THE IMPEACHMENT HEARINGS
Dec. 8: Third Panel of White House Witnesses
Tuesday, December 8, 1998
REP. HYDE: Our third panel is composed of James Hamilton and Richard Ben-Veniste. Would the witnesses please rise to take the oath?
Do you solemnly swear or affirm that the testimony you are about to give will be the truth, the whole truth and nothing but the truth, so help you God?
BOTH: I do.
REP. HYDE: Thank you. Let the record reflect the witnesses answered the question in the affirmative.
James Hamilton is a member of the Washington DC 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's 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 five-minute rule questioning by the members. And so, Mr. Hamilton, when you are ready, we will put the switch on. Either one want to go first?
MR. BEN-VENISTE: Yes, I think I'll go first, Mr. Chairman.
REP. HYDE: You prefer for -- very well. Mr. Ben-Veniste.
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 an 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 DC office of Wile (sp), Gotchal (sp) & Manges (sp), 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're 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 payback that has already taken such a toll in the 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 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 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 fire storm 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 attorney generals, the White House chief of staff, the chief and deputy domestic advisers to the president, a senior adviser 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 and violation of important rights of others. The obstruction of justice and perjury that was committed in furtherance of the Watergate cover-up 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 cover-up 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 perception that our investigation would be professional, impartial and fair. If we had leaked such explosively damaging evidence as President Nixon's taped instructions to continue the cover-up 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 facie 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 suspicion. 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 a 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 John Sirica to transmit the material as an exception to Rule 6(c) --
REP. HYDE: Can you --
MR. BEN-VENISTE: -- which would otherwise prohibit its dissemination.
REP. HYDE: Can you wind down?
MR. BEN-VENISTE: I would like to, yes, Mr. Chairman. Unfortunately, yesterday I was told I'd have 20 minutes, and I've tried to boil it down as best I can.
REP. HYDE: Well, I don't want to foreclose you, because we're down to just two witnesses. But --
MR. BEN-VENISTE: May I have an additional five minutes, sir?
REP. HYDE: It is Christmas week, but you're 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 co-conspirator 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 in any way to the grand jury for its approval or consideration, and thus no one -- the chief judge or 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 adviser resigned when he 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'm 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.
REP. HYDE: If I could --
MR. BEN-VENISTE: In my view --
REP. 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.
REP. HYDE: Yes, 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 hope 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, to 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.
And I thank you for extending the time, Mr. Chairman.
REP. HYDE: Thank you, Mr. Ben-Veniste. Mr. Hamilton.
MR. HAMILTON: Mr. Chairman, members of the committee, thank you for the opportunity to address you in this --
REP. CONYERS: Pull your mike closer, sir.
MR. HAMILTON: Sorry.
REP. CONYERS: 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 two of the impeachment resolution against President Nixon that caused this committee to vote 28-10 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 Ellsberg's psychiatrist; fourth, for allowing conduct that impeded the investigation 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 offenses 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 from punishment, but rather to protect the state and society against "great and dangerous offenses" that might recur if he is allowed to remain in office.
I respectively 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 one 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 business conduct. But these statements involved lies about official actions and were part of a massive coverup of government misdeeds. This is far different than lies about private consensual sexual conduct.
The claim that unsuccessfully asserted 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 depositions. 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 issues 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 (wary ?) of making impeachment too easy. Long ago in 1691 the solicitor general, later Lord Chancellor Sommers (sp) told the British parliament that the power of impeachment ought to be like Goliath's sword -- kept in the temple and not used but in great occasions. In a similar vein, Justice Storey 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 --
REP. HYDE: Would you like another five minutes?
MR. HAMILTON: I would like another three minutes.
REP. HYDE: Oh, that's 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 consent -- 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 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.
REP. HYDE: Thank you, Mr. Hamilton.
The gentleman from Wisconsin, Mr. Sensenbrenner.
REP. 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 in the manner in which to resolve this matter -- the matter 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've read it, they've been able to dissect it, they've been able to analyze it -- and we've 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: I think it depends on who your opponent is. (Laughter.) But I understand, congressman, I think it -- I understand congressman that you will receive that brief in the near future.
REP. 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'll let him speak to that.
MR. BEN-VENISTE: Let me say this, congressman.
REP. SENSENBRENNER: Would you please turn the mike on, Mr. Ben- Veniste?
MR. BEN-VENISTE: Yes, sir. Let me say this: It is not my practice, nor would I have provided copies of that material to anyone else prior to its designated recipient. I don't think that's the appropriate way to do it. But --
REP. SENSENBRENNER: So you're 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's what happened. It's 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.
REP. SENSENBRENNER: Okay, Mr. Ben-Veniste, last month when Judge Starr was here explaining the content of his referral, Mr. Kendall, who is the president's personal -- 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 attempt to get your lawyer on the other side to try to admit to 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 --
REP. 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 this is --
REP. SENSENBRENNER: That was not my question. My question was whether it was ethical for Kendall to ask those questions.
MR. BEN-VENISTE: I think it was --
REP. HYDE: The gentleman's time has expired. The gentleman from Michigan, Mr. Conyers.
MR. BEN-VENISTE: Does the chairman wish me to answer that question?
REP. CONYERS: I think I'll 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 as to the confidence of the American public in whether an independent counsel has performed in consistency with the expectations of fairness and independence I think is an appropriate area. Unfortunately in watching that exchange it seemed to be a combination of cross-examination and beat the clock. I've only practiced trial law for 30 years, and I've never had that kind of restriction placed on a cross-examination. It's a very difficult, difficult obligation to undertake, Mr. Sensenbrenner.
REP. 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, or 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. And I don't know what happens in executive session, and 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.
REP. CONYERS: Mr. Hamilton?
MR. HAMILTON: Mr. Conyers, let me just say that I think one reason that the Watergate committee, the Senate Watergate committee, was so successful is that Senator Erwin and Senator Baker worked together in a bipartisan fashion. That's 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 produce the unanimous report. And I think for that reason its conclusions have withstood the test of time.
REP. CONYERS: Well, I certainly hope that -- (audio break) -- to help us get across this hump. And I'm 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. HAMILTON: I join in that hope, and --
REP. CONYERS: Is that too optimistic?
MR. BEN-VENISTE: Well, Father Drinan, I think, set a good tone. And I cast my ecumenical vote in that direction. (Laughter.)
REP. CONYERS: Thank you.
REP. HYDE: The gentleman's time has expired. The gentleman from Florida, Mr. McCollum.
REP. BILL MCCOLLUM (R-FL): Thank you very much, Mr. Chairman. Good to see both of you here today.
MR. BEN-VENISTE: Thank you.
REP. MCCOLLUM: I have a couple of observations about the day. 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's what I think you're 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's 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 in their testimony, trying to scare folks into the belief that if we impeach, that we're going to to have a long, protracted trial, that 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 that the truthfulness is not questioned of what Betty Currie said, or Vernon Jordan said; with the record fairly complete, with no need to call many 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 and 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 have called 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'll 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's 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.
If all of those things, or even a substantial number of them, or even if it's 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 of them.
Perjury and bribery of a witness go to the basic -- (off mike) -- that if a party to a lawsuit cannot get the truth on the record, if somebody lies, or encourages somebody else to lie, or if somebody as a witness hides the evidence, or encourages somebody else to hide the evidence, a party to a lawsuit cannot get justice. They cannot get a judgment rendered by court that's fair and just to them, which is the traditional American way.
And 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're undermining the integrity of the court system, we're going to encourage more people, it seems to me, to commit perjury in the future, or to witness-tamper, or whatever. We're likely to find fewer cases where federal judges will be impeached for perjury. People will be treated differently than the president. A hundred and fifteen people are already imprisoned today for perjury in the federal system. In this present committee, we have a double standard.
I think the consequences of not doing it, are extraordinarily dire, and I'm 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's not happened today. And I'm looking forward to tomorrow, because I want to engage that, since I happen to believe, based on what I've seen, that it's 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 look forward to tomorrow. I don't think today was very constructive. But thank you, Mr. Chairman.
