Analysis: A Constitutional Appeal by Ruff
Washington Post Staff Writer
Thursday, December 10, 1998; Page A33
As the White House presented its final defense before the House Judiciary Committee yesterday, it tried to strike a conciliatory tone and shift the debate away from the unattractive facts of President Clinton's conduct onto a more comfortable – and, from the president's point of view, possibly more productive – constitutional plane.
White House counsel Charles F.C. Ruff mounted an impassioned defense of "legalisms," laboriously explaining in precise detail why Clinton's statements did not, in the White House view, constitute perjury or obstruction of justice and criticizing independent counsel Kenneth W. Starr's presentation of the evidence as unfair and misleading. But his fundamental point was that, whatever Republicans think about Clinton, his conduct does not warrant impeachment.
Serving as what Rep. F. James Sensenbrenner Jr. (R-Wis.) termed the president's "clean-up hitter," Ruff framed in dire terms the fundamental question he said House members must confront: "Do I have enough evidence to justify putting the country through the horror that we all know will follow, if in fact there is an impeachment?"
That approach may help the White House in the longer run of a battle that is to be lost or won in the next week, as the debate moves away from the committee and on to the House floor. But even as the White House was making its case, Republicans on the panel released draft articles of impeachment that backed down hardly a whit from the approach adopted by Starr when he recommended that Congress impeach the president three months ago.
Indeed, the draft articles even added to Starr's brief against Clinton by saying that the president "engaged in conduct that resulted in misuse and abuse of his high office" not only in the ways that Starr had outlined but also by making "perjurious, false and misleading statements to Congress" in responding last month to 81 written questions from the committee.
In an hour-long statement followed by more than three hours of questions, Ruff once again attempted a feat that the White House has found difficult for months: arguing the "legalisms" without further enraging the panel – or, more to the point, the undecided House members who were the more critical audience for the White House yesterday. With GOP committee members, not surprisingly, he didn't seem to make much headway.
"I'm a lawyer, I understand making legal arguments and legalisms," said Rep. Charles T. Canady (R-Fla.). "But there's a point beyond which things just don't make sense."
Following a White House-organized morning panel of former prosecutors who said no "responsible" prosecutor would bring a perjury charge against Clinton, Ruff said he thought he could win any case against the president in court. But he quickly acknowledged that he was appearing in a different venue, and that technical arguments about questions such as whether the precise legal elements of the crime of perjury had been proved in the case against Clinton were not about to carry the day.
As Ruff, a veteran prosecutor and defense lawyer, put it in his opening remarks, "However proper it may be to make those arguments, in a proceeding such as this one and for a witness such as the president, there is a risk that they will get in the way of answering the ultimate question: Did the president do something so wrong and so destructive of his constitutional capacity to govern that he should be impeached?"
Related to that essential point was the secondary argument that the House must accept its constitutional duty to make the impeachment decision, and not simply pass the buck to the Senate.
"No member of this committee, and no member of the House, can take shelter behind the notion that an article of impeachment is the equivalent of nothing more than a criminal complaint or an indictment, or some formalistic slap on the wrist," Ruff said.
While disagreeing with GOP members' analysis of the facts and the law, Ruff's tone was sober and respectful, an approach that has seemed to fare far better with the committee than being chided and lectured to by some of the Democratic witnesses.
Ruff also made more concessions than the White House has ever done previously, particularly on the question of whether Clinton's testimony in the Paula Jones deposition was not merely "maddening," as special counsel Gregory B. Craig had told the panel Tuesday, but out-and-out false, as many House members – including Democrats – see it.
Ruff hewed to the White House line that Clinton was seeking to be evasive and unhelpful without being untruthful. "I have no doubt that he walked up to a line that he thought he understood," Ruff said.
Still, he conceded, "Reasonable people, and you maybe have reached this conclusion, could determine that he crossed over that line and that what for him was truthful but misleading . . . was, in fact, false. But in his mind – and that's the heart and soul of perjury – he thought and he believed that what he was doing was being evasive but truthful."
Saying he did not want to "drag the committee into the salacious muck," Ruff did not provide any detail about what Starr had previously derided as the "implausible . . . hands-off scenario" advanced by the president to describe his meetings with Lewinsky. His contention instead was that, even if in the he-said, she-said standoff Lewinsky was right and Clinton was deliberately lying to the grand jury, that could not justify his impeachment.
The proposed articles of impeachment released as Ruff was concluding his testimony reflected a complete repudiation of Ruff's assessment of the facts, the law and the constitutional standards.
The Republican draft reshuffled Starr's 11 proposed grounds for impeaching Clinton into four: perjury before the grand jury, perjury in the Jones case, obstruction of justice and abuse of power. But the draft articles did not depart in any significant way from Starr's analysis of the facts against Clinton, his conclusion that the president's actions constituted crimes, or his fundamental belief that Clinton's misconduct warranted impeachment.
The draft accepts Starr's conclusion about Clinton's role in encouraging Lewinsky to file a false affidavit in the Jones case and hide gifts subpoenaed by her lawyers, and in helping her obtain a job in order to buy her silence, as well as his attempts to influence a potential witness in the case, presidential secretary Betty Currie, and his false statements to aides.
Starr's abuse-of-power count, which was viewed as the shakiest and most vulnerable of his proposed grounds, was repeated by the draft, including the assertion that Clinton's public denials of his relationship with Lewinsky and his invocation of executive privilege were bases for his removal.
The GOP draft also added a new abuse of power allegation regarding Clinton's answers to the 81 questions: "William Jefferson Clinton, in refusing and failing to respond and in making perjurious, false and misleading statements, assumed to himself functions and judgments necessary to the exercise of the sole power of impeachment vested by the Constitution in the House of Representatives and exhibited contempt for the inquiry."
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