THE IMPEACHMENT TRIAL
Statement of Sen. Ashcroft (R-Mo.)
Following is a statement from the Senate's closed deliberations on the articles of impeachment against President Clinton, excerpts of which senators were allowed to publish in the Congressional Record for Friday, Feb. 12.
Mr. ASHCROFT. When the impeachment trial began on January 7th, I took an oath to render `impartial justice according to the Constitution and laws: So help me God.' This oath distinguishes impeachment from all my other responsibilities in the Senate. Although the Constitution requires Senators to take an oath of office and gives the Senate numerous powers and responsibilities, only the obligation to try impeachments demands the swearing of a special, separate oath. While many commentators have sought to mark this trial as a political event, the oath leaves room only for impartial justice. I interpret this oath as requiring that I decide this case based on the evidence in the record, the arguments of the parties, and the applicable law--and on no other basis.
If I were to look beyond the evidence in the case, to public opinion polls, then a path to a decision would be clear. A large majority of Americans, for example, believe that the President committed perjury, but do not think that he should be removed from office. I am sure that those surveyed considered a variety of factors and did not limit themselves to the Senate record. More than anything else, these poll results reflect the American people's capacity for forgiveness. I share this desire to forgive the President for his admitted mistakes. However, the forgiveness we grant in our capacity as individuals must be distinguished from the government's responsibility to remedy wrongdoing. We routinely ask jurors to sentence defendants in accordance with the law, even though they may forgive the defendant. That is the same responsibility that the Constitution and my oath impose on me in this proceeding.
On the other hand, if I were simply to vote my conscience as to whether I believe the President's continued service is good for our country and our culture, that is a clear path as well. From the very outset, I have stated consistently that if the allegations were true concerning the President's relationship with Ms. Lewinsky, then the President has disgraced himself and his office, and should resign. In my view, the confessed facts of the President's conduct in the Oval Office make his continued presence an obstacle to the healing our culture. The honorable course would be for the President to resign, to allow the nation to heal from the wounds he has inflicted.
My oath, however, forecloses either of these paths, and instead forces me to undertake the far more difficult task of sifting through the record, weighing evidence, determining credibility and reaching a final, impartial judgment on the articles of impeachment. As a result, I cannot explain my judgment by resort to any grand principles or by broad statements about my opinion of the President as a leader. I can only explain my vote through a detailed examination of the articles of impeachment, the evidence presented and the relevant law.
ARTICLE I--GRAND JURY PERJURY
The first article of impeachment charges President Clinton with committing perjury before the grand jury when he testified on four subjects. Attorneys for the President complain that the House Managers failed to specify the particular grand jury statements of the President that constituted perjury. I agree that the President deserves sufficient specificity to provide him the basis for a defense. However, during the course of the House Managers' presentation it became clear that the perjury allegations focused on a handful of specific statements the President made to the grand jury.
THE PRESIDENT AND MS. CURRIE--REFRESHING MEMORY WITH LIES
Perhaps the single most obvious instance of a false statement by the President stems from his explanation of his conversations with Ms. Betty Currie in the days immediately following his deposition testimony in Jones v. Clinton. Ms. Currie told the grand jury that on the evening of his deposition the President called her and requested that she make a rare Sunday appearance at the White House. When she arrived, the President called her in and confronted her with an unusual series of statements and questions, including: `Monica came on to me, and I never touched her, right?'; `You were always there when Monica was there, right?'; and `I was never really alone with Monica, right?' (See Sen. Rec. Vol. IV, part 1 at 559-60; Ms. Currie 1/27/98 GJ at 70-75.). When the President was asked to explain this conversation to the grand jury, he stated that he was `trying to refresh [his] memory about what the facts were.' (See Sen. Rec. Vol. III, part 1 at 651; Mr. Clinton 8/17/98 GJ, at 131.) (See also Sen. Rec. Vol. III, part 1 at 593-94; Mr. Clinton 8/17/98 GJ, at 141-42 (Q: `[Y]ou are saying that your only interest in speaking with Ms. Currie in the days after your deposition was to refresh your own recollection? A: Yes.'))
This statement is demonstrably false. A person cannot refresh his or her memory by repeating lies. The President's leading questions were falsehoods. The President knew that he had been alone with Ms. Lewinsky, knew that they had been together outside of Ms. Currie's presence, and knew that he had touched Ms.
Lewinsky. Repeating these falsehoods to Ms. Currie could not have refreshed the President's memory `about what the facts were.'
What is more, Ms. Currie testified that the President reviewed these same statements and questions with her again two or three days later. (See Sen. Rec. Vol. IV, part 1, at 560-61; Ms. Currie 1/27/98 GJ, at 80-82.) The President does not have specific memory of this second conversation, but does not dispute Ms. Currie's recollection. If the President were trying to refresh his memory, he would not go through the same questions again two or three days later. However, if the President were trying to coach Ms. Currie's testimony and ensure that her version of events was consistent with his false deposition testimony, then rehearsing these questions and answers a second time would be helpful. Based on all the evidence, I have concluded beyond a reasonable doubt that the President's testimony concerning these conversations with Ms. Currie was false. The evidence clearly shows that the President gave false testimony to the grand jury in order to cover up his illegal effort to influence Ms. Currie's testimony.
THE PRESIDENT'S LIES TO HIS AIDES
Another clear example of a false statement by the President in his grand jury testimony is his claim that he was truthful with his aides in discussing his relationship with Ms. Lewinsky. The exact nature of what the President said to his aides in the immediate aftermath of his deposition was of interest to the grand jury as part of its investigation of whether the President obstructed justice. When asked about these conversations, the President told the grand jury that `I said to them things that were true about this relationship.' (See Sen. Rec. Vol. III, part 1, at 558; Mr. Clinton 8/17/98 GJ, at 106.)
