Ruff............................... 475
Craig, Gregory B., Esq., Assistant to the President and Special
Counsel: Prepared statement.................................... 10
Goodlatte, Hon. Bob, a Representative in Congress from the State
of Virginia: An Open Letter to the Members of the United States
House of Representatives and the United States Senate.......... 510
Holtzman, Elizabeth, Former Member of Congress from
Massachusetts: Prepared statement.............................. 122
Hamilton, Jim: Prepared statement................................ 215
Jackson Lee, Hon. Sheila, a Representative in Congress from the
State of Texas: the Constitution of the United States.......... 394
Kalzenbach, Hon. Nicholas Former Attorney General of the United
States......................................................... 17
McCollum, Hon. Bill, a Representative in Congress from the State
of Florida: Congressional Research Service report on the
Compilation of Presidential Claims of Executive Privilege from
the Kennedy Through the Clinton Administrations................ 467
Noble, Ronald, Esq., Professor of Law, New York University Law
School: Prepared statement..................................... 323
Owens, Hon. Wayne, Former Member of Congress from Utah: Prepared
statement...................................................... 134
Sullivan, Thomas P., Esq., Former U.S. Attorney, Northern
District of Illinois: Prepared statement....................... 287
Waters, Hon. Maxine, a Representative in Congress from the State
of California: Letter dated December 9, 1998 from Alcee L.
Hastings....................................................... 518
Weld, William Hon., Former Governor of Massachusetts: Prepared
statement...................................................... 330
IMPEACHMENT INQUIRY:
WILLIAM JEFFERSON CLINTON,
PRESIDENT OF THE UNITED STATES
PRESENTATION ON BEHALF OF THE PRESIDENT
Hearing on Impeachment Inquiry Pursuant to H. Res. 581
----------
TUESDAY, DECEMBER 8, 1998
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The committee met, pursuant to call, at 10 a.m., in room
2141, Rayburn House Office Building, Hon. Henry J. Hyde
[chairman of the committee] presiding.
Present: Representatives Henry J. Hyde, F. James
Sensenbrenner, Jr., Bill McCollum, George W. Gekas, Howard
Coble, Lamar S. Smith, Elton Gallegly, Charles T. Canady, Bob
Inglis, Bob Goodlatte, Stephen E. Buyer, Ed Bryant, Steve
Chabot, Bob Barr, William L. Jenkins, Asa Hutchinson, Edward A.
Pease, Christopher B. Cannon, James E. Rogan, Lindsey O.
Graham, Mary Bono, John Conyers, Jr., Barney Frank, Charles E.
Schumer, Howard L. Berman, Rick Boucher, Jerrold Nadler, Robert
C. Scott, Melvin L. Watt, Zoe Lofgren, Sheila Jackson Lee,
Maxine Waters, Martin T. Meehan, William D. Delahunt, Robert
Wexler, Steven R. Rothman, and Thomas M. Barrett.
Majority Staff Present: Thomas E. Mooney, Sr., general
counsel-chief of staff; Jon W. Dudas, deputy general counsel-
staff director; Diana L. Schacht, deputy staff director-chief
counsel; Daniel M. Freeman, parliamentarian-counsel; Joseph H.
Gibson, chief counsel; Rick Filkins, counsel; Sharee M.
Freeman, counsel; John F. Mautz, IV, counsel; William
Moschella, counsel; Stephen Pinkos, counsel; Sheila F. Klein,
executive assistant to general counsel-chief of staff; Annelie
Weber, executive assistant to deputy general counsel-staff
director; Samuel F. Stratman, press secretary; Rebecca S. Ward,
officer manager; James B. Farr, financial clerk; Elizabeth
Singleton, legislative correspondent; Sharon L. Hammersla,
computer systems coordinator; Michele Manon, administrative
assistant; Joseph McDonald, publications clerk; Shawn Friesen,
staff assistant/clerk; Robert Jones, staff assistant; Ann
Jemison, receptionist; Michael Connolly, communications
assistant; Michelle Morgan, press secretary; and Patricia
Katyoka, research assistant.
Subcommittee on Commercial and Administrative Law Staff
Present: Ray Smietanka, chief counsel; and Jim Harper, counsel.
Subcommittee on the Constitution Staff Present: John H.
Ladd, chief counsel; and Cathleen A. Cleaver, counsel.
Subcommittee on Courts and Intellectual Property Staff
Present: Mitch Glazier, chief counsel; Blaine S. Merritt,
counsel; Vince Garlock, counsel; and Debra K. Laman.
Subcommittee on Crime Staff Present: Paul J. McNulty,
director of communications-chief counsel; Glenn R. Schmitt,
counsel; Daniel J. Bryant, counsel; and Nicole R. Nason,
counsel.
Subcommittee on Immigration and Claims Staff Present:
George M. Fishman, chief counsel; Laura Ann Baxter, counsel;
and Jim Y. Wilon, counsel.
Majority Investigative Staff Present: David P. Schippers,
chief investigative counsel; Susan Bogart, investigative
counsel; Thomas M. Schippers, investigative counsel; Jeffrey
Pavletic, investigative counsel; Charles F. Marino, counsel;
John C. Kocoras, counsel; Diana L. Woznicki, investigator;
Peter J. Wacks, investigator; Albert F. Tracy, investigator;
Berle S. Littmann, investigator; Stephen P. Lynch, professional
staff member; Nancy Ruggero-Tracy, office manager/coordinator;
and Patrick O'Sullivan, staff assistant.
Minority Staff Present: Julian Epstein, minority chief
counsel-staff director; Perry Apelbaum, minority general
counsel; Samara T. Ryder counsel; Brian P. Woolfolk, counsel;
Henry Moniz, counsel; Robert Raben, minority counsel; Stephanie
Peters, counsel; David Lachmann, counsel; Anita Johnson,
executive assistant to minority chief counsel-staff director,
and Dawn Burton, minority clerk.
Minority Investigative Staff Present: Abbe D. Lowell,
minority chief investigative counsel; Lis W. Wiehl,
investigative counsel; Deborah L. Rhodes, investigative
counsel; Kevin M. Simpson, investigative counsel; Stephen F.
Reich, investigative counsel; Sampak P. Garg, investigative
counsel; and Maria Reddick, minority clerk.
Chairman Hyde. The committee will come to order. A quorum
being present, and pursuant to notice, the committee will come
to order for the purpose of conducting an impeachment inquiry
pursuant to House Resolution 581. Ranking member John Conyers
and I will make brief opening statements. Without objection,
all members' and witnesses' written statements will be included
in the record.
Now, members should know that while in the past I have been
liberal with the gavel, because we have many witnesses, I
intend to adhere strictly to the 5-minute rule. That means
questions and answers will end after 5 minutes. Members who
make 4-minute speeches and ask five questions in the final
minute will not get their questions answered.
I now recognize myself for purposes of an opening
statement.
I have made a commitment to members of this committee, to
Members of the House, to the President and to the people that I
will do all I can to ensure that this impeachment inquiry will
be concluded by the end of the year. I plan on honoring that
commitment, and today's hearing moves us in that direction.
Yesterday afternoon, the White House provided us with a
list of 14 witnesses that it requested this committee to hear.
I am pleased to accommodate the White House's request. We will
hear the testimony of all 14 witnesses as well as Special
Counsel Greg Craig and White House Counsel Charles Ruff.
Therefore, I would like to set the schedule for the
remaining Judiciary Committee proceedings. At the request of
the White House counsel, we have begun today at 10 a.m. and we
will hear from three panels of witnesses today, one panel
tomorrow morning, and the testimony of White House Counsel
Charles Ruff tomorrow afternoon.
The first panel will be Special Counsel Greg Craig and five
witnesses who wish to speak about constitutional standards for
impeachment. Mr. Craig will be recognized for 15 minutes. All
other panel witnesses will each have 10 minutes to make a
statement. After the testimony of the witnesses, members will
be allowed to ask questions for 5 minutes and that will not be
a liberal gavel, but a strict gavel.
I ask that the members pay attention to their time and be
aware that their questions should be asked and answered within
their 5 minutes. The White House has proposed many witnesses,
and we want to make sure that everyone has an opportunity to be
heard. In the interest of time, there will not be questioning
by committee counsel for these four panels.
After the hearing of Panel I, we will move immediately to
Panel II, and then to Panel III. We will observe the same
procedures as Panel I, 10-minute witness presentations followed
by questions by members under the 5-minute rule.
Tomorrow we will hear the fourth panel of witnesses. I hope
to start at 8 a.m. tomorrow morning to ensure ample time for
the White House presentation. Tomorrow afternoon, the committee
will receive the testimony of White House Counsel Charles Ruff.
After his presentation, members will question Mr. Ruff under
the 5-minute rule. He will also be available for questioning by
committee counsel.
Thursday morning, we will have a presentation by Minority
Chief Investigative Counsel Abbe Lowell at 9 a.m. and a
presentation by Chief Investigative Counsel David Schippers at
1 p.m. Beginning at 4 p.m., we will begin consideration of a
resolution containing articles of impeachment for our debate
and deliberation. We will hear opening statements from all
members Thursday evening. Friday, we will begin consideration
and debate of articles of impeachment.
I now recognize the distinguished gentleman from Michigan
and ranking member of the committee, John Conyers, for his
opening remarks. Immediately following the gentleman's remarks,
we will hear from Special Counsel Greg Craig and the other
witnesses of Panel I.
Mr. Conyers.
Mr. Conyers. Thank you, Mr. Chairman, for providing the
White House the opportunity to present their witnesses. The
Independent Counsel had 4 years to investigate the President.
This committee has had 4 months. The White House is now getting
2 days.
There is no question that the President's conduct was
wrong, that he misled the country and the Nation. But I believe
that the legal case against the President is not strong.
Republicans have said that Democrats do not contest the
charges. Well, we do. There is no question that the President
misled the country in his January 21 press conference. But that
does not amount to perjury. The President already admitted
before the grand jury to an improper sexual relationship. Now
the Republicans insist that he must admit to sexual relations
under the contorted definition provided by the Paula Jones
attorneys. That is really at the heart of the perjury charge.
That is the strength of its foundation.
The effort to find Monica Lewinsky a job started well
before there was any Paula Jones witness list. The President
never offered Lewinsky a job. That charge is frivolous.
Betty Currie was not on the witness list, and thus the
President's conversations with her could not possibly have been
the basis for obstruction. It is perfectly legal for the
President, or anyone else, to tell a civil witness--in this
case, Miss Lewinsky--that an affidavit may satisfy the
requirement of the court. That is not obstruction.
It was Monica Lewinsky's idea to return the gifts. The
President was never concerned about the gifts and kept giving
them. And Monica Lewinsky, in the most significant, clarion
statement before the grand jury, said that no one asked her to
lie and no one promised her a job.
The legal case against the President is, in my judgment, a
house of cards. The Judiciary Committee has heard from no
factual witnesses to validate any of the charges. Instead, it
is relying on uncross-examined, often contradictory grand jury
hearsay to support an already weak case.
That would not satisfy any court of law, and it cannot
possibly serve as the evidentiary foundation for an
impeachment. And even if these shaky allegations were proven
true, they would not rise to the standard of impeachment which
requires the abuse of official power.
So we are at a critical crossroads today. We can either
impeach the President, along a largely party line vote, and
send this resolution to the Senate where there will be a 6-
month or more, full-blown, intensified investigation; or we can
find a meaningful way of censuring the President. The public,
you may know, is overwhelmingly against impeachment and is for
censure.
But our new Republican leadership, led by Speaker-Elect
Livingston and Whip Tom DeLay, are thumbing their noses at the
American people and telling them that the solution the American
people want most cannot even come to the floor for a vote.
Well, if the American people ever wanted strong evidence
that the extremists are still in control of this process, then
that is it. It is time to give the American people a holiday
gift, to end this sordid tale. But the gift that the extremists
on the other side offer is 6 more months of this investigation
by changing the venue to the Senate.
This, Mr. Chairman and colleagues, is not the way to bring
this important issue to a speedy conclusion.
Thank you.
Chairman Hyde. Thank you, Mr. Conyers. Mr. Craig, Attorney
General Katzenbach, Professor Ackerman, Professor Wilentz and
Professor Beer, would you mind standing to receive the oath.
Would you raise your right hand.
[Witnesses sworn.]
Chairman Hyde. Thank you.
Mr. Scott. Mr. Chairman?
Chairman Hyde. Mr. Scott?
Mr. Scott. Mr. Chairman, parliamentary inquiry. I
understood that we would have a committee meeting prior to the
receipt of testimony. Are motions at this point out of order?
Chairman Hyde. I think we are going to do that tomorrow
morning, Mr. Scott.
Mr. Scott. Well, I would like the record to reflect that I
had a motion that would be timely now, that might not be timely
tomorrow morning.
Chairman Hyde. What is your motion?
Mr. Scott. To ask for a specific scope of inquiry prior to
the White House rebuttal of the undefined allegations. If we
are asking them to rebut, we ought to have them notified of
what the allegations and what the scope is.
We only have 5 minutes to ask questions. We have had
various different lists of what the allegations are. We would
like to use our 5 minutes effectively and not ask questions
about allegations that we are not actually pursuing.
Chairman Hyde. Well, this is a hearing, so it is not
appropriate that you be recognized for the purposes of that
motion. We will proceed with the hearing.
Mr. Scott. Thank you, Mr. Chairman.
Chairman Hyde. Let the record show that the witnesses
answered the question posed by the oath in the affirmative. And
I will give a very brief introduction. Mr. Craig may want to
make a more fulsome introduction, and I don't want to foreclose
you from doing that.
Mr. Gregory Craig is Assistant to the President and Special
Counsel. The Honorable Nicholas Katzenbach is a former Attorney
General of the United States under President Johnson and Under
Secretary of State. He is also retired as Senior Vice President
and Chief Legal Officer of IBM.
Professor Bruce Ackerman is the Sterling Professor of Law
and Political Science at Yale University and author of ``Volume
II: We the People,'' which includes an historical and legal
analysis of the impeachment of Andrew Johnson. Professor Sean
Wilentz is the Dayton Stockton Professor of History and
Director of Program in American Studies at Princeton
University. Professor Wilentz is an expert and teacher of
American history from the American Revolution through
Reconstruction. He is the author of six books and numerous
articles.
Professor Samuel H. Beer is the Eaton Professor of the
Science of Government Emeritus at Harvard University. He has
written and lectured and taught about the American system of
government for over 65 years.
TESTIMONY OF GREGORY B. CRAIG, ESQ., ASSISTANT TO THE PRESIDENT
AND SPECIAL COUNSEL; HON. NICHOLAS KATZENBACH, FORMER ATTORNEY
GENERAL OF THE UNITED STATES; SEAN WILENTZ, THE DAYTON STOCKTON
PROFESSOR OF HISTORY; SAMUEL H. BEER, EATON PROFESSOR OF THE
SCIENCE OF GOVERNMENT EMERITUS, HARVARD UNIVERSITY; AND BRUCE
ACKERMAN, STERLING PROFESSOR OF LAW AND POLITICAL SCIENCE, YALE
UNIVERSITY
Chairman Hyde. Mr. Craig, you are recognized for a 15-
minute statement.
TESTIMONY OF GREGORY B. CRAIG, ESQ.
Mr. Craig. Mr. Chairman, Congressman Conyers, members of
the committee, good morning. My name is Greg Craig, and I am
Special Counsel to the President. Let me first say that it is
my honor, as well as an obligation, to appear before this
committee in defense of the President.
The purpose of my appearance is to describe briefly and in
general terms how we plan to proceed with the presentation of
the President's defense over the next 2 days.
The time has finally come for the President to make his
case and to give his side of the story. Over the next 2 days we
will present to this committee, to the Congress, and to the
country as a whole, a powerful case--based on the facts already
in the record and on the law--a powerful case against the
impeachment of this President.
During our presentation today and tomorrow we will show
from our history and our heritage, from any fair reading of the
Constitution, and from any fair sounding of our countrymen and
women, that nothing in this case justifies this Congress
overturning a national election and removing our President from
office.
As we begin this undertaking, I make only one plea to you,
and I hope it is not a futile one coming this late in the
process. Open your mind, open your heart, and focus on the
record. As you sit there listening to me at this moment, you
may already be determined to vote to approve some articles of
impeachment against this President. That is your right and your
duty if you believe the facts and the law justify such a vote.
But there is a lot of conventional wisdom about this case
that is just plain wrong, and if you are in fact disposed to
vote for impeachment in the name of a justice that is fair and
blind and impartial, please do so only on the basis of the real
record and on the real testimony, not on the basis of what
someone else tells you is in the record.
By the close of tomorrow, all the world will see one simple
and undeniable fact: Whatever there is in the record that shows
that what the President did was wrong and blameworthy, there is
nothing in the record--in either the law or the facts--that
would justify his impeachment and removal from office.
In truth, I would not be fairly representing President
Clinton if I did not convey to you his profound and powerful
regret for what he has done. He has insisted and personally
instructed his lawyers that no technicalities or legalities
should be allowed to obscure the simple moral truth that his
behavior in this matter was wrong. He misled his wife and
family, his friends and colleagues, and our Nation about the
nature of his relationship with Ms. Lewinsky.
The President wants everyone to know--the committee, the
Congress, and the country--that he is genuinely sorry for the
pain and the damage that he has caused and for the wrongs that
he has committed.
But as an attorney, I must caution this committee to draw a
sharp distinction between immoral conduct and illegal acts.
Just as no fancy language can obscure the simple fact that what
the President did was morally wrong, no amount of rhetoric can
change the legal reality that there are no grounds for
impeachment. As surely as we all know that what he did is
sinful, we also know it is not impeachable.
Let me assure the members of this committee, the Members of
the House of Representatives, and the American public of one
thing: In the course of our presentation today and tomorrow, we
will address the factual and evidentiary issues directly. We
will draw this committee's attention to evidence that tends to
clear the President with respect to each of the various
charges--evidence that was left out of the Independent
Counsel's referral, evidence that has not been widely reported
in the press, but evidence that reveals the weakness of the
charges being brought against the President. We are confident
that at the end of this presentation, you will agree that
impeachment is neither right nor wise nor warranted.
When it comes to constitutional standards for impeachment
as conceived by the Founding Fathers, we will show that the
Constitution requires proof of official misconduct and abuse of
high public office for the drastic remedy of impeachment to be
appropriate.
When it comes to standards of proof that should apply to
the evidence that is brought before this committee, we will
argue that this President should be considered innocent until
proven guilty, and that he should be informed with
particularity as to the facts and specifics of the misconduct
that he is accused of, especially when it comes to the
allegations of perjury.
On those allegations, we will show that neither the law of
perjury nor the facts of this case could sustain a criminal
prosecution, much less impeachment.
Mr. Chairman, I am willing to concede that in the Jones
deposition the President's testimony was evasive, incomplete,
misleading, even maddening, but it was not perjury.
On the allegation of perjury before the grand jury, which
we all agree is the more serious offense, please look at the
real record, not the referral's report of that record. Millions
of Americans watched that testimony. They concluded, as I
believe you too will find, that in fact the President admitted
to an improper, inappropriate, and intimate relationship with
Ms. Lewinsky. He did not deny it; he admitted it. Fair-minded
Americans heard what the President said, and they knew what the
President meant.
When it comes to allegations that the President, with Ms.
Lewinsky and Ms. Currie and Mr. Jordan, obstructed justice, we
will show that the evidence presented in the referral is
misleading, incomplete, and frequently inaccurate. We will show
that the President did not obstruct justice with respect to
gifts, the job search, or the affidavit. And we will show that
the President did not seek wrongfully to influence Ms. Currie's
testimony.
Again, we will ask you to look at the real record, not the
referral's version of the record. And the real record shows
that the sworn testimony of Ms. Lewinsky, Ms. Currie and Mr.
Jordan, far from incriminating the President, actually
exonerates him. And yet their testimony, although crystal clear
before the grand jury, is edited, modified, qualified, or
ignored in the referral.
When it comes to allegations that the President abused his
office, we will show that the President's assertions of
executive privilege were perfectly proper and that the claims
of attorney-client privilege were justified under the
circumstances.
And when it comes to allegations that the President used
the power of his office to mislead his aides, not, as one might
think, for the purpose of protecting himself and his family,
but, as alleged, to mislead the grand jury, we will show that
false denials about an improper private relationship, whether
those denials are made in private or before the entire world,
simply do not constitute an abuse of office that justifies
impeachment.
Finally, Mr. Chairman, before introducing the distinguished
members of this panel, let me just point out that in the course
of this impeachment inquiry the members of this committee have
learned nothing new either about the Lewinsky matter or about
any other matter warranting consideration in these proceedings
except that the President has finally, if belatedly, been
cleared on the charges concerning Whitewater, the file matter,
and the travel office. There has been no new evidence and there
are no new charges.
So I say to the members of the committee, if back in
September when you received this referral, if back in October
when you voted to conduct this inquiry, if back then you did
not think that the referral justified impeaching President
Clinton, there is no reason for you to think so today.
There can be no more solemn or awesome moment in the
history of this Republic than when the Members of the House of
Representatives contemplate returning an article of impeachment
against the President of the United States. There can be no
more soul-searching vote in the career of a Member of the House
of Representatives than when he or she considers impeachment of
the President of the United States. These are weighty issues
and great moments of conscience and consequence. Please do not
let the passion of partisan politics on either side blind your
eyes to the truth of the law, the evidence, and above all, the
national interest.
This first panel of witnesses is composed of a
distinguished public servant and a group of eminent scholars
who will testify about the history of impeachment and the
constitutional standards that should govern impeachment.
The second panel of witnesses will bring the wisdom of
hard-won experience--experience, Mr. Chairman, earned in this
very room serving on this very committee under the leadership
of that distinguished Chairman, Peter Rodino, whose portrait
hangs on the wall before me. They will bring that wisdom to
bear on the vital issue of what was abuse of power by a
President in 1974 compared with the allegations and the
evidence of abuse of power by this President in 1998.
The third panel of witnesses will discuss how we should
examine and evaluate the evidence that is before us with
respect to the abuse of power and the fact-finding process. And
then tomorrow, we will hear the testimony of a fourth group of
witnesses, experienced lawyers in the criminal justice system
who will shed light on the prosecutorial standards of bringing
criminal cases of alleging perjury and obstruction of justice.
To close, tomorrow afternoon, Charles Ruff, Counsel to the
President, will present the President's final defense to the
committee and respond to questions.
On behalf of the President, I thank the committee for its
time and its attention, and I now turn the microphone over to
Mr. Katzenbach, the former Attorney General of the United
States.
[The statement of Mr. Craig follows:]
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Mr. Rogan. Mr. Chairman, a parliamentary inquiry.
Chairman Hyde. The gentleman will state his parliamentary
inquiry.
Mr. Rogan. Mr. Chairman, will the written statements of the
respective witnesses be provided to the members of the
committee?
Chairman Hyde. That is a good question. I am not sure.
Mr. Craig, do you have a written statement?
Mr. Craig. This is my only written statement. I will be
happy to copy it and distribute it among the members.
Chairman Hyde. Would one of our staff get Mr. Craig's
statement--we can do that if you don't mind.
Jim, would you get the copy?
Mr. Craig. Pay no attention to my edits.
Chairman Hyde. Will the other witnesses have written
statements that we can avail ourselves of? It is helpful for
the record and for our edification.
Mr. Katzenbach.
TESTIMONY OF HONORABLE NICHOLAS KATZENBACH
Mr. Katzenbach. I do, Mr. Chairman, but I would appreciate
it if I could have the written statement until I have completed
reading it.
Chairman Hyde. Well, that gives you a considerable
advantage, but go ahead.
Mr. Katzenbach. I think, with this committee, I need it,
Mr. Chairman.
Chairman Hyde. Touche, touche.
Mr. Katzenbach. Proceed?
Mr. Chairman and members of the committee, let me first
say, Mr. Chairman, that I thought your introduction was very
fulsome, and I appreciate it.
Chairman Hyde. Good.
Mr. Katzenbach. I also appreciate the opportunity to
testify before this once-familiar-to-me committee on the
important constitutional question of impeachment of the
President of the United States which is before this committee.
A great deal has been written and spoken on the subject of
impeachment by the media, by Members of Congress, by the
witnesses testifying before this committee, by academics and
others--so much, in fact, that it seems to me we are in danger
of losing sight of and understanding the fundamentals. So in
the hope of simplifying a complex issue, I would like to begin
with some fundamentals that are not, I believe, controversial.
The process of impeachment is simply to remove from office
upon conviction, not to otherwise punish the person involved.
The Constitution provides the legislative branch, the Congress,
with this means of removing from office the President, the Vice
President, and all civil officers upon conviction of treason,
bribery, or other high crimes and misdemeanors. The threshold
problem for the committee is, of course, to determine what
constitutes high crimes and misdemeanors which would justify
removal from office of an elected President.
The phrase, ``high crimes and misdemeanors,'' is not a
familiar one in modern American jurisprudence. Common law
constituted a category of political crimes against the state
and neither ``high crime'' nor ``high misdemeanor'' have ever
been terms used in the criminal law. In the United States, one
of the founders, James Wilson, made essentially that point when
he wrote that, quote, ``Impeachments are confined to political
characters, to political crimes and misdemeanors, to political
punishments.''
Or, as Justice Story observed, ``Impeachment is a
proceeding purely of a political nature. It is not so much
designed to punish an offender as to secure the state against
gross political misdemeanors. It touches neither his person nor
his property, but simply divests him of his political
capacity,'' end quote.
The problem which the Founders faced was how to adapt this
process from a parliamentary system in which there was no
separation of powers to one in which separation of powers was
of great importance. In Great Britain, the impeachment process
was aimed at officers appointed by the Crown in circumstances
historically where the king himself could not be removed from
office, except perhaps by revolution, such as Oliver
Cromwell's. As the British system has evolved and the prime
minister become essentially a legislatively elected official
where he or she could be forced to a midterm election by a
parliamentary vote of no confidence, impeachment has lost its
punch. But in the United States where the President is elected
for a fixed term of office different from the legislative
terms, the Founders thought it essential to have some means of
removing him or her before the expiration of his term if he is
guilty of high crimes and misdemeanors.
And whatever that term may be found to mean, it is clear
that the Founders intended it to be a limited power. Because in
their debates, the Founders dealt virtually exclusively with
the President. Civil officers, as you know, were added later in
the process. And because for most of the Convention the
impeachment clause was confined to treason and bribery, they
equated all high crimes and misdemeanors with, in the debates,
great offenses when that term was added.
Now, I appreciate this brief history does not resolve in
any decisive fashion the threshold problem the committee is
facing in determining what conduct by a President justifies
impeachment. But I do think it tends to provide some parameters
which should be useful and which should not, at least when
phrased generally, be very controversial.
It is a serious matter for a Congress to remove a President
who has been elected in a democratic process for a term of 4
years, raising fundamental issues about the separation of
powers. If that power is not limited, as it clearly is, then
any President could be removed if a sufficient number of
Members of the House and Senate simply disagreed with his
policies, thus converting impeachment into a parliamentary vote
of no confidence. Whatever its merits, that is not our
constitutional system.
Because impeachment is a political process, it has always
had a strong partisan quality element and strong partisan
motivation. It still does and in a democratic political system
probably always will. But that fact simply increases the risk
of subverting the constitutional system.
To appreciate those risks, you need only consider the
impeachment of Andrew Johnson, a President who came close to
being convicted in a process as unfair as it was partisan,
which should be an object lesson for all.
The job of this committee is to weigh the facts of
President Clinton's alleged conduct against the limiting
provision of the Constitution, ``other high crimes and
misdemeanors.'' The job may seemingly be made more difficult
because of the application of that term to judges as well as
the President and Vice President. But judges are appointed
during good behavior, a term which significantly does not apply
to limit the 4-year term of the President. By removing one of
several hundred Federal judges from office doesn't have the
same constitutional significance as removing the President.
Even removal of a Supreme Court Justice would raise different
considerations from removing the President where the standard
is far higher than for judges, as Congressman--as he was then--
Gerald Ford recognized when he proposed impeachment of Justice
Douglas. To come to the same conclusions on the same facts in
such different situations would make a mockery of the
Constitution and the intentions of the Founding Fathers.
Only if one takes the view articulated by Senator Fessenden
in the Johnson impeachment, that impeachment is a power, quote,
``to be exercised with extreme caution in extreme cases,'' can
the same standards apply to Presidents and judges. One simply
needs to take into consideration thedifferent roles and
responsibilities of the officers involved.
The proper way to resolve these problems which are made
more difficult by unfamiliar language than they are by clear
purpose, is simply to return to the reasons for the provision.
If we think of it in political, not partisan, but political
terms impeachment is designed to provide the legislative branch
with a method of removing a person from office whose conduct is
so egregious as to justify reversing the process by which he
was appointed or elected.
It seems to me clear that in our system of separation of
powers, this cannot mean simply disagreement, however sincere,
however strongly felt, with either the decisions of judges or
the policies of the President. It must be some conduct, some
acts which are so serious as to bring into question the
capacity of the person involved to carry out his role with the
confidence of the public.
If I am correct--and this seems to me the fundamental
question--it is simply whether the President has done something
which has destroyed public confidence in his ability to
continue in that office. If the public does not believe that
what he has done seriously affects his ability to perform his
public duties as President, should the committee conclude that
his acts have destroyed public confidence essential to that
office? The only question, after all, is removal from office of
an elected official. Is it proper? Is it the proper role of a
partisan majority in Congress to conclude that the offenses are
so serious as to warrant removal, even if the public believes
otherwise? I don't find the arguments for this position
persuasive.
First, there is the argument that perjury--and for the
purposes of this analysis, I take it to be correct--is always
so serious, irrespective of circumstance, as to warrant removal
of a President. I suggest that some perjury is more serious
than others--if, for example, the President were to swear
falsely that he had no knowledge of a CIA plot to assassinate
the Speaker.
Chairman Hyde. Mr. Katzenbach, could you wind up? Because
your 10 minutes has expired.
Mr. Katzenbach. Are you sure, Mr. Chairman?
Chairman Hyde. Yes, that big red light----
Mr. Katzenbach. Could I have 1 more minute?
Chairman Hyde. Surely, but I just wanted you to know.
Mr. Katzenbach. Okay. The point is simply that all perjury
may be reprehensible, but it is still not of similar import
when the ultimate issue is public confidence to perform the
duties of office.
If the argument is made that the public's view as to what
does or does not constitute a cause for impeachment is
irrelevant because of the duty of the House to determine
whether or not the President has committed a high crime or
misdemeanor, I would agree if it were a criminal case. I would
agree if the President was extremely unpopular, because I could
not then separate that popularity from the acts causing the
impeachment. In those circumstances, the Congress would have a
particularly difficult job.
But this Congress and this committee are faced with a
totally new impeachment problem. Due to the existence of the
Independent Counsel, the facts are publicly known, the areas of
factual dispute relatively minor. Members of Congress have
expressed concern over the evils of perjury and other alleged
offenses and their serious nature. For whatever reason, the
public remains unpersuaded.
Finally, I cannot see any constitutional basis for
impeachment. To remove a popularly elected President requires,
in my judgment, showing a great offense against the public
sufficient to bring into question of reasonable people whether
or not he should be removed.
The threshold constitutional question, Mr. Chairman, for
each Member of Congress is that he--which he must decide, or
her--can be simply stated: Is the conduct of the President such
that he should be removed from office because, as a consequence
of that conduct, the public no longer has confidence that he
can perform the duties of that high office.
Remember, impeachment is a political process, a political
remedy to preserve confidence in that political process, not to
punish a perpetrator.
Thank you.
Chairman Hyde. Thank you very much, Mr. Katzenbach.
[The statement of Mr. Katzenbach follows:]
Prepared Statement of Hon. Nicholas Katzenbach
Mr. Chairman and Members of the Committee: My name is
Nicholas Katzenbach. I am a retired Senior Vice-President and
Chief Legal Officer of IBM and a former Attorney General of the
United States and Under Secretary of State now semi-retired
from the practice of law in New Jersey. I appreciate the
opportunity to testify before this once-familiar Committee on
the important Cosntitutional question of Impeachment of the
President of the United States.
A great deal has been written and spoken on the subject of
impeachment by the media, by Members of Congress, witnesses
testifying before the Committee, academics and others--so much,
in fact, that it seems to me we are in danger of losing sight
and understanding of the fundamentals. So, in the hope of
simplifying a complex issue, I'd like to begin with some
fundamentals that are not, I believe, controversial.
The process of impeachment is simply to remove from office
upon conviction--not to otherwise punish the person involved.
The Constitution provides the legislative branch--the
Congress--with this means of removing from office the
President, Vice-President and all civil officers upon
conviction of treason, bribery, or other high crimes and
misdemeanors. The threshold problem for the Committee and the
House is, of course, to determine what constitutes the ``high
crimes and misdemeanors'' which would justify removal from
office of an elected President. The phrase ``high crimes and
misdemeanors'' is not a familiar one in modern jurisprudence.
At common law it constituted a category of political crimes
against the state, and neither ``high crime'' or ``high
misdemeanor'' were ever terms used in criminal law. In the
United States one of the Founders, James Wilson, made
essentially the same point when he wrote that ``impeachments
are confined to political characters, to political crimes and
misdemeanors, and to political punishments''. Or, as Justice
Story observed, impeachment is ``a proceeding purely of a
political nature. It is not so much designed to punish an
offender as to secure the state against gross political
misdemeanors. It touches neither his person nor his property,
but simply divests him of his political capacity''.
The problem which the Founders faced was how to adapt this
process from a Parliamentary system in which there was no
separation of powers to one in which Separation of Powers was
of great importance. In Great Britain the impeachment process
was aimed at officers appointed by the Crown in circumstances
where the King himself could not be removed from office except
by a revolution such as Oliver Cromwell's. As the British
system evolved and the Prime Minister became essentially a
legislatively elected official where he or she could be forced
to a mid-term election by a parliamentary vote of no
confidence, impeachment lost its punch.
But in the United States, where the President is elected
for a fixed term of office different from the legislative
terms, the Founders thought it essential to have some means of
removing him or her before the expiration of his term if he was
guilty of ``high crimes and misdemeanors''. And whatever that
term may be found to mean, it is clear that the Founders
intended it to be a limited power. Because in their debates the
Founders dealt virtually exclusively with the President (civil
officers were added late in the process), and because for most
of the Convention the impeachment clause was confined to
treason and bribery, they equated ``other high crimes and
misdemeanors'' with ``great offenses'' when that term was
added.
I appreciate that this brief history does not revolve in
any decisive fashion the threshold problem the Committee is
facing in determining what conduct by a President justifies
impeachment. But I do think it tends to provide some parameters
which should be helpful and which should not, when phrased
generally, be very controversial. 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 issues about the Separation of Powers. If that
power is not limited--as it clearly is--then any President
could be removed if a sufficient number of Members of the House
and Senate simply disagreed with his policies thus converting
impeachment into a Parliamentary vote of no confidence.
Whatever its merits, that is not our Constitutional system.
Because impeacement is a political process it has always
had a strong partisan political element and motivation. It
still does and in a democratic political system probably always
will. But that fact obviously increases the risk of subverting
the Constitutional system. To appreciate those risks one need
only review the impeachment of President Andrew Johnson, an
unpopular President who came close to being convicted in a
process as unfair as it was partisan and an object lesson for
all.
The job of this Committee is to weigh the facts of
President Clinton's alleged conduct against the limiting
provision of the Constitution--``other high crimes and
misdemeanors''. The job may seemingly be made more difficult
because of the application of that term to judges as well as
the President and Vice-President: judges are appointed during
``good behavior'', a term which significantly does not apply to
limit the four year term of the President. But removing one of
several hundred federal judges from office does not have the
same Constitutional significance as removing the President;
even removal of a Supreme Court Justice would raise different
considerations than removing the President where the standard
is far higher than for judges, as Congressman (as he then was)
Gerald Ford recognized when he proposed the impeachment of
Justice William Douglas.
To come to the same conclusions on the same facts in such
different situations would make a mockery of the Constitution
and the intention of the Founding Fathers. Only if one takes
the view articulated by Senator Fessenden in the Johnson
impeachment that impeachment is a power ``to be exercised with
extreme caution'' in ``extreme cases'' can the same standard
apply to both Presidents and judges. One simply needs to take
into consideration the different roles and responsibilities of
the offices involved.
The proper way to resolve these problems--which are made
more difficult by unfamiliar language than by clear purpose--is
simply to return to the reasons for the provision. If we think
of it in political--not partisan--terms, impeachment is
designed to provide the legislative branch with a method of
removing a person from office whose conduct is so egregious as
to justify reversing the process by which he was appointed or
elected. It seems clear to me that in our system of Separation
of Powers this cannot mean simply disagreement--however sincere
and however strongly felt--with either the decisions of judges
or the policies of Presidents. It must be some conduct--some
acts--which are so serious as to bring into question the
capacity of the person involved to carry out his role with the
confidence of the public.
If I am correct, then it seems clear to me that the
fundamental question is simply whether the President has done
something which has destroyed the public's confidence in his
ability to continue in office. If the public does not believe
that what he has done seriously affects his ability to perform
his or her public duties as President, should the Committee
conclude that his acts have destroyed the public confidence
essential to that office? The only question, after all, is
removal from office of an elected official. Is it the proper
role of a partisan majority in Congress to conclude that the
offenses are so serious as to warrant removal even if the
public believes otherwise?
I do not find the arguments for this position persuasive in
the slightest. First, there is the argument that perjury (and
for purposes of analysis I take this as correct) is always so
serious (irrespective of circumstance) as to warrant removal of
a President. I suggest that some perjury is more serious than
others: If, for example, the President were to swear falsely
that he had no knowledge of a CIA plot to assassinate the
Speaker, that would be pretty serious--and I have no doubt the
public would regard it as such. Indeed, if he simply told the
public, not under oath, that he had no knowledge of such
serious misconduct when he did have knowledge, I think that
would raise serious questions of impeachability. My point is
simply that all perjury may be reprehensible, but it is still
not of similar import when the ultimate issue is public
confidence to perform the duties of office. Isn't it clear that
despite the strongly held views of some, the public does not
put perjury about sexual relations in the category of ``high
crimes or misdemeanors''?
Second, the argument is made that the public's view as to
what does or does not constitute a cause for impeachment is
irrelevant because of the duty of the House to determine
whether or not the President has committed a ``high crime or
misdemeanor''. If this were a criminal trial, I would agree. If
the President were extremely unpopular, as was Andrew Johnson,
I would agree--simply because I would be unable to separate
dislike for the President based on unpopular policies from lack
of confidence based on ``high crimes or misdemeanors''. A
public that does not like the President is more likely to find
high crimes and misdemeanors whatever the facts. In those
circumstances the Congress has a particularly difficult and
demanding task of being sure that its partisan feelings and
those of the public are not subverting the Constitutional
standard; Congress must be sure that there has been a loss of
confidence because of the President's personal behavior and not
his policies. From the retrospective of history one cannot but
admire those Senators in the Johnson impeachment trial who,
despite political affiliation or interest, had the courage to
see that Constitutional distinction and who voted to acquit
because, whatever the political feeling, the Constitutional
standard had not been met.
This Committee and this Congress are also faced with a
totally new impeachment problem. Due to the existence of the
Independent Counsel the facts are publicly known and the areas
of factual dispute relatively minor. Members of Congress have
expressed concern over the evils of perjury and other alleged
offenses and their serious nature. For whatever reason, the
public remains unpersuaded. It continues, in the recent
election and in the polls, to express confidence in the
President's ability to carry out his official responsibilities.
In those circumstances it is difficult for me to see any basis
for his removal other than the obviously partisan--however
sincere--views of a putative majority.
Frankly, I cannot see any Constitutional basis for
impeachment. To remove a popularly elected President requires,
in my judgment, a showing of ``great offenses'' against the
public weal sufficient to bring into question in the minds of
reasonable people the capacity of the incumbent to continue to
govern in a democracy with public support. If those ``great
offenses'' are known, I have no doubt the public will
appreciate their serious nature and react accordingly. Today
the public knows all the facts and does not regard them as of
sufficient importance to justify impeachment. In these
unprecedented circumstances a contrary finding by the Committee
would appear to be simply an act of political partisanship, not
adherence to the Constitution. That would be most unfortunate
and most destructive of our Constitutional Separation of
Powers.
Thank you.
Chairman Hyde. Professor Bruce Ackerman of Yale.
Mr. Ackerman. I think it is Mr. Wilentz.
Chairman Hyde. All right. I think we have had a
substitution temporarily. Professor Sean Wilentz of Princeton.
Professor Wilentz. Turn the switch on.
TESTIMONY OF SEAN WILENTZ
Mr. Wilentz. There it is, okay. Wilentz in for Ackerman.
Mr. Chairman and members of the Judiciary Committee, it is
a high honor to address you today on the grave and momentous
matter of presidential impeachment. Although I appear at
invitation of the White House, I wish to make it clear from the
start that I have no intention of defending the President over
his confessed and alleged misdeeds. Lawyers with a far greater
familiarity with the evidence than I are far better equipped to
do that. Certainly I do not think that the President is
blameless in these matters, something that I have noted many
times over the years in my writings.
Instead, I wish to defend the institution of the
presidency, the Constitution, and the rule of law from what I
see as the attacks upon them that have accompanied the
continuing inquiry into the President's misconduct. In time, we
will learn how much these attacks have been calculated and how
much they have been unwitting. Either way, they are extremely
dangerous.
It is no exaggeration to say that upon this impeachment
inquiry, as upon all presidential impeachment inquiries, hinges
the fate of our American political institutions. It is that
important. As a historian, it is clear to me that the
impeachment of President Clinton would do great damage to those
institutions and to the rule of law, much greater damage than
the crimes of which President Clinton has been accused.
More important, it is clear to me that any Representative
who votes in favor of impeachment, but who is not absolutely
convinced that the President may have committed impeachable
offenses--not merely crimes or misdemeanors, but high crimes or
misdemeanors--will be fairly accused of gross dereliction of
duty and earn the condemnation of history.
I would like to address three basic points of historical
relevance: the grounds for impeachment as envisaged by the
framers of the Constitution and our understanding of them, the
dangers of politicizing the impeachment process, and the
relation between impeachment and the rule of law.
First, regarding the framers, the scholarly testimony on
November 9th before the subcommittee regarding the Constitution
showed--alas, at mind-numbing length--that there is
disagreement over what constitutes grounds for presidential
impeachment as envisaged by the framers. Yet, the testimony
also showed that there is substantial common ground. Above all,
the scholars agreed that not all criminal acts are necessarily
impeachable acts. Only, ``treason, bribery and other high
crimes and misdemeanors'' committed, in George Mason's
explicit, original language, ``against the state,'' would seem
to qualify, at least if we are to go by what the framers
actually said and wrote. Or, according to James Wilson of
Pennsylvania, impeachment is restricted to ``political
characters, to political crimes and misdemeanors, and to
political punishments.''
Now, a great deal of the disagreement among historians
stems from a small but fateful decision taken by the
Constitutional Convention's Committee on Style. Before the
Constitution reached that committee, Mason's original wording
on impeachment was changed from ``against the state'' to ``high
crimes and misdemeanors against the United States.'' The
committee was charged with polishing the document's language,
but with instructions that the meaning not be changed at all.
Yet by removing in article 1, section 4, the words ``against
the United States,'' the committee created a Pandora's box
which we have opened 211 years later.
The absence of the wording ``against the state'' or
``against the United States'' in the final document has
persuaded some historians and constitutional scholars that the
Constitution embraces all sorts of private crimes as
impeachable. Yet many, if not most American historians,
including the nearly 500 who have now endorsed the widely
publicized statement imploring the impeachment drive, hold to
the view that Mason's wording and Wilson's observation best
express the letter and the spirit of what the framers had in
mind. By that standard, the current charges against President
Clinton do not, we American historians believe, rise to the
level of impeachable offenses.
As further historical evidence, I would point to the fact
that the only other occasions when presidential impeachment was
pursued, against Presidents Andrew Johnson and Richard Nixon,
plainly involved allegations of grievous public crimes that
directly assaulted our political system.
Another pivotal piece of evidence has to do with the Nixon
impeachment. In 1974, the Judiciary Committee declined to
approve a bill of impeachment, an article of impeachment
connected to serious allegations that President Nixon had
defrauded a Federal agency, the Internal Revenue Service.
Now, without question, an occasion could arise when it
would be necessary to expand on the framers' language to cover
circumstances they may never have contemplated, including truly
monstrous private crimes. I would hope, for example, that any
President accused of murder, even in the most private
circumstances, would be impeached and removed from office. But
not even the President's harshest critics, as far as I know,
have claimed that the current allegations are on a par with
murder.
Various Representatives, scholars, and commentators have
offered technically plausible, but I think deeply mistaken and
misleading arguments, contending that the allegations against
President Clinton rise to an impeachable standard under the
definitions of crimes ``against the state.'' There has been
talk of a concerted attack on one of the coordinate branches of
government, of a calculated presidential abuse of power,
namely, that he raised issues of executive privilege and that
he lied to his aides. But these assertions rightly sound
overwrought, exaggerated, and suspicious to ordinary Americans,
let alone to professional historians, when matched against the
facts of the case.
Similar magisterial language was used in the impeachment
proceedings against President Johnson and had impact in the
Congress. Johnson too, after all, had violated a Federal law
much more definitively than President Clinton has. Since then,
though, historians have looked behind the language at the
actual facts of the case, as well as at the political context
of the time, and in general they have concluded thatthe
impeachment effort against Johnson was a drastic departure from what
the framers intended, one that badly weakened the presidency for
decades. That is the reason why very few of us can remember the names
of all those presidents between Ulysses S. Grant and Theodore
Roosevelt.
So, too, later generations of historians will judge these
proceedings. I strongly believe that the weight of the evidence
runs counter to impeachment. What each of you on the committee
and your fellow Members of the House must decide, each for him
or herself, is whether the actual facts alleged against the
President, the actual facts and not the sonorous formal
charges, truly rise to the level of impeachable offenses. If
you believe they do rise to that level, you will vote for
impeachment and take your risks at going down in history with
the zealots and the fanatics. If you understand that the
charges do not rise to the level of impeachment, or if you are
at all unsure, and yet you vote in favor of impeachment anyway
for some other reason, history will track you down and condemn
you for your cravenness. Alternatively, you could muster the
courage of your convictions. The choice is yours.
Second, on impeachment and politicization, many
commentators--including Attorney General Katzenbach--have noted
correctly that presidential impeachment is, strictly speaking,
a political and not a judicial matter. Yet there is all the
difference in the world between a political procedure and a
politicized one. A political proceeding is a deliberative,
bipartisan, evenhanded effort to assess possible political
offenses under the Constitution. A politicized procedure,
however, overlooks constitutional standards and heeds other
considerations, be they political favors, anger at the
President or pressure from party leaders.
On the basis of recent press reports, I fear that these
proceedings are on the brink of becoming irretrievably
politicized, more so than even the notorious drive to remove
Andrew Johnson from office 130 years ago.
I would like to be able to share with you the story of that
impeachment of Johnson and its relevance to our current
distempers. The light has, however, turned orange, and I don't
have much time, so I will skip over that and perhaps we will be
able to do that in questioning.
The point that I wanted to make is that it seems to me
that, unlike then, when Members of the House of Representatives
were firmly convinced that President Johnson had committed a
high misdemeanor, today it seems that other considerations are
coming into play, that perhaps something else is going on.
Indeed, compared to 1868, a perverse logic has taken hold.
Some have said that we should impeach a President because we do
not think the Senate will remove them. This perverted logic
turns the impeachment vote into a thoroughly politicized and
reckless move.
I see the red light, Mr. Chairman, and I will wrap up.
Some would have us forget about constitutional standards
and duties and do the short-term political thing, sailing the
ship of state into dangerous waters uncharted in this century.
Such willingness to pass the buck on so grave and indelible a
matter as impeachment is a feeble evasion of responsibility and
a degradation of conscience.
Finally, on the question of rule of law, what I say in my
written statement is basically that it is a greater threat to
the rule of law to actually go ahead with this impeachment than
not to go ahead with this impeachment. The argument that
somehow allowing the President to get away with suspected
perjury and obstruction of justice will countenance an
irreparable tear in the seamless web of American justice, that
if we impeach the President the rule of law will be vindicated,
if only in a symbolic way, proving firstly that no American is
above the law and that the ladder of the law has no top and no
bottom--this argument, I believe, is nonsense logically and
historically, with all due respect. Rather, I believe--and we
can talk about this later on--the impeachment process itself
poses a far greater risk to the rule of law.
A final comment. I began by discussing President Clinton's
accountability for the current impeachment mess. By
equivocating before the American people and before a Federal
grand jury, not to mention before his family and friends, he
has disgraced the presidency and badly scarred his reputation.
He has apologized and asked for forgiveness.
But now, as mandated by the Constitution, the matter rests
with you, the Members of the House of Representatives. You may
decide as a body to go through with impeachment, disregarding
the letter as well as the spirit of the Constitution, defying
the deliberate judgment of the people whom you are supposed to
represent, and in some cases deciding to do so out of anger and
expedience.
But if you decide to do this, you will have done far more
to subvert respect for the framers, for representative
government, and for the rule of law than any crime that has
been alleged against President Clinton, and your reputations
will be darkened for as long as there are Americans who can
tell the difference between the rule of law and the rule of
politics.
Chairman Hyde. Thank you, Professor, very much.
[The statement of Mr. Wilentz follows:]
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Chairman Hyde. Now, the question of the day is, is it
Professor Ackerman or Professor Beer?
Professor Beer, you are next. Thank you.
TESTIMONY OF SAMUEL H. BEER
Mr. Beer. Thank you, Mr. Chairman and members of the
committee. It is appropriate that I should be here before this
committee, this formidable committee, since just last week I
was in London advising some of my friends in the House of
Commons and at a conference on the American view of the
constitutional reforms being proposed there; and the one reform
that I particularly stressed was the need for them to beef up
their legislative committees. I am sure my experience here
won't change my mind on that point.
That shows really what my real concern is the political and
constitutional consequences of impeachment rather than the
legal and judicial aspects. The process is judicial in form,
impeachment by the House being like indictment by a grand jury;
and trial and conviction by the Senate, like trial and
conviction by a court.
In fact, however, the consequences of successful
impeachment do not resemble the usual consequences of a
judicial trial, for instance, punishment by fine and/or
imprisonment. As article 1, section 3, paragraph 7, provides,
punishment of that kind would be invoked after the President
had become a private citizen by resignation, removal, or
expiration of his term of office.
Removal from office--and I see I am emphasizing what my
colleague Nicholas Katzenbach said--removal from office, that
grand and forbidding consequence of a successful impeachment,
distinguishes this process radically from the judgment of a
court. It resembles, rather, a vote of no confidence in a
legislature such as the British Parliament. By such a vote, the
House of Commons can bring to an end the life of a government.
In 1841, Sir Robert Peel summed up this fundamental
convention of the British Constitution when, in what became a
classic formulation, he successfully moved that, ``Her
Majesty's ministers do not sufficiently possess the confidence
of the House of Commons to enable them to carry through the
House measures which they deem of essential importance to the
public welfare.''
Now, the relevance. Like a vote of no confidence,
impeachment brings to an end a President's administration. Like
a vote of no confidence, it relates not merely to some specific
failure, but is a judgment on his record and promise as a whole
with regard to those, to adopt Peel's phrase, ``measures which
he deems of essential importance to the public welfare.''
Because of these broad and weighty consequences, impeachment is
primarily a political, not a judicial act.
As a political act, impeachment, like a vote of no
confidence, passes judgment on and enforces responsibility on
the executive power. In the British system, that responsibility
runs directly to the legislature. In the American system, on
the contrary, that responsibility runs to the legislature only
secondarily and in special circumstances. For us the
responsibility of the President is essentially and directly to
the voters. The legislature as a separate office, separately
elected, likewise is held accountable by the voters. This
separation of powers is fundamental in our constitutional
design and is a main point of distinction from the British
system.
The direct responsibility of both branches to the voters
expresses the sovereignty of the people as the ultimate
authority of our Constitution and of the government established
under it.
Now, as the framers struggled to give expression to that
principle, they ran into a problem: How were our liberties to
be protected against misuse of power by the executive between
quadrennial elections?
At the Philadelphia Convention during the summer of 1787,
they explored various possibilities, such as an appeal to the
Supreme Court and a concoction of other bodies discarded them.
The States, similarly thinking of their systems of Governors
and legislatures, were experimenting in theory and practice
with a variety of methods of bridging the same gap.
At the last moment, the framers incorporated a structure
almost exactly in the form then being used in England in the
impeachment of Warren Hastings. This device, although it had
ancient roots, had come to special prominence in the 17th and
18th centuries, when Great Britain for a time displayed a
certain separation of powers, as a still powerful and
independent monarch faced off against the rising assertions of
the Parliament. In those circumstances, impeachment was adopted
by the Parliamentarians as a means of enforcing responsibility
on the monarch through action against his ministers.
When finally the monarch was eased out of politics, the old
fusion of executive and legislative powers was taken over by a
committee of Parliament, the Cabinet. Now, the interim method
of impeachment as a means of getting a hold on the executive
was dropped in favor of a vote of confidence which performed
more effectively in those circumstances the function of
enforcing the responsibility of the executive to Parliament.
At the same time that impeachment was dying out in Britain,
it was taken up by the Americans who found in it a way of
supplementing the principal mechanism of democratic
responsibility by quadrennial elections. And this is the point:
the broad scope of impeachment was now embodied in a very
different system.
Where the ultimate sovereign is the people, the
interference of one power, the legislature in its exercise of
such a dire responsibility as removal of a popularly elected
President, imposes severe duties on the legislators. The
Congress, itself not the primary source of authority but only a
creature of the people, is acting in lieu of the people between
quadrennial elections. At their best, the legislators will do
what the people at their best would do, weighing the pluses and
minuses of the record and the promise of an administration as a
whole, asking as Nick Katzenbach said, this central question:
Does the national interest require the removal from office of
this President? It is not a little detailed question. It is a
great big far-reaching question.
In the case of President Clinton, the American people have
twice answered that question by electing him to the American
presidency. And if we seek further light on the present
American mind, surveys of opinion continue to confirm that
answer, which also in no way is disturbed by the outcome of the
recent midterm elections.
I conclude. The failure to consider the whole record of
Clinton's presidency in foreign and domestic affairs could have
severe long-run costs. The removal of a President, thanks to
such superficial judgment, could substantially damage our
democratic system. Consider the temptations which this
precedent would excite in a Congress of a different party
against a future President of a different party.
As a great historian, Henry Adams, said when commenting on
the failed attempt of the Jeffersonians to remove Justice
Chase, ``Impeachment is not a suitable activity for party
politics.''
Thank you.
Chairman Hyde. Thank you very much, Mr. Beer.
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Chairman Hyde. By process of elimination, we get to you,
Professor Ackerman.
TESTIMONY OF BRUCE ACKERMAN
Mr. Ackerman. Good morning, Mr. Chairman, and the
distinguished members of this committee. My name is Bruce
Ackerman, and I am a Sterling Professor of Law and Political
Science at Yale. I request the Chair's permission to revise and
extend these remarks.
Since you have already heard so much on the subject of
constitutional standards, I thought I would concentrate on two
big mistakes that are characterized in the discussion up to
now.
The first big mistake centers on the power of this
committee and the present House of Representatives to send the
case to trial in the Senate. People seem to be assuming that
once the present committee and the full House vote for a bill
of impeachment, the stage will be set for trial in the Senate
in the coming year. Nothing could be further from the truth.
As a constitutional matter, the House of Representatives is
not a continuing body. When the 105th House dies on January
3rd, all its unfinished business dies with it. To begin with
the most obvious example, a bill passed by the 105th House that
is still pending in the 105th Senate on January 3rd cannot be
enacted into law unless it once again is approved by the 106th
House of Representatives. This is as it should be.
Otherwise, lame duck Congresses would have a field day in
situations like the present where the old House Majority has a
setback in the polls. Recognizing that its political power is
on the wane, the dominant party will predictably use its lame
duck months to pass lots of controversial legislation on to the
Senate in defiance of the judgment made by the voters.
This abuse was very common during the first 150 years of
this Republic. Until the 20th amendment was passed in 1933, a
newly elected Congress ordinarily waited 13 months before it
began its first meeting in Washington, D.C. In the meantime,
lame ducks did the Nation's business for a full session, often
in ways that ran against the grain of the last election.
This might have been an acceptable price to pay in the 18th
century when roads were terrible and it took time for farmer
representatives to arrange their business affairs, but over the
passage of centuries, the operation of lame duck Congresses
proved to be an intolerable violation of democratic principles,
and they were basically abolished by the 20th amendment to the
Constitution of the United States in 1933.
This amendment aims to have the new Congress begin meeting
as soon as possible after the elections. The text itself
specifies January 3rd. In enacting this amendment into our
fundamental law, Americans believed they were reducing the lame
duck problem to vestigial proportions. Perhaps some grave,
national emergency might require decisive action; but the old
Congress was expected simply to fade away as the Nation enjoyed
the respite from politics between Thanksgiving and New Year's
Day.
Generally speaking, lame duck Congresses have proved
faithful to this expectation. For example, during the 65 years
since the 20th amendment became part of our higher law, no lame
duck House has ever impeached an errant Federal judge, much
less a sitting President of the United States.
Such matters have been rightfully left to the Congresses
that were not full of Members who had been repudiated at the
polls and who were retiring from office.
These proceedings, then, are absolutely unprecedented in
the post-lame duck era. Despite this fact, I don't question the
raw constitutional power of the current lame duck House to vote
on a bill of impeachment. But I do respectfully submit that the
Constitution treats a lame duck bill of impeachment in
precisely the same way it treats any other House bill that
remains pending in the Senate on January 3rd. Like all other
bills, a lame duck bill of impeachment loses its constitutional
force with the death of the House that passed it.
This point was rightly ignored before the election, since
everybody expected the new Congress to be more Republican than
its predecessor. On this assumption, it was perfectly plausible
for this distinguished committee to proceed in earnest. If the
105th House voted to impeach, there was every reason to suppose
that the 106th House would quickly reaffirm its judgement and
send the matter on the way to the Senate.
But now that the voters have spoken, the constitutional
status of lame duck impeachments deserves far more attention
than it has thus far been given. Worse yet, we can't rely much
on the past for guidance.
The closest precedent comes from the 1988 impeachment of
Federal District Judge Alcee Hastings. The 100th House had
impeached Hastings but both sides wanted to delay the Senate
trial to the 101st session, and the Senate Rules Committee
granted their request.
The committee's perfunctory six-page report, however, does
not resolve any of the key issues raised by the present case.
Hastings was a judge, not a President. And he was impeached
during a normal session of Congress, not by a Congress of lame
ducks.
As a consequence, the Senate report does not even pause to
consider the implications of the fact that the people
themselves have decisively sought to limit the capacity of lame
duck Congresses by solely enacting the 20th amendment.
If we take this amendment seriously, it means that a lame
duck House should not be allowed to relieve its freshly elected
successor of the most solemn obligation it can have: to pass
upon an impeachment resolution. Moreover, if the next House of
Representatives seeks to duck this responsibility, the Senate
will not be free to dispense with the problem of lame duck
impeachment by a simple reference to the 1988 decision in Judge
Hastings' case.
Instead, the constitutionality of a lame duck impeachment
will be the first question confronting Chief Justice Rehnquist,
the designated presiding officer at the Senate trial.
Following the precedent established by Chief Judge Chase
before and during the trial of Andrew Johnson, the Chief
Justice will rightly assert his authority on all procedural
issues; and the first of these should undoubtedly be a motion
by the President's lawyers to quash the lame duck impeachment
as constitutionally invalid unless reaffirmed by the 106th
House.
Now, Chief Justice Rehnquist is, in fact, a scholar of the
impeachment process, having written an entire book on the
subject. I am sure that he will be fully aware of the
historical importance of his conduct of this proceeding and
will quickly grasp the obvious dangers of lame duck
impeachment.
Moreover, there are many strands in the Chief Justice's
jurisprudence which would lead him to give great weight to the
idea that it is only a truly democratic House and not a
collection of lame ducks that has the constitutional authority
to proceed against a man who has been fairly elected to the
presidency by the people of the United States. Without any hint
of partisanship, he would be well within his rights to quash
the lame duck impeachment and remand the matter back to the new
House of Representatives.
Since the status of lame duck impeachments has never been
briefed and argued in the modern era inaugurated by the 20th
amendment, it is impossible to make a firm guess as to the way
the Chief Justice will rule on this matter.
Only one thing is clear: It would be far better for the
country and the Constitution if the Chief Justice is never put
to this test. As Alexander Bickel, my great predecessor in the
Sterling chair at Yale frequently reminded us, the health of
our constitutional system is not measured by the number of hard
cases that have been resolved by clear rulings. It is measured,
instead, by the number of statesmen in our history who, seeing
hard cases on the horizon, act in sensible ways so as to avoid
ever precipitating a constitutional crisis. And that is what we
are going into.
If this committee and the present House choose to go
forward and vote in favor of a bill of impeachment, I
respectfully urge the new Speaker of the 106th Congress to do
the right thing and remit the matter once again for
consideration by the new House.
Suppose, however, he doesn't do so. Suppose further that,
if pressed, the Chief Justice upholds the continuing validity
of the lame duck impeachment despite the expiration of the
105th Congress. Even then, the new House of Representatives
will not be able to escape the need to consider whether a
majority of the Members newly elected continue to favor the
impeachment of the President.
To see why, consider that the House must select a group of
Members, called impeachment managers, to present its case again
the President at the Senate trial. Without the energetic
prosecution of the case by the managers, the Senate trial--I am
sorry, I'll end up here--the Senate trial cannot go forward. No
managers, no trial. But only the new House can appoint
managers. This was done in Judge Hastings' case, and it
certainly should be required in the case of a sitting President
facing a lame duck impeachment.
Thus, even if the new House leadership chooses to rely on a
lame duck impeachment and refuses to allow another vote on a
fresh bill before sending the matter to the Senate, there is no
way it can avoid the need to test the Majority's sentiment of the new
House. By voting against the slate of managers, a majority of the new
House will be in a position to stop the impeachment process dead in its
tracks. It is a big mistake.
Mr. Sensenbrenner [presiding]. Professor Ackerman, do you
think you could wrap up?
Mr. Ackerman. This is the last paragraph. It is a big
mistake, then, for the distinguished Members of this committee
and this House to suppose that they are the final judges of
this bill of impeachment.
To be sure, the recommendation of this committee and the
vote of the entire House deserves serious consideration by the
Members taking office next month. But so do the judgments of
the voters as expressed at the elections in November. I
respectfully urge you to consider this point as you determine
your present course.
To put my point in operational terms, if you don't believe
that a bill of impeachment or the election of impeachment
managers will gain the Majority's support of the next House,
the wise thing to do is to stop the process now. While it may
be embarrassing to reverse gears after so much momentum has
been generated in favor of the bill of impeachment, the
leadership of the next House will confront a much more
embarrassing situation----
Mr. Sensenbrenner. Professor Ackerman, I do think you are
abusing the committee's time. You have gone much further--
Professor Ackerman, could you please wrap it up? The red light
has been on for about 3 minutes now. Everybody else has been a
little bit better in terms of watching the red light. Are you
done?
Mr. Ackerman. Yes.
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Mr. Hutchinson. Mr. Chairman, I have a unanimous consent
request.
Mr. Sensenbrenner. Would the gentleman from Arkansas please
state the unanimous consent request?
Mr. Hutchinson. This appears to be the appropriate time for
a unanimous consent request. I have a Congressional Research
Service memorandum discussing that impeachment proceedings may
be continued from one Congress to the next. I ask unanimous
consent that this be entered into the record as a part of this
proceeding and distributed to the Members.
Mr. Sensenbrenner. Without objection.
Mr. Berman. Mr. Chairman, I think the first copy should be
distributed to Professor Ackerman.
Mr. Sensenbrenner. The first copy out of the Xerox machine
will be given to Professor Ackerman.
Mr. Ackerman. I have read it, sir.
Mr. Sensenbrenner. Is there any objection to the request of
the gentleman from Arkansas?
Mr. Barrett. Mr. Chairman, reserving my right to object, I
just want to make sure that that CRS report comes to us before
we get to questioning. I realize the witness should have the
first copy, but I think it is important that we have that.
Mr. Sensenbrenner. We will see how fast the Xerox machine
can make copies.
Mr. Barrett. Thank you very much.
Mr. Chabot. Parliamentary inquiry, Mr. Chairman.
Mr. Sensenbrenner. Is anybody reserving the right to object
to the----
Ms. Waters. I reserve the right to object.
Mr. Sensenbrenner. The gentlewoman from California on her
reservation is recognized.
Ms. Waters. Mr. Chairman, I reserve the right to object
because I think we have hit upon an extremely important point
that is being made by Professor Ackerman. And if the gentleman
would like to--if he has different information, if he is in
receipt of information that suggests otherwise, I think it
deserves discussion in this committee rather than simply the
submission of the information to us.
Mr. Sensenbrenner. If the Chair may interrupt, the request
is that the CRS report referred to by the gentleman from
Arkansas in his unanimous consent become a part of the record.
Once it becomes a part of the report, then anybody can discuss
it as they would like.
But it seems to me we have been very liberal in putting
statements and materials in the record since the beginning of
this inquiry. And the gentleman from Arkansas has something
that he thinks is relevant.
Is there objection to including the CRS report referred to
by the gentleman from Arkansas in the record?
Hearing none, so ordered.
[Information not available at time of printing].
Mr. Chabot. Mr. Chairman, parliamentary inquiry.
Mr. Sensenbrenner. The gentleman from Ohio will state the
parliamentary inquiry.
Mr. Chabot. Is it not the practice of the committee that
when witnesses testify here, we should have the statements of
the witnesses in writing prior to their testifying so we can
follow it as they are going through?
Mr. Sensenbrenner. That is in the rules of the committee,
yes.
Mr. Chabot. Can we ask the other witnesses that come today
and tomorrow, that we could get their statements ahead of time
so we can follow that?
Mr. Sensenbrenner. That is in the rules, and that is
certainly a legitimate request. And I will direct that request
to Counsel Craig who is responsible for orchestrating the
witnesses in defense of the President.
Mr. Gekas. Mr. Chairman.
Mr. Sensenbrenner. The gentleman from Pennsylvania.
Mr. Gekas. In response partially to the gentleman of Ohio,
I believe that we had decided in advance, or someone did, to
which we acceded, that because of the late start, as it were,
for the witnesses to appear before this committee, that we in
effect waive the necessity of their providing statements before
the hearing. So I would let the--I would allow the record to
show, as far as my statement is concerned, that I believe that
that was waived with respect to this panel.
Mr. Sensenbrenner. Mr. Craig, do you think that it would be
possible to give committee members advance statements for
future witnesses today and tomorrow?
Mr. Craig. We will do our best to do that, Mr. Chairman.
Mr. Sensenbrenner. Thank you. Mr. Hyde will be out of the
room for a bit. And we will begin the questioning. I will begin
with myself. And again I will reiterate Mr. Hyde's admonition
that the questions will be limited to 5 minutes. And when the
red light goes on for each questioner, we will state that the
time has expired and go on to the next questioner. So I yield
myself 5 minutes.
Mr. Craig, in your opening statement, you asked members of
the committee to open their hearts and open their minds and to
look at the record. I think, since the 9th of September,
committee members have spent a lot of time looking at the
record, first in executive section and then in the public
meetings, that this committee has had pursuant to the
resolution that the House of Representatives directed us to
conduct an impeachment inquiry.
We have heard an awful lot of academic discourse and
discussion on what constitutes an impeachable offense, what
constitutes perjury. But we have heard nothing from the
President contradicting the fact witnesses and the grand jury
testimony that Judge Starr sent over to us in 18 boxes' worth
of evidence.
I am disappointed that there are no fact witnesses
rebutting any of the evidence that was contained in the 18
boxes in your presentation today and tomorrow. Are you
disputing any of the facts? And if so, why are you not bringing
forth witnesses that can provide direct fact testimony rather
than opinion or argument disputing the facts?
Mr. Craig. Congressman, let me respond to that this way: We
have submitted in writing three different responses to the
referral that was presented to the House of Representatives by
Mr. Starr and the Office of Independent Counsel. And we in
those--in those responses, we take issue with many of the facts
laid out by Mr. Starr in those--in that referral.
We do dispute representations and characterizations that
the Independent Counsel has made, and we do dispute some of the
testimony that has been presented in the grand jury. And we, in
particular, urge the committee not necessarily to take at face
value the characterizations of that testimony or the
President's testimony that are to be found in the referral by
Mr. Starr.
We find that frequently he mischaracterizes that testimony,
or the Office of Independent Counsel in the referral has
mischaracterized the testimony of the President in order to
construct a perjury of allegation.
Mr. Sensenbrenner. Well, let me get to the heart of this
case. Did Monica Lewinsky provide false testimony to the grand
jury, in your opinion?
Mr. Craig. We think in some areas she provided erroneous
testimony that is in disagreement with the President's
testimony and particularly in specific areas having to do with
the grand jury. Now, you are going to have to make the
determination as to how important the divergence, the
disagreement, or the disagreement on the testimony is.
Mr. Sensenbrenner. There have been complaints by the
President's counsel and by the Minority Democrats on this
committee that grand jury testimony is not subject to cross-
examination and that Ms. Lewinsky and the other witnesses that
came before the grand jury were not cross-examined. How come
you're not bringing any of these people before this committee
to provide the cross-examination that the grand jury procedure
denied you?
Mr. Craig. We have found, Mr. Chairman, many inconsistent
statements in the grand jury testimony itself that we believe
we can use to support our case. We believe that the President
should be given a presumption of innocence and that the burden
should be on the committee to call fact witnesses and determine
whether the credibility of the fact witnesses is such that----
Mr. Sensenbrenner. Well, the investigation was done
pursuant to the Independent counsel statute. And I would just
observe, Mr. Craig, that if the President had told the truth in
January, there would have been no Independent Counsel
investigation of this whole matter, and we wouldn't be sitting
here today. My time has expired.
The gentleman from Michigan, Mr. Conyers.
Mr. Conyers. Well, let me begin by reminding my acting
Chairman that it wouldn't have affected whether there would
have been an Independent Counsel appointed at all.
One of the--well, let me put all three of these together,
Mr. Craig. Mr. Starr alleged that the President lied about
sexual relations before the Paula Jones deposition and in grand
jury. It is also alleged that the President obstructed justice
by assisting Ms. Lewinsky with a job search and that he further
obstructed justice in conversations with Betty Currie after his
January 17 deposition.
Could you put those in context for us, please?
Mr. Craig. Let me talk first about the President's
testimony in the civil deposition. In the civil deposition, in
accordance with the definition that he had been provided as to
what a sexual relationship was, he denied having a sexual
relationship as it was defined in the deposition by the Jones'
judge.
There may be disagreement as to whether his testimony fell
within or without that definition. But there is no disagreement
that the President himself and, in fact, Monica Lewinsky, as
she wrote her affidavit and testified in the grand jury,
believed that what he was testifying was within the definition
as given to him by the court.
The point I'm trying to make here is that there was an
effort by the President to testify accurately but not to
disclose information about his relationship. That may be
blameworthy. It may be wrong. You may judge that he crossed the
line. But, in fact, there is no testimony or no proof that
President Clinton knew he was wrong when he looked at that
definition, and that he intentionally lied.
I would say when it comes to the job search, Mr. Chairman,
that there's a good deal of additional information, and this is
why I so strongly argue that the committee should look at the
actual record.
There's a lot of information about the job search that is
simply not included in the referral: the fact that Ms.
Lewinsky's desire to leave Washington arose in July, long
before her involvement in the Jones case; the fact that the
President provided Ms. Lewinsky with only modest assistance, if
any at all; the fact that the job assistance that was provided
by friends and associates of the President for Ms. Lewinsky was
in no way unusual as opposed to other people who were also
receiving that kind of job assistance; the fact that there was
absolutely no pressure applied to obtain Ms. Lewinsky a job;
the fact that there was no timetable for Ms. Lewinsky's job
search, let alone any timetable linked to her involvement in
the Jones case; and the fact that all the people that
participated in that job search testified that there was
nothing linked to any testimony or affidavit.
It is the testimony of Vernon Jordan, it is the testimony
of Ms. Lewinsky, and it is the testimony of the President that
there was no obstruction of justice involved in that job
search.
Now when it comes to the questions relating to Ms. Currie,
Ms. Currie at the time she had this conversation with the
President was not a witness in any proceeding. Her name had not
appeared on the Jones' witness list. She had not been named as
a witness in the Jones case, and the discovery period was down
to its very final days. There was no reason to suspect that she
would play any role in the Jones case as a witness. And the
President did not know that the OIC at that point had embarked
on an investigation of him on the Lewinsky Matter.
To obstruct a proceeding or to tamper with a witness, Mr.
Conyers, there must be both a proceeding and a witness. Here,
as far as the President knew, there was neither.
And there is a second important point that was also deleted
or left out or ignored in the presentation of the referral. Ms.
Currie testified about this conversation with the President on
numerous occasions and repeatedly testified that she felt
absolutely no pressure to agree with the questions that the
President asked her. Let me just cite one excerpt from the
transcript of Ms. Currie's testimony.
Mr. Sensenbrenner. The gentleman's time is expired. You
know, somebody else can bring that up if we are to keep on
time.
Mr. Conyers. Mr. Chairman, might he finish the sentence?
Could he finish the sentence?
Mr. Sensenbrenner. Finish the sentence.
Mr. Craig. It's very quick, Mr. Sensenbrenner. She was
asked, ``Did you feel pressured when he told you those
statements?'' She said, ``None whatever.'' She was asked, ``Did
you feel any pressure to agree with your boss?'' She said,
``None.''
Mr. Sensenbrenner. Okay.
Mr. Conyers. Thank you very much, Mr. Craig.
Mr. Sensenbrenner. The gentleman from Florida, Mr.
McCollum.
Mr. McCollum. Thank you very much, Mr. Chairman.
Mr. Craig, I am glad we're getting into facts. I think it's
very important that we do that. And although I, too, am
disappointed there are no fact witnesses, I think the
discussion is important.
With respect to the Betty Currie, the record I read
indicates that indeed the President, numerous times in his
deposition said, you'll have to ask Betty about that, referring
to a lot of times in his deposition in the Jones case. And
surely he would have expected that somebody would have called
her as a witness whether she was on a witness list at the time
he had these conversations with her or not. And that,
therefore, seems to me it's immaterial whether she was on a
witness list or she wasn't. But that's the type of thing we
should be discussing. And again it's long overdue.
I also would like to point out that, as we look through
these things, there are a lot of things in the record that you
are obligated to tell us where we are wrong about because--or
where the record may be different. And I am looking forward to
that.
The record I see with regard to the grand jury testimony
indicates that the President swore that he did not know that
his personal friend, Vernon Jordan, had met with Monica
Lewinsky and had talked about the case. And I would say that
the evidence indicates that he lied about that when he made
that swearing.
The President in that deposition swore that he could not
recall being alone with Monica Lewinsky. The evidence that I've
read so far indicates that he lied about that. The President
swore he could not recall ever being in the Oval Office hallway
with Ms. Lewinsky except perhaps when she was delivering a
pizza. The evidence indicates he lied about that.
The President swore he couldn't recall gifts exchanged
between Monica Lewinsky and himself. The evidence indicates he
lied about that.
The President swore that he was not sure whether he had
ever talked to Monica Lewinsky about the possibility that she
might be asked to testify in the Jones case. The evidence
indicates he lied about that.
The President swore he did not know whether Monica Lewinsky
had been served a subpoena to testify in the Jones case the
last time he saw her in December of 1997. The evidence I read
indicates he lied about that.
The President swore that the last time he spoke to Monica
Lewinsky was when she stopped by before Christmas in 1997 to
see Betty Currie at a Christmas party. The evidence I read
indicates he lied about that.
The President swore the contents of an affidavit executed
by Monica Lewinsky in the Jones case, in which she denied they
had sexual relations, were absolutely true. The evidence I
read, he lied about that. And before the grand jury as well as
in the deposition, the President swore that he did not have
sexual relations with Monica Lewinsky. The evidence indicates that he
lied, even according to his own interpretation of the Jones court's
definition of the term sexual relations; because if you believe Monica
Lewinsky, you have to conclude that indeed the President lied with
respect to this, because she explicitly said they had certain
relationships described in that definition.
And the President initiated an agreement with Monica
Lewinsky in which she would lie in a sworn affidavit to be
filed in the Jones case and each would lie under oath if called
to testify in a case brought against the President. This's what
I read the evidence as indicating.
I am curious to know if you find anything in any of the
testimony, Mr. Craig, that we have before us from Vernon Jordan
where Mr. Jordan lied? I--is there anything in the record
that----
Mr. Craig. Not that I'm aware of. And this is a problem
that we have run into throughout this proceeding, that is to
identify precisely what kind of testimony you're talking about
so that we can have an accurate and prepared response. I am
not----
Mr. McCollum. Well, I'm curious about many things.
Mr. Craig. Can I respond to your allegations about the
civil deposition and about the grand jury that you strung
together?
Mr. McCollum. I strung those together only to give you
illustrations with respect to where I see the evidence being.
Let me ask you one other question. You answered the Vernon
Jordan one. Is there any anything in the record where you see
Betty Currie lied?
Mr. Conyers. Mr. Chairman, regular order.
Mr. Rothman. Can the witness be permitted to answer the
question?
Mr. McCollum. In all due respect, it was my time. I asked
him whether there was anything in the record about Vernon
Jordan lying. He said no. And I asked him the question of
whether or not there was anything in the record about Betty
Currie lying. I would like an answer, if I could.
Mr. Rothman. Mr. Chairman, regular order.
Mr. Sensenbrenner. The gentleman from Florida has got the
time. I would ask members of the committee not to interrupt
other members of the committee during their own time. The
gentleman from Florida is recognized.
Mr. McCollum. I would like to know if there is anything you
have seen in the record that would indicate that you believe
Betty Currie lied in the testimony she gave that we have in the
record.
Mr. Craig. Congressman, the answer is I am aware of nothing
in the testimony suggesting that Ms. Currie or Vernon Jordan
lied.
Ms. Jackson Lee. Parliamentary inquiry.
Mr. Frank. Mr. Chairman, it's my time.
Mr. Sensenbrenner. It's not your time until I recognize.
The gentleman from Massachusetts, Mr. Frank.
Mr. Frank. Thank you, Mr. Chairman. That was very
important.
Mr. Craig, I wonder if you might like to answer the
accusations. I must say with Mr. McCollum I had trouble,
because it seemed to me there was a mixture of grand jury and
deposition, and it wasn't clear which was which. And while Mr.
McCollum obviously did not want you to respond to that,
understandably, I would like you to respond.
Mr. Craig. I will try to be very quick, Congressman Frank.
Mr. Frank. Why? He wasn't.
Mr. Craig. And thank you. First let me say, Congressman
McCollum, that we are going to file with the committee today a
written response which I think will address every single one of
those allegations that you just went through. You can find them
consolidated on pages 18 and 19 of Mr. Starr's presentation
before this committee.
And there are two things that I think are very important to
get straight. One is that the characterization of the
President's testimony in each one of those incidents is
inaccurate.
And the second thing is that you have mixed up grand jury
testimony with civil deposition testimony in very dangerous and
misleading ways. And I hope--I heard you answer questions over
the weekend, and I was very pleased with your response on the
issue of separating allegations of perjury on the civil
deposition from allegations of perjury in the grand jury. And I
hope we can have further conversation about that.
Mr. Frank. Thank you, Mr. Craig, because I think it is
important to separate them out. There was some allegations of
grand jury perjury which clearly went beyond anything Kenneth
Starr charged the President with. And the notion that Kenneth
Starr was too soft on the President is a new one to me, even
this late in the proceedings.
Before I get to that, I would like to say two procedural
points. People have criticized you for not calling witnesses.
Well, the Majority had the ability to call witnesses. And I
must say I take exception, I must tell my friend from Florida,
to the suggestion that Vernon Jordan might have been lying. I
think Vernon Jordan is a man of great integrity. His testimony,
of course, completely supports the President's position and
refutes the accusations. And if you think Vernon Jordan was
lying, I don't think so, but have the courage to call him up
here and defend himself.
I think that kind of imputation raising the issue about
Vernon Jordan's integrity without calling him forward is a
great error. I understand why you don't want to call him
forward, because I think he would make mincemeat of that
accusation.
Let me just say, Mr. Craig, with regard to grand jury
perjury, as I understand it, there were three accusations of
grand jury perjury from Mr. Starr. One was, am I correct, that
Ms. Lewinsky said that the sexual activity began in November of
1995 and the President said February of 1996?
Mr. Craig. That's correct.
Mr. Frank. That that was one of the accusations of the
grand jury perjury?
Mr. Craig. That's correct.
Mr. Frank. I wonder if anybody here as a lawyer would think
that a charge would be brought--this is more than 2 years after
that has happened. Nothing turned on that. In other words, Ms.
Lewinsky did not reach a certain age in the interim that would
have made it more or less legal; is that correct?
Mr. Craig. That's correct.
Mr. Frank. The second question--the second charge of
perjury is one that I have trouble understanding. Am I correct
that it was--and I think we ought to differentiate, because Mr.
McCollum listed a number of things that he said were
perjurious; Mr. Starr only had three.
The second one was when the President told the grand jury
that he believed in the deposition that the definition excluded
certain kinds of sexual activity, that he was lying; that he
didn't really believe it. In other words, the accusation is
when he said in August that he believed in January that the
definition excluded certain kinds of sex, that that was a lie.
Is that correct that that's the second one?
Mr. Craig. Yes, sir.
Mr. Frank. I asked that because people have said where are
the President's witnesses. Well, what witness could he bring to
show that the sexual activity began in February rather than
November? He admitted trying to conceal it. What witness could
he bring to show that he really believed this in January? Do
people think there was a secret witness that he said, hey, I'm
only kidding, I don't really believe this. The fact is, there
is no witness you could have believed.
Last question. With regard to the obstruction, is it the
case that everybody who was supposedly involved in the
obstruction--Mr. Jordan, Ms. Currie, Ms. Lewinsky, and the
President--all denied that obstruction of justice happened? And
if you were in fact to prosecute the case, who in fact would
you bring as a witness?
Mr. Craig. That is the case. I wouldn't know how to
prosecute this case. May I make one comment, Mr. Frank, since I
still have time. I would urge the committee to remember that
Mr. Ruff is coming. I am perfectly happy to deal with the
committee's questions. But the purpose of this panel, in
addition to my introductory comments, the purpose of the panel
was to discuss some of the new ideas that I think these
witnesses----
Mr. Frank. Mr. Craig, you need to finish the sentence
without any dependent clauses, under the rule.
Mr. Craig. I'm done.
Mr. Sensenbrenner. The gentleman from Massachusetts' time
has expired. The gentleman from Pennsylvania, Mr. Gekas.
Mr. Gekas. Mr. Chairman, I yield 10 seconds, I hope, to the
gentleman from Florida.
Mr. McCollum. Thank you very much for yielding. I wanted to
make a point. I was not imputing Vernon Jordan's integrity. In
fact, I was trying to corroborate the fact that he has been
telling the truth, that I think is damaging to the President.
Mr. Frank. Will the gentleman from Pennsylvania yield to me
for 5 seconds?
Mr. Gekas. No, I cannot.
Mr. Frank. You could if you wanted to.
Mr. Gekas. I really cannot.
Mr. Sensenbrenner. The gentleman from Pennsylvania.
Mr. Gekas. Professor Wilentz, your testimony has really
astounded me, and I want to question you on one phase of it.
You seem to indicate that if any one of us, any Member of
Congress should vote for impeachment, there will always be the
question in your mind as to whether we did it out of cravenness
or under a resolution and study and analysis and conscience.
And I hope that after this is over, that you take a roll
call of those who voted and then analyze for us. It will take
you 100 years to determine whether we did it out of cravenness
or not. I think that's a despicable way to characterize, in
advance, our possible vote on some serious note as this. That's
number one.
General Katzenbach, you seem to have placed a great deal of
emphasis on the difference between a criminal offense and a
political offense that is couched in impeachment. And I agree
with you that it is substantially, if not totally, a political
process.
If the President of the United States refused to grant
requests of the Congress time and time again, and the Congress
felt that it should adjudge the President in contempt of
Congress, you would consider that a political, not a criminal
offense, would you not?
Mr. Katzenbach. If it was an offense at all, it would be
political, yes.
Mr. Gekas. Pardon me?
Mr. Katzenbach. If it was an offense at all, it would be
political.
Mr. Gekas. Yes. And so the Congress, if it felt on a series
of contempt instances that it would proceed, you would not
automatically discount that as an impeachable offense, would
you? Would this not be a refutation or a knock in the eye to
another branch of government that the President was indulging
in?
Mr. Katzenbach. It might be that, sir, but I don't think
that the Constitution provides under high crimes and
misdemeanors for refusal of the President to do what the
Congress wants it to do. There are other ways with which the
Congress deals with that problem. And, frankly, sir, this is
simply not one of them. No, I would not regard that as grounds
for impeachment.
Mr. Gekas. So that you have no idea, as you testify here,
what high crimes and misdemeanors might be?
Mr. Katzenbach. Oh, I have a good idea; yes, sir.
Mr. Gekas. You are saying that perjury, which would be a
direct affront to the judicial process, could not be considered
fairly by any of us as being an impeachable offense. If indeed
giving false statements under oath in a judicial proceeding can
be fairly characterized by many of us who are analyzing this as
an affront to the other branch of government--meaning the
judiciary, the judicial branch of government--you think that
the commission of a statutory crime, common law crime of false
statements under oath, or just obstructing justice by giving
false statements under oath would not arise to an impeachable
offense; is that what you're saying to us?
Mr. Katzenbach. No, sir; that's not what I'm saying. I'm
saying that all of those could be impeachable offenses if the
effect of that was to destroy public confidence in the ability
of the President to play his role in the government.
Mr. Gekas. And you say that the fact that he confronts the
judiciary and attacks the judiciary by virtue of a perjury
would not be an attack on the constitutional system, is what I
hear you saying.
Mr. Katzenbach. That's not what I'm saying. You hear it,
but it's not what I'm saying.
Mr. Gekas. I'm not hearing right.
Mr. Katzenbach. That's correct, sir.
Mr. Gekas. But would you agree that we have a difference of
opinion, then? We would not be craven if we decided that
perjury committed by the President of the United States, if so
concluded in a judicial proceeding involving the rights of a
fellow American citizen, would amount to an impeachable
offense?
Mr. Katzenbach. If--the red light is on, Mr. Chairman. How
can I answer it?
Mr. Sensenbrenner. Quick answer.
Mr. Katzenbach. A quick yes? My answer is, no, sir.
Mr. Sensenbrenner. A quick answer.
Mr. Katzenbach. Oh. It would be an impeachable offense,
sir, only if the effect of that was regarded by the Members of
Congress as so serious that it destroyed public confidence in
the ability of the President to play his role in government.
Ms. Jackson Lee. Mr. Chairman, I do have a parliamentary
inquiry.
Mr. Sensenbrenner. The gentleman's time has expired. State
your parliamentary inquiry.
Ms. Jackson Lee. The inquiry, Mr. Chairman, is this is the
only time that the President has the opportunity to present his
case to this committee and to the American people. I noticed
that Mr. Gekas asked a question or made a comment of Professor
Wilentz. I do think it is important to allow witnesses to
respond to either comments or questions made to them.
Mr. Sensenbrenner. That is not a proper parliamentary
inquiry. And how the 5 minutes would be allocated and enforced
was stated by Mr. Hyde at the beginning of the meeting.
Ms. Jackson Lee. I appreciate that, Mr. Chairman. Is there
any way for the professor to answer the question?
Mr. Sensenbrenner. Nobody objected at that point in time. A
subsequent questioner, if they feel that it is important that a
witness give an answer to a question that there was no time to
answer, can decide in his or her best judgment whether to
reiterate that question. That's what Mr. Frank did in response
to some of the statements that Mr. McCollum made. I think that
that's the way we will be able to allow the President to spend
more time presenting witnesses rather than responding to
parliamentary inquiries.
Mr. Rothman. Parliamentary inquiry.
Ms. Jackson Lee. I maintain a continuing objection.
Mr. Rothman. Mr. Chairman, parliamentary inquiry.
Mr. Sensenbrenner. The gentleman from New Jersey.
Mr. Rothman. Thank you, Mr. Chairman. I want to point out,
inquire of the Chair, whether the procedures adopted by the
Chairman, Mr. Hyde, when he was sitting where you are, with
regards to the panel called predominantly by the Republican
Majority, will prevail in this panel when the President's
counsel has called its panel.
In particular, Chairman Hyde chose, when the Democrats were
asking questions of Republican experts and Democratic experts
on the last panel, to allow each member of the panel to respond to our
questions even when we did not specifically ask them questions. And I
wonder why today the present Chair is changing that procedure and not
allowing the panelists to respond.
Mr. Sensenbrenner. That is not a proper parliamentary
inquiry.
Mr. Rothman. It is an inquiry of fairness, Mr. Chairman.
Mr. Sensenbrenner. The Chair will state that he is merely
enforcing the rules that were outlined by Mr. Hyde at the
beginning of the hearing, which no one objected to.
The Chair now recognizes the gentleman from New York, Mr.
Schumer.
Mr. Schumer. Thank you, Mr. Chairman. And you know as we
come close to finishing these proceedings and going to a vote,
I guess most people assume to regard it as an assured
conclusion on the floor of the House, I am sort of befuddled by
the direction with which we go. And I would like to direct some
questions at all of the panelists in this regard.
We are ready in this committee, and maybe in the full
House, for the second time in our history to pass articles of
impeachment to the Senate. And there are maybe 20 or 30 people
who haven't really committed, whose minds aren't made up. They
tend to be the so-called moderate Republicans. And at least to
read from the newspaper statements of those moderate
Republicans, what has pushed them in more of a direction to do
the unthinkable, or what was unthinkable a few weeks ago and is
still probably unthinkable to most of the American public, are
two things: one, that the President didn't apologize in a
fulsome way enough. I mean, one of these swing votes is saying
please, Mr. President, apologize fully, and then I won't have
to vote for impeachment. The other is that the answers to the
81 questions submitted by this committee weren't direct enough.
And so what I worry about, I would say to this panel and to
all of my colleagues in the full House, since I think this
committee is already--sort of what we are doing is we are going
through motions, but it seems minds are made up. But I say to
my colleagues that we may, the American people may wake up next
week and find out that the Congress impeached the President for
not being contrite enough to certain Members of Congress.
I just don't get that, because it seems to me that the
standard of what the President did, and whether what he did
reaches high crimes and misdemeanors, should be totally
irrelevant to a level of contrition. You may judge the
President as what kind of man he is by the level of contrition,
but not whether he should be impeached, or by whether the
President answered a series of questions here directly enough.
Unless someone wants to allege that in the answers to the
questions, perjury was committed as well. And I haven't heard
anybody allege that.
So I would like to ask each of the panelists and
particularly the constitutional experts, the professors, but
all of the panelists, in your legal opinion, even in your
political opinion, does the contrition of the President go to
whether the President should be impeached? Does the level of
apology, the fulsomeness of apology, the sincerity of apology,
should that be entering into one's mind as to whether the
President should be impeached?
And, similarly, should the President's answers to a list of
questions, assuming that no perjurious statements were made in
answers to those questions, and I guess, I don't know if they
are technically sworn under oath and made a standard to
perjury, but just assuming that, should that go to whether we
should impeach the President as well?
So maybe Professor Wilentz or Ackerman or Beer first.
Mr. Wilentz. Maybe I can reply to your question, too, Mr.
Gekas.
Mr. Schumer. Well, do that on his time, please.
Mr. Wilentz. The answer is, no, it should not. There is no
constitutional standard for lack of contrition. The ways in
which--and my comments about cravenness, et cetera, were
directed towards that process of getting those moderates
perhaps to get in line. If any standard other than the
constitutional standard of high crimes and misdemeanors becomes
the reason for a vote for impeachment, that vote is, to my
mind, a dereliction of constitutional duties.
Mr. Schumer. So level of contrition would not go to whether
someone committed a high crime or misdemeanor, by any stretch
of the imagination?
Mr. Wilentz. Absolutely not. Absolutely not.
Mr. Schumer. Do you agree with that, Professor Ackerman?
Mr. Ackerman. Yes. The operational question is whether the
conduct alleged represents a clear and present danger to the
foundations of the Republic. Contrition, it seems to me, does
not enter into that. Nor would the answer to these 81
questions----
Mr. Ackerman. That's correct.
Mr. Schumer [continuing]. Which don't deal with the acts of
the President for which we're examining impeachment.
Do you agree with that, Professor Beer?
Mr. Beer. Yes, I agree. It seemed to ask him to come and
confess things which he didn't do and does not think he did. I
wouldn't call that contrition.
Mr. Schumer. Do you have any comments on this, Mr. Craig?
Mr. Craig. I agree with you, Mr. Schumer. You will not be
surprised to know that I agree with you, Congressman.
Mr. Schumer. No. I mean since there's a minute left, it
seems to me people are looking to avoid the direct, bald, naked
confrontation with whether we should impeach or not when
they're coming up with these kinds of answers. You better be
convinced in your own head that these actions either imperil
the Republic or at least meet a standard of high crimes and
misdemeanors, and not look for an excuse like the President
didn't apologize enough or he didn't answer someone's question
directly enough. It's almost trivializing what ought to be a
very sacred process.
Mr. Sensenbrenner. The gentleman's time has expired. The
gentleman from North Carolina, Mr. Coble.
Mr. Coble. I thank the Chair. Gentlemen, good to have you
all with us.
President Clinton, then-Candidate Clinton, assured us, I
think it was in 1992, that he would bring to us an
administration that was very ethical. In fact, he may have said
the most ethical administration in history.
Well, the President has developed a pattern of being
evasive and being deceptive which has caused those words not to
be prophetic. Now having said all of that, Mr. Craig, let me
put a question to you, and I am doing this from memory, so if
my memory is faulted, don't be reluctant to correct me.
After the deposition for the Paula Jones case, I recall
having read among my many notes here that the President
contacted Dick Morris, the political consultant, to get his
spin on it. This has turned into a spin operation. And it appears that
Mr. Morris in a response to that question said, Mr. President, the
American public will tolerate adultery, but they will not tolerate
perjury. Well, at that point, the cow was out of the barn because he
had already been deposed.
The President denied under oath having involved himself
with any intimate touching. Ms. Lewinsky consequently admits,
very forthrightly, that there was, in fact, intimate touching.
Now, both these statements were given under oath, under sworn
oath. Do you have any opinion, Mr. Craig, as to who's lying?
Because it seems inevitable that one of those parties is lying.
And you may not have an opinion to that.
Mr. Craig. Congressman, I represent the President of the
United States. And the President of the United States has said
and testified about that activity. And I accept his word about
that. The problem for those of you who are here in a fact-
finding capacity is precisely that problem. There is no other
way to determine or corroborate--or corroborate the testimony.
It's an oath-against-oath, a ``he says/she says'' situation.
This is hardly, I think, the kind of issue that the House of
Representatives should send to the Senate for a trial before
the American people to determine whether or not the President
of the United States should be removed from office.
Let me just make one comment if I might, Congressman.
Mr. Coble. Sure.
Mr. Craig. We intend today to file a very, very complete
brief dealing with the law and the facts in greater detail, in
a greater and more systematic way than we have ever done
before. And then we are going to have Mr. Ruff to go through
these facts when he is here all afternoon tomorrow.
Mr. Coble. And I thank you for that, Mr. Craig. And, of
course, the Senate will be the ultimate fact-finders in this
operation, assuming it advances that far.
Gentlemen, put on your alternative hats. I want to talk
about censure. And I will excuse Mr. Craig. I will let one of
you other four, if you will, come forward; not that you're not
capable, Mr. Craig, but I have already given you time.
There's a balloon being floated on this Hill labeled
censure, and some are suggesting that attached to that would be
a financial forfeiture or penalty. Now my constitutional
anxiety becomes activated at this point. I think that would be
vulnerable. I think it would probably amount to a bill of
attainder. Can you all confirm or reject my anxiety process?
Mr. Ackerman. Congressman, I think you are completely
correct. Any financial sanction against a named individual by
this Congress is a bill of attainder, and it doesn't matter
whether it's Bruce Ackerman or Bill Clinton.
Mr. Coble. I thank you for that. And, Mr. Chairman, I want
you to know it can be done before the red light illuminates.
And I yield back the balance of my time.
Mr. Sensenbrenner. That is appreciated. The gentleman from
California, Mr. Berman.
Mr. Berman. Thank you very much, Mr. Chairman. Mr. Craig
represents the President. I would like you to put aside his
points and the points made before with respect to the factual
allegations, and I would like you to assume for a moment that
the narrative portion of the Starr report is true, and also for
this purpose take the conclusions he draws from that narrative.
And then as each of you have touched on in your testimony, I
would like you very concisely to tell us why you don't think
the sum total of those conclusions he draws from his narrative
are not impeachable.
I realize you've talked about this, but I would like to do
it particularly in the context of the argument that is
frequently made by those who have come to the conclusion that
the President should be impeached; that, particularly, lying
under oath has repercussions and consequences with regard to
our constitutional system of government and respect for the
judicial process and these kinds of issues. However you want to
do it.
Mr. Katzenbach. Let me be brief, Congressman. I am
perfectly willing to take everything that Mr. Starr says and
still conclude that that does not reach the level of high
crimes and misdemeanors in this situation. I reach that because
the purpose is to remove the President. The reason you have
high crimes and misdemeanors as grounds for removing the
President is that there is no confidence left of the public in
his ability to conduct that office. And I do not believe--if
you came to that conclusion, you would have to explain why it
is that the public seems to still have confidence in the
President.
Mr. Ackerman. This committee does not sit as a grand jury
of the District of Columbia. There is probably no person in the
United States today who runs a greater risk in the year 2000 of
an indictment for perjury than William Jefferson Clinton. You
sir as the grand inquest of the Nation--and the question for
you is whether the conduct alleged represents an assault on the
fundamental principles of government. If this conduct
represents that, our history over the last 2 centuries would be
littered with bills of impeachment.
Congress has exercised its responsibilities in a very
restrained way. The most important fact is that over 2
centuries, only twice has presidential conduct got up to the
level of an impeachable offense. And so I think that this is
simply, on the state of the evidence, just not nearly the kind
of conduct that you, as opposed to the grand jury sitting in
the District of Columbia, should consider.
Mr. Wilentz. Yes, I think that unless this misconduct rises
to the level of an assault on our fundamental political system
that they are not impeachable, even if every one of the charges
is true.
I think, however, that the argument that we must impeach
the President for symbolic reasons, that somehow this
misconduct represents a breach in the seamless web of justice,
is, too, nonsense. What it does is to confuse the process of
impeachment with what our legal system is for, our system of
courts. We try crimes in courts. We do not impeach people over
mere crimes. That is a fundamental constitutional principle. It
has been lost amidst all of this talk of symbolism.
Mr. Beer. I couldn't improve on what my colleagues have
said, but I will say it again. The thing to focus on is----
Mr. Sensenbrenner. Professor Beer, could you please turn
the microphone on so the court reporter can catch your words?
Mr. Beer. I couldn't improve on what my colleagues have
said. I will repeat it and say that the thing to do is to focus
on the meaning of the word impeach, which means remove from
office. It tends to--it is said so much, it tends to lose its
power. But when you say these things, even as Nick Katzenbach
has said, even if the Starr charges are true, they don't begin
to outweigh the enormous damage of removing a President.
Mr. Sensenbrenner. The gentleman's time has expired.
The gentleman from Texas, Mr. Smith.
Mr. Smith. Thank you, Mr. Chairman.
Mr. Chairman, under this process of ours, we inevitably
have, I think, two sides, and each side feels strongly about
representing their client.
In this case we have individuals who feel strongly that the
President did not commit an impeachable offense. We have other
individuals who feel just as strongly that his wrongful actions
did reach that level.
If the system is functional, and I believe that it is, what
we all hope is that the truth is going to shake out.
Mr. Craig, my first question is this, you have admitted in
your statement that the President did make, you call them, I
think, evasive and misleading statements.
Have you ever counseled the President to go before the
American people and tell the whole truth and nothing but the
truth, which is to say forget about the polls--in fact, it is
likely that the White House conducted a poll to find out
generally what you ought to say today--but forget the polls;
forget the partisan politics; and no matter how much it hurts,
level with the American people and tell the whole truth?
Mr. Craig. Well, Congressman, let me just say that he has
acknowledged the wrongdoing. He has himself acknowledged that
he was evasive, that he misled people and that he went out of
his way to conceal his conduct--if I could just finish what I
am saying.
Mr. Smith. Right. Mr. Craig, let me follow up on that by
asking you this question then: Does the President intend to
specifically correct any of those evasive and misleading
statements that you have acknowledged that he has made?
Mr. Craig. Well, I think he has gone a long way,
Congressman, when he gave that statement on August 17 in which
he made the painful admission and acknowledgment that he did,
in fact, have----
Mr. Smith. Right. Mr. Craig, he also said he regretted it.
It is very easy to say you have regretted something after you
have been caught. But my question was, specifically, is he
going to go back and correct the record and correct any of
those misleading and evasive statements?
Mr. Craig. Congressman, I think he has, in fact, corrected
the most central element of what he testified evasively about.
Mr. Smith. Okay, Mr. Craig.
Mr. Craig. That had to do with the relationship that----
Mr. Smith. I appreciate your answer.
Mr. Craig [continuing]. He denied and that he has now
acknowledged, and he has told everybody that he was wrong in
denying it.
Mr. Smith. Mr. Craig, I understand all of that, but you
have answered my question, and that is, I gather, there are no
plans to go back and correct those false and misleading
statements.
Mr. Katzenbach, may I address my next question to you. I
would like to read a statement by Leon Jaworski, who was the
special prosecutor during the Nixon proceeding. And he wrote
this: ``The President, a lawyer, coached Haldeman on how 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.''
Wouldn't you agree with that statement, at least as it
pertained to the situation in 1974?
Mr. Katzenbach. I am not sure, Congressman, that I heard
everything that you said. I am inclined to think that I would
agree with what Mr. Jaworski said because I think he was saying
you can have an impeachable offense whether or not it amounts
to perjury.
Mr. Smith. Right.
Let me read a couple of more statements. This is a
quotation from the Lewinsky proffer: ``At some point in the
relationship between Ms. Lewinsky and the President, the
President told Ms. Lewinsky to deny a relationship if ever
asked. He said something to the effect that, if the two people
who are involved said it didn't happen, it didn't happen.''
And then this as well: Ms. Lewinsky has testified that on
December 17th, 1997, when she and the President discussed her
possible appearance in the Jones case, the President told her,
quote, ``You know you can always say you were coming to see
Betty or that you were bringing me letters.''
In your judgment, didn't the President's actions amount to
coaching a witness to testify falsely?
Mr. Katzenbach. As you have quoted them, Congressman, I
wouldn't think so. But I am not trying to trivialize that. If
that is true, that was the wrong thing to say.
Mr. Smith. I heard your answer as part of--let me state----
Mr. Katzenbach. It does not amount to grounds for
impeachment.
Mr. Smith. Let me say to you that I think 99 percent of the
American people would consider this to be tampering with a
witness, which is a serious felony and might well be an
impeachable offense.
Mr. Sensenbrenner. The gentleman's time has expired.
The gentleman from Virginia, Mr. Boucher.
Mr. Boucher. Thank you very much, Mr. Chairman.
I share the view that this morning was very eloquently
expressedby General Katzenbach that the impeachment power was
not intended for the punishment of an individual for his conduct. He
can be punished even if he is President in the same manner as any other
citizen in our criminal courts.
The impeachment power is designed to advance the national
interest and to remove from office an official whose conduct is
so severe that he threatens the Nation.
This committee in its 1974 report in the Watergate inquiry
on a broad bipartisan basis concluded that the impeachment
power can only be used for conduct that is seriously
incompatible with our constitutional form of government or the
performance of the constitutional duties of the office of the
President. Any other use of the impeachment power falls short
of that high standard.
I am concerned that some Members of the House may view the
application of a lesser standard as appropriate, that they may
think that the House should simply send to the Senate for trial
any charges for which there may be probable cause that an
offense may have been committed, and then leave to the Senate,
as the trier of fact, the resolution of the matter.
I would like to ask for your opinions of that view of the
impeachment standard, and I would also welcome your thoughts on
the gravity of the act of the House alone approving articles of
impeachment. In considering whether to apply a higher or a
lower standard of what conduct is impeachable, should the
Members of the House consider the harm to the Nation that House
approval of articles of impeachment will cause? Should Members
consider the divisiveness and the polarization that will occur
pending a Senate trial and during the trial in the Senate?
Should they consider the fact that for months the Congress and
the President will be diverted from the real business of this
Nation?
So there are three questions that I would pose to you.
First, should the House view its standard as probable cause or
something higher?
Second, what harms will occur to the Nation based on the
House approval alone of the articles of the impeachment?
Third, should those harms be considered by the Members of
the House in deciding the proper course on approving articles
of impeachment given that the protection of the Nation is the
ultimate test?
And I would like to begin with Professor Ackerman.
Mr. Ackerman. I think that the standard, so far as evidence
is concerned, should be clear and convincing evidence. This is
not a normal grand jury indictment. You are indeed correct,
Congressman Boucher, that what you are doing is deciding
whether the Nation's political attention will be diverted for a
year.
In the case of a normal grand jury, there is no great
public interest in preventing an indictment. Here, there is a
great public interest in diverting--against diverting attention
away from normal poliical problems. So you are absolutely
right, that the standard has to be high; the evidentiary
standard should be clear and convincing, and it is, therefore,
very difficult to evaluate little snippets of testimony without
understanding the much larger context.
The second crucial point is that a vote of impeachment is
itself a terrible political precedent for the next generation
or two. If this dramatic lowering of the standard from the
historical examples is tolerated, every time we have one party,
let's call them the Democrats, in control of Congress, and a
Republican President in the year 2001, there is going to be an
overwhelming political temptation to exploit a moment of
political vulnerability for the President to once again use a
low standard for high crimes and misdemeanors.
Mr. Boucher. Professor Wilentz, let me ask you, if I might,
in the time remaining, would you care to comment on the harm to
the Nation that the mere act of the House passing articles of
impeachment might cause?
Mr. Wilentz. I have really little to add. I mean, it is
true that it will open up the possibility for future Presidents
to be subject to harassment by Congress' caprices if it so
desires.
But also I should add that as representatives of the
people, you should be well aware that the public has shown
again and again and again that it has no stomach to watch this
nauseating spectacle continue. To ignore that, I think, is
something that no Congressman ought to do.
Mr. Sensenbrenner. The gentleman's time has expired.
The gentleman from California, Mr. Gallegly.
Mr. Gallegly. Thank you very much, Mr. Chairman.
Mr. Craig and other members on the witness panel today,
thank you for being here.
Mr. Craig, do you believe our legal system is dependent on
telling the truth?
Mr. Craig. Absolutely. I think it is very important.
Mr. Gallegly. Thank you, Mr. Craig.
Do you believe that perjury represents an attack on the
integrity of our judicial system?
Mr. Craig. It certainly is not consistent with the high
standards of the judicial system.
Mr. Gallegly. Thank you, Mr. Craig.
Mr. Craig, on Meet the Press on Sunday, November the 22nd
of this year, just a couple of weeks ago, Tim Russert asked
you, do you believe the President, President Clinton, ever lied
under oath? And your statement was, no.
Do you stand by that?
Mr. Craig. Yes, sir.
Mr. Gallegly. Mr. Craig, you concede that the President's
testimony in the Jones case was evasive, incomplete, misleading
and even maddening. How could his testimony be those things
without being a lie?
Mr. Craig. There is one element that's absolutely central
to the elements of a perjury offense, and that is an absolute
intent and knowledge that what you----
Mr. Gallegly. Pardon me, Mr. Craig.
Mr. Craig. Excuse me.
Mr. Gallegly. Are you saying that all lies are perjurious
then?
Mr. Craig. No, I am not. I am talking about the elements--
--
Mr. Gallegly. We are dealing with lying, and now you are
bringing in the issue of perjury.
Mr. Craig [continuing]. Of specific intent.
He did not intend to help. He did not intend to volunteer.
He tried, I think, to answer accurately in a very narrow way.
You may conclude, Congressman, that he did not succeed. I
can understand what he was trying to do and how he read that
definition. He may not have been successful. I think we could
defend his testimony in any court in this country.
Mr. Gallegly. Mr. Craig, I appreciate your assessment as a
very capable lawyer and as someone who has studied the law, I
imagine, the majority of your life. Could you please giveme in
as succinct a manner as is humanly possible your definition of what it
means when you hold up your right hand and you swear to tell the truth,
the whole truth and nothing but the truth, so help you God?
Mr. Craig. It means what the words of the oath are clearly
intended to mean, the truth, the whole truth and nothing but
the truth.
Mr. Gallegly. At this point, do you believe that the
President has told the truth, the whole truth and nothing but
the truth, so help him God, to the American people?
Mr. Craig. I do not think he violated the oath knowingly
when he testified in the Jones deposition.
Mr. Gallegly. Do you think he has violated his oath to the
American people in telling the truth, the whole truth and
nothing but the truth?
Mr. Craig. I disagree with your sense that he did. He did
not violate his oath.
Mr. Gallegly. Thank you very much, Mr. Craig.
I think probably one of the problems that we are dealing
within the President's defense today is that any reasonable
analysis shows that the President lied on several occasions in
both the deposition and the grand jury testimony.
For example, in the deposition of January 17th, the
President was asked, ``Have you ever given any gifts to Monica
Lewinsky?'' He answered, ``I don't recall.''
Yet, just 2\1/2\ weeks before the deposition, President
Clinton had given Miss Lewinsky six gifts: a marble bear's
head, a Rockettes blanket, a Black Dog stuffed animal, a small
box of chocolate, a pair of joke sunglasses and a pin of the
New York skyline.
The question was important because it goes directly to the
issue of a cover-up by the President and possibly his attempt
to influence the testimony of a witness.
We have all heard that the President has an extraordinary
memory. However, at the same time we are expected to believe
that he does not remember giving six gifts to Miss Lewinsky
just 2\1/2\ weeks earlier, and, oh, by the way, when the
President gave the gifts to Miss Lewinsky, he knew that she was
on the witness list for the Jones sexual harassment case.
Quite frankly, this is an insult to our intelligence and
frankly indicates that the President is still not telling the
truth.
Mr. Chairman, I yield back.
Mr. Sensenbrenner. The gentleman's time has expired.
The gentleman from New York, Mr. Nadler.
Mr. Nadler. Thank you, Mr. Chairman.
My question is for Professors Wilentz and Ackerman.
Gentlemen, I want to follow up sort of on what my colleague Mr.
Boucher asked about standards of proof. We have heard quotes
that we just have to see if there is credible evidence, send it
over to the Senate, let them be the trier of facts.
In my view, that simply transforms the role of the House
into a rubber stamp for the special prosecutor, just a
transmission belt, and it is incorrect.
We have also heard other comments. Special Prosecutor
Smaltz, after Mr. Espy was acquitted, said that indictment by
itself is a deterrent to corruption, as if you seek to punish
someone by indictment. And a member of this committee was
quoted as saying that impeachment itself, even if not followed
by conviction, even if you know that there is no real
possibility of a conviction, is a punishment for misconduct, a
scarlet letter, even if the Senate acquits, and even if you
know there is no possibility the Senate will, in fact, convict.
Now, we know that the Canons of Legal Ethics say that it is
unethical for a prosecutor to seek an indictment if the
prosecutor does not believe that he can get a jury to convict
the defendant.
Could you comment on the view that it is proper to seek an
impeachment as a punishment for improper conduct, even if you
know or think that the evidence will not produce a conviction
by the Senate?
Mr. Wilentz. Let me start, Congressman Nadler, by quoting
Oliver North's attorney, Brendan Sullivan, or paraphrase him
rather, to say that Congress, or rather, the House of
Representatives, is not a potted plant. You are not just
sitting here passing things along to the Senate. To see that as
your role, I think, is a violation of your oath of office. It
certainly goes towards that, your oath to uphold the
Constitution. That is what you are here for. And if you are
derelict in that, if you back off from that, out of fear, out
of desire just to get it over with----
Mr. Nadler. So it is not like a grand jury, if there is any
probable cause?
Mr. Wilentz. No. This is no more like a grand jury than an
impeachment is like a normal jury trial. It is not. They are
two different species.
Mr. Nadler. Could you comment on the second half of the
question?
Mr. Wilentz. Could you remind me of that?
Mr. Nadler. The second half of the question is the
propriety of voting for impeachment as a punishment in and of
itself, and if you think that the Senate probably will not
convict on the evidence there?
Mr. Wilentz. Historically that just runs against the entire
tenor of what impeachment has been about. There has never been
a case where a House of Representatives has decided to move on
an impeachment proceeding with the idea that the Senate would
not convict. The entire reason--I think Elliot Richardson said
this every eloquently the other day: A vote to impeach is, in
effect, a vote to remove.
Mr. Nadler. And briefly, Professor Ackerman and Attorney
General Katzenbach, on the second half of that question?
Mr. Ackerman. It is especially inappropriate when you know
that the 106th House is going to have to vote on it again. And
if there is no reason to believe that the 106th House would be
willing to vote an impeachment, this is to trivialize the
impeachment process completely.
Mr. Nadler. So you think it is improper to vote for
impeachment if you don't think the Senate would be likely to
convict?
Mr. Ackerman. Or if the next House won't, won't confirm
you.
Mr. Nadler. Attorney General?
Mr. Katzenbach. It seems to me that nothing could be more
improper than to use the impeachment process as a punishment,
and that is what you are suggesting. It is absolutely clear
constitutionally that however bad the acts, impeachment is not
a punishment. It is to remove somebody from office, the
President or a judge or somebody else.
