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THE IMPEACHMENT HEARINGS
Dec. 9: Fourth Panel of White House Witnesses


  • More Transcripts From the Hearings

  • By Federal News Service
    Wednesday, December 9, 1998

    REP. HYDE: Very well. Would the witnesses please stand and take the oath? Thank you.

    Do you solemnly swear or affirm that the testimony you're about to give to the committee is the truth, the whole truth and nothing but the truth?

    ALL: I do.

    REP. HYDE: Thank you. Let the record show the witnesses answered the question in the affirmative. We have a distinguished panel today, as we have had all week. Thomas P. Sullivan is a senior partner at Jenner (sp) & Block (sp) and has practiced with that firm for the past 44 years. He's a former United States attorney for the northern district of Illinois. Mr. Sullivan specializes in civil and criminal trial and appellate litigation, and he has served as an instructor at Loyola University School of Law and for the National Institute for Trial Advocacy.

    Richard Davis is a partner with the New York law firm of Weil, Gotschal and Manges. He clerked for the United States District Court Judge Jack B. Weinstein (sp) from 1969 to 1970. He also served as an assistant U.S. attorney in the southern district of New York from 1970 through 1973 and was task force leader for the Watergate special prosecution force, 1973-1975. From 1977 to 1981, he served as assistant secretary of the treasury for enforcement and operations.

    Edward S.G. Dennis Jr. is a partner in the litigation section of the Philadelphia law firm of Morgan, Lewis and Bockius. He joined the firm after 15 years with the Department of Justice, during which he held the following positions: Acting deputy attorney general, assistant attorney general for the criminal division, and U.S. attorney for the eastern district of Pennsylvania. He is co-chairman of the corporate investigations and criminal defense practice group.

    William F. Weld is a former two-term governor of Massachusetts, graduate of the Harvard Law School. Governor Weld began his legal career as a counsel with the House Judiciary Committee during the Watergate impeachment inquiry. He then served as U.S. attorney and as head of the criminal division at main Justice under President Reagan before being elected governor of Massachusetts in 1990. Governor Weld is currently a partner in the Chicago law firm of McDermott (sp), Will (sp) & Emory (sp), and he is also the author of the recently published comic political crime novel, "Macro by Moonlight." I hope it's not a violation of any rule or regulation to give a plug for the governor's book. (Laughter.)

    Ronald Noble is associate professor of law at NYU Law School. He served as undersecretary of the treasury for enforcement, 1994-1996; as deputy assistant attorney general and chief of staff in the criminal division of the Department of Justice, 1988-1990; and as assistant United States attorney in the eastern district of Pennsylvania, 1984-1988.

    Before recognizing each of you, in whatever order you choose to go, although it's probably just as simple to start on my left to the right, I would like to recognize the ranking minority member, John Conyers, for a statement if he wishes to make one.

    REP. JOHN CONYERS (D-MI): Could I delay my statement, Mr. Chairman?

    REP. HYDE: You surely could.

    REP. CONYERS: Thank you.

    REP. HYDE: Very well. Mr. Sullivan.

    MR. SULLIVAN: Thank you.

    REP. : Mr. Sullivan, turn the mike toward you and put the switch on, please.

    MR. SULLIVAN: Thanks. Is that all right?

    Members of the Judiciary Committee, I appreciate the opportunity to appear before you today to discuss the professional standards for obstruction of justice and perjury. My qualifications to discuss this subject include over 40 years of practice in federal criminal cases, chiefly in Chicago but also in other cities.

    During most of that time, I have acted as defense counsel for persons accused of or under investigation for criminal conduct. For four years, from 1977 to 1981, I served as the United States attorney for the northern district of Illinois. Chairman Hyde and Mr. Schippers are known to me from the practice in Chicago, and I believe they can vouch for my qualifications.

    REP. HYDE: Extraordinarily high.

    MR. SULLIVAN: Thank you, sir.

       


    During the past 35 years, I have taken an interest in, but no part in, politics. While I am a registered Democrat, I consider myself independent at the ballot box and I've often voted for Republican candidates. I have acted for the Republican governor of Illinois, a Democratic senator, and Mayor Harold Washington. I have prosecuted as well as defended Democrat and Republican office holders. I appear today not as an advocate or partisan for President Clinton or the Democrat Party, but rather as a lawyer of rather long experience who may be able to assist you in your deliberations on the serious and weighty matters you now have before you.

    The topic of my testimony is prosecutorial standards under which cases involving alleged perjury and obstruction of justice are evaluated by responsible federal prosecutors. In the federal criminal justice system, indictments for obstruction of justice and perjury are relatively rare. There are several reasons. One is that charges of obstruction and perjury are not substantive crimes but rather have to do with circumstances peripheral to underlying criminal conduct. The facts giving rise to the obstruction or perjury arise during the course of an investigation involving other matters, and, when prosecuted, are usually tagged on as charges additional to the underlying criminal conduct. Second, charges of obstruction and perjury are difficult to prove because the legislature and the courts have erected certain safeguards for those accused of these "ripple effect" crimes, and these safeguards act as hurdles for prosecutors.

    The law of perjury can be particularly arcane, including the requirements that the government prove beyond a reasonable doubt that the defendant knew his testimony to be false at the time he or she testified, that the alleged false testimony was material, and that any ambiguity or uncertainty about what the question or answer meant must be construed in favor of the defendant.

    Both perjury and obstruction of justice are what are known as specific intent crimes, putting a heavy burden on the prosecutor to establish the defendant's state of mind. Furthermore, because perjury and obstruction charges often arise from private dealings with few observers, the courts have required either two witnesses who testified directly to the facts establishing the crime, or, if only one witness testifies to the facts constituting the alleged perjury, that there be substantial corroborating proof to establish guilt. Responsible prosecutors do not bring these charges lightly.

    There is another cautionary note, and this, I think, is very significant here. Federal prosecutors do not use the criminal process in connection with civil litigation involving private parties. The reasons are obvious. If the federal prosecutors got involved in charges and counter-charges of perjury and obstruction of justice in discovery or trial of civil cases, there would be little time left for the kinds of important matters that are the major targets of the Department of Justice criminal guidelines. Further, there are well- established remedies available to civil litigants who believe perjury or obstruction has occurred. Therefore, it is rare that the federal criminal process is used with respect to allegations of perjury or obstruction in civil matters.

    The ultimate issue for a prosecutor deciding whether or not to seek an indictment is whether he or she is convinced that the evidence is sufficient to obtain a conviction; that is, whether there is proof beyond a reasonable doubt that the defendant committed the crime. This is far more than a probable-cause standard, which is the test by which grand jury indictments are judged. Responsible prosecutors do not submit cases to a grand jury for indictment based upon probable cause. They do not run cases up the flagpole to see how the jury will react. They do not use indictments for deterrence or as a punishment.

    Responsible prosecutors attempt to determine whether the proof is sufficient to establish guilt beyond a reasonable doubt. If the answer is yes and there are no reasons to exercise discretion in favor of lenity, the case is submitted to the grand jury for indictment, which, where I come from -- and everywhere else I know about -- is routine and automatic. If the answer is no -- that is, even if the evidence establishes probable cause, but, in the prosecutor's judgment, will not result in a conviction -- the responsible prosecutor will decline the case.

    Some years ago, during the Bush administration, I was asked by an independent counsel to act as a special assistant to bring an indictment against and try a former member of President Reagan's cabinet. Having looked at the evidence, I declined to do so because I concluded that when all the evidence was considered, the case for conviction was doubtful and that there were innocent and reasonable explanations for the allegedly wrongful conduct.

    Having reviewed the evidence here, I have reached the same conclusion. It is my opinion that the case set out in the Starr report would not be prosecuted as a criminal case by a responsible federal prosecutor.

    Before addressing the specific facts of the several of the charges, let me say that in conversations with many current and former federal prosecutors, in whose judgment I have great faith, virtually all concur that if the president were not involved, if an ordinary citizen were the subject of the inquiry, no serious consideration would be given to a criminal prosecution arising from alleged misconduct in discovery in the Jones civil case having to do with an alleged cover-up of a private sexual affair with another woman, or the follow-on testimony before the grand jury. This case would simply not be given serious consideration for prosecution. It wouldn't get in the door. It would be declined out of hand.

    A threshold question is whether, if the president is not above the law, as he should not be, is he to be treated as below the law? Is he to be singled out for prosecution because of his office in a case in which, were he a private citizen, no prosecution would result? I believe the president should be treated in the criminal justice system in the same way as any other United States citizen. If that were the case here, it is my view that the alleged obstruction of justice and perjury would not be prosecuted by a responsible United States attorney.

    Having said that, I would like to address several of the specific charges in the Starr report. The first has to do with perjury in the president's deposition and before the grand jury about whether or not he had a sexual affair, relationship or relations with Ms. Lewinsky. The president denied that he did based on his understanding of the definition of the term, quote, "sexual relations," quote, adopted by the court in the Jones case. That definition, which you have before you in the papers, is difficult to parse, and one can argue either side; but it is clear to me that the president's interpretation is a reasonable one, especially because --

    REP. HYDE: Mr. Sullivan, I hate to interrupt, but your time has expired. Now, do you think in another three minutes you could wind up?

    MR. SULLIVAN: Yes.

    REP. HYDE: Could you? Very well.

    MR. SULLIVAN: I will -- I think I can.

    REP. HYDE: Then we'll continue it for three minutes.

    MR. SULLIVAN: Thank you very much, Mr. Hyde.

    It's clear to me that the president's interpretation is a reasonable one, especially because the words which seem to describe oral sex -- the words which seem to describe directly oral sex were stricken from the definition by the judge.

    In perjury prosecution, the government must show beyond a reasonable doubt, that the defendant knew when he gave the testimony, he was telling a falsehood. The lying must be known and deliberate. It is not perjury for a witness to evade or frustrate or answer non- responsibly. The evidence simply does not support the conclusion that the president knowingly committed perjury, and the case is so doubtful and weak that a responsible prosecutor would not present it to the grand jury.

    Let me turn to the issue of obstruction through delivery of gifts to Ms. Lewinsky by Ms. Currie. Some of the evidence on this subject is not recounted in the Starr Report, but a responsible prosecutor will not ignore the proof consistent with innocence, or which shows that an element -- an essential element of the case is absent.

    The evidence is that when talking to the president, Ms. Lewinsky brought up the subject of having Mrs. Currie hold the gifts. And the president either failed to respond or said "I don't know," or "I'll think about it." According to Mrs. Currie, Ms. Lewinsky called Mrs. Currie and asked Mrs. Currie to come to Ms. Lewinsky's home to take the gifts and Mrs. Currie did so. Ms. Lewinsky testified that Mrs. Currie placed the call to Ms. Lewinsky. But the central point in this is, that neither Mrs. Currie nor Ms. Lewinsky testified that the president suggested to Ms. Lewinsky that she had the gifts, or that the president told Mrs. Currie to get the gifts from Ms. Lewinsky.

    Under these circumstances, it is my view that a responsible prosecutor would not charge the president with obstruction, because there is no evidence sufficient to establish beyond a reasonable doubt, that the president was involved. Indeed, it seems likely that Ms. Lewinsky was the sole moving force, having broached the idea to the president, but having received no response or encouragement, she called Mrs. Currie to take the gifts without the president's knowledge or encouragement. That is not the stuff of which an obstruction charge is made.

    Because of time, I'm going to skip over my third example, and go to my conclusion.

    REP. HYDE: Thank you.

    MR. SULLIVAN: Which was about influencing Mrs. Currie's testimony. Time does not permit me to go through all of the allegations of misconduct in the Starr Report. Suffice it to say, that in my opinion, none of them is of the nature which a responsible federal prosecutor would present to a federal grand jury for indictment. I will be pleased to respond to your questions. Thank you very much, and particularly for the extra time.

    REP. HYDE: Thank you, Mr. Sullivan. This is a formal proceeding. And in the chamber of Congress, we never -- unlike in certain state legislatures -- introduce people in the gallery. But this is a special day, and we have someone in the audience that I think ought to be introduced. And with the permission of the gentleman from Massachusetts, I'd like to introduce Elsie Frank, Barney Frank's mother. (Applause.)

    REP. HYDE: Thank you. Mr. Davis.

    MR. DAVIS: Thank you, Mr. Chairman, Mr. Conyers, members of the committee --

    REP. COBLE: Mr. Chairman. Mr. Chairman.

    REP. HYDE: Yes.

    REP. COBLE: I'm reluctant to do this, but in the sense of fairness, do you think that since Mr. Sullivan was afforded an additional three minutes, that we should make that offer to the other members of the panel, if it comes to that?

    REP. HYDE: I'd rather face that critical decision --

    REP. COBLE: Very well. Very well.

    REP. HYDE: -- on a piecemeal basis.

    REP. COBLE: But for the remaining four, at least I tried.

    REP. HYDE: Thank you. Mr. Davis.

    MR. DAVIS: Thank you. I will try and summarize my longer, written statement, which the committee has. There can be no doubt that the decision as to whether to prosecute a particular individual is an extraordinarily serious matter. Good prosecutors thus approach this decision with a genuine seriousness, carefully analyzing the facts in the law, and setting aside personal feelings about the person under investigation.

    In making a prosecution decision, as recognized by Justice Department policy, the initial question for any prosecutor, is can the case be won at trial. Simply stated, no prosecutor should bring a case if he or she does not believe that, based upon the facts in the law, it is more likely than not that they will prevail at trial. Cases that are likely to be lost, cannot be brought simply to make a point, or to express a sense of moral outrage, however justified such a sense of outrage might be. You have to truly believe you will win the case.

    I would respectfully suggest that the same principle should guide the House of Representatives as it determines to, in effect, make the decision as to whether to commence a prosecution by impeaching of the president. Indeed, if anything, the strength of the evidence should be greater to justify impeachment, than to try a criminal case.

    In the context of perjury prosecutions, there are some specific considerations which are present when deciding whether such a case can be won. First, it is virtually unheard of to bring a perjury prosecution based solely on the conflicting testimony of two people. The inherent problems in bringing such a case are compounded to the extent that any credibility issues exist as to the government's sole witness.

    Second, questions and answers are often imprecise. Questions sometimes are vague, or used summarily to define terms, and interrogators frequently asked compound or inarticulate questions, and fail to follow up imprecise answerers. Witnesses often meander through an answer, wandering around a question, but never really answering it. In a perjury case, where the precise language of a question and answer are so relevant, this makes perjury prosecutions difficult, because the prosecutor must establish that the witness understood the question, intended to give a false, not simply an evasive answer, and in fact did so. The problem of establishing such intentional falsity is compounded, in civil cases, by the reality that lawyers routinely counsel their clients to answer only the question asked, not to volunteer, and not to help out an inarticulate questioner.

    Third, prosecutors often need to assess the veracity of an "I don't recall" answer. Like other answers, such a response can be true or false, but it is a heavy burden to prove that a witness truly remembered the fact at issue. The ability to do so, will often depend on the nature of that fact. Precise times of meetings, names of people one has met, and details of conversations, and sequences of events, indeed, even if those events are of fairly recent origin, are often difficult to remember. Forgetting a dramatic event, is however more difficult to justify.

    The ability to win a trial is not however the only consideration guiding a decision whether to prosecute. Other factors reflected in the Justice Department guidelines include federal law enforcement priorities, the nature and seriousness of the offense, the impact of the offense on any victim, whether there has been restitution, deterrence, in the criminal history of the accused.

    Before turning to the application of these principles to the facts at hand, I should say that in my work at the Watergate Special Prosecutor's office, I was involved in applying these principles in extraordinarily high profile cases. While we successfully prosecuted a number of matters, we also declined to proceed in a number of close cases. We did so even in circumstances where we believed in our hearts that a witness had deliberately lied under oath, or committed some other wrongful act, but simply concluded that we were not sufficiently so certain that we would prevail at trial.

    I will now turn to the issue of whether, from the perspective of a prosecutor, there exists a prosecutable case for perjury in front of the grand jury. The answer to me is clearly no. The president acknowledged to the grand jury the existence of an improper intimate relationship with Monica Lewinsky, but argued with the prosecutors questioning him, that his acknowledged was not a sexual relationship as he understood the definition of that term being used in the Jones deposition. Engaging in such a debate, whether wise or unwise politically, simply does not form the basis for a perjury prosecution.

    Indeed, in the end, the entire basis for a grand jury perjury prosecution comes down to Monica Lewinsky's assertion that there was a reciprocal nature to their relationship, and that the president touched her private parts with the intent to arouse or gratify her, and the president's denial that he did so.

    Putting aside whether this is the type of difference of testimony which should justify an impeachment of a president, I do not believe that a case involving this kind of conflict between two witnesses would be brought by a prosecutor, since it would not be won at trial.

    A prosecutor would understand the problem created by the fact that both individuals had an incentive to lie -- the president to avoid acknowledging a false statement at his civil deposition, and Miss Lewinsky to avoid the demeaning nature of providing wholly unreciprocated sex. Indeed, this incentive existed when Miss Lewinsky described the relationship to the confidantes described in the independent counsel's referral.

    Equally as important, however, Mr. Starr has himself questioned the veracity of his one witness, Miss Lewinsky, by questioning her testimony that his office suggested she tape record Ms. Currie, Mr. Jordan, and potentially the president. And in any trial, the independent counsel would also be arguing that other key points in Miss Lewinsky's testimony are false, including where she explicitly rejects the notion that she was asked to lie and that assistance in her job search was an inducement for her to do so.

    It also was extraordinarily unlikely that in ordinary circumstances a prosecutor would bring a prosecution for perjury in the president's civil deposition in the Jones case. First, while one could always find isolated contrary examples, under the prosecution principles discussed above, perjury prosecutions involving civil cases are rare and it would be even more unusual to see such a prosecution where the case had been dismissed on unrelated grounds and then settled, particularly where the settlement occurred after disclosure of the purported false testimony.

    Second, perjury charges on peripheral issues are also uncommon. Perjury prosecutions are generally filed where the false statement goes to the core of the matter under inquiry. Indeed, in order to prevail in a perjury prosecution, the prosecutor must establish not only that the testimony was false, but that the purported false testimony was material.

    Here, the Jones case was about whether then-governor Clinton sought unwanted sexual favors from a state employee in Arkansas. Monica Lewinsky herself had nothing to do with the actual facts at issue in that suit. This deposition was about the Jones case. It was not part of a general investigation into the Monica Lewinsky affair, and that is important on the materiality issue. Given the lack of connection between these two events, under the applicable rules of evidence, her purely consensual relationship with the president half a decade later would, I believe, not have even been admissible at any ultimate trial of the Jones case.

    While the court allowed questioning in the civil deposition about this matter, the judge did so under the very broad standard used in civil discovery. Indeed, while not dealing with the admissibility issue, had there been no independent counsel inquiry after the controversy about the president's relationship with Miss Lewinsky arose, the court considered this testimony sufficiently immaterial so as to preclude testimony about it at the trial.

    Finally, the ability to prove the intentional making of false statements in the civil deposition is compounded by inexact questions, evasive and inconsistent answers, insufficient follow-up by the questioner, and reliance by the examiner on a definition of sexual relations rather than asking about specific acts. But whatever the ability to meet the standard of proof on this issue as to any particular question, this simply is not a perjury case that would be brought. It involves difficult proof issues as to, at best, peripheral issues where complete and truthful testimony would be of doubtful admissibility, in a settled civil case which had already been dismissed. This simply is not the stuff of criminal prosecution.

    Turning to the issues of obstruction of justice involving the Paula Jones case, a prosecutor analyzing the case would be effected by many of the same weaknesses that are discussed above. These weaknesses, as well as additional problems with such a case are discussed in my written statement and I will not comment on them, you know, orally, in the interest of time.

    Before concluding, I would like to make two closing observations, and I will be, with your permission, just a minute or so. In August, 1974, prior to the pardon, the Watergate special prosecution force commenced the extraordinarily difficult process of whether -- determining whether -- to indict then-former President Nixon. In my 1974 memorandum analyzing the relevant factors which should ultimately affect such a decision, and proceeding in that memorandum on the belief not present here that adequate evidence clearly existed to support the bringing of such criminal charges, I articulated two primary and competing considerations which I believed it appropriate for us then, as prosecutors, to consider.

    The first factor was to avoid a sense of a double standard by declining to prosecute a plainly guilty person because he had been president. The second was that prosecutors should not proceed with even provable charges if they conclude that important and valid societal benefits would be sacrificed by doing so. In the Nixon case, as articulated in my memorandum, such a benefit was the desirability of putting the turmoil of the past two years behind us so as to better be able to proceed with the country's business.

    The second was the prosecutor should not proceed with even provable charges if they conclude that important and balanced societal benefits would be sacrificed by doing so. In the Nixon case, as I articulated in my memorandum, such a benefit was the desirability of putting the turmoil of the past two years behind us so as to better be able to proceed with the country's business. I believe today, 25 years later, that it is still appropriate for those deciding whether to bring charges to consider these factors.

    Finally, prosecutors often feel a sense of frustration if they cannot express their sense that a wrong has been committed by bringing charges. But not every wrong is a crime, and wrongful noncriminal conduct sometimes can be addressed without the commencing of any proceeding.

    Apart from issues of censure, we live in a democracy, and one sanction that can be imposed is by the voters acting through the exercise of their right to vote. President Clinton lied to the American people, and if they believe it appropriate they were free to voice their approval by voting against his party in 1998, and remain free to do so in 2000, as occurred in 1974 when the Democrats secured major gains. The answer to every wrongful act is not the invocation of punitive legal processes. Thank you.

    REP. HYDE: Thank you, Mr. Davis.

    Mr. Dennis.

    MR. DENNIS: Thank you, Mr. Chairman. Mr. Chairman, Mr. Conyers, members of the House of Representatives committee on the Judiciary, I am opposed to the impeachment of President Clinton. My opposition is grounded in part in my belief that a criminal conviction would be extremely difficult to obtain in a court of law. There is very weak proof of the criminal intent of the president.

    The Lewinsky affair is of questionable materiality to the proceedings in which it was raised. And I believe that a jury would be sympathetic to any person charged with perjury for dancing around questions put to them that demanded an admission of marital infidelity; that is, unless the answers were essential to the resolution of a very substantial claim.

    On another level, I sense an impeachment under these circumstances would prove extremely divisive for the country, inflaming the passions of those who would see impeachment as an attempt to thwart the election process for insubstantial reasons. Perjury and obstruction of justice are serious offenses. They are felonies. However, in my experience perjury or obstruction of justice prosecutions of parties in private civil litigation are rare. Rarer still are criminal investigations in the course of civil litigation in anticipation of incipient perjury or obstruction of justice. In such circumstances prosecutors are justifiably concerned about the appearance that government is taking the side of one private party against another.

    The oath taken by witnesses demands full and truthful testimony at depositions and in grand jury proceedings -- excuse me, demands truthful testimony at depositions and in grand jury proceedings. Nonetheless, imprecise, ambiguous, evasive and even misleading responses to questions don't support perjury prosecutions, even though such responses may raise serious questions about the credibility of a witness on a particular subject. Proof that a witness's testimony is untrue is not sufficient alone to prove perjury, and to prove that a witness is intentionally evasive or nonresponsive is not sufficient to prove perjury either.

    Courts are rigorously literal in passing on questions of ambiguity in the questions and the responses of witnesses under oath, and generally give the accused the benefit of any doubt on possible interpretations of the questions and the meaning of the allegedly perjurious response. Perjury cases are very difficult to win under the most favorable circumstances.

