THE IMPEACHMENT TRIAL
Jan. 15: Barr on Perjury and Obstruction
Friday, January 15, 1999
Mr. Manager BARR. Thank you, Mr. Chief Justice.
Mr. Chief Justice, Senators, learned counsel for the President, and fellow managers, on behalf of the House of Representatives, I thank the Senate for the opportunity to appear today and to present this argument. The House--and I, especially--greatly appreciate the time and effort the Senate has taken on this most important and notable matter.
You have heard the facts summarized by my colleagues. They have described for you the law of perjury and the law of obstruction. I will discuss several of the specific instances in which William Jefferson Clinton violated these laws as set forth in the articles of impeachment presented to you.
The process facing you as jurors, of fitting the Federal law of obstruction of justice and of witness tampering and of perjury into the facts of the case against President William Jefferson Clinton, is not a case in which there is nor should be a great deal of difficulty. It is not a problem of fitting a round peg into a square hole. Quite the contrary. We have a case here, you have a case here, for consideration in which the fit between fact and law is as precise as the finely tuned mechanism of a Swiss watch or as seamless a process as the convergence and confluence of two great rivers such as flow through many of the cities which you represent. The evidence that President William Jefferson Clinton committed perjury and obstruction of justice is overwhelming.
These are pattern offenses.
I beg your attention to the following exposition of facts and law, but before commencing, I would like to address three issues that have come up during the course of the proceedings, which I believe might be helpful for all of us to keep in mind as we proceed not only through today's final presentations, but tomorrow's and those that will be made by learned counsel for the President.
First, by way of background on the process--that is, the process that brings us, the House managers, to the well of this great body and the trial of the President of the United States of America--as has been indicated previously by one of my colleague House managers, and as everyone here knows full well, the responsibilities, the jurisdiction, and the process between the House of Representatives and the Senate is very different in all three of those respects. Therefore, while coming as no surprise to all of you, all of us in this room, but perhaps to some in America, the steps that each body takes, and should take and must take, are very different.
Just as one example, one might ask, 'Why were no witnesses called in the House of Representatives?' A valid question. It deserves a valid answer. That valid answer can be found not simply in impeachment proceedings and the history thereof, but also in the day-in/day-out proceedings in our Federal courts and in our State courts. It can be found in the difference between the body which has responsibility and jurisdiction for charging a crime and the jurisdiction and responsibility of the body that has responsibility for trying a crime, or an alleged crime. The House of Representatives, though it is not in every respect like a grand jury, operates much more like a grand jury than a petite jury. As something akin to a grand jury, we had in mind--and I know you have in mind--being very mindful and knowledgeable about the difference in procedure between the House and Senate on matters of impeachment, that frequently in court cases presented to Federal grand juries--and I suspect similarly to State grand juries--the evidence to the grand jurors themselves is not presented through a long array, a repetitive array of witnesses themselves--witnesses, that is, with firsthand knowledge of each and every fact, which would later be proved at trial. Rather, it is the more standard procedure--certainly in Federal courts, with which I am more familiar--for the Government to present its case to the grand jury by way of summary witnesses. Normally, that would mean case agents that have been working with the assistant U.S. attorneys, or with the U.S. attorney, in gathering and evaluating the evidence that will eventually be brought to bear in the trial of the case.
If one were to be a fly on the wall of a Federal grand jury, one would normally see witnesses for the Government that would come in and discuss the general parameters and the specific evidence of the case that they would present in court, frequently summarizing the actual evidence that would be presented in court by the witnesses themselves. That is the standard operating procedure. That is not to say that there is also not presented voluminous written evidence, documentary evidence. That is frequently the case as well. Nor is that to say that there are not, from time to time, cases presented to Federal grand juries in which there are actual witnesses with firsthand knowledge.
I will simply make a point of which we are all aware. I
think as we begin, or in anticipation of your process of sifting through all of this procedure, this evidence, all of this law, we should keep in mind that our job in the House was to approach it necessarily very different from the way you approach your job as jurors, as triers of fact. We, in fact, presented to the House of Representatives, through the work on our Judiciary Committee, a large volume of evidence presented to us and through us to the House of Representatives as the charging body, not the trier of fact body. That is, to essentially summarize and discuss through the words, through the opinions of the independent counsel, as akin to the chief investigative officer in a grand jury in Federal district court, through the words of many expert witnesses, as it were, who placed all of that in context.
We did not want to usurp your duty, your responsibility given to you by the Constitution as the trier of fact. We are not that presumptuous. It is your responsibility, it is your solemn duty to be the trier of fact. That is very different from our solemn duty, which I believe the House performed admirably in essentially reaching the conclusion that there is probable cause to convict the President of perjury and obstruction of justice. And we did so in a way that is mindful and respectful of your responsibilities, that carried out our responsibilities, and that is familiar to citizens all across this land, because it is essentially the same process that operates in Federal courts where you see also, as here, a very clear distinction between the body that charges the crime, the grand jury, and the body that tries the crime--that is, the jury, and in this case it is the Senate of the United States of America.
A second point that may very well come up, perhaps, in the presentation of the defense by the President's learned counsel, which although very familiar to those of us, as there are many in this Chamber with a legal background, but which I think also is important to keep in mind as you reflect on and later deliberate on the evidence itself in this case; and that is that there are, indeed, two types of evidence. In virtually every case, whichever finds its way to a court of law and results in a trial, both types of evidence are found, used, considered, and form the basis, legitimately, for the eventual rendering of a decision by a jury. Those two types of evidence are direct and circumstantial.
Frequently--and I know this from actual experience--defense lawyers will attack the Government's case, and one of the standard attacks that they level against the Government's case is that it is based on circumstantial evidence. You even hear that by the folks out there today--not in this room--that are saying, 'Oh, all we are seeing is circumstantial evidence and that is not as good as direct evidence.'