MR. BEN-VENISTE: I take it there was no question in --
REP. MCCOLLUM: There was no question. Just an observation.
MR. BEN-VENISTE: There was no question. Because I do disagree with many of the things, most respectfully, that you've said.
REP. HYDE: I'm sorry. I was talking to Mr. Conyers. That does happen now and then.
REP. MCCOLLUM: My time expired. I yielded back. I have no questions.
REP. HYDE: It has expired. Mr. Frank is -- yeah, Mr. Frank.
REP. BARNEY FRANK (D-MA): I want to begin with just an observation, because one of the things we've 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 the 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 any more 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 writs, 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's 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. And 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 of 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 me 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, as my colleague from Florida just said, a witness being asked to lie, that that's high bribery. And I assume that one of the accusations --
I know one of the accusation is that the president bribed, in effect, Monica Lewinsky, that by offer of a job, and by other inducement, the president got Monica Lewinsky not 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 a prosecutor trying to bring such a case, would you have asked her? Mr. Ben-Veniste.
MR. BEN-VENISTE: Well, certainly in my experience in bringing that kind of a case, would have some kind of scatological barnyard expletive attached to it. It's just not a case any federal prosecutor would bring in my experience.
The Founders, on the other hand, because now we're talking about impeachment; the notion that they thought that the president of the United States of the new republic, might be on the give, rather than on the take in the extraordinary case, is certainly beyond comprehension. The idea 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's what that was all about. This has absolutely no connection to any reality, in terms of impeachment.
REP. HYDE: The gentleman from Pennsylvania --
REP. CONYERS: Mr. Chairman --
REP. HYDE: Oh, I'm sorry. I recognize the gentleman from Michigan.
REP. 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.
REP. HYDE: Without objection, so ordered.
REP. CONYERS: I further ask unanimous consent to have printed with Professor Dershowitz's testimony, a letter that he has sent to me.
REP. HYDE: That would be in the previous record.
REP. CONYERS: Exactly.
REP. HYDE: Yes, without objection, so ordered.
REP. CONYERS: Thank you.
REP. HYDE: The gentleman from Pennsylvania, Mr. Gekas.
REP. GEORGE GEKAS (R-PA): I thank the chair. Mr. Hastings, I think -- no, Mr. Hastings. Mr. Hamilton, it is, yes. (Laughter.) 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'm still delving into that mess in the formulation of my position, my final position.
But while I'm tending to give you that, it seems that you've 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're 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 "oh, it's just perjury," and "it's just about sex, and it doesn't matter?"
Aren't you willing to yield to me that that's serious enough for this panel to apply its conscience and its collective judgment in determining whether or not it's 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.
MR. GEKAS: We don't have a deal.
MR. HAMILTON: Sure -- huh? (Laughs.) Sorry to hear that.
MR. GEKAS: Because we don't have a deal.
Mr. Ben-Veniste, I want to congratulate you on the most artful bill of particulars ever drawn up against a non-party 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'm gonna have 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. We'll 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 in independent counsel. Did you have any such article 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: Of any other independent counsel?
MR. BEN-VENISTE: Excuse me, sir?
MR. GEKAS: 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 (sp). I'm glad you gave me the opportunity to talk about that.
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'll 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 of 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.
REP. GEKAS: But you did not --
REP. SENSENBRENNER: The gentleman's time has --
REP. GEKAS: -- file any kind of discourse against the -- Judge Walsh.
REP. SENSENBRENNER: -- the gentleman's time has expired. The gentleman from California, Mr. Berman.
REP. BERMAN: Thank you, Mr. Chairman.
Mr. Hamilton and Mr. Ben-Veniste, I'd like you to -- for the purposes of your answers -- assume -- make two assumptions. Assumption one: the president lied under oath; and secondly, 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. And the question is to deal with the contention that this conduct justifies impeachment because, coming from the president, it's so corrosive of the judicial system, and it's so -- 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's 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 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 that it had that effect.
REP. BERMAN: I think in a way, both of you are missing, I guess, the point I was hoping to hear you speak to, which is it is contended by some that the fact that it's the president -- and assuming, again, that it's lying under oath -- that those two facts rise to -- make this rise to a level of impeachment because they are so corrosive of the judicial process and --
MR. BEN-VENISTE: It's clearly --
REP. BERMAN: That's what I'd like to hear you speak on.
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.
REP. SENSENBRENNER: Does the gentleman yield back?
REP. BERMAN: I do.
REP. SENSENBRENNER: The gentleman from North Carolina, Mr. Coble.
REP. HOWARD COBLE (R-NC): I thank the chairman.
Today, ladies and gentlemen, I've 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 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, arguendo, 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 that 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 --
REP. COBLE: Let me -- my time's running out. Let me hear from Mr. Hamilton on this, as well.
MR. HAMILTON: Again, I think the question is whether this -- 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.
REP. COBLE: I thank you, gentlemen.
Mr. Chairman, with your permission, I'm going to yield the balance of my time to the gentleman from Florida, Mr. Canady.
REP. CHARLES CANADY (R-FL): I thank the gentleman from North Carolina.
REP. SENSENBRENNER: The gentleman from Florida.
REP. CANADY: And I just want to make a couple 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'll have to candidly say I don't think your testimony has added much to our deliberations, however. I'm disappointed that we see the continued attacks on the independent counsel. And it's 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 --
MR. BEN-VENISTE: It could give you something to think about.
REP. CANADY: -- but these generalized 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's 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's good, but there's been very little of that and I'm hopeful that tomorrow we're going to see a change of focus and deal with these facts, and as I'm going to discuss a little more in a minute, I think the facts are very troubling. And there are facts that we have to come to terms with.
Now, 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's -- that's not right. We've got to judge this president's conduct on the evidence that's before us and make a judgment under the standards of the Constitution.
REP. SENSENBRUNNER: The gentleman's time has expired. The gentleman from New York, Mr. Nadler.
REP. JERROLD NADLER (D-NY): 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.
REP. NADLER: Could you tell us, do you think that Mr. Starr's misconduct, if misconduct it be, has any relevance to the fact findings?
MR. BEN-VENISTE: I think there is -- I think to the extent that all inferences have been drawn in the referral received by the committee by Mr. Starr against the president, that there has been selectivity involved.
REP. NADLER: Okay.
MR. BEN-VENISTE: That there has not been investigation of the activities of certain people who are responsible for starting this.
REP. 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.
REP. NADLER: Okay. Thank you. I have two quick questions, and I'll read them both so that you can answer them in the time remaining.
I find somewhat startling the assertions 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, which is using the hearsay testimony of Mr. Starr, that certainly you'd 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 of 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's my first question.
My second question is for Mr. Ben-Veniste. My second question is in your testimony you say 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 here, there, anywhere, whether the conduct first occurred in November of January, or how many gifts they exchanged? And further, you say that the two supposed grounds for an obstruction of justice -- Vernon Jordan's attempt to find a job for Monica Lewinsky, and the talking points which formed the basis for the request to 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 in some way affects how we should regard this whole thing?
MR. BEN-VENISTE: Let me say that it escapes me as to what the grand jury was properly investigating at that point. The president --
REP. 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.
REP. NADLER: So in other words, it's hard to have obstruction if there's nothing being obstructed.
MR. BEN-VENISTE: I think so.
REP. NADLER: And it's hard to have perjury if it wasn't material to anything sought to be proven.
MR. BEN-VENISTE: I think so.
REP. NADLER: And my -- and the other question is, your -- 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 is the president's job to prove his innocence, rather than the other way around?
MR. HAMILTON: Well, I would think, Congressman, that it is 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 it thinks is necessary to ascertain the facts that would support impeachment or support not rendering a judgment of impeachment.
REP. SENSENBRENNER: The gentleman's time has expired.
The gentleman from Texas, Mr. Smith.
REP. LAMAR SMITH (R-TX): 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 adviser to President Clinton and ask for you to respond.