Mr. Nadler. So do you think it would be proper or improper
to vote for impeachment, even if you thought the President
should be removed from office, if you thought thelikelihood the
Senate would remove him from office was nil?
Mr. Katzenbach. If you met the standards, if the House met
the standards of impeachment as a high crime and misdemeanor,
if those were met and sincerely met, then I would think simply
to consider what the Senate would do might be a factor in the
voting, but not necessarily from a matter of principle.
Mr. Nadler. Anybody else want to comment on that?
Mr. Sensenbrenner. The gentleman's time has expired.
Mr. Beer. Again, this points to the political and
constitutional consequences. I mean, this is not just something
that is happening now. This goes on down and into the future
history of the relation of the Congress and President. It is a
further attack on the separation of powers, this entire
precedent. I entirely agree with what my colleagues said.
Mr. Nadler. Thank you very much.
Mr. Sensenbrenner. The gentleman from Florida, Mr. Canady.
Mr. Canady. Thank you, Mr. Chairman. I want to thank the
members of this panel for being here today.
I will candidly state that with the exception of Professor
Ackerman's argument concerning the procedural status of the
resolution of impeachment passed by this House, I didn't find
any new arguments advanced with respect to the grounds for
impeachment or the proper circumstances for impeachment, but I
appreciate your being here.
I want to say something about that issue, but before I do
that, I want to also thank Mr. Craig for indicating that we
will soon be receiving an exhaustive defense in writing of the
President's conduct that's set forth in the record. And I am
not going to dwell on that, but I do want to ask one question,
which just stands out to me, of Mr. Craig.
Mr. Craig, in the President's deposition last January, he
was asked this question: ``At any time, were you and Monica
Lewinsky alone together in the Oval Office?''
He answered, ``I don't recall.'' He gave kind of an
extended discussion there about working on the weekends, in
which he indicated to me, ``it seems to me she brought things
to me once or twice on the weekends.''
There was then a follow-up question: ``So I understand your
testimony is that it was possible then that you were alone with
her, but you have no specific recollection of that ever
happening?''
Answer from the President: ``Yes, that's correct.''
Now, Mr. Craig, is it your position here today, on behalf
of the President, that when the President gave those answers in
the deposition, he was telling the truth?
Mr. Craig. That's correct, Congressman. He answered the
question that it was possible that he was alone with her. This
is in the civil deposition. So the description that I gave of
that civil deposition is accurate. It was evasive; it was
misleading; he tried to be narrowly accurate, but, Congressman,
he did not violate his oath.
Mr. Canady. Mr. Craig, let me just say this: I read it. It
is here in writing. I believe this is an accurate transcription
of what took place. This is in the public domain. It seems to
me that the President unequivocally denied that he had any
specific recollection of being alone with Miss Lewinsky. And
for you to contend today that that is truthful I think is not
credible. That's just an observation.
There are other questions about other parts of the record
that I am sure we will focus on as we move forward with this,
but I must candidly state that I don't see how anyone in this
country could believe that that was a truthful answer in light
of all of the evidence that is before us.
Let me address the issue about the standards for
impeachment, and I think it is important that all of us
acknowledge that not all criminal acts are impeachable. No one
here contends that.
We also understand that impeachment should not be for
trivial matters. Impeachment, we all understand, is a grave
step to take. And, yes, I believe, and I believe most of the
members of the committee understand, that we need more than
probable cause to move forward with an impeachment. We need
convincing evidence. But I believe that on the record before
us, we have convincing evidence of a pattern of lying under
oath and obstruction of justice. I can't detail that here, but
I believe that's in the record, and we will discuss that. I
think we need to look at the effect of such conduct on the
system of government.
I refer back to the report of the committee in the Nixon
inquiry. It said, the emphasis has been on the significant
effects of the conduct undermining the integrity of office,
disregard of constitutional duties and oath of office,
arrogation of power, abuse of governmental process, adverse
impact on the system of government. I believe that there is a
convincing case here of such an adverse impact.
Let me quote, finally, Chief Justice Jay, who delivered the
following charge to a grand jury. He said, ``independent of the
abominable insult which perjury offers to the Divine Being,
there is no crime more extensively pernicious to society. It
discolors and poisons the streams of justice, and by
substituting falsehood for truth saps the foundations of
personal and public rights.''
He goes on to say----
Mr. Sensenbrenner. The gentleman's time has expired.
Mr. Canady. Thank you.
Mr. Sensenbrenner. The gentleman from Virginia, Mr. Scott.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Chairman, earlier this morning I mentioned a motion
that I would like to introduce. The motion would have been, had
it been in order, that I move that the committee establish a
specific scope of inquiry prior to the White House's rebuttal
of still undefined allegations. If it shall be necessary to
expand the scope of inquiry, then such expansion shall be
permitted by majority vote of the committee.
In addition, once specific allegations of inquiry have been
designated, the committee shall hear from witnesses with direct
knowledge of these allegations before it considers any articles
of impeachment.
When that is in order, Mr. Chairman, I would like to
introduce that.
But in the meanwhile, I would like to ask Mr. Craig whether
or not he has been given a list of allegations, noting that Mr.
Starr's original report had 11 allegations, he came back with
10. Mr. Schippers, the Republican counsel, came up with 15; our
Democratic counsel came up with three. Kathleen Willey has been
mentioned as a possible scope. Campaign finance reform was in
one day and out the next. Insult by the virtue of the response
to the 81 questions has been mentioned as an impeachable
offense, or lack of candor.
Do you have a list of the allegations that you are
responding to?
Mr. Craig. We do not, Congressman. And may I just say one
thing about that problem, which I think has been highlighted by
what Congressman Canady just did. Particularly when allegations
are being made about perjury, it is very important to
particularize what the false statement is or what the alleged
testimony is that is perjurious. And if this committee is going
to be considering those kinds of articles, it would be of
benefit to the world as well as to this individual, trying to
serve the purpose of a defense lawyer, to know precisely what
it is that the President said in the grand jury that is
supposed to be perjurious. This is the way, in fact, it is the
common pleading way, that you deal with indictments for perjury
or allegations of false testimony.
Mr. Scott. Okay. Much has been said about 17 boxes of
material. It is my understanding that you have been given
access to about a third of that material. Is that right?
Mr. Craig. I think we have been given some access, yes.
Mr. Scott. But not entirely?
Mr. Craig. We are not allowed to take notes or to make
copies.
Mr. Scott. Okay. Mr. Ackerman, you indicated--I think you
acknowledged in your testimony that there is precedence for
carrying over impeachments from one Congress to the next. Is
there any question about the need to appoint managers by the
House in the new Congress? Is there any question about that
aspect of it?
Mr. Ackerman. There is only one case of carrying over in
the last 65 years. That's the Hastings case. The previous
carry-overs are the trial of Pickering in 1804, which is the
high point of no due process throughout the entire--this was
the worst possible precedent in the history of the United
States. And then there was Judge Louderback, I think it was in
1933, which was just before the 20th amendments--this was sort
of the final revenge of the lame duck Congress. So there is
only one case.
Mr. Scott. The question is is there any new question that
the new House would have to appoint managers?
Mr. Ackerman. Absolutely. And in the Hastings case, the new
House appointed managers. So there is absolutely no precedent
for holding over the managers appointed by one House to the new
House.
Mr. Scott. The other question I have is I would like to
ask, I guess, Professor Wilentz, the title of the offense has
been mentioned as the impeachable offense. Can you comment on
why the title of the offense should not be used as the measure
of whether it is an impeachable offense but the underlying
behavior?
Is perjury an impeachable offense? Usually it is perjury,
because you lied about bribes and things like that, that we
ought to be looking at?
Mr. Wilentz. Under some circumstances, perjury is plainly
an impeachable offense.
Mr. Scott. How do you measure--rather than the title, what
do you look to to determine whether it is an impeachable
offense?
Mr. Wilentz. When it goes to a fundamental assault on
political institutions. When it goes to, as Mason said, in the
Constitutional Convention, when it is a crime against the
state. That is the spirit of the Constitution, as well as the
letter.
Mr. Sensenbrenner. The gentleman's time has expired.
Mr. Scott. Without that, it is not an impeachable offense?
Mr. Sensenbrenner. The gentleman from South Carolina, Mr.
Inglis.
Mr. Inglis. Thank you, Mr. Chairman.
Mr. Craig, you said in your testimony that you would
address the factual and evidentiary issues directly today and
tomorrow. You haven't done that yet. I hope we have got more to
come. I understand that what you are talking about here today,
in this panel, is the standards of impeachment, but as some of
my colleagues have pointed out, there is nothing new here,
nothing new at all, except possibly Professor Ackerman's
statements. So we have heard all the rest of this before.
Now I think you have raised a level of expectation, and now
I am counting on you to meet that over the next--today and
tomorrow. You need to meet that expectation. It is very unusual
for the White House spin operation to go out there and set up
expectations they can't fulfill. Usually they do it the
opposite. So you have now established a very high expectation
that I am going to count on you to meet.
Now, you also said in your testimony that the President, if
we--you are asking us to believe this, that the President has
insisted and personally instructed his lawyers that no
legalities or technicalities should be allowed to obscure the
simple moral truth that his behavior in this matter was wrong.
Mr. Craig, did the President lie about never being alone in
the Oval Office with Monica Lewinsky?
Mr. Craig. Congressman, I have made a distinction between
what was morally wrong and what was----
Mr. Inglis. No, no, Mr. Craig. Answer that question. This
is what--let me give you a little bit further background now.
Mr. Craig. Yes.
Mr. Inglis. This is a question put to the President in the
deposition. And I understand you are drawing a distinction, a
technicality, a nicety, as you said, between grand jury and
deposition. So let me be absolutely clear, we are talking here
deposition.
Paula Jones' lawyer asked the question: At any time were
you and Monica Lewinsky alone together in the Oval Office?
The President's answer: I don't recall. And then he goes
on.
Now, corroborating evidence in Ms. Lewinsky's evidence
indicates that there were eight occasions when the President
and Monica Lewinsky had sex in the Oval Office.
I ask you again now: Did the President lie when he said, I
don't recall?
Mr. Craig. Congressman, he goes on in that same passage to
testify that it was possible, in fact, that he was alone. So
the characterization of the testimony that he never was alone
or he didn't recall is not accurate. The characterization that
you just gave to it, and that Mr. Starr gave to it, and that
the referral gave to it is not an accurate characterization of
the President's testimony in that deposition.
Mr. Inglis. You know, I am reading the whole thing, and I
don't see what you are talking about. It seems to me that you
are relying on these technicalities.
Now, Mr. Craig, did he lie to the American people when he
said, I never had sex with that woman? Did he lie?
Mr. Craig. He certainly misled and deceived.
Mr. Inglis. Wait a minute now. Did he lie?
Mr. Craig. To the American people, he misled them and did
not tell the truth at that moment.
Mr. Inglis. So you are not going to rely--the President has
personally assisted you, I understand, instructed--has assisted
and personally instructed you, I suppose, that no legalities or
technicalities should be allowed to obscure the simple moral
truth.
Did he lie to the American people when he said, I never had
sex with that woman?
Mr. Craig. You know, he doesn't believe he did, and because
of the--may I explain, Congressman?
Mr. Inglis. He doesn't believe that he lied?
Mr. Craig. No, he does not believe that he lied because his
notion of what sex is is what the dictionary definition is. It
is, in fact, something you may not agree with, but in his own
mind his definition was not----
Mr. Inglis. Okay. I understand that argument.
Mr. Craig. Okay.
Mr. Inglis. This is an amazing thing, that you now sit
before us and you are taking back all of his apologies.
Mr. Craig. No.
Mr. Inglis. You are taking them all back, aren't you?
Mr. Craig. No, I am not.
Mr. Inglis. Because now you are back to the argument--there
are many arguments you can make here. One of them is he didn't
have sex with her; it was oral sex, it wasn't real sex. Now, is
that what you are here to say to us today, that he did not have
sex with Monica Lewinsky?
Mr. Craig. What he said, to the American people was that he
did not have sexual relations. And I understand you are not
going to like this, Congressman, because you will see it as a
technical defense or a hairsplitting, evasive answer, but
sexual relations is defined in every dictionary in a certain
way, and he did not have that kind of sexual contact with
Monica Lewinsky.
Mr. Sensenbrenner. The gentleman's time has expired.
Mr. Craig. Let me just finish. So did he deceive the
American people? Yes. Was it wrong? Yes. Was it blameworthy?
Yes.
Mr. Sensenbrenner. The gentleman's time has again expired.
The gentleman from North Carolina, Mr. Watt.
Mr. Watt. Thank you, Mr. Chairman.
My colleagues, the last three Republican colleagues on the
committee, Mr. Gallegly, Mr. Canady and Mr. Inglis, have asked
a series of questions about whether the President lied or
misled or didn't lie or mislead.
What I would like to find out from Mr. Katzenbach,
Professor Ackerman, Professor Wilentz and Professor Beer is
even if you assume that everything that they said was correct,
that the President did, in fact, lie on those occasions, would
it be an impeachable offense?
Mr. Katzenbach. Congressman, my answer would be that it
clearly would not because of the nature of that lie. That seems
to me to be the view that the American people take, and it is
the view that I would take.
Mr. Watt. Professor Ackerman.
Mr. Ackerman. Impeachment is the ultimate weapon of the
people's representatives against an executive out of control. I
do not believe that this evidence is evidence of an executive
out of control, assaulting our basic liberties.
Mr. Watt. Professor Wilentz.
Mr. Wilentz. We have answered this question on various
occasions. I am happy to answer it again. Even if President
Clinton did all of the things that have been alleged, the worst
of them, they do not rise to the level of impeachment. They may
rise to the level of crimes for which our court system is set
aside to prosecute.
This procedure has other meanings, other purposes, and to
confuse the two is to violate, I believe, the spirit of the
Constitution.
Mr. Watt. Professor Beer.
Mr. Beer. That was my point also. I think the legal case is
terribly weak, but even if it were true, it would have to be
taken in consideration--in the context. I think that is what we
have tried to call attention to, that impeachment means remove;
it means eliminate this administration. It means holding the
record and the promise of this Presidency at naught, and I
think that in that context, if you balance the pluses and the
minuses there, overwhelmingly there is no reason to remove this
President from office. That's the point to keep. And to do so,
it would severely damage the democratic process.
Mr. Watt. Professor Beer, I think you have hit on something
in your testimony that is not very exciting in the public
context to talk about, but I think is extremely important. And
that is the difference between a parliamentary form of
government and a democratic form of government, which we have,
or a constitutional form of government, which we have.
I wonder if you could elaborate on that distinction and the
implications that that distinction has in this context.
Mr. Beer. I am so glad you asked me that, because it does
need to be said. The crucial thing in the separation of powers
is that each of the offices, the legislature and the executive,
is directly responsible to the voter. That's the point. In a
parliamentary system, there is an intermediate body, namely the
Parliament, and that makes it quite different.
I mean, therefore, when the legislature acts against the
executive in our system, it is, so to speak, taking the place
of the basic relationship, which is one directly between the
President and the people. And it has to, therefore, act with a
special caution and look at the whole record, and put itself in
the place of the people, and try to judge as they would judge.
Mr. Watt. Thank you, Mr. Chairman. I yield back the balance
of my time.
Chairman Hyde [presiding]. I thank the gentleman.
The gentleman from Virginia, Mr. Goodlatte.
Mr. Goodlatte. Thank you, Mr. Chairman.
Professor Wilentz, last week, Harvard Professor Alan
Dershowitz testified under questioning before this committee
that perjury before a Federal grand jury, if proven, would be
an impeachable offense. Do you agree with Professor Dershowitz
that perjury before a Federal grand jury, if proven, would be
an impeachable offense?
Mr. Wilentz. I am not sure that I would, actually.
Mr. Goodlatte. Let me ask you this: I think the prevailing
opinion is----
Mr. Wilentz. May I add, though, that I am not sure that it
wouldn't be, either. It depends on the character of the
offense, et cetera.
Mr. Goodlatte. All right. Let's accept that.
What about perjury that would, if the President were
subject to prosecution and imprisonment while President, result
in his imprisonment?
Mr. Wilentz. You mean, an offense--well, any offense might
involve imprisonment.
Mr. Goodlatte. Yes. And if the President of the United
States, like an ordinary citizen, could be prosecuted and, if
convicted, incarcerated, would you then think it appropriate
for the Congress to remove the President from office while he
is in prison, to use the impeachment power for that purpose?
Mr. Wilentz. I think it would be an improper use of the
impeachment power.
Mr. Goodlatte. You would leave him in prison as the
President of the United States?
Mr. Wilentz. The President of the United States would be
tried for--by my understanding, would be tried for that crime
after he left office. That's the point of that.
Mr. Goodlatte. Now, there is also a prevailing opinion that
a President of the United States can exercise the power of
pardon on himself.
Mr. Wilentz. I would defer to a lawyer on that one.
Mr. Goodlatte. All right. Well, if the President canindeed
exercise that power, and I think the language in the Constitution would
support that argument because with regard to pardons, Article II says,
have the power to grant reprieves and pardons for offenses against the
United States, except in cases of impeachment. Therefore, if the
President has the power to pardon himself, and the prevailing opinion
is that he cannot be prosecuted until after he leaves office, your
position regarding the responsibility of this committee, with regard to
use of the impeachment power, when the President commits a serious
offense that could result in his incarceration if he could be
incarcerated, is to say that the President of the United States is
above the law?
Mr. Wilentz. No. There has to be a distinction, which I
have been trying to get across to the committee and to everyone
else, between impeachment and crimes and being tried for
crimes. There are two distinct processes.
Mr. Goodlatte. Certainly they are, but the Constitution
contemplates that with the power of pardoning, that obviously
the President could be removed for crimes, because it says that
he can't exercise that power in cases of impeachment.
Mr. Wilentz. Well, I am going to defer to my lawyer friend
over here.
Mr. Goodlatte. Before we go on to Mr. Ackerman, let me just
say to you, sir, that you have made this novel argument that
the Senate cannot continue with this action unless the 106th
Congress votes out additional articles of impeachment; that
while I appreciate your making the argument, and while you have
acknowledged that it is a moot argument because this committee
can act, and we don't know what action the 106th Congress will
take or what the Senate will take, that your statement is based
on absolutely no historical precedent, because every single
precedent available to this committee is exactly to the
contrary, both--not only in the 19th century, but you cite as a
basis for changing that precedent the 20th amendment to the
Constitution.
I have the 20th amendment here before me, and there is
absolutely nothing in the 20th amendment which indicates that
the precedents of the 19th century would be changed. And in
fact, after that amendment was adopted, the Congress in the
late 1980s in the Alcee Hastings case, the Senate, receiving
the articles of impeachment in one Congress, conducted the
trial in the next Congress, without the House of
Representatives enacting or adopting or sending to the Senate
new articles of impeachment.
So there is absolutely no constitutional foundation for
your argument.
Mr. Ackerman. May I answer that question, Mr. Chairman?
Mr. Goodlatte. Yes, please.
Mr. Ackerman. In the last 65 years, since the passage of
the 20th amendment, there have been no lame duck impeachments.
Of course, there are no precedents because Congress has acted
with restraint for the last 65 years.
Mr. Goodlatte. Reclaiming my time, that is absolutely
incorrect with regard to the Judge Hastings impeachment----
Mr. Ackerman. Because he is impeached by a normal Congress.
Mr. Goodlatte. Because articles of impeachment were passed
in one Congress and tried in the second Congress.
Mr. Ackerman. Hastings was impeached by a normal Congress
in the month, I think, of August or something of this kind; not
after an election. This is the first time since the 20th
amendment----
Mr. Goodlatte. It was still a new Congress,
Mr. Ackerman.
Chairman Hyde. The gentleman's time has expired.
Mr. Goodlatte. Overturned the results of the previous
Congress.
Chairman Hyde. The gentleman's time has expired.
The gentlelady from California, Ms. Lofgren.
Ms. Lofgren. I appreciate the panel's report today, and I
am mindful, once again, of the severe gravity of this matter.
And although some of the questions today have been about
details of sexual activity that I think we all find
embarrassing, underlying that kind of embarrassing discussion
is the very real prospect, I would say the likelihood, that
this committee may vote for articles of impeachment and that
the House of Representatives may also vote articles of
impeachment. And I think many in the country are not aware of
that.
I just came in from California last night, and people at
home, many of them, were asking, ``well, when is this going to
be wound up?'' They thought it was over, and people are busy
getting ready for the holidays. So I think this hearing today
is very important in terms of informing not just the committee
and the House, but the American public that something is
actually happening.
Now, I think your report matches what the Founding Fathers
had in mind, what Mason and Madison meant, that impeachment is
a remedy for the Nation. For the well-being of the Nation is,
in fact, what we need to be considering.
And I am also mindful that impeachment trials take a long
time. The trial of Andrew Johnson took 3 months, and that was
before television. It would take even longer today. The Chief
Justice must preside, and I have been thinking that if we
proceed with this trial, will that mean that the Supreme Court
wait to hear any cases for a period of 6 months or more? Will
all of government be gridlocked?
So as we measure the threat of this alleged conduct to the
country and whether it meets the constitutional standard for
impeachment, is it appropriate to also measure the impact of a
trial on the well-being of our Nation?
Now, I have a question for Mr. Katzenbach. I am from
Silicon Valley, and the venture capitalists who spoke to me
last week when they found out that this was proceeding were
extremely concerned and alarmed about the potentially severe
economic impact, in their view.
You were the senior vice president for IBM, I think their
senior legal advisor, for many years. I have the IBM research
division in my district, and the disk drive division. Can you
give us some insight for what the implications for an
impeachment trial might be for the economy? I am of course
especially concerned about high tech, but not just that.
Mr. Katzenbach. Let me say two things, Congresswoman
Lofgren. I think your point----
Chairman Hyde. Would you move the microphone over.
Mr. Katzenbach. Sorry, Mr. Chairman.
Chairman Hyde. Thank you.
Mr. Katzenbach. I think your point about what kind of agony
and disruption that you put the country through, if there is an
impeachment process, simply underlines what I think members of
this panel have been saying with respect to the importance of
the definition; not whether or not the President had sex or
lied about it, but what it does as faras the government is
concerned.
On your second question, the people involved in business
and the stock markets and so forth want certainty, and I can
think of nothing much worse than pushing them into an
uncertainty that would go on for some period of time while we
rehearsed what has been rehearsed a dozen times already, and I
would think that that would be a consideration, as the first
points were that you made, in terms of how serious, in terms of
the public will, is the conduct of the President? Is it so
serious that he must be removed from office and we go through
the long process of a potential conviction, a trial and a
conviction in those circumstances?
It was set up that way because of the importance that was
attached to the idea in our system of removing the President.
Ms. Lofgren. So if I may, would you then say it is not
inappropriate to weigh that there may be implications for the
stock market? Should we consider that our economy, especially
high tech, is oriented towards exports, and that might fall
apart, in the balancing of whether to move forward?
Chairman Hyde. The gentlelady's time has expired.
Ms. Lofgren. Could the witness answer yes or no?
Chairman Hyde. The gentleman from Indiana, Mr. Buyer.
Mr. Buyer. Thank you, Mr. Chairman.
I have several questions. Let me ask each of the witnesses,
how much notice did you have that you would be here testifying
today?
Mr. Katzenbach. I had about 48 hours, something of that
kind.
Mr. Ackerman. Saturday morning.
Mr. Wilentz. Saturday.
Mr. Buyer. And Saturday?
Mr. Beer. Monday, I think yesterday.
Mr. Buyer. Yesterday you received notice that you would be
a defense witness for the President?
Mr. Beer. Yes.
Mr. Buyer. And who contacted each of you?
Mr. Katzenbach. I was contacted by the gentleman to my
right.
Mr. Ackerman. Mr. Craig.
Mr. Wilentz. Mr. Craig.
Mr. Beer. I am sorry. It was Sunday afternoon, but I was at
such a huge cocktail party that I had to--that I had to call
Mr. Craig back Monday morning to find out what it was about.
Mr. Buyer. Were you invited to the cocktail party?
Mr. Beer. I would have loved to have had you there.
Mr. Wilentz. He gave the party.
Mr. Buyer. Oh, you gave it.
All of you are here, it appears, hastily called, to defend
the President. When the President spoke to the American people
on August 17th, some of the President's comments in his attacks
of Judge Starr were not taken very well by the American people.
So I view these witnesses as if the President were here
speaking; this is his position; this is his defense in this
case.
And one of them has come here and said that if there are
Members of the 105th Congress who, based upon the reading of
the law and the facts, believe that the President's conduct
rises to the level of impeachment, then we are zealots,
fanatics and cowards.
Now, that type of name-calling by the President's defense
is disappointing and demeaning to this proceeding.
Earlier, Mr. Craig mentioned about the witness tampering,
and said that at the time--there was some questioning by Mr.
McCollum with regard to Betty Currie, and Mr. Craig said, well,
she was not on a witness list, nor was there a proceeding at
the time.
I have Title 18, section 1512 here, and I am sure that you
also have read it. This criminal statute very clearly says that
for the purpose of this section, an official proceeding need
not be pending or even about to be instituted at the time of an
offense; very clear. So I would just disagree with your reading
of the law here.
I would also note, and I would like for you to comment on
this, I believe that in my reading of the facts here, Mr.
Craig, that the President endeavored to influence testimony of
subordinates whom he knew to be potential witnesses in a
Federal criminal investigation, systematically lying to them
with the intent that they would relay these falsehoods to the
Federal grand jury.
One was John Podesta, who testified before the grand jury
on January 23rd, that the President volunteered information to
him concerning Ms. Lewinsky, even though he had not asked for
that information. Specifically, the President told him that he
had not had sex with Miss Lewinsky. Mr. Podesta also said that
the President told him when Miss Lewinsky came to the White
House, after she left her employment there, she came to see
Miss Currie; that Ms. Currie had always been present or nearby.
Mr. Podesta testified that he believed the President.
Mr. Podesta testified also to the grand jury that he was
present in the Oval Office on January 21st, together with
Erskine Bowles and Sylvia Matthews, when the President told the
three of them, quote, I want you to know that I did not have
sexual relationships with this woman, Monica Lewinsky. I did
not ask anybody to lie, and when the truth comes out, you will
understand, end quote.
Mr. Bowles testified to the grand jury the President made
these statements and that he believed the President.
Sidney Blumenthal testified before the grand jury that on
January 21st, the President relayed a conversation that Mr.
Clinton had with Dick Morris in which Mr. Morris speculated
that President Nixon could have survived----
Chairman Hyde. The gentleman's time has expired.
The gentlelady from Texas, Ms. Jackson Lee.
Ms. Jackson Lee. Welcome back, Mr. Chairman. Thank you very
much.
Let me state on the record that I am sure my time will
expire before I have had the opportunity to fully address the
panel and to determine information that I think is vital.
However, might I just simply say and raise my continuing
objection to the limited time that the President has had to
present his case, and say as well to the panel that I
appreciate, I think it might have been the esteemed Mr.
Katzenbach or Mr. Ackerman, who have noted that this is a
process of completeness, this is a process in which we have the
ultimate act, the removal of a President. So there is a, in
quotes, prosecutorial process of which we in the House sit, and
there is then the trial process. So it is as a whole. And you
cannot bifurcate and separate one process from the other.
Let me just note that under the Rodino committee, there
were 17 days of hearings, some in executive session. Mr. St.
Clair had 2 days for an opening statement. And likewise, let me
also note that he was able to examine and cross-examine the
witnesses.
As Professor Beer has indicated, I hope that we do not fall
to the idea that impeachment is a suitable activity for party
politics.
With that, let me ask a series of questions that I will
apologize for their brevity, asking you to be brief because of
the nature of the time.
It is important for me, Mr. Craig, and I realize that I
will have an opportunity to query Mr. Ruff--if you would just
give me a yes or no answer, I would appreciate it simply
because I realize that I will be more pointed with Mr. Ruff.
First of all, I think we can acknowledge that the President has
misled the American people. He said it. It has been said, and
it has been noted.
Do you so note today?
Mr. Craig. Yes. Yes, ma'am.
Ms. Jackson Lee. Do you also note as well that you have an
understanding, when we talk about fact witnesses--and let me
also say that as we sit as a prosecutorial body, as the Rodino
committee sat, they called witnesses, in essence, to present
their case. Since the movers in that instance were Democrats
who moved for the impeachment of the President, they presented
fact witnesses. In this instance, I would assume the movers of
this action, the Republicans, would have likewise presented
fact witnesses, and tragically they are redundant in their
accusations of who has called fact witnesses, but yet they have
called none, and I don't understand that. But I will ask you
the question: Do you have knowledge that Ms. Lewinsky had a
diary?
Mr. Craig. I understand that she did.
Ms. Jackson Lee. Do you have any knowledge of whether the
President maintained a personal diary with his reflections,
impressions and comments?
Mr. Craig. I am unaware of any such document.
Ms. Jackson Lee. Is it your understanding that a diary that
Ms. Lewinsky had may have her reflections, impressions and
comments?
Mr. Craig. I would suppose that, yes.
Ms. Jackson Lee. In the grand jury proceedings, as I
understand, Ms. Lewinsky had such documents, and the American
people who have not viewed the grand jury proceedings as they
are now viewing this really have never been inside of grand
jury proceedings. It is interesting that the grand jurors today
have been silent on any indictments, but as we know the
information there was questioning and determination of
credibility of the witnesses. It is also my understanding that
in that instance, Miss Lewinsky could refer to her impressions
and announcements and characterizations in that particular
proceeding.
You can just simply answer, in the grand jury I assume a
witness can refer to documents that they might have?
Mr. Craig. I think she testified twice in front of the
grand jury and was interviewed by agents of the Office of
Special--of the Independent Counsel many, many times--perhaps
19 times.
Ms. Jackson Lee. And may have had the opportunity to refer
to her documents?
Mr. Craig. Yes.
Ms. Jackson Lee. With that in mind, Mr. Chairman, I would
simply say you have here a question of the ability to determine
credibility of witnesses, where one has been able to refer to
written, line-by-line definitions and characterizations; where
another witness such as the President may have had to rely upon
his recollection. Again, we go to the point of the whole
question of credibility of witnesses.
Ms. Tripp, are you familiar with a Linda Tripp, Mr. Craig?
Mr. Craig. Yes, Congresswoman.
Ms. Jackson Lee. Do you have any knowledge of a personal
vendetta against Ms. Tripp that might have caused any actions
on that person's part to protect herself?
Can I hear you more loudly, sir?
Mr. Craig. I know of no such vendetta, Congresswoman.
Chairman Hyde. The gentlelady's time has expired.
Ms. Jackson Lee. As I noted, and I hope that one day----
Chairman Hyde. The gentleman from Tennessee, Mr. Bryant.
Mr. Bryant. Thank you, Mr. Chairman.
As a reminder to all who might be watching this, we have
had a number of other professors from the history area, as well
as law professors, who have disagreed with you gentlemen and
your opinions that these types of conduct are impeachable
offenses. As a matter of fact, Mr. Dershowitz last week said
that lying before a grand jury, in his opinion, was an
impeachable offense.
I might also bring up this 400-signature letter that has
been alluded to earlier, and in fact one of you gentlemen had
written the introduction to that, saying this was about
historians speaking as historians. Well, one of your
colleagues, in fact two of your colleagues have the opposite
view of that, and they say that this 400-signature statement is
nothing of the kind; rather, it is an impostor. It places the
stamp of professional scholarship on what is, at best, a purely
partisan political tract. The only interesting question it
raises is whether those responsible should be merely censured
or impeached and removed from their professional chairs.
One of you mentioned that were we to, quote, ``lower the
standard for impeachment for such minor things as obstruction
of justice and perjury, that the landscape would be littered
over the last two centuries with impeached Presidents.'' But I
don't recall any President ever being charged with perjury,
lying under oath to a grand jury. I don't recall any President
ever being charged with obstruction of justice, tampering with
witnesses and these kinds of things, such as this President
has.
And in reference to the two professors I mentioned a moment
ago, they make, I think, a very strong statement that is
contrary to the fact that we seem to be lowering the standards
for impeachment according to some of your opinions. They say
that we would set precedent. That we would establish that
Presidents who commit these crimes--let's talk about the
President now--against the system of law that they are sworn to
faithfully execute, will not be permitted to continue in office.
If we don't impeach, in other words, do we really want to
be at the mercy of future Presidents who believe otherwise? So
I think there is definitely a two-sided coin here.
And I want to ask Mr. Craig a couple of questions, I guess,
while I have got some time.
You are an attorney?
Mr. Craig. Yes.
Mr. Bryant. You represent the President?
Mr. Craig. Yes, sir.
Mr. Bryant. And as an attorney, you are bound by the
applicable codes of professional ethics, and as an officer of
the court you would be called on to preserve the court's
integrity, would you not?
Mr. Craig. That is correct, your Honor.
Mr. Bryant. With that in mind, I want to ask you, what do
you believe is the difference between willful lying to a
Federal judge or grand jury and willfully misleading a judge or
Federal grand jury?
Mr. Craig. I think the criminal justice system is special.
I think a grand jury investigation, there is a gravity----
Mr. Bryant. Okay. Could you be specific, though?
Mr. Craig. You asked me about the difference between a
civil deposition where a Federal judge is presiding over a
civil deposition? I may not understand the question, but I
thought you asked me the difference between----
Mr. Bryant. What is the difference between willfully lying
and willfully misleading? You seem to make a distinction there.
Mr. Craig. I am making a distinction between the grand jury
as opposed to the civil case. Is that not the question you are
asking?
Mr. Bryant. No.
Let me be as simple as I can. I am asking you what is your
difference between willfully lying, which I understand to be
perjury, and willfully misleading?
Mr. Craig. I think that perjury is a word of art. It has
definitions in the statute. It has elements of an offense that
must be proven before a crime has been established, that
includes a specific intent, knowingly to present false----
Mr. Bryant. You notice I used the adjective ``willfully''
and--the adverb ``willfully'' in front of each of those, so the
intent is there.
I understood the President intended to mislead, evade, and
give incomplete answers. He has said that. He was not going to
volunteer information at that deposition because he felt their
case was wrong.
Mr. Craig. Let me just give you one example of a
distinction.
A perjury defense is complete if you can show that the
answer was specifically accurate, even narrowly accurate. And
absolute accuracy, even if you disagree with the
interpretation, if the question is ambiguous and there is a
possible answer that can be accepted as truthful, that is a
complete defense to a perjury prosecution.
Chairman Hyde. The gentleman's time has expired.
The gentlelady from California, Ms. Waters.
Mr. Rothman. Mr. Chairman, parliamentary inquiry.
Chairman Hyde. Yes, sir?
Mr. Rothman. I seem to recall when the Chair last presided
over the previous panel, and the question was----
Chairman Hyde. You are absolutely right. I was much more
liberal, and I made the announcement regarding the 5-minute
rule today because, frankly, people at your end of the table
and at this end of the table never get to ask questions. It
consumes over 3 hours under the strict 5-minute rule to
complete the members' questioning.
We have a large panel considering, the entire day; and I
would like members to get a chance to ask questions.
Mr. Rothman. Mr. Chairman, we ought to let the witness
finish his answer, especially, coincidentally when it is the
President's counsel bringing his defense. It strikes me as
inherently unfair since this process started months ago, and
this is a new practice for the Chair.
May I respectfully ask that the Chair adopt its previous
practice, when the Republican majority called witnesses, to let
the experts finish their answers?
Chairman Hyde. Mr. Rothman, that is unfair. I was as
liberal for witnesses, Republican or Democrat.
Mr. Rothman. Yes, you were. But why not today, sir?
Chairman Hyde. Because we have a plethora, a swarm of
witnesses. We have a lot of members who would like the
opportunity to ask questions. And that is my way of doing it.
Everyone treated alike. You, Ms. Jackson Lee, Mr. Bryant, Mr.
Barr. I am trying to get through the day without going past
midnight. So I would appreciate the gentleman's cooperation.
Mr. Scott. Mr. Chairman, parliamentary inquiry.
Chairman Hyde. Yes, Mr. Scott?
Mr. Scott. Mr. Chairman, will the witnesses, at the end of
the questions, be given an opportunity to give the answers----
Chairman Hyde. Yes, I am trying to use my judgment. I
thought I was----
Mr. Scott. Mr. Chairman?
Chairman Hyde. Please, let me respond to your remark.
Mr. Scott. I haven't made the remark.
Chairman Hyde. Okay. Who is next?
Mr. Scott. Could I make the remark?
Chairman Hyde. Well, if you have a remark to make, yes.
Mr. Scott. Very brief.
At the end of all of the questioning, could they have an
opportunity to answer some of the questions they--answers that
they might not have given because of the strict way that it is
being handled, so that they are given 2 or 3 minutes to go
through all the answers they might have given after everyone
has had the opportunity?
Chairman Hyde. I thank the gentleman.
Ms. Waters?
Ms. Waters. Do you want to start my time over?
Chairman Hyde. Yes, we will start your time over.
Ms. Waters. Mr. Hyde, you are not going to like this, but
since there is so much talk about lying, I am going to read
what you said about it in 1997 when President Reagan and his
top national security advisors were accused of lying to
Congress and the public about their secret arms sales to a
terrorist state, it was Hyde who argued forcefully for a more
nuanced view of lies and deception. ``Lying is wrong,'' he
said, ``but context counts.''
So I agree with Mr. Hyde on that.
Let me just say that I think the most important thing that
will come out of this hearing today is that time that this
Congress is going to be tied up in dealing with this
impeachment. I have long since decided that the pettiness that
we are dealing with does not deserve this kind of attention. It
doesn't make really a difference whether or not it was a little
bit shaded when the President talked about being alone or the
hat pin or the tee shirt. I think this Congress needs to get on
with the business of this country.
Mr. Hyde and members of the Republican Party told the
Nation they were going to speed this thing up. They were going
to do it quickly. They were going to hand the Nation, in
essence, a Christmas present and get it behind us. November 3rd
elections, even today, the polls show the American people are
saying they do not want to impeach the President.
I think the most important point that has been made here
today by Professor Ackerman is, first of all, this should not
spill over into the 106th Congress, and that the President
probably, if it does, can have a motion to quash. I am thinking
about all of the new members who will be coming on to this
committee, and thank God, some of the members of this committee
will be gone. It seems to me they will have a cause of action
themselves, because it is not just a matter of what is on the
floor. It is a matter of starting all over again. Everything in
the 105th Congress will be dead.
Members who will serve on the Judiciary Committee, who have
not been involved in these hearings, have a right to be
involved and to have their say; and new members should
certainly make an issue of that. So if we envision going back
again in the 106th Congress through the committee process, back
to the floor, even to try and get to the Senate, with a
different makeup of Congress, where some members even on the
other side of the aisle will not be so inclined, what are we
talking about in terms of a time frame?
Even if it goes on to the Senate, and they hold a trial,
and the Supreme Court will have to stop in the middle of them
on a motion to squash, and there will be motions perhaps by the
members. What are we talking about?
And what do we do, God forbid, if in fact we have to take
an action against Saddam Hussein, if in fact we have to take
actions against nations who are poised to use nuclear power?
Mr. Ackerman, let's talk about this time frame. Can we be
tied up for another year in this mess?
Mr. Ackerman. Definitely. The constitutional process is
complex--but it is for a reason. The reason is that this is a
tremendously important thing. It is very rare. It is only when
things are really serious that impeachment is justified. And if
a lame duck Congress wants to impeach, it cannot expect that
its judgment will simply be accepted by the Chief Justice of
the United States or the next House of Representatives who
have----
Ms. Waters. So possibly even before they would sit in
action on the Senate, you would have a Supreme Court matter
that would have to be dealt with on a motion to quash.
Mr. Craig, do you think that is reasonable, that the
President may want to challenge that if in fact this continues?
Maybe that is an unfair question, but I am trying to get the
American public to understand this quick down-and-dirty hearing
that we are supposed to be doing. These articles of impeachment
are not going to be so quick.
Mr. Craig. Congresswoman, I would only point out that the
argument has meaning only in the context of the 105th actually
voting articles of impeachment out. And I would just hope that
wisdom would prevail and such articles of impeachment would not
be voted out of the House.
Chairman Hyde. Mr. Chabot of Ohio.
Mr. Chabot. Professor Wilentz, I want to quote from your
opening statement. You stated that any Representative who votes
in favor of impeachment, but was not absolutely convinced that
the President may have committed inpeachable offenses--not
merely crimes and misdemeanors, but high crimes and
misdemeanors--will be fairly accused of gross dereliction of
duty and earn the condemnation of history. You stated that, and
I agree with you.
Wouldn't it be fair, however, to also indicate that any
Representative who votes against impeachment, but who is
convinced that the President may have committed impeachable
offenses--not merely crimes and misdemeanors, but high crimes
and misdemeanors--will be fairly accused of gross dereliction
of duty and also earn the condemnation of history?
Mr. Wilentz. Absolutely.
Mr. Chabot. Thank you.
Over the last several weeks we have heard from many
witnesses discussing what constitutes an impeachable offense.
The one thing they all seem to agree on is that reasonable
people can reach different conclusions. So the testimony before
us today does not represent all thought on this important
issue; it represents merely the thought of this particular
panel.
For example, I strongly believe that perjury is a crime
against the state and can constitute an impeachable offense. In
fact, we know that perjury was directly described as a high
misdemeanor at its inception. This has been supported by many
constitutional scholars that have testified before this very
committee.
Now, because most of the witnesses before us today did not
address the facts of this case, I will turn my questions at
this time to Mr. Craig.
Mr. Craig, you have stated that you do not dispute the
testimony of Ms. Currie; is that correct?
Mr. Craig. That is correct.
Mr. Chabot. Now, the President has admitted that following
his deposition in the Jones case, he contacted Betty Currie and
asked to meet with her the following morning. According to Ms.
Currie's grand jury testimony, the President wanted her to
agree with a series of statements that he made during the
meeting. Currie said that they were more like statements than
questions.
According to Ms. Currie, the President made statements
like: You were always there when she was there--meaning Monica
Lewinsky--right? We were never really alone. And you could see
and hear everything, right?
Now, Mr. Craig, isn't it true that the President was trying
to influence the testimony of Betty Currie because he knew that
she might be called to give testimony in a Federal judicial
proceeding; isn't that correct?
Mr. Craig. Congressman, I have actually, I think, responded
to this question earlier before, and I disagree respectfully
with your interpretation of those events.
Let me just say that I hope you will read the document that
we are going to be submitting to you today.
Mr. Chabot. I certainly will read that, but don't you think
that the President, by his statement to Ms. Currie, was trying
to influence her testimony; and wasn't that illegal?
Mr. Craig. I do not. I do not believe that he was trying to
influence her testimony. She was not going to testify.
Mr. Chabot. Doesn't that constitute witness tampering?
Mr. Craig. There was no witness tampering that was going on
there, Congressman. There was no proceeding that could
contemplate that she was going to be called. There was no
reason for him to believe that either the OIC or the Jones
people would be calling her as a witness.
Mr. Chabot. Don't you think it would have been relevant,
whether or not she and Lewinsky--or the President and Lewinsky,
together or alone, wouldn't that be relevant to the ongoing
testimony and investigation?
Mr. Craig. Yes, but the question is whether he was
tampering with the witness, Congressman. I would urge to you
raise this again----
Mr. Chabot. Let me just ask you one final question----
Chairman Hyde. Mr. Chabot, let him answer the question.
Mr. Chabot. I did, Mr. Chairman.
Mr. Craig. I am trying to be constructive, and I am trying
to be helpful and in fact deal with the facts.
I would urge you to raise this, Congressman, with Mr. Ruff
again after you have had a chance to see all the evidence that
we present to you, that we try to explain what happened, how it
happened and how it fits into the law. I think you might well
be convinced that there could not have been any tampering of a
witness here with respect to Betty Currie.
Mr. Chabot. We will look at that with great interest, and I
appreciate your testimony here this morning.
I yield back.
Chairman Hyde. I thank the gentleman.
The distinguished gentleman from Massachusetts, Mr. Meehan.
Mr. Meehan. Thank you, Mr. Chairman. And I would like to
thank each member for coming before the committee and providing
your testimony. I can imagine that given your perspective on
this matter, it can be frustrating to testify before this
committee because it is a foregone conclusion that the majority
of the members of this committee on Saturday will take the
incredibly historic step of voting articles of impeachment to
impeach this President. And there is not a constitutional case
that any of you can provide before this committee that would
change that. There isn't a historical precedent that any member
of this distinguished body testifying before the committee
could present that could change that.
Mr. Craig, I don't think that there is a fact that is in
other parts of the testimony before the grand jury that you
could present to this committee that would change that fact. In
fact, there is nothing that any of the witnesses here today
could say to this committee that would prevent the majority of
this committee from voting to impeach the President of the
United States on Saturday afternoon.
But your testimony is important. It is important that the
American public understand the gravity of what we face. It is
important that the 20 to 30 Republican Members of Congress who
truly have an open mind and are weighing the gravity of what is
before our country, that they hear your testimony and see your
testimony. Because the will of the American people is about to
be ignored in the hope that the people won't care enough to say
anything about it.
Now, Attorney General Katzenbach, you have spoken about the
will of the American people. As of today, 65 to 70 percent of
the American people oppose impeachment, so it is hardly a
surprise that the Members of Congress who are going to vote to
impeach on Saturday have been telling us that public opinion
and public consensus--indeed, the public interest--play no part
whatsoever in this critically important impeachment process. Do
you agree with this perspective on the role of public consensus
in the impeachment process?
Mr. Katzenbach. No, I do not, Congressman. In fact, it
seems to me unusual and very important that the American people
feel the way they feel about the office of thepresidency. It is
a vital fact. And it would seem to me those who wish to ignore it might
recall a quote from Berthold Brecht, which I will paraphrase, saying,
Maybe we should elect a new public.
Mr. Meehan. Well, I would hope--and one of the reasons I
think your testimony is important is because I don't think--as
my colleague from California mentioned, I don't think Americans
have been focused on this. They think the election ended all of
this, and they think we are just going through the motions to
finish this up by the end of the year, and then we will go on
with governing the country in January. But that is not the case
at all.
Mr. Katzenbach. And indeed it should happen.
Mr. Meehan. And it should happen. But the reality is, this
committee will vote to impeach the President on Saturday. I am
struck not by the cases where this committee or the House has a
whole decided to impeach, that is, Watergate and the Andrew
Johnson case, but also I am struck by the cases where we failed
to even commence an impeachment inquiry.
I am talking about such examples as the Iran-Contra
scandal, or to put it in a bipartisan perspective, President
Johnson's deception about the Gulf of Tonkin incident in 1964,
both of which went to the very core of the exercise of
presidential power and at least threatened serious consequences
for the country.
Now, what does a failure to impeach in those instances tell
us about whether we should impeach this President?
Professor Ackerman.
Mr. Ackerman. This is a central concern, because if your
committee goes forward and impeaches President Clinton, the
next time the political wheel turns and we have a Democratic
Congress and a Republican President, will the Democratic
Congress show the kind of restraint that it showed in the case
of Iran-Contra?
Well, I myself will be here saying, you should, but will
they? Will they?
This cycle of incivility, once it begins, will very, very
quickly run out of control. That is why this is a tremendously
important precedent.
And, Congressman Meehan, what you were saying before is
another way of saying, this is a lame duck Congress out of
touch with popular opinion; and if there is a reasonable
disagreement, as to the standards for impeachment, all the more
reason that a lame duck Congress should not be making this
decision.
Chairman Hyde. The gentleman's time has expired.
The gentleman from Georgia, Mr. Barr. Mr. Barr, would you
be generous enough to yield me 30 seconds?
Mr. Barr. Certainly.
Chairman Hyde. I would just like to comment to Mr.
Katzenbach, your great line from Berthold Brecht about maybe we
need to elect a new or better public, I was reminded by counsel
of Lester Maddox's statement about what is wrong with the
prisons, we need a better class of prisoners. Anyway, thank
you.
Thank you, Mr. Barr, for letting me indulge myself.
Mr. Barr. Yes, sir.
Mr. Craig, one of the faults of the White House, I think,
is that they have a tendency, maybe this President personally,
perhaps to break out the champagne or light up the victory
cigar a little bit early sometimes, and I was hoping that that
wouldn't be the case. But your remarks today in one particular
area, among perhaps others, leads me to believe that you all
still need to be a little bit careful.
You keep saying--and you said it in your remarks today--and
others who are defending the President keep saying that Mr.
Starr has cleared the President on Whitewater. That is not the
case. And if you will read his testimony before the Congress, I
think you will readily see that that is not the case. He says
very clearly, with regard to his exposition on Whitewater and
his remarks before this committee and, in particular, regarding
Mr. Hubbell, that that case remains open, that there remain
very troubling questions about it.
So I understand that in your zeal to defend the President,
you would like it to become the reality that Whitewater has
gone away, but it really hasn't; that remains an open case.
When you have talked several times today both in your
remarks, as well as in responses to questions by members of the
panel today, you kept using the words ``evasive and
misleading.'' Somewhere in the recesses of my memory as a
prosecutor those rang a bell, and I went back to the Criminal
Code, and indeed, I found why those rang a bell. They are the
words that are used in both section 1512 of Title 18 of the
Criminal Code, and that is tampering with witnesses that my
colleague from Ohio was talking about, as well as in the
definitions that relate to prosecutions under Title 18, section
1512; and they talk specifically in terms of misleading
conduct.
I think if you will--in the same way that you urged Mr.
Chabot to read the material that you are going to present
later, I would urge you to go back and read the material that
is already there, and that is Title 18 of the United States
Code. I believe, in fact, the President very clearly has met
both the definitional standards for misleading conduct, as well
as the other elements of tampering with witnesses. And we don't
need go into those over and over again. At least we don't here
today. We will in the articles of impeachment, I suspect.
But it may be satisfactory to your defense of the
President, in your mind, that evasive and misleading answers
regarding possible tampering with witnesses, tampering with
evidence and so forth exonerates the President, perhaps in the
same way that you think he has been exonerated on Whitewater.
But the law is quite different. The law is very specific, and
misleading conduct which includes misleading statements and so
forth are very much contrary to the law and, I believe, would
provide a proper basis for an article of impeachment.
I would like to read to you on another matter, or refer you
to the grand jury testimony or grand jury statements of Mr.
Blumenthal. Sidney Blumenthal testified before the Federal
grand jury the final time on June 25th of this year. The
foreperson of the grand jury took the very unusual step of
chastising Mr. Blumenthal because after an earlier appearance
before that same grand jury, he deliberately misrepresented
what had gone on in that grand jury. And then when he was
subsequently called back before the grand jury, he was
chastised directly on page 69 of that grand jury transcript by
the foreperson of the grand jury.
We all know, because it was also testified to under oath,
that Mr. Blumenthal was hired by the President. Has
thePresident fired Sidney Blumenthal? And why hasn't he, particularly
in light of the fact that he has deliberately misrepresented the work
of the grand jury?
Mr. Craig. Congressman, I came here to testify about issues
involving----
Mr. Barr. Has Mr. Blumenthal been fired or is he still on
the public payroll?
Mr. Craig. Of course, he has not. Of course, he has not. I
understand that Mr. Blumenthal and his lawyer have disagreed
with the interpretation and the statements of the forelady as--
--
Mr. Barr. Apparently you and the President do not?
Mr. Craig. This is a matter that I think should be resolved
between Mr. Blumenthal and his attorney and those----
Mr. Barr. Well, it might be nice in your mind to
compartmentalize these things, but I think it also indicated
that you are not here today to provide complete and truthful--
without any trivialization context--answers today.
Chairman Hyde. The gentleman's time has expired.
The gentleman from Massachusetts, Mr. Delahunt.
Mr. Delahunt. Thank you, Mr. Chairman.
You know, earlier my friend and colleague from North
Carolina, Mr. Coble, raised the issue of censure. And the
response--I think he framed it in terms of a censure, rebuke,
reprimand, condemnation, whatever, plus a fine; and I don't
want to leave that particular issue in terms of--I know, or I
think it is well known that I and other members of this
committee, Democrats, intend to raise that issue during the
markup. And I would just simply--and I am going to direct this
question to everyone but Mr. Craig, and maybe one of you will
take it.
There is historical precedent for censure, and I suggest it
would not be meaningless. I suggest it would be constitutional;
I suggest that we did have a hearing on this matter. It was
raised during a subcommittee chaired by the gentleman from
Florida, Mr. Canady.
I want you to know that I surveyed those 19 scholars by way
of a questionnaire. The majority of those scholars indicated
that it was constitutional and would be appropriate for this
committee to consider.
I would like to hear disagreement or agreement from any
member of the panel as to those statements I just made.
Mr. Ackerman. I agree that there is no constitutional
problem with censure.
Censure is not a meaningless thing. For example, the
Senate's censure of Senator McCarthy in the 1950s was a very
significant act that crystallized the moral sentiment of the
Nation. I do believe, however, that a fine is a bill of
attainder.
Mr. Delahunt. Professor?
Mr. Wilentz. I am not crazy about censuring a President as
opposed to a Senator. I am not crazy about it for the reasons
that Andrew Jackson stated in 1834, that it raises a
possibility of a kind of danger to the separation of powers.
However, that is a principle above and beyond the Constitution.
There is no constitutional bar to censure. Anyone who
proposes that has simply not read the Constitution clearly
enough, because there is simply no bar to it anywhere there.
You may censure by resolution anyone you care to, just as you
can pass a resolution on virtually anything under the sun.
Mr. Delahunt. I am going to direct this to Mr. Craig.
There has been, in response to the question by the
gentleman from South Carolina, Mr. Inglis, and he was
suggesting that when the American--when the President appeared
on TV and spoke to the American people that he misled and, in
fact, he did lie to the American people.
Let me just state that we have had previous American
Presidents--I think my colleague to my right referred to Lyndon
Johnson in terms of the Gulf of Tonkin resolution. During the
course of our history, we have seen President Eisenhower lie to
the American people about the U2 incident. President Franklin
Roosevelt lied regarding lend-lease. It has been suggested very
strongly that both Presidents Reagan and Bush lied to the
American people regarding Iran-Contra.
I would suggest, and I can understand in legal proceedings
such as civil depositions or grand jury hearings, proceedings,
that legalisms and legalistic language are absolutely important
when one feels that they are being unfairly treated or
improperly prosecuted. At the same time, Mr. Craig, I would
suggest that the American people do believe that the President
of the United States on that occasion lied to them, and I would
suggest that he should be censured for that particular
occasion, and I would urge you to go and discuss that matter
with the President.
Chairman Hyde. I thank the gentleman. The gentleman's time
has expired.
The gentleman from Tennessee, Mr. Jenkins.
Mr. Jenkins. Thank you, Mr. Chairman.
Professor Wilentz, I have listened to the entire panel, and
I have listened carefully to your testimony. Now, not one
panelist, save perhaps the President's counsel, has refuted any
facts that are before this committee in this case. And in your
case and in your testimony you did not refute one fact about
the allegations of perjury that are before us, about the
allegations of obstruction of justice that are before us, or
about the allegation of abuse of power.
So we need to remember, at least here this morning, that
what we are dealing in and what you came armed with is a bunch
of opinions. And like they say back in Tennessee, everybody's
got those.
But you will agree with all those statements, will you not?
Mr. Wilentz. Except for the last one. There is a difference
between opinion and scholarship. Anybody can have an opinion.
What I reported here has to do with scholarship, which goes
beyond that.
Mr. Jenkins. Well, if there are learned opinions to the
contrary, then they would balance one another out as far as
this committee is concerned; is that correct?
Mr. Wilentz. I should hope not. I don't think they balance
themselves out at all. I think that the opinions expressed here
by a far greater number of historians, for example, than any
number that have come up to stand for the opposite view, is
absolutely clear. There is not an equal division among
historians about whether these charges rise to an impeachable
offense. It is absolutely clear that the majority of American
historians believe that they do not, on the grounds of their
understanding of the Constitution. There are disagreements.
Mr. Jenkins. Well, at any rate, you have voiced your
opinions here this morning.
Mr. Wilentz. I have voiced my scholarly conclusions.
Mr. Jenkins. And you also voiced the opinion that anybody
who voted for impeachment was going to be guilty of gross
dereliction of duty and condemned by history.
Mr. Wilentz. I did not. I said nothing of the kind.
Mr. Jenkins. You did not? Well, what did you say?
Mr. Wilentz. I said anyone who voted for impeachment, who
was not absolutely clear in his or her mind that the President
may have committed an impeachable offense, that would be gross
dereliction of duty. Mr. Chabot agreed with me.
Mr. Jenkins. And if one holds that sincere belief, then, he
would not be guilty?
Mr. Wilentz. Absolutely. Absolutely. If they sincerely
believe--as I said, there are many members of this committee
who sincerely believe that the President has committed
impeachable offenses--you would be derelict if you didn't vote
for impeachment.
Mr. Jenkins. And I believe that you told Mr. Chabot that
anybody who voted no, who held those sincere beliefs, would be
similarly guilty of gross dereliction.
Mr. Wilentz. Anyone who believes the President has
committed an impeachable offense and votes against impeachment
is similarly derelict. Absolutely.
Mr. Jenkins. Now, you testified that at least some perjury
can be an impeachable offense; is that correct?
Mr. Wilentz. Yes, I did.
Mr. Jenkins. And you made some effort to distinguish those
types of perjury and distinguish one type of perjury from
another.
Mr. Wilentz. Uh-huh.
Mr. Jenkins. And my question is where can you show us in
the statutes, where can you show us in the law of this land,
that there are degrees or classes of perjury? Where can you
show us from the statutes?
Mr. Wilentz. I am not an expert or a lawyer. I cannot point
to the statutes with the clarity that you can.
Mr. Jenkins. Well, you had a opinion.
Mr. Wilentz. Yes, absolutely, but it has nothing to do with
the character of the statutes. It has to do with an
understanding of how the framers of the Constitution understood
what were impeachable offenses or not. Under that--under the
Constitution, it is clear that there are crimes that are
impeachable offenses and those that aren't, and perjury in
every instance is not. Only those examples of perjury which
actually attack the vitals of the state, the vitals of our
political system, are impeachable offenses. And I base that on
my reading of the Constitutional Convention of 1787, the
writings of the framers, and the Constitution itself. That's
the point.
Mr. Jenkins. Can you provide this committee with those
distinctions made in that Constitutional Convention?
Mr. Wilentz. Sure. George Mason made it very clear. When he
proposed high crimes and misdemeanors following bribery and
treason, the wording he proposed was crimes against the state.
Chairman Hyde. Gentleman's time has expired.
Mr. Jenkins. Thank you, Mr. Chairman.
Chairman Hyde. The gentleman from Florida, Mr. Wexler.
Mr. Wexler. Thank you, Mr. Chairman. I am struck by each
committee hearing that we have, how more and more this
committee becomes out of touch with the American people and
with what the American people care about, and even with what
the American people see as the offense by the President in
regard to this whole national trauma.
And I think the questions today that best illustrate how
out of touch this committee is with the American people are the
two kinds of questions that are often put and have been put to
Mr. Craig today. And that is: Why, Mr. Craig, as the
President's lawyer, haven't you put forth evidence, put forth
testimony, as to why the President didn't perjure himself
regarding his testimony with respect to Monica Lewinsky?
And a corollary issue, and that is: Why, Mr. Craig, or do
you, Mr. Craig, believe the President or do you believe Monica
Lewinsky when they both said the characteristics of their
relationship? And I believe Mr. Craig's answers today basically
said, respectfully, I believe the President.
But I think what the American people are saying, which I
think is much more pertinent to this hearing is: Who cares? Who
cares where the President did or did not touch Ms. Lewinsky.
Not because they don't care about lying, but they understand
that an impeachment inquiry should not be determined by whether
or not Ms. Lewinsky lied or the President lied or whether they
both lied about where the President may or may not have touched
her.
So in that regard, I think Congressman Meehan's comments
couldn't be more pertinent. This committee's conclusion is a
foregone conclusion. This committee will vote out at least one
count of impeachment. That is a done deal. But for those
Republicans--and if there are some, and I hope and believe and
pray that there are--that still have an open mind, would
Professor Wilentz or Professor Ackerman talk to them, talk to
them about what a Senate trial is going to look like?
I have this vision of Senator Hatch asking Monica Lewinsky
or our esteemed Chairman asking Monica Lewinsky about the
specifics of their relationship or her relationship with the
President and that being determinative of a perjury count.
Would you speak to the American people about what that
Senate trial is going to look like, please? Either gentleman.
Mr. Ackerman. Well, one should first know that at the trial
of Andrew Johnson, no Senator asked any questions. All
questions were asked by the managers of the House. And the
Senate was mute, mum, in a very solemn situation here, which I
would expect would go on for many, many months.
One of the more interesting phenomena would be to see how
the Senators managed this burden of silence. But this isnothing
like we have ever seen. Someone asked me before when I was asked to
testify. The answer is Saturday. But I have been studying impeachments
for many, many years. And I literally tell the American people, you
have no idea of what the Senate trial is going to look like. It will
disrupt the Nation's business, I would expect, for a year.
Mr. Wexler. Disrupt the Nation's business for a year? Would
you agree with that Professor Wilentz.
Mr. Wilentz. I would. And also look around. In the 1868,
there were not the photographers and the film crews and the TV
cameras and media circus that surrounds--that has been
surrounding this proceeding from the beginning. It has gone
beyond a question of simply what is going to happen in the
room. It is what goes on throughout the country. And that to me
is almost as dangerous as what is going on here in this
Chamber. And that is a vast difference from 1868. If 1868 was
like a pebble in the pond, this is going to be like a boulder
thrown into the pond.
Chairman Hyde. The gentleman from Arkansas, Mr. Hutchinson.
Mr. Hutchinson. Thank you, Mr. Chairman. First of all, Mr.
Craig, you mentioned the concern about specificity with regard
to the perjury charges. I just want to let you know what is in
my mind with regard to the perjury allegations. Most of those
are set forth in the Starr referral--allegations of perjury in,
both the grand jury and the civil deposition. But in addition,
I wanted to alert you to an area that I do not believe is
mentioned in the Starr referral and that is in the deposition
testimony of the President in the Paula Jones case. I can't
give you the page citation, but the following statement is made
by the President: ``Because, Mr. Bennett, in my lifetime I have
never sexually harassed a woman.''
I just wanted to alert you and put you on notice that that
statement is of concern to me in terms of a perjury allegation,
and that is something that should be addressed.
Mr. Craig. Could I make one comment, a helpful comment I
would hope? I would hope, Congressman, that when you bring
forward these questions tomorrow afternoon that you don't rely
on the characterizations in the Starr referral as to the
President's testimony, and that you can talk with some
specificity as to what the President actually testified.
Mr. Hutchinson. I've done my own independent review and I
have concerns and I wanted to alert you that this is a new area
that was not mentioned in the Starr referral and I wanted to
give you the courtesy of that notice.
In response to questions by Mr. Chabot, you indicated that
the President had no reason to believe that the OIC or the
Jones attorney would call Betty Currie as a witness; therefore,
she was not in a position to be tampered with.
But I just wanted to alert you to the deposition testimony
of the President in which the name Betty Currie was mentioned
over 20 times. And, in fact, there was a statement by the
President at that time in reference to Betty Currie that
``those are questions you'd have to ask her.''
And so, was not the gauntlet set down by the President that
Betty Currie is a relevant witness? He even said that the Jones
lawyers need to question her. And then subsequent to that
suggestion, he goes back to Betty Currie and goes through that
series of questions that every lawyer and every layperson would
have some concern that is tampering or coaching, particularly
when you are talking about a President of the United States
with a subordinate employee.
So that is a concern of mine. And I think there is a notice
there, would you agree, that the President fully was aware that
she would likely be a witness to the OIC lawyers?
Mr. Craig. Well, I disagree with the premise that she was
likely to be a witness. In the President's mind, he had no idea
that the OIC at that point was conducting an investigation that
might include Betty Currie as a witness. And if you are
talking, Congressman, about his state of mind, which is an
important element in the category of crime that you are talking
about, that element was certainly not there at that time. And I
would hope you would raise this issue with Mr. Roff after you
have had a chance to take a look at our presentation.
Mr. Hutchinson. That is of great concern to me. A third
area that I wanted to ask you about is the response of the
President to the Starr referral. And in that response in
conclusion number 8 at the very beginning of the executive
summary it states: ``The President has admitted he had an
improper sexual relationship with Ms. Lewinsky.''
Can you point to any testimony of the President under oath
in which he admitted to an improper sexual relationship with
Ms. Lewinsky?
Mr. Craig. I think it is clear in--his testimony in front
of the grand jury, Congressman, is tantamount to admitting that
he had an inappropriate, intimate, sexual relationship with Ms.
Lewinsky.
Mr. Hutchinson. The language that he used in the grand jury
was that he had an inappropriate intimate relationship with Ms.
Lewinsky. Is that the correct language that the President used?
Mr. Craig. I think it was clear what he was testifying
about.
Mr. Hutchinson. Come on, don't give me word games.
Mr. Craig. That is the language. The record speaks for
itself.
Mr. Hutchinson. Is that not the precise language that was
used? The President was very careful in his words that it was
an inappropriate intimate relationship.
Mr. Craig. Yes, you are right.
Mr. Hutchinson. He was careful to stay away from the term
``sexual relationship,'' because if he had said ``sexual
relationship,'' it would be totally inconsistent with his
previous testimony. And yet the lawyers come out and say the
President has admitted he had an inappropriate sexual
relationship with Ms. Lewinsky and there is no evidence in the
record to support what the lawyers are saying; is that correct?
Chairman Hyde. The gentleman's time has expired. The
distinguished gentleman from New Jersey, Mr. Rothman.
Mr. Rothman. Thank you, Mr. Chairman. I would like to make
two brief comments and then ask a question. With regards to the
rule of law which we all care about, isn't it a fact that if
the President--President Clinton has violated the law, that not
even he, the President, can get away with it? President Clinton
can be sued civilly and criminally for any conduct at issue. He
is not above the rule of law. We can hold him to the law.
Therefore, no matter what decision this committee or this
Congress makes about impeaching President Clinton, the world
will know and our children will know that the rule of lawdoes
exist and does apply in America to every American, even the President,
because the President can always be sued civilly and criminally for his
conduct.
But what we are talking about here is whether additionally
as another punishment, the President should be impeached and
removed from office. And on that the Constitution provides us
the standard of treason, bribery, or other high crimes and
misdemeanors.
We will be faced with impeaching the President for only the
second time in our history and removing a President for the
first time in our more than 200-year history.
I want to address the business about the 81 questions and
about contrition, because everyone says how evasive the answers
to the 81 questions were. Let me read to you, because not all
of my constituents had a chance to read the President's
answers, a little bit of what he said. This is what the
President said: The fact that there is a legal defense to the
various allegations cannot obscure the hard truth, as I--the
President says--as I have said repeatedly, my conduct was
wrong. It was also wrong to mislead people about what happened
and I deeply regret it.
That is what President Clinton said in his answers to the
81 questions. He used the word ``admitted'' and ``misleading''
four times. He apologized in the 81 answers three times. He
said he regretted what he had done once more in the 81 answers.
So if you are looking for contrition in the 81 answers, my
friends, it was there if you only looked for it.
Now, here is my question, the question for Professor
Ackerman. If, in fact, despite your belief as to what should
happen, the lame duck Congress' actions are accepted by the new
Congress, can the Speaker of the new House alone, without a
vote of the Congress, appoint the managers, the impeachment
managers?
Mr. Ackerman. No.
Mr. Rothman. And why do you say that?
Mr. Ackerman. This is a most solemn decision to allow the
House to proceed with this inquiry. It would be an
extraordinary abuse of the House for a single person to take
upon himself this responsibility. Especially when, if he did it
by himself, this would indicate that he didn't have the support
of a majority of members. Because, obviously, anyone who did
have a majority vote would put this matter up to the House.
Mr. Rothman. Do you or any other member of the panel have
any precedents or constitutional basis for that answer?
Mr. Ackerman. Yes.
Mr. Rothman. Please provide it.
Mr. Ackerman. That is to say that in the impeachment of
Andrew Johnson, the managers were selected by the House.
Mr. Rothman. By a vote of the House of Representatives?
Mr. Ackerman. Yes, yes.
Mr. Rothman. Thank you. I yield back.
Chairman Hyde. I thank the gentleman. The gentleman from
Indiana, Mr. Pease.
Mr. Pease. Thank you, Mr. Chairman, I have a couple of
questions and a brief thought. Professor Ackerman, when
presentation was made this morning on standards for impeachment
and there was some discussion about whether perjury or related
crimes of truthfulness under oath were considered, that even if
we accept--if we accepted that standard as a standard for
impeachment, that the history of the last 60 years since the
adoption of the 20th amendment would be littered with bills of
impeachment. Your words.
Can you, either today or at some point, provide us those
examples of Presidents or judges or Vice Presidents who lied
under oath and were not subject to consideration for articles
of impeachment?
Mr. Ackerman. One should remember that lying under oath is
not the only high crime and misdemeanor. There are many other
activities of the Presidents of the United States. For example,
to choose a very striking example, Franklin Roosevelt's abuse
of his authority in the lend-lease matter.
Mr. Pease. I understand the point, but my question----
Mr. Ackerman. Which could also be a high crime and
misdemeanor. What I said is it would be littered with
impeachments. If we have a relatively low standard of
impeachment, there are many questionable things that people in
good faith would think rise to the level of high crime and
misdemeanor, and it is an act which would be this engine of
continuing bills of impeachment.
Mr. Pease. I appreciate your clarification, because I
understood you to say that if lying under oath was the
standard, that our history would be littered; and that was not
your intention.
Mr. Ackerman. Thank you.
Mr. Pease. Thank you. Mr. Katzenbach, you discussed
particularly with regard to the Andrew Johnson impeachment,
your understanding that high crimes and misdemeanors were at
least in part determined by the public's understanding that the
official was no longer able to continue effectively in office.
Did I understand you correctly in that?
Mr. Katzenbach. Let me rephrase it so that we are at least
on the same wavelength.
Mr. Pease. Please.
Mr. Katzenbach. I believe that when you have an unpopular
President, there is a question when the public believes that he
ought to be impeached as well as the House believes he ought to
be impeached, that it is very difficult to separate out the
conduct for which he is being impeached from the fact that he
is very unpopular.
What you have in this situation today is an absolutely
unprecedented thing as far as I know, and any historian can
correct me, but here you have a President acknowledged by the
public of all of the facts that you have been raising, most
which I think are totally irrelevant, and the question as to
whether or not those amount to a high crime and misdemeanor.
And the public is saying no, it doesn't. We have confidence in
this man as President.
I think that is an absolutely unique situation. You can
take a different view, sir, but if you do, you should have a
reason for it. You should have a reason that--evidence that
says the public has lost confidence in this man despite what
they say, despite the elections, despite the polls.
Mr. Pease. I understand, and I appreciate your
clarification as well.
One closing thought, Mr. Chairman. Last week one of the
witnesses impugned both the perceived collective motive of the
House and of individual Members. Today another witness did the
same in his accusations of a cavalier attitude among Members on
this difficult subject, or a disregard for the letter and
spirit of the Constitution and more.
There are Members of this committee of this House who have
been scrupulously careful, often at the expense of attack from
across the political spectrum, to reserve judgment in this
matter, to listen carefully and respectfully, to avoid partisan
attacks, and to do their duty as they see it.
I still believe there are Members, despite the attacks, who
will try to do the right thing in an atmosphere of civility and
respect, and words like those heard today make it more
difficult for us to do so.
Chairman Hyde. I thank the gentleman.
The gentleman from Wisconsin, Mr. Barrett.
Mr. Barrett. Thank you, Mr. Chairman.
First, I would like to associate myself with Mr. Pease's
final comments. I think that we would all be well advised if we
could stick with the issues here. Obviously there are very
explosive issues at play here, and to the extent to which we
can have civility here, I think that is important.
The President's actions were wrong. Everybody knows that.
The question is how he should be held accountable. And I
believe that censuring the President is an appropriate
sanction, because I think it reflects the gravity of what he
did. At the same time, it does not, I think, divide this
country in a way that it need not be divided.
I long ago gave up any notion that this chapter of our
history would have a happy ending; I long ago gave up any
notion that people would be pleased by my actions or our
collective actions; and I long ago gave up any hope that people
would look at the process in this committee and view it in a
favorable light.
So what do we have left? All we have left and all we can
really salvage out of this is, what is the best thing for this
country? And it is not good for this country to go through a
trial where we will call Monica Lewinsky and have her talk
about her intimate relationship with the President of the
United States. It is not good for this country to call Linda
Tripp forward. It simply will not do anything positive, in my
mind, for this country. It will further divide this country and
make people more suspicious of government. And if that is what
people want, that is what they are going to get.
Now, today we have had a fine panel here, and I would agree
with Mr. Canady that we don't have a lot of new news, other
than, frankly, Mr. Ackerman's statement which I consider
something of a blockbuster in terms of where we are going to
go. I see now for the first time the possibility that the House
of Representatives could pass articles of impeachment and, 3
weeks later, refuse to reappoint managers to prosecute that
case. The question is whether there is precedent for that. In
both the Judge Louderback case and in the Judge Hastings case,
Congress, not by the action of the Speaker of the House, but by
action of the full House, reappointed those managers.
Mr. Ackerman, my question for you is, from a constitutional
standpoint, if on December 17th or 18th we pass an article or
articles of impeachment; and on January 3rd, 1999, this House
refuses to reappoint those managers, what is our procedural
setting?
Mr. Ackerman. Well, I am afraid it will be a terrible
precedent for the impeachment process, because one day there
will be a President who deserves to be impeached, and a public
demonstration, unique in our history, of to'ing and fro'ing.
Rushing to judgment in a lame duck session and then refusing to
go forward will--or may, I hope not--discredit the weapon when
it may be needed.
Mr. Barrett. But we have a situation now--and all of us in
this room now understand it--that the claims were, prior to the
election, that the Democrats wanted to have this done by the
end of the year because we thought we were going to lose seats,
and that the Republicans wanted to drag it out beyond the
beginning of the next Congress because they would gain seats.
Obviously, reality dealt a severe blow to both of those
theories, and now they are turned on their head.
But we do have a real possibility that we could have this
Congress impeach this President, and 3 weeks later the case
could completely fall apart. And I would argue to you and to my
fellow members on the committee that that would be even more of
a disservice to this country and that we should move towards
censure, we should resolve this in this committee, and we
should get back to doing the people's business, because that is
what the people want.
Mr. Ackerman. I am not here as a witness for the President.
My teacher, Alex Bickel, once said, ``A scholar is like a bus.
He goes from place to place, and people get on and get off
whenever they want to.''
My mission here was to alert you to real and serious
constitutional questions. I would hope that if----
Mr. Barrett. Excuse me, I don't mean to interrupt you.
Could the Senate--because obviously we would have to
reauthorize payment for this--could the Senate pay for the
House managers to act, or could the Senate pay for the House to
proceed if the House refuses to pay, as was the case for the
two judges where the House authorized----
Chairman Hyde. The gentleman's time has expired. We will
have to hold that in dire suspense.
Mr. Barrett. Mr. Chairman, if I could make one unanimous
consent request. I have a document that I am going to present
to the committee that writes to the CRS and asks them to
clarify this issue of what would happen if the managers were
not reappointed. And I would ask unanimous consent that that be
made part of the record.
Chairman Hyde. Without objection, so ordered.
[Information not available at time of printing].
Chairman Hyde. The gentleman from Utah, Mr. Cannon.
Mr. Cannon. Thank you, Mr. Chairman.
First of all, I would like to associate myself with the
comments by Mr. Pease, and Mr. Barrett to the degree that he
was dealing with the issue of demeanor.
And let me say, Mr. Craig, staff has informed me that they
thought you have come across very well on television, and I
frankly appreciate that. I think that the tone with which we
approach this problem, which is a very important problem, is
more than just a little bit significant.
Now, especially because some of the issues are frankly
quite difficult. For instance, Mr. Craig, you said today that
the President did not violate his oath, by which I think you
are saying that he didn't commit perjury, because he didn't
intend to lie in either the grand jury or the Paula Jones case.
Of course, no one personally or through counsel ever admits to
felonious activity outside the context of plea bargaining. So
we, as the Judiciary Committee, are sort of left to figure out
what the truth is here; and we are looking for corroborating
evidence or evidence that undermines this problem of what the
President intended. And ultimately, that is a criminal
standard, I agree. But in informing our consciences, I think it
is important that we have corroborating evidence.
Mr. Coble referred to the intimate touching, and you
characterize this as a ``he said, she said,'' sort of back-and-
forth conflict. But you today have also characterized the
President's position as having acknowledged an intimate
relationship, and used a lot of other words--``sinful,''
``wrong.'' You use the term ``wrong'' in a different case--
``inappropriate,'' ``improper''--and you went on to say that
the President has misled family, friends, colleagues and the
Nation, et cetera.
It seems to me that, as we have to struggle with this
rather sordid question of whether or not what the President's
activities were in the context of what he said, that that
statement of intimacy, the statement about wrongness has to
lead me to believe that he is not telling the truth about these
very fine distinctions that he is making; that, in fact, he
committed perjury.
Would you speak to that? And in particular, does the
President believe, or has he said to you, and I recognize the
problem of being his counsel, and you should speak from your
own knowledge, either that she touched the President intimately
or that he touched her intimately in the sense of the
definition of sex in the Paula Jones case?
Mr. Craig. I think the issue that was identified in Mr.
Schippers' report, which adopts only one of the three
allegations in the Starr referral and identifies that as the
key question in the grand jury testimony, is that it has to do
with whether or not the President, when he was having contact
with Monica Lewinsky, whether--the President engaged in certain
intimate touching with clothing or without clothing.
And at that point, I think I say and I think I say
correctly, Congressman, that she said he did, and he says he
did not with respect to that one aspect of their activity. That
is key to the perjury issue which I think would be tried on the
floor of the United States Senate if this were referred over to
the Senate.
Mr. Cannon. Mr. Craig, someone testified before this
committee, particularly Professor Saltzburg last week, that the
proper method of dealing with any particular untruth by the
President in the Jones lawsuit is to leave that issue for Judge
Wright. Do you agree with that?
Mr. Craig. I'm sorry, I didn't understand everything you
said.
Mr. Cannon. A lot of background noise here.
Do you recall that some have testified previously,
particularly Professor Saltzburg last week, that the proper
method of dealing with any particular lying by the President in
the Jones lawsuit is to leave that issue to Judge Wright? Do
you concur with that?
Mr. Craig. That is traditionally the way allegations of
lying in civil depositions have been taken care of. In fact,
the practice in the U.S. Attorney's Office, much to my regret,
because I've been a civil practitioner where the other side has
offered false testimony. I have referred such cases to the U.S.
Attorney's Office, and routine by matters they don't take them
up such cases and prosecute them. It's left up to the civil
judge to handle.
Mr. Cannon. Thank you, Mr. Chairman.
Chairman Hyde. Thank you, sir.
The gentleman from California, Mr. Rogan.
Mr. Rogan. Thank you, Mr. Chairman. And I thank all of the
witnesses for their patient and able presentations this
morning.
First I want to note the comments of my dear friend from
New Jersey, Mr. Rothman, a few minutes ago where he made the
very correct point that a President is not above the law,
because he can be sued in civil court. And that's exactly what
this whole case is about.
Let me dispel the myth that is out there among some people
that a bunch of lawyers just showed up one day and began to
inquire into the President's personal life. That was not the
case. The President of the United States was a defendant in a
Federal civil rights sexual harassment lawsuit filed by Paula
Jones. And despite his objections to answering questions about
potential conduct he may have engaged in with female
subordinate employees, the judge ordered him to answer certain
questions under oath because the judge found that it might show
a pattern of conduct if his answers were in the affirmative.
The judge found that Paula Jones was entitled to that
information in pursuing her sexual harassment lawsuit.
Mr. Craig, you are in a somewhat unenviable position,
because I understand you have to be the President's
representative. I promise not to shoot the messenger, but I
want to know. Within that framework, does the President of the
United States support Federal sexual harassment laws that are
on the books today?
Mr. Craig. Of course he does.
Mr. Rogan. Does the President believe those laws should be
vigorously enforced?
Mr. Craig. Yes, he does.
Mr. Rogan. Does he also believe that these laws properly
rise to the level of a civil rights action in Federal court?
Mr. Craig. Well, I have to tell you, at this point I am
moving beyond my conversations with the President, so I can't
tell you with any authority what his views are on that. I would
just be speculating, Congressman, at this point.
Mr. Rogan. Do you think the President believes that the law
is correct in allowing women who have been victimized in the
workplace to obtain discovery about patterns of conduct from
employers who are victimizing women?
Mr. Craig. I think he would have no dispute with that
proposition.
Mr. Rogan. I am assuming the President also believes that
women in the workplace ought to be able fully to prosecute
their claims against harassing employers.
Mr. Craig. I think he would take that position as well.
Let me explain one thing that happened that I'm sure you're
familiar with. When he walked into that deposition, he was
handed a three-part definition of sexual relations which then
got debated between counsel, and then got changed by the
court--by the judge--and then got applied by the President as
he was asked questions.
Mr. Rogan. I am aware of the President's contention in that
regard.
General Katzenbach, let me turn to you for a moment. You
are the distinguished former Attorney General of the United
States who has prosecuted a number of cases on behalf of our
country. What do you think the impact is to women who have been
victimized in the workplace if Congress accepts the notion that
lies in court are acceptable, if the lie is about sex in a
civil rights action because somebody might be embarrassed by
telling the truth. Does that have a negative impact or a
positive impact on women in the workplace?
Mr. Katzenbach. If you were talking in the context of
impeachment, I don't think it has any relevancy at all or any
impact at all.
Mr. Rogan. Let's just talk about it in terms of the rule of
law. What impact do you think that has?
Mr. Katzenbach. If all we were talking about was the rule
of law, we are talking about cases in civil or even criminal
courts, then I think it would have a very negative impact if
this committee in that context were to ignore the actions by
anybody in the government, including the President.
Mr. Rogan. And----
Mr. Katzenbach. If you're talking in an impeachment
proceeding----
Mr. Rogan. I have to interrupt because my time is very
limited.
Mr. Katzenbach. Well, it's my time, too.
Mr. Rogan. Well, actually it's my time, and I'm sharing it
with you.
Mr. Katzenbach. It's your time, and am I permitted to ask
questions? How----
Chairman Hyde. It sounds like Rudy Vallee starting his
theme song.
Mr. Rogan. General Katzenbach, under the law, if somebody
responds under oath in court to a material or relevant
question, ``I don't remember,'' and in fact they do remember,
that would be lying under oath or perjury, wouldn't it?
Mr. Katzenbach. I would think if, in fact, they did
remember, and it was a material matter in it, that would be
lying, would be perjury, yes.
Mr. Rogan. The President was asked this question, ``So I
understand your testimony, it was possibly that you were alone
with her, but you have no specific recollection of that
happening?'' He gave this answer: ``Yes, that's correct.'' If a
court found that to be material and relevant, that would be
perjury?
Mr. Katzenbach. It would be perjury. I can't imagine
anybody ever prosecuting, but it has nothing to do with
impeachment.
Chairman Hyde. The gentleman's time has expired.
Mr. Rogan. Thank you, Mr. Chairman.
Chairman Hyde. The gentleman from South Carolina, Mr.
Graham.
Mr. Graham. Thank you, Mr. Chairman.
My understanding is that Mr. Ruff is going to handle most
of the factual disputes.
Mr. Craig. I've tried to handle those questions that have
been asked of me, Congressman, but, yes, you're correct.
Mr. Graham. Well, we've had a conversation before, and I
want to say, as a lawyer, I think you're a fine lawyer, and the
President's lawyers have done a very good job.
And the comment about being a potted plant Congress, I
don't think that any of us here have taken this too lightly. I
don't know about the other folks, but I think I have aged a
little bit.
I am not a potted plant. I have looked at the President's
deposition testimony. I have read his grand jury testimony.
Well, I guess I have looked at him testifying before the Paula
Jones deposition because it's videotaped. I have read all the
relevant witnesses' testimony at least once or twice, and to be
honest with you, I think if you had an open-minded potted
plant, I could convince him that he's committed perjury, but
that's just where I am at on this thing.
Now having said that, one thing that bothers me the most
about what we're doing here is that there's people listening
that may get confused about what they should do. If we can't
agree on anything else as Republicans and Democrats, let's
agree on this: If you are ever called in to testify, and you
promise to tell the truth, the whole truth, and nothing but the
truth, don't do what the President did, because some people may
not understand what you're trying to do.
Don't ever get yourself in this position. It's just simply
not worth it, because some people may believe that there is
really no difference between willful misleading than just flat
out lying, and you're going to get yourself and the law in
trouble.
And that's what worries me the most, that we are sending a
terrible message to young people and anybody else that is going
to associate themselves with the law.
Let me ask one question, Mr. Craig. When the Presidentleft
his deposition on January the 17th, I believe, he did mention, you need
to ask Betty at least once. And I believe that he knew that Betty
Currie was likely to be a witness because he suggested that she be
asked questions at least by the Paula Jones lawyers. She tells us a
series of statements made by the President. One of them was supposedly,
according to her testimony, this is the President to Betty Currie,
``She wanted to have sex with me, and I couldn't do that.'' What did he
mean there?
Mr. Craig. I don't know how to answer that question.
Mr. Graham. Would you go ask him, because that's important
to me, and I'm going to tell everybody here at the end of this
hearing what I think was going to happen without this blue
dress and the stain on it to this young lady, and it was not
going to be pretty.
I yield back the balance of my time.
Chairman Hyde. The gentlelady from California, Mrs. Bono.
Mrs. Bono. Thank you, Mr. Chairman. I, first of all, want
to thank the panelists for their patience. It seems I always
have to thank everybody, being the last person here.
I have to tell you that, as you know, I'm one of the few
nonlawyers on this committee. What my colleagues enjoy about me
is that I am a nonlawyer. I sit there and I've watched the
tapes with them. They actually watch my reactions to it.
As I watched the President's videotaped deposition in the
Paula Jones case, which I saw after watching his testimony
before the grand jury, it hit me very, very hard. I know that
no Americans have seen that tape, except for a very select few.
Whether I reacted perhaps to perjury or just watching my
President lie to me personally, I didn't know at that point.
And over time, I have come to the conclusion that it was
perjury, and it bothered me a great deal. I won't be labeled a
zealot because I do believe it was perjury. I do believe it is
wrong. And I will not have a problem supporting that article of
impeachment.
My question really is for Mr. Craig. As the last person
here, I have to sit here and listen to 36 other Members and
come up with a question that nobody else has asked, which is
very difficult. It's a very simple one, yet I think it's very
complex, and it's one that most of America is asking. That is,
Mr. Craig, do you have small children at home?
Mr. Craig. I do.
Mrs. Bono. What do you tell them? How do you explain to
them that your President has lied and that it's okay?
Mr. Craig. Oh, I tell them it's not okay to lie,
Congresswoman. I say that it's the most important thing in the
world to tell the truth all the time.
Mrs. Bono. The whole truth and nothing but the truth?
Mr. Craig. The whole truth. And I tell them that one of the
reasons that the President is in such trouble is that he did
not. He misled the American people, he misled his family, he
misled his colleagues, and that was wrong. And the President
should have admitted that it was wrong much earlier than he
did. He should have made full disclosure earlier, and he did
not, and that was wrong.
Mrs. Bono. But----
Mr. Craig. That's a very important lesson for the children
of this country, I think.
Mrs. Bono. All right. Let me jump in here, if you will. I
don't understand. There's also a difference perhaps between
that and then again under oath before a court. Did he mislead
the court?
Mr. Craig. If he did mislead a court under oath, that would
be wrong. It would be unlawful. That is for a court of law, a
criminal court of law, to resolve with all the protections that
a court provides to a defendant, and most people that are
working with the President in the defense believe that such an
outcome is a very likely possibility in the future.
Mrs. Bono. Thank you. I understand that. I think this is
the hardest thing for me, for any parent, that we have looked
at, we have seen. I thank you for your honest answer. I yield
back the balance of my time with that.
Chairman Hyde. I thank the gentlelady.
And we have reached the end of the questioning. And before
I dismiss the panel, I will indulge myself, because I have not
availed myself of the opportunity.
And if I might, in the vast literature of impeachment to
which many of you have made a significant contribution,
occasionally you run into something that strikes you as
particularly salient, a gem, so to speak. And I would like to
read from a gem that I discovered in the literature of
impeachment.
``What is unique in the history of the Presidency about
this scandal is the long list of potential criminal charges it
involves. Even before the various investigations were
concluded, it appeared likely that the President and his allies
had engaged in a multitude of indictable activities, among
others: in perjury and subornation of perjury, and obstruction
of justice, and destruction of evidence, and tampering with
witnesses, and misprision of felony, and in conspiracy to
involve government agencies in a subsequent cover-up, all of
which now prove beyond doubt means that the President himself
has conspired against the basic processes of democracy.''
Here's the interesting part. That was interesting; this is
really interesting. ``Such transgressions must not be forgiven
and forgotten for the sake of the Presidency, but rather
exposed and punished for the sake of the Presidency. Excessive
respect for the office should not deter us from pursuing
justice this way. I would argue that what the country needs
today is a little serious disrespect for the office. Nor should
we be satisfied with watered-down, slap-on-the-wrist
alternatives. Censuring the President for the crimes in
question is not enough, since the continuation of a lawbreaker
as chief magistrate would be a strange way to exemplify law and
order at home or to demonstrate American probity abroad. No, in
the end only the decisive engine of impeachment is
appropriate.''
Those words have a resonance for me, especially since they
are written by Arthur Schlesinger, Jr. in 1973 in his book The
Imperial Presidency, discussing the men who had the unfortunate
characteristic of being a Republican. But, nonetheless, I
thought that was very interesting, and I share it with you
because he's one of those 400 eminent historians whose view
today has modulated somewhat.
In any event, we are all in your debt. Thank you very much.
Mr. Katzenbach. But he is not a lawyer.
Chairman Hyde. But he's a historian. That's better, isn't
it, Mr. Katzenbach?
Mr. Katzenbach. Only in some views. I don't share that view
myself.
Chairman Hyde. I don't either. That's all right.
Mr. Wilentz. Watch it.
Chairman Hyde. Thank you very much.
Ms. Jackson Lee. Mr. Chairman.
Chairman Hyde. Oh, yes, the gentlelady asked me if I would
mention to the viewing audience not in the room that
occasionally, because we are going straight through lunch and
we're going straight through dinner, Members find it incumbent
to leave the room for one of several reasons, and that they are
watching the proceedings on closed circuit television and not
missing a beat. So please don't think the worst if a chair is
vacant for a little period of time.
Ms. Jackson Lee. Thank you, Mr. Chairman. I also have an
inquiry about questions that remained unanswered for this
panel. I'm wondering if the same rules are in play that these
individuals might provide answers to questions in writing for a
period of time.
Chairman Hyde. I would say it's up to the panel. If you
write them, I am sure they would be happy enough to answer
them.
Ms. Jackson Lee. Would those answers be able to be
submitted in the record?
Chairman Hyde. If the record is still open and we get them
in time, yes. And if not, we'll find some way to put them in
the Congressional Record.
Ms. Jackson Lee. Thank you, Mr. Chairman. I thank the
panel.
Chairman Hyde. I thank the panel for a great contribution,
all of you. Thank you.
Mr. Canady. Mr. Chairman, I have a unanimous consent
request.
Chairman Hyde. Yes, sir.
Mr. Canady. I ask unanimous consent to place in the record
a statement by Professor Walter Berns, Professor Harvey
Mansfield, and Professor Doug Kmiec concerning the subject of
the testimony today.
Chairman Hyde. Without objection. So ordered.
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Mr. Barr. Mr. Chairman.
Chairman Hyde. The gentleman from Georgia.
Mr. Barr. I ask unanimous consent to submit a letter for
the record to me by Judge Griffin Bell.
Chairman Hyde. Without objection, so ordered.
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Chairman Hyde. I hope our second panel is here and ready.
The committee will come to order, please. Ladies and
gentlemen, our second panel is composed of three very
distinguished former Members of Congress, the Honorable
Elizabeth Holtzman, the Honorable Wayne Owens, and Father
Robert Drinan.
Would the three of you please rise and take the oath.
[Witnesses sworn.]
Chairman Hyde. Let the record reflect the witnesses
answered the question in the affirmative. And first we will
hear from the Honorable Elizabeth Holtzman, a former
Representative of New York and a member of the House Judiciary
Committee during the 1974 impeachment proceedings and for some
years thereafter. I had the great pleasure of serving with her
as well as with Father Drinan.
The Honorable Robert J. Drinan, Society of Jesus, a
professor of Georgetown University Law Center, former
Representative from Massachusetts and member of the House
Judiciary Committee from 1971 to 1981.
The Honorable Wayne Owens, a former Representative from
Utah and a member of the House Judiciary Committee during the
1974 impeachment proceedings.
You're each recognized--we'll go from Ms. Holtzman, Father
Drinan, to Mr. Owens--for a 10-minute statement, and then we
will go into the 5-minute rule for questions.
So Ms. Holtzman.
TESTIMONY OF HON. ELIZABETH HOLTZMAN, FORMER MEMBER OF CONGRESS
FROM NEW YORK; HON. ROBERT J. DRINAN, S.J., FORMER MEMBER OF
CONGRESS FROM MASSACHUSETTS; AND HON. WAYNE OWENS, FORMER
MEMBER OF CONGRESS FROM UTAH
TESTIMONY OF HON. ELIZABETH HOLTZMAN
Ms. Holtzman. Mr. Chairman, members of the committee, I
thank you for the privilege of appearing before you on this
historic day and hope my experiences as a member of the House
Judiciary Committee during Watergate will be of assistance to
you and the Members of the House in your deliberations.
Let me begin by saying, Mr. Chairman, that I welcome the
opportunity to appear before you. While we had our
disagreements when we served together in the House, I always
had tremendous regard for your ability to be thoughtful and
open-minded. It was a pleasure to serve with you. These very
qualities are what the committee sorely needs now.
Nearly a quarter of a century ago, sitting where you are
now, I never imagined in my lifetime that we would see another
impeachment proceeding. I am saddened to be here today. I love
this committee, I love the Congress, and I love my country. But
if this committee and the House vote along party lines for the
impeachment of President William Jefferson Clinton on the
information presently available, the credibility of the
committee and the Congress will be severely damaged for a long
time.
This impeachment will be viewed by the Nation and by
history with as much disapproval of that as that of Andrew
Johnson. I know that many on this committee and many in the
country believe the President's conduct to be reprehensible and
unacceptable. I do not disagree, and I am not here to excuse
that conduct. Let us remember, however, that the goal of
impeachment is not to punish a President, but to protect the
Nation. Impeachment now will punish the Nation, not protect it.
Consider how much the country will be harmed by an
impeachment trial in the Senate if the House votes any articles
of impeachment. The trial, which could last for months, will
disrupt the workings of the Supreme Court. The Chief Justice
will have to preside every day over the Senate trial. It will
disrupt the workings of the Senate. It will disrupt the
Presidency. That is one of the reasons that impeachment cannot
be voted lightly.
The danger to the Nation of having a President remain in
office must be greater than the danger caused by the wholesale
disruption of our government that an impeachment trial will
bring. The American people are not likely to look kindly on a
government shutdown number two.
During Watergate, I spent many long hours poring over books
and studies to understand the meaning of the term ``high crimes
and misdemeanors.'' The framers of the Constitution wrote the
impeachment clause because they were fearful that the monarchy
they had just overthrown in the Revolution would return, that a
newly created Chief Executive, the President, would become a
tyrant.
But Independent Counsel Kenneth Starr's referral makes out
no case of abuse of power, a subject I have been asked to
address by the White House. In Watergate, the article of
impeachment that charged abuse of power was in a way the most
serious, and it was the one that received the largest number of
Republican votes.
Think of what Presidential abuses we saw then: Getting the
CIA to stop an FBI investigation, getting the IRS to audit
political enemies, illegally wiretapping members of the
National Security Council staff and of the press, a special
unit in the White House to break into the psychiatrist's office
of a political enemy, and on and on.
By contrast, what does Mr. Starr point to as an abuse of
power in his referral? Acts that do not in the furthest stretch
of the imagination constitute any such abuse. Mr. Starr claims
that the President did not voluntarily appear before a grand
jury, but had to be subpoenaed before he appeared. That is
surely not an abuse of power.
Mr. Starr attacks the fact that the President authorized
executive privilege to be claimed for a handful of staff
members and require the Independent Counsel to prove his need
for their testimony in court. Of course, once the court ruled
that the testimony was required, then the President withdrew
the claim. That, too, is not an abuse.
Mr. Clinton's telling the American people that he did not
have a sexual relationship with Monica Lewinsky is also not an
abuse of power, although it was the wrong thing to do.
Parenthetically, I want to note that, as one of the authors
of the Independent Counsel statute, I believe that Mr. Starr
overstepped his jurisdiction by arguing for impeachment on this
ground or any ground. Both the referral and his appearance here
go far beyond what the statute permits. We never intended to
create a Grand Inquisitor for impeachment.
I want to make a few other brief points. I have heard it
said that this committee views itself as a kind of grand jury
and that it merely needs probable cause, not overwhelming
evidence to impeach. Instead, it is the Senate that must have
substantial evidence to act. But if you use the analogy of a
grand jury, then you should not be impeaching at all.No
indictment would be sought by a prosecutor where there is no chance for
conviction. And it is almost universally conceded that there are not
enough votes in the Senate to convict President Clinton and remove him
from office. In fact, Federal prosecutors need to have a substantial
likelihood of success before they can recommend indictment to the grand
jury.
Why is this the case? Because prosecutions that go nowhere
use up precious resources. And let us not forget how much money
has already been spent on investigating President Clinton. It
is almost an abuse of power to indict someone, seriously damage
that person's representation, and force that person to the
tremendous burden of putting up a defense when there is little
or no likelihood of conviction.
The same analogy holds true here. Impeachment should not be
voted by the House unless there is a strong likelihood of
conviction in the Senate. Impeachment is not a kind of super
censure designed simply to besmirch a President's reputation.
Impeachment is a tool to remove a President from office. It is
a last resort to preserve our democracy. It must not be
perverted or trivialized.
Also, to use a different metaphor, this is not a football
game where one player of the House simply hands off the ball to
another player, the Senate. In Watergate, when we voted for
impeachment, we did so because we believed President Richard
Nixon should be and would be removed from office. We did not
operate on some watered-down standard of evidence. We didn't
think we were passing the buck to the Senate where the real
action would take place.
We voted as if we were the Senate, as if we ourselves were
deciding on his removal, as if the case had been proven to us
beyond a reasonable doubt. That same standard should be
followed here. You just don't casually overturn the majority
vote of the American people.
And let me add, too, how difficult it was to cast the vote
for impeachment. It was solemn, hard, and unpleasant. As much
as I disliked Richard Nixon's policies, I did not relish for
one moment voting for impeachment. He was my President, and I
did not want to see my President engage in acts of that nature.
I think the other members on the committee felt the same way.
Unless this committee and the House act on a bipartisan
basis and reach out for the common ground as we did during
Watergate, unless you have the full support of the American
people for the enormous disruption of our government that an
impeachment trial will entail, unless you have overwhelming
evidence of the serious abuse of power that impeachment
requires, none of which has been true so far, you should not,
you must not vote to impeach. Thank you, Mr. Chairman.
Chairman Hyde. Thank you very much, Ms. Holtzman.
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Chairman Hyde. Father Drinan.
TESTIMONY OF HON. ROBERT J. DRINAN, S.J.
Father Drinan. Mr. Chairman and members of this venerable
committee, the situation before the House Judiciary Committee
today is entirely different from the scene that I and my
copartners here experienced in 1974. At that time, the country
knew there was extensive lawlessness in the White House. The
documentation of appalling crimes was known by everyone. Abuse
of power and criminality were apparent to the American people.
There is well-documented evidence put forth in the report of
that committee in 1974 about the plumbers, the break-in of Dr.
Ellsberg's office and the cover-up of the burglary at the
Watergate Hotel.
The procedure followed by the House Judiciary Committee at
that time was, however, evenhanded. Months of hearings took
place with the President's lawyer Mr. Jim St. Clair always
present in this room and free to make any comments and ask
questions.
Today, the scene is startlingly different. No investigation
has been made by the House Judiciary Committee, nor have any
fact-finding hearings been held. The 21 Republicans have no
support whatsoever from the 16 Democrats. And in addition, two-
thirds of the Nation or more are opposed to impeachment.
In 1974, the Members of the Democratic Majority had
constant conversation and dialogue with the Republican Members.
And I remember going to the Republicans and sharing with them
the destiny of this committee and the awesome task that had
come to us.
The Democrats were aware of the intense problems that the
Republicans had with the impeachment of a Republican President,
but eventually through the sheer force of the evidence, six or
seven of the Republicans voted for one or more articles of
impeachment. That was not a happy day when we voted for
impeachment, and I remember well that Chairman Rodino said to
the press afterwards, when asked what was the first thing that
he did, he said, ``I went to my office and cried.''
Another difference: the House Judiciary Committee in 1998,
unlike its predecessor where we served, has allowed its agenda
to be dictated by the calendar. Strategy has been determined
not by the need for thoroughness and fairness, but by the
convenience of ending this process by Christmas of this year.
The House Judiciary Committee in 1974 furthermore did not
vote for all of the proposed articles of impeachment. A serious
charge was made that Mr. Nixon had backdated his taxes in an
effort to take advantage of an exemption that had been
repealed, and only 12 Members of the body voted for the
proposition that this was an impeachable offense. Twenty-four
Members, including myself, voted that this misconduct, almost
certainly a felony, was not impeachable.
The dignity and the majesty of the Rodino committee was not
out to embarrass or humiliate President Nixon. What we were
required to do was painful, but we worked, heard, listened,
debated, and finally voted. And the people of America then and
now saw that the process was deliberate, bipartisan and
measured.
The only time in American history that has seen anything
like the process this fall before the House Judiciary Committee
occurred in 1868 when President Andrew Johnson was impeached by
the House. The consensus of history is that the Johnson
impeachment was partisan and was a mistake. Its failure in the
Senate did not prevent a weakening of the independence of the
Presidency.
And I hope, ladies and gentlemen, that history will not
decree that the House Judiciary Committee made a profound
mistake in 1998 and that this body will go down in the history
books as when it was dominated by vindictiveness and by
vengeance and bipartisanship.
The American people who are so overwhelmingly opposed to
impeachment may be coming aware of the dreadful consequences
that would happen to America if the House approved
ofimpeachment and sent articles to the Senate.
The entire Nation knows that there are under no
consideration 67 votes for that proposition in the Senate. But
what the Nation doesn't realize, yet, is that the country could
be paralyzed for some 6 months. The workings of the Supreme
Court would be harmed because the Chief Justice, under the
Constitution, must preside each day at the trial. The Senate's
program would be held up, and the whole country would be
immobilized.
The House cannot pretend that it has only to act like a
grand jury and send the articles to the Senate for trial. There
is no historical or constitutional leave or justification for
the proposal that you act as a grand jury.
The House has a unique role in impeachment. The votes cast
by each Member will be the most important vote cast by that
person as a Member of Congress. And history will discover and
record and remember whether that vote was done for partisan
reasons. A vote to impeach in this case would have dire
consequences for years and even decades to come.
Almost 70 percent of the Nation and virtually every
Democrat in the Congress are opposed to impeachment. These
groups believe firmly that, even if all the allegations in the
Starr report are true, there are no impeachable offenses.
And I would anticipate, members of the committee, an
explosion of anger like that that occurred after the Saturday
Night Massacre could happen in this country. When people
realize what you people anticipate you will do this Saturday,
and when it goes to the whole House, an explosion of anger just
like happened 24 years ago when Mr. Richardson and Mr. Cox did
some brave things.
Let me conclude, Mr. Chairman, by thanking you for the
opportunity and urging you and the committee to recognize that
the American people and the Democrats in Congress have a right
to be listened to. They have not agreed with any reasons for
impeachment set forth by the Starr report and the Republican
leadership and the Congress. This Nation has a right to demand
that impeachment efforts with no bipartisan support whatsoever
should be reconsidered and postponed. Thank you very much.
Chairman Hyde. Thank you, Father.
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Chairman Hyde. Mr. Owens.
TESTIMONY OF HON. WAYNE OWENS
Mr. Owens. Mr. Chairman, ladies and gentlemen of the
committee, I feel like we're appearing before you as three
ghosts of impeachment past. With the exception of Ms. Holtzman,
we are gray ghosts. We are grateful to be back in this hallowed
Chamber. Thank you for giving us this opportunity.
I remember keenly this afternoon how I felt 25 years ago
when I learned while deer-hunting in the mountains of southern
Utah of the so-called Saturday Night Massacre, the forced
resignation of Attorney General Elliot Richardson and of Deputy
Attorney General William Ruckelshaus and then the firing of
Special Prosecutor Archibald Cox.
I had been following the revelations of the Senate
Watergate committee for 6 months. It was obvious that Sunday
morning that the House would be required to pursue an
impeachment investigation and that my committee, the Judiciary
Committee, would be called to conduct that investigation.
I think that I was initially in awe of the assignment,
almost intimidated. No President had been called to account by
the Congress for 100 years. History would be looking over our
shoulder. And we wanted from Chairman Rodino on down,
Republicans and Democrats, to be sure that we were careful,
judicial and bipartisan in all that we did.
While we recognized that impeachment was a political
process, we were determined that it would not be a partisan
process. And we reported unanimously our recommendations to the
House that the investigation--that the investigation go
forward, all 21 Democrats and 17 Republicans. And it was
accepted by the full House by a vote of 410 to 4. So we are
aware, I think, of your feelings as you approach the decisions
you must make.
Chairman Hyde indicated early on that the precedents of the
Nixon impeachment would be followed closely, and I wanted to
argue to you that President Clinton's misdeeds do not reach the
standard of impeachment which our committee established at that
historic time.
What was that standard? We define impeachment in our final
report as quote, ``A constitutional remedy addressed to serious
offenses against the system of government.'' Ten Republican
members of the committee in a Minority report argued for a
higher standard of judgment saying, quote, ``The President
should be removable by the legislative branch only for serious
misconduct dangerous to the system of government established by
the Constitution.'' The man who is now the Senate Majority
Leader, then Congressman Trent Lott, a member of the committee,
was one of the 10 arguing for that higher standard.
I want to recall for you briefly the circumstances
surrounding the adoption of the so-called Abuse of Power
article of impeachment in late July 1974. The committee had
just passed the first article referred to as the Obstruction of
Justice article by a solid vote of 21 Democrats and 6 of the 17
Republicans.
Proposed article of impeachment number two, after serious
consideration and debate, was passed by an even larger
majority. A total of 7 Republicans joined 21 Democrats, finding
that President Nixon had violated the constitutional rights of
citizens in five specific categories of abuse of his powers and
voted to report the article to the floor for a full House
consideration.
I urge you to consider carefully the gravity of those
charges in the Abuse of Power article, which an overwhelming
and bipartisan majority of the committee found to be sustained
by not only clear and convincing evidence. In fact, I believed
the evidence to sustain a judgment beyond a reasonable doubt,
the test for conviction in the Senate.
It was obvious to us that President Nixon would go to trial
in the Senate and to many of us that we wanted to have a
standard which would pass muster in the Senate. President
Nixon, it was clear.
One, directed or authorized his subordinates to interfere
with the impartial and nonpolitical administrationof the
internal revenue law for political purposes.
Two, he directed or authorized unlawful electronic
surveillance and investigations of citizens and the use of
information obtained from the surveillance for his own
political advantage.
Three, he permitted a secret investigative unit within the
Office of the President to engage in unlawful and covert
activities for his political purposes, including abuse of the
CIA.
Four, once these and other unlawful and improper activities
on his behalf were suspected, and after he knew or had reason
to know that his close subordinates were interfering with
lawful investigations into them, he failed to perform his duty
to see that the criminal laws were enforced against those
subordinates.
And, five, he used his executive power to interfere with
the lawful operations of agencies of the executive branch,
including the Department of Justice and the Central
Intelligence Agency, in order to assist in these activities as
well as to conceal the truth about his misconduct and that of
his subordinates and agents.
Today you are faced with a record of misdeeds by a
President who carried on an illicit sexual affair then publicly
and privately misled others to protect his wife and daughter
and the public from finding out about his infidelity; personal,
not official misconduct, akin to President Nixon cheating on
his taxes. Improper and serious, but by nature personal
misconduct, and, therefore, not impeachable.
Your obligation, may I be permitted to point it out to you,
is to put those powerful differences into perspective and to
render a judgment based solely on the gravity of the offense
charged here because there is little disagreement on the facts.
I know that it is said that impeachment is a political, not
a legal, decision. But if you vote to impeach a President
because he had an improper sexual affair, then avoided full
disclosure by using narrow, legal definitions, even then
affirming that testimony before a grand jury, even if he lied
if you impeach on that narrow basis of personal, not official,
misconduct, you do untold damage to the Constitution and to the
stability of future Presidents.
Our forefathers wisely intended that only abuses of
official Presidential powers should be the premise--should be
the premise for impeachment. And, ladies and gentlemen, there
is no evidence of such abuses before the committee, not at all.
In closing, may I quote again briefly from the Minority
views of those 10 House Judiciary Committee Republicans who
ultimately accepted and supported the articles of impeachment
so that there was a unanimous--unanimity in the Judiciary
Committee that President Nixon should be impeded, before the
President resigned. From their Minority views, this: ``Absent
the element of danger to the State, we believe the delegates to
the Federal Convention in 1787, in providing that the President
should serve for a fixed elective term, rather than during good
behavior or popularity, struck the balance in favor of
stability in the executive branch.'' Thank you very much.
Chairman Hyde. Thank you very much, Mr. Owens.
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Chairman Hyde. Now we will have the questions from the
Members, and the first questioner is Mr. Sensenbrenner.
Mr. Sensenbrenner. Thank you very much, Mr. Chairman.
Ms. Holtzman, I believe that after you left Congress, you
spent some time as district attorney in Brooklyn. Am I correct
in that?
Ms. Holtzman. Yes, Mr. Sensenbrenner. I also had the
pleasure of serving with you.
Mr. Sensenbrenner. Yes, and I remember that very vividly.
Do you think that making a false statement before the grand
jury is an impeachable offense?
Ms. Holtzman. It could be, but it doesn't have to be.
Mr. Sensenbrenner. What's the difference, in your mind?
Ms. Holtzman. What Mr. Owens so eloquently spoke to, which
is that, in my judgment, whether the conduct is reprehensible
or not, whether we find it extremely distasteful or not, the
standard of impeachment is the abuse of the power of office,
one that creates a serious danger to the operations of our
government and a threat to our democracy, which is what we saw
in Watergate.
Mr. Sensenbrenner. The last impeachment which was voted by
the House of Representatives was 9 years ago in 1989, and there
the House of Representatives unanimously, 417 to nothing,
declared that Judge Walter Nixon's false statements to the
grand jury about a private matter, which was a sweetheart oil
and gas lease deal, were impeachable offenses. And the Senate
agreed with the House's charge and kicked Judge Nixon out of
office, I believe, by a 91 to 8 vote.
Can you tell me what you think the difference is between
Judge Nixon's false statements to a grand jury about a private
oil and gas lease that did not have anything to do with
grievously defrauding the government or changing the
constitutional balance of powers and Bill Clinton's false
statements, if they indeed were false statements, to the grand
jury about his relations with Monica Lewinsky?
Ms. Holtzman. Mr. Sensenbrenner, I think that the members
of this committee can see and the country can see that there is
a huge difference between impeaching one Federal judge and
removing--because there are hundreds of Federal judges--and
removing the one President of the United States. And,
obviously, the situation of removal of a President is so grave,
because the President is voted upon. Judges, Federal judges,
are not elected. You are undoing the majority vote of the
American people that is central to our democratic system. It is
central to the stability of this Nation. We have survived as a
democracy very well. The Presidency has been a central part of
it.
But the second answer to your question, sir, is that judges
serve during good behavior, which is something thatdoes not
apply to Presidents. It's a constitutional standard. And so I think
it's quite different.
Mr. Sensenbrenner. Let me say that I am deeply concerned
with that answer, because what you are saying is that the
standard of truthfulness for a President of the United States
when testifying before a grand jury is less than the standard
of truthfulness for a Federal judge.
Now, you and I will disagree with that conclusion, but I
have looked back in the record, as I am sure all of us have,
and I pulled out your questioning of Gerald Ford when he was
before this committee, having been nominated to be Vice
President by President Nixon, who was still in office at the
time.
And you talked to Mr. Ford about Nixon lying allegedly
about the bombing of Cambodia. Mr. Ford responded that he
didn't think that President Nixon had been 100 percent truthful
on that matter and then insisted that all Presidents had given
some false and deceptive statements.
You then said there was a difference between keeping a
secret and falsifying information. And you said, ``I think all
of us understand that difference very well.'' Could you tell us
then, is there not a major difference between historical
falsehoods as opposed to lies before a Federal court proceeding
or a grand jury?
Ms. Holtzman. Mr. Sensenbrenner, I hate to answer a
question with a question; but don't you think there's an
enormous difference between keeping a dual set of books about
bombing of a foreign country without the authorization of
Congress and not telling the truth about private sexual
misconduct?
Mr. Sensenbrenner. I think there is--there should be no
difference, because our perjury and false statement statutes,
you know, do not have various levels of perjury. When you do
make a false statement, you have to live by the consequences.
And I think we all try to teach our kids that one of the things
they always should do is always tell the truth.
Chairman Hyde. The gentleman's time has expired.
The gentleman from Michigan reserves his time, and we will
then go to the gentleman from Massachusetts, Mr. Frank.
Mr. Frank. Let me follow up. Mr. Sensenbrenner said that he
would see no difference between lying about a private sexual
affair and lying about bombing a country, and that there was no
gradation at all. One of the three counts of grand jury
perjury--and I think the grand jury perjury is the most serious
set of issues--one of the three counts is, according to Mr.
Starr, the President said that the intimate activity began in
February of 1996, and Ms. Lewinsky said it began in November of
1995.
Here I would just express my difference with Mr.