Now, to the lay person who is unfamiliar with the ways of our laws, our courts, and the work of this great body, that may have some currency, it may have some surface appeal. They may say, 'Well, that commentator was right, and that White House spokesman was right. If all they are doing is talking about circumstantial evidence, they can't have a very strong case, because if they had a strong case, they would have direct evidence.'
Well, the fact of the matter is, it is a principle of long and consistent standing in every Federal court in our land, and I suspect every State court in our land, and as directed by every Federal judge to every Federal jury taking evidence, circumstantial evidence is to be, and shall not be afforded any less weight than direct evidence. And triers of fact are directed by judges in every case not to accord less weight to one type of evidence as opposed to the other. That is, in the words of one of my fellow managers, a smokescreen, a red herring if somebody raises as a defense in a case--this case or other cases--that the case is weakened somehow because there is a reliance on circumstantial evidence and it is not found solely on direct evidence.
That is a very important principle. I would appreciate your indulgence in that small foray into some basic precepts that I think all of us, certainly most of you included, need to keep in mind.
Finally, there is one other sort of process argument that one hears sort of floating around in the ether out there that I think also is important for all of us to keep in mind; that is, facts and the law do bear repeating--not endless, not pointless, but appropriate repetition. Even today, even yesterday in the first round of presentations to this body, there was in fact repetition of certain facts, certain aspects of the law. That is not presented to you simply to emphasize a point, simply to make it appear stronger because we say it five times instead of two. There is a very important reason for appropriate repetition.
For example, in a case such as this where you have two sets of laws alleged to have been violated--perjury laws and obstruction of justice laws--each one of those has several different elements. And, in addition to that, it is legitimate as presenters of facts in the law for managers, for prosecutors, or plaintiff's attorneys to take a particular fact, a particular note, and use it to illustrate several different points. For example, one particular fact may provide evidence of motive. It may also provide one of the substantive elements of perjury or obstruction of justice, or it may go to the state of mind of a declarant, a witness. It may provide important evidence with regard to a course of conduct, prior knowledge, and the list goes on.
That is why, Senators, frequently in the course of these particular presentations--and, again, no different from the course of presentation in Federal and, I suspect, State courts throughout the land--in trials there necessarily is and should be, in order to responsibly present all of the evidence in all of its elements, certain repetition. Our job as managers is to make sure we do not abuse that necessity and that we do not in fact offer repetitive notion, repetitive references, without having a very clear and specific purpose such as I mentioned for that process.
Finally, before turning to that merger of the law and the facts, which I believe will illustrate conclusively that this President has committed and ought to be convicted on perjury and obstruction of justice, I would respectfully ask that you remember that, under the law of impeachment based on our Constitution, proof beyond a reasonable doubt that the President committed each and every element of one or more violations of provisions of the Federal Criminal Code has never been required to sustain a conviction in any prior impeachment trial in the Senate. However--and I can say confidently that I speak for all House managers in relating to you our belief that the record and the law applicable to these two articles of impeachment clearly establish that President William Jefferson Clinton did in fact violate several provisions of title 18 of the United States Code--that is the criminal code--including perjury, obstruction, and tampering with witnesses.
At this point, a lawyer would face, a fortiori--I will not, but I will say at this point that it therefore goes without saying that indeed exists--under every historical standard, every historical benchmark which this Chamber has used, there is more than sufficient grounds on which you might face a conviction as to both articles.
Beginning then in looking at how the facts and the law, both of which you have heard through the words and exhibits of my colleagues and the evidence that you already have, let us look first at the submission of the false affidavit in the Jones case.
We believe the evidence presented clearly establishes that on December 17, 1997, the President encouraged a witness in a Federal civil rights action brought against him, that witness being Monica Lewinsky, to execute a sworn affidavit in that proceeding which he knew to be perjurious, false, and misleading. As other managers have outlined, Monica Lewinsky filed a sworn affidavit in the Jones case that denied the relationship between her and the President. That affidavit was false.
Ms. Lewinsky testified under oath before the grand jury that the scheme to file this false affidavit was devised or hatched during a telephone conversation with the President on December 17, 1997, a call the President initiated to Ms. Lewinsky at 2 or 2:30 a.m. ostensibly to give her the bad news that Betty Currie's brother had been killed in a car accident but apparently, since it consumed the vast majority of the time of that conversation, more importantly, for the President to tell Ms. Lewinsky her name was on the witness list filed in the Jones case and to thereafter discuss during that conversation the President's suggestion to her that she could file an affidavit in the Jones case in order for the purpose of avoiding having to testify in that case--not to cover up but in order to avoid having to testify in an ongoing legal proceeding in U.S. district court.
She testified that both she and the President understood from their conversation they would continue their pattern of covering up. She testified she knew that if she filed a truthful affidavit the Jones lawyers would certainly have deposed her in that case.
The testimony of Mr. Vernon Jordan confirms the President knew Ms. Lewinsky planned to file a false affidavit. He stated that, based on his conversations with the President, that the President knew in advance that Ms. Lewinsky planned to execute an affidavit denying their relationship and that he later informed the President Ms. Lewinsky had signed in fact that false affidavit.
For his part, the President denies asking Ms. Lewinsky to execute a false affidavit. Instead, as he asserted in his response to the House Judiciary Committee's request for admission, he seeks to have you now believe he sought simply to have Ms. Lewinsky execute an affidavit that will 'get her out of having to testify.'
While being factually correct, this statement reflects a legal impossibility. The President has admitted Ms. Lewinsky was the woman with whom he indeed had an improper intimate relationship while President. And he has admitted he was very concerned over the great personal embarrassment and humiliation he feared would have occurred if that relationship had been revealed in the Jones case. Yet, he would have you believe he cannot remember a call he made to that woman about that case which occurred at 2 o'clock in the morning. His statement is not credible, and the reason it is not credible is because it is not true.