The testimony of the President's own aides, however, makes it clear that the President was not truthful with his aides. He did not than mislead them, he lied to them. For example, one presidential aide, John Podesta, testified that the President told him that he did not have sex with Ms. Lewinsky `in any way whatsoever' and provided additional, more detailed denials concerning the relationship. (See Sen. Rec. Vol. IV, part 3, at 3311; Mr. Podesta 6/16/98 GJ, at 92.) Sidney Blumenthal, another presidential aide, testified that the President told him that `Ms. Lewinsky came at me and made a sexual demand on me,' that he `rebuffed her,' and that Ms. Lewinsky `was known as the stalker.' (See Sen. Rec. Vol. IV, part 1, at 185; Mr. Blumenthal 6/4/98 GJ, at 49.) In his Senate deposition Mr. Blumenthal unequivocally stated that he now believes the President lied to him. (See Congressional Record S1249; Mr. Blumenthal 2/3/99 Dep.) As the President's closest aides have conceded, the President was not truthful with them. In reviewing all the evidence, it is clear beyond a reasonable doubt that the President was not truthful with his aides and that his grand jury testimony concerning these discussions was false.
THE PRESIDENT'S TESTIMONY ABOUT HIS RELATIONSHIP WITH MS. LEWINSKY
The first example included in the grand jury perjury article approved by the House focuses on the President's grand jury testimony concerning `the nature and details of his relationship with' Ms. Lewinsky. His testimony on this matter also appears to be false.
Although some of the detailed testimony underlying this example of perjury is nothing short of sordid, the President's lack of credibility on this matter is straightforward. For a number of months last year, Ms. Lewinsky was on record as having told federal investigators that she and the President had engaged in a sexual relationship. The President publicly and repeatedly denied the truth of these allegations. It was a classic `he said, she said' situation. Then physical evidence of a sexual relationship between the President and Ms. Lewinsky was discovered. After this physical evidence came to light, it ceased to be a `he said, she said' situation. He changed his story and admitted an `inappropriate intimate relationship' to a federal grand jury, while she was vindicated.
However, the President declined to follow his oath to tell the grand jury the whole truth and admit the true nature of the relationship. Instead, the President attempted to walk an impossibly fine line, admitting to a relationship which involved sufficient contact to explain the physical evidence but insufficient contact to make the President's earlier deposition statements about the relationship perjurious. The President's testimony on this matter, therefore, was at the heart of the grand jury's investigation into whether the President committed perjury in the Jones case. The physical evidence strongly suggested that the President had committed perjury in his deposition, and this grand jury testimony was the basis for his defense. The President's testimony flatly contradicts Ms. Lewinsky's testimony concerning the nature and details of their relationship. Ms. Lewinsky's
testimony provides a much more plausible explanation of the physical evidence, and makes clear that the President perjured himself in his sworn deposition testimony.
With respect to the nature and details of their relationship we are once again present with a `he said, she said' situation. But now there are two differences. First, the President's implausibly contorted version of events appears to be tailored precisely to avoid admitting a prior perjury. Second, we have the benefit of a prior `he said, she said' dispute between the same two people, in which subsequent evidence conclusively proved that she was telling the truth and he was lying. Under these circumstances, I am convinced beyond a reasonable doubt that the President lied about `the nature and details of his relationship' with Ms. Lewinsky.
THE PRESIDENT'S TESTIMONY CONCERNING HIS DEPOSITION
The House included two other examples of grand jury perjury in the first article of impeachment. The article alleges that the President lied to the grand jury concerning both his prior, perjurious deposition testimony and whether he was paying attention to his lawyer's statements during that same deposition. While there is considerable evidence that supports the notion that the President did lie to the grand jury regarding these two matters, I am not convinced beyond a reasonable doubt that the President's statements on these matters constitute perjury.
The President began his grand jury testimony with the assertion that he was truthful in his deposition testimony. However, later in his grand jury testimony, the President clarified and corrected much of his false and misleading deposition testimony. As a result, it is clear that the President's claim that his deposition testimony was truthful was itself a false statement. However, it is equally clear that this false statement cannot form the basis for a perjury conviction for two reasons. First, when viewed in its entirety, the President's grand jury testimony makes this one statement immaterial. It is the equivalent of the statement of a murderer who begins his confession with the statement that `I didn't do anything wrong.' Second, in light of the House's decision to reject a separate article focusing on deposition perjury, I am uncomfortable allowing this one line to be used as a means to `backdoor' allegations that the President lied in that forum.
The allegation that the President lied to the grand jury when he testified that he was not paying attention to his lawyer when he used Ms. Lewinsky's affidavit to deny that there was any sexual relationship between the President and Ms. Lewinsky is a closer matter. During the President's deposition in the Jones case, the President's lawyer, Mr. Bennett, argued to the Court that Ms. Lewinsky's affidavit demonstrated `there is absolutely no sex of any kind in any manner, shape or form' between the President and Ms. Lewinsky. (See Sen. Rec. Vol. XIV, at 23).
The President allowed his lawyer to make this representation to the Court, even though the President knew that representation and the underlying affidavit were both false. When confronted with these facts before the grand jury, the President attempted to excuse his behavior with the claim that he was not paying attention and this `whole argument just passed me by.' (See Sen. Rec. Vol. III, part 1, at 481; Mr. Clinton 8/17/98 GJ, at 29). The available evidence and common sense suggest that the President was paying attention. I have reviewed the videotape of the President's deposition, and he appears to be paying attention to his lawyer before, during and after his lawyer's representation. Common sense suggests the President was paying attention because his lawyer made this statement in an effort to keep the President from answering a question the Jones lawyer had just directed to him. The President would have needed to pay attention to the question in order to answer it, and it is hard to believe he would have tuned out his lawyer's objection to the question.
What is more, in light of the President's admitted fears about the true nature of his relationship with Ms. Lewinsky becoming public, it is implausible that he would have not paid attention to his lawyer's efforts to use the Lewinsky affidavit to prevent questioning about their relationship. The President does not dispute that he suggested that Ms. Lewinsky file an affidavit in a December 17, 1997, telephone call. The President's stated objective in suggesting the filing of an affidavit was to keep Ms. Lewinsky from becoming an issue in the Jones litigation. The notion that the President would not pay attention to his lawyer's efforts to have that suggestion bear fruit strains credulity. Finally, it is worth noting that immediately following Mr. Bennett's representation, the presiding judge cautioned Mr. Bennett against coaching the witness. That caution would not have been necessary had the witness, Mr. Clinton, not been paying attention to his lawyer's words.