"But President Clinton turned his personal flaws into a public matter when 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's in the White House. "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."
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'm not sure I can put myself in the president's mind. I do think that his conduct in this regard was disgraceful --
REP. SMITH: Well, let's just -- 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'm sure that he wanted the investigation to go away; I think there's no doubt about that. The question, again, and if I sound like --
REP. SMITH: No, no, no. My question is -- 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.
REP. SMITH: Okay, that wasn't actually my question. Do you think he was attempting to thwart the investigation that was then going on?
MR. HAMILTON: Well, I'm not sure -- I'm not sure there's a distinction there. I'm sure he wanted the investigation to end.
REP. 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 --
REP. SMITH: No, no. You --
MR. HAMILTON: Well let me finish. Let me --
REP. SMITH: I think you just answered my question. If you said he may have been trying to impede the investigation, you've answered it.
MR. HAMILTON: The question is, was what he was doing --
REP. SMITH: No, no, no. Don't rephrase --
MR. HAMILTON: -- improper or impeachable?
REP. SMITH: -- don't -- don't -- Mr. Hamilton, don't rephrase my question. I think you've answered my question that he may have been trying to impede the investigation that was going on. That's all I was looking for. I will have to confess to you in part I was looking for that because that was Barbara Jordan's definition of an impeachable offense. But I think that that's the important point.
Let me read -- this is a little bit lighter subject -- some letters to you from the sixth graders at Chisom Middle School in Round
Rock, Texas. They have a way of putting it straightforwardly, even if it's not 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, `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 in the Constitution stated, `All man (sic) 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's a very succinct version, I guess, of categorical imperative along the lines of, "Never engage in any action which if engaged in by everybody would, in effect, lead to chaos."
Wouldn't you agree that if everybody engaged in deceptive or misleading or evasive or perhaps not telling the whole truth, that could in fact undermine the entire judicial system?
And in effect, what's the point of having courthouses if people aren't going to tell the whole truth?
MR. HAMILTON: Of course, I agree with that.
REP. SMITH: Okay.
Thank you, Mr. Chairman. I'll yield back.
REP. SENSENBRENNER: The gentleman from Virginia, Mr. Scott.
REP. ROBERT C. SCOTT (D-VA): Thank you, Mr. Chairman.
I'd 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 the 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.
REP. 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.
REP. SCOTT: Should you rely on a presumption of guilt if the president doesn't prove his innocence?
MR. BEN-VENISTE: Not in this country, sir.
REP. 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 held. 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.
REP. SCOTT: Now, if 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.
REP. SCOTT: Now, in terms of whether or not it's 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's had on the nation? And 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.
REP. SCOTT: And the title of the offense is not the measurement, but the -- you would measure the effect, so whether it's obstruction of justice or whatever the title is is not the measurement, but the effect it has as far as it's a grave danger to the nation?
MR. BEN-VENISTE: Even in the narrow confines of what we're discussing here, I have trouble understanding who was obstructed and how was that person obstructed in the conduct we are talking about.
REP. 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 (sic) also be printed overnight.
Is there objection?
MR. BEN-VENISTE: Mr. Chairman, I assume you meant December 8, 1998?
REP. SENSENBRENNER: I stand corrected. It is this document.
Without objection, so ordered, and then the gentleman from California, Mr. Gallegly, is recognized.
REP. 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 eight hours ago, and for the past eight 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 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.
REP. GALLEGLY: Do you believe that perjury represents an attack on the integrity of our judicial system?
MR. HAMILTON: Of course.
REP. GALLEGLY: This morning we had -- or between this morning and this afternoon, we had testimony by 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.
Mr. Owens this afternoon stated that the president did lie under oath. He didn't say "I believe," he said 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 --
REP. GALLEGLY: Yes, but, as a lawyer --
MR. HAMILTON: -- it was clearly evasive and misleading. I understand that tomorrow Mr. Craig is going to -- Mr. Ruff is going to make an attempt to convince us all that it was not perjury.
REP. 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'm going to withhold judgment until I hear what Mr. Craig has to say tomorrow.
REP. GALLEGLY: Mr. Ben-Veniste, as -- with a simple yes or no, do you believe the president lied under oath?
MR. BEN-VENISTE: Are you talking about -- what proceeding?
REP. GALLEGLY: In the -- before the federal grand jury.
MR. BEN-VENISTE: Before the grand jury? I have trouble with that. I have trouble with the grand jury --
REP. GALLEGLY: Very good. Thank you, Mr. -- 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.
REP. GALLEGLY: And doesn't mean to deceive and does not mean to minimize the truth?
MR. HAMILTON: Of course not.
REP. GALLEGLY: Thank you very much. Based on what you have seen and heard, do you think that the president has been truly candid and totally honest with the American public to date, today? Mr. Hamilton.
MR. HAMILTON: Do I think that -- you mean in the past, do I think --
REP. GALLEGLY: No, I mean today. In view of the months of presentations he's had -- civil deposition, grand jury, the August 17th and -- and the 31 (sic) --
MR. HAMILTON: No, he clearly has not been fully candid.
REP. GALLEGLY: Thank -- thank you very much. You know, my colleagues, the president has had the choice of telling the truth and 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 the president has lied under oath and he's lied to the American people, which I think compromises his oath of office. And I would yield back, Mr. Chairman.
REP. SENSENBRUNNER: The gentleman's -- the gentleman's time has expired. The gentleman from North Carolina, Mr. Watt.
REP. MELVIN WATT (D-NC): Thank you, Mr. Chairman. Mr. Hamilton and 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 any 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.
REP. 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 the questions about Ms. Lewinsky. He should not have done that. That's 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 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 on 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 a courtroom, and I have great respect for their collective common sense.
REP. 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.
REP. WATT: Okay.
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. And 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, and he said was gonna 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.
REP. SENSENBRENNER: The gentleman's time has expired.
The gentleman from Florida, Mr. Canady.
REP. CHARLES T. CANADY (R-FL): Thank you, Mr. Chairman.
I want 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 --
REP. CANADY: Mr. -- okay, thank you.
MR. BEN-VENISTE: -- if we see that kind of conduct again.
REP. CANADY: Mr. Hamilton?
MR. HAMILTON: No, I don't disagree with that.
REP. CANADY: Okay. Well, thank you. Let me go on to make some comments about what I think is at stake in the case that's before us.
When we look at the facts concerning the president's conduct, what do we find? Now, 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.
Now, I know that some people believe this is all trivial, but I believe that that is what is going on. We see evidence that the president last December -- and 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 got a problem with what happened before the grand jury and the president's conduct. As --
MR. BEN-VENISTE: I have a problem with characterizing it as an obstruction of justice. The president admitted in a grand jury --
REP. CANADY: Mr. Ben-Veniste, I'm sorry, I'm sorry, you've made that point, and I've got --
MR. BEN-VENISTE: I thought you were asking me about it, congressman.
REP. CANADY: If I have some time left, I'll be happy to recognize you.
MR. BEN-VENISTE: Okay.
REP. CANADY: 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 the substantial course of wrongdoing that was sustained over a period of a year?
Now, it's 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, as indeed it is not a defense against these allegations. I think that just doesn't make sense. But that's 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. Now, this was not some trivial lapse of judgment. The president wasn't blindsided; he was calculating every step along the way.
Now, 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 office. It is conduct by the chief executive that harms our country and our Constitution by undermining respect for the law. Now that's 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" --
REP. SENSENBRENNER: The gentleman's time has expired.
REP. CANADY: -- if I could just -- one sentence here -- I am 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."
REP. SENSENBRENNER: The gentlewoman from California, Ms. Lofgren.
REP. ZOE LOFGREN (D-CA): Thank you, panelists, for being here today and for your enlightening testimony.
And also I just wanted to take a personal moment to -- I worked in a lowly position during the '74 inquiry, and -- but I'd like to express my thanks to you, Mr. Ben-Veniste. You're someone who I look up to and admired at that time for the service that you did to our country then at a very difficult time. And you did it skillfully and honorably.