As Mr. Jordan's grand jury testimony corroborates, the President knew what Ms. Lewinsky planned to allege in her affidavit, yet the President took no action to stop her from filing it. As you have heard in earlier presentations, the President's lawyer, Mr. Robert Bennett, stated in court directly to Judge Wright when he presented the false affidavit, 'There is absolutely no sex of any kind in any manner, shape or form,' and that the President was 'fully aware of Ms. Lewinsky's affidavit.' The President took no action to correct his lawyer's misstatement.
As you have also heard, the President, in his grand jury testimony, tried to disingenuously dissect the words of his attorney to remove his conduct from further examination, even though obviously, and by any reasonable interpretation or inference of the definition given the President, his conduct with Ms. Lewinsky was covered. And he disavowed knowledge of his lawyer's representations by claiming he was not paying attention. That canard has been most ably disposed of in prior presentations both through the words of the managers and the videotape presentations.
Later in the deposition, when Mr. Bennett read to the President the portion of the affidavit in which Ms. Lewinsky denies their relationship and asked him 'is that a true and accurate statement as far as you know it,' the President answered, 'That is absolutely true.' This statement is neither credible nor true. It is perjury.
The inescapable conclusion from this evidence is that the President has lied, and continues to lie, about the affidavit. His continued false statements and denials about the affidavit bolster the conclusion of our managers that, in fact, he was part of the scheme to file the false affidavit. The evidence supports Ms. Lewinsky's account that such a scheme did in fact exist between them. The evidence and all reasonable inferences drawn therefrom do not support the President's denial--inferences, I respectfully add, that in your deliberations, as in the deliberations of any jury, are to be and should be based on common sense and deliberated in terms of the light of your experiences in judging human behavior.
Moreover, in engaging in this course of conduct, referring here to the words of the obstruction statute found at section 1503 of the Criminal Code, the President's actions constituted an endeavor to influence or impede the due administration of justice in that he was attempting to prevent the plaintiff in the Jones case from having a 'free and fair opportunity to learn what she may learn concerning the material facts surrounding her claim.' These acts by the President also constituted an endeavor to 'corruptly persuade another person with the intent to influence the testimony they might give in an official proceeding.' Such are the elements of tampering with witnesses found at section 1512 of the Federal Criminal Code.
Ms. Lewinsky knew full well her only hope of not having to testify was to file an affidavit that did not truthfully reflect her relationship with the President. The President also knew that if she had filed a true affidavit, without any doubt, it would have caused the Jones lawyers to seek her further testimony--something both coconspirators desperately sought to avoid.
In encouraging her to file an affidavit that would prevent her from having to testify, President Clinton was, of necessity, asking her to testify falsely in an official proceeding. He was
attempting to prevent, and in fact did prevent, the plaintiff in that case from discovering facts which may have had a bearing on her claim against the President. His motive was improper in the language of the law, that is, corrupt. And his actions did influence the testimony of Ms. Lewinsky as a witness in the pending official proceeding in U.S. district court.
Under both sections of the Federal Criminal Code, that is, 1503, obstruction, and 1512, obstruction in the form of witness tampering, the President's conduct constituted a Federal crime and satisfies the elements of those statutes.
With regard to the issue of perjury before the grand jury concerning the affidavit, we as managers would show that when asked before the grand jury whether he had instructed Ms. Lewinsky to file a truthful affidavit, President Clinton testified, 'Did I hope she would be able to get out of testifying on an affidavit? Absolutely. Did I want her to execute a false affidavit? No, I did not.'
The evidence, however, clearly establishes that the President's statement constitutes perjury, in violation of section 1623 of the U.S. Federal Criminal Code for the simple reason the only realistic way Ms. Lewinsky could get out of having to testify based on her affidavit would be to execute a false affidavit. There was no other way it could have happened. The President knew this. Ms. Lewinsky knew this. And the President's testimony on this point is perjury within the clear meaning of the Federal perjury statute. It was willful, it was knowing, it was material, and it was false.
Let us reflect and see also, members of the jury, how the use of cover stories and the development thereof ties in the facts and the law that constitute a basis on which you might properly find a conviction on perjury and obstruction of justice.
We, as managers, believe that the evidence presented to you also establishes that on December 17 the President encouraged a witness in a Federal civil rights action brought against him to give perjurious, false and misleading testimony when called to testify personally in that proceeding. This was, in essence, the conspiracy--18 USC 371--to commit both obstruction and perjury.
Throughout their relationship, the President and Ms. Lewinsky, understandably, wished to keep it secret, and they took steps to do that, steps that ultimately turned out to be and constitute criminal acts. For some time, in fact until Ms. Lewinsky testified under oath and under a grant of immunity, their efforts were remarkably successful, all things considered --all circumstances considered. Associates and employees testified in support of the President's stories, and even several Secret Service officers testified to the grand jury that they understood Ms. Lewinsky to be in the Oval Office to 'pick up papers.' Yet, as Ms. Lewinsky testified, her White House job never required her to deliver papers or obtain the President's signature on any documents. It was all a sham. It was all a cover story. It was all a conspiracy to obstruct.
Ms. Lewinsky testified later, after she left the White House job to work at the Pentagon, that phase 2 of the coverup went into effect. The two coconspirators began to use Ms. Currie as a source of clearance into the White House. This was so even though the purpose of Ms. Lewinsky's visits were almost always to simply see the President. As my colleagues have told you, on December 17, during that 2 a.m., or perhaps it was 2:30, telephone conversation placed by the President to Ms. Lewinsky, he told her her name appeared on the witness list in the Jones case. She testified that at some point in the conversation the President told her, 'You know, you can always say you were coming to see Betty or that you were bringing me letters.' Ms. Lewinsky testified that she understood this to be 'really a reminder of things that they had discussed before.'
She said it was instantly familiar to her. He knew, or, 'I knew,' she says--that is, Ms. Lewinsky knew--'exactly what he meant.' And so, I respectfully submit, do all of us here know exactly what the President meant.
When the President, then, was questioned before the Federal grand jury if he ever had said something like that to Ms. Lewinsky, he admitted that, well, 'I might. . .have said that. Because I certainly didn't want this to come out, if I could help it. And I was concerned about that.'