    I believe the question of whether there were sexual relations between the president and Ms. Lewinsky is collateral to the harassment claim in the Jones case. The president has confessed to an inappropriate relationship with Ms. Lewinsky. The Jones case was dismissed and is now settled. These circumstances simply would not warrant the bringing of a criminal prosecution, and a criminal prosecution would most likely fail. Certainly the exercise of sound prosecutorial discretion would not dictate prosecuting such a case.

    The consequences of the impeachment of the president of the United States are far reaching. These consequences are grave, and they impact the entire nation. Impeachment in my view should not serve as a punishment for a president who has admittedly gone astray in his family live, as grave as that might be in personal terms.

    Where there is serious doubt, as there must be in this case, prudence demands that Congress defer to the electoral mandate. Thank you, Mr. Chairman.

    REP. HYDE: Thank you, Mr. Dennis.

    Mr. Noble.

    MR. NOBLE: I too will attempt to keep my remarks within 10 minutes, Mr. Chairman. Mr. Chairman, Mr. Ranking Minority Member, and members of the committee, before I begin my formal remarks, let me extend my thanks to the following people who helped prepare me under these rushed circumstances: my brother, James Noble, who is here with me today; my research assistant, Russell Morris (sp), of NYU Law School is here with me today; my students in my evidence class, with whom I have spent the last two weeks talking about impeachment, but not the impeachment of a president, the impeachment of a witness. I have been trying to give them hypotheticals with which they could learn or from which they could learn. I told them I will be the best prop they will have today.

    I am honored to appear before you today. I will discuss the factors ordinarily considered by federal prosecutors and federal agents in deciding whether to investigate, indict and prosecute allegations of violations of federal criminal law.

    I submit that a federal prosecutor ordinarily would not prosecute a case against a private citizen based on the facts set forth in the Starr referral. My experience, which forms the basis of my testimony, is as follows: I have served as an assistant U.S. Attorney, a chief of staff and deputy assistant attorney general in the Justice Department's Criminal Division during the Reagan and Bush administrations, and undersecretary of the Treasury for enforcement in the Clinton administration, and I am currently a professor at the New York University School of Law where I teach, as I said, a course in evidence.

    When investigating a possible violation of the law, every federal prosecutor must heed the guidelines of the Department of Justice. DOJ guidelines recognize that a criminal prosecution entails profound consequences for the accused and the family of the accused, whether or not a conviction ultimately results. Career federal prosecutors recognize that federal law enforcement resources and federal judicial resources are not sufficient to permit prosecution of every alleged offense over which federal jurisdiction exists. Federal prosecutors are told to consider the nature and seriousness of the offense, as well as available taxpayer resources. Often these resources are scarce and influence the decision to proceed or not to proceed and a decision how to proceed. Federal prosecutors may properly weigh such questions as to whether the violation is technical or relatively inconsequential in nature, and what the public attitude is towards prosecution under the circumstances of the case. What will happen in the public confidence and the rule of law if no prosecution is brought, or if a prosecution results in an acquittal?

    Even before the Clinton-Lewinsky matter arose, DOJ guidelines intimated that prosecutors should pause before bringing a prosecution where the public may be indifferent or even opposed to enforcement of a controlling statute, whether on substantive grounds or because of a history of nonenforcement, or because the offense involves essentially a minor matter of private concern and the victim is not interested in having it pursued.

       


    Yet public sentiment against should not discourage prosecutors from bringing charges simply because a biased and prejudiced public is against prosecution. For example, in a civil rights case or a case involving an extremely popular political figure, it might be clear that the evidence of guilt viewed objectively and by an unbiased fact- finder would be sufficient to obtain and sustain a conviction. Yet the prosecutor might reasonably doubt whether the jury would convict. In such a case, despite his or her negative assessment of the likelihood of a guilty verdict, based on factors extraneous to an objective view of the law and facts, the prosecutors may properly conclude that it is necessary and desirable to commence or recommend prosecution, and allow the criminal process to operate in accordance with its principles.

    During the civil rights era many prosecutions were brought against people for locally popular but no less heinous crimes against blacks. However, prosecutors should not bring charges on public sentiment in favor of prosecution when a decision to prosecute cannot be supported on grounds deemed legitimate by the prosecutor.

    DOJ prosecutors are discouraged from pursuing criminal prosecutions simply because probable cause exists. And a number of the witnesses have already addressed this point. Why? Because probable cause can be met in a given case, it does not automatically warrant prosecution. Further investigation may be warranted, and the prosecutor should still take into account all relevant considerations in deciding upon his or her course of actions. Prosecutors are admonished not to recommend in an indictment charges that they cannot reasonably expect to prove beyond a reasonable doubt by the legally sufficient evidence at trial.

    It is one of the most important criteria that prosecutors must consider. Prosecution should never be brought where probable cause does not exist, and both as a matter of fundamental fairness and in the interest of the efficient administration of justice, no prosecution should be initiated against any person unless the government believes that the person will be found guilty by an unbiased trier of fact.

    Federal prosecutors and federal agents as a rule ought to stay out of the private sexual lives of consenting adults. Neither federal prosecutors nor federal investigators consider it a priority to invest allegations of perjury in connection with the lawful, extramarital, consensual, private sexual conduct of citizens. In my view, this is a good thing. From a proactive perspective, who among us would want the federal government to initiate sting operations against private citizens to see if we lie about our extramarital affairs or the nature of our sexual conduct. Imagine a rule that required all federal job applicants to answer the following question under oath: "Because we are concerned about our employees being blackmailed about unusual or inappropriate sexual conduct, and because we want to know whether you would be at risk, please name every person with whom you've had a sexual relationship or with whom you've had sexual intercourse during your life. It certainly would be relevant and it certainly might lead to blackmail."

    Such a question would naturally lead to allegations of perjured responses. Irrespective of constitutional challenges from a public policy standpoint, most Americans would object to federal prosecutors and federal agents investigating and prosecuting those cases that came to our attention. Could we trust our government to make fair, equitable and restrained decisions about how much to investigate any one of these allegations?

    The potential for abuse and violation of our right to privacy would be great. Indeed, assigning federal agents to interview witnesses, install wiretaps and insert bugs to learn about the private, legal, sexual conduct of U.S. citizens would concern us all. But aggressive prosecutors and agents would do exactly that to make cases against those citizens where prosecutions would garner publicity and thereby act as a deterrent. In my view, the biggest target would be politicians.

    As a general matter, federal prosecutors are not asked to bring federal criminal charges against individuals who allegedly perjure themselves in connection with civil lawsuits. As a rule, federal prosecutors on their own do not seek to bring criminal charges against people who perjure themselves in connection with civil depositions, for the reasons that have already been articulated. In addition, this would open a floodgate of referrals. Parties by definition are biased, and it would be difficult to discount the potential bias.

    By their nature, lawsuits have remedies built into the system. Lying litigants can be exposed as such and lose their lawsuits. The judge overseeing the lawsuit is in the best position to receive evidence about false statements, deceitful conduct, and even perjured testimony. She can sanction violating litigants by initiating civil or criminal contempt proceedings.

    Notwithstanding the reasons generally, there are 10 good reasons, taken in combination, which support the view that a career federal prosecutor asked to investigate allegations like those in the Clinton- Lewinsky matter would not pursue federal criminal prosecution to the indictment or trial stage. One, the alleged perjury occurred in a civil deposition and concerned private, lawful, sexual conduct between consenting adults. Two, the alleged perjured testimony was deemed inadmissible by the trial judge. Three, that evidence arguably was dismissed as immaterial by the trial judge. Four, in any event, the alleged perjured testimony was, at most, marginally relevant. Five, the alleged perjured testimony did not affect the outcome of the case.

    Six, the parties settled and a court dismissed the underlying civil suit. Seven, the settlement of the suit prevented the appellate court from ruling on a dismissal and on the materiality of alleged perjured testimony. Eight, the theoretically harmed party knew of the alleged perjury prior to settlement. Nine, alleged -- and I say alleged -- political enemies of the defendant funded it in a plaintiff's suit. Ten, a federal government informant conspired with one of the civil litigants to trap the alleged perjurer into perjuring himself.

    Given the above considerations, most federal prosecutors would not want to use taxpayer dollars, federal agents and sensitive federal investigative resources to uncover the most intimate and embarrassing details of the private sexual lives of consenting adults when there is a risk of bias and when there is a judge in a position to address the alleged criminal conduct.

    The judgment that a career prosecutor might make about an ordinary person might be very well affected by the knowledge that the alleged perjury was committed by the president. That is to be conceded. Even the most experienced, fair-minded prosecutor will find it difficult not to pursue allegations of criminal misconduct against a president, a senator, a governor, any member of Congress. The interest in targeting, threatening and harming the president, especially, can be explained in part by the power and visibility of his office. Even a prosecutor with exceptional judgment might be tempted by the challenge of bringing down a president. A prosecutor with unchecked power, unlimited resources and only one target might find the temptation even stronger.

    Mr. Chairman, I believe I can conclude in two minutes, with the permission of the chairman.

    REP. HYDE: Two minutes?

    MR. NOBLE: Two minutes.

    REP. HYDE: Surely.

    MR. NOBLE: Thank you, Mr. Chairman.

    REP. : (Off mike.)

    MR. NOBLE: Thank you, Mr. Coble.

    It is difficult to think of a fail-safe structure that could protect anyone from allegations of bias in a decision to prosecute or not prosecute the president. Not the attorney general, the independent counsel, the Justice Department, the FBI, the Secret Service, the federal judiciary, the congress, the bar and the academy can escape some person or act in their background that could create a conflict or an appearance of a conflict. No one for or against prosecution would be safe from attack on the merits or from false personal attacks. For this reason, a prosecutor or a committee assigned such a case must strive to be objective, knowing that criticism of bias will be unavoidable.

    In a prosecutorial context, a 13-to-10 vote by the grand jury constitutes enough votes to proceed, but reflects that there must be, or might be, a serious problem with some aspect of the case. Similarly, a vote for impeachment based on a party-line vote or near party-line vote is a signal that something is wrong or may be wrong with the case and that the case may not be worth pursuing. This is particularly true where the overwhelming majority of Americans appear to be well-informed about the allegations and unbiased as a group, yet they do not want this president impeached.

    While indictments and impeachment proceedings are different, they carry at least two similarities. One, most of us know it when we see the clear cases for criminal conviction and for impeachment. Two, public confidence in the rule of law and our system of government would suffer if we regularly indicted cases or impeached presidents, only to have juries or the Senate vote to acquit.

    In closing, I believe that the Justice Department got it right and Independent Counsel Donald Smaltz got it wrong. Indictments and impeachments that result in acquittal ought to be avoided where possible. No prosecutor would be permitted to bring a prosecution where she believed that there was no chance that an unbiased jury would convict. Almost no one in this country believes that the U.S.

    Senate will convict the president on any potential article of impeachment. Members of Congress should consider the impact that a long and, no doubt, sensationalized trial will have on the country, especially a trial that will not result in a conviction.

    In the end, I am confident that you will give the weighty responsibility that you must discharge serious consideration. A vote against impeachment need not be viewed as a vote against punishment. As Professor Steve Saltzburg noted before you earlier this week, Judge Susan Webber Wright retains jurisdiction over the case wherein the allegedly perjured testimony occurred. She can hold civil or criminal contempt hearings. Of all the arbiters of justice in this matter, she is perceived as being the least biased. She can punish the president for false and misleading conduct even if it does not rise to the level of perjury or obstruction of justice. Trust her to mete out the appropriate punishment.

    I thank you.

    REP. HYDE: Thank you, Mr. Noble.

    Governor Weld.

    MR. WELD: Mr. Chairman, Mr. Ranking Member, members of the committee, my name is William Weld and I am sincerely honored to appear before you this morning.

    I'm no Tom Sullivan, but I have knocked around the criminal justice world a little bit, from 1986 to 1988. Under President Reagan I was the assistant attorney general in charge of the criminal division in Washington, which is relevant because that's the policy, or political appointment, charged with ensuring the uniformity of charging decisions -- decisions of whether to seek an indictment around the country, in various districts. Prior to that, for five years I was the United States Attorney in Massachusetts.

    And I became familiar, in the course of that seven years, with the handbook, "The Principles of Federal Prosecution," and with the United States attorneys manual and, when I was in Washington, with the practices and procedures that also have been developed over the years to try to ensure uniformity in charging decisions.

    It so happens that in 1974, for nine months, I also worked for this committee under Chairman Rodino on the impeachment inquiry into President Nixon. And I worked on the constitutional and legal unit there, which was charged with reading every precedent -- in Britain (sp), in Heinz (sp), in Cannon (sp), in reported cases in the records of the 1787 debate on the Constitution -- having any relevance at all to what high crimes and misdemeanors means in the United States Constitution.

    Like Mr. Sullivan, like many others, I do not consider myself an advocate here before you. I do have a couple of points of view that I would like to share with the members of the committee, and you can take them for what they're worth. Ordinarily, in a civil context, you don't qualify as an expert on the basis of nine months' experience, but for whatever they're worth.

    I do believe, Mr. Chairman, that under the Reagan administration it was not the policy of the U.S. Justice Department to seek indictments solely on the basis that a prospective defendant had committed adultery or fornication, which are not lawful, but it simply wasn't the policy to go there. It was also not the policy to seek an indictment based solely on evidence that a prospective defendant had falsely denied committing unlawful adultery or fornication.

    And let me say a little bit about perjury cases. I don't think they're all that rare, and I've prosecuted a lot of them, but I do think that what one or two of the witnesses said is true; there's usually something else involved in a federal perjury prosecution. There's a pass-through aspect here -- you're really going to something else. I once prosecuted a guy who stated that he was in Florida on November 28th and 29th, 1981. You may say, that's kind of, you know, stooping to pick up pins. Why would you prosecute him for that? Well, that was the day the city of Lynn, Massachusetts burned down, and this guy was an arsonist and three people made him in the Porthole Pub in Lynn, Massachusetts, that day, so -- and we found his fingerprints on a ticket to Florida the next day after the fire, so we thought it would be a good idea to bring a perjury prosecution there to rattle the cage a little bit, and we did. And often, we brought them where we were trying to penetrate a wall of silence, as in cases of public corruption or narcotics, when you're trying to break through this omerta, everyone's got to dummy up, phenomenon. But there is something else that you're trying to get at there.

    Until this year, the policy of the Department of Justice was that in cases of false statements they would not seek an indictment solely on the basis of somebody denying that they themselves had committed misconduct. This is called the "exculpatory no" doctrine, and it was adopted in a lot of circuits. It was kicked out by the Supreme Court in a decision by Justice Scalia early this year, based on bad facts -- you had a ranking union official who'd taken money from employers in violation of an independent federal statute -- so that's the "something else" that the prosecution was trying to get at. So, a very unsympathetic case for the court applying the exculpatory no doctrine.

    In my view, it would have been a handy idea to carve out an exception to the abrogation of that doctrine for cases involving personal misconduct as opposed to a violation of an independent federal statute such as was involved there. Certainly, a responsible prosecutor could apply that filter in the exercise of his or her discretion.

    The last thing, let me just say, on the law of impeachment, I am pretty well convinced that adultery, fornication or even a false denial -- false -- I'm assuming perjury here -- false denial of adultery or fornication, they do not constitute high crimes and misdemeanors within the meaning of the impeachment clause of the U.S. Constitution. They're not offenses against the system of government, they don't imperil the structure of our government.

    The remedy of impeachment is to remove the officeholder. Get the worm out of the apple. It's a prophylactic -- prophylactic remedy, it is not punitive. If any of you are thinking, we've got to vote yes on impeachment to tarnish the president, he's already tarnished, and that's really not the purpose of the impeachment mechanism.

    Nobody's going to forget this stuff. This is a man who's been elected president of the United States twice, and thus entitled to this office, after allegations very similar to those now before you.

    I hate to open old wounds, but you remember back to 1992 and the Gennifer Flowers matter; if there are two people in a room and they both deny that something happened, then you can't prove that it happened. Well, that's very similar to what we're talking about here, and this officeholder was elected president of the United States twice after all those facts were before the people.

    So, I come out thinking that the most appropriate result is something other than removing this person from his office, taking his office away from him. There's a lot of talk about censure. I think, personally, the dignity of Congress and the dignity of the country demands something more than merely censure here, and I would suggest, in conclusion, Mr. Chairman, four things that you might want to think about, in addition to censure.

    Number one, it's not unknown for grand juries investigating corruption in a city or a county, for example, to issue a written, detailed report of their findings. That could easily be done here, be entirely proper. Number two, there could be a written acknowledgement of wrongdoing on the part of the president, and for reasons which will become evident in a moment, I would not propose that there be insistence on the use of the word "lie" or "perjury" there, but it's something that could be negotiated to reflect the gravity of what he has done.

    Number three, there could be an agreement to pay a fine. This is something tangible, more tangible than censure, and it involves the respondent as well as the moving party, the moving party here being the House.

    And that would mark the moment. The would mark the solemnity of the occasion. And the agreement would remove any doubt about somebody going to court and saying there's no basis for this. It would be thrown out on the basis of the political question doctrine anyway, I think.

    I'm not here to say what the fine should be, but if memory serves, Speaker Gingrich had to pay quite a large fine not so long ago because people didn't like either the content or the market of a college course that he taught. The members might wish to consider providing that the fine could not be paid out of the proceeds of a legal defense fund, given all the background circumstances.

    Finally, what I am proposing, the final element would be that the president would have to take his chances with respect to the criminal justice process post his presidency. I do not agree with those in the media who say that any deal on censure has to protect the president against criminal proceedings after he leaves office.

    First of all, there doesn't have to be any deal on censure. That's entirely within your power. The White House has no leverage there. Second, the Constitution explicitly says that even if a president or anybody is impeached, convicted and removed from office, they remain liable to trial and indictment. It's very explicit. It's right in the Constitution. If the objection is that the spectacle of a former president being prosecuted would be tawdry and degrading, it really couldn't be much more tawdry and degrading than what we've already been subjected to through the constant daily reports of the Lewinsky affair.

    Lastly, I agree with everyone who's spoken before about whether a perjury prosecution here really lies. I think there's quite a low risk of that from the point of view of the president. So that's the suggestion. It's a political suggestion, but this is in part a political process about a five-part deal, if you will. And I think the dignity of the House would be upheld if something like that were to be approached, and everybody could perhaps get on more easily with attending to the public's business.

    Thank you, Mr. Chairman.

    REP. HYDE: Thank you, Governor. Mr. Sensenbrenner.

    REP. SENSENBRENNER: Thank you very much, Mr. Chairman. As I'm sure all members of the panel know, the last impeachment took place nine years ago, in 1989, against Judge Walter Nixon of Mississippi. And in that impeachment, the House of Representatives, by a vote of 417 to nothing, declared that making false statements to a grand jury were impeachable offenses. The Senate apparently agreed with the House's judgment, because Judge Nixon was removed from office on a 91- 8 vote on both of those articles of impeachment.

    I'm wondering if members of the panel think that the House made a mistake nine years ago in unanimously declaring that making false statements to a grand jury were impeachable offenses.

    MR. DAVIS: One, I think you have to look at the proof. I mean, first of all, I assume that there was proof as to what the perjury that took place. I assume also that the perjury, as I recall, went to the core issue in the matter in which the perjury took place. So you had certain important factual differences.

    I also think that there's an important difference when one is considering the issue of a judge versus the president; that judges, as others have testified, sit in terms of good behavior, and so the standard is not precisely the same as would be in removing a president who's elected by the public and sits for only four years.

    And finally, I think that in terms of perjury, I do think that one has to look a little bit about what the underlying events are. And I do think that since what we're talking about is a private consensual relationship as being at the core of it, that that affects the impeachability. But the bottom line is, as I said in my statement, I don't think there's really the proof, particularly as to grand jury perjury.

    REP. SENSENBRENNER: Well, just by way of background, the events that led up to the Judge Nixon impeachment, which is contrasted to the President Nixon impeachment -- you've got to be very particular here -- involved a private affair, a financial affair, where Judge Nixon allegedly accepted an illegal gratuity of a sweetheart deal in an oil and gas lease. He was acquitted of that charge by the jury at a criminal trial.

    So here we're saying that the jury made a determination that Judge Nixon did nothing wrong in terms of entering into this oil and gas lease, but he was convicted by the jury of the two counts of making false statements. So while there are some differences, there are also some similarities in that private misconduct was alleged as a part of the grand jury investigation.

    I am concerned with the answer to your question, in that you seem to be implying that the standard of truthfulness for the president of the United States is less than a federal judge someplace in the country because the president is elected and the judge is appointed and holds office for good behavior.

    MR. DAVIS: No, I'm not saying --

    REP. SENSENBRENNER: You know, am I wrong on that?

    MR. DAVIS: I'm not really saying that. I'm saying that the standard for truthfulness is really the same. I'm saying that here I don't think there's the proof, particularly as to the grand jury, that you can make the case of perjury. And second, what I'm saying is the standard for impeachment, not the standard for truthfulness, but there are differences in the standard of impeachment for a judge as opposed to the president. And I think there's a lot of scholarship (for that?).

    REP. SENSENBRENNER: Well, yesterday many of the president's defenders were troubled about the alleged false statements to the grand jury. And at least one of the witnesses that the White House brought up here, former Congressman Owens, flat out said that the president lied before the grand jury. That's what the House found in terms of Judge Nixon. And, you know, I'm concerned that if a judge lies to the grand jury, we all agree that it's impeachable, and if the president lies before the grand jury, then there is a huge debate about whether or not that's impeachable. Now, who's going to stand up for the truth here?

    MR. DAVIS: Well, respectfully, I don't think that the evidence supports the perjury in the grand jury, as I articulated in my statement.

    REP. SENSENBRENNER: Okay, thank you. I yield back my time.

    REP. HYDE: The gentleman from Michigan, Mr. Conyers.

    REP. CONYERS: Gentlemen, I want to pay my highest commendations to all of you here because you have now put on the record, once and for all, all of these pestering questions that have been tempting to be dealt with for so many weeks and months now. You should, Ron, feel proud to go back to your evidence class. You can hold your head high. And I thank you all.

    Now, the important thing about this was that, unless I missed something, none of you contradicted each other -- nobody. And it seems to me that this testimony of you five gentlemen ought to be bound up and delivered, which I would elect to do. I need Pat Buchanan to get a copy of this, Tim Russert, Cokie Roberts, George Will, Sam Donaldson and Ms. Buchanan, Pat's sister, not because they object to all of this, but because they are the ones that in the media continue -- with many others, of course -- this nonsensical debate about obvious legal questions that a first-year law student could dispose of.

    And so what you've done here is of signal importance, from my point of view. This should be studied carefully by everybody that makes public utterances about the questions of perjury and obstruction and how and when materiality figures into the prosecutorial role.

    Now, this question has come up. I think I called it the Scott question. Is there any case on record for a prosecution, based on a case in which it was dismissed?

    It was an immaterial statement. There was a settlement to boot. I mean, are we going through everything -- has anybody ever heard of a case like this? We need the citation right away if there is, because I'll stop making this assertion.

    MR. SULLIVAN: Mr. Conyers --

    REP. CONYERS: Mr. Sullivan?