MR. BEN-VENISTE: Thank you.
REP. LOFGREN: Since you're 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. I -- when Mr. Starr was before the committee, I asked him three questions, two of which had to do with when he found out information and the third about whether he would release reporters from their confidentiality bond. And I recently received a letter from Mr. Bittman, 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 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 --
REP. LOFGREN: Thank you for that.
MR. BEN-VENISTE: -- investigating whether somehow this investigation was somehow skewed and whether there was the creation of an unwarranted appearance.
Now I don't say that that occurred, but I think there's an obligation to look at that.
REP. LOFGREN: Nor do I. I just want 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 should maybe have been looked at by the independent counsel -- other witnesses that might have been called. You're familiar with the special prosecutor's investigation, and you've got a lot of experience as a prosecutor and 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 if -- that might have given a greater picture of the truth? Do you have any advice for us on that one?
MR. BEN-VENISTE: Well, 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 her own admission, put Ms. Tripp up to tape recording was never put before the grand jury. That would be Lucianne Goldberg.
And if you look in the appendix that Mr. Starr submitted, there is an FBI 302 report that shows that Ms. Goldberg was served with a grand jury "subpoena duces tecum" -- to appear, testify and bring evidence. 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 the question about what she did with the 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 she was guiding Ms. Tripp in some way and who she was talking to, none of those questions are before us in any record because, as far as we know, Ms. Goldberg was never put before a grand jury.
There is a 302 report that shows that seven months after she received the grand jury subpoena she was interviewed by an FBI agent working with Mr. Starr, and in that material there are some very interesting questions which are raised, and 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 --
REP. LOFGREN: Well, we can't say what we do in exec session, but we can say what we don't do in exec session. That's something we've not done in exec session.
So if I can, just very quickly, you've included some articles, and I'm familiar with headlines writers who embarrass you, but the New York Times article you mentioned, with the headline 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 that really is at work here, what would the unseen hand mentioned in the article have to do with any of this that's been brought to us?
MR. BEN-VENISTE: Well, Mr. Sensenbrenner, if I may answer?
REP. SENSENBRENNER: A sentence or two. The gentlewoman's time has expired.
MR. BEN-VENISTE: Surely. I think when you're considering something like removing the president of the United States, you ought to know whether somebody has set up something in motion to take him down. And that, I think, is the obligation of this committee. And 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 forcing that.
REP. SENSENBRENNER: The gentlewoman's time has expired. The gentleman from South Carolina, Mr. Inglis.
REP. INGLIS: Thank you, Mr. Chairman.
Mr. Craig is not in the room as far as I can see, but on this third panel, I want to keep score here -- 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 evidenciary issues directly."
REP. : (Off mike.)
REP. INGLIS: Not yet. Zero for three. Three panels, no facts, no evidence.
REP. : A point of parliamentary inquiry?
REP. 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?
REP. INGLIS: I don't have time to yield, I'm terribly sorry.
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, sir.
REP. INGLIS: If you have a client on the stand who commits perjury, do your knowledge, what do the canons of ethics require you to do in that case?
MR. HAMILTON: The District of Columbia canons 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.
REP. INGLIS: And in that case, isn't it clear that what's happening there -- is it -- 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 disclosed this to the client, and in many jurisdictions, disclose it to the court as well, correct?
MR. HAMILTON: In some jurisdictions, yes.
REP. INGLIS: Yes.
MR. HAMILTON: So to answer your question, the lawyer's obligation as an officer of the court in that circumstance supersedes his obligation to his client.
REP. INGLIS: Which -- the only point I would make, 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. Now, 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.
REP. INGLIS: Right, I understand that. I understand --
MR. BEN-VENISTE: And obviously, this occurs when the lawyer has knowledge that his client has lied.
REP. INGLIS: No, no. Mr. Ben-Veniste, let me ask you a different question that has to do with something else. I understand that there's a regular conference call from the White House that deals with communications efforts at the White House. Is that true, to your knowledge, that there's some regular conference call, as I understand it, at 11:00 o'clock, possibly, on every day of the week -- is that about right, to your knowledge?
MR. BEN-VENISTE: I have participated in -- on an irregular basis in what may be a more regular conference call.
REP. INGLIS: All right, so you participated in this call.
MR. BEN-VENISTE: From time to time.
REP. INGLIS: Yeah. And so then the evidence you can give here --
MR. BEN-VENISTE: In recent weeks.
REP. INGLIS: Actually, we found something that you can testify about in terms of facts and evidence.
MR. BEN-VENISTE: Oh, there's a lot I could testify about.
REP. INGLIS: (Inaudible due to cross talk.) -- 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, to my knowledge --
REP. INGLIS: No calls involving Ken Starr --
MR. BEN-VENISTE: Coordinating some attack on Ken Starr?
REP. INGLIS: Excuse me?
MR. BEN-VENISTE: No, sir. I am unfamiliar with a call coordinating an attack on Ken Starr.
REP. INGLIS: So you haven't participated in any such calls?
MR. BEN-VENISTE: No, sir.
REP. 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 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. Third panel, no facts --
REP. SENSENBRUNNER: The gentleman's time has expired.
REP. NADLER: Mr. Chairman?
REP. SENSENBRUNNER: For what purpose does the gentleman from New York --
REP. NADLER: Point of parliamentary inquiry.
REP. SENSENBRUNNER: State your inquiry.
REP. NADLER: My inquiry is that the gentleman from South Carolina just again stated that there's been no factual submission, implied that Mr. Craig, who said that there'd be a factual submission today --
REP. : Regular order, Mr. Chairman, that's not a parliamentary inquiry.
REP. SENSENBRUNNER: State your inquiry.
REP. NADLER: My inquiry is -- my inquiry is, was that side of the aisle not served with this material, or was the gentleman being dishonest and misleading to television viewers by implying that there was no such submission made?
REP. SENSENBRENNER: That is not a proper parliamentary inquiry. And the gentleman from Texas, Ms. Jackson Lee, is recognized.
REP. SHEILA JACKSON LEE (D-TX): 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.
REP. JACKSON LEE: To your knowledge.
MR. BEN-VENISTE: No, of course not.
REP. JACKSON LEE: Let me, then, proceed with words from Daniel Webster known as the March 7th 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 a 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, that we be allowed, as I have supported over the past couple of weeks, a censure resolution to heal this country and to address these circumstances; for what troubles me is the precedent that is being set today or over these past few hearings that we've had: one, in undermining the institution of the presidency and how this is played to the American people, and then 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 and 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 office of an America -- 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 charges 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 17th, 1998.
And might I just simply say, they refuse to acknowledge that the Paula Jones case was dismissed, that she appealed it, and then she settled it. They refuse 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 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 --
REP. SENSENBRENNER: The gentlewoman's time has expired.
The gentleman from --
REP. JACKSON LEE: We need to heal this nation and provide for a censure resolution --
REP. SENSENBRENNER: The gentleman from Virginia --
REP. : Regular order. Regular order!
REP. SENSENBRENNER: -- Mr. Goodlatte.
REP. JACKSON LEE: -- and stop the farce and the theatrics of what's going on in this room.
REP. SENSENBRENNER: (Sounds gavel.)
REP. : Regular order!
REP. ROBERT GOODLATTE (R-VA): Thank you, Mr. Chairman.
REP. SENSENBRENNER: The clock runs at the same rate for every one of the members of the committee.
REP. JACKSON LEE: Thank the chairman.
REP. SENSENBRENNER: I would hope that the members would be respective of the time.
The gentleman from Virginia, Mr. Goodlatte.
REP. 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're not a threshold.
REP. GOODLATTE: All right, that's what I'm 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.
REP. 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. And 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."
And here's where I think you are so farsighted, more farsighted than anybody who's 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 widespread abuse 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?"
Now let me ask you about the title of the book, Mr. Ben-Veniste, "Stonewalling" (sic). 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. And --
REP. 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 had tried to obfuscate at the very beginning a very inappropriate relationship of a private nature about which he was, I'm sure, and should be, ashamed.