A cover story--which this was--between two teenagers trying to steal a date without their parents' knowledge is one thing. Such would not constitute a crime. It would be something we might even wink at, as long as it didn't happen too often. However, we are not here dealing with two love-struck teenagers trying to circumvent their parents' watchful eyes. We are dealing here with the President of the United States of America and a subservient employee concocting and implementing a scheme that, while perhaps not illegal in its inception--simply trying to keep the relationship private--did in fact deteriorate into illegality once it left the realm of private life and entered that of public obstruction.
However--and this is critical in terms of establishing the illegality or convictability of the President's actions--the situation at the time of that early morning phone call from the President to Ms. Lewinsky was very different from that facing the President during any earlier discussions of a cover story.
Now, in early December 1997, Ms. Lewinsky had been officially named as a witness in a pending judicial proceeding. She was now under an obligation to give complete and truthful testimony and he, the President, was under a legal obligation at that time not to tamper with her or her possible testimony. This is precisely where private lies become public obstruction. This is, in fact, the bright line between childlike pranks and deadly serious obstruction of our legal system. The President and Ms. Lewinsky at that point entered the big leagues, and the President, a highly skilled lawyer, knew it, which is why he went to such lengths to continue the coverup for so many months.
The President knew that if Ms. Lewinsky were to testify that she only brought papers to the President or to see the President's secretary, her testimony would have been neither complete nor truthful. Yet, the President encouraged her to give that untruthful testimony and, in so doing, he broke the law of obstruction of justice. And, in lying about it, he compounded the problem by breaking the law of perjury.
As Mr. Cannon made clear, with regard to section 1503, the general Federal obstruction statute of the criminal code, a person commits the crime of obstruction of justice when he attempts to influence the due administration of justice, which includes all aspects of any civil or criminal case, including pretrial discovery.
Mr. Clinton's encouragement to Ms. Lewinsky to tell something other than the truth certainly would have influenced the discovery process in the Jones case. Courts have consistently held that civil discovery is every bit a part of the due administration of justice, protected by the obstruction statutes, as any other aspect of any other civil or criminal case. And, as Mr. Cannon also made clear with regard to section 1512 of the Federal Criminal Code, a person commits witness tampering when he attempts to influence another person to give false testimony in an official proceeding.
Mr. Clinton did encourage Ms. Lewinsky to give false testimony about her reasons for being in the White House with the President. By encouraging her to lie, the President committed the crime of obstruction of justice under section 1503 and the crime of witness tampering under section 1512 of the Federal Criminal Code.
You have also, Members of the Senate, heard about the President's statements to Ms. Currie on January 18, and then again on the 20th or 21st. The President spoke with her in what was clearly, demonstrably, unavoidably, another potential witness to be influenced in the civil rights case. The President did this in this case by relating to Ms. Currie false and misleading accounts of events about that case as to which he was going to testify, had testified, and, again, with the intent that his recitation of the so-called facts would in fact corruptly influence her testimony.
As the managers have previously described to you, the evidence in this case shows that on that Saturday, January 17, only 2 1/2 hours after the President had been deposed in the Jones case, he called his secretary at home and asked her to come to the White House the next day, a Sunday. She testified--Ms. Currie, that is--testified this was very unusual. It was rare for the President to call and ask her to come in on a weekend, but of course she did--the next day, Sunday, January 18, 1998, at about 5 p.m.
She testified to the grand jury that during her meeting with the President he said to her, 'There are several things you may want to know.' He then proceeded to ask her a number of questions in succession. You were presented evidence of these
five statements by other managers. I will only emphasize that it was at that time and in that way, in that manner, that the President led Ms. Currie through a series of statements and determinate questions to establish a set of facts describing his relationship with Ms. Lewinsky at the White House that supported his false testimony.
As you have heard, Ms. Currie stated under oath she indicated her agreement with each of the President's statements, even though she knew that the President and Ms. Lewinsky had, in fact, been alone in the Oval Office and in the President's study. Prosecutors frequently see this pattern. It is not unknown to prosecutors, Federal or State. You frequently see this pattern of agreeing to things that the person knows are not true, where you have a dominant person suggesting testimony to another person who is in a subordinate relationship. This, I submit, is yet another bright line between a private lie and public obstruction.
During the President's grand jury testimony he was asked about his statements to Ms. Currie. He testified he was trying to determine whether his recollection was accurate. As he put it, 'I was trying to get the facts down. I was trying to understand what the facts were.' This fits the same pattern of a classic obstruction of prosecution, in which a defendant suggests a story to someone in the hopes that they will later testify consistent with that earlier suggestion. Indeed, when defendants in Federal courts defend against obstruction prosecutions in those type cases, they frequently rely on the very same defense the President raises here--that he was merely and oh-so-innocently encouraging the other person to tell the truth.
You may want to see, as an example of an unsuccessful effort at such a defense, the case of United States v. O'Keefe, a Fifth Circuit case from 1983. In that case, Mr. O'Keefe did not ask someone to lie. He did not even say, 'I suggest you lie.' Rather, as is almost always the case in white-collar obstruction prosecutions, his words, along with their setting and their context, suggested a certain story--in that case as well as this, a false story. Just as Mr. O'Keefe did not expressly ask someone to lie, Mr. Clinton never asked someone to lie. He didn't have to. He was too smart for that, and he had witnesses who, at that time at least, were willing, ready, and able to do his bidding. The President lied to the grand jury when he made these statements mischaracterizing his earlier statements to Mrs. Currie, just as he tampered with her as a likely witness 9 months earlier, in January.
The President's assertion--that he simply was trying to understand what the facts were--lacks even colorable credibility, when one considers that he had already testified. It was obviously too late to try to recollect what the 'facts" were. If in fact one accepts that, then he is admitting he didn't testify to what the facts were under oath at the deposition, because he didn't say, 'I don't know; I have to ask Mrs. Currie.' He testified under oath as to what the facts purportedly were. Then he would have us believe that he had to, after the fact of the deposition, go back and find out what the facts were from somebody else.