    MR. SULLIVAN: -- I can't guarantee you that there is no such case, but I doubt it. As I said in my remarks, the -- well, the thrust of what I'm saying is that the federal criminal process is simply not used to determine truth or falsity in statements in civil litigation. And it's particularly true -- I mean, that's true, and it's also even more true when you take a situation, as you have here, that the testimony is even peripheral to the civil case involved. The federal criminal justice system is not designed or intended to enforce a code of moral conduct. That's not what we do, or what I used to do and what the GOOD federal prosecutors do. I'm not saying you can't find an errant one somewhere that will bring charges. But so far as I know, this would be totally unprecedented, if such a case were brought.

    REP. CONYERS: Thank you.

    Mr. Davis, Mr. Noble, Governor, any other comments on this, this matter?

    MR. DENNIS: Well, I agree. I mean, I do not disagree with any of the statements that have been made by my colleagues here on the panel. I have not considered the suggestions that Governor Weld had made with regard to possible political disposition of the matter. But I think that it's fairly clear and that if a poll were taken of former U.S. attorneys from any administration, you'd probably find the overwhelming number of them would agree with the assessment that this case is a loser and just would not be sustained in court.

       


    REP. HYDE: The --

    REP. CONYERS: Well, thank you, Mr. Chairman. I think that this is one of the most important panels that we've had before us in the course of these proceedings.

    REP. HYDE: Thank you, Mr. Conyers.

    The gentleman from Florida, Mr. McCollum.

    REP. BILL MCCOLLUM (R-FL): Thank you very much, Mr. Chairman.

    Mr. Sullivan, have you had an opportunity to review the District of Columbia Circuit Court of Appeals decision regarding the question of materiality and the issue before us, you know, and the question of the independent counsel and Lewinsky?

    MR. SULLIVAN: I have read about it in the Starr report.

    I don't think I read the opinion of --

    REP. MCCOLLUM: Well, it's -- the decision just is unsealed and available to us in the last week.

    MR. SULLIVAN: That's why I have not.

    REP. MCCOLLUM: And you may not be aware that the District Court of Appeals opinion squarely addressed that issue of materiality, and it found that her false sworn statement would be material for the purposes of perjury law. In other words, a false statement by the president in that case would have been material. So I think we can put that materiality question to rest that Mr. Conyers just raised.

    I also want to make a comment to you, Governor Weld. You said that "I do not believe that adultery, fornication, or false denial of adultery or fornication constitutes high crimes and misdemeanors within the meaning of the impeachment clause of the Constitution of the United States." I agree with you. But in this case, we're not dealing simply with false statements or fornication or adultery, we're dealing with potentially perjury, obstruction of justice, witness tampering, things of that nature. And there's where you and I may differ. And I think it is significant, albeit a civil case.

    Mr. Sullivan, you and Mr. Davis and several others on the panel pointed out how rare you think it for perjury cases to be brought in federal court in civil cases, and yet we just had Mary -- Barbara Battalino, I should say, in here last week as a witness, a very recent case in which a perjury case was brought in a civil suit involving the Veterans' Administration psychiatrist. And on August 4, 1998, a former employee of the United States Postal Service, Diane Parker (sp), was sentenced to 13 months in prison and three years of supervised release for lying in a civil case regarding a sexual relationship with a subordinate. And that, of course, was a federal case. And I've got citations for 29 of these cases, at least, sitting right here. There are 115 people, minimally -- maybe more than by now -- serving in federal prison today for perjury and, as I say, most of those or a great many of those for civil perjury. So maybe the policy a few years ago was different, but certainly prosecutors are prosecuting in these sexual harassment-type cases and the type of Battalino and Parker cases that we -- that we're seeing more of today than maybe we did back in 10 or 15 years ago.

    I also want to address the question that, Mr. Sullivan, you raised and, I think, Mr. Davis, you raised in particular, about perjury with regard to a single witness. Section 1623, as you've pointed out, rightfully, does allow prosecution with a single witness. And I dare say that about 90 percent of the cases brought today that have resulted in people going to prison in the federal system have been brought under that.

    I've looked at it, and that's who those 115 people constitute.

    Now I'll agree with you, I think your analysis is good. You need corroborative witnesses, even though it may not be required. But let me go through what's here in the grand jury case with respect to the perjury charged, and it's the same underlying main issue in the deposition. You have a situation in which the president of the United States says that he did not commit or have sexual relations with Monica Lewinsky under the definition as given in the court in the Jones case. That court included in its definition explicitly the touching of breasts or genitalia.

    Now, the president said, "I didn't do that." He repeated it very carefully in the grand jury testimony. Monica Lewinsky said on nine occasions in her sworn testimony before the grand jury the president touched her breast and on four occasions, they had genital contact and that all of this was to arouse.

    Now, the issue of corroboration, there are 10 corroborative witnesses. Interestingly enough, strangely enough, Monica Lewinsky talked contemporaneously with family members, friends and relatives about these matters in great detail. And we have 10 of those whose testimony is before us in sworn testimony. Seven of the 10 corroborate the explicit detail with regard to this touching under the definition of sexual relations that Monica Lewinsky describes.

    Now, it seems to me that that kind of corroboration is precisely the kind of corroboration that would in fact engender a prosecution, would give confidence to a prosecutor to take perjury cases forward, and would indeed give a high probability of conviction if this were taken before a court in any case -- any court in this land. A jury would be hard pressed not to convict under those circumstances.

    MR. DAVIS: Mr. McCollum, if I --

    REP. MCCOLLUM: So it strikes me as very strange that we're dismissing this. Nobody, nobody on this panel and nobody yesterday has mentioned the fact that these corroborating witnesses exist. It seems to be something that the president's advocates simply want to ignore. It's a bottom-line question in here, Mr. Davis.

    MR. DAVIS: I think I did address the --

    REP. SENSENBRENNER: Gentleman's time has expired.

    REP. NADLER: Mr. Chairman. Mr. Chairman.

    REP. SENSENBRENNER: The gentleman from Massachusetts is recognized.

    REP. NADLER: Mr. Chairman.

    REP. FRANK: Mr. Chairman, I --

    REP. NADLER: Mr. Chairman, before the gentleman from Massachusetts, I request recognition for a moment.

    REP. SENSENBRENNER: For what purpose does the gentleman from New York seek --

    REP. NADLER: Mr. Chairman, the question that Mr. McCollum just asked the witness is perhaps that central question of this case.

    REP. FRANK: I'll give them time to answer.

    REP. NADLER: And I'd ask that you give them time.

    REP. FRANK: I was just about to do that.

    REP. SENSENBRENNER: The -- with yielding to continue on the debate, that's going to mean the we're going to be here until midnight. The chair will enforce the clock and the rules that were laid down by Mr. Hyde at the beginning of this hearing. If further members down the list want to have questions answered when the time has run out, they can decided to use their time to do that.

    The gentleman from Massachusetts is recognized.

    REP. FRANK: Anybody want to answer that question?

    MR. DAVIS: Yes, I'd like to answer that. I think the reasons why that prosecution would not win is one, as I said in my statement, that both witnesses, including Miss Lewinsky, had an incentive to lie. And she had an incentive to lie not only to the grand jury on this issue but to her confidants, because otherwise she would be acknowledging an unreciprocated sexual relationship.

    But just as important, if you're talking about one witness that Mr. Starr or any prosecutor is going to put forward, Mr. Starr and his prosecutors themself are going to have to argue in this case the Miss Lewinsky's testimony in other issues is not accurate. They're going to have to argue that. They're going to be in a position where they're going to have to say she's telling the truth as to this, not telling the truth as to other things.

    Also, Miss Lewinsky in her testimony various times said she had a similar definition of sexual relations.

    So I think that if you look at this from the perspective of a trial lawyer, in terms of how this would play out, I think this would be really an impossible case to develop.

    REP. FRANK: Mr. Davis, you've convinced me. We'll go on to the next issue. I think that's absolutely right. All those corroborating witnesses corroborated only what Ms. Lewinsky had told them. No one has yet alleged that there was a kind of Peeping Tom slot outside the Oval Office, where they could have made any observation that would have made them in any way relevant to the trial.

    We also ought to know telling the truth was not the most noticeable characteristic of this set of interrelationships. But I mean, I think, had the guy with the lamp been there, he'd still be outside looking for someone to talk to if he got involved with all of them.

    Ms. Lewinsky was herself threatened with prison, as was her mother. And I do think that Mr. Starr's penchant for threatening people with prison if they did not say bad things about the president has some credibility relevance.

    But I wanted to just also talk about Judge Nixon. I'm reading from the majority, and the gentleman from Wisconsin said, "Well, he perjured himself only about" -- or he didn't say "only" -- "he perjured himself about an oil and gas deal." But I am reading from the majority's report, which the majority issued earlier this year and staff kindly gave to me, on pages 9 and 10, "Judge Nixon lied about whether he had discussed the case with the state prosecutor and had influenced the state prosecutor to essentially drop the case." In other words, the underlying issue here was not simply a private oil and gas deal, but a federal judge intervening with a state prosecutor to get him to drive (sic) the case. And that's what I -- I was particularly interested in Mr. Weld's presentation and others.

    One of the arguments we've had here is that looking at the underlying issue in a perjury allegation is somehow a -- to traduce the law and to undercut it. And I would like to ask all of you, because I think this becomes now a central issue in this case -- when you are deciding how to deal with allegations of perjury -- because I don't believe that anybody would be able to prove grand jury perjury; I do think that with regard to the deposition, it would be easier, and the president did unfortunately, in my judgment, when he said he couldn't remember being alone, transgress -- but on the question about whether or not you take into account the underlying issue, in the case of Judge Nixon, the underlying issue was talking to a state prosecutor and intervening to get his partner's son's conviction lessened -- I think very different.

    This is the central case -- as prosecutors, all of you, is it wrong to take into account the underlying cause where there is a perjury allegation? Mr. Weld has said that in his experience, perjury is usually a way to get at a broader issue. So let me start with Mr. Weld.

    MR. WELD: Well, I agree, Mr. Congressman. I think the underlying conduct is important. I mean, I would agree, in a way, on the law, with Representative Sensenbrenner, Representative McCollum; I do think that false statements to a grand jury can easily be grounds for impeachment.

    I think I had the Judge Nixon case for a while when I was at Justice, and my recollection is that there was clouds of corruption in the background of that --

    REP. : (Off mike) -- foreground.

    MR. WELD: -- and perhaps in the foreground, of that case. So, you know, I think, looking at the underlying conduct -- and that's another way of saying what Mr. Dennis, Mr. Noble, others have said, that there's a test of substantiality -- Mr. Davis said it, as well -- in assessing the totality of circumstances in making a charging decision whether to go forward in a perjury case. And it's really more substantiality than materiality that I think might be the rock you run up against.

    REP. FRANK: Thank you, Mr. Weld.

    Let me just say in closing, there's a point I wanted to make, and I was particularly grateful to the former governor of my state for making it, as a man who understands the broader democratic, with a small "d," implications here. He made a very important point when he acknowledged the president has been tarnished. Bill Clinton is a man who clearly thinks a lot about how he is going to be regarded, and the argument that somehow he will be walking away unpunished if he is censured and has had this and other proceedings, I think, is very inaccurate, and I appreciate Mr. Weld bringing that out.

    REP. SENSENBRENNER: The gentleman's time has expired.

    The gentleman from Pennsylvania, Mr. Gekas.

    REP. GEORGE GEKAS (R-PA): I thank the chair.

    Mr. Sullivan, you had repeated today what we have heard in different ways over the months of this controversy, that the president is neither above the law nor below the law, implying, I believe, on your part that if it were an ordinary citizen, not the president of the United States, that this case would have been dismissed out of hand, and therefore, the same premise should have been accorded to the president because he's not below the standard or above the standard that you would apply to an ordinary citizen.

    I see such a big difference that it's hard for me to articulate it, but suppose the ordinary citizen in your set of circumstances had pleaded the Fifth Amendment. You would have, undoubtedly, honored that and then we may never have heard of it at all, that case, in the body politic. And I would submit that the Fifth Amendment is pleaded regularly across the land and we never get results from that kind of case. But if the president of the United States had pleaded the Fifth Amendment, you would agree that there would have been headlines across the world and that there would have been a shaken seat of government in Washington, D.C. Or don't you think that would have been as dramatic as I think it would have been?

    MR. SULLIVAN: Had the president, instead of testifying in the grand jury, had taken the Fifth Amendment, I'm certain it would result in a great deal of publicity, probably adverse.

    I don't think that it changes the issue of whether he's above or below the law.

    REP. GEKAS: But my point is that you are asserting with me that this high-profile case that would have been a result of the president pleading Fifth Amendment makes it a different situation. It is possible, I believe, that the Congress, that the House, could begin impeachment proceedings if that alone had happened -- the pleading of the Fifth Amendment by the president -- as being a political problem, a political affront to the system of government.

    MR. SULLIVAN: Do you think taking the Fifth Amendment is a high crime or misdemeanor?

    REP. GEKAS: No, no, no. No, I'm saying that it --

    MR. SULLIVAN: The Constitution gives everyone the right to take the Fifth Amendment and the jury is instructed that they are not to take any inference from that.

    REP. GEKAS: No, no, no, no. What I'm saying is that it could serve -- it could -- what I'm saying to you, sir, is that in pleading the Fifth Amendment it becomes a high-profile case, and --

    MR. SULLIVAN: There's no doubt about that.

    REP. GEKAS: And when --

    MR. SULLIVAN: I'm sorry if I interrupted.

    REP. GEKAS: If the president did so, you can't argue that case. It would be -- you already admitted that it would be a high-profile case.

    MR. SULLIVAN: I admit that, of course. But I don't think it's relevant here.

    REP. GEKAS: Well, I'm asking questions concerning it.

    MR. SULLIVAN: Go ahead.

    REP. GEKAS: The fact that it becomes a high-profile case means that when the president of the United States takes some kind of legal action, like committing false or stating falsehoods under oath, that we cannot treat it as just another case, but whether or not the president attacks the system of government that is so important to us. Governor Weld makes a great deal out of the fact that what the president did, no matter how we couch it, is not an attack on the system of government.

    Yet we submit, many of us, that when he undertakes to make false statements under oath that he is directly attacking two segments of our system of government: one, the rights, the constitutional rights of a fellow American citizen who has instituted a case in which he, if he did those falsehoods, was trying to destroy that individual's right to pursue a case. That is an attack, some of us might conclude, against our system of government.

    And secondly, in affronting the judicial system, the other third branch of government by directly giving false statements under oath could be considered, could it not, as an attack on the delicate balance of separation of powers, his disdain for the judicial system? We have to take that into consideration, do we not, Governor?

    MR. WELD: It could be so considered, Mr. Congressman; those arguments, while fair on their face, strike me as on the technical side, but I understand what you're saying.

    REP. GEKAS: I thank. I have no further questions.

    REP. SENSENBRENNER: The gentleman from New York, Mr. Schumer.

    REP. CHARLES SCHUMER (D-NY): Thank you, Mr. Chairman.

    First, I want to compliment this panel. I think it was an extremely strong and erudite presentation from all five of you. It was an excellent panel, and I appreciate your putting the time and effort into it.

    When I look at where we're headed here, I think there are sort of three levels of argument. The level we addressed yesterday was dispositive for me and for some of us, and that is, that even if you assume all of Mr. Starr's facts to be true and that the president did wrong, however one would define that wrong, it does not rise to the level of high crimes and misdemeanors and doesn't merit impeachment. I think that case was made very well yesterday by the first panel.

    The second level of the case would be -- the next two levels relate to you folks, and that is, if you assume the opposite, that if Starr's facts are correct, if Mr. Starr's facts are correct, then impeachment is warranted, there are two parts to that. One are the abuse of power and obstruction of justice charges, which seem to most, myself included, to be at a higher level, and the next go to the perjury charges. So let me ask you about each of those.

    First, on the abuse of power charge, which even many on this committee feel went too far, do any of you think there's any merit to that charge being filed, whether it be -- well, you can't even make the case to a citizen, because it relates to the president being president. Do any of you feel that charge has any merit whatsoever? (No audible response.) Okay. Let the record show that nobody did. And I don't want to spend much time on that.

    On the obstruction of justice, there seem to be three specific areas that at least Mr. Starr talked about. One was the finding of the attempt to find Ms. Lewinsky a job; the second, the discussions between Ms. Lewinsky and the president about what they would say if confronted with their relationship; and the third about Ms. Currie's testimony and so-called being coached about that testimony.

    When we examined that, and when I questioned actually Mr. Starr himself about those and I asked him what greater evidence did he have to the president making a determination that he wished to influence the judicial process, as opposed not having his wife, his friends, his staff, the nation find out about his relationship, Starr didn't point to any evidence. It was simply surmise.

    Would any of you care to comment on that group of charges?

    MR. SULLIVAN: Mr. Schumer --

    REP. SCHUMER: Mr. Sullivan?

    MR. SULLIVAN: -- can I comment on the one about Mrs. Currie?

    REP. SCHUMER: Yes.

    MR. SULLIVAN: Because that's the one I didn't allude to in my statement.

    REP. SCHUMER: Correct.

    MR. SULLIVAN: Mrs. Currie testified that she did not feel that the president came and asked her some questions in a leading fashion -- "Was this right? Is this right? Is this right?" -- after his deposition was taken in the Jones case. And she testified that she did not feel pressured to agree with him and that she believed his statements were correct --

    REP. SCHUMER: Correct, right.

    MR. SULLIVAN: -- and agreed with him. He -- the quote is, "He would say, 'Right,' and I could have said, 'Wrong.'"

    Now that is not a case for obstruction of justice. It is very common for lawyers, before the witness gets on the stand, to say, "Now you're going to say this, you're going to say this, you're going to say this."

    REP. SCHUMER: Right.

    MR. SULLIVAN: Now it doesn't make a difference if you've got two participants to an event and you try to nail it down, so to say.

    REP. SCHUMER: Do you all of you agree with that, with the Currie -- the Currie --

    MR. : Yeah.

    REP. SCHUMER: And on the other two, the Lewinsky parts of this, is there --

    MR. DAVIS: I think to some --

    REP. SCHUMER: I mean, I don't even understand how they could -- how Starr could think that he would have a case, not with the president of the United States, but with anybody here, when it seems so natural and so obvious that there would be an overriding desire not to have this public and to have everybody -- have the two of them coordinate their stories -- that is, the president and Miss Lewinsky -- if there were not the faintest scintilla of any legal proceeding coming about. It just strikes me as an overwhelming stretch. Am I wrong to characterize it that way? You gentlemen all have greater experience than I do.

    MR. DAVIS: I think you're right. And also, the problem a prosecutor would face would be that in these cases, there is relationship between these people unrelated to the existence of the Paula Jones case -- the relationship. And that's the motivation --

    REP. SCHUMER: Correct.

    And Mr. Weld, do you disagree with -- do you agree with that?

    REP. SENSENBRENNER: The gentleman's time -- the gentleman's time --

    REP. SCHUMER: Could I just ask Mr. Weld for a yes or no --

    REP. SENSENBRENNER: I'm sorry, Mr. Schumer. Mr. Schumer --

    REP. SCHUMER: -- for a yes or no answer on that?

    REP. : Can you answer that yes or no, Governor?

    MR. WELD: I think it's a little thin, Mr. Congressman.

    REP. SCHUMER: Thank you.

    REP. SENSENBRENNER: The gentleman from North Carolina, Mr. Coble.

    REP. HOWARD COBLE (R-NC): Thank you, Mr. Chairman.

    Good to have you all with us.

    Governor Weld, I have a handful of friends who reside in your state, and Democrats and Republicans alike, without exception, speak very favorably of you.

    MR. WELD: Well, I have friends in your state, too, Mr. Congressman.

    REP. COBLE: Do they speak favorably of me, governor? (Laughter.)

    Governor, last fall, you appeared on the Today Show, alluding to the possibility of resignation of the president. I'm quoting in part here, you said, "My sort of rule of thumb here, I think it comes down to this: If when the president goes to a high school and colleges and universities, really his strongest point, if he looks out at those kids, those students and their teachers as sees a sea of signs that says, "Liar, liar, pants on fire," it's time to go." Do you think, Governor, at this late stage of the game, what is your view on the possibility of resignation?

    MR. WELD: Well, in a way, I say this with a heavy heart, because I was troubled by the conduct at issue here. But I think that events have overtaken that possibility. I remember saying and thinking that the president would be well advised, when he looked in the mirror shaving every morning to say, "Are people taking me seriously? Are they taking me seriously at home? Are they taking me seriously abroad?"

    I was concerned that some international events that were happening around then were happening because of a perception of weakness at the core of the executive of the U.S. government. But what happens, you know, the week after I deliver myself of these wise sentiments, the president goes to the United Nations and gets a standing ovation. Then he goes into the budget negotiation with members of the opposite party, and by most accounts, gets, you know, better than half a loaf. They he has the Wye agreements on the Middle East.

    So, it appears to me that people are taking him seriously.

    REP. COBLE: Thank you, sir.

    Mr. Davis, in a Washington Post interview comparing the impeachment process with Watergate, you indicated that we're in an uglier political time now. Now much has been said about the late President Kennedy's sexual indiscretions that were not publicized but however were commonly known. And many of those same people insist that those indiscretions would be publicized today. And I'm not convinced, sir, that we're in an uglier political climate or a political time. I think, rather, the members of the media are probing more thoroughly and probing more consistently. And I think probably that may be why more attention is focused today.

    Now let me ask you this, Mr. Davis.

    Would you -- I started to say "wouldn't you" but I'd be speaking for you. Would you acknowledge that this committee's consideration of whether grand jury perjury and civil deposition perjury and potential witness tampering by the president -- not saying it happened, but assuming that it did -- that it merits impeachment is a legitimate exercise for this committee? Would you acknowledge that?

    MR. DAVIS: I think that it's appropriate for the committee to be conducting a review. I think there are issues in terms of whether the committee can meet what I believe is the committee's burden, if it's going to decide that there should be impeachment, without really itself satisfying itself as to the credibility of some of the core witnesses, like Ms. Lewinsky. But I think given -- once you received the referral, I think, obviously, it was appropriate for you to consider that referral and consider it seriously.

    REP. COBLE: Governor Weld, neither am I Tom Sullivan. But Mr. Sullivan -- this has been broached previously, but I want to broach it as well. You indicated that it was your belief that probably the average citizen probably would not be prosecuted for similar circumstances that are now before us.

    MR. SULLIVAN: Yes, sir.

    REP. COBLE: And it was referred that two average citizens last week -- one a physician, one a basketball coach appeared -- sat where you are sitting now, and they in fact were prosecuted. I'm inclined to think, Mr. Sullivan -- and I'm not mad; by no means am I taking you to task for this, but I think what you said may well be subject to interpretation. I think perhaps -- and maybe it's because of the uglier time or the fact that the media is more focused now, I think probably that you would see more and more average citizens prosecuted for perjury. But I'll be glad to hear from you in response to that.

    MR. SULLIVAN: Well, Mr. Coble, I'm aware of the fact that there are some few prosecutions for perjury arising out of civil matters when -- but --

    REP. COBLE: Mr. Sullivan, I hate to do it to you, but I see time's up.

    REP. SENSENBRENNER: Time's up.

    REP. COBLE: Thank you, Mr. Sullivan.

    REP. SENSENBRENNER: The gentleman from California, Mr. Berman.

    REP. HOWARD BERMAN (D-CA): Thank you, Mr. Chairman.

