THE IMPEACHMENT TRIAL
Jan. 16: Buyer on Constitutional Law
From the Congressional Record
Mr. Manager BUYER. I thank you, Mr. Chief Justice. I thank the Senators, the counsel for the President.
I am Steve Buyer, the House manager from the Fifth District of Indiana. I thank all of you for your attention the past several days. It has not been easy for the House managers to argue from a dry record. I ask for your patience. The House managers are prepared to call witnesses and offer to develop the evidence as the trial proceeds.
This morning, the managers on the part of the House are going to present why the offenses you have been hearing over the course of the last several days require the President's removal from office. I will discuss why the offenses attack the judicial system which is a core function of the Government, and how perjury and obstruction of justice are not private acts. These are public crimes and therefore quintessential impeachable offenses, for the President's premeditated assault on the administration of justice must be interpreted as a threat to our system of Government.
I will be followed by Mr. Manager Graham of South Carolina who will discuss the precedents in impeachment cases, and then he will be followed by Mr. Manager Canady. He will discuss how the felonies constitute high crimes and misdemeanors as envisioned by the Founding Fathers and why they warrant his removal from office.
While this is day 3 of our presentation, it is important for the Senate to be fully informed as to the facts, the law and the consequences. Please indulge me for a quick reiteration of the facts.
On May 27, 1997, nine Justices of the Supreme Court of the United States unanimously ruled that Ms. Jones could pursue her Federal civil rights actions against William Jefferson Clinton. On December 11, 1997, U.S. District Court Judge Susan Webber Wright ordered President Clinton to provide Ms. Jones with answers to certain routine questions relevant to the lawsuit.
Acting under the authority of these court orders, Ms. Jones exercised her rights, rights every litigant has under our system of justice. She sought answers from President Clinton to help prove her case against him, just as President Clinton sought and received answers from her. President Clinton used numerous means, then, to prevent her from getting fruitful answers.
On December 17, 1997, President Clinton encouraged a witness to file a false affidavit in the case and to testify falsely if she were called to testify in this case. Why? Because her truthful testimony would have helped Ms. Jones and hurt his case.
On January 17, 1998, President Clinton provided under oath numerous false answers to Ms. Jones' questions during that deposition in the civil case. In the days immediately following the deposition, President Clinton provided a false and misleading account to another witness, his secretary, Betty Currie, in hopes that she would substantiate the false testimony he gave in the deposition.
All of these unlawful actions denied Ms. Jones her rights as a litigant, subverted the fundamental truth-seeking function of the U.S. District Court for the Eastern District of Arkansas, and violated President Clinton's constitutional oath to "preserve, protect, and defend the Constitution of the United States.'' And, further, it violated his constitutional duty to "take care that the laws be faithfully executed.''
Beginning shortly after his deposition, President Clinton became aware that the Federal grand jury impaneled by the U.S. District Court for the District of Columbia was investigating his unlawful actions before and during his civil deposition was the scope of inquiry. President Clinton made numerous false statements to potential grand jury witnesses in hopes that they would repeat these statements to the grand jury.
On August 17, 1998, President Clinton appeared before the grand jury by video under oath and he provided numerous false answers to questions asked. These actions impeded the grand jury's investigation, it subverted the fundamental truth-seeking function of the U.S. District Court for the District of Columbia, and they also violated President Clinton's constitutional oath to "preserve, protect, and defend the Constitution of the United States'' and his constitutional duty as the Chief Executive Officer to "take care that the laws be faithfully executed.''
Now, you will hear next week, perhaps from the President's lawyers, that the offenses charged by the House are not impeachable; in other words, that even if the allegations as set forth in the articles of impeachment are true, so what? See, the House managers have begun to refer to this as the "so what" defense. I am not offended by the "so what'' defense, because if that is all you have, then try it. You see, there are only a few basic ways that you can actually defend a case. You can defend a case on the facts, you can defend a case on the law, you can defend a case on the facts and the law.
Now, here we hear in this case--we hear very often--that the facts are indefensible. And you also hear that if you are not going to call witnesses on the facts, then I guess you better argue on the law. So, then, what is the argument on the law? What you do, then, in the defending of a case, is you argue procedure, you attack the prosecutor, you attempt to confuse those who sit in judgment on the laws so you don't follow your precedent. You go out and obtain, from your political allies and friends in the academic world, signatures on a letter saying that the offenses as alleged in the articles of impeachment do not rise to the level of an impeachable offense. You see, this "rise to the level'' has somehow become the legal cliche of this case. You have all so often heard it and you have even--some have even spoken it.
You see, the House managers chose not to go out into the academic world and obtain signatures on our own letter that would have said why the offenses are impeachable. And then we would have had this war of dueling academics. They have a letter of 400 signatures. We get a letter of 400 signatures. They add 500 to it; now they have 900. We go out and get 1,000. We chose not to do that. Do you know why? Because the House managers have the precedents of the Senate on our side. We have the precedents of the Senate. Mr. Manager Graham will discuss those precedents.