That is an argument that cannot be made with a straight face.
In any event, Ms. Currie could not have told him what the true facts were, because he alone knew what they were.
The defenses and explanations the President's defenders raise to justify why the President would make factual assertions to Ms. Currie about the circumstances of his relationship with Ms. Lewinsky, right after his testimony, are many. For example, one administration witness who appeared before the House Judiciary Committee actually suggested that such 'coaching' is proper as a method whereby an attorney 'prepares' a client or witness for testimony.
Of course, such a suggestion in this case would be ludicrous. President Clinton obviously did not and could not represent Ms. Currie as her attorney. Yet, it is this sort of explanation, straining credulity, that illustrates the lengths to which the President's defenders have gone to try to explain away the obvious--that there was no legitimate reason why the President made the statements to Ms. Currie after his grand jury testimony, other than to 'suggest' to her what her testimony should be. In Federal criminal trials, defendants go to jail for such obstruction. In the case before you, we submit this clearly forms a proper basis on which to convict this President of obstruction of justice for witness tampering and subsequent perjury.
Please keep in mind also, it is not required that the target of the defendant's actions actually testify falsely. In fact, the witness tampering statute can be violated even when there is no proceeding pending at the time the defendant acted in suggesting testimony. As the cases discussed by Manager Cannon demonstrate, for a conviction under either section 1503, obstruction, or 1512, obstruction by witness tampering, it is necessary only to show it was possible the target of the defendant's actions might be called as a witness. That element has been more than met under the facts of this case.
It was not only likely Ms. Currie would be called; the President's own testimony, deliberate testimony to the grand jury, pretty much guaranteed that she would be called. He wanted her called so she could then buttress his false testimony. His actions clearly, we believe, violated both the general obstruction statute and the witness tampering statute in these particulars in this regard.
With regard to the obstruction regarding the subpoena for the President's gifts to Ms. Lewinsky, let us look at the merger of the facts and the law, as has been discussed. While the witness tampering statute makes it a crime to attempt to influence the testimony of a person, it also makes it a crime to influence a person to withhold an object from an official proceeding; in other words, to tamper with evidence. The facts of this case, we as House managers believe, clearly show the President corruptly engaged in, encouraged, or supported a scheme with Monica Lewinsky and possibly others to conceal evidence that had been subpoenaed lawfully in the Jones case.
On December 19 of 1997, Ms. Lewinsky was served with a subpoena in the Jones case requiring her to produce each and every gift given to her by the President. Then, on December 28, Ms. Lewinsky again met with the President in the Oval Office, at which time they exchanged gifts. They also discussed the fact that the lawyers in the Jones case had subpoenaed all the President's gifts to Ms. Lewinsky and especially a hatpin. The
hatpin apparently had sentimental significance to both of them, in that it was the very first gift the President gave to Ms. Lewinsky. During that conversation, Ms. Lewinsky asked the President whether she should put the gifts away outside her house or give them to someone, maybe Betty.
At that time, according to Ms. Lewinsky's sworn testimony, the President responded, 'Let me think about that.' Apparently he did, because later that day, that very same day, only a few hours after Ms. Lewinsky and the President had met to discuss what to do with the gifts, Ms. Currie called Ms. Lewinsky, setting in motion the great gift exchange.
According to Ms. Lewinsky, Ms. Currie said, 'I understand that you have something to give me,' or '[t]he President said you have something to give me.' In her earlier proffer, or offer of evidence, to the independent counsel, prior to her testimony before the grand jury, Ms. Lewinsky said Ms. Currie had said the President had told her--that is, Ms. Currie--that Ms. Lewinsky wanted her to hold on to something for her.
After their conversation at the Oval Office, Ms. Currie drove to Ms. Lewinsky's apartment for only the second time in her life. There she picked up a box sealed with tape and on which was written 'Please, do not throw away.' Ms. Currie then took the box, drove to her home, and placed the box under her bed.
In her grand jury testimony, Ms. Currie testified that she and Ms. Lewinsky did not discuss the content of the box, nor did she open it when she got it to her home, but she knew--she 'understood' what was in the box--that it contained the gifts from the President to Ms. Lewinsky. In fact, Ms. Lewinsky testified Ms. Currie was not at all confused, surprised, or even interested when she handed the box over to her.
The legal impact, the legal import, of this is that there is no question that if the gifts had actually been produced to the Jones lawyers, they would have established a significant relationship between the President and Ms. Lewinsky. Knowledge of the gifts, at a minimum, would have caused the Jones lawyers to inquire further as to the nature of the relationship between the President and Ms. Lewinsky.
Her failure to turn over the gifts as required by the lawful subpoena served on her was, in the words of the witness tampering statute, the withholding of an object from an official proceeding. We believe the evidence shows, clearly establishes, that the President corruptly persuaded Ms. Lewinsky to withhold these objects from the lawful proceedings in the Jones case.
In his grand jury testimony, the President asserted he encouraged Ms. Lewinsky to turn over the gifts. Ms. Lewinsky's testimony directly contradicts that. Importantly, all other evidence of subsequent acts corroborates her testimony, not the President's. For one thing, the gifts were never turned over. In fact, Ms. Lewinsky testified she was never under any impression, from anything the President said, that she should turn over the gifts to the attorneys for Ms. Jones. Quite the opposite.
While the President asserts he never spoke about this matter with Betty Currie, he would have us believe that his personal and confidential secretary would, on a Sunday, drive to the home of the woman with whom he was having an inappropriate intimate relationship, take possession of a sealed box which she believed to contain gifts given by the President, hide the box under the bed in her home, never question the person giving her the box, and never even mention to the President she had received the box of gifts.
The President's position, as he would have you believe, is not credible. It defies the evidence. It defies any reasonable interpretation or inference from the evidence. It defies common sense. And it stands in defiance of Federal law.