    Actually, the question I'm most curious about is whether, Mr. Davis, if there had been a cooling-off period, and if President Ford hadn't issued the pardon, what do you think Mr. Jaworski would have done?

    MR. DAVIS: The answer is I don't know. Indeed, the reason that in my memorandum I recommended a cooling-off period and felt that we should defer that decision was because I thought the emotions at the time were too high and one would have to balance the factors very carefully including, as I said in my statement, whether the public interest in saying, you know, "we've had two years of this we need to get on to something else, and shouldn't we do it" and that a prosecution would drag that out.

    REP. BERMAN: Well, I agree with the other comments. I think this panel has presented some very compelling testimony on all the pitfalls in pursuing a perjury prosecution in this situation and raised doubts about whether all the elements of perjury are present in this case. We're not a courtroom; some people keep wanting to analogize us to that. I thought the professors yesterday were a political body, and this is a political process in many, many ways. The Founding Fathers would have given this process to the Supreme Court if they had wanted a strict legal analysis.

    So your testimony perhaps on the question of whether there would be a prosecution for perjury is less relevant to whether there are high crimes and misdemeanors here than it is to the question of whether one of the articles of impeachment should actually assert the conclusion, the legal conclusion, that perjury has been committed, and I would hope the framers of these articles would look at this testimony carefully in making that decision.

    The point that does interest me -- for those who want to analogize it to a legal proceeding, this notion of -- even if I think, as a prosecutor, that I have probable cause and I believe that the accused is guilty, that if I know I can't get a conviction from an unbiased jury, I don't bring the case. Develop that a little bit more. Is this some -- is this a -- is this some formalized process that prosecutors use? Where did you get this from?

    MR. SULLIVAN: Mr. Berman, I can only speak from my experience as a prosecutor, but I have had situations where not my assistants, but agents, have said to me after the discussion about the evidence and we concluded that we cannot get a conviction, or it's likely we'd lose, "Let's indict him anyhow to show him." My response to that is, "Get out of my office and never come back."

    REP. FRANK: But you might try to become an independent counsel, you might tell that person. (Laughter.)

    REP. BERMAN: So, then, for those who want to -- let me ask you, are there any other comments on that? Yeah.

    MR. WELD: This is written into the principles of federal prosecution, Mr. Congressman, which is the handbook that guides federal prosecutors. And what it says about the charging stage of the criminal justice process is that the prosecutor has to believe that there's sufficient admissible evidence -- admissible evidence -- to obtain from a reasonable, unbiased jury a conviction and to sustain it on appeal.

    REP. BERMAN: Now, as I understand, though, in the Justice -- there is a second paragraph in the Justice Department qualification. If you are bringing in the case in the South involving civil rights with an all-white jury and where certain practices were prevalent, you wouldn't refuse to bring that case against some crimes against a black victim simply because your fears in the 1960s or '50s that an all- white jury might never convict. But -- so if that's the -- you wouldn't -- that wouldn't cause you to stop bringing in the case, I assume.

    MR. WELD: That's why it says "reasonable and unbiased."

    REP. BERMAN: Right. And, of course, so you'd have to conclude here that the United States Senate, by conclusion, you'd have to reach a conclusion that they were somehow not a reasoned and unbiased jury to apply that logic in this situation.

    MR. NOBLE: May I just respond? And let me quote you from the Department of Justice guidelines, because they use precisely that example to make that point. And they say, and I quote:

    "For example, in a civil rights case or a case involving an extremely popular political figure, it might be clear that the evidence of guilt viewed objectively by an unbiased fact-finder would be sufficient to obtain and sustain a conviction if the prosecutor might reasonably doubt whether the jury would convict. In such a case, despite his or her negative assessment of the likelihood of a guilty verdict based on factors extraneous to an objective view of the law and the facts, the prosecutor may properly conclude that it is necessary and desirable to commence or recommend prosecution and allow the criminal process to operate in accordance with its principles."

    REP. HYDE: The gentleman's time has expired.

    The gentleman from Texas, Mr. Smith.

    REP. LAMAR SMITH (R-TX): Thank you, Mr. Chairman. Mr. Chairman, I have an observation and then a question for Governor Weld.

    I have to say that I fundamentally disagree with the premise of this panel, which is that the president should be considered, quote, "an ordinary citizen." And therefore I disagree with their conclusion.

    To me, the president has a special responsibility that goes beyond that of an ordinary citizen.

    He holds the most powerful position in the world. He is the number one law enforcement official of our country. He sets an example for us all. Other people in other positions of authority, such as a business executive or a professional educator or a military officer, if they had acted as the president is alleged to have acted, their careers would be over, and yet they don't hold near the position of authority that the president does.

    Let me read a statement from the rules under which President Nixon was tried for impeachment. It says, "The office of the president is such that -- the office of the president is such that it calls for a higher level of conduct than the average citizen in the United States." Because of the president's special authority, I think it makes the charges against him more serious, and therefore, in my judgment, at least, demands that any punishment be more severe.

    Let me go, Governor Weld, if I may, to my question to you, and on the way there, let me compliment you for offering a well thought-out alternative to impeachment. And that's not to say I agree with it; it's just a well thought-out alternative, I think.

    I want to read a couple of statements from students at Roxbury Latin School, which is, I'm sure you know, a school in Boston. This was a column that appeared in the Boston Globe that was written by their headmaster. And apparently, he conducted a couple of school forums, and these are for students aged 12 to 18, and suggested to the students that they accept the president's statement of regret. He said, "They would have none of it," and then he generalized their reactions, which I want to read. And these are quotes.

    "You've got to be kidding. This wasn't some one-time lapse in the face of sudden and unexpected temptation. The president did this over and over, plotting meetings with Monica Lewinsky in the White House, including one on Easter just after he was pictured coming out of church, Bible in hand."

    "Clinton lied passionately, looking us in the eye; then he played word games; but he never told the truth until he was caught."

    "Cheating by students usually results in suspension. Repeat cheating brings expulsion. Clinton cheated repeatedly. The only difference is that Clinton is a lot older than we are, supposedly a lot wiser, and he holds the highest public office there is."

    "Maybe we're naive, but people our age want to look up to the president. What we see when we look at Clinton is someone who can't control himself and lies to his fellow citizens." End quote.

    Governor Weld, aren't those students generally right in their assessment?

    MR. WELD: Well, Mr. Congressman, I don't think anybody's saying this is a day at the beach or a walk in the park. This is not a strong outing by the president, and I find those statements as depressing as you do. And as I was discussing with Mr. Coble a moment ago, if that kind of attitude and reaction had persisted in the citizenry at large --

    REP. SMITH: I understand your answer, and I appreciate it. Thank you very much.

    I'll yield back the balance of my time.

    REP. HYDE: Thank the gentleman.

    Mr. Boucher.

    REP. RICK BOUCHER (D-VA): Thank you very much, Mr. Chairman.

    I would like to join with you and the other members who have congratulated this panel on what I think is the very excellent presentation this morning. And I would like to join in the welcome of these distinguished witnesses here.

    Mr. Weld, I was very interested in your statement, with which I would wholly concur, that the intent of the impeachment power was to protect the public interest, and that the standard that Congress should apply in determining whether acts of the president constitute impeachable conduct is the public interest; and your further statement that impeachment should not be deemed to be punishment for that individual misconduct, that the punishment can occur in the regular course.

    You cited the constitutional provision that says that for any crimes that are committed during the tenure of the presidency, the president can be indicted and tried, just as any other American.

    I gather, however, from the thrust of the testimony of this panel of witnesses, that perjury prosecutions in civil actions are rarely undertaken. I gather also that perjury prosecutions generally, while undertaken on occasion, are not the first resort of prosecutors in most cases. But in this particular instance, there is yet another avenue in which the president potentially could be sanctioned for any misconduct that may have occurred in his testimony under oath, and that is in the U.S. district court in Arkansas, which had jurisdiction of the Jones case.

    It has been suggested by a number of witnesses to this committee that that judge retains jurisdiction even though the case itself has now been formally dismissed by the eighth circuit court of appeals; that if she decides it is appropriate to do so, that she could impose sanctions based on any misconduct that may have occurred in the deposition that was taken in her court.

    I would like the opinion of these witnesses with regard to whether or not that is an accurate statement of the jurisdictional posture of that case. Does she have the jurisdiction to do that? And based on your very extensive experience with regard to criminal prosecutions, do you think there is a probability or likelihood, or how would you rate the chances that if she deems that misconduct occurred there that she might be led to take actions and impose some sanction? That might be the more probable way in which some sanction occurs, as opposed to a criminal prosecution. So who would like to answer? I'll ask you first, Mr. Sullivan.

    MR. SULLIVAN: There is, under the United States Supreme Court decisions, inherent power in the district court in civil cases to impose sanctions for misconduct occurring before the court. So there's no question about that. That case was decided several years ago.

    Your second part was, what would happen if she were to do this? Not having brought my crystal ball with me, I can't tell you. But she does have that power to pursue that, so far as I know. I do not know whether the dismissal of the case terminates that power. That's an issue I really haven't looked at.

    REP. BOUCHER: Does anyone else have a comment on that issue? Let me ask this additional question. Mr. Noble, I was very interested in your saying that this Congress should consider, in deciding whether or not to vote articles of impeachment, the effect that the House voting articles of impeachment and the Senate being put to trial would have on the country, the further polarization that would occur, the diversion of the president and the Congress from their real responsibility, which is attending to our national agenda, the potential immobilization of the Supreme Court while the chief justice presides, the lowering of the standard of impeachment in proceedings in future years.

    I am concerned that, in fact, some members of this Congress, not fully having considered those effects, may have decided to apply a lower standard to determining whether or not articles of impeachment should be approved and believe that perhaps the House should act as a grand jury and simply vote on probable cause. Do you agree that there ought to be a higher standard than probable cause for us to consider this weighty matter?

    MR. NOBLE: This follows on Mr. Smith's comments. It's clear that before the public the president is not an ordinary citizen. It's clear that before Congress the president is not an ordinary citizen. It's clear that any rational criminal investigator or federal agent investigating an allegation of perjury by a president of the United States is not going to treat it like the ordinary case. It's clear, based on everything we've heard, that most of us believe, without looking at specific evidence, that the president either did perjure himself or didn't perjure himself.

    REP. HYDE: The gentleman's time has expired. Do you have a finishing sentence or two?

    MR. NOBLE: I can do it in one minute -- or I'll just wait. I'll wait.

    REP. HYDE: Thank you.

    REP. BOUCHER: Thank you, Mr. Chairman.

    REP. HYDE: Thank you. The gentleman from California, Mr. Gallegly.

    REP. ELTON GALLEGLY (R-CA): Thank you, Mr. Chairman. Gentlemen, thank you for being here this morning. Mr. Sullivan, for the record, do you believe that the knowing and willful misleading of a judge or federal grand jury represents an effort to thwart the judicial system from discovering the truth?

    MR. SULLIVAN: Could you repeat the question, please?

    REP. GALLEGLY: Do you believe that willful misleading of a judge or federal grand jury represents an effort to thwart the judicial system from discovering the truth, for the record?

    MR. SULLIVAN: It sounds like what you said is correct, if I understand it.

    REP. GALLEGLY: (Laughs.) Thank you. You know, the evidence indicates that the president and Mrs. Lewinsky, or Ms. Lewinsky, had three conversations about her testifying in the Jones case within one month before his deposition. When the president was asked, "Have you ever talked to Ms. Lewinsky about the possibility that she might be asked to testify in this lawsuit?" he answered, "I'm not sure." Governor Weld, do you think it's reasonable -- you know the president pretty well -- to believe that the president completely forgot about these three conversations?

    MR. WELD: I really don't know, Mr. Congressman.

    REP. GALLEGLY: Thank you, Governor. When the president was asked, "At any time, were you and Monica Lewinsky together alone in the Oval Office?" he answered, "I don't recall." The evidence indicates that he was, in fact, alone with Ms. Lewinsky on many occasions, including the time that they exchanged gifts less than 20 days before the deposition. Mr. Sullivan, for this not to be perjury, the president must have genuinely forgot his numerous encounters with Ms. Lewinsky. Is that correct for it not to be perjury?

    MR. SULLIVAN: Yes, the evidence in a perjury case requires proof beyond a reasonable doubt that the defendant not only made a false statement but knew it was false at the time it was made. That's correct.

    REP. GALLEGLY: And if -- and the test would be that he genuinely forgot in order for that not to be perjury. Is that correct?

    MR. SULLIVAN: That's my understanding.

    REP. GALLEGLY: Thank you very much, Mr. Sullivan. You know, the president's action of being less than truthful has caused and continues to cause serious problems. I'm concerned about how his lying affects the ability of the American people to trust the highest elected official in the land.

    One of my constituents called me yesterday, a constituent by the name of Les Savage (sp). I've never met this gentleman before. But his question was very sincere. How do we know when the president is telling the truth? And maybe even more importantly, how do the leaders of other countries around the world know when he's telling the truth?

    President Clinton has had many occasions to come clean, and to date I don't believe he has. The president's failure to present any substantive evidence is consistent with his obvious lack of concern about how serious the offense of lying under oath truly is.

    Mr. Chairman, I yield back.

    REP. HYDE: The gentleman from New York, Mr. Nadler.

    REP. JERROLD NADLER (D-NY): Thank you, Mr. Chairman. Before my five minutes beginning, I have a parliamentary inquiry.

    REP. HYDE: State your inquiry.

    REP. NADLER: Thank you. Mr. Chairman, a few weeks ago, when Mr. Starr was here, in answer to a question I asked, he referred to a court case which was then under seal, and I was not able to characterize his -- I felt myself unable to characterize the accuracy of his statement about that case lest I be accused of violating the seal.

    A few moments ago, Mr. McCollum referred to the same court case, which is no longer under seal, but which is within the possession of this committee in executive session. Would I be violating the confidentiality rule if I were to state that Mr. McCollum misquoted and misstated what the court found and that the court did not conclude that the president's testimony about Lewinsky was material to the Jones litigation, but rather found the truthfulness of Monica Lewinsky's affidavit was material enough to her motion to quash her subpoena in that case to justify the OIC's issuance of a grand jury subpoena to her lawyer and that this is a distinct issue from whether the president's testimony in the Jones deposition was material to that case? And if I were not permitted to state that, why is Mr. McCollum permitted to quote this case?

    REP. HYDE: You will be provided with a copy of the opinion.

    REP. NADLER: But am I permitted to state this?

    REP. HYDE: Well, I'd ask you to read the opinion before you make any statements. I'm told you have mischaracterized Mr. McCollum's characterization.

    REP. NADLER: Well, whether I've mischaracterized it or characterized it, since that is --

    REP. HYDE: You can say anything you want, Mr. Nadler.

    REP. NADLER: Thank you. Then I will simply --

    REP. HYDE: But I'm suggesting that you'll get a copy of the opinion very shortly, and I'm suggesting you read it before you make statements about it. But that's up to you. All right, now your five minutes starts.

    REP. NADLER: Thank you, Mr. Chairman. Mr. Chairman, I should note that I have written to the attorney general asking that Mr. Starr be disciplined for breaking the confidentiality of that case when he mischaracterized it two or three weeks ago.

    Let me ask Mr. Davis, I think, starting off. You stated very carefully and clearly in your testimony that you really -- no prosecutor would prosecute a perjury case on the basis of the evidence that we have before us from the Starr referral, that there really holds -- that it's not likely that a jury would convict, that there is no real perjury case there.

    You said that, for example, that you wouldn't bring a prosecution of perjury based on two conflicting statements of two witnesses, one of whom disagrees with the other; that the alleged corroboration that Mr. Starr cites for Monica Lewinsky's testimony is not corroboration at all, because that she told 10 or 11 friends of hers and relatives the same thing, that she had a motive to embellish or falsify the statement. And, in fact, I think law school tells us that such a statement would be inadmissible in a court as hearsay in prior consistent statements in any event.

    I would simply -- first of all, do I characterize your testimony correctly?

    MR. DAVIS: Generally, yes.

    REP. NADLER: Okay. Thank you. Secondly, some people on the other side here, have talked about the president being impeachable, not only for perjury, but for a lesser crime, that if perjury isn't a high crime and misdemeanor and a great offense threatening the safety of the republic, that maybe false statements under oath are.

    Would the same or similar constraints prevent a successful prosecution under these circumstances, with this evidence of false statements under oath, as would prevent a successful prosecution for perjury?

    MR. DAVIS: Yes. I mean, the false statement under oath section of the U.S. Code really --

    REP. NADLER: Could you speak up, please?

    MR. DAVIS: The false statement under oath section of the U.S. Code will formally eliminate the so-called two witness rule, the same prosecutorial judgment would come into play in which you'd have to assess can you win the case, and for the reasons that I articulated before, it seems to me that with the one-on-one testimony, and as I said, the fact that Mr. Starr would have to disassociate himself, and criticize Ms. Lewinsky's testimony, and say that it's not true in various regards, would make such a prosecution, in my view, doomed to failure.

    REP. NADLER: For false statements under oath as well as for perjury.

    MR. DAVIS: That is correct.

    REP. NADLER: All right. So there would be no successful prosecutions for false statements under oath, and again, to summarize, Ms. Lewinsky is a weak witness because the Special Prosecutor would have to point out that she lied under oath at some other place.

    MR. DAVIS: Yes. And in a grand jury context, that's really the core perjury.

    REP. NADLER: And it's further weakened by the fact that the alleged corroboration witnesses would be inadmissible in any court as hearsay?

    MR. DAVIS: Well, they would probably be, you know, inadmissible. There may be some arguments that they could come in at some point, depending upon cross-examination. But the point is, whatever motive she had to falsify in the grand jury on this --

    REP. NADLER: The same motive.

    MR. DAVIS: -- the same motive would exist.

    REP. NADLER: So in other words, if I want to falsify or embellish my statement, or have a fantasy, or lie, the fact that I lied to 12 people, doesn't make it any less of a lie than if I lied only to one person.

    MR. DAVIS: That is correct.

    REP. NADLER: And -- yes, Mr. Noble.

    MR. NOBLE: Yes, can I talk about that for just a moment, because it's very important. A good prosecutor is going to try this case with the defense theory in mind. And the defense theory is going to be: can I prove that the president did what she said the president did? She's going to be impeached for every prior inconsistent statement she has. But the person's not going to cross-examine her, and make it seem as though her testimony was recently fabricated. Because that way, she can bring in every prior statement.

    All of us ought to worry about someone lying about us to a thousand people and having that come in as admissible evidence, making what we lied about the first time was true, if the motive to lie began in the very beginning.

    So, for that reason, a smart --

    REP. NADLER: Her motive did begin at the very beginning.

    MR. NOBLE: And her motive arguably did begin at the beginning.

    REP. NADLER: And that applies to false statements under oath, as well as to perjury.

    MR. NOBLE: That applies to false statements under oath, as well as perjury. I tried a case, a false statement case, I convicted it at the jury level, was reversed on appeal because of a literal truth defense, the same defense that --

    REP. NADLER: Thank you. I have one further question, if I can quickly get it in. Mr. Smaltz, the special prosecutor in the Espy case, said that an indictment is as much a deterrent sometimes as a conviction, so you might as well get it --

       


    REP. HYDE: The gentleman's time has expired.

    REP. NADLER: Do you agree with that?

    REP. HYDE: The gentleman from Florida, Mr. Canady.

    REP. CHARLES CANADY (R-FL): Thank you, Mr. Chairman. I'd like to thank you all for being here today. You've done a good job in presenting what I believe are some of the best arguments in defense of the president, and I understand that's why you're here, and we appreciate your perspective on this.

    I have agreed with some of the points that have been made. Obviously, I disagree with some of the others. But when you talk about prosecutorial discretion, and the question that a prosecutor has to ask about whether he can have some expectation of winning before a jury, I think that's right. And I think that's an appropriate way for a prosecutor to view the case.

    Now, my judgment about the facts of this case, differ from yours, based on what I've seen today, because I think there is compelling evidence here that points to the conclusion that the president engaged in a pattern of lying under oath and other misconduct.

    But on the standard for prosecution, I think you've raised some good and valid points. But I want to quarrel a little bit with the application of that in this context. The argument has been made that in essence, we in the House should, in carrying out our responsibility, look to the Senate, and make a guess about how the proceedings would turn out in the Senate, to determine how we exercise our responsibility under the Constitution.

    I would suggest to you, I don't think that's a proper way for us to proceed. I believe that we have an independent responsibility, under the Constitution, to make a judgment concerning the conduct of the president, and whether he should be impeached or not. And it would be in derogation of our constitutional responsibility to attempt to count noses in the Senate. I will have to say that it's a very difficult thing to count noses in the Senate anyway, and in a proceeding like this, it's hard to predict the outcome.

    But aside from that, I just don't think that's a proper undertaking for us to be involved in. And I'd also point out that the very structure of the Constitution indicates that. In the Constitution, the framers provided that the House could impeach with a simple majority. They provided that conviction in the Senate would have to be by a two-thirds majority.

    Now, I would suggest to you that that structural feature of the Constitution suggests that the framers would have contemplated circumstances in which the House might very well impeach, but the Senate would not convict. Now, I think that's obvious on the face of the documents. Some of these arguments I think have to be brought back to the text of the Constitution and evaluated in that light.

    But on this issue of prosecutorial discretion, let me pose a scenario here, which I think is very analogous to what we have before us. Suppose the chief executive of a Fortune 500 corporation, a major national corporation in the United States, was accused of sexual harassment, and the corporation had been sued -- sexual harassment or any other civil rights offense. And in the course of the discovery in that case, the chief executive of that major national corporation lied under oath to impede that civil rights action.

    Now, I believe that the fact that the chief executive of a major national corporation was engaged in that type of conduct, would be a relevant consideration for the prosecutors who were evaluating the case and whether to bring it, because of the impact of that conduct.

    Now, I do believe that bringing prosecutions have a deterrent impact. And that is one of the considerations that has to be factored into prosecutorial discretion.

    So, I think if we step back from this situation -- and again, we can argue about the weight of the facts, and I understand you disagree with the evaluation some of us may have made about the weight of the facts here. But if the president of the United States did engage in obstruction of justice, and committed multiple acts of lying under oath, I think that we have to look at that conduct, in light of the consequences that it has, and the message it sends, just as we would look at the conduct of the chief executive of a major national corporation who was the defendant in a civil rights case brought against that corporation.

    So, I think that's something to look at. There's really not time for you to respond. But do you disagree, that that sort of high- profile case has to be evaluated in light of those circumstances?

    MR. DENNIS: I think there's one point on this. I mean, the analogy isn't quite there. I think if you were looking at the -- a president of a Fortune 500 corporation, you'd be talking about a suit that was brought by, perhaps, someone prior to them taking that position and --

    REP. CANADY: Oh, no! No, no, absolutely not. He could have been guilty of that in the course of his conduct as chief executive. But thank you.

    MR. DENNIS: Well, I think that the issue of materiality is one that's been discussed here. And I think that's where the nub of it is -- that the Jones matter was something prior to the president becoming president of the United States. We weren't talking about issues of how the president deals with subordinates in that respect. And I think that that really makes a huge difference in terms of how that person should be perceived insofar as these kinds of charges.

    REP. CANADY: Thank you.

    REP. HYDE: The gentleman's time has expired.

    The gentleman from Virginia, Mr. Scott.

    REP. ROBERT SCOTT (D-VA): Thank you, Mr. Chairman.