Sensenbrenner. I do think, even if the President was wrong and
got it wrong by a couple of months, that making a false
statement by too much--when nothing turned on it, since Ms.
Lewinsky obtained no age of majority, nothing happened in the
interim period that made any difference, but let me ask you--so
I would think as between misstating by 2 months the date the
affair began when you admitted it and bombing a country, I
don't know, maybe you could bomb the wrong country, it would be
analogous, and you cover it up by mistake, but my question
would be as a former prosecutor, Ms. Holtzman, would you have
a--would you think anyone would have brought in the
prosectorial discretion a perjury case because someone 2\1/2\
years after an event admitted the event but got it wrong by 2
months when nothing turned on the 2 months?
Ms. Holtzman. Well, I would be surprised by such a
prosecution. Remember, perjury requires materiality, and this
is a jury question.
Mr. Frank. That's directly relevant, because there was no
materiality here. But this is one of Mr. Starr's three counts
of perjury.
But the way, on that subject, my colleague from Arkansas
challenged Mr. Craig before. He said that the President never
admitted to sexual contact with Ms. Lewinsky. He used the
phrase ``inappropriate intimate contact.'' I suppose he might
have been having an inappropriately intimate conversation about
which country they would like to bomb together.
But my sense is that almost everybody, except the gentleman
from Arkansas, accepted that, and among the people who believed
that Mr. Clinton did acknowledge that was Kenneth Starr,
because on page 149 of the referral, at point 3, he says, ``The
President made a third false statement to the grand jury about
his sexual relationship with Monica Lewinsky. He contended that
the intimate contact did not begin until 1996. Ms. Lewinsky
testified that it began November 15th, '95.''
In other words, in the very accusation that Mr. Clinton got
it wrong by 2 months, Mr. Starr uses ``intimate'' and
``sexual'' interchangeably, and, in fact, I think disagrees
from the point of the gentleman of Arkansas and acknowledges in
this report--in fact, he charges the President with
inaccurately remembering when the sexual contact began.
It would seem to me my colleagues would have to decide
here. They cannot impeach in the alternative. You cannot accuse
the President of having not acknowledged the relationship and
then impeach him for having acknowledged it on the wrong day.
Yes, Ms. Holtzman.
Ms. Holtzman. Congressman Frank, I think you raised a very
pivotal point, which is we are talking about impeaching a
President of the United States. It doesn't matter if it's
William Jefferson Clinton or somebody else. And you cannot
trivialize the power of impeachment by talking about removal
because we have got a date mistaken by 2 months or the
President says----
Mr. Frank. Thank you.
Ms. Holtzman [continuing]. Intimate as opposed to sexual.
Mr. Frank. Let me say----
Ms. Holtzman. And I think that's critical.
Mr. Frank. Ms. Holtzman, I want to get quickly to the two
other perjuries. One of the other two counts of grand jury
perjury is that the President, when he said that--he believed
he said in August--this is even almost too complicated to
state--Mr. Starr said he perjured himself because he said in
August that he believed when he did the deposition that oral
sex wasn't covered. And they say they knew he was lying. Again,
how they would prove that, I don't know what witness they want.
And the third one, of course, was the one Mr. Wexler talked
about before: What did the President touch, and why did he
touch it? That's the central count of perjury.
But just in closing, I want to respond also to a comment
made by the gentleman from Georgia who said, well, the
President hasn't yet been exonerated on Whitewater. Whitewater
has seniority around here. If Whitewater were a Member, it
would be a subcommittee Chairman.
Whitewater has been investigated by three Republican
Justice Department appointees, Jay Stevens, Robert Fiske,
Kenneth Starr, three men who at one point had been Republican
Justice Department appointees. They have been working on it for
over 5 years. They have as yet come up with nothing.
I do not doubt by this record that they will never admit an
exoneration, but keeping open something which three separate
Republican Justice Department former prosecutors have
investigated for 5 years and have been able to bring forward no
charge against the President, it seems to me that's an abuse of
power to continue to hold over someone's head something that
has been so long investigated for so little purpose.
And I actually yield back, Mr. Chairman.
Chairman Hyde. I thank the gentleman.
The gentleman from Florida, Mr. McCollum.
Mr. McCollum. Thank you very much, Mr. Chairman.
Mr. Owens, I believe I'm reading your testimony correctly
and hearing it that you do not believe anything is impeachable
or should be impeachable that isn't directly related to some--
in some way the President's power of executive authority. Do
you think, then, that if the President of the United States
went back home on vacation to Arkansas and murdered two of his
best friends, having no connection whatsoever to his office in
any official capacity, that we should ignore; would be
derelict? Should we impeach him for that if we knew he
committed murder while he's sitting as President.
Mr. Owens. Given your hypothetical, and it is a farfetched
one, Mr. McCollum, I would certainly agree that the President
of the United States would not be fit to serve if he had
committed murder. My assumption is that he would be replaced
probably before it had to go to impeachment. But certainly
murder is an offense in my mind, an impeachable offense, if
it's a President or Vice President or Congressman from Florida.
Mr. McCollum. Let's hypothetically assume, then, that the
President of the United States did not commit murder, but that
we elect a President someday and find after we elected him
that, indeed, prior to his election in office, he had committed
several crimes of fraud and bilking of senior citizens out of
millions and millions of dollars. Would that be an impeachable
offense? That certainly wouldn't go to his official conduct.
Mr. Owens. I think these issues are issues of gravity. I
would think that the Judiciary Committee would have to look at
that, a group of wise men and women like this one, and make a
decision whether it rose to the impeachability. I think that's
a subjective judgment based on who's before the committee and
the level of evidence.
Mr. McCollum. Ms. Holtzman, I am sure you are aware,
because it was in today's paper, that Henry Ruth wrote an
article about Watergate and cited specifically the income tax
fraud charge against President Nixon and cited your vote and
Mr. Conyers as having voted to impeach on that article,
although I think perhaps others on this panel voted against it.
Yet you have testified today, I can't imagine that was
related to his official duties; that, indeed, you think that
impeachment needs to be related to the President's official
duties. How do you square your vote back in 1974 with President
Nixon on the income tax fraud question to your testimony today?
Ms. Holtzman. I am sorry, I haven't had the pleasure of
reading Mr. Ruth's article. I assume it would be a pleasure to
read it.
Mr. McCollum. It's in today's Wall Street Journal.
Ms. Holtzman. In any case, my answer to you is severalfold.
One, I went back because I had remembered the article of
impeachment with regard to taxes when this issue of Mr. Clinton
came up. And I looked at what I had written at that point in
support of that article. And in my writing, I said that I
believe that there was a misuse of the power of his office. My
views, unfortunately, don't provide the back up--don't provide
the explanatory support. I didn't write those views. I signed
those views. I haven't had time to--find the exact support in
the record.
But I want to make one other point, sir, and that is that
that article also contained a question of emoluments, which
charged the President of the United States, as President, with
enriching himself with a variety of additions that were made to
his homes at taxpayers' expense. So you did have an abuse of
governmental office.
I want to say a third thing in response to your question.
That article was not the sole ground of impeachment. We had
article 1 which had some 32 separate counts of obstruction of
justice. We had article 2 which had five or six separate
counts. So I don't know that anyone would have voted or that I
would have voted--if that false tax return article were the
only ground for the impeachment of the President of the United
States, I cannot say that I would have voted for that.
Mr. McCollum. I think what my point of all of my questions
I have done now with this panel is simply to point out the fact
that what may be considered to be official conduct or not is
not really the ultimate criteria we should be judging
impeachment on, even though, with great respect, that's what
some of you are advocating.
The fact is even in this case, the President, if he
committed perjury or obstruction of justice, witness tampering
and so forth, is something very closely related to his job as
the chief law enforcement officer. He set an example which is
something that none of us should want to have out there. And
it's very difficult to see how the court system can function
and the justice system can function if the chief executive
officer of the Nation is permitted to get away with not being
impeached, to have that kind of conduct tolerated.
So I would suggest that really the charges of perjury and
obstruction of justice, while he's sitting in office as
President, are very integral to his duties as President. So it
occurs to me that--also many other charges that are out there.
But saying it's not connected with his office is not in and of
itself a reason not to vote for impeachment.
Chairman Hyde. The gentleman's time is expired.
The gentleman from New York, Mr. Schumer. The gentleman
from New York. I wanted to say Shuster, and I fought against it
very hard. Mr. Schumer.
Mr. Schumer. Thank you, Mr.----
Chairman Hyde. All right.
Mr. Schumer. Anyway, I thank the witnesses, all three
people I know, and particularly my predecessor Liz Holtzman. I
guess, starting in January, this will be the first time in a
very long time our congressional district is not represented by
a Member in the House Judiciary Committee, Manny Celler before
you and then me. And I am sorry this is the way we are going
out, our district is going out of the Judiciary Committee.
My first question relating to a question--to all three of
the witnesses, which relates to a question that I had asked the
previous panel, and that is this: I am still sort of--more than
sort of. I am still very perplexed by the view of some of the
more moderate Republicans. I guess none of them on this
committee, but a good number of the swing votes have expressed
a view that, well, if only the President would make a fulsome
apology--the President believes he has apologized already, but
one, I guess, that is fuller or more direct or whatever, or
reiterate it again, that then maybe they would vote against
impeachment and for a lesser penalty.
And it seems to me that that is a specious standard. I
mean, here we are dealing with impeachment, one of the most
serious things this committee, this Congress, can do, and it
should be related to the actions of the President and whether
they rise to the level of high crimes and misdemeanors, whether
they rise to the high level that we have heard so many
witnesses talk about; not about either an apology or about
whether the President answered the questions to the liking of
the members of this committee or to the Members of Congress.
So I would just wonder, each of you having gone through
this, having thought about this in a historic sense, do you
think, did it ever cross your mind, let's say if Richard Nixon
offered a full apology late in the day, that you would then--I
mean, should that have influenced your decision as to whether
he deserved impeachment? Mr. Owens?
Mr. Owens. If impeachment is a political decision, and it
is, my sense is that if Richard Nixon, right up to the point of
when the Judiciary Committee undertook its debate at the end of
July of 1974, had he gone public and said, ``I apologize, I
committed serious offenses, I thought I was acting in the
public's interest,'' my sense is the public would probably have
forgiven him and the Judiciary Committee would not have voted
articles of impeachment, but certainly even if the House passed
them, the Senate would not have convicted.
When the three smoking guns turned up, the recordings, in
which Mr. Nixon was found to have directed the CIA to tell the
FBI to back off the Watergate investigation, within as I
recall, 30 hours of the break-in at Watergate, until those came
out I think perhaps he might have escaped because I think the
public at that time did not want to impeach even that unpopular
President.
It is a wrenching decision on the public, very painful, to
impeach a President.
Mr. Schumer. You're saying what turned the public's mind
was----
Mr. Owens. And I think Richard Nixon could have turned that
around.
Mr. Schumer. But you are saying what turned people's mind
were the actions of the President, not an apology or something
like that? Aren't I correct in assuming that?
Mr. Owens. If the President had come clean, I think it
would have made a big difference then.
Mr. Schumer. Okay.
Father Drinan. Well, Senator, I think the crimes then were
so appalling. As I reread our report here, it was just
unbelievable the things in which they were involved with Tony
Lasowitz. And the memory, it is appalling. So I don't think
that anybody mentioned censure at that time and that it was
just proceeding. Furthermore, censure is not in the
Constitution; the Congress has the one decision to make:
Impeach or not impeach.
People say, well, the Constitution does not forbid censure,
which is true; and I think the people would accept censure in
this country now if we would get a Christmas present that this
would all go away. But I don't think that the concept of
censure ever really came up. If he could have apologized
again--but he never apologized, really. He made more
revelations when he was required to do them, but he never
really said that he was sorry.
Mr. Schumer. Ms. Holtzman.
Ms. Holtzman. Well, Senator--I like the way that sounds.
Mr. Schumer. Thank you.
Ms. Holtzman. I think it is very hard to speculate about
what would have happened.
The fact of the matter is, we had those facts. None of us
sought, or I think few of us sought the responsibility of
sitting in judgment on the President. It was extremely
difficult. It was very sad. It was one of the most difficult
tasks actually to cast that vote. All of us searched our
conscience and all of us felt that a very high standard of
evidence had been met.
Remember, what we were confronted with----
Mr. McCollum [presiding]. The gentleman's time has expired,
unfortunately. I let you answer as much as I can, Ms. Holtzman.
Mr. Gekas, you are recognized for 5 minutes.
Mr. Gekas. I thank the Chairman.
Congressman Owens, you stated in the recitation of the
provisions in the Watergate report, or the committee language,
that what was being considered there was an attack on the
system of government, and that's what gave pause to many of you
as you deliberated in that era. So you felt all of these
offenses that were lined up were attacks on the system of
government.
You further stated, in answer to some of the hypotheticals
posed to you by the gentleman from Florida, like fraud and
murder and so forth, that really that's up to the Judiciary
Committee of the time and of the circumstance on what they then
have to deliberate to determine whether or not an offense was
an attack on the system of government. Am I paraphrasing you
fairly correctly?
Mr. Owens. If I had the right to revise and extend, I would
have said that I think the 25th amendment would have taken care
of his first hypothetical before it ever came to the Judiciary
Committee.
Mr. Gekas. The murder, I am not----
Mr. Owens. But the decisions on impeachment and the
evaluation of the evidence are first given to the Judiciary
Committee.
Mr. Gekas. And if this committee or the majority of this
committee felt so strongly that the commission of perjury by
the President of the United States, if proved, in front of a
grand jury, and/or in front of a deposition in front of a
Federal judge, if we felt so strongly that they were committed
and constituted an attack on the system of government in that
this was perpetrated in order to destroy the rights of a fellow
American citizen who had instituted a legal case against the
President in those courts, and where a Federal judge was
sitting, or Federal officers in the case of a grand jury, is
this not, I say to you, within the realm of our possibility of
adjudging that as an attack on the system of government? Would
you second-guess us on that?
Mr. Owens. If I as a member of the committee felt that
strongly and intellectually believed, as you suggest in your
hypothetical, then I would vote to impeach.
Mr. Gekas. Thank you, Mr. Owens.
Ms. Holtzman.
Ms. Holtzman. Yes, sir.
Mr. Gekas. In your written statement, you said that you
felt that Mr. Starr overstepped his jurisdiction by arguing for
impeachment--arguing for impeachment on this ground or any
ground.
Are you referring to his referral as being an argument of
impeachment?
Ms. Holtzman. Yes. I believe, Congressman, that when we
wrote that statute, and I was one of the authors, we had in
mind the experience of what happened during Watergate with Mr.
Jaworski, in which we received no brief for impeachment, we
received no argument for impeachment; we simply received a
factual submission with what is called a road map on top of it,
and that was it. We had to draw our own conclusions.
Mr. Gekas. I recite from the statute itself that says that
the Independent Counsel--in carrying out the Independent
Counsel's responsibility under this chapter that may constitute
grounds for an impeachment; that is, that the mandate is that
the Independent Counsel shall advise the House, and all of
these, that may constitute grounds for an impeachment.
So when--he has one of two choices: to do nothing or to
report that there is nothing impeachable and therefore we close
the case; or he refers something that may constitute grounds
for an impeachment. Isn't that following the mandate of the
statute?
Ms. Holtzman. With all due respect, sir, no.
Mr. Gekas. No?
Ms. Holtzman. Because there is a third choice, which is
what we had in mind. What we had in mind was what Mr. Jaworski
did. What Mr. Starr did was, he said these are 13 grounds for
impeachment. That is not what Mr. Jaworski gave us. What Mr.
Jaworski gave us were backup documents and factual statements.
It was not--it was not an argument----
Mr. Gekas. Thank you. I have to ask Father Drinan one
question. Father Drinan, in your written statement, regretfully
I cannot find the word ``vengeance,'' but I think you intoned
it in your direct testimony; that some of us, or people who are
considering the impeachment of the President or considering the
articles of impeachment are driven by vengeance. Did you mean
that? Did you say the word ``vengeance'' or am I--did I mishear
you? Because it is not in your written statement.
Father Drinan. No, that term is not in the document.
Mr. Gekas. Pardon me?
Father Drinan. That term is not in the document, no.
Mr. Gekas. You used it, though? You used it in your oral
statement?
Father Drinan. Yes.
Mr. Gekas. Do you seriously believe that any member of this
committee or any Member of the House, in the final judgment
that he or she will render on impeachment proceedings or
articles of impeachment, will be driven by vengeance?
Father Drinan. I will leave God to judge that.
Mr. Gekas. Thank you. And then maybe God's messengers
should not prejudge the God that would make the judgment.
Mr. McCollum. Mr. Gekas, your time has expired.
Mr. Berman, you are recognized for 5 minutes.
Mr. Berman. Thank you, Mr. Chairman. I thank the former
members for their excellent testimony.
I listened to what Mr. McCollum and some of the others on
the Majority side are saying as to this issue of lying under
oath. And they seem to be taking the view that in and of
itself, when it involves the President of the United States,
lying has ripple effects in terms of our system of justice, in
terms of the message it sends to the American people, that
raises it to a level that perhaps is different than in other
situations.
I would like to hear your thoughts about that argument, the
implications of lying under oath and the extent to which it
should be treated in the fashion that they are treating it.
Father Drinan. Well, Congressman, there are a thousand
hypotheticals but we have only one case.
Mr. Berman. Yes.
Father Drinan. The House Judiciary Committee has never
really heard evidence on that one case. The President has never
had an opportunity to cross-examine those who said things
against him. That's one of my fundamental difficulties and the
difficulties of the whole country with this whole proceeding.
We can speculate about the impeachment. All I know is that when
the framers put it into the Constitution, they said and
affirmed this should be very rare. This is only for the
occasion, as Benjamin Franklin says, when we want to anticipate
and prevent assassination.
Mr. Berman. Well, I don't want to speak for anybody else,
but I have to say that that argument doesn't do that much for
me. Yes, I think questions of burden of proof are important.
There is a ream of grand jury transcripts, and while the
process I would have liked would have brought that before us in
an orderly fashion, we the minority, and the President's
lawyers, had the opportunity to call those same people and
subject them to cross-examination. I don't consider this
process defective in and of itself because of that. The
question here that I would like answered is dealing with this
issue of statements under oath and the broader context of that.
Father Drinan. I will defer to my colleagues.
Ms. Holtzman. Mr. Berman, if I might just give you history
in terms of an answer to your question. We had two efforts to
impeach a President. One was Andrew Johnson, because people
didn't like his policy with regard to reconstruction and they
picked on one act, the removal of a Cabinet member. One act.
That impeachment went down in history as a scandal.
Mr. Berman. Yes.
Ms. Holtzman. Watergate, the President lied to the American
people on numerous occasions. That was not the basis on which
we removed him. We had 32 separate counts under obstruction of
justice, including offering presidential pardons to burglars.
We had several counts under abuse of power, including the
misuse of the CIA to get the FBI to stop an investigation;
including the use of the IRS to audit people's tax returns
improperly; including the creation of a plumber's unit to break
into a psychiatrist's office.
You had such a spectrum of abuse and illegality and
misconduct that there was no question that his actions
constituted an impeachable offense, and that the President
needed to beremoved. Here you are talking about, in essence,
the theme and variation is the President engaged in sexual misconduct.
He wanted to conceal it, and that is what we are talking about in all
of its variations and guises. It certainly doesn't rise to what we saw
in Watergate.
And in my remarks to this committee, I urged you to think
about how history will look at you. If you act on a single act
of misconduct which does not involve the powers of the
presidency, how will history judge you if you try to remove a
President of the United States?
Chairman Hyde. The gentleman's time has expired.
The gentleman from North Carolina, Mr. Coble.
Mr. Coble, will you yield to me briefly?
Mr. Coble. I will indeed.
Chairman Hyde. Thank you.
Father Drinan, you made the statement that one flaw with
this process is that the White House, the President, hasn't had
an opportunity to cross-examine his accusers. Is that correct?
Is that your position?
Father Drinan. I object to the use of the grand jury
testimony in toto. I don't think that's what the Constitution
intended. The Constitution gives the sole power of impeachment
to the House.
Chairman Hyde. Well, let's get back to my question. Do you
object to the fact that the President's lawyers haven't had a
chance to cross-examine witnesses, their accusers? Is that an
objection of yours? Yes or no?
Father Drinan. We gave that to Mr. St. Clair in 1974, and I
think that should be made clear----
Mr. Watt. Mr. Chairman, is the lighting system working down
there or are we operating without it?
Chairman Hyde. Thank you for reminding me of that. I
appreciate that.
Mr. Watt. Thank you, Mr. Chairman.
Chairman Hyde. I am going to try a third time. Is it a
complaint of yours that the President has not had an
opportunity to cross-examine his accusers? Is that one of your
complaints?
Father Drinan. I think the people have the right, the
people of this country have a right, as well as the accused.
Chairman Hyde. Okay. I will take that as a yes.
What witnesses would the President like to cross-examine
and why haven't the Democrats invited them to be here and
testify?
Father Drinan. I can't answer that, Mr. Chairman.
Chairman Hyde. I didn't think so. Mr. Coble.
Mr. Coble. I hope I have better luck than you did, Mr.
Chairman.
Let me ask a question to the panel. How many Presidents
have been accused of lying to a grand jury while in office, A;
and B, how many Presidents have been accused of lying to a
court of law under oath while in office, if you know? Does
anyone know the answer to that?
Well, I take it silence indicates that you do not.
Let me move along then.
Mr. Owens. Mr. Coble.
Mr. Coble. Yes, sir, Mr. Owens.
Mr. Owens. I would only point out to you that the lies
which President Nixon made were not under oath, but they were
material and they were devastating because he was assuring the
American people that he was enforcing the law; that
investigators were getting to the bottom of the break-in.
Mr. Coble. Let me move along.
Mr. Owens. They were not under oath, but they were
devastating because of what they dealt with.
Mr. Coble. My time is running. The reason I asked you is
because much has been made about the historical significance
and connection to impeachment. I wanted to get that historical
fact in, if anyone knew.
Now, many people have compared this crisis to Watergate.
There are similarities and there are distinctions. I recall
during the days of Watergate, those who opposed impeachment
simply said, my gosh, it is only a second-rate burglary; what
is the big deal?
Well, it was indeed a big deal because it involved cover-
up, it involved obstruction of justice, it involved abuse of
power, it involved the use of government employees--paid by the
taxpayers--to lie, to evade, to deceive. So it extended far
beyond a second-rate burglary.
Now, nearly a quarter of a century later, we hear people
who are opposed to impeachment in this instance: Well, my gosh,
it only involves consensual sex among consenting adults; what's
the big deal?
Well, the big deal may be a duplication of Watergate
problems: cover-up, evasion, lying, deception, using government
employees--paid for by the taxpayers, I might add again--to
cover up. It may go beyond that. And I resent the fact that
some accuse us of vengeance.
I don't mean to speak for anyone but I suspect very few in
the Watergate era, who sat on that House Judiciary Committee,
were gleeful about that exercise. Now, there may have been one
or two firebrands. There may be one or two firebrands here
today who are gleeful about it, but I dare say that the great
majority of Democrats and Republicans alike on this Judiciary
Committee are not gleeful at all about this. But I don't think
we can afford to dismiss the facts that have been laid at our
feet.
The Constitution requires us to respond, and if we vote in
favor of impeachment, then we are accused of being partisan
firebrands, and I resent it and I think most Americans will
probably resent it.
I am getting a little carried away, Mr. Chairman, but I
think I need to say this. Many people have made a big point, a
salient point about the partisanship of this committee. Well,
this is an energized, spirited, polarized group, I will admit,
and when the television lights are illuminated, that energy
seems to intensify. But for the benefit of our viewers, we get
along pretty well with one another once those TV lights are
extinguished; a pretty good group, pretty good men and women, I
might add. Most folks don't know that because they see the
other side of it, but we are going about our business. And if
anybody thinks that vengeance is involved, I will meet them in
the parking lot later on tonight.
I yield back the balance of my time, Mr. Chairman.
Chairman Hyde. Thank you very much.
On that high note, the gentleman from Virginia, Mr.
Boucher.
Mr. Boucher. Thank you very much, Mr. Chairman.
I was pleased to note in the statements made by our
distinguished former colleagues who are here with us this
afternoon, references to the concern that we all should have
about Members of the House who might apply a lower standard to
determining whether or not articles of impeachment should be
approved in this matter.
Several of our witnesses suggested that Members might
consider themselves to be a grand jury and apply a standard on
the order of probable cause to making that determination.
The committee on which you served, in its 1974 report in
the Watergate matter, established a standard that I think is
far more appropriate, and the standard that was adopted by your
committee on a bipartisan basis would make impeachment
available only for conduct that is, and I will quote the
language, seriously incompatible with our constitutional form
of government or the performance of the constitutional duties
of the presidential office. And that is a standard which I
think is much more appropriate for the House of Representatives
to employ, as well as for the Senate to employ.
It occurs to me that the reason that some Members of the
House may be considering applying this lesser standard of
probable cause is because there has not been a sufficient focus
so far on the kinds of harms that can occur to the country just
by virtue of the House itself voting for articles of
impeachment. And those harms would be first of all a
polarization of the Nation well beyond what it is today;
secondly, a diversion of the Congress and the President from
their basic responsibilities of tending to our urgent needs; a
possible immobilization of the Supreme Court while the Chief
Justice presides at a Senate trial; the lowering of the
standard for future impeachment inquiries, and there probably
is a longer list.
Today is an opportunity for us to begin, in a serious
manner, the dialogue about what these harms really are. And so
I want to welcome our former colleagues who have much to say on
that subject. You have broached that in your testimony, and I
would like to provide you with the balance of this time to
talk, if you are inclined to do so, about what you see those
harms being and why the House of Representatives ought to apply
the higher standard well beyond probable cause, the standard
announced by your committee in 1974, as we consider whether or
not to vote articles of impeachment.
Mr. Owens.
Mr. Owens. I think that the increased polarization which
incidentally already exists--more than two-thirds of the people
in every poll that I have seen recently do not want this
President impeached--the polarization would increase
dramatically if the House passes articles of impeachment and
sends them to the Senate to be tried.
Father Drinan mentioned slowing down, the stoppage of much
of the government, taking time of the Chief Justice of the
Supreme Court, the terrible feelings and passion that depriving
a President of his elected time in office, which the people
have bestowed upon him would cause. I think it would have a
terrible impact upon the public; I don't think there is any
question about it.
Hence, some of us we tried to apply in 1974 the for test
for whether we would pass articles, not by the ``clear and
convincing'' that one thinks of as typical evidence for an
indictment but, rather, ``beyond a reasonable doubt'' so that
the Senate would, in fact, have the evidence on which to
convict. And it was clear that Richard Nixon would be convicted
by the Senate and removed from office, and only under those
circumstances should you put the country to this kind of a
test.
Mr. Boucher. Ms. Holtzman.
Ms. Holtzman. I think I addressed that in my arguments. I
think all of us felt--well, I can't speak for everybody. I know
I felt that way. I think many of my colleagues felt that we had
to vote as if we were on the Senate, that we couldn't just
simply say, look, guys and gals in the Senate, this is your
job, we are just going to hand this ball over to you, hot
potato, and you handle it; because we are talking about the
United States of America and all of its people, all of the huge
tasks that have to be dealt with now, the huge disruption that
will take place if articles are voted. The Senate will be tied
up. How can we pass legislation to protect Social Security, to
improve education, or to deal with agricultural problems or the
environment? The Senate is going to be sitting there, day after
day after day, hearing testimony about where the President did
or did not touch Monica Lewinsky and what she said about it,
and what anybody else might have said about it.
Chairman Hyde. The gentleman's time has expired.
Ms. Holtzman. It seems to me not exactly what we want.
Mr. Boucher. Thank you, Mr. Chairman.
Chairman Hyde. You bet.
The gentleman from Texas, Mr. Smith.
Mr. Smith. Thank you, Mr. Chairman.
Ms. Holtzman, I would like to point out a couple of
passages in your statement. The first passage is this--you
point out that a trial in the Senate would disrupt the workings
of the Senate and it would disrupt the presidency as well.
Certainly to a large extent, I am sure that that is true. You
didn't mention an alternative which is pretty obvious and which
has been recommended by over 100 major newspapers, and that's
the possibility of resignation.
The other passage I want to refer to, and it sort of
follows up a little bit on what Mr. Boucher was discussing,
too--you say, in Watergate when we voted for impeachment, wedid
so because we believed that President Nixon should be and would be
removed from office. We didn't operate on a watered-down standard of
evidence. We weren't passing the buck to the Senate where the real
action was and would take place. We voted as if we were in the Senate.
Let me read to you from another expert. She, like all of
you, was a Democrat. She was a very distinguished member of
this Judiciary Committee when you all served on it. She also
happens to be a former member, Congresswoman from Texas, and
you all know who I am talking about, and that's Barbara Jordan.
But here is what she said: It is wrong, I suggest, it is a
misreading of the Constitution for any Member here to assert
that for a Member to vote for an article of impeachment means
that that Member must be convinced that the President should be
removed from office. The Constitution doesn't say that. The
powers relating to impeachment are an essential check in the
hands of this body, the legislature, against and upon the
encroachment of the executive. In establishing the division
between the two branches of the legislature, the House and the
Senate, assigning to the one the right to accuse and to the
other the right to judge, the framers of this Constitution were
very astute. They did not make the accusers and the judges the
same person.
That seems to me to directly refute what you said in your
statement about the members of the committee voting as if they
were in the Senate.
Ms. Holtzman. I am not sure that it necessarily--your
conclusion necessarily follows. I do think that----
Mr. Smith. Okay. I really wasn't asking you a question
there.
Ms. Holtzman. Okay.
Mr. Smith. I want to read another passage and then give you
a chance to respond to both. I was voicing my opinion that the
plain meaning of the word seems to me to contradict what you
have said.
But here is another statement by Barbara Jordan in that
same delivery. ``Beginning shortly after the Watergate break-in
and continuing to the present time, the President engaged in a
series of public statements and actions designed to thwart the
lawful investigation by government prosecutors. Moreover, the
President has made public announcements and assertions bearing
on the Watergate case, which the evidence will show he knew to
be false.''
She said, ``these assertions, false assertions,'' were
``impeachable.''
Now, a couple of follow-ups real quickly. One, the
Independent Counsel pointed out, I think accurately, that the
President over a 7-month period of time had a half-dozen
occasions where, if he had chosen to do so, he could have made
a crossroads decision. He had a decision whether to continue a
pattern of deception or whether to tell the truth. The
Independent Counsel found that he chose, unfortunately, to
continue that pattern of deception.
And then let me also read a statement that Mr.
Stephanopoulos, who was a senior adviser of the President,
said--this is a quote:
``This was no impulsive act of passion. It was a coldly
calculated political decision. He spoke publicly from the
Roosevelt Room. He assembled his Cabinet and staff and assured
them that he was telling the truth. Then he sat back silently
and watched his official spokespeople, employees of the U.S.
Government, mislead the country again and again and again.''
Now, my final question is this: Don't you think that the
President, in Barbara Jordan's words, has engaged in a series
of public statements and actions designed to thwart the lawful
investigation of government prosecutors?
Ms. Holtzman. I think that the President's statements were
designed to cover up sexual infidelity, a relationship with
Monica Lewinsky, a very embarrassing and wrongful relationship.
Mr. Smith. Wasn't he, though, trying to thwart the lawful
investigation by government prosecutors?
Ms. Holtzman. It depends--well, I think I answered your
question. But I also want to make the point here that if you
want to compare this to Watergate, it is a very false
comparison because, in Watergate, we had not simply false
statements. We had false statements about criminal conduct.
Mr. Smith. I very specifically----
Ms. Holtzman. Here you have false statements about--
Mr. Smith. I would like to reclaim my time.
Ms. Holtzman [continuing]. Inaccurate statements about
sexual infidelity.
Mr. Smith. Ms. Holtzman, what I read that Barbara Jordan
said was very specific, very applicable and impeachable
conduct.
Chairman Hyde. The gentleman's time has expired.
The gentleman from Virginia, Mr. Scott.
Mr. Scott. Thank you, Mr. Chairman.
Father Drinan, you were asked about what witnesses ought to
be called. We have asked for the list of allegations. We have
known that Mr. Starr started off with 10--started off with 11,
ended up with 10. There have been other variations of the
allegations. The scope changes from week to week. It is
Kathleen Willey one week; it is campaign finance another week;
it is not campaign finance the next.
According to the National Law Journal's hotline, quoting
ABC's Douglas, quote, ``ABC News has learned that the
Republicans may accuse the President of different grand jury
lies than Kenneth Starr did in his report to Congress. Sources
say they will shy away from Starr's most sexually explicit
allegations that Mr. Clinton lied about which parts of Monica
Lewinsky's body he touched. Instead, GOP committee lawyers cite
new charges.''
Now, the gentleman from Arkansas, Mr. Hutchinson, alerted
Mr. Craig that there may be some other charges that he might
want to look into without a clear definition of what the
allegations are. Is it fair to ask which witnesses ought to be
called?
Father Drinan. Well, Mr. Congressman, that's not up to me
to decide. I think that many people, maybe the majority, feel
that the House Judiciary Committee is on the wrong path, that
it has been unfair, it has been erratic, but that's not up to
us to decide.
All I know is that we were called here today to come and
tell about 1974. As I recall, there was no criticism of the
committee. At first, people said this is necessary, but as the
evidence came out, they applauded the committee. And we are
here to compare it, and I think that the sense of the public in
the country is that the something bad has happened in the
Judiciary Committee.
Mr. Scott. And is the--would you have taken the
prosecutor's testimony as evidence?
Father Drinan. No, I think that that is basically wrong,
and I agree with Sam Dash who resigned over this very point. He
said that this goes beyond the Constitution, and as Ms.
Holtzman said, the statute makes it very clear that he is to
give this evidence to this body.
Mr. Scott. Did you presume guilt unless the President came
forth with evidence in his defense?
Father Drinan. No. You went to Boston College Law School;
you know that's bad law.
The President, like all of us, is entitled to the
presumption of innocence.
Mr. Scott. Mr. Owens, can you tell me what proof there was
that President Nixon had committed tax fraud? Was there any
question about whether or not that allegation was true?
Mr. Owens. I don't think that anybody questioned the back-
dating of the deed, which saved him hundreds of thousands of
dollars, was supervised by him, and probably signed by him
after the fact, and back-dated. The evidence was overwhelming
as to tax fraud and the supplementing of his income by many
gratuities by agencies of the Federal Government.
The evidence was very clear, and it is listed, of course,
in our report in some detail.
Mr. Scott. Well, income tax is a crime and it is a very
serious crime. Why was it not adopted as an impeachable
offense?
Mr. Owens. There was a great deal of disagreement. Father
Drinan and I wrote an op-ed piece in the Times about a month
ago pointing out that we believed--and the majority of the
committee believed basically because we found it to be personal
misconduct, as opposed to abuse of presidential powers, We felt
that it did not rise to impeachability.
There were civil opportunities to redress those wrongs. A
President can be sued civilly as well as criminally, prosecuted
criminally, of course, while he is President or after, and I
thought there were other, better remedies. It did not rise to
impeachability in my view.
Mr. Scott. Thank you, Mr. Chairman.
Chairman Hyde. The gentleman from California, Mr. Gallegly.
Mr. Gallegly. Thank you very much, Mr. Chairman.
Thank you all, Panel, for being here today. As former
Democrat members of this House, I didn't have the honor of
serving with you, Father Drinan, or Ms. Holtzman, but I did
have the opportunity to serve with Wayne Owens.
Ms. Holtzman, do you agree with Father Drinan and with
Wayne Owens that income tax evasion and perjury are pretty much
on the same level?
Ms. Holtzman. They may or they may not be.
Mr. Gallegly. Okay.
Ms. Holtzman. It depends on the circumstances.
Mr. Gallegly. One question I have for you, Ms. Holtzman,
the records from the Watergate era show that you voted in favor
of an article of impeachment dealing with the allegations that
President Nixon lied on his personal income tax return. Does
that square with your position on perjury?
Ms. Holtzman. I think I was just previously asked that, but
if you would like me to go into it again, I would be happy to
do that.
Mr. Gallegly. That's fine.
Prior to January of 1998, Mr. Owens, have you ever gone on
record publicly as stating that lying before a Federal grand
jury is not an impeachable offense?
Mr. Owens. I feel a little like Henry Hyde must feel about
his own testimony during Iran-Contra. I could be surprised by
something that I may have said in the past. At age 61, I can
tell you what the reflection of the last 24 years has brought
me to.
Mr. Gallegly. I would love to chat with you after the
meeting, but we have a very limited amount of time. Do you
remember any specific----
Mr. Owens. I don't know.
Mr. Gallegly. Father Drinan, do you remember, prior to
1998, ever taking a formal position that perjury does not reach
the level of an impeachable offense?
Father Drinan. I am not certain what the--what the question
is, Congressman. Would you put it in----
Mr. Gallegly. Prior to January of 1998 when this story
broke, had you ever taken a position, that you remember, that
perjury did not meet a level consistent with an impeachable
offense?
Father Drinan. Well, we didn't have to write about
impeachment during those years, and I have no recollection that
I talked about perjury as an impeachable offense.
Mr. Gallegly. Thank you, Father.
Ms. Holtzman.
Ms. Holtzman. Well, perjury may or may not be an
impeachable offense.
Mr. Gallegly. Do you remember ever having taken a position
prior to January 1998?
Ms. Holtzman. On false statements, yes, in the Nixon
impeachment hearings.
Mr. Gallegly. Okay.
Wayne, you have stated--and correct me if I am wrong--that
the President should not be impeached because the underlying
lies, or perjury by the President, are not serious enough to
warrant impeachment. At the same time, we have long lists of
persons in Federal jails across this country for perjury. In
fact, in my own home State of California last year we had 4,000
individuals prosecuted for perjury, last year alone.
If the President is not impeached, do you think the
President should pardon these folks?
Mr. Owens. Elton, using the standard you set here for our
communications, my own sense is that you can't trivialize an
impeachment of the President by trying to make it comparable to
any other offense charged against any other person; and I don't
think you can hypothesize and make it similar, as you suggest
in your hypothetical.
I don't think that I can give you a very good answer to
that.
Mr. Gallegly. Well, I certainly don't mean to
trivialize.
Mr. Owens. This President's offenses, in my view, do not
rise to impeachability.
Mr. Gallegly. Reclaiming my time, certainly it was not my
intent to trivialize this, in fact, quite the contrary.
In your testimony that the President's lies are not serious
because--and I think you said--they involved lying about sex,
and many have said, oh, everybody lies about sex. If this is
the case----
Mr. Owens. Oh, that isn't what I meant, Elton. I think they
are very serious and should be punished. I don't think it
should be capital punishment. I think they are lesser offenses.
I think censure is appropriate. I join with Gerald Ford on
that.
Mr. Gallegly. I think lying under oath is serious, period.
Mr. Owens. Of course.
Mr. Gallegly. I think that that is the real issue before us
here. It is not about sex.
Mr. Owens. It is very important, and I did not mean to
trivialize that either, Elton.
Mr. Gallegly. The issue here is perjury, lying under oath.
Telling the truth is the basic foundation of our entire
judicial system, and I think that that is the issue and we have
been getting, I think, a little bit astray here when people try
to make sex the issue here.
I firmly believe the cornerstone of our whole judicial
system is predicated on telling the truth, and I certainly
would be the last one to trivialize lying.
Mr. Owens. And I hope the House of Representatives--if I
may say, in response to that, Mr. Gallegly, I hope the House of
Representatives will not miss its opportunity to censure and
condemn this President's actions. I think it is highly unlikely
that the Senate would ever convict the President based on an
article you send over. If you send it over to see whether they
will or not, I think you create a great constitutional
conundrum.
Mr. Gallegly. Thank you, Mr. Chairman.
Chairman Hyde. Thank you.
The gentleman from North Carolina, Mr. Watt.
Mr. Watt. Thank you, Mr. Chairman. And I want to thank
these witnesses for being here.
I don't profess to be a great student of the Nixon
impeachment process, and this has been very educational to me
to see some of the interworkings.
One thing in particular that I am struck by is, we have
this public perception that the Nixon impeachment vote was a
very bipartisan vote, and I guess by the standards under which
we are operating today, it was a very bipartisan vote in the
committee. But notwithstanding the overwhelming number of
charges and the magnitude of what I think everybody recognizes
now was going on, apparently there were still people who were
not convinced that the Nixon offenses rose to the level of
impeachable offenses.
Am I correct in that on the committee, or--
Mr. Owens. There were 10 members of the House Judiciary
Committee, including the current majority leader of the other
body, who did not vote for any of the three articles of
impeachment which passed. But as I recall the chronology,
something like 6 days after we passed and completed our
activities here, the President's--the three ``smoking guns,''
these three recordings, were released which showed that the
President, among other--proved beyond a reasonable doubt that
he had instructed the CIA to instruct the FBI to get out of
Watergate and so forth, directly contradicting direct testimony
that he had given.
Then even Trent Lott and his nine colleagues on the
Judiciary Committee abandoned the President and said they would
vote to impeach on the House floor. Barry Goldwater and John
Rhodes and Hugh Scott went down to the White House and said,
``Mr. President, it is over. You will be removed from office.
You will lose your pension and every perk of a former
President. The jig is up; it is time to leave.'' And the
President, former President at that point, had the dignity to
accept their judgment.
But right up to release of the ``smoking guns,'' there was
a significant portion of the Members of the House and of the
committee who did not accept that the offenses reached the
impeachability level.
Mr. Watt. And were all 10 of those members Republican
members of the committee?
Mr. Owens. Yes, they were, yes. Yes, sir. You had 21
Democrats and seven Republicans who voted for impeachment
before the ``smoking guns.''
Mr. Watt. I guess I raise that because my colleague, Mr.
Scott, and I had an interesting discussion one day when the
proceedings were going on. I leaned over to him and I said to
Mr. Scott, what if President Clinton were a Republican
President? Do you think we would be taking the same position?
How did you rise above the--how did your committee rise
above the partisanship? Can you talk to me a little bit about
how-- I mean, because one of the things that I have been really
troubled about is that this process has become so partisan and
viewed by the public as being so partisan that I think that has
colored the public's perception of even the credibility of the
arguments on the other side.
Mr. Owens. It was an exceedingly painful decision, for me
especially. I was running for the Senate in the most Republican
state in the Nation, a Democrat, where Richard Nixon had gotten
72 percent of the vote 2 years earlier, and I was confident
that that would be a serious political problem for me.
And the only refuge, Mr. Congressman, is in, your realistic
view of what the evidence requires. Given the serious
constitutional obligations that are imposed upon members of the
committee, you just have to say, consequences be damned; I will
do what my conscience tells me I have to do under the
Constitution.
It was a very heavy responsibility, and I, honest to God,
had no second thoughts about voting for impeachment.
Chairman Hyde. The gentleman's time has expired.
The gentleman from Florida, Mr. Canady.
Mr. Canady. Thank you, Mr. Chairman.
I want to thank the members of this panel for being here.
Your perspective on these issues is very important to us.
Father Drinan, welcome back. We appreciated your earlier
testimony to the subcommittee.
I want to address the issue about the tax fraud article
that has been discussed at some length here and begin by
quoting Charles Black, who in his handbook on impeachment
wrote, ``A large-scale tax cheat is not a viable chief
magistrate.'' That's on page 42, if you have the book there.
Now, I think I understand Ms. Holtzman has kind of a
nuanced view about that; it would depend on the circumstances.
But if I understand Father Drinan and Mr. Owens correctly, it
is your--your position is to disagree with Charles Black. Is
that correct?
And please give a short answer. I am limited on time.
Father Drinan. What precisely did Professor Black say on
this?
Mr. Canady. Pardon?
Father Drinan. What precisely did Professor Black say?
Mr. Canady. What I just read, quote, ``A large-scale tax
cheat is not a viable chief magistrate.'' Do you disagree with
that view?
Mr. Owens. Yes, sir, I do, absolutely.
Mr. Canady. Okay.
Father Drinan.
Father Drinan. I will concur with Mr. Owens.
Mr. Canady. So you both disagree. That's consistent----
Mr. Owens. We wrote an article in the New York Times, so we
have to agree with each other.
Mr. Canady. Okay. Well, that's consistent with what you
have been saying today.
Mr. Owens, let me ask you a question. Were you the only
person named Owens on the committee during the time of the
Nixon impeachment?
Mr. Owens. Yes, sir. I hope I am not going to regret making
that admission.
Mr. Canady. Well, because I am looking at the transcript of
the debate of the tax article with respect to President Nixon,
and I would like to read your closing remarks in the debate to
the committee.
You said, ``And so we are here having to decide this issue
without having any hard evidence that will sustain tying the
President to the fraudulent deed but which will support, in my
opinion, the closing and inferential gap that has to be closed
in order to charge the President.''
You then go on to conclude, ``I urge my colleagues to''--
``based on that lack of evidence, I urge my colleagues to
reject this article.''
Now, Mr. Owens, I candidly will have to say to you, I don't
think that what you have said here is consistent with what you
have been saying today.
Mr. Owens. I think under the Rules of the House you can do
that, Mr. Congressman.
Mr. Canady. Well, I think the facts speak for themselves. I
have read the whole debate, and it is my judgment that although
there were clearly some members who believed that tax fraud by
the President was not an impeachable offense, the majority, the
vast majority of the members of the committee who expressed an
opinion on that subject, said that they were either for the
article, as Ms. Holtzman was, or they felt that there was
insufficient evidence of fraud by President Nixon to proceed,
as you said in your comments.
So I find it a little disturbing that you would come before
this committee today and make an assertion that is contrary to
your own statement in the debate.
Now, let me just say that I think that Charles Black was
right, a large-scale tax cheat is not a viable chief
magistrate. I agree with that.
Mr. Owens. So you would have voted to impeach President
Nixon?
Mr. Canady. If there had been adequate evidence, if there
was an evidentiary question there, which I think has to be
settled as a separate matter. Just as there is an evidentiary
question before this committee, we have got to make certain
that we have an adequate basis for the conclusions we reach
with respect to the allegations of perjury and obstruction of
justice.
But I will also say that just as a large-scale tax cheat is
not a viable chief executive, I believe that a large-scale
perjurer is not a viable chief executive.
Furthermore, I believe that the evidence before the
committee points to the conclusion that the President of the
United States has committed multiple acts of making false
statements under oath, and that's a serious matter that we are
having to grapple with here.
I hope everyone understands we are not enjoying grappling
with this, but the facts cry out. We have to deal with this. We
cannot turn away from it simply because it may be politically
not expedient to deal with it, because the system of justice in
this country is affected by what we do here today and what we
will do as these proceedings move forward.
Again, I thank all of you for being here. I yield back the
balance of my time.
Chairman Hyde. The gentlelady from California, Ms. Lofgren.
Mrs. Lofgren. I would like to thank the panel for being
here and sharing your experiences and recollection.
I remember also back in 1974, and at that time, I had just
finished my first year of law school, and I was working for
Congressman Don Edwards and looking up at all of you sitting
where I am sitting today, never dreaming that I would be here
in these circumstances.
I remember watching you as you all struggled, on both sides
of the aisle, to cope with what faced you and the really grave
subversions of government you faced and which you have recited
today that were presented by the situation of then-President
Nixon; and I remember in the '73 Judiciary Committee report the
discussion of the abuse of power that would be necessary to
meet the standard for ``other high Crimes and Misdemeanors.'' I
don't have it in front of me, but something to the effect that
it would be ``abusing powers that only a President possesses''
is one of the phrases in that report. And I thought that really
kind of summarized the subversion of the government necessary,
and that was a standard accepted by both Republicans and
Democrats at that time.
As you can see, today the standard has apparently changed,
and I accept that people have legitimate good-faith beliefs
that a false statement alone is sufficient to impeach. I just
don't think that is the historical standard.
And as I think about what we are doing here today, I think
our constituency is not just today's voters. My children are 13
and 16, the constituency for what we do today will be my
children's grandchildren, because what we need to do is to make
sure that we nurture and protect our system of government. This
is the greatest country in the world, with the best system of
government. Weneed to make sure that we do not impair our
wonderful constitutional system, and what concerns me is that what we
are doing now may have an impact on our system of government.
I really think that we have been phenomenally successful in
many ways because we have an executive who serves for a set 4-
year term, and if you don't like the guy, you know that in 4
years he can be voted out. And that definitive term allows the
President to deal successfully with other countries.
And what I am wondering--and maybe, Father Drinan, you
could answer this--if we are going to have this type of
situation in which we will have the election and now with the
Jones case as precedent in which you can sue a sitting
President, we may have a litigation phase after the election,
and then we will have an impeachment phase following the
litigation phase. I am worried and concerned about what kind of
stature and certainty the President will have in the future if
we have got that kind of scenario instead of the certainty of
4-year terms. And what will the implications be for this
Nation? Do you have thoughts on that?
Father Drinan. I think the implications are horrendous, and
you are quite right, that if we weaken the independence of the
presidency, who knows? The next President may want to change
the rules on Cuba, and they say, we will indict you for that or
impeach you for that, and he has been intimidated. And all
history shows that the presidency was severely weakened for 30
or 40 years after the attempted impeachment of Andrew Johnson.
This has never happened in 220 years. I think that we
should look at that.
Furthermore--and I think the underlying thing is that the
President is being charged, not with anything that relates to
public policy or to the political function of the government,
but for something personal for which he has apologized for his
misstatements.
Mrs. Lofgren. I know that in all likelihood the vote that
we will take in this committee will be on partisan lines, which
was different than '74. I am not making this allegation, but I
have had constituents say that this is a Republican coup d'etat
to take out a Democratic President they could not defeat.
Whether you agree with that or not, should we be concerned
that, in the future, impeachment will be used as a partisan
tool?
Father Drinan. Well, that's the great danger. I keep
wondering why the arguments that the Republican majority use,
why haven't they persuaded any Democrats? Why haven't they
changed public opinion?
There is something very fundamental in the American psyche
that we don't want this process and that I tried to be--tried
to listen to. What is that argument? And the people are very
troubled. And to repeat what I have said before, I think there
is going to be a big popular uprising against this process.
Mrs. Lofgren. I will just close and say, usually the
American people get it right.
I yield back.
Chairman Hyde. The gentleman from South Carolina, Mr.
Inglis.
Mr. Inglis. Thank you, Mr. Chairman.
I am glad that Mr. Craig is still here with us, Mr.
Chairman, because it is very important to note his testimony
earlier in the day that, and I will quote, ``Let me assure''--
this is again the Special Counsel to the President. ``Let me
assure the members of this committee, the Members of the House
of Representatives and the American public of one thing. In the
course of our presentation today and tomorrow, we will address
the factual''--and factual is underlined--``and evidentiary
issues directly.''
Ms. Holtzman, do you have any facts or evidence relating to
this case involving the President?
Ms. Holtzman. What does that question mean?
Mr. Inglis. Do you have any facts relating to the things of
which the President is accused here today? Obviously not,
right?
Ms. Holtzman. No. That is not my answer, sir. That may be
your answer to your question. It is certainly not my answer to
your question.
Mr. Inglis. What facts do you have?
Ms. Holtzman. If you will let me, I will be happy to tell
you.
Mr. Inglis. Go right ahead and tell me what facts you have.
Ms. Holtzman. One fact is the perspective of Watergate, the
historical fact, what that means and how you place impeachment
in a historical context.
Mr. Inglis. Good.
Ms. Holtzman. The other fact is, the questions that were
raised with respect to how the public will deal----
Mr. Inglis. Reclaiming my time, you have no evidentiary
matters to present, either, do you?
Ms. Holtzman. Okay, reclaim your time.
Mr. Inglis. How about Father Drinan? Do you have any
evidentiary matters to present?
Father Drinan. Do you want new facts or reflections on old
facts?
Mr. Inglis. Generally in a legal case there are things
called facts and evidence, and then there is the law. It seems
to me what you are arguing here is the law, is it not?
Father Drinan. We came, sir, to explain what we tried to do
in 1974.
Mr. Inglis. That is precedent, correct, Father Drinan? That
is precedent, which is generally law, is that correct?
Father Drinan. I think so.
Mr. Inglis. Mr. Owens, do you have any facts or evidence to
present in this case?
Mr. Owens. That is our function today, to interpret for you
what happened in 1974. It is full of facts. The contrast
between what that President did and what this one did is, of
course, where we are supposed to----
Mr. Inglis. You would agree that----
Mr. Owens [continuing]. Spend our time.
Mr. Inglis. That is precedent, which is in the nature of
law rather than facts or evidence.
Mr. Owens. We are here to explain what happened and to
interpret it as best we can, that is correct.
Mr. Inglis. I am just trying to point out--and I don't know
why Ms. Holtzman became so defensive about this--I am just
trying to point out the great inconsistency in Mr. Craig's
statement earlier today, that he--and this is not your fault,
this is certainly not the fault of these three people before
us. It is just that earlier today the Special Counsel to the
President of the United States said that--today, before this
committee----
Mr. Owens. Excuse me, Mr. Congressman. Did he say that no
witnesses would interpret old historical precedents for the
committee?
Mr. Inglis. The point I am interested in making is this is
panel two, and Mr. Craig, we have yet to hear any facts or any
evidence. There is nothing new here. In fact, we have already
heard from Father Drinan once before. There is nothing new.
So the great high bar Mr. Craig earlier set for himself and
for the President, that this day and tomorrow are going to be
the day that we hear evidence and facts that contradict the
evidence before the committee, for panel two the score is zero
facts, zero evidence. There are more panels to come, but I look
forward to, throughout the rest of the day and tomorrow,
keeping track every time about whether we have got any new
facts or any new evidence.
Again, I think it is very helpful, but we have heard it all
before. It is very helpful, and I appreciate your time, but it
is not what Mr. Craig said that he was going to deliver to this
committee.
Father Drinan. If I may ask, what do you mean by facts? We
have been giving facts here since we started.
Mr. Inglis. The facts, sir, that we want----
Father Drinan. You want new facts about the so-called
scandal? What do you want?
Mr. Inglis. That is what I am interested in finding out. I
want to know if there are any facts and evidence in this case
that would tend to make us conclude that the President in fact
did not lie to the American people, as he said he did. Maybe
there are.
Father Drinan. The White House gave you 185 pages of their
case.
Mr. Inglis. We are looking forward to it.
Mr. Owens. Mr. Congressman, in dealing with facts, you
taught 7-year-olds in this country what telephone sex is and
oral sex, and what you can do with a cigar, and you had enough
facts.
I think it is the interpretation of the facts, may I
respectfully say, which is required by this committee.
Mr. Inglis. Okay, you disagree with the Special Counsel and
President. Mr. Craig says he wants to present facts and
evidence today and tomorrow. Apparently you are all on a
different sheet of music, because that is not what you are
doing.
You are doing a very helpful thing, which is presenting the
law and precedents. It is not facts. Facts would be evidence in
this case.
The Chairman. The gentleman's time has expired.
The gentlewoman from Texas, Ms. Jackson Lee.
Ms. Jackson Lee. Thank you very much, Mr. Chairman. Let me
make my continuing objection to the shortness of the time of
which the President has been given to make his case.
Let me, for the record, note that Mr. St. Clair, in
addition to bringing an enormous number of witnesses,
participated, as I understand, with the 17 days executive and
nonexecutive sessions. Mr. St. Clair, being the lawyer for Mr.
Nixon, had the ability to examine and cross-examine witnesses.
So I raise the concern that many of the esteemed and
distinguished members of this panel have not been able to fully
answer our questions.
Let me thank the panel most of all for being here and
providing us with, if not a complete understanding of the
Watergate proceedings, at least a sufficient bird's-eye-view
that would warrant us to question the process that we are
engaged in at this time.
One of our past Presidents said that one man with courage
makes a majority. So I, too, want to offer this day and the
next day to those Members of this body, this House, maybe this
committee, who are thinking seriously about where we are, might
I draw the committee to a dissenting view in the Iran-Contra
that was signed on by seven Republicans, and the words are
these:
``The President himself has already taken the hard step of
acknowledging his mistakes and reacting precisely to correct
what went wrong.'' ``There was no constitutional crisis, no
systematic disrespect for the rule of law, no grand conspiracy,
and no administration-wide dishonesty or cover-up,'' by
dissenting Republicans, signed by Mr. Hyde and Representative
Bill McCollum of this committee in the Iran-Contra affair.
Let me say to the Members here, and as I cite these facts
for you, would you also give us sort of an insight, if you
will, as to what went on in your committee, short of those
things that you are not able to discuss because maybe they were
in executive session, in bringing out the fullness of the case?
Because over and over again I hear my dear colleagues, my
Republican colleagues, saying, ``Where are the fact
witnesses?'' It is my understanding that you were able to bring
fact witnesses, and subsequently, as Father Drinan said, there
was a smoking gun of the tape talking about Mr. Nixon asking
the CIA then to stop the FBI from investigating Watergate.
But listen to this. Would you believe that alleged
conversations by the President to a staff person, Mrs. Currie,
about her recollections as to his whereabouts in the office or
out of the office, at a time when she was not a witness to
anything, or not a witness called for any proceeding, would be
obstruction of justice; one question?
In the referral by Mr. Starr, these words: ``Finally, the
President made a third false statement to the grand jury about
his sexual relationship with Monica Lewinsky. He contended that
the intimate contact did not begin until 1996. Monica Lewinsky
testified that it began on November 15th, 1995.''
The conclusion of the Starr report: ``For all of these
reasons, there is substantial and credible evidence that the
President lied to the grand jury about his sexual relationship
with Monica Lewinsky.''
Can you tell me whether or not we have a constitutional
crisis? Can you tell me whether or not you had and others had,
meaning Mr. St. Clair, the opportunity to judge the credibility
of witnesses inside of the proceedings that you were able to
deal with? And can you tell me whether or not, in this
instance, Mr. Clinton has as well acknowledged that he has
misled the American people?
And we could, if you will, not so much as a grand jury--but
in that structure, determine not to proceed because we have
found no reasonable basis upon which to impeach the President
of the United States of America? Because we, though not in
essence a grand jury, are the movers of this action and can
decide that because of the frivolousness of it, we should not
proceed.
I know that the answers will have to be brief. Ms.
Holtzman, I would appreciate it.
Ms. Holtzman. Our process was never started by a grand
inquisitor, it was started when the American people demanded
that the House act after the Saturday Night Massacre.
We had substantial actual evidence, including tapes of the
President. When John Dean and the President disagreed about
what happened, we did not start an impeachment inquiry. That
was insufficient evidence.
I am concerned, and I think you have raised that, that the
actual determination of who is telling the truth, Monica
Lewinsky or the President, will be made without a basis of
hearing from the actual witnesses. I also do think that the
facts of what happened in the past--and history is fact, it is
not law, it is fact--are important in the determination of what
this committee should do.
We are not in a constitutional crisis now. The question is,
will this committee and the House generate one for the country?
The Chairman. The gentlelady's time has expired.
The gentleman from Virginia, Mr. Goodlatte.
Mr. Goodlatte. Thank you, Mr. Chairman. I would like to
thank these former Members of Congress for their participation
today. They have been through what the members of this
committee are going through now, and must understand how
arduous a task this is, how unpleasant a task this is, so I
take exception to some of the suggestions of the political
motivations of the members of this committee.
I once worked for a Republican member of this committee who
served on the Watergate Committee on the Judiciary, former
Congressman Caldwell Butler. He was one of those seven
Republicans who voted for the articles of impeachment. I think
it takes great courage and great integrity to vote out articles
of impeachment against a President of your own party.
I don't know what the vote will be in the final result in
this committee or on the floor of the House, but I believe that
Members on both sides of the aisle will try to show courage and
integrity and act in that fashion.
But I am very concerned about the motivation of the White
House today in attempting to raise the bar, in attempting to
try to describe the standards that we are applying here as
being somehow different than the standards applied in the
Watergate hearings.
Congressman Canady, I think, has very correctly pointed out
that there were many, including Congresswoman Holtzman, the
only remaining member of the committee who still serves today,
Congressman Conyers, who voted out an article of impeachment
against President Nixon under circumstances in which he made a
false oath on his tax return, so I think that that is an unfair
standard.
I think the effort to try to impose upon the committee the
burden of ``beyond a reasonable doubt,'' the standard of proof
in a criminal proceeding, is also incorrect. There is no
evidence that the Watergate committee used such a standard. In
fact, as Congressman Smith pointed out, Congresswoman Barbara
Jordan explicitly rejected that standard. Some even set a much
lower bar.
Let me read you this quote: ``We are seeking what some
people have described as whether there is probable cause, and I
do not think it really reaches that. I have not found anything
in the literature that says the House is looking even for
probable cause. We are trying to find out whether there are
enough matters in the articles we draw up that would warrant a
trial that would resolve the questions.''
That was said by Congressman Conyers, the Ranking Minority
Member, during the Watergate proceedings. I think that is too
low a standard, quite frankly. I think clear and convincing
evidence is an appropriate standard for this committee to look
at this evidence.
But this effort to suggest that this committee is
politically motivated in our efforts is contradicted, this
effort on the part of the White House and the White House's
witnesses to suggest that there is somehow a different standard
being applied here, when in point of fact the evidence is quite
to the contrary.
It has been suggested, and Congresswoman Holtzman, I think
you suggested, this is simply merely lying about an
embarrassing personal situation, attempting to cover that up.
But before the Federal grand jury, Mrs. Holtzman, the
President's statements I think clearly indicate false
statements. Unless some evidence is brought forward by the
President to rebut them, they clearly were not for the purposes
of covering up an embarrassment, because minutes after the
President made those statements under oath before the grand
jury, he went before the American people and acknowledged doing
some embarrassing personally indiscreet things.
Before the depositions in the civil lawsuit seven months
earlier, the President clearly was not making those allegedly
false statements for the purpose of covering up personal
indiscretions, because in the same depositions the President
acknowledged other personal indiscretions with Gennifer Flowers
and so on.
So I think the purpose of the President in both instances
was something other than to cover up personal indiscretion. I
think the purpose of the President was to defeat the lawsuit,
the sexual harassment lawsuit; to obstruct justice in that
case; to coach witnesses, and to bring forth a false affidavit
from another individual.
And those, I think, are very serious charges, very similar
to the charges that the Watergate committee considered
regarding President Nixon and his tax return. And I think
upholding the rule of law and standing up for honesty and truth
in our judicial system is a very, very serious matter that the
American people are very concerned about.
I would finally point out that you can't look at polls to
determine the final outcome.
The Chairman. The gentleman's time has expired.
The gentlewoman from California.
Ms. Waters. Thank you very much, Mr. Chairman and members
of the committee. I thank our witnesses for being here today,
our former Members. I am trying to hold onto the belief that
most members of this Committee on the Judiciary are wrestling
with their conscience on questions of perjury and obstruction
of justice.
I have long since decided that I cannot, in good conscience
and with a sense of integrity and fairness, support the
impeachment of President Clinton based on the allegations in
this inquiry.
We have had some discussion on the question of perjury.
Some on this committee have held onto an argument that perjury
for the purpose of prosecution is and should be considered as a
simple statement of less than pure fact or detail. This is a
holier-than-thou attitude that allows no room for misstatement;
no room for inability to clearly and concisely recollect; no
room for taking advantage of legal definitions crafted by legal
minds that may not comport with lay definitions; no room for
nuances or gradations.
Mr. Chairman, I am going to say this. I hate to. But your
statements and your actions during these hearings place you at
the head of the class in the category of strictest and purest
interpretation of perjury. You have waxed eloquent about the
rule of law, a zero tolerance of lying. You have said no
exception can be made for lying to cover up an embarrassing
sexual affair.
You said, ``For my friends who think perjury, lying, and
deceit, are in some circumstances acceptable and undeserving of
punishment, I respectfully disagree''. You further said, ``The
truth is not trivial, playing by the rules. We are fighting for
the rule of law. I think it is our constitutional duty under
the law to pursue impeachment.''
You said, ``I am frightened for the rule of law, and I
don't want that torn down or diminished.''
Mr. Chairman, you are our leader and the chairman of this
powerful committee. Many members of your party are following
your lead, taking your advice, and looking to your experience
and integrity to guide their decision.
Mr. Chairman, a few days ago I read a column written by Mr.
David G. Savage in my hometown paper, the Los Angeles Times,
and I was simply taken back by what I read. Mr. Savage did a
little research on you, your statements and your actions.
Mr. Savage opened his article with the following line,
quoting you, and I quote: ``He mocked the sanctity of all who
sermonized about how terrible lying is. `Granted, lies were
told,' he said, `but it hardly makes sense to label every
untruth and every deception an outrage.' He also condemned the
disconcerting and distasteful whiff of moralism and
institutional self-righteousness that led Congress to conduct
hearings on the deceptions coming from the White House, and he
denounced the result as a witch hunt.''
Mr. Chairman, this columnist was talking about you, you who
led the defense of the Reagan administration during the Iran-
Contra hearings. This columnist's research also shows you in
direct and absolute contrast to your belief about what was not
a lie in 1987 as opposed to what is a lie in 1998.
Mr. Chairman, what are we to think about these contrasts,
as we review what you said then, and about understanding the
nuances of lies and your zero tolerance stage today? What must
your colleagues in the Republican Conference who are wrestling
with history, legal definitions and conscience, think about the
possibility that your statements today are in deep conflict
with your 1987 statements?
To tell you the truth, I am a little disappointed. Never in
my wildest imagination did I think that you would have such
conflicting views about perjury and lying. You have done a 360-
degree turn on your deep philosophical beliefs about how lying
should be placed in proper context and nuances.
Mr. Chairman, I don't want you to default on your good name
and leadership. History will not be kind to you and the stark
contradictions of your leadership. It will surely be a sad
commentary on your long years of service to be recorded as one
who led the selective impeachment of the President of the
United States, not based on a consistent philosophical belief,
but rather on a petty partisan need to satisfy the need to
retaliate, embarrass, or feed the insatiable appetites of a
group of hate-mongering----
The Chairman. I ask unanimous consent that the gentlelady
be permitted to finish her attack on me.
Ms. Waters [continuing]. Who will stop at nothing to
destroy President Clinton. Thank you, I appreciate that, Mr.
Chairman.
Mr. Chairman, you sent 81 questions to the President. Based
on Mr. Savage's article and his accusations about you, I am
going to send you some questions. You don't have to answer
them, and if you are going to allow me all of this precious
time----
The Chairman. Oh, please don't abuse the privilege, Ms.
Waters. You have finished your prepared statement, haven't you?
Ms. Waters. I really haven't, because it includes the
questions that I am going to send you.
Mr. Buyer. Regular order, Mr. Chairman.
The Chairman. I am sorry, I will have to tell you that your
time has elapsed. But we will continue this in private.
Ms. Waters. Thank you.
The Chairman. I now yield myself 5 minutes to respond to
the gentlelady.
In a way, I am glad you brought that up, because I read
that article in the Los Angeles Times, and I went back to my
library and I dug out the report of the Iran-Contra hearings
back in '87. I wrote a special dissenting report, and I reread
it. If I do say so myself, it is real literature. I will get a
copy and have you read the whole thing, rather than a few
excerpted sentences.
Now, it is true, at that time I was on the Intelligence
Committee, and when I had a more nuanced view about misleading
people, at no time did I sanction perjury. At no time did I
sanction Ollie North or Poindexter lying under oath. I objected
and I made my objections known.
But what I tried to explain--and I said context is
everything, and I stand by that--clandestine operations to get
hostages out of Iran required secrecy and occasionally
withholding information that others wanted. Trying to save
Central America from a Castro takeover required some
clandestine operations, and they required sometimes withholding
information. That happened, and it takes a little understanding
that people's lives and resources are at stake.
And while the Democrats did not agree, they preferred no
money going to the Contras, whom they portrayed as thugs; the
Sandanistas, with Mr. Ortega and Mr. Castro, seemed to fit in
well with them. That was a great controversy back in 1987.
But you cannot find any place or any time where I condoned
or justified perjury, or raising your hand and asking God to
witness to the truth of what you are saying, and then lying.
Ms. Waters. Will the gentleman yield?
The Chairman. No, I will not yield.
Ms. Waters. I want to take you to something that is in
contradiction to what you have said.
The Chairman. You have had your turn, Ms. Waters. This
isn't going to be the Maxine-Henry show.
Ms. Waters. Too bad about that. I would like that.
The Chairman. I just wanted the record to show that my
opposition to perjury and lying under oath has been constant,
and is as strong today as it was then.
But as long as I am using my 5 minutes, I want to ask my
friend, Father Drinan, a question. This may categorize me as a
member of the religious right, and I will tell you now, I have
not been to any meetings lately in anybody's basement, so I am
not a part of the conspiracy.
But what is the significance of asking God to witness to
the truth of what you are saying? Does that add a little heft
to the undertaking of promising to tell the truth, the whole
truth, and nothing but the truth?
Father Drinan. No, Mr. Chairman, that was just--everybody
knows that they have a very solemn duty. If this Saturday the
vote comes out 21 to 16 to impeach, and if the Republicans put
intensive pressure upon their own people, and if impeachment is
passed by seven votes, as is now predicted, I think that we all
here will say, ``Awesome. What are the motives for that?'' That
is what I meant.
The Chairman. Let's get back to my question: What about the
rule of law? What does the chief law enforcement officer, when
he raises his hand in a lawsuit, swears to tell the truth and
then doesn't, then lies--does that erode, diminish, depreciate
the rule of law which protects you and me?
Father Drinan. I suppose the answer is yes, but that is not
the right question. The question is----
The Chairman. I got the right answer. I will do the
questions, you do the answers. I yield back my time. Thank you,
Father.
Father Drinan. You people have to make the big answer. Is
that up to the level of impeachability, so that we will
distract and disturb the country and erode the independence of
the White House?
The Chairman. It is inconvenient, I will grant you that. It
would be inconvenient to have an impeachment, no question. The
question is, how inconvenient is it to have the rule of law
eroded, corroded, diminished, lessened, cheapened? That is the
other side of that coin.
Father Drinan. That is your assumption, sir, that all of
that is going to happen. My assumption is that further gray
things might happen. We have to weigh.
The Chairman. That's right. And everyone has to in the end
answer to their conscience. Absolutely right.
Now, we can get back to normality.
Mr. Meehan is next. Mr. Meehan.
Mr. Meehan. Thank you, Mr. Chairman. I am glad all of you
were here today, because you, among all the witnesses who have
appeared before us, bring, I think, an important historical
perspective to the table.
What I would like to do is read to you some of the portions
of the Nixon tapes, essentially to take you back to the days
where you sat in judgment of a prior President, and then ask
you how the facts before us compare with those that you
grappled with. Many of us have heard a lot of conversations
about what happened in the Nixon era and the Watergate era, so
I think it is important to go back and compare.
Let me start with a June 17, 1971 conversation between
President Nixon and H.R. Haldeman, John Ehrlichman, and Henry
Kissinger. Haldeman tells Nixon that there is a file at the
Brookings Institute on Lyndon Johnson's implementation of a
bombing halt in the Vietnam War. Nixon responds, quote,
``Goddamn it, get it. And get those files. Blow the safe and
get it.''
On June 30, 1971, in a conversation with the same
individuals and Ron Ziegler and Melvin Laird, Nixon elaborates
on his plans with respect to the Brookings Institute: ``They
have a lot of material. I want Brookings. I just want to them
to get it, to break in and take it out. Do you understand?''
On September 18th, President Nixon and John Ehrlichman had
a conversation in which they discussed using the IRS toharass
Senator Edmund Muskie, Senator Edward M. Kennedy, and their supporters.
Nixon says the following: ``John, but we have the power, but are we
using it to investigate contributors to Hubert Humphrey, investigate
contributors to Muskie?'' He goes on, ``Are we going after their tax
returns? Do you know what I mean?''
Haldeman, ``No, we haven't.''
Nixon, ``Hubert, Hubert has been in a lot of funny deals.''
``Yes, he has.''
``Teddy, who knows about the Kennedys? Shouldn't they be
investigated?''
September 10, 1971, President Nixon approves Ehrlichman's
proposal for a break-in of the National Archives to get secret
Vietnam papers of former President Johnson's aides.
Ehrlichman: ``There is a lot of hanky-panky with secret
documents, and on the eve of the publication of the Pentagon
papers, those guys made a deposit into the National Archives
under an agreement of a whole lot of papers. Now I am going to
steal those documents out of the National Archives.''
Nixon: ``You can do that, you know.''
Finally, on June 23rd, 1972, the infamous smoking gun
conversation occurred. In that conversation, President Nixon
and Haldeman conspired to call in the CIA director, Richard
Helms, and direct him to tell the acting FBI director, Patrick
Gray, that the FBI's investigation of the Watergate break-in
interfered with CIA operations.
Here is Haldeman laying out the plan for getting Helms to
call off the FBI investigation. Haldeman: ``They say the only
way to do this is from White House instructions, and it's got
to be Helms and what's his name, Walters.''
Nixon: ``Walters.''
Haldeman: ``And the proposal would be that Ehrlichman and I
call him,'' meaning CIA director Helms.
Nixon: ``All right. Fine.''
Ms. Holtzman, Father Drinan, Mr. Owens, we have heard
attempts to compare President Clinton's conduct in this case
with that of President Nixon. Indeed, we have seen the
Independent Counsel strive to mirror the language of the Nixon
impeachment articles in his referral, throwing out terms like
``obstruction of justice'', ``abuse of power'', despite the
lack of evidentiary support for either allegation.
To set the record straight, isn't it fair to say that
President Clinton's conduct doesn't even hold a candle to
President Nixon and what he did?
Mr. Owens. There is no question that it does not. I
listened as he instructed John Dean on how to lie to the grand
jury. I heard the tape. I heard the President's own voice. I
couldn't believe it.
``Just tell them you don't remember, John. They can't
indict you if you don't remember,'' and told him to ``get
$120,000, by God, today, and pay it to Mr. Hunt, because he was
going to blow by nightfall.'' I couldn't believe what I was
hearing.
Mr. Meehan. Cash, wasn't it cash?
Mr. Owens. There is nothing like that in this evidence
here. There is nothing that touches on the immoral or--the
illegality of the evidence that we had with Richard Nixon.
We had no choice but to impeach. This committee has no
choice but to release the President, to vote down this article.
Mr. Sensenbrenner [presiding]. The gentleman's time has
expired. Mr. Buyer.
Mr. Buyer. I thank all of you for coming today.
One of the things that is a lot different is we don't have
John Dean. You had someone on the inside that came forward. We
don't have someone, a Sidney Blumenthal or someone else who
comes forward and says, you know, enough is enough. I can't
take it anymore down at the White House. I want to tell you all
about the conversations.
We don't have the benefit of the taped conversations, as
they put together their defenses and their schemes and their
plans. We don't have all of that. We have the transcripts from
the grand jury testimony. So there are some differences. And I
have great respect for what you went through, because we have
gone through only half of it. Your proceeding was nine months,
and this has been four.
I do have a couple of questions. Father Drinan, you piqued
my interest earlier when you brought up the word ``vengeance.''
Why do you think in our society we think it is so important
that when we give someone an oath, we ask them to either swear
or affirm to God, and we also, in many courtrooms around
America, we ask someone to place their left hand on a Bible?
Father, why do you think we do that in our society?
Father Drinan. It goes way back. For centuries it was very
sacred. But I don't think that you can invoke the oath and say
that, immediately, that someone who may have violated it is
impeachable when he is the President.
You are asking the right thing. Sir, we all agree on this.
Don't make us say that, well, we are going to minimize the
oath. We are not doing that. We took the oath today. I teach
legal ethics at Georgetown. We solemnize all of this.
But that is not the question. The question is if this
individual--if this were a private matter, not related to
government process, is he impeachable because of that question?
Mr. Buyer. Let me ask another question of you, Father
Drinan. Tell me what the difference is between vengeance and
accountability under the legal system? What is the difference
between those two?
Father Drinan. Vengeance is only--it is a legal term only
sometimes. We don't make vengeance a crime. I used that term
because I, like the whole Nation, find it unfathomable that the
whole Republican establishment says this is an impeachable
offense, and the rest of the country doesn't get it.
Mr. Buyer. Father Drinan, I find it almost unfathomable
that there are some of my own Democrat colleagues, that somehow
believe or feel that if the President lied before a grand jury,
that that was wrong but it is not impeachable.
Then I have to watch, even in these proceedings, how the
President's own counsel, and as they work with the minority
counsel--there is coordination here between minority, the
minority side, and the President's defense.
I would ask unanimous consent that an article that was in
the Wall Street Journal on November 30th, 1998--it is a
declaration concerning religion, ethics, and crisis in the
Clinton presidency, signed by 132 religious scholars--be placed
in the record.
Mr. Sensenbrenner. Without objection.
[From the Wall Street Journal Nov. 30, 1998]
Bill Clinton's Ethics--and Ours
The following statement--``Declaration Concerning Religion, Ethics,
and the Crisis in the Clinton Presidency''--was signed by 95 religion
scholars including Paul J. Achtemeier (Union Theological Seminary),
Karl Paul Donfried (Smith College), Jean Bethke Elshtain (University of
Chicago), Stanley M. Hauerwas (Duck University), Robert Peter Imbelli
(Boston College), Max L. Stackhouse (Princeton Theological Seminary),
and Harry Yeide (George Washington University):
As scholars interested in religion and public life, we protest the
manipulation of religion and the debasing of moral language in the
discussion about presidential responsibility. We believe that serious
misunderstandings of repentance and forgiveness are being exploited for
political advantage. The resulting moral confusion is a threat to the
integrity of American religion and to the foundations of a civil
society. In the conviction that politics and morality cannot be
separated, we consider the current crisis to be a critical moment in
the life of our country and, therefore, offer the following points for
consideration:
1. Many of us worry about the political misuse of religion and
religious symbols even as we endorse the public mission of our
churches, synagogues, and mosques. In particular we are concerned about
the distortion that can come by association with presidential power in
events like the Presidential Prayer Breakfast on September 11. We fear
the religious community is in danger of being called upon to provide
authentication for a politically motivated and incomplete repentance
that seeks to avert serious consequences for wrongful acts. While we
affirm that pastoral counseling sessions are an appropriate,
confidential arena to address these issues, we fear that announcing
such meetings to convince the public of the President's sincerity
compromises the integrity of religion.
2. We challenge the widespread assumption that forgiveness relieves
a person of further responsibility and serious consequences. We are
convinced that forgiveness is a relational term that does not function
easily within the sphere of constitutional accountability. A wronged
party chooses forgiveness instead of revenge and antagonism, but this
does not relieve the wrong-doer of consequences. When the President
continues to deny any liability for the sins he has confessed, this
suggests that the public display of repentance was intended to avoid
political disfavor.
3. We are aware that certain moral qualities are central to the
survival of our political system, among which are truthfulness,
integrity, respect for the law, respect for the dignity of others,
adherence to the constitutional process, and a willingness to avoid the
abuse of power. We reject the premise that violations of these ethical
standards should be excused so long as a leader remains loyal to a
particular political agenda and the nation is blessed by a strong
economy. Elected leaders are accountable to the Constitution and to the
people who elected them. By his own admission the President has
departed from ethical standards by abusing his presidential office, by
his ill use of women, and by his knowing manipulation of truth for
indefensible ends. We are particularly troubled about the debasing of
the language of public discourse with the aim of avoiding
responsibility for one's actions.
4. We are concerned about the impact of this crisis on our children
and on our students. Some of them feel betrayed by a President in whom
they set their hopes while others are troubled by his misuse of others,
by which many in the administration, the political system, and the
media were implicated in patterns of deceit and abuse. Neither our
students nor we demand perfection. Many of us believe that extreme
dangers sometimes require a political leader to engage in morally
problematic actions. But we maintain that in general there is a
reasonable threshold of behavior beneath which our public leaders
should not fall, because the moral character of a people is more
important than the tenure of a particular politician or the protection
of a particular political agenda. Political and religious history
indicate that violations and misunderstandings of such moral issues may
have grave consequences. The widespread desire to ``get this behind
us'' does not take seriously enough the nature of transgressions and
their social effects.
5. We urge society as a whole to take account of the ethical
commitments necessary for a civil society and to seek the integrity of
both public and private morality. While partisan conflicts have usually
dominated past debates over public morality, we now confront a much
deeper crisis, whether the moral basis of the constitutional system
itself will be lost. In the present impeachment discussions, we call
for national courage in deliberation that avoids ideological division
and engages the process as a constitutional and ethical imperative. We
ask Congress to discharge its current duty in a manner mindful of its
solemn constitutional and political responsibilities. Only in this way
can the process serve the good of the nation as a whole and avoid
further sensationalism.
6. While some of us think that a presidential resignation or
impeachment would be appropriate and others envision less drastic
consequences, we are all convinced that extended discussion about
constitutional, ethical, and religious issues will be required to
clarify the situation and to enable a wise decision to be made. We hope
to provide an arena in which such discussion can occur in an atmosphere
of scholarly integrity and civility without partisan bias.
Mr. Buyer. It starts by saying, ``As scholars interested in
religion and public life, we protest the manipulation of
religion and the debasing of the moral language in the
discussion about presidential responsibility. We believe that
serious misunderstandings of repentance and forgiveness are
being exploited for political advantage.''
Then they lay out six points. I think it is very good. I
invite my colleagues to read that.
I was very concerned, Father Drinan, for you to come in
here and to challenge the motives of this committee. I suppose
that as you sat on the impeachment, the three of you, there
were people that would challenge your motives and did at the
time.
Father Drinan. If I may say, I don't recall anything like
that in the House Committee on the Judiciary in 1974. We had
the highest esteem for each other, and I had high esteem for
Caldwell Butler, who agonized over this and eventually voted
for it.
Mr. Buyer. Father Drinan, you are the first individual that
I know that has ever challenged, and I will take it personally
here because you said it to all of us, that we are driven by
vengeance. That is why I asked you the specific question about
the difference between accountability in our legal system and
vengeance. That is very important. So I am very disappointed
that the President's defense would send witnesses to this
committee that would say we are driven by vengeance, that we
are zealots and fanatics and cowards.
Father Drinan. I didn't say fanatics or cowards.
Mr. Buyer. You did not, but a witness from the previous
panel.
Mr. Drinan. Don't make me accountable for what other people
said.
Mr. Buyer. I am not making you accountable. I will make you
accountable for the vengeance statement.
Mr. Sensenbrenner. The gentleman from Massachusetts, Mr.
Delahunt.
Mr. Delahunt. Thank you. Father Drinan, welcome, my former
teacher at Boston College Law School.
You are all Democrats. I think it is important to point out
to you and to the American people that a former colleague of
yours, Charles Wiggins, who is presently serving on the Court
of Appeals in the Ninth Circuit, agrees with you, and he is a
Republican.
I am going to quote from testimony that Charles Wiggins
gave to this committee a short time ago, back on December 1st.
I am quoting: ``I am presently of the opinion that the
misconduct immediately occurring by the President is not of the
gravity to remove him from office.'' I think that goes to much
of what you have all said today in terms of the gravity of the
conduct, even if it is presumed to be accurate.
He goes on to state, on page 141, ``I find it very
troubling that the Committee on the Judiciary seems to be
willing to impeach the President. I find that there is not any
necessity that the President knew his acts were impeachable,
that he was obstructing justice or abusing power at the time he
did them.''
So I think it is very important that you understand you are
here in a bipartisan sense with Judge Wiggins. He also stated,
and you just stated rather elegantly, Mr. Owens, that--and
again, I am quoting him--``We heard testimony from Haldeman, we
heard testimony from Ehrlichman, and we heard testimony from
John Dean.'' You just referred to that, listening to that
particular tape. It was the smoking gun.
It is my position that we have a process here, and I think
process is important, because it is the process, not the names
of the principle players, whether they be William Clinton, Ken
Starr, Monica Lewinsky, or Linda Tripp, that will serve as a
precedent for the rest of our history.
I am really concerned that we have not heard direct
evidence, and I am particularly disturbed when I hear from
others that suggest that somehow the burden of proof to rebut
what is--can only be described as triple and quadruple hearsay
is on the President of the United States.
We heard earlier from Mr. Craig when he said, ``Much of
what Monica Lewinsky said was erroneous.'' He did not accuse
her of lying or testifying falsely, he said ``erroneous.''
I dare say it is the responsibility of this committee, of
this committee, to hear from the principal witnesses, to make
those critical determinations in terms of memory, in terms of
credibility, and in terms of evidence. I would welcome your
comments. Ms. Holtzman.
Ms. Holtzman. I think you are absolutely correct. You know,
the question was what standard of evidence should be applied.
We actually had evidence beyond a reasonable doubt. We had the
tapes of the President of the United States himself. There was
no question of the level of evidence. We heard witnesses,
direct witnesses. We heard tapes. I don't think it is----
Mr. Delahunt. Reclaiming my time, I think it is very
important that you know and the American people know that we
have heard direct testimony in deposition from only two
witnesses. I think it is absolutely wrong for this body and for
this institution to abdicate its responsibility under the
Constitution to an independent prosecutor that merely served as
a conduit for so-called evidence, while it goes to the United
States Senate for a trial which I think we can all agree will
be traumatizing this Nation and creating great instability
within the body politic.
I yield back.
Mr. Sensenbrenner. The gentleman's time has expired.
The gentleman from Tennessee, Mr. Bryant.
Mr. Bryant. Thank you, Mr. Chairman. I would like to thank
the panel, a couple of you, for your second--I guess for the
rerun here.
I am reminded by my colleagues' from Massachusetts
statement of my years in trial, when the other side often
argued that there is no proof here today on this point, when
they too had the subpoena power and the ability as such to call
in that proof if they really, really wanted that proof there.
One would have to assume that by providing some 30 hours,
if you look at eight-hour work days, almost four complete days
of work hours before this panel, that if one really wanted that
type of proof, if they wanted confrontation with these
witnesses and if they wanted to cross-examine these witnesses,
and they were so, so dissatisfied with the process, that one
would think they might issue a subpoena and call some of these
witnesses in.
On another subject, there are many issues here and I want
to touch on just a couple of them. I have heard today argued
that private conduct is not grounds for impeachment. I see the
hypocrisy in the White House of spending so much moneyand time
and legal effort in asserting the White House presidential privilege,
which we all know covers official conduct. So if we are talking private
conduct only, why aren't we litigating in court the official conduct
and the executive privilege issue?
This panel seems to be arguing that, unless you have the
Richard Nixon case, you can't impeach anybody. We have 32
counts and one article of impeachment in that case. That sounds
to me like if you have got a bank robber out there that robbed
32 banks, and then you have got a second bank robber who only
robbed four, that you can't charge that person with bank
robbery; that everybody from here on has to rob 32 banks before
they can be charged.
I suspect when it all settles in, this case will fall in
between the Andrew Johnson impeachment and the President Nixon
impeachment. It is for this panel to vote their conscience and
decide whether, within that spectrum, if indeed there are
sufficient articles of impeachment.
One final argument I might say, woe be it to this country
if we go through this process, another government shutdown. I
have heard that term used today. But let me tell you, this is
important work that we are doing today. We are doing it not
because we started it, but because it is the President's own
conduct that began this.
Back in 1974 when you folks were sitting in these seats,
your Democrat chairman of this committee faced similar
circumstances in terms of the troubles that this country had
been through at that point, and probably a sentiment in America
that just didn't want to do this.
In his opening statement in the Congressional Record, Mr.
Rodino eloquently states that, ``We know that the real security
of this Nation lies in the integrity of its institutions and
the informed confidence of its people. We will conduct our
deliberations in that spirit. It has been stated that our
country, troubled by too many crises in recent years, is too
tired to consider this one. In the first year of the Republic,
Thomas Paine wrote, `Those who expect to reap the blessings of
freedom must, like men, undergo the fatigue of supporting it.'
For almost 200 years Americans have undergone the stress of
preserving their freedom, and the Constitution that protects
it. It is now our turn.''
With that, I yield back the balance of my time.
Mr. Sensenbrenner. The gentleman's time has expired. The
gentleman from Florida, Mr. Wexler.
Mr. Wexler. Thank you, Mr. Chairman.
Father Drinan, I think, as you described earlier, you were
asked to come today to tell us what happened during Watergate.
For those of us that don't really remember Watergate, it was
chilling for me to hear Congressman Meehan repeat verbatim
President Nixon's language, and I think at least for some of us
that don't recall the actual testimony, because we were too
young or otherwise, and then have it compared to the
President's alleged behavior is very dramatic.
Mr. Owens had an opportunity, I think, to answer a question
earlier. I would like to give you an opportunity. Describe in
your words what was the abuse of power, the abuse of office by
President Nixon, and compare that, if you would, in an
objective fashion, which I know you can, to the alleged abuse
of power or abuse of office by President Clinton.
Father Drinan. Thank you for the question. I think the
documentation exists here. This, along with other books,
indicates the extent of the upgrading or downgrading of
government. It is just unbelievable. That is the whole point,
that we sat here and listened to it. It was almost
unbelievable.
I remember sitting right over there with the microphones,
listening to President Nixon telling his Attorney General,
``You are not going to appeal that ITT case. Understand that?
You are not going to appeal that.'' And then they lied about
that afterwards: ``Well, we never got any instruction.'' And
there is nothing, compared to--now, I mean all these things,
whatever you call them. This was an eruption of corruption in
the White House for which the Framers intended impeachment. The
Nation recognized that.
Mr. Rodino presided majestically, and the whole Nation was
impressed. The other day Mr. Rodino said there are no
impeachable offenses in anything that he has seen about these
events.
So we are glad to be here to have an opportunity. But it
becomes more unbelievable every day, the possibility that the
Congress, the House, could go forward and impeach this person.
What are they looking at? Where are the documents? It is just
unbelievable.
I want Ms. Holtzman to respond.
Ms. Holtzman. Mr. Wexler, I mentioned in my testimony, but
it bears repeating, one claim of abuse of power was that the
President had to be subpoenaed, did not voluntarily appear
before a grand jury despite being invited several times. He
ultimately appeared. What is the abuse of power?
Secondly, the other claim was that he invoked executive
privilege so that the special prosecutor would have to be put
to his proof in court. Once the court ruled, the President
turned over the information. Where is the abuse of power here?
When we talk about the Nixon impeachment here and the abuse
of power, when the President uses his office to get the FBI
to--the CIA to stop an FBI investigation, or gets the IRS to
audit his political enemies, that is an abuse of power that
threatens the people of the country and the operation of
government. We don't see that here.
I think that the members of this committee have to--
obviously have to search their conscience, but this process
will be judged by how bipartisan it is and how much the public
is willing to put up with a huge disruption because of the
level of presidential misconduct. I don't think we see that.
The public is not prepared to see that, that level of
disruption take place.
Mr. Wexler. Thank you, Mr. Chairman.
Mr. Owens.
Mr. Owens. If you will permit, I am about to say something
that is about to put me on a hotter seat than Father Drinan
had. But when you talk about abuse of powers, I wonder about
the powers of this committee and the leadership of the House
which will not permit Members of the House, as I understand, to
vote on censure, which insists on impeachment or nothing.
This President should be condemned for his actions. He did
lie to a grand jury, in my view, and to say to the Members of
the House, you cannot censure him, you either have to impeach
him up-or-down or let him go. Many Members on the hot place do
not believe he should be impeached, apparently--at least two
Republicans have expressed it to me--and yet they have no
choice, either they impeach or they turn him free, I thinkthat
is bordering on an abuse of power.
Mr. Wexler. Thank you.
Mr. Sensenbrenner. The gentleman's time has expired.
The gentleman from Ohio, Mr. Chabot.
Mr. Chabot. Thank you. Ms. Holtzman, let me go back to your
testimony here this morning. You stated, ``Nearly a quarter of
a century ago I never imagined in my lifetime we would see
another impeachment. I am saddened to be here today.''
And I can assure you that we are all very saddened to be
here today, but we are here because of the conduct and the
seeming inability to tell the truth of only one person, and
that is William Jefferson Clinton.
Let me go back to a statement that you made in the Nixon
impeachment era, back in 1974. You stated at that time that
``The President of this country ought to set a standard of
strict, scrupulous obedience to the law.'' Do you still feel
that way? Do you still feel that the President of the United
States should set a standard of strict obedience to the law,
that the President should be honest?
Ms. Holtzman. Of course I believe the same thing. The
question is, what happens when the President is not? What is
the punishment? That is really the question you have to grapple
with. Even if in your conscience you feel impeachment is
warranted, if you don't have bipartisan support and if the
public won't accept it, are you going to put this country
through a terrible disruption? For what? Try to find the common
ground.
That was what distinguished us in Watergate. We drew up the
articles of impeachment with the Republicans. It wasn't an
effort of a single party.
Mr. Chabot. Let me move to Father Drinan now, because our
time is relatively brief, as you know.
Censure, Father, has come up several times here in this
committee today. Let me address censure for just a moment here.
You had testified previously in this committee, and you stated
back on November 9th when you appeared before us at that time,
and I will quote, ``A vote to censure a President by one or
both bodies of Congress would establish a dangerous
precedent.''
I agree with you. I am concerned that censure could lead to
using a censure against a President for political purposes. For
example, I strongly disagree with President Clinton's veto of
the partial birth abortion ban. Despite my strong opposition to
that, however, I don't think we should punish him for what was
essentially a political act on his part.
Do you continue to believe that censure by either this
committee or the House is not the appropriate course for us to
take?
Father Drinan. That is up to the Congress itself. But I
think many people would say ``I am not certain about
impeachment, and I will vote for a censure.'' People do feel
strongly about presidential misconduct, and the President
realizes that.
The consequences, however, still worry me, that this will
intimidate future Presidents; that they will censure him,
shortly before election, for political reasons and not for
reasons that might be impeachable.
Mr. Chabot. So your feeling is that censure is probably not
the course that we ought to take?
Father Drinan. Well, it is up to people who are wiser than
I to say what is the appropriate.
Mr. Chabot. Thank you, Father.
Congressman Owens, let me go to you at this point. I am
going to quote from a statement attributed to you back in 1974,
again, in the Nixon impeachment proceedings.
You stated at that time that ``Impeachable conduct need not
be conduct prohibited by criminal statute, although it must be
clearly offensive; that is, known to be wrong by the person who
commits it at the time it was committed. It could be a
substantial abuse of power, blatantly unethical conduct, or a
flagrant violation of constitutional duties.''
Doesn't the President of the United States have the
constitutional duty, when he raises his hand and swears to tell
the truth, the whole truth, and nothing but the truth, so help
me God, to tell the truth?
Mr. Owens. Obviously he does, and I regret that he didn't.
My concern here--I disagree, obviously, with Father Drinan on
censure. I disagree with Barbara Jordan as she is quoted to us.
I disagree with Congressman Owens as he is quoted to us. I am
now 24 years older and at least 10 years more mature.
But I think it is very important that the punishment fit
the crime here. I'm just trying to say to the committee, the
offense does not rise to impeachability. The President was like
a deer caught in the headlights of a car. His marriage all of a
sudden was in danger, his presidency was in danger by his own
sexual infidelity.
Mr. Chabot. He also, as a private citizen--
Mr. Owens. I understand.
Mr. Chabot. Excuse me.
Mr. Owens. I understand how he got caught in that mess, and
I think he ought to be censured for having done the wrong
thing.
Mr. Chabot. He also had a private citizen, Paula Jones----
Mr. Owens. It does not rise anywhere to the level of
impeachability as compared to Richard Nixon's offenses, whom we
are here to contrast today for you, the actions of that
President. That is the point I am trying to make.
Mr. Sensenbrenner. The gentleman's time has expired.
The gentleman from New Jersey, Mr. Rothman.
Mr. Rothman. Thank you, Mr. Chairman. I was just about to
make the statement, but Congressman Owens made it for me. But I
will repeat it, because it is the appropriate issue for us:
What is the appropriate punishment for the President's wrongful
conduct?
Now, we all want to uphold the rule of law for ourselves,
our children, and our judicial system. But we have civil courts
and criminal courts, and we have President Clinton already
liable to be sued civilly and criminally for any action that he
has taken. So the rule of law will apply to this President.
As my friend from California said, this is about a civil
procedure. Of course it is. If the President was deemed to have
done something wrong in a civil deposition, the civil judge,
upon discovering that, had the right to sanction him, punish
him, and thus uphold the rule of law. So the rule of law
already applies to the President.
We were talking about whether the punishment, the nuclear
bomb punishment, the death penalty punishment of impeachment is
necessary or appropriate for the President's wrongful conduct.
This does not get to the question of whether those seeking the
President's impeachment have presented a scintilla of factual
evidence to justify or to meet a burden of clear and convincing
evidence. They have not presented a single fact witness. But
that is for another day. Hopefully they will come to their
senses and meet that clear and convincing standard of proof
requirement.
But my friend from Indiana, Mr. Buyer, was saying, that
when you raise your hand to tell the truth, that is so
important. Of course it is important. Anyone who violates that
can be sued civilly and criminally. But is the violation of
that oath per se treason, bribery, or other high crimes and
misdemeanors, so we need to add the punishment of impeachment
and removal to the punishment the President can already
sustain, civil punishment and criminal punishment; knowing, of
course, that the punishment of impeachment and removal is not
just a punishment and will not just have an effect on President
Clinton, but it will have an effect on the entire country and
perhaps the world?
So that is the standard. No one has the right to draw to
themselves the mantle of the protector of the rule of law, even
if you believe he lied under oath, know that most scholars say,
lying under oath is different than perjury, which is lying with
specific intent, and it has a material effect. But even if you
believe lying under oath is wrong and rises to the level of
impeachment, ask yourself if that was what the Founders had in
mind by treason, bribery, and high crimes and misdemeanors? And
say, is that an appropriate punishment that fits the offense,
the wrongful conduct of President Clinton? That is what we have
to decide. I hope my colleagues will bear that in mind.
Again, on the issue of whether or not any factual evidence
has been brought before us by those seeking the President's
impeachment, I dare say, not yet. That disturbs me greatly,
because I believe that the American notion of fairness and due
process puts the burden of proof on the accuser to prove by
clear and convincing evidence someone's guilt.
It gives the accused the right to demand the accuser meet
that burden before the accused says anything, if at all. It is
not up to the accused to prove his or her innocence. That is
the American way. That is our rule of law in America. I hope we
will get to that sometime before this inquiry is completed.
Thank you. I yield back.
Mr. Sensenbrenner. The gentleman's time has expired.
The gentleman from Georgia, Mr. Barr.
Mr. Barr. I would like to yield 30 seconds to the gentleman
from Ohio, Mr. Chabot.
Mr. Chabot. I thank the gentleman for yielding. In the
previous testimony here, it was assumed that the President lied
to protect his wife and his daughter, et cetera. But I think it
is just as likely that he lied in order to defeat a fellow
citizen's lawsuit against him, a sexual harassment lawsuit
which was a very significant lawsuit.
I yield back. I thank the gentleman for yielding.
Mr. Barr. Thank you. You all are here today in support of
the President, in defense of the President. I understand that.
That is certainly very appropriate. You all are not here to
present new evidence in terms of rebutting evidence, evidence
that might rebut the specific charges against the President,
but rather to present your opinions or evidence, as you may
call them, of your view of impeachment; as Father Drinan said,
to contrast the procedures in Watergate, your view of the
standard that was used then, as opposed to the standard that
either is or should be used here.
That is fine. That is part of the process here. What I find
somewhat disturbing, though, is the effort by many of the
defenders of the President to really mischaracterize, in their
zeal to defend the President and rewrite history, to
mischaracterize prior proceedings and put them in a light that
really, on careful examination of the actual, historical
record, really is not quite fair.
For example, we have heard from the President's defenders
how it is that there is not sufficient time for the President's
lawyers to engage in whatever it is that they want to engage
in, a thorough and sifting cross-examination, perhaps, or what
not.
We constantly hear, particularly from the oh, so eloquent
ranking member of this committee, how fair the proceedings were
in Watergate as contrasted to the all unfair proceedings
currently.
Yet, in fact, according to many of those involved in your
very proceedings back in 1973 and 1974, for example, with Jerry
Zeifman, a lifelong Democrat, the chief counsel from '73 to '74
of the committee, there was a tremendous battle in your
committee, particularly among the staff and among the chairmen.
In fact, one Hillary Rodham--of whom we have heard mention
in other proceedings in which we have been engaged as one of
the authors of the impeachment research document that many of
us referred to as part of the paper that was put together by
the Watergate impeachment staff, that stands for the
proposition that the impeachment is indeed a political process,
that it is not necessary to show violation of criminal laws,
and so forth, for impeachment to lie--according to Mr. Zeifman,
Hillary Rodham wrote a memorandum arguing that President Nixon
should be denied any representation of counsel. In fact, in
many of the proceedings Mr. James St. Clair, who basically was
Mr. Craig's predecessor, Special Counsel of the President,
wasnot allowed to participate.
Also we have heard a great deal about the lack of evidence
as opposed to or in addition to the material that Judge Starr
sent us, as if this is somehow also at diametric odds with the
great open, thorough, and sifting search for the truth in the
Watergate proceedings.
As a matter of fact, again drawing on not my research but
the research of those involved, such as Mr. Zeifman, it is very
clear, as he documents, that in fact on the morning of May 9,
1974, the beginning of the so-called Watergate hearings by the
committee on which you all served, they consisted of nothing
more in open session than the chairman gavelling them to order
and then going into executive session for many days, at which
time new evidence was not received. There was none received. It
was simply a rehashing and a reading of the evidence that had
been developed by other sources, such as the Irving committee.
That really formed the basis for your all's deliberations.
I am not arguing with that. But what I am arguing against
and want to set the record straight is that all these
sanctimonious references to how open the proceedings were back
in 1973 and 1974, as contrasted with the proceedings that we
are moving through nowadays, based in large part on the very
voluminous work of Judge Starr, and on which case we have given
certainly a great deal of time to the President's lawyers, not
what they would like but a great deal of time, is somehow much
less worthy of the work of this committee and the Congress. In
reality, the procedures were very, very much the same.
Mr. Sensenbrenner. The gentleman's time has expired.
Mr. Owens. I just wondered if an old has-been can rise to a
point of personal privilege. Mr. Canady quoted me out of
context, and I have now got the correction, and I think it
would be a one-minute reading if I might be permitted to
correct the testimony he gave.
Mr. Sensenbrenner. I will be happy to indulge the witness.
Mr. Owens. I am now in agreement with myself.
Mr. Sensenbrenner. Well, then you ought to set the record
straight.
Mr. Owens. Does the gentleman permit it, the Chair?
Mr. Sensenbrenner. Yes.
Mr. Owens. Thank you very much. Page 549 of the hearings, I
don't know the date, the gentleman's former boss, my good
friend Caldwell Butler yielded me 2 minutes.
``I believe Mr. Nixon did knowingly underpay his taxes,'' I
said, in the four years in question, ``by taking unauthorized
deductions, and he knowingly ordered or caused to be ordered
improvements on his properties in Florida and California at
government expense. These are offenses against the people, and
I think the government should pursue its remedies. But you
don't impeach for every offense, nor, on the other hand, do you
excuse any offense by saying others did it. But whether to
impeach or not is a question of judgment, permitted to each of
the members; is it sufficient, is it that serious, and, on the
evidence available, these offenses do not rise in my opinion to
the level of impeachability. It is not sufficient to the
standards. I promised the people of Utah when I sat down to
impeachment that I would impeach only if there were hard
evidence and which was sufficient to support conviction in the
Senate, and I found it in four instances, and I do not find it
this 6th, to which I feel I must apply the same remedy.''
I thank the Chair.
Mr. Sensenbrenner. Thank you.
Mr. Canady. Mr. Chairman, I ask unanimous consent to
respond to the gentleman.
Mr. Sensenbrenner. The Chair will state that you can ask
somebody else who is recognized for time, but if we start this
kind of a debate, we are going to be here until 4 in the
morning rather than midnight.
My colleague from Wisconsin, Mr. Barrett, is recognized.
Mr. Barrett. Mr. Owens, I was the person who handed that to
you.
Mr. Owens. Thank you very much.
Mr. Barrett. The reason I did was earlier today I joined in
with Mr. Pease because I felt it was wrong for committee
members to castigate members and to question their motives. I
think that the standard applies to us as well, and I think it
is wrong for us to take words out of context and apply them to
the witnesses, and that is exactly what was done to you. And I
felt that once you did read your entire statement from 24 years
ago, that you would agree with yourself, and I am glad that
you----
Mr. Owens. I thank the gentleman. That is a very nice
courtesy to an old has-been. Thank you very much.
Mr. Barrett. When this proceeding started three months ago
or four months ago, the Chairman indicated that he felt by the
end that it would be bipartisan. I think he couldn't conceive
that we would vote out articles of impeachment, I don't know if
he was referring to the House or to the committee, on a
strictly partisan basis. All indications, of course, are that
five days from now, or two days from now, we will do exactly
that, and I have had many constituents who have come to me and
said there is something wrong here. Aren't there any
Republicans that agree with the Democrats, aren't there any
Democrats that agree with the Republicans? And they are right,
there is something wrong here, because we have been hearing
that this would be a vote of conscience, and it defies logic,
even for the most partisans, to think that there is not one
person on either side of the aisle that is buying the
arguments.
I think that part of the problem is that we haven't triedin
any way to work on a bipartisan basis in open committee. Some of us
have tried behind the scenes to see if we could move this along. I am
of the firm belief, as I have said many, many times, that the President
was wrong in his actions, that he should be held accountable. But I
also think it has to be done in a bipartisan way, and we are not
anywhere close to doing that.
So I am looking to you three for guidance. Since the
committee did work in a bipartisan way, give us some tips as to
how we can bring this to closure, because, again, as I have
stated, for the sake of the American people, we have to get
this resolved and we have to get it resolved in a manner that
at least a majority of the American people feel is fair. I will
ask you, Ms. Holtzman, if there is any advice you have. I
realize you are all Democrats and I should be asking the same
of some Republicans, but I think this committee needs some
counseling and I am asking you to provide that.
Ms. Holtzman. I don't have a therapist's hat to put on, and
I don't want to presume to give you that counsel, but I must
say I am troubled by what I hear, for example, with regard to
the issue of evidence. On this side I have heard some
Republican members say, well, if they want to hear it, let them
call the witnesses. It didn't work that way during Watergate.
We had a Republican--we had two Republican counsels, actually,
and they worked together, the committee worked together in
calling the witnesses, in trying to reach that common ground.
And if people don't search for the common ground, they are not
going to find it. But the American people will never accept the
verdict of impeachment unless it reflects the common ground.
I think you just have to keep trying, and I would hope the
Chair would lead that effort. Mr. Rodino was the one who made
sure that the articles were not drafted before we had
bipartisan input. Not what happened here, where you had the
Republican counsel listing 15 charges, which reflected perhaps
the view of the majority, but not the views of the minority,
maybe there is some way that people can say, let's stop and see
where there is a common ground for the good of the country and
the reputation of this committee and the Congress.
Mr. Barrett. Father Drinan?
Father Drinan. I agree with you something is wrong. What is
the wrong? We were called here today to say that this group has
not followed what we did in 1974, and I don't know whether we
are going to change any minds. A friend asked me this morning
do you think that anybody will change their mind? And I said I
always think that people can be rational and reasonable, and we
can hope for that. But something is wrong in your terms, when
and if this vote comes out 21 to 16.
Mr. Owens. Mr. Barrett, it seems to me that bipartisanship
would return if the House leadership and committee leadership
would permit members an alternative vote on censure. I say to
the committee, why can't you have a range of punishments here?
I think bipartisanship would return if the House leaders would
allow, if this committee would allow, a vote on censure as well
as a vote on impeachment. Members deserve a full range of
bipartisan responses to deal with the President's
transgressions.
Mr. Barrett. I would agree with you, and I know on this
committee it is not going to happen. But I think on the full
floor it would be a great injustice to this Nation if we don't
have a vote on censure, because we have been told time and time
again this is a vote of conscience. To deny that vote on the
full House floor would be denying members the opportunity to
vote their conscience.
Mr. Sensenbrenner. The gentleman's time has expired. The
gentleman from Tennessee, Mr. Jenkins.
Mr. Jenkins. Thank you, Mr. Chairman. Let me say thank you
to those of you on this panel. It may become difficult to
recruit members for this committee in the future when they find
that you may have to come back and testify on such matters at
some distant time down the road.
Let me say thanks to all of you, and especially, Mr. Owens,
to you. You have demonstrated a great deal of understanding for
this committee. I think you understand, and I am sure the
others do, too, but you have expressed it more clearly, that
none of us relish this responsibility that we have had thrust
upon us. It is a little bit like when I was in the Army, I went
and reported to basic training through the ROTC program. I had
dreams of becoming an officer and a gentleman, and I remember
one morning at 4 o'clock, we were still pulling KP in the Army
then, and they got me up and the first job they assigned to me
was cleaning out the grease trap. And it left an indelible
impression on my mind as it was not the most pleasant task that
I had ever been assigned to.
But I wanted to ask you, and I think you covered part of
this in your statement, but would you agree that giving false
testimony under oath to a material matter in either a civil
lawsuit or a criminal matter or before a grand jury constitutes
perjury? Would you agree that constitutes perjury?
Mr. Owens. As I understand the definition, it seems to fit
the classic mode.
Mr. Jenkins. All right. And I believe you agreed that
perjury at least can be an impeachable offense.
Mr. Owens. That is correct, but could I ask you a question
in return? Why the House leadership won't let a full range of
punishments come before the House? Because if there is perjury,
it ought to be punished.
Mr. Jenkins. You are talking about punishments. All right,
let's talk about punishments a minute. The Constitution says,
as I read it, that in the event that anybody is accused and in
the event they are convicted, then the remedy is removal from
office plus one additional remedy, perhaps being foreclosed
from holding public office in the future.
Is that not in your mind an impediment to a remedy of
censure either in the House of Representatives or even in the
Senate?
Mr. Owens. Not in the least, Mr. Congressman. There is
precedent. Andrew Jackson was censured. You can introduce any
resolution you want. You can do anything that you can get by
the Parliamentarian here. There is no question in my mind that
it is totally constitutional, and here it is very practical. It
would solve a very real problem.
Mr. Jenkins. So that doesn't give you any problem that that
remedy is not provided for in the Constitution?
Mr. Owens. None whatsoever, sir.
Mr. Jenkins. All right. Well, let me ask Father Drinan a
question. Father Drinan, it appears to bother you, and I don't
know how this vote is going to turn out. You may be absolutely
right, it may be strictly along party lines. But you seem to be
disturbed that the prospect exists that therecould be 21
Republicans who would ultimately vote for an article of impeachment.
Are you not just as concerned that there might be 16
members of the other political party who would vote no on an
article of impeachment? Does that not concern you too? Does it
not work both ways?
Father Drinan. Sir, I inherit the great tradition of 1974
when first this thing was in the country. We wouldn't do that.
There was something wrong with our judgment if some Republicans
can't agree with us. That was the beginning, from day one, that
we can't trust our own judgment unless we have some Republican
support. And we got seven people in the end.
Mr. Jenkins. Are you working on getting anybody on the
other side of the aisle to change their mind, Father Drinan?
Father Drinan. I think it would bother me all the time if
there it is strictly partisan. There is something wrong with
the logic if it doesn't appear to the other side.
Ms. Holtzman. May I respond just briefly? We wrote the
articles of impeachment with Republicans. They weren't crafted
by one side that said here, take it or leave it. It was a joint
effort, a joint writing.
Mr. Jenkins. I am about to run out of time, but if I have
time, Ms. Holtzman, you said that a trial would disrupt the
workings of the Supreme Court, is that correct?
Ms. Holtzman. I believe so.
Mr. Jenkins. Was that true in 1974?
Ms. Holtzman. We didn't get to that point.
Mr. Jenkins. Would it have been true if you had gotten to
that point?
Mr. Sensenbrenner. The gentleman's time has expired. The
gentleman from Arkansas, Mr. Hutchinson.
Mr. Hutchinson. Thank you, Mr. Chairman. As I listened to
the testimony today, it is like we yearn for the days of
Camelot. I know those were tough times, but it sounds like we
describe them in terms of great bipartisanship and everything
was just smooth in the committee. Last night I had an
opportunity to read back through many of the statements that
were made during the Watergate proceedings, and I enjoyed the
statement of James R. Mann, a representative at the time, who
said something like you know some of the things that cause me
to wonder are the phrases that keep coming back to me, oh, it
is just politics, or, let him who is without sin cast the first
stone.
So, I look back and I think you all heard some of the same
things that we hear today, and I am impressed, no question
about it, with your ability to achieve in the end not total
bipartisanship, but some consensus where some Republicans, the
minority, looked at the facts and concluded that there were
impeachable offenses committed.
Now, I don't know who is right or wrong, but I do respect
the other side that they are looking at this as a matter of
conscience. I think we are all looking at this as a matter of
conscience. It happens to divide us though. And I look at this
panel right here, you know, there is disagreement right here,
and you three reflect it. Father Drinan has tried to soften his
comments based upon Mr. Owens' comments, but Mr. Drinan, you
were very clear the last time you testified that censure was
totally unacceptable, and I think you have tried to soften that
today out of respect for your colleague. In fact you said at
that time, there is no procedure for congressional censure and
that the introduction of such a procedure could weaken the
independence of the presidency and be a danger to the integrity
of the separation of powers.
Is that an accurate quote, Father Drinan?
Father Drinan. And I say it again.
Mr. Hutchinson. So the point is, there is disagreement even
on this panel. I look at the testimony of Mr. Owens, and I
wrote this down when you said it, but you said the President
did lie to the grand jury, and then you conclude there should
be a different outcome. And you said that his presidency was in
danger, and that is one of the reasons that motivated him to
lie, as well as protecting his family.
If you conclude that the President did lie to the grand
jury, and that his motivation, whatever his motivation, was to
protect his presidency, well, that rings like 1974. President
Nixon was concerned about his presidency.
Mr. Owens. Now, wait, Mr. Congressman, that is not what I
said, with all respect.
Mr. Hutchinson. Tell me where I am wrong.
Mr. Owens. I said that I think he did lie, and I think his
response----
Mr. Hutchinson. You said lied to the grand jury, is that
correct?
Mr. Owens. Pardon me?
Mr. Hutchinson. I wrote it down that you said the President
lied to the grand jury.