The question of --
REP. GOODLATTE: Well, let 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. The --
REP. GOODLATTE: You don't think those are comparable.
MR. BEN-VENISTE: The 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.
REP. SENSENBRENNER: The gentleman's time has expired.
The gentlewoman from California, Ms. Waters.
REP. MAXINE WATERS (D-CA): 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 foreign to us and as 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 it, and that's why there's 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 thoughts 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, misrepresentation, 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 or 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 nuanced 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" -- "It 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 Tyfer (ph), 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. Tyfer (ph), who said, "We are dealing with hard-core obstruction of justice where documents were destroyed and phony chronologies were concocted at meetings in which all conspirators agreed the goal was --
REP. SENSENBRENNER: The gentlewoman's time has expired.
REP. WATERS: -- to lie? And Mr. Henry Hyde condoned that.
REP. SENSENBRENNER: The gentlewoman's time has expired.
REP. WATERS: I've got more the next time around.
REP. SENSENBRENNER: I would ask unanimous consent that the other questions of Mr. Hyde be placed in the record if that's what the gentlewoman from California wishes.
REP. WATERS: No, I got to keep telling 'em to you.
REP. SENSENBRENNER: Okay. (Laughter.)
REP. SENSENBRENNER: Well, I hope those questions were not directed to the present occupant of the chair. (Laughter.)
The gentleman from Indiana, Mr. Buyer.
REP. BUYER: You know, you would note there that the gentlelady from California wants to propound detailed questions on the chairman, but she has no questions to ask of the president nor of his conduct.
You know, that's part of the operations, I suppose, of the minority in their defense of the president, acting like criminal defense lawyers, and that's what's unfortunate sitting on the Judiciary Committee. So as I have heard some of the witnesses even 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 here doing. So it is an uncomfortableness.
And I mentioned that earlier, you participate in these phone conversations. Well, there is tremendous coordination in this town, not only between you -- and, Mr. Ben-Veniste, you go out on MS-NBC, and you're one of the talking heads out there --
MR. BEN-VENISTE: No "Gong Shows."
REP. BUYER: -- saying one of particular points or defenses of the president -- and the coordination, not only to my colleagues here in the minority.
I have a specific question for Mr. Hamilton. I noted in your testimony you are endorsing a Concurrent Resolution of Censure. And 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: Well, 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.
REP. BUYER: Now when I asked -- but 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.
REP. 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 this is a device which is proportionate and appropriate to the misconduct involved by the president, whereas 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.
REP. BUYER: Let me reclaim my time because I don't want to get back into 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 non-punitive. Courts are directed to examine the legislative intent of a 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's likely not punitive. So the problem we have here is a bill of attainder that pronounces the guilt of a party without any forms of the safeguards of a trial. So if you do a censure and then the president may face indictment when he leaves office, we have now prejudiced his case. So --
REP. SENSENBRENNER: The gentleman's time has expired.
REP. BUYER: Thank you, Mr. Chairman.
MR. HAMILTON: Mr. Chairman, may I respond to that?
REP. SENSENBRENNER: A sentence or two.
MR. HAMILTON: A sentence or two. 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.
REP. SENSENBRUNNER: The gentleman's time is expired. The gentleman from Massachusetts, Mr. Meehan.
REP. MARTIN T. MEEHAN (D-MA): 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 what 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're 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 4:00 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 that to serve as a ready conduit for scandal between the Office of Independent Counsel and the United States Senate. 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's 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's politically safe. All you're 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 in the House, and an ordinary criminal grand jury?
MR. BEN-VENISTE: I -- I think that your responsibility, because it is constitutional in nature, is so 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 emotional about the burden which the question of impeachment of a president of the United States had put 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 what the responsibilities were 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.
REP. MEEHAN: I want to get to the grand jury testimony on August 17th of this year by the president, and I'd like to ask you a couple of short questions. It's interesting why and how the president was called before the grand jury. But I'm 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.
REP. 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 waited until closer to the date in which he would be seeking an indictment or willing to seek an indictment?
MR. BEN-VENISTE: Well, 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.
REP. SENSENBRENNER: The gentleman's time has expired.
The gentleman from Tennessee, Mr. Bryant.
REP. ED BRYANT (R-TN): Thank you, Mr. Chairman.
Let me be clear and remind everyone once again as to what's going on today. We have the final two members of today's panels, witnesses number eight and nine 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 has to make his case.
Both of you gentlemen are very experienced in trial law and know that oftentimes people who testify are independent, don't have any dog in that hunt, so to speak, and sometimes they have biases and prejudices. And you both have made something of a disclosure before you testified.
But in the interest of further and fuller disclosure, quite frankly, Mr. Veniste (sic), 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, declined that job; did you not?
MR. BEN-VENISTE: Let me say --
REP. BRYANT: It was offered to you, was it not?
MR. BEN-VENISTE: Let me say that my feeling about this matter, that --
REP. BRYANT: I understand. I'm just trying in the interest of full disclosure --
MR. BEN-VENISTE: The subject -- the subject was --
REP. BRYANT: I am not making any allegations. I just want to know, were you offered his job and you turned it down?
MR. BEN-VENISTE: I would think that would be an allegation. I think any individual who's a lawyer in the United States --
REP. BRYANT: Oh, you yourself mentioned in your -- preliminarily to your testimony, you mentioned some things I thought in fair disclosure. I'm trying to make sure that everybody understands you also had the opportunity to be the president's lawyer in this case.
MR. BEN-VENISTE: I think it's been reported in the newspaper, sir, if I may, that the concept was discussed with me as to whether I would come on board in some way. My view about that was that the issues of impeachment of a president are so far beyond the question of the defense of this particular president that I would prefer and did prefer and did decide, although it would be a great honor for any lawyer to be selected as counsel in some way to the President of the United States --
REP. BRYANT: Okay, thank you. You've answered that fully.
MR. BEN-VENISTE: -- to talk in a broader way.
REP. BRYANT: I don't -- thank you.
REP. WATERS (?): Let him answer the question.
REP. BRYANT: Mr. Hamilton -- no, he answered it fully, I think.
REP. WATERS (?): He didn't answer.
REP. BRYANT: I have five minutes, and I don't have time for a filibuster.
Mr. Hamilton, you, too, have worked --
MR. BEN-VENISTE: I hope I wasn't trying to filibuster, sir.
REP. BRYANT: -- in the -- as the counsel for the president, for the Clinton-Gore transition team for nomination and confirmations. You were the lawyer in 1992 and 1993?
MR. HAMILTON: Yes.
REP. BRYANT: Okay. And you also mentioned voluntarily that you defended the case somehow or you were involved against Mr. Starr in the case of Vince Foster? You took -- you argued that case, I believe?
MR. HAMILTON: Well, nine days before Vince Foster died he came to see me about legal representation.
REP. BRYANT: Okay, good.
MR. HAMILTON: And I took some notes. And Mr. Starr wanted those notes. I thought those notes were protected both by the attorney- client privilege and the work product privilege.
REP. BRYANT: I understand. People are familiar with that case, and I simply wanted to know did you, in fact, represent Mr. Foster.
MR. HAMILTON: Yes.
REP. BRYANT: Thank you. You did.
I'm listening to my colleagues as time goes by talk about how we are -- want the facts and how we've 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.
And as a part of that -- I've quickly looked at about a third of it, and in that it says that -- somewhere along here it says we're not going to be attacking Kenneth Starr any more, and we're going to -- 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 the -- 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.
Now 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 attacks of Kenneth Starr.
I yield back the balance of my time.
REP. SENSENBRENNER: The gentleman's time has expired.
The gentleman from Massachusetts, Mr. Delahunt.
REP. DELAHUNT: Yes, thank you, Mr. Chairman.
I'd like -- I think it's important to note that, in fact, we have received 184 pages of a submission from counsel for the president related to facts, related to evidence.