    Mr. Sullivan, in your prepared testimony you said that no serious consideration would be given to a criminal prosecution rising from an alleged misconduct and discovery in the Jones civil case, having to do with alleged cover-up of a sexual affair with another woman, or the follow-up testimony before the grand jury; it simply would not have been given serious consideration for prosecution. It wouldn't get in the door. It would be declined out of hand.

    Are you aware that we are not straight as of now as to all of the allegations, specific allegations of perjury, that even yesterday the gentleman from Arkansas specified a different statement that he believed to be perjurious? ABC News said that the Republicans -- on December 7th said the Republicans might shy away and come up with new charges from the grand jury. Is it fair to have an accused respond to a perjury charge without stating with specificity what the statement is that was false?

    MR. SULLIVAN: No.

    REP. SCOTT: Thank you.

    Mr. Noble, in fact-finding, is there a problem using conflicting grand jury testimony, copies of FBI interview sheets, and prior consistent statements in order to make a case against an accused?

    MR. NOBLE: I believe there's a problem using only those bases for making prosecutive decisions, yes.

    REP. SCOTT: And why is conflicting grand jury testimony and copies of FBI interview sheets inherently unreliable as testimony?

    MR. NOBLE: Because our system of justice is based on testing the testimony of someone, under oath, in front of the finder of fact, subject to cross-examination, and in a grand jury that doesn't exist.

    For that reason, prosecutors, at the very least, interview the principle witnesses themselves; try to test that witness as much as they can in terms of deciding whether or not he or she can withstand cross examination. Otherwise, you just have hearsay.

    REP. SCOTT: And because of that unreliability, is it -- you can't make a case just using grand jury testimony to make a case against someone?

    MR. NOBLE: I say this with all due respect: only a foolish or inexperienced prosecutor would attempt to indict and convict someone based on hearsay grand jury testimony.

    REP. SCOTT: Thank you. Mr. Davis, in your testimony, on page 13 of your prepared testimony, right at the top -- you didn't have time to go through the specifics of why the obstruction of justice case could not be made. Could you start at the top of page 13 -- I assume you have -- where it says, "But there are -- ," draw the factor --

    MR. DAVIS: Yes. Another complicating factor in the obstruction of justice case which makes this such a difficult case to bring is the reality that the principle players in this drama, the president, Miss Lewinsky, and Ms. Currie, had relationships and motivations to act, wholly unrelated to the Jones case. This kind of thing would seriously complicate the ability of a prosecutor to establish the intent to obstruct some official proceeding, which is required to prevail in an obstruction of justice case.

    Examples: The job search began before Miss Lewinsky was on the witness list, and frankly, there's nothing surprising that someone who had an illicit relationship with a woman would, when it was over, be willing and want to help her to get a job in another city. Ms. Currie had her own relationship with Miss Lewinsky. People who have an illicit relationship often understand that they will lie about it without regard to the existence of a litigation and here it appears that such an understanding was discussed prior to Miss Lewinsky being identified as a potential witness.

    The evidence, you know, about retrieval of the gifts is contradictory, with Ms. Currie and the president offering versions of the events which exculpate the president and which differs from Miss Lewinsky's testimony, and Miss Lewinsky herself provided varying and sometimes exculpatory interpretations of these very events in terms of her testimony.

    These are the kinds of things that make winning a case -- and I do think when you're talking about --

    REP. SCOTT: Let's -- do you have the next paragraph, which I think you can get in?

    MR. DAVIS: And the reality that at the time of the president's conversation with Ms. Currie in the immediate aftermath of his civil deposition, Ms. Currie was not a witness in any proceeding. And given the status of the Jones case, there was no reason to believe that she ever would be, and that the president was likely focusing on the potential public relations repercussions from his relationship.

    You know, it isn't a question, I must say, of counting votes in the Senate. The issue is in thinking through the standard of whether to proceed at the House level, whether you think you have adequate evidence to prevail. So you are making the judgment.

    REP. HYDE: The gentleman's time has expired.

    The chair will declare a 10-minute recess, and it -- and I mean it, that it's 10 minutes! (Laughter.) Please come back.

    MR. : We won't move. (Laughs.)

    REP. HYDE: Thank you. Well, you're entitled to move; that's why I'm calling the recess.

    (A 10-minute recess is taken.)

    REP. HYDE: The committee will reconvene.

    I must say, the panel looks refreshed. That's good.

    MR. : On behalf of the panel, thank you, Mr. Chairman.

    REP. HYDE: Mr. Watt, the gentleman from North Carolina.

    REP. MELVIN WATT (D-NC): Mr. Inglis was next.

    REP. HYDE: All right, Mr. Inglis is next.

    REP. BOB INGLIS (R-SC): Thank you, Mr. Chairman.

    And I want to thank the panel for being here.

    Mr. Sullivan, if this case, the facts of this case ever resulted in a prosecution of Bill Clinton after leaving the White House, would any of what we've heard this morning be admissible as a fact in a case involving the prosecution of Bill Clinton, the private citizen? Any of your testimony, would any of that be admitted as a fact in that case?

    MR. SULLIVAN: Oh, no. Absolutely not.

    REP. INGLIS: Would anything that anyone else has said here this morning be admitted as a fact in that case?

    MR. SULLIVAN: Absolutely not.

    REP. INGLIS: I'm keeping score, Mr. Chairman, as you know. So this makes panel 4, Mr. Craig, the fourth panel -- no facts. And Mr. Craig said yesterday to us, "In the course of our presentation today" -- that was yesterday -- "and tomorrow" -- that's today -- "we will address the factual" -- underlined factual -- "and evidentiary issues directly." The score now is zero to four; zero panels, zero witnesses dealing with facts. Everybody that we've heard from in these four panels has given conclusions, has given legal opinions. Not a single person has presented a fact.

    Mr. Sullivan, would a memorandum of law be considered a fact in a trial?

    MR. SULLIVAN: Not unless the -- normally no, if the issue arose out of that. But no.

    REP. INGLIS: Right. Unless the memorandum of law itself was an issue. Then it could be a fact, correct?

    MR. SULLIVAN: Right. Right.

    REP. INGLIS: So this 184-page document -- it really, I think, can only be described as a memorandum of law, possibly a brief -- contains no facts -- no facts in the case before us today.

    MR. SULLIVAN: It's similar to the Starr report in that regard. They're about equal. (Laughter.) I mean, they do deal with the facts, but there are no witnesses that you've heard to testify directly about the facts, whereas in a trial the people would have to appear and give their testimony personally.

    REP. INGLIS: Right.

    MR. SULLIVAN: Yeah.

    REP. INGLIS: Well, of course, the difference, would you have to concur with me, is the Starr report is based on sworn testimony gathered by an independent counsel, which are the same facts that I guess are discussed here. It's just that there you have a direct quotation of those facts and a summary of those facts. Is that correct?

    MR. SULLIVAN: Yes. And I think that the White House submission, although I have not read all of it, I've read part of it -- the part I read did deal in great detail with a great many of the facts, including a lot of the facts that are not highlighted in the Starr report.

    REP. INGLIS: Right. But none of those are facts in a case, and the point that I'm making is that, again, Mr. Craig yesterday made a very high bar for him to get over.

    And the thing that I find wonderful about these proceedings is that for the -- really, it's a rare opportunity to bring accountability to the White House spin machine. What happens, I think, with the spin machine is the reporters get worn down. They get tired of trying to pursue it, so they just accept it. But here we have accountability.

    Yesterday Mr. Craig said that in the course of the presentation, we will address the factual evidentiary issues directly. The score is zero to four; zero of these panels, Mr. Craig, have addressed facts. All of them are doing what the other panels have done in times past. In other words, here again, very helpful discussion -- I appreciate the time of all these witnesses, but there's nothing new here, no new facts, no new evidentiary issues that have been addressed directly. And once again we do have that the president was -- had personally instructed you not to obscure the simple moral truth. But all this 184-page document is, is more of the hairsplitting, more of the legal technicalities that are so maddening in what the president has to say to us. That's what the 184 pages is.

    REP. HYDE: The gentleman's time has expired.

    The gentleman from North Carolina, Mr. Watt.

    REP. MELVIN WATT (D-NC): Thank you, Mr. Chairman.

    We got a 445-page referral from independent counsel Starr. Is there anything in that 445 pages that in that form would be admitted in a criminal case?

    MR. SULLIVAN: No.

    REP. WATT: So I suppose that what Mr. Inglis is talking about is the same thing that -- what we've been talking about all along. We keep waiting on some facts to be developed here, and without that development, the score remains zero to zero, I take it, with the presumption of innocence being in favor of the president.

    Mr. Noble, you had a response?

    MR. NOBLE: Yes, I would like to respond to the previous congressman's comments.

    REP. WATT: Before you go there, let me --

    MR. NOBLE: But the direct response to your comment, and that is, if it was a trial and the prosecution presented no admissible evidence, zero, not guilty, there would be no defense case.

    REP. WATT: That's right.

    Okay. Now, that brings me to the point that I wanted to make, because I got a call from -- everybody seems to be getting calls from constituents; I got mine last week from a constituent who started out by saying that the president was engaging in a legal attempt to distinguish what he had said in some way. And I reminded the caller that this in fact is a legal proceeding that we are involved in. Is there anybody on this panel that disagrees with that? (No audible response.) Okay.

    So the standards that are applicable in a legal proceeding, Mr. Sullivan, you referred to that -- on the first page of your testimony you said, "The topic of my testimony is prosecutorial standards under which cases involving alleged perjury and obstruction of justice are evaluated by responsible federal prosecutors." I take it that you are equating this panel to responsible federal prosecutors and what you're saying, I guess -- I take it from your testimony this morning, is if a responsible federal prosecutor wouldn't prosecute this case, then we ought not be moving it along to the Senate -- or to the House floor. Is that -- is that the essence of where you come down?

    MR. SULLIVAN: I'm not sure I would presume on the -- that issue of what your responsibility is. I'm only saying that since your judgment here is high crimes and misdemeanors -- that's the test -- in my opinion, a responsible federal prosecutor would not bring a case based on these charges in the Starr report. Now, you can draw whatever conclusions you wish politically from that conclusion.

    REP. WATT: All right. So, Mr. Noble, what would be your response to that, and in the context of what some of my Republican colleagues on the committee have suggested ought be the standard under which we are evaluating this evidence?

    MR. NOBLE: I believe that -- and I'm not one -- I was not elected by anyone, not by prosecutors or by citizens, to comment. But my best advice would be that there's a lesson to be learned from the Justice Department. The parallels are quite striking. In the Justice Department, before bringing a criminal prosecution, the hurdle is very low -- probable cause. However, before getting a conviction, you need proof beyond a reasonable doubt.

    Here, in order for it to get voted out of this House, you'll need a majority. However, in order for a conviction to occur, you need two-thirds of the Senate. I believe you ought to look and think about what a rational, fair-minded senator would do, how he or she would vote. If you conclude they would not convict, think about the precedent you would have set if after two, three, four, five, six, seven impeachments and no convictions. You would not restore public confidence; if anything, you will have started to undermine public confidence in the impeachment proceedings.

    REP. HYDE: The gentleman's time has expired.

    The gentleman from Virginia, Mr. Goodlatte.

    REP. ROBERT GOODLATTE (R-VA): Thank you, Mr. Chairman.

    REP. HYDE: Mr. Goodlatte, would you yield to me for just a question?

    REP. GOODLATTE: Sure.

    REP. HYDE: Maybe, Mr. Sullivan --

    REP. WATT: Mr. Chairman, on whose time are we operating?

    REP. HYDE: Pardon? (Off mike response.) I'm sorry. I asked staff to do that, and sometimes they forget. They're enchanted by my question. (Laughter.)

    REP. WATT: Thank you, Mr. Chairman.

    REP. HYDE: Thank you.

    The question I was going to ask, when someone is granted immunity, as Ms. Lewinsky was done, is it customary -- and of course we could get the answer by looking at the immunity agreement -- but is it customary that they are obliged to tell the truth thereafter, and if they lie or tell a falsehood about some substantial issue that they forfeit their immunity? Is that the custom?

    MR. SULLIVAN: There are two kinds of immunity. But the normal immunity -- and I haven't seen her agreement -- is what's called "use immunity" which means that any testimony that she gives that is not truthful could be used against her in a subsequent perjury prosecution. If she gets "transactional immunity" she's entirely free. But that's not normally the case; it's usually use immunity. However, in my experience, when the federal prosecutors give use immunity to a witness, it is -- I don't like to say never happens, because that's usually wrong, but I just don't know of a case in which they've brought prosecution for perjury.

    REP. HYDE: I think the thing to do is to see what the agreement held.

    MR. SULLIVAN: Right. But generally, the agreement requires truthful testimony --

    REP. HYDE: Right.

    MR. SULLIVAN: -- and you are subject to perjury prosecution if you do not give truthful testimony.

    REP. HYDE: Thank you, Mr. Sullivan.

    REP. HYDE: I thank you, Mr. Goodlatte.

    REP. GOODLATTE: Gentlemen, welcome.

    Governor Weld, when you were governor of Massachusetts, if you were convicted of a felony that was serious that included jail time, what would happen to you as governor of the state of Massachusetts?

    MR. WELD: I think you're out automatically, but I never got close enough to the border to focus on that question -- (laughter) -- Mr. Congressman.

    REP. GOODLATTE: We hope not. We hope not. But the point is, I think that's true not only in Massachusetts, but in virtually every other state in the country, that if the chief executive is convicted of a felony, that they are automatically removed from office. And I do have the annotated laws of Massachusetts here in front of me, and that is exactly what they provide.

    In addition, it's my understanding that you would not be exempt from prosecution during the time that you served as governor. In other words, the prosecution could go forward, you could be tried and convicted during that time, unlike the prevailing opinion with regard to the President of the United States.

    MR. WELD: Well, sure. I think that's true.

    REP. GOODLATTE: And if that were to occur, that would be a serious disruption of your duties as governor of Massachusetts, to go through a -- what could conceivably be a lengthy trial. But nonetheless, the laws of that state and virtually every other state, provide for that to be done to protect the public trust and the interest of the public in not having someone with a serious charge and then subsequently a felony conviction serving in the office of highest trust of that state. Is that correct?

    MR. WELD: That's right. That's right. Actually, one of the reasons I resigned in '97 was because the Mexico ambassadorship was taking up so much of my time I didn't it was fair to the people to continue drawing a full salary. So a lengthy criminal proceeding would be problematic also.

    REP. GOODLATTE: Now, also, if the judgment against the governor is reversed at a later time, the governor can be restored to that position according to Massachusetts law unless it is so expressly ordered by the terms of a pardon.

    The President of the United States has the power to pardon, and the prevailing opinion is that the president can pardon himself. Are we all in agreement that the likelihood of any kind of subsequent prosecution of this case, regardless of your opinions of the merits, is not going to take place because of the reality of the circumstances, that either for practical reasons after the president leaves office or because he could bestow a pardon upon himself that that would take place?

    MR. WELD: Well, I can't imagine the president pardoning himself, Mr. Congressman.

    When I said I thought that the post-term risk was low, that's because of my assessment of the merits of the prosecution case.

    REP. GOODLATTE: But nonetheless, he has that power, and the Constitution is very explicit about the one exception to the use of that power, and that is in circumstances where the president is impeached. He cannot then pardon himself and restore himself to office as a result of impeachment, obviously.

    Mr. Noble, in my last question, if I may, would you be able to keep your job as professor of law at New York University if these charges were brought forward before you and made known to the public and to your employer?

    REP. SENSENBRUNNER: The gentleman's time has expired.

    REP. GOODLATTE: The activities that we know the president --

    REP. SENSENBRUNNER: Mr. Noble, you don't have to answer that, because time is up.

    (Remarks off mike.)

    REP. CONYERS: Could he answer it if he wanted to?

    REP. SENSENBRUNNER: I think so. (Mild laughter.)

    REP. CONYERS: Okay.

    MR. NOBLE: I can't even imagine me being accused of anything along these lines. (Laughter.)

    REP. GOODLATTE: Professor Noble, I can't imagine your being accused of anything as heinous as this, either, but nonetheless, I think you would agree that you would not be able to hold that position.

    REP. SENSENBRUNNER: Thank you. The gentlewoman from California, Ms. Lofgren.

    REP. ZOE LOFGREN (D-CA): I am someone who believes that the issue before the Congress is whether behavior of the chief executive is so severely threatening to our Constitutional system of government that it requires us to undo the popular will of the people and remove the executive and go through that trauma -- that that's the issue that faces us.

    However, not every person is analyzing this in the same way, the appropriate way. There are some who say that lying about sex, although deplorable, is not enough to impeach, but it's the crime that causes them to think that there ought to be an impeachment. Unfortunately for the president, there's no forum, really, to address the issue -- to defend against allegations of crime. People say, well, those are technicalities, but that's what the criminal law is all about.

    I've been thinking about my old, my late professor, Graham Douthwaite (sp), my crimes professor, who told us all that in order to convict of a crime you had to prove every element of a crime, and that, necessarily, becomes technical. And in the case of perjury you have to have the person under oath and it has to be a statement about a material fact in the case and it has to be an unambiguous question, and it has to be a knowingly false answer, and it has to be actually false and it has to be competent evidence for all of those elements, to get a conviction.

    For example, I recently -- and I'm not arguing this case, but I read an article in the Legal Times and also the American Lawyer Today that points out that the president was probably -- well, he was not under oath when he testified before the grand jury because the oath was administered by an officer who did not have the capacity to administer the oath, to wit, a prosecutor. And there is a case on that, U.S. v. Doshen (sp) that requires that in such a case, the case must be dismissed. So if it was not William Clinton but John Smith in court, any courtroom in America, that case of perjury would have to be dismissed. It's a technicality, but that's what the criminal law is about.

    I went home this weekend and asked a friend who is a deputy district attorney whether a conviction could be had in this case, and the answer I got was, no way, this could never yield a conviction if it were John Smith.

    And so I'm wondering, Mr. Sullivan, could you help the American people who have had the benefit of not going to law school to understand and to appreciate why we have these technicalities, and why it could be possible, if it was John Smith in court, to say something was obviously, you know, misleading but it would not yield actually a criminal conviction? How could that be, and what's the point of that, Mr. Sullivan?

    MR. SULLIVAN: The law has raised very, very high barriers against any citizen being convicted of a crime, the presumption of innocence. We have it in the United States. It is not common throughout the world. We are very privileged in many ways, and this is one of them.

    In perjury cases, you must prove that the person who made the statement made a knowingly false statement. Now, where I think the defect in this prosecution is, among others -- and I don't think it would be brought, because it's ancillary to a civil deposition -- is to establish that the president knew what he said was false. When he testified in his grand jury testimony, he explained what his mental process was in the Jones deposition, and he said the two definitions that would describe oral sex had been deleted by the trial judge from the definition of sexual relations and I understood the definition to mean sleeping with somebody.

    I don't want to get to particular here.

    REP. LOFGREN: Thank you.

    MR. SULLIVAN: But that is where this case, in my opinion, wouldn't go forward even if you found an errant prosecutor who would want to prosecute somebody for being a peripheral witness in a civil case that had been settled. That's my answer to that.

    REP. LOFGREN: Let me ask you, Mr. Noble. You're an evidence professor. It's been all sorts of -- oop, my time is up. Well, perhaps someone else can ask you about hearsay. And I will yield back, Mr. Chairman.

    REP. SENSENBRENNER: I thank the gentlewoman from California for watching the red light.

    The gentleman from Indiana, Mr. Buyer.

    REP. STEVE BUYER (R-IN): I would like to respond to this frivolous argument about the oath that we just now heard. The president's deposition oath was administered in a civil deposition by Judge Susan Webber Wright, according to the court reporter who recorded the deposition. The Federal Rule of Civil Procedure 28 specifies three types of persons before who depositions may be taken within the United States; before an officer authorized to administer oaths by the laws of the United States or place -- or of the place where the examination is held, or before a person --

    REP. : Will the gentleman yield?

    REP. BUYER: No, I will not. -- or before a person appointed by the court to administer oaths and take testimony.

    There is no dispute that Judge Wright has the authority to give the oath in the civil deposition.

    Note also in addition 5 USC 2903 provides, quote, "an oath authorized or required under the laws of the United States may be administered by the vice president or an individual authorized by local law to administer oaths in that state, district, or territory, or possession of the United States where an oath is administered."

    Now before the grand jury, Rule 6(c) of the Federal Rules provides that the foreperson of the grand jury, quote, "shall have the power to administer oaths and affirmations, and shall sign all indictments," end quote. This does not mean that the foreperson is the only person who administers oaths in the grand jury. In the District of Columbia, a notary public could administer an oath and affirmation. In the president's grand jury testimony, the oath was administered by the court reporter/notary public, who's authorized to administer oaths by the federal law and District of Columbia. The District of Columbia Code provides that a notary public shall have the power to administer oaths and affirmations. That's Chapter 8, D.C. Code 1-810.

    I have a question for you, Mr. Noble, with regard to --

    REP. SCOTT: Mr. Chairman, Mr. Chairman, could -- was he reading off -- from a document?

    REP. SENSENBRENNER: Time belongs to the gentleman from Indiana.

    REP. SCOTT: Well, if he was reading off a document, we'd like to see what he was reading.

    REP. : (Off mike.)

    REP. SENSENBRENNER: The time belongs to the gentleman from Indiana. He will proceed.

    REP. BUYER: Mr. Noble, with regard to prosecutorial discretion, I was pleased to hear some of your testimony. As I am referring here to the principles of federal prosecution, I have a series -- a couple questions I'd like to ask. Prosecutors end up having to exercise discretions a lot of times because -- sometimes there's more crime that occurs, and you have less resources, so you have to exercise good judgment. Is that correct?

    MR. NOBLE: That's correct.

    REP. BUYER: And there are many different factors that you need to take into consideration, and that's why you also have these guidelines in the federal sector, correct?

    MR. NOBLE: Correct.

    REP. BUYER: And one other factor that you even talked about here today is the strength of evidence, right?

    MR. NOBLE: Yes, sir.

    REP. BUYER: Another factor would be -- is the gravity of the offense, correct?

    MR. NOBLE: That's correct.

    REP. BUYER: And the other is the deterrence, the deterrent effect --

    MR. NOBLE: Correct. Correct.

    REP. BUYER: -- by prosecuting or not prosecuting. Is that correct?

    MR. NOBLE: Correct, yes.

    REP. BUYER: Now, in this case, when I refer to the guidelines under the section of the nature and the seriousness of the offense, I think it is somewhat informative, it says in here, it even states, "The public may be indifferent or even opposed to the enforcement of a controlling statute whether on substantive grounds or because of the history of non-enforcement or because the offense involves essentially a minor matter of private concern." And that's what you -- some of you have tried to articulate here today.

    MR. NOBLE: I believe I quoted that in my prepared remarks. That's correct.

    REP. BUYER: Right. But if you go down further, it reads, "While public interest or lack thereof deserves the prosecutor's careful attention, it should not be used to justify a decision to prosecute or to take other action that cannot be supported on other grounds. Public and professional responsibilities sometimes require the choosing of a particularly unpopular course." Do you agree with that?

    MR. NOBLE: Again, I've quoted most of what you've said, yes.

    REP. BUYER: Well, we've had other panels come in and testify, and they like to cite public opinion polls. And they say, "Well, you know, you need to listen to public will here and exercise, you know, sound public discretion here and go with the polls." But as in the prosecution of cases, you don't have that luxury, do you?