Mr. Owens. Initially he lied, I think, in his testimony in
the civil deposition, and then reiterated by implication that
testimony in that grand jury. I think I meant to say the civil
testimony, but I think by implication that it is also true with
regard to his grand jury testimony.
But the point here is that the President was not
defending--was not covering up a gross abuse of the
presidential office, he was covering up a stupid infidelity, a
sexual transgression. And I think very clearly he was
concerned, I think, mostly about his wife and about his family,
and then also by the great embarrassment, ultimately the
presidency.
Mr. Hutchinson. I don't think I misquoted you then. What
you just said is not any different than what I said you said.
Mr. Owens. If I said what you said I said, then I didn't
mean to say what you said I said, and I apologize.
Mr. Hutchinson. The point is, I think there is a difference
among the panel, and I think there are some respectful
differences in this body. I respect my colleagues, even though
they might have a different view of this. I think it is an
extraordinarily serious matter.
I come as a former prosecutor. Perjury is just an
extraordinarily serious thing to me, and I am weighing that.
And so I just hope that America can see that we are trying to
do this carefully and thoughtfully.
One other point, finally. Some of you have referenced the
``beyond a reasonable doubt'' standard that arguably was
applied, and I have heard that mentioned twice. In reading your
statements in 1974 as well as the committee report, I believe
that each of you applied the standard of clear and convincing
evidence ``and not beyond a reasonable doubt.'' Am I correct in
that?
Father Drinan. That is my recollection, yes.
Mr. Owens. The testimony that I just read into therecord in
response to Mr. Canady's earlier quote says that I promise that I would
impeach only if there were hard evidence and which was sufficient to
support conviction in the Senate. That is my 1974 testimony. I wouldn't
say that at another time I didn't talk about clear and convincing, but
the test I had set for myself was ultimately what would sustain
conviction in the Senate. But I am sure----
Mr. Hutchinson. It is in the record and in the additional
views. It was clear and convincing.
Mr. Sensenbrenner. The gentleman's time has expired. The
gentleman from Indiana, Mr. Pease. The gentleman from Indiana,
can you yield to me for one quick question?
Mr. Pease. Of course, Mr. Chairman.
Mr. Sensenbrenner. I would like to ask the panel, having
heard about the necessity for bipartisanship, if during the
1974 Watergate hearings all of the Republicans who were then
serving on the Judiciary Committee got taken in by the Nixon
White House stonewall and refused to vote for any of the
articles of impeachment, would the Democrats on the committee
have gone ahead and reported them out of committee and referred
them to the House for debate and vote?
Ms. Holtzman. But that is not what happened, Mr. Chairman.
What happened is----
Mr. Sensenbrenner. The question, Ms. Holtzman, was you said
that it was necessary to report out articles on a bipartisan
basis. My question is if bipartisanship could not have been
achieved in 1974, would you have proceeded to report the
articles out of committee and sought a floor vote on those
articles? It is a simple question that can be answered yes or
no.
Ms. Holtzman. Well, I don't know that anybody can rewrite
history. The fact is that the committee worked together to
achieve a bipartisan result. We crafted articles of impeachment
because--together--because we understood that the country would
never accept a partisan impeachment and we wanted to make sure,
because in answer to Mr. Hutchinson----
Mr. Sensenbrenner. I guess I am not going to get an answer
to that question. I will give the time back to Mr. Pease. Mr.
Pease is recognized. He can proceed as he wants.
Mr. Pease. I did want to follow up on my colleague Mr.
Hutchinson's line of inquiry regarding the proper standard, and
whatever folks may have said 25 years ago or today is not as
important to me as the current discussion of what you think
ought to be the standard. Whatever the differences may be on
what constitutes an impeachable offense, what do you think
ought to be the standard, number one, and we have heard beyond
a reasonable doubt and clear and convincing; and secondly, what
do you think ought to be the process by which we make the
decision about whether to go forward? Whether that ought to be
simply that we believe there is probable cause, or whether it
ought to be that we believe that there will be a conviction in
the Senate, or whether it is something in between, such as
whether there is sufficient evidence for a conviction, not
necessarily a certainty that there will be?
I know that is two major questions for a short period of
time, but if you could address both of those, I would
appreciate it. We will just start with Ms. Holtzman.
Ms. Holtzman. I tried to address it in my testimony, that
very point. Personally when I voted for impeachment, I believed
that we did have evidence beyond a reasonable doubt and that
that was the standard that in our hearts we used. If we had to
articulate it, maybe we wouldn't, and maybe that standard
doesn't have to apply. But it has to be a very, very high
standard, because of the disruption of the country that you
should be able to do.
With regard to how you assure yourselves, I would say
definitely not as a grand jury. We are not dealing with
probable cause. We believed when we voted for the impeachment
of Richard Nixon, we believed not only that he should be
removed, but that he would be removed and that he had to be
removed.
Mr. Pease. Do you believe that that ought to be the
standard?
Ms. Holtzman. Yes, because I don't think you start this
process lightly. I think you have to have in your head that the
conduct warrants removal and that the likelihood of removing
him be there.
Father Drinan. Sir, the evidence was so overwhelming that
we didn't have to get to the refined question of clear or
present or beyond every reasonable doubt. It was just so
absolutely baffling.
Mr. Owens. Mr. Pease, I don't think the grand jury analogy
is perfect here, and thus clear and convincing is not
necessarily definitive and not the best answer.
I thought that and feel today where the country is so
polarized on this issue, and it was not in 1974, I think today
that unless you have, not only clear and convincing evidence,
but evidence beyond a reasonable doubt to justify your
indictment of the President, that you ought not to indict, that
you ought to have another alternative punishment in mind.
Mr. Pease. Thank you all. I know there is not much time
left, but I yield what I have to Mr. Canady.
Mr. Canady. I do want to respond to the point that was
made, which is totally erroneous. I did not misrepresent the
gentleman's testimony, and I think if you look at the
testimony, you will understand that the gentleman from start to
finish focused on the inadequacy of the evidence that was
before the committee, what you referred to as hard evidence.
And that is inconsistent with what you have represented to the
committee here today, that the committee at that point was
deciding to drop the matter because they decided that it was
not an impeachable offense.
You end up saying to the committee I urge my colleagues
based on that lack of evidence to reject this article.
Your whole focus was on a lack of evidence, and not on the
claim that you have made today that tax fraud, even if proven,
would not be an impeachable offense.
Mr. Owens. Well, the gentleman has not given me the
courtesy of giving me a copy of my remarks, and I don't have
them in mind.
Mr. Canady. You have them before you. You read from it.
Mr. Owens. I have this page, and I just quoted it to the
gentleman.
Mr. Canady. You know the paragraph that comes right after
it. It is right there. I ask unanimous consent to place these
full remarks in the record of the hearing.
[The information follows:]
[GRAPHIC] [TIFF OMITTED] T3320.017
Chairman Hyde [presiding]. Without objection, so ordered.
The gentleman's time has expired. Mr. Cannon.
Mr. Cannon. Mr. Chairman, I would like to begin by
associating myself with the remarks of Mr. Goodlatte, when he
said President Clinton's purpose appears not to have been to
avoid personal embarrassment, but to obstruct justice in the
Jones case and to suggest it to the American people that we are
all looking for evidence from the President to the contrary on
that point. I would also like to associate myself with your
comments, Mr. Chairman, about where you asked the question how
inconvenient is the erosion of the rule of law comparing that
to the inconvenience of an impeachment of the President.
Now, we have some parallels today between myself and one of
my witnesses, that is Mr. Owens from Utah. He was a freshman in
the Nixon impeachment 24 years ago, as am I. We are both
lawyers, we both have deep interests in Utah, and national
public lands issues. I might say that we also have some very
deep differences that divide us, but I don't think that that
goes beyond our friendship.
Frankly, Mr. Owens, I was intrigued by the comments that
you have made without much opportunity to really flesh them out
about censure. I take it you believe that censure is an option
we ought to have. Frankly, I think that is something that many
of us on the committee would like to see at least debated.
Personally I am not yet of a view that censure is appropriate,
for which I would like to hear your comments.
You have talked about the seriousness of what the President
did. Would you mind, first of all, commenting about the
seriousness of what the President has done and why censure is
appropriate in that context? And then if you would deal with
issues like whether a penalty like a monetary penalty or an
appearance in the well of the House would be appropriate?
Mr. Owens. Well, I appreciate my friend from Utah's giving
me this opportunity. I have argued for a long time, before
Gerald Ford made it in a more persuasive way, that censure is
the alternative here which should be considered.
To lie, to mislead, under oath, and in my mind to look into
the eyes of the American people and say in a straight, very
straightforward way what is not just misleading, was a lie,
that he ``did not have sex with this woman, Ms. Lewinsky,'' I
think deserves some punishment. But it does not rise to the
level of impeachability, as I said several times, and that
there ought to be an alternative way of expressing the
displeasure and the disapproval of the Congress, and state such
before the American people. The American people, according to
polls, would support censure.
Mr. Cannon. How do you make censure substantial? Personally
I don't think it means much. Would you add a penalty?
Mr. Owens. I am not involved in any of the negotiations,
but, of course, the press is saying the President would pay up
to $300,000. I don't know, it sounds a little like another deal
in this body recently----
Mr. Cannon. I think that deal would result in $4.5----
Mr. Owens. I am sorry?
Mr. Cannon. I think that deal, if you modeled it on that
deal, it would be about a $4.5 million penalty.
Mr. Owens. Well, whatever. The President would have to
agree to it, because you couldn't assess it. You have no
authority, constitutional authority, to do anything in any
material way to the President's powers short of impeachment.
Mr. Cannon. If the President agreed to it, what does that
do to separation of powers?
Mr. Owens. The pain would be that he would be the second
President in the history of the country to have been censured
and condemned by this body. I think President Clinton would do
whatever you require. He would pay, if he does pay a fine, he
would come to the well of the Senate, or the House, and express
his apologies and accept responsibility. That would be a very
degrading experience, but it would get us beyond this crisis.
It would be a powerful punishment, and in my view, as an old
25-year observer of these issues, I think would be an adequate
punishment, a proper punishment.
Mr. Cannon. I wish I had more time, because I would like to
pursue it, and maybe we can privately, but it seems to me the
issue here is not punishment of the President; it is political
hygiene, it is solving a problem, it is solving an example of
the destruction of the rule of law, of the sanctity of perjury.
I don't care whether the penalty is large or small. It
doesn't seem to me that is the issues as much as the
constitutionality of a penalty. I think that the submission of
a President to either a penalty or to standing in the well of
the House and demeaning the office of the presidency is a far
graver constitutional problem than the inconvenience of an
impeachment hearing, and thus I find myself compelled to think
that there is only two alternatives, impeachment or
vindication.
Thank you. I yield back the balance of my time.
Chairman Hyde. The gentleman from California, Mr. Rogan.
Mr. Rogan. Thank you, Mr. Chairman.
I not only welcome our former colleagues to the Judiciary
Committee, but if I may be so bold, I welcome you home. I was a
15-year-old rabid liberal Democrat during the Nixon impeachment
debate. Having been transfixed to the television in those days,
you were all heroes of mine. Although I am now more selective
in my party affiliation, I still deeply respect your service to
our country and to the Congress.
Mr. Owens. I hope it wasn't our impeachment of the
President which made a Republican of you, sir.
Mr. Rogan. No, I just gave up drinking hard liquor!
[Laughter.]
A couple of things: First, with respect to the concept of
censure, it is a fact that Andrew Jackson was censured by the
Senate of one Congress, and then the censure was expunged by a
later Senate when its majority makeup were of Jackson's own
party. Further, my recollection in the law is that an
``expungement'' means that the act never occurred for legal
purposes. In fact, when criminal records are expunged,
defendants can apply for a job and put down that they have
never been convicted, and that legally is a truthful statement.
So one of the problems with censure is that it can be removed
and be expunged from the record.
But I don't want to spend my time belaboring that point.
There are a couple----
Mr. Owens. Might I just comment on that, Congressman?
Mr. Rogan. If I have time remaining, Congressman Owens, I
would be more than happy to invite comment. But, as you know,
the red light does come on rather quickly, and I do want to
make a couple of observations.
I am very proud of the fact that during the Watergate era a
number of Republicans who served on this committee were
prepared to put their party affiliation aside, to look at the
merits of the case, and cast what had to be one of the toughest
votes of their entire career.
I remember as a freshman member of the California State
Assembly voting against the budget of my Governor and how tough
that was. I can't imagine what it had to be like for members of
the Republican Party on this committee to vote to impeach the
President of their party--probably a President who had appeared
in their districts, had raised money for them, had supported
them and had campaigned for them.
Today there is the suggestion that if committee Democrats
do not vote for any articles of impeachment, and all the
Republicans on this committee do vote for articles of
impeachment, that somehow delegitimizes the vote of this
committee. I certainly hope that is not the expression that any
of you are trying to make.
I will cast my vote ultimately as a matter of conscience. I
would never suggest that any of my colleagues on the other side
would do anything other than the same.
I know all of my colleagues on this committee, and I deeply
respect them. On matters of grave national urgency not relating
to impeachment, such as economic principles, foreign affairs,
national security and the like, there are times when there are
party line votes. It doesn't necessarily mean that partisanship
is ruling the day. It means that people with honest differences
of opinion have done their very best to make a decision as they
see fit. And I am sure that has been the repeated legislative
experiences of our three former colleagues who join us today.
I am also concerned about what I perceive to be a double
standard, not necessarily promulgated by this panel, but
certainly suggested throughout the day by some. We are
constantly being reminded that there are polls that have been
taken suggesting that the American people do not want the
President to be impeached and, therefore, Congress should
abrogate their constitutional obligations and simply follow the
polls.
I reject that notion. The polls are interesting. They are
something we politicians take into account. But if polls alone
are to govern our judgment, we then should just simply shut
down the legislative, executive and judicial branches and turn
governing over to Dr. Gallop's organization.
If somebody wishes to press the issue, then I respectfully
suggest they consider the other side of it. The latest poll I
have seen says that if the President lied to a grand jury, he
should leave office--by a 57 percent margin. Further, the polls
showed that if the President encouraged others to lie, he
should resign. The agreement on that principle was 60 percent.
Now, we don't see supporters of the President who argue we
should follow the polls in committee down to the White House
and saying, ``Mr. President, the polls explicitly say over and
over that you should resign from office if you have lied.'' One
can't have it both ways. In fact, according to my notes, even
Congressman Owens said today he believed the President lied
before the Federal grand jury.
Those are a couple of observations I wanted to make with
respect to the testimony that has been elicited today.
Chairman Hyde. The gentleman's time has expired.
Mr. Rogan. Thank you, Mr. Chairman.
My apologies to Congressman Owens. I was trying to squeeze
a few seconds out for you.
Chairman Hyde. The gentleman from South Carolina, Mr.
Graham.
Would Mr. Graham yield to me for just a second?
Mr. Graham. Absolutely.
Chairman Hyde. Put your mike on.
Mr. Graham. Absolutely.
Chairman Hyde. Mr. Rogan was talking about the efficacy of
polls in our political careers, and I would like to ask Father
Drinan a question, if you would, on polls. Someone said that if
Jesus had taken a poll, he would never have preached the
gospel. Do you agree?
Father Drinan. That is beyond my realm.
Chairman Hyde. Okay. I hope not. Mr. Graham.
Mr. Graham. Thank you.
Being a Baptist, that gets me going here.
Let me make a couple of observations, and I really do
appreciate your coming. I have talked to at least one of you
privately. And this is very difficult. It is not like
Watergate. It is not exactly what you were dealing with. In
many ways what you were dealing with was probably more serious
or at least you could put your hands around it and say it is
more serious.
You have really got to dig in this case I think to feel
uncomfortable, and the more I dig, the more uncomfortable I
feel, because it is easy to write it off as somebody, like the
deer in the headlights. That is a good analogy. That is what I
thought at first. I thought the President got stunned, he is
trying to protect himself and, you know, he just started
telling a lie and couldn't get his way out of that.
I am not so sure I believe that anymore, but I do believe
this: If we impeach a President based on a consensual sexual
affair, no matter how inappropriate, we are going to screw this
country up, pardon the terms. I don't mean to be crude about
it, but we are going to really mess this country up. And that
has always been off the table for me, because I don't want to
go down that road. Because we have elections, and impeachment
should be reserved for very serious offenses like you were
dealing with.
Now, I would say this to you, that if every Republican had
voted no during your time, history would acquit you well. You
were right to have voted to remove President Nixon.
Let me tell you what I am becoming more and more concerned
about. This is more like Peyton Place than it is Watergate, but
there is a component to this case that is very unnerving.
Richard Nixon cheated the electoral process. I think
Richard Nixon didn't trust the American people to get it right
in an election, and he had operatives going and breaking into
the other side's office, and when he knew about it he cheated
to cover it up. Richard Nixon cheated the American electorial
process.
I am beginning to believe more and more that this is not
about being caught in the headlights, of a person caught in a
lie about a consensual matter, but that the President was very
much, in an organized fashion, trying to cheat the legal system
and cheat the party in opposition to him.
I believe, whether you believe it or not, that when he went
to his secretary and planted a story in her mind along the
lines, Monica came on to me and I never touched her, right? She
wanted to have sex with me, and I couldn't do that--he said
that the day after his deposition, that he had a sinister
motive, not an innocent motive. I believe that he went to Ms.
Currie in an unlawful manner to change her testimony, and I
will tell you later what I think was going to happen to Monica
Lewinsky.
I believe that when his lawyer had to write a letter to the
court saying I apologize for putting a false affidavit in
evidence, that his lawyer was duped by the President. I believe
that, like Richard Nixon, Bill Clinton was very involved in
unlawful activity, to cheat the legal system.
I am willing, with some admissions on his part and
reconciliation on his part to the law, to consider another
disposition, because this is not totally like Watergate.
However, if he does not reconcile himself with the law, if he
continues to dance on the head of a pin, if he continues to
bring people in here who won't say anything about the facts but
tell me how to vote, I don't think he has the character to be
our President, and I will vote to impeach him based on what he
did, not based on any other sinister motive.
I yield back the balance of my time.
Chairman Hyde. I thank the gentleman.
The gentlewoman from California, Ms. Bono.
Mrs. Bono. Thank you, Mr. Chairman.
Way a long time ago, Mr. Owens, you made a comment that hit
me pretty hard. You mentioned that it is our fault that 7-year-
olds in this country have heard about sex, and I disagree with
that statement wholeheartedly.
I think that we have to remember that the President is a
role model. It is solely his actions that have caused this, not
ours. I think if we start with that, at least putting some
responsibility where it belongs, it is a pretty good start, at
least as a parent. I would like to just point that out. I don't
know if you truly meant that it is our fault.
Mr. Owens. I don't think I said it in that fashion. I said
it is this committee's responsibility or fault that they passed
the raw grand jury evidence directly, unexpurgated, gave to
America, to the 7 and 8 year olds, the knowledge, or raised the
question of, what oral sex is, what telephone sex is and what
you can do with a cigar sexually.
I was interviewed yesterday in Salt Lake City as I left by
a reporter who said, I don't appreciate my little children
asking me those questions.
Mrs. Bono. Mr. Owens, I get that question more than
anybody. I really have to say I get that quite often, and I
have to tell you that is not quite what you said, and it is
nobody's fault. It is not our fault. The responsibility must
lie with the President with this one. You know, the buck has to
stop there on that one.
I want to make a point generally in response to what the
witnesses have said today. You have said that in 1974 you voted
according to your consciences and have no regrets. Please know
that now, in 1998, we are proceeding according to our
consciences based on the facts and the law. None of our guests
have done what my colleagues and I have done. That is gone to
the Ford Building and reviewed the thousands of pages of
documents and watched the videotape deposition. Those are the
facts that are relevant to this inquiry. I am sure if you had
taken the time to review this compelling evidence that you
would also support the impeachment with no regrets.
But my question is to you, Ms. Holtzman, somebody I respect
and I admire for having been in this seat years ago. If in 1974
you would have had no Republican support whatsoever, would you
still have reported out those articles of impeachment?
Ms. Holtzman. Well, I know you go back to that because you
find yourself in a very awkward position, where you don't have
the support and there is no bipartisan support. So I want to
urge what my colleague Wayne Owens said, which is to find an
alternative that can bring Republicans and Democrats together.
Because even if you are voting in your conscience, in the
end, how does the public judge the legitimacy of these
proceedings? If it is bipartisan, if there is a common ground
found, that is something the people can take away and say the
Congress acted properly. If it doesn't find the common ground,
then the people are befuddled and confused and bewildered. That
is what I am saying.
This is such a serious effort, and I don't mean to minimize
the search of your conscience or the difficulty of this job. I
was there. It is not easy. What I am saying to you is how
important it is to come away with public respect for and public
confidence in what you are doing. Maybe the common ground that
is not your first choice, but maybe, if we are going to live
with this verdict for history, it is the best choice.
Mrs. Bono. I am curious, what evidence do you base this on?
And have you seen the videotape deposition or read the
transcript in its entirety? What are you comfortably basing
your opinion on today?
Ms. Holtzman. Well, you don't have bipartisan support right
now. I am trying to say to you, in terms of ultimately how this
go down in history and how the public will accept it and how
they will deal with----
Mrs. Bono. My question is a simple one.
Ms. Holtzman [continuing]. They won't. It will be
difficult.
Mrs. Bono. Can you answer my question?
Ms. Holtzman. I am sorry. I must have misunderstood your
question.
Mrs. Bono. You must be a lawyer, because you are good at
this.
My question is very simple. It is a very simple one, but,
actually, Lindsey Graham has asked for me to give him my time,
and I will be happy to do that.
Mr. Graham. I don't mean to interrupt. Just do you believe
the President committed grand jury perjury, Ms. Holtzman?
Ms. Holtzman. Well, he came very close to a line. I don't
know whether he danced over it----
Mr. Graham. But--very close, but no cigar. Let me tell
you--and, every time, that shows you the problem, where this
case--there is a thousand million jokes out there. This is
serious. There is a thousand million jokes, and you can't go to
Rotary Club--and it is not because of our fault. It is because
of Bill Clinton's fault. And if he doesn't reconcile himself
with the law--he committed grand perjury. And when you come to
believe that like we do, if it is 21-16, so be it.
Ms. Holtzman. But if you do it, you need to do it with
evidence. You need to do it with the facts. You need to do it
with witnesses. You have to assure the public that this process
has been one that is honorable.
Chairman Hyde. The gentleman and the gentlewoman's time has
expired. And Mr. Conyers, who reserved his time earlier today,
is now recognized.
Mr. Conyers. I want to congratulate my former colleagues
for a long afternoon and evening's work here. You have helped
me keep hope alive that we might somehow be able to persuade a
few Members of Congress, maybe even on this committee, some of
whom have spoken today, about evidence against the President.
But, you know, generalities are not enough to impeach.
Instead, there must be concrete evidence that is clear and
convincing and arises to the level of an impeachable offense.
And when we look at the evidence, examine it carefully, what do
we see? An allegation of perjury in the Paula Jones deposition.
Well, what we see beyond the fact that the President's
testimony was not material is that he was confronted at the
deposition with a tortured definition of sexual relations that
he hadn't seen before and which was inconsistent with the
Webster definition. To make matters worse, the presiding judge
changed the definition as the President sat there.
The simple fact supported in the record is that the
definition was ambiguous, and it is the Jones lawyers, not the
President, who bear the responsibility for that ambiguity. They
could have just asked the President who touched who where, but
they chose not to. The President can't be blamed for that. That
cannot, therefore, be the foundation for an article of
impeachment.
Now, my friends across the aisle say that the President
lied in the grand jury, but they neglect to mention that he
admitted to an improper sexual relationship there. So then we
have these three alleged, attenuated theories of perjury: that
the President somehow understood the term ``sexual relations''
to be something more than the limited and contorted definition
provided by the Paula Jones lawyers; two, that he lied about a
difference of a mere 3 months regarding the inception of the
relationship; or, three, that he actually touched Ms. Lewinsky
in certain places.
Ladies and gentlemen, are we serious? Do we really intend
for the second time in our history to impeach a President over
a case that holds out these weak, puny perjury charges as its
foundation? Do we wonder why this committee's ratings are not
going up? We are in trouble here inside of this room.
Some of my Republican friends have realized the flimsy
nature of these allegations and are trying--well, they are
grasping at an even perhaps less persuasive case on
obstruction.
Think about where that goes. They say that Lewinsky's
return of the gifts somehow amounts to obstruction, but then
again neglect to mention that the testimony clearly establishes
that Ms. Lewinsky and not the President sought the return of
the gifts.
Remember also that Monica Lewinsky said no one told her to
lie, no one promised her a job. The job search started long
before the Jones case, and Betty Currie wasn't even on a
witness list when the President refreshed his recollection with
her. So that conversation could not possibly lead into witness
tampering.
Now we hear novel charges that the President lied about his
conversations with Vernon Jordan. But when you examine the
record closely, the record is clear that the President answered
poorly worded questions regarding his conversation with Jordan
to the best of his current knowledge. There is no evidence that
he gave false answers.
So I close, the charges against the President, when
stripped away of partisan rhetoric and factual gaps, are, in
reality, a paper tiger. Do we on the Democratic side contest
the charges? We sure do, and we assert that this committee has
done no independent factual inquiry, no evidentiary witnesses
as it is incumbent upon them to do to justify any case of
impeachment.
I am delighted to, if the Chairman will allow any of you
that would like to make a comment about my assertions as the
final questioner, perhaps you might want to try that. Father
Drinan?
Father Drinan. You want additional comments?
Mr. Conyers. Well, no, if you had something that you added
to my comments. But I didn't want to prolong my time. It has
expired.
Father Drinan. I think we all have to pray for each other
so we can come to the right decision.
Chairman Hyde. That is a very----
Mr. Conyers. That is appropriate.
Chairman Hyde. That is a very appropriate note to end this
session on.
Mr. Owens. Mr. Chairman.
Chairman Hyde. Who is seeking----
Mr. Owens. In front of you, sir. I just want to commend you
for your conduct of these hearings. I think you bring great
integrity to them.
Your old friend from Utah strongly believes that if you are
to heal the country and bring us together you have to give an
alternative for a censure resolution, and I urge in the
strongest way that you afford that opportunity to your
colleagues in the House. I thank the gentleman for his
courtesy.
Chairman Hyde. I certainly hear what you are saying and
take note of it.
Ms. Holtzman. I would like to echo his comments, Mr.
Chairman.
Chairman Hyde. Fine. I just want to thank you all, three
wonderful troopers, former members of this great committee, and
we were instructed and illuminated by your being here today.
Mr. Owens. Any time you want us to come here and tell you
how to do your job, Mr. Chairman, you just give us a call.
Chairman Hyde. You may have to wait in line, but that is
fine. Thank you so much.
Now we are ready for the next panel.
Our third panel is composed of James Hamilton and Richard
Ben-Veniste. Would the witnesses please rise to take the oath?
[Witnesses sworn.]
Let the record reflect the witnesses answered the question
in the affirmative.
James Hamilton is a member of the Washington, D.C., law
firm of Swidler, Berlin, Shereff & Friedman. He served as
Assistant Chief Counsel in the Senate Watergate Committee and
is the author of The Power to Probe, a Study of Congressional
Investigations. He is former Chairman of the Legal Ethics
Committee of the District of Columbia Bar.
Richard Ben-Veniste served as an Assistant United States
Attorney and Chief of the Special Prosecution Section in the
Office of the United States Attorney for the Southern District
of New York. He was also Assistant Special Prosecutor and Chief
of the Watergate Task Force from 1968 to 1973. More recently,
he served as Minority Chief Counsel to the Senate Whitewater
Committee during 1995-1996. He has also served as Special
Counsel to the Senate Subcommittee on Government Operations and
as Special Counsel to the Senate Subcommittee on District of
Columbia Appropriations.
Each of you will be recognized to make a 10-minute
statement and then be subject to the 5-minute rule questioning
by the members.
TESTIMONY OF JAMES HAMILTON, ESQUIRE, SWIDLER, BERLIN, SHEREFF
& FRIEDMAN, WASHINGTON, DC; AND RICHARD BEN-VENISTE, ESQUIRE,
FORMER ASSISTANT U.S. ATTORNEY
Chairman Hyde. So, Mr. Hamilton, when you are ready, we
will put the switch on. Either one want to go first?
Mr. Ben-Veniste. I think I will go first.
Chairman Hyde. Very well. Mr. Ben-Veniste.
TESTIMONY OF RICHARD BEN-VENISTE, ESQUIRE
Mr. Ben-Veniste. Thank you, Mr. Chairman, Mr. Ranking
Member and members of the committee.
I have served under Democratic and Republican United States
attorneys as a Federal prosecutor. I have served as an
Assistant Special Prosecutor in the Watergate Special
Prosecutor's Office. I have prosecuted corrupt officials of
both political parties, including the administrative assistant
to a Democratic Speaker of the House.
At the request of both Democratic and Republican Members of
the Senate, I have served in a pro bono or part-time capacity
in various capacities, as the chairman has indicated. I have
been engaged in the private practice of law since 1975 and have
represented clients in a wide variety of civil and criminal
matters.
I am presently a partner in the D.C. office of Weil,
Gotshal and Manges, and, obviously, the views which I express
today are my own. I am providing my observations and analysis
not as a witness to the events in question, but as one whose
professional experience over the last 30 years may provide some
perspective on the issues before you.
I confess that I have spent more than one sleepless night
considering whether anything that I can say will help extricate
us all from the terrible mess that we are in.
In my view, this process has suffered from too much
partisanship, too much hypocrisy, too much sensationalism, and
too little time for reflection.
I ask whether impeachment will become still another arrow
in the quiver of the warrior class of ever more truculent
partisan politicians in Washington. If this is so, will we ever
see an end to the gamesmanship of ``gotcha'' and pay-back that
has already taken such a toll on civility and comity within
these hallowed halls?
I have been talking about proportionality and moderation
for some time. Back in August, well before Mr. Starr sent his
referral to this committee, in an opinion piece published in
the Washington Post I suggested that the appropriate resolution
of the Lewinsky matter was for a group of respected leaders to
come forward and propose a congressional resolution of
reprimand to deal with Mr. Clinton's reckless and improper
personal conduct.
I continue to believe that respect for the momentousness of
the constitutional remedy of impeachment and appreciation of
the common sense application of proportionality to the
offensive conduct in question make a resolution of censure the
appropriate result. Such a resolution, not impeachment, will
give voice to the public will in retaining their twice-elected
President's services, while expressing firm disapproval for his
private conduct.
In my view, such a resolution would be consistent with the
obligations of the House of Representatives and would be in the
best interests of our Nation.
The first Watergate Special Prosecutor, Archibald Cox, was
fired on the orders of Richard Nixon when he refused to back
down after subpoenaing Mr. Nixon's famously incriminating White
House tape recordings. In response to the firestorm of public
opinion following the Saturday Night Massacre, President Nixon
replaced Professor Cox with Leon Jaworski, a conservative Texan
who vowed to continue the investigation with the independence
and professionalism that had marked Mr. Cox's truncated turn at
the helm. By all accounts, Leon Jaworski made good on his
promise, and today his record provides the model against which
all high-profile investigations and prosecutions are measured.
In Watergate, the serious abuses of power committed by the
Nixon administration resulted in the prosecution and conviction
of numerous individuals who held public office during Mr.
Nixon's tenure, including two Attorneys General, the White
House Chief of Staff, the chief and deputy domestic advisors to
the President, a senior advisor to the President, the counsel
to the President, and many others. Their offenses went directly
to the abuse of power of the President's office and misuse of
the CIA, the FBI, the IRS, the FCC, in violation of important
rights of others.
The obstruction of justice and perjury that was committed
in furtherance of the Watergate coverup was designed to shield
higher-ups from detection while blaming everything on the lower
level individuals who had been caught red-handed.
Upon his appointment, Mr. Jaworski immediately withdrew
from his lucrative law practice and devoted himself entirely to
his duties as special prosecutor. Even with President Nixon's
unlawful firing of Archibald Cox, the Watergate coverup case
was investigated and prosecuted within 21 months of the
creation of the Special Prosecutor's Office.
The credibility of the Watergate Special Prosecutor's
Office was dependent on the public's perception that our
investigation would be professional, impartial and fair. If we
had leaked such explosively damaging evidence as President
Nixon's taped instruction to continue the coverup or his
admission regarding the promises of presidential clemency to
the Watergate burglars, it would not only have been unfair, it
would have violated the law. No leaks occurred.
Mr. Starr has the unhappy distinction of being the first
Independent Counsel to come under investigation himself for
unethical and possibly illegal conduct. In addition to the 24
prima facia instances of improper leaks of grand jury material
identified by Chief Judge Norma Holloway Johnson, there was the
spin leak of the Starr referral itself in the days leading up
to its actual transmittal to this body.
Mr. Starr's response to Representative Lofgren's question
as to whether he would release any journalists from promises of
confidentiality, ``that it would be unwise'' for him to do so,
he said, may well be true, but it only serves to reinforce the
basis for Judge Johnson's suspicions.
In addition, the aggressive and disproportionate tactics
employed by Mr. Starr's office, sometimes in violation of
Department of Justice guidelines, have left the public with a
justifiable perception that Mr. Starr has conducted more of a
crusade than an investigation, with the political objective of
driving President Clinton from office rather than uncovering
criminal activity.
Leon Jaworski took extraordinary care not to intrude beyond
the proper boundaries of his office. Mr. Jaworski would be the
last person to suggest that an attempt to pierce the attorney-
client privilege of the President or to interfere with the
time-honored protective function of the Secret Service could be
justified as an appropriate exercise of prosecutorial
discretion, no matter what a court might ultimately rule.
Even 25 years ago, it was the practice of Federal
prosecutors not to subpoena the target of a grand jury
investigation. On the other hand, it was considered unfair to
deprive the target of an investigation the opportunity to
testify if he so desired.
Accordingly, Mr. Jaworski extended an invitation to
President Nixon to testify before the grand jury. When Mr.
Nixon declined, Mr. Jaworski did not publicize the exchange,
because to do so would have been unfair to comment on Mr.
Nixon's decision not to testify. And, again, there was no leak.
By comparison, Mr. Starr has aggressively pursued every
opportunity to push the limits of legal boundaries.
Mr. Jaworski recognized that he had a responsibility to
transmit to Congress important evidence bearing on the House
Judiciary Committee's impeachment inquiry. At the same time, he
was careful not to encroach on Congress's constitutional
function of evaluating evidence and determining whether
impeachment was warranted. Because the evidence was obtained
through grand jury subpoenas, Mr. Jaworski first sought the
grand jury's approval and then sought permission from Chief
Judge Sirica to transmit the material as an exception to rule
6(c), which would otherwise prohibit its dissemination.
Chairman Hyde. Can you wind up?
Mr. Ben-Veniste. I would like to, Mr. Chairman.
Unfortunately, yesterday I was told I would have 20 minutes and
I have tried to boil it down as best I can.
Chairman Hyde. Well, I don't want to foreclose you because
we are down to just two witnesses, so----
Mr. Ben-Veniste. May I have an additional five minutes,
sir?
Chairman Hyde. It is Christmas week, but you are setting a
terrible precedent with my Republicans, but go ahead. Take
five.
Mr. Ben-Veniste. Thank you, Mr. Chairman.
Judge Sirica reviewed the transmittal which we had sent up
to him through the grand jury. He found that the transmittal
rendered no moral or social judgments. He found that the grand
jury had taken care to assure that the report had no
objectionable features, and that the grand jury had respected
its own limitations and the rights of others, and then he
passed it along to the Judiciary Committee.
At the same time, Mr. Jaworski did not inform the House
that the grand jury had voted to authorize him to name Richard
Nixon as an unindicted coconspirator in the upcoming Watergate
cover-up trial. While the grand jury's action provided insight
into its views of the evidence, the grand jury's decision was
not itself evidence, and again, it would have been prejudicial
at that point to make that information public, and again, this
explosive information was never leaked.
Mr. Starr, as we know, did not submit his report to the
grand jury for its approval or consideration, and thus no one,
the chief judge, and not even the three-member court which gave
him carte blanche authority, ever reviewed the aggressively
accusatory and gratuitously salacious referral before it was
transmitted to this committee. Mr. Starr's ethics advisor
resigned when Mr. Starr agreed to act as chief advocate for
impeachment, as a witness before this committee.
I believe, Chairman Hyde, that you stated at the outset
that in substance--and I am not quoting, but this is my own
recollection--that unless the public perceived this exercise
before your committee as a bipartisan effort, that it would not
have the kind of credibility necessary to bring an article of
impeachment to the Floor of the House. In my view----
Chairman Hyde. If I could just interpret, what I really
said was that the impeachment would not succeed without
bipartisan support, but I was adverting to the two-thirds
requirement in the Senate.
Mr. Ben-Veniste. You mean conviction?
Chairman Hyde. Yes, I was talking about that. My hope was
that as this process moved along, the public would get more and
more educated as to its details, but I never really expected a
lot of bipartisanship here, although I hoped for it. Thank you.
Mr. Ben-Veniste. In my view, Mr. Chairman, the inability to
find a bipartisan consensus in this committee is not a function
of the individual characteristics of the Members, but it is
more rooted in the wide gulf between the President's conduct,
even assuming that the factual allegations against him are
true, and were proved, and the grave consequences of a vote of
impeachment.
I do not condone the President's conduct in his
relationship with Ms. Lewinsky, or his conduct in the Paula
Jones deposition. Indeed, I was personally let down and
disappointed by his conduct. But it is clear to me that
attempting to criminalize that conduct, much less make it the
basis of an article of impeachment, would do a disservice to
the Constitution and any notion of proportionality, moderation,
and common sense.
I thank you for extending the time, Mr. Chairman.
Chairman Hyde. Thank you, Mr. Ben-Veniste.
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Chairman Hyde. Mr. Hamilton.
Mr. Hamilton. Mr. Chairman, members of the committee, thank
you for the opportunity to address you in this----
Mr. Conyers. Move your mike closer, sir. Thank you.
Mr. Hamilton. Thank you for the opportunity to address you
on the momentous issue of impeachment that you now face. I wish
to focus mainly on the abuse of power allegations made by Mr.
Starr in items 10 and 11 of his submission to this committee
and by Mr. Schippers in item 14 of his reformulation of the
charges. Read together, the assertions are that President
Clinton, in addition to committing perjury, abused his power by
various other actions:
First, by lying to the American people and the Congress
about his relationship with Ms. Lewinsky. Second, by lying to
his wife, the Cabinet, and his present and former staff about
that relationship, which caused some of them to repeat his
falsehoods to the grand jury, the public and the Congress.
Third, by repeatedly and unlawfully invoking executive
privilege to conceal his personal misconduct from the grand
jury. And fourth, by refusing six invitations to testify before
the grand jury, and by declining to answer relevant questions
when he did testify in August 1998.
A central question before this committee and the Congress
is whether these alleged abuses of power, assuming they are
proven true, rise to the level of impeachable offenses. In my
view, they do not.
A proper starting point is the abuse of power allegations
in Article 2 of the impeachment resolution against President
Nixon that caused this committee to vote 28-to-10 to impeach
him. The contrast between President Nixon's conduct and
President Clinton's conduct is striking.
The committee voted to impeach Nixon for the following five
abuses of power: first, for causing the Internal Revenue
Service to initiate audits and investigations of Nixon enemies,
and to provide his associates with information about these
enemies for the President's political benefit. Second, for
causing the FBI and the Secret Service to engage in unlawful
wiretaps for the President's political advantage, and for
causing the FBI to conceal evidence of these wiretaps. Third,
for maintaining a secret investigation unit, the plumbers, that
using CIA resources and campaign contributions, engaged in various
unlawful covert activities, including the break-in of the office of
Daniel Elsberg, psychiatrist. Fourth, for allowing conduct that impeded
the investigations of the break-in of the DNC headquarters, the ensuing
cover-up, and other misdeeds. And, fifth, for interfering with the FBI,
the Criminal Division, the Watergate special prosecutor's office, and
the CIA for personal political advantage. This interference included
Nixon's firing of Special Prosecutor Cox and his attempts to abolish
the special prosecutor's office in order to stymie its investigation.
Mr. Chairman, this conduct rightly was considered to
constitute high crimes and misdemeanors that justified
impeachment. To use the words of Founder George Mason, who
proposed the phrase ``high crimes and misdemeanors,'' Nixon's
conduct constituted great and dangerous offenses against the
State that amounted to acts to subvert the Constitution. The
notion of great and dangerous of-
fenses against the State captures the essence of what an
impeachable offense should be. It must be as Alexander Hamilton
said. It must relate chiefly to injuries done to the society
itself. A President should not be impeached to subject him to
punishment, but rather, to protect the State and society
against great and dangerous offenses that might reoccur if he
is allowed to remain in office.
I respectfully submit that the alleged abuses by President
Clinton do not indicate that he is a danger to the Nation.
Lying to the public and to his Cabinet and aides is
disgraceful, but if we would impeach all officials who lie
about personal or official matters, I fear that the halls of
government would be seriously depleted. Other Presidents, for
example, Lyndon Johnson as to Vietnam, have not been candid in
their public and private statements. There must be a higher bar
for impeachment.
It is true that Article 1 of the impeachment resolution
against Nixon charged that he misled the public about the scope
of his administration's investigation of Watergate misconduct,
and the lack of involvement by administration and reelection
committee personnel in this misconduct. But these statements
involve lies about official actions and were part of a massive
cover-up of government misdeeds. This is far different than
lies about private consensual sexual conduct.
The claim that unsuccessfully asserting executive privilege
to the grand jury is impeachable is, in my view,
extraordinarily thin. The President did so upon the advice of
counsel, and the district court recognized that the President's
conversations were presumptively privileged, although it found
that the needs of the criminal justice system outweighed that
privilege. At no time did the court suggest that the privilege
was claimed in bad faith. Losing a privilege argument, Mr.
Chairman, should not present grounds for removal from office.
As this committee may know, I had my own battle with Mr.
Starr about whether Vince Foster's attorney-client privilege
survived his death, which I won in the Supreme Court. Even in
my angry moments about that case, and there have been some, I
would not contend that Mr. Starr should be removed from office
under the good cause provision of the Independent Counsel Act
simply because he failed to convince the Supreme Court that he
was right.
Neither the President's reticence to appear before the
grand jury, nor his failure to answer certain questions put by
the prosecutors, should constitute impeachable offenses. The
President was well aware that he was facing a hostile
prosecutor, of whom he had much to fear. He was not under
subpoena, and thus had no obligation to appear at a time
certain. Moreover, Mr. Starr agreed to the rules that allowed
the President to decline to answer certain questions in his
grand jury deposition. In these circumstances, to brand his
conduct as impeachable is untenable.
The claim that the President lied under oath, of course, is
more troubling than these other allegations against President
Clinton. But lying about private consensual sexual conduct
seems more appropriately designated as a low crime, rather than
a high crime. While reprehensible, it is not a great and
dangerous offense against the State that demonstrates the
necessity of removing the President from office to protect the
Nation from further abuses.
Now, I readily concede that lies under oath about treason,
bribery, the break-in at the DNC, or matters of national
security could be high crimes and thus impeachable, but the
conduct at issue seems of a different character. The committee
should recall that the claim that President Nixon fraudulently
evaded his tax obligations, which essentially involved private,
not official wrongdoing, was not made part of the impeachment
charges against him.
Mr. Chairman, because this Nation requires a strong and
secure presidency, this committee and Congress should be chary
of making impeachment too easy. Long ago, in 1691, the
Solicitor General, later Lord Chancellor Somers, told the
British Parliament that the power of impeachment ought to be
like Goliath's sword, kept in the temple and not used but on
great occasions. In a similar vein, Justice Story wrote that
impeachment is intended for occasional and extraordinary cases
where a superior power, acting for the whole people, is put
into operation to protect their rights and to rescue their
liberties from violation.
Mr. Chairman, we must guard against turning our system into
a parliamentary one, where a national election can be negated
by a legislative no-confidence vote.
Chairman Hyde. Would you like another five minutes?
Mr. Hamilton. I would like another three minutes.
Chairman Hyde. Oh, that is so much the better. Please
continue.
Mr. Hamilton. This is particularly true because the
Congress has another tool with which to express its strong
disapproval of the President's action: A concurrent resolution
of censure. With the Chair's permission I will submit for the
record several articles I have recently written showing that a
concurrent resolution of censure would be fully constitutional
and in accordance with congressional practices. These articles
also contend that a sharp censure coupled with a significant
agreed-on fine would be an appropriate remedy. I will be
pleased to expound on my views if the committee desires.
Some argue that a censure resolution would injure the
presidency by setting a precedent that would make censure
commonplace. I have no doubt that censure resolutions, if
judgment is not exercised and partisanship abounds, could be
used unwisely to weaken the presidency. But how much more harm
would be caused by impeaching a President for actions that,
while deplorable, do not amount to great and dangerous offenses
against the State or require his removal to protect the Nation?
With all deference, Mr. Chairman, this is a time for
statesmanship, wisdom and conscience, not partisan politics. In
my judgment, a vote for impeachment along party lines would be
a horrendous result from which the presidency and the Nation
would suffer for years to come. The goal should be to end this
matter now in a nonpartisan fashion that appropriately
sanctions the President and allows the government and the
Nation to return to the other pressing problems we face.
Thank you for your attention.
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Chairman Hyde. Thank you, Mr. Hamilton.
The gentleman from Wisconsin, Mr. Sensenbrenner.
Mr. Sensenbrenner. Thank you very much, Mr. Chairman.
First of all, let me express my concern that the White
House really does not want to work with this committee to
resolve this matter in the manner in which you have just
described. I was in the back room having a couple of slices of
pizza before coming out here for the questions and answers, and
on CNN as we speak, Wolf Blitzer and Greta Van Susteren are
talking about the 184-page response that Mr. Craig said was
coming up to the committee. They have read it, they have been
able to dissect it, they have been able to analyze it, and we
have never gotten it. And it seems to me, when I was practicing
law way back when, that you always gave counsel on the opposing
side a copy of your pleadings before releasing it to the press.
Isn't that standard law practice?
Mr. Hamilton. Well, I think it depends on who your opponent
is. But I understand, Congressman--I think--I understand,
Congressman, that you will receive that brief in the near
future.
Mr. Sensenbrenner. Well, both of you have criticized Mr.
Starr for leaking things prematurely, so that the White House
and members of the committee and the American public have
learned things before they really were supposed to. Now, aren't
you, Mr. Hamilton, saying that there are different strokes for
different folks here?
Mr. Hamilton. Well, I believe it was Mr. Ben-Veniste who
criticized Mr. Starr in his opening statement for leaking,
Congressman. Maybe I will let him speak to that.
Mr. Ben-Veniste. Let me say this, Mr. Congressman.
Mr. Sensenbrenner. Will you please turn the mike on, Mr.
Ben-Veniste?
Mr. Ben-Veniste. Yes, sir. Let me say this. It is not my
practice, and nor would I have provided copies of that material
to anyone else prior to its designated recipient. I don't think
that is the appropriate way to do it.
Mr. Sensenbrenner. So you are saying that the practice of
the White House in releasing it, at least to CNN, before
sending it up here so that members of the committee could have
it, is inappropriate?
Mr. Ben-Veniste. If that is what happened, it is not the
way that I would have handled the matter. But to follow on to
your question, the idea of leaking grand jury matters, I am
sure you will agree, is by several steps much more dangerous
and indeed illegal, and so we are really not talking about
comparable events.
Mr. Sensenbrenner. Mr. Ben-Veniste, last month when Judge
Starr was here explaining the content of his referral, Mr.
Kendall, who is one of the President's personal attorneys, was
given an hour to cross-examine him. And one of the issues of
cross-examination that Mr. Kendall raised was whether or not
the Independent Counsel staff treated Monica Lewinsky unfairly
at the time of the interview in the Ritz-Carlton Hotel about a
week before all of us found out who Monica Lewinsky was.
Apparently, that issue was litigated, and there was a
sealed decision rendered months before Judge Starr's testimony
that Judge Johnson reviewed the matter and determined that
there had not been prosecutorial misconduct. I assume that Mr.
Kendall, as the President's lawyer, was familiar with that
sealed decision.
Judge Starr did not refer to it. He didn't leak it. He
didn't testify before the committee. What do you think the
ethics are of bringing up a sealed decision that you know has
occurred in an attempt to get the lawyer on the other side to
try to admit the misconduct or unethically refer to a sealed
decision?
Mr. Ben-Veniste. Well, there are two things about that, and
I have not read the decision. I don't know whether it has been
released publicly or not.
Mr. Sensenbrenner. It was in the newspaper. It was
released.
Mr. Ben-Veniste. I have not read it. But I understand that
there were two aspects to it.
One is whether the actual circumstances of her
interrogation were unlawful, that is, whether she was free to
go or not; and, secondly, whether it was appropriate for the
prosecutors to attempt to plea bargain with her in the absence
of her attorney whom they knew was representing her. And I
think as to the latter question, that was, at least unethical
and probably improper. So I think there is a distinction----
Mr. Sensenbrenner. That was not my question. My question
was whether it was ethical for Kendall to ask those questions.
Chairman Hyde. The gentleman's time has expired.
The gentleman from Michigan, Mr. Conyers.
Mr. Ben-Veniste. Does the Chairman wish me to answer the
question?
Mr. Conyers. I think I will just let Mr. Ben-Veniste
quickly conclude his response to Mr. Sensenbrenner.
Mr. Ben-Veniste. Well, I think the area of inquiry was
quite appropriate. The confidence of the American public in
whether an Independent Counsel has performed consistently with
the public's expectations of fairness and independence is an
appropriate area of inquiry. Unfortunately, in watching Mr. Kendall's
examination, that exchange, it seemed to be a combination of cross-
examination and beat the clock. I have practiced trial law for 30
years, and I have never had that kind of restriction placed on a cross-
examination. It is a very difficult, difficult obligation to undertake,
Mr. Sensenbrenner.
Mr. Conyers. Mr. Ben-Veniste and Mr. Hamilton, you are two
of the most seasoned lawyers that we have in the area across
the years and down through time. Let me just solicit your
opinions on these two considerations.
How has the Starr investigation harmed the present
impeachment inquiry? Would an investigation that had not been
tainted by possibly unfair and unethical tactics have brought
us to a different result today? And how has this committee's
process negatively impacted on the inquiry that we are charged
to dispose of?
Mr. Ben-Veniste. Well, let me take the latter question
first.
To the extent that there is the impression in the public's
mind that this process has not been bipartisan or fair, where
people haven't had an adequate opportunity to either express
their views or explore the subject matter or inform the public,
then I think we all suffer as a result of that. I don't know
what happens in executive session, or whether there have been
accommodations made, but simply in reading the newspapers there
seems to be the impression that we are in some kind of a hurry-
up mode, and yet there is this disconnect in proportionality
between the gravity of the offenses and the speed with which
you are conducting these hearings, and I think the process does
suffer in the public mind in that sense.
Mr. Conyers. Mr. Hamilton.
Mr. Hamilton. Mr. Conyers, let me just say that I think
that one reason that the Watergate Committee, the Senate
Watergate Committee was so successful is that Senator Erwin and
Senator Baker worked together to--in a bipartisan fashion. That
is not to say that there were not strong disagreements, but
most of these were worked out behind the scene, and the
committee worked together to get the information and, of
course, produced a unanimous report. And I think, for that
reason, its conclusions have stood the test of time.
Mr. Conyers. Well, I certainly hope that somewhere in our
congressional body among those two dozen Republicans that are,
you know--I don't know what they are doing besides reading and
praying and trying to find the fortitude to help forge this
middle path so that we can all get to this exit door with some
shred of dignity, rather than to just push this thing over the
cliff where we know nothing will happen. I am hoping that
somehow there will be some epiphany, if necessary, to help us
get across this hump. I am hoping that your discussions with
our colleagues tonight and the work we do in the next 48 hours
will help something like that happen.
Mr. Ben-Veniste. I join in that hope and----
Mr. Conyers. Is that too optimistic?
Mr. Ben-Veniste. Well, Father Drinan's prayer I think set
an admirable tone, and I cast my ecumenical vote in that
direction.
Mr. Conyers. Thank you.
Chairman Hyde. The gentleman's time has expired.
The gentleman from Florida, Mr. McCollum.
Mr. McCollum. Thank you very much, Mr. Chairman.
Good to see both of you here today.
I have a couple of observations about today. It seems to me
that in the President's defense through this day we have been
proceeding through some fairly carefully crafted patterns. This
panel principally seems to be designed to attack Mr. Starr.
With all due respect, that is what I think you are doing, or
have done, or attempted to do, which has been a tactic of the
White House defense team for some time but diverts attention
from the probative questions of whether the President did
commit the felonies he has been charged with or whether or not
indeed there is an impeachable offense.
The previous panel spent a great deal of time in the
question and answer period and some of their testimony trying
to scare folks with the belief that if we impeach that we are
going to have a long, protracted trial and the consequences of
impeachment are going to be very dire for the Nation, when, in
fact, based on what Mr. Craig said earlier this morning, with
the admission of the White House counsel, the truthfulness is
not questioned of what Betty Currie said or what Vernon Jordan
said.
With a record fairly complete, with no need to call up any
witnesses, since we have a formal record collected for us which
all of us can examine and have been, I would suggest the trial
in the Senate could be very short, probably simply rendered,
first of all, from the President's defense standpoint to a
summary judgment request on the basis that these aren't
impeachable offenses and then, if not, pretty much the facts
are going to speak for themselves.
Certainly the President could have chosen to call some of
these folks as witnesses if he wanted them cross-examined. We
didn't think it was necessary. I don't today think it is; and I
guess. By not calling them, the President doesn't either,
because the record is so complete on the facts. There just may
be some hair-splitting differences.
We will hear Mr. Ruff talk about more tomorrow on those
facts and then, of course, the claim that this isn't
impeachable in some way.
I would submit that the consequences of this, if indeed the
facts do bear us out, and I think they do, that the President
lied under oath a number of times, committed perjury in the
case involving Paula Jones multiple times, committed perjury
before the grand jury, which Professor Dershowitz said, if
indeed he believed it were true, though he doesn't, and I think
the facts show it is true, would be an impeachable offense for
which the President he said should be impeached. If that is the
case, committed the crimes of obstruction of justice regarding
the matters of the affidavit and the gifts and maybe what he
said to Betty Currie, all of these things or even a substantial
number of them or even if it is only the grand jury perjury, as
Professor Dershowitz points out, are true, and we believe that,
then our failure to impeach the President would be a terribly
dire consequence for the Nation.
In fact, to suggest that these don't rise to the level of
impeachable offenses begs a great question. The Constitution
says, treason, bribery and other high crimes and misdemeanors.
Bribing a witness and perjury are one and the same thing,
essentially. They are treated the same way by the Sentencing
Commission.
Interestingly enough, the Sentencing Commission has exactly
the same level of punishment recommended for both ofthem.
Perjury and bribery of a witness go to the basic premise that if a
party to a lawsuit cannot get the truth on the record, if somebody lies
or encourages somebody else to lie or somebody, as a witness, hides the
evidence or encourages somebody else to hide the evidence, a party in a
lawsuit cannot get justice, they cannot get a judgment rendered by a
court that is fair and just to them, which is the traditional American
way. So it is considered very grave.
And if bribery and bribing a witness is part of the bribery
laws of this Nation, if bribery is specifically named in the
Constitution as an impeachable offense, it seems to me, so is
perjury. And the consequence of not going forward with perjury
in these cases would be grave. Because, in that case, we are
undermining the integrity of the court system. We are going to
encourage more people, it seems to me, to commit perjury in the
future or to witness tamper or whatever.
We are likely to find fewer cases where Federal judges will
be impeached for perjury. People will be treated differently
than the President. One hundred and fifteen people are already
in prison today for perjury in the Federal system. If this
President committed it, we have a double standard.
I think the consequences of not doing it are
extraordinarily dire, and I am disappointed that the
President's defense has not come forward with a more
substantive process with regard to the facts. Now that may
happen tomorrow. It has not happened today. I am looking
forward to tomorrow, because I want to engage that, since I
happen to believe, based on what I have seen, it is going to be
a heavy burden to prove that the facts are not right, that are
in every bit of the evidence that we have before us that indeed
the President committed the perjury numerous times, that he
committed obstruction of justice and so forth.
So I will look forward to tomorrow. I don't think today was
very constructive.
Thank you, Mr. Chairman.
Mr. Ben-Veniste. I take it there was no question in that?
Mr. McCollum. There was no question, just an observation.
Mr. Ben-Veniste. Because I do disagree most respectfully
with many of the things you have said.
Mr. Gekas. Regular order, Mr. Chairman.
Chairman Hyde. I am sorry. I was talking to Mr. Conyers.
That does happen now and then.
Mr. McCollum. My time expired. I yielded back.
Chairman Hyde. It has expired.
Mr. McCollum. I have no question.
Chairman Hyde. Mr. Frank.
Mr. Frank. I want to begin with just an observation.
Because one of the things we have been talking about has to do
with censure, and I am convinced that we should have censure as
an option. I believe that it represents a majority.
But I am struck by two arguments against it. And just as it
seems to me two of the articles of grand jury perjury are
articles in the alternative, that is, they contradict each
other, the second and third accusations. The major arguments
against censure are being made in the alternative, and I
thought I would just ask my colleagues to pick one or the
other. Because I do think when we get to the floor we can't act
like lawyers anymore and argue two inconsistent things in the
hope that one of them will stick.
One argument against censure is that it is meaningless,
that it is trivial, that it is a slap on the wrist, that it
does not sufficiently injure the President and, therefore, is
not suitable punishment. The other is that censure, once we
begin it, will be so frequently resorted to that it will
cripple the presidency. Now, it is a pretty fragile president
who could be crippled by a slap on his wrist or it would be a
pretty hefty slapper.
The arguments, one, that censure is wrong because it is too
little a punishment, directly contradicts the notion that
censure is wrong because it would be too heavy a punishment. I
would be perfectly--I don't hold my colleagues to too high a
standard; one consistent argument will do. But two inconsistent
ones it seems to me ought to be dropped, and you ought not to
be arguing that censure is both too much of a punishment and
would, once resorted to, become interference with the
presidency and also too little of one.
Now, let me turn to our witnesses here, because I do
believe that the assertion that there was grand jury perjury is
simply not true; and, with regard to the deposition, it does
seem to be clear that the President lied in one case. I do not
believe that the President did not remember whether or not he
and Monica Lewinsky had been alone. The question there, though,
does go to materiality, and I will be interested tomorrow in
particular to talk about materiality.
But let me ask on the obstruction of justice from your
standpoint as criminal attorneys, people who have tried and
prosecuted and defended. One of the arguments is, my colleague
from Florida just said, a witness being asked to lie, that that
is high bribery, and I assume one of the accusations is that
the President bribed, in effect, Monica Lewinsky, that by offer
of a job and by other inducements the President got Monica
Lewinsky to lie.
Let me ask both of you, if you were prosecuting attorneys
and you contemplated bringing such a case and you found that,
in a volunteered bit of testimony to the grand jury, the person
who was presumably bribed not to tell the truth said, by the
way, no one asked me to lie, and no one promised me a job for
my silence, would that affect your decision to prosecute that
case? And do you think a case in which the alleged subject,
recipient of the bribe, volunteered that she had not been made
any promise or asked, would that be a problem? And,
secondarily, as a matter of lawyer's tactics, if you were the
prosecutor, why would you never have asked her this?
Because Monica Lewinsky volunteered. At no point did the
prosecutor ask her. So one reason you couldn't cross-examine
her on the question about whether she was bribed is that she
was never examined on that subject. The prosecutors quite
scrupulously avoided asking her. So how would that affect your
decision to bring the case? And if you were the prosecutor
trying to bring such a case, would you have asked her, Mr. Ben-
Veniste?
Mr. Ben-Veniste. Well, certainly in my experience bringing
that kind of a case would have some kind of scatological
barnyard expletive attached to it. It is just not a case any
Federal prosecutor would bring, in my experience.
On the other hand, because now we are talking about
impeachment, the notion that the Founders gave consideration to
the proposition that the President of the United States of this
new republic might be on the ``give'' rather than on the
``take'' is certainly beyond comprehension. The specification
of bribery and treason meant that the President should be loyal
to the United States, that he should not commit treason, he
should not accept bribes, he should not accept emoluments that
were not appropriate to his office, he should conduct himself
in an honest way in the affairs of state. That is what that was
all about. In my opinion, the idea that the facts concerning
efforts to help Ms. Lewinsky find a job have absolutely no
connection to reality in terms of impeachment.
Chairman Hyde. The gentleman from Pennsylvania, Mr.----
Mr. Conyers. Mr. Chairman?
Chairman Hyde. Oh, I am sorry. I recognize the gentleman
from Michigan.
Mr. Conyers. I ask unanimous consent to have printed
overnight the submission by the counsel of the President to the
Committee on the Judiciary of the United States, this document
that just has been delivered to yourself and myself.
Chairman Hyde. Without objection, so ordered.
Mr. Conyers. I further ask unanimous consent to have
printed with Professor Dershowitz' testimony a letter that he
has sent to me.
Chairman Hyde. That would be in the previous record.
Mr. Conyers. Exactly.
Chairman Hyde. Yes. Without objection, so ordered.
Mr. Conyers. Thank you.
Chairman Hyde. The gentleman from Pennsylvania, Mr. Gekas.
Mr. Gekas. I thank the Chair.
Mr. Hastings, I think--no, Mr. Hamilton it is, yes. Deja
vu. You and I have the makings of a deal, I think. I have felt
from the very first moment that we received the referral from
Judge Starr that there were serious problems with his assertion
that the assertion of executive privilege by the President, by
itself, would constitute an abuse of power, and I am still
delving into that mess in the formulation of my position, my
final position. But while I am tending to give you that, it
seems to me you have given me, and we have the makings of a
deal, great concern about the President's alleged lying under
oath. You exhibit a troubled mind as to that category of what
we are considering in this case.
Do you believe that given the fact that if perjury or lying
under oath was committed by the President in the Jones case,
that it had the intended result of destroying the case of a
fellow American citizen who lawfully, as decreed by the Supreme
Court, had the chance to sue the President of the United
States, with which decision, by the way, I disagreed, I still
rue that decision by the Supreme Court. Don't you believe that
this rises beyond the level of something as oh, it is just
perjury and it is just about sex, and it doesn't matter? Aren't
you willing to yield to me that that is serious enough for this
panel to apply its conscience and its collective judgment in
determining whether or not it is an impeachable offense?
Mr. Hamilton. Well, I certainly think the panel should
apply its judgment and its conscience in determining whether it
is an impeachable offense. My position is that assuming that he
lied in the Jones deposition or the grand jury, I think that
you can look at that conduct and still say, it is not
impeachable, because it is not a great and dangerous offense
against the State. Sure----
Mr. Gekas. We don't have a deal.
Mr. Hamilton. I am sorry to hear that.
Mr. Gekas. Mr. Ben-Veniste, I want to congratulate you on
the most artful bill of particulars ever drawn up against a
nonparty to the investigation. Your bill of particulars against
Ken Starr is wonderful. It is masterful. You have an article
here about the perfect President in which you criticize Starr;
you have another one, the case against Ken Starr. Marvelous
language and articulation of the case against Ken Starr.
This prompts me to invite you to be the first witness that
I am going to have in next spring on the question of the
reauthorization of Independent Counsel, which you seem to feel
is of no value, at least the Independent Counsel statute. Just
a moment, I will let you get to it.
The thing that bothers me is I didn't see any articles
during the Lawrence Walsh reign of his incumbency as
Independent Counsel. Did you have any such articles that you
wish to submit to the committee about the Walsh conduct of
Independent Counsel?
Mr. Ben-Veniste. I did not. The Walsh----
Mr. Gekas. Any other Independent Counsel? Of any other
Independent Counsel appointed in the past?
Mr. Ben-Veniste. Oh, yes, sir. I actually defended an
individual in a case brought by Independent Counsel McKay. I am
glad you gave me the opportunity to talk about it.
Mr. Gekas. Did you write an article about him?
Mr. Ben-Veniste. No, but I got a jury acquittal in that
case, which is better than an article. It would not have been
appropriate for me to write an article while I was representing
the client. But let me say this, in all seriousness, and I will
accept your invitation to come and talk about the Independent
Counsel statute, because I feel strongly about the importance
of the individuals who hold that office, and I think there is a
bifurcation here between the statute and the expectations on an
individual who holds the office that that statute creates.
Mr. Walsh's investigation, in my view, went on too long;
there were a lot of defects with it. However, the subject
matter, the res, if you will, of that investigation was
momentous, it was important.
Mr. Gekas. But you did not file any documents or----
Mr. Sensenbrenner [presiding]. The gentleman's time has
expired.
The gentleman from California, Mr. Berman.
Mr. Berman. Thank you, Mr. Chairman.
Mr. Hamilton, and Mr. Ben-Veniste, I would like you, for
the purposes of your answers, to make two assumptions. First,
the President lied under oath. Second, as to his grand jury
testimony, those lies were not to cover up a consensual sexual
relationship, but to avoid conceding that he had testified
untruthfully in the civil deposition.
The question is, to deal with the contention that this
conduct justifies impeachment because coming from the
President, it is so corrosive of the judicial system and it so
erodes the rule of law.
Mr. Hamilton. Congressman Berman, clearly, lying under oath
before a grand jury or in a deposition is reprehensible. I
think the question is, does that rise in this circumstance
where the lying is about private consensual sexual conduct,
whether it rises to the level of an impeachable offense. Is it
a great and dangerous offense against the State that indicates
it would be a danger to leave the President in office.
My conclusion is that it is not.
Now, I will go on and say, as I have said both orally and
in writing on several occasions, that I think this conduct
demands a sharp censure, and indeed something more than
censure. I think that the President should agree to some type
of monetary penalty to emphasize the seriousness of his
conduct. I also think that there obviously will be a
possibility after the President leaves office that if some
prosecutor really deems that this is a case that he could win,
that he could be prosecuted for it.
Mr. Ben-Veniste. Clearly, Mr. Berman, the President's
conduct was not, we can all agree, lying about disloyalty,
treason, matters of national security, bribery, or other things
which are characterized as high crimes and misdemeanors.
Now, clearly, Mr. Clinton attempted to obfuscate in his
civil deposition something which his adversaries already knew;
that is, that he had had an inappropriate physical relationship
with a young intern.
The question is, whether even in that context, the vice of
perjury was accomplished. Did the President's conduct somehow
skew the result in that case? Not even there, I think, did it
have that effect.
Mr. Berman. I think in a way both of you are missing the
point I was hoping to hear you speak to, which is, the
contention by some that lying under oath by the President--
assuming that's what he did--rises to the level of impeachment
because they are so corrosive of the judicial process.
Mr. Ben-Veniste. It is clearly under any circumstances
something which is deplorable. However, what we are dealing
with is the impeachment of the President of the United States,
this most monumental, momentous task, that this committee can
consider. And under that standard, the idea that no man is
above the law has to do with whether a prosecutor could
prosecute the President, as the Constitution provides, after he
leaves office, but it has nothing to do with the application of
the standard of high crimes and misdemeanors, in my view, and
therefore does not warrant impeachment of the President.
Mr. Sensenbrenner. The gentleman from North Carolina, Mr.
Coble.
Mr. Coble. I thank the Chairman.
Today, ladies and gentlemen, I have seen evidence of
wringing of hands and intense anxiety expressed because of the
lack of bipartisanship on the Judiciary Committee, and the
implications seem to place most of that blame on the Republican
corner of this room. I think no blame at all needs to be
afforded to that corner or this corner. If we search our
consciences and vote our sound judgments for or against
impeachment, I don't know that any blame needs to be a allotted
or attributed. Sure, it would be fine if we could do it in a
bipartisan fashion, but the nature of this beast oftentimes
avoids that.
Let me talk to you gentlemen about perjury. Some say that
lying about sex to a grand jury is not sufficient to warrant
impeachment. I guess for the sake of argument, let's assume
that perjury is a crime that raises itself to the threshold of
impeachment. If that is in fact true, which I believe it is, I
think the subject about which one is lying is immaterial,
because I don't think there are exceptions to the perjury
statute.
Now, having said that, let me ask you all this: how about
one who lies to a grand jury about his obstruction of justice,
or his concealing evidence, or encouraging the filing of a
false affidavit, or perhaps coaching a witness? If it has in
fact been done, do you all believe that that would constitute
crimes that raise themselves to the threshold of impeachment?
Mr. Ben-Veniste. If, in fact, the obstruction of justice
and the perjury had to do with the kind of weighty subject
matter about which the impeachment clause was created, that is
treason or bribery, or some like offense, then I would agree,
as I did in the case of Richard Nixon, that this would, in
fact, constitute----
Mr. Coble. My time is about to run out. Let me hear from
Mr. Hamilton on this as well.
Mr. Hamilton. Again, I think the question is whether the
lying amounts to a great and dangerous offense, so that it is
dangerous to allow the President to remain in office. That is a
judgment you have to make with every specific factual situation
that you are confronted with.
Mr. Coble. I thank the gentlemen.
Mr. Chairman, with your permission, I am going to yield the
balance of my time to the gentleman from Florida, Mr. Canady.
Mr. Canady. I thank the gentleman. I just want to make a
couple of points.
I want to thank both of you for being here today. You are
both very distinguished lawyers and we appreciate you taking
your time to be here. I have to candidly say, I don't think
your testimony has added much to our deliberations, however. I
am disappointed that we see the continued attacks on the
Independent Counsel, and it is interesting that I still have
not heard any claim of misconduct by the Independent Counsel
which undermines the credibility or the reliability of the
evidence, the sworn testimony that is before us. It is not
there. And so I find--if we had something like that, then that
would be relevant for us to consider, but----
Mr. Ben-Veniste. I could give you something to think about.
Mr. Canady. But to generalize charges of misconduct by the
Independent Counsel I think are just an attempt to divert
attention once more from the facts of this case. And it has
been very disappointing today that we have had so little
discussion of the actual facts of the case against the
President. There has been some discussion of that, and I think
that is good. But there has been very little of that, and I am
hopeful that tomorrow we are going to see a change of focus and
deal with these facts. And as I am going to discuss a little
more in a minute, I think the facts are very troubling. And
they are facts that we have to come to terms with.
Is this case equivalent to Watergate? My answer to that is
no. But that doesn't resolve the matter for us. There are
similarities I would also say, but I don't think anyone would
responsibly contend that President Nixon somehow established
the threshold there for what is impeachable. That is not right.
We have got to judge this President's conduct on the evidence
that is before us and make a judgment under the standards of
the Constitution.
Mr. Sensenbrenner. The gentleman's time has expired.
The gentleman from New York, Mr. Nadler.
Mr. Nadler. Since the gentleman from Florida followed some
of his colleagues' comments about making aspersions about your
testimony and not permitting you to answer them, could you take
about a minute to tell us about how Mr. Starr's misconduct may
have affected conclusions about the President, and then let me
ask my question.
Mr. Ben-Veniste. Well, I think there are things that have
not been fully investigated. I don't make the claim of
misconduct, and in fact, The New York Times has its own way of
putting a title on an editorial piece. That was not my title,
that was The New York Times' title.
Mr. Nadler. Do you think that Mr. Starr's misconduct, if
misconduct it be, has any relevance to the factfindings?
Mr. Ben-Veniste. I think to the extent that all inferences
have been drawn in the referral received by this committee by
Mr. Starr against the President, that there has been
selectivity involved, that there has not been investigation of
the activities of certain people who are responsible for
starting----
Mr. Nadler. It has been a one-sided investigation, in other
words.
Mr. Ben-Veniste. Well, there is more to look at than has
been looked at.
Mr. Nadler. Thank you. I have 2 quick questions and I will
read them both so that you can answer them in the time
remaining. I find somewhat startling the assertions made by
some of our colleagues on the other side that the President's
failure to call witnesses somehow proves his guilt.
The gentleman from Florida, the other gentleman from
Florida said a few moments ago that a Senate trial can be
whisked along in a matter of days, that they don't need to call
witnesses there, that everything is clear. I had assumed that
the alleged lack of a need for calling fact witnesses to prove
by the prosecution, if you will, here was because of the
analogy to the grand jury where we could use the hearsay
testimony of Mr. Starr that certainly would have to call
witnesses in the Senate. Is there really no obligation on the
part of the accusers of the President to bring forward
witnesses or direct evidence? Is it proper to rely on the Starr
report to establish the facts? Is the President really required
to prove his innocence rather than have his accusers prove his
guilt? That is my first question.
My second question is for Mr. Ben-Veniste. My second
question is, in your testimony you say that it is clear that
Mr. Starr's purpose in forcing Mr. Clinton to testify was
simply to provide additional fodder for an impeachment
referral. What interest would a Federal grand jury have in
investigating whether one consenting adult touched another
consenting adult, whether the conduct first occurred in
November or January, or how many gifts they exchanged. And
further you say, that the 2 supposed grounds for obstruction of
justice, Vernon Jordan's attempt to find a job for Monica
Lewinsky in the talking points which formed a basis for the
request of the Attorney General to extend the jurisdiction were
both dead letters, and Mr. Starr knew that before he called
President Clinton as a grand jury witness.
Are you asserting here or do you think it proper to state
that therefore Mr. Starr's calling of the President before the
grand jury was simply a perjury trap, and that in fact there
was no basis, and that this was improper, and that that in some
way affects how we should regard this whole thing?
Mr. Ben-Veniste. Well, let me say that it escapes me as to
what the grand jury was properly investigating at that point.
Mr. Nadler. And that makes any perjury, any alleged lying
there, immaterial?
Mr. Ben-Veniste. Well, it puts into some kind of context,
Mr. Nadler, that the allegations of obstruction of justice and
of perjury really do not have the kind of substance that one
would find if something were actually obstructed, or somebody
was actually harmed by a perjury, and I think it is in that
context that you look at whether you get to the momentousness
of conduct that would warrant impeachment.
Mr. Nadler. So in other words, it is hard to have
obstruction if there is nothing being obstructed.
Mr. Ben-Veniste. I think so.
Mr. Nadler. And it is hard to have perjury if it wasn't
material to anything having to be proven.
Mr. Ben-Veniste. I think so.
Mr. Nadler. My other question is, please answer my first
question about the lack of witnesses establishing guilt, both
here and presumably, according to Mr. McCollum in the Senate,
is it the President's job to prove his innocence rather than
the other way around?
Mr. Hamilton. Well, I would think, Congressman, that it is
the job of this committee to convince itself that the President
has engaged in impeachable conduct.
Now, how the committee does that depends on the
circumstances. It is true that neither the committee or so far
the President has called any witnesses before this committee,
and both sides are going on grand jury testimony. The majority
seems to be relying basically upon Mr. Starr's analysis, and I
think tomorrow the White House is going to give you their
analysis of the grand jury record. But the bottom line is this
committee has an obligation to do what is necessary to
ascertain the facts that would support impeachment, or not
support impeachment.
Mr. Sensenbrenner. The gentleman from Texas, Mr. Smith.
Mr. Smith. Thank you, Mr. Chairman.
Mr. Hamilton, let me read for you a longer quote by George
Stephanopoulos, who is a former, as you know, senior advisor to
President Clinton, and ask for you to respond.
``When President Clinton turned his personal flaws into a
public matter, he made the whole country complicit in his cover
story. This was no impulsive act of passion, it was a coldly
calculated political decision. He spoke publicly from the
Roosevelt Room''--that is in the White House--``he assembled
his cabinet and staff and assured them that he was telling the
truth and he sat back silently and watched his official
spokespeople, employees of the U.S. Government, mislead the
country again and again and again.''
Mr. Hamilton, don't you think that the President's actions
and statements were an effort to try to thwart the
investigation that was then going on?
Mr. Hamilton. Well, let me answer it this way. I am not
sure I can put myself in the President's mind. I do think his
conduct in this regard was disgraceful.
Mr. Smith. Let's use the reasonable person standard. Don't
you think a reasonable person, a reasonable American would
listen to the President's statements, watch what he did, and
conclude that he was making an effort to try to thwart the
investigation that was then going on? Don't you agree with
that?
Mr. Hamilton. Well, Congressman, I am sure that he wanted
the investigation to go away. I think there is no doubt about
that. The question again, and if I sound like a----
Mr. Smith. My question is pretty clear, and could you
answer it for me?
Mr. Hamilton. I think I did answer it. I think he clearly
wanted the investigation to go away.
Mr. Smith. Okay. That wasn't answering my question. Do you
think that he was attempting to thwart the investigation that
was then going on?
Mr. Hamilton. Well, I am not sure there is a distinction
there. I am sure he wanted the investigation to end.
Mr. Smith. Was he actively trying to impede the
investigation?
Mr. Hamilton. He may have been trying to impede the
investigation. I guess the question is----
Mr. Smith. No, no, you----
Mr. Hamilton. Well, let me finish, Congressman.
Mr. Smith. I think you just answered my question. If you
said he may have been trying to impede the question, you have
answered it.
Mr. Hamilton. The question is, was what he was doing
improper or impeachable.
Mr. Smith. Mr. Hamilton, don't rephrase my question. I
think you have answered my question that he may have been
trying to impede the investigation that was going on. That is
all I was looking for. I would have to confess to you in part I
was looking for that because that was Barbara Jordan's
definition of an impeachable offense, and I think that that is
the important point. Let me read, this is a little bit lighter
subject, some letters to you from the 6th graders at Chisholm
Middle School in Round Rock, Texas. They have a way of putting
it very straightforwardly, even if it is not always
grammatically correct. Here are three letters:
``If the President doesn't get impeached, it could be very
dangerous because more people will start doing more crimes and
say, quote, if the President can get away with it, I can.''
Another one: ``Last year I studied the Constitution in
social studies. One thing I learned was that the Constitution
stated, `all men were created equally.' If we want an equal
Nation we must make sure justice is served no matter how high
on the branches of government.''
And then lastly: ``If everybody lied under oath, our
justice system would fall apart.''
That is a very succinct version, I guess, of a categorical
imperative along the lines of never engage in any action which
if engaged in by everybody else would, in effect, lead to
chaos. Would you not agree that if everybody engaged in
deceptive or misleading or evasive statements or perhaps was
not telling the whole truth, that could in fact undermine the
entire judicial system. In effect, what is the point of having
courthouses if people aren't going to tell the whole truth?
Mr. Hamilton. Of course I agree with that.
Mr. Smith. Thank you, Mr. Chairman. I yield back.
Mr. Sensenbrenner. The gentleman from Virginia, Mr. Scott.
Mr. Scott. Thank you, Mr. Chairman. I would like to ask the
witnesses, if you assume that the President has committed
impeachable offenses and in fact should be removed from office
my question is, what is a rational way to present the case? Mr.
Ben-Veniste, did Mr. Jaworski testify to help make the case
before Congress?
Mr. Ben-Veniste. No, Mr. Jaworski was very careful to avoid
any sort of advocacy in connection with transmitting evidence
which we had obtained through the grand jury. We had obtained
very damaging White House tape recordings and other grand jury
testimony of witnesses which were transmitted without any sort
of advocacy or pointing to what might be an impeachable
offense. It was just the material. And Judge Sirica, who
reviewed it, said that the grand jury had done its job in a
fair way without making any comment or without arguing for any
result in having done so.
Mr. Scott. Are witnesses appropriate in this case to be
called to make the case if you are not going to rely on the
prosecutor?
Mr. Ben-Veniste. One would think that if an impeachment
article were voted out of this committee that the committee
should hear from an individual who has firsthand knowledge of
the conduct on which an impeachment is based.
Mr. Scott. Should you rely on a presumption of guilt ifthe
President doesn't prove his innocence?
Mr. Ben-Veniste. Not in this country, sir.
Mr. Scott. Should the specific allegations be made
available to the President before he has to respond? We have
heard just today that the gentleman from Arkansas notified the
President that there are other allegations that he might want
to bring forward. The gentleman from Florida mentioned bribery
as a possibility. The expansion and contraction of the scope of
the inquiry changes daily and hourly. What about the specific
allegations being available before the President has to
respond?
Mr. Ben-Veniste. That is the normal way in which any sort
of judicial or quasi-judicial proceeding is begun. The advocate
for one side who is bringing the matter, in some kind of a
document, either a complaint or other document, sets forth the
basis and the substance of what it is he has claimed the other
side has done wrong so that the other side can then answer. It
is I think a very difficult process if one does not know with
some specificity what the allegation is.
Mr. Scott. Is the title of the offense--we hear a lot about
perjury, obstruction of justice and other titles of offenses.
Do you need more than the title of the offense in order to
appropriately respond?
Mr. Ben-Veniste. There is no question that you cannot
respond to a claim of perjury unless you know what the false
statement is and then you can address whether or not a case has
been made out, or at least a prima facie case.
Mr. Scott. Now, in terms of whether or not it is an
impeachable offense, we have heard the title of the offense,
perjury, being sometimes impeachable and sometimes not
impeachable. How would you measure--would you measure the title
or would you measure the effect it has had on the Nation? Mr.
Hamilton, if you want to respond to that.
Mr. Hamilton. I think you measure the effect it has on the
Nation. You look at whether the offense is so great that it is
dangerous to allow the President to remain in office.
Mr. Scott. And the title of the offense is not the
measurement but you would measure the effect. So whether it is
obstruction of justice, or whatever the title is, is not the
measurement but the effect it has as far as it is a grave
danger to the Nation?
Mr. Ben-Veniste. Even in the narrow confines of what we are
discussing here, I have trouble understanding who was
obstructed and how that person was obstructed by the conduct we
are talking about.
Mr. Sensenbrenner. The gentleman's time has expired. Before
recognizing the gentleman from California, just to make sure
that the documentation that has been submitted to the White
House is all printed at once, the Chair would ask unanimous
consent that the documentary appendix to the submission by
counsel for President Clinton to the Committee on the Judiciary
of the United States House of Representatives dated December 8,
1988 also be printed overnight. Is there objection to that?
Mr. Nadler. Mr. Chairman, I assume you meant December 8,
1998?
Mr. Sensenbrenner. I stand corrected. It is this document.
Without objection so ordered. The gentleman from California Mr.
Gallegly is recognized.
Mr. Gallegly. Thank you very much, Mr. Chairman. Gentlemen,
thank you for being here. It has been a long day. We started
off a little over 8 hours ago. And for the past 8 hours we have
been listening very attentively to the President's premier
defense team. Mr. Craig started off the morning by advising us
today we would be hearing to quote him ``very powerful, to
quote him, evidence supporting the President.'' So far I have
not heard any new evidence, much less powerful evidence, that
refutes the fact that the President lied under oath. Mr.
Hamilton, do you believe that our legal system is dependent on
people telling the truth?
Mr. Hamilton. Of course.
Mr. Gallegly. Do you believe that perjury represents an
attack on the integrity of our judicial system?
Mr. Hamilton. Of course.
Mr. Gallegly. This morning and this afternoon, we heard
testimony from two witnesses for the President, one Mr. Craig
and one Mr. Owens. Mr. Craig testified earlier that he believes
the President did not lie under oath. This afternoon Mr. Owens
stated that the President did lie under oath. He didn't say ``I
believe.'' He says the President did lie under oath. Mr.
Hamilton, do you believe the President lied under oath?
Mr. Hamilton. I find the President's testimony very
troublesome. It was clearly evasive and misleading. I
understand that tomorrow Mr. Craig is going--Mr. Ruff is going
to make an attempt to convince us all that it was not perjury.
Mr. Gallegly. But at this particular point, in your heart,
do you believe the President lied under oath?
Mr. Hamilton. I find his testimony extremely troubling. I
am going to withhold judgment until I hear what Mr. Ruff has to
say tomorrow.
Mr. Gallegly. Mr. Ben-Veniste, with a simple yes or no, do
you believe the President lied under oath?
Mr. Ben-Veniste. Are you talking about--what proceeding?
Mr. Gallegly. Before the Federal grand jury.
Mr. Ben-Veniste. Before the grand jury? I have trouble with
that. I have trouble with the grand jury proceeding.
Mr. Gallegly. Thank you very much, Mr. Ben-Veniste. You
both are very capable lawyers and have a distinguished record.
Mr. Hamilton, can you give me very clearly your definition of
what it means to hold up your right hand and swear to tell the
truth, the whole truth and nothing but the truth so help me
God?
Mr. Hamilton. It means what you say.
Mr. Gallegly. It does not mean to deceive and does not mean
to minimize the truth?
Mr. Hamilton. Of course not.
Mr. Gallegly. Thank you very much. Based on what youhave
seen and heard, do you think that the President has been truly candid
and totally honest with the American public, to date? To date. Mr.
Hamilton.
Mr. Hamilton. Do I think--you mean in the past, do I think
today----
Mr. Gallegly. I mean today in view of the months of
presentations he has had, civil deposition, grand jury, the
August 17 and the 81----
Mr. Hamilton. He clearly has not been fully candid.
Mr. Gallegly. Thank you very much. My colleagues, the
President has had the choice of telling the truth, the whole
truth and nothing but the truth not on one occasion but at
least on four occasions to the American public. First his
deposition, second his grand jury testimony, third during the
address to the American people and fourth just a few days ago
in answering 81 questions submitted by this committee. It is
clear in each of these four instances that the President has
been less than honest. I am disappointed that the President has
not presented any exculpatory evidence relating to these facts.
I anxiously await tomorrow's presentation. I hope the
President's lawyers take seriously the need to rebut the
allegations that the President has lied under oath and that he
has lied to the American people, which I think compromises his
oath of office.
I yield back, Mr. Chairman.
Mr. Sensenbrenner. The gentleman's time has expired. The
gentleman from North Carolina, Mr. Watt.
Mr. Watt. Thank you, Mr. Chairman. Mr. Hamilton, Mr. Ben-
Veniste, if you assume everything that Mr. Gallegly just said,
that the President was in fact less than honest, that he lied,
has the President engaged in impeachable conduct in your
opinion? Is it abuse of power?
Mr. Hamilton. In my opinion, he has not engaged in
impeachable conduct. He has engaged in reprehensible conduct.
He has engaged in conduct for which I believe he should receive
a sharp censure. Indeed I think he should agree to pay a
substantial fine. But I don't think that he has engaged in
conduct that demonstrates he is a danger to America.
Mr. Watt. Mr. Ben-Veniste.
Mr. Ben-Veniste. I agree that the subject matter here which
we all know is about the President's unwillingness to ``fess
up'' to an inappropriate relationship that he had with a young
intern is the core of everything that we are talking about. It
is the core of what he walked into when his deposition was
taken. The Jones lawyers were armed with the information that
Linda Tripp had surreptitiously tape recorded from Monica
Lewinsky. So they knew they had something. The President didn't
know they had it. And the President gave testimony as artfully
as he could, I think, to try to evade answering questions about
Ms. Lewinsky. He should not have done that. That is an
understatement. The question is whether everything that springs
from that, Mr. Starr criminalizing that conduct by opening an
investigation which in my view no other Federal prosecutor in
this country would go after, at least no one of any reputable
stature in this country. And then to try to draw from that the
concept of an obstruction of justice, putting him before the
grand jury, asking questions about where he touched Ms.
Lewinsky, where Ms. Lewinsky touched him, on what day of the
week, in what place in the White House, in what month of the
year. How in the world can we be discussing removing a twice
elected President of the United States on the basis of this
kind of conduct? That is the question that I raise and that is,
I think, the issue of proportionality and common sense that the
American public has grappled with and has come to some
conclusion, I think, expressing their great common sense. As a
trial lawyer, I see people from all walks of life in the
courtroom, and I have great respect for their collective common
sense.
Mr. Watt. So I take it from that that notwithstanding what
Mr. Gallegly said, you don't think this is impeachable?
Mr. Ben-Veniste. That is correct, sir.
Mr. Watt. When Mr. Starr came before this committee, he
made some references to Mr. Jaworski and suggested that he
thought Mr. Jaworski would approve of the way that Mr. Starr
had conducted this investigation. Would you give us your
assessment of that, Mr. Ben-Veniste?
Mr. Ben-Veniste. Well, I had the opportunity to talk with
Mr. Jaworski's grandson just the other day. Joe Jaworski, who
practices law in Houston, Texas, told me he was rather appalled
by the comparison. I worked with Mr. Jaworski and quite frankly
I was quite skeptical when he came on board and took over for
Archie Cox, because, after all, Richard Nixon was the one who
picked Mr. Jaworski. He was a conservative Texan. He said he
was going to follow Mr. Cox's mode of investigating, he would
be beholden to no one, he would conduct an independent
investigation, and we were all prepared to watch what he did
more than what he was saying. And by all accounts, his activity
in not leaking and conducting a fair and vigorous investigation
but not taking any cheap shots at the President, giving the
President the benefit of the doubt, provides the model, I
think, for all high profile investigations that have come
thereafter.
Mr. Sensenbrenner. The gentleman's time has expired.
The gentleman from Florida, Mr. Canady.
Mr. Canady. Thank you, Mr. Chairman.
I wanted to go back to a point that I was making earlier.
That is, that President Nixon's misdeeds do not somehow
establish a threshold level of misconduct that must be met in
order for there to be an impeachable offense. Do either of you
disagree with that point?
Mr. Ben-Veniste. I do not. God help us if we see that kind
of conduct again.
Mr. Canady. Mr. Hamilton?
Mr. Hamilton. No, I don't disagree with that.
Mr. Canady. Thank you.
Let me go on to make some comments about what I think is at
stake in the case that is before us.
When we look at the facts concerning the President's
conduct, what do we find? I believe, based on my reading of the
evidence, that we find a pattern of calculated wrongdoing, a
sustained course of criminal acts designed to thwart the due
administration of justice. I know some people believe this is
all trivial. But I believe that is what is going on.
We see evidence that the President last December--it starts
in December--lied under oath in answers to interrogatories. We
see evidence that in January he lied under oath repeatedly in
his deposition in the Jones case.
And let me add that today we have heard the President's
lawyer here before this committee affirm the obvious lie that
the President told then when he said that he had no specific
recollection of being alone with Ms. Lewinsky. Even Mr. Frank
has recognized that that was a lie. But yet the President's
counsel reaffirmed that lie before us today. And we find in the
evidence that the President in August lied under oath before
the grand jury to cover up and to avoid responsibility for his
earlier lies.
Mr. Ben-Veniste, I believe you stated that you have got a
problem with what happened before the grand jury and the
President's conduct.
Mr. Ben-Veniste. I have a problem with characterizing it as
an obstruction of justice. The President admitted to the grand
jury.
Mr. Canady. Mr. Ben-Veniste, I am sorry, you have made that
point. I have got some questions.
Mr. Ben-Veniste. I thought you were asking me about it.
Mr. Canady. If I have some time left, I will be happy to
recognize you.
Then we find evidence along the way of various other acts
in which the President attempted to corruptly influence the
testimony of witnesses.
And, finally, I believe that we have evidence that the
President just last month lied under oath to this committee in
answers that he gave to questions propounded to him by the
chairman of the committee.
Now, how do we respond to this? How do we respond to this
substantial course of wrongdoing that was sustained over a
period of a year?
Now, it has been argued essentially that we should forget
about it because the underlying cause of it was sordid. I don't
believe that the sordidness of the underlying conduct is a
mitigating circumstance. Indeed, it is not a defense against
these allegations. I think that just doesn't make sense, that
that is the claim that is being made, that is the primary
claim, that we should see all of this go away, because the
underlying conduct was sordid.
This was not some trivial lapse of judgment. The President
wasn't blindsided. He was calculating every step along the way.
I believe that this is conduct that shows an utter contempt
for the judicial process in this country, it is conduct that
shows utter contempt for the dignity of the office of
President, and it is conduct that, by its very nature,
undermines the integrity of the office. It is conduct by the
chief executive that harms our country and our Constitution by
undermining respect for the law.
Now, that is what we have before us, I believe; and let me
end by quoting again the first Chief Justice of the United
States, Justice Jay, who said, ``independent of the abominable
insult which perjury offers to the divine being, there is no
crime more extensively pernicious to society. It discolors and
poisons the streams of justice and by substituting falsehood
for truth saps the foundations 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 evidence will always consist of the testimony of
witnesses. This testimony is given under the solemn obligations
which----''
Mr. Sensenbrenner. The gentleman's time has expired.
Mr. Canady. If I could just read one sentence here, in the
middle of a sentence, ``is given under the solemn obligations
which an appeal to the God of truth imposes. And if oaths
should cease to be held sacred, our dearest and most valuable
rights would become insecure.''
Mr. Sensenbrenner. The gentlewoman from California, Ms.
Lofgren.
Ms. Lofgren. Thank you, panelists, for being here today and
for your enlightening testimony.
Also, I just wanted to take a personal moment--I worked in
a lowly position during the 1974 inquiry, and I would like to
express my thanks to Mr. Ben-Veniste. You are someone who I
looked up to and admired at that time for the service that you
gave to our country then at a very difficult time.
Mr. Ben-Veniste. Thank you.
Ms. Lofgren. You did it skillfully and honorably.
Since you are here and because you do have experience in
the Justice Department, I want to ask you just a quick question
before I get to my real question. When Mr. Starr was before the
committee, I asked him three questions, two of which had to do
with when he found out certain information and the third about
whether he would release reporters from their confidentiality
bond. I recently received a letter from Mr. Bitman saying that
Mr. Starr wouldn't answer any of the questions that were posed
and sent to him because of Justice Department policies. Can you
think of any Justice Department policy that would prevent Mr.
Starr from answering the three questions I posed to him, that
he said he would answer?
Mr. Ben-Veniste. No. Indeed, I would think that Justice
Department policies would compel an answer, particularly to an
oversight committee----
Ms. Lofgren. Thank you for that.
Mr. Ben-Veniste [continuing]. Investigating whether the
Starr investigation was somehow skewed, and whether there wasan
attempt to create an unwarranted appearance of obstruction of justice.
I don't say that that occurred, but I think there is an obligation to
look at that.
Ms. Lofgren. Nor do I. I just wanted an answer.
Let me follow up on something that you mentioned in answer
to Mr. Nadler's questions earlier. You mentioned that there
were other things that perhaps should maybe have been looked at
by the Independent Counsel, other witnesses that might have
been called. You are familiar with the Independent Counsel's
investigation, and you have a lot of experience as a prosecutor
and an investigator. Do you think there were areas that merited
further investigation by his office? Were there witnesses who
were not called to testify before the grand jury who should
have been called, who might have given a greater picture of the
truth? Do you have any advice for us on that?
Mr. Ben-Veniste. There was one anomaly that I found in
looking through the volumes of material that Mr. Starr produced
to this committee, and that was the fact that the individual
who, by Ms. Tripp's admission and by that person's own
admission, put Ms. Tripp up to tape recording was never put
before the grand jury. That person is Luciane Goldberg.
If you look in the appendix that Mr. Starr submitted, at
page 1225 on there is an FBI 302 report that shows that on
January 22, 1998 Ms. Goldberg was served with a grand jury
subpoena duces tecum to appear, testify and bring evidence to
the grand jury. And yet there is no indication anywhere that I
have seen that Ms. Goldberg was, in fact, compelled to go
before the grand jury. And, as we know, this grand jury was
fully capable of asking its own questions.
And so there is no answer in the Starr referral to
questions about what Ms. Goldberg did with information, the
tapes that she had in her possession, the information she was
getting on a daily basis from Ms. Tripp and, perhaps more
importantly, whether Ms. Goldberg or others were guiding Ms.
Tripp in some way. None of those questions or answers are
before us in any record because, as far as we know, Ms.
Goldberg was never put before the grand jury.
At page 1227 of the Starr supplemental appendix there is an
FBI 302 report that shows that 7 months after she received the
grand jury subpoena, Ms. Goldberg was interviewed by an FBI
agent working with Mr. Starr. That report raises some very
interesting questions. I have not heard those questions
discussed in this committee. Maybe it has been done in
executive session or maybe you have received information that I
have not heard about, but it seems to me----
Ms. Lofgren. We can't say what we do in executive session,
but we can say what we don't do in executive session. That is
something we have not done in executive session.
You have provided us with some newspaper articles, and in
the New York Times article you mentioned with the headline that
you didn't write about Mr. Starr, you mentioned the ``unseen
hand'' possibility. Understanding that we have a high standard
for offenses against the State, what would the ``unseen hand''
mentioned in the article have to do with any of what has been
brought to us?
Mr. Ben-Veniste. Mr. Sensenbrenner, if I may answer.
Mr. Sensenbrenner. A sentence or two. The gentlewoman's
time has expired.
Mr. Ben-Veniste. Surely. I think when you are considering
something like removing the President of the United States you
ought to know whether somebody has created something and put it
in motion to take him down. Public confidence in the process
demands an answer to that question, and I think it is the
obligation of this committee to investigate that possibility. I
am surprised to hear, frankly, that Mr. Starr had not responded
to the follow-up questions in that area. I don't know what the
committee's procedure is for enforcing that.
Mr. Sensenbrenner. The gentlewoman's time has expired.
The gentleman from South Carolina, Mr. Inglis.
Mr. Inglis. Thank you, Mr. Chairman.
Mr. Craig is out of the room as far as I can see, but this
third panel, I want to keep score here. Again, no criticism of
these two witnesses. They were invited here by Mr. Craig to
testify. But this is now zero for three in terms of anybody who
can present any facts related to this case. No facts being
presented here, no evidence.
And I would remind committee members of what Mr. Craig told
us this morning: ``Let me assure the members of this committee
and the Members of the House of Representatives and the
American public of one thing. In the course of our presentation
today and tomorrow, we will address the factual and evidentiary
issues directly.'' Not yet. Zero for three. Three panels, no
facts, no evidence.
Mr. Nadler. Point of parliamentary inquiry.
Mr. Sensenbrenner. The gentleman from South Carolina has
the floor, and interruptions are only allowed when the holder
of the floor yields. Does the gentleman yield?
Mr. Inglis. I don't have time to yield. I am terribly
sorry.
Mr. Sensenbrenner. The gentleman will proceed.
Mr. Inglis. Mr. Hamilton, on an issue, though, that I think
you can testify here about, you are an officer of the court, a
lawyer, is that correct?
Mr. Hamilton. Yes.
Mr. Inglis. If you have a client on the stand who commits
perjury to your knowledge, what do the cannons of ethics
require you to do in that case?
Mr. Hamilton. The District of Columbia cannons are a little
bit different than the ABA model rules. Basically, a lawyer is
supposed to tell his client that he should correct his
testimony. If the client doesn't do that, the lawyer withdraws
from the case.
Mr. Inglis. In that case, isn't it clear that what is
happening there is that perjury is such, as Mr. Canady was just
exploring, such a pernicious thing that it trumps the client's
right to rely on counsel because in that case the lawyer must
disclose this to the client and in many jurisdictions disclose
to the court as well, correct?
Mr. Hamilton. In some jurisdictions, yes.
To answer your question, the lawyer's obligation as an
officer of the court in that circumstance supersedes his
obligation to his client.
Mr. Inglis. The only point I would make to everyone
listening here in the committee is that, for those of us who
are officers of the court, it shows how crucial this matter of
telling the truth in court is, that it trumps the attorney-
client privilege.
Mr. Ben-Veniste, I understand----
Mr. Hamilton. It doesn't trump the privilege. The lawyer
still has no obligation to reveal his client's perjury. But he
does have an obligation to take some steps to disengage.
Mr. Inglis. I understand.
Mr. Ben-Veniste. And obviously this only occurs when the
lawyer has actual knowledge that his client has lied.
Mr. Inglis. Let me ask you a different question that has to
do with something else.
I understand that there is a regular conference call from
the White House that deals with communications efforts of the
White House. Is that true, to your knowledge, that there is
some regular conference call, if I understand it, at 11 o'clock
possibly on every day of the week? Is that about right, to your
knowledge?
Mr. Ben-Veniste. I have participated on an irregular basis
in what may be a more regular conference call.
Mr. Inglis. So you participated in this call?
Mr. Ben-Veniste. From time to time.
Mr. Inglis. So then----
Mr. Ben-Veniste. In recent weeks.
Mr. Inglis. The evidence you can give here--actually, we
have found something that you can testify about in terms of
facts and evidence----
Mr. Ben-Veniste. There is a lot I can testify about.
Mr. Inglis [continuing]. Would be the effectiveness of the
spin machine at the White House, which is interesting. Have you
participated in calls that sort of coordinated the attack on
Ken Starr, I wonder?
Mr. Ben-Veniste. No, there are no such calls----
Mr. Inglis. No calls----
Mr. Ben-Veniste [continuing]. To my knowledge.
Mr. Inglis [continuing]. Involving Ken Starr?
Mr. Ben-Veniste. Coordinating some attack on Ken Starr?
Mr. Inglis. Excuse me?
Mr. Ben-Veniste. No, sir, I am unfamiliar with a call
coordinating an attack on Ken Starr.
Mr. Inglis. So you haven't participated in any such calls?
Mr. Ben-Veniste. No, sir.
Mr. Inglis. Well, it is an interesting fact that you could
testify about. If we had more time maybe we could develop what
is discussed on those calls, because it is a masterful
operation. Those are facts that you could testify about, and I
wish that Mr. Craig had let us know that ahead of time so that
we could ask you about the facts that you could actually
testify about.
Because neither of you--not any criticism of you, but
neither of you can testify about the facts in this case; and,
unfortunately, Mr. Chairman, once again zero for three. The
third panel, no facts.
Mr. Sensenbrenner. The gentleman's time has expired.
Mr. Nadler. Mr. Chairman?
Mr. Sensenbrenner. For what purpose does the gentleman from
New York----
Mr. Nadler. A point of parliamentary inquiry.
Mr. Sensenbrenner. State your inquiry.
Mr. Nadler. My inquiry is that the gentleman from South
Carolina just again stated that there has been no factual
submission, implied that Mr. Craig, who said that there would
be a factual submission today----
Mr. Buyer. Regular order, Mr. Chairman. That is not a
parliamentary inquiry.
Mr. Nadler. My inquiry is----
Mr. Sensenbrenner. State your inquiry.
Mr. Nadler. My inquiry is, was that side of the aisle not
served with this material or was the gentleman being dishonest
and misleading the television viewers by implying that there
was no such submission made?
Mr. Sensenbrenner. That is not a proper parliamentary
inquiry; and the gentlewoman from Texas, Ms. Jackson Lee, is
recognized.
Ms. Jackson Lee. Let me thank both of the members of the
panel for their presence and acknowledge as well their
astuteness as lawyers and having a special insight into the
proceedings we know as Watergate.
Mr. Ben-Veniste, let me thank you as well for your kind
words about Leon Jaworski, who I had the honor and pleasure of
working for and know full well the somberness and the high
position he held his role and responsibility in Watergate.
A simple question to you before I begin. Did Mr. Jaworski
ever leave his position as a prosecutorial implementator and
move to the witness chair and become a fact witness?
Mr. Ben-Veniste. No, he did not.
Ms. Jackson Lee. To your knowledge?
Mr. Ben-Veniste. No, of course not.
Ms. Jackson Lee. Let me then proceed with words from Daniel
Webster known as the March 7 speech in 1850 right before the
long and elongated discussions about slavery and the potential
Civil War in this Nation. He said simply, ``I wish to speak
today not as a Massachusetts man, not as a northern man but as
an American and a Member of the Senate of the United States. I
speak today for the preservation of the union. Hear my cause.''
We come now almost to the end of this process, and I would
like to thank Chairman Hyde, who is not in the room right now,
for his kindness in the running of today's proceedings. I have
a running objection on the time and the inability of many
witnesses to answer questions, but I thank him for the way he
has offered to those of us who disagree to answer or to ask our
questions.
It is at this time that I call upon him as well for a
matter of good faith and to heal this country. We should have
any opportunity to present, as I have supported over the past
couple of weeks, a censure resolution to heal this country and
to address these circumstances. What troubles me is the
precedent that is being set today or over these past few
hearings that we have had, one in undermining the institution
of the presidency and how this is played to the American
people. And the exaggeration of the gravity of these
allegations such that children in American schoolhouses are
believing that those who may tell untruths will go unpunished.
And so I have some questions both for Mr. Hamilton in his
recounting of the allegations against President Nixon as it
relates to abuse of power--you started out in your presentation
that the allegations included unlawful wiretaps, concealing
evidence of the wiretaps, secret investigative units such as
the plumbers who, to my chagrin, to my appalling understanding,
broke into a psychiatrist's office of an American. Could you
ever imagine? And then the use of the CIA and the FBI.
My question to you, as I read from allegations of our
Office of Independent Counsel, as he charged abuse of office:
``The President repeatedly and unlawfully invoked the executive
privilege to conceal evidence of his personal misconduct from
the grand jury. The President refused six invitations to
testify to the grand jury, thereby delaying expeditious
resolution of this matter, then refused to answer relevant
questions. The President misled the American people and the
Congress in his public statement on August 17, 1998.''
And might I just simply say, they refused to acknowledge
that the Paula Jones case was dismissed, that she appealed it
and then she settled it. They refused to acknowledge that. Mr.
Bennett questioned the lack of clarity of the question to the
President.
But my question, Mr. Hamilton, does this equate so that the
American people will not believe that we are here covering up
the Nixon case--the Clinton case? Do we have the same abuse of
power?
Mr. Hamilton. There is no comparison between the Nixon case
and the Clinton situation in my judgment. The Nixon case
involved serious repeated abuses against the State, violations
of the constitutional rights of individuals.
Mr. Sensenbrenner. The gentlewoman's time has expired.
Ms. Jackson Lee. Will you heal this Nation and provide for
us a censure resolution and stop the farce and the theatrics of
what is going on in this matter?
Mr. Sensenbrenner. The clock runs at the same rate for one
of the members of the committee.
Ms. Jackson Lee. Thank you, Mr. Chairman.
Mr. Sensenbrenner. I would hope that the members would be
respective of the time. The gentleman from Virginia, Mr.
Goodlatte.
Mr. Goodlatte. Thank you, Mr. Chairman. Along those lines,
I would like to thank both of these gentlemen for their
participation in the process today and for your answers to Mr.
Canady's question, which you indicated earlier that the
standards in the Nixon impeachment, the Watergate proceedings,
are not a standard to be followed for impeachment. Is that
correct, Mr. Ben-Veniste?
Mr. Ben-Veniste. They are not a threshold.
Mr. Goodlatte. All right. That is what I am looking for.
And I take it you agree with that, Mr. Hamilton?
Mr. Hamilton. I don't think they set the bottom position of
the bar. But I do think they are indicative of the type of
conduct we should look at when we are considering impeachment.
Mr. Ben-Veniste. I agree with that.
Mr. Goodlatte. Certainly. Certainly. But you see, I think
that the whole purpose of the White House's presentation today
has been to try to raise the bar to that standard. And I think
that that, plus this effort to suggest that somehow the motives
of the majority of this committee are somehow wrong, are the
efforts of the White House today.
And, Mr. Ben-Veniste, you actually set this story straight
a long time ago, long before you ever heard of Paula Jones or
Monica Lewinsky, long before Bill Clinton was ever on the
national scene. You wrote a book back in 1977 called
``Stonewall, The Real Story of the Watergate Prosecution'' by
Richard Ben-Veniste and George Frampton, Jr. In that, in the
closing, you wrote about the Watergate proceeding:
''Did the system work? True, the nationally televised
debate and vote on articles of impeachment was a shining hour
for the House Judiciary Committee. But all in all, the total
course of the committee's investigation exposed the extreme
political nature of impeachment.'' This is about the Watergate
proceeding.
``The cumbersomeness of the process, its politicization,
and the unwillingness of so many in Congress to recognize
objectively the stark facts of criminal wrongdoing that were
put in front of them make the Nixon impeachment case an
unpromising precedent.''
Here is where I think you are so farsighted, more
farsighted than anybody who has been before the committee
today: ``Next time might it not be a potent defense for a
President charged with wrongdoing to argue that his conduct,
however improper, fell short of the spectacularly
widespreadabuse of the Nixon administration. If Watergate or more is
what it takes to galvanize the impeachment mechanism, can we really
rely on it to protect us in the future against gross executive
wrongdoing?''
Let me ask you about the title of the book, Mr. Ben-
Veniste, ``Stonewalling''. That is an effort to obstruct
justice, to keep the process from moving forward, from
discovering the truth. Is that not an accurate definition of
that?
Mr. Ben-Veniste. The title of the book came from Mr.
Nixon's injunction to his subordinates, to stonewall, to deny
everything, to blame everything on the lower level individuals
so that the higher-ups would not be detected.
Mr. Goodlatte. Let me ask you this. Do you believe that
President Clinton has engaged in stonewalling in this matter?
Mr. Ben-Veniste. I believe that President Clinton tried to
obfuscate from the very beginning a very inappropriate
relationship of a private nature about which he was, I am sure,
and should be, ashamed.
Mr. Goodlatte. Let me ask you this. Is exercising executive
privilege over personal matters and not public matters, is
inventing new forms of executive privilege, is coaching
witnesses about what may have previously transpired, is
engaging in efforts to suborn perjury and to get your Cabinet
officials and other members to go out and repeat falsehoods,
are all of those stonewalling devices?
Mr. Ben-Veniste. No, I do not believe those are
stonewalling devices.
Mr. Goodlatte. You don't think those are comparable----
Mr. Ben-Veniste. Stonewalling devices that were involved in
Watergate involved individuals denying such things as the
misuse of the FBI, the misuse of the CIA, the misuse of the
Internal Revenue Service to inflict pain and embarrassment upon
enemies of the President of the United States.
Mr. Goodlatte. I think you have just changed the definition
of stonewalling.
Mr. Sensenbrenner. The gentleman's time has expired.
The gentlewoman from California, Ms. Waters.
Ms. Waters. Thank you very much. Mr. Chairman and members.
The last time I spoke I talked about Mr. Hyde's discussion of
lying back in 1987, and I want to continue on that because I
find these discussions about lying and perjury intriguing and
troublesome. Intriguing because we discuss it in very
interesting ways. We discuss lying as if it is fallen to us and
if there are no gradations of lying that we understand and deal
with on a daily basis.
Judge Higginbotham, when he was here, talked about
gradations of lying and we pretended not to know what he was
talking about. It appears we are reticent to discuss our
knowledge and experiences with lying because we want to send a
message about our own honesty and credibility. I humbly submit
to this committee that it does not make us less than honest
human beings to recognize that there are lies and there are
lies. The court recognizes, and that is why there is a legal
definition for perjury. I believe that we make these
distinctions every day, with our children, our families, our
friends, our colleagues. Most of us would like to be as strong
and truthful as we can be, and many of us work at trying to
correct our faults and our weaknesses.
In these hearings, we are attempting to hold the President
to a standard that needs to be seen in context. Clearly the
President's indiscretions are not impeachable. As Members of
Congress, we take an oath and we swear to uphold the
Constitution. The public does not believe politicians are as
honest as we should be. They believe we are far too often
guilty of extramarital affairs, violation of FEC laws, misuse
of government resources, misrepresentations, promises not kept.
The people do not necessarily demand expulsion of us for our
poor judgments and less than candid actions. The public will
know the difference between these actions and actions that defy
our oath of office.
We are often criticized because of the ways we deal with
situations. Why are we trying to send a message about our
honesty, our lack of honesty, by attempting to communicate our
belief in zero tolerance? Nobody believes us. And we further
damage our credibility by attempting to make this President's
indiscretions impeachable. The public does understand
inconsistency and lack of candor.
Let me just put on the record the questions that I wanted
to ask, and I will continue to ask of our chairman:
Mr. Chairman, did you lead the defense of the Reagan
administration during the Iran-Contra hearings in 1987 when
President Reagan and his top national security advisers were
accused of lying to Congress and the public about their secret
arms sales to a terrorist state? Did you argue forcibly for a
more nuance view of lies and deception? Did you in fact say
lying is wrong but context counts?
Mr. Chairman, did you say while Reagan aides may have lied,
they did so for the larger purpose of fighting communism in
Central America? In 1987, Mr. Chairman, did you say, ``It just
seems to me too simplistic to condemn all lying,'' and I
further quote, ``In the murkier grayness of the real world
choices must often be made.''
Mr. Chairman, do you agree with Charles Tifer, a deputy
counsel to the Democratic members of the special Iran-Contra
investigating committee, who said, ``Henry Hyde of 1987
listened to Oliver North confess to an incredible career of
lying to Congress, and he excused it.'' Mr. Chairman, do you
agree with Mr. Tifer, who said, ``We are dealing with hard core
obstruction of justice, where documents were destroyed and
phony chronologies were concocted at meetings on which all
conspirators agreed the goal was to lie, and Mr. Henry Hyde
condoned that.''
Mr. Sensenbrenner. The gentlewoman's time has expired.
Ms. Waters. I have got more the next time.
Mr. Sensenbrenner. I would ask unanimous consent that the
other questions of Mr. Hyde be placed in the record, if that is
what the gentlewoman from California wishes.
Ms. Waters. No, I have got to keep telling them to you.
Mr. Sensenbrenner. I hope those questions were not directed
to the present occupant of the chair.
The gentleman from Indiana, Mr. Buyer.
Mr. Buyer. You would note that the gentlelady from
California wants to propound detailed questions of the chairman
but she has no questions to ask of the President nor of his
conduct.
As I have heard some of the witnesses testify today on how
unfortunate it has been for the committee to be so partisan, as
if partisan is only defined by Republicans doing something and
not perhaps even what the Democrats are doing. I mentioned
itearlier. There is tremendous coordination in this town not only
between you and Mr. Ben-Veniste, you go out on MS-NBC, you are one of
the talking heads out there.
Mr. Ben-Veniste. No Gong Shows.
Mr. Buyer. I have a specific question for Mr. Hamilton. I
noted in your testimony you are endorsing a concurrent
resolution of censure. My question is, what would be the actual
purpose of a censure? What would be the objective purpose of
the censure? And what would be the effect of the censure?
Mr. Hamilton. The purpose of the censure would be to
condemn the President's conduct. The effect I think would be
significant. We all have read how the President values his
place in history. I think if a concurrent resolution was
enacted by the Congress with heavy participation by the
Democrats, as I believe would happen, that it would have a
pronounced effect on the President.