I think it's 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, and I would respectfully suggest that tonight that those draft articles be produced for the president and for minority, and if that is not the case, I stand corrected. But at least that's what has appeared in the paper, Mr. Chairman, and I'm 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 talks about facts and he talks about evidence, and he's -- he suggests that after three panels we haven't heard from any fact witnesses. And he's correct. And during the entire course of this committee's work, we have not heard from a single fact witness. 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.
And again, I want to read something in the record, drafted by -- it's part of the committee report, and it's drafted by Mr. Schippers, the chief majority investigative counsel. And 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're 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'm hearing -- and it is a point, it's a legitimate point, from members of the majority side. In their -- or in some of the individual members' opinion, 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's 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 in FBI interviews nor had he attended grand jury hearings, but he had never met Monica Lewinsky.
REP. SENSENBRENNER: The gentleman's time has expired.
The gentleman from Ohio, Mr. Chabot.
REP. STEVE CHABOT (R-OH): I thank the chairman.
We just received a little while ago, this hundred and, I think, eighty-four pages that is the submission by the president's attorney. And this is supposed to be their answer to the facts, even though none of the witnesses here essentially have really addressed the facts -- 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 this -- whether he was alone with Ms. Lewinsky. And he, of course, had indicated that he couldn't remember -- he wasn't alone with her. Their explanation of clearing up why her -- the president's submission in here 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 "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 common-sense meaning, like "alone," ought to be pretty clear?
REP. BUYER: I agree that there has been too much hair-splitting 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, in my view.
REP. CHABOT: And I would agree with you if it was just that --
MR. BEN-VENISTE: I agree with you in connection with your frustration over this parsing of language.
REP. CHABOT: And I would agree with you if it was only that one lie about whether or not he was alone with her, but there's a whole series of lies. And I've only got five minutes, so let me get on.
Mr. Hamilton, in your opening, you claimed 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's not a great and dangerous offense against the state. But surely we don't want our presidents to lie, our congressmen to lie, 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's some judgment that comes in here, some proportionality.
REP. CHABOT: Certainly there does have to be judgment, and you indicate -- let me quote from a full quote that you had in here. You said that "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."
Now the president said, for example, that he would pull the troops out of Bosnia in a year. That was three years ago; they're still there. I don't think that's 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. And that's the whole point here, is that this president apparently lied under oath, committed perjury. And that's 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.
REP. SENSENBRENNER: The gentleman's time has expired.
The gentleman from Florida, Mr. Wexler.
REP. ROBERT WEXLER (D-FL): Thank you, Mr. Chairman.
If we've accomplished one thing today, I think we've accomplished something important, and that is at many instances today the majority members have talked about the fact that the president has not presented any exculpatory facts.
Well it's been referred to earlier, but here it is, 184 pages, and if I'm getting a 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. And in analyzing some of the president's counsel's response, I'd like to address the issue of perjury, because that's the issue that seems to have captured the imagination of most of the Republicans in the House. And let's talk about what that perjury, alleged perjury is.
At the grand jury, the president admitted to an inappropriate, intimate relationship with Ms. 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 it's not going out for coffee. And what the American people need to understand, and what I'd 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 mind, 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 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. And I have to say that if that's what it is, then simply using the word perjury does not convey the discrepancy between what remedy you are talking about -- that is, to disenfranchise all of the United States in its elected president, taking away their vote, nullifying it, and saying he cannot be president any more because he did not testify to these details in the grand jury. To me, that is mind-boggling.
REP. WEXLER: Thank you very much.
REP. SENSENBRENNER: The gentleman from Georgia, Mr. Barr.
REP. BARR: Thank you.
Indeed, that might be mind-boggling, but that's not the situation we're faced with, Mr. Ben-Veniste. You know very well that essentially what we're faced with here 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's 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've heard here -- rather disturbing -- 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, and I'm sure that we could engage in a discussion for the entire remainder of my five minutes, and I'm not going to convince you otherwise. It just strikes me as odd that the learned attorneys who have extensive experience in representing parties, including the United States, in court, believe that it's appropriate for a president, 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.
That just --
MR. HAMILTON: Congressman Barr, I did not say it was appropriate for the president to lie under oath. I think you're mischaracterizing my statement --
REP. BARR: Oh, really? Well, then how -- and 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. And you're arguing that we should not impeach the president. Therefore, you are denying to us -- you're saying the one method that we have of removing a president for these things, which you agree he committed, should not be available, then yes, by implication 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 the most 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 --
MR. HAMILTON: Short of disability.
REP. BARR: I mean, is there some other way of removing a president in our constitutional form of government?
MR. HAMILTON: Well, you have a way if he's disabled.
REP. BARR: Pardon?
MR. HAMILTON: If the president is disabled, there's a way.
REP. BARR: Well, we're certainly not contemplating disabling the president. (Laughter.) I mean, maybe you have some -- maybe you have some --
MR. HAMILTON: You asked me a question, whether it was the only way. And my answer is, if the president is disabled, there's another way.
REP. BARR: Well, I mean, that's sort of silly. I mean, 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's available to us. I certainly would never contemplate that anyway. (Scattered laughter.)
But what I'm saying is, it really does strike me as very, very odd for you all -- and you're not alone; I mean, I know there have been many defenders of the president that have sat in those chairs today and in the prior hearings that we had, and I'm sure we'll 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 say that this president should remain in office. And particularly with somebody with a distinguished career, who has represented the United States of America, both of you, that really does strike me as odd, and 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: Well, 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.
REP. BARR: Well, my empirical evidence is the same as yours -- what they tell me.
REP. SENSENBRUNNER: The gentleman's time -- the gentleman's time has expired. The gentleman from New Jersey, Mr. Rothman.
REP. STEVEN ROTHMAN (D-NJ): Thank you, Mr. Chairman. I'd like to get back, if I may, to what I believe these hearings are all about. We've 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're going to enforce the rule of law in America or not and whether we're going to send the right messages to our children and to others involved 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 daresay 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 a civil litigation or not to tell the truth in civil litigation? The president didn't 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's there already and will be applied against the president. What we're talking about is what we're responsible for: upholding the Constitution. And the Constitution says how the president gets hired -- elected -- and gets fired -- treason, bribery, and other high crimes and misdemeanors. And we have to decide whether the president's conduct not should be punished, because it has already been punished and may very well be punished criminally in the future. We need -- we're deciding whether as a nation we must remove the president.
So I daresay that the arguments about upholding the rule of law, we've 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 the 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, by Judge Starr is equivocal, is ambiguous, is contradictory, and is qualified, as the president's counsel has addressed. So we have the one prosecutor, Judge Starr, say "The witnesses say this and it means this," you have the president's counsel say "The witnesses said this and they mean this," and we are left to decide in the middle.
Let me say that we are founded by a nation of those who were loath to take the word of government officials only. And they gave our people -- 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.
REP. SENSENBRENNER: The gentleman's time has expired.
The gentleman from Tennessee, Mr. Jenkins.
REP. BILL JENKINS (R-TN): Thank you, Mr. Chairman.
And gentlemen, thank both of you for being here. It has been a long day. We've had -- you're now the third panel who's been here, two very good lawyers testifying -- not representing -- testifying for the president of the United States here today.
And as I understand your testimony, both of you think that the president has engaged in wrongful conduct. Is that correct?
MR. BEN-VENISTE: Yes.
MR. HAMILTON: Yes.
REP. JENKINS: Both of you think that the president has violated the law.
MR. BEN-VENISTE: Perhaps.
REP. JENKINS: Perhaps?
MR. HAMILTON: Certainly his testimony is most troubling.
REP. JENKINS: Perhaps, and testimony is most troubling.
Both of you, in any event, believe that some remedy for this situation is appropriate.
MR. HAMILTON: Yes.
MR. BEN-VENISTE: Yes.
REP. 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'll try to leave time for you to respond to this -- but I am concerned, in reading the Constitution, that the Constitution says that in the event there is a violation, that 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'm not directing this at you, but this entire day has reminded me of that lawyer strategy that's 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.