    MR. NOBLE: I believe that what one is supposed to do is try to make one's best judgment in terms of what an unbiased decider of fact would decide. If the public polls are deemed to be based on unbiased opinion, then that should be considered. But if they're deemed to be based on bias, then I think they should be ignored.

    REP. SENSENBRENNER: The gentleman's time has expired.

    The gentlewoman from Texas, Ms. Jackson-Lee.

    REP. SHEILA JACKSON-LEE (D-TX): I thank the chairman very much, and I think it is important as these days come to a close to make all of ourselves clear.

    Let me again clearly state that I find the president's behavior unacceptable and morally wrong. But I take issue with my colleague from South Carolina, who continues to restate the premise that there are no new facts. Unfortunately, what I would offer to say is there's been no new thinking in this room, because as I read the provision "treason and bribery and other high crimes and misdemeanors," I do not hear the claim "treason and bribery and unfit morally."

    So we're discussing actuality apples and oranges for the American people. That confusion causes the divide and the inability for us to come together in a collaborative and bipartisan manner.

    I would offer to say that maybe the panel that is missing here are spiritual leaders who might address the question of the schoolhouse in Texas; to be able to talk about redemption or the fact that "no, liars are not excused and it is wrong"; to teach parents how to teach their children; church houses and synagogues and parishes how to lead America morally.

    But the impeachment process is not a spiritual process, it is a process, in fact, that we must deal with one, the framers' intent, and as these gentlemen, who I applaud for your presence, your intellect and your experience, have come to answer concerns as put forward by the president's defense, so I would like to get to what you're here for -- to present information that is relevant to the impeachment question. That is not a spiritual question, it's not a moral question, but we condemn morally the behavior of the president.

    Now, my friends say there's no new evidence. If they would turn to page 93 in the president's presentation, there's a statement that says there is no evidence that the president obstructed evidence in connection with gifts. But the point is, the independent counsel, Mr. Starr, said the president and Ms. Lewinsky met and discussed what should be done with the gifts subpoenaed by Ms. Lewinsky (sic). Here, the answer -- here is Ms. Lewinsky's testimony, not ever put forward: "He really didn't. He really didn't discuss it." And so you have it where there is an absolute new fact, of which my friends seem to reject.

    Another point is, in the Paula Jones deposition, Mr. Bennett objected to the definition this is a sexual relations or sexual affairs. He was on the record saying, "I think this could really lead to confusion. I think it's important that the record is clear. I do not want my client answering questions not understanding exactly what these folks are talking about."

    Another co-defendant, Danny Ferguson's lawyer said, "Frankly, I think it's a political trick definition -- the definition, and I've told you before how I feel about the political character of this lawsuit."

    Let me ask Mr. Sullivan, Mr. Davis and Mr. Noble, as my time eases on, one, Mr. Davis, give the American people, most of whom have not been charged with crime, never been inside of a grand jury, as to what it is like; whether it ends there with the probative value of that.

    Mr. Sullivan, if you would, if you could remember the question so I could quickly get it answered, you mentioned the fact that it is unlikely to prosecute for these issues for perjury. Say that again for us quickly.

    Mr. Noble, do we have the authority in this proceeding not to go forward if we don't think we have a case?

    Mr. Davis, inside the grand jury room.

    MR. DAVIS: The grand jury is really the instrument of the prosecutor, or they may ask some of their own questions. It really is the agenda of the prosecutor. And what it is not is a vehicle for getting an assessment of the credibility of witnesses that appear there. There is no cross-examination. It is the prosecutor's presentation and really is not sufficient to determine what ultimately will happen in a trial.

    REP. JACKSON LEE: Mr. Sullivan?

    MR. SULLIVAN: The reason, I think, a perjury prosecution on the sexual-relations issue would fail is that the president has clearly explained in detail, and repeatedly, in his grand jury testimony what his understanding of the term meant, when he gave his testimony in the Jones case. And I do not think, in light of the obscure definition and in light of what happened, that it can be said that there is proof beyond a reasonable doubt that he did not honestly have that interpretation.

    REP. SENSENBRENNER: The gentlewoman's time has expired.

    REP. JACKSON: Sorry, Mr. Noble.

    Thank you.

    REP. SENSENBRENNER: The gentleman from Tennessee, Mr. Bryant.

    REP. ED BRYANT (R-TN): I thank the chair, and I thank the distinguished panel.

    I always want to remind those that might be watching that this is the president's defense. And the witnesses who have been testifying the last two days, are all called by his lawyers to testify in his favor.

    I want to commend Mr. Craig for the outstanding strategy he has presented today. He is truly a very fine lawyer. He has brought a defense to us today that this president should not be impeached because he almost committed perjury, obstructed justice, tampered with witnesses, caused someone to false affidavit, but because he didn't actually cross that line exactly, then he should not be impeached.

    This extraordinarily talented wordsmiths, or the extraordinarily talented wordsmiths, and people who can make those extremely sharp distinctions for the president allow him to redefine such words as "sexual relationships," the word "is," the word "alone" and defend this cover-up story with such statements that, actually in this 184- page report, that the cover story of Monica could be that she was delivering papers. And that's because she did, maybe two times of the numerous times that she went there, and she said there was a lot of truth in there.

    Well, there was also a lot of lies in there, in addition to that truth, but again, this is good wordsmanship and I have to commend, again, the counsel for the president for the defense that's been so crafted carefully, and say it is consistent with the president's statement so far.

    Summarizing, though, I would say that the defense of today that he almost did these things is like saying close only counts in horseshoes. I don't think, though, and let me say, I think like Mr. Canady and so many others on this committee, that I think the proof is there that he is -- didn't almost commit these offenses, that in fact, he crossed that line. There's compelling evidence of that.

    But for those who don't agree, who might accept your view, I want to remind the people of the other witnesses who said that you don't have to have a crime to impeach. I think that's unanimous among all the experts who've testified, and as a Congress, if we accept your view, I think we have to be careful that you don't box us in to the Nixon standards or that you don't box us in that there has to be a crime with -- and that a technical defense would escape impeachment.

    I think what we have to look at and what is so important to me was Mr. Craig's statement yesterday, admission on the part of the president that the president, under oath, the chief law enforcement officer, the president who appointed all of us as U.S. attorneys, who appoints the attorney general, the commander in chief, evades the truth, gives incomplete answers to the truth, gives misleading testimony, and he says it's maddening. It's maddening. I think it's sickening. I think it's sickening that the president does this. And for us to allow this president to do that and do damage in a civil rights lawsuit I think is improper, and for Congress to turn the other way and look the other side, I don't think we can do that.

    Now, we all, in the end, have to vote our conscience, but we should not continue to hear about Nixon is the standard, is the threshold. That's not the case. But in the end, I do want to thank you for your able presentation. You've done, again, what you were supposed to do as part of this presentation. I think you've done a good job at it. But again, I think -- I would address my colleagues, let's don't get boxed in this idea that he almost did it, in your view, and we can't impeach. I also, again, would give the disclaimer that I do believe he committed these crimes and I think the evidence is there to show that. And I thank you again.

    REP. SENSENBRENNER: The gentleman's time has expired.

    The gentlewoman from California, Ms. Waters.

    REP. MAXINE WATERS (D-CA): Thank you very much.

    I'd like to thank our panelists for being here today. I am extremely impressed with the way that they have used their very limited time. And I am extremely frustrated. I would like to see each of you take one aspect of these allegations and present a summation about why they're not impeachable, but this process doesn't allow for it, and you're not able to do what you have shown you could do so well because you don't have the time.

    You're sitting here with so-called legal minds and lawyers talking about they want to impeach the president because they are sickened by his actions, they feel his actions are reprehensible, they don't -- they feel they are unacceptable. And we keep trying to make the case they have a right to feel anything they'd like to feel, but just because they are sickened by his actions does not mean they're impeachable. I don't know how we're going to get that message through.

    I think you did a fine job, Mr. Sullivan, of talking about the state of mind of the president and why he could rationally say that he did not have sexual relations, based on the definitions and his belief. He did not consummate the sexual act that he thought was central to sexual relations. And simply because he got on television and said, "I did not have sexual relations," somehow these would-be lawyers on this committee think that he has done something that's impeachable.

    Let's move on to the gifts, Mr. Davis. Betty Currie did not say that she was instructed to go get gifts and burn them up or dump them in the river. If she wanted to obstruct justice, do you think she could not have found a better hiding place than putting them under her bed? Would you illuminate on that as obstruction of justice for us -- just for a minute. And then I've got one more.

    MR. DAVIS: I think there would be both a better hiding place, and in terms of obstruction of justice, I think there's also the significant issue as to the lack of evidence as to the president's real role in that whole process, even when you look at a lot of Ms. Lewinsky's testimony, Betty Currie's testimony, and the president's testimony.

    REP. WATERS: Mr. Dennis, this business about bribery -- somehow there's an attempt to make the case that because there were discussions about jobs, that Miss Lewinsky was trying very much to get a lot of help from anybody she could get it from, to get a job, that somehow there's some bribery involved here and obstruction of justice, because they would like to make the leap that there was an exchange of some kind of information or communication that said, "If you give me this job, I will not" -- or an offer, "If I get you a job, will you not -- ?" Will you help us with that?

    MR. DENNIS: Well, two things I recall -- one from President Clinton's grand jury testimony, which was not challenged, I don't believe, that issues related to her employment were taken up long before she became a witness in the case. It's also my understanding that Miss Lewinsky herself denied that there was any attempt to use help with her employment in order to get her to testify one way or the other. I would think that that would basically close the whole issue.

    REP. WATERS: Exculpatory information that was never presented to us --

    MR. DENNIS: It's right in the record.

    REP. WATERS: -- in this so-called case.

    MR. DENNIS: That's correct.

    REP. WATERS: In addition to that, there were some discussions about conversations with the president and Ms. Currie about trying to remember what was said or what took place. Is there anything in that exchange that would cause us to move toward impeachment because the president said, "Were we ever alone? Do you remember what" -- give us -- would you illuminate on that somewhat, Mr. Noble?

    MR. NOBLE: Again, it's a specific-intent crime, and the question is, what was the president thinking when he said this? We can look at his words and try and analyze his words.

    But Ms. Currie says that she didn't believe he was trying to influence her and that if she'd said something different from him, if she believed something different from him, she would have felt free to say it. So for that reason, I believe, you just don't have the specific intent necessary to prove obstruction of justice with regard to the comment that you just asked me.

    REP. WATERS: Thank you very much.

    Mr. Weld, someone offered that there were other people serving time for perjury, and they gave these piddling little numbers, despite -- we have the kind of population that we have in the country. They did not give you facts in the case of the woman who came before us. Dr. Battalino, I think, is her name. And I think it was not fair to use that and say to you, "See, she was prosecuted. How can you not say the president should be prosecuted?"

    Do you know the facts of that case? If so, could you illuminate on them?

    REP. SENSENBRENNER: The gentlewoman's time has expired.

    Governor, you got a quick answer to that one? (Laughter.)

    MR. WELD: (Chuckles.) Saved by the bell, Mr. Chairman.

    REP. SENSENBRENNER: Okay. The gentleman from Ohio, Mr. Chabot.

    REP. STEVE CHABOT (R-OH): Thank you, Mr. Chairman.

    Mr. Dennis, in your statement you said, and I quote: "I sense an impeachment would prove extremely divisive for the country, inflaming the passions of those who would see impeachment as an attempt to thwart the election process for insubstantial reasons."

    I can assure you that there are many citizens who feel just as passionately that this president deserves to be impeached. Would you acknowledge that that is true?

    MR. DENNIS: I'm sure that passions do run in both directions, high in both directions.

    REP. CHABOT: Thank you.

    Mr. Davis, let me quote from your opening statement as well. You said, and I quote: "Prosecutors often need to assess the veracity of an `I don't recall'" question -- or "answer. The ability to do so will often depend on the nature of the facts at issue. Precise times of meetings, names of people one has met and details of conversations and sequences of events, even if fairly recent, are often difficult to remember."

    Let me ask you this. In your experience, is it common for people to forget things such as whether or not they had sex with somebody or whether or not they were alone with someone? Just yesterday, we were presented with the president's 184-page defense report and were told that the word "alone" is a vague term unless a particular geographic space is identified. Do you find that sort of legal hair-splitting defense helpful? Don't you think that we ought to at least be able to agree that "alone" means you're by yourself, not with anybody?

    MR. DAVIS: I think "alone" in essence means that you're by yourself; but I think that, while you don't forget that you had sex with somebody, I think you have to go back and look at the confusing nature of the answers. What basically was going on, there's no question the president was trying his best to avoid and was playing word games in his deposition.

    REP. CHABOT: Thank you.

    MR. DAVIS: He shouldn't have been doing it, and he was doing it. The issue is, what is the legal consequences now? And that's what we're all struggling with.

    REP. CHABOT: Thank you. I think the president should set a standard for all the citizens in this country, and I think we all ought to be able to agree on what the word "alone" means.

    Mr. Sullivan, in your opening statement, in discussing how much evidence a prosecutor should have before he brings a case to a grand jury, you stated that they should not run cases up the flagpole to see how a jury will react. Do you think it's responsible for a president to take a poll, to, in a sense, run something up a flagpole to see whether or not he ought to tell the truth or lie?

    MR. SULLIVAN: No.

    REP. CHABOT: Thank you.

    Mr. Noble, in your statement you said "Members of Congress should consider the impact of a long and no doubt sensationalized trial, what effect that will have on the country." Should we also consider what the impact that a president committing perjury, obstructing justice, tampering with witnesses, and getting away with it might have on the country, particularly when that president is the chief law enforcement officer and is sworn to uphold the laws in this country and, in fact, is sworn and took an oath himself that he would uphold the laws?

    MR. NOBLE: I believe you ought to consider whether or not you could prove those allegations that you've just made. From my review of the evidence, I don't believe you could prove any of the allegations that you just articulated in front of a jury, and I think you ought to take that into account in deciding whether or not you want to base your impeachment, as I've read, on perjury. You can base your impeachment on whatever you want. But if it's on perjury, I believe you would not be able to sustain a conviction for perjury before a jury in this country.

    REP. CHABOT: Thank you very much. And I -- the final time that I have here, I think as Mr. Bryant just said, it's very important for all of those folks that may be watching the testimony today not to forget that these witnesses were sent here, and I think they've done a very good job. But they're witnesses on behalf of the president, not impartial witnesses. They're advocates. And I think that the president should set a standard that our kids in this country ought to be able to look up to, and we ought to know that the chief law enforcement officer, the president of this country, is somebody that we can respect and who actually tells the truth.

    I yield back the balance of my time.

    REP. HYDE: The gentleman's time has expired.

    The gentleman from Massachusetts, Mr. Meehan.

    REP. MARTIN T. MEEHAN (D-MA): Thank you, Mr. Chairman. Mr. Chairman, Mr. McCollum earlier referred to a case from the United States Court of Appeals in the District of Columbia circuit and seemed to indicate that that case, the ruling in the case, which had been sealed, put to rest the issue of whether or not the president's testimony was material in the Paula Jones case. Well, it just so happens that I got a copy of that ruling that was under seal, and this is not a ruling on that at all. This is a ruling on a motion to quash by Ms. Lewinsky's attorney because Ms. Lewinsky didn't want to testify. This ruling in no way, shape or manner says that the president's testimony was material to the underlying civil case in the Paula Jones-filed lawsuit. So just to set the record straight, and I would ask that this be submitted for the record that members might want to read it.

    REP. HYDE: Without objection, so ordered.

    REP. MEEHAN: Thank you, Mr. Chairman.

    In any event, I'm delighted to see the former Massachusetts governor here back in the public arena -- on the right side. (Laughter.)

    I heard my friend from South Carolina, Mr. Inglis, talk about the high bar over the last few days. The high bar, that Mr. Craig has to make sure that Mr. Craig has to make sure that he gets over that high bar, because it's a very high bar. They're prepared to vote for impeachment of the President of the United States on Saturday. It's the second time we'll have a trial in the United States Senate if the full House goes along with it. And he's talking about the high bar that Mr. Craig has to pass, to get witnesses before this committee to prove the president's innocence.

    Now, Governor Weld, you're a former prosecutor.

    I am sure that you have heard many on the other side say that this is sort of like a grand jury proceeding.

    Now, have you ever had a case where you as the prosecutor appeared before a grand jury and gave your presentation as to why you thought a defendant had committed crime yet called no material witnesses -- no witnesses -- yet, nonetheless, you got an indictment?

    I don't subscribe to this theory, but let's assume we are in the grand jury system. Have you --

    MR. WELD: I have had cases where the case went in through an agent at the grand jury and a lot of the agent's testimony would be hearsay. He would be a cumulative witness.

    REP. MEEHAN: But you have never had a case where you didn't appear -- where you didn't present basically a forensic case -- you never went in, said, "We should indict this person"?

    MR. WELD: I don't think you'd get too far that way, Mr. Congressman.

    REP. MEEHAN: Right.

    But apparently though, Governor Weld, you do here is the point because we haven't heard from a material witness yet. And I hear the other side saying: "Wait a minute. The Democrats, the president, they haven't brought a material witness here. They should prove the president's innocence."

    Isn't the fact of the matter in a judicial proceeding, any judicial proceeding, that the prosecution or the person seeking to pass that high bar has the obligation to provide the material witnesses? Mr. Sullivan, isn't that the way our system works?

    MR. SULLIVAN (?): Yes.

    MR. DAVIS: It clearly works and must. And indeed, I think that the burden to proceed with an impeachment should have a higher evidentiary threshold than the burden for a prosecutor to bring a criminal case, because of the consequences of impeachment -- are such more important national --

    REP. MEEHAN: Let me go on to another instance. There is all of this obstruction of justice that is being thrown around here, as if we had a case of obstruction of justice.

    And there is a talk about who initiated the events relative to the gifts, who transferred the gifts? Betty Currie testified before the grand jury that Ms. Lewinsky called her and asked her to come over and pick up the gifts. Monica Lewinsky claimed that Ms. Currie made the initial phone call.

    Now, I know this is probably hard to believe. But one of the Articles of Impeachment are going to be on obstruction of justice, but this committee has never called either one of them to try to determine what the truth is.

    Now, Mr. Sullivan, have you ever heard of drafting an Article of Impeachment where there is a conflict in the facts, like on this particular instance, and we didn't call either one of the witnesses to try to correct what the grand jury testimony says?

    MR. SULLIVAN: Well, no, but let me ---

    REP. HYDE: The gentleman's time has expired. Can you answer briefly?

    MR. SULLIVAN: Yeah, I can, Mr. Hyde. Even if you take what Miss Lewinsky said when she talked to the president about what to do with the gifts, you wouldn't have a case, because she says he said, "I don't know," or "Let me think about it." That's all. That's the total sum of what Lewinsky said Mr. Clinton said.

    MR. MEEHAN: Thank you, Mr. Sullivan.

    REP. HYDE: The gentleman from Georgia, Mr. Barr. And, Mr. Barr, would you yield to me just briefly.

    REP. BOB BARR (R-GA): Certainly.

    REP. HYDE: Mr. Davis, in law, if you have a prima facia case, the burden then shifts to the other side to come forward with some evidence, does it not?

    MR. DAVIS: Well, not really. In order -- the burden in a criminal case always remains on the prosecutor to show proof beyond a reasonable doubt. And that burden stays with the prosecutor from beginning to end.

    REP. HYDE: Well, I understand that, but can you be critical of not producing witnesses when you have 60,000 pages of under-oath testimony, deposition testimony, grand jury testimony? Are you not entitled to take that into consideration? And then if you reject that, if you think that's wrong, don't you have some obligation to come forward yourself with a scintilla -- by the way, what is a scintilla?

    (Laughter.)

    MR. DAVID: A scintilla is very little. But I think --

    REP. HYDE: Well, don't you think you'd have an obligation to come forth with a scintilla of evidence invalidating the 60,000 pages that the independent counsel has developed?

    MR. DAVIS: It's not a question of the number of pages. The real issue is whether those pages were uncontradicted facts is to which there's no factual issue. The problem here is that when you have--

    REP. BARR: Mr. Chairman, I'm going to have to reclaim my time. I have some matters to go over here, with all due respect. (Laughter.)

    (Cross talk.)

    REP. ROTHMAN: Mr. Chairman, let the witness finish his answer please.

    REP. HYDE: Well, he's been very generous, please.

    REP. BARR: Mr. Chairman.

    REP. SCOTT: Mr. Chairman, I'd ask unanimous consent that you be allowed to finish and Mr. Barr's time be restored.

    REP. BARR: Mr. Chairman, could we restart the clock then? If they want to give this gentleman time to answer the question, let him answer and then restart the time for me. That's fine with me.

    REP. HYDE: Please, please. On nobody's time but the chair's time, the gentleman may finish his answer. And it's not -- we'll start again with Mr. Barr. I want to be fair.

    REP. BARR: Thank you, Mr. Chairman.

    REP. HYDE: And I really intruded in his questioning. Go ahead, Mr. Davis.

    MR. DAVIS: I think it does depend upon what's in those 60,000 pages.

    REP. HYDE: Of course.

    MR. DAVIS: If there are conflicts that are revealed so that there are factual issues, the issue then becomes credibility. And credibility is important.

    REP. HYDE: Sure.

    MR. DAVIS: And even as Mr. Starr recognized, he didn't want to give immunity to Miss Lewinsky unless he saw her. Of course, actually he didn't see her. He wanted his office to see her.

    So if you're going to make credibility judgments, and as to a number of these issues, there are credibility issues, that's when it becomes important for the person with the responsibility for making the decision -- and that is in this case this committee -- in my view to actually test the credibility of the witnesses.

    REP. HYDE: And of course, where there's no conflict, that isn't an issue; isn't that so?

    MR. DAVIS: If there is no conflict --

    REP. HYDE: Yes, no conflict.

    MR. DAVIS: -- then it's a question of the significance of what is said and understanding that.

    REP. HYDE: Right. Thank you.

       


    Now, forgive me, Mr. Barr. I won't do that again. You'll start all over.

    REP. BARR: (Chuckles.) Mr. Chairman, if you can ask questions and then start the time for me, you can do that anytime you want.

    REP. HYDE: All right!

    REP. BARR: Thank you, Mr. Chairman.

    I know Mr. Craig is here. And I don't know whether he is delighted or dismayed by the panel today, because after promising us yesterday that we would not be hearing technicalities and legalities, that's all we hear today. And that's fine. We have a panel of very distinguished criminal attorneys here, and that is the essence of criminal law, finding clever ways to parse words and definitions, and so forth, and determine why certain principles don't apply, and I understand that.

    But we really have gone, Mr. Chairman, today from the technical to the absurd. From the technical, we have lawyers here that would apparently agonize greatly over a definition of "sexual relations" that is very, very broad, uses terms that are deliberately broad to encompass a whole range of activities -- using the term "any person". Now, to Mr. Sullivan, "any person" may not mean any person, but I think to the average person of common sense it would. So we still have this legal, technical parsing over definitions and words that really leaves us precisely where we were before Mr. Craig made a promise yesterday that we would have no more technicalities and legalities to hang our hats on.