If I were applying a preponderance of the evidence or a clear and convincing evidence standard, I certainly would reject the President's claim that the `whole argument just passed me by.' However, applying a beyond a reasonable doubt standard, I have reached a different conclusion. The problem for me is that the President's statement concerns his own mental state. Although the evidence and common sense suggest the President was paying attention to Mr. Bennett, I have not been able to remove all doubts from my mind on this score.
THE LEGAL ELEMENTS OF GRAND JURY PERJURY
On the other hand, I am convinced beyond a reasonable doubt that the President made false statements to the grand jury concerning his conversation with Ms. Currie, his statements to other aides, and the nature and details of his relationship with Ms. Lewinsky. Moreover, in light of the legal standards for grand jury perjury, I am convinced the President's conduct satisfies every element of felony perjury under section 1623 of the federal criminal code, Title 18. There are five elements to the crime of grand jury perjury. To constitute perjury a statement must be made under oath, before a grand jury, with intent, and the statement must be both false and material.
I have already discussed why I have concluded that these statements were false, and there is no question that they were made under oath to a grand jury. The only two remaining elements are intent and materiality. Neither of these standards is difficult to satisfy in the context of grand jury perjury. Congress passed a special statute, section 1623, to make it easier to prosecute grand jury perjury out of a recognition that grand jury perjury is a more serious threat to the administration of justice than other perjuries. As a result, the intent requirement is not demanding--the defendant need only make the statement with knowledge of its falsity. As the well-respected American Criminal Law Review published by Georgetown University concludes: `Section 1623, unlike 1621 [the general perjury statute], does not require proof that the allegedly false testimony was submitted willfully. Rather, it requires that such testimony was knowingly stated or subscribed. This requirement is ordinarily satisfied by proof that the defendant knew his testimony was false at the time he provided it.'
The one thing that emerges from the presentations made by both the White House and the House Managers is that the President made his grand jury statements with a great deal of forethought and precision. The President's false statements did not result from inadvertence or confusion. The President knew these statements were false. For example, he knew full well that his conversation with Ms. Currie was not designed to refresh his memory.
Likewise, the materiality standard is easily satisfied in this case. Courts are generally quick to find grand jury perjury to be material in deference to the broad investigatory authority of a federal grand jury. As the Second Circuit observed in United States v. Kross, 14 F.3d 751, 754 (2d Cir.), cert. denied, 513 U.S. 828 (1994): `Because the grand jury's function is investigative, materiality in that context is broadly construed.' The grand jury in this case was investigating whether the President committed perjury in his Jones deposition or obstructed justice in the Jones lawsuit. Specifically, the grand jury was concerned that the President may have lied in denying a sexual relationship with Ms. Lewinsky and obstructed justice by coaching Ms. Currie and his other aides. Therefore, the President's grand jury testimony concerning what he said to his aides and the nature of his relationship with Ms. Lewinsky was directly relevant to the grand jury's investigation. The President's statements were not just material--they were at the heart of the grand jury's inquiry.
THE PRESIDENT'S LEGAL DEFENSES
Lawyers for the President raised a number of legal smoke screens in his defense that do not change the ultimate conclusion that the President committed perjury. For example, they emphasize the so-called Bronston defense, in which a misleading statement does not constitute perjury if it is technically true. However, the Bronston defense provides no defense to a statement that is literally false. As United States Supreme Court Justice Breyer, while still on the First Circuit, observed: `The Bronston Court held only that a defendant cannot be convicted of perjury for true but misleading statements, not that a defendant is immune from prosecution for perjury whenever some ambiguity can be found by an implausibly strained reading of the questions he is asked.' United States v. Doherty, 867 F.2d 47,69 (1st Cir.), cert. denied, 492 U.S. 918 (1989).
Likewise, the White House has attempted to rely on the two-witness rule--i.e., the notion that a perjury prosecution cannot rest on an oath versus an oath. That rule of law would not apply here if it were a correct statement of the law
because there is ample corroborating evidence. But the truth of the matter is that section 1623 expressly rejects the two-witness rule, stating that: `it shall not be necessary that such proof be made by any particular number of witnesses.' As the American Criminal Law Review puts it: `the obvious purpose of this language [is] to prevent the application of the two-witness rule in section 1623 prosecutions.' That view is supported by the Supreme Court's analysis of the purpose of section 1623 in Dunn v. United States, 442 U.S. 100, 108 & n.6 (1979).
In the end, the White House's legal arguments cannot obscure the fact that the President committed perjury in his grand jury testimony. The House Managers successfully carried their burden. They proved the facts underlying the first article of impeachment beyond a reasonable doubt, and the evidence satisfied every element of proof for grand jury perjury.
ARTICLE II--OBSTRUCTION OF JUSTICE AND WITNESS TAMPERING
The second article of impeachment approved by the House alleges that the President obstructed justice and provides seven examples of specific conduct that obstructed justice either in the Jones litigation or in the federal grand jury's investigation. I have examined each of these examples in detail and will share my analysis. As with perjury, perhaps the clearest example of obstruction of justice stems from the President's conversation with Ms. Currie the day after his sworn deposition testimony in the Jones case.
COACHING MS. CURRIE'S TESTIMONY
As noted in the discussion of perjury, the President called in Ms. Currie the day after his sworn deposition testimony and confronted her with a series of questions and answers, such as `Monica came on to me, and I never touched her, right?'; `You were always there when Monica was there, right?' and `I was never really alone with Monica, right?'; (See Sen. Rec. Vol. IV, part 1, at 559-560; Ms. Currie 1/27/98 GJ, at 70-75.). According to Ms. Currie, the President repeated this rehearsal of questions and answers two or three days later. As discussed earlier, the President's explanation for this conversation--that he was trying to refresh his memory--is simply not credible. The true purpose of these conversations becomes clear in light of the President's sworn deposition testimony. On several occasions during his deposition, the President invoked Ms. Currie's name in answering questions concerning his relationship with Ms. Lewinsky. Indeed, at one point, the President specifically directed the Jones' lawyers to `ask Betty whether Ms. Lewinsky was alone with him or with Ms. Currie between the hours of midnight and 6:00 a.m. (See Sen. Rec. Vol. XIV, at 35).