And 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 how bad Watergate was." So if I ever get back to practicing law, I may use this down in Tennessee. (Scattered laughter.)
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's 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 option of not ever 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 doesn't 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. And in the "Jefferson's Manual," he says that a resolution is a way that a house can express its opinions, its purposes and its principles. And if you look in the footnote that's 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."
REP. JENKINS: Certainly the House can pass --
MR. HAMILTON: 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.
REP. JENKINS: But that rule envisioned --
REP. SENSENBRENNER: The gentleman's time has expired.
The chair is aware of --
REP. JENKINS: Thank you, Mr. Chairman.
REP. SENSENBRENNER: -- two members that wish to make requests to include material into the record.
The gentleman from Georgia, Mr. Barr.
REP. BARR: Mr. Chairman, I move to include a letter I've given to the chairman at the same point as the letter from Mr. Conyers.
REP. SENSENBRENNER: Without objection.
The gentleman from Virginia.
REP. SCOTT: Thank you, Mr. Chairman. I'd like to introduce a newspaper article from Sunday's Washington Times to --
REP. SENSENBRENNER: Without objection.
REP. : Mr. Chairman?
REP. SENSENBRENNER: Are there any further requests to include material in the record?
REP. : Mr. Chairman, I would ask that the Wall Street Journal article of today's date, by Henry Ruth, be included in the record.
REP. SENSENBRENNER: Without objection. Further requests for material in the record.
Gentlewoman from Texas?
REP. JACKSON LEE: Thank you, Mr. Chairman. I have two articles that I'd like to have submitted -- one dated November 26, 1998: "House Panel Reportedly Draws Up Clinton Impeachment Charges;" and one dated November 28, 1998: "Impeachment Articles Being Drafted." And Mr. Chairman, I would like to submit --
REP. SENSENBRENNER: Without objection, they are included.
REP. JACKSON LEE: Thank you very much, Mr. Chairman. I'd like --
REP. SENSENBRENNER: Gentlewoman from California, Ms. Waters.
REP. JACKSON LEE: -- one other document -- I'm sorry, Mr. Chairman -- I'd like to submit in its entirety the Constitution of the United States of America, which does not denote any prohibition on censure.
REP. SENSENBRENNER: I believe the committee has already printed that, but if --
REP. : I object.
REP. SENSENBRENNER: Objection is heard.
Does the gentlewoman from California have a request?
REP. WATERS: Yes, Mr. Chairman, I'd like to take you up on your offer to place my questions to the chairman in the record about his past comments in 1987.
REP. SENSENBRENNER: Now you are talking about the real chairman, not the acting chairman. (Laughter.)
REP. WATERS: The real chairman, the real chairman. I haven't found any on you yet.
REP. SENSENBRENNER: The chair will put the question without objection. (Laughter.)
For what purpose does the gentlewoman from California --
REP. WATERS: Unanimous consent to submit to the record my letter to Mr. -- my two letters to Mr. Starr and my letter to the attorney general relative to the three questions and my seeking of answers to those.
REP. SENSENBRENNER: Without objection. Anybody else? Going once, going twice.
The gentlewoman from California.
REP. WATERS: Yes, I'd 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.
REP. SENSENBRENNER: Without objection, and the gentleman from Wisconsin has been very patient and has recognized --
REP. 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?
REP. SENSENBRENNER: I said the committee has already published the Constitution elsewhere.
REP. JACKSON LEE: All right, well, then I will get a review on this and raise the question again tomorrow.
Thank you, Mr. Chairman.
REP. SENSENBRENNER: Okay, then that request is withdrawn without objection.
And now the gentleman from Wisconsin, Mr. Barrett.
REP. BARRETT: Thank you. 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, and they're absolutely correct.
Now at the end of three months, if you're keeping score, there have been zero material witnesses to push this investigation and zero material witnesses, fact witnesses against it. The score remains zero to zero, which sort of highlights the bizarre nature of this proceeding that we have heard hours and hours of testimony, talked to ourselves for hours and hours, and still have 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're 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'm going to advance first the one that is -- I hear most often from my Republican colleagues, and that's that the economy is doing well. The stock market is doing well, people are working. And 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's part of the reason, that the economy is doing well, inflation is low, unemployment is low. And 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's something wrong here, there's something going on, that 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. And I don't think it's 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's something wrong here. And 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 has been played by the political enemies of the president, in some respects I think that that's a greater danger to democracy than anything we're talking about here tonight.
The third reason, I think, is many Americans think that these are not impeachable offenses. And I was at home over the weekend, and I went in to buy hot ham on Sunday, and the grocer said to me, "I'll tell you, the president screwed up." And his language was much more colorful than that. But he said "The president screwed up." But the question is, was is Bill Clinton the president, or Bill Clinton the man? And he said, "I think it was Bill Clinton the man who screwed up." And we should deal with him. It wasn't Bill Clinton the president. And as you analyze what should be an impeachable offense, I think you can take a piece of paper and draw a line right down the middle. And on one side you can put offenses against the body politic, offenses against our democracy, those that we talked about in terms of Watergate.
And I think that 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've 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's sort of at the high end there, even though it's 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. And you've got perjury for things like murder, but then you have people who say that their odometer was wrong on their -- when they got a speeding ticket. If that were the case, we'd have a lot more malpractice, we'd have a lot more product liability suits against odometer makers than we have. But people are lying there, and I think there's a gray area.
So what it comes down to is, what's the best thing to do for this country? And there's not a single person that I have yet talked to who thinks the president's going to be removed from office.
So then it comes down to we're going to slap him in the face. We're either going to slap him in the face with censure or impeachment. Impeachment drags this matter out for several months, 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're either going to censure the president for the second time in this country's history, or we're 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. And I would yield back the balance of my time.
REP. SENSENBRENNER: The time of the gentleman has expired.
The gentleman from Arkansas, Mr. Hutchinson.
REP. ASA HUTCHINSON (R-AR): 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 had made to Mr. Craig, the White House counsel, the president's counsel. I was providing with specificity, at his request, really what -- the concerns I had on perjury. So the whole idea was not to bring up a new area; it was be very specific and to respond to his request.
There's been some questions asked about the evidentiary record in this case. And I want to make it clear, in my own judgment -- I believe it's clear that this committee has the burden of proof. There's not any question about that, that if the House goes forward, the president has no burden of proof; it's this body that has the burden of proof. And it's not, in my judge, by preponderance; it should be a high standard because we're talking about impeachment of the president of the United States. And so as I look at these facts, the burden of proof is on those who wish to go forward with articles of impeachment. And we should make that perfectly clear, and it should be a high standard.
Now, the evidentiary record on perjury, I don't know that there's a whole lot in dispute here. It appears to me that there's a growing consensus that the president lied under oath. Now, there's a debate as to whether this is legally perjury or whether it's simple lying under oath and the consequences of that, but I think the facts, there's a growing consensus on. We don't need to have a whole lot of witnesses on that, if any witnesses. The record is clear. Obstruction is a little bit more difficult; you have to look at a lot of common sense, you have to apply other evidence to support the particular witnesses in the case, and you have to analyze that more.
But let me go to the questions about perjury. I think this is an extraordinarily serious area. And the questions have been raised about Mr. Starr, about Linda Tripp, about other -- questions about the inquiry. And to me, it comes down to whenever the president testified in front of the judge, in the civil deposition, the federal proceeding, he had a choice to make, either to tell the truth or not to tell the truth. And regardless of what has happened in the investigation and the Paula Jones lawyers, when he went to the grand jury -- Alan Dershowitz and everyone else was writing 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, and blaming it now on Starr or blaming it on Linda Tripp really does not -- is not helpful to it, and I think that 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 -- is that fair?
MR. BEN-VENISTE: The question, all the way up to the grand jury, there are two things. One --
REP. HUTCHINSON: You better answer it quick.
MR. BEN-VENISTE: -- he had another choice, and that was not to respond in the civil deposition --
REP. HUTCHINSON (?): That's true.