    We have gone then to the absurd, Mr. Chairman, and that is the preposterous presumption or scenario that the president, in talking with Ms. Currie the day after he gave his grand jury testimony -- or his testimony in his deposition before the court, was really acting as her attorney. Because according to Mr. Sullivan, it is entirely proper for an attorney to go over somebody's testimony in advance of that testimony to make sure that it fits. I don't think the president was contemplating serving as her attorney, nor do I think that Ms. Currie was contemplating hiring the president for that purpose.

    Therefore, we'd have to look elsewhere, and the elsewhere is that he was trying to coach her and that fits within the definition, in the statute, of tampering.

    For those on this panel, all of whom have tremendous and very noted experience in dealing with criminal law, many including dealing with very serious drug cases, I would ask them rhetorically, since they seem so enamored of the propriety of evasive and crafty answers being the tools in trade of an attorney, why they would find it interesting -- or maybe they wouldn't -- that the acting deputy administrator of the Drug Enforcement Administration -- for whom, I would presume, you would all agree it is important to have agents testifying in court, testify truthfully -- why that deputy administrator believed it necessary on September 15th of this year in a memo to all DEA personnel admonishing them -- and I've never seen a memo like this before -- admonishing them, quote, ""Evasive or craftily worded phrases, testimony or documents designed to omit or distort key facts are similarly unacceptable and will not be tolerated. Making false statements in any matter or context is completely unacceptable and will not be tolerated."

    That, I think, Mr. Noble -- and I noticed you did not answer the specific question put to you, by, I think it was my colleague and another former U.S. attorney, Mr. Bryant -- that is why this case is so important. Not necessarily that we know for a fact that there are DEA agents out there developing crafty or evasive answers to be used in court, but apparently the head of one of our preeminent law enforcement agencies, because of the president, the chief law enforcement officer, using crafty and evasive answers in court before judges, because that sets a certain standard.

    That is why it's important that we are here today, that is why it's important why we're here today, not to argue over the technicalities, niceties and legalities of whether or not a specific case of perjury can be made, but because of the damage that is already being done to our law enforcement by having a president who excels at evasive and crafty answers that, in the case of the average DEA agent, would be unacceptable, would get them thrown out of court and probably cashiered from the government. That's why this is important, and Mr. Craig, shame on you for putting together a panel here of technicalities and legalities when you promised us yesterday there'd be no more of that.

    (Groans, faint applause.)

    REP. HYDE: The gentleman's time has expired. The chair would appreciate no demonstrations, although we've had them, but we can get along better without them.

    Mr. Delahunt.

    REP. BILL DELAHUNT (D-MA): Thank you, Mr. Chairman.

    You know, I want to speak to the issues of technicalities and legalities and what have you because I think it's important, when we speak about the rule of law, oftentimes we're talking about technicalities and questionable legalities because it's embedded in our Constitution that there are certain standards and requirements. Is that a fair statement, Mr. Sullivan?

    MR. SULLIVAN: Yes, and it's --

    REP. DELAHUNT: This is not about technicalities.

    MR. SULLIVAN: It is -- in response to what Mr. Barr said, and somewhat --

    REP. DELAHUNT: Mr. Sullivan, I'm just going to speak to you because I want to have a little --

    MR. SULLIVAN: It is interesting to me because in my experience, persons who make such statements, when they become the subject or the object of investigation --

    REP. DELAHUNT: Correct.

    MR. SULLIVAN: -- are the first ones to get the mantle of the constitutional protections, wrap them around them --

    REP. DELAHUNT: Right, and start yelling about technicalities and legalities.

    MR. SULLIVAN: -- insisting on their rights. And you don't hear that kind of a speech from them anymore when they hire me to defend them; I can guarantee you that. (Laughter.)

    REP. DELAHUNT: Right. Thank you.

    Let's talk about perjury. To evade is not to perjure, is it, Mr. Sullivan?

    MR. SULLIVAN: No.

    REP. DELAHUNT: To obfuscate is not to perjure.

    MR. SULLIVAN: No.

    REP. DELAHUNT: To be non-responsive is not to perjure either; it's not a crime, is it?

    MR. SULLIVAN: No, it is not. The definition of perjury and the proof required to prove perjury is very specific, very technical, and properly so.

    REP. DELAHUNT: Right. However it might be maddening, it might be frustrating, it might not be right, it might very well be immoral, but it's not a crime.

    MR. SULLIVAN: The criminal code is not enacted to enforce a code of morality.

    REP. DELAHUNT: You know, I was listening to my friend from Tennessee, Mr. Bryant, and I thought his comments were interesting. You know, the "almost did it" theory. You know, I don't think he and I disagree all that much. I do think, however, that there are ways to deal with a president who has evaded, who has been non-responsive and who has obfuscated the truth. And I suggest that there are alternatives that are open to this Congress to deal with that particular issue.

    You know, I think it was Mr. Chabot that raised the issue about recollection and forgetfulness. You're all experienced trial lawyers. We know as human beings that memories -- people can answer in good faith and memories can fail.

    Is that a fair statement, Mr. Sullivan?

    MR. SULLIVAN: Of course it is.

    REP. DELAHUNT: Well, I just want to submit this for the record, because hearing the issue being raised yesterday or several days ago, I went back to the testimony that was provided by Kenneth Starr. And according to my review, the independent counsel expressed difficulties in recalling information at least 30 times during the course of his testimony. And it's fully detailed here, and I want to submit it, Mr. Chairman, for the record.

    REP. HYDE: Without objection, may be received.

    REP. DELAHUNT: You know, I think it's important to -- also to note that credibility is an issue here, Mr. Davis. It's a real issue. And I think it's important to note too that the majority, represented by Mr. Schippers, has acknowledged that in their report to this committee. I'm going to read to you his statement. "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."

    Would suggest that it's an obligation of this committee to make that assessment before we proceed?

    MR. DAVIS: I believe it is, because you're the people who have to be comfortable that there is sufficient evidence to establish what is put in a piece of paper --

    REP. DELAHUNT: Miss Lewinsky has on numerous occasions lied, if you have read the -- if you accept the transmittal by Mr. Starr.

    MR. DAVIS: I think Mr. Starr's transmittal references that.

    REP. DELAHUNT: And earlier Mr. McCollum talked about nine corroborative witnesses. My memory of the Starr communication is that she told different stories to different people.

    MR. DAVIS: I think they're set out there, and as I said before, it's also just the same -- if she had a preconception or motivation to tell a false statement in the grand jury, it was the same with those people, in any event.

    REP. HYDE: The gentleman's time has expired.

    The gentleman from Tennessee, Mr. Jenkins.

    REP. BILL JENKINS (R-TN): Thank you, Mr. Chairman.

    And let me say to this panel, thanks. Mr. Chairman, I regard this as a very able panel, and I suppose you saved, Mr. Craig, the best till last, a very bright panel.

    And I certainly -- I feel like I would be unarmed to get engaged in any mental gymnastics with any member of the panel.

    But you've all announced that you're here as witnesses, not advocates. You are advocates in a sense as witnesses. And I suppose the tendency for all of us who practice law or been judges is to get back in the arena.

    The last two or three panel members I think have gone in the direction that we need to continue to go in. They've talked about getting away from legalistics, talked about getting away from lawyer talk, and talked about talking about things that the American public would understand. Now, I've got a question along those lines. I'd like to ask Mr. Sullivan.

    Mr. Sullivan, you testified that you had read from the president's deposition that he had denied that he had sex with somebody based on the interpretation of sex --

    MR. SULLIVAN: In the grand jury testimony.

    REP. JENKINS: -- in the grand jury testimony.

    MR. SULLIVAN: Right. The grand jury testimony about his deposition testimony.

    REP. JENKINS: And you commented that you thought the president's interpretation was reasonable. Is that --

    MR. SULLIVAN: No. No, I said it is not -- yeah, I think it's a reasonable interpretation, and that it was -- he insists that that is his interpretation. And it seemed to me, given the necessity of proof beyond a reasonable doubt that he thought he was telling a lie, that you could not make a criminal case against him.

    REP. JENKINS: Well, now, this is a solemn matter, and I want to keep it that way. But for those people across this land who are viewing this, now, I want to ask you if -- you've come down here and testified. And actually what -- when it comes down, when you pull the shuck back and look at the corn, what you're asking the American people to believe is that we've got a guy down at 1600 Pennsylvania Avenue who's smart enough to get himself elected, who's smart enough to serve as President of the United States, and he doesn't know what sex is.

    MR. SULLIVAN: No, I'm not suggesting that at all. It's absolutely not what I'm saying. I have said it three or four times. The judge in the Jones case gave a specific definition of the term "sexual relations." She deleted two sentences that specifically read on, as the patent lawyers say, oral sex. The president said in his mind that took oral sex out of it, and that what was left was, we would call it normal sexual intercourse. And he said "That is the definition I was responding to." Now, you can say "That's silly, that's ridiculous, I don't believe it," but that's what he says. And it seems to me that if you were to bring this as a criminal case with that background in mind and what was left in that definition, you can't make a case. That's all I'm saying.

    REP. JENKINS: Well, you and Mr. Noble have both indicated that you don't believe -- and perhaps other -- I guess other panel members have indicated that --

    MR. NOBLE: (Off mike.)

    REP. JENKINS: Well I haven't asked you to, Mr. Noble.

    MR. NOBLE: I thought you just mentioned my name. I'm sorry. I apologize.

    REP. JENKINS: Wait just a minute and I'll try to give you an opportunity. I'm about to burn up all the time I have.

    But do you know anything, Mr. Sullivan, about the Battalino case, the lady who came here and testified?

    MR. SULLIVAN: Just what I've read in the newspapers about it. I did not --

    REP. JENKINS: So you're not -- you're not able to compare --

    MR. SULLIVAN: No -- well, I could compare it this way, that in the cases that have been referred to -- I have not heard of any in which it is analogous to this case where the witness's testimony was peripheral to the issues in the case, the alleged perjury was not dealing with the specific facts like of the Jones case, but of some other peripheral case that might not even be admissible in evidence.

    REP. HYDE: The gentleman's time --

    REP. JENKINS: Thank you, Mr. Sullivan. My time has expired.

    REP. HYDE: The gentleman's time has expired.

    Mr. Wexler?

    REP. ROBERT WEXLER (D-FL): Thank you, Mr. Chairman.

    Mr. Sullivan, I was very struck by your testimony in terms of your examination of the allegations against the president because it seems to me one of the most critical elements against the president's and the president's lawyers' in this process is that they have engaged in legal hair-splitting, and they have been condemned for it, and in some cases maybe appropriately so.

    But as you analyzed the nature of the case against the president with respect to perjury, what struck me was it seems that in order to make that same very case against the president, you have to engage in legal hair-splitting to do so. Because when it all comes down to that very essence of the case against the president on perjury, it comes down to a discrepancy -- a discrepancy between the testimony of the president and Ms. Lewinsky over the precise nature of the physical contact involved in their relationship. The president, on the one hand, at the grand jury says, "I had an intimate relationship, an inappropriate intimate relationship with Ms. Lewinsky that was physical in nature."

    And he goes on to say it was wrong, and then, of course, as you have pointed out here today on several occasions, he denied, in essence, having sexual relations as it was defined by the judge. Miss Lewinsky, on the other hand, in response to the independent counsel's several questions, goes into graphic detail in recollection of her encounters with the president. That's what it seems the perjury is all about.

    But let's take the advice of the members on the other side. Throw away the legal technicalities, throw away the requirements that the law provides we prove for perjury. Forget all about that. Tell the American people what is the false statement that the president allegedly made to the grand jury? Forget the consequences, forget the law. What is the false statement?

    MR. SULLIVAN: Well, if you -- it could be one of two. It could be when he denied having sexual relations and I've already addressed that, because he said, "I was defining the term as the judge told me to define it and as I understood it," which I think is a reasonable explanation. The other is whether or not he touched her -- touched her breast or some other part of her body, not through her clothing, but directly. And he says, "I didn't," and she said, "I (sic) did," so it's who-shot-John. It's, it's, you know, it's a one on one.

    The corroborative evidence that the prosecutor would have to have there, which is required in a perjury case -- you can't do it one on one, and no good prosecutor would bring a case with, you know, I say black, you say white -- would be the fact that they were together alone and she performed oral sex on him. I think that is not sufficient under the circumstances of this case to demonstrate that there was any other touching by the president and therefore he committed this -- you know, he violated this -- and committed perjury.

    REP. WEXLER: Well, Mr. Sullivan, I only hope that a vast majority of Americans have heard your answer right now. What this is about, at its worst, is the president making false statements about sexual relations and about where he touched Monica Lewinsky?

    That's what the alleged perjury is about. I hope I am not misstating what your answer was.

    MR. SULLIVAN: No, you're not. What the other side is saying is that perjury in any regard is so important that the president oughtn't to engage in it, and we can all probably agree with that. The issue for you is whether or not it justifies impeachment.

    REP. WEXLER: I agree. I agree.

    So it's about sexual relations, and it's about touching. And now we are about to impeach a president because we think he gave false answers about sexual relations and about touching. How many times does it have to be said? How many times do we, the Congress of the United States, have to now set up a standard that says the president may have falsely told us an answer about sexual relations and about touching, and now we are going to impeach him?

    Thank you.

    REP. HYDE: The gentleman's time has expired.

    The gentleman from Arkansas, Mr. Hutchinson.

    REP. ASA HUTCHINSON (R-AR): The investigation was opened up because of a concern about an attempt to obstruct and suborn perjury in a civil proceeding in which a plaintiff that had a right to bring a suit, that the courts determined had a right to bring a suit, was pursuing that. And our review is looking into those allegations of obstruction of justice and perjury.

    There are some questions raised about whether Monica Lewinsky is truthful or not, and I think that's a legitimate question that can be raised. But I think she does have an incentive for telling the truth.

    I have here before me the immunity agreement, which I have seen before, and these witnesses have seen before, as well, that said that if Ms. Lewinsky has intentionally given false, incomplete or misleading information or testimony, she would be subject to prosecution for any federal criminal violation. And so certainly she has immunity, would you agree, Mr. Sullivan, but if she does not tell the truth, then she would be subject to prosecution?

    MR. SULLIVAN: If that's the standard use-immunity agreement, that is correct.

    REP. HUTCHINSON: Now, I believe, Mr. Sullivan, going to your testimony, you talked about prosecutions for perjury are relatively rare, difficult to prove, and the United States does not do it generally in pursuit of civil litigation.

    And we got the statistics for federal prosecutions. And I think Governor Weld mentioned this, that he didn't believe that they were that rare.

    And in fact, in 1993 there were more federal perjury prosecutions by United States attorney than there were kidnapping prosecutions. I don't think that means that kidnapping is not significant. In '94, the same fact was true; there were more perjury prosecutions -- ('93/93 ?) -- than there were kidnapping prosecutions. The same in '95. It's really a pattern that goes back to the 1960s. And I wish I could give credit to all of my staff that did such great work, but talking about United States attorneys prosecuting perjury in civil litigation, here's a stack of cases. Now, I could go through them, but I only have five minutes. And so I won't take advantage of that. I did find one in Illinois and in different parts of the country. But a rather impressive arena of cases in which U.S. attorneys prosecute perjury in civil cases.

    Now, I agree with your point that sometimes there's a history behind it, but I think there's a history here in this case, as well. There's an investigation of obstruction of justice.

    Now Mr. Sullivan, you mentioned that it was in a peripheral matter. Am I correctly --

    MR. SULLIVAN: Yes. Yes.

    REP. HUTCHINSON: Has anyone on this panel ever represented a woman as a plaintiff in a sexual harassment case? (Pause.) If you have, raise your hand. Well, I have. And whenever you look at the most difficult thing in a sexual harassment case, it would be to prove who's telling the truth. And many times you have to go to a pattern of conduct because there's a denial. And so if you try to prove a pattern of conduct, you've got to ask questions in a deposition as to what has happened in the past. And I don't think that's a peripheral matter. I don't think you can make sexual harassment cases if you do not ask those questions. And when the president in that deposition denied ever having in his lifetime sexually harassed a woman, is that a material statement in the civil deposition? And I invite your answers.

    MR. DAVIS: Well, I think, you know, the issue is -- I don't think, I don't think -- believe it is, because --

    REP. HUTCHINSON: The question is, is it material?

    MR. DAVIS: No, I don't think it's material, because you're entitled to ask the question under the broad discovery rules, but the question is -- was, if a truthful answer here would have revealed the true facts, would it have been admissible in that Jones case?

    REP. HUTCHINSON: If he had admitted he had sexually harassed someone, you don't think that --

    MR. DAVIS: No, no. Actually, the truth is it would not have been because it would not have been admissible in the Jones case.

    REP. HUTCHINSON: Does anyone disagree that that would be a material statement?

    Do you disagree, Mr. Noble?

    MR. NOBLE: I'm sorry, maybe I misunderstood the question. But -- and I don't know the record to reflect this question, but if your hypothetical question is: In a sexual harassment suit, if a person is asked "Have you ever sexually harassed someone?" would that be material, I believe it would be material.

    REP. HUTCHINSON: Okay. Would anybody else agree with Mr. Noble, who gave a very straightforward answer? I know you all haven't handled sexual harassment cases; perhaps that's a little bit of a disadvantage. But I thank you for your testimony.

    REP. HYDE: The gentleman's time has expired.

    The gentleman from New Jersey, Mr. Rothman.

    REP. STEVE ROTHMAN (D-NJ): Thank you, Mr. Chairman.

    Let me start off by saying that with respect to my colleagues on the other side of the aisle, I don't think it aids the search for truth to demonize the White House counsel. Mr. Craig said that he was going to be presenting us with some factual rebuttal to the factual arguments made by Mr. Starr. As I've read the 184 pages of the White House submission, there are pages 70 through 89 and pages 93 through 182 which address each and every one of the factual charges made by Mr. Starr.

    So what we now have is Mr. Starr, who was a witness to no facts, making his statements, 450 pages in writing and then 2-1/2 hours in his initial testimony, and we have Mr. Kendall, who made several written rebuttals, and now this 184-page rebuttal to all the facts, neither of which are admissible in a court of law, as we all know and have accepted the testimony of these experts. And we're left without one single fact-witness to help us clarify when Monica Lewinsky was telling the truth and when she wasn't, because Mr. Starr said -- Judge Starr said sometimes she was telling the truth and sometimes she wasn't. But no fact witnesses have yet been called to aid us in finding the truth.

    But we all agree that there is a basic, fundamental American notion of due process and fairness; that those bringing charges must bear the burden of proof, and in this instance, it is a clear and convincing standard of proof. Yet not one single fact-witness has yet been presented. That will be telling, unless it's remedied, my friends.

    But I understand, though, that my colleagues on the other side of the aisle, despite the fact that these distinguished prosecutors have said they would never bring a criminal indictment on these matters -- and remember the standard is "treason, bribery or other high crimes or misdemeanors" -- they wouldn't bring an indictment on these alleged crimes. But my colleagues say that, well, even if it wasn't a crime, it's a pattern of lying, it violates -- it's not right. Well, I'm not sure that the standard is "treason, bribery, high crimes, misdemeanors, evasiveness and lack of respectability." Although some might argue that "high crimes and misdemeanors" should say that, it doesn't say that.

    With regards to the rule of law, we've said many times President Clinton has already paid or will pay an $850,000 fine, or settled his case for $850,000.

    In a civil case, that's not an incentive to lie in a civil case. He can be sued criminally once he leaves office and go to prison if the charges against him were proven true. That's certainly no incentive to anyone to lie under oath in a criminal -- in any proceeding. And the rule of law is upheld because the president is not above the law. He can be sued civilly and criminally, and our kids know that. And this whole process has demonstrated that.

    The question for our committee and for all of America is to decide, if no reasonable prosecutor would bring these matters up for a crime, how could it be a high crime or misdemeanor? Should we interpret, say the Founders got it wrong, that they should have added "evasiveness" as a high crime or misdemeanor, or "lack of respectability" as a high crime and misdemeanor? Some might argue yes, some might argue no. What we have to be aware of is the consequences to our nation if we expand on that definition when we already know the president can be punished civilly, as he has been in the settlement, and criminally by going to prison if the charges are proven against him.

    I yield back the balance of my time.

    REP. HYDE: I thank the gentleman.

    The gentleman from Indiana, Mr. Pease.

    REP. ED PEASE (R-IN): Thank you, Mr. Chairman. I have a few questions and then an observation.

    I wanted to -- well, first of all, let me say I have found this panel very helpful on the questions dealing with criminal prosecutions. I understand that there is a difference between criminal prosecutions and impeachment. But on the questions of criminal prosecutions and the parallels that may be argued, I am grateful.

    I wanted to be certain -- let me back up. I especially -- without diminishing the work done by any of you, I especially want to thank Mr. Noble, whose presentation was most helpful to me, and I had some follow-up questions I wanted to ask you based on questions that you were asked by other panelists but didn't get the chance to conclude. And the first deals with questions from Mr. Boucher on the standards that are used, or the -- the standards that are used in assessing when to prosecute cases where there is a high profile potential defendant. Can you share with us the standards in the Department of Justice in those cases?

    MR. NOBLE: I must say I'm humbled to answer this, because on my left was the assistant attorney general from the Criminal Division when I was an assistant U.S. attorney and on my right was a U.S. attorney and the assistant attorney general for the Criminal Division. So I will see if I learned anything from these two wise fellows.

    As soon as you get an allegation that there is a political figure who has engaged in criminal activity, as a U.S. attorney or as a prosecutor, one of the first things you will think about is: Will people have confidence that my office's investigation of this will be deemed independent and unbiased? You ask yourself that before you do anything. Can my office handle this? Or should I send it to the criminal justice -- to the Justice Department's Criminal Division in Washington and have Mr. Weld or people from Public Integrity handle it?

    And then you want to know who is the person bringing it. Does he or she have a bias, a stake in this -- the outcome of this matter? And if it's a matter involving parties that are already involved in a dispute, you've got to worry about that.

    And how did this person become aware of this information, if -- in the case of someone cooperating with you, one of your informants, giving information to someone and having that information lead to possible criminal activity, like a perjury trap? All of the considerations, so that after all is said and done, a rational citizen who's looking at you -- I can't help the fact that I was asked by the Democrats to be here; if the Republicans had asked me to come, I would have come willingly -- but that a rational, independent person would say, "Yes, I can look at the evidence and see why this prosecution's brought."

    No rational, seasoned prosecutor would bring any criminal prosecution against any person for perjury or obstruction of justice, based on the evidence I've seen. And I'm thankful of that, and we should all be thankful of that, because if you want to prosecute me, prosecute me for something I did, but not for something you thought I did. If I've got a weird thought process, don't prosecute me criminally for it; say that I'm a weird person and disassociate yourself from me.

    REP. PEASE: Thank you, Mr. Noble. And I appreciate your efforts to be concise.

    I don't know if this question was directed to you or to the panel, but Mr. Boucher was getting into the question of whether dismissal of a case terminates the authority of a court to sanction parties or witnesses. And I don't know that that was addressed, and I would appreciate it if someone could.

    MR. SULLIVAN: I addressed that. I said that there is inherent power under the Supreme Court decision and that I do not know that -- whether or not the dismissal of the case terminates --

    REP. PEASE: That's my question. So you don't know --

    MR. SULLIVAN: I do not know.

    REP. PEASE: Does anybody else have a response or a thought on that?

    MR. NOBLE: I believe that she does not lose jurisdiction to investigate and recommend the prosecution or hold criminal contempt hearings for anyone that might have engaged in criminal conduct during the time period that she had this matter.