In other words, during his deposition, the President attempted to use Ms. Currie as an alibi witness to deny that he had been alone with Ms. Lewinsky. It is telling in this regard that in his conversation with Ms. Currie the President sought Ms. Currie's agreement that `he was never alone with her, right?' This was the exact point as to which the President directed the Jones' lawyers to `ask Betty.' In short, having invoked Ms. Currie as an alibi in his deposition, the President wasted no time in contacting Ms. Currie and making sure her story would square with the President's sworn testimony. Indeed, the President contacted Ms. Currie and explained that Ms. Lewinsky's name had come up during the deposition despite Judge Wright's admonition not to discuss the deposition with anyone other than his lawyers.
There is simply no innocent explanation for this conversation with Ms. Currie. It was a violation of Judge Wright's order. It was not an attempt to refresh the President's memory. Instead, the evidence shows beyond a reasonable doubt that this was an unlawful attempt to obstruct justice by altering Ms. Currie's testimony in the Jones case.
THE PRESIDENT, MS. LEWINSKY, AND THE FALSE AFFIDAVIT
This coaching of Ms. Currie is not the only example of obstruction of justice by the President. For instance, the first example cited in the obstruction of justice article alleges that the President corruptly encouraged Ms. Lewinsky to file a false affidavit in the Jones litigation. The President does not dispute that he called Ms. Lewinsky at 2:30 a.m. in the morning on December 17, 1997, to inform her that she was on the witness list in the Jones case. The President likewise does not dispute that he hoped Ms. Lewinsky would not have to testify and suggested to her that she could file an affidavit to reduce her chances of being deposed or called to testify in the Jones proceeding. (See Sen. Rec. Vol. III, part 1, at 567-73; Mr. Clinton 8/17/98 GJ, at 115-121). The President's defense is that although he wanted Ms. Lewinsky to file an affidavit to avoid testifying, he did not want her to file a false affidavit. As the President put in his grand jury testimony, `I did hope
she'd be able to get out of testifying on an affidavit? Absolutely. Did I want her to execute a false affidavit? No, I did not.' (See Sen. Rec. Vol. III, part 1, at 571; Mr. Clinton 8/17/98 GJ, at 119). This claim that an affidavit could be both truthful and result in a reduced chance of Ms. Lewinsky testifying is critical to the President's defense because it is a crime to corruptly persuade a potential witness to delay or prevent their testimony.
The fundamental problem with the President's defense is that a truthful affidavit that disclosed the nature of his relationship with Ms. Lewinsky would have been inconsistent with the President's stated goal of reducing her chances of being called to testify. A truthful affidavit would have guaranteed that Ms. Lewinsky would have been called as a witness. It is folly to suggest that an affidavit that admitted the relationship but emphasized its consensual nature could have prevented Ms. Lewinsky from being called. Judge Wright had already approved discovery of government employees involved in relationships with the President without regard to whether they were consensual.
Additional evidence that the President encouraged Ms. Lewinsky to file a false affidavit comes from the President's revival of previously developed cover stories in this same 2:30 a.m. telephone conversation. Specifically, according to Ms. Lewinsky, the President reminded her that `you can always say you were going to see Betty or that you were bringing me letters?' (See Sen. Rec. Vol. III, part 1, at 843; Ms. Lewinsky 8/6/98 GJ, at 123). To be sure, Ms. Lewinsky has testified that the ideas of filing an affidavit and using the cover stories were not explicitly linked in her mind. However, there must have been some implicit link, in fact, because Ms. Lewinsky's draft affidavit featured one of the cover stories. Although it was dropped in the editing process to eliminate any suggestion that the President and Ms. Lewinsky were alone, the draft affidavit suggested that Ms. Lewinsky had brought the President papers.
In addition, the notions that the President wanted Ms. Lewinsky to file a false affidavit and that only a false affidavit and that only a false affidavit would have the desired effect of keeping Ms. Lewinsky from being called as a witness are supported by the fact that the filed affidavit was false. The affidavit Ms. Lewinsky filed was false, in the following particulars: (1) it stated that Ms. Lewinsky did not `possess any information that could possible be relevant to the allegations made by Paula Jones . . .', (2) it stated that on the occasions on which Ms. Lewinsky saw the President after she left employment at the White House in April 1996 were official receptions and formal functions related to her job, and that `there were other people present on those occasions,' and (3) it stated that--contrary to the President's admission before the grand jury that he and Ms. Lewinsky had an inappropriate intimate relationship--`the President . . . always behaved appropriately in my presence.' (See Sen. Rec. Vol. III, part 1, at 1235). Moreover, any doubt about the falsity of Ms. Lewinsky's affidavit is removed by her decision to enter into an immunity agreement to prevent her prosecution for perjury with respect to the affidavit.
Finally, the President's claim that he did not want Ms. Lewinsky to file a false affidavit is belied by the fact that the President allowed his attorney to use the false affidavit in an effort to keep the Jones lawyers from questioning him about his relationship with Ms. Lewinsky. The President's attorney, Mr. Bennett, relying on the Lewinsky affidavit, represented to the Court that `there is absolutely no sex of any kind in any manner, shape or form, with President Clinton.' (See Sen. Rec. Vol. XIV, at 23). Mr. Bennett expressly told the court that the President was `fully aware of Ms. Lewinsky's affidavit.' (See Sen. Rec. Vol. XIV, at 23). It is difficult to credit the President's claim that he did not want Ms. Lewinsky to file a false affidavit when he allowed his lawyer to use a false affidavit--of which he was `fully aware'--to keep him from being questioned about Ms. Lewinsky.