Mr. Buyer. The question was actual purpose and what would
be the objective purpose. If you have to draft a censure
resolution that condemns his conduct, are you then suggesting
that within a censure, in order to do that there is some
pronouncement perhaps of guilt on the President, on what he had
done?
Mr. Hamilton. I think the Congress has discretion to put in
that censure resolution what it wants to put in there, and I
would assume that there would be some pronouncement of guilt. I
do not have a draft in my pocket to show you, but I would
assume there would be.
Mr. Buyer. Mr. Ben-Veniste, let me ask you the very same
question about actual purpose, objective purpose and the effect
of a censure.
Mr. Ben-Veniste. Censure has been so infrequently used in
our country to bring forward a strong and clear disapproval of
conduct, that it is my view that this is not a slap on the
wrist, but rather a device which is proportionate and
appropriate to the misconduct committed by the President.
Insofar as I have been asked about my statement 25 years ago
about Watergate, there is a gulf between the crimes of Richard
Nixon, what is an impeachable offense and what we have here
before us.
Mr. Buyer. Let me reclaim my time because I don't want to
get back to Richard Nixon. The reason I asked this question,
gentlemen, is because of case law. In order for a legislative
measure to survive a bill of attainder prohibition, it must
pass the three-pronged test.
The test requires that the actual purpose, the objective
purpose and the effect are not punitive. Courts are directed to
examine the legislative intent of the measure to see if the
intent was to punish. If the objective purpose was solely
remedial, the measure may not qualify as punitive. Similarly,
if the intent of the measure is to defer future acts of the
same nature, it is likely not punitive.
So the problem we have here is a bill of attainder, it
pronounces the guilt of a party without any forms or the
safeguards of a trial. So if you do a censure and the President
may face indictment when he leaves office, we have now
prejudiced his case.
Mr. Sensenbrenner. The gentleman's time has expired.
Mr. Hamilton. Mr. Chairman, may I respond to that?
Mr. Sensenbrenner. A sentence or two.
Mr. Hamilton. A concurrent resolution of censure would not
be a bill of attainder because it would not be legislation
signed by the President. It would be a measure adopted by the
two houses. It would not be an unconstitutional bill of
attainder.
Mr. Sensenbrenner. The gentleman's time has expired.
The gentleman from Massachusetts Mr. Meehan.
Mr. Meehan. Thank you, Mr. Chairman.
Mr. Ben-Veniste, as a former U.S. Attorney, you surely have
extensive experience in bringing cases before grand juries and
securing indictments. Indeed, you were deeply involved in the
bringing of indictments in the Watergate cases before a grand
jury in a nearby Federal district court, so I think you know
what a grand jury does. You know the level of scrutiny it
employs and what purposes it serves.
For that reason I would like to hear your views on an
analogy that it seems we are hearing more and more about as we
approach this vote on impeaching the President of the United
States which will likely take place Saturday, probably about 4
o'clock, just before the network news and in time to make the
Sunday morning papers, I would guess. Not that I would think
that that would be a political question, but this analogy draws
a parallel between the work that this committee and the House
must do with respect to the Lewinsky matter and the work of an
ordinary criminal grand jury.
And under this perspective, we on the House side of the
Hill apparently exist for little other reason than to serve as
a ready conduit for scandal between the Office of Independent
Counsel and the United States Senate, and we simply flow this
referral through us and give sort of a stamp of approval and
send it over to the Senate for trial.
Now, personally I think that this analogy is a mistake. It
is a grave mistake for our country. But I think that it is put
forth by those who wish to send the following message to
Republican House Members who are still struggling in good
conscience with the impeachment issue. That is, vote for
impeachment, it doesn't mean that you want the President to be
removed from office, it doesn't make you responsible for
whatever happens over in the Senate when they have a long trial
and it breaks down. It is politically safe. All you are saying
is, ``Hey, look, there's enough here, why don't you guys over
in the Senate handle it.''
What do you think of this attempt to draw the analogy
between us, this committee and the House, and an ordinary
criminal grand jury?
Mr. Ben-Veniste. I think that your responsibility, because
it is constitutional in nature, is far beyond the
responsibility of a grand jury when you consider articles of
impeachment. That man whose portrait is here in this room, I
can tell you, was so burdened by the question of impeachment of
a President of the United States which had been placed on his
shoulders that it showed through to every American who saw
those proceedings. Peter Rodino cared deeply about what his
committee would do and how it would affect America, and the
responsibility to be fair and complete and to be as unbiased
and impartial and bipartisan as possible, because he was
speaking directly to the American public, which then had to
determine whether this cataclysm of impeachment was warranted.
Mr. Meehan. I want to get to the grand jury testimony on
August 17 of this year by the President, and I would like to
ask you a couple of short questions.
It is interesting why and how the President was called
before the grand jury. But I am interested, at the time the
President was called before the grand jury, do you believe that
Ken Starr had any thought of seeking an imminent indictment of
the President for civil deposition perjury?
Mr. Ben-Veniste. I have no idea what Mr. Starr thinks
about.
Mr. Meehan. Let's assume he wasn't intending to seek an
imminent indictment of the President in a civil deposition for
perjury. Would he summon the President before a grand jury at
that time for indictment purposes, or could it be perhaps he
would wait until closer to the date in which he would be
seeking an indictment, or willing to seek an indictment?
Mr. Ben-Veniste. The latter would be true, but the practice
in the United States in Federal prosecutors' offices is not to
summon the target of an investigation before a grand jury.
Mr. Sensenbrenner. The gentleman's time has expired.
The gentleman from Tennessee, Mr. Bryant.
Mr. Bryant. Thank you, Mr. Chairman. Let me be clear and
remind everyone once again as to what is going on today. We
have the final two members of today's panels, witnesses number
8 and 9 today, who are in here on behalf of the President,
testifying favorably for the President as a part of the 30
hours of testimony or time the President had to make his case.
Both of you gentlemen are very experienced in trial law and
know that oftentimes people who testify are independent and
don't have any dog in that hunt, so to speak. Sometimes they
have biases and prejudices. You both have made something of a
disclosure before you testified, but in the interest of broader
and fuller disclosure, quite frankly, Mr. Ben-Veniste, you had
the opportunity to, I think--Mr. Craig has been here as the
President's lawyer today. You had the opportunity to serve in
that capacity at one time, but declined that opportunity, or
declined that job, did you not? It was offered to you, was it
not?
Mr. Ben-Veniste. Let me say that my feeling about this
matter----
Mr. Bryant. I understand. In the interests of full
disclosure, I am not making any allegations. I just wanted to
know, were you offered his job and you turned it down?
Mr. Ben-Veniste. I don't think that would be an allegation.
I think any individual who is a lawyer in the United States----
Mr. Bryant. In your preliminary testimony you mentioned
some things I thought were fair disclosure. I am trying to make
sure that everybody understands you also had the opportunity to
be the President's lawyer.
Mr. Ben-Veniste. It has been reported in the newspaper,
sir, if I may, that discussions were held as to whether I would
come on board in some way. My view about that was that the
issues of impeachment of the President go so far beyond the
question of the defense of this particular President, that
although it would be a great honor for any lawyer to be
selected to counsel the President of the United States.
Mr. Bryant. Okay. You have answered that fully.
Mr. Ben-Veniste. To talk in a broader way.
Mr. Bryant. Mr. Hamilton--he answered it fully, I think. I
have 5 minutes. I don't have time for a filibuster.
Mr. Ben-Veniste. I hope I wasn't trying to filibuster.
Mr. Bryant. As counsel for the President, for the Clinton-
Gore transition team for nominations and confirmations, you
were the lawyer in 1992 and 1993?
Mr. Ben-Veniste. Yes.
Mr. Bryant. And you also mentioned voluntarily that you
defended the case or you were involved against Mr. Starr
somehow in the case against Vince Foster. You argued that case,
I believe?
Mr. Hamilton. Nine days before Vince Foster died he came to
see me about legal representation. I took some notes. Mr. Starr
wanted those notes. I thought those notes were protected, both
by the attorney-client privilege and the work product
privilege.
Mr. Bryant. I understand. People are familiar with that
case. I wanted to know, did you in fact represent Mr. Foster's
estate?
Mr. Hamilton. Yes.
Mr. Bryant. You did. I am listening to my colleagues, and
as time goes by we talk about how we want the facts, and how we
have been disappointed that these nine witnesses have made
essentially no presentation as to the facts, and that we should
wait on this 184-page document.
As part of that, I have quickly looked at about one-third
of it, and in that it says that--somewhere along here, it says
we are not going to be attacking Kenneth Starr anymore, and our
submission to the committee is going to talk about the facts.
But just quickly, in the first 50 pages or so, I counted--
we talked about sex earlier in his report, but I counted Mr.
Starr's name, or the OIC or the Independent
Counsel, 42 times, just in a quick glance at the first 50-
something pages.
I hope--and this I guess is a message to Mr. Craig as the
President's lawyer--I hope the balance of the 130 pages are
more fruitful in terms of giving us, once and for all, some
defense of the President based on facts and not on attacks of
Kenneth Starr. I yield back the balance of my time.
Mr. Sensenbrenner. The gentleman's time has expired.
The gentleman from Massachusetts, Mr. Delahunt.
Mr. Delahunt. Thank you, Mr. Chairman. I think it is
important to note that in fact we have received 184 pages of
the submission from counsel for the President related to facts
and related to evidence.
I think it is also time to put out here as a matter of
public information that members of the minority have heard that
there are draft articles of impeachment that have been written
by staff counsel to the majority.
I would respectfully suggest that tonight that those draft
articles be produced for the President and for minority. If
that is not the case, I stand corrected, but at least that is
what has appeared in the paper, Mr. Chairman. I am making that
request a formal request.
I also want to pick up on something that Mr. Inglis has
alluded to during the course of his questioning. He talked
about facts and he talked about evidence, and he suggests that
after three panels, we haven't heard from any fact witnesses.
He is correct. During the entire course of this committee's
work, we have not heard from a single factwitness. Those panels
that have been produced here by the committee chair have been very
informative, but none of them have contained a single fact witness. So
we are now on the verge of making a decision of extreme gravity without
having heard from one fact witness, either produced by counsel for the
President or produced by the committee.
Again, I want to read something in the record drafted by--
it is part of the committee report, and it is drafted by Mr.
Schippers, the chief majority investigative counsel. This is
his language: ``Monica Lewinsky's credibility may be subject to
some skepticism at an appropriate stage of the proceedings.
That credibility will of necessity be assessed, together with
the credibility of all witnesses in the light of all the other
evidence.''
Well, I wonder what stage Mr. Schippers was referring to,
because, as it has been stated here today, we are ready to take
a vote at the end of this week. Maybe he was referring to a
trial in the Senate. But since this is a House document, I
presume that Mr. Schippers was referring to House proceedings.
Now, having said all that, I think what I am hearing, and
it is a point, it is a legitimate point from members of the
majority side, that in there--in some of the individual
members' opinions, they perceive grave damage to be done to the
judicial system by what they suggest is perjury and obstruction
of justice, despite the fact that we have not heard from any
fact witnesses.
At the same time, I think it is important for the American
people to understand that those schoolchildren down in Texas
that Mr. Smith referred to when he read their letters should be
reassured that the President of the United States, if he has
violated the criminal code, is still in legal jeopardy. He can
be prosecuted if a prosecutor makes that decision, and,
depending on the verdict, if it should get to a jury, can be
incarcerated. The President of the United States is like every
other American citizen.
You know, when we talked about Mr. Starr as a witness, he
is certainly not a fact witness, and in fact, I thought it was
interesting when Mr. Starr acknowledged to this committee that
not only had he not participated during--in FBI interviews, nor
had he attended grand jury hearings, but he had never met
Monica Lewinsky.
Mr. Sensenbrenner. The gentleman's time has expired.
The gentleman from Ohio, Mr. Chabot.
Mr. Chabot. I thank the chairman. We just received a little
while ago this 184 pages, I think, that is the submission by
the President's attorneys. This is supposed to be their answer
to the facts, even though none of the witnesses here have
really addressed the facts, as has been brought up a number of
times. But this is supposed to talk about the facts and clear
up everything.
On page 77--and I haven't had a chance, and I doubt whether
any other member has had a chance to read the whole thing. But
on page 77, in the President's attempt to clear up whether he
was alone with Ms. Lewinsky, and that he of course had
indicated that he couldn't remember, or that he wasn't alone
with her--the President's submission indicates, and this is
their statement: ``The term `alone' is vague unless a
particular geographic space is identified.''
That is supposed to clear up the definition of ``alone.''
Let me read that again. ``The term `alone' is vague unless a
particular geographic space is identified.''
Mr. Ben-Veniste, let me ask you, can our system of justice
work at all if witnesses parse words like this, when the
commonsense meaning of a word, like ``alone'', ought to be
pretty clear?
Mr. Ben-Veniste. I agree that there has been too much
hairsplitting and too much parsing of language in all of this.
But can I say that surely the question of whether the President
said he was alone or not alone on a particular day with a
particular individual with whom he was having a consensual
relationship cannot, in the wildest expansion of the concept of
high crimes and misdemeanors, justify the impeachment of the
President.
I agree with you in connection with your frustration over
this parsing of language.
Mr. Chabot. I would agree with you, if it was only that one
lie about whether or not he was alone with her. But there is a
whole series of lies. I only have 5 minutes, so let me get on.
Mr. Hamilton, in your opening you claim that the
President's conduct should not be impeachable, and I quote,
``because other Presidents have not been candid.'' Isn't this
an argument for impeachment? Don't we want our Presidents to be
honest, rather than giving them the opportunity, for example,
to lie before a grand jury, or lie to Federal judges?
Mr. Hamilton. Congressman, I think I said that I don't find
the President's conduct impeachable for a variety of reasons,
principally because it is not a great and dangerous offense
against the State.
But surely we don't want our Presidents to lie or our
Congressmen to lie or our Senators to lie. But sometimes they
do, and I think the question is, when we find that they have,
do we want to initiate impeachment proceedings? I think there
is some judgment that comes in here, some proportionality.
Mr. Chabot. Certainly there does have to be judgment. Let
me give the full quote. You said that ``Lying to the public and
his cabinet and aides is disgraceful, but if we would impeach
all officials who lie about personal or official matters, I
fear that the halls of government would be seriously depleted.
Other Presidents, for example, Lyndon Johnson as to Vietnam,
have not been candid in their public and private statements.''
Now, the President said, for example, that he would pull
the troops out of Bosnia in a year. That was 3 years ago. They
are still there. I don't think that is impeachable. But he was
not testifying before a grand jury. He hadn't raised his hand
and sworn to tell the truth, the whole truth, and nothing but
the truth.
That is the whole point here, is that this President
apparently lied under oath, committed perjury. That is why many
of us are seriously considering whether or not this President
should be impeached and removed from office. I yield back the
balance of my time.
Mr. Sensenbrenner. The gentleman's time has expired.
The gentleman from Florida, Mr. Wexler.
Mr. Wexler. Thank you, Mr. Chairman. If we have
accomplished one thing today, I think we have accomplished
something important. That is that many instances today the
majority members have talked about the fact that the President
has not presented any exculpatory facts.
It has been referred to earlier, but here it is, 184 pages.
If I'm getting the sense of it, from page 54 on, the great bulk
of the testimony of the President's counsel relates to specific
rebuttal, specific factual rebuttal of the claims against the
President; that the President did not commit perjury, that the
President did not obstruct justice, that the President did not
tamper with witnesses.
In analyzing some of the President's counsel's response, I
would like to address the issue of perjury, because that is the
issue that seems to have captured the imagination of most of
the Republicans in the House. Let's talk about what that
perjury, alleged perjury, is, at the grand jury.
The President admitted to an inappropriate intimate
relationship with Monica Lewinsky at the grand jury that was
physical in nature. He acknowledged that his conduct was wrong.
What the President denied at the grand jury was having sexual
relations with Ms. Lewinsky, only as that term was defined by
the Jones' lawyers and substantially restricted by Judge
Wright.
The President failed to go into the details of his
encounters with Ms. Lewinsky, and he did testify that he did
not have sexual intercourse or sexual relations, as defined by
the Jones deposition.
Mr. Schippers, the Republican counsel for the committee, in
his presentation to this committee, analyzed that the
discrepancy between the testimony of President Clinton and Ms.
Lewinsky over the precise nature of the physical contact
involved in their relationship--that was the basis for an
allegation that President Clinton perjured himself before the
grand jury.
I would respectfully submit that the American people
understand full well what an affair entails. They understand
that it is not going out for coffee. And what the American
people need to understand and what I would like Mr. Ben-
Veniste, for you to address to the American people and to those
so-called moderate Republicans that have yet to make up their
minds, what is this perjury before the grand jury about? Do I
have it right?
Is it about the discrepancy of the great detail by Ms.
Lewinsky as opposed to the admission by President Clinton that
it was wrong, that it was a physical relationship, that it was
intimate, but he didn't tell us all of the precise details? Is
that what the perjury is all about?
Mr. Ben-Veniste. It seems to be. It seems to be what the
perjury is all about, or the claim of perjury is all about. I
have to say that if that is what it is, then simply using the
word ``perjury'' does not convey the discrepancy between the
remedy we are talking about; that is, to disenfranchise all of
the United States in its election of the President, taking away
their vote, nullifying it, and saying, he cannot be President
anymore because he did not testify to these details in the
grand jury. To me, that is mind-boggling.
Mr. Wexler. Thank you very much.
Mr. Sensenbrenner. The gentleman from Georgia, Mr. Barr.
Mr. Barr. Thank you. Indeed, that might be mind-boggling,
but that is not the situation we are faced with, Mr. Ben-
Veniste. You know very well that essentially what we are faced
with is not simply a statement about an improper sexual conduct
and an argument over the plain meaning of language regarding a
court definition, but whether or not it is appropriate for a
President to make statements in court for the purpose of either
establishing or not establishing a pattern of activity that is
deemed relevant to a lawsuit involving the civil rights, the
constitutional rights, of a citizen.
So you may, along with your colleagues on the other side of
the aisle, keep simply saying that this is about a particular
statement, but it really isn't.
Mr. Hamilton, I find, similar to other statements that we
have heard here, rather disturbing, where you say in your
statement that the President lied, that he unlawfully invoked
executive privilege repeatedly, abused power, and so forth; yet
these don't rise to the level of an impeachable offense. I'm
sure that we could engage in a discussion for the entire
remainder of my 5 minutes and I'm not going to convince you
otherwise.
It just strikes me as odd that learned attorneys who have
extensive experience in representing parties, including the
United States, in court believe that it is appropriate for a
President who, not just an average citizen but the President of
the United States of America, in your opinion, lies under oath,
unlawfully invokes executive privilege, commits abuse of power,
yet should remain in office.
Mr. Hamilton. Congressman, I did not say it was appropriate
for the President to lie in office. You are mischaracterizing
my statement.
Mr. Barr. The only way we have under the Constitution, Mr.
Hamilton, unless you can pull out your copy of the Constitution
and show me otherwise, to remove a President is impeachment.
You are arguing that we should not impeach the President.
Therefore, you are denying to us--you are saying that the one
method we have of removing a President for these things, which
you agree he committed, should not be available; then yes, by
implications you are saying that that President should remain
in office. We don't have any other way of removing a President
from office for these sorts of abuses of office. Censure, even
if we censured the President in themost horrendous language
possible, called him all sorts of names, would not remove him from
office. Even if we reprimanded the President in the most horrendous
terms, it would not remove him from office.
I would certainly presume that you would agree that the
only method in our Constitution, the only method available to
us, because we can't control whether a President resigns or
not, to remove a President for whatever the behavior is that we
believe is impeachable, is impeachment. Is there some other way
of removing a President in our constitutional form of
government?
Mr. Hamilton. You have a way if he is disabled.
Mr. Barr. Pardon?
Mr. Hamilton. If the President is disabled, there is a way.
Mr. Barr. We are certainly not contemplating disabling the
President. Maybe you have some----
Mr. Hamilton. You asked me a question, whether it was the
only way. My answer is if the President is disabled there is
another way.
Mr. Barr. That is sort of silly. There are provisions in
our Constitution that address a President who is disabled. That
is not a method of removing a President from office that is
available to us. I certainly would never contemplate that,
anyway.
What I am saying is it really does strike me as very, very
odd for you all--and you are not alone, I know there have been
many defenders of the President that have sat in those chairs
today and in the prior hearings that we have had, and I'm sure
we will have more tomorrow that will sit in those same chairs
and admit that the President lied under oath, that he abused
office.
I commend you for at least recognizing that he has
unlawfully abused the privileges available to him, such as
executive privilege. Many of your colleagues won't even admit
that. But yet then you say that this President should remain in
office. And particularly with somebody with a distinguished
career, that has represented the United States of America, both
of you, that really does strike me as odd. I think that sends a
very, very bad message to the country.
That, I think, Mr. Ben-Veniste, is what does damage to our
country's reputation and the ability of our President to
conduct foreign affairs, not the fact that we might remove him
for those sorts of behaviors.
Mr. Ben-Veniste. If you have some actual empirical evidence
of that, that would be contrary to what I hear when I talk to
foreign nationals about what is going on in this country.
Mr. Barr. My empirical evidence is the same as yours, what
they tell me.
Mr. Sensenbrenner. The gentleman's time has expired.
The gentleman from New Jersey, Mr. Rothman.
Mr. Rothman. Thank you, Mr. Chairman. I would like to get
back, if I may, to what I believe these hearings are all about.
We have heard a great deal of conversation from my friends on
the other side of the aisle that what these offenses are all
about and what we should do about them has to do with whether
we are going to enforce the rule of law in America or not, and
whether we are going to send the right messages to our children
and to others involved in the judicial--in the justice system
as litigants or defendants.
I agree that the rule of law is important, critically
important to our system of justice and our way of life in a
civil society. That is why there are penalties, civil and
criminal penalties. I dare say to my friends on the other side
of the aisle who trivialize what President Clinton is going
through, and think that he might be a model to those who would
avoid telling the truth, the following: The President of the
United States has just agreed to pay Paula Jones and her
lawyers $850,000 for his misconduct during the Paula Jones
matter.
Is that an incentive for people to lie in civil litigation?
The President did not get away with anything there, did he? The
fact that President Clinton is still subject, when he leaves
office, to being criminally charged for any of the charges
raised by Mr. Starr, and could go to prison for his misconduct,
his alleged misconduct, is that an incentive for people not to
tell the truth, the whole truth, and nothing but the truth
under oath? Of course not. So all of the incentives to uphold
the rule of law are there already.
We are not talking about whether we want our kids to
respect the truth. It is there already, and will be applied
against the President. What we are talking about is what we are
responsible for, upholding the Constitution. The Constitution
says how the President gets hired, elected, and gets fired:
Treason, bribery, and other high crimes and misdemeanors.
We have to decide whether the President's conduct not
should be punished, but--it has already been punished and may
very well be punished criminally in the future. We are deciding
whether, as a Nation, we must remove the President. So I
daresay that the arguments about upholding the rule of law, we
have already taken care of that discussion.
One could argue that the penalty of impeachment and removal
far exceeds the crime, and that censure is a better approach. I
have not yet made my mind up on the charges raised by Mr.
Starr. The hearing has not been concluded. But I will say to
you this, that in my judgment a clear and convincing standard
of proof must be met by those who would seek the President's
impeachment and removal, and that it, of necessity, requires
fact witnesses when the testimony relied on by Mr. Starr, is
equivocal, is ambiguous, is contradictory, and is qualified, as
the President's counsel has addressed.
So we have one prosecutor, Judge Starr, saying the
witnesses say this and it means this, we have the President's
counsel say the witnesses said this and mean this. We are left
to decide in the middle.
Let me say that we are founded by a Nation of those who
were loathe to take the word of government officials only, and
put the burden of proving guilt on the accuser, and did not
require the accused to prove his or her innocence. To put the
burden of proof on the accused, in this case President Clinton,
is not only to subvert the Congress' impeachment power, but 200
years of American justice. I yield back, Mr. Chairman.
Mr. Sensenbrenner. The gentleman's time has expired.
The gentleman from Tennessee, Mr. Jenkins.
Mr. Jenkins. Thank you, Mr. Chairman. Gentlemen, I thank
both of you for being here. It has been a long day. You are the
third panel which has been here, consisting of two very good
lawyers testifying--not representing, testifying for the
President of the United States today.
As I understand your testimony, both of you think thatthe
President has engaged in wrongful conduct. Is that correct?
Mr. Ben-Veniste. Yes.
Mr. Hamilton. Yes.
Mr. Jenkins. Both of you think that the President has
violated the law?
Mr. Ben-Veniste. Perhaps.
Mr. Jenkins. Perhaps?
Mr. Hamilton. Certainly his testimony is most troubling.
Mr. Jenkins. Perhaps, and the testimony is most troubling.
Both of you, in any event, believe that some remedy for this
situation is appropriate?
Mr. Ben-Veniste. Yes.
Mr. Jenkins. Both of you believe that. And you have talked
about censure, fines, and reprimands, and perhaps one or two
other possible remedies.
Now, to follow up on what Mr. Barr was asking, and I will
try to leave time for you to respond to this, but I am
concerned, in reading the Constitution, it says that in the
event there is a violation, the remedy for that is removal from
office. Some people don't like to call it a remedy, some don't
like to call it punishment, but whatever you call it, the
Constitution provides that removal from office is the
appropriate action to take.
Now, I am not directing this at you, but this entire day
has reminded me of that lawyer strategy that is used across
this land whereby, if the law is against you, you argue the
facts; if the facts are against you, you argue the law; if the
law and the facts are both against you, then you attack the
prosecutor, and certainly the special counsel has been attacked
time and again in this room.
Now, the very resourceful Washington lawyers have added a
new dimension to that, and in addition to attacking the
prosecutor, they have said, well, tell them how bad Watergate
was to this country. So if I ever get back to practicing law, I
may use this down in Tennessee.
But my question to you is, do you not have any concern,
either of you, for what the Constitution says insofar--and we
don't know what is going to happen, it may never get to the
point where there is a remedy employed, and that will resolve
that question. But in the event that this proceeding gets to
the point where there must be some remedial action taken, then
do neither of you have any concern for the words of the
Constitution that say that removal from office and that
additional remedy of not holding public office again, do you
not have any concern for that?
Mr. Hamilton. Congressman, clearly that is a remedy that is
set forth in the Constitution. That does not mean that there
are not other remedies.
The House is governed by a rules manual. If you look in the
first pages of that manual, there is something that is called
Jefferson's Manual that was written by Thomas Jefferson when he
was the Vice President and was, therefore, the President of the
Senate.
In Jefferson's Manual, he says that a resolution is a way
that a House can express its opinions, its purposes, and its
principles. If you look in the footnote that is written by the
Parliamentarian of the House, the Parliamentarian says in
modern practice a concurrent resolution is the means by which
the Senate and the House express their opinions and their
purposes and their principles.
So there is a legitimate way to do it that has been
recognized since the time that Thomas Jefferson was Vice
President, which was before 1800.
Mr. Jenkins. But that--thank you, Mr. Chairman.
Mr. Sensenbrenner. The gentleman's time has expired.
The Chair is aware that there are two members who wish to
make requests to include material in the record.
The gentleman from Georgia, Mr. Barr.
Mr. Barr. Mr. Chairman, I wish to include a letter I had
given to the chairman at the same point as the letter from Mr.
Conyers.
Mr. Sensenbrenner. Without objection.
[Information not available at time of printing].
Mr. Sensenbrenner. The gentleman from Virginia, Mr. Scott.
Mr. Scott. I would like to enter this newspaper article
from Sunday's Washington Times.
Mr. Sensenbrenner. Without objection.
[Information not available at time of printing].
Mr. Sensenbrenner. Is there any further request to include
material in the record?
Mr. Goodlatte. I would ask that the Wall Street Journal
article of today's date be included in the record.
Mr. Sensenbrenner. Without objection.
[Information not available at time of printing].
Mr. Sensenbrenner. A further request?
The gentlewoman from Texas, Ms. Jackson Lee.
Ms. Jackson Lee. I have two articles, one dated November
1993: House Panel Reportedly Draws up Clinton Impeachment
Charges, and one dated November 28, 1998, Impeachment Articles
Being Drafted.
Mr. Chairman, I would like to include those.
Mr. Sensenbrenner. Without objection, they are included.
[Information not available at time of printing].
Mr. Sensenbrenner. The gentlewoman from Texas, Ms. Jackson
Lee.
Ms. Jackson Lee of Texas. Mr. Chairman, I would like to
submit in its entirety the Constitution of the United States of
America, which does not denote any prohibition on censure.
Mr. Sensenbrenner. I believe the committee has already
printed that.
Mr. Buyer. I object.
Mr. Sensenbrenner. Does the gentlewoman from California
have a request?
Ms. Waters. Mr. Chairman, I want to take you up on your
offer to place my questions to the Chairman in the record about
his past comments.
Mr. Sensenbrenner. You are talking about the real Chairman,
not the acting Chairman?
Ms. Waters. The real Chairman.
Mr. Sensenbrenner. The Chair will put the question, without
objection.
[Information not available at time of printing].
Mr. Sensenbrenner. For what purpose does the gentlewoman
from California----
Ms. Lofgren. I ask unanimous consent to submit for the
record my two letters to Mr. Starr and my letter to the
Attorney General relative to the three questions I asked Mr.
Starr, and my seeking of answers to those.
Mr. Sensenbrenner. Without objection.
[Information not available at time of printing].
Mr. Sensenbrenner. Anybody else? Going once, going twice.
The gentlewoman from California.
Ms. Waters. I would like to submit the L.A. Times article
that I referenced by Mr. Savage relative to 1987, and the
comments by our chairman, the real chairman.
Mr. Sensenbrenner. Without objection.
[Information not available at time of printing].
Mr. Sensenbrenner. The gentleman from Wisconsin has been
very patient, and is recognized.
Ms. Jackson Lee. Mr. Chairman, I seek a clarification. It
was noted that the Constitution is already cited in the record
of these proceedings. Is that accurate, Mr. Chairman?
Mr. Sensenbrenner. I said the committee has already
published the Constitution elsewhere.
Ms. Jackson Lee. I will get a review on this and raise the
question again tomorrow. Thank you, Mr. Chairman.
Mr. Sensenbrenner. Okay. That request is withdrawn, without
objection.
The gentleman from Wisconsin, Mr. Barrett.
Mr. Barrett. Thank you, Mr. Chairman.
Several of my colleagues on the other side of the aisle
have been keeping score tonight and have said that this is the
third panel where we haven't had a material fact witness on
behalf of the President. They are absolutely correct. Now, at
the end of 3 months, if you are keeping score, as they have,
there have been zero material fact witnesses to push this
investigation and zero material fact witnesses in defense of
the President. Again, the score remains zero to zero, which
sort of highlights the bizarre nature of these proceedings. We
have heard hours and hours of testimony on, talked to ourselves
for hours and hours, and still not heard from a single
individual who was supposedly involved in this. That points to
some of the problems with the impeachment.
I just want to take a minute or two to talk about my
perception as to why we are having problems here. I think there
are three reasons why the American people are opposed--at least
the majority of the American people--are opposed to
impeachment.
I am going to advance, first, the one that I hear most
often from my Republican colleagues, and that is that the
economy is doing well. The stock market is doing well. People
are working.
That might be true. I must say I never thought that I would
hear my Republican colleagues in Congress being frustrated by a
good economy, but certainly I think that that is part of the
reason, that the economy is doing well, inflation is low,
unemployment is low. Darn it, it was that Democratic president
who was in office when that happened.
The second reason, and the one that I hear least often from
my colleagues here, is that the American people think there is
something wrong here, there is something going on. It can be
characterized as attacks on Ken Starr. I frankly prefer to
center my attention on Linda Tripp, because I think that she is
the one that, in many aspects, is the focal point here.
I don't think it is necessary to hold Ken Starr's office
culpable for the mistakes, but when you have a situation where
the cooperating witness for the Independent Counsel is also
working very, very closely with the attorneys for Paula Jones,
there is something wrong here. When we are doing something as
grave as talking about setting aside the only national election
in this country and there are questions about her role and the
role that is being played by the political enemies of the
President, in some respects I think that is a greater danger to
democracy than anything we are talking about here tonight.
The third reason I think is that many Americans think that
these are not impeachable offenses.
I was at home over the weekend. I wanted to buy some hock
ham on Sunday. The grocer said to me, ``I will tell you, the
President screwed up.'' And his language was much more colorful
than that. He said, ``The President screwed up. But the
question is, was it Bill Clinton the President, or Bill Clinton
the man?'' He said, ``I think it was Bill Clinton the man who
screwed up, and we should deal with it. It wasn't Bill Clinton
the President.''
As you analyze what should be an impeachable offense, if we
can take a piece of paper and draw a line right down the middle
and on one side you put offenses against the body politic,
offenses against our democracy, those that we talked about in
terms of Watergate, I think most of us would agree that those
are offenses that are impeachable.
On the other side of the ledger, you have offenses that are
committed by a person. And I have heard individuals talk about
murder. I would think that murder would be an impeachable
offense, even though it is not an offense against the State.
That is sort of at the high end, even though it is committed by
the person. At the low end would be jaywalking. I don't think
anybody would talk about that.
But in the middle you have perjury. You have perjury for
things like murder, but then you have people who say that their
odometer was wrong when they got a speeding ticket. If that
were the case, we would have a lot more malpractice, a lot more
product liability suits against odometer makers than we have.
But people are lying there. I think there is a gray area.
So what it comes down to is, what is the best thing to do
for this country? There is not a single person that I have yet
to talk to who thinks the President is going to be removed from
office. So we are going to slap him in the face. We are going
to either slap him in the face with censure or impeachment.
Impeachment drags this matter out for several months and
divides the country. Censure, also a slap in the face. Both
have only been done once in this Nation's history.
So, in both instances, we are either going to censure the
President for the second time in this country's history or we
are going to impeach the President for the second time in this
country's history. I opt for censure, which I think is the
least divisive or the less divisive of the two.
I yield back the balance of my time.
Mr. Sensenbrenner. The gentleman's time has expired.
The gentleman from Arkansas, Mr. Hutchinson.
Mr. Hutchinson. Thank you, Mr. Chairman.
I wanted to first make reference to my friend from
Virginia, Bobby Scott. He has mentioned twice today a question
and a statement that I made to Mr. Craig, the White House
counsel, the President's counsel.
I was providing with specificity, at his request, the
concerns I have about perjury. So the whole idea was not to
bring up a new idea, but it was to be very specific and respond
to his requests.
There have been some questions asked about the evidentiary
record in this case. I want to make it clear, in my own
judgment--and I believe it is clear--that this committee has
the burden of proof. There is not any question about that. If
the House goes forward, the President has no burden of proof.
It is this body that has the burden of proof. And it is not, in
my judgment, by preponderance. It should be a high standard,
because we are talking about impeachment of the President of
the United States.
So as I look at these facts, the burden of proof is on
those who wish to go forward with articles of impeachment. We
should make that perfectly clear. It should be a high standard.
Now, to the evidentiary record on perjury, I don't know
that there is a whole lot in dispute here. It appears to me
that there is a growing consensus that the President lied under
oath.
Now, there is a debate as to whether this is legallyperjury
or whether it is simple lying under oath. But I think there is a
growing consensus. We don't need to have a lot of witnesses, if any
witnesses. The record is clear.
Obstruction is a little bit more difficult. You have to use
a lot of common sense. You have to apply other evidence to
support the particular witnesses in the case. You have to
analyze that more.
Let me go to the questions about perjury. I think this is
an extraordinarily serious area. Questions have been raised
about Mr. Starr, about Linda Tripp, about other figures in this
inquiry.
To me, it comes down to the fact that when the President
testified in front of a judge in a civil deposition, a Federal
proceeding, he had a choice to make, either to tell the truth
or not to tell the truth. Regardless of what has happened in
the investigation, when it went to the grand jury, Alan
Dershowitz and everyone else was riding him, whatever you do,
tell the truth in the grand jury. It could very well cost you
your presidency.
He had a choice to make. To blame it now on Starr or Linda
Tripp, really, it is not helpful. I think you all would agree
as lawyers that you cannot excuse a decision he made, if he
made a decision not to tell the truth, on anything else but his
own decision. Is that fair?
Mr. Ben-Veniste. The question, all the way up to the grand
jury, there are two things. One, he had another choice, and
that was not to respond in the civil deposition and to take an
appeal and to take that up.
Mr. Hutchinson. That is true.
Mr. Ben-Veniste. In connection with the grand jury, I again
question the materiality and, indeed, the entire basis for
claiming that perjury was committed. Because maybe I am missing
something, but . . .
Mr. Hutchinson. I agree. That is a legal question there
that we can debate. That is not conceded. Materiality, all
those issues on perjury, you can debate. But the truthfulness,
the decision to lie or not, is the President's decision--either
answer, don't answer, tell the truth or don't tell the truth.
Mr. Ben-Veniste. That is true.
Mr. Hutchinson. Would you agree, Mr. Hamilton?
Mr. Hamilton. Yes.
Mr. Hutchinson. I am going to run out of time here in just
a few minutes.
I want to thank you gentlemen for testifying. Quite
frankly, I wanted to hear you because I have a high regard for
both of you, but you are put in an awkward situation to help us
make a decision, and you have no information that will help us
make that decision. But I respectfully receive it.
We are getting down to the ``lick log'' in this case, as
they say on the farm in Arkansas, and we have to make a
decision. It is not an easy one. Thank you for testifying.
I wanted to end with a quote from 1974, since we have spent
so much time reflecting on that proceeding. This is a quotation
from a Member of Congress in his remarks to this committee.
``But I am happy to say tonight that most of the people in my
own State of Arkansas are law-abiding citizens who believe
strongly in the rule of law in this country and that all of the
people in this country have an obligation to live by that
standard of law and that the leaders of the country have an
obligation not merely to obey the law but to set an example of
justice and adherence to justice upon which our free government
must be based. There can be no national interest greater than
the requirement that the public servants must be bound by the
laws that they make and administer.''
That statement was made by representative Ray Thornton of
Arkansas, who is now on the Supreme Court of Arkansas. I
reflected on that last night. I think that is still the
attitude of the people of Arkansas. I just wanted to bring that
to everyone's attention today.
Mr. Sensenbrenner. The gentleman's time has expired.
The gentleman from Indiana, Mr. Pease.
Mr. Pease. Thank you, Mr. Chairman.
Mr. Ben-Veniste, you discussed earlier in your prepared
remarks your suggestion that it would be appropriate and
constitutional for the Congress to reprimand the President for
his personal conduct. Without getting to the parsing of words
again, what do you mean when you say it would be appropriate
for us to reprimand the President for his personal conduct?
Mr. Ben-Veniste. By which I mean to make the distinction
between the meaning of high crimes and misdemeanors in the
category of treason and bribery, versus the conduct with which
you are now struggling. And it seems to me entirely
proportionate, reasonable and in the greatest interest of this
country to apply a commonsense and moderate approach to the
conduct in question and the kind of remedy with which you will
deal with that conduct.
And in my view, a reprimand, be it a censure, be it a
rebuke, but a formal declaration of disapproval of the conduct
is the appropriate remedy.
Mr. Pease. I understand that. My question still is when you
say--let me back up. I'm not interested in us addressing in a
reprimand, in a censure, in an impeachment, the President's
personal contact, whatever it may have been, with Ms. Lewinsky.
I do think it is appropriate for us to address the question of
his behavior before judicial proceedings in their various
forms. That is the distinction I was getting to.
Mr. Ben-Veniste. All of that conduct, if I may, flows from
his personal conduct. He appeared in his personal capacity
before the lawyers and the judge in a deposition in a civil
matter. He appeared in his personal capacity before a grand
jury. I think that is the distinction.
Were he to have lied about the misuse of power, say he had
someone on this committee, Mr. Barr, for example, audited by
the IRS, or had his phone bugged by a plumber's unit, or broke
into a psychiatrist's office for the purpose of obtaining
records, all of those things would indeed rise to a level of
scrutiny.
Mr. Pease. I understand. Thank you.
Mr. Hamilton, in your prepared materials you discussed the
issue of abuse of power, and I don't recall that you got into
the question of executive privilege, but can you explain for us
briefly your understanding of that concept?
Mr. Hamilton. I did get into it in my prepared statement.
There are several types of executive privilege, but one type is
what is called the deliberative privilege. When the President
speaks with his aides to obtain their advice, that conversation
is presumptively privileged. That, by the way, is what the
district court found, that those conversations were
presumptively privileged.
The court went on and found that the needs of the criminal
justice system outweighed the President's presumptive
privilege, so the court ordered the conversations and the
information to be turned over. This is essentially what
happened, by the way, in the Watergate situation. The Supreme
Court found that President Nixon's tapes were presumptively
privileged, but the needs of the criminal justice system, in
this case the need in a trial, outweighed that.
Mr. Pease. Thank you. Can you help me understand how on the
one hand it can be argued that the President's behavior, his
conduct, was purely personal, but yet he asserts executive
privilege about behavior that he also contends is purely
personal?
Mr. Hamilton. I was not obviously in the conversations, and
some of this information was in a sealed transcript. But I
understand that certain of these matters, the Lewinsky matter
and all, was discussed in the White House in determining what
official actions the President was going to take. It had some
ramification. I can't give you any details on that. Maybe that
is a good question to ask Mr. Craig tomorrow.
Mr. Sensenbrenner. The gentleman's time has expired.
The gentleman from Utah, Mr. Cannon.
Mr. Cannon. Thank you, Mr. Chairman. I am going to begin by
agreeing with my friend, Mr. Barrett, that we actually have a
good economy with a Democratic President, and I would like to
point out that that fact, the fact that the economy is going
well in spite of a Democratic President, is maybe the best
case, maybe the best case for not exaggerating the threat of
impeachment proceedings to the country.
Now, Mr. Ben-Veniste, did you know that Sam Dash was going
to resign before that--from the Office of Independent Counsel
before that became public?
Mr. Ben-Veniste. No.
Mr. Cannon. One of the nice things about being at the end
of the panel, besides going through a long process, is that you
get to sort of put things together as we go.
I would like to speak to a couple of points made by my good
friend, Mr. Rothman, who pointed out first of all that the
President is going to be punished to some degree, $850,000, and
humiliation; an $850,000 penalty in the Jones case, and that
should teach children that perjury is not appropriate. May I
just point out that I don't think this is about punishment.
Secondly, in the case of the $850,000, the President may
have decided to do that because of the box he is in publicly,
but I think that went to settling the base case with Ms. Jones.
Mr. Rothman talked at some length, and I agree with much of
this, about the rule of law. Let me suggest that the question
here is not the rule of law or not having the rule of law, but
rather the kind of weight that we give here to perjury.
There has been a great deal of comment today that we have
heard about what happened in the Watergate circumstance,
situation. That has established what I would call a very high
bar for impeachment. I might say that this bar seems to be a
lot more clear today after 24 years and after having come to a
national consensus that what went on was wrong. I recall
distinctly during the time how vicious and partisan that all
was.
On the other hand, we have a great deal of talk also about
an alternative, and that alternative would be some kind of
censure. The bar with censure is actually quite low. You may
raise that bar a little bit by talking about a penalty, but of
course you can't penalize the President unless he agrees. And
you may also have him come and stand in the well of the House
and abase himself before the House, something that I think
would do great damage to the office of the President and not be
appropriate.
I find myself at this time really searching for where we
ought to go. I think most Americans who care about these
proceedings are also looking at some of these same questions.
Interestingly, the facts are not really in question. We talked
about the zero for zero with the fact witnesses.
But we do have a prima facie case. We have a case that has
been made, and many people have acknowledged that, essentially
even trying to say that even if true, these actions wouldn't
have been impeachable. Both of our current panelists have
talked about or acknowledged wrongdoing on the part of the
President.
Mr. Owens earlier said that he thought the President had
lied to the grand jury and had lied in the civil action about
Paula Jones. He also said earlier than that that the facts are
pretty clear, by which I think he meant that the President had
actually committed perjury.
Those people who support the President have variously
called his behavior deplorable, I think is a term Ms. Jackson
Lee used, reprehensible is a term Wayne Owens used, sinful is a
term that Mr. Craig used, obscene has been used, morally wrong,
indefensible, inappropriate, and improper. All these
pejoratives from the supporters of the President imply sex
rather than perjury.
And I think there is an attempt when we use those kinds of
terms to avoid the real issue here, which I believe is perjury.
Frankly in trying to tie these issues up, Mr. Owens looked
at the Republicans and sort of blamed us for people becoming
aware of some of the President's most lurid actions, when it
was in fact the vast majority of all of Congress who voted for
the release of the documents that made those actions by the
President public.
Professor Drinan pointed out that one of the major
differences between this hearing and that of 1974 is that
Republicans are in the majority. I would suggest that the fact
that Republicans joined Democrats in 1974 says more about
Republicans then and Democrats now than it does about the
difference between the crimes of President Nixon.
Mr. Sensenbrenner. The gentleman's time has expired.
The gentleman from South Carolina, Mr. Lindsey Graham.
Mr. Graham. Thank you. Where did Mr. Rogan go?
Mr. Sensenbrenner. Mr. Rogan is ill and went home.
Mr. Graham. I am sorry, I apologize.
Very important, you made some statements that really, Mr.
Ben-Veniste--is that right?
Mr. Ben-Veniste. Yes, it is.
Mr. Graham. I think I understand what you are saying about
the type of things that you would want to impeach a President
for, and the types of abuse of office that becomes threatening
to the public.
If a President focused on a political enemy or someone that
could affect the President adversely, and started using the
power of the presidency or the power of the government against
that small individual, that would trouble you, right; Watergate
stuff, is that correct?
Mr. Ben-Veniste. If he----
Mr. Graham. If he wiretapped an individual, somebody that
was a potential threat to their political interests, personal
interests, monetary interests--let's just say political
interests--or they got the IRS to kind of audit that person,
then that really bothers you, doesn't it?
Mr. Ben-Veniste. I think that is an abuse of power, yes,
sir.
Mr. Graham. If I can show a reasonable fact pattern that
suggests such an event occurred with Bill Clinton, would you
have a different opinion about this as being a little more than
about sex?
Mr. Ben-Veniste. I am certainly willing to listen to your
argument, sir.
Mr. Graham. You just need to tune in tomorrow.
Mr. Ben-Veniste. Oh.
Mr. Graham. Let me ask you this. About his perjury, about
the body parts being contacted, I think most of us really
believe if that is all there is to this, let's just let it go.
Count me in that category. Count me in that category. We will
do something to him other than impeach him.
When the President, according to Mrs. Currie, came to her
after his deposition testimony and made these statements, do
either one of you know what he was trying to do? Here is what
she claims he said: ``You were always there when she was there,
right? We were never really alone? You could see and hear
everything?'' This is really important. ``Monica came on to me,
and I never touched her, right? She wanted to have sex with me,
and I couldn't do that.''
What do you believe the President was trying to do when he
made those statements?
Mr. Ben-Veniste. I don't know.
Mr. Graham. Thank you. I yield back the balance of my time.
We will talk about this tomorrow.
Mr. Sensenbrenner. Finally, last and certainly not least,
the gentlewoman from California, Mrs. Bono.
Mrs. Bono. Thank you, Mr. Chairman. I always get the same
introduction every time.
Mr. Ben-Veniste, I want to address this to you. We were on
a panel together, you were in New York, I was here in
Washington. We didn't get to complete our dialogue. I would
like to do that now, if I may, without Larry King present.
I am curious which tape you saw first, between the Paula
Jones deposition or the videotape of the grand jury testimony.
Mr. Ben-Veniste. I don't think I have seen any tape of the
Paula Jones deposition. I am pretty sure I have not.
Mrs. Bono. All right. So you just read the transcript?
Mr. Ben-Veniste. I am not sure that I read the entire
transcript. I probably did not.
Mrs. Bono. You have read parts of the transcript in the
Paula Jones case?
Mr. Ben-Veniste. I have read parts that were reproduced in
the Starr report.
Mrs. Bono. My question is not going to be legal, obviously.
These brilliant minds, I leave that up to them to do that
argument. By the time it gets to me, Mr. Graham and I have
questions that are great and written, and we lose them. And by
the end of 37 people, I am stuck with what is left in my gut.
My question for you is if you have read parts of the
transcript. I don't know that many Americans have read even
that much of the transcript of the Paula Jones testimony. I am
wondering if you believe that if the American people saw the
testimony of the deposition before the Paula Jones case, if
they might feel differently about the perjury case; if they
would, when they saw the President lie, if they juxtaposed the
two, Paula Jones and grand jury, how would they feel then?
Would they be more inclined--would the poll numbers be
different than they are?
Mr. Ben-Veniste. Well, when I saw the President's testimony
before the grand jury on videotape and I listened to what
people were saying, I think they understood that the President
was reacting as a human being who had done something about
which he was ashamed, and which was a very human reaction.
I think the idea of not disclosing a personal relationship
with an individual with whom he should not have been having
that relationship was troubling to him, and I think it is quite
clear that he did not want to tell anybody about it in
connection with that very highly politicized Paula Jones case.
Whatever that case was about, dismissed by the court now, the
tangential matter of Ms. Lewinsky, which the court ruled was
not central to Ms. Jones' allegations against the President,
was something that the President clearly wanted to evade
talking about. And I don't think he did it the right way, and I
don't think it is appropriate to lie in depositions, but it
happens every day.
Every time there is a civil case in which one party says X
and the other party says Y, one says black, one says white,
usually after all of that happens, the matter goes to a trial,
if it is not settled before that, and then a jury decides, was
it black, was it white, was it X, was it Y, and then the loser
loses, the winner wins, and no one gets prosecuted for perjury.
Mrs. Bono. All right, can I just jump back into my original
question, I think it is a good one. If the American people saw
the testimony of the President in both situations, would they
feel differently, would the polling numbers which are so
important to the Democrat side of this aisle, would those
numbers be different if they actually saw the President lying
to them?
Mr. Ben-Veniste. I don't think I can answer your question.
As much as you have worked on it, it has a lot of parts to it,
and I think we will just have to see. And I am thankful that
you are the last person to question us this evening.
Mrs. Bono. Thank you very much. We all appreciate your
time, and thank you, Mr. Chairman.
Mr. Sensenbrenner. The gentlewoman yields back the balance
of her time. The Chair is about ready to make the most
controversial statement of the day. The committee stands
recessed until 8 a.m. tomorrow.
[Whereupon, at 8:58 p.m., the committee recessed, to
reconvene at 8:00 a.m. on Wednesday, December 9.]
IMPEACHMENT INQUIRY:
WILLIAM JEFFERSON CLINTON,
PRESIDENT OF THE UNITED STATES,
PRESENTATION ON BEHALF OF THE PRESIDENT
----------
WEDNESDAY, DECEMBER 9, 1998
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The committee met, pursuant to call, at 8:12 a.m., in room
2141, Rayburn House Office Building, Hon. Henry J. Hyde
[chairman of the committee] presiding.
Present: Representatives Henry J. Hyde, F. James
Sensenbrenner, Jr., Bill McCollum, George W. Gekas, Howard
Coble, Lamar S. Smith, Elton Gallegly, Charles T. Canady, Bob
Inglis, Bob Goodlatte, Stephen E. Buyer, Ed Bryant, Steve
Chabot, Bob Barr, William L. Jenkins, Asa Hutchinson, Edward A.
Pease, Christopher B. Cannon, James E. Rogan, Lindsey O.
Graham, Mary Bono, John Conyers, Jr., Barney Frank, Charles E.
Schumer, Howard L. Berman, Rick Boucher, Jerrold Nadler, Robert
C. Scott, Melvin L. Watt, Zoe Lofgren, Sheila Jackson Lee,
Maxine Waters, Martin T. Meehan, William D. Delahunt, Robert
Wexler, Steven R. Rothman, and Thomas M. Barrett.
Majority Staff Present: Thomas E. Mooney, Sr., general
counsel-chief of staff; Jon W. Dudas, deputy general counsel-
staff director; Diana L. Schacht, deputy staff director-chief
counsel; Daniel M. Freeman, parliamentarian-counsel; Joseph H.
Gibson, chief counsel; Rick Filkins, counsel; Sharee M.
Freeman, counsel; John F. Mautz, IV, counsel; William
Moschella, counsel; Stephen Pinkos, counsel; Sheila F. Klein,
executive assistant to general counsel-chief of staff; Annelie
Weber, executive assistant to deputy general counsel-staff
director; Samuel F. Stratman, press secretary; Rebecca S. Ward,
officer manager; James B. Farr, financial clerk; Elizabeth
Singleton, legislative correspondent; Sharon L. Hammersla,
computer systems coordinator; Michele Manon, administrative
assistant; Joseph McDonald, publications clerk; Shawn Friesen,
staff assistant/clerk; Robert Jones, staff assistant; Ann
Jemison, receptionist; Michael Connolly, communications
assistant; Michelle Morgan, press secretary; and Patricia
Katyoka, research assistant.
Subcommittee on Commercial and Administrative Law Staff
Present: Ray Smietanka, chief counsel; and Jim Harper, counsel.
Subcommittee on the Constitution Staff Present: John H.
Ladd, chief counsel; and Cathleen A. Cleaver, counsel.
Subcommittee on Courts and Intellectual Property Staff
Present: Mitch Glazier, chief counsel; Blaine S. Merritt,
counsel; Vince Garlock, counsel; and Debra K. Laman.
Subcommittee on Crime Staff Present: Paul J. McNulty,
director of communications-chief counsel; Glenn R. Schmitt,
counsel; Daniel J. Bryant, counsel; and Nicole R. Nason,
counsel.
Subcommittee on Immigration and Claims Staff Present:
George M. Fishman, chief counsel; Laura Ann Baxter, counsel;
and Jim Y. Wilon, counsel.
Majority Investigative Staff Present: David P. Schippers,
chief investigative counsel; Susan Bogart, investigative
counsel; Thomas M. Schippers, investigative counsel; Jeffrey
Pavletic, investigative counsel; Charles F. Marino, counsel;
John C. Kocoras, counsel; Diana L. Woznicki, investigator;
Peter J. Wacks, investigator; Albert F. Tracy, investigator;
Berle S. Littmann, investigator; Stephen P. Lynch, professional
staff member; Nancy Ruggero-Tracy, office manager/coordinator;
and Patrick O'Sullivan, staff assistant.
Minority Staff Present: Julian Epstein, minority chief
counsel-staff director; Perry Apelbaum, minority general
counsel; Samara T. Ryder counsel; Brian P. Woolfolk, counsel;
Henry Moniz, counsel; Robert Raben, minority counsel; Stephanie
Peters, counsel; David Lachmann, counsel; Anita Johnson,
executive assistant to minority chief counsel-staff director,
and Dawn Burton, minority clerk.
Minority Investigative Staff Present: Abbe D. Lowell,
minority chief investigative counsel; Lis W. Wiehl,
investigative counsel; Deborah L. Rhode, investigative counsel;
Kevin M. Simpson, investigative counsel; Stephen F. Reich,
investigative counsel; Sampak P. Garg, investigative counsel;
and Maria Reddick, minority clerk.
OPENING STATEMENT OF CHAIRMAN HYDE
Chairman Hyde. The committee will come to order. If the
panel would be kind enough to turn their nameplates around. You
know who you are, we would like to know who you are. Thank you
very much. Good morning.
The committee will come to order. Today we will hear from
the fourth panel of witnesses. Panel witnesses will each have
10 minutes to make a statement. After the testimony of the
witnesses, members will be allowed to ask questions for 5
minutes. I ask that the members please pay attention to their
time and be aware that their questions should be asked and
answered within their 5 minutes. The reason for that is it
takes over 3 hours to cover the members under the 5-minute
rule. To make this meaningful, we have to watch our time.
Immediately following this panel, the committee will
receive the testimony of White House Counsel Charles Ruff.
After his presentation, members will question Mr. Ruff under
the 5-minute rule. After the members have questioned Mr. Ruff,
the committee counsel may question him.
Thursday morning, tomorrow morning, we will have a
presentation by minority chief investigative counsel Abbe
Lowell at 9 a.m. and a presentation by chief investigative
counsel David Schippers at 1:00 p.m. Immediately following Mr.
Schippers, we will begin consideration of a resolution
containing articles of impeachment for our deliberation. We
will hear opening statements from all members Thursday evening.
Friday we will begin consideration and debate of articles
of impeachment. At this point my thinking is to provide a 10-
minute allocation for every member to make an opening--my
present thinking is to allow 10 minutes for each member to make
an opening statement. I think 10 minutes is adequate and in
balance.
I also know that you would like copies of any articles of
impeachment that we may have. Let me just suggest to you, they
are still works in progress. We think it improper, improvident,
to issue any documents until we have heard the testimony.
Changes are occurring as we speak. But as soon as we have a
document that we feel fairly is a working draft that we can
stand behind, we will get it to you.
Mr. Scott. Will the gentleman yield?
Chairman Hyde. I certainly will yield.
Mr. Scott. As you know, Mr. Conyers and I wrote a letter
asking for the specific articles to be available at least 48
hours before we had to take action on them. It would seem to me
that if we are going to consider the factual basis and go
through the record to determine what the facts are and to
propose amendments and to determine whether or not, with
specificity, they actually constitute impeachable offenses that
we would need some period of time, and 48 hours before we start
having to deal with them, I think, is a minimum amount of time.
Will we have 48 hours before we have----
Chairman Hyde. The actual amendment process would not begin
until Friday morning. We will try to get you something by early
afternoon today. But they are still being drafted and I am
unwilling to provide working papers and nothing more. We will
give you a workable draft, fairly solid in terms of the final
product, by early afternoon today. And you won't need the
amending process until Friday morning.
Ms. Jackson Lee. Will the gentleman yield?
Chairman Hyde. Yes.
Ms. Jackson Lee. I think you answered the question. If
there were a desire to amend or to add to or to distract from,
detract from this process of working together on these, it is
an open process?
Chairman Hyde. You mean, you want to help us draft articles
of impeachment?
Ms. Jackson Lee. In the spirit of bipartisanship, I want to
know if the opportunity is open.
Chairman Hyde. Indeed, the amendatory process will permit
you to draft them any way you would like and we will give them
full consideration.
Ms. Jackson Lee. Or undraft them?
Chairman Hyde. Oh, yes, undraft.
Ms. Jackson Lee. The final question, Mr. Chairman, is as
you well know, the votes will probably come very late in the
day or possibly Saturday. Would we have an opportunity for an
explanation of our votes before we vote?
Chairman Hyde. I originally thought 5-minute opening
statements and then 5 minutes at the end of the final vote, but
I am persuaded by one of your members that a 10-minute opening
statement is probably the procedure of choice. So we will all
have plenty of opportunity to talk, and a 10-minute opening
statement I hope will suffice. And then at the end we can vote
and, as the phrase goes, get this behind us.
Ms. Jackson Lee. Thank you, Mr. Chairman.
Mr. Frank. Mr. Chairman, I think you have done an adequate
amount of time. My guess is that by the end, the opportunity we
will have to explain ourselves will substantially outpace the
interest anyone has in hearing our explanation.
Chairman Hyde. I want to associate myself with the
sentiments of the gentleman from Massachusetts.
Mr. Sensenbrenner. Will the gentleman yield?
Chairman Hyde. Yes.
Mr. Sensenbrenner. Also in the spirit of bipartisanship,
can we get a commitment on the Democratic side that the
majority will have copies of amendments in advance so that we
can prepare arguments and also any resolution of censure that
the Democrats may offer?
Mr. Frank. Mr. Chairman.
Chairman Hyde. Just a second. First of all, they have to
have the documents so they can know how to amend it.
Mr. Sensenbrenner. I am aware of that.
Chairman Hyde. So that would come first. Then I am sure
they would give us their proposed amendments in adequate time
for us to study them.
The gentleman from Massachusetts.
Mr. Frank. Two things. First, I think obviously there is a
major resolution that could be done, but I would say, while it
may be possible to do some of the amendments, as the gentleman
from Wisconsin knows, because he is an able legislator,
sometimes you do decide during the process because of the ebb
and flow of the argument that you might want to offer an
amendment. So I think that is an undertaking I think you can
try, but I would never be able to commit----
Mr. Sensenbrenner. Will the gentleman yield?
Mr. Frank. Yes.
Mr. Sensenbrenner. How about a censure resolution? Can we
get a copy of that just like you are asking for a copy of our--
--
Mr. Frank. I will trade you a copy of it for a vote on it
on the floor.
Mr. Sensenbrenner. I think, if the gentleman will yield
further, I think, you know, we have been dealing in good faith
in saying that we would give you copies of the proposed
articles in advance. I would hope that the gentleman from
Massachusetts would seriously consider reciprocating with any
proposed censure resolution that the Democrats----
Mr. Frank. Let me say, first of all, I am speaking in the
absence of the Ranking Minority Member, but, yes, if there is a
censure resolution ready, I am sure people will----
Chairman Hyde. I have no doubt that we will have mutual
exchanges of documents. Mr. Rothman?
Mr. Rothman. Thank you, Mr. Chairman. I am concerned about
the response from Judge Starr to the questions raised----
Chairman Hyde. We have written him a letter.
Mr. Rothman. If I may just finish, Mr. Chairman.
Chairman Hyde. I am sorry. I was trying to anticipate your
question.
Mr. Rothman. I saw yesterday, it was distributed, a copy of
a letter under your signature and Mr. Conyers' signature,
asking Judge Starr to answer the questions that had been
previously forwarded by the Democratic minority and others. You
had indicated that you had hoped that he would have them by the
end of the week. I would certainly hope and I am--first of all,
I very, very sincerely appreciate the Chair's efforts in
getting these answers to these questions. I believe Judge Starr
indicated during his testimony that he would be happy to
provide them, then he wrote back and said, he was not sure if
he would, unless both parties agreed. And now that the Chair
and the ranking member have put it in writing, I am hopeful
that the Chair will be able to get from Judge Starr these
answers before we debate and before we vote.
Chairman Hyde. I understand they are not much help if we
have already had the debate and vote. We will attempt to move
that process along. I don't like to give deadlines to anybody,
but we will do our best.
Mr. Rothman. If I may just finish my--I just want to again
repeat my thanks to the Chair for taking that action.
Chairman Hyde. Well, I appreciate that very much. Thank
you. Mr. Meehan.
Mr. Meehan. The Independent Counsel can probably save time.
He doesn't have to prepare the answers. He can just leak them
to the press and we will read them.
Chairman Hyde. Very good. Very good.
Are you going to comment on what Mr. Meehan said? Otherwise
you are not recognized for that purpose.
Mr. Delahunt. Well, speaking of what Mr. Meehan said, I
would hope that the Chair would entertain to address the
concern of some members in terms of explanation for votes and
expand the time period for the filing of concurring or
dissenting opinions.
Chairman Hyde. Well, if what you are saying means you want
beyond the 10 minutes for the opening statements----
Mr. Delahunt. No, I am not talking about that. I am talking
after the committee concludes its business.
Chairman Hyde. You have 2 days to file minority views.
Mr. Delahunt. Right. I would hope, however, that the Chair
would entertain waiving that particular rule.
Chairman Hyde. We don't want to go into the Christmas week,
Bill, I don't think. We don't want to put you against the wall,
but we have to move ahead, really. Two days, I know you can
collect your thoughts in 2 days and express them well.
Mr. Delahunt. I need more time, Mr. Chairman.
Chairman Hyde. Consult with Mr. Meehan.
Mr. Delahunt. I will consult with Mr. Meehan.
Chairman Hyde. All right.
Mr. Scott. Mr. Chairman?
Chairman Hyde. Yes, Mr. Scott.
Mr. Scott. Are we going to have a business meeting sometime
before the, before--I have a motion pending. I guess based on
that explanation, it may not be relevant, but I would like the
opportunity to offer it whenever we can get around to it.
Chairman Hyde. All right. We do have some business to
attend to. We are waiting for the propitious time to do that.
At that point we will consider your motion, too.
Very well.
Mr. Scott. Thank you, Mr. Chairman.
Chairman Hyde. Would the witnesses please stand and take
the oath?
[Witnesses sworn.]
Chairman Hyde. Thank you. Let the record show the witnesses
answered the question in the affirmative. We have a
distinguished panel today, as we have had all week. Thomas P.
Sullivan is a senior partner at Jenner & Block and has
practiced with that firm for the past 44 years. He is a former
United States Attorney for the Northern District of Illinois.
Mr. Sullivan specializes in civil and criminal trial and
appellate litigation and he has served as an instructor at
Loyola University School of Law and for the National Institute
for Trial Advocacy.
Richard Davis is a partner with the New York law firm of
Weil, Gotschal & Manges. He clerked for United States District
Court Judge Jack B. Weinstein from 1969 to 1970. He also served
as an Assistant U.S. Attorney in the Southern District of New
York from 1970 through 1973 and was task force leader for the
Watergate Special Prosecution Force,1973-1975. From 1977 to
1981, he served as Assistant Secretary of the Treasury for Enforcement
and Operations.
Edward S. G. Dennis, Jr. is a partner in the litigation
section of the Philadelphia law firm of Morgan, Lewis &
Bockius. He joined the firm after 15 years with the Department
of Justice, during which he held the following positions:
Acting Deputy Attorney General, Assistant Attorney General for
the Criminal Division, and U.S. Attorney for the Eastern
District of Pennsylvania. He is co-chairman of the Corporate
Investigations and Criminal Defense Practice Group.
William F. Weld is a former 2-term Governor of
Massachusetts. A graduate of the Harvard Law School, Governor
Weld began his legal career as a counsel with the House
Committee on the Judiciary during the Watergate impeachment
inquiry. He then served as U.S. Attorney and as head of the
Criminal Division at Main Justice under President Reagan before
being elected Governor of Massachusetts in 1990.
Governor Weld is currently a partner in the Chicago law
firm of McDermott, Will & Emory and he is also the author of
the recently published comic political crime novel, Mackerel By
Moonlight.
I hope it is not a violation of any rule or regulation to
give a plug for the Governor's book.
Ronald Noble is Associate Professor of Law at NYU Law
School. He served as Under Secretary of the Treasury for
Enforcement, 1994-1996; as Deputy Assistant Attorney General
and Chief of Staff in the Criminal Division of the Department
of Justice, 1988-1990; and as Assistant United States Attorney
in the Eastern District of Pennsylvania, 1984-1988.
Before recognizing each of you in whatever order you choose
to go--although it is probably just as simple to start on my
left to the right--I would like to recognize the Ranking
Minority Member, John Conyers, for a statement, if he wishes to
make one.
Mr. Conyers. Could I delay my statement, Mr. Chairman?
Chairman Hyde. You surely could.
Mr. Conyers. Thank you.
TESTIMONY OF THOMAS P. SULLIVAN, ESQ., FORMER U.S. ATTORNEY,
NORTHERN DISTRICT OF ILLINOIS; RICHARD J. DAVIS, ESQ., WEIL,
GOTSCHAL & MANGES; EDWARD S.G. DENNIS, JR., ESQ., MORGAN, LEWIS
& BOCKIUS; HON. WILLIAM WELD, FORMER GOVERNOR OF MASSACHUSETTS;
AND RONALD NOBLE, ESQ., PROFESSOR OF LAW, NEW YORK UNIVERSITY
LAW SCHOOL
Chairman Hyde. Very well, Mr. Sullivan.
TESTIMONY OF THOMAS P. SULLIVAN
Mr. Sullivan. Members of the Judiciary Committee, I
appreciate the opportunity to appear before you today to
discuss the professional standards for obstruction of justice
and perjury. My qualifications to discuss this subject include
over 40 years of practice in Federal criminal cases, chiefly in
Chicago, but also in other cities. During most of that time I
have acted as defense counsel for persons accused of or under
investigation for criminal conduct. For 4 years, from 1977 to
1981, I served as the United States Attorney for the Northern
District of Illinois. Chairman Hyde and Mr. Schippers are known
to me from the practice in Chicago, and I believe they can
vouch for my qualifications.
Chairman Hyde. Extraordinarily high.
Mr. Sullivan. Thank you, sir.
During the past 35 years, I have taken an interest in but
no part in politics. While I am a registered Democrat, I
consider myself independent at the ballot box and I have often
voted for Republican candidates. I have acted for the
Republican Governor of Illinois, a Democratic Senator, and
Mayor Harold Washington. I have prosecuted as well as defended
Democrat and Republican officeholders. I appear today not as an
advocate or partisan for President Clinton or the Democrat
Party, but rather as a lawyer of rather long experience who may
be able to assist you in your deliberations on the serious and
weighty matters you now have before you.
The topic of my testimony is prosecutorial standards under
which cases involving alleged perjury and obstruction of
justice are evaluated by responsible Federal prosecutors.
In the Federal criminal justice system, indictments for
obstruction of justice and perjury are relatively rare. There
are several reasons. One is that charges of obstruction and
perjury are not substantive crimes, but rather have to do with
circumstances peripheral to underlying criminal conduct. The
facts giving rise to the obstruction or perjury arise during
the course of an investigation involving other matters, and
when prosecuted are usually tagged on as charges additional to
the underlying criminal conduct.
Second, charges of obstruction and perjury are difficult to
prove because the legislature and the courts have erected
certain safeguards for those accused of these ``ripple effect''
crimes, and these safeguards act as hurdles for prosecutors.
The law of 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. Both perjury and obstruction of justice are what are
known as specific intent crimes, putting a heavy burden on the
prosecutor to establish the defendant's state of mind.
Furthermore, because perjury and obstruction charges often
arise from private dealings with few observers, the courts have
required either two witnesses who testify directly to the facts
establishing the crime or, if only one witness testifies to the
facts constituting the alleged perjury, that there be
substantial corroborating proof to establish guilt.
Responsible prosecutors do not bring these charges lightly.
There is another cautionary note, and this I think is very
significant here. Federal prosecutors do not use the criminal
process in connection with civil litigation involving private
parties. The reasons are obvious. If theFederal prosecutors got
involved in charges and countercharges of perjury and obstruction of
justice in discovery or trial of civil cases, there would be little
time left for the kinds of important matters that are the major targets
of the Department of Justice criminal guidelines. Further, there are
well established remedies available to civil litigants who believe
perjury or obstruction has occurred. Therefore, it is rare that the
Federal criminal process is used with respect to allegations of perjury
or obstruction in civil matters.
The ultimate issue for a prosecutor deciding whether or not
to seek an indictment is whether he or she is convinced that
the evidence is sufficient to obtain a conviction. That is,
whether there is proof beyond a reasonable doubt that the
defendant committed the crime. This is far more than a probable
cause standard, which is the test by which grand jury
indictments are judged. Responsible prosecutors do not submit
cases to a grand jury for indictment based upon probable cause.
They do not ``run cases up the flagpole'' to see how the jury
will react. They do not use indictments for deterrence or as a
punishment.
Responsible prosecutors attempt to determine whether the
proof is sufficient to establish guilt beyond a reasonable
doubt. If the answer is yes and there are no reasons to
exercise discretion in favor of lenity, the case is submitted
to the grand jury for indictment which, where I come from and
everywhere else I know about, is routine and automatic. If the
answer is no, that is, even if the evidence establishes
probable cause but in the prosecutor's judgment will not result
in a conviction, the responsible prosecutor will decline the
case.
Some years ago, during the Bush Administration, I was asked
by an independent counsel to act as a Special Assistant to
bring an indictment against and try a former member of
President Reagan's Cabinet. Having looked at the evidence, I
declined to do so because I concluded that, when all the
evidence was considered, the case for conviction was doubtful,
and that there were innocent and reasonable explanations for
the allegedly wrongful conduct.
Having reviewed the evidence here, I have reached the same
conclusion. It is my opinion that the case set out in the Starr
report would not be prosecuted as a criminal case by a
responsible Federal prosecutor.
Before addressing the specific facts of several of the
charges, let me say that 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. This case would simply not be
given serious consideration for prosecution. It wouldn't get in
the door; it would be declined out of hand.
A threshold question is whether, if the President is not
above the law, as he should not be, is he to be treated as
below the law? Is he to be singled out for prosecution because
of his office in a case in which, were he a private citizen, no
prosecution would result? 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.
Having said that, I would like to address several of the
specific charges in the Starr report. The first has to do with
perjury in the President's deposition and before the grand jury
about whether or not he had a sexual affair, relationship or
relations with Ms. Lewinsky. The President denied that he did,
based on his understanding of the definition of the term
``sexual relations,'' adopted by the court in the Jones case.
That definition, which you have before you in the papers, is
difficult to parse, and one can argue either side, but it is
clear to me that the President's interpretation is a reasonable
one.
Chairman Hyde. Mr. Sullivan, I hate to interrupt, but your
time has expired. Do you think in another 3 minutes you could
wind up?
Mr. Sullivan. Yes.
Chairman Hyde. Very well.
Mr. Sullivan. I think I can.
Chairman Hyde. We will continue it for 3 minutes.
Mr. Sullivan. Thank you very much, Mr. Hyde.
It is clear to me that the President's interpretation is a
reasonable one, especially because the words which would seem
to describe directly oral sex were stricken from the definition
by the judge. In a perjury prosecution, the government must
prove beyond a reasonable doubt that the defendant knew when he
gave the testimony that he was telling a falsehood. The lie
must be knowing and deliberate. It is not perjury for a witness
to evade, obfuscate or answer nonresponsively. The evidence
simply does not support the conclusion that the President
knowingly committed perjury, and the case is so doubtful and
weak that a responsible prosecutor would not present it to the
grand jury.
Let me turn to the issue of obstruction through delivery of
gifts to Ms. Lewinsky by Ms. Currie. Some of the evidence on
this subject is not recounted in the Starr report, but a
responsible prosecutor will not ignore the proof consistent
with innocence or which shows that an essential element of the
case is absent. The evidence is that, when talking to the
President, Ms. Lewinsky brought up the subject of having Mrs.
Currie hold the gifts, and the President either failed to
respond, or said, ``I don't know'' or ``I'll think about it.''
According to Mrs. Currie, Ms. Lewinsky called Mrs. Currie and
asked Mrs. Currie to come to Ms. Lewinsky's home to take the
gifts, and Ms. Currie did so. Ms. Lewinsky testified that Mrs.
Currie placed the call to Ms. Lewinsky, but the central point
in this is that neither Mrs. Currie nor Ms. Lewinsky testified
that the President suggested to Ms. Lewinsky that she hide the
gifts or that the President told Mrs. Currie to get the gifts
from Ms. Lewinsky.
Under these circumstances, it is my view that a responsible
prosecutor would not charge the President with obstruction,
because there is no evidence sufficient to establish beyond a
reasonable doubt that the President was involved. Indeed, it
seems likely that Ms. Lewinsky was the sole moving force;
having broached the idea to the President, but having received
no response or encouragement, she called Mrs. Currie to take
the gifts, without the President's knowledge or encouragement.
That is not the stuff of which an obstruction case is made.
Because of time, I am going to skip over my third example
and go to my conclusion.
Chairman Hyde. Thank you.
Mr. Sullivan. Which was about influencing Mrs. Currie's
testimony.
Time does not permit me to go through all of the
allegations of misconduct in the Starr report. Suffice it to
say that, in my opinion, none of them is of the nature which a
responsible Federal prosecutor would present to a Federal grand
jury for indictment. I will be pleased to respond to your
questions.
Thank you very much, particularly for the extra time.
[The statement of Mr. Sullivan follows:]
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Chairman Hyde. Thank you, Mr. Sullivan.
This is a formal proceeding, and in this Chamber of
Congress, unlike in certain State legislatures, we never
introduce people in the family, but this is a special day and
we have someone in the audience that I think ought to be
introduced. With the permission of the gentleman from
Massachusetts, I would like to introduce Elsie Frank, Barney
Frank's mother.
Chairman Hyde. Thank you. Mr. Davis.
TESTIMONY OF RICHARD J. DAVIS
Mr. Davis. Thank you, Mr. Chairman, Mr. Conyers, members of
the committee.
Mr. Coble. Mr. Chairman, I am reluctant to do this, but in
the sense of fairness, do you think that--Mr. Sullivan was
afforded an additional 3 minutes--that we should make that
offer to the other members of the panel, if it comes to that?
Chairman Hyde. I would rather face that critical decision--
--
Mr. Coble. Very well.
Chairman Hyde [continuing]. On a piecemeal basis.
Mr. Coble. For the remaining four, at least, I tried.
Chairman Hyde. Mr. Davis.
Mr. Davis. Thank you. I will try and summarize my longer
written statement, which the committee has.
There can be no doubt that the decision as to whether to
prosecute a particular individual is an extraordinarily serious
matter. Good prosecutors thus approach this decision with a
genuine seriousness, carefully analyzing the facts and the law
and setting aside personal feelings about the person under
investigation. In making a prosecution decision as recognized
by Justice Department policy, the initial question for any
prosecutor is, can the case be won at trial? Simply stated, no
prosecutor should bring a case if he or she does not believe
that based upon the facts and the law, it is more likely than
not that they will prevail at trial. Cases that are likely to
be lost cannot be brought simply to make a point, to express a
sense of moral outrage, however justified such a sense of
outrage might be. You have to truly believe you will win the
case.
I would respectfully suggest that this same principle
should guide the House of Representatives as it determines to,
in effect, make the decision as to whether to commence the
prosecution by impeaching the President. Indeed if anything,
the strength of the evidence should be greater to justify
impeachment than to file a criminal case.
In the context of perjury prosecutions, there are some
specific considerations which are present when deciding whether
such a case can be won. First, it is virtually unheard of to
bring a perjury prosecution based solely on the conflicting
testimony of two people. The inherent problems in bringing such
a case are compounded to the extent that any credibility issues
exist as to the government's sole witness.
Second, questions and answers are often imprecise.
Questions sometimes are vague or use too narrowly-defined terms
and interrogators frequently ask compound or inarticulate
questions and fail to follow up imprecise answers.
Witnesses often meander through an answer, wandering around
a question but never really answering it. In a perjury case,
where the precise language of a question and answer are so
relevant, this makes perjury prosecutions difficult because the
prosecutor must establish that the witness understood the
question, intended to give a false, not simply an evasive
answer, and in fact did so.
The problem of establishing such intentional falsity is
compounded in civil cases by the reality that lawyers routinely
counsel their clients to answer only the question asked, not to
volunteer and not to help out an inarticulate questioner.
Third, prosecutors often need to assess the veracity of an
``I don't recall'' answer. Like other answers, such a response
can be true or false, but it is a heavy burden to prove that a
witness truly remembered the fact at issue. The ability to do
so will often depend on the nature of that fact. Precise times
of meetings, names of people one has met, and details of
conversations and sequences of events, indeed, even if those
events are of fairly recent origin, are often difficult to
remember. Forgetting a dramatic event is, however, more
difficult to justify.
The ability to win at trial is not, however, the only
consideration guiding the decision whether to prosecute.Other
factors reflected in the Justice Department guidelines include Federal
law enforcement priorities, the nature and seriousness of the offense,
the impact of the offense on any victim, whether there has been
restitution, deterrence and the criminal history of the accused.
Before turning to the application of these principles to
the facts at hand, I should say that in my work at the
Watergate special prosecutor's office, I was involved in
applying these principles in extraordinarily high-profile
cases. While we successfully prosecuted a number of matters, we
also declined to proceed in a number of close cases. We did so
even in circumstances where we believed in our hearts that a
witness had deliberately lied under oath or committed some
other wrongful act, but simply concluded that we were not
sufficiently certain that we would prevail at trial.
I will now turn to the issue of whether, from the
perspective of a prosecutor, there exists a prosecutable case
for perjury in front of the grand jury. The answer to me is
clearly no. The President acknowledged to the grand jury the
existence of an improper intimate relationship with Monica
Lewinsky, but argued with the prosecutors questioning him that
his acknowledged conduct was not a sexual relationship as he
understood the definition of that term being used in the Jones
deposition. Engaging in such a debate, whether wise or unwise
politically, simply does not form the basis for a perjury
prosecution. Indeed in the end, the entire basis for a grand
jury perjury prosecution comes down to Monica Lewinsky's
assertion that there was a reciprocal nature to their
relationship and that the President touched her private parts
with the intent to arouse or gratify her and the President's
denial that he did so.
Putting aside whether this is the type of difference of
testimony which should justify an impeachment of a President, I
do not believe that a case involving this kind of conflict
between two witnesses would be brought by a prosecutor since it
would not be won at trial. A prosecutor would understand the
problem created by the fact that both individuals had an
incentive to lie: the President, to avoid acknowledging a false
statement at his civil deposition; and Ms. Lewinsky, to avoid
the demeaning nature of providing wholly unreciprocated sex.
Indeed, this incentive existed when Ms. Lewinsky described the
relationship to the confidants described in the Independent
Counsel's referral.
Equally as important, however, Mr. Starr has himself
questioned the veracity of his one witness, Ms. Lewinsky, by
questioning her testimony that his office suggested she tape-
record Ms. Currie, Mr. Jordan, and potentially the President.
And in any trial, the Independent Counsel would also be arguing
that other key points of Ms. Lewinsky's testimony are false,
including where she explicitly rejects the notion that she was
asked to lie and that assistance in her job search was an
inducement for her to do so.
It also is extraordinarily unlikely in ordinary
circumstances a prosecutor would bring a prosecution for
perjury in the President's civil deposition in the Jones case.
First, while one can always find isolated contrary examples,
under the prosecution principles discussed above, perjury
prosecutions involving civil cases are rare; and it would be
even more unusual to see such a prosecution where the case had
been dismissed on unrelated grounds and then settled,
particularly where the settlement occurred after the disclosure
of the purported false testimony.
Second, perjury charges on peripheral issues are also
uncommon. Perjury prosecutions are generally filed where a
false statement goes to the core of the matter under inquiry.
Indeed, in order to prevail in a perjury prosecution, the
prosecutor must establish not only that the testimony was
false, but that the purported false testimony was material.
Here, the Jones case was about whether then-Governor Clinton
sought unwanted sexual favors from a State employee in
Arkansas. Monica Lewinsky herself had nothing to do with the
actual facts at issue in that suit. This deposition was about
the Jones case. It was not part of a general investigation into
the Monica Lewinsky affair, and that is important on the
materiality issue. Given the lack of connection between these
two events under the applicable rules of evidence, a purely
consensual relationship with the President half a decade later
would, I believe, not have even been admissible at any ultimate
trial of the Jones case.
While the court allowed questioning in the civil deposition
about this matter, the judge did so under the very broad
standard used in civil discovery. Indeed, while not dealing
with the admissibility issue had there been no Independent
Counsel inquiry, after the controversy about the President's
relationship with Ms. Lewinsky arose, the court considered this
testimony sufficiently immaterial so as to preclude testimony
about it at the trial.
Finally, the ability to prove the intentional making of
false statements in the civil deposition is compounded by
inexact questions, evasive and inconsistent answers,
insufficient follow-up by the questioner, and reliance by the
examiner on a definition of sexual relations rather than asking
about specific acts.
But whatever the ability to meet the standard of proof on
this issue as to any particular question, it simply is not a
perjury case that would be brought. It involves difficult proof
issues as to, at best, peripheral issues where complete and
truthful testimony would be of doubtful admissibility in a
settled civil case which had already been dismissed. It simply
is not the stuff of criminal prosecution.
Turning to the issue of obstruction of justice involving
the Paula Jones case, a prosecutor analyzing the case would be
affected by many of the same weaknesses that are discussed
above. These weaknesses as well as additional problems with
such a case are discussed in my written statement, and I will
not comment on them orally in the interest of time.
Before concluding, I would like to make two closing
observations. I will be, with your permission, just a minute or
so.
In August of 1974, prior to the pardon, the Watergate
Special Prosecution Force commenced the extraordinarily
difficult process of determining whether to indict then former
President Nixon. In my 1974 memorandum analyzing the relevant
factors which would ultimately affect such a decision, and
proceeding in that memorandum on the belief not present here
that adequate evidence clearly existed to support the bringing
of such criminal charges, I articulated two primary and
competing considerations which I believed it appropriate for us
then as prosecutors to consider. The first factor was to avoid
a sense of a double standard by declining to prosecute a
plainly guilty person because he had been President. The second
was that a prosecutor should not proceed with even provable
charges if they conclude that important and valid societal
benefits would be sacrificed by doing so.
In the Nixon case, as articulated in my memorandum, such a
benefit was the desirability of putting the turmoil of the past
2 years behind us so as to better be able to proceed with the
country's business. I believe today, 25 years later, that it is
still appropriate for those deciding whether to bring charges
to consider these factors.
Finally, prosecutors often feel a sense of frustration if
they cannot express their sense that a wrong has been committed
by bringing charges. But every wrong is not a crime, and
wrongful noncriminal conduct sometimes can be addressed without
the commencing of any proceeding. Apart from issues of censure,
we live in a democracy, and one sanction that can be imposed is
by the voters acting through the exercise of their right to
vote. President Clinton lied to the American people. If they
believed it appropriate, they were free to voice their
disapproval by voting against his party in 1998 and remain free
to do so in 2000, as occurred in 1974 when the Democrats
secured major gains.
The answer to every wrongful act is not the invocation of
punitive legal processes.
Chairman Hyde. Thank you, Mr. Davis.
[The statement of Mr. Davis follows:]
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Chairman Hyde. Mr. Dennis.
TESTIMONY OF EDWARD S.G. DENNIS, JR.
Mr. Dennis. Thank you, Mr. Chairman.
Mr. Chairman, Mr. Conyers, members of the House of
Representatives Committee on the Judiciary, I am opposed to the
impeachment of President Clinton. My opposition is grounded in
part on my belief that a criminal conviction would be extremely
difficult to obtain in a court of law. There is very weak proof
of the criminal intent of the President. The Lewinsky affair is
of questionable materiality to the proceedings in which it was
raised. I believe that a jury would be sympathetic to any
person charged with perjury for dancing around questions put to
them that demanded an admission of marital infidelity; that is,
unless the answers were essential to the resolution of a very
substantial claim.
On another level, I sense an impeachment under these
circumstances would prove extremely divisive for the country,
inflaming the passions of those who would see impeachment as an
attempt to thwart the election process for insubstantial
reasons.
Perjury and obstruction of justice are serious offenses.
They are felonies. However, in my experience, perjury or
obstruction of justice prosecutions of parties in private civil
litigation are rare. Rarer still are criminal investigations in
the course of civil litigation in anticipation of incipient
perjury or obstruction of justice. In such circumstances,
prosecutors are justifiably concerned about the appearance that
government is taking the side of one private party against
another.
The oath taken by witnesses demands full and truthful
testimony at depositions and in grand jury proceedings--excuse
me, demands truthful testimony at depositions and in grand jury
proceedings. Nonetheless, imprecise, ambiguous, evasive and
even misleading responses to questions don't support perjury
prosecutions, even though such responses may raise serious
questions about the credibility of a witness on a particular
subject.
Proof that a witness' testimony is untrue is not sufficient
alone to prove perjury, and proof that a witness is
intentionally evasive or nonresponsive is not sufficient to
prove perjury either.
Courts are rigorously literal in passing on questions of
ambiguity in the questions and the responses of witnesses under
oath, and generally give the accused the benefit of any doubt
of possible interpretations of the questions and the meaning of
the allegedly perjurious response. Perjury cases are very
difficult to win under the most favorable circumstances.
I believe the question of whether there were sexual
relations between the President and Ms. Lewinsky is collateral
to the harassment claim in the Jones case. The President has
confessed to an inappropriate relationship with Ms. Lewinsky.
The Jones case was dismissed and is now settled. These
circumstances simply would not warrant the bringing of a
criminal prosecution, and a criminal prosecution would most
likely fail. Certainly the exercise of sound prosecutorial
discretion would not dictate prosecuting such a case.
The consequences of the impeachment of the President of the
United States are far-reaching. These consequences are grave
and they impact the entire Nation. Impeachment in my view
should not serve as a punishment for a President who has
admittedly gone astray in his family life, as grave as that
might be in personal terms. Where there is serious doubt, as
there must be in this case, prudence demands that Congress
defer to the electoral mandate. Thank you, Mr. Chairman.
Chairman Hyde. Thank you Mr. Dennis.
[The statement of Mr. Dennis follows:]
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Chairman Hyde. Mr. Noble.
TESTIMONY OF RONALD NOBLE
Mr. Noble. I, too, will attempt to keep my remarks within
10 minutes, Mr. Chairman.
Mr. Chairman, Mr. Ranking Minority Member, and members of
the committee, before I begin my formal remarks, let me extend
my thanks to the following people who helped prepare me under
these rushed circumstances. My brother, James Noble, is here
with me today, a research assistant; Russell Moore, a friend of
mine in law school is here with me today; my students in my
evidence class, with whom I spent the last two weeks talking
about impeachment but not the impeachment of a President, the
impeachment of a witness. I have been trying to give them
hypotheticals with which or from which they could learn. I told
them I will be the best prop they will have today.
I am honored to appear before you today. I will discuss the
factors ordinarily considered by Federal prosecutors and
Federal agents in deciding whether to investigate, indict and
prosecute allegations of violations of Federal criminal law.
I submit that a Federal prosecutor ordinarily would not
prosecute a case against a private citizen based on the facts
set forth in the Starr referral. My experience which forms the
basis of my testimony is as follows: I have served as an
Assistant U.S. Attorney, a chief of staff and Deputy Assistant
Attorney General in the Justice Department's Criminal Division
during the Reagan and Bush administrations, and Under Secretary
of the Treasury for Enforcement in the Clinton administration,
and I am currently a professor at the New York University
School of Law where I teach, as I said, a course in evidence.
When investigating a possible violation of the law, every
Federal prosecutor must heed the guidelines of the Department
of Justice. DOJ guidelines recognize that a criminal
prosecution entails profound consequences for the accused and
the family of the accused, whether or not a conviction
ultimately results.
Career Federal prosecutors recognize that Federal law
enforcement resources and Federal judicial resources are not
sufficient to permit prosecution of every alleged offense over
which Federal jurisdiction exists.
Federal prosecutors are told to consider the nature and
seriousness of the offense as well as available taxpayer
resources. Often these resources are scarce and influence the
decision to proceed or not to proceed and the decision how to
proceed. Federal prosecutors may properly weigh such questions
as whether the violation is technical or relatively
inconsequential in nature and what the public attitude is
towards prosecution under the circumstances of the case. What
will happen to public confidence in the rule of law if no
prosecution is brought or if a prosecution results in an
acquittal? Even before the Clinton Lewinsky matter arose, DOJ
guidelines intimated that prosecutors should pause before
bringing a prosecution where the public may be indifferent or
even opposed to enforcement of a controlling statute, whether
on substantive grounds or because of a history of
nonenforcement or because the offense involves essentially a
minor matter of private concern and the victim is not
interested in having it pursued.
Yet, public sentiment against an otherwise worthy
prosecution should not dispel prosecutors from bringing charges
simply because a biased and prejudiced public is against
prosecution. For example, in a civil rights case, or a case
involving an extremely popular political figure, it might be
clear that the evidence of guilt, viewed objectively and by an
unbiased fact-finder, would be sufficient to obtain and sustain
a conviction, yet the prosecutor might reasonably doubt whether
the jury would convict. In such a case, despite his or her
negative assessment of the likelihood of a guilty verdict based
on factors extraneous to an objective view of the law and
facts, the prosecutor may properly conclude that it is
necessary and desirable to commence or recommend prosecution
and allow the criminal process to operate in accordance with
its principles.
During the civil rights era, many prosecutions were brought
against people for locally popular but no less heinous crimes
against blacks. However, prosecutors should not bring charges
on public sentiment in favor of prosecution when a decision to
prosecute cannot be supported on grounds deemed legitimate by
the prosecutor.
DOJ prosecutors are discouraged from pursuing criminal
prosecutions simply because probable cause exists, and a number
of the witnesses have already addressed this point. Why?
Because probable cause can be met in a given case, it does not
automatically warrant prosecution. Further investigation may be
warranted, and the prosecutor should still take into account
all relevant considerations in deciding upon his or her course
of action.
Prosecutors are admonished not to recommend in an
indictment charges that they cannot reasonably expect to prove
beyond a reasonable doubt by the legally sufficient evidence at
trial. It is one of the most important criteria that
prosecutors must consider.
Prosecution should never be brought where probable cause
does not exist, and both as a matter of fundamental fairness
and in the interest of the efficient administration of justice,
no prosecution should be initiated against any person unless
the government believes that the person will be found guilty by
an unbiased trier of fact.
Federal prosecutors and Federal agents, as a rule, ought to
stay out of the private sexual lives of consenting adults.
Neither Federal prosecutors nor Federal investigators consider
it a priority to investigate allegations of perjury in
connection with the lawful, extramarital, consensual, private
sexual conduct of citizens. In my view, this is agood thing.
From a proactive perspective, who among us would want the Federal
government to initiate sting operations against private citizens to see
if we lie about our extramarital affairs or the nature of our sexual
conduct? Imagine a rule that required all Federal job applicants to
answer the following question under oath: Because we are concerned
about our employees being blackmailed about unusual or inappropriate
sexual conduct, and because we want to know whether you would be at
risk, please name every person with whom you have had a sexual
relationship or with whom you have had sexual intercourse during your
life. It certainly would be relevant and certainly might lead to
blackmail.
Such a question would naturally lead to allegations of
perjured responses. Irrespective of constitutional challenges
from a public policy standpoint, most Americans would object to
Federal prosecutors and Federal agents investigating and
prosecuting those cases that came to our attention.
Could we trust our government to make fair, equitable and
restrained decisions about how much to investigate any one of
these allegations? The potential for abuse and violation of our
right to privacy would be great. Indeed, assigning Federal
agents to interview witnesses, install wiretaps and insert bugs
to learn about the private, legal sexual conduct of U.S.
citizens would concern us all. But aggressive prosecutors and
agents would do exactly that to make cases against those
citizens where prosecutions would garner publicity and thereby
act as a deterrent, and in my view the biggest target would be
politicians.
As a general matter, Federal prosecutors are not asked to
bring Federal criminal charges against individuals who have
allegedly perjured themselves in connection with civil
lawsuits. As a rule, Federal prosecutors on their own do not
seek to bring criminal charges against people who perjure
themselves in connection with civil depositions for the reasons
that have already been articulated.
In addition, this would open a floodgate of referrals.
Parties by definition are biased, and it would be difficult to
discount the potential bias. By their nature, lawsuits have
remedies built into the system. Lying litigants can be exposed
to such and lose their lawsuits. The judge overseeing the
lawsuit is in the best position to receive evidence about false
statements, deceitful conduct and even perjured testimony. She
can sanction violating litigants by initiating civil or
criminal contempt proceedings.
Notwithstanding the reasons generally, there are 10 good
reasons, taken in combination, which support the view that a
career Federal prosecutor asked to investigate allegations like
those in the Clinton-Lewinsky matter would not pursue Federal
criminal prosecution to the indictment or trial stage.
One, the alleged perjury occurred in a civil deposition and
concerned private, lawful sexual conduct between consenting
adults.
Two, the alleged perjured testimony was deemed inadmissible
by the trial judge.
Three, that evidence arguably was dismissed as immaterial
by the trial judge.
Four, in any event, the alleged perjured testimony was at
most marginally relevant.
Five, the alleged perjured testimony did not affect the
outcome of the case.
Six, the parties settled, and the Court dismissed the
underlying civil lawsuit.
Seven, the settlement of the suit prevented the appellate
court from ruling on the dismissal and on the materiality of
the alleged perjured testimony.
Eight, the theoretically harmed party knew of the alleged
perjury prior to settlement.
Nine, alleged, I say alleged, political enemies of the
defendant funded the plaintiff's suit.
Ten, a Federal government informant conspired with one of
the civil litigants to trap the alleged perjurer into perjuring
himself.
Given the above considerations, most Federal prosecutors
would not want to use taxpayer dollars, Federal agents and
sensitive Federal investigative resources to uncover the most
intimate and embarrassing details of the private sexual lives
of consenting adults when there is a risk of bias and when
there is a judge in a position to address the alleged criminal
conduct.
The judgment that a career prosecutor might make about an
ordinary person might be very well affected by the knowledge
that the alleged perjury was committed by the President. That
is to be conceded. Even the most experienced, fair-minded
prosecutor will find it difficult not to pursue allegations of
criminal misconduct against the President, a Senator, a
Governor, any Member of Congress.
The interests in targeting, threatening or in harming the
President especially can be explained in part by the power and
visibility of his office. Even a prosecutor with exceptional
judgment might be tempted by the challenge of bringing down a
President. A prosecutor with unchecked power, unlimited
resources and only one target might find the temptation even
stronger.
Mr. Chairman, I believe I can conclude in 2 minutes with
the permission of the Chairman.
Chairman Hyde. Two minutes?
Mr. Noble. In 2 minutes.
Chairman Hyde. Very well.
Mr. Noble. Thank you, Mr. Chairman.
It is difficult to think of a fail-safe structure that
could protect anyone from allegations of bias in the decision
to prosecute or not prosecute the President. Not the Attorney
General, the Independent Counsel, the Justice Department, the
FBI, the Secret Service, the Federal judiciary, the Congress,
the Bar, and the Academy can escape some person or act in their
background that could create a conflict or an appearance of a
conflict. No one for or against prosecution would be safe from
attack on the merits or from false personal attacks.
For this reason, a prosecutor or a committee assigned such
a case must strive to be objective, knowing that criticism of
bias will be unavoidable. In a prosecutorial context, a 13-to-
10 vote by the grand jury constitutes enough votes to proceed,
but reflects that there must be or might be a serious problem
with some aspect of the case. Similarly, a vote for impeachment
based on a party line vote or a near party line vote is a
signal that something is wrong or may be wrong with the case
and that the case may not be worth pursuing. This is
particularly true where the overwhelming majority of Americans
appear to be well-informed about the allegations and unbiased
as a group. Yet they do not want this President impeached.
While indictments and impeachment proceedings aredifferent,
they carry at least two similarities. One, most of us know it when we
see the clear cases for criminal conviction and for impeachment. Two,
public confidence in the rule of law and our system of government would
suffer if we regularly indicted cases or impeached Presidents only to
have juries or the Senate vote to acquit.
In closing, I believe that the Justice Department got it
right and Independent Counsel Donald Smaltz got it wrong.
Indictments and impeachments that result in acquittal ought to
be avoided where possible. No prosecutor would be permitted to
bring a prosecution where she believed that there was no chance
that an unbiased jury would convict. Almost no one in this
country believes that the U.S. Senate will convict the
President on any potential article of impeachment. Members of
Congress should consider the impact that a long and no doubt
sensationalized trial will have on the country, especially a
trial that will not result in a conviction.
In the end, I am confident that you will give the weighty
responsibility that you must discharge serious consideration. A
vote against impeachment need not be viewed as a vote against
punishment. As Professor Steve Saltzburg noted before you
earlier this week, Judge Susan Webber Wright retains
jurisdiction over the case wherein the allegedly perjured
testimony occurred. She can hold civil or criminal contempt
hearings. Of all the arbiters of justice in this matter, she is
perceived as being the least biased. She can punish the
President for false and misleading conduct even if it does not
rise to the level of perjury or obstruction of justice. Trust
her to mete out the appropriate punishment.
I thank you.
Chairman Hyde. Thank you, Mr. Noble.
[The statement of Mr. Noble follows:]
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Chairman Hyde. Governor Weld.
TESTIMONY OF HON. WILLIAM F. WELD, FORMER GOVERNOR OF
MASSACHUSETTS
Mr. Weld. Mr. Chairman, Mr. Ranking Member, members of the
committee, my name is William Weld, and I am sincerely honored
to appear before you this morning.
I am no Tom Sullivan, but I have knocked around the
criminal justice world a little bit. From 1986 to 1988, under
President Reagan, I was the Assistant Attorney General in
charge of the Criminal Division in Washington, which is
relevant because that's the policy or political appointment
charged with ensuring the uniformity of charging decisions,
decisions whether to seek an indictment around the country in
various districts.
Prior to that, for 5 years, I was the United States
Attorney in Massachusetts, and I became familiar in the course
of that 7 years with the handbook, the Principles of Federal
Prosecution, and with the United States Attorney's Manual and,
when I was in Washington, with the practices and procedures
that also have been developed over the years to try to ensure
uniformity in charging decisions.
It so happens that in 1974, for 9 months, I also worked for
this committee under Chairman Rodino on the impeachment inquiry
into President Nixon, and I worked on the constitutional and
legal unit there, which was charged with reading every
precedent in Britain, in Hinds, in Cannon, in reported cases in
the records of the 1787 debate on the Constitution having any
relevance at all to what high crimes and misdemeanors means in
the United States Constitution.
Like Mr. Sullivan, like many others, I do not consider
myself an advocate here before you. I do have a couple of
points of view that I would like to share with the members of
the committee, and you can take them for what they are worth.
Ordinarily, in a civil context, you don't qualify as an expert
on the basis of 9 months' experience, but for whatever they are
worth.
I do believe, Mr. Chairman, that under the Reagan
Administration, it was not the policy of the U.S. Justice
Department to seek indictments solely on the basis that a
prospective defendant had committed adultery or fornication,
which are not lawful, but it simply wasn't the policy to go
there. It was also not the policy to seek an indictment based
solely on evidence that a prospective defendant had falsely
denied committing unlawful adultery or fornication.
Let me say a little bit about perjury cases. I don't think
they are all that rare, and I have prosecuted a lot of them,
but I do think that what one or two of the witnesses said is
true. There is usually something else involved in a Federal
perjury prosecution. There is a pass-through aspect here. You
are really going to something else.
I once prosecuted a guy who stated that he was in Florida
on November 28th and 29th, 1981. You may say, that's kind of
stooping to pick up pins. Why would you prosecute him for that?
Well, that was the day the city of Lynn, Massachusetts, burned
down, and this guy was an arsonist, and three people made him
in the Porthole Pub in Lynn, Massachusetts that day, and we
found his fingerprints on a ticket to Florida the next day,
after the fire, so we thought it would be a good idea to bring
a perjury prosecution there to rattle the cage a little bit,
and we did.
And often we brought them where we were trying to penetrate
a wall of silence as in cases of public corruption or
narcotics, when you are trying to break through this omerta,
everyone has got to dummy up, phenomenon. But there is
something else that you are trying to get at there.
Until this year, the policy of the Department of Justice
was that in cases of false statements, they would not seek an
indictment solely on the basis of somebody denying that they
themselves had committed misconduct. This is called the
``exculpatory no'' doctrine, and it was adopted in a lot of
circuits. It was kicked out by the Supreme Court in a decision
by Justice Scalia early this year based on bad facts. You had a
ranking union official who had taken moneyfrom employers in
violation of an independent Federal statute, so that's the something
else that the prosecution was trying to get at. So a very unsympathetic
case for the Court applying the ``exculpatory no'' doctrine.
In my view, it would have been a handy idea to carve out an
exception to the abrogation of that doctrine for cases
involving personal misconduct as opposed to a violation of an
independent Federal statute such as was involved there.
Certainly, a responsible prosecutor could apply that filter in
the exercise of his or her discretion.
The last thing, let me just say, on the law of impeachment,
I am pretty well convinced that adultery, fornication, or even
a false denial, false, I am assuming perjury here, false denial
of adultery or fornication, they do not constitute high crimes
and misdemeanors within the meaning of the impeachment clause
of the U.S. Constitution. They are not offenses against the
system of government. They don't imperil the structure of our
government.
The remedy of impeachment is to remove the officeholder,
get the worm out of the apple. It is a prophylactic remedy. It
is not punitive. If any of you are thinking we have got to vote
yes on impeachment to tarnish the President, he is already
tarnished, and that's really not the purpose of the impeachment
mechanism. Nobody is going to forget this stuff. And this is a
man who has been elected President of the United States twice,
and thus entitled to this office, after allegations very
similar to those now before you.
I hate to open old wounds, but you remember back to 1992,
and the Gennifer Flowers matter, if there are two people in a
room and they both deny that something happened, then you can't
prove that it happened. Well, that's very similar to what we
are talking about here, and this officeholder was elected
President of the United States twice after all of those facts
were before the people.
So I come out thinking that the most appropriate result is
something other than removing this person from his office,
taking his office away from him.
There is a lot of talk about censure. I think personally
the dignity of Congress and the dignity of the country demands
something more than merely censure here. And I would suggest in
conclusion, Mr. Chairman, four things that you might want to
think about in addition to censure.
Number one, it is not unknown for grand juries
investigating corruption in a city or a county, for example, to
issue a written detailed report of their findings. That could
easily be done here. It would be entirely proper.
Number two, there could be a written acknowledgment of
wrongdoing on the part of the President, and for reasons which
will become evident in a moment I would not propose that there
be insistence on the use of the word ``lie'' or ``perjury''
there, but it is something that could be negotiated to reflect
the gravity of what he has done.
Number three, there could be an agreement to pay a fine.
This is something tangible, more tangible than censure, and it
involves the respondent as well as the moving party, the moving
party here being the House, and that would mark the moment.
That would mark the solemnity of the occasion. And the
agreement would remove any doubt about somebody going to court
and saying, there is no basis for this. It would be thrown out
on the basis of political question doctrine anyway, I think.
I am not here to say what the fine should be, but if memory
serves, Speaker Gingrich had to pay quite a large fine not so
long ago because people didn't like either the content or the
marketing of a college course that he taught.
The members might wish to consider providing that the fine
could not be paid out of the proceeds of a legal defense fund,
given all the background circumstances.
Finally, what I am proposing, the final element, would be
that the President would have to take his chances with respect
to the criminal justice process post his Presidency. I do not
agree with those in the media who say that any deal on censure
has to protect the President against criminal proceedings after
he leaves office. First of all, there doesn't have to be any
deal on censure. That's entirely within your power. The White
House has no leverage there. Second, the Constitution
explicitly says that even if a President or anybody is
impeached, convicted and removed from office, they remain
liable to trial and indictment. It is very explicit. It is
right in the Constitution.
If the objection is that the spectacle of a former
President being prosecuted would be tawdry and degrading, it
really could not be much more tawdry and degrading than what we
have already been subjected to through the constant daily
reports of the Lewinsky affair.
Lastly, I agree with everyone who has spoken before about
whether a perjury prosecution here really lies. I think there
is quite a low risk of that from the point of view of the
President.
So that's the suggestion. It is a political suggestion, but
this is, in part, a political process; about a five-part deal,
if you will, and I think the dignity of the House would be
upheld if something like that were to be approached, and
everybody could perhaps get on more easily with attending to
the public's business.
Thank you, Mr. Chairman.
Chairman Hyde. Thank you, Governor.
[The statement of Mr. Weld follows:]
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Chairman Hyde. Mr. Sensenbrenner.
Mr. Sensenbrenner. Thank you very much, Mr. Chairman.
As I am sure all members of the panel know, the last
impeachment took place 9 years ago in 1989 against Walter Nixon
of Mississippi, and in that impeachment the House of
Representatives, by a vote of 417 to nothing, declared that
making false statements to a grand jury were impeachable
offenses. The Senate apparently agreed with the House's
judgment because Judge Nixon was removed from office on a 91-
to-8 vote on both of those articles of impeachment.
I am wondering if members of the panel think that the House
made a mistake 9 years ago in unanimously declaring that making
false statements to a grand jury were impeachable offenses?
Mr. Davis. Well, one, I think you have to look at the
proof. First of all, I assume there was proof as to the perjury
that took place. I assume also that the perjury, as I recall,
went to a core issue in the matter in which the perjury took
place. So you had certain important factual differences.
I also think that there is an important difference when one
is considering the issue of a judge versus the President, since
a judge, as others have testified, sits for life subject to
good behavior, and so the standard is not precisely the same as
would be in removing a President who is elected by thepublic
and sits for only 4 years.
And finally, I think that in terms of perjury, I do think
that one has to look a little bit about what the underlying
events are, and I do think that since what we are talking about
is a private consensual relationship being at the core of it,
that that affects the impeachability. But the bottom line is,
as I said in my statement, I don't think there is really the
proof, particularly as to grand jury perjury.
Mr. Sensenbrenner. Well, just by way of background, the
events that led up to the Judge Nixon impeachment, which is
contrasted to the President Nixon impeachment--we have to be
very particular here--involved a private affair, a financial
affair, where Judge Nixon allegedly accepted an illegal
gratuity of a sweetheart deal in an oil and gas lease. He was
acquitted of that charge by the jury at a criminal trial.
So here we are seeing that the jury made a determination
that Judge Nixon did nothing wrong in terms of entering into
the oil and gas lease, but he was convicted by the jury of the
two counts of making false statements.
While there are some differences, there are also some
similarities in that a private--private misconduct was alleged
as a part of the grand jury investigation.
I am concerned with the answer to your question in that you
seem to be implying that the standard of truthfulness for the
President of the United States is less than for a Federal judge
someplace in the country, because the President is elected and
the judge is appointed and holds office for good behavior. Am I
wrong on that?
Mr. Davis. I am not really saying that. I am saying that
the standard for truthfulness is really the same. I am saying
that here I don't think there is the proof, particularly as to
the grand jury, that you can make the case of perjury; and,
second, what I am saying is the standard for impeachment, not
the standard for truthfulness, but there are differences in the
standard of impeachment for a judge as opposed to the
President, and I think there is a lot of scholarship on that.
Mr. Sensenbrenner. Well, yesterday many of the President's
defenders were troubled about the alleged false statements to
the grand jury, and at least one of the witnesses that the
White House brought up here, former Congressman Owens, flat out
said that the President lied before the grand jury.
That's what the House found in terms of Judge Nixon, and,
you know, I am concerned that if a judge lies to the grand
jury, we all agree that it is impeachable, and if the President
lies before the grand jury, then there is a huge debate about
whether or not that's impeachable.
Now, who is going to stand up for the truth here?
Mr. Davis. Well, respectfully, I don't think that the
evidence supports the perjury in the grand jury, as I
articulate in my statement.
Mr. Sensenbrenner. Thank you. I yield back my time.
Chairman Hyde. The gentleman from Michigan, Mr. Conyers.
Mr. Conyers. Gentlemen, I want to pay my highest
commendations to all of you here, because you have now put on
the record, once and for all, all of these pestering questions
that have been attempted to be dealt with for so many weeks and
months now. You should, Ron, feel proud to go back to your
evidence class. You can hold your head high. And I thank you
all.
Now, the important thing about this was that, unless I
missed something, none of you contradicted each other, nobody.
And it seems to me that this testimony of you five gentlemen
ought to be bound up and delivered, which I would elect to do.
I need Pat Buchanan to get a copy of this, Tim Russert, Cokie
Roberts, George Will, Sam Donaldson and Miss Buchanan, Pat's
sister, not because they object to all of this, but because
they are the ones that in the media continue, with many others,
of course, this nonsensical debate about obvious legal
questions that a first-year law student could dispose of.
So what you have done here is of signal importance, from my
point of view. This should be studied carefully by everybody
that makes public utterances about the questions of perjury and
obstruction and how and when materiality figures into the
prosecutorial role.
Now, this question has come up, I think I called it the
Scott question: Is there any case on record for a prosecution,
based on a case in which it was dismissed, it was an immaterial
statement, there was a settlement to boot? I mean, are we going
through everything? Has anybody ever heard of a case like this?
We need the citation right away if there is, because I will
stop making this assertion.
Mr. Sullivan. Mr. Conyers.
Mr. Conyers. Mr. Sullivan.
Mr. Sullivan. I can't guarantee you that there is no such
case, but I doubt it. The thrust of what I am saying is that
the Federal criminal process is simply not used to determine
truth or falsity in statements in civil litigation, and it is
also even more true when you take a situation, as you have
here, that the testimony is even peripheral to the civil case
involved.
The Federal criminal justice system is not designed or
intended to enforce a code of moral conduct. That's not what we
do, or what I used to do, and what the good Federal prosecutors
do. I'm not saying you can't find an errant one somewhere that
will bring charges, but so far as I know, it would be totally
unprecedented if such a case were brought.
Mr. Conyers. Thank you.
Mr. Davis, Mr. Noble, Governor, any other comments on this,
this matter?
Mr. Dennis. Well, I agree. I mean, I do not disagree with
any of the statements that have been made by my colleagues here
on the panel. I have not considered the suggestions that
Governor Weld had made with regard to possible political
disposition of the matter, but I think that it is fairly clear,
and that if a poll were taken of former U.S. attorneys from any
administration, you would probably find the overwhelming number
of them would agree with the assessment that this case is a
loser and just would not be sustained in court.
Chairman Hyde. The gentleman's time----
Mr. Conyers. Thank you, Mr. Chairman. I think that this is
one of the most important panels that we have had before us in
the course of these proceedings.
Chairman Hyde. Thank you, Mr. Conyers.
The gentleman from Florida, Mr. McCollum.
Mr. McCollum. Thank you very much, Mr. Chairman.
Mr. Sullivan, have you had an opportunity to review the
District of Columbia Circuit Court of Appeals decision
regarding the question of materiality in the issue before us,
you know, in the question of the Independent Counsel and
Lewinsky?
Mr. Sullivan. I have read about it in the Starr Report. I
don't think I read the opinion.
Mr. McCollum. Well, the decision just was unsealed and
available to us in the last week, and you may not be aware that
the District Court of Appeals opinion squarely addressed that
issue of materiality, and it found that her false sworn
statement would be material for the purposes of perjury law. In
other words, a false statement by the President in that case
would have been material. So I think we can put that
materiality question to rest that Mr. Conyers just raised.
I also want to make a comment to you, Governor Weld. You
said that I do not believe that adultery, fornication or false
denial of adultery or fornication constitutes high crimes and
misdemeanors within the meaning of the impeachment clause of
the Constitution of the United States.
I agree with you. But in this case we are not dealing
simply with false statements or fornication or adultery. We are
dealing with potentially perjury, obstruction of justice,
witness tampering, things of that nature, and this is where you
and I may differ, and I think it is significant.
Albeit a civil case, Mr. Sullivan, you and Mr. Davis and
several others on the panel pointed out how rare you think it
is for perjury cases to be brought in Federal court in civil
cases, and yet we just had Mary--Barbara Battalino, I should
say, last week as a witness, a very recent case in which a
perjury case was brought in a civil suit involving the Veterans
Administration psychiatrist, and on August 4, 1998, a former
employee of the United States Postal Service, Diane Parker, was
sentenced to 13 months in prison and 3 years of supervised
release for lying in a civil case regarding a sexual
relationship with a subordinate. And that, of course, was a
Federal case.