MR. BEN-VENISTE: -- and to take an appeal and to take that up. 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'm missing something, but --
REP. HUTCHINSON: I agree. That's a legal question there that we can debate. That's not conceded -- materiality, all those issues on perjury --
MR. BEN-VENISTE: (Falsehood. ?)
REP. HUTCHINSON: -- you can debate, but the truthfulness, the decision to lie or not, is the president's decision. Either answer or don't answer, tell the truth or don't.
MR. BEN-VENISTE: That's true.
REP. HUTCHINSON: And, would you agree, Mr. Hamilton?
MR. HAMILTON: Yes.
REP. HUTCHINSON: Now, I'm going to run out of time here in just a few minutes, but I want to thank you gentlemen for testifying. Quite frankly, I wanted to hear you because I have high regard for both of you, but you're 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, and we're getting down to the "lick log" in this case, as they say on the farm in Arkansas, and we've got to make a decision that's not an easy one.
And I thank you-all for testifying.
I wanted to end with the 1974 -- since we spent so much time on that -- quotation from a member of Congress, whenever he said 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 of this country, and that all the people of this country have an obligation to live by that standard of law, and that the leaders of this 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. And I reflected on that last night. I think that's still the attitude of the people of Arkansas. I just wanted to bring that to everyone's attention today.
REP. SENSENBRENNER: The gentleman's time has expired.
The gentleman from Indiana, Mr. Pease.
REP. EDWARD PEASE (R-IN): Thank you, Mr. Chairman.
Mr. Ben-Veniste, you discussed early 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 common-sense 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.
REP. PEASE: I understand that. My question still is, when you say -- well, let me back up. I'm not interested in us addressing, in a reprimand, a censure, 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's the distinction that I was getting --
MR. BEN-VENISTE: All of that -- 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. And I think that's the distinction. Were he to have to 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 plumbers unit, or broke into a psychiatrist's office with the purpose of obtaining records --
REP. PEASE: I think I understand. I understand your --
MR. BEN-VENISTE: -- all of those things would, indeed, fly to a level of scrutiny.
REP. BRYANT: And I appreciate -- thank you.
MR. BEN-VENISTE: Thank you, sir.
REP. BRYANT: Mr. Hamilton, can you -- 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: Well, I did get into it in my prepared statement. Need the -- 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.
Now, the court went on and found that the needs of the criminal justice system outweighed the president's presumptive privilege. And 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 needs in a trial -- outweighed that.
REP. BRYANT: 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: Well, 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 would want to take. It had some ramification. And I can't give you any details on that, and maybe that's a good question you can ask Mr. Craig tomorrow.
REP. PEASE: Thank you.
REP. SENSENBRENNER: The gentleman's time has expired. The gentleman from Utah, Mr. Cannon.
REP. CHRIS CANNON (R-UT): Thank you, Mr. Chairman. I'm going to begin by agreeing with my friend, Mr. Barrett, that we actually have a good economy with a Democratic president. And I'd like to point out that that fact -- the fact that the economy is going well, in spite of a Democratic president -- (laughter) -- 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.
REP. CANNON: You didn't know. Okay.
Now, one of the really 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. And frankly, I'd 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; $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's in publicly; but I think that went to settling the base case with Ms. Jones.
Mr. Rothman then talked at some length -- and I agree with much of this -- about the rule of law. But let me suggest here that the question 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, and 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 debase 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, and I think that 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've talked about zero for zero with fact witnesses. But we do have a prima facie case. We have a case that's been made, and many people have acknowledged that. Essentially, Father Drinan said, even if true, these actions wouldn't be impeachable. Both of our current panelists have talked about the -- or acknowledged wrongdoing on the part of the president. Mr. Owens earlier admitted that the president -- or said that he thought the president had lied to the grand jury and had lied in the civil action by 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 the term Ms. Jackson Lee has used, "reprehensible" is the term that Wayne Owens used, "sinful" is the term that Mr. Craig used, "obscene" has been used, "morally wrong," "indefensible," "inappropriate" and "improper." All these pejoratives from the supporters of the president implied sex rather than perjury, I might say, and I think is an attempt when we use those kinds of terms to avoid the real issue here, which is, I believe, 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.
Mr. 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 crimes of President Nixon and the --
REP. SENSENBRENNER: The gentleman's time has expired.
The gentleman from South Carolina, Mr. Lindsey Graham.
REP. LINDSEY GRAHAM (R-SC): Thank you. Where did Mr. Rogan go? Okay.
REP. SENSENBRENNER: Mr. Rogan is ill and went home.
REP. GRAHAM: Okay. Sorry. I'm sorry. I apologize.
Very important. You made some statements that really, Mr. Ben- Veniste -- is that right -- ?
MR. BEN-VENISTE: Yes, it is.
REP. GRAHAM: -- that I think I understand what you're saying about the type things you would want to impeach president for and the type 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? If he wiretapped an individual --
MR. BEN-VENISTE: Right --
REP. GRAHAM: -- somebody that was a potential threat to their political interests, personal interests, monetary interests -- let's just say political interest -- 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's an abuse of power, yes, sir. You're getting in the zone --
REP. GRAHAM: If I can show -- 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 is being a little more than about sex?
MR. BEN-VENISTE: I'm certainly willing to listen to your arguments.
REP. GRAHAM: Well, you just need to turn in -- tune in tomorrow.
Let me ask you this: About his perjury, about the body parts being contacted, I think most of us really believe if that's all there is to this, let's just let it go. Count me in that category. Count me in that category. We'll do something to him other than impeach him.
When the president, according to Ms. 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's what she claims he said:
"You were always there when she was there, right? We never really -- 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.
REP. GRAHAM: Okay. Thank you. I'll yield back the balance of my time. We'll talk about this tomorrow.
REP. SENSENBRENNER: And finally last, and certainly not least, the gentlewoman from California, Ms. Bono.
REP. MARY BONO (R-CA): Thank you, Mr. Chairman. (Chuckling.) I always get the same introduction every time.
Mr. Ben-Veniste, I want to address this to you, actually --
MR. BEN-VENISTE: It's hard to see you.
REP. BONO: I know. I'm -- can the court reporters slide back just -- I'm sorry. Thank you.
MR. BEN-VENISTE: How are you this evening?
REP. BONO: Fine. It's nice to -- we were on a panel together. You were in New York. I was here in Washington. We didn't get to complete our dialogue, so I'd like to do that now, if I may -- without Larry King present, unfortunately.
But 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've seen any tape of the Paula Jones deposition.
REP. BONO: All right, so you just read the transcript?
MR. BEN-VENISTE: I'm sure I have not. I'm not sure that I read the entire transcript.
REP. BONO: But you read parts --
MR. BEN-VENISTE: I probably did not.
REP. BONO: You've read parts of the transcript in the Paula Jones -- ?
MR. BEN-VENISTE: I've read parts that were reproduced in the Starr report.
REP. BONO: You know, 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 and questions that are great and written, and we lose them. And I rate -- by the end of, you know, 37 people, I'm stuck with what's left in my gut.
My question for you is 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. But I'm wondering if you believe that if the American people saw that the testimony or the deposition before the Paula Jones if they might feel differently about the perjury case, if they would when they saw the president lie, and if they juxtapose the two -- Paula Jones 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's quite clear that he did not want to tell anybody about it in connection with that very highly politicized Paula Jones case, whatever that was, 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's 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 losses, the winner wins, and no one gets prosecuted for perjury.
REP. BONO: All right. Can I just jump back in to my original question? I think it's a good one, I really do. If the American people saw the president in both situations, would they feel differently? Would the polling numbers, that 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've worked on it. It has a lot of parts to it. And I think, we'll just have to see. And I am thankful that you are the last person to question us this evening.
REP. BONO: Well thank you very much. We all appreciate your time.
MR. BEN-VENISTE: Thank you.
REP. BONO: And thank you, Mr. Chairman.
REP. 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 8:00 a.m. tomorrow. (Sounds gavel.)
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