The House has alleged that the President's decision to allow Mr. Bennett to use this affidavit--knowing it to be false--was an additional example of obstruction of justice. I am not convinced that the President's failure to correct his attorney's representation to the Court amounts to an obstruction of justice. However, the President's actions in allowing his attorney to use a false affidavit to his litigation advantage undermines his claim that he never wanted Ms. Lewinsky to file a false affidavit. When all the evidence is considered, it is clear beyond a reasonable doubt that the President wanted Ms. Lewinsky to file a false affidavit.
THE COVER STORIES
The second example cited by the House in its obstruction of justice article was the President's suggestion that Ms. Lewinsky could use cover stories to disguise the true nature of their relationship from the Jones lawyers. These cover stories, of course, were used by the President and Ms. Lewinsky long before her
name appeared on the witness list in the Jones litigation. As a result, the cover stories--that she was visiting Ms. Currie or bringing the President papers--were instantly familiar to Ms. Lewinsky. But even though these cover stories were not criminal--only deceptive--in their origins, the President's revival of these cover stories after Ms. Lewinsky became a witness in a civil suit against the President stands on a very different footing.
The President's reiteration of the cover stories in the same conversation that he told her she was on the witness list is evidence of an effort to alter her testimony. As demonstrated above, Ms. Lewinsky included one of the cover stories in her false draft affidavit. Although the President emphasizes that the cover stories had an element of truth to them, that claim is not a defense to a witness tampering or obstruction of justice charge. For the federal witness tampering statute it is enough that the President attempted to influence Ms. Lewinsky's testimony through corrupt or misleading conduct, see 18 U.S.C. 1512, and for obstruction of justice it is enough that the President endeavored to influence the due administration of justice, see 18 U.S.C. 1503. As a result, the President's revival of the cover stories constituted obstruction of justice. His actions obstructed the true course of justice and denied an American citizen a fair hearing of her claim.
THE GIFT EXCHANGE
The third example of obstruction of justice cited in the House article concerns the efforts to conceal the President's gifts to Ms. Lewinsky from the Jones lawyers. The House alleges that the President orchestrated a scheme by which Ms. Lewinsky concealed the gifts from the Jones lawyers by conveying them to Ms. Currie. In defending against this charge, the President must overcome the undisputed fact that the gifts sought by the Jones lawyers ended up beneath the President's personal secretary's bed.
These gifts clearly were relevant evidence in the Jones litigation. The subpoena served on Ms. Lewinsky required the production of `each and every gift including but not limited to, any and all dresses, accessories, and jewelry, and/or hat pins given to you by, or on behalf of, Defendant Clinton.' (See Sen. Rec. Vol. III, part 2, at 2704.) Ms. Lewinsky discussed this subpoena with the President on December 28, 1997, and both expressed their concern that the subpoena covered the hat pin. Ms. Lewinsky testified that when the subject of what to do with the gifts came up the President responded: `I don't know' or `let me think about it.' (See Sen. Rec. Vol. III, part 1, at 872; Ms. Lewinsky 8/6/98 GJ, at 152.) The President, by contrast, told the grand jury that he instructed Ms. Lewinsky that if the Jones' lawyers `asked for the gifts, [Ms. Lewinsky would] have to give them whatever she had, that that's what the law was.' (See Sen. Rec. Vol. III, part 1, at 495; Mr. Clinton 8/17/98 GJ, at 43.)
Ms. Lewinsky left the White House and returned home only to receive a call in which Ms. Currie told her, `I understand that you have something to give me' or `the President said you have something to give me.' (See Sen. Rec. Vol. III, part 1, at 874; Ms. Lewinsky 8/6/98 GJ, at 154-55.) Ms. Currie does not recall making this call, and instead suggests that Ms. Lewinsky initiated the gift exchange. It is uncontroverted, however, that Ms. Currie went to Ms. Lewinsky's apartment to pick up the gifts and that those gifts were stored under Ms. Currie's bed. The net result of these events is that the gifts that evidenced a relationship the President was trying to conceal in litigation against him were kept from the Jones lawyers. This net result makes the President's sworn testimony that he directed Ms. Lewinsky to turn over the gifts difficult to credit. It is difficult to believe that Ms. Lewinsky would disregard the President's advice on this issue.
This evidence makes it more likely than not than the President obstructed justice by orchestrating the concealment of the gifts. However, to prove obstruction of justice, the House must show that the President directed Ms. Currie to pick up the gifts. That is the missing link in the House's case. Although that is the most likely explanation for the concealment of the gifts, both parties to that conversation--Ms. Currie and the President--deny that such a discussion took place. As a result, there is a reasonable doubt in my mind as to whether the President obstructed justice by concealing the gifts, and I find this issue in his favor.
THE JOB SEARCH
The next example of obstruction cited by the House is the job search. The evidence is clear that the President asked Vernon Jordan to help Ms. Lewinsky find a job in New York City. Mr. Jordan was unequivocal that he, not Ms. Lewinsky, was running the job search, and that he was finding Ms. Lewinsky a job at the
`behest' of the President. (See Cong. Rec. S1245; Mr. Jordan Dep. 2/2/99). This word choice is telling. The Dictionary defines `behest' as `an authoritative order,' or secondarily as `an urgent prompting,' and suggests `command' as a synonym. Merriam-Webster's Collegiate Dictionary (Tenth Edition 1993) p. 103.
The only remaining question is whether the President directed Mr. Jordan to find Ms. Lewinsky a job in order to get Ms. Lewinsky to `withhold testimony, or withhold a record, document or other object, from an official proceeding,' or for some other purpose. In evaluating this issue, the President's past failure to provide job assistance to Ms. Lewinsky is relevant. Since Ms. Lewinsky left the White House in April 1996, she was anxious to get back and enlisted the President's support. He never helped her return to the White House. Eventually, Ms. Lewinsky despaired of ever receiving any job assistance from the President to help her return to the White House and turned her sights to a job in New York. Once again, the President's level of job assistance was underwhelming until Ms. Lewinsky's name appeared on the witness list in the Jones case. At that point, Mr. Jordan, at the `behest' of the President, put the job search into full gear.