I have got citations for 29 of these cases, at least,
sitting right here. There are 115 people minimally, maybe more
than that by now, serving in Federal prison today for perjury;
as I say, most of those, or a great many of those, for civil
perjury. So maybe the policy a few years ago was different, but
certainly prosecutors are prosecuting in these sexual
harassment-type cases and the type of Battalino and Parker
cases that we are seeing more of today than maybe we did back
10 or 15 years ago.
I also want to address the question that, Mr. Sullivan, you
raised, and I think, Mr. Davis, you raised, in particular,
about perjury with regard to a single witness. Section 1623, as
you have pointed out rightfully, does allow prosecution with a
single witness, and I dare say that about 90 percent of the
cases brought today that have resulted in people going to
prison in the Federal system have been brought under that. I
have looked at it, and that's who those 115 people constitute.
Now, I will agree with you. I think that your analysis is
good, you need corroborative witnesses even though it may not
be required. But let me go through here what is in the grand
jury case with respect to the perjury charged, and it is the
same underlying main issue in the deposition.
You had a situation in which the President of the United
States says that he did not commit or have sexual relations
with Monica Lewinsky under the definition as given by the court
in the Jones case. That court included in its definition
explicitly the touching of breasts or genitalia. Now, the
President said, I didn't do that. He repeated it very carefully
in the grand jury testimony.
Monica Lewinsky said on nine occasions, in her sworn
testimony before the grand jury, the President touched her
breast, and on four occasions they had genital contact, and
that all of this was to arouse.
Now, the issue of corroboration, there are 10 corroborative
witnesses. Interestingly enough, strangely enough, Monica
Lewinsky talked contemporaneously with family members, friends
and relatives about these matters in great detail, and we have
10 of those whose testimony is before us, in sworn testimony.
Seven of the ten corroborate the explicit detail with regard to
this touching under the definition of sexual relations that
Monica Lewinsky describes.
Now, it seems to me that that kind of corroboration is
precisely the kind of corroboration that would, in fact,
engender a prosecution, would give confidence to a prosecutor
to take perjury cases forward, and would, indeed, give a high
probability of conviction if this were taken before a court in
any case--any court in this land. The jury would be hard-
pressed not to convict under those circumstances. So it strikes
me as very strange that we are dismissing this.
Nobody, nobody on this panel and nobody yesterday, has
mentioned the fact that these corroborating witnesses exist. It
seems to be something that the President's advocates simply
want to ignore. It is a bottom-line question in here, Mr.
Davis.
Mr. Davis. I think I did address that.
Mr. Sensenbrenner [presiding]. The gentleman's time has
expired.
The gentleman from Massachusetts.
Mr. Nadler. Mr. Chairman, Mr. Chairman, Mr. Chairman,
before the gentleman from Massachusetts, I request recognition
for a moment.
Mr. McCollum. Regular order.
Mr. Sensenbrenner. For what purpose does the gentleman from
New York seek recognition?
Mr. Nadler. Mr. Chairman, the question that Mr. McCollum
just asked the witness is perhaps the central question of this
case.
Mr. Frank. I will give him time to answer. I was just about
to do that.
Mr. Sensenbrenner. With yielding to continue on the debate,
that's going to mean that we are going to be here until
midnight. The Chair will enforce the clock and the rules that
were laid down by Mr. Hyde at the beginning of this hearing. If
further members down the list want to have questions answered
when the time has run out, they can decide to use their time to
do that.
The gentleman from Massachusetts is recognized.
Mr. Frank. Anybody want to answer that question?
Mr. Davis. Yes, I would like to answer that.
I think that there are reasons why that prosecution would
not win. One is, as I said in my statement, that both
witnesses, including Ms. Lewinsky, had an incentive to lie, and
she had an incentive to lie not only to the grand jury on this
issue, but to her confidants, because otherwise she would be
acknowledging an unreciprocated sexual relationship.
But just as important, if you are talking about one witness
that Mr. Starr or any prosecutor is going to put forward, Mr.
Starr and his prosecutors themselves are going to have to argue
in this case that Ms. Lewinsky's testimony on other issues is
not accurate. They are going to have to argue that. They are
going to be in a position where theyare going to have to say
she is telling the truth as to this, not telling the truth as to other
things.
Also, Ms. Lewinsky in her testimony at various times said
she had a similar definition of sexual relations. So I think
that if you look at this from the perspective of a trial lawyer
in terms of how this would play out, I think this would be
really an impossible case to sell.
Mr. Frank. Mr. Davis, you have convinced me. We will go on
to the next issue. I think that's absolutely right. All of
those corroborating witnesses corroborate only what Ms.
Lewinsky had told them. No one has yet alleged that there was a
kind of a Peeping Tom slot outside the Oval Office where they
would have made any observation that would have made them in
any way relevant to the trial.
We also ought to note, telling the truth was not the most
noticeable characteristic of this set of interrelationships.
But, I mean, I think the guy with the lamp in there, he would
still be outside looking for someone to talk to as he got
involved with all of them.
Ms. Lewinsky was herself threatened with prison, as was her
mother, and I know Mr. Starr's penchant for threatening people
with prison if they did not say bad things about the President
has some credibility relevance.
But I wanted to--just also want to talk about Judge Nixon.
I am reading from the majority, and the gentleman from
Wisconsin said he perjured himself only about--or he didn't say
only. He perjured himself about an oil and gas deal. But I am
reading from the majority's report, which the majority issued
earlier this year and staff kindly gave to me. On pages 9 and
10, Judge Nixon lied about whether he had discussed the case
with the State prosecutor and had influenced the State
prosecutor to essentially drop the case.
In other words, the underlying issue here was not simply a
private oil and gas deal, but a Federal judge intervening with
a State prosecutor to get him to drop the case, and that is why
I was particularly interested in Mr. Weld's presentation and
others.
One of the arguments we have had here is that looking at
the underlying issue in a perjury allegation is somehow to
traduce the law and to undercut it. And I would like to ask all
of you--because I think this becomes now a central issue in
this case--when you are deciding how to deal with allegations
of perjury--and I don't believe that anybody would be able to
prove grand jury perjury. I do think that with regard to the
deposition, it would be easier, and the President did,
unfortunately, in my judgment, when he said he couldn't
remember being alone, transgressed. But on the question about
whether or not you take into account the underlying issue, in
the case of Judge Nixon, the underlying issue was talking to a
State prosecutor and intervening to get his partner's son's
conviction lessened, I think very different.
This is the central case: As prosecutors, all of you, is it
wrong to take into account the underlying cause where there is
a perjury allegation? Mr. Weld has said that in his experience,
perjury is usually a way to get at a broader issue. So let me
start with Mr. Weld.
Mr. Weld. Well, I agree, Mr. Congressman. I think the
underlying conduct is important. I mean, I would agree in a way
on the law with Representative Sensenbrenner, Representative
McCollum. I do think that false statements to a grand jury can
easily be grounds for impeachment.
I think I had the Judge Nixon case for a while when I was
at Justice, and my recollection is that there was clouds of
corruption in the background of that.
Mr. Frank. And in the foreground.
Mr. Weld. And perhaps in the foreground of that case. So I
think looking at the underlying conduct, that's another way of
saying what Mr. Dennis, Mr. Noble, others have said, that there
is a test of substantiality, Mr. Davis said it as well, in
assessing the totality of circumstances and making a charging
decision whether to go forward in a perjury case. And it is
really more a substantiality than a materiality that I think
might be the rock you run up against.
Mr. Frank. Thank you, Mr. Weld.
Let me just say in closing, that is a point I wanted to
make, and I was particularly grateful to the former Governor of
my State for making it, as a man who understands the broader
democratic, with a small ``D,'' implications here. He made a
very important point when he acknowledged the President has
been tarnished. Bill Clinton is a man who clearly thinks a lot
about how he is going to be regarded, and the argument that
somehow he will be walking away unpunished if he is censured
and has had this and other proceedings, I think, is very
inaccurate. I appreciate Mr. Weld bringing that up.
Mr. Sensenbrenner. The gentleman's time has expired.
The gentleman from Pennsylvania, Mr. Gekas.
Mr. Gekas. I thank the Chair.
Mr. Sullivan, you have repeated today what we have heard in
different ways over the months of this controversy, that the
President is neither above the law nor below the law, implying,
I believe, on your part that if it were an ordinary citizen,
not the President of the United States, that this case would
have been dismissed out of hand, and therefore the same premise
should have been accorded to the President because he is not
below the standard or above the standard that you would apply
to an ordinary citizen.
I see such a big difference that it is hard for me to
articulate it. But suppose the ordinary citizen, in your set of
circumstances, had pleaded the Fifth Amendment, you would have
undoubtedly honored that, and then we may never have heard of
it all, that case, in the body politic. And I would submit that
the Fifth Amendment is pleaded regularly across the land, and
we never get results from that kind of case. But if the
President of the United States had pleaded the Fifth Amendment,
you would agree that there would have been headlines across the
world, and that there would have been a shaken seat of
government in Washington, D.C., or don't you think that would
have been as dramatic as I think it would have been?
Mr. Sullivan. If the President, instead of testifying in
the grand jury, had taken the Fifth Amendment, I am certain it
would result in a great deal of publicity, probably adverse. I
don't think that it changes the issue of whether he is above or
below the law.
Mr. Gekas. But my point is that you are asserting with me
that this high-profile case that would have been a result of
the President pleading the fifth amendment makes it a different
situation.
It is possible, I believe, that the Congress, that the
House, could begin impeachment proceedings if that alone had
happened, the pleading of the fifth amendment by the President,
as being a political problem, a political affront to the system
of government.
Mr. Sullivan. Do you think taking the Fifth Amendment is a
high crime or misdemeanor?
Mr. Gekas. No, no, no, no. I am saying that----
Mr. Sullivan. The Constitution gives everyone----
Mr. Gekas. No, no, no, no.
Mr. Sullivan [continuing]. The right to assert the Fifth
Amendment, and the jury is instructed that they are not to take
any inference from that.
Mr. Gekas. What I am saying to you, sir, is that in
pleading the fifth amendment, it becomes a high-profile case.
Mr. Sullivan. There is no doubt about that.
Mr. Gekas. And----
Mr. Sullivan. I am sorry if I interrupted you.
Mr. Gekas. If the President did so, you can't argue that
case. You already admitted it is a high-profile case.
Mr. Sullivan. Of course, but I don't think it is relevant
here.
Mr. Gekas. Well, I am asking questions concerning it.
Mr. Sullivan. Go ahead.
Mr. Gekas. The fact that it becomes a high-profile case
means that when the President of the United States takes some
kind of legal action like committing false--or stating
falsehoods under oath, that we cannot treat it as just another
case, but whether or not the President attacks the system of
government that is so important to us.
Governor Weld makes a great deal out of the fact that what
the President did, no matter how we couch it, is not an attack
on the system of government. Yet, we submit, many of us, that
when he undertakes to make false statements under oath, that he
is directly attacking two segments of our system of government:
One, the rights, the constitutional rights, of a fellow
American citizen who has instituted a case in which he, if he
did those falsehoods, was trying to destroy that individual's
right to pursue a case. That is an attack, some of us might
conclude, against our system of government. And, secondly, in
affronting the judicial system, the other third branch of
government, by directly giving false statements under oath,
could be considered, could it not, as an attack on the delicate
balance of separation of powers, his disdain for the judicial
system?
We have to take that into consideration, do we not,
Governor?
Mr. Weld. It could be so considered, Mr. Congressman. Those
arguments, while fair on their face, strike me as on the
technical side, but I understand what you are saying.
Mr. Gekas. I thank you. I have no further questions.
Mr. Sensenbrenner. Okay. The gentleman from New York, Mr.
Schumer.
Mr. Schumer. Thank you, Mr. Chairman.
First, I want to compliment this panel. I think it was an
extremely strong and erudite presentation from all five of you.
It was an excellent panel, and I appreciate your putting the
time and effort into it.
When I look at where we are headed here, I think there is
sort of three levels of argument. The level we addressed
yesterday was dispositive for me and for some of us, and that
is that even if you assume all of Mr. Starr's facts to be true,
and that the President did wrong, however one would define that
wrong, it does not rise to the level of high crimes and
misdemeanors and doesn't merit impeachment. I think that case
was made very well yesterday by the first panel.
The second level of the case would be both--the next two
levels relate to you folks, and that is if you assume the
opposite, that if Starr's facts are correct, if Mr. Starr's
facts are correct, then impeachment is warranted, there are two
parts to that. One are the abuse of power and obstruction of
justice charges, which seem to most, myself included, to be at
a higher level, and the next go to the perjury charges. So let
me ask you about each of those.
First, on the abuse of power charge, which even many on
this committee feel went too far, do any of you think there is
any merit to that charge being filed, whether it be--well, you
can't even make the case to a citizen because it relates to the
President being President. Do any of you feel that charge has
any merit whatsoever?
Okay. Let the record show that nobody did, and I don't want
to spend much time on that.
On the obstruction of justice, there seem to be three
specific areas that at least Mr. Starr talked about. One was
the finding of--the attempt to find Ms. Lewinsky a job; the
second, the discussions between Ms. Lewinsky and the President
about what they would say if confronted with their
relationship; and the third about Ms. Currie's testimony and
so-called being coached about that testimony.
When we examined that, and when I questioned actually Mr.
Starr himself about those, and I asked him what greater
evidence did he have to the President making a determination
that he wished to influence the judicial process as opposed to
not having his wife, his friends, his staff, the Nation find
out about his relationship, Starr didn't point to any evidence.
It was simply surmise.
Would any of you care to comment on that group of charges?
Mr. Sullivan. Mr. Schumer, can I answer the one about Mrs.
Currie?
Mr. Schumer. Mr. Sullivan, yes.
Mr. Sullivan. Because that's the one that I didn't allude
to in my statement.
Mrs. Currie testified that the President came and asked her
some questions in a leading fashion, is this right, is this
right, is this right, after his deposition was taken in the
Jones case. And she testified that she did not feel pressured
to agree with him and that she believed his statements were
correct and agreed with him.
The quote is, ``He would say right, and I could have said
wrong.'' Now, that is not a case for obstruction of justice. It
is very common for lawyers, before the witness gets on the
stand, to say now, you are going to say this, you are going to
say this, you are going to say this. It doesn't make a
difference if you have got two participants to an event and you
try to nail it down.
Mr. Schumer. Do all of you agree with that, with the Currie
matter?
And on the other two, the Lewinsky parts of this----
Mr. Davis. I think to some degree----
Mr. Schumer. I mean, I don't even understand how they
could--how Starr could think that he would have a case, not
with the President of the United States, but with anybody here,
when it seems so natural and so obvious that there would be an
overriding desire not to have this public and to have
everybody--to have the two of them coordinate their stories,
that is, the President and Ms. Lewinsky, if there were not the
faintest scintilla of any legal proceedingscoming about. It
just strikes me as an overwhelming stretch.
Am I wrong to characterize it that way? You gentlemen all
have greater experience than I do.
Mr. Davis. I think you are right, and also the problem a
prosecutor would face would be that in these cases there is a
relationship between these people unrelated to the existence of
the Paula Jones case.
Mr. Schumer. Correct.
Mr. Davis. Not just the----
Mr. Schumer. Mr. Weld, do you agree with that?
Mr. Sensenbrenner. The gentleman's time has expired. I am
sorry, Mr. Schumer, your time has expired.
Mr. Schumer. Can I just ask for a yes or no answer on that?
Mr. Sensenbrenner. Can you answer that yes or no, Governor?
Mr. Weld. I think it is a little thin, Mr. Congressman.
Mr. Schumer. Thank you.
Mr. Sensenbrenner. The gentleman from North Carolina, Mr.
Coble.
Mr. Coble. Thank you, Mr. Chairman.
Good to have you all with us.
Governor Weld, I have a handful of friends who reside in
your State, and Democrats and Republicans alike, without
exception, speak very favorably of you.
Mr. Weld. Well, I have friends in your State, too, Mr.
Congressman.
Mr. Coble. Do they speak favorably of me, Governor?
Governor, last fall you appeared on the Today Show and
alluded to the possibility of resignation of the President. I
am quoting in part here. You said, my sort of rule of thumb
here, I think it comes down to this, if when the President goes
to a high school and colleges and universities, really his
strongest point, if he looks out at those kids, those students,
and their teachers and sees a sea of signs that says, liar,
liar, pants on fire, it is time to go.
Governor, at this late stage of the game, what is your view
on the possibility of resignation?
Mr. Weld. Well, in a way I say this with a heavy heart,
because I was troubled by the conduct at issue here, but I
think that events have overtaken that possibility. I remember
saying and thinking that the President would be well advised
when he looked in the mirror shaving every morning to say, are
people taking me seriously? Are they taking me seriously at
home? Are they taking me seriously abroad?
I was concerned that some international events that were
happening around then were happening because of a perception of
weakness at the core of the executive of the U.S. Government.
But, you know, what happens the week after I deliver myself of
these wise sentiments, the President goes to the United Nations
and gets a standing ovation. Then he goes into the budget
negotiation with members of the opposite party and by most
accounts gets, you know, better than half a loaf. Then he has
the Wye agreements on the Middle East. So it appears to me
people are taking him seriously.
Mr. Coble. Thank you, sir.
Mr. Davis, in a Washington Post interview, you, comparing
the impeachment process with Watergate, indicated that we are
at an uglier political time now.
Now much has been said about the late President Kennedy's
sexual indiscretions that were not publicized, but, however,
were commonly known, and many of those same people insist that
those indiscretions would be publicized today. And I am not
convinced, sir, that we are in an uglier political climate or a
political time. I think, rather, the members of the media are
probing more thoroughly and probing more consistently, and I
think probably that may be why more attention is focused today.
Let me ask you this, Mr. Davis: Would you--I started to say
wouldn't you, but I would be speaking for you. Would you
acknowledge that this committee's consideration of whether
grand jury perjury and civil deposition perjury and potential
witness tampering by the President--I am not saying that it
happened, but assuming that it did--that it merits impeachment
as a legitimate exercise for this committee? Would you
acknowledge that?
Mr. Davis. I think that it is appropriate for the committee
to be conducting a review. I think that there are issues in
terms of whether the committee can meet what I believe is the
committee's burden, if it is going to decide that there should
be impeachment, without really itself satisfying itself as to
the credibility of some of the core witnesses like Ms.
Lewinsky. But I think that once you received the referral, I
think obviously it was appropriate for you to consider that
referral and consider it seriously.
Mr. Coble. Governor Weld, neither am I Tom Sullivan, but,
Mr. Sullivan, this has been broached previously, but I want to
broach it as well, you indicated that it was your belief that
the average citizen probably would not be prosecuted under
similar circumstances that are now before us. And it was
referred to the--the two average citizens last week, one is a
physician, one a basketball coach, appeared to sit where you
are sitting now, and they, in fact, were prosecuted. I am
inclined to think, Mr. Sullivan, and I am not--by no means am I
taking you to task for this, but I think what you said may well
be subject to interpretation.
I think perhaps--and maybe it is because of the uglier time
or the fact that the media is more focused now. I think
probably that you would see more and more average citizens
prosecuted for perjury, but I will be glad to hear from you in
response to that.
Mr. Sullivan. Well, Mr. Coble, I am aware of the fact that
there are some few prosecutions for perjury arising out of
civil matters.
Mr. Coble. Mr. Sullivan, I hate to do it to you, but the
time is up.
Mr. Sensenbrenner. The time is up.
Mr. Coble. Thank you, Mr. Sullivan.
Mr. Sensenbrenner. The gentleman from California, Mr.
Berman.
Mr. Berman. Thank you, Mr. Chairman.
Actually, the question I am most curious about is whether,
Mr. Davis, if there had been a cooling off period, and if
President Ford hadn't issued the pardon, what do you think Mr.
Jaworski would have done?
Mr. Davis. The answer is, I don't know. Indeed, the reason
that in my memorandum I recommended a cooling off period and
felt that we should defer that decision was because I thought
the emotions at the time were too high, and one would have to
balance the factors very carefully, including, as I said in my
statement, whether the public interest in saying, we have had 2
years of this, we need to get on to something else, and
shouldn't we do that, and that a prosecution would drag things
out.
Mr. Berman. Well, I agree with the other comments. Ithink
this panel has presented some very compelling testimony on all of the
pitfalls in pursuing a perjury prosecution in this situation and raised
doubts about whether all the elements of perjury are present in this
case. We are not a courtroom. Some people keep trying to make that
analogy. I thought the professors yesterday were a political body. This
is a political process in many, many ways. The Founding Fathers would
have given this process to the Supreme Court if they had wanted a
strict legal analysis.
So perhaps your testimony on the question of whether there
would be a prosecution for perjury is less relevant to whether
there are high crimes and misdemeanors here than it is to the
question of whether one of the articles of impeachment should
actually assert the conclusion, the legal conclusion, that
perjury has been committed. And I would hope the framers of
these articles would look at this testimony carefully in making
that decision.
The point that does interest me, for those who want to make
an analogy to a legal proceeding, is this notion that even if I
think, as a prosecutor, that I have probable cause to indict,
and I believe that the accused is guilty and that if I know I
can't get a conviction from an unbiased jury, I don't bring the
case, develop that a little bit more. Is this a formalized
process that prosecutors use? Where did you get this from?
Mr. Sullivan. I can only speak from my experience as a
prosecutor, but I have had situations where, not my assistants,
but agents have said to me after discussion about the evidence,
and we concluded that we cannot get a conviction or it is
likely that we will lose, let's indict him anyway to show him.
My response to that is, get out of my office and never come
back.
Mr. Frank. But you might tell that person to become an
independent counsel.
Mr. Berman. Yes, Mr. Weld.
Mr. Weld. This is written into the Principles of Federal
Prosecution, which is the handbook which guides Federal
prosecutors, and what it says about the charging stage of the
criminal justice process is that the prosecutor has to believe
that there is sufficient admissible evidence, admissible
evidence, to obtain from a reasonable and unbiased jury a
conviction and to sustain it on appeal.
Mr. Berman. As I understand, though, there is another
provision in the Justice Department guidelines. If you were
bringing a case in the South involving civil rights, where
certain practices were prevalent, you wouldn't refuse to bring
that case alleging crimes against a black victim simply because
you had fears in the 1950s or '60s that an all-white jury might
never convict? That wouldn't stop you from bringing the case?
Mr. Weld. That is why it says ``reasonable and unbiased.''
Mr. Berman. So you would have to conclude that the United
States Senate was somehow not a reasoned and unbiased jury to
apply that logic in this situation?
Mr. Noble. May I respond? And let me quote you from the
Justice Department guidelines because they use precisely that
example and they say: ``For example, in a civil rights case or
a case involving an extremely popular political figure, it
might be clear that the evidence of guilt viewed objectively by
an unbiased fact-finder would be sufficient to obtain and
sustain a conviction if the prosecutor might reasonably doubt
whether the jury would convict. In such a case, despite his or
her negative assessment of the likelihood of a guilty verdict
based on the factors extraneous to an objective view of the law
and the facts, the prosecutor may properly conclude that it is
necessary and desirable to commence or recommend prosecution
and allow the criminal process to operate in accordance with
its principles.''
Chairman Hyde. The gentleman's time has expired. The
gentleman from Texas, Mr. Smith.
Mr. Smith. Thank you. I have an observation and then a
question for Governor Weld.
I have to say that I fundamentally disagree with the
premise of this panel, which is that the President should be
considered ``an ordinary citizen.'' And therefore I disagree
with their conclusions. To me, the President has a special
responsibility that goes beyond that of an ordinary citizen. He
holds the most powerful position in the world. He is the number
one law enforcement official of our country. He sets an example
for us all. Other people in other positions of authority, such
as a business executive or a professional educator or a
military officer, if they had acted as the President is alleged
to have acted, their careers would be over, and yet they don't
hold near the position of authority that the President does.
Let me read a statement from the rules under which
President Nixon was tried for impeachment. It says, ``The
office of President is such that it calls for a higher level of
conduct than the average citizen in the United States.''
Because of the President's special authority, I think it
makes the charges against him more serious; and therefore, in
my judgment at least, demands that any punishment be more
severe.
Let me go, Governor Weld, to my question to you, and on the
way there let me compliment you for offering a well-thought-out
alternative to impeachment; and that is not to say I agree with
it, it is just a well-thought-out alternative.
I want to read a couple of statements from students at
Roxbury Latin School, which I am sure you know is a school in
Boston. This is a column that appeared in the Boston Globe that
was written by their headmaster, and apparently he conducted a
couple of school forums, and this was for students aged 12 to
18, and suggested that they accept the President's statement of
regret. He said they would have none of it, and then he
generalized their reactions, which I want to read, and these
are quotes:
``You've got to be kidding. This wasn't some one-time lapse
in the face of sudden and unexpected temptation. The President
did this over and over, plotting meetings with Monica Lewinsky
in the White House, including one on Easter, just after he was
pictured coming out of church, Bible in hand. Clinton lied
passionately, looking us in the eye; then he played word games,
but he never told the truth until he was caught.''
``Cheating by students usually results in suspensions.
Repeat cheating brings expulsion. Clinton cheated repeatedly.
The only difference is that Clinton is a lot older than we are,
supposedly a lot wiser, and he holds the highest public office
there is.''
``Maybe we are naive, but people our age want to look up to
the President. What we see when we look at Clinton is someone
who can't control himself and lies to his fellow citizens.''
Governor Weld, aren't those students generally right in
their assessments?
Mr. Weld. I don't think that anybody is saying that this is
a day at the beach or a walk in the park. This is not a strong
outing by the President, and I find those statements as
depressing as you do. And as I was discussing with Mr. Coble a
moment ago, if that kind of attitude and reaction had persisted
in the citizenry at large--
Mr. Smith. I understand your answer, and I appreciate it. I
yield back the balance of my time.
Chairman Hyde. I thank the gentleman.
Mr. Boucher.
Mr. Boucher. Thank you very much, Mr. Chairman.
I would like to join with you and the other members who
have congratulated this panel on what I think is a very
excellent presentation this morning, and I would like to join
in the welcome of these distinguished witnesses.
Mr. Weld, I was very interested in your statement, with
which I wholly concur, that the intent of the impeachment power
was to protect the public interest and that the standard that
Congress should apply in determining whether acts of the
President constitute impeachable conduct is the public
interest, and your further statement that impeachment should
not be deemed to be a punishment for individual misconduct or
the punishment can occur in the court in the regular course.
You cited the constitutional provision that says that for any
crimes that are committed during the tenure of the presidency,
the President can be indicted and tried just as any other
American.
I gather, however, from the thrust of the testimony of this
panel of witnesses that perjury prosecutions in civil actions
are rarely undertaken. I gather also that perjury prosecutions
generally, while undertaken on occasion, are not the first
resort of prosecutors in most cases. But in this particular
instance, there is yet another avenue in which the President
potentially could be sanctioned for any misconduct that may
have occurred in his testimony under oath. And that is in the
U.S. district court in Arkansas which had jurisdiction of the
Jones case, it is--it has been suggested by a number of
witnesses before this committee that that judge retains
jurisdiction even though the case itself has now been formally
dismissed by the 8th Circuit Court of Appeals, and that if she
decides it is appropriate to do so, that she could impose
sanctions based on any misconduct that may have occurred in the
deposition that was taken in her court.
I would like the opinion of these witnesses with regard to
whether or not that is an accurate statement of the
jurisdictional posture of that case, does she have the
jurisdiction to do that? And based on your very extensive
experience with regard to criminal prosecutions, do you think
there is a probability or likelihood, or how would you rate the
chances that if she deems that misconduct occurred there, that
she might be led to impose sanctions? That might be the more
probable way in which some sanction occurs as opposed to a
criminal prosecution.
Mr. Sullivan. There is under the United States Supreme
Court decisions, inherent power in the District Court in civil
cases to impose sanctions for misconduct occurring before the
court. There is no question about that. That case was decided
several years ago.
Your second part was what would happen if she were to do
that. Not having brought my crystal ball with me, I can't tell
you. But she does have that power to pursue that, so far as I
know. I do not know whether the dismissal of the case
terminates that power. That is an issue I really haven't looked
at.
Mr. Boucher. Does anyone else have a comment on that issue?
Let me ask this additional question.
Mr. Noble, I was very interested in your saying that this
Congress should consider, in deciding whether or not to vote
articles of impeachment, the effect that the House voting
articles of impeachment and the Senate being put to trial would
have on the country, the further polarization that would occur,
the diversion of the President and the Congress from their real
responsibility which is attending to our national agenda, the
potential immobilization of the Supreme Court while the Chief
Justice presides, the lowering of the standard of impeachment
in future years. I am concerned that in fact some Members of
this Congress, not fully having considered those effects, may
have decided to apply a lower standard to determining whether
or not articles of impeachment should be approved and believe
perhaps the House should act as a grand jury and simply vote on
probable cause.
Do you agree that there ought to be a higher standard than
probable cause for us to consider this weighty matter?
Mr. Noble. Yes. This follows on Mr. Smith's comment. It is
clear that before the public, the President is not an ordinary
citizen. It is clear that before Congress, the President is not
an ordinary citizen. It is clear that any rational criminal
investigator or Federal agent investigating an allegation of
perjury by a President of the United States is not going to
treat it like an ordinary case. It is clear based on everything
that we have heard, that most of us believe, without looking at
specific evidence, that the President either did perjure
himself or didn't perjure
himself.
Chairman Hyde. The gentleman's time has expired.
Mr. Noble. I will wait.
Chairman Hyde. Thank you. The gentleman from California,
Mr. Gallegly.
Mr. Gallegly. Thank you, Mr. Chairman. Thank you for being
here this morning, gentlemen.
Mr. Sullivan, do you believe that the knowing and willful
misleading of a judge or Federal grand jury represents an
effort to thwart the judicial system from discovering the
truth?
Mr. Sullivan. It sounds like what you said is correct, if I
understand it.
Mr. Gallegly. The evidence indicates that the President and
Ms. Lewinsky had three conversations about her testifying in
the Jones case within 1 month before his deposition. When the
President was asked, ``Have you ever talked to Ms. Lewinsky
about the possibility that she might be asked to testify in
this lawsuit,'' he answered, ``I'm not sure.''
Governor Weld, you know the President pretty well, do you
think it's reasonable to believe that the President completely
forgot about these three conversations?
Mr. Weld. I really don't know, Mr. Congressman.
Mr. Gallegly. Thank you, Governor.
When the President was asked, ``At any time were you
andMonica Lewinsky together alone in the Oval Office,'' he answered,
``I don't recall.'' The evidence indicates that he was, in fact, alone
with Ms. Lewinsky on many occasions, including the time that he
exchanged gifts less than 20 days before the deposition.
Mr. Sullivan, for this not to be perjury, the President
must have genuinely forgot his numerous encounters with Ms.
Lewinsky, for it not to be perjury, is that correct?
Mr. Sullivan. Evidence in a perjury case requires proof
beyond a reasonable doubt that the defendant not only made a
false statement, but knew it was false at the time it was made;
that is correct.
Mr. Gallegly. And the test would be that he genuinely
forgot in order for that not to be perjury?
Mr. Sullivan. That is my understanding.
Mr. Gallegly. Thank you very much, Mr. Sullivan. The
President's action of being less than truthful has caused and
continues to cause serious problems. I am concerned that his
lying affects the ability of the American people to trust the
highest elected official in the land. One of my constituents
called me yesterday, a constituent by the name of Les Savage. I
have never met this gentleman before, but his question was very
sincere: How do we know when the President is telling the
truth, and how do leaders of other countries around the world
know when President Clinton is telling the truth?
President Clinton has had many occasions to come clean, and
to date I don't believe he has. The President's failure to
present any substantive evidence is consistent with his obvious
lack of concern about how serious the offense of lying under
oath truly is.
Mr. Chairman, I yield back.
Chairman Hyde. The gentleman from New York, Mr. Nadler.
Mr. Nadler. Thank you, Mr. Chairman. Before my 5 minutes
begin, I have a parliamentary inquiry.
Chairman Hyde. State your inquiry.
Mr. Nadler. Thank you. A few weeks ago when Mr. Starr was
here in answer to a question I asked, he referred to a court
case which was then under seal, and I was not able to
characterize his--I felt myself unable to characterize the
accuracy of his statement about that case lest I be accused of
violating the seal.
A few moments ago Mr. McCollum referred to the same court
case, which is no longer under seal but which is within the
possession of this committee in executive session. Would I be
violating the confidentiality rule if I were to state that Mr.
McCollum misquoted and misstated what the court found and that
the court did not conclude that the President's testimony about
Lewinsky was material to the Jones litigation, but rather found
that the truthfulness of Monica Lewinsky's affidavit was
material enough to her motion to quash her subpoena in that
case to justify the OIC's issuance of a grand jury subpoena to
her lawyer, and that this is a distinct issue from whether the
Jones deposition was material to that case? And if I were not
permitted to state that, why is Mr. McCollum permitted to quote
this case?
Chairman Hyde. You will be provided with a copy of the
opinion.
Mr. Nadler. Am I permitted to state this?
Chairman Hyde. I am told that you have mischaracterized Mr.
McCollum.
Mr. Nadler. Since that----
Chairman Hyde. You can say anything that you want, but I am
suggesting that you will get a copy of the opinion very
shortly, and I am suggesting that you read it before you make
statements about it. But that is up to you.
All right, now your 5 minutes start.
Mr. Nadler. Thank you, Mr. Chairman.
Mr. Chairman, I should note that I have written to the
Attorney General, asking that Mr. Starr be disciplined for
breaking the confidentiality of that case when he
mischaracterized it 2 or 3 weeks ago.
Let me ask Mr. Davis, I think, starting off, you have
stated very carefully and clearly in your testimony that really
no prosecutor would prosecute a perjury case on the basis of
the evidence that we have before us from the Starr referral;
that there are holes and there is no likelihood that a jury
would convict. You have said, for example, that you wouldn't
bring a prosecution of perjury based on two conflicting
statements of two witnesses, one of whom disagrees with the
other, that the alleged corroboration that Mr. Starr cites from
Monica Lewinsky's testimony is not corroboration at all because
that corroboration that she told 10 or 11 friends and relatives
of hers the same thing; that she had a motive to falsify or
embellish the statement; and in fact I think law school tells
us that such a statement would be inadmissible in a court as
hearsay and prior inconsistent statements in any event.
First of all, do I characterize your testimony correctly?
Mr. Davis. Generally, yes.
Mr. Nadler. Thank you. Secondly, some people on the other
side here have talked about the President being impeachable not
only for perjury but for a lesser crime; if perjury isn't a
high crime and misdemeanor and a great offense threatening the
safety of the Republic, maybe false statements under oath are.
Would the same or similar constraints prevent a successful
prosecution under these circumstances with this evidence of
false statements under oath as would prevent the successful
prosecution for perjury?
Mr. Davis. Yes. The false statement under oath section of
the U.S. Code, while it formally eliminates the so-called two
witness rule, the same prosecutorial judgment would come into
play in which you would have to assess can you win the case.
And for the reasons that I articulated before, it seems to me
that with the one-on-one testimony and with the fact that Mr.
Starr would have to disassociate himself and criticize Ms.
Lewinsky's testimony and say that it is not true in various
regards would make such a prosecution, in my view, doomed to
failure.
Mr. Nadler. For false statements under oath as well as for
perjury?
Mr. Davis. That is correct.
Mr. Nadler. And again to summarize, Ms. Lewinsky is a weak
witness because the special prosecutor would have to point out
that she lied under oath in some other place?
Mr. Davis. In the grand jury context, she is the witness as
to the core perjury.
Mr. Nadler. And it is further weakened by the fact that the
alleged corroboration witnesses would be inadmissible in any
court as hearsay?
Mr. Davis. They would probably be inadmissible. There may
be some arguments that they could come in at some point,
depending on cross-examination, but the point is whatever
motive she had to falsify in the grand jury, the same motive
would exist.
Mr. Nadler. So in other words if I want to falsify
orembellish my statement or have a fantasy or lie, the fact that I lied
to 12 people doesn't make it any less of a lie than if I lied to only
one person?
Mr. Davis. That is correct.
Mr. Noble. Can I talk about that for just a minute, because
it is very important? A good prosecutor is going to try this
case with the defense theory in mind, which is going to be can
I prove that the President did what she said that the President
did. She is going to be impeached for every prior inconsistent
statement she has, but the person is not going to cross-examine
her, and make it seem as though her testimony was recently
fabricated because that way she can bring in every prior
statement. All of us ought to worry about someone lying about
us to a thousand people and having that come in as admissible
evidence, making what we lied about the first time was true if
the motive to lie began in the very beginning. So for that
reason--
Mr. Nadler. And her motive did begin at the beginning?
Mr. Noble. And her motive did begin at the beginning.
Mr. Nadler. And that applies to false statements under oath
as well as to perjury?
Mr. Noble. That applies to false statements under oath as
well as perjury. I tried a false statement case. I convicted it
at the jury level. It was reversed on appeal because of a
literal truth defense, the same defense that would apply here.
Mr. Nadler. Mr. Smaltz, the special prosecutor in the Espy
case, said an indictment is as much a deterrent sometimes as a
conviction, so you might as--
Chairman Hyde. The gentleman's time has expired. The
gentleman from Florida, Mr. Canady.
Mr. Canady. I want to thank all of the members of this
panel for being here today. You have done a good job in
presenting what I believe are some of the best arguments in
defense of the President. I understand that is why you are
here, and we appreciate your perspective on this.
I have agreed with some of the points that have been made,
obviously I disagree with some of the others, but when we talk
about prosecutorial discretion and the question that a
prosecutor has to ask about whether he can have some
expectation of winning before a jury, I think that is right. I
think that is an appropriate way for a prosecutor to view the
case.
My judgment about the facts of this case differ from yours
based on what I have seen to date, because I think there is
compelling evidence here that points to the conclusion that the
President engaged in a pattern of lying under oath and other
misconduct. But on the standard for prosecution, I think you
have raised some good and valid points, but I want to quarrel a
little bit with the application of that in this context. The
argument has been made that in essence we in the House should,
in carrying out our responsibility, look to the Senate and make
a guess about how the proceedings would turn out in the Senate
to determine how we exercise our responsibility under the
Constitution. I would suggest to you I don't think that is a
proper way for us to proceed. I believe that we have an
independent responsibility under the Constitution to make a
judgment concerning the conduct of the President and whether he
should be impeached or not, and it would be in derogation of
our constitutional responsibility to attempt to count noses in
the Senate. But I will have to say that it is a very difficult
thing to count noses in the Senate anyway, and in a proceeding
like this it is hard to predict the outcome. I don't think that
this is a proper undertaking for us to be involved in.
I would also point out that the very structure of the
Constitution indicates that in the Constitution the framers
provided that the House could impeach with a simple majority.
They provided that conviction in the Senate would have to be by
a two-thirds majority. I would suggest to you that that
structural feature of the Constitution suggests that the
framers would have contemplated circumstances in which the
House might very well impeach but the Senate would not convict,
and I think that is obvious on the face of the documents.
Some of these arguments have to be brought to the text of
the Constitution and evaluated in that light.
On the issue of prosecutor discretion, let me pose a
scenario here which I think is very analogous to what we have
before us. Suppose the chief executive of a Fortune 500
corporation, a major national corporation in the United States,
was accused of sexual harassment and the corporation had been
sued, and in the course of the discovery in that case, the
chief executive of that major national corporation lied under
oath to impede that civil rights action. Now, I believe that
the fact that the chief executive of a major national
corporation was engaged in that conduct would be a relevant
consideration for the prosecutors who were evaluating the case
and whether to bring it, because of the impact of that conduct.
I do believe that bringing prosecutions have a deterrent
impact, and that is one of the considerations that has to be
factored into prosecutorial discretion. So I think if we step
back from this situation, and again we can argue about the
weight of the facts and I understand that you disagree with the
evaluation that some of us may have made about the weight of
the facts here, but if the President of the United States did
engage in obstruction of justice and committed multiple acts of
lying under oath, I think that we have to look at that conduct
in light of the consequences that it has and the message that
it sends, just as we would look at the conduct of the chief
executive of a major national corporation who was the defendant
in a civil rights case brought against that corporation. I
think that is something to look at.
There is really not time for you to respond, but do you
disagree that this sort of high-profile case has to be
evaluated in light of those circumstances?
Mr. Dennis. The analogy isn't quite there. If you were
looking at the President of a Fortune 500 corporation, you
would be talking about a suit that was brought by someone prior
to them taking that position and----
Mr. Canady. No, absolutely not. He could have been guilty
of that in the course of his conduct as chief executive.
Mr. Dennis. The issue of materiality has been discussed
here, and that is where the nub of it is. The Jones matter was
prior to the President becoming President of the United States.
We are not talking about issues of how the President deals with
subordinates in that respect. That makes a huge difference in
terms of how that person should be perceived insofar as these
kinds of charges.
Chairman Hyde. Thank you. Mr. Scott.
Mr. Scott. Mr. Sullivan, in your prepared testimony yousaid
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 alleged coverup of a sexual affair with a woman or
the follow-up testimony before the grand jury; it simply would not have
been given serious consideration for prosecution, it wouldn't get in
the door; it would be declined out of hand.
Are you aware that we are not straight as of now as to all
of the allegations, specific allegations of perjury; that even
yesterday the gentleman from Arkansas specified a different
statement that he believed to be perjurious? ABC News said that
the Republicans--on December 7 said that the Republicans might
shy away and come up with new charges than the grand jury.
Is it fair to have an accused respond to a perjury charge
without stating with specificity what the statement is that was
false?
Mr. Sullivan. No.
Mr. Scott. Thank you.
Mr. Noble, in fact-finding, is there a problem using
conflicting grand jury testimony, copies of FBI interview
sheets, and prior consistent statements in order to make a case
against an accused?
Mr. Noble. I believe there is a problem using only those
bases for making prosecutorial decisions, yes.
Mr. Scott. Why is conflicting grand jury testimony and
copies of FBI interview sheets inherently unreliable as
testimony?
Mr. Noble. Because our system of justice is based on
testing the testimony of someone under oath in front of the
finder of fact, subject to cross-examination, in a grand jury
that doesn't exist. For that reason, prosecutors at the very
least interview the principal witnesses themselves, try to test
that witness as much as they can in terms of deciding whether
or not he or she can withstand cross-examination; otherwise you
just have hearsay.
Mr. Scott. And because of that unreliability, you can't
make a case just using grand jury testimony to make a case
against someone?
Mr. Noble. I say this with all due respect. Only a foolish
or inexperienced prosecutor would attempt to indict and convict
someone based on hearsay grand jury testimony.
Mr. Scott. Thank you.
Mr. Davis, in your testimony, on page 13 of your prepared
testimony, right at the top, you didn't have time to go through
the specifics of why the obstruction of justice case could not
be made. Could you start at the top of page 13 where it says
``but there are''----
Mr. Davis. Yes.
``Another complicating factor in the obstruction of justice
case which makes this such a difficult case to bring is the
reality that the principal players in this drama, the
President, Ms. Lewinsky and Ms. Currie, had relationships and
motivations to act wholly unrelated to the Jones case. This
kind of thing would seriously complicate the ability of a
prosecutor to establish the intent to obstruct some official
proceeding, which is required to prevail in an obstruction of
justice case. Examples: The job search began before Ms.
Lewinsky was on the witness list, and frankly there is nothing
surprising that someone who had an illicit relationship with a
woman would, when it is over, be willing and want to help her
get a job in another city.''
``Ms. Currie had her own relationship with Ms. Lewinsky.''
``People who have an illicit relationship often understand
that they will lie about it without regard to the existence of
litigation, and here it appears that such an understanding was
discussed prior to Ms. Lewinsky being identified as a potential
witness.''
``The evidence, you know, about retrieval of the gifts is
contradictory, with Ms. Currie and the President offering
versions of the events which exculpate the President and which
differs from Ms. Lewinsky's testimony. Ms. Lewinsky herself
provided varying and sometimes exculpatory interpretations of
these very events in terms of her testimony.''
These are the kinds of things that make winning a case----
Mr. Scott. Can you read the next paragraph?
Mr. Davis. The reality at the time of the President's
conversation with Ms. Currie in the immediate aftermath of a
civil deposition: Ms. Currie was not a witness in any
proceeding, and given the status of the Jones case, there was
no reason to believe that she ever would be, and that the
President was likely focusing on the likely potential public
relations repercussions of his relationship.
Also in response to an earlier comment, it is not a
question of counting votes in the Senate. The issue is in
thinking through the standard of whether to proceed at the
House level, whether you think you have adequate evidence to
prevail. You are making that judgment.
Chairman Hyde. The gentleman's time has expired.
The Chair will declare a 10-minute recess and I mean it,
that is 10 minutes. Please come back. Thank you.
[Recess.]
Chairman Hyde. The committee will reconvene. I must say
that the panel looks refreshed. That's good.
Mr. Noble. On behalf of the panel, thank you, Mr. Chairman.
Chairman Hyde. All right, Mr. Inglis is next.
Mr. Inglis. Thank you, Mr. Chairman, and I want to thank
the panel for being here. Mr. Sullivan, if this case, the facts
of this case ever resulted in a prosecution of Bill Clinton
after leaving the White House, would any of what we have heard
this morning be admissible as a fact in a case involving a
prosecution of Bill Clinton, a private citizen? Any of your
testimony, would any of that be admitted as a fact in that
case?
Mr. Sullivan. No, absolutely not.
Mr. Inglis. Would anything that anyone else has said here
this morning be admitted as a fact in that case?
Mr. Sullivan. Absolutely not.
Mr. Inglis. I am keeping score, Mr. Chairman, as you know.
So, Mr. Chairman, this makes panel 4, the fourth panel, Mr.
Craig, no facts. And Mr. Craig said yesterday to us, in the
course of our presentation today--that was yesterday--and
tomorrow--that's today--we will address the factual,
underlined, factual and evidentiary issues directly.
The score now is zero to 4. Zero panels, zero witnesses
dealing with facts. Everybody that we have heard from in these
four panels has given conclusions, has given legal opinions.
Not a single person has presented a fact.
Mr. Sullivan, would a memorandum of law be considered a
fact in a trial?
Mr. Sullivan. Not unless--normally no, unless the issue
arose out of that; but no.
Mr. Inglis. If the memorandum of law was an issue, then it
would be a fact?
Mr. Sullivan. Correct.
Mr. Inglis. So this 184-page document which really I think
can only be described as a memorandum of law, possibly a brief,
contains no facts, no facts in the case before us today.
Mr. Sullivan. It is similar to the Starr report in that
regard. They are about equal. They do deal with the facts, but
there are no witnesses that you've heard to testify directly
about the facts; whereas in a trial, the people would have to
appear and give their testimony personally.
Mr. Inglis. Of course the difference, which you have to
concur with me, is that the Starr report is based on sworn
testimony gathered by an independent counsel, which is the same
facts that are discussed here; it is just that there you have a
direct quotation of those facts and a summary of those facts;
is that correct?
Mr. Sullivan. Yes. I think that the White House submission,
although I have not read all of it, I have read part of it, the
part I read did deal in great detail with a lot of the facts,
including a lot of the facts not highlighted in the Starr
report.
Mr. Inglis. But none of those are facts in the case. And
the point that I am making is that again Mr. Craig yesterday
made a very high bar for him to get over, and the thing that I
find wonderful about these proceedings is really it is a rare
opportunity to bring accountability to the White House spin
machine. What happens, I think, with the spin machine is that
the reporters get worn down, they get tired of trying to pursue
it and they just accept it. But here we have accountability.
Yesterday Mr. Craig said, in the course of the presentation we
will address the factual evidentiary issues directly.
The score is zero to 4. Zero of these panels, Mr. Craig,
have addressed facts. All of them are doing what the other
panels have done in times past. In other words--here again,
very helpful discussion and I appreciate the time of all of
these witnesses, but there is nothing new here. No new facts,
no new evidentiary issues which have been addressed directly.
And once again, though, we do have that the President had
personally instructed you not to obscure the simple moral
truth, but all this 184-page document is is more of the hair-
splitting, more of the legal technicalities that are so
maddening in what the President has to say to us. That is what
the 184 pages is.
Chairman Hyde. The gentleman's time has expired. The
gentleman from North Carolina, Mr. Watt.
Mr. Watt. Thank you, Mr. Chairman. We got a 445-page
referral from Independent Counsel Starr. Is there anything in
those 445 pages in those form that would be admitted in a
criminal case?
Mr. Sullivan. No.
Mr. Watt. So I suppose what Mr. Inglis has been talking
about is what we have been talking about, we keep waiting on
some facts to be developed here; and without that development,
the score remains zero to zero, I take it, with the presumption
of innocence being in favor of the President.
Mr. Noble, you had a response?
Mr. Noble. Yes, I would like to respond to the previous
Congressman's comments.
Mr. Watt. Before you go there----
Mr. Noble. And in direct response to your comment, and that
is, if it was a trial and the prosecution presented no
admissible evidence, zero, not guilty, there would be no
defense case.
Mr. Watt. That's right. Now that brings me to the point
that I wanted to make, because I got a call--everybody seems to
be getting calls from constituents--and I got mine last week
from a constituent who started out by saying that the President
was engaging in a legal attempt to distinguish what he had said
in some way, and I reminded the caller that this in fact is a
legal proceeding that we are involved in. Is there anybody on
this panel that disagrees with that?
Okay.
So the standards that are applicable in a legal proceeding,
Mr. Sullivan, you refer to that as--on the first page of your
testimony, you said, ``The topic of my testimony is
prosecutorial standards under which cases involving alleged
perjury and obstruction of justice are evaluated by responsible
Federal prosecutors.''
I take it that you are equating this panel to responsible
Federal prosecutors. And what you are saying, I guess, I take
it from your testimony this morning is, if a responsible
Federal prosecutor wouldn't prosecute this case, then we ought
not be moving it along to the Senate or to the House floor; is
that--is that the essence of where you come down?
Mr. Sullivan. I am not sure that I would presume on the
issue of what your responsibility is.
I am only saying that since your judgment here is high
crimes and misdemeanors, that is the test, in my opinion a
responsible Federal prosecutor would not bring a case based on
these charges in the Starr report. Now, you can draw whatever
conclusions you wish politically from that conclusion.
Mr. Watt. Mr. Noble, what would be your response to that,
and in the context of what some of my Republican colleagues on
the committee have suggested ought be the standard under which
we are evaluating this evidence?
Mr. Noble. I believe, and I am not--I was not elected by
anyone, not by prosecutors or citizens, to comment; but my best
advice is that there is a lesson to be learned from the Justice
Department. The parallels are quite striking. In the Justice
Department before bringing a criminal prosecution, the hurdle
is very low: probable cause. However, before getting a
conviction, you need proof beyond a reasonable doubt.
Here, in order for it to get voted out of this House,
you'll need a majority. However, for a conviction to occur, you
need two-thirds of the Senate. I believe you ought to look and
think about what a rational fair-minded Senator would do, how
he or she would vote. If you conclude that they would not
convict, think about the precedent you would have set if after
2, 3, 4, 5, 6, 7 impeachments and no convictions. You would not
restore public confidence. If anything, you would undermine
public confidence in the impeachment proceeding.
Chairman Hyde. The gentleman's time has expired. The
gentleman from Virginia, Mr. Goodlatte.
Mr. Goodlatte, would you yield to me for just a question?
Mr. Goodlatte. Sure.
Chairman Hyde. Thank you. Maybe Mr. Sullivan----
Mr. Watt. Mr. Chairman, on whose time are we operating?
Chairman Hyde. Pardon? I'm sorry. I ask staff to do that,
and sometimes they forget; they are so enchanted by my
question.
Mr. Watt. Thank you.
Chairman Hyde. The question I was going to ask: When
someone is granted immunity, as Ms. Lewinsky was, is it
customary--and of course we can get the answer by looking at
the immunity agreement--but is it customary that they are
obliged to tell the truth thereafter; and if they lie or tell a
falsehood about some substantial issue, that they forfeit their
immunity? Is that the custom?
Mr. Sullivan. There are two kinds of immunity, but the
normal immunity, and I have not seen her agreement, is what is
called ``use immunity,'' which means that any testimony that
she gives which is not truthful could be used against her in a
subsequent perjury prosecution.
If she gets transactional immunity, she is entirely free,
but that is not normally the case. It is usually use immunity.
However, in my experience when the Federal prosecutors give use
immunity to a witness, I don't like to say never happens,
because that is usually wrong, but I just don't know of a case
in which they have brought a prosecution----
Chairman Hyde. I think the thing to do is see what the
agreement held.
Mr. Sullivan. Right. Generally the agreement requires
truthful testimony, and you are subject to perjury prosecution
if you do not give truthful testimony.
Chairman Hyde. Thank you, Mr. Sullivan.
I thank you, Mr. Goodlatte.
Mr. Goodlatte. Governor Weld, when you were Governor of
Massachusetts, if you were convicted of a felony that was
serious, that included jail time, what would happen to you as
Governor of the State of Massachusetts?
Mr. Weld. I think you are out automatically, but I never
got close enough to the border to focus on that question.
Mr. Goodlatte. We hope not.
But the point is I think that is true not only in
Massachusetts but in virtually every State in the country if
the chief executive is convicted of a felony, that he or she is
automatically removed from office; and I do have the annotated
laws of Massachusetts here in front of me, and that is exactly
what they provide.
In addition, it is my understanding that you would not be
exempt from prosecution during the time that you served as
Governor. In other words, the prosecution could go forward, you
could be tried and convicted during that time, unlike the
prevailing opinion with regard to the President of the United
States?
Mr. Weld. Sure, I think that is true.
Mr. Goodlatte. If that were to occur, that would be a
serious disruption of your duties as Governor of Massachusetts,
to go through what conceivably could be a lengthy trial; but
nonetheless the laws of that State and virtually every other
State provide for that to be done to protect the public trust
and the interest of the public in not having someone with a
serious charge and subsequently a felony conviction serving in
the office of highest trust of that State; is that correct?
Mr. Weld. That's right. Actually one of the reasons that I
resigned in 1997 was because the Mexican ambassadorship was
taking up so much of my time, I didn't think that it was fair
to the people to continue drawing a full salary. So a lengthy
criminal proceeding would be problematic also.
Mr. Goodlatte. If the judgment against the Governor is
reversed at a later time, the Governor can be restored to that
position unless it is so expressly ordered by the terms of a
pardon. The President of the United States has the power to
pardon, and the prevailing opinion is that the President can
pardon himself. Are we all in agreement that the likelihood of
any kind of subsequent prosecution of this case, regardless of
your opinions of the merits, is not going to take place because
of the reality of the circumstances that either for practical
reasons after the President leaves office or because he could
bestow a pardon upon himself, that that would take place?
Mr. Weld. I cannot imagine the President pardoning himself.
When I said that I thought that the post-term risk was low,
that is because of my assessment of the merits of the
prosecution case.
Mr. Goodlatte. Nonetheless, he has that power and the
Constitution is very explicit about the one exception to the
use of that power, and that is in circumstances where the
President is impeached. He cannot then pardon himself and
restore himself to office as a result of an impeachment.
Mr. Noble, in my last question, would you be able to keep
your job as professor of law at New York University if these
charges were brought forward before you and made known to your
employer?
Mr. Sensenbrenner [presiding]. Mr. Noble, you don't have to
answer that because time is up.
Mr. Conyers. Could he answer it if he wanted to?
Mr. Sensenbrenner. I think so.
Mr. Noble. I can't even imagine being accused of anything--
--
Mr. Goodlatte. Professor Noble, I can't imagine you being
accused of anything as heinous as this either, but nonetheless
I think you would agree that you would not be able to hold that
position.
Mr. Sensenbrenner. The gentlelady from California, Ms.
Lofgren.
Ms. Lofgren. I believe the issue before the Congress is
whether the behavior of the Chief Executive is so severely
threatening to our constitutional system of government that it
requires us to undo the popular will of the people and remove
the executive and go through that trauma. That is the issue
that faces us. However, not every person is analyzing this in
the same way, the appropriate way. There are some who say that
lying about sex, although deplorable, is not enough to impeach,
but it is the crime of perjury that causes them to think that
there ought to be an impeachment. Unfortunately for the
President, there is no forum to address the issue, to defend
against allegations of crime. People say those are
technicalities, but that is what the criminal law is all about.
I have been thinking about my late professor, Graham
Douthwaite, my criminal law professor, who thought that in
order to convict of a crime you had to prove every element of a
crime, and that necessarily becomes technical. And in the case
of perjury you have to have the person under oath, it has to be
a statement about a material fact in the case, it has to be an
unambiguous question, it has to be a knowingly false answer, it
has to be actually false, and there must be competent evidence
for all of those elements to get a conviction.
For example, I recently--and I am not arguing this case--
read an article in the Legal Times and also in the American
Lawyer Today that points out that the President wasprobably not
actually under oath when he testified before the grand jury because the
oath was administered by an officer who did not have the capacity to
administer the oath; to wit, a prosecutor.
There is a case on that, U.S. v. Doshian, which requires
that in such a case, the case must be dismissed. If it was John
Smith in court, any court in America, that case of perjury
would have to be dismissed. It is a technicality, but that is
what the criminal law is about.
I went home this weekend and asked a friend who is a deputy
district attorney whether a conviction could be had in this
case, and the answer I got was ``no way.'' This could never
yield a conviction if it were John Smith. And so I am
wondering, Mr. Sullivan, could you help the American people,
most of whom have the benefit of not going to law school, to
understand and to appreciate why we have these technicalities
and why it could be possible, if it was John Smith in court, to
say something that was obviously misleading but that would not
actually yield a criminal conviction? How could that be, and
what is the point of that, Mr. Sullivan?
Mr. Sullivan. The law has raised very, very high barriers
against any citizen being convicted of a crime. The presumption
of innocence, we have it in the United States, it is not common
throughout the world, but we are really very privileged in many
ways, and this is one of them. In perjury cases, you must prove
that the person who made the statement made a knowingly false
statement.
Where I think the defect in this prosecution is, among
others--and I don't think it would be brought because it is
ancillary to a civil deposition--is to establish that the
President knew what he said was false. When he testified in his
grand jury testimony, he explained what his mental process was
in the Jones deposition. And he said that the two definitions
that would describe oral sex had been deleted by the trial
judge from the definition of sexual relations, and I understood
the definition to mean sleeping with someone. I don't want to
get too particular here.
Ms. Lofgren. Thank you.
Mr. Sullivan. That is where this case, in my opinion,
wouldn't go forward, even if you found an errant prosecutor who
would want to prosecute somebody for being a peripheral witness
in a civil case that had been settled. So that is my answer to
that.
Ms. Lofgren. Mr. Noble, you are an evidence professor. My
time is up. Perhaps someone else can ask you about hearsay. I
yield back.
Mr. Sensenbrenner. I thank the gentlewoman from California
for watching the red light.
The gentleman from Indiana, Mr. Buyer.
Mr. Buyer. I would like to respond to this frivolous
argument about the oath that we just now heard.
The President's deposition oath was administered in a civil
deposition by Judge Susan Webber Wright, according to the court
reporter who recorded the deposition.
Federal Rule of Civil Procedure 28 specifies three types of
persons before whom depositions may be taken within the United
States: before an officer authorized to administer oaths by the
laws of the United States, or of the place where the
examination is held----
Ms. Lofgren. Would the gentleman yield?
Mr. Buyer. No, I will not. Or before a person appointed by
the court to administer oaths and take testimony. There is no
dispute that Judge Wright has the authority to give the oath in
a civil deposition. Note, also in addition, 5 USC 2903
provides, ``An oath authorized or required under the laws of
the United States may be administered by the Vice President or
an individual authorized by local law to administer oaths in
that State, district or territory, or possession of the United
States where an oath is administered.''
Now before the grand jury, rule 6(c) of the Federal Rules
provides that the foreperson of the grand jury, ``shall have
the power to administer oaths and affirmations and shall sign
all indictments.'' This does not mean that the foreperson is
the only person who can administer oaths in the grand jury. In
the District of Columbia, a notary public can administer a
oath, an affirmation. In the President's grand jury testimony,
the oath was administered by the court reporter/notary public,
who is authorized to administer oaths by the Federal law in the
District of Columbia. The District of Columbia Code provides
that a notary public shall have the power to administer oaths
and affirmations. That is Chapter 8, D.C. Code 1-810.
Mr. Scott. Mr. Chairman, was he reading off a document?
Mr. Sensenbrenner. The time belongs to the gentleman from
Indiana, Mr. Buyer.
Mr. Scott. If he was reading off a document, we would like
to see what he was reading.
Mr. Sensenbrenner. The time belongs to the gentleman from
Indiana.
Mr. Buyer. Mr. Noble, with regard to prosecutorial
discretion, I was pleased to hear some of your testimony. I am
referring here to the Principles of Federal Prosecution. I have
a couple of questions that I would like to ask. Prosecutors end
up having to exercise discretion a lot of times, because
sometimes there is more crime that occurs and you have less
resources, and so you have to exercise good judgment; is that
correct?
Mr. Noble. That is correct.
Mr. Buyer. And there are many different factors that you
need to take into consideration, and that is also why you have
these guidelines in the Federal sector?
Mr. Noble. That is correct.
Mr. Buyer. One of the factors that you talked about today
is the strength of evidence?
Mr. Noble. That's right.
Mr. Buyer. Another factor is the gravity of the offense?
Mr. Noble. That's correct.
Mr. Buyer. Another is deterrence, the deterrent effect?
Mr. Noble. Correct.
Mr. Buyer. By prosecuting or not prosecuting?
Mr. Noble. That is correct.
Mr. Buyer. In this case when I refer to the guidelines,
under the section of the Nature and the Seriousness of the
Offense, I think it is somewhat informative. It says here,
``The public may be indifferent or even opposed to the
enforcement of a controlling statute, whether on substantive
grounds or because of the history of nonenforcement or because
the offense involves a minor matter of private concern.'' And
that is what some of you have tried to articulate here today.
Mr. Noble. I believe I quoted that in my prepared remarks.
Mr. Buyer. If you go down further it reads, ``While public
interest or lack thereof deserves the prosecutor's careful
attention, it should not be used to justify a decision to
prosecute or to take other action that cannot be supported on
other grounds. Public and professional responsibilities
sometimes require the choosing of a particularly unpopular
course.''
Do you agree with that?
Mr. Noble. Again, I have quoted most of what you have said,
yes.
Mr. Buyer. We have had other panels come in and testify,
and they like to cite public opinion polls, and they say, you
need to listen to public will here and exercise sound public
discretion here and go with the polls. But as in the
prosecution of cases, you don't have that luxury, do you?
Mr. Noble. I believe that what one is supposed to do is try
to make one's best judgment in terms of what an unbiased
decider of fact would decide, and if the public polls are
deemed to be based on unbiased opinions, then that should be
considered. But if they are deemed to be based on bias, then I
think they should be ignored.
Mr. Sensenbrenner. The gentleman's time has expired.
The gentlewoman from Texas, Ms. Jackson Lee.
Ms. Jackson Lee. I thank the Chairman very much. I think it
is important, as these days come to a close, to make all of
ourselves clear. Let me again clearly state that I find the
President's behavior unacceptable and morally wrong. But I take
issue with my colleague from South Carolina who continues to
restate the premise that there are no new facts.
Unfortunately, what I would offer to say is there has been
no new thinking in this room, because as I read the provision,
treason and bribery and other high crimes and misdemeanors, I
do not hear the claim treason and bribery and unfit morally. So
we are discussing in actuality apples and oranges for the
American people. That confusion causes the divide and the
inability for us to come together in a collaborative and
bipartisan manner.
I would offer to say that maybe the panel that is missing
here are spiritual leaders who might address the question of
the schoolhouse in Texas, to be able to talk about redemption
or the fact that, no, liars are not excused, and it is wrong;
to teach parents how to teach their children, church houses and
synagogues and parishes how to lead America morally. For the
impeachment process is not a spiritual process, it is a process
in fact that we must deal with, one, the framers' intent, and
as these gentlemen, who I applaud for your presence, your
intellect and your experience, have come to answer concerns as
put forward by the President's defense.
So I would like to get to what you are here for, to present
information that is relevant to the impeachment question. That
is not a spiritual question. It is not a moral question, though
we condemn morally the behavior of the President.
Now, my friends say there is no new evidence. If they would
turn to page 93 in the President's presentation, there is a
statement that says, there is no evidence that the President
obstructed justice in connection with gifts. But the point is,
the Independent Counsel Mr. Starr said, the President and Ms.
Lewinsky met and discussed what should be done with the gifts
subpoenaed from Ms. Lewinsky. Here, the answer; here is Ms.
Lewinsky's testimony not ever put forward: He really didn't, he
really didn't discuss it. And so you have it where there is an
absolute new fact of which my friends seem to reject.
Another point is in the Paula Jones deposition Mr. Bennett
objected to the definition. This is the sexual relations or
sexual affairs. He was on the record saying, I think this could
really lead to confusion. I think it is important that the
record is clear. I do not want my client answering questions,
not understanding exactly what these folks are talking about.
Another codefendant, Danny Ferguson's lawyer said, frankly,
I think it is a political trick definition, the definition, and
I have told you before how I feel about the political character
of this lawsuit.
Let me ask, Mr. Sullivan, Mr. Davis and Mr. Noble, as my
time eases on, one, Mr. Davis, give the American people, most
of whom have not been charged with a crime, never been inside
of a grand jury, as to what it is like, whether it ends there
with the probative value of that.
Mr. Sullivan, if you would, if you could remember the
question, so I could quickly get it answered, you mentioned the
fact that it is unlikely to prosecute for these issues of
perjury. Say that again for us quickly.
Mr. Noble, do we have the authority in this proceeding not
to go forward if we don't think we have a case?
Mr. Davis, inside the grand jury room.
Mr. Davis. The grand jury is really the instrument of the
prosecutor. While they may ask some of their own questions,
their agenda really is the agenda of the prosecutor. And what
it is not is a vehicle for getting an assessment of the
credibility of witnesses that appear there. There is no cross
examination. It is the prosecutor's presentation and really it
is not sufficient to determine what ultimately will happen in a
trial.
Ms. Jackson Lee. Mr. Sullivan.
Mr. Sullivan. The reason I think a perjury prosecution on
the sexual relations issue would fail is that the President has
clearly explained in detail and repeatedly in his grand jury
testimony what his understanding of the term meant when he gave
his testimony in the Jones case. And I do not think in light of
that obscure definition, and in light of what happened, that it
can be said that there is proof beyond a reasonable doubt that
he did not honestly have that interpretation.
Mr. Sensenbrenner. The gentlewoman's time has expired. The
gentleman from Tennessee, Mr. Bryant.
Mr. Bryant. I thank the Chair. I thank the distinguished
panel. I always want to remind those that might be watching
that this is the President's defense, and the witnesses who
have been testifying the last 2 days are all called by his
lawyers to testify in his favor.
I want to commend Mr. Craig for the outstanding strategy he
has presented today. He is truly a very fine lawyer. He has
brought a defense to us today that this President should not be
impeached because he almost committed perjury, obstructed
justice, tampered with witnesses, caused someone to file a
false affidavit. But because he didn't actually cross that line
exactly, then he should not be impeached. This extraordinarily
talented wordsmith, or the extraordinarily talented wordsmiths
and people who can make those extremely sharp distinctions for
the President, allow him to redefine such words as ``sexual
relationships,'' the word ``is,'' the word ``alone'' and defend
this cover-up story with such statements that--actually, in
this 184-page report, that the cover story for Monica could be
that she was delivering papers, and that is because she did
maybe two times of the numerous times that she went there. And
she said there was a lot of truth in there.
Well, there were also a lot of lies in there in addition to
that truth. But again, this is good wordsmanship. Again, I have
to commend again the counsel for the President for the defense
that has been crafted so carefully and say it is consistent
with the President's statements so far.
Summarizing, though, I would say that the defense of today
that he almost did these things is like saying, close only
counts in horseshoes. I don't think, though--let me say, I
think, like Mr. Canady and so many others in this committee,
the proof is there that he didn't almost commit those offenses,
that in fact he crossed that line. There is compelling evidence
of that.
But for those who don't agree, who might accept your view,
I want to remind the people of the other witnesses who have
said that you don't have to have a crime to impeach. I think
that is unanimous among all the experts who have testified. And
as the Congress, if we accept your view, I think we have to be
careful that you don't box us in to the Nixon standards or that
you don't box us in that there has to be a crime and that a
technical defense would escape impeachment.
I think what we have to look at--what is so important to me
is Mr. Craig's statement yesterday, the admission on the part
of the President that the President, under oath, the chief law
enforcement officer, the President who appointed all of us as
U.S. attorneys, who appoints the Attorney General, the
Commander-in-Chief evades the truth, gives incomplete answers
to the truth, gives misleading testimony, and, he says, it is
maddening, it is maddening.
I think it is sickening. I think it is sickening that the
President does this. And for us to allow this President to do
that and do damage in a civil rights lawsuit I think is
improper. And for Congress to turn the other way and look away.
I don't think we can do that.
Now, we all in the end have to vote our conscience, but we
should not continue to hear about Nixon is the standard, is the
threshold. That is not the case.
But in the end, I do want to thank you for your able
presentation, you have done again what you were supposed to do
as part of this presentation. I think you have done a good job
at it. But again, I think I would address my colleagues, let's
don't get boxed in to this idea that he almost did it, in your
view, and we can't impeach. I also again would give the
disclaimer that I do believe he committed these crimes, and I
think the evidence is there to show that. I thank you again.
Mr. Sensenbrenner. The gentleman's time has expired. The
gentlewoman from California, Ms. Waters.
Ms. Waters. Thank you very much. I would like to thank our
panelists for being here today. I am extremely impressed with
the way that they have used the very limited time, and I am
extremely frustrated. I would like to see each of you take one
aspect of these allegations and present a summation about why
they are not impeachable. But this process doesn't allow for
it, and you are not able to do what you have shown you could do
so well because you don't have the time.
You are sitting here with so-called legal minds and lawyers
talking about they want to impeach the President because they
are sickened by his actions. They feel his actions are
reprehensible. They don't--they feel they are unacceptable. We
keep trying to make the case they have a right to feel anything
they would like to feel, but just because they are sickened by
his actions does not mean they are impeachable. I don't know
how we are going to get that message through.
I think you did a fine job, Mr. Sullivan, of talking about
the state of mind of the President and why he could rationally
say that he did not have sexual relations based on the
definitions and his belief. He did not consummate the sexual
act that he thought was central to sexual relations. And simply
because he got on television and said, I did not have sexual
relations, somehow these would-be lawyers on this committee
think that he has done something that is impeachable.
Let's move on to the gifts, Mr. Davis.
Betty Currie did not say that she was instructed to go get
gifts and burn them up or dump them in the river. If she wanted
to obstruct justice, do you think she could not have found a
better hiding place than putting them under her bed? Would you
illuminate on that as obstruction of justice for us?
Mr. Davis. I think there would be both a better hiding
place, and in terms of obstruction of justice, I think there is
also the significant issue as to the lack of evidence as to the
President's real role in that whole process even when you look
at a lot of Ms. Lewinsky's testimony, Betty Currie's testimony
and the President's testimony.
Ms. Waters. Mr. Dennis, this business about bribery,
somehow there is an attempt to make the case that because there
were discussions about jobs, that Ms. Lewinsky was trying very
much to get a lot of help from anybody she could get it from to
get a job, that somehow there is some bribery involved here and
obstruction of justice because they would like to make the leap
that there was an exchange of some kind of information or
communication that said, if you give me this job, I will not;
or an offer, if I get you a job, will you not.
Will you help us with that?
Mr. Dennis. Two things I recall, one from President
Clinton's grand jury testimony which was not challenged, I
don't believe, that issues related to her employment were taken
up long before she became a witness in the case. It is also my
understanding, excuse me, that Ms. Lewinsky herself denied that
there was any attempt to use help with her employment in order
to get her to testify one way or the other. I would think that
that would basically close the whole issue.
Ms. Waters. Exculpatory information that was never
presented to us----
Mr. Dennis. It is right in the record. That is correct.
Ms. Waters [continuing]. In this so-called case.
In addition to that, there was some discussion about
conversations with the President and Ms. Currie about trying to
remember what was said or what took place. Is there anything in
that exchange that would cause us to move toward impeachment
because the President said, were we ever alone, do you
remember? Give us--would you illuminate on that somewhat, Mr.
Noble?
Mr. Noble. Again, it is a specific intent crime. The
question is what was President thinking when he said this. We
can look at his words and try and analyze his words. But Ms.
Currie says that she didn't believe he was trying to influence
her, and that if that she had said something different from
him, if she believed something different from him, she would
have felt free to say it. For that reason, Ibelieve you just
don't have the specific intent necessary to prove obstruction of
justice with regard to the comment that you just asked me.
Ms. Waters. Thank you very much.
Mr. Weld, someone offered that there were other people
serving time for perjury, and they gave these piddling little
numbers, despite we have the kind of population that we have in
the country. They did not give you the facts in the case of the
woman who came before us, Dr. Battalino I think is her name.
And I think it was not fair to use that and say, you see, she
was prosecuted; how can you not say the President should be
prosecuted. Do you know the facts of that case? If so, can you
illuminate on them?
Mr. Sensenbrenner. The gentlewoman's time has expired.
Governor, you got a quick answer to that one?
Mr. Weld. Saved by the bell, Mr. Chairman.
Mr. Sensenbrenner. The gentleman from Ohio, Mr. Chabot.
Mr. Chabot. Mr. Dennis, in your statement you said, and I
quote, I sense an impeachment would prove extremely divisive
for the country, inflaming the passions of those who would see
impeachment as an attempt to thwart the election process for
insubstantial reasons.
I can assure you that there are many citizens who feel just
as passionately that this President deserves to be impeached.
Would you acknowledge that that is true?
Mr. Dennis. I am sure that passions do run in both
directions, high in both directions.
Mr. Chabot. Thank you.
Mr. Davis, let me quote from your opening statement as
well. You said, and I quote, prosecutors often need to assess
the veracity of an ``I don't recall'' answer. The ability to do
so will often depend on the nature of the facts at issue.
Precise times of meetings, names of people one has met and
details of conversations and sequences of events, even if
fairly recent, are often difficult to remember.
Let me ask you this: In your experience, is it common for
people to forget things such as whether or not they had sex
with somebody or whether or not they were alone with someone?
Just yesterday we were presented with the President's 184-page
defense report and were told that the word ``alone'' is a vague
term unless a particular geographic space is identified.
Do you find that sort of legal hair-splitting defense
helpful? Don't you think that we ought to at least be able to
agree that alone means you are by yourself, not with anybody?
Mr. Davis. I think alone in essence means that you are by
yourself. But I think that while you don't forget that you had
sex with somebody, I think you have to go back and look at the
confusing nature of the answers. Basically what was going on,
there is no question the President was trying his best to avoid
and was playing word games in his deposition. He shouldn't have
been doing it, and he was doing it. The issue is what is the
legal consequences now, and that is what we are all struggling
with.
Mr. Chabot. Thank you.
I think the President should set a standard for all the
citizens in this country. I think we all ought to be able to
agree on what the word ``alone'' means.
Mr. Sullivan, in your opening statement in discussing how
much evidence a prosecutor should have before he brings a case
to a grand jury, you stated that they should not run cases up
the flagpole to see how a jury will react. Do you think it is
responsible for a President to take a poll to in a sense run
something up a flagpole to see whether he ought to tell the
truth or lie?
Mr. Sullivan. No.
Mr. Chabot. Thank you.
Mr. Noble, in your statement you said, Members of Congress
should consider the impact of a long and no doubt
sensationalized trial, what effect that will have on the
country. Should we also consider what the impact a President
committing perjury, obstructing justice, tampering with
witnesses and getting away with it might have on the country,
particularly when that President is the chief law enforcement
officer, and is sworn to uphold the laws in this country, and,
in fact, is sworn and took an oath himself that he would uphold
the laws?
Mr. Noble. I believe you ought to consider whether or not
you could prove those allegations that you have just made. From
my review of the evidence, I don't believe you could prove any
of the allegations that you just articulated in front of a
jury, and I think you ought to take that into account in
deciding whether or not you want to base your impeachment, as I
have read, on perjury. You can base your impeachment on
whatever you want, but it if is on perjury, I believe you would
not be able to sustain a conviction for perjury before a jury
in this country.
Mr. Chabot. Thank you very much.
In the final time that I have here, I think, as Mr. Bryant
just said, it is very important for all of those folks that may
be watching the testimony today not to forget that these
witnesses were sent here, and I think they have done a very
good job, but they are witnesses on behalf of the President,
not impartial witnesses. They are advocates.
I think that the President should set a standard that our
kids in this country ought to be able to look up to, and we
ought to know that the chief law enforcement officer, the
President of this country, is somebody that we can respect and
who actually tells the truth.
I yield back the balance of my time.
Chairman Hyde. The gentleman's time has expired.
The gentleman from Massachusetts, Mr. Meehan.
Mr. Meehan. Thank you, Mr. Chairman.
Mr. Chairman, Mr. McCollum earlier referred to a case from
the United States Court of Appeals in the District of Columbia
Circuit and seemed to indicate that that case, the ruling in
the case, which had been sealed, put to rest the issue of
whether or not the President's testimony was material in the
Paula Jones case. Well, it just so happens that I got a copy of
that ruling that was under seal, and this is not a ruling on
that at all. This is a ruling on a motion to quash by Ms.
Lewinsky's attorney because Ms. Lewinsky didn't want to
testify. This ruling in no way, shape or manner says that the
President's testimony was material to the underlying civil case
in the Paula Jones filed lawsuit. So just to set the record
straight, I would ask that this be submitted for the record,
that Members might want to read it.
Chairman Hyde. Without objection, so ordered.
[Information not available at time of printing].
Mr. Meehan. Thank you Mr. Chairman.
In any event, I am delighted to see the former
Massachusetts Governor here, back in the public arena on the
right side. I heard my friend from South Carolina, Mr. Inglis,
talk about the high bar over the last few days, the high bar,
that Mr. Craig has to make sure that he gets over that high bar
because it is a very high bar.
They are prepared to vote for impeachment of the President
of the United States on Saturday. It is the second time we will
have a trial in the United States Senate if the full House goes
along with it. And he is talking about the high bar that Mr.
Craig has to pass to get witnesses before this committee to
prove the President's innocence.
Now, Governor Weld, you are a former prosecutor. I am sure
that you have heard many on the other side say that this is
sort of like a grand jury proceeding. Now, have you ever had a
case where you as the prosecutor appeared before a grand jury
and gave your presentation as to why you thought a defendant
had committed a crime, yet called no material witnesses, no
witnesses, yet nonetheless you got an indictment? I don't
subscribe to this theory, but let's assume we are in the grand
jury system.
Mr. Weld. I have had cases where the case went in through
an agent at the grand jury, and a lot of the agent's testimony
would be hearsay. He would be a cumulative witness.
Mr. Meehan. But you have never had a case where you didn't
present basically a prescient case; you never went in and said,
we should indict this person?
Mr. Weld. I don't think you get too far that way, Mr.
Congressman.
Mr. Meehan. Apparently though, Governor Weld, you do--here
is the point. Because we haven't heard from a material witness
yet, and I hear the other side saying, wait a minute, the
Democrats, the President, they haven't brought a material
witness here. They should prove the President's innocence.
Isn't the fact of the matter in the judicial proceeding, any
judicial proceeding, that the prosecution or the person seeking
to pass that high bar has the obligation to provide the
material witnesses? Mr. Sullivan, isn't that the way our system
works?
Mr. Sullivan. Yes.
Mr. Davis. It clearly works and must, and, indeed, I think
that the burden to proceed with impeachment should have a
higher evidentiary threshold than the burden for a prosecutor
to bring a criminal case because the consequences of
impeachment are much more important nationally.
Mr. Meehan. Let me go on to another instance. There is all
of this talk of obstruction of justice that is being thrown
around here as if we had a case of obstruction of justice. And
there is a talk about who initiated the events relative to the
gifts, who transferred the gifts. Betty Currie testified before
the grand jury that Ms. Lewinsky called her and asked her to
come over and pick up the gifts. Monica Lewinsky claimed that
Ms. Currie made the initial phone call.
Now, I know this is probably hard to believe, but one of
the articles of impeachment is going to be an obstruction of
justice. But this committee has never called either one of them
to try to determine what the truth is.
Mr. Sullivan, have you ever heard of drafting an article of
impeachment where there is a conflict in the facts like on this
particular instance and we didn't call either one of the
witnesses to try to correct what the grand jury testimony says?
Mr. Sullivan. Well, no. But let me----
Chairman Hyde. The gentleman's time has expired.
Can you answer briefly?
Mr. Sullivan. Yes, I can, Mr. Hyde.
Even if you take what Ms. Lewinsky said, when she talked to
the President about what to do with the gifts, you wouldn't
have a case because she says that he said, ``I don't know, or
let me think about it.'' That is all. That is the total sum of
what Ms. Lewinsky said Mr. Clinton said.
Mr. Meehan. Thank you, Mr. Sullivan.
Chairman Hyde. The gentleman from Georgia, Mr. Barr.
Mr. Barr, would you yield to me just briefly?
Mr. Barr. Certainly.
Chairman Hyde. Mr. Davis, in law if you have a prima facie
case, the burden then shifts to the other side to come forward
with some evidence; does it not?
Mr. Davis. Well, not really. The burden in a criminal case
always remains on the prosecutor to show proof beyond a
reasonable doubt, and that burden stays with the prosecutor
from beginning to end.
Chairman Hyde. Well, I understand that. But can you be
critical of not producing witnesses when you have 60,000 pages
of under-oath testimony, deposition testimony, grand jury
testimony; are you not entitled to take that into
consideration, and then, if you reject that, if you think
that's wrong, don't you have some obligation to come forward
yourself with a scintilla--by the way, what is a scintilla?
Mr. Davis. A scintilla is very little. But I think----
Chairman Hyde. Don't you think you have an obligation to
come forth with a scintilla of evidence invalidating the 60,000
pages that the Independent Counsel has developed?
Mr. Davis. It is not a question of the number of pages. The
real issue is whether those pages continue uncontradicted facts
as to which there is no factual issue. The problem here is----
Mr. Barr. Mr. Chairman, I have to reclaim my time. I have
some--with all due respect.
Mr. Rothman. Mr. Chairman, let the witness finish his
answer, please.
Mr. Scott. Mr. Chairman, I would ask unanimous consent that
the witness be allowed to finish his answer.
Mr. Barr. Could we restart the clock then? If they want to
give this gentleman time to answer the questions, let him
answer, and then restart the time.
Chairman Hyde. Please, please. On nobody's time but the
Chair's time, the gentleman may finish his answer, and then we
will start again with Mr. Barr.
Mr. Barr. Thank you, Mr. Chairman.
Chairman Hyde. I want to be fair, and I really intruded on
his questioning.
Go ahead, Mr. Davis.
Mr. Davis. I think it does depend upon what is in those
60,000 pages. If there are conflicts that are revealed so that
there are factual issues, the issue then becomes credibility,
and credibility is important. And even as Mr. Starr recognized,
he didn't want to give immunity to Ms. Lewinsky unless he saw
her. Of course, actually, he didn't see her. He wanted his
office to see her. So if you are going to make credibility
judgments, and as to a number of these issues there are
credibility issues, that is when it becomes important for the
person with the responsibility formaking the decision, and that
is, in this case, this committee, in my view, to actually test the
credibility of the witnesses.
Chairman Hyde. Of course, where there is no conflict, that
isn't an issue; isn't that so?
Mr. Davis. If there is no conflict, then it is a question
of the significance of what is said and understanding that.
Chairman Hyde. Thank you.
Now, forgive me, Mr. Barr, I won't do that again. You will
start all over.
Mr. Barr. Mr. Chairman, if you can ask questions and then
start the time for me, you can do that any time you want.
Thank you, Mr. Chairman.
I know Mr. Craig is here, and I don't know whether he is
delighted or dismayed by the panel today, because after
promising us yesterday that we would not be hearing
technicalities and legalities, that is all we hear today. That
is fine. We have a panel of very distinguished criminal
attorneys here, and that is the essence of criminal law,
finding a clever way to parse words and definitions and so
forth and determine why certain principles don't apply, and I
understand that.
But we really have gone, Mr. Chairman, today from the
technical to the absurd. From the technical we have lawyers
here that would apparently agonize greatly over a definition of
sexual relations that is very, very broad; uses terms that are
deliberately broad to encompass a whole range of activities,
using the term ``any person.'' Now, to Mr. Sullivan, any person
may not mean any person, but I think to the average person of
common sense it would.
So we still have this legal technical parsing over
definitions and words that really leaves us precisely where we
were before Mr. Craig made a promise yesterday that we would
have no more technicalities and legalities to hang our hats on.
We have gone then to the absurd, Mr. Chairman, and that is the
preposterous presumption or scenario that the President, in
talking with Ms. Currie the day after he gave his grand jury
testimony or his testimony in his deposition before the court,
was really acting as her attorney because, according to Mr.
Sullivan, it is entirely proper for an attorney to go over
somebody's testimony in advance of that testimony to make sure
that it fits.
I don't think the President was contemplating serving as
her attorney, nor do I think that Ms. Currie was contemplating
hiring the President for that purpose. Therefore, we would have
to look elsewhere, and the elsewhere is that he was trying to
coach her, and that fits within the definition and the statute
of tampering.
For those on this panel, all of whom have tremendous and
very noted experience in dealing with criminal law, many
including dealing with very serious drug cases, I would ask
them rhetorically, since they seem so enamored of the propriety
of evasive and crafty answers being the tools in trade of an
attorney, why they would find it interesting, or maybe they
wouldn't, that the Acting Deputy Administrator of the Drug
Enforcement Administration, for whom I would presume you would
all agree it is important to have agents testifying in court,
testify truthfully, why that Deputy Administrator believed it
necessary on September 15 of this year in a memo to all DEA
personnel admonishing them--and I have never seen a memo like
this before--admonishing them, quote, that evasive or craftily
worded phrases, testimony or documents designed to omit or
distort key facts are similarly unacceptable and will not be
tolerated. Making false statements in any matter or context is
completely unacceptable and will not be tolerated.
That, I think, Mr. Noble, and I noticed you did not answer
this specific question put to you by I think it was my
colleague and another former U.S. Attorney Mr. Bryant, that is
why this case is so important, not necessarily that we know for
a fact that there are DEA agents out there developing crafty or
evasive answers to be used in court, but apparently the head of
one of our preeminent law enforcement agencies, because of the
President, the chief law enforcement officer, using crafty and
evasive answers in court before judges, because that sets a
certain standard, that is why it is important that we are here
today.
That is why it is important why we are here today, not to
argue over the technicalities, niceties and legalities of
whether or not a specific case of perjury can be made, but
because of the damage that is already being done to our law
enforcement by having a President who excels at evasive and
crafty answers that in the case of the average DEA agent would
be unacceptable, would get them thrown out of court and
probably cashiered from the government. That is why this is
important.
And, Mr. Craig, shame on you for putting together a panel
here of technicalities and legalities when you promised us
yesterday there would be no more of that.
Chairman Hyde. The gentleman's time has expired.
The Chair would appreciate no demonstrations, although we
have had them, but we can get along better without them.
Mr. Delahunt.
Mr. Delahunt. Thank you, Mr. Chairman.
You know, I want to speak to the issues of technicalities
and legalities and what have you, because I think it is
important, when we speak about the rule of law, oftentimes we
are talking about technicalities and questionable legalities
because it is embedded in our Constitution that there are
certain standards and requirements. Is that a fair statement,
Mr. Sullivan?
Mr. Sullivan. Yes.
Mr. Delahunt. This is not about technicalities.
Mr. Sullivan. It is, in response to what Mr. Barr said, in
somewhat----
Mr. Delahunt. Mr. Sullivan, I am just going to speak to
you, because I have wanted to help----
Mr. Sullivan. It is interesting to me because in my
experience, persons who make such statements, when they become
the subject or the object of investigation, are the first ones
to get the mantle of the constitutional protection and wrap it
around them, and insist on their rights. You don't hear that
kind of a speech from them anymore, when they hire me on to
defend them, I can guarantee you that.
Mr. Delahunt. Thank you.
Let us talk about perjury. To evade is not to perjure, is
it, Mr. Sullivan?
Mr. Sullivan. No.
Mr. Delahunt. To obfuscate is not to perjure.
Mr. Sullivan. No.
Mr. Delahunt. To be nonresponsive is not to perjure either.
Mr. Sullivan. No.
Mr. Delahunt. It is not a crime, is it?
Mr. Sullivan. No, it is not. The definition of perjury and
the proof required to prove perjury is very specific, very
technical, and properly so.
Mr. Delahunt. However, it might be maddening, it might be
frustrating, it might not be right, it might very well be
immoral, but it is not a crime.
Mr. Sullivan. The Criminal Code is not enacted to enforce a
code of morality.
Mr. Delahunt. You know, I was listening to my friend from
Tennessee Mr. Bryant, and I thought his comments were
interesting, you know, the almost did it theory. You know, I
don't think he and I disagree all that much. I do think,
however, that there are ways to deal with a President who has
evaded, who has been nonresponsive, and who has obfuscated the
truth. I suggest that there are alternatives that are open to
this Congress to deal with that particular issue.
You know, I think it was Mr. Chabot who raised the issue
about recollection and forgetfulness. You are all experienced
trial lawyers. We know as human beings that memories--people
can answer in good faith and memories can fail. Is that a fair
statement, Mr. Sullivan?
Mr. Sullivan. Of course, it is.
Mr. Delahunt. Well, I just want to submit this for the
record, because hearing the issue being raised yesterday,
several days ago, I went back to the testimony that was
provided by Kenneth Starr, and, according to my review, the
Independent Counsel expressed difficulties in recalling
information at least 30 times during the course of his
testimony. And it is fully detailed here, and I want to submit
it, Mr. Chairman, for the record.
Chairman Hyde. Without objection, it may be received.
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Mr. Delahunt. You know, I think it is important to also
note that credibility is an issue here, Mr. Davis. It is a real
issue. And I think it is important to note, too, that the
Majority, represented by Mr. Schippers, has acknowledged that
in their report to this committee.
I am going to read to you his statement: Monica Lewinsky's
credibility may be subject to some skepticism. At an
appropriate stage of the proceedings, her credibility will, of
necessity, be assessed together with the credibility of all
witnesses in the light of all the other evidence.
Would you suggest that it is an obligation of this
committee to make that assessment before we proceed?
Mr. Davis. I believe it is, because you are the people who
have to be comfortable that there is sufficient evidence to
establish what is put in a piece of paper.
Mr. Delahunt. Ms. Lewinsky has on numerous occasions lied,
if you have read--if you accept the--if you accept the
transmittal by Mr. Starr.
Mr. Davis. I think Mr. Starr's transmittal references that.
Mr. Delahunt. And early Mr. McCollum talked about nine
corroborative witnesses. My memory of the Starr communication
is that she told different stories to different people.
Mr. Davis. I think there is set out there, and, as I said
before, it is also the same if she had a pre-existing
motivation to tell false statements to the grand jury, it was
the same with those people in any event.
Chairman Hyde. The gentleman's time has expired.
The gentleman from Tennessee, Mr. Jenkins.
Mr. Jenkins. Thank you, Mr. Chairman.
Let me say to this panel, thanks. Mr. Chairman, I regard
this as a very able panel. And I suppose you saved, Mr. Craig,
the best for last. I feel like I would be unarmed to get
engaged in any mental gymnastics with any member of the panel.
But you have all announced that you are here as witnesses,
not advocates. You are advocates, in a sense, as witnesses, and
I suppose the tendency for all of us who have practiced law or
been judges is to get back in the arena. The last two or three
panel members, I think, have gone in a direction that we need
to continue to go in. They have talked about getting away from
legalistics, talked about getting away from lawyer talk, and
talked about discussing things that the American public would
understand. I have got a question along those lines I would
like to ask Mr. Sullivan.
Mr. Sullivan, you testified that you had read from the
President's deposition that he had denied that he had sex with
somebody based on the interpretation of sex.
Mr. Sullivan. In the grand jury testimony, the grand jury
testimony about his deposition testimony.
Mr. Jenkins. And you commented that you thought the
President's interpretation was reasonable.
Mr. Sullivan. Yes, I think it is a reasonable
interpretation. He insists that that is his interpretation. And
it seemed to me, given the necessity of proof beyond a
reasonable doubt that he thought he was telling a lie, that you
could not make a criminal case against him.
Mr. Jenkins. Well, now, this is a solemn matter, and I want
to keep it that way, but for those people across this land who
are viewing this now, I want to ask you, you have come down
here and testified, and, actually, I see what it comes down to
this, when you pull the shuck back and look at the corn, what
you are asking the American people to believe is that we have
got a guy down at 1600 Pennsylvania Avenue who is smart enough
to get himself elected, who is smart enough to serve as
President of the United States, and he doesn't know what sex
is.
Mr. Sullivan. No, I am not suggesting that at all. That is
absolutely not what I am saying. I have said it three or four
times. The judge in the Jones case gave a specific definition
of the term ``sexual relations.'' She deleted two sentences
that specifically read on, as the patent lawyerssay, oral sex.
The President says in his mind that took oral sex out of it, and that
what was left was what we would call normal sexual intercourse. And he
said that is the definition I was responding to.
Now, you can say that is silly, that is ridiculous, I don't
believe it, but that is what he says. And it seems to me that
if you were to bring this as a criminal case with that
background in mind, and what was left in that definition, you
can't make a case. That is all I am saying.
Mr. Jenkins. Well, you and Mr. Noble have both indicated
that you don't believe, and perhaps, I guess, other panel
members have indicated----
Mr. Noble. I would like to respond to two points you made.
One is----
Mr. Jenkins. I haven't asked you to, Mr. Noble. Wait just a
minute, and I will try to give you an opportunity. I am about
to burn up all the time I have.
But do you know anything, Mr. Sullivan, about the Battalino
case, the lady who came here and testified?
Mr. Sullivan. Just what I have read in the newspapers about
it. I did not witness it.
Mr. Jenkins. You are not able to compare----
Mr. Sullivan. Well, I could compare it this way. In the
cases that have been referred to, I have not heard of any in
which it is analogous to this case, where the witness'
testimony was peripheral to the issues in the case, where the
alleged perjury was not dealing with the specific facts like of
the Jones case, but of some other peripheral case that might
not even be admissible in evidence.
Chairman Hyde. The gentleman's time has expired.
Mr. Wexler.
Mr. Wexler. Thank you Mr. Chairman.
Mr. Sullivan, I was very struck by your testimony in terms
of your examination of the allegations against the President
because it seems to me one of the most critical elements
against the President and the President's lawyers' performance
in this process is that they have engaged in legal hair-
splitting, and they have been condemned for it, and in some
cases maybe appropriately so. But as you analyzed the nature of
the case against the President with respect to perjury, what
struck me was it seems that in order to make that same very
case against the President, you have to engage in legal hair-
splitting to do so, because when it all comes down to that very
essence of the case against the President on perjury, it comes
down to a discrepancy, a discrepancy between the testimony of
the President and Ms. Lewinsky over the precise nature of the
physical contact involved in their relationship.
The President on the one hand to the grand jury says, I had
an intimate relationship, an inappropriate intimate
relationship with Ms. Lewinsky that was physical in nature. And
he goes on to say, it was wrong. And then, of course, as you
have pointed out here today on several occasions, he denied in
essence having sexual relations as it was defined by the judge.
Ms. Lewinsky on the other hand, in response to the
Independent Counsel's several questions, goes into graphic
detail in recollection of her encounters with the President.
That is what it seems the perjury is all about.
Let's take the advice of the members on the other side.
Throw away the legal technicalities. Throw away the
requirements that the law provides we prove for perjury. Forget
all about that. Tell the American people what is the false
statement that the President allegedly made to the grand jury?
Forget the consequences, forget the law. What is the false
statement?
Mr. Sullivan. Well, could be one of two. It could be when
he denied having sexual relations, and I have already addressed
that, because he said, I was defining the term as the judge
told me to define it and as I understood it, which I think is a
reasonable explanation. The other is whether or not he touched
her or touched her breast or some other part of her body, not
through her clothing, but directly. And he says, I didn't. And
she said, I did. So it is who shot John. It is a one on one.
The corroborative evidence that the prosecutor would have
to have there, which is required in a perjury case--you can't
do it one on one, and no good prosecutor would bring a case
with, you know, I say black, you say white--would be the fact
that they were together alone and she performed oral sex on
him. I think that is not sufficient under the circumstances of
this case to demonstrate that there was any other touching by
the President, and therefore he committed perjury.
Mr. Wexler. Mr. Sullivan, I only hope that a vast majority
of Americans have heard your answer right now. What this is
about at its worst is the President making false statements
about sexual relations and about where he touched Monica
Lewinsky. That is what the perjury, the alleged perjury, is
about. I hope I am not misstating what your answer was.
Mr. Sullivan. No, you are not. What the other side is
saying is that perjury in any regard is so important that the
President oughtn't to engage in it. We can all probably agree
with that. The issue for you is whether or not it justifies
impeachment.
Mr. Wexler. I agree. I agree. So it is about sexual
relations, and it is about touching, and now we are about to
impeach a President because we think he gave false answers
about sexual relations and about touching. How many times does
it have to be said, how many times do we, the Congress of the
United States, have to now set up a standard that says the
President may have falsely told us an answer about sexual
relations and about touching, and now we are going to impeach
him?
Chairman Hyde. The gentleman's time has expired.
The gentleman from Arkansas, Mr. Hutchinson.
Mr. Hutchinson. This investigation was opened because of
concerns about attempts to obstruct and suborn perjury in a
civil proceeding in which a plaintiff who had a right to bring
a suit, who the courts determined had a right to bring a suit,
was pursuing. And our review is looking into these allegations
of obstruction of justice and perjury.
There are questions about whether Monica Lewinsky is
truthful or not. I think that is a legitimate question that can
be raised, but I think she does have an incentive for telling
the truth. I have here before me the immunity agreement, which
I have seen before and these witnesses have seen before as
well. It says that if Ms. Lewinsky has intentionally given
false, incomplete or misleading information or testimony, she
would be subject to prosecution for any Federal criminal
violation. And so certainly she has immunity, would you agree,
Mr. Sullivan,but if she does not tell the truth, then she will
be subject to prosecution?
Mr. Sullivan. If that is the standard use immunity
agreement, that is correct.
Mr. Hutchinson. Now, I believe, Mr. Sullivan, going to your
testimony, you suggested that prosecutions for perjury are
relatively rare, difficult to prove, and the United States does
not do it generally in pursuit of civil litigation. We have the
statistics for Federal prosecutions.
I think Governor Weld mentioned this, that he didn't
believe that they were that rare, and, in fact, in 1993, there
were more Federal perjury prosecutions by a United States
attorney than there were kidnapping prosecutions. I don't think
that means that kidnapping is not significant. In '94, the same
fact was true. There were more perjury prosecutions, in fact
93, than there were kidnapping prosecutions. And the same is
true in '95. It is really a pattern that goes back to the
1960s.
And I wish I could give credit to all of my staff who did
such great work, but talking about the United States attorneys
prosecuting perjury in civil litigation, here is a stack of
cases. I could go through them, but I only have 5 minutes. I
found an impressive arena of cases in which U.S. attorneys
prosecute perjury in civil cases across the country.
Now, I agree with your point that sometimes there is a
history behind the case. But I think there is a history here in
this case as well. There is an investigation of obstruction of
justice.
Now, Mr. Sullivan, you mentioned that it was in a
peripheral matter, am I correctly----
Mr. Sullivan. Yes.
Mr. Hutchinson. Has anyone on this panel ever represented a
woman as a plaintiff in a sexual harassment case? If you have,
raise your hand. No one?
All right. Well, I have. And the most difficult thing in a
sexual harassment case is proving who is telling the truth.
Many times you have to go to a pattern of conduct because there
is a denial. So if you try to prove a pattern of conduct, you
have to ask questions in a deposition as to what has happened
in the past. And I don't think that is a peripheral matter. I
don't think you can build sexual harassment cases if you do not
ask those questions.
When the President in that deposition denied ever having in
his lifetime sexually harassed a woman, is that a material
statement in the civil deposition? I invite your answers.
Mr. Davis. Well, I think the issue is--I don't believe it
is, because----
Mr. Hutchinson. The question is, is it material?
Mr. Davis. No, I don't think it is material because you are
entitled to ask the question under the broad discovery rules.
But the question is, if a truthful answer here would have
revealed the true facts, would it have been admissible in that
Jones case. Actually, the truth is, it would not have been
because it would not have been admissible in the Jones case.
Mr. Hutchinson. Does anyone disagree that it would be a
material statement? Do you disagree, Mr. Noble?
Mr. Noble. I am sorry. Maybe I misunderstood the question,
and I don't know the record to reflect this question, but if
your hypothetical question is in a sexual harassment suit, if a
person is asked, have you ever sexually harassed someone, would
that be material, I believe it would be material.
Mr. Hutchinson. Would anyone else agree with Mr. Noble, who
gave a very straightforward answer? I know you all haven't
handled sexual harassment cases. Perhaps this is a little bit
of a disadvantage.
I thank you for your testimony.
Chairman Hyde. The gentleman's time has expired.
The gentleman from New Jersey, Mr. Rothman.
Mr. Rothman. Thank you, Mr. Chairman. Let me start off by
saying that with respect to my colleagues on the other side of
the aisle, I do not think it aids the search for truth to
demonize the White House counsel. Mr. Craig said that he was
going to be presenting us with some factual rebuttal to the
factual arguments made by Mr. Starr. As I have read the 184
pages of the White House submission, there are pages 70 through
89 and pages 93 through 182 which address each and every one of
the factual charges made by Mr. Starr.
So what we now have is Mr. Starr, who was a witness to no
facts, making his statements, 450 pages in writing and in 2\1/
2\ hours in his initial testimony, and we have Mr. Kendall, who
made several written rebuttals, and then now this 184-page
rebuttal to all the facts, neither of which are admissible in a
court of law, as we all know and have accepted, the testimony
of these experts. And we are left without one single fact
witness to help us clarify when Monica Lewinsky was telling the
truth and when she wasn't, because Mr. Starr said that
sometimes she was telling the truth, and sometimes she wasn't.
But no fact witnesses have yet been called to aid us in the
finding the truth.
But we all agree that there is a basic fundamental American
notion of due process and fairness, that those bringing charges
must bear the burden of proof. And in this instance, it is a
clear and convincing standard of proof, yet not one single fact
witness has yet been presented. That will be telling unless it
is remedied, my friends.
But I understand that my colleagues on the other side of
the aisle, despite the fact that these distinguished
prosecutors have said they would never bring a criminal
indictment on these matters, my colleagues say that even if it
was not a crime, it is a pattern of lying. It is not right.
Well, I am not sure that the standard is treason, bribery,
high crimes, misdemeanors, evasiveness and lack of
respectability. Although some might argue that the constitution
should say that, it does not say that.
With regard to the rule of law, we have said many times
President Clinton will pay an $850,000 fine, or settlement this
case for $850,000, in the Jones civil case. That is not an
incentive to lie in a civil case. He can be prosecuted
criminally once he leaves office and go to prison if the
charges against him are proven true. That is certainly not an
incentive to anyone to lie under oath in any proceeding. And
the rule of law is upheld because the President is not above
the law. He can be sued civilly and criminally, and our kids
know that, and this whole process has demonstrated that.
The question for our committee and for all of America is to
decide if no reasonable prosecutor would bring thesematters up
for a crime, how could it be a high crime or misdemeanor. Say the
founders got it wrong, that they should have added evasiveness as a
high crime and misdemeanor, or lack of respectability as a high crime
and misdemeanor. Some might argue yes; some might argue no. What we
have to be aware of is the consequences to our Nation if we expand on
that definition when we already know the President can be punished
civilly, as he has been in the settlement, and criminally by going to
go to prison if the charges are proven against him.
I yield back the balance of my time.
Chairman Hyde. I thank the gentleman. The gentleman from
Indiana, Mr. Pease.
Mr. Pease. Thank you, Mr. Chairman. I have a few questions
and then an observation.
I wanted to--first of all, let me say, I have found this
panel very helpful on the questions dealing with criminal
prosecutions. I understand that there is a difference between
criminal prosecutions and impeachment, but on the questions of
criminal prosecutions and the parallels that may be argued, I
am grateful. I wanted to be certain--let me back up.
I especially, without diminishing the work done by any of
you, I especially want to thank Mr. Noble, whose presentation
was most helpful to me, and I had some follow-up questions I
wanted to ask you, based on questions that you were asked by
other panelists but didn't get the chance to conclude.
The first deals with questions from Mr. Boucher on the
standards that are used in assessing when to prosecute cases
where there is a high-profile potential defendant. Can you
share with us the standards in the Department of Justice in
those cases?
Mr. Noble. I must say, I am humbled to answer this, because
on my left was the Assistant Attorney General from the Criminal
Division when I was Assistant U.S. Attorney, and on my right is
a U.S. Attorney and the Assistant Attorney General for the
Criminal Division, so I will see if I learned anything from
these two wise fellows.
As soon as you get an allegation that there is a political
figure who has engaged in criminal activity, as a U.S. attorney
or as a prosecutor, one of the first things you will think
about is, will people have confidence that my office's
investigation of this will be deemed independent and unbiased?
You ask yourself that, before you do anything. Can my office
handle this? Or should I send it to the criminal justice--or to
the Justice Department's Criminal Division in Washington and
have Mr. Weld or people from Public Integrity handle it?
Then you want to know, who is the person bringing it? Does
he or she have a bias, a stake in the outcome of this matter?
And if it is a matter involving parties that are already
involved in a dispute, you have got to worry about that.
And how did this person become aware of this information?
If in the case of someone cooperating with you, one of your
informants giving information to someone and having that
information lead to possible criminal activity like a perjury
trap, all of the considerations, so that after all is said and
done, a rational citizen who is looking at you--I can't help
the fact that I was asked by the Democrats to be here; if the
Republicans had asked me to come, I would have come willingly--
but that a rational, independent person would say, yes, I can
look at the evidence and see why this prosecution is brought;
no rational seasoned prosecutor would bring any criminal
prosecution against any person for perjury or obstruction of
justice based on the evidence I have seen, and I am thankful of
that, and we should all be thankful of that because if you want
to prosecute me, prosecute me for something I did but not for
something you thought I did.
If I have got a weird thought process, don't process me
criminally for it. Say that I am a weird person and
disassociate yourself from me.
Mr. Pease. Thank you, Mr. Noble. I appreciate your efforts
to be concise.
I don't know if this question was directed to you or to the
panel, but Mr. Boucher was getting into the question of whether
dismissal of a case terminates the authority of a court to
sanction parties or witnesses. And I don't know that that was
addressed, and I would appreciate it if someone could.
Mr. Sullivan. I addressed that. I said that there is
inherent power under the Supreme Court decision, and that I do
not know whether or not the dismissal of the case terminates
that.
Mr. Pease. That's my question. So you do not know?
Mr. Sullivan. I do not know.
Mr. Pease. Does anybody else have a response or a thought
on that?
Mr. Weld. I believe that she does not lose jurisdiction to
investigate and recommend a prosecution, hold criminal contempt
hearings for anyone that might have engaged in criminal conduct
during the time period that she had this matter.
Mr. Pease. I also, as I began, want to thank all of you.
Your presentation has been very helpful in understanding the
issues surrounding charging and conviction in criminal matters.
I am concerned, though, that we not assume that either the
standards in a criminal prosecution or the burden of proof or
the procedures employed are the same as those which face this
committee.
A criminal prosecution is not the same as an impeachment,
and we should not succumb to an argument that because a
criminal prosecution might not succeed, Congress is unable to
act under its constitutional obligation regarding impeachment.
No matter my eventual conclusion on the mattersbefore us, I am
not prepared to say that the expected standard of conduct for an
American President is simply that he or she may not be indictable.
I yield back the balance of my time.
Chairman Hyde. I thank the gentleman.
The gentleman from Wisconsin, Mr. Barrett.
Mr. Barrett. Thank you, Mr. Chairman.
Mr. Sullivan, you indicated in your testimony that you did
not think that this would be a case that would be brought by a
United States attorney for perjury. We have heard many
witnesses and many members saying that the President, when he
leaves office, is open to criminal prosecution. The sense of
the American people, I think, remains that the President did
something wrong, that he should be held accountable for his
actions, and that he should not be impeached. So in your
discussion, where is the justice?
In this case, in the civil suit, since every one of us
would deplore not telling the truth, or lying, where is the
justice in your analysis here?
Mr. Sullivan. Well, we live in an imperfect world, and
justice is not always achieved in this world. We sometimes have
to wait and hope. But all I am saying is that you have to
follow the law. If the law provides that the President can be
indicted after he leaves office, and if some prosecutor wants
to take this up, who has jurisdiction over it, they may reach a
different conclusion than I do.
I doubt that a responsible prosecutor would bring a perjury
case against the President on these facts.
Mr. Barrett. Okay. Now let's----
Mr. Sullivan. Now, I think that the justice--I mean, look
at what the man has already gone through, though. We are
sitting here, the third time in the history of the country that
they are considering removing a President from office, it seems
to me that there has been terrible retribution on this man for
what he did.
Mr. Barrett. Let's take the President out of it and let's
leave it as a civil case where a person has lied. Where does
the justice system work in this case? If a person in a civil
case has lied under oath or misrepresented themselves or
obfuscated the facts, tell me where the justice comes into this
system if there is not going to be a perjury prosecution? There
has to be justice. We can't just say, well, that's the way it
goes.
Mr. Sullivan. Well, we are talking about the Jones civil
case?
Mr. Barrett. Yes.
Mr. Sullivan. And in that case, after the President made
his disclosures, and Monica Lewinsky made her disclosures, and
the case had been dismissed, but before it was decided by the
court of appeals, Ms. Jones settled the case. So it seems to me
it is washed away, because she then knew, at the time she
settled, that if that evidence was going to be admissible, you
know, she would take that into consideration in determining the
amount of her settlement.
The case was thrown out, as I understand it, for reasons
entirely different; that she couldn't demonstrate that there
was any connection between what may have happened and the
detriment to her in employment.
Mr. Barrett. Do you think that the amount of the settlement
reflects some of that?
Mr. Sullivan. Well, I think that Ms. Jones voluntarily took
that settlement in light of all the facts, including the facts
that we are now talking about today.
Mr. Barrett. Okay.
Mr. Weld, you offered some interesting observations, I
think, one of which was the notion of a fine. I have had
commentators talk about a plea bargain or a deal. I bristle
when I hear those words, because I do think that this is a vote
of conscience and that every member on both sides of the aisle
should be listening to their conscience and be guided by that.
I also am mindful of the fact that we cannot impose a fine
on the President of the United States, that there are bill of
attainder problems. How conceivable do you think it is that the
President, if we were to censure him, would come forward and
say, I recognize that as part of the healing process I should
reimburse the Treasury for part of this investigation?
Mr. Weld. Well, politically, I guess I had anticipated that
all of that might be the subject of negotiation before the
votes were taken. I was trying to think of things that would
mark the solemnity of the occasion, do justice to the dignity
of the House and its role, having the sole power of
impeachment, and would say to the American people, there has
been justice here; this person, this President, has paid a
penalty here, short of being removed from office, which I think
we have kind of slid by that one.
But the fine, the written acknowledgment of wrongdoing and
the exposure to future criminal prosecution, as well as a
censure and as thorough a report as the committee or the House
wished to put on the record in perpetuity, those are the five
things that I could think of to mark the event.
Mr. Barrett. Okay.
Thank you, Mr. Chairman.
Chairman Hyde. The gentleman's time has expired.
The gentleman from Utah, Mr. Cannon.
Mr. Cannon. Thank you, Mr. Chairman.
I would like to begin by thanking this panel today. This is
an important issue, and I think your presence has added weight
to the issue. And I appreciate your comments and testimony.
I would also like to just point out at the very beginning
that without any parsing of words or equivocation, I agree with
my friend, Mr. Delahunt, and with the comments by Mr. Sullivan,
that the essence of the rule of law lies in the technicalities,
and the technicalities are very, very important for us here.
Now I would like to refer to some of the things that my
good friend, Ms. Lofgren, commented on earlier. Ms. Lofgren and
I are on two subcommittees of this committee together and I
have the greatest respect for the way she thinks. She said or
pointed out that perjury about sex is relevant essentially--and
I am paraphrasing here--is relevant to this side because it is
a crime, and then went on to point out some of the technical
elements of the crime that may in fact be missing here. And the
first was the suggestion that the person who administered the
oath to the President may not have been authorized to do so. I
think that was rebutted fairly effectively by Mr. Buyer, and I
agree with his responses.
Second, she said that the question must be unambiguous.
Now, I don't read the statute as requiring an unambiguous
question, but I think the perjury ultimately has to be quite
clear.
Later, Mr. Sullivan, I think, in response to some of this
questioning, suggested that the President can defend on the
basis that the definition was changed, that is, the definition
of sex, and that the new definition may somehow have excluded a
certain act or type of sex.
Let me just suggest in response to that that I have read
that definition very carefully, as I think many of the members
of this committee have. The President pointed out that he
answered the question very carefully because he answered the
question in the context of the definition that he read very
carefully, and obviously minds can disagree on this sort of
thing, but I just don't see how you could exclude that
particular act from the definition that remained after the
striking of the two sentences.
Now, a lot has been said about whether or not the President
can be prosecuted for this crime, whether these technical
defenses may be relevant. But I think the real potential for
understanding the likelihood of a criminal prosecution actually
lies in the President's own actions. He refuses to acknowledge
or deny the underlying facts of the case, and it is like there
is an allergy to the ``L'' word.
Mr. Craig yesterday said in answer to a question, no, he
deceived, he misled, but he did not lie; later, no, he was
technically accurate, but he did not disclose information.
I think all the commentators in the editorial pages have
pointed out that the President is caught between the Fifth
Amendment and coming clean with the American public, and I
think it is his actions, the fact that he won't deal with the
facts of the case, that make it clear to me that there may
actually be in another context, rather than this one, a
criminal problem that he is concerned about.