The only reasonable interpretation of the facts is that, following the discussion between the President and Ms. Lewinsky earlier in the day on December 28, the President decided Ms. Lewinsky has actually come up with a pretty good suggestion: The gifts should be put away outside of her home.
As jurors, you may reasonably presume, based on the evidence and all reasonable inferences therefrom, along with common sense, that it was the President who directed Ms. Currie to call Ms. Lewinsky to tell her she understood she 'had something for her.' And that happened to be evidence under lawful subpoena in a civil proceeding in a U.S. district court.
Ms. Currie would have no independent reason to even consider such a course of action on her own. She had never, other than one time in her life, ever driven to Ms. Lewinsky's home. She did so on this Sunday not because she developed a sudden hankering to do so or because she routinely visited interns at their homes--she didn't--or because she had a vision; she did it because the President would have asked her to do it.
Now, the President further points out that Ms. Currie has testified that Ms. Lewinsky called her to arrange to pick up the gifts, rather than the other way around. In fact, although Ms. Currie has testified inconsistently as to whether Ms. Lewinsky called her or she called Ms. Lewinsky, she actually deferred to Ms. Lewinsky's superior knowledge of the facts.
However, even if one were to accept, for purposes of argument, that it was Ms. Lewinsky who initiated the call, the President's avowal that he had no knowledge of or involvement with the hiding or the transfer of the gifts is still not plausible. It is totally unreasonable to presume that the private secretary to the President of the United States would drop what she was doing, travel to the home of a former intern, pick up a box, and hide it in her home simply because the former intern demanded that she do so. All of this had to have been done--reasonably, plausibly, credibly was done--because of communication directed and an understanding between the President and his personal secretary.
There is one more point on this. Ms. Lewinsky testified she met with the President for 45 minutes on December 28, at which time they discussed the fact that she had been subpoenaed, along with the need to conceal the gifts. The President's testimony directly conflicts with hers on this point.
First, the evidence, however, establishes that his professed inability to remember whether she and the gifts had been subpoenaed is unbelievable and false.
Please keep in mind when evaluating the circumstantial evidence to determine whether a false statement was made intentionally, the most important evidence to consider is the existence of a motive to lie. It is the calculated falsehood, combined with a clear motive to lie, that leads, day in and day out in Federal court proceedings, to the conclusion that a false statement--false statements were intentional.
Also, we urge you to bear in mind that the law will not allow a person to testify, 'I don't recall,' or, 'I'm not sure,' when such answers are unreasonable under the circumstances.
Former U.S. Representative Patrick Swindall attempted this
course of action when he appeared before a Federal grand jury in the Northern District of Georgia in 1988. His evasive and false answers to the grand jury provided the basis for his subsequent conviction.
Feigned forgetfulness or feigned assertions that grand jury questions are ambiguous and therefore cannot be answered cannot, and in fact in Federal proceedings do not, shield defendants from criminal liability for perjury or impeding the conduct of a Federal grand jury; nor should such efforts be allowed to shield President Clinton from conviction on these two articles of impeachment as to these facts.
The President, a man of considerable intelligence and gifted with an exceptional memory--as somebody described, 'a prodigious memory'--can and should be inferred to have clearly understood what he was doing, as well as the logical and reasonable consequences of his actions, as well as the questions put to him by the independent counsel in the grand jury questioning.
And he had a clear motive to falsely state to the grand jury that he could not recall that he knew on December 28 that Ms. Lewinsky had been subpoenaed and that the subpoena called for her to produce the gifts, for to have acknowledged such would have helped establish a motive on his part for orchestrating the concealment of the gifts.
And as we have also seen and understand, there is no doubt the President's statement of feigned forgetfulness was material not only to the matters before the Jones case but to matters subsequently before the grand jury.
Now, the President's counsel may very well argue the fact that the President gave Ms. Lewinsky additional gifts on that same day--that is, December 28--as proof of the President's assertions that he didn't know there was anything wrong going on here. Their argument, if they make it, cannot be sustained in the face of so much evidence to the contrary. The evidence in fact points to a much more plausible explanation. The additional gifts given that day demonstrate the President's continued confidence that Ms. Lewinsky would keep to their earlier agreement to conceal their relationship.
It is also plausible that the additional gifts were intended as a further gesture of affection by the President to Ms. Lewinsky to help ensure she would not testify against him. Such a fact pattern also finds its way to those of us who have a prosecutorial background in Federal courts on a regular basis.
We have heard about the job search and its relationship to perjury and obstruction. Let me tie the facts related to job search and the law applicable thereto together. We believe, as managers, that the evidence shows that, beginning on or about December 7, 1997, and continuing through and including January 14 of last year, the President intensified and succeeded in an effort to secure job assistance for a witness in a Federal civil rights case brought against him in order to corruptly prevent the truthful testimony of that witness in that proceeding at a time when the truthful testimony of that witness would have been harmful to him.
Monica Lewinsky is, if nothing else, a persistent witness. After she was transferred out of the White House, and after being rebuffed repeatedly by others to secure assistance from the President in gaining a job that met her expectations and wishes, she decided to change tack. She wrote directly to the President, asked for, and received a meeting in which she asked him to find her a job in New York.
The day before the President filed his answers to the interrogatories in the Jones case, as Manager Gekas discussed, the President asked Ms. Currie to set up a meeting for Ms. Lewinsky with Mr. Vernon Jordan. Two days after he filed his answers, in which he refused to answer whether he had ever had any extramarital relationships in the context of his public jobs, that meeting in fact occurred. But Mr. Jordan made no particular effort to assist Ms. Lewinsky at that time.
In fact, as he later testified, he had no recollection of the meeting. There was, of course, at that early stage, no urgency.