However, Mr. Jordan's involvement with Ms. Lewinsky was not limited to finding her a job. He also found her a lawyer, a lawyer who oversaw the filing of an affidavit that turned out to be false. The same affidavit the President suggested Ms. Lewinsky could file in their late night telephone call. The same affidavit that the President's lawyer attempted to use to keep the Jones lawyers from questioning the President about Ms. Lewinsky.
Mr. Jordan also shared a breakfast with Ms. Lewinsky in which they discussed draft notes between Ms. Lewinsky and the President. Mr. Jordan initially denied that this breakfast meeting had taken place. However, when confronted with a receipt for breakfast, Mr. Jordan conceded the meeting took place and that the subject of the notes came up. Ms. Lewinsky testified that Mr. Jordan told her to make sure that those incriminating notes were destroyed. Mr. Jordan denies that he gave her that advice. Ms. Lewinsky's testimony on this subject is certainly entitled to great weight because she has consistently remembered the breakfast and what transpired, while Mr. Jordan previously denied that the breakfast had occurred. But this conflict in the testimony need not be resolved. Mr. Jordan is not on trial. The President is, and the fact that the person he designated to get Ms. Lewinsky a job was also discussing incriminating notes relevant to the Jones litigation and finding her a lawyer to file an affidavit in that case undermine the President's claim that the job search and the Jones litigation were unrelated.
Although Ms. Lewinsky has testified that the President never expressly conditioned her job assistance on her continued cooperation in the Jones litigation, her conduct shows an implicit connection between the job search and the Jones litigation. When she received a subpoena from the Jones lawyers she went to her job counselor. When she had concerns about what to do with incriminating notes, she discussed the matter with her job counselor.
The evidence demonstrates that the motivation for the job search was not to enhance Ms. Lewinsky's career or to find her a `dream job.' The President had the opportunity to give her a `dream job' at the White House and declined. Instead, the evidence shows beyond a reasonable doubt that the job search was intimately tied to the Jones litigation and designed to ensure Ms. Lewinsky's continuing cooperation.
MR. BENNETT'S USE OF THE FALSE AFFIDAVIT
The next example of obstruction of justice is the President's decision to stand mute while his attorney used an affidavit the President knew to be false to make representations to a federal judge that the President knew to be false. As I have noted, I do not think the President's act of omission constitutes a separate act of obstruction. However, I do think the President's failure to object to the use of this false affidavit sheds light on many of the President's acts of commission that do constitute obstruction of justice and witness tampering, such as his suggestion that Ms. Lewinsky file an affidavit to avoid testifying in the Jones case.
INFLUENCING THE TESTIMONY OF HIS AIDES
The final example of obstruction cited by the House involves the President's false statements to aides who were potential grand jury witnesses. Most of the evidence on this point is not in dispute. The President insisted before the grand jury that he was truthful with his aides. However, the President's own aides now admit that he lied to them. There is no dispute that those lies were repeated to the
grand jury. The only remaining question is whether the President told these lies to his aides with the expectation that they would resurface in the grand jury.
The White House's principal defense on this point is that the President's lies to his aides were no different than the lies he had told the entire American people. This is a strange defense. Essentially, it attempts to make a virtue out of the fact that the President lied to every American, without respect to whether they were potential witnesses. The legal point appears to be that the President's aides could not obstruct the due administration of justice because the grand jurors already were exposed to the President's false denials.
There are several problems with this argument, not the least of which is that it is based on a false premise. The President did not merely repeat the same denials he made to the public at large. The President's denials to his aides were embellished and substantially more detailed. The President did not tell the American people that Ms. Lewinsky was a stalker or categorically state that there was no sex `in any way whatsoever,' though he labored hard to leave that false misimpression. He did share these details with his aides, and they repeated them to the grand jury. These details, moreover, were not immaterial to the grand jury's investigation. These details, such as the characterization of Ms. Lewinsky as a stalker, directly attack the credibility of the principal witness against the President in the grand jury proceeding. As a result, I am convinced beyond a reasonable doubt that the President obstructed justice when he lied to his aides.
THE LAW OF OBSTRUCTION OF JUSTICE AND WITNESS TAMPERING
The President's conduct clearly violates the federal criminal statutes against obstruction of justice and witness tampering. The federal obstruction of justice statute requires the government to prove three elements: `(1) there was a pending federal judicial proceeding; (2) the defendant knew of the proceeding; and (3) the defendant acted corruptly with the specific intent to obstruct or interfere with the proceeding or due administration of justice.' 35 American Criminal Law Review 989,992 (1998). There is no real dispute in this case that the President knew that the Jones' suit was pending when he engaged in the conduct covered by the obstruction of justice article. The only relevant legal question is whether he intended to obstruct justice in the Jones case.
There is ample evidence in the record to suggest that obstructing justice in the Jones case was the President's precise intent. Indeed, the President's own testimony makes clear that he viewed the Jones litigation as illegitimate. He stated that he `deplored' the Jones lawsuit and felt it was only going forward `because of the funding they had from my political enemies.' (See Sen. Rec. Vol. III, part 1, at 532; Mr. Clinton 8/17/98 GJ, at 80.) As a result, the President concedes that, in his words, he was `not trying to be particularly helpful' to the Jones lawyers. (See Sen. Rec. Vol. III, part 1, at 480; Mr. Clinton 8/17/98 GJ, at 28.) Moreover, the discussion of the specific examples of obstruction of justice make clear that the President's advice that Ms. Lewinsky file a false affidavit, the President's coaching of witnesses, and the job search were all done with the object of obstructing justice in the Jones litigation.
The Victim and Witness Protection Act of 1982 criminalized a particular form of obstruction of justice, witness tampering. Part of that act, section 1512(b) of the federal criminal code, sets out the four elements of witness tampering. `Under section 1512(b), the government must prove that the defendant: (1) knowingly (2) engaged in intimidation, physical force, threats, misleading conduct or corrupt persuasion, (3) with intent to influence, delay or prevent testimony or cause any person to withhold a record, object or document (4) from an official proceeding.' 35 American Criminal Law Review 989, 1004 (1998). Each of these elements is satisfied in this case.