But unlike Mr. Wexler, who says that this is about lying
about sexual relations and touching, let me suggest that I
believe that this proceeding is really not about crime; I
believe that it is about the government's ability to secure--I
have to protect my mike from my compatriot on this side. This
is about the government's ability to secure the rights of the
governed.
John Jay was quoted yesterday. Let me just repeat part of
that quote: ``If oaths cease to be sacred, our dearest and most
valuable rights become insecure.''
Now, Mr. Weld, you have actually governed and you are a
person for whom I have the greatest respect. Would you mind
responding? What do you think those rights are? And if you can
be very particular, because my time is almost up, what are
those rights that Mr. Jay is concerned about keeping secure?
Mr. Weld. I think it is the rights to life, liberty,
property, and the pursuit of happiness.
Mr. Cannon. Thank you. I view property and the pursuit of
happiness as the same right--life, liberty and property.
Since my time is gone, I would love to hear a little bit
about that. I believe that John Jay was right. What this panel
is doing is maintaining for Americans, for generations and
centuries to come, the security of those basic rights of life,
liberty and property, or the pursuit of happiness. That's what
we are about here.
And I yield back the balance of my time, Mr. Chairman.
Chairman Hyde. The gentleman from California, Mr. Rogan.
Mr. Rogan. Thank you, Mr. Chairman.
I join my colleague from Utah in welcoming the panel, and
particularly in welcoming the distinguished former Governor of
Massachusetts, whose service to our country I have long
admired, and thank him for it to this day.
Gentlemen, let me start off by saying that I have noticed a
recurring theme among most of the panelists over the last few
hours. The first one, with the exception of Governor Weld, is
that perjury generally is a crime not prosecuted. The second
one is the claim made over and over that somehow the statements
made by the President were not material, even if they were
lying under oath. I must tell you, I take exception to both of
those claims.
The federal government since Bill Clinton became President,
and according to the Federal Sentencing Guidelines table, has
convicted and sentenced almost 700 people for perjury in
Federal court. In my own State of California, since Bill
Clinton became President, some 16,000 perjury prosecutions have
occurred. And so I just don't know where this novel claim comes
from that perjury is a crime that is ignored by the courts. The
record simply does not reflect that.
A couple of members raised the case of Dr. Battalino. There
were some blank stares by witnesses unfamiliar with her case.
Let me share with you briefly the story of Dr. Battalino. She
was here a week or so ago and testified before this committee.
She was a doctor who worked for the Veterans Administration.
She is also an attorney. In her capacity as a VA physician, she
had a one-time consensual sexual relationship with a male
patient of the hospital, but not her patient.
He later sued the hospital for a sexual harassment claim
and named her in the claim. She was asked in a civil deposition
whether she ever had a sexual encounter with this patient. Out
of embarrassment and out of concern for her job and her career,
she denied it.
The civil case was later dismissed. The gentleman's case
against the hospital and the doctor was later dismissed.
Despite that dismissal, the Clinton Justice Department filed
perjury charges against her. She is now precluded from
practicing law as a result of her conviction; she lost her
medical license, and she is under incarceration. She appeared
before us with an ankle bracelet, because she is under house
arrest.
You might imagine that Dr. Battalino has some grave
concerns over the incredible double standard. Her loss of
livelihood and the shame that she has had to face as a result
of the Clinton Justice Department prosecuting her perjury does
not square with the claim now being proffered by some of the
President's supporters that tlying under oath about consensual
sex is much ado about nothing.
I must say that I take exception to some of my beloved
colleagues on the other side who keep insisting to the American
people that this is simply about sex. That just is not true.
Governor Weld is absolutely right. Fornication and adultery not
only are not impeachable offenses; they clearly and patently
are not the business of the House Judiciary Committee. But that
is not what is at stake here.
The President was a defendant in a Federal sexual
harassment civil rights case, and as a result of that case, a
Federal judge ordered him to tell under oath whether in his
capacity as Governor or President he had ever had
sexualrelations with subordinate female employees. And the judge
specifically found that was relevant to show a pattern of conduct.
That's how sexual harassment cases are proven.
So this idea among some folks is that if they just state
the false premise over and over; if their histrionics, drama,
and theatrics are enough; if their volume is raised
sufficiently, then somehow we can reduce this to being just a
case just about sex. This conduct may play well for the talk
show circuit, but it doesn't play well for the truth.
I thank the Chair and I yield back my time.
Chairman Hyde. The gentleman from South Carolina, Mr.
Lindsey Graham.
Mr. Graham. Thank you, Mr. Chairman.
I have a couple of observations and some questions for the
panelists here. I, too, have appreciated you being here.
Please understand that when I vote, I will look at it in a
very legal sense. I don't believe, due to the nature of what is
going on, that we should send a case forward that doesn't meet
certain legal standards. And I just happen to disagree with you
about whether or not this is a provable case of perjury. I
think this is a very clear case of perjury, and it is not just
about intimate touching. It goes much further, and I can't
explain all that in 5 minutes.
I have seen the President's deposition in Paula Jones where
he testified. I saw Mr. Bennett wave the affidavit of Monica
Lewinsky in front of the President. I saw the President's eyes
follow the affidavit, his head nod, and I believe his grand
jury testimony, where he said he wasn't paying any attention,
is a lie, and I believe I could convict him with fair-minded
people.
But this is really more than just about the law. It is
about the national interest. I am a politician and there is a
unique political aspect to this case that is probably good. I
have said before, impeachment without outrage should be
difficult, and it should be in a democratic society. But let me
tell you the mood of my district to let you know a little bit
about what I am up against here.
The Washington Post sent apparently four reporters to the
four corners of the country and they happened to pick my
district to figure out how people feel about the President and
his misconduct. There is a portion of my district, very good
friends of mine, who want to get this over with; and I
understand, in their minds, it doesn't rise to the level of
overturning an election. That's a real dynamic: very nice,
rational people, but that's the minority people.
You can take the polls and reverse them. The reporter said,
I think I need to come home now, because he never got out of
the clothing department of Wal-Mart to figure out what people
thought about the President. It wasn't good. Being evasive,
deceptive, immoral and nonresponsive are not resume builders in
my district. Forget about perjury.
So I am a Congressman that comes from an area of the
country who has got no use for this kind of stuff, but I have
publicly said that we are going to play it straight with the
President; we are not going to take our emotions and our
political disagreements and try to use that in an impeachment
process, and I am going to stand by that. I have said to Mr.
Craig and others, I believe the President committed serious
crimes, but if he would reconcile himself with the law, so that
we could end this thing on a note of honor, I may consider a
different disposition than impeachment.
But if he continues to flout the law, I don't think he
should be the President for the next century. I stand by that
statement.
But there is another aspect of this that I think we need to
talk about. Ms. Waters, who I really do--have gotten to know my
colleagues on this side and we do get along pretty well. She
says, well, it is really silly to believe the President would
have his secretary hide gifts under her bed. Well, that sounds
silly, but the day that people stop doing silly stuff is the
day all of us as lawyers go out of business. I think it is
silly to fool around with an intern while you are being sued.
But those things happen, and they happen to smart people like
Bill Clinton. And if we impeach people for being silly and
doing inappropriate things, we will wipe the Congress out.
So I am not saying that those type of things ought to be
the reason we get rid of the President. But don't underestimate
what people can do that really is inappropriate and defies
understanding, and I believe that's a lot of what Bill
Clinton's problems really are at the end of the day.
If I have got to cast my vote based on knowing what the
Senate is going to do, I would never vote in the House because
I can't tell you what they are going to do half the time. And I
think what they ought to do is wait until they get a case
before they decide it; and everybody in Congress ought to let
this committee do its work, whether you like us or not, before
you decide what you are going to do. Because the day you start
deciding the case before the case is over is the day we lose a
lot in this country.
Governor Weld, hypothetically, you are the governor. There
is a person out there that possesses damaging information about
you. You are in a consensual relationship that's wrong. That
person, you know, if asked to testify, could hurt you legally
and politically. If you used the resources of the governorship,
if you got people in your office to plant lies, falsehoods,
malicious rumors and tried to use your office as governor to
trash that potential witness against you, what should be your
fate?
Mr. Weld. Well, in a clear enough case, my fate should be,
out of here.
Mr. Graham. Thank you. I yield back the balance of my time.
Chairman Hyde. The gentlelady from California, Ms. Bono.
Mrs. Bono. Thank you, Mr. Chairman. And to the panel, thank
you first and foremost for your patience.
I woke up this morning and I thought what do I get to do
today? Question five of the top attorneys in the entire
country. What a great way to start off my day.
I want to ask a question to Governor Weld to begin. It is a
follow-up to something that Congressman Coble had asked earlier
on. You discussed how you had changed your position. Your
initial reaction in February was that you said the President
should resign, and you indicated that you changed your thinking
because of events during the past year and the general reaction
to the President.
As a Congresswoman, I also sit on the National Security
Committee. Issues concerning our military readiness and
standing around the world greatly concern me. Earlier this
year, the United States engaged in some military activities.
Many people accused the White House of following a ``Wag the
Dog'' strategy.
It troubles me that the President may be, in some ways,
hamstrung to lead and act decisively and swiftly on
theinternational military stage without the complete trust of the
American people. In other words, if the office of the President does
not enjoy the complete public trust, this might affect our national
security.
So, Governor, if there is new evidence that the President
does not have the trust of the international community or of
our armed forces--and I am not talking about polls, but more
specific evidence from leaders around the world--would you
revisit your February advice that the President should resign
for the good of the country?
Mr. Weld. Yes. I think actually it was September, Madam
Congresswoman. And as I indicated, there are--or alluded to
earlier, one of the things I was troubled by in September was
we had had, frankly, some acts--some bombings and similar
actions abroad which coincided with the Lewinsky matter really
coming to a head, and that's precisely what I was worried
about. So I think, you know, anybody on an ongoing basis has
got to ask themselves the question, can I do the job? And if
you can't do the job, you shouldn't do the job.
Mrs. Bono. Will your opinion vacillate, though, depending
on what is happening with attacks on us or the economy is
strong?
Mr. Weld. Well, we don't have a parliamentary system here.
We have Presidents who are mighty unpopular. Harry Truman was
mighty unpopular even when he was--by and large, you know, in
retrospect, people think--doing the right thing on a lot of
stuff. So I don't think it should be following the public
opinion polls. It is a question of ability to discharge the
duties of the office. And I will confess that I was somewhat
surprised at the alacrity with which all seemed to be forgiven
and forgotten in terms of people saddling up and doing business
with the President and taking him seriously.
Mrs. Bono. Well, my point, here is that you know the public
trust, though, is something we also have to anticipate. It is
easy to have it now today while the economy is strong, the
stock market is great--although some of us still can't get
Furbies, it is not strong enough--but how about tomorrow? Will
we have it tomorrow? Will the public trust be there tomorrow?
It cannot change. It is something that we can't--we have to
guess, will it be there? I am hearing, as you are saying, too,
here today and gone tomorrow.
We on this committee cannot have that. We have to decide
will the public trust be there a month from now when Osama Bin
Laden rears his ugly head again?
Mr. Weld. I don't think you want to go the removal route
because of a concern that the trust might not be there. It
would have to be a little bit more solid than that.
Mrs. Bono. There is a concern. Right. Thank you.
I guess--I still have a green light. This is a miracle.
I have a question based on Mr. Sullivan's testimony, but I
will leave it open to the whole panel. But first I want to just
comment briefly.
Mr. Sullivan, We are here because of the President's
dancing on the head of a pin, as Lindsey would say, over the
definition of sex. ``Oral sex'' was omitted from the
description before the Paula Jones testimony. But then here in
this room you have changed it to sleeping with somebody. And I
know you were trying to elude references to salacious materials
again, but isn't that what got us in this whole mess?
Now you are changing the wording--and I am not a lawyer, so
I am getting used to listening to every word we are saying--and
you did the very thing that got us in this whole mess to begin
with.
Thank you, Mr. Chairman.
Chairman Hyde. Thank you very much.
We are going to take a break. I will yield to Mr. Conyers.
Mr. Conyers. Well, I wanted to take a few minutes on the
reservation that I had earlier.
Chairman Hyde. All right. Well, you are recognized for----
Mr. Conyers. I will move as quickly as I can, Mr. Chairman,
and thank you.
I first wanted to let Sheila Jackson Lee utilize 30 seconds
of the time.
Ms. Jackson Lee. Thank you very much, Mr. Conyers.
Just very briefly, there was a comment on the presentation
of the witnesses. Let me assume that you can come forward here
because you in fact are expert witnesses, but I did want to
very quickly comment on Dr. Battalino's case and Ms. Parsons'
case.
Dr. Battalino's case, the issue of perjury went to the fact
that she was attempting to reclaim monies for litigation costs.
It was insurance fraud, if you will. That went to the
question--that's why the Department of Justice prosecuted her,
and you were unfairly asked about it.
Pam Parsons, she was accused of being a lesbian. She was a
plaintiff and sued the newspaper that accused her of such, and
lied that she was not and there was definite--or definitive
proof otherwise. So it went to the heart of the case, and I
think it is important that we clarify the record on those
grounds.
I thank the gentleman. I yield back my time.
Mr. Conyers. Mr. Chairman and members of the committee, and
to this very much appreciated panel, this is a critical phase
of the hearings, and it is helping us to recognize how the
experts on this panel, seasoned and experienced prosecutors
all, which Mr. Starr acknowledged that he was not, would have
rejected bringing a criminal case against the President based
on Mr. Starr's allegations if he were an ordinary citizen.
It's critical at this part of our hearing to understand the
vast difference between the allegations being considered by the
committee and the system of criminal justice that applies to
the rest of us. If no ordinary citizen would face even a
criminal prosecution based on the allegations in the referral,
how can we justify considering the rarely used remedy of
impeachment for the same conduct? If no ordinary citizen would
face a criminal prosecution based on these allegations, how can
it be argued that to decline to vote for impeachment places the
President above the law? If no ordinary citizen would face a
criminal prosecution based on these allegations, why should we
bother to take the Senate and the Chief Justice of our highest
court to spend months resolving undignified and trivial
questions of fact rather than attending to the important
business of the country?
I hope these questions raise serious issues andreservations
for all of my colleagues in the committee about the wisdom of
proceeding on the paths that we apparently are on. And may I
acknowledge the chairman of this committee's accommodations that he has
offered me concerning prompt notice to all of us on the committee of
any draft articles of impeachment and his further willingness to
consider the motion that will be offered by the gentleman from
Virginia, Mr. Scott, to require that the specific allegations against
the President be provided to him before his counsel responds when we
conduct our business session today or tomorrow.
May I reiterate my strong view to the Republican leadership
that fairness dictates that the American people not be muzzled
on the all-important issue of censure. Overwhelmingly, the
American people that we have referred to, tested in the
districts and the Nation, do not want the President impeached.
Our citizens either support doing nothing or--under the theory
that the President has already been censured or they support an
additional resolution of censure.
But the important point is that for the vast majority of
those who do not want an impeachment, a 6-month Senate
investigation with all of the attendant political and economic
turmoil for all of those who want a proportional and sensible
alternative shouldn't be muzzled. And so your testimony here,
and this panel, may well be the most important that we will
have because you have dealt so significantly with these fact
questions that have been troubling us.
Thank you, Mr. Chairman.
Chairman Hyde. I thank you, Mr. Conyers. And I want to say
that I too deeply appreciate the contribution, which was and is
substantial, that you have made to the sum of our knowledge on
this very difficult question. You have all been enormously
helpful, highly qualified, very forthcoming, and you have made
a great contribution.
Now, we should take a 30-minute recess. But before I reach
that happy point, I yield to Ms. Jackson Lee.
Ms. Jackson Lee. Very briefly, Mr. Chairman, I would like
to submit into evidence of this proceeding the Constitution of
the United States, particularly noting that there is no
prohibition on censure noted in the Constitution of the United
States. I would like to submit this into the record, Mr.
Chairman.
Chairman Hyde. Certainly, without objection, even though
ours is a government of delegated powers, but nonetheless, your
motion is granted.
Ms. Jackson Lee. I thank you very much, Mr. Chairman. I
appreciate it.
[The information follows:]
CONSTITUTION OF THE UNITED STATES
We the People of the United States, in Order to form a more perfect
Union, establish Justice, insure domestic Tranquility, provide for the
common defence, promote the general Welfare, and secure the Blessings
of Liberty to ourselves and our Posterity, do ordain and establish this
Constitution for the United States of America.
Article. I.
Section. 1. All legislative Powers herein granted shall be vested
in a Congress of the United States, which shall consist of a Senate and
House of Representatives.
Section. 2. The House of Representatives shall be composed of
Members chosen every second Year by the People of the several States,
and the Electors in each State shall have the Qualifications requisite
for Electors of the most numerous Branch of the State Legislature.
No Person shall be a Representative who shall not have attained to
the age of twenty five Years, and been seven Years a Citizen of the
United States, and who shall not, when elected, be an Inhabitant of
that State in which he shall be chosen.
Representatives and direct Taxes shall be apportioned among the
several States which may be included within this Union, according to
their respective Numbers, which shall be determined by adding to the
whole Number of free Persons, including those bound to Service for a
Term of Years, and excluding Indians not taxed, three fifths of all
other Persons. The actual Enumeration shall be made within three Years
after the first Meeting of the Congress of the United States, and
within every subsequent Term of ten Years, in such Manner as they shall
by Law direct. The Number of Representatives shall not exceed one for
every thirty Thousand, but each State shall have at Least one
Representative; and until such enumeration shall be made, the State of
New Hampshire shall be entitled to chuse three, Massachusetts eight,
Rhode-Island and Providence Plantations one, Connecticut five, New-York
six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six,
Virginia ten, North Carolina five, South Carolina five, and Georgia
three.
When vacancies happen in the Representation from any State, the
Executive Authority thereof shall issue Writs of Election to fill such
Vacancies.
The House of Representatives shall chuse their Speaker and other
Officers; and shall have the sole Power of Impeachment.
Section. 3. The Senate of the United States shall be composed of
two Senators from each State, chosen by the Legislature thereof, for
six Years; and each Senator shall have one Vote.
Immediately after they shall be assembled in Consequence of the
first Election, they shall be divided as equally as may be into three
Classes. The Seats of the Senators of the first Class shall be vacated
at the Expiration of the second Year, of the second Class at the
Expiration of the fourth Year, and of the third Class at the Expiration
of the sixth Year, so that one third may be chosen every second Year;
and if Vacancies happen by Resignation, or otherwise, during the Recess
of the Legislature of any State, the Executive thereof may make
temporary Appointments until the next Meeting of the Legislature, which
shall then fill such Vacancies.
No Person shall be a Senator who shall not have attained to the Age
of thirty Years, and been nine Years a Citizen of the United States,
and who shall not, when elected, be an Inhabitant of that State for
which he shall be chosen.
The Vice President of the United States shall be President of the
Senate but shall have no Vote, unless they be equally divided.
The Senate shall chuse their other Officers, and also a President
pro tempore, in the Absence of the Vice President, or when he shall
exercise the Office of President of the United States.
The Senate shall have the sole Power to try all Impeachments. When
sitting for that Purpose, they shall be on Oath or Affirmation. When
the President of the United States is tried the Chief Justice shall
preside: And no Person shall be convicted without the Concurrence of
two thirds of the Members present.
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.
Section. 4. The Times, Places and Manner of holding Elections for
Senators and Representatives, shall be prescribed in each State bythe
Legislature thereof; but the Congress may at any time by Law make or
alter such Regulations, except as to the Places of chusing Senators.
The Congress shall assemble at least once in every Year, and such
Meeting shall be on the first Monday in December, unless they shall by
Law appoint a different Day.
Section. 5. Each House shall be the Judge of the Elections, Returns
and Qualifications of its own Members, and a Majority of each shall
constitute a Quorum to do Business; but a smaller Number may adjourn
from day to day, and may be authorized to compel the Attendance of
absent Members, in such Manner, and under such Penalties as each House
may provide.
Each House may determine the Rules of its Proceedings, punish its
Members for disorderly Behaviour, and, with the Concurrence of two
thirds, expel a Member.
Each House shall keep a Journal of its Proceedings, and from time
to time publish the same, excepting such Parts as may in their Judgment
require Secrecy; and the Yeas and Nays of the Members of either House
on any question shall, at the Desire of one fifth of those Present, be
entered on the Journal.
Neither House, during the Session of Congress, shall, without the
Consent of the other, adjourn for more than three days, nor to any
other Place than that in which the two Houses shall be sitting.
Section. 6. The Senators and Representatives shall receive a
Compensation for their Services, to be ascertained by Law, and paid out
of the Treasury of the United States. They shall in all Cases, except
Treason, Felony and Breach of the Peace, be privileged from Arrest
during their Attendance at the Session of their respective Houses, and
in going to and returning from the same; and for any Speech or Debate
in either House, they shall not be questioned in any other Place.
No Senator or Representative shall, during the Time for which he
was elected, be appointed to any civil Office under the Authority of
the United States, which shall have been created, or the Emoluments
whereof shall have been encreased during such time; and no Person
holding any Office under the United States, shall be a Member of either
House during his Continuance in Office.
Section. 7. All Bills for raising Revenue shall originate in the
House of Representatives; but the Senate may propose or concur with
amendments as on other Bills.
Every Bill which shall have passed the House of Representatives and
the Senate, shall, before it become a law, be presented to the
President of the United States: If he approve he shall sign it, but if
not he shall return it, with his Objections to that House in which it
shall have originated, who shall enter the Objections at large on their
Journal, and proceed to reconsider it. If after such Reconsideration
two thirds of that House shall agree to pass the Bill, it shall be
sent, together with the Objections, to the other House, by which it
shall likewise be reconsidered, and if approved by two thirds of that
House, it shall become a Law. But in all such Cases the Votes of both
Houses shall be determined by Yeas and Nays, and the Names of the
Persons voting for and against the Bill shall be entered on the Journal
of each House respectively. If any Bill shall not be returned by the
President within ten Days (Sundays excepted) after it shall have been
presented to him, the Same shall be a Law, in like Manner as if he had
signed it, unless the Congress by their Adjournment prevent its Return,
in which Case it shall not be a Law.
Every Order, Resolution, or Vote to which the Concurrence of the
Senate and House of Representatives may be necessary (except on a
question of Adjournment) shall be presented to the President of the
United States; and before the Same shall take Effect, shall be approved
by him, or being disapproved by him, shall be repassed by two thirds of
the Senate and House of Representatives, according to the Rules and
Limitations prescribed in the Case of a Bill.
Section. 8. The Congress shall have Power To lay and collect Taxes,
Duties, Imposts and Excises, to pay the Debts and provide for the
common Defence and general Welfare of the United States; but all
Duties, Imposts and Excises shall be uniform throughout the United
States;
To borrow Money on the credit of the United States;
To regulate Commerce with foreign Nations, and among the several
States, and with the Indian Tribes;
To establish an uniform Rule of Naturalization, and uniform Laws on
the subject of Bankruptcies throughout the United States;
To coin Money, regulate the Value thereof, and of foreign Coin, and
fix the Standard of Weights and Measures;
To provide for the Punishment of counterfeiting the Securities and
current Coin of the United States;
To establish Post Offices and post Roads;
To promote the Progress of Science and useful Arts, by securing for
limited Times to Authors and Inventors the exclusive Right to their
respective Writings and Discoveries;
To constitute Tribunals inferior to the supreme Court;
To define and punish Piracies and Felonies committed on the high
Seas, and Offences against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make
Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that
Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and
naval Forces;
To provide for calling forth the Militia to execute the Laws of the
Union, suppress Insurrections and repeal Invasions;
To provide for organizing, arming, and disciplining, the Militia,
and for governing such Part of them as may be employed in the Service
of the United States, reserving to the States respectively, the
Appointment of the Officers, and the Authority of training the Militia
according to the discipline prescribed by Congress;
To exercise exclusive Legislation in all Cases whatsoever, over
such District (not exceeding ten Miles square) as may, by Cession of
Particular States, and the Acceptance of Congress, become the Seat of
the Government of the United States, and to exercise like Authority
over all Places purchased by the Consent of the Legislature of the
State in which the Same shall be, for the Erection of Forts, Magazines,
Arsenals, dock-Yards and other needful Buildings;--And
To make all Laws which shall be necessary and proper for carrying
into Execution the foregoing Powers and all other Powers vested by this
Constitution in the Government of the United States, or in any
Department or Officer thereof.
Section. 9. The Migration or Importation of such Persons as any of
the States now existing shall think proper to admit, shall not be
prohibited by the Congress prior to the Year one thousand eight hundred
and eight, but a Tax or duty may be imposed on such Importation, not
exceeding ten dollars for each Person.
The Privilege of the Writ of Habeas Corpus shall not be suspended,
unless when in Cases or Rebellion or Invasion the public Safety may
require it.
No Bill of Attainder or ex post facto Law shall be passed.
No Capitation, or other direct, Tax shall be laid, unless in
Proportion to the Census of Enumeration herein before directed to be
taken.
No Tax or Duty shall be laid on Articles exported from any State.
No Preference shall be given by any Regulation of Commerce or
Revenue to the Ports of one State over those of another: nor shall
Vessels bound to, or from, one State, be obliged to enter, clear or pay
Duties in another.
No Money shall be drawn from the Treasury, but in Consequence of
Appropriations made by Law; and a regular Statement and Account of the
Receipts and Expenditures of all public Money shall be published from
time to time.
No Title of Nobility shall be granted by the United States: And no
Person holding any Office of Profit or Trust under them, shall, without
the Consent of the Congress, accept of any present, Emolument, Office,
or Title, of any kind whatever, from any King, Prince or foreign State.
Section. 10. No State shall enter into any Treaty, Alliance, or
Confederation; grant Letters of Marque and Reprisal; coin Money; emit
Bills of Credit; make any Thing but gold and silver Coin a Tender in
Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law
impairing the Obligation of Contracts, or grant any Title of Nobility.
No State shall, without the Consent of the Congress, lay any
Imposts or Duties on Imports or Exports, except what may be absolutely
necessary for executing it's inspection Laws: and the net Produce of
all Duties and Imposts, laid by any State on Imports or Exports, shall
be for the Use of the Treasury of the United States; and all such Laws
shall be subject to the Revision and Controul of the Congress.
No State shall, without the Consent of Congress, lay any Duty of
Tonnage, keep Troops, or Ships of War in time of Peace, enter into any
Agreement or Compact with another State, or with a foreign Power, or
engage in War, unless actually invaded, or in such imminent Danger as
will not admit of delay.
Article. II.
Section. 1. The executive Power shall be vested in a President of
the United States of America. He shall hold his Office during the Term
of four Years, and, together with the Vice President, chosen for the
same Term, be elected, as follows:
Each State shall appoint, in such Manner as the Legislature thereof
may direct, a Number of Electors, equal to the whole Number of Senators
and Representatives to which the State may be entitled in the Congress:
but no Senator or Representative, or Person holding an Office of Trust
or Profit under the United States, shall be appointed an Elector.
The Electors shall meet in their respective States, and vote by
Ballot for two Persons, of whom one at least shall not be an Inhabitant
of the same State with themselves. And they shall make a List of all
the Persons voted for, and of the Number of Votes for each; which List
they shall sign and certify, and transmit sealed to the Seat of the
Government of the United States, directed to the President of the
Senate. The President of the Senate shall, in the Presence of the
Senate and House of Representatives, open all the Certificates, and the
Votesshall then be counted. The Person having the greatest Number of
Votes shall be the President, if such Number be a Majority of the whole
Number of Electors appointed; and if there be more than one who have
such Majority, and have an equal Number of Votes, then the House of
Representatives shall immediately chuse by Ballot one of them for
President; and if no Person have a Majority, then from the five highest
on the List the said House shall in like Manner chuse the President.
But in chusing the President, the Votes shall be taken by States, the
Representatives from each State having one Vote; a quorum for this
Purpose shall consist of a Member or Members from two thirds of the
States, and a Majority of all the States shall be necessary to a
Choice. In every Case, after the Choice of the President, the Person
having the greatest Number of Votes of the Electors shall be the Vice
President. But if there should remain two or more who have equal Votes,
the Senate shall chuse from them by Ballot the Vice President.
The Congress may determine the Time of chusing the Electors, and
the Day on which they shall give their Votes; which Day shall be the
same throughout the United States.
No Person except a natural born Citizen, or a Citizen of the United
States, at the time of the Adoption of this Constitution, shall be
eligible to the Office of President; neither shall any person be
eligible to that Office who shall not have attained to the Age of
thirty five Years, and been fourteen Years a Resident within the United
States.
In Case of the Removal of the President from Office, or of his
Death, Resignation, or Inability to discharge the Powers and Duties of
the said Office, the Same shall devolve on the Vice President, and the
Congress may by Law provide for the Case of Removal, Death, Resignation
or Inability, both of the President and Vice President, declaring what
Officer shall then act as President, and such Officer shall act
accordingly, until the Disability be removed, or a President shall be
elected.
The President shall, at stated Times, receive for his Services, a
Compensation, which shall neither be encreased nor diminished during
the Period for which he shall have been elected, and he shall not
receive within that Period any other Emolument from the United States,
or any of them.
Before he enter on the Execution of his Office, he shall take the
following Oath or Affirmation:--``I do solemnly swear (or affirm) 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.''
Section. 2. The President shall be Commander in Chief of the Army
and Navy of the United States, and of the Militia of the several
States, when called into the actual Service of the United States; he
may require the Opinion, in writing, of the principal Officer in each
of the executive Departments, upon any Subject relating to the Duties
of their respective Offices, and he shall have Power to Grant Reprieves
and Pardons for Offences against the United States, except in Cases of
Impeachment.
He shall have Power, by and with the Advice and Consent of the
Senate, to make Treaties, provided two thirds of the Senators present
concur; and he shall nominate, and by and with the Advice and Consent
of the Senate, shall appoint Ambassadors, other public Ministers and
Consuls, Judges of the supreme Court, and all other Officers of the
United States, whose Appointments are not herein otherwise provided
for, and which shall be established by Law: but the Congress may by Law
vest the Appointment of such inferior Officers, as they think proper,
in the President alone, in the Courts of Law, or in the Heads of
Departments.
The President shall have Power to fill up all Vacancies that may
happen during the Recess of the Senate, by granting Commissions
whichshall expire at the End of their next Session.
Section. 3. He shall from time to time give to the Congress
Information on the State of the Union, and recommend to their
Consideration such Measures as he shall judge necessary and expedient;
he may, on extraordinary Occasions, convene both Houses, or either of
them, and in Case of Disagreement between them, with Respect to the
Time of Adjournment, he may adjourn them to such Time as he shall think
proper; he shall receive Ambassadors and other public Ministers; he
shall take Care that the Laws be faithfully executed, and shall
Commission all the Officers of the United States.
Section. 4. 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. 1. The judicial Power of the United States, shall be
vested in one supreme Court, and in such inferior Courts as the
Congress may from time to time ordain and establish. The Judges, both
of the supreme and inferior Courts, shall hold their Offices during
good Behaviour, and shall, at stated Times, receive for their Services,
a Compensation, which shall not be diminished during their Continuance
in Office.
Section. 2. The judicial Power shall extend to all Cases, in Law
and Equity, arising under this Constitution, the Laws of the United
States, and Treaties made, or which shall be made, under their
Authority;--to all Cases affecting Ambassadors, other public ministers
and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to
Controversies to which the United States shall be a Party;--to
Controversies between two or more States;--between a State and Citizens
of another State;--between Citizens of different States;--between
Citizens of the same State claiming Lands under Grants of different
States, and between a State, or the Citizens thereof, and foreign
States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and
Consuls, and those in which a State shall be Party, the supreme Court
shall have original Jurisdiction. In all the other Cases before
mentioned, the supreme Court shall have appellate Jurisdiction, both as
to Law and Fact, with such Exceptions, and under such Regulations as
the Congress shall make.
The Trial of all Crimes, except in Cases of Impeachment, shall be
by Jury; and such Trial shall be held in the State where the said
Crimes shall have been committed; but when not committed within any
State, the Trial shall be at such Place or Places as the Congress may
by Law have directed.
Section. 3. Treason against the United States, shall consist only
in levying War against them, or in adhering to their Enemies, giving
them Aid and Comfort. No Person shall be convicted of Treason unless on
the Testimony of two Witnesses to the same overt Act, or on Confession
in open Court.
The Congress shall have Power to declare the Punishment of Treason,
but no Attainder of Treason shall work Corruption of Blood, or
Forfeiture except during the Life of the Person attainted.
Article. IV.
Section. 1. Full Faith and Credit shall be given in each State to
the public Acts, Records, and judicial Proceedings of every other
State. And the Congress may by general Laws prescribe the Manner in
which such Acts, Records and Proceedings shall be proved, and the
Effect thereof.
Section. 2. The Citizens of each State shall be entitled to all
Privileges and Immunities of Citizens in the several States.
A Person charged in any State with Treason, Felony, or other Crime,
who shall flee from Justice, and be found in another State, shall on
Demand of the executive Authority of the State from which he fled, be
delivered up, to be removed to the State having Jurisdiction of the
Crime.
No Person held to Service or Labour in one State, under the Laws
thereof, escaping into another, shall, in Consequence of any Law or
Regulation therein, be discharged from such Service or Labour, but
shall be delivered up on Claim of the Party to whom such Service or
Labour may be due.
Section. 3. New States may be admitted by the Congress into this
Union; but no new State shall be formed or erected within the
Jurisdiction of any other State; nor any State be formed by the
Junction of two or more States, or Parts of States, without the Consent
of the Legislatures of the States concerned as well as of the Congress.
The Congress shall have Power to dispose of and make all needful
Rules and Regulations respecting the Territory or other Property
belonging to the United States; and nothing in this Constitution shall
be so construed as to Prejudice any Claims of the United States, or of
any particular State.
Section. 4. The United States shall guarantee to every State in
this Union a Republican Form of Government, and shall protect each of
them against Invasion; and on Application of the Legislature, or of the
Executive (when the Legislature cannot be convened) against domestic
Violence.
Article. V.
The Congress, whenever two thirds of both Houses shall deem it
necessary, shall propose Amendments to this Constitution, or, on the
Application of the Legislatures of two thirds of the several States,
shall call a Convention for proposing Amendments, which, in either
Case, shall be valid to all Intents and Purposes, as Part of this
Constitution, when ratified by the Legislatures of three fourths of the
several States, or by Conventions in three fourths thereof, as the one
or the other Mode of Ratification may be proposed by the Congress;
Provided that no Amendment which may be made prior to the Year One
thousand eight hundred and eight shall in any Manner affect the first
and fourth Clauses in the Ninth Section of the first Article; and that
no State, without its Consent, shall be deprived of its equal Suffrage
in the Senate.
Article. VI.
All Debts contracted and Engagements entered into, before the
Adoption of this Constitution, shall be as valid against the United
States under this Constitution, as under the Confederation.
This Constitution, and the Laws of the United States which shall be
made in Pursuance thereof; and all Treaties made, or which shall be
made, under the Authority of the United States, shall be the supreme
Law of the Land; and the Judges in every State shall be bound thereby,
anyThing in the Constitution or Laws of any state to the Contrary
notwithstanding.
The Senators and Representatives before mentioned, and the Members
of the several State Legislatures, and all executive and judicial
Officers, both of the United States and of the several States, shall be
bound by Oath or Affirmation, to support this Constitution; but no
religious Test shall ever be required as a Qualification to any Office
or public Trust under the United States.
Article. VII.
The Ratification of the Conventions of nine States, shall be
sufficient for the Establishment of this Constitution between the
States so ratifying the same.
Done in Convention by the Unanimous Consent of the States present
the Seventeenth Day of September in the Year of our Lord one thousand
seven hundred and Eighty seven and of the Independence of the United
States of America the Twelfth. In witness whereof we have hereunto
subscribed our Names,
G+. Washington--Presidt.
and deputy from Virginia
New Hampshire
John Langdon
Nicholas Gilman
Massachusetts
Nathaniel Gorham
Rufus King
Connecticut
Wm. Saml. Johnson
Roger Sherman
New York
Alexander Hamilton
New Jersey
Wil: Livingston
David Brearley
Wm. Paterson
Jona: Dayton
Pennsylvania
B Franklin
Thomas Mifflin
Robt Morris
Geo. Clymer
Thos. FitzSimons
Jared Ingersoll
James Wilson
Gouv Morris
Delaware
Geo: Read
Gunning Bedford jun
John Dickinson
Richard Bassett
Jaco: Broom
Maryland
James McHenry
Dan of St. Thos. Jenifer
Danl Carroll
Virginia
John Blair--
James Madison Jr.
North Carolina
Wm. Blount
Richd. Dobbs Spaight
Hu Williamson
South Carolina
J. Rutledge
Charles Cotesworth Pinckney
Charles Pinckney
Pierce Butler
Georgia
William Few
Abr Baldwin
Attest William Jackson Secretary
In Convention Monday, September 17th 1787.
Present
The States of
New Hampshire, Massachusetts, Connecticut, Mr. Hamilton from New York,
New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina,
South Carolina and Georgia.
Resolved,
That the preceeding Constitution be laid before the United States
in Congress assembled, and that it is the Opinion of this Convention,
that it should afterwards be submitted to a Convention of Delegates,
chosen in each State by the People thereof, under the Recommendation of
its Legislature, for their Assent and Ratification; and that each
Convention assenting to, and ratifying the Same, should give Notice
thereof to the United States in Congress assembled. Resolved, That it
is the Opinion of this Convention, that as soon as the Conventions of
nine States shall have ratified this Constitution, the United States in
Congress assembled should fix a Day on which Electors should be
appointed by the States which shall have ratified the same, and a Day
on which the Electors should assemble to vote for the President, and
the Time and Place for commencing Proceedings under this Constitution.
That after such Publication the Electors should be appointed, and the
Senators and Representatives elected: That the Electors should meet on
the Day fixed for the Election of the President, and should transmit
their Votes certified, signed, sealed and directed, as the Constitution
requires, to the Secretary of the United States in Congress assembled,
that the Senators and Representatives should convene at the Time and
Place assigned; that the Senators should appoint a President of the
Senate, for the sole Purpose of receiving, opening and counting the
Votes for President; and, that after he shall be chosen, the Congress,
together with the President, should, without Delay, proceed to execute
this Constitution.
By the Unanimous Order of the Convention
AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES OF AMERICA
Amendment I.
Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of grievances.
Amendment II.
A well regulated Militia, being necessary to the security of a free
State, the right of the people to keep and bear Arms, shall not be
infringed.
Amendment III.
No Soldier shall, in time of peace be quartered in any house,
without the consent of the Owner, nor in time of war, but in a manner
to be prescribed by law.
Amendment IV.
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall
not be violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.
Amendment V.
No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a Grand Jury,
except in cases arising in the land or naval forces, or in the Militia,
when in actual service in time of War or public danger; nor shall any
person be subject for the same offence to be twice put in jeopardy of
life or limb; nor shall be compelled in any criminal case to be a
witness against himself, nor be deprived of life, liberty, or property,
without due process of law; nor shall private property be taken
forpublic use, without just compensation.
Amendment VI.
In all criminal prosecutions, the accused shall enjoy the right to
a speedy and public trial, by an impartial jury of the State and
district wherein the crime shall have been committed, which district
shall have been previously ascertained by law, and to be informed of
the nature and cause of the accusation; to be confronted with the
witnesses against him; to have compulsory process for obtaining
witnesses in his favor, and to have the Assistance of Counsel for his
defence.
Amendment VII.
In Suits at common law, where the value in controversy shall exceed
twenty dollars, the right of trial by jury shall be preserved, and no
fact tried by a jury, shall be otherwise re-examined in any Court of
the United States, than according to the rules of the common law.
Amendment VIII.
Excessive bail shall not be required, nor excessive fines imposed,
nor cruel and unusual punishments inflicted.
Amendment IX.
The enumeration in the Constitution, of certain rights, shall not
be construed to deny or disparage others retained by the people.
Amendment X.
The powers not delegated to the United States by the Constitution,
nor prohibited by it to the States, are reserved to the States
respectively, or to the people.
Amendment XI.
The Judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted against
one on the United States by Citizens of another State, or by Citizens
or Subjects of any Foreign State.
Amendment XII.
The Electors shall meet in their respective states and vote by
ballot for President and Vice-President, one of whom, at least, shall
not be an inhabitant of the same state with themselves; they shall name
in their ballots the person voted for as President, and in distinct
ballots the person voted for as Vice-President, and they shall make
distinct lists of all persons voted for as President, and of all
persons voted for as Vice-President, and of the number of votes for
each, which lists they shall sign and certify, and transmit sealed to
the seat of the government of the United States, directed to the
President of the Senate;--The President of the Senate shall, in the
presence of the Senate and House of Representatives, open all the
certificates and the votes shall then be counted;--The person having
the greatest Number of votes for President, shall be the President, if
such number be a majority of the whole number of Electors appointed;
and if no person have such majority, then from the persons having the
highest numbers not exceeding three on the list of those voted for as
President, the House of Representatives shall choose immediately, by
ballot, the President. But in choosing the President, the votes shall
be taken by states, the representation from each state having one vote;
a quorum for this purpose shall consist of a member or members from
two-thirds of the states, and a majority of all the states shall be
necessary to a choice. And if the House of Representatives shall not
choose a President whenever the right of choice shall devolve upon
them, before the fourth day of March next following, then the Vice-
President shall act as President, as in the case of the death or other
constitutional disability of the President--The person having the
greatest number of votes as Vice-President, shall be the Vice-
President, if such number be a majority of the whole number of Electors
appointed, and if no person have a majority, then from the two highest
numbers on the list, the Senate shall choose the Vice-President; a
quorum for the purpose shall consist of two-thirds of the whole number
of Senators, and a majority of the whole number shall be necessary to a
choice. But no person constitutionally ineligible to the office of
President shall be eligible to that of Vice-President of the United
States.
Amendment XIII.
Section 1. Neither slavery nor involuntary servitude, except as a
punishment for crime whereof the party shall have been duly convicted,
shall exist within the United States, or any place subject to their
jurisdiction.
Section 2. Congress shall have power to enforce this article by
appropriate legislation.
Amendment XIV.
Section 1. All persons born or naturalized in the United States and
subject to the jurisdiction thereof, are citizens of the United States
and of the State wherein they reside. No State shall make or enforce
any law which shall abridge the privileges or immunities of citizens of
the United States; nor shall any State deprive any person of life,
liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws.
Section 2. Representatives shall be apportioned among the several
States according to their respective numbers, counting the whole number
of persons in each State, excluding Indians not taxed. But when the
right to vote at any election for the choice of electors for President
and Vice President of the United States, Representatives in Congress,
the Executive and Judicial officers of a State, or the members of the
Legislature thereof, is denied to any of the male inhabitants of such
State, being twenty-one years of age, and citizens of the United
States, or in any way abridged, except for participation in rebellion,
or other crime, the basis of representation therein shall be reduced in
the proportion which the number of such male citizens shall bear to the
whole number of male citizens twenty-one years of age in such State.
Section 3. No person shall be a Senator or Representative in
Congress, or elector of President and Vice President, or hold any
office, civil or military, under the United States, or under any State,
who, having previously taken an oath, as a member of Congress, or as an
officer of the United States, or as a member of any State legislature,
or as an executive or judicial officer of any State, to support the
Constitution of the United States, shall have engaged in insurrection
or rebellion against the same, or given aid or comfort to the enemies
thereof. But Congress may by a vote of two-thirds of each House, remove
such disability.
Section 4. The validity of the public debt of the United States,
authorized by law, including debts incurred for payment of pensions and
bounties for services in suppressing insurrection or rebellion, shall
not be questioned. But neither the United States nor any State shall
assume or pay any debt or obligation incurred in aid of insurrection or
rebellion against the United States, or any claim for the loss or
emancipation of any slave; but all such debts, obligations and claims
shall be held illegal and void.
Section 5. The Congress shall have power to enforce, by appropriate
legislation, the provisions of this article.
Amendment XV.
Section 1. The right of citizens of the United States to vote shall
not be denied or abridged by the United States or by any State on
account of race, color, or previous condition of servitude.
Section 2. The Congress shall have power to enforce this article by
appropriate legislation.
Amendment XVI.
The Congress shall have power to lay and collect taxes on incomes,
from whatever source derived, without apportionment among the several
States, and without regard to any census or enumeration.
Amendment XVII.
The Senate of the United States shall be composed of two Senators
from each State, elected by the people thereof, for six years; and each
Senator shall have one vote. The electors in each State shall have the
qualifications requisite for electors of the most numerous branch of
the State legislatures.
When vacancies happen in the representation of any State in the
Senate, the executive authority of such State shall issue writs of
election to fill such vacancies: Provided, That the legislature of any
State may empower the executive thereof to make temporary appointments
until the people fill the vacancies by election as the legislature may
direct.
This amendment shall not be so construed as to affect the election
or term of any Senator chosen before it becomes valid as part of the
Constitution.
Amendment XVIII.
Section 1. After one year from the ratification of this article the
manufacture, sale, or transportation of intoxicating liquors within,
the importation thereof into, or the exportation thereof from the
United States and all territory subject to the jurisdiction thereof for
beverage purposes is hereby prohibited.
Section 2. The Congress and the several States shall have
concurrent power to enforce this article by appropriate legislation.
Section 3. This article shall be inoperative unless it shall have
been ratified as an amendment to the Constitution by the legislatures
of the several States, as provided in the Constitution, within seven
years from the date of the submission hereof to the States by the
Congress.
[Note.--The Eighteenth Amendment was ratified January 16, 1919. It
was repealed by the Twenty-First Amendment, December 5, 1933.]
Amendment XIX.
The right of citizens of the United States to vote shall not be
denied or abridged by the United States or by any State on account of
sex.
Congress shall have power to enforce this article by appropriate
legislation.
Amendment XX.
Section 1. The terms of the President and Vice President shall end
at noon on the 20th day of January, and the terms of Senators and
Representatives at noon on the 3d day of January, of the years in which
such terms would have ended if this article had not been ratified; and
the terms of their successors shall then begin.
Section 2. The Congress shall assemble at least once in every year,
and such meeting shall begin at noon on the 3d day of January, unless
they shall by law appoint a different day.
Section 3. If, at the time fixed for the beginning of the term of
the President, the President elect shall have died, the Vice President
elect shall become President. If a President shall not have been chosen
before the time fixed for the beginning of his term, or if the
President elect shall have failed to qualify, then the Vice President
elect shall act as President until a President shall have qualified;
and the Congress may by law provide for the case wherein neither a
President elect nor a Vice President elect shall have qualified,
declaring who shall then act as President, or the manner in which one
who is to act shall be selected, and such person shall act accordingly
until a President or Vice President shall have qualified.
Section 4. The Congress may by law provide for the case of the
death of any of the persons from whom the House of Representatives may
choose a President whenever the right of choice shall have devolved
upon them, and for the case of the death of any of the persons from
whom the Senate may choose a Vice President whenever the right of
choice shall have devolved upon them.
Section 5. Sections 1 and 2 shall take effect on the 15th day of
October following the ratification of this article.
Section 6. This article shall be inoperative unless it shall have
been ratified as an amendment to the Constitution by the legislatures
of three-fourths of the several States within seven years from the date
of its submission.
Amendment XXI.
Section 1. The eighteenth article of amendment to the Constitution
of the United States is hereby repealed.
Section 2. The transportation or importation into any State,
Territory, or possession of the United States for delivery or use
therein of intoxicating liquors, in violation of the laws thereof, is
hereby prohibited.
Section 3. This article shall be inoperative unless it shall have
been ratified as an amendment to the Constitution by conventions in the
several States, as provided in the Constitution, within seven years
from the date of the submission hereof to the States by the Congress.
Amendment XXII.
Section 1. No person shall be elected to the office of the
President more than twice, and no person who has held the office of
President, or acted as President, for more than two years of a term to
which some other person was elected President shall be elected to the
office of the President more than once. But this Article shall not
apply to any person holding the office of President, when this Article
was proposed by the Congress, and shall not prevent any person who may
be holding the office of President, or acting as President, during the
term within which this Article becomes operative from holding the
office of President or acting as President during the remainder of such
term.
Section 2. This article shall be inoperative unless it shall have
been ratified as an amendment to the Constitution by the legislatures
of three-fourths of the several States within seven years from the date
of its submission to the States by the Congress.
Amendment XXIII.
Section 1. The District constituting the seat of Government of the
United States shall appoint in such manner as the Congress may direct:
A number of electors of President and Vice President equal to the
whole number of Senators and Representatives in Congress to which the
District would be entitled if it were a State, but in no event more
than the least populous State; they shall be in addition to those
appointed by the States, but they shall be considered, for the purposes
of the election of President and Vice President, to be electors
appointed by a State; and they shall meet in the District and perform
such duties as provided by the twelfth article of amendment.
Section 2. The Congress shall have power to enforce this article by
appropriate legislation.
Amendment XXIV.
Section 1. The right of citizens of the United States to vote in
any primary or other election for President or Vice President, for
electors for President or Vice President, or for Senator or
Representative in Congress, shall not be denied or abridged by the
United States or any State by reason of failure to pay any poll tax or
other tax.
Section 2. The Congress shall have power to enforce this article by
appropriate legislation.
Amendment XXV.
Section 1. In case of the removal of the President from office or
of his death or resignation, the Vice President shall become President.
Section 2. Whenever there is a vacancy in the office of the Vice
President, the President shall nominate a Vice President who shall take
office upon confirmation by a majority vote of both Houses of Congress.
Section 3. Whenever the President transmits to the President pro
tempore of the Senate and the Speaker of the House of Representatives
has written declaration that he is unable to discharge the powers and
duties of his office, and until he transmits to them a written
declaration to the contrary, such powers and duties shall be discharged
by the Vice President as Acting President.
Section 4. Whenever the Vice President and a majority of either the
principal officers of the executive departments or of such other body
as Congress may by law provide, transmit to the President pro tempore
of the Senate and the Speaker of the House of Representatives their
written declaration that the President is unable to discharge the
powers and duties of his office, the Vice President shall immediately
assume the powers and duties of the office as Acting President.
Thereafter, when the President transmits to the President pro
tempore of the Senate and the Speaker of the House of Representatives
has written declaration that no inability exists, he shall resume the
powers and duties of his office unless the Vice President and a
majority of either the principal officers of the executive department
or of such other body as Congress may by law provide, transmit within
four days to the President pro tempore of the Senate and the Speaker of
the House of Representatives their written declaration that the
President is unable to discharge the powers and duties of his office.
Thereupon Congress shall decide the issue, assembling within forty-
eight hours for that purpose if not in session. If the Congress, within
twenty-one days after receipt of the latter written declaration, or, if
Congress is not in session, within twenty-one days after Congress is
required to assemble, determines by two-thirds vote of both Houses that
the President is unable to discharge the powers and duties of his
office, the Vice President shall continue to discharge the same as
Acting President; otherwise, the President shall resume the powers and
duties of his office.
Amendment XXVI
Section 1. The right of citizens of the United States, who are
eighteen years of age or older, to vote shall not be denied or abridged
by the United States or by any State on account of age.
Section 2. The Congress shall have power to enforce this article by
appropriate legislation.
Amendment XXVII
No law varying the compensation for the services of the Senators
and Representatives shall take effect, until an election of
Representatives shall have intervened.
Chairman Hyde. Thank you.
And now I will try again. We will have a half-hour recess.
Please come back at the end of a half-hour.
Chairman Hyde. The committee will come to order.
We are very pleased to welcome Mr. Charles F. C. Ruff,
Counsel to the President, a very distinguished member of the
bar, as our final witness. Mr. Ruff became White House Counsel
last year and is a longtime and widely respected member of
Washington's legal community as well as the rest of the
community. He was the U.S. Attorney in the District of Columbia
from 1979 until 1982 and the fourth and final Watergate special
prosecutor.
Welcome, Mr. Ruff. Would you please raise your right hand?
[Witness sworn.]
Chairman Hyde. Thank you. Let the record reflect the
witness answered the question in the affirmative.
Mr. Ruff, you are recognized for 2 hours to make a
statement.
TESTIMONY OF CHARLES F.C. RUFF, COUNSEL TO THE PRESIDENT
Mr. Ruff. Thank you, Mr. Chairman. I probably will not use
all of that time because, very candidly, having watched these
proceedings with interest for the last 2 days, it seems to me
that perhaps the most productive thing I can do and my
colleagues can do is to respond to the questions of this
committee. But I will, with the Chair's permission, speak for
awhile about some of the issues that I think are important for
all of us to understand.
Mr. Chairman, Congressman Conyers, members of the
committee, as Counsel to the President, I appear before you
today on behalf of the person who under our Constitution has
twice been chosen by the people to head one of the three
coordinate branches of government. Necessarily, I appear also
on behalf of the man whose conduct has brought us to what for
all of us is this unwelcome moment. Neither the President nor
anyone speaking on his behalf will defend the morality of his
personal conduct. The President had a wrongful relationship
with Monica Lewinsky. He violated his sacred obligations to his
wife and daughter. He misled his family, his friends, his
colleagues and the public, and in doing so he betrayed the
trust placed in him not only by his loved ones but by the
American people.
The President knows that what he did was wrong. He has
admitted it. He has suffered privately and publicly. He is
prepared to accept the obloquy that flows from his misconduct
and he recognizes that, like any citizen, he is and will be
subject to the rule of law. But, Mr. Chairman, the President
has not committed a high crime or misdemeanor. His conduct,
although morally reprehensible, does not warrant impeachment.
It does not warrant overturning the mandate of the American
electorate.
If statements in this body and to the press accurately
reflect what is in your minds and hearts, many in the Majority
have already reached a verdict. I hope that for some that is
not true. Indeed, if there is only one whose mind remains open,
I will do my best to respond to your questions, to address your
concerns, and to try to convince you that your constitutional
duty, your historical duty, and your duty to the people you
represent, is to vote against any article of impeachment.
In the nature of this extraordinary proceeding, no one can
claim the ability to reach the absolute right answer. No one
can claim to be free from doubt. But when all the questions
have been asked and answered, when all the debate has ended,
and when you look within yourselves and ask should I vote to
exercise the most awesome power I am granted in our system of
government, I have no doubt that you will reach your decisions
on the merits and, I hope, unswayed by mere partisanship.
This committee has heard much in the last 2 days and in
prior hearings on the subject of what the Founding Fathers
meant to include within the term ``high crimes and
misdemeanors,'' and I will not even attempt to engage in the
kind of scholarly discourse that has filled this room over the last
days and weeks. But I suggest to you that although there are
differences of opinion which have been voiced, the weight of scholarly
and historical teaching is on one side: nothing the President did falls
within the constitutional definition of an impeachable offense.
Yes, there were witnesses who disagreed; enough to give
anyone who wishes it some intellectual cover. But I suggest to
you that any fair-minded observer must conclude that the great
weight of the historical and scholarly evidence leads to the
conclusion that in order to have committed an impeachable
offense, the President must have acted to subvert our system of
government. And members of the committee, that did not happen.
There has been a tendency, I think, in the debate over
standards, to conflate some of the issues in what may not be a
very helpful fashion. Let me say that there is one thing that I
think all would agree on, and that is that the framers made it
clear in their debate and in the drafting of article II,
section 4, that they intended to place substantial constraints
on the use of the impeachment power. They used language flowing
directly from the history of impeachments in England that was
clearly designed to reach conduct that involved abuse of
official power.
Within those constraints, however, and quite rightly, the
framers did not and could not anticipate the specific
circumstances that might give rise even to the consideration of
impeachment. Instead, they made it clear that in the nature of
our republican form of government, impeachment of the President
was not to be the equivalent of an expression of disagreement,
but was to be reserved for only the most serious matters that
threaten the very fabric of our political structure.
It is not enough to say, however, that the issue must be
decided on a case-by-case basis, for that suggests that what is
impeachable is to be left to the unfettered judgment of each
Congress. Even if, as the events of 1974 and the events of 1998
reveal, it is not possible to set down rules that will govern
every case, it is possible to set down principles, and we must.
And those principles must be faithful to the intent of the
framers and, most importantly, must be consistent with the form
of government we live under and the delicate relationship
between the legislative branch and the executive branch that is
the hallmark of that government.
The debate over whether misconduct or even criminal conduct
arises out of personal rather than official matters is in some
sense misguided, I think. One can certainly conceive of acts
arising out of a purely personal matter that would be
presumptively impeachable, bribery of a judge to rule in the
President's favor in some private matter, but that is not to
say that you should ignore the roots from which a President's
misconduct stems. If he were to perjure himself about some
serious official act he had taken, one might find that he had
abused his office. On the other hand, if perjury arose in a
purely personal setting, one could sensibly ask, indeed should
sensibly ask, whether--no matter how serious such a violation
may be when viewed in the abstract, he has demonstrated an
inability to continue to lead the Nation, which must be the
test for each of you.
One need only look to something that has been discussed at
great length before this committee, and that is the decision in
1974, even in the face of very strong evidence, not to return
an article of impeachment based on President Nixon's alleged
tax evasion, to test for yourself whether there indeed is a
dividing line of constitutional importance between misconduct
arising out of official matters and misconduct arising out of
personal matters. But the core principle governing your
deliberation should be that the only conduct that merits the
drastic remedy of impeachment is that which subverts our system
of government or renders the President unfit or unable to
govern.
Such a standard impresses on all of us the recognition that
impeachment is indeed a grave act of extraordinary proportions,
to be taken only when no other response is adequate to preserve
the integrity of government
Now you must, of course, as you all recognize far better
than I, not set so high a bar as to make it impossible to act
when our system of government is threatened, but you must not
set so low a bar that you encourage future Congresses to set
foot on this perilous path when the matter is uncertain and
there is a danger that partisan forces alone will tip the
balance. We should always look to the political process to deal
with officials who breach their public trust. Impeachment must
be the last resort.
Now, I want to talk very briefly about the record before
you, because there has been much discussion on that subject.
Yesterday we were chastised by some members of the Majority for
not bringing forward so-called fact witnesses, as though
somehow the burden was on us to bring that kind of evidence
before the committee.
Now, I admit that I come to this exercise with the
instincts of a former prosecutor and a former defense lawyer,
but I really found that criticism to turn the world I know on
its head.
This committee has determined in its wisdom simply to
accept at face value all of the conclusions reached in the
Independent Counsel's referral and to look to whatever backup
information was provided in support of those conclusions. But
with that decision, I suggest to you, comes the obligation to
look into that record and to ask what the witnesses really
said.
It seemed odd to me, as I listened to that criticism, that
the committee should accept a predigested conclusion and then
turn to the accused and say, bring us witnesses to convince us
we were wrong.
What we tried to do in the submission that we gave to the
committee yesterday, and what I will do much more briefly
today, is to show you that your premise is wrong; that the very
record on which you rely does not support the conclusion it
purports to reach.
Some time ago, when Independent Counsel Starr testified, my
colleague, Mr. Kendall, asked him whether he had ever met any
of the witnesses on whom his referral relies. We asked that not
out of some desire to launch an ad hominem attack on Mr. Starr,
but because it seemed to us that some personal sense of the
witnesses on whom the referral was relying, in recommending so
grave a matter as the impeachment of the President, was
important. It was important for him in making his judgments and
important for you in making your judgments about the
reliability of the evidence before you and the reliability of
the Independent Counsel's recommendation.
You must, I think, also ask as you look to that record and
test whether it is adequate for your purposes, did the
Independent Counsel come to its task with the same sense of
constitutional gravity that must guide these proceedings? Was there
anyone in the Office of Independent Counsel who questioned the
credibility of particular testimony or asked whether all the relevant
facts were being considered?
Even if occasionally heated in its rhetoric, this
committee's debates do lend to this process some of the value
of the adversarial give-and-take that trial lawyers believe is
important in seeking the truth. But none of that healthy
tension between adversaries was brought to bear on the
witnesses who appeared before the grand jury.
The members here are left with essentially the cold text of
the referral and its supporting materials, followed by--and I
truly do not mean to speak unkindly of the Independent
Counsel--a recitation of that text by a witness who was, in all
candor, equally impervious to any efforts to reach behind the
surface and touch the reality of the events that are at issue
here.
In our memorandum submitted to you yesterday, we attempted
to set out a point-by-point rebuttal of the 11 grounds advanced
by the Independent Counsel. We even, and I am sorry,
Congressman Inglis--he doesn't appear to be here--set out some
facts, and I will talk about those.
Today I want to touch only on some of the issues raised in
the referral for the purposes of pointing out for the committee
its principal deficiencies and to highlight those areas in
which myth appears to have replaced fact in the committee's
debates and in public discourse.
I want to begin by coming to grips directly with the issue
that I think has been the principal focus of the committee's
attention and concern: the President's grand jury testimony. We
take this as our starting point to address the concerns oft-
stated by Congressman Graham and others, whether if the
President were proved to have committed perjury before the
grand jury, such conduct would, without more, merit
impeachment.
Mr. Chairman, members of the committee, we firmly believe,
first, that the President testified truthfully before the grand
jury; but, second, that no matter what judgment you reach about
that testimony, there could be no basis for impeachment on any
reasonable reading of the constitutional standards.
But that said, we do want to use our time today to address
the issues that appear to be most troubling to the committee,
for we recognize that only by doing so can we assist you in
performing your constitutional duties.
I need to stop here because I want to address an issue that
probably has been heard, bruited about more frequently than any
other over the course of this committee's work, and it falls
under the heading, I suppose, of legalisms.
What are they? Well, whatever they are, they have caused a
great deal of pain to those of us engaged in trying to
represent the President over the last many months. I and my
fellow lawyers have been accused by the media and by some of
you, heaven forfend, of actually employing legalisms in
defending our client. And, Mr. Chairman, I have to plead guilty
on my behalf and on behalf of every lawyer who ever argued some
point of law or nuanced fact to establish his client's
innocence. But I am worried here not about whether lawyers will
ultimately recover from these attacks, I am worried that our
sometimes irresistible urge to practice our profession will
stand in the way of securing a just result in this very grave
proceeding for this very special client.
However, I do suggest that it is not legalistic to point
out that the President did not say what some accuse him of
saying. It is not legalistic to point out that a witness did
not say what some rely on her testimony to establish. It is not
legalistic to point out that a witness was asked poorly framed
or ambiguous questions, and it is not legalistic to argue that
a witness' answer was technically true, even if not complete.
Yet, however proper it may be to make those arguments in a
proceeding such as this one and for a witness such as the
President, there is a risk that they will get in the way of
answering the ultimate question: Did the President do something
so wrong and so destructive of his constitutional capacity to
govern that he should be impeached?
Even if we were successful, as I am confident we would be,
in defending the President in a courtroom, that would not
suffice to answer that question. For it is within your power,
even if hesitantly exercised, to decide that even though there
is insufficient proof to establish that the President committed
perjury, he nonetheless should be impeached. But I suggest to
you that even then, our oft-criticized legalisms are relevant
to you. They are relevant because they were not just dreamed up
by scheming lawyers looking for a good closing argument.
Instead, they reflect the judgments of lawyers, judges and,
yes, legislators through the centuries, that we must take
special care when we seek to accuse a witness of having
violated his oath.
Among the protections that the law has created, including
laws enacted by this body, are the requirement that the witness
intentionally testified falsely; that his testimony be
material; that the question not be ambiguous; that the burden
is on the questioner to ask the right question; and that the
witness may be truthful but nonetheless misleading, without
having violated the law. The Supreme Court has so told us.
It cannot be the rule, to add to an old phrase, that close
only counts in horseshoes, hand grenades and perjury. The
Supreme Court in Bronston made it clear that our adversarial
system requires that we take great care when we ask whether a
witness has perjured himself. It made clear that we rely
largely on the adversarial process, particularly in civil
cases, to test the truthfulness of witness testimony; and we do
not, as the panel preceding me I think made eminently clear,
look to prosecutors to police the civil litigation system.
What does it really mean to say that these are legalisms?
Well, granting the system's belief in the sanctity of the oath,
which no one would deny, they reflect the judgment of society,
of the legislature, of the judiciary, that those who would
charge perjury must bear a heavy burden.
The Office of Independent Counsel would have the committee
believe that in three respects the President committed perjury
in his testimony before the grand jury: first, by stating that
his relationship with Miss Lewinsky began in February 1996
rather than November 1995; second, by stating that he believed
that a particular form of intimate activity was not covered by
the definition of sexual relations approved by Judge Wright in
the Jones case; and third, by stating that he had not engaged
in specific types of sexual conduct, theoretically in order to
conform his testimony to his civil deposition.
Now as to the first of these, you must begin your
consideration with the proposition that the President
acknowledged to the grand jury that he did have a wrongful
intimate relationship with Ms. Lewinsky. What then might have
led him to change by 3 months the date on which that
relationship began? Well, the referral surmises, it must have
been because although the President was prepared to make the
most devastating admission of misconduct any husband and father
could imagine, he still wanted to have the grand jury believe
that when their relationship began, Ms. Lewinsky was a 22-year-
old employee rather than a 22-year-old intern.
Well, putting aside for the moment the fact that under no
circumstances would any reasonable prosecutor or any judge or
jury find such a discrepancy material, there is absolutely no
proof of any such purpose on the President's part. Not one
witness, including Ms. Lewinsky, even suggested such a thing.
The only proof the referral offers is a mischaracterization
of the record; the contention that the President's concern
about Ms. Lewinsky--about Ms. Lewinsky's badge reflected
concern about her status, that is as an intern, rather than as
was clearly the case, her ability to move freely in the West
Wing of the White House. Other than this misleading
representation, we are left only with the referral's bare
speculation, clearly contrived simply in order to find some
fine point in the President's testimony that it could trumpet
as false.
As to the second of the three perjury allegations, the
Independent Counsel would have the committee find that the
President testified falsely, because the Independent Counsel
has concluded that the President's statement of his own belief
in the meaning of the definition of sexual relations in the
Jones case is not credible.
At least here the Independent Counsel is candid enough to
acknowledge that he has no evidentiary basis for that
conclusion; the referral simply states it to be the case and
moves on.
I suggest that those of you who have been prosecutors know
as a matter of practical experience, and those of you who have
not been prosecutors or even lawyers know as a matter of common
sense, that no one could or would ever be charged with perjury
because the prosecutor did not find credible a witness'
statement of his personal belief, much less his personal belief
about the meaning of a definition used in a civil deposition.
And so we come to the third. The referral alleges that the
President lied when he admitted having one form of sexual
contact with Ms. Lewinsky but denied having certain other forms
of contact, as the Independent Counsel would have it, in order
to make his grand jury testimony consistent with the definition
under which he testified in the Jones deposition.
We will not drag the committee into the salacious muck that
fills the referral. Instead, let each member assume that Ms.
Lewinsky's version of the events is correct; and then ask, am I
prepared to impeach the President because, after having
admitted having engaged in egregiously wrongful conduct, he
falsely described the particulars of that conduct?
Let each member even assume that the President testified as
he did because he did not want to admit that in a civil
deposition, confronted with a narrowly, even oddly, framed
definition, he had succeeded in misleading opposing counsel;
and then ask yourself, am I prepared to impeach the President
for that?
The answer must be no.
Does it not speak volumes that after 4 hours of hostile
interrogation by prosecutors armed with information from
countless documents and witnesses, the referral is able to
identify only these three instances that even it is prepared to
argue constitute false testimony?
The Independent Counsel had the opportunity to press the
President on every point of his Jones testimony that they might
have thought was false or misleading. They were experienced
cross-examiners, unfettered by judicial supervision, and this
is what they accomplished.
When one scrapes away all the rhetoric, what one finds is
this: The referral alleges that the President lied to a grand
jury about the details of sexual conduct, not to conceal his
wrongful relationship with a 22-year-old employee, but to avoid
admitting that in a civil deposition, he had misled plaintiff's
counsel about an embarrassing matter that the Court ultimately
found immaterial.
Now, I do not in any sense, and nor would any of my
colleagues, suggest that we take false testimony lightly. We
are, as most of you are, members of a profession that values
truthful testimony. What we do suggest is that if you were to
conclude as to this aspect of their relationship that Ms.
Lewinsky was telling you the truth and the President was not,
you might know--no, you should conclude that his conduct was
wrong, deserving of severe condemnation; but you could not in
good conscience and consistent with your constitutional
responsibility conclude that the President should be impeached.
Surely the same result must follow to the extent that the
referral alleges that the President committed perjury in the
Jones deposition.
As any fair reading of the deposition must conclude, the
questions were oddly and vaguely framed. The Jones counsel
didn't follow up when they had the opportunity. Counsel were
indeed invited, by the President's lawyer, to ask specific
detailed questions and declined to do so. They decided to
proceed on the basis of a truncated, artificial definition of
sexual relations.
The President has said that he made no effort to be
helpful, that he did not want to reveal his relationship,
understandably. His answers were frequently evasive and
incomplete, as my colleague, Mr. Craig said yesterday, even
maddening. They were misleading but they were not perjurious
and, a fortiori, they cannot be the basis for an impeachment.
Now this conclusion is, in my view, only fortified by an
assessment of the remaining allegations in the OIC referral.
The President did not obstruct justice. He did not tamper with
witnesses. He did not abuse the powers of his office. The
referral's overreaching claims of impropriety are themselves
but an attempt to lend artificial weight to allegations of
perjury that, standing alone, Independent Counsel knew could
not support the result for which he has been such a zealous
advocate.
Let me examine at least part of the record that is before
you. If the committee is going to rely on the testimony before
it, contained in the submissions from the Independent Counsel,
it must take all of that testimony. It cannot accept the
Independent Counsel's picking and choosing. It cannot accept
the Independent Counsel's assessment of the credibility of
witnesses.
Let me just touch on two examples that demonstrate,
Ibelieve, how the committee can be misled by the referral into assuming
a reality that does not exist.
First is the Independent Counsel's charge that the
President conspired with Ms. Lewinsky to conceal gifts he had
given her. The central events, as the Independent Counsel has
described them, are these: that on Sunday, December 28th, 1997,
Ms. Lewinsky visited the President at the White House. The
Independent Counsel alleges they discussed the fact--in quotes,
they discussed the fact that she had received a subpoena to
testify in the Jones case and to produce any gifts that she
had.
The President then gave Ms. Lewinsky a number of gifts
because he believed she was moving to New York and it was
Christmas time.
She went back to her apartment and sometime thereafter, on
that day, according to the Independent Counsel, Betty Currie,
the President's secretary, called and told Ms. Lewinsky that
she understood that Ms. Lewinsky had something for her. Ms.
Currie then drove to Ms. Lewinsky's apartment, took the gifts
from her and put them under her bed. That is the essence of the
Independent Counsel's description as it tries to deal with
whether this constituted an obstruction of justice.
Now, the introduction to this issue as offered by
Independent Counsel when he testified before you was that the
President and Monica Lewinsky on December 28th, quote, met and
discussed what should be done with the gifts subpoenaed from
Ms. Lewinsky.
If you look at the record before you, I suggest to you you
will find little or nothing to support that conclusion. For one
thing, to the extent one is trying to determine whether indeed
the President of the United States engaged in some obstruction
of justice by urging or causing the concealment of evidence in
the Jones case, begin by noting that there is not one single
suggestion anywhere in any testimony that the President
suggested, brought up, hinted at the notion of Ms. Lewinsky's
concealing these gifts, in any manner.
Note as well that there is not one iota of proof that the
President ever even mentioned Betty Currie in the context of
this gift discussion. Note as well that Monica Lewinsky gave at
least 10, and there may be more, versions of this event. The
Independent Counsel chose one, the one the Independent Counsel
thought was most injurious, most reflective of what that office
believed to have been improper conduct. They don't tell you
about the other nine. They don't tell you about all of the ones
in which Ms. Lewinsky doesn't mention the President saying
anything to her or, at worst, says, uhm, I will think about it.
Doesn't mention the ones in which the story they want to tell
is not reflected in their critical witness' testimony.
And if you move to the issue of who triggered the picking
up of the gifts, you face a comparable problem. According to
what I have to say is a simplistic summation by the Office of
Independent Counsel, it is easy. Betty Currie called Monica
Lewinsky; said, the President tells me you have got something
for me to pick up, or I understand that you have something for
me to pick up; all of which fits neatly into a theory that it
all must have happened at the President's instigation.
The problem is, Betty Currie says she never had such a
conversation with the President. Betty Currie says, Monica
Lewinsky called me. The President says he never had such a
conversation with Betty Currie; didn't know anything about
Betty Currie going to pick up gifts.
Where is that? Where is that in the Independent Counsel's
assessment of its case?
Indeed, presumably it is the Independent Counsel's theory
that the reason for this transfer of the gifts from Monica
Lewinsky to Betty Currie had directly to do with the Jones
subpoena. The problem with that is that what Betty Currie says
about her conversations with Monica Lewinsky is nothing about
Jones; references to people asking about the gifts and, in
particular, a reporter, Michael Isikoff. Indeed, it is
interesting that, in possession of Betty Currie's description
of that telephone call, that conversation, the Independent
Counsel never even asked Monica Lewinsky, is that right? Did
you really say to Betty Currie that the reason you wanted to
get rid of these gifts was because people were asking you,
including Michael Isikoff? Never even asked her the question,
much less put it before this committee.
But let me point not to conflicting testimony, one version
by Ms. Lewinsky, another version by Ms. Currie. Let me point to
the actual events about which there is no conflict on December
28th. On that day, the President gave gifts to Ms. Lewinsky.
The Independent Counsel would have this committee believe that
on the very day in which the President and Ms. Lewinsky, and
maybe Betty Currie, are conspiring to get rid of the gifts that
she already had, the President added to the pile. That's very
strange conduct for a bunch of conspirators. Very strange
conduct.
Why would the President, so concerned about the possibility
that she might have to turn over gifts, give her a bunch and
encourage her to send them all to Betty Currie on the same day?
I don't think there is a sensible answer to that question;
certainly not one offered by the Independent Counsel.
Let me just briefly suggest to you that a similar analysis
on the issue of the job search leads to the same result. The
referral would have you believe that there was an inextricable
link between the assistance given to Monica Lewinsky in
searching for a job and her role in the Jones case, either as a
witness or in connection with her affidavit. It does so,
although I must say it does admit that there is only
circumstantial evidence to support the theory, by offering a
chronology that essentially focuses only on the events of late
December and January. And indeed if you look at pages 183 to
184 of the referral, you will see that they talk about what
happens on January 5th, Monica Lewinsky declines the U.N. job;
January 7th, Monica Lewinsky signs the affidavit and Vernon
Jordan informs the President that the affidavit has been
signed. January 8th, the very next day, Ms. Lewinsky is
interviewed by MacAndrews & Forbes, on Vernon Jordan's
recommendation. Shortly thereafter, after it is reported that
that interview did not go very well, Vernon Jordan calls Ron
Perlman, and ultimately Ms. Lewinsky is reinterviewed and
offered a job.
What could possibly be more incriminating?
Well, you might want to know, as I am sure you do if you
have done your homework and you have looked at this record,
that Monica Lewinsky was looking for a job months before any of
this happened. Mainly, candidly, she wanted a job in the White
House; spent a lot of the spring of 1997 looking for a job in
the White House.
Now, there was one person who I guarantee you from personal
experience in the last 2 years could have gotten her a job in the White
House. That's the President of the United States. It didn't happen;
never pushed the button, never called anybody and said put her back in
legislative affairs, give her a job with them. It didn't happen.
Strange.
Indeed, if you look at the record you will see that the
President gave only limited assistance to Ms. Lewinsky in her
job search, never put any pressure on anybody. Vernon Jordan
has helped a lot of people in this town and he helped Monica
Lewinsky, and he didn't do it because she was a witness in the
Jones case or because she was going to file an affidavit.
Monica Lewinsky told the President as early as July that
she wanted to move to New York. The reason for that is she had
been told by her friend, Linda Tripp, that she wasn't going to
get a job in the White House. Failing that, New York looked
good to her.
When the issue of the U.N. job arose, she pursued it during
the summer, and Vernon Jordan begins to help her later in the
fall, and met with her in November. And at the same time, by
the way, just so that the conspiracy gets broader and broader,
Ken Bacon at the Pentagon, her boss, was helping to get her a
job, too.
You will search the referral in vain for an honest
description of these events. And those are facts, not new,
because they have been resting in your hands for months, but
new if you ask the question: Were they in the referral; have
they been the focus of discussion? In that sense, I suggest to
you, members of the committee, that they are new and they are
important.
And one last piece on this subject. To the extent that it
has been suggested that there was some linkage between the job
search and the filing of her affidavit in the Jones case, I
direct your attention to Ms. Lewinsky's interview with the FBI
on July 27th in which she said, as clearly as anyone possibly
could, there was no agreement to sign the affidavit in return
for a job. You can search for awhile, too, before you find that
in the referral.
Indeed, it is noteworthy that Ms. Lewinsky's friend, Linda
Tripp, was the one who recommended, at a time when we now know
she had other roles in life, not signing the affidavit until
she had a job. Now this is not a new fact, because we have been
very vocal about it from the very beginning, but it is a fact
that isn't in the referral in any meaningful sense. And there
is, of course, Ms. Lewinsky's statement in the grand jury, not
in response to any question from a prosecutor but in response
to a question from a conscientious grand juror. And she said,
Ms. Lewinsky said: ``I think because of the public nature of
how this investigation has been and what the charges have been
that are aired, I would just like to say that no one ever asked
me to lie. I was never promised a job for my silence.''
Lastly and very briefly, given what we surmise to be the
articles that may be under consideration here, although of
course we have not been given any specific information about
what they may contain and thus our defense is modestly
handicapped, let me touch very briefly on the issue of abuse of
power in the assertion of executive privilege.
From the very first day that this story broke in January of
this year, impeachment has loomed on the horizon for all of us
in the White House.
We were faced with the truly unique experience of coping
with a grand jury inquiry by a prosecutor who had a statutory
mandate to inquire into whether there were grounds for
impeachment of the President. I considered personally the
question of whether we should raise any issue of executive
privilege on behalf of the President in response to any
documents that were subpoenaed or questions asked of particular
witnesses. We fully understood from earlier litigation what our
obligations were when the issue of executive privilege arises.
It is to assess whether indeed the President had conversations
which go to the essence of his official responsibilities and
which need to be preserved as confidential so that he can, in
fact, receive the candid and sensible advice to which he is
entitled.
But step 1, whenever we contemplate assertion of executive
privilege, is accommodation. There are some on this committee
with whom we have engaged in accommodation in other settings in
similar situations, and we do so as well when prosecutors seek
information from us.
We accommodate by trying to get into the hands of, in this
case, the prosecutors and, in some cases, congressional
committees the facts, information which they need in order to
perform their duty, and to screen off only those limited areas
of inquiry that go to the heart of the confidential advice and
discussion between the President and his senior advisers, and
that is what we did here.
We tried, albeit unsuccessfully, to accommodate the
interests of the Independent Counsel, and only when he rejected
all efforts towards accommodation were we required upon his
filing of a motion to compel to assert executive privilege, and
we did so in two areas with respect to two nonlawyer staff
members of the White House, and ultimately--although initially
only one lawyer, ultimately three lawyers, the latter really
being linked to a wholly separate area of disagreement having
to do with attorney/client privilege.
Now, one cannot read the Independent Counsel's description
of what happened in the executive privilege area and come away,
I think, with any true understanding of what happened. There is
no indication of our efforts to accommodate, no indication that
we understood the need to provide facts about the underlying
conduct at issue, indeed no indication that we produced
thousands and thousands of pages of documents without once ever
raising the issue of executive privilege.
Instead what happened is that the Office of Independent
Counsel took the position that executive privilege simply
didn't apply at all to his inquiry because it all arose out of the
personal conduct of the President, and we litigated that issue, and we
litigated it on the ground that we weren't seeking to protect
information about the President's personal conduct, what we were
seeking to protect was the advice that he was getting and the
discussions that he was having among senior advisers with respect to
the conduct of his official business in the most extraordinary high-
tension, hectic era that has ever been my--I won't say pleasure
experience in this city.
We had state visits. We had the State of the Union address.
We had the core business of the President to worry about, and
we told that to the judge, and guess what? Although you will
never read it in the referral, the judge agreed with us. She
said these conversations are presumptively privileged. And she
instructed the Independent Counsel to make a factual showing,
which is what happens in executive privilege claims, it is a
qualified privilege, to demonstrate that their need for this
information was greater than our interest in confidentiality,
and only then did the Independent Counsel finally and
reluctantly acknowledge that indeed executive privilege
properly was asserted here. They made a showing to the judge,
ex parte. We don't know what it was. The judge found that it
overcame our interest in confidentiality, and that was the end
of the assertion of executive privilege for Ms. Hernreich and
Mr. Blumenthal, the two nonlawyers involved. That all happened
by March. There was no delay, no great hurdles to be overcome.
Most importantly, I think you need to understand what
really happened. This was not the President throwing out willy-
nilly whatever privilege claims he thought might stand in the
way of an investigation. This was his lawyers' advice that the
interests of the Presidency dictated protecting not the facts,
but the day-to-day advice he was getting about running the
Presidency and the discussions among his senior advisers.
Now, if you ever had any question about the extent to which
the Independent Counsel's referral sought to color, sought to
paint the blackest picture of this insidious effort to assert a
privilege recognized by the Constitution and by the Supreme
Court in as limited a way as was necessary to protect the core
interests of the President, look to pages 207 and 208 of the
referral.
At the bottom of page 207 we find the following: ``The
tactics employed by the White House have not been confined to
the judicial process. On March 24, while the President was
traveling in Africa, he was asked about the assertion of
executive privilege. He responded, you should ask someone who
knows. He also responded, I haven't discussed that with the
lawyers, I don't know. And the referral said this was untrue.
Unbeknownst to the public, in a declaration filed in District
Court on March 17, 7 days before the President's public
expression of ignorance, White House counsel Charles F.C.
Ruff,'' that's me, ``informed Chief Judge Johnson that he ``had
discussed'' the matter with the President, who had directed the
assertion of executive privilege.''
And not satisfied with noting that in the referral, the
Independent Counsel, when he appeared before this committee,
engaged in a colloquy with Congressman Cannon. I hope the
Congressman will excuse me for making use of his dialogue.
``Mr. Cannon, According to the sworn declaration of White
House counsel Charles Ruff, the President personally directed
him to assert executive privilege to prevent you from
questioning some of his assistants. When he was in Africa,
however, President Clinton denied knowing about the assertion
of executive privilege. Which is it? Did Mr. Ruff ever amend
his declaration, or is the President lying to the public on his
Africa trip?''
``Mr. Starr: To my knowledge, Congressman, there was never
an amendment to the declaration, and the declaration was filed
on March 17, and then the President's statement in Africa was
on March 24. So they can't both be right. Either the President
had discussed with Mr. Ruff the indications of the executive
privilege, or he had not. Both cannot be true.''
Well, unhappily, at least I think, for the Independent
Counsel, both are true, because what really happened was that I
did, as my declaration says, consult with the President of the
United States. He did authorize me to assert executive
privilege. And if you look at--and I will have to take a minute
to find it--pages 174 and 175 in our submission of yesterday,
what really happened in March in Africa was not what the
Independent Counsel said happened. The Independent Counsel
completely misstated the questions posed to the President, and
by carefully selecting only a portion of his answer, took his
response entirely out of context.
The actual exchange was this. Question by the press: ``Mr.
President, we haven't yet had the opportunity to ask you about
your decision to invoke executive privilege. Why shouldn't the
American people see that as an effort to hide something from
them?''
The President: ``Look, that is a question that is being
asked and answered back home by the people responsible to do
that. I don't believe I should be discussing that here.''
Question: ``Could you at least tell us why you think the
First Lady may be covered by that privilege, why her
conversation might fall under that?''
Answer, and this is where the quote comes from: ``I haven't
discussed it with the lawyers. I don't know. You should ask
someone who does.''
By the way, the First Lady was found by Judge Johnson to be
covered by the executive privilege, but it would have been
nice, whatever argument the referral wanted to make, to at
least put the full statement in the record so you could assess
and not simply rely on the Independent Counsel's assessment of
what happened.
Some commentators, and indeed some Members of Congress,
have suggested that the work of this committee, and indeed the
work of the House, should be treated as nothing more than some
preliminary proceeding designed to package a bundle of evidence
and send it over to the Senate. Some have likened the
committee's work to that of a grand jury whose only task is to
determine whether there is probable cause to believe that the
President has committed an impeachable offense.
Members of the committee, nothing could be further from the
constitutional truth. With all respect, nothing could be a
greater abdication of your responsibility. This is not routine
business. This is not a charging device pushing hundreds of
thousands of cases out into the criminal justice system. Only
twice before has this committee ever voted out articles of
impeachment against a president. Such a vote is not intended to
say, well, we think there may be some reason to believe that
William Clinton has done something wrong, but we will let the
Senate sort out things at trial. This vote is intended to speak
the constitutional will of the people--to say we believe that
on the evidence before us the President of the United States
should be removed from office. No member of this committee and
no Member of the House can take shelter behind the notion that
an article of impeachment is the equivalent of nothing more
than a criminal complaint or an indictment or some formalistic
slap on the wrist. Each Member, and I need not tell you this,
must weigh the weightiest burden that our Constitution
contemplates, the burden of making an individual determination
that the President has committed such grave offenses against
our polity that he is no longer fit to serve, that the will of
the people should be overturned.
If there is any analogy to the grand jury, it is this, and
you heard it from some of my former colleagues in the
prosecution business, and you heard it from others: For any
professional prosecutor, the true test, and it is certainly
true for serious cases, and one can conceive of no case more
serious than this, is whether there is sufficient evidence on
the basis of which a prosecutor could convince a jury beyond a
reasonable doubt that an offense had been committed. This is
not, as Congressman Canady suggested earlier today, a matter of
counting noses in the Senate. It is not a question of whether a
majority vote in the House somehow gives permission to put this
responsibility in the hands of the Senate. They only require a
majority vote in the grand jury, and we require a unanimous
vote in a criminal case at trial.
This is a matter of testing the charges that you are going
to consider and asking yourself not would I win if I really
litigated this in the Senate, but rather do I have enough
evidence to justify putting the country through the horror that
we all know will follow if, in fact, there is an impeachment.
In closing, I urge you to ask, as Senator Fessenden asked
130 years ago, is the evidence before you of such character to
commend itself at once to the minds of all right-thinking--
forgive me--men as beyond all question an adequate cause for
impeachment. And finally ask, what is best for our Nation?
Thank you, Mr. Chairman.
Chairman Hyde. Thank you very much, Mr. Ruff.
[Information not available at time of printing].
Chairman Hyde. Would you like a break?
Mr. Ruff. I am ready when you are, Mr. Chairman. Let me say
as we venture into the questioning period, there may come a
moment when I actually turn to one of my colleagues behind me
for a little assistance as we get into the specifics.
Chairman Hyde. If you want to take a break----
Mr. Ruff. No, I meant as we go on, it may be necessary for
me to turn for a little guidance on the facts. I will do it in
such a way that it doesn't disrupt the process.
Chairman Hyde. It would be a terrible waste not to avail
yourself of their talents, so I understand.
Mr. Ruff. Indeed.
Chairman Hyde. We are going to operate under a strict 5-
minute rule.
Mr. Sensenbrenner.
Mr. Sensenbrenner. Thank you very much, Mr. Ruff, and thank
you for a very eloquent statement. I will not get into the
business that there were no fact witnesses provided here,
because you are obviously the President's clean-up hitter, but
I do think that we have got to cut through the academic
discourse and the legal hair-splitting that has gone on in
order to make an essential determination on whether the
President has committed an impeachable offense, and let me say
for my own part that I believe that at least perjury before a
grand jury is an impeachable offense, whether the perjury has
been committed by the President or whether it has been
committed by a Federal judge. I think that issue was decided 9
years ago in the Walter Nixon impeachment.
So getting to whether or not the President did make a false
statement before the grand jury, let me ask you a few
questions. First, Mr. Ruff, did the President mislead the
American people when he denied having sexual relations with
Monica Lewinsky?
Mr. Ruff. He has admitted doing so, Mr. Congressman.
Mr. Sensenbrenner. Did he lie then?
Mr. Ruff. Mr. Congressman, there is no secret here. When he
stood in the Roosevelt Room and said, I never had sexual
relations with Ms. Lewinsky, he knew that the vast majority of
the people who were listening to him out there would probably
understand that to mean that he had no improper relationship
with her of any kind, and he knew when he said that, holding
within him, as he did, his understanding that sexual relations
means sexual intercourse, that he was misleading the people who
were listening to him.
Mr. Sensenbrenner. Mr. Ruff, was the President evasive and
misleading in his answers in the civil deposition and before
the grand jury?
Mr. Ruff. I have so stated, and so has he.
Mr. Sensenbrenner. Did he lie?
Mr. Ruff. The President engaged in an exercise the hallmark
of which was a desire to be as little help to these people on
the other side of the Jones case as he possibly could.
I think my colleagues' description of his testimony as
evasive, misleading and maddening is probably as good as you
can get.
Mr. Sensenbrenner. But did he lie?
Mr. Ruff. And I am going to respond to your question.
I have no doubt that he walked up to a line that he thought
he understood. Reasonable people, and you maybe have reached
that conclusion, could determine that he crossed over that
line, and what for him was truthful but misleading or
nonresponsive and misleading or evasive was, in fact, false.
But in his mind, and that's the heart and soul of perjury, he
thought and he believed that what he was doing was being
evasive but truthful.
Mr. Sensenbrenner. The oath that witnesses take require
them to tell the truth, the whole truth and nothing but the
truth. I seem to recall that there were a lot of people, myself
included, when asked by the press what advice we would give to
the President when he went into the grand jury in August, was
to tell the truth, the whole truth and nothing but the truth.
Mr. Ruff. Indeed.
Mr. Sensenbrenner. Did he tell the truth, the wholetruth
and nothing but the truth when he was before the grand jury?
Mr. Ruff. He surely did.
Mr. Sensenbrenner. Then how come following the grand
jury's--the grand jury appearances, we heard all kinds of
allegations of legal hair-splitting, and debating the meaning
of various types of words, and claims that some of the
questions were ambiguous? My list includes words such as is,
alone, sex, and sexual relations.
Do you have any more?
Mr. Ruff. Well, I will take your list for starters, but I
am not sure how that addresses the question that you put to me,
which is did he tell the truth. He made it very clear to the
grand jury that he engaged in inappropriate intimate
relationships. There is no one who listened----
Mr. Sensenbrenner. Mr. Ruff, you are saying that some of
the questions were ambiguous, and the President really did not
understand what those questions were. Now, who do we blame for
the fact that the President didn't understand and we have had
all of these redefinitions and legal hair-splitting? Is it the
President, or is it his lawyers?
Mr. Ruff. I don't think that you will find any suggestion
that the President didn't understand the questions put to him.
What you will find is an effort by him to explain not how he
was responding to the questions in the grand jury, but how he
responded to the questions in the deposition, and that's where
the issues are debated over what the meaning----
Mr. Sensenbrenner. But whose responsibility is that? Is it
the President's responsibility or his lawyers' when he is
talking about all of the legal hair-splitting?
Mr. Ruff. When the President is answering questions in the
grand jury under oath, it is his responsibility to answer
truthfully. He did so.
Mr. Sensenbrenner. Thank you.
Chairman Hyde. The gentleman's time has expired.
The gentleman from Michigan, Mr. Conyers.
Mr. Conyers. Thank you.
I appreciate your coming forward and taking this lengthy
amount of time, and I am very moved by what you have had to
say. The question that I think most people are asking
themselves is whether in this 445-page narrative, even assuming
that for the benefit of this question that everything in it is
true, are there any acts? Is there any conduct, are there any
things in the narrative that would rise to the level of an
impeachable offense?
Mr. Ruff. As I have stated, Mr. Conyers, it is our very
clear conviction the answer to that question is no.
Mr. Conyers. Thank you.
You've pointed out one glaring example of Mr. Starr's
omissions. We have noted that a fair amount of exculpatory
evidence was excluded as we've gone through our exercise here,
but the one concerning the President's response to a question
about executive privilege, is that the only example of an
important omission that has come to your attention by the
Independent Counsel?
Mr. Ruff. As one might gather from not only my testimony
today, but submissions that we made both yesterday and earlier,
we find many--I referred to a few today in terms of leaving out
exculpatory information about the gifts and the job search, and
those are, I think, but examples of areas, and I raise them,
Mr. Conyers, in the setting not because of some collateral
attack on the Independent Counsel, but rather to ask the
committee to look with care at the record before them.
Mr. Conyers. Have you, Mr. Ruff, any insight as to why the
President's grand jury testimony was videotaped by the
Independent Counsel?
Mr. Ruff. Well, I was not engaged in the discussions over
that. I am advised by my colleague, Mr. Kendall, that this was
something on which the Independent Counsel insisted nominally
because there might be a missing grand juror. I don't candidly
know if that was, in fact, the case on August 17 or not. But
one might surmise that there was some collateral interest in
fleshing out the package to be sent to this Congress.
Mr. Conyers. Thank you.
What about the struggle that is now going on within the
Congress and even outside of it to find some intermediate
position to which we may all find an exit, to which we might
with whatever integrity remains get to a conclusion to this
matter? Is there any way that this kind of a resolution might
resonate favorably in the White House?
Mr. Ruff. I think what I can say, Congressman Conyers, is
what we have said before. We are looking for an end to this
process. We think that it does not advance the public weal to
drag it out further. We are open to any reasonable suggestion
from any side as a way of finding an end to this.
Mr. Conyers. I appreciate that. If you believed, Counsel,
that the President had abused the powers of his office, would
you still be serving as the White House counsel?
Mr. Ruff. I think we all have as our core professional
responsibility an unwillingness to serve where we believe our
legal skills are being abused, and I surely would not serve
where I thought that was the case.
Mr. Conyers. Thank you very much, Mr. Ruff.
Chairman Hyde. I thank the gentleman.
The gentleman from Florida, Mr. McCollum.
Mr. McCollum. Mr. Ruff, in your opening comments you
suggested that the matters before us, no matter what we might
conclude are the facts, do not rise to the level of impeachable
offenses because nothing the President did amounts to
subverting the system of government?
Mr. Ruff. Yes.
Mr. McCollum. And you also suggested that these were purely
personal matters that were involved in this case.
Mr. Ruff. I think not the latter. They arose out of
personal conduct.
Mr. McCollum. Very well. Whatever your characterization.
I would submit to you that the President of the United
States committing perjury, if we believe he did, obstructing
justice in a court system, and lying to the grand jury are
things which subvert the justice system of this Nation. If we
believe that, you may not, but if we come to that conclusion,
that certainly subverts the American Government system because
the justice system is integral to that government system. So I
would suggest that they do rise, as was said by Professor
Dershowitz, to--lying and committing perjury before the grand
jury--to impeachable offenses, if we conclude that, for which
the President should be impeached.
Mr. Ruff. May I respond?
Mr. McCollum. That is a comment. I have a question or two.
You have every right to characterize, just as Mr. Starr
has, and you also highlight. There were a number of pages that
you submitted, 180 or something like that. At any rate, I find
that those things that you highlighted which were your
strongest points, and I respect that, but there are things that
you didn't highlight that you glossed over more. You only gave
us about two and a half pages on the perjury before the grand
jury in your written testimony, although you mention it today.
You gave us 20 pages on the gift question, and you gave us no
comments, although a few pages, on Betty Currie in her specific
questions whether the President may have tampered with her as a
witness.
Now, with regard to the perjury question before the grand
jury, the central issue is whether the President committed that
perjury or not, whether he lied or he didn't lie. And the issue
there, as I discussed this morning, as you may or may not have
observed in my questioning, boils down to whether or not you
believe Monica Lewinsky. The President said one thing, and she
said another. The President said, I did not have sexual
relations based on the definition that the court had given me
in the Jones case. Monica Lewinsky described at least two
things on several occasions that the President did with her
that would meet that definition.
She is corroborated by having talked to seven different
family members and friends on seven different occasions at
contemporaneous times to engaging in with these relations with
the President, having told them precisely what she later told
the grand jury, which was consistent with that. To me that is
corroboration. That is something that you don't want to
highlight. Mr. Starr highlighted it a little bit, and I do want
to highlight it because I think that is factually very
important.
And the other matter goes to perjury as well as Betty
Currie. When the President testified under oath in his civil
deposition that he could not recall being alone with Monica
Lewinsky, was he telling the truth?
Mr. Ruff. First of all, Congressman, that is not an
accurate statement of what he said. He was originally asked,
were you ever alone in the Oval Office with Ms. Lewinsky, and
he responded, not completely but accurately, that he recalled
being alone with her during the government shutdown when she
brought letters to him.
Now, it is frequently bruited about that he made some
broad-ranging and closed-in representation that he was never
alone with Monica Lewinsky.
Mr. McCollum. He was asked later very clearly, as my
recollection of the evidence, was he alone, and my reading was
that he said that he wasn't alone, and any fair reading of it
would say that--you are parsing--which is in your own reports
that you gave to us today, your own analysis, would say that
alone doesn't mean the same thing to me as it does to the
average person.
If the President thought that he was having relations with
her when nobody else was around in a room, that is alone, not
simply being in the White House when somebody else was there.
With regard to Betty Currie, there were a number of times
when he went back to her and asked her, suggested things like
to her the next day after this deposition was given. He asked
her, you know, do you agree, 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?
The fact is he knew she was going to be a witness in all
probability even though she wasn't on the witness list, and he
wanted to know that. That strikes me as very apparent because
he had raised her name a number of times in that deposition.
Chairman Hyde. The gentleman's time has expired. Does Mr.
Ruff wish to answer?
Mr. Ruff. Just quickly.
Betty Currie was not a witness. She was not on the witness
list. The discovery process was closing down in Jones. Betty
Currie had been known to the Jones lawyers for months. They
could have put her on the list if they wanted to, and they
didn't.
Chairman Hyde. The gentleman from Massachusetts.
Mr. Frank. Thank you, Mr. Chairman, and for the very
evenhanded and appropriate way that you have been presiding
over this particular tricky question-and-answer series.
First on hair-splitting, I think we are in a hair-splitting
tie, because what some of my colleagues on the other side have
said is the actual nature of the acts which the President
committed is irrelevant. That is whether or not you lied about
interfering with a State court prosecution of your partner's
son for drugs, Judge Nixon--Judge Nixon was accused of lying
about whether or not he tried to fix a case in State court
using the prestige of his Federal judgeship, whether he was
trying to fix a case for his partner's son. That is the same as
lying about a consensual sexual affair.
Morally and factually most of us would think those are
different, but we are told but technically, if they are both
perjury, they are identical. That is, the notion that
conformity to technical legal standards trumps all other
questions comes from the accusers of the President, and it
certainly is in a situation legal and reasonable for the
President to say, you have basically said that a consensual
sexual act which you have said in and of itself would not have
caused all of this becomes a constitutional crisis if it
conforms to these legal standards, and he is obviously
therefore entitled to say it doesn't.
You can't have a one-sided objection to the invocation of
legal standards because the gravamen of the charge against the
President is not that he did something terrible, not as in the
Watergate case that there were substantive violations of
people's rights, but that he told untruths or he didn't tell
the whole truth. He was supposed to tell the truth, the whole
truth and nothing but the truth, and he only got two out of
three, that that makes it technically perjury, and therefore we
go off the substance and into the technical legal situation,
and that then requires a technical legal rebuttal.
Even on those terms it seems to me with regard to the grand
jury there is no showing that perjury--that the President
committed perjury.
I must say, Mr. Ruff, I do not find the rebuttal on it was
alone persuasive. I think the President simply wasn't being
truthful. I think he waffled past the point of the lying on
that. But given the circumstances of a civil deposition where
the issue of consensual sex was, in my judgment, completely
irrelevant to the underlying case, that there is a materiality
question.
And I note that my colleagues have stressed grand jury
perjury. That is the one that they are talking about. We now,
as you note in your point here, Mr. Schippers, droppedtwo of
the three counts in his presentation of grand jury perjury. He skipped
the one about May and November, and he skipped the one about what the
President thought in August about what he said in January that is so
complicated that I can't say it right.
The only question is one that Mr. McCollum referred to. It
is an unpleasant subject to talk about, but the fact is that
the accusation, am I correct, is that while the President
acknowledged before the grand jury that there had been
inappropriate intimate conduct, and Mr. Starr himself notes
that was an admission of sexual contact, Mr. Starr on page 147
of the referral notes that the President admitted to sexual
contact, so the grand jury perjury issue is that while the
President admitted that there had been inappropriate intimate,
i.e., sexual, contact between him and Ms. Lewinsky, she had
performed sexual contact on him, and he did not reciprocate. Is
it, in fact, the case that is the substance of the grand jury
perjury? That is the factual issue that we are talking about?
Mr. Ruff. That is correct, Congressman.
Mr. Frank. How would you prove that? Corroboration might be
that Ms. Lewinsky told somebody. Is there any--as a lawyer, how
do you prove when two people are being alone? If he lied about
being alone--I think he didn't lie about being alone, but if
you lied about being alone, that means that they were alone,
and if they were alone, how do we prove perjury, because it
really comes out who touched what. Now, we are thinking about
the President of the United States who admitted that he had
inappropriate sexual contact, but he kind of shortchanged us on
the details in a perjurious way, and that is the question. How
would you prove one side or the other if you had to?
Mr. Ruff. Well, I think my colleagues on the earlier panel
made it very clear that, first of all, you would never bring a
case in which you had two people, one of whom was saying X and
one of whom was saying not X. But even if you did, the notion
suggested by Congressman McCollum that someone whom you would
rely on as witnesses, people that Ms. Lewinsky told the same
story that she is now telling the grand jury, whatever
motivation that there might have been to tell that story, plus
noting some of the people that she talked to she didn't tell
the same story, is I think a nightmare for any prosecutor. And
indeed, Congressman, to take it out of that context would be a
nightmare for this country if we tried to try that lawsuit in
the Senate of the United States.
Chairman Hyde. The gentleman's time has expired.
The gentleman from Pennsylvania, Mr. Gekas.
Mr. Gekas. I thank the Chairman.
Mr. Ruff, from the first moment that I reviewed the
referral from the Independent Counsel, I developed reservations
about the executive privilege portion of his litany of abuse of
power, and since then I have further examined that, and
counseled with my colleagues, and have reached conclusions that
may at some point coincide with your affirmance as to that. But
on other portions of the referral I have some grave questions.
As Mr. McCollum brought out from you in the opening remarks
that you made in setting this scene, you stated, or implied at
least, that no offense that didn't amount to subverting the
government or resulting in the inability to lead the Nation,
anything short of that, no matter what the offense is, would
not be an impeachable offense; is that a fair description?
Mr. Ruff. That is fair, and I truly believe that, and let
me----
Mr. Gekas. No, we agree on that. I need some more time.
Mr. Ruff. I will circle back at the end, but go ahead.
Mr. Gekas. The thing that bothers me about that is you also
said in defense of the President he didn't commit bribery--as
stated in the Constitution, he didn't accept a bribe or give a
bribe, I think you gave that as a little example--and therefore
he didn't come within the meaning and the actual literal
wording of the Constitution. That means to me that if bribery
is committed, whether or not it subverts the government,
whether or not it deprives him of the ability to lead the
Nation, whether or not it is an attack on our system of
government, because a bribe can take 20 minutes and then he can
lead the Nation for the rest of the term, that means to me that
the inclusion of bribery does not require--does not require the
subversion of government or an attack on government, but is so
heinous that it is treated by the founders as by itself enough
to impeach the President. That is what it means to me.
Mr. Ruff. May I respond?
Mr. Gekas. Hold on.
Following that logic, if I come to the conclusion, or
others do, that perjury is a high crime or a high misdemeanor,
or middle or low or some kind of misdemeanor, something to fit
into that structure, and it is not accompanied by subversion of
the government, or subversion of the system, or rendering him
unable to lead the Nation, that even so I would be justified,
if I feel that perjury is such an attack on the government or
such a heinous offense and has the result of destroying the
case of an American citizen who lawfully brought a lawsuit in
Arkansas, if I feel that strongly, you cannot, can you, tell me
that I have no basis for doing that simply because it might not
render him unable to lead the Nation or that it subverts the
Constitution?
Mr. Ruff. May I respond now, Congressman?
Mr. Gekas. Yes, I think so. I'm exhausted.
Mr. Ruff. I have the advantage on you. I wasn't here this
morning.
Two points to make. With all due respect, Congressman, I
think your analysis is wrong.
Mr. Gekas. I knew you would say that.
Mr. Ruff. I do think your analysis on the first point is
right.
Mr. Gekas. Yes, of course.
Mr. Ruff. What the Founding Fathers determined is that
where a President is guilty of treason or bribery, you don't
need to ask any other questions. Those two offenses do go so
much to the fabric of our government that they are
presumptively subversive of his ability to govern. But where it
is a question of what fits into high crimes and misdemeanors,
you must apply the same test.
Mr. Gekas. I must interrupt you. I have to say that to me
bribery, as in the Constitution, is less destructive of the
structure of government than is perjury committed by the
President of the United States.
Mr. Ruff. With all due respect, Congressman, and I do
appreciate your candor and the strength that you hold that
view, the Founding Fathers made a different judgment.
Chairman Hyde. The time has expired.
Mr. Schumer.
Mr. Schumer. Thank you.
I want to thank you, Mr. Ruff. I think your testimony was
outstanding. I think the gentleman from Wisconsin said you were
the clean-up hitter for the administration. Well, I think you
have hit it out of the park.
Mr. Ruff. Thank you.
Mr. Schumer. I have seen this in three levels. The first
level, even if you agree with all of Mr. Starr's factual
allegations, there would be--you would say the President did a
lot of wrong things. It doesn't reach the high bar of high
crimes and misdemeanors, and that we talked about yesterday.
And then this morning we talked about the two other--the
nonperjury parts of the OIC's brief, and I think again you have
destroyed those quite well. The obstruction--the abuse of power
charge is just even not brought up in Mr. Schipper's points.
The obstruction of justice really relies simply on somebody's
surmise, the OIC's surmise, and to impeach a President because
somebody felt, with no outside evidence, that Monica Lewinsky
was getting a job because of a desire to influence her
testimony as opposed to desire not to have the world find out
about an illicit relationship strikes me as almost Kafkaesque,
and so I think we knocked that out.
What you really dwelled on and the questions have dwelled
on is the third, the last bar to overcome, and that is perjury.
And I think my colleague from Pennsylvania, and he made the
same mistake as the colleague of Wisconsin, they are assuming
that one perjury is, ``the same as another. Arguendo, just for
the sake of argument, not saying that perjury was done, Mr.
Nixon was interfering in a State court to get someone out of a
criminal proceeding, which is the essence of what our system of
laws is all about, perjury in that case would be different than
lying about an extramarital affair.
The reason I would say to my friends on the other side you
are not getting very far with the American people is they don't
buy that. Very few fair-minded individuals would buy that. It
is different. It is totally different, and it goes directly to
a sense of fairness. Are we trying to be fair and treating
someone not as a Democratic or a liberal or conservative, but
just being fair because what we are doing here is an extremely
serious exercise, or do we have other motivations?
But I would ask you, Mr. Ruff, given your, in my judgment
at least, superb testimony, that you have also made the other
point here which is what the President did is not perjurious.
Misleading and perjurious are not the same is the basic thrust.
One is a standard of common usage as you and I would talk to
each other, or even as an elected official talks to his or her
constituents, and the other is a legal standard which is much
harder to reach.
Could give us a few other types of examples? I thought of
one, and maybe it has holes, but that the Earth has a blue sky
except for all of the hundreds and hundreds and thousands of
miles the sky is blue, but there is one square mile in
Antarctica where the sky is pink, and you ask a witness is the
sky blue, and the witness says no. Even though it is logical
that witness knows that the rest of the sky is blue, and there
is that one little part that is pink, clearly misleading, but
it seems to me if you value our system of laws, if you are not
hair-splitting, that that is not perjurious per se unless you
can get inside that person's head and know that they never saw
the pink square of sky or didn't believe that pink square mile
of sky existed. I don't know if that is a good example.
Mr. Ruff. It is as good as any.
As I tried to suggest in my testimony, we didn't just dream
up perjury protections. They serve a societal purpose, and they
reflect a judgment about what we do and what we don't do with
witnesses under oath. We tolerate a lot of bobbing and weaving
and a lot of evasion and a lot of misleading before we say, you
perjured yourself and we are going to pursue you criminally.
Chairman Hyde. The gentleman from North Carolina, Mr.
Coble.
Mr. Coble. I thank you, Mr. Chairman. I thank you, Mr.
Ruff, for being with us.
I said something yesterday, Mr. Ruff, that I am going to
repeat today. I am getting tired of folks saying the
Republicans are unreasonably partisan because they are favoring
impeachment. I don't think there is any justification of that,
nor do I think it is justification to say that the Democrats
are unreasonably partisan because they oppose impeachment. I
think reasonable men and women can differ, and I hope to carry
that through the end of this week and maybe into next week.
Mr. Ruff, I want to address a couple of myths, and one myth
is that we have no evidence because there have been no fact
witnesses called.
Five volumes sit alongside me that contain sworn testimony
before criminal grand jury, FBI interviews, depositions, and
other materials, and I don't believe the critical testimony has
been challenged by the other side.
The second myth is that Judge Starr omitted from his
referral important evidence favorable to the President. I am
not saying that you said this, Mr. Ruff, but others have said
it.
Mr. Ruff. I have said it.
Mr. Coble. Well, you and I may have to disagree agreeably,
Mr. Ruff, but I believe every shred of evidence upon which the
White House relies was provided herein by Judge Starr. On the
one hand, they said, we didn't get anything, and on the other
hand they use it oftentimes to trash it, but let me put a
question to you, Mr. Ruff, if I may.
Does the President still believe that Ms. Lewinsky's
affidavit denying a sexual relationship is true?
Mr. Ruff. Congressman, the President believes that when she
submitted that affidavit, that the word ``sexual relations,''
and he has so stated, involved sexual intercourse. And it is on
that basis of that definition that the representation in the
affidavit was true. That definition in his mind of sexual
relations was one that he held in his mind in January and in
August, and he has so testified.
Mr. Coble. All right. Sir, let me ask you this. I am
wondering why the President did not intervene when his attorney
told Judge Wright that Ms. Lewinsky's affidavit meant
``absolutely no sex of any kind in any manner, shape or form.''
Now, that, Mr. Ruff, it seems to me, and I will qualify that,
but it seems to me that is right smack dab in the shadow of
obstruction of justice. Now, steer me away from the rocks and
shoals if I am heading for the rocks and shoals.
Mr. Ruff. I would like to steer you away from those
particular rocks and shoals. Let me put aside your
legalcharacterization of what that might have been if indeed the
President understood that his lawyer actively misrepresented the facts
to the court.
The President has testified--and having represented several
hundred witnesses in depositions, I think I have a fair sense
of where this testimony comes from--that when the colloquy
started between Mr. Bennett and the other participants there,
the President was not focusing on what his counsel was saying.
I understand that Mr. Starr says that is not the case, in
fact the President either was paying attention or should have
been paying attention and should have cut off that series of
representations. I was in the room, and I will tell you that I
have not--I don't have a recollection of that particular moment
in time. I have not seen the videotape, but the President has
testified, and it seems entirely reasonable to me in my
experience in civil depositions----
Mr. Coble. Pardon me, but my time is ticking.
Did not Mr. Bennett, the President's attorney, subsequently
admit to the court that the affidavit was not true?
Mr. Ruff. What he advised the court, quite properly under
the rule of professional conduct in the District of Columbia
and Arkansas, was that Ms. Lewinsky had testified that the
affidavit was false.
Mr. Coble. My red light has illuminated. I will yield back.
Chairman Hyde. I thank the gentleman.
The distinguished gentleman from California, Mr. Berman.
Mr. Berman. Mr. Ruff, did you want to use a minute of this
time to finish?
Mr. Ruff. No, I am at your disposal, Congressman.
Mr. Berman. Thank you.
Both sides, we do it, they do it analyze this as a judicial
proceeding with very formal rules and legal relations. You
critiqued it, I think, appropriately when you argued that we
should not consider ourselves a grand jury applying those
standards in this very important process. That is why this
issue of perjury is a legal conclusion. It is highly technical.
We heard an excellent panel this morning describe its elements,
talk about the difficulty of prosecuting it and the kinds of
cases that would be prosecuted.
The thing that bothers me most in the context of the
testimony before the grand jury the one area that both Mr.
McCollum and Mr. Frank focused in on is the question of what
was touched. In looking through all of the evidence, it
basically boils down to a ``he said'' and ``she said'' kind of
a situation. I am not a judge. I look at this and apply common-
sense rules, and I come to the conclusion in this case, I hate
to say it, I think the President lied. I take the other version
of what happened rather than his.
And I guess the point I want to come back to is, I don't
care whether that is perjury--I mean, I do care whether it is
perjury, but for this purpose it isn't my job to try to analyze
that. I am aware of the difficulties of prosecuting it. I don't
think anybody should be making those conclusions about it in
this context, but the question still arises.
Having said all of that, what does it tell us in terms of
the constitutional standard we should apply here, and I would
like you to speak about as you have already, and I think it is
worth hearing over and over again, your analysis of what one
who comes to that conclusion should do with regard to the issue
of whether or not to pass an article of impeachment?
Mr. Ruff. This really goes back in part to one of my
earlier discussions in questions and answers. None of us
condones perjury, if that is what occurred. I happen to believe
it did not occur. Let me accept for the moment your position
that it did.
Mr. Berman. I didn't say it occurred, I said if it
occurred. I said I think he lied under oath in that particular
instance.
Mr. Ruff. If you ask the question does any violation of the
oath, does any violation of a witness' obligation to testify
truthfully mean that the President of the United States should
be removed from office, that, it seems to me, ought to be the
starting point for this discussion, and it has already been
suggested by Congressman Frank and Congressman Schumer and
others that you can't simply, when you are dealing with this
gravest of constitutional issues, leap from a conclusion that
we would all agree on, which is lying is not a good thing, to a
conclusion that we are going to overturn our system of
government and the mandate of the people, because if you do
that, you are failing to weigh in the balance what I think the
Founding Fathers, the framers of the Constitution, had in mind,
which is, as I said, as bad as this conduct may be, whatever
the conduct is, does it mean that the President of the United
States should not and cannot lead the country?