The situation, however, changed dramatically in early December, 1997. On December 6, the President became aware that Ms. Lewinsky had been named as a witness in the Jones case. Early that day, she had thrown a tantrum at the White House northwest gate when she was unable to meet with the President when she wanted. Despite the President's initial anger over Ms. Lewinsky's behavior and over the acts of some of the Secret Service officers a mere 5 days later, Ms. Lewinsky, in fact, secured a second meeting with Mr. Vernon Jordan. But this time, unlike previously, this powerful Washington lawyer jumped for the former intern. He immediately placed calls to three major corporations on her behalf.
On December 11, Judge Wright ordered the President to answer Paula Jones' interrogatories. On December 17, the President suggested to Ms. Lewinsky she file the affidavit and continue to use their cover stories in the event she was asked about her relationship with the President. The next day she had two interviews in New York City arranged by Mr. Jordan. On December 22nd, Ms. Lewinsky met with an attorney at a meeting arranged by Mr. Jordan. The following day she had another job interview arranged by Mr. Jordan.
On January 7, Ms. Lewinsky signed the false affidavit and proudly showed the executed copy to Mr. Jordan. The next day, Ms. Lewinsky had an interview arranged by Mr. Jordan with MacAndrews & Forbes in New York City, an interview that apparently went poorly. To remedy this, she called Mr. Jordan and so informed him. Mr. Jordan then called the CEO of MacAndrews & Forbes, Mr. Ron Perelman to, in Mr. Jordan's words, 'make things happen, if they could happen.' After Mr. Jordan's call to Mr. Perelman, Ms. Lewinsky was called and told that she would be interviewed again the very next morning. That following day she was reinterviewed and immediately offered a job. She then called Mr. Jordan to tell him and he passed the information on to Ms. Currie. 'Tell the President, mission accomplished.'
Now, what are you as jurors entitled to conclude from all of this as a matter of law and of fact? Until it became clear that Ms. Lewinsky would be a witness in the Jones case, little was done to help her with her job search. Once she was listed as a witness, things changed dramatically and rapidly. Just days after she is listed on the Jones witness list, she gets a second meeting with one of the most influential men in Washington. But, unlike their first meeting, Mr. Jordan now makes three calls on her behalf to get her a job interview. A week later the President proposed the affidavit. The next day, Ms. Lewinsky has two job interviews in New York. A few days later, Mr. Jordan arranges for an attorney to represent her. The next day she has another job interview. Two weeks later she signed the affidavit. The next day she has another interview.
'Mission accomplished.' Obstruction accomplished. Another potentially embarrassing witness in the bag.
Were Ms. Lewinsky to get a job and move to New York, this would help the President substantially in two very important ways. First, it would presumably create a happy and probably compliant witness, one willing, if not eager, to support the President's false testimony. Second, it would make Ms. Lewinsky much more difficult, if not impossible, to reach as a witness in the Jones case. In fact, this is precisely what the President
himself suggested to Ms. Lewinsky during their December 28 meeting, according to her sworn testimony.
To put it plainly, but respectfully, if that is not obstruction by witness tampering, one would be hard pressed to find a fact pattern that was.
This aspect of the case against the President is extremely important. She gets the job. And what did the President get? The key affidavit to throw the Jones lawyers off the trail and possibly a witness outside the practical reach of the attorneys, much like the absent witnesses we have seen in large numbers in the campaign financing investigations.
The President's efforts were designed to and did obstruct justice and tamper with a witness. And his actions, we submit, were criminal under both sections 1503 and 1512 of the Federal Criminal Code.
The President's false statements to his senior aides. Here, too, the facts and the law come together and would form the basis, we respectfully submit, for a conviction on articles of impeachment. All that needs to be shown to prove a violation of the statute is that the defendant engaged in misleading conduct with another person to influence that testimony. Misleading conduct is not a term of art for which there is no definition. It is specifically defined in the Federal Criminal Code as section 1515. When you, as jurors, properly apply these definitions to the terms of section 1512, the tampering statute, and then turn your attention to the facts in this case wherein the President repeatedly and deliberately gave false explanations to aides he knew or should reasonably have known would be witnesses in Federal judicial proceedings, the conclusion he violated this statute is, we respectfully submit, unavoidable. I point to one case previously mentioned, the O'Keefe case as particularly, perhaps, applicable to deliberations on this matter.
Finally, statements by the President and his lawyer concerning the affidavit during the Jones deposition. The obstruction statute may also be violated, as you know, by a person who gives false testimony. In the Jones case, the President allowed his attorney to make false and misleading statements to a Federal judge. This part of the obstruction scheme was accomplished by characterizing as true the false affidavit filed by Ms. Lewinsky in order to prevent questioning by the Jones lawyers, testimony which had already been deemed relevant by the judge in that case. The President's lawyer, as you have heard, objected to the innuendo of certain questions asked of the President, and at that point during the deposition pointed out that Ms. Lewinsky had signed an affidavit denying the relationship with the President. He then made the famous statement about there being no relationship in any way, shape or form or kind.
Following this statement, Judge Wright warned Mr. Bennett about making an assertion of fact in front of the witness--that is, in front of the President--in which he replied,
I am not coaching the witness. In preparation of the witness for this deposition, the witness is fully aware of [the] affidavit, so I have not told him a single thing he doesn't know.
The President's lawyer did not know what an understatement that was.
Later on September 30 of 1998, long after the deposition and after the full evidence of Ms. Lewinsky's relationship with the President became public, Mr. Bennett wrote to Judge Wright to inform her that she should not rely upon the statements he made during the President's deposition because parts of the affidavit were 'misleading and not true.' 'Misleading and not true.' Sounds like perjury. Sounds like obstruction.
Which brings us full circle, full circle from a false affidavit confirming earlier concocted cover stories, through a web of obstruction, to a letter from a distinguished lawyer forced to do what no lawyer wants to do, but every honorable lawyer must do when confronted with clear evidence their client has misled a court, and that is to correct a record of falsity even to the detriment of their client.
What we have before us, Senators and Mr. Chief Justice, is really not complex.