The President's attorneys have emphasized that the President never physically threatened any potential witness. In particular, they point to Ms. Currie's testimony that she never felt threatened or intimidated in her conversations with the President. However, that is simply not relevant under the federal witness tampering statute, which criminalizes not just physical intimidation, but corrupt persuasion and misleading conduct as well. What is more, the statute makes clear that it applies to any witness in any official proceeding, and the statute specifies in subsection (e) that `an official proceeding need not be pending or about to be instituted at the time of the offense.' As with the perjury counts, the President's legal defenses misstate the applicable law. Just as federal law does not require two witnesses to support a conviction for grand jury perjury, the assertion that witness tampering requires actual intimidation simply misstates the law.
HIGH CRIMES AND MISDEMEANORS
My careful examination of the evidence, legal precedent and arguments made by both sides convinces me that the President committed perjury, obstructed justice and violated the federal witness tampering statutes. Having reached this conclusion, the remaining step in my analysis of the cases to examine whether these criminal acts require the President's removal from office. In other words, do perjury and obstruction of justice constitute high crimes and misdemeanors? The precedents of the Senate provide an unequivocal answer: the Senate has repeatedly treated perjury as a high crime and misdemeanor that justifies--indeed, necessitates--removal.
Three times in the last fifteen years the House has impeached and the Senate has removed a federal judge for perjury or related crimes. In two of the three cases, moreover, the judge was removed for lies that had nothing to do with his official duties. Judge Harold Claiborne was removed for filing false tax returns under penalty of perjury. Judge Walter Nixon was removed for lying to a federal grand jury about his efforts to influence a state judicial proceeding. The Senate's precedents on perjury as an impeachable offense are clear. Moreover, there is simply no basis in the Constitution to apply a less demanding standard of the President than has been traditionally applied to federal Judges. A single provision of the Constitution creates a single standard of impeachment for all `Officers of the United States,' Judges and the President alike. To be sure, the Constitution specifies that federal Judges `shall hold their offices during good behavior.' Art. III, sec. 1. However, this clause has always been understood as establishing life tenure, as opposed to a relaxed standard for impeachment, and no Judge has ever been impeached or removed for `bad behavior.' In sum, the notion that the President--with his infinitely greater effect on the culture, for good or ill--would be held to a lesser standard than one of 800 federal Judges has as little basis in common sense as it has in the Constitution's text.
Of course, even if we did not have the benefit of the Senate's precedents treating perjury as a high crime, and had to consider this issue as an original matter, I would have little difficulty concluding that perjury and obstruction of justice qualify as high crimes and misdemeanors. The Constitution's use of the adjective `high' to modify the phrase `crimes and misdemeanors' suggests that there may be some crimes and misdemeanors that do not form the basis for impeachment. However, those crimes, such as perjury and obstruction of justice, that undermine public confidence in government and strike at the integrity of our systems of government and justice surely must be covered by the phrase 'high crimes and misdemeanors.'
In addition, the scope of `high crimes and misdemeanors' is informed by the two crimes specifically enumerated in the Constitution as a basis for impeachment, treason and bribery. Both these crimes, in common with perjury and obstruction of justice, threaten the proper functioning of government--either directly in the case of treason, or indirectly, by undermining the government's integrity, in the case of bribery. Perjury is bribery's twin. Perhaps the clearest illustration of this point is that the President could have accomplished the same result in this case--interfering with the Jones litigation--by bribing a witness or the Judge. Perjury, like bribery, has been grouped among the most serious crimes at least since the founding of our nation
John Jay, one of the three authors of the Federalist papers and our nation's first Chief Justice, provides a glimpse of the framers' views on the seriousness of perjury. When riding circuit in Bennington, Vermont in the Summer of 1792, Chief Justice Jay instructed the Grand Jury in a perjury persecution. His instruction is worth quoting at length;
Independent of the abominable insult which perjury offers to the divine Being, there is no crime more extensively pernicious to Society. It discolours and poisons the streams of justice, and by substituting falsehood for truth, saps the Foundation of personal and public rights. Controversies of various kinds exist at all times, and in all communities. To decide them, Courts of justice are instituted. Their decisions must be regulated by evidence, and the greater part of the evidence will always consist of the testimony of witnesses. This testimony is given under those solemn obligations which an appeal to the God of Truth impose; and if oaths should cease to be held sacred, our dearest and most valuable rights would become insecure.
There is ample evidence to support Chief Justice Jay's view that, of all crimes, perjury is among the most pernicous to society, and one that has always been thought to rise to the level of `high crimes and misdemeanors.' It is not
surprising then, that the Kentucky Constitution of 1792 directed that: `Laws shall be made to exclude from office and from suffrage those who thereafter be convicted of bribery, perjury, forgery or other high crimes or misdemeanors.' Art. VIII cl. 2. Moreover, the belief that perjury is an impeachable high crime is not limited to the framers. Less than a decade ago in a law review article, Chief Justice Rehnquist, the presiding officer in this impeachment trial, summed up our national experience with impeachment by noting that `impeachment has been confined to flagrant abuse of office--perjury, bribery, and the like.' William Rehnquist, The Impeachment Clause: A Wild Card in the Constitution, 85 Northwestern University Law Review 903, 910 (1991).
The point has also been raised that the President's conduct does not rise to the same levels as President Nixon's conduct in Watergate. That may well be true, but it is also irrelevant. Not every high crime and misdemeanor is created equal, but all require removal under the express terms of the Constitution. However, whatever differences exist between President Clinton's conduct and Watergate, the reaction of Watergate Special Prosecutor Leon Jaworski to President Nixon's misconduct is telling. Of all the misconduct portrayed on the famous Nixon tapes, Jaworski found one strip of dialogue `the most repulsive on the tape. In that strip the President--a lawyer--coached [his aide] to testify untruthfully and yet not commit perjury. It amounted to subornation of perjury. For the number-one law enforcement officer of the country it was, in my opinion, as demeaning an act as could be imagined.' Leon Jaworski, The Right and the Power--The Prosecution of Watergate 47 (1976).