    REP. PEASE: I also, as I began, want to thank all of you.

    It's been -- your presentation has been very helpful in understanding the issues surrounding charging and conviction in criminal matters. I'm concerned, though, that we not assume that either the standards in a criminal prosecution or the burden of proof or the procedures employed are the same as those which face this committee.

    A criminal prosecution is not the same as an impeachment and we should not succumb to an argument that because a criminal prosecution might not succeed that Congress is unable to act under its constitutional obligation regarding impeachment. No matter my eventual conclusion on the matters before us, I'm not prepared to say that the expected standard of conduct for an American president is simply that he or she may not be indictable.

    I yield the balance of my time.

    REP. HYDE: I thank the gentleman. The gentleman from Wisconsin, Mr. Barrett.

    REP. THOMAS BARRETT (D-WI): Thank you, Mr. Chairman. Mr. Sullivan, you indicated in your testimony that you did not think that this would be a case that would be brought by a United States attorney for perjury. We have heard many -- many witnesses and many members saying that the president, when he leaves office, is open to criminal prosecution. The sense of the American people, I think, remains that the president did something wrong, that he should be held accountable for his actions and that he should not be impeached.

    So in your discussion, where is the justice? In this case, in the civil suit, since every one of us would explore not telling the truth, or lying, where is the justice, in your analysis here?

    MR. SULLIVAN: Well, we live in an imperfect world, and justice is not always achieved in this world. We sometimes have to wait and hope. But all I'm saying is that the law -- you have to follow the law. If the law provides that the president can be indicted after he leaves office, and if some prosecutor wants to take this up who has jurisdiction over it, they may -- they may reach a different conclusion than I do. I doubt that a responsible prosecutor would bring a perjury case against the president on these facts. Now, I think that the -- I mean, look what the man has already gone through, though. I mean, we're sitting here, the third time in the history of the country that they're considering removing a president from office.

    It seems to me that there's been terrible retribution on this man for what he did.

    REP. BARRETT: Well, let's take the president out of it, and let's leave it as a civil case where a person has lied. Where's the justice system work in this case if a person in the civil case has lied under oath or misrepresented themselves or obfuscated the facts? Tell me where the justice comes into the system, if there is not going to be perjury. There has to be justice. We can't just say, well, that's the way it goes.

    MR. SULLIVAN: Well, in the -- we're talking about the Jones civil case. And in that case, after the president made his disclosures and Monica Lewinsky made her disclosures and the cases had been dismissed, but before it was decided by the Court of Appeals Ms. Jones settled the case. So it seems to me it's washed away, because she, then, knew at the time she settled that if that evidence was going to be admissible, you know, she would take that into consideration in determining the amount of her settlement. The case was thrown out, as I understand, for reasons entirely different, that she couldn't demonstrate that there was any connection between what may have happened in her -- detriment to her in any employment.

    REP. BARRETT: Do you think that the amount of the settlement reflects some of that? It was --

    MR. SULLIVAN: Well, I think that Ms. Jones, she voluntarily took that settlement in light of all the facts, including the facts that we are now talking about today.

    REP. BARRETT: Okay.

    Mr. Weld, you've offered some interesting observations, I think, one of which was the notion of a fine. And I've heard commentators talk about a plea bargain or a deal. And I bristle when I hear those words, because I do think that this is a vote of conscience and that every member on both sides of the aisle should be listening to their conscience and be guided by that.

    I also am mindful of the fact that we cannot impose a fine on the President of the United States, that there are bill of attainer problems. How conceivable do you think it is that the president, if we were to censure him, would come forward and say "I recognize that as part of the process I should reimburse the Treasury for part of this investigation"?

    MR. WELD: Well, politically, I guess, I had anticipated that all that might be the subject of negotiation before the votes were taken. I was trying to think of things that would mark the solemnity of the occasion, do justice to the dignity of the House and its role, having the sole power of impeachment. And it would say to the American people there has been justice here, this person, this president has paid a penalty here short of being removed from office, which I think we've kind of slid by that one.

    But the fine, the written acknowledgment of wrongdoing and the exposure to future criminal prosecution, as well as a censure, and a Starr report as the committee or the House wished to put on the public record in perpetuity, those are the five things I could think of to mark the event.

    REP. BARRETT: Okay. My time has expired.

    REP. HYDE: The gentleman's time has expired.

    REP. BARRETT: Thank you, Mr. Chairman.

    REP. HYDE: The gentleman from Utah, Mr. Cannon.

    MR. CHRISTOPHER B. CANNON (R-UT): Thank you, Mr. Chairman.

    I would like to begin by thanking this panel today. This is an important issue, and I think your presence has added weight to the issue. And I appreciate your comments and testimony.

    I would also like to just point out at the very beginning that, without any parsing of words or equivocation, I agree with my friend Mr. Delahunt and with the comments by Mr. Sullivan, that the essence of the rule of law lies in the technicalities, and the technicalities are very, very important for us here.

    Now, I'd like to refer to some of the things that my good friend Ms. Lofgren commented on earlier. Ms. Lofgren and I are on two subcommittees of this committee, together, and I have the greatest respect for the way she thinks.

    She said or pointed out that perjury about sex is relevant essentially -- and I am paraphrasing -- is relevant to this side because it's a crime, and then went on to point out some of the technical elements of the crime that may in fact be missing here.

    And the first is that -- there was the suggestion that the person who administered the oath to the president may not have been authorized to do so. I think that was rebutted fairly effectively by Mr. Buyer, and I agree with his responses.

    Secondly, she said that the question must be unambiguous. Now, I don't read the statute as requiring an unambiguous question, but I think the perjury ultimately has to be quite clear.

    Later, Mr. Sullivan, I think in response to some of this questioning, suggested that the president can defend on the basis that the definition was changed -- that is, the definition of "sex" -- and that the new definition may somehow have excluded a certain act or type of sex.

    Let me just suggest in response to that, that I have read that definition very carefully, as I think many of the members of this committee have. The president pointed out that he answered the question very carefully, because he answered the question in the context of the definition that he read very carefully. And obviously, minds can disagree on this sort of thing, but I just don't see how you could exclude that particular act from the definition that remained after the striking of the two sentences.

    Now a lot has been said about whether or not the president could be prosecuted for this crime, where these technical defenses may be relevant. But I think the real potential for understanding the likelihood of a criminal prosecution actually lies in the president's own actions. He refuses to acknowledge or deny the underlying facts of the case, and it's like there's an allergy to the L-word. Mr. Craig yesterday said, in answer to a question, "No, he deceived, he misled, but he did not lie." Later, "No, he was technically accurate, but he did not disclose information."

    This -- I mean, I think all the commentators in the editorial pages have pointed out that the president is caught between the Fifth Amendment and coming clean with the American public. And I think it's his actions, the fact that he won't deal with the facts of the case, that make it clear to me that there may actually be, in another context, rather than this one, a criminal problem that he's concerned about.

    But unlike Mr. Wexler, who says that this is about sexual -- lying about sexual relations and touching, let me suggest that I believe that this -- that this proceeding is really about -- not about crime -- I believe that it's about the government's ability to secure the --

    REP. : (Off mike.)

    REP. CANNON: I have to protect my mike from my compatriot on this side.

    This is about the government's ability to secure the rights of the governed. And John Jay was quoted yesterday. Let me just repeat part of that quote. "If oaths cease to be sacred, our dearest and most valuable rights become insecure."

    I know, Mr. Weld, you've actually governed, and you're a person for whom I have the greatest respect. Would you mind responding? What do you think those rights are? And if we can be very particular, because my time is almost up, what are those rights that Mr. Jay is concerned about keeping secure?

    MR. WELD: I think it's the rights to life, liberty, property, and the pursuit of happiness.

    REP. CANNON: Thank you. I view property and the pursuit of happiness as the same right -- life, liberty, and property. And since my time is gone, I would love to hear a little bit about that.

    I believe that John Jay was right. What this panel is all about doing is maintaining for Americans for generations and centuries to come the security of those basic rights of life, liberty, and property, or the pursuit of happiness. That's what we're about here. And I yield back the balance of my time, Mr. Chairman.

    REP. HYDE: The gentleman from California, Mr. Rogan.

    REP. JAMES ROGAN (R-CA): Thank you, Mr. Chairman.

    I join my colleague from Utah in welcoming the panel, and particularly in welcoming the distinguished former governor of Massachusetts, whose service to our country I have long admired and thank you for to this day.

    Gentlemen, let me start off by saying that I've noticed a recurring theme among most of the panelists over the last few hours. The first one, with the exception of Governor Weld, is that perjury generally is a crime not prosecuted. The second one is the statement made over and over that somehow the statements made by the president were not material, even if they were lying under oath. And I must tell you, I take exception to both of those claims.

    In the federal government since Bill Clinton became president, according to the Offenders Sentenced Under the Guidelines table, just during the Clinton administration, almost 700 people have not only been convicted for perjury in federal court, they've been sentenced for perjury. In my own state of California, since Bill Clinton became president, some 16,000 perjury prosecutions have occurred. And so I just don't know where this novel claim comes from that this is a crime that is ignored by the courts. The record simply does not reflect that.

    A couple of members raised the name of Dr. Battalino and there were some blank stares by members of the committee. Let me share with you briefly the story of Dr. Battalino. She was here a week or so ago and testified before this committee. She was a doctor who worked for the Veterans Administration. She is also an attorney. In her capacity as a V.A. physician, she had a one-time consensual relationship, sexual relationship with a male patient of the hospital, but not her patient. He later sued the hospital for a sexual harassment claim and named her in the claim. She was asked in a civil deposition whether she had ever had a sexual relationship, a one-time sexual encounter with this patient. Out of embarrassment and out of concern for her job and her career, she denied it.

    The civil case was later dismissed -- the gentleman's case against the hospital and the doctor was later dismissed. Despite that dismissal, the Clinton Justice Department filed perjury charges against her. She is now precluded from practicing law as a result of her conviction. She lost her medical license and she is under incarceration. She appeared before us with an ankle bracelet because she is under house arrest.

    You might imagine that Dr. Battalino has some grave concerns over the incredible double standard as to her loss of livelihood and the shame that she's had to face as a result of the Clinton Justice Department prosecuting her for this, and the claim now being proffered by some of the president's supporters that this is all much ado about nothing.

    I have to also say that I take very grave exception to some of my beloved colleagues on the other side who keep insisting to the American people that this is simply about sex. That just is not true. Governor Weld is absolutely right. Fornication, adultery not only are not impeachable offenses, they clearly, they patently are not the business of the House Judiciary Committee. But that is not what was at stake here. The president was a defendant in a federal sexual harassment civil rights case. And as a result of that case, a federal judge ordered him to tell under oath whether in his capacity as governor or president he had ever had sexual relations with subordinate female employees. And the judge specifically found that was relevant to show a pattern of conduct. That's how sexual harassment cases are proven. And so this idea among some folks that if they just say it enough and if they're histrionics are dramatic or theatrical enough, if the volume is raised enough, that somehow we can reduce this to being just a case about sex may play well for the talk show circuit, but it doesn't play well for the truth. And I want to make that observation before my time expires.

    I thank the chair, and I yield back my time.

    REP. HYDE: The gentleman from South Carolina, Mr. Lindsey Graham.

    REP. LINDSEY GRAHAM (R-SC): Thank you, Mr. Chairman. I have a couple observations and some questions for the panelists here. And I, too, have appreciated your being here.

    Please understand that when I vote, I will look at it in a very legal sense. I don't believe due to the nature of what's going on that we should send a case forward that doesn't meet certain legal standards. And I just happen to disagree with you about whether or not this is a provable case of perjury. I think this is a very clear case of perjury, and it's not just about intimate touching. It goes much further. And I can't explain all that in five minutes. I've seen the president's deposition in Paula Jones where he testified. I saw Mr. Bennett lay the affidavit of Monica Lewinsky in front of the president. I saw the president's eyes follow the affidavit, his head nod, and I believe his grand jury testimony where he said he wasn't paying any attention is a lie. And I believe I could convict him with fair-minded people.

    But this is really more than just about the law. It's about the national interest. And I'm a politician. And there's a unique political aspect to this case that's probably good. I've said before, impeachment without outrage should be difficult. And it should be, in a democratic society. But let me tell you the mood of my district to let you know a little bit about what I'm up against here.

    The Washington Post sent, apparently, four reporters to the four corners of the country, and they happened to pick my district to feel out how people feel about the president and his misconduct. There is a portion of my district, very good friends of mine, who want to get this over with and understand this. In their mind, it doesn't rise to the level of overturning an election. That's a real dynamic. Very nice, rational people. But that's the minority opinion.

    You can take the polls and reverse them. The reporter said "I think I need to come home now" because they never got out of the clothing department of Wal-Mart to figure out what people thought about the president. It wasn't good. Being evasive, deceptive, immoral and non-responsive are not resume-builders in my district. Forget about perjury.

    So I'm a congressman that comes from an area -- (laughs) -- of the country that's got no use for this kind of stuff. But I have publicly said that we're going to play it straight with the president, we're not going to take our emotions and our political disagreements and try to use that in the impeachment process. And I'm going to stand by that. I've said to Mr. Craig and others I believe the president committed serious crimes, but if he would reconcile himself with the law so that we could end this thing on a note of honor, I may consider a different disposition than impeachment. But if he continues to flout the law, I don't think he should be the president for the next century. I stand by that statement.

    But there's another aspect to this that I think we need to talk about. Ms. Waters has -- I really do -- have gotten to know my colleagues on the other side, and we do get along pretty well. She says, well, it's really silly to believe the president would have his secretary hide gifts under her bed. Well, that sounds silly, but the day that people stop doing silly stuff is the day all of us as lawyers go out of business. (Laughter.) I think it's silly to fool around with an intern while you're being sued. But those things happen. And they happen to smart people like Bill Clinton. And if we impeach people for being silly and doing inappropriate things we'll wipe the Congress out.

    So I'm not saying that those type things ought to be the reason we get rid of the president. But don't underestimate what people can do that really is inappropriate and defies understanding. And I believe that's a lot of what Bill Clinton's problems really are at the end of the day.

    And if I've got to cast my vote based on knowing what the Senate's going to do, I'd never vote in the House, because I can't tell you what they're going to do half the time. And I think what they ought to do is wait 'til they get a case before they decide it. And everybody in Congress ought to let this committee do its work, whether you like us or not, before you decide what you're going to do, because the day you start deciding the case before the case is over is the day we lose a lot in this country.

    Governor Weld, hypothetically, you're the governor. There's a person out there that possesses damaging information about you. You're in a consentual relationship that's wrong. That person, you know, if asked to testify, could hurt you legally and politically. If you used the resources of the governorship, if you got people in your office to plant lies, falsehoods, malicious rumors, and tried to use your office as governor to trash out that potential witness against you, what should be your fate?

    MR. WELD: Well, in a clear enough case, my fate should be "out of here".

    REP. GRAHAM: Thank you.

    I yield back the balance of my time.

    REP. HYDE: The gentlelady from California, Ms. Bono.

    REP. MARY BONO (R-CA): Thank you, Mr. Chairman. And to my panel, thank you, first and foremost, for your patience. I woke up this morning and I thought, What do I get to do today? And question top -- five of the top attorneys in the entire country. What a great way to start off my day.

    I want to ask you a question, Governor Weld, to begin with, and it's a follow-up to something that Congressman Coble had asked earlier on. You discussed how you had changed your position, your initial reaction in February was that you said the president should resign. And you indicated that you've changed your thinking because of events during the past year and the general reaction to the president. As a congresswoman I also sit on the National Security Committee, and so issues concerning our military readiness and standing around the world greatly concern me.

    Earlier this year, the United States engaged in some military activity. Many people accused the White House of following a wag-the- dog strategy. It troubles me that the president may be in some ways hamstrung to lead and act decisively and swiftly on the international military stage without the complete trust of the American people. In other words, if the office of the president does not enjoy the complete public trust this might affect our national security.

    So governor, if there is new evidence that the president does not have the trust of the international community or of our armed forces -- and I'm not talking about polls, but more specific evidence from leaders around the world, would you revisit your February advice that the president should resign for the good of the country?

    MR. WELD: Yes. I think actually it was September, Madame Congresswoman. And as I indicated or alluded to earlier, one of the things I was troubled by in September was we'd had, frankly, some acts -- some bombings and similar actions abroad which coincided with the Lewinsky matter really coming to a head. And that's precisely what I was worried about. So I think, you know, anybody on an ongoing basis has got to ask themselves the question, Can I do the job? And if you can't do the job, you shouldn't do the job.

    REP. BONO: So will your opinion vacillate, though, depending on what is happening with attacks on us, or if --

    MR. WELD: Well, you know, we don't have a parliamentary system here, we have presidents who are mighty unpopular. Harry Truman was mighty unpopular even when he was by and large, you know, in retrospect people think, doing the right thing on a lot of stuff. So I don't think it should be following the public opinion polls. It's a question of ability to discharge the duties of the office, and I will confess that I was somewhat surprised at the alacrity with which all seemed to be forgiven and forgotten in terms of people saddling up and doing business with the president and taking him seriously.

    REP. BONO: Well, my point, sort of, here, is, is that, you know, the public trust, though, is something you also have to anticipate and it's easy to have it now, today, while the economy is strong, the stock market is great, although some of us still can't get Furbys -- (laughing) -- so it's not strong enough. But how about tomorrow? Will we have it tomorrow? will the public trust be there tomorrow? It cannot change. It's something that we can't -- we have to sort of guess. Will it be there? And I'm sort of hearing, as you're saying, too, I guess you're echoing with me that here today, gone tomorrow. And we on this committee cannot have that. We have to decide, will the public trust be there a month from now when Osama bin Laden rears his ugly head again?

    MR. WELD: Well, I don't think you want to go the removal route because of a concern that the trust might not be there. It would have to be a little bit more solid than that.

    REP. BONO: There is a concern, right? Thank you. And I guess -- I still have a green light -- this is a miracle. I have a question based on Mr. Sullivan's testimony, but I'll leave it open to the whole panel, but first I want to -- oh, it's yellow, so I'll just comment briefly.

    Mr. Sullivan, I had a fun moment earlier; it's not a comment or anything, but, you know, we're here because of the president's, sort of, dancing on the head of a pin, as Lindsey (sp) would say, over the definition of sex, and oral sex was omitted from the description before the Paula Jones testimony. But then here in this room you've changed it to sleeping with somebody, and I know you were trying to sort of elude references to salacious materials again, but isn't that what got us in this whole mess? And now you're changing the wording -- and I'm not a lawyer so I'm getting used to listening to every word we're saying -- that you did the very thing that got us in this whole mess to begin with. And I just thought it was a fun moment, so I wanted to leave you with a good experience here with the House Judiciary Committee. So thank you all. Thank you, Mr. Chairman.

    REP. HYDE: Thank you very much. We are going to take a break. I'll yield to Mr. Conyers.

    REP. CONYERS: Well, I wanted to take a few minutes on the reservation that I had earlier.

    REP. HYDE: All right, well, you're recognized for --

    REP. CONYERS: I'll move as quickly as I can, Mr. Chairman, and thank you. I first wanted to let Sheila Jackson Lee utilize 30 seconds of the time.

    REP. JACKSON LEE: Thank you very much, Mr. Conyers.

    Just very briefly, there was a comment on the presentation of the witnesses. Let me assume that you can come forward here because you are fact or expert witnesses. But I did want to very quickly comment on Dr. Battalino's case and Ms. Parsons's case.

    Dr. Battalino's case, the issue of perjury went to the fact that she was attempting to reclaim monies for litigation costs. It was insurance fraud, if you will. That went to the question; that's why the Department of Justice prosecuted her. And you were unfairly asked about it.

    Pam Parsons, she was accused of being a lesbian. She was a plaintiff and sued the newspaper that accused her of such and lied that she was not. And there was definite or definitive proof -- otherwise.

    And so it went to the heart of the cases. And I think it's important that we clarify the record on those grounds. I thank the gentleman. I yield back my time.

    REP. CONYERS: Mr. Chairman and members of the committee, and to this very-much-appreciated panel; this is a critical phase of the hearings. And it's helping us to recognize how the experts on this panel, seasoned and experienced prosecutors all, which Mr. Starr acknowledged that he was not, would have rejected bringing a criminal case against the president, based on Mr. Starr's allegations, if he were an ordinary citizen.

    It's critical in this part of our hearing to understand the vast difference between the allegations being considered by the committee and the system of criminal justice that applies to the rest of us. If no ordinary citizen, who had faced even a criminal prosecution based on the allegations in the referral -- how can we justify considering the rarely used remedy of impeachment for the same conduct? If no ordinary citizen would face a criminal prosecution based on these allegations, how can it be argued that to decline to vote for impeachment places the president above the law? If no ordinary citizen would face a criminal prosecution based on these allegations, why should we bother to take the Senate and the chief justice of our highest court, to spend months resolving undignified and trivial questions of fact, rather than in tending to the important business of the country? I hope these questions raise serious issues and reservations for all of my colleagues in the committee about the wisdom of proceeding on the path that we apparently are on.

    May I acknowledge the chairman of this committee's accommodations that he has offered me concerning prompt notice to all of us on the committee of any draft Articles of Impeachment and his further willingness to consider the motion that will be offered by the gentleman from Virginia, Mr. Scott, to require that the specific allegations against the president be provided to him before his counsel responds, when we conduct our business session today or tomorrow.

    May I reiterate my strong view to the Republican leadership that fairness dictates that the American people not be muzzled on the all- important issue of censure. Overwhelmingly, the American people that we have referred to, we've tested in the districts and the nation, do not want the president impeached.

    Our citizens either support doing nothing, under the theory that the president has already been censured, or they support an additional resolution of censure. But the important point is that for the vast majority of those who do not want an impeachment, a six-month Senate investigation with all of the attendant political and economic turmoil, for all of those who want a proportional and sensible alternative shouldn't be muzzled.

    And so your testimony here and this panel may well be the most important that we will have because you have dealt so significantly with these fact questions that have been troubling us. And thank you, Mr. Chairman.

    REP. HYDE: I thank you, Mr. Conyers, and I want to say that I, too, deeply appreciate the contribution which was and is substantial that you've made to some of our knowledge on this very difficult question. You've all been enormously helpful, highly qualified, very forthcoming and you've made a great contribution.

    Now, we should take a 30-minute recess, but before I reach that happy point I yield to Ms. Jackson Lee.

    REP. JACKSON LEE: Very briefly, Mr. Chairman, I'd like to submit into evidence of this proceedings the Constitution of the United States, particularly noting that there is no prohibition on censure noted in the Constitution of the United States. I'd like to submit this into the record, Mr. Chairman.

    REP. HYDE: Well, certainly, without objection, even though ours is a government of delegated powers. But, nonetheless, your motion is granted.

    REP. JACKSON LEE: I thank you very much, Mr. Chairman. I appreciate it.

    REP. HYDE: Thanks. Thank you.

    And now I will try again, we will have a half-hour recess. Please come back at the end of a half-hour.

    (Recess.)

       



    Copyright © 1998 by Federal News Service, Inc. No portion of this transcript may be copied, sold or retransmitted without the written authority of Federal News Service, Inc. Copyright is not claimed as to any part of the original work prepared by a United States government officer or employee as a part of that person's original duties. Transcripts of other events may be found at the Federal News Service Web site, located at www.fnsg.com.

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