Critically important, yes, but not essentially complex. Virtually every Federal or State prosecutor--and there are many such distinguished persons on this jury--has prosecuted such cases of obstruction before in their careers--perhaps repeatedly--involving patterns of obstruction, compounded by subsequent coverup perjury. The President's lawyers may very well try to weave a spell of complexity over the facts of this case. They may nitpick over the time of a call or parse a specific word or phrase of testimony, much as the President has done. We urge you, the distinguished jurors in this case, not to be fooled.
Mr. HARKIN addressed the Chair.
The CHIEF JUSTICE. The Senator from Iowa.
Mr. HARKIN. Mr. Chief Justice, I object to the use and the continued use of the word 'jurors' when referring to the Senate sitting as triers in a trial of the impeachment of the President of the United States.
Mr. Chief Justice, I base my objection on the following:
First, article I, section 3, of the Constitution says the Senate shall have the sole power to try all impeachments--not the courts, but the Senate.
Article III of the Constitution says the trial of all crimes, except in the cases of impeachment, shall be by jury--a tremendous exculpatory clause when it comes to impeachments.
Next, Mr. Chief Justice, I base my objection on the writings in 'The Federalist Papers,' especially No. 65 by Alexander Hamilton, in which he is outlining the reasons why the framers of the Constitution gave the Senate the sole power to try impeachments. I won't read it all, but I will read this pertinent sentence:
There will be no jury to stand between the judges who are to pronounce the sentence of the law and the party who is to receive or suffer it.
Next, Mr. Chief Justice, I base my objection on the 26 rules of the Senate, adopted by the Senate, governing impeachments. Nowhere in any of those 26 rules is the word 'juror' or 'jury' ever used.
Next, Mr. Chief Justice, I base my objection on the tremendous differences between regular jurors and Senators sitting as triers of an impeachment. Regular jurors, of course, are chosen, to the maximum extent possible, with no knowledge of the case. Not so when we try impeachments. Regular jurors are not supposed to know each other. Not so here. Regular jurors cannot overrule the judge. Not so here. Regular jurors do not decide what evidence should be heard, the standards of evidence, nor do they decide what witnesses shall be called. Not so here. Regular jurors do not decide when a trial is to be ended. Not so here.
Now, Mr. Chief Justice, it may seem a small point, but I think a very important point. I think the framers of the Constitution meant us, the Senate, to be something other than a jury and not jurors. What we do here today does not just decide the fate of one man. Since the Senate sits on impeachment so rarely, and even more rarely on the impeachment of a President of the United States, what we do here sets precedence. Future generations will look back on this trial not just to find out what happened, but to try to decide what principles governed our actions. To leave the impression for future generations that we somehow are jurors and acting as a jury----
Mr. GREGG. Mr. Chief Justice, I call for the regular order and I ask, as a parliamentary point, whether it is appropriate to argue what I understand is a statement as to the proper reference relative to Members of the Senate. This is not a motion, and if it is a motion, it is nondebatable, as I understand it.
The CHIEF JUSTICE. Yes. I think you may state your objection, certainly, but not argue. The Chair is of the view that you may state the objection and some reason for it, but not argue it on ad infinitum.
Mr. HARKIN. Mr. Chief Justice, I was stating the reason because of the precedents that we set, and I do not believe it would be a valid precedent to leave future generations that we would be looked upon merely as jurors, but something other than being a juror. That is why I raise the objection.
The CHIEF JUSTICE. The Chair is of the view that the objection of the Senator from Iowa is well taken, that the Senate is not simply a jury; it is a court in this case. Therefore, counsel should refrain from referring to the Senators as jurors.
Mr. HARKIN. I thank the Chair.
Mr. Manager BARR. I thank the Court for his ruling. We urge the distinguished Senators who are sitting as triers of fact in this case not to be fooled. We urge you to use your common sense, your reasoning, your varied and successful career experiences, just as any trier of fact and law anywhere in America might do. Just as other triers of fact and law do, so, too, have each of you sworn to decide these momentous matters impartially. Your oath to look to the law and to our Constitution demands this of you. As this great body has done on so many occasions in the course of our Nation's history, I and all managers are confident you will neither shrink from nor cast aside that duty.
Rather, I urge and fully anticipate that you will look to the volume of facts and to the clear and fully applicable statutes and conclude that William Jefferson Clinton, in fact and under the law, violated his oath and violated the laws of this land and convict him on both articles of impeachment. Even though such a high burden--that is, proof of criminal violations--is not strictly required of you under the law of impeachment, in fact, such evidence is here. That higher burden is met.
Perjury is here; obstruction is here in the facts and the law which forms the basis for the articles of impeachment in the House which we believe properly would form the basis for conviction in the Senate. Perjury and obstruction, we respectfully ask you to strike down these insidious cancers that eat at the heart of our system of Government and laws. Strike them down with the Constitution so they might not fester as a gaping wound poisoning future generations of children, poisoning our court system, and perhaps even future generations of political leaders.
Just as Members of both Houses of Congress have unfortunately over the years been convicted and removed from office for perjury and obstruction, and just as Federal judges have been removed from life tenure for perjury and obstruction, so must a President; so sadly should this President.
Thank you, Mr. Chief Justice, and thank you, Members of the U.S. Senate sitting here as jurors of fact and law in the trial of President William Jefferson Clinton.
The CHIEF JUSTICE. The Chair recognizes the majority leader.
Mr. LOTT. Mr. Chief Justice, I remind all who are participants in these proceedings that we will begin at 10 a.m. on Saturday, January 16, and we are expected to conclude sometime between 3 p.m. and 3:30 p.m. I had earlier indicated concluding as late as 5 p.m. I understand that we will conclude between 3 p.m. and 3:30 p.m. Therefore, pursuant to the previous consent agreement, I ask unanimous consent that the Senate stand in adjournment under the previous order.
There being no objection at 5:10 p.m., the Senate, sitting as a Court of Impeachment, adjourned until Saturday, January 16, 1999, at 10 a.m.
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