If you ask that question, people might reasonably disagree
about where in the spectrum that inability to lead falls, but
if you don't ask the question, you don't ever start getting
into the right constitutional debate.
Mr. Sensenbrenner [presiding]. The gentlemen yields back.
The gentleman from Texas, Mr. Smith.
Mr. Smith. Thank you.
Mr. Ruff, you testified today that the President did
mislead the Nation. Some of my colleagues, and I think
particularly the last one, said that they felt that the
President had actually lied under oath.
Mr. Ruff. I'm sorry, I missed that last----
Mr. Smith. Some of my colleagues, and I think particularly
my colleague from California, said that he thought the
President lied under oath. You have testified that the
President misled the American people, probably on numerous
instances. Don't you think that those public statements and
don't you think the President's actions were designed to thwart
or impede the investigation of the Independent Counsel?
Mr. Ruff. I really don't, Congressman, and let me tell you
why.
Mr. Smith. That seems incredible that you don't think that
the President's motive was to do just that.
Mr. Ruff. The reason that I want to address your question
is if you ask would everything have been simpler for the
Independent Counsel if the President had come out on January 21
and said, yes, everything they say about me is absolutely true,
yes, that would have indeed eased the path. I guarantee you one
thing, it would not have brought us here.
Mr. Smith. I am not just talking about that one instance,
but the repeated instances of admitted misleading, evasive
answers, perhaps lying under oath.
Let me just say to you, if there is 1 percent of the
American people who don't think that he was trying to--and
intentionally trying to mislead or impede the investigation, I
would be surprised, but that is my opinion, and apparently you
disagree with it.
Mr. Ruff. I do.
Mr. Smith. Let me go on to my next point and that is this.
Yesterday, the White House brief that was delivered to us
contained this statement which I assume that you are
responsible for: ``The referral omitted evidence that
exonerates the President.'' And then, interestingly enough, in
many, many instances where you say, ``the referral omitted
evidence that exonerated the President'', then you cite the
appendix itself as the source for the facts that were omitted.
By my count, 17 times you referred to the appendix for the
facts that you said were omitted.
So my question to you is, don't you consider the appendix
to be part of the Independent Counsel's referral?
Mr. Ruff. No. Congressman, I am glad you asked that
question because I would have responded to Congressman Coble
when he asked the same question.
If there is one thing I think we all understand is that
what the Independent Counsel chose out of this mass of material
to put in the referral ought to have been as honest, as
unbiased, as detached an assessment of the facts as he could
manage.
And let me say further that when the Independent Counsel
himself came before this committee, in his own testimony he
should have, if he had failed to bring to your attention this
exculpatory information in the thin little document--excuse me,
Congressman, you----
Mr. Smith. You have answered my question to my
satisfaction. Let me just respond to you. Is that not a prime
example of splitting hairs and parsing of words and playing
word games to say it should have been in the main body rather
than in the appendix?
Mr. Ruff. On the contrary----
Mr. Smith. As long as it was there and people had access to
it, I think arguably the facts were evident and available.
Mr. Ruff. Let me ask you rhetorically, if it was just part
of the referral, if it was there for all to see and all to
know, why didn't the Independent Counsel talk about it when he
testified to you? Why hasn't one word been said of it in all
the debate?
Mr. Smith. My time is up, Mr. Ruff. Let the record show
that you really didn't respond to my question about whether you
considered the appendix to be part of the referral.
Let me ask--end on one other point. You have said and many
others have argued that the actions of the President don't
warrant overturning the mandate of the American people at the
last election. But the point, the response to that is that the
American people didn't know then what they know now. They
didn't know in the 1996 election. They didn't know in the 1992
election what they know now or their votes might well have been
different.
Mr. Chairman, I yield back. Thank you.
Chairman Hyde. I thank the gentleman.
The gentleman from Virginia, Mr. Boucher.
Mr. Boucher. Thank you very much, Mr. Chairman.
Mr. Ruff, I want to join with others today who have
commended you on the quality of your presentation. I think that
you have made significant strides in attempting to put this
entire sad matter into a clearer context. I commend you for
what you have said.
I would like to take some time this afternoon to explore
with you the allegation by the Independent Counsel that in
asserting executive privilege and in asserting attorney-client
privilege, the President, in the words of the Independent
Counsel, has abused his office, and the Independent Counsel,
therefore, suggests that the assertion by the President of
these two privileges would be a ground for impeachment.
My first question to you is, do you agree that the
President, as the caretaker of the executive office, has a
responsibility to tend and look after the privileges, including
executive privilege and attorney-client privilege, that attend
his executive function?
Mr. Ruff. I do, and I so advised him, Congressman.
Mr. Boucher. Isn't it also true that when the executive
privilege was asserted in the U.S. district court that Judge
Johnson, in passing on that privilege, ruled that presumptively
the executive privilege did, in fact, cover many of the
communications involving the President's assistants but that in
the particular context in which they were raised those
privileges had to yield to the need for information by the
Independent Counsel?
Mr. Ruff. That's correct.
Mr. Boucher. And isn't it also true that upon that ruling
the President decided not to appeal that decision by the Judge
and basically dropped that claim of executive privilege at that
time?
Mr. Ruff. As to the nonlawyers, that's correct.
Mr. Boucher. And then when the attorney-client privilege
claim was appealed and reached the U.S. Supreme Court, isn't it
true that two justices of the Supreme Court said that there was
no clear legal answer to the question the President was raising
to the claim of attorney-client privilege that he was putting
forth and that there was, therefore, a clear basis for the
Supreme Court to pass on that question?
Mr. Ruff. That's correct.
Mr. Boucher. And so would you not conclude that there was a
plausible basis for the assertion by the President of the
claims of both executive privilege and attorney-client
privilege, the same claims that now, in the view of the
Independent Counsel, are being suggested as possible bases for
impeaching and removing the President from office?
Mr. Ruff. Without taking the matter too personally,
Congressman, I would look not only to the opinion of the two
Supreme Court judges, but I like to believe that my own
assessment and my own advice to the President set a level of
plausibility for the claim of privilege that would defeat any
suggestion of abuse of power.
Mr. Boucher. Mr. Ruff, I also would like to explore with
you question of statements made under oath. During the process
of these hearings, many of our colleagues on the other side of
the aisle have tried to equate the standards for impeaching a
president with those applicable to the impeachment of Federal
judges. I would like to ask you if you believe that that is a
fair comparison and ask you also what differences you perceive
in the standards that should be applicable to the impeachment
of a president on the one hand and the impeachment of Federal
judges on the other?
Mr. Ruff. Congressman, I think it is fair to say that there
is agreement that the pure constitutional test is the same. The
difference ought to be in the assessment of the House as to
what the impact on our system of government is if you speak
about a judge with a lifetime appointment engaging, as Judge
Nixon did, in the commission of perjury, and the impact on our
system of government if you think about removing the President, who has
to stand for reelection at least once and as to whose status the public
can speak in many different ways.
The President is the single head of the executive branch of
government. To remove him from office, it seems to me, cannot
be compared with the seriousness, however important it is, of
removing a single judge of 900 or so with a lifetime
appointment.
Mr. Boucher. Thank you very much, Mr. Ruff.
Thank you, Mr. Chairman.
Chairman Hyde. The gentleman from California, Mr. Gallegly.
Mr. Gallegly. Thank you, Mr. Chairman.
Mr. Ruff, thank you for being here. I know this isn't an
easy duty for you. It certainly has not been a simple duty for
us either.
Mr. Ruff. I understand.
Mr. Gallegly. Yesterday, Mr. Craig appeared before us and
was asked about the President's candor before the Federal grand
jury. He said, while the President was evasive, incomplete,
misleading, even maddening, that he did not believe the
President had lied under oath.
With all due respect to Mr. Craig, and I have great respect
for his legal ability, I think he is a fine lawyer, that might
sell to a Georgetown law grad but to the average citizen across
this country, it is a pretty tough sell.
Mr. Ruff. Can I just comment on one thing, Congressman? I
won't be long.
I think Mr. Craig, when he described the President's
testimony as evasive, misleading, maddening was not talking
about the grand jury. He was talking about the civil
deposition.
Mr. Gallegly. In other words, it was testimony under oath,
though.
Mr. Ruff. That is true.
Mr. Gallegly. Very well.
In the panel following Mr. Craig's panel, Mr. Wayne Owens,
former Member of this House, in an unsolicited comment stated
that the President clearly did lie under oath. Who do you most
associate your position with, either Mr. Craig or Mr. Owens?
Mr. Ruff. Well, I suppose I could say that Congressman--
former Congressman Owens' statement to you reflects our efforts
to put together a panel with no preconceptions about the issues
before you. But without being flippant about it, and it is too
important to be flippant about, I associate myself not
surprisingly with my colleague, Mr. Craig, not just because he
is my colleague but because, indeed, as I have indicated
earlier, as misleading and evasive as the President's testimony
in his deposition was, in my view, it represented, albeit
perhaps an abortive effort, to stay within some very narrow,
strange boundaries and yet not to help--to be evasive. There is
no question about that.
Mr. Gallegly. Thank you, Mr. Ruff.
Mr. Ruff, you stated earlier that the President did not
help Ms. Lewinsky get a job. I think you further stated that
Vernon Jordan did help Monica Lewinsky to get a job and that he
helps many people in Washington get a job; is that correct?
Mr. Ruff. I did not say that the President did not help. I
said he provided very little assistance.
Mr. Gallegly. But you have said that Vernon Jordan did help
Ms. Lewinsky get a job and had helped others get a job.
Mr. Ruff. Yes.
Mr. Gallegly. Do you know if it is common practice for Mr.
Jordan to call the President's secretary and report, ``mission
accomplished, ``or report, ``business has been taken care of''
every time he helps someone get a job?
Mr. Ruff. I don't know on how many occasions he has helped
someone get a job who was a friend and acquaintance of Betty
Currie's. But there is nothing evil in any connotation about
that telephone call.
Mr. Gallegly. Thank you, Mr. Ruff.
Ms. Lewinsky testified that she spoke to the President
three times about her testimony in the Jones case. All three
conversations were within a one-month period prior to the
President's deposition. Vernon Jordan also told the President
Ms. Lewinsky had been subpoenaed. President Clinton was asked
at his deposition if anyone told him that Ms. Lewinsky had been
served with a subpoena. He answered, ``I don't think so.''
Mr. Sullivan, on a previous panel, stated that this is not
perjury only if the President genuinely forgot these
conversations. Do you think it is really reasonable for us to
believe that the President completely forgot about those three
conversations with Ms. Lewinsky about her testimony?
Mr. Ruff. I have to quarrel with your premise, Congressman.
Because if you read the President's testimony I think you will
see that he acknowledges knowing that Ms. Lewinsky had been
subpoenaed. He questions whether it was Mr. Lindsey who first
told him. The very fact that he frames it in terms of wondering
who the first person who told him was suggests, it seems to me,
that he was acknowledging----
Mr. Gallegly. He just didn't remember whether Mr. Jordan--
--
Mr. Ruff. I don't think you will find a question put to
him, I will look at the record with you, if you would like,
asking whether Mr. Jordan had advised him that Ms. Lewinsky had
been subpoenaed.
Chairman Hyde. The gentleman's time has expired.
The gentleman from New York, Mr. Nadler.
Mr. Ruff. Mr. Chairman, can I take you up on your earlier
offer?
Chairman Hyde. You surely may. A 10-minute recess. The
committee stands in recess for 10 minutes.
[Recess.]
Chairman Hyde. The committee will come to order. Having
finished with Mr. Nadler--I thought I could get away with that.
Mr. Nadler. I don't think so.
Mr. Ruff. I will chat with him later.
Chairman Hyde. The gentleman from New York, Mr. Nadler.
Mr. Nadler. Thank you. Nice try, Mr. Chairman.
Mr. Ruff, I want to join my colleagues in thanking you for
your presentation, and I hope this lays to rest any further
declarations that the President and his supporters have avoided
addressing the factual allegations in the Starr report.
I am, however, disturbed by the suggestion that the
President's accusers have no obligation to prove their case
with direct evidence or that the President must prove his
innocence. I think you have done an outstanding job of showing
that the Starr referral is, especially in view of the facts
that he omitted and the including contradictory statements by some
witnesses and omitting exculpatory statements by those witnesses, I
think you have done a good job of demonstrating the referral is
incomplete and misleading.
Now, some of the members of this committee and various
newspaper editorials and other people have denounced the
President's and the President's defenders' use of legalisms and
hair-splitting when you and others have pointed out that what
the President said did not meet the legal definition of perjury
because his answers were either--his statements were either not
material because they were literally true even if perhaps
somewhat misleading.
I would point out that nearly every member of this
committee is a lawyer, so their disdain for the law is a bit
disconcerting. But, more importantly, my question to you is,
why are these legalisms important? Why not just forget about
these legalisms and the hair-splitting and just admit to
perjury or to lying under oath if that is necessary to make
some editorial writers less hostile or to get a few more votes
against impeachment? Why not just say, even if it is not really
perjury or lying under oath, why is enforcing a precise legal
definition of perjury important for all of our liberties?
Mr. Ruff. Thank you for the question, Congressman Nadler.
As I indicated in my opening statement, we didn't just dream up
the elements of perjury. They didn't spring full grown from the
forehead of some legislator, judge or lawyer. They come to us
from a jurisprudence that is very carefully designed to ensure
that when there is a charge that a human being committed
perjury, that is, knowingly lied, it can be distinguished from
testimony that may be actually truthful, evasive, misleading
but nonetheless the product of human frailty. We don't put
people in jail for that, and we certainly don't impeach them.
So I think the legalisms that we are legitimately accused
of using, we use them, no question about it, because that is
what we believe best reflects the seriousness and the gravity
of the offense that the Independent Counsel has charged the
President with committing. No one is defending the morality of
the underlying conduct. The President himself has said he was
evasive and misleading, didn't want to help the Jones lawyers.
But to get from there to a charge of perjury, even though I
believe at the end of the day perjury itself in this setting
would not warrant impeachment, requires a leap through hundreds
of years of law and protection that has grown up around that
particular charge.
Mr. Nadler. So, in other words, when we hear people saying,
forget about these legalisms, forget about this hair-splitting,
implying that even if the President didn't commit perjury under
oath or meet the legal definition of lying under oath, forget
about that, just say you did and then it will make some people
happy, happier about voting against impeachment for the
President, to do that would be--that would be a betrayal of his
oath, would it not?
Mr. Ruff. Indeed, indeed.
Mr. Nadler. Thank you.
Let me ask you--let me also point out that it is
interesting for members of this committee to advocate that
since it is this committee that recommends to the House the
legal definitions of things like perjury and other elements of
the criminal code; and if they are too strict, it should be
this committee that should change them.
I would also ask that some people have said that the
President is incapable of fulfilling his duties.
Chairman Hyde. The gentleman's time has expired.
The gentleman from Florida, Mr. Canady.
Mr. Canady. Thank you, Mr. Chairman.
Mr. Ruff, I want to thank you for your presentation here
today. The President chose well when he chose you as his White
House counsel.
Let me say also that I agree with some of the arguments
that you have made both in your presentation here today and in
the written submission to the committee. I agree with your
conclusion that this committee should have clear and convincing
evidence before we proceed with an article or articles of
impeachment. And I agree with you that this committee should
not rely on the referral's account of the evidence. I believe
that we have an independent duty to look at the evidence.
I would quarrel with your contention that we have decided
to rely on the referral. I don't think that is accurate. I
think we all understand that we have to go behind the referral
to look at the independent evidence that is before us. And your
presentation has helped point us to the portions of that record
before us that you believe are relevant to your client's
defense, and that has been helpful to us.
But let me say that I am still frustrated by what I
consider to be legal arguments that don't really meet the test
of common sense and human experience. And we have heard about
legalisms and I understand, I am a lawyer, I understand making
legal arguments and legalisms. But there is a point beyond
which things just don't make sense. And the contention that has
been made that when the President testified in his deposition
that he had no specific recollection of ever being alone with
Ms. Lewinsky, that that was truthful, I just don't think meets
the test of common sense and experience.
I understand that is your contention. But I have to
respectfully submit, using that as an example, that it just
does not stand up to analysis. I believe that when the
President gave those answers he was lying, and I come to that
conclusion reluctantly, but I think that viewing the evidence
in context, one can only reach that conclusion.
And I would say that the talk about legalisms and hair-
splitting, it isn't just coming from this side of the aisle. I
quote Mr. Daschle, the Senate Democratic leader, who said he
agreed with the people, this is in September, who have grown
impatient with hair-splitting over legal technicalities. That
is the Democratic leader in the Senate.
Mr. Gephardt himself said that he believed that this matter
was going to rise or fall not on the fine distinctions of a
legal argument but on straight talk and the truth. I am
concerned that we are still not getting straight talk and the
truth.
Now, let me also, as a legal matter, refer you to the
DeZarn case which was decided just a few weeks ago by the 6th
Circuit. This is a very interesting case dealing with perjury,
and it has some comments which I think are directly pertinent
to what we are considering here and which I candidly believe
directly undermine some of your contentions. In that case, the
court said----
Mr. Ruff. Can you give me the name again? I am sorry.
Mr. Canady. It is the DeZarn case, the United States versus
DeZarn, decided by the 6th Circuit, opinion filed October 14, 1998.
Mr. Ruff. Thank you.
Mr. Canady. There the court said, a perjury inquiry which
focuses only on the precision of the question, which you seem
to be doing quite a bit, and ignores what the defendant knew
about the subject matter of the question at the time it was
asked misses the very point of perjury. That is, the
defendant's intent to testify falsely and thereby mislead his
interrogators. Such a limited inquiry would not only undermine
the perjury laws, it would undermine the rule of law as a
whole, as truth seeking is the critical component which allows
us to determine if the laws are being followed. And it is only
through the requirement that a witness testify truthfully that
determination may be made as to whether the laws are being
followed. Indeed, that is the entire purpose of the sworn oath,
to impress upon the testifier the need under penalty of
punishment to testify truthfully.
I have to candidly submit that when the President was
asked, ``so I understand your testimony, is that it was
possible then that you were alone with her, but you have no
specific recollection of that ever happening,'' and he
answered, ``yes, that's correct, it is possible that she, while
working there, brought something to me, and at the time she
brought it to me, she was the only person there, that is
possible,'' the President was lying.
Mr. Ruff. Congressman, may I have just a moment to respond?
Chairman Hyde. Surely.
Mr. Ruff. Obviously, I am not familiar with the case, and I
will make myself familiar with it, and I don't know what
setting it arose in. I don't think there is any difference of
opinion, though, on the critical point that you seem to have
been making. It is not that anybody gets to choose any little
loophole in a question and slide through it and avoid
prosecution. You have to look at the question, make a
reasonable assessment of it, ask in a criminal case whether a
jury would find it sufficiently precise or not, and then ask
whether, in fact, the response to the question was such as
would permit a perjury charge.
I don't know what the questions were in DeZarn. I would be
glad to address those with you independently. But I don't think
there is an underlying concern.
My position is that any reasonable reading of what happened
in the Jones deposition would suggest that it, not to use a
legal term of art, was a mess.
Chairman Hyde. The gentleman's time has expired.
The gentleman from Virginia, Mr. Scott.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Ruff, were you given a list of the allegations that
we're actually pursuing? You are aware of the fact that Mr.
Starr started off with 11 allegations with subparts. Two days
ago, ABC News said that the Republicans were thinking of adding
some new ones. Yesterday, Mr. Hutchinson added another
statement of the grand jury that he thought might be added to
the list. Mr. Graham this morning added another allegation. The
scope of the inquiry has gone, has expanded and contracted to
include the Willey matter and campaign finance committee
matters and then not finance committee.
Have you been given a definitive list with specificity of
the allegations that we are actually pursuing?
Mr. Ruff. No, I haven't, Congressman. The last list I saw
was Mr. Schippers list of 15 points. It is an unusual
experience for me to be making a closing argument without quite
knowing what I am closing about, but----
Mr. Scott. Well, you are doing well. So I guess we have to
guess what the allegations are and, skipping through, I think
you ignored some of the allegations. 11, Count 11, ``there is
substantial and credible information that President Clinton's
actions since January 17, 1998, regarding his relationship with
Monica Lewinsky have been inconsistent with the President's
constitutional duty to faithfully execute the laws.'' And he
concludes, number 17, by saying, ``this represents substantial
and credible information and may constitute grounds for
impeachment.''
I did not hear you comment on part B of that, which cites
that ``Mrs. Clinton forcefully denied the allegations on
January 17th, 1998, one day after the President's public
denial'', and cites her appearance on the Today show. Did you
ignore that because you can't believe that we would actually
pursue that particular allegation?
Mr. Ruff. Well, with limited time, Congressman, I wanted to
touch on those points that I thought had the most weight. And
whatever one might think about the allegation that the
President himself misled the country, the notion that the First
Lady misled the country and that that would lead to bringing a
President down, putting him out of office did strike me as not
worth devoting the small amount of time I had this afternoon.
Mr. Scott. Do you have a comment on the presumption of
guilt that has been pronounced that if you don't--whether the
evidence is there or not, if you don't prove your innocence,
that in fact you will be presumed guilty? If nobody produces a
witness, if it is zero to zero at the end, then you will be
presumed guilty?
Mr. Ruff. Congressman, I truly do operate on the assumption
in this body, made up as it is almost of all lawyers, that the
basic principles are going to be enforced, which is, the burden
is on those who favor impeachment to show by clear and
convincing evidence that there are grounds for that. And I----
Mr. Scott. Can you get to a clear and convincing standard
with uncross-examined, contradictory statements?
Mr. Ruff. I can't, as my opening statement reflects,
conceive that, without some basis for assessing the credibility
of particular testimony, you could achieve that result.
Mr. Scott. Okay. So without knowing what the allegations
are, let us try to get to one of the allegations.
How do you conclude that Betty Currie--that the allegations
involving Betty Currie, why she wasn't going to be a witness?
Mr. Ruff. Well, I think you need to understand that as you
came to the President's deposition in the Jones case on January
17th you were essentially at the end of the pretrial process or
almost at the end of pretrial process in that case. Ms. Currie,
whose name was certainly not a secret to the Jones lawyers,
given the amount of information they clearly had about these
matters, had never put her on the list. She was very close to
the President. That was no secret. They never subpoenaed her.
Let me just make--give you a small anecdote. The President
sometimes has a way about him. And I was the victim of one of
those. If you look at the grand jury transcript, you will find
a moment in which, I forget whichquestion he was asked, and he
sort of looks at me across the room and says, I wish Mr. Ruff could
answer that question. I was taken aback. We smiled at each other and
went on about the President's testimony. I trust that that didn't make
me a participant in the Independent Counsel's investigation any more
than his reference to Betty Currie didn't make her a part of the Jones
case.
Chairman Hyde. The gentleman's time has expired.
The gentleman from South Carolina, Mr. Inglis.
Mr. Inglis. Thank you, Mr. Chairman.
Mr. Ruff, if there were a trial involving the President for
perjury, would anything that you have said here today be a fact
in such a trial?
Mr. Ruff. I believe that many of the facts to which I
referred and which I included in my presentation would be
essential elements.
Mr. Inglis. Would anything that you have said be a fact?
Mr. Ruff. No more than, with all due respect, Congressman,
anything said by any member of this committee.
Mr. Inglis. Right. The point is that you have not met the
standard that Mr. Craig pointed out.
And, by the way, earlier I was listening intently in the
committee room to what you were saying. But in the course--as
Mr. Craig said earlier, in the course of our presentation today
and tomorrow, we will address the factual and evidentiary
issues directly. The score is now zero to five. Five groups
have come before us. No one yet has addressed evidentiary
matters.
Mr. Ruff----
Mr. Ruff. I absolutely disagree with that.
Mr. Inglis. I understand you do, but you have just agreed
that there are no facts that you have testified to.
Mr. Ruff. No, that is not at all what I said.
Mr. Inglis. Let me ask you this, are there any witnesses
that you would like to have called but have failed to call?
Mr. Ruff. Congressman, I think that question, with all due
respect, betrays to me an inappropriate view of the process.
This----
Mr. Inglis. I understand--excuse me, with limited time, I
understand what you are going to say. You are going to say that
the burden of proof is not on you, and I think you are correct
in that.
The point I am interested in making here is the normal
White House spin operation is coming unglued under the light of
accountability here, because here Mr. Craig raised a very high
bar, and you are not meeting it. You are failing to meet what
the White House spin put out at the beginning of this
proceeding. And now that you have failed, you want to sort of
split hairs again about what it is that you are doing here.
Let me ask you this--I understand your response. Let me ask
you something very different. When the President said on
January 26, 1998, the famous finger-wagging experience, ``I did
not have sexual relations with that woman, Ms. Lewinsky,'' was
he lying?
Mr. Ruff. I responded to that question earlier, I forget
who put it to me, Congressman, and I will respond again. The
President has said flat out, no question about it, he intended
to mislead the American people, and he did mislead them because
he spoke in that--on that occasion on the assumption in his own
mind that sexual relations meant sexual intercourse. Just a
moment, Congressman. And he knew that most of the people
listening to him out there didn't understand the definition he
was using and thus would be misled into believing that----
Mr. Inglis. You see, I think that if you were consistent
with your argument on page 72 of the 184-page submittal, I
think your answer here today to the question I just put to you
should be, no, he did not lie.
Mr. Ruff. That is what I said. I said he misled
intentionally.
Mr. Inglis. So what is the difference been misleading and
lying?
Mr. Ruff. Because he believed, rightly so in his own mind,
that he was telling the truth, that he used the word sexual
relations to mean sexual intercourse and that he had not had
sexual intercourse with Monica Lewinsky.
Mr. Inglis. This is the heart of it then. That is not what
he was saying. What he said subsequently is he lied when he
said that with a finger wagging. But, you see, the finger
wagging is the same as what he said earlier, that he didn't
have sexual relations.
Mr. Ruff. I fear that your recollection of the facts and
the record is incorrect.
Mr. Inglis. Well, please straighten me. What is wrong here?
Mr. Ruff. You said the President admitted he lied. He
didn't.
Mr. Inglis. Well, leave aside the lying. Your word
misleading--you like the word misleading better than lying. I
understand that. For some reason, you like that better. But if
it is not the truth, I don't think--under consistent theory
with your submittal here, he was telling the truth when he said
that he didn't have sexual relations with that woman, Monica
Lewinsky. But he subsequently admitted to lying when he said
that. I lied to you, the American people, when I said I did not
have sexual relations with that woman.
Mr. Ruff. What he said was that he misled the American
people, and that is what he did. He did it wrongfully. He has
apologized for it.
And whatever your--Congressman, and I--look, I absolutely
respect your right, however misguided I believe it to be, to
have your own view of the record, but the fact is the President
said that he misled the American people and he did it with
malice of forethought because he wanted to hide this improper
relationship.
Chairman Hyde. The gentleman from North Carolina, Mr. Watt.
Mr. Watt. Thank you, Mr. Chairman.
Mr. Ruff, I followed Mr. Inglis in asking questions this
morning, and this is the question that I asked immediately
after he asked his question this morning, so I am going to open
it up and ask you the exact same question that I asked
following him this morning. Is there anything in the referral
or in any of the information that was submitted by the
Independent Counsel to this committee that could be admitted in
that form in a criminal proceeding?
Mr. Ruff. I suppose I might find a document or two in
there, but the essential question is, could you simply dump
that record in the laps of the Senate and say, go ahead and try
the case? No.
Mr. Watt. So I can ball that one back up now.
Mr. Ruff. Well, I would put it in your pocket.
Mr. Watt. Wait on the next round of questions then.
I am struck by how my colleagues on the Republican sidekeep
saying that this is not about sex, yet we have heard 2 hours worth of
testimony from Mr. Starr and all of your testimony and none of the
basic underlying charges that we started out with in this investigation
were even mentioned or hardly mentioned, and so I would like to go
through a series of questions which you, I think, can answer very
quickly just yes or no.
Mr. Ruff. I will do my best.
Mr. Watt. Is it true that the Independent Counsel back in
1994 was appointed to investigate matters related to
Whitewater?
Mr. Ruff. That is correct.
Mr. Watt. And have we ever gotten a referral from the
Independent Counsel on the Whitewater matter?
Mr. Ruff. No, sir.
Mr. Watt. And during his appearance before the committee on
November 19, was that the first time that we were told that we
would not be getting a referral on any Whitewater matter?
Mr. Ruff. The first I learned of any of those matters and
their status was on that date.
Mr. Watt. And Mr. Starr, after that, investigated the
alleged misuse of FBI files by the White House personnel; is
that correct?
Mr. Ruff. That's correct.
Mr. Watt. And we found out last month that Mr. Starr--that
was also a dry hole?
Mr. Ruff. Yes, sir.
Mr. Watt. And, next, Mr. Starr investigated firings of
personnel from the White House travel office; is that right?
Mr. Ruff. Yes.
Mr. Watt. And we found out last month that that was a dry
hole?
Mr. Ruff. Yes.
Mr. Watt. Do you recall the talk over the summer that the
key to this whole case was the so-called talking points that
were given by Ms. Lewinsky to Ms. Tripp?
Mr. Ruff. Yes.
Mr. Watt. Those are no longer an issue. We haven't heard a
thing about those, have we?
Mr. Ruff. I think we now learned where they came from, yes.
Mr. Watt. Would you agree that only part of Mr. Starr's
five-year investigation that hasn't been a bust is his
investigation of the President's sex life?
Mr. Ruff. Well, I am not sure I would buy into your
description. It is the only one that has reached this House.
Mr. Watt. It is the only one that is still going on that we
are still talking about. And we got it over here, and then we
start talking about investigating campaign finance matters. Do
you remember that a week or so ago, a couple of weeks ago?
Mr. Ruff. I do.
Mr. Watt. And then we dropped that one, didn't we?
Mr. Ruff. We did.
Mr. Watt. And then the Republicans decided to expand the
investigation into Kathleen Willey, you remember that?
Mr. Ruff. I do.
Mr. Watt. We dropped that one, too; right?
Mr. Ruff. I believe so.
Mr. Watt. And then the Republicans subpoenaed documents
from Mr. Starr relating to John Huang, you remember that
happening?
Mr. Ruff. I read about it.
Mr. Watt. And we withdrew that subpoena after a little
while, in a couple of days; right?
Mr. Ruff. So I understand.
Mr. Watt. And then there was a point at which the Secret
Service was going to get information about the President's
dealings with other Arkansas women. You remember some
discussion about that?
Mr. Ruff. Uh-huh.
Mr. Watt. They dropped that one, too.
Mr. Ruff. As far as I know.
Mr. Watt. So we are back to allegations about the
President's sex life. That is basically what this is about,
notwithstanding all the protestations to the contrary?
Mr. Ruff. Yes, sir.
Mr. Watt. Thank you, Mr. Ruff. I appreciate that.
I yield back, Mr. Chairman.
Chairman Hyde. Thank you, Mr. Watt.
The gentleman from Virginia, Mr. Goodlatte.
By the way, just parenthetically, a lot of things you just
dropped ain't dropped. Just thought I would mention that.
Mr. Watt. It would be nice to know when we are going to get
them.
Chairman Hyde. You will know in good time.
Mr. Watt. I am sure it will be next year in the next
Congress.
Chairman Hyde. You got that right.
Mr. Watt. After the election.
Chairman Hyde. It is all after the election.
The gentleman from Virginia, Mr. Goodlatte.
Mr. Goodlatte. Thank you Mr. Chairman.
Mr. Ruff, I would like to follow up on a line of questions
that the gentleman from Florida, Mr. McCollum, pursued with you
earlier.
You said to us in your statement that, with regard to the
grand jury testimony of the President, that two of the
instances cited by the Independent Counsel you explained with
what I would call and I think we have been calling today
legalisms or legal hair-splitting, but on the third one, your
answer was interesting to me. That was this issue of the nature
of the relationship between the President and Ms. Lewinsky.
In that case you said to us, take the evidence in the light
most favorable to Ms. Lewinsky, take the evidence as Ms.
Lewinsky said it. Would that rise to being an impeachable
offense?
I took that to mean an acknowledgment that if we do take
the evidence as provided by Ms. Lewinsky, which I think is very
strong and which is corroborated by her previous statements to
other people, long before anybody knew anything about the
significance of this, that she said to friends, the computer
printout on her computer of an apparently half-written letter
that makes reference to her description of the relationship,
all of that corroborating her testimony, I do take it as
correct.
And I would like you to explain to me why, if the committee
does take that testimony as being the accurate testimony, and I
believe that the vast majority of the American people on the
issue of whether or not the President had any contact with her
while this was going on would agree with her statement as well,
as detailed as it is, why thatdoes not constitute perjury.
Mr. Ruff. If, in fact, you were to believe Ms. Lewinsky's
description of those particular events and conclude--in this
setting by clear and convincing evidence or, since we are
talking about perjury in a criminal case, beyond a reasonable
doubt--that she was right and the President was wrong, then you
could legitimately conclude that there was a basis for
believing that a jury would find the President guilty of
perjury.
But I suggest two things: First, and I think you heard
exactly this from the panel this morning and I base this partly
as well on my own prosecutorial experience, I can't conceive of
a case going forward to a petit jury on that basis. But even
putting that aside, what you have, in essence, is Ms.
Lewinsky's saying X and the President saying not X. And the
corroboration that you look to and that, with all respect, that
Congressman McCollum looked to, I think is not a legitimate
basis of support----
Mr. Goodlatte. Let me respectfully disagree, and let me go
to another point, because you have and I have very limited time
here.
But you have also made the contention that this is simply
about lying to cover up a personal embarrassment. But isn't it
true, Mr. Ruff, that moments after the President completed that
testimony before the grand jury he went before the American
people and admitted an embarrassment, ``which he acknowledged
his side of what took place there? Isn't that really the reason
why he committed what I think is that perjurious statement? Not
to avoid embarrassment, because he had already embarrassed and
disgraced himself, but for the purpose of covering up a
previous lie in the testimony before the civil--the deposition
in the civil case because of the fact that if he acknowledged
what Ms. Lewinsky says took place, he would be acknowledging
that what he said earlier were falsehoods and that he knew they
were falsehoods in that case.
So his intent here was not to cover up an embarrassment but
to avoid prosecution for a crime, that crime being perjury and
obstruction of justice in the earlier case. And he compounded
it 7 months later by continuing his perjurious activity by
lying before the grand jury.
And I think that you have accurately stated that if we
believe what Ms. Lewinsky stated, not only in her deposition
but what she stated to other people over a long period of time,
before it was ever even known that this was an issue, if we
believe that, then the President of the United States has
indeed committed perjury before the grand jury.
Mr. Sensenbrenner [presiding]. The time of the gentleman
has expired.
Mr. Ruff. May I have one moment?
Mr. Sensenbrenner. Of course you can.
Mr. Ruff. Thank you.
Two points. One, the kind of ``corroboration'', that you
refer to, statements to other people, for the reasons already
addressed and addressed by Mr. Davis at length this morning,
simply would not fit into any prosecutor's calculations in
deciding whether or not perjury had occurred.
Second, and this was the point I made in my opening
statement, I believe, I am convinced and I think the weight of
scholarly evidence would lead to the conclusion that, even if
you reach that conclusion, that is your conclusion, not mine,
about whether the President lied or not in that deposition, in
that grand jury testimony, it still doesn't warrant removing
him from office.
Mr. Sensenbrenner. The gentlewoman from California, Ms.
Lofgren.
Ms. Lofgren. Mr. Ruff, thank you for being here today and
for conducting yourself with such intelligence and clarity and
dignity. I think that you have helped not just all of us but
the American people to understand what some of these issues
are.
I was interested in your earlier exchange with Mr. Gekas
about the phrase ``Treason, Bribery and other high Crimes and
Misdemeanors?'' Thinking back to all of the reading that I have
done in the notes of the Constitution and the Federalist papers
and the like, it seems to me clear that what the Founding
Fathers had in mind with treason and bribery was to protect the
integrity of the chief executive's loyalty towards the United
States. And all the discussion I can recall in those original
documents had to do with a fear that a chief executive could be
the recipient of bribes and, therefore, have his loyalty
diverted from the new country, the new America. They were also
very concerned about titles and other emoluments and that their
newly elected executive might become nobility, which they were
trying to escape.
The other high crimes and misdemeanors had to do with the
other acts that would subvert the Constitution that were not in
the first two categories, and as we discussed throughout these
proceedings, there are really two ways to look at that. One is
in terms of conduct that is so egregious that it prevents the
discharge of the constitutional duties of the President, and it
occurs to me that that is not just a matter of an opinion. I'm
interested in your comment on this.
In a sense, that is the one area that is really subject to
the judgment of the American people, whether or not the
President's duties can be discharged, thinking ahead, if we
were to have a trial in the Senate on these charges for the
next six months to a year, wouldn't we have to go and prove up
how many Mideast peace settlements have been established, how
many Northern Ireland peace settlements, how is the economy as
part of that whole system? Wouldn't that be part of the
evidence that would need to be put on?
Mr. Ruff. Thank God I've never had the opportunity to try
an impeachment. There is no--first let me say that your
analysis of the issue that Congressman Gekas and I were
discussing was framed much more articulately than I did and I
think is exactly correct.
The issue of the President's capacity to govern, whether it
be Mideast, economy, Ireland, what have you, is what has to
underlie every Senator's vote and indeed the vote of every
member in this committee and the House. I'm not sure whether we
would introduce evidence or whether it would simply be taken as
a matter of public knowledge as to what the President is doing
and how he is doing it, and whether overturning the verdict of
the election is going to damage our country.
Ms. Lofgren. That's really the question we need to face,
but I think there are other issues that obviously we are
dealing with, which is what Professor Van Alstyne, Mr. Starr's
former law professor, termed minor crimes, petty crimes.
As I was listening to both Mr. Inglis and Mr. Gallegly ask
how could something be misleading and not a lie, I was thinking
about cross-examination and sort of the issue of ``did you
spend $10 today'' and you answered ``ham sandwiches cost four
bucks.'' It's the obligation of the questioner then to go back
to the expenditure question. Do you feel that was done in this
case vis-a-vis the President's testimony? Is that part of the
problem why this misleading confusion has occurred?
Mr. Ruff. That's certainly a large part of it,
Congresswoman Lofgren. I think any amongst the many trial
lawyers here who go back and look at that deposition will
realize that for whatever reason, there were--there was never a
follow-up, and the example you give is a good one. And I might
just note that at the very beginning of the deposition, Mr.
Bennett, the President's lawyer, urged Ms. Jones' lawyers to
ask the most special detailed questions and they declined to do
so. And I think maybe that set a process in motion that we're
living with today.
Mr. Sensenbrenner. The gentlewoman's time has expired.
The gentleman from Indiana, Mr. Buyer.
Mr. Buyer. I reserve my time.
Mr. Sensenbrenner. The gentleman from Tennessee, Mr.
Bryant.
Mr. Bryant. Thank you, Mr. Chairman.
Good afternoon, counselor. I just want to make a quick
comment and ask you two or three questions. We're still having
a problem in my district with some of your wording, and I say
``you'' collectively meaning the White House, in terms of
squaring with the oath to tell the whole truth. Your concept
that he can give incomplete testimony that seems opposite when
you talk about giving incomplete testimony and telling the
entire truth; also, the other part of the oath about nothing
but the truth with evasion. They just seem opposite, how you
can evade a question and say nothing but the truth and how you
can give incomplete answers and say the whole truth. Because we
understand that both misleading answers and evasive answers are
all--all tend to thwart the judicial system in its efforts to
get at the truth.
Let me ask you a couple of questions, if I could. I want
you to--you put yourself in the President's mind today, and I
want you to put yourself--this is a hypothetical--put yourself
in the President's mind, his thinking process, and, using the
Jones definition of sexual relations, could he agree that
Monica Lewinsky had a sexual relationship with the President?
Mr. Ruff. If I understand your question, it is using the
Jones deposition definition, the conduct that he engaged in
with Ms. Lewinsky----
Mr. Bryant. No, did she have a sexual relationship with
him, the conduct she engaged in?
Mr. Ruff. I guess I would have to have the definition in
front of me in the sense that she was the moving actor in
whatever----
Mr. Bryant. You haven't thought about this?
Mr. Ruff. No, I really have not.
Mr. Bryant. The reason I asked that is she would have had a
sexual relationship.
Mr. Ruff. Please don't hold me or my client to this, but I
think that is probably correct.
Mr. Bryant. Under his definition, he would not have had a
sexual relationship with her?
Mr. Ruff. That is correct.
Mr. Bryant. He has brought forth the idea that one party
can have a sexual relationship with another party, but that
other party not have a sexual relationship with the first
party. That's my understanding.
Mr. Ruff. No, it isn't. It's not as though you and I were
having this conversation in a vacuum. What he had in front of
him is, I have to tell you, one of the strangest definitions I
have ever seen, and in fact it was a one-sided definition and
not a two-sided.
Mr. Bryant. You've answered my question. She did and he
didn't, so. Let me ask you also, you mentioned that the
President--and you've made something of an apology today. The
President has had two opportunities to give this committee, the
House, testimony in these proceedings, the grand jury testimony
to the Independent Counsel and his answers to the 81 questions.
And you've indicated that, in your wording, his answers were
evasive and misleading and even maddening. You left out
incomplete, which Mr. Craig said yesterday.
Mr. Ruff. He'll remind me of that.
Mr. Bryant. But now, with all due respect, that apology
seems somewhat hollow. In fact, you helped the President over
the Thanksgiving holidays construct the answers to those 81
questions, did you not?
Mr. Ruff. I sure did, yes, indeed.
Mr. Bryant. And surely in preparation for his deposition,
Mr. Kendall and probably others and you helped him prepare on
how to answer those questions?
Mr. Ruff. No, only Mr. Bennett. I take no responsibility
for it.
Mr. Bryant. But your apology that boy, he's just a terrible
client to work with, he's maddening, you folks are the ones
helping him do that, and for you to come in today, it rings
sort of hollow to apologize for that. You're responsible for
this, too.
Mr. Ruff. I will take whatever responsibility falls on me,
but let me make this point because I'm glad you raised the 81
questions. I know there's been a lot of discussion here and in
the committee and the press about how somehow those 81
questions were stiff-arming the committee. I have to tell you I
disagree with that, not only because of the introduction to
them in which the President reflects his continuing contrition
but because--very honestly those questions were framed, for
example, ``At 1:02 a.m. on February 18, did you have. . . The
fact is that neither you nor I expect the President to do
anything other than to say ``I don't remember specifically, but
I will tell you that in fact myrecords reflect I did have a
conversation on that day.''
Mr. Sensenbrenner. The gentleman's time has expired. The
gentlewoman from Texas, Ms. Jackson-Lee.
Ms. Jackson-Lee. Thank you very much, Mr. Chairman.
Let me say to Mr. Ruff that your testimony has been both
compelling, convincing, and understandable. And I just would
like to take judicial note of the fact that you had already
indicated to this committee if you thought that you were being
asked to do something other than what an officer of the court
should do, you would not be here or be still in the White
House, and that's an understanding that you have made on the
record.
But I do want to start from your premise, ``Did the
President do something so wrong deserving of impeachment?''
Frankly, I have in my mind here a letter that I wrote to the
President extending to him my concerns about issues in my
district, particularly the energy industry with the enormous
number of mergers and loss of jobs, and frankly have called
upon his good services for us to begin to look at how to solve
this portending crisis. I'd much rather be dealing with the
needs of my constituents, but I'm obligated to be here.
And frankly we have to do the very best job that we
possibly can. And so I want to just put in the record, because
there seems to be again a lack of clarity about perjury, the
words of Jim Cole, a public integrity lawyer here, and I think
he says it in a way a layman can understand: ``Perjury, it
seems, comes down to what the person said, what they understood
themselves to be saying, and what they understood the question
to be.''
And we've gone over and over this. I think we can't be any
clearer. So let me say this. Let me change the score. Let me
come into the game and change it. Five for the defense and zero
for those who don't understand what we've been doing here these
past two days.
But I would like to go straight to the question of this
number 11 in the referral by the OIC, that says there is
substantial and credible information that President Clinton's
actions since January 17, 1998, regarding his relationship with
Monica Lewinsky has been inconsistent with the President's
constitutional duty to faithfully execute the laws. Included in
that, subsets B and C, and he says the First Lady--can I say it
again--``The First Lady, the Cabinet, the President's staff and
the President's associates relied on and publicly emphasized
the President's denial.'' I am speechless. The First Lady?
Constituting abuse.
Can I ask you a question? Abuse of power requires use of
power. Did President Clinton in any way ask any of the members
of his Cabinet to use the powers of their office to help cover
up his affair with Monica Lewinsky?
Mr. Ruff. No, Congresswoman. I think the point that's been
made there in our submission that I think really goes to the
heart of it is the President had already, and he's admitted it
and we all have, misled the American people in public
statements. It's a little difficult to contemplate a setting in
which persons who listen to him make those public statements go
out and say ``I believe the President'' and then he finds
himself accused of misusing his power.
Ms. Jackson-Lee. So he did not actively engage in meetings
and conversations to devise strategy for them to go out and
perform what has now been alleged to be abuse of power by their
statements?
Mr. Ruff. Obviously I can't speak to all the discussions he
had with Cabinet members and others, but the point that the
referral makes, which is that they listened to the President
say ``I didn't do it'' and then went out and said ``I believe
the President,'' struck me when I read it, particularly against
the backdrop of the events of 1974, as an odd proposition to
have constituted an abuse of power.
Ms. Jackson-Lee. Let me go immediately to this other more
chilling example, and that is the question of executive
privilege and the use of the Africa statement. I cannot believe
in the referral that--the distortion of what was actually said.
Can you just comment on that? The question was about the First
Lady's being covered by executive privilege, and this is now
being cited as an answer to the question of executive privilege
for everyone.
How did you find this, and did you find this stunning to
have this left out, the entire transcript of the actual words
of the President that would have said to us that he did not in
fact lie by saying ``I know nothing about it, I didn't talk to
the lawyer.'' Could you just give me that again? It is
chilling, it is pernicious. I cannot believe it.
Mr. Ruff. I'm going to surprise everybody by being kind to
the Independent Counsel. What I believe happened is--forgive
me, Washington Post, if you're here--they read the ``Washington
Post'' story for that day, which carried only part of the
dialogue and had relied on the very limited line they used as
though the President was referring to executive privilege. So I
don't attribute evil motive but I do attribute error, and
that's what I wanted to bring to the attention of the
committee.
Mr. Sensenbrenner. The gentlewoman's time has expired.
The gentleman from Ohio, Mr. Chabot.
Mr. Chabot. I thank the Chairman.
Mr. Ruff, you were asked earlier whether you believed the
President lied under oath, and you replied that you would like
to associate yourself with Mr. Craig, another lawyer of the
President who believes the President did not lie under oath,
rather than with one of the witnesses the other day, another
witness presented by your side, Mr. Owens, who believed that
the President did lie under oath; and that's correct, right?
Mr. Ruff. Mm-hmm.
Mr. Chabot. Let me associate myself with Mr. Berman and
with Mr. Schumer, both Democrats on this committee, who after
looking at all the evidence in this case have concluded that
the President did indeed lie under oath. Now, we may disagree
as to what the consequences of that lie under oath might be but
nonetheless, we've reached a conclusion that this President did
lie under oath.
Let me turn to something else. You also said in your
statement, and I quote, ``It's clear that many in the majority
have already reached their conclusion.'' Have you heard
anything from the minority which leads you to believe that they
haven't reached a conclusion or reached one quite some time
ago?
Mr. Ruff. Congressman, I'm here with no, pretense. to
represent the President of the United States in this
proceeding. Obviously I would hope that we have convinced
members of the minority and members of the majority that we are
in the right here. My goal as an advocate, which is what I am
today, is to reach the people whose minds I want to change, and
that's what I was trying to do today.
Mr. Chabot. Thank you. Also in your statement, you saidthat
you were not going to, and I quote, drag us through the salacious muck
that fills the referral. And I thank you for not doing that, but let's
not forget that it was the President's own conduct which caused the
subject matter of this hearing to be what it is.
Now, if he had lied about bribery, it would have been about
that. If he had lied about a bank robbery, it would have been
about that. In this case, he apparently lied under oath about a
sexual harassment lawsuit, so that's what it's about, whether
we like it or not.
Let me ask you this. Why do you think the President called
Ms. Lewinsky, somebody he obviously knew quite well, ``that
woman''?
Mr. Ruff. You know, I don't know, Congressman. I think at
that moment as he was standing there in the Roosevelt Room
trying to be as forceful in his denial as he could be, those
words came out. But I wouldn't begin to try to explain to you
what caused that to happen.
Mr. Chabot. He obviously knew her quite a bit better than
referring to her as ``that woman''.
Mr. Ruff. Absolutely, and there's no question about it.
Mr. Chabot. You stated in the preface to your written
submission that you made to this committee that nothing the
President has done justifies criminal conduct, correct?
Mr. Ruff. That's correct.
Mr. Chabot. In that case, I assume that there's no reason
for the President to grant himself a pardon before he would
leave office for any criminal acts that he might have
committed. Can you assure us that President Clinton will not
pardon himself or that he will not accept a pardon from any
presidential successor?
Mr. Ruff. Absolutely.
Mr. Chabot. Thank you. Let me conclude by asking you this.
In this written defense that you submitted to us, you again
went into this legalese thing, which I really think is a
mistake that you all do, and you talk about ``alone'' and you
told this committee that the term ``alone'' is vague unless a
particular geographic space is identified. I would strongly
encourage you to drop that line of defense. I think if this
President and his advocates would come forward and tell the
truth, if they'd done that a long time ago, I don't think the
President would be in the jeopardy he is in right now, and I
would just strongly suggest that he come forward, come clean,
tell the American people the truth, and let the chips fall
where they may.
Mr. Ruff. I appreciate that.
Mr. Sensenbrenner. The gentleman's time has expired.
The gentlewoman from California, Ms. Waters.
Ms. Waters. Thank you very much. I too must join my
colleagues in complimenting you on the job that you've done
here this afternoon. I think you did a fantastic job of further
taking apart really the allegations that we've been presented
with and you just--you were able to build on what was said by
the witnesses who were--who this morning were discussing
prosecutorial standards for obstruction of justice and perjury.
They, too, did a fine job. I don't know what else can be done
with these issues.
You've made it clear what the legal definitions of perjury
are. We've discussed in detail obstruction of justice and
bribery. The other side of the aisle, my colleagues cannot
overcome the factual information that's been presented to us.
As a matter of fact, the more we get into these allegations,
the flimsier they are. I mean, in essence they're rather
lightweight.
They would have some believe that we on this side of the
aisle are simply some kind of liberals and that we're not
paying attention and they don't know why this turns out to be a
rather partisan effort. Well, let me just say this. We have
members on this side of the aisle that I disagree with all the
time. This turns out to be a partisan effort simply because the
allegations are lightweight, they're flimsy, they can't prove
the point, and the tactics that have been used by Ken Starr are
tactics that many of us and I in particular have real problems
with.
It is central to the civil rights movement of which I'm a
part of, which my life's history is all about, that we pay
special attention to the justice system, and we are absolutely
focused on abusive tactics by prosecutors around this country.
We are not happy about what happened to Monica Lewinsky. We're
not happy about what happened to Julia Still. We're not happy
about what happened to Rob Hill's son in the subpoena that was
issued at the school. We're not happy about intimidation. So we
cannot trust an investigation where these kind of tactics have
been used.
And I want to just add to this. That we believe that Mr.
Starr came with a bias. When Mr. Lowell, our attorney,
questioned him here in this committee and asked him about
connections of his law firm, about Mr. Richard Porter, about
his contacts with Paula Jones' lawyer, he answered by saying
things like ``Well, to my best recollection'' and ``I'm not so
sure I had those conversations with them,'' and then he said
``I'm not sure'' so many times until he finally ended up saying
``Well, you can fault my judgment if you will, but just frankly
it did not occur to me, as I think it happens to a lot of us in
life.'' At the same time, we have colleagues from the other
side of the aisle who claim any representations about the
President that he did not recall is somehow lying.
I just want to get away from the flimsy allegations. They
don't mean anything. I don't want to talk about the abusive
tactics anymore. But I do want to talk about this bias that Mr.
Ken Starr comes with.
Do you have information about contacts with Paula Jones'
lawyers and/or information about the connection of his law firm
with that case at all?
Mr. Ruff. I think what we know has been set out in our
submission. It emerged during Mr. Kendall's cross-examination
of Mr. Starr, and it certainly suggests that there were
contacts and involvement with the Independent Counsel's law
firm and the Jones' lawyers that in our view should have given
serious pause to anyone who was undertaking this particular
prosecutorial task.
Ms. Waters. Did he tell Attorney General Reno about those
tactics when he sought to expand his jurisdiction?
Mr. Ruff. Not to my knowledge, Congresswoman.
Ms. Waters. Thank you very much.
Chairman Hyde. The gentlelady's time has expired.
Mr. Barr of Georgia.
Mr. Barr. Thank you, Mr. Chairman. Mr. Chairman, let me
state for the record a couple of important items for those who
believe perjury may not be a serious offense whether it is
looked at in the context of a constitutional issue involving
impeachment or in the context of criminal prosecutions.
I know that our learned witness is very, very familiarwith
the Federal sentencing guidelines which provide that perjury is even a
more serious offense than offering, giving, soliciting, receiving a
bribe. I know also he's very familiar, as the other attorneys are on
this panel, that there are enhancements for sentencing under Federal
criminal procedures for those in a position of trust, which I would
presume all of us would believe includes the President of the United
States of America. And I know that the witness is also intimately
familiar with the U.S. Attorneys' manual that provides, quote, because
false declarations affect the integrity of the judicial fact-finding
process, all offenders should be vigorously prosecuted, closed quote.
So for any who believe that these are not serious offenses
that we are looking at here, the procedures under the
Department of Justice for United States Attorneys as well as
for Federal judges in sentencing those convicted of the
offenses of obstruction, bribery, or perjury, understand that
they are indeed very serious.
With regard, Professor Ruff, to the procedures----
Mr. Ruff. You're taking me back too many years,
Congressman.
Mr. Barr. More than we'd like to think.
Professor, with regard to some of the provisions of Title
18, I understand your reticence to go into great depth about
perjury. I believe that the elements of perjury are here.
But let's put aside that for a moment and focus on some
other provisions of Title 18 that I really believe are much
more problematic for the President, and that is Section 1505,
obstruction; Section 1512, tampering with witnesses; and of
course for both of those you have to look at the definitions,
which I'll come back to in a moment; as well as Section 1623,
false declarations before a grand jury, which as you know does
not contain the additional element of willful, just that a
person makes false declarations knowing that they contain false
material.
The problem is that when you look at these provisions of
Title 18, as you know, one doesn't look at them just in a
vacuum. One has to look at the definitions, and when one looks
at the definition for misleading conduct, it means knowingly
making a false statement. So, for example, if somebody walks
into a room and makes a statement to somebody that either is or
reasonably could be presumed to be a witness in an existing
proceeding, and makes a false statement to them, they have
engaged in misleading conduct which is--falls within--is the
definition which applies to tampering with a witness.
So I think the President has a very serious problem when
one looks at the statements that he made to Betty Currie the
day after he gave his deposition in which he referred to her
many times. So certainly he could presume--we've already
established this morning that he was not acting as her attorney
and she was not contemplating hiring him as her attorney, in
which case it might make sense for him to talk with her about
certain testimony that she might be giving, so I think one is
left with the very clear inescapable conclusion that this was
misleading conduct within the definition applicable to Section
1512, tampering with witnesses.
One also I think has to conclude that the President has
other serious problems with regard to these provisions of Title
18 with regard to the definition of sexual relations. The
definition of sexual relations, while you have correctly
pointed out it does not include a specific reference to oral
sex, it does include a very, very wide and expansive variety of
activity that clearly falls within the definition--within the
activity unrebutted by the President as late as today that
Monica Lewinsky testified to under oath.
When you look at the fact that there were false statements,
when you look even at the fact that even if we presumed they
were not technically perjurious, I think clearly they fall
within the ambit of these other provisions of Title 18, and
notwithstanding that we all agree that you do not need to
establish a criminal offense to impeach, I think clearly they
do.
So I respect your arguments. They are indeed argument,
eloquent as they are, but I think the President has a very
serious problem in violating these provisions of Title 18.
Chairman Hyde. The gentleman's time has expired. The
gentleman from Massachusetts, Mr. Meehan.
Mr. Meehan. Thank you, Mr. Chairman.
Mr. Ruff, in looking over pages 207 and 208 of the referral
relative to the President's statements while he was in Africa,
while you may view your comments as defending the Independent
Counsel, I don't know. Where I come from, if you make a
submission to any court of law and you're a prosecutor and you
say to the judge, ``Sorry, we've got that wrong, Your Honor,
but we relied on the Washington Post'' or any other newspaper,
that generally would be the basis of admonishment from the
judge, and I'm being kind. Prosecutorial misconduct
potentially. But I think with that bit of misinformation, the
report is consistent with a lot of information that is in this
report.
Again, where I come from, a failure to provide exculpatory
evidence or all of the evidence is the basis upon which in
Massachusetts, that's what prosecutorial misconduct is all
about, the failure to provide evidence which tends to show the
innocence of the target of an investigation.
But let me go to the record. Mr. Ruff, in arguing that the
President lied in his civil deposition about whether he had
talked to Vernon Jordan about Ms. Lewinsky's involvement in the
Jones case, the referral cites the following exchange:
Question. Did anyone other than your attorneys ever tell
you that Monica Lewinsky had been served with a subpoena in
this case?
President Clinton. I don't think so.
Now, that might be a false statement by the President,
except there's one problem. The referral failed to cite the
entire exchange on this subject. The entire exchange was as
follows:
Question. Did anyone other than your attorneys ever tell
you that Monica Lewinsky had been served with a subpoena in
this case?
President Clinton. I don't think so.
Question. Did you ever talk with Monica Lewinsky about the
possibility that she might be asked to testify in this case?
President Clinton. Bruce Lindsey. I think--Bruce Lindsey
told me that she was--I think maybe that's the first person who
told me she was.
Now, the President's answer, ``Bruce Lindsey,'' clearly is
an answer to the first question about whether anyone asked the
other attorneys--any of his attorneys told him that Ms.
Lewinsky had been served with a subpoena. Indeed, it doesn't
make any sense as an answer to the second question. The
referral fails to mention the Bruce Lindsey answer. Fails
tomention it.
Mr. Ruff, in light of this omission, is the referral's
presentation on this subject fair or balanced?
Mr. Ruff. Both your analysis and your imitations are
exactly on the mark.
Mr. Meehan. I don't mean to cut you off, but let me go to
the obstruction of justice, the gifts. Mr. Ruff, the referral
chose to accept Monica Lewinsky's claim that Betty Currie
suggested the idea of picking up the gifts from Ms. Lewinsky's
apartment rather than Ms. Currie's conflicting claim that Ms.
Lewinsky initiated the transfer of the gifts. Now, in
explaining why it believed Ms. Lewinsky's testimony, quote,
made more sense than Ms. Currie's testimony, the referral noted
that Ms. Currie drove to Ms. Lewinsky's house to pick up the
gifts and then claimed, quote, the person making the extra
effort-in this case, Ms. Currie is ordinarily the person
requesting the favor, end quote. Now, that's incredible.
Let me repeat the rationale used by the referral to resolve
the differences in the testimony between two key witnesses on a
critical point. Quote, the person making the extra effort is
ordinarily the person requesting the favor.
Mr. Ruff, do you think that that sort of speculation, and I
guess you could call it pseudo-psychology, would ever be a
legitimate or rational basis to draw this kind of a conclusion?
Mr. Ruff. I surely do not.
Mr. Meehan. Mr. Ruff, the referral claims the President
encouraged Monica Lewinsky to file an affidavit which he
allegedly knew would be false. This claim is based on the fact
that during a December 17, 1998, conversation with Ms. Lewinsky
about her filing an affidavit in the Jones case, the President
allegedly repeated a cover story that he and Ms. Lewinsky had
formulated early on in their relationship.
Now the President testified before the grand jury that he
did not recall repeating that cover story on that date. So we
have a case where the President's account conflicts with Ms.
Lewinsky, and of course the referral believed Ms. Lewinsky.
But later on when the grand juror asked Ms. Lewinsky on
August 20, 1998 whether she had any discussions about cover
stories with the President after she learned she was a witness
in the Paula Jones case, Ms. Lewinsky responded, ``No, I don't
believe so. No.'' Not in the referral.
Chairman Hyde. The gentleman's time has expired.
Mr. Meehan. Thank you.
Chairman Hyde. The gentleman from Tennessee, Mr. Jenkins.
Mr. Jenkins. Mr. Chairman, I would like to reserve my time.
Mr. Hyde. The gentleman reserves his time.
The gentleman from Arkansas, Mr. Hutchinson.
Mr. Hutchinson. Thank you, Mr. Chairman.
Mr. Ruff, I want to make sure I characterize this
appropriately. The President has apologized for his personal
conduct or misconduct, but he has denied any legal wrongdoing.
Mr. Ruff. That's correct.
Mr. Hutchinson. So if there's any violation of the law, it
is fair to say that he has not accepted responsibility for
that?
Mr. Ruff. He's accepted responsibility for his conduct. If
someone determines--you described it, Congressman. Let me just
try to be responsive. I want to be as responsive as I can be.
He has taken responsibility for his conduct. We believe and I
believe the better answer to the question is it was not
criminal.
Mr. Hutchinson. Well, all right. I think that could have
called for a simple yes or no. I will accept what you said.
Mr. Ruff. I apologize for that.
Mr. Hutchinson. Now, in your presentation of the defense,
and I think you had as much time today as you wanted, and you
did an excellent job, by the way, Mr. Ruff.
Mr. Ruff. Thank you.
Mr. Hutchinson. I was listening. You covered the
allegations of perjury before the grand jury. You covered the
abuse of office, and you covered the obstruction of justice
charges. I did not hear any discussion from you on the
allegations of perjury from the deposition testimony.
Mr. Ruff. I did cover it in this fashion. I said, I
believe, in my opening statement that I think if you look back
at the colloquies that occurred during that deposition, you'll
be struck by the President's admitted, evasive, misleading
answers which I do not believe were lies. But you will also be
struck by the absolute mess the deposition was in terms of the
questions that were put.
Mr. Hutchinson. I did spend some time last night looking
over the President's response prepared by his lawyers to the
charges, and if you have that, if you would refer to page 79
and 80, particularly page 80, I just wanted to ask you some
questions about the civil deposition. The question deals with
the charge that the President was not truthful when he was
asked about his conversations with Monica Lewinsky and
particularly whether she told him that she had been served with
a subpoena in this case. And I would underline, ``Did she tell
you that?'' And the answer was, ``No.''
The essence of the question is the conversation with Monica
Lewinsky and whether the President learned from her that she
had been served with a subpoena in the case.
Now, earlier, you said once again that the charge of false
testimony--I'm at the top of the page on the right--is based on
a wholly inaccurate reading of the President's deposition. The
President acknowledged that he knew that Ms. Lewinsky had been
subpoenaed.
Now, to me, that's not the issue addressed by the question,
whenever you say the President acknowledged that he knew Ms.
Lewinsky had been subpoenaed. The question was, did Ms.
Lewinsky tell you that she had been subpoenaed?
Mr. Ruff. And if you actually will go back and look at the
context in which--I'm now looking at page 80. If you look at
the context in which the Q and the A that are cited here and
that you referred to occurred, there was a long series of
questions about when was the last time that you saw Ms.
Lewinsky, and it was in that setting that this question arose.
In the broader setting of all the questions that were going
back and forth with the President on this subject, the point
we're making is--because this is the point that the Jones
people were getting at--was did you know that she had been
subpoenaed and, if so, at what time?
The critical issue I think you'll find in that
context,Congressman, was not, was it she who told you? It was, in the
setting of those meetings and conversations, did you know that she had
been subpoenaed?
Mr. Hutchinson. Let me say, because I'm going to run out of
time, that I would like to develop this factually for a long
time with you, but it appears from reading your defense, that
you set up a false charge and then you respond to the false
charge. You're not responding to the charge of the perjury on
the question ``Did she tell you that she had been served a
subpoena in this case?''
And on the next page, on page 81, there is a lengthy
question and answer and you're critical of Mr. Starr, but here
there is not a complete recitation of the Q and A in the
deposition. There's a lot more that transpires in the
deposition.
Chairman Hyde. The gentleman's time has expired.
Mr. Ruff. Indeed, I grant you that.
Chairman Hyde. The gentleman's time has expired.
The distinguished gentleman from Massachusetts, Mr.
Delahunt.
Mr. Delahunt. Thank you, Mr. Chairman.
I'll be very brief. Mr. Ruff, would you care to further
elaborate on your answer to Mr. Hutchinson?
Mr. Ruff. I think the point I was trying to make, in no
sense would we ever want to do what we indeed have accused
Independent Counsel of doing and that is to skew the record
here. But the point that I think needs to be made in response
to Congressman Hutchinson's concerns is that the context in
which this dialogue occurred was a dialogue over at what point
did the President know that Ms. Lewinsky had been subpoenaed.
The issue, I think it's fair to say, and my colleagues
behind me will elbow me if I don't have it right, was when the
President last talked to Ms. Lewinsky, did he at that time know
that she was--she'd been subpoenaed. In that setting, what is
being done here, I think, in the Independent Counsel's analysis
is to focus in on that one Q and A without grasping the full
universe of questions and answers that were on that subject.
Mr. Delahunt. Thank you, Mr. Ruff.
Let me just say I generally want to extend my appreciation
because you definitely have provided context and texture to the
referral from the Office of Independent Counsel. And I hope the
American people are listening.
You know, the President and the administration have been
accused of hair-splitting, semantic gymnastics, and we're
talking a lot of conversation. Part of the dialogue today has
been about the definition of sexual relations. And I really
want to be clear, but it was not the President that suggested a
definition of sexual relations in terms of the Paula Jones
deposition. Is that a correct statement?
Mr. Ruff. That couldn't be more true, Congressman.
Mr. Delahunt. So it wasn't the President that insisted on a
definition. In fact, it was counsel for Paula Jones?
Mr. Ruff. That's correct.
Mr. Delahunt. Do you remember--I remember seeing, I think
it was on Fox-TV, Mr. Camarata who, when asked by a reporter or
journalist, acknowledged that the definition was very confusing
and convoluted. Do you have any memory of----
Mr. Ruff. I don't remember seeing that, but I will accept
the----
Mr. Delahunt. You will accept that, though. Thank you.
In fact, my memory of the transcript is that, in a
conversation with Linda Tripp, Monica Lewinsky herself said
words to the effect that we're not really having sex unless you
have sexual intercourse. Is my memory correct on that?
Mr. Ruff. Your memory is correct.
Mr. Delahunt. So, again, I'm going to repeat it because I
think it's important to repeat. It was not the President that
insisted on that particular convoluted, confusing definition of
what constitutes sexual relations?
Mr. Ruff. That's correct.
Mr. Delahunt. Am I correct when I state that it was the
judge that ruled that oral sex would not be considered within
the concept of that definition?
Mr. Ruff. What she did was to strike those portions of the
definition that would encompass that form of activity.
Mr. Delahunt. So it was the court that struck that
particular aspect of the definition?
Mr. Ruff. That's correct.
Mr. Delahunt. Thank you. I yield back.
Chairman Hyde. The distinguished gentleman from Indiana,
Mr. Pease.
Mr. Pease. Thank you, Mr. Chairman.
Mr. Ruff, I, too, want to thank you for your time and your
presence and for your demeanor before this committee. You're a
very effective advocate.
I would like for you to address what appears to me to be an
inconsistency between your strong assertion that the committee
should not consider--when we review perjury, we must look at
the underlying behavior, but when we look at executive
privilege, we cannot look at the underlying behavior, in both
cases it being the personal behavior of the President.
Mr. Ruff. No. I appreciate the opportunity to clarify that,
because I don't believe there's any inconsistency at all. Let
me describe for you what happened in the executive privilege
setting so that I think that will make it clear.
Initially, the Independent Counsel took the position that
no conversation that had anything to do with Monica Lewinsky
could be covered by executive privilege because it all arose
out of the President's personal conduct. It was that issue that
we litigated before Judge Johnson.
The position we took was not that we were entitled to
assert executive privilege over matters involving the
President's personal responsibility, his personal liability,
whatever it may have been, but that only to the extent that we
were advising the President in the conduct of his official
business. For example, what to do with the State of the Union
address, which as you know came up six days after all of this
broke, or how to deal with press questions in the setting in
which he was meeting with Prime Minister Benjamin Netanyahu or
Chairman Arafat, and his meeting thereafter with Prime Minister
Blair.
It was in those official areas of conduct that we were
saying you may not inquire, and it's that--that's the
distinction that I think is the difference between those two.
Mr. Pease. Thank you.
I don't want to misstate what I think I concluded from your
presentations about the difference between misleading and
lying, that you admit in many ways that the President misled
the public but he did not lie because in his mind he
technically was telling the truth on whatever the point might
be at the time. Is that a fair assessment?
Mr. Ruff. That's fair.
Mr. Pease. Do I understand that to mean, then, an assertion
that that there is no objective standard for truth, that it is
merely the subjective analysis of what one believes to be true
at a moment in time?
Mr. Ruff. Absolutely not. The case law--if I were in a
courtroom now instead of in this hearing room, we would be
talking about what the case law establishes, and it is case law
I think that we can all accept which is you have to make an
assessment: Is the person who tells you that's what's in his
mind telling you the truth? You make that assessment--of
whether you believe the person who is telling you that--by
asking whether there is corroboration for it, whether under the
circumstances that is, in fact, a plausible, believable
explanation of what was in his mind. And, most importantly, and
this is really the crux of it, is what he is telling you was in
his mind a reasonable interpretation of the facts? That's the
test.
Mr. Pease. Fair enough. Thank you very much.
I yield the balance of my time to Mr. Canady.
Mr. Canady. Thank you.
Mr. Chairman, I ask unanimous consent to place in the
record a letter from Donald Alexander, the former Commissioner
of the I.R.S., and other materials relating to some of the
argument that's been made concerning the action of the 1974
inquiry on the tax fraud article of impeachment against
President Nixon.
Mr. Hyde. Without objection, so ordered.
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Mr. Canady. Having put that in the record I want to say,
Mr. Ruff, you quarreled with the Independent Counsel's
presentation of facts, and I have to quarrel with your
presentation of the facts relating to the committee's dealing
with the tax fraud article against President Nixon.
In your submission to the committee, I believe you really
misrepresent the facts there. You quote four members who--one
of whom you quote totally out of context for the proposition
that the committee decided that tax fraud was not an
impeachable offense, when the fact of the matter is and the
record shows that 12 members of the committee, the vast
majority of those who expressed an opinion on this subject in
the debate, based their decision on the conclusion that there
was simply insufficient evidence that tax fraud had been
proven. And I think that's a significant omission in your
report.
Mr. Ruff. Can I just respond briefly, Mr. Chairman?
Chairman Hyde. Yes.
Mr. Ruff. If in fact our description of those events is in
any fashion misleading, I will see to it that it is corrected
and resubmitted to the committee. And I will go back and look
at it, and I will respond directly to you.
But I believe, and I don't--I haven't flipped through it,
but I believe what you'll find, in essence, is that we
acknowledge that there were many different opinions as to why
no tax count ought to be returned.
Mr. Canady. I suggest you read it.
Mr. Ruff. But that there were three or four, including
Congressman Railsback, Congressman Hogan, and I forget who the
others were, who said specifically I don't think tax evasion
rises to the level of an impeachment.
Mr. Canady. That's not what it says.
Mr. Ruff. I will see to it that it is corrected if it
doesn't.
Mr. McCollum. I would like to ask unanimous consent, Mr.
Chairman.
Chairman Hyde. The gentleman from Florida is recognized for
a unanimous consent request.
Mr. McCollum. I would like to ask unanimous consent to put
in the record at this point in time the Congressional Research
Service report to you on the compilation of presidential claims
of executive privilege from the Kennedy through the Clinton
administrations.
Chairman Hyde. Without objection, so ordered.
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Chairman Hyde. Mr. Wexler.
Mr. Wexler. Mr. Ruff, I think the American people owe you a
debt of gratitude for today, I hope, finally putting to rest
the argument that the President's lawyers, that the President's
side, has not responded to the factual allegations against the
President by presenting facts. It is undeniable that your 180-
page submission--yours, Mr. Kendall's, Mr. Craig's--is replete
with dozens and dozens of pages of factual rebuttal to the
claims against the President; and certainly your talk here
today enunciates many of those factual rebuttals.
I would like to talk to the issue of executive privilege,
because Mr. Starr had some pretty strong condemnations of what
I guess is your legal work or your legal advice.
On page 207 of the report, Mr. Starr claims that some of
the executive privilege claims were patently groundless. Later
on, on page 207, he refers to other assertions of executive
privilege as frivolous.
If we turn to page 208, right after Mr. Starr either
negligently misrepresented the quote to the President or just
downright took it out of context, we don't know, he then cites
the deception of, I guess, your legal advice and how it
continued.
On page 209, he then seems to, I guess, get himself into
your head, because he asserts to this committee that the
executive privilege was not, and I quote, the executive
privilege was not the only claim of privilege interposed to
prevent the grand jury from gathering relevant information.
Mr. Ruff, please take the remainder of my time. Tell us why
you recommended to the President to assert executive privilege.
Tell us, was your advice to assert a frivolous claim a patently
groundless claim?
Mr. Ruff. Thank you for the opportunity, Congressman.
I would like to think that I don't give advice to advance
frivolous claims in any setting, much less with the President
of the United States exercising a constitutional privilege.
The law in the District of Columbia circuit most recently
embodied in a case called Inre Sealed Case which dealt with
assertions of executive privilege in the Espy investigation,
makes it absolutely clear exactly what the rules are and how
broadly the presidential communication privilege extends and
what the legitimate boundaries are for that privilege. And it
was within the rules set down by that case that we advanced our
claims here.
Indeed, we advanced them substantially more narrowly than
we might otherwise have done if we were in a different setting,
because we certainly realized the importance and the gravity of
the investigation that was being conducted. Executive privilege
was advanced, other than for the lawyers for whom it was
wrapped under the attorney/client privilege, for only two
individuals who by the middle of March had either had the claim
withdrawn without a court ruling because we believed there was
no need for it or the court had ruled against us and we did not
pursue it.
So that whatever the Independent Counsel sees as the
purpose, and I certainly would deny any intention improperly to
withhold information from the grand jury, there can be no claim
that it had even a measurable impact on the conduct of his
investigation.
Mr. Wexler. Thank you.
Chairman Hyde. The gentleman from Utah, Mr. Cannon.
Mr. Cannon. Thank you, Mr. Chairman.
Mr. Ruff, I'm going to hand you or have handed to you a
couple of documents. If I could have staff do that. And while
that's happening, I thought I would ask you a first question.
Yesterday, I asked Mr. Craig if he thought Judge Wright
should deal with any wrongdoing by the President in the Jones
suit, and he said yes. Mr. Ruff, if Judge Wright does take
action against the President for his conduct in the Jones suit
and the options run from mere admonishment to jail time, are
you willing to commit on behalf of the President and the White
House that he will be subject to Judge Wright's discipline, if
any, and pledge not to invoke the defense that the President is
not subject to jurisdiction because impeachment proceedings
under the Constitution are the only method of disciplining a
sitting President?
Mr. Ruff. I will say this, Congressman, and you pose a
question to me I have not really had time to think about. I'll
say this, that the President has stated through me, and he was
very specific this morning, that he, like any other citizen, is
subject to the law, and that would certainly include, because
he has already been subjected to this civil proceeding, being
subjected to the orders of the court, the question of whether
while he is still in office a court could impose a sanction----
Mr. Cannon. Let me just shorten it and say that--you may
argue that during his tenure in office but after he leaves
office.
Mr. Ruff. After he leaves the office, just as I said----
Mr. Cannon. The reason I'm asking, is that it would seem
terribly inconsistent to use such a defense when the White
House is now seeking the extra constitutional measure of a
censure.
You said earlier that the First Lady was found to be
covered by the executive privilege. Does that mean that Judge
Johnson agreed with the assertion that information could be
withheld or only that in the proper context the President could
assert privilege as to the First Lady's discussion?
Mr. Ruff. The latter.
Mr. Cannon. Because, in fact, the document or the
information that was being sought was given to----
Mr. Ruff. That's true of all claims of executive privilege
in this matter. The judge ruled that the showing finally made
by the Independent Counsel overcame our interest in
confidentiality.
Mr. Cannon. Certainly I had wanted to see how you were
coming across on television when you invoked my name earlier. I
was in the room watching out there. I was riveted by your
description. Let me just say that you are coming across quite
well, and I think that the way the information is coming
forward I think will be helpful to people like Mr. Berman who
has made up his mind that he disagrees with you. But that's not
because of your demeanor, I will say.
On the other hand, you were quite rough with the
Independent Counsel who you said misstated and misquoted the
issues that I had dealt with earlier. Looking at the documents,
let me have you look at the document labeled number one, and
there's a yellow tab there that will show the part that's
relevant. That's a declaration filed by you which you referred
to this morning under the seal with the D.C. District Court on
March 17, 1998, in which you were attempting to assert
executive privilege for Mr. Lindsey and Mr. Blumenthal.
On the very last page, under penalty of perjury, you
assert, quote, I have discussed with the President these areas.
Of course, you have many areas in there. But these areas of
inquiry and the privileged nature of the information sought.
The President has directed me to invoke formally the privileges
applicable to these communications, unquote.
Now, a week later, while the first document was still under
seal, the President was asked by the Washington Post in Africa
about rumors that executive privilege was being asserted. Let
me direct you to the document number two which is that article.
Now, this is at a time when there was a great deal of public
interest in the issue of executive privilege, and the President
did not want to deal with that.
So let me read you the characterization by the Post in that
case, which is Clinton, who has not yet acknowledged publicly
even that he is asserting executive privilege, was pressed by
reporters to explain why he is trying to block testimony. His
voice curt and his expression cold--that's the Post reporter
saying that, not me--the President responded as though he were
a bystander in a controversy rather than its central character.
All I know is I saw an article about it in the paper today,
said Clinton, referring to the packet of news clippings faxed
each morning to him on the road. I haven't discussed that with
my lawyers. I don't know. You should ask someone who knows.
My question is, did you discuss with President Clinton
asserting executive privilege on behalf of the First Lady in
that document, in the document which you referred to?
Before you answer, let me just point out on page----
Mr. Hyde. Let me point out your time has elapsed. I don't
want to foreclose Mr. Ruff----
Mr. Ruff. I would be happy to respond. I will be very
brief.
Mr. Cannon. Would you do that in the context of paragraph
44 in which you specifically refer to the First Lady?
Mr. Ruff. The situation--and this is fully set out in
pleadings subsequent to this, Congressman, which I would be
happy to point you to so you will have a full record. This
issue was litigated. Independent Counsel made the argument that
somehow the claim as to the conversations between Mr.
Blumenthal and the First Lady wasn't covered because it hadn't
been adequately focused on by the President.
Now, in fact what I said in that subsequent litigation was
quite consistent with my declaration and with normal process.
We had to--because the Independent Counsel refused to provide
any accommodation and tell us what he wanted--what areas he
wanted to talk about, we had to go to the President and say
they're inquiring about communications between Mr. Blumenthal
and others and senior advisors to you, among whom is the First
Lady. We don't know what they're going to ask. We need your
authorization where an appropriate, protected communication
among senior advisors is sought to be able to seek appropriate
protection for it.
The President authorized that. Obviously, we could not, and
I don't think anybody would have expected us to go back to the
President when a witness was in the grand jury and say, Mr.
President, they just asked Mr. Blumenthal about a conversation
he had with Rahm Emanuel, the First Lady, whoever it might be.
Would you specifically authorize us to assert the privilege?
And the court accepted that position.
Chairman Hyde. I want to say to the gentleman from Utah
that as your time is expiring, asking a complicated question
prolongs, and I want to be fair to the witness. No, it isn't
fair to you.
Mr. Cannon. Mr. Chairman, my question was very simple. It
was only had he talked to the President about asserting the
privilege as to the First Lady and I didn't hear the answer to
that question.
Chairman Hyde. Well, okay. Well, we will just move on. Mr.
Rothman from New Jersey.
Mr. Rothman. Thank you, Mr. Chairman, and thank you, Mr.
Ruff. I would like to make some observations. In my opinion,
those at this point in our inquiry who are advocating the
impeachment of President Clinton based on the charges raised by
Judge Starr are going to do two very dangerous things. One is
to expand the Constitution's definition or standard for
impeachment without getting a vote of the people of the States,
and, second, to turn traditional notions of fairness in
American due process on their heads.
Let me explain. We were told by experts over the past
several weeks that the original standard was treason, bribery
and high crimes and misdemeanors against the State and that the
words ``against the State'' meant against the three branches of
government, interferring with the President's ability to carry
on his affairs of State. The words ``against the State,'' high
crimes and misdemeanors against the State, that phrase
``against the State'' was taken out by the committee on style,
without the intention of changing the meaning. Those on the
other side of the aisle and those who wish to have the
President impeached at this stage of the proceedings say,
``Well, forget about the words ``against the State,'' it is not
there, so let's talk about personal conduct. It's got to be
``if it's high crimes and misdemeanors, that's enough.''
We heard from the panel today of Republican and Democratic
prosecutors that no responsible prosecutor would raise the
charges by Mr. Starr as crimes and would not indict on them. So
then the folks on the other side of the aisle say, ``Well,
okay, it does not have to be a crime, it can just be a
violation of the civil rule of law, and lying in a civil
deposition is something that's bad and we have to tell our
children that it's bad.'' And when we tell them that there are
penalties by a civil court judge against lying under oath in a
civil deposition and that as a matter of fact maybe that was
one of the reasons the President settled that civil case for
$850,000, they say, ``Well, maybe that's not enough.'' What
they want to do is add a new standard to the Constitution,
treason, bribery, highcrimes and misdemeanors and wrongful
noncriminal behavior.
Well, I daresay that we can discuss the merits of that, but
it is not presently in the Constitution. Then they want to say
that Judge Starr presents evidence in his referral, which
everyone agrees would be not admissible. Then yourself, Mr.
Ruff, and Mr. Kendall present your rebuttal to his referral
which is also not admissible, so we have not one single fact
witness, and they say, ``Okay, but it's the President's
obligation to prove his innocence,'' violating the long-
standing notion in American justice that the accused does not
have to raise a defense, because it is up to the prosecution
first to bear the burden of proof here, a clear and convincing
standard of proof. They say it can be accomplished without one
single fact witness. I daresay that as I read history, the
framers of the Constitution would have recoiled in horror and
shock at the notion that we as a Congress must accept the word
of a government official, here the prosecutor, the Independent
Counsel, without a single corroborating fact witness, not only
to convict someone of a crime but to impeach the President of
the United States. They would say it is preposterous. Maybe
they will present some fact witnesses. If you accept their
notion that what has occurred requires impeachment of the
President, then you must say that the constitutional definition
of impeachable offenses has been expanded and amended without
the people's say-so and without the States voting on it and
that we are going to turn the presumption of innocence and the
burden of proof on the prosecution on its head and make it a
presumption of guilt and put the burden of proving one's
innocence on the accused.
Chairman Hyde. I thank the gentleman. The gentleman from
Utah has a unanimous consent request.
Mr. Cannon. Mr. Chairman, I request that the two documents
I referred to earlier be inserted into the record.
Chairman Hyde. Without objection, so ordered.
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Mr. Ruff. Do you need them back, Congressman?
Mr. Cannon. No, thank you. I have copies.
Chairman Hyde. The gentleman from California, Mr. Rogan.
Mr. Rogan. Thank you, Mr. Chairman. Mr. Ruff, good
afternoon. I thank you for your very cogent and able
presentation today. I am also going to say something that might
surprise you. I think you are right when you express the idea
that words are everything. When it comes to looking at perjury
and lying under oath, definitions may be misleading, they may
even be maddening, but that is what lawyers do. We are supposed
to parse these statements and look at the hypertechnical
definitions, and determine whether reasonable inferences may be
drawn.
I do want to make sure I understand your position. From the
beginning, the President has taken the position that he never
lied to the American people or lied while giving testimony
under oath. Essentially claims he simply misled the people with
a different definition, and he was sending the same message
both to the American people and the court. Is that a fair
assessment?
Mr. Ruff. I think that is fair, Congressman, yes.
Mr. Rogan. And he did that intentionally, because in his
own mind he drew a distinction between the technical definition
of ``sexual relations'' and the definition of ``improper
relationship'' or something along those lines, which is how he
now characterizes his relationship with Monica Lewinsky?
Mr. Ruff. Yes, I think that's correct.
Mr. Rogan. You suggested earlier in your testimony this
distinction is one he has drawn since the Jones deposition. My
notes indicate you said the definitions are one that he held in
his mind in January and in August, and he has so testified.
Mr. Ruff. Yes.
Mr. Rogan. In determining whether the President either
perjured himself or lied under oath in this matter, you are
asking the committee to look to his state of mind from the
beginning of this whole episode and make that determination?
Mr. Ruff. Yes.
Mr. Rogan. That is, I think, a very fair analysis on a
technical legal point, and I will say that I agree with you. If
the record supports this technical parsing, I don't think this
would be an appropriate avenue for us to go down by way of an
impeachment resolution.
Would you agree with me, however, if the record did not
support that, and demonstrated the President was lying, that
would be fair game for our committee to review?
Mr. Ruff. If any Member of this committee in good
conscience in weighing the evidence concludes that my
assessment is wrong, of course you must take it up and
determine what action is appropriate.
Mr. Rogan. Well, let me share with you what troubles me in
this area and see if it rises to that level.
In his January 17 deposition, in the Paula Jones case, the
President was asked if he ever had sexual relations with Monica
Lewinsky. His answer was definitive. He said, ``I had never had
sexual relations with Monica Lewinsky. I have never had an
affair with her.''
I take it that was the definition that he adopted that
would protect him from being charged with lying.
Mr. Ruff. I think there are two pieces to that: the sexual
relations definition which is encompassed in the actual
document put before him, and what he has already testified,
that sexual affair or sexual relationship encompasses for him
sexual intercourse.
Mr. Rogan. That part I understand. Now, let's move on to
four days later. He was being interviewed by Jim Lehrer. What
he didn't say is interesting. He did not use that carefully
crafted phrase to deny his conduct. He used a much broader
phrase, and I am quoting now from the interview of January 21.
He said, ``There is no improper relationship.''
Mr. Lehrer asked, ``No improper relationship. Define what
you mean by that.''
The President responded, ``Well, I think you know what it
means. It means there is not a sexual relationship, an improper
sexual relationship or any other kind of improper
relationship.''
On that very same day the President sent hispress
secretary, Michael McCurry, out to deny that he had no improper
relationship, not a sexual relationship. When the press asked Mr.
McCurry to define what an improper relationship meant, Mr. McCurry gave
us the now-famous phrase, ``I don't want to parse the words.''
Finally, the President gave an interview to Roll Call, when
he was asked about his relationship. The President said, ``Let
me say the relationship was not an improper one but let me
answer, it is not an improper relationship and I know what the
word means.''
Question: ``Was it in any way sexual?''
The President: ``The relationship was not sexual and I know
what you mean and the answer is no.''
Then we had the famous finger-wagging speech a few days
after that, where he said, ``Everybody, listen to me, I did not
have sexual relations with Monica Lewinsky.''
Mr. Ruff, he used those phrases interchangeably. There was
no distinction in his mind when he used those phrases.
Chairman Hyde. The gentleman's time has expired. The
distinguished gentleman from Wisconsin, Mr. Barrett.
Mr. Barrett. Thank you, Mr. Chairman. Mr. Ruff, I think you
have done an excellent job this afternoon.
Mr. Ruff. Thank you, Congressman.
Mr. Barrett. I think you have presented yourself very well.
I think you have presented the President's case very well and
you can be proud. For the first time today in these
proceedings, those who are watching these proceedings and the
Members here are engaged because this is the first opportunity
I think that really you have been able to take advantage of to
present the President's side of the case. This proceeding has
been marked by claims by the Democratic side that this has not
been a fair proceeding. You have said several times that you
feel somewhat hampered because you have not--you don't know
what you are responding to. I have here the articles of
impeachment, the four articles of impeachment that have just
been released to us, so apparently out of the feeling of
fairness, you have about four minutes to respond to the four
articles of impeachment which you have not seen. The first
article deals with----
Mr. Conyers. Would the gentleman yield just briefly? We had
agreed not to give them the articles until after they had
finished so that it wouldn't disrupt the proceedings. They just
came off the press and it was given to the Members and it
wasn't meant to disrespect counsel for the President, so I was
hoping that we didn't try to get into that at this point.
Mr. Barrett. Well, then I will withhold that. But I will
ask you, Mr. Ruff, because this is your last opportunity with a
Democratic questioner in these proceedings: From here we will
move to the stage where we have to make decisions. Clearly the
grand jury charge is the most serious charge. I want you to
make your argument again to this committee as to why the
President should not be impeached for his statements before the
grand jury.
Mr. Ruff. Congressman, let me go right to what has been the
heart of the debate on this subject today. It is very real and
it needs to be addressed in two respects. One is the pure
factual what-would-trial-lawyers-do issue, in a setting in
which the President says he did not touch certain parts of Ms.
Lewinsky's body and she says he did. I think it is fair to say,
amongst all those here who are former prosecutors, that that
kind of conflict between two witnesses simply would never be
pursued in a court of law. Should it be pursued in this
committee? I think for the same reasons, because you cannot
reach the level of clear and convincing evidence, you ought not
even to consider whether, or if you consider it, you cannot
arrive at the conclusion that the President committed an act,
which would take you to the determination as to whether or not
he ought to be impeached and removed from office. But I want to
pass over all of that and go to the heart of the issue. Even if
you take, as some of the Members on the majority side have
suggested they do, Ms. Lewinsky's testimony as the truthful
version, I still am convinced, and I believe that it is the
position most consistent with our Constitution and our history
and our form of government, that you may criticize the
President (he has criticized himself) if you believe he acted
in this fashion--you ought to censure him in whatever fashion
seems most appropriate, but you cannot overturn the will of the
people even if you find that there is clear and convincing
evidence, which I do not think you can, that the President was
wrong and Monica Lewinsky was right on that point.
Mr. Barrett. Thank you, and I would yield back the balance
of my time.
Chairman Hyde. I thank the gentleman. The distinguished
gentleman from South Carolina, Mr. Graham.
Mr. Graham. Thank you, Mr. Chairman. Mr. Ruff, I agree with
you. If it comes down to who touched who, we are not going to
overturn the will of the people. My quarrel is not with you,
Mr. Ruff. I think you are a fine lawyer and have done a good
job. My quarrel is with your client. My quarrel goes sort of
like this. We are bastardizing the English language. I can only
believe your defense if I check my common sense at the door and
I forget the way the world really works. I am singularly
unimpressed with this defense. This defense is a rehashing of
facts already in our presence except the quote about ``in
Africa.'' I do appreciate you reinterpreting the facts. The
term ``alone'' is a get-out-of-jail-free card according to your
client because when you ask him were you ever alone with a
woman, he says, ``Well, no, I wasn't,'' and he meant there were
other people in the building. When you try to prosecute him for
perjury based on a different version of how they related to
each other, the defense is, ``Well, you can't corroborate it
because there were only two people there. There was nobody else
there.'' The term ``alone'' seems to be used in many ways, in
an inconsistent way and in an offensive way to me. And if
people in America follow Bill-Clinton-speak, we are going to
ruin the rule of law, and he is not worth that. No one person
in America is worth trashing out the rule of law and creating a
situation where you can't rely on your common sense.
I am not through yet. The biggest problem I have got with
your client is not about a consensual affair gone awry. Grand
jury perjury, no excuse, anytime, anywhere. It is not about how
they touched. I believe your client lied when he said he wasn't
paying attention to the discussion that Mr. Bennett had with
the judge. I have seen the videotaped deposition. He is
following it very closely, nodding his head. He knew it was a
false affidavit because he colluded, in my opinion, with Ms.
Lewinsky to defraud Paula Jones from getting to a relevant,
material fact. I believe that. Nothing has changed in my
opinion there. But the most disturbing thing about your client
to me goes like this. Do you know Sidney Blumenthal?
Mr. Ruff. I do.
Mr. Graham. Right after January 18, your client, for the
first time in my opinion, got wind of the fact that there may
have been something known about Ms. Lewinsky that his little
collusion with her would not protect, that they knew something
he didn't know. This is a statement he makes to Mr. Blumenthal
after Dick Morris, who is a real character but a pretty smart
guy, tells the President that if he would just come clean it
may save him because it might have saved Richard Nixon, and
here is Blumenthal's discussion according to Blumenthal's
testimony. Are they close friends by the way?
Mr. Ruff. Is who close friends?
Mr. Graham. Blumenthal and the President.
Mr. Ruff. I truly do not know the answer to that.
Mr. Graham. We will find out about that later. ``I said to
the President, `What have you done wrong?' and he said,
`Nothing. I haven't done anything wrong.' I said, `Well, then
that's one of the stupidest ideas I've ever heard, the idea
being confessing. Why would you do that if you've done nothing
wrong?' And it was at this point that he gave his account of
what happened to me, and he said that Monica, and it came very
fast.'' Listen, female members of this committee. ``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 me.' She said that she would tell people
they had an affair and that she was known as the stalker among
her peers and that she hated it and that if she had an affair
or said she had an affair then she wouldn't be the stalker
anymore. And I repeated to the President that he really needed
never to be near people who were troubled like this, that it
was just--he needed not to be near troubled people like this.
And I said, `You need to find some sure footing here, some
solid ground.' And he said, `I feel like a character in a
novel. I feel like somebody who's surrounded by an oppressive
force that's creating a lie about me and I can't get the truth
out. I feel like the character in the novel The Darkness At
Noon.' ''.
Do you agree with me that the President of the United
States is telling an operative, for lack of a better word, that
Monica Lewinsky was a sexual predator coming on to him?
Mr. Ruff. I take it that the implication in your use of the
word ``operative,'' Congressman----
Mr. Graham. What ever relationship Blumenthal had with him,
he was passing on a story about Monica Lewinsky, giving this
individual an impression that he was having to fight Monica
Lewinsky off. Is that true or not?
Mr. Ruff. You read the language.
Mr. Graham. Thank you.
Mr. Ruff. And I take it we can all understand it. But the
one thing I want to be absolutely certain of----
Mr. Graham. I'm not certain.
Mr. Ruff. Because I think your implication is that this was
somehow a directive to go out and trash Ms. Lewinsky or
otherwise to denigrate her. And if that is your implication,
let me tell you from someone who was involved, I think from day
one through today in what the White House was doing and not
doing, it didn't happen, never was thought of.
Chairman Hyde. The gentleman's time has expired. The
gentlelady from California, Mrs. Bono.
Mrs. Bono. Thank you, Mr. Chairman. I will be happy to
yield to Congressman Graham for the amount of time that he
needs.
Mr. Graham. Let's continue that thought. Is it your
testimony that no one in the White House has ever planted a
story in the press that Monica Lewinsky is a stalker,
unreliable, a troubled young lady, shouldn't be believed, is
that your testimony?
Mr. Ruff. Congressman, obviously I wouldn't know whether
there was ever anybody in the White House, but I will tell you
this----
Mr. Graham. There was no organized effort.
Mr. Ruff. There was no authorized effort.
Mr. Graham. Authorized effort.
Mr. Ruff. Because we thought long and hard about how to
defend this President and how to deal with the very proceedings
that are going on today.
Mr. Graham. Thank you very much. You have answered my
question.
Mr. Ruff. No, I have not, Mr. Congressman.
Mr. Graham. Please. Please let me continue. You are saying
there is no organized effort. I have got a mountain of press
stories. January 31, 1998. ``Should they paint her as a
friendly fantasist or a malicious stalker? `That poor child has
serious emotional problems,' Representative Charlie Rangel said
Tuesday night before the State of the Union. `She's fantasizing
and I haven't heard that she played with a full deck in other
experiences.' '' One of the most respected members of this
House who was passing along something told to him by somebody.
Charlie Rangel is a good man, but he was of the belief that
this is a disturbed young lady.
I will read to you other press accounts shortly after.
``One White House aide called reporters to offer information
about Monica Lewinsky's past. Her weight problems and what the
aide said was her nickname, the stalker. Junior staff members
speaking on the condition they not be identified said she was
known as a flirt who wore skirts too short and was a little bit
weird.'' I can go on and on. The troubled-girl defense. ``The
one White House aides have been quietly testing out on
reporters is the troubled-girl defense. The great feeler of all
pain who also bears the scars of a turbulent upbringing was
just being kind to Lewinsky because she was a child of a
difficult divorce, because Bernard Lewinsky's parents were
German Jews who escaped to El Salvador. The White House even
speculated about family Holocaust scars.'' I have tons of press
reports linked back to the White House saying this girl is
unreliable, that she is basically crazy and weird, and I am
telling you I believe your client left that deposition, planted
a story in Blumenthal's mind and tried to get Betty Currie to
believe she wanted to have sex with me and I couldn't do that,
he was trying to tell Betty Currie that she was coming on to
him and that the President of the United States, his state of
mind is established based on what he told two people close to
him, and shortly after that, shortly after that, the press
operation in the White House turns on this young lady, they
were calling her unbelievably vile names, questioning her
sanity, and if it had not been for that blue dress, they would
have tore her to pieces.
Mr. Conyers. Mr. Chairman, a point of order. Charlie
Rangel's name has been mentioned as if he was working in
connection with the White House.
Mr. Graham. No, sir.
Chairman Hyde. Let the gentleman finish speaking.
Mr. Conyers. We should be more careful about the use of
Members of integrity in the House and what their connection is
with the narrative that my distinguished colleague has put
forward.
Chairman Hyde. Well, the Chair will say he heard Mr. Graham
read from a newspaper account.
Mr. Graham. Could I please make this correct. I have no
higher opinion of anybody than Charlie Rangel. He is a Marine
Corps veteran who served in Korea. Charlie Rangel was repeating
something somebody told him. He had no reason to believe----
Mr. Conyers. How do you know?
Mr. Graham. I believe that is what the newspaper accounts
show, that Mr. Rangel was passing on a thought planted in his
mind and he is a very innocent victim of the spin machine like
maybe all of us are around here.
Ms. Waters. Mr. Rangel is smart enough to speak his own
words. He doesn't need to have anybody plant them.
Chairman Hyde. The gentlelady is not recognized. The
gentleman's time has almost expired.
Mr. Graham. I yield back the balance of my time and I think
I will introduce----
Mr. Frank. Mr. Chairman, point of order. The witness was on
the point of answering when the point of order came.
Chairman Hyde. Oh, all right.
Mr. Frank. Shouldn't the witness have a chance to answer?
Chairman Hyde. He surely should. The gentleman may answer
if he wishes.
Mr. Ruff. I would only make two points, with all due
respect, Congressman. Other than your speculation, you have no
basis to suggest that the President of the United States ever
directed any such----
Mr. Graham. Mr. Ruff, how do you establish state of the
mind of a witness?
Chairman Hyde. Mr. Graham, please.
Mr. Ruff. I think out of all due courtesy, I am entitled to
30 seconds to respond to a 10-minute question. You have no
basis for making that allegation, and I will tell you that to
the extent I have any personal knowledge, I will represent to
you that to the contrary, a very careful and well conceived
decision was made to do our damnedest to ensure that in fact no
such personal attack was ever made.
Thank you, Mr. Chairman.
Chairman Hyde. I thank the gentleman. Mr. Nadler.
Mr. Nadler. I don't know if this is a point of order or
what, but I would just ask if the Chair would suggest to the
witness he speak more closely to the microphone.
Mr. Ruff. I apologize. It has been a long afternoon, but I
will try to stay close.
Mr. Jenkins. Mr. Chairman.
Chairman Hyde. Mr. Jenkins.
Mr. Jenkins. Mr. Chairman, I have time remaining and I
yield it to the gentleman from South Carolina.
Mr. Graham. Mr. Ruff----
Mr. Frank. Parliamentary inquiry.
Chairman Hyde. The gentleman may state it. Just a moment. I
am about to entertain a parliamentary inquiry. What is your
inquiry?
Mr. Frank. The question was, Mr. Jenkins hadn't been called
on at all before?
Chairman Hyde. He reserved his time. Mr. Graham has been
yielded Mr. Jenkins' time.
Mr. Graham. I suggest this solution to this problem. That I
will get the press reports that I am referring to and I will
introduce them into the record, and every committee member will
have a chance to look and see what was going on toward Ms.
Lewinsky, what was coming out of the White House, and they can
make their own decisions about how this started.
I also would like to point both--the committee members to
the fact that we have statements from the President shortly
after the deposition where he is planting in the mind of Mr.
Blumenthal a story that is patently false, a story that if you
believe he was having to defend himself from Monica Lewinsky,
the stalker, a term he used. Shortly after the President used
the term stalker, we see press accounts where White House
sources are calling her a stalker. He goes to his secretary the
day after the deposition and runs a passage by her basically
saying, ``She wanted to have sex with me and I couldn't do
that.'' I have always wondered what that was about. Now I
believe it is not so much trying to influence her testimony as
to plant into Ms. Currie's mind or thought pattern that Monica
Lewinsky was coming on to him.
Every Member needs to look at this. This is something that
is more than consensual sex. This is something in my opinion,
ladies and gentlemen, where a high public official is using the
trappings of his office, the White House, to go after a
potential witness who if that witness is called and gives
testimony down the road in a sworn fashion, not just tapes,
that what he is trying to do is set up a defense to make her
not believable; that this witness possesses information that
would hurt his political and legal interest. The President of
the United States, I believe, planted stories that were false
and shortly after those stories were planted, the White House
operation went into effect, notifying the press that ``if you
ever hear anything about this witness you need to know she's
unreliable, she's a stalker, she's basically not a responsible
person''. Bill Clinton did in fact, like with so many woman in
the past, make sure that Monica Lewinsky was going to go
through hell, and that the only thing that stopped this was it
was just maybe one too many women to trash out or it became the
blue dress. You can think what you want to about Linda Tripp
but I can tell you right now, I believe from the bottom of my
heart, ladies and gentlemen, if she didn't have that blue dress
proving a relationship, they would have cut her up. I have got
evidence in the press reports coming out from the White House
sources after the President planted in the minds of two people
close to him that she was coming on to him--that was a false
story--and I do believe for a moment in time the President of
the United States used the full power and force of the White
House to go after a young lady so that it couldn't hurt him
politically and legally, and that is far more like Watergate
than Peyton Place and I am going to believe that probably till
I die and I don't ask you to accept my rendition of the facts.
I do ask every Member, especially the female Members here, if
you have ever done a rape trial, you know what comes women's
way sometimes, they wear their skirts too tight and they're
flirtatious and you've got to watch out for these tight ladies,
they even called her Elvira at one time in one of the press
reports. That this is serious, and I do wish the President
would reconcile himself with the law, Mr. Ruff. I do wish he
would quit saying ``alone'' means one thing one time and it
means something else another time. I do believe that the
President of theUnited States was willing to use the weight of
his office, take a consensual sex partner, a 22-year-old lady, and he
was going to turn on her and they were going to unleash stuff on her
that she would have never been able to handle, and that to me is far
worse or as bad as anything that anybody has brought to my attention in
this case. I need to reconcile this in my mind and I will try to keep
an open heart so we can bring this country together. But I will give
the Members of the committee the press reports and you can read for
yourself what they were about to do and what they were calling this
young lady and it was not going to be pretty. And I will yield back the
balance of my time, and I will apologize to this committee for getting
upset because this does upset me.
Chairman Hyde. Mr. Buyer has time that he wants to use now.
Mr. Frank. Mr. Chairman, I have a unanimous consent
request.
Chairman Hyde. But I would be happy to entertain motions.
Mr. Frank has one.
Mr. Frank. I would ask unanimous consent after that loaded,
filibustered question that the gentleman be given a chance to
respond. To put a question such as that, to use up the full
five minutes deliberately so that there could be no chance to
respond is inappropriate and I would ask unanimous consent that
the witness be given a couple of minutes to respond.
Chairman Hyde. I would join in that unanimous consent to
give Mr. Ruff time.
Mr. Graham. Absolutely.
Chairman Hyde. But before we get to that, we have Ms.
Waters to deal with. Ms. Waters.
Ms. Waters. A point of personal privilege. I resent Mr.
Lindsey's reference----
Chairman Hyde. Ms. Waters, state your point of order.
Ms. Waters. Yes. My point of personal privilege is the
reference that he made to every woman on this committee.
Chairman Hyde. That certainly includes you.
Mr. Graham. Ma'am, I certainly didn't mean to do anything
disparaging. All I am saying is I have been a prosecutor in
rape cases----
Ms. Waters. I know what you did not mean to do but I have a
point of personal privilege.
Chairman Hyde. Please state your point.
Ms. Waters. My point is that he made a reference to what
every woman on this committee should do and how we should feel
about the spin that he just put on, wild allegations about the
President of the United States. I think, as one of the women of
this committee and every other woman should have an opportunity
to respond, since he is talking for us and about us.
Chairman Hyde. I think your point is you have taken offense
and you have expressed your resentment.
Ms. Waters. No, I have not. I am asking your permission to
do such, Mr. Chairman.
Mr. Goodlatte. Regular order, Mr. Chairman.
Chairman Hyde. It really isn't a point of order. I want you
to express yourself. I think you have. Could you do it in
another minute maybe?
Ms. Waters. Yes. I would like to say that every member of
this committee should be offended by the spin that was just--
the wild spin that was just put on by Mr. Lindsey in attempting
to somehow send a message to Monica Lewinsky that she has been
undermined by the President of the United States and thus set
her up to be angry at the President in case she is called as a
witness. We are no fools.
Chairman Hyde. Thank you very much. Now Mr. Buyer is
recognized.
Mr. Frank. Mr. Chairman, I had a unanimous consent request.
Chairman Hyde. I am sorry, Mr. Ruff is recognized for 3
minutes.
Mr. Ruff. I will try not to use all of that time, Mr.
Chairman. I appreciate your letting me respond. Congressman
Graham, I have the greatest respect for you. I have to make two
fundamental points: One, I absolutely reject the notion that
the President of the United States either explicitly or
implicitly authorized, directed, hinted at or caused any attack
of the sort you describe. But second, I must say, even out of
the greatest respect for members of this committee, that to be
greeted at the end of a long day by the next to the last
speaker with a litany of charges never heard before, not even I
believe included in whatever document it was that I was handed
a few minutes ago, does not give us any reasonable opportunity
for fair response, and I would ask the Chair's permission that
if this is to be in any respect a factor in the consideration
of this committee's grave duties over the next few days that we
be given an opportunity first to have clear and explicit
statements by the Congressman with whatever supporting
information he believes he has, and second a reasonable
opportunity to respond.
Chairman Hyde. Well, we have a schedule to which we are
trying to adhere. Mr. Graham can put together a package of his
documentation and get it to you immediately for your review and
response. We are not going to be through with our business, I
don't think, until Saturday at the earliest, and anything you
want to add by way of rebuttal or amplification or commentary
would be received by the committee. This is kind of a wild card
situation, unanticipated, but----
Mr. Graham. Mr. Chairman, since I was referred to, I will
be glad to do that. In terms of the timing, as I have said,
this became clear to me after trying to figure out what he was
saying to Betty Currie and we will all have a chance to
evaluate it if it makes any sense and I will gladly give you
the----
Ms. Waters. Regular order, Mr. Chairman.
Chairman Hyde. We are trying to wind this up and I am
trying to get Mr. Graham--and he seems to be agreeing--to
present his information to Mr. Ruff, whereupon Mr. Ruff can
analyze it and respond in some appropriate way. You just let me
know how you want to do it, and if you want to come back. But
we have a schedule.
Mr. Ruff. I will be glad to do that. I appreciate it, Mr.
Chairman. We will work within your time lines.
Chairman Hyde. Very good.
Mr. Conyers. Mr. Chairman, I was hoping that there would be
a way to work out his return, that Mr. Ruff would need to be
back if he so desired.
Chairman Hyde. If Mr. Ruff so desires. But I would hope
this can be handled through the U.S. mail.
Mr. Ruff. If I could leave this open, Mr. Chairman, and Mr.
Conyers, thank you for the opportunity, if I could get back to
you and let you know how best we would like to be able to
respond.
Mr. Conyers. That is fair.
Chairman Hyde. Sure. We will give you an opportunity to
respond but we are on a schedule. We have to file our report
next week, it has to lay over two days, Christmas is coming,
and all of this enters into our calculus. But you are entitled
to respond because those were serious charges.
Mr. Ruff. Thank you, Mr. Chairman. We will do so.
Chairman Hyde. Now Mr. Buyer is recognized for 5 minutes.
Mr. Buyer. Thank you, Mr. Chairman. I was struck by Ms.
Waters' comments that somehow Mr. Graham's statements here was
an effort to anger Monica Lewinsky against the President. When
I read Monica Lewinsky's deposition after the President's
statement to the American people on August 17, there wasn't
anybody that could have angered Monica Lewinsky more than that
statement. There isn't anything anybody here can do. The
President pretty well angered Monica Lewinsky and it really
came out in that deposition that she gave to Ken Starr. One
thing that is bothering me is that part of your defense here
today, and Mr. Craig's of yesterday, is to come before the
committee and to make an admission that the President's intent
was to be evasive and incomplete, mislead, yet he was legally
and technically accurate in anything and everything he did. Not
only all of yesterday but today you were also very accurate,
never ever to say the President lied. So you have done a good
job. You stuck with the game plan. I agree with you, to prove
perjury, the trier here must make an assessment: it must be a
plausible and believable explanation with regard to the state
of mind. Now, if in fact you have a witness who has perhaps a
motive to lie, if in fact they are not helpful, they have an
attitude to be misleading, to be evasive, to be incomplete,
that all of that is relevant evidence to the trier of fact, is
it not?
Mr. Ruff. Absolutely. It is.
Mr. Buyer. It is. Okay. Now, one thing that I am trying to
reconcile, and Mr. Graham brought up the comment about, if I
have to believe some of the defense, you are saying to leave
our common sense out the door. I want to go back to the gifts
for the moment, because of this question about feigned
forgetfulness. Now, you worked with the President more than
anyone else in this room perhaps, and Bruce Lindsey knows him
much, much better. The President's memory is very good, is it
not?
Mr. Ruff. It is.
Mr. Buyer. Now, I guess what is troubling to me is when I
read the referral, in reference to the gifts, it says a day or
two after Christmas. And I remember that, because I was with
the President on Air Force One, we went to Bosnia, and when we
came back from Bosnia a few days later, what happens? Ms.
Currie lets Monica Lewinsky into the White House on a Sunday
morning, December 28. She lets Ms. Lewinsky in there so she can
give gifts to the President. But what is interesting is what
happened later. The two of them, according to the referral
which cites then the grand jury testimony, is that she wants to
know how she ended up on the witness list. The President is not
sure how she ended up on the witness list and said, well, it
must have been Linda Tripp or maybe it was the Secret Service.
But then she says, she mentioned with anxiety that she received
a subpoena with regard to the hat pin, and he asked a specific
question about the hat pin. Then three weeks later, three weeks
later, the President was asked a specific question at the civil
deposition with regard to what gifts he gave he said, ``I don't
remember. Do you know what gifts?'' And then he comes back and
says----
Mr. Ruff. It's the last part that's important, Congressman.
Mr. Buyer. But this feigned memory about I don't recall.
There are a series--I don't have the time, I see that my yellow
light is on, but I have a series of case law and I know you
have seen it also, where individuals have been prosecuted for I
don't recall, I don't know, I don't remember when in fact they
know. I have difficulty reconciling, and I want you to give
your explanation, isn't in fact the President feigning
fogetfulness, asking the witness about the hat pin, then three
weeks later testifies and says, ``I don't know. I don't
recall.'' I would ask unanimous consent that Mr. Ruff be
permitted to answer that question to reconcile.
Mr. Ruff. Just very briefly, because you yourself pointed
at the critical issue there and I commend you not only to the
transcript of his testimony but, when we all get to see it, to
the video as well. It is clear that what he is saying is, ``I
don't recall, please remind me.'' It is virtually one sentence.
Look, I don't know how many presents the President gets, but
lots. What he said was not, ``I don't recall any, I don't
recall ever getting gifts.'' What he said was, ``I don't
recall, tell me which ones, remind me which ones they are.''
And that it seems to me is the natural human response under the
circumstances.
Chairman Hyde. The gentleman's time has expired.
Mr. Goodlatte. Mr. Chairman, I have a unanimous consent
request.
Chairman Hyde. Please state it.
Mr. Goodlatte. I would ask unanimous consent that a letter
signed by about 80 scholars and former elected officials and
Cabinet members, and so on, calling for the impeachment of the
President, rebutting some of the information earlier submitted
by other scholars be made a part of the record.
Chairman Hyde. Without objection, so ordered.
[The information follows:]
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Ms. Waters. I have a unanimous consent request, Mr.
Chairman. I have a letter here that was sent by one of our
colleagues, Mr. Alcee Hastings, talking about the way that
information was received in his case, and asking that
information be provided in ways that other Members of Congress
would have easy access.
Chairman Hyde. Without objection, it may be made a part of
the record.
[The information follows:]
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Chairman Hyde. We have reached the end of a stimulating
day. I want to thank Mr. Ruff for his patience and for his
superb presentation. We will convene at 9 a.m. tomorrow. These
hearings, pursuant to House Resolution 581, are concluded, and
the committee stands adjourned until 9 a.m. tomorrow.
Mr. Ruff. Thank you, Mr. Chairman, for your courtesy. I
appreciate it.
Chairman Hyde. Thank you.
[Whereupon, at 6:00 p.m., the committee was adjourned.]