That is perjury. The nation's first Chief Justice stated that `there is no crime more extensively pernicious to Society.' Our current Chief Justice described it as a `flagrant abuse of office.' And the Watergate Special Prosecutor thought subornation of perjury by the President `as demeaning an act as could be imagined.' There is no doubt in my mind that perjury and the closely related crime of obstruction of justice are high crime and misdemeanors. Moreover, having concluded that the President committed these high crimes, the Constitution leaves me with no further discretion--it states that the President `shall be removed from office for impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.'
Some have argued that the Senate retains some discretion not to remove a President even if the evidence shows that he committed acts that constitute high crimes or misdemeanors. This simply misreads the Constitution. The Constitution is unequivocal that the President shall be removed upon conviction of a high crime. As Justice Story observed in his Commentaries on the Constitution, `the Senate, on the conviction, [is] bound, in all cases, to enter a judgment of removal from office.' The Senate recognized this constitutional imperative in the trial of Judge Halsted Ritter in 1936, when it expressly rejected the need for a second vote on the question of removal, after the Senate had convicted him of high crimes. Conviction without removal would be a direct affront to the Constitution. It is no less an affront to refuse to convict despite facts that support conviction for a high crime because of an unwillingness to trigger the consequences demanded by the Constitution. Such an action subverts both the Constitution and the rule of law. It arrogates to Senators the authority to second guess the Constitution and conclude that although the President has committed crimes for which others should be removed, in this case the President should be permitted to remain in office. It is a brazen act of jury nullification.
The Constitution empowers the Senate to conclude that the facts do not support the crimes alleged in the articles of impeachment. Likewise, the Senate may conclude that the crimes alleged in the articles do not rise to the level of high crimes and misdemeanors. But nothing in the Constitution allows the Senate to refuse to convict if it finds that the facts support the articles, and the articles allege high crimes. There has been much talk in this case about the rule of law. A power to refuse to convict in the face of evidence of a high crime is the antithesis of the rule of law. It is the rule of whim. Such an action would go beyond repudiating the value of the Senate precedents that perjury is an impeachable offense, it would destroy the value of all Senate precedents. As Justice Story warned while riding circuit over 160 years ago, if jury nullification were permitted, `it would be almost impracticable to ascertain, what the law . . . actually is.' United States v. Battiste, 24 F. Cas. 1042 (Cir. Ct. D. Mass. 1835).
Any discretion that exists in the constitutional framework to refuse to act in the face of impeachable offenses lies in the House of Representatives. The law has long recognized the legitimacy of prosecutorial discretion. But the law has also long criticized jury nullification. Unlike a normal jury, the Senate has the power to
determine both law and facts. What it lacks is the raw power to refuse to convict in the face of law and facts that both support conviction.
I cannot leave this discussion of perjury and obstruction of justice as high crimes and misdemeanors without a comment on the consequences of failing to remedy perjury and obstruction of justice by the number-one law enforcement in the nation. Chief Justice Jay warned of the dangers of diluting the importance of oaths: `[I]f oaths should cease to be held sacred, our dearest and most valuable rights would become insecure.' If the President of the United States--our nation's leader and the man surveys still identify as the most admired in America even after all this--can commit perjury and obstruct justice without any immediate consequence, it is difficult to see how oaths will continue to be held sacred. We can either abandon all perjury prosecutions or acknowledge that the President is above the law. Those are the choices: lawlessness or hypocrisy. Either option carries grave risks that oaths will `cease to be held sacred.'
Removing the President, by contrast, will not only reinforce the importance of oaths; it will demonstrate the importance of personal responsibility and accountability. Rather than signaling that some in society are too talented or important for the normal rules to apply, removing the President will teach that actions have consequences, no matter who you are. We have an opportunity either to set a good example for our children or to enshrine the `Clinton defense' and the `Clinton exception' to the importance of telling the truth. We need to send a message that the grand words that grace the Supreme Court--equal justice under law--mean what they say.
After sifting through the evidence presented by both sides, all relevant legal precedents, and all the arguments by counsel, it is plain that the President committed perjury and obstructed justice. The prosecutors have done more than show that the President lied and tampered with witnesses. They have proven the elements of these crimes beyond a reasonable doubt. These federal crimes are not technical violations of an obscure law. They are crimes as old as the nation. They strike at the heart of the integrity of our government. Not surprisingly, Congress always has treated them as high crimes and misdemeanors that require the removal of a guilty party. In light of the President's criminal misconduct, I will vote to convict the President on both articles of impeachment.
This is the only conclusion consistent with my oath to do impartial justice. In large measure, this case is all about the importance of oaths. The President's failure to honor his oath has necessitated this entire proceeding. Although some might see a vote to acquit as expedient, I will not further damage the sacredness and vitality of oaths by disregarding my own.
I have not relished the responsibility of serving as a finder of fact and determiner of law in an impeachment trial. I am eager to return to a legislative agenda to provide Americans and Missourians with tax cuts, retirement security, educational opportunity and greater safety from drugs and crime. It is regrettable that the President's misconduct forced Congress to consider this matter. I hope the unprecedented time that Senators have spent together in this work will enable us to make strong progress on the people's business when we return to the Senate.
Finally, while I have not relished this duty, and sincerely wish the President would have spared the nation this ordeal, this responsibility is among the most important assigned to the Senate under our Constitution. It has been my goal to do my very vest to do my duty as prescribed by the Constitution. While the Constitution calls upon the Senate to remove an unfit President, it does not charge the Senate with punishing the President. Indeed, the Constitution specifically limits the Senate's remedies and leaves the President `subject to . . . punishment, according to law' through the courts. The Constitution requires a clear choice: acquit the President and leave him in office, or convict him and remove him. The framers deemed it wise not to allow the Senate to leave a President in place, but wound him with punishments short of removal. Thus, once we discharge our impeachment responsibilities, the Senate should move energetically to its legislative agenda. To accomplish legislative goals for the nation, it will be necessary for Congress and the President to work together. If Senators wish to condemn the President's conduct, they should do so on their own, and should not tie up the Senate and divert energy from doing the people's work.
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