Now, if I am prosecuting a defendant of perjury and obstruction of justice in White County Superior Court before Judge Bob Mrzlack in Monticello, IN, and I have this perjury and obstruction of justice case on a Thursday, and I know that the judge has three other cases--he has got a case on Monday, he has got a case on Tuesday, and he has got a case on Wednesday --so I am watching what the judge is going to do because I am curious with regard to the precedent.
So, on Monday of that week Judge Mrzlack tries a case of a public official for perjury and I watch what he does. He convicts him for perjury. On Tuesday he tries a public official for obstruction of justice and he convicts him. On Wednesday, Judge Mrzlack tries a public official for grand jury perjury and he convicts him. My case now comes up on Thursday, for a public official for obstruction of justice and grand jury perjury and perjury on top of perjury. I would say that, based on the precedents, it is not looking good for the defendant that I am about to prosecute.
The White House lawyers are hoping that those of you who have voted-- those of you in this Chamber who have voted to remove Federal judges for similar offenses in the past--that you have a feigned memory. And if you don't have a feigned memory, then we will try to confuse you-- they will attempt to confuse you on the law.
So, when I hear the "so what,'' well, it is the position of the House that what the President did does matter; that by his actions, the President did commit high crimes and misdemeanors. The House is prepared to establish that the President, William Jefferson Clinton, willfully and repeatedly violated the rule of law and abused the trust placed upon him by the American people.
Now, let me address how the offenses charged in the articles of impeachment attack the judicial system. The offenses as charged in the articles of impeachment against our system of government are the core of the concept of high crimes and misdemeanors. You see, perjury and obstruction of justice are, therefore, quintessential impeachable offenses. Indeed, it is precisely their public nature that makes them offenses. Acts that are not crimes when committed outside the judicial realm become crimes when they enter the judicial realm. Lying to one's spouse about an extramarital affair is not a crime; it is a private matter. But telling that same lie under oath before a Federal judge, as a defendant in a civil rights sexual harassment lawsuit, is a crime against the state and is therefore a public matter.
Hiding gifts given to conceal the affair is not a crime; it is a private matter. But when those gifts are the subject of a court-ordered subpoena in a sexual harassment lawsuit, the act of hiding the gifts becomes a crime against the state called obstruction of justice and is, therefore, a public matter. Our law has consistently recognized that perjury subverts the judicial process. It strikes at our Nation's most fundamental value, the rule of law.
In "Commentaries on the Laws of England,'' Sir William Blackstone differentiated between crimes that "more directly infringe the rights of a public or commonwealth taken in its collective capacity, and those which, in a more peculiar manner, injure individuals or private subjects.'' This book was widely recognized by the Founding Fathers, such as James Madison. He described Blackstone's work at the time as "a book which is in every man's hand.'' Blackstone's private category contained crimes such as murder, burglary, and arson. In the public category, however, he cataloged crimes that could be understood as an assault upon the state. Within a subcategory denominated "offenses against public justice,'' Blackstone included the crimes of perjury and bribery. In fact, in his catalog of public justice offenses, Blackstone placed perjury and bribery side by side.
Now, in the Constitution, article II, section 4, when you read the impeachment clause, "The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors''--so, what did they mean when they thought "other high crimes''? I would submit to you that perjury, obstruction of justice, fit in this category of "other high crimes.'' Perjury and bribery are side by side.
You know, hypothetically--hypothetically, if, when William Jefferson Clinton sat at the table in the civil deposition in the Jones v. Clinton case, and as alleged in the record that he perjured himself, speaking hypothetically, if he had then offered Judge Susan Webber Wright a cash bribe, there would be no question in this body what we must--what you must do. But what I am saying unto all of you is that there is no difference here, and that is the pain of this case. There is no difference between a cash bribe or sitting before a Federal judge and perjuring one's self. Whether it be in the underlying civil deposition or, in fact, in the grand jury perjury. Perjury and bribery are side by side. Mr. Manager Canady will develop that further.
The Constitution also recognizes that truth-telling under oath is central to the maintenance of our Republic.
We are all familiar with the Constitution. This is in its handwritten glory. The founders took such pride in the oath that it is mentioned in the Constitution on five separate occasions, not the least of which is the President's own oath to defend the Constitution. Article I, section 3, sets forth the requirement that the Senate be under oath when trying cases of impeachment, and I witnessed as that occurred. Article II, section 1, specifically prescribes the oath which must be taken before our President enter on the execution of his office.
The right against self-incrimination under the Constitution derives in some measure from the Republic's interest in preserving the truth- telling oath. You see, forced testimony is forbidden because it might lead many to violate their most solemn obligations and, over time, weaken the essential civic norm of the fidelity to that oath--fidelity.
The framers took significance of the oath very, very seriously. The crime of perjury was among the few offenses that the first Congress outlawed by statute as they met, and that affirms the framers' view of the seriousness. In 1790, in a statute entitled "An Act for the Punishment of Certain Crimes Against the United States,'' Congress made the crime of perjury punishable by imprisonment of up to 3 years, a fine of up to $800, disqualification from giving future testimony and "stand[ing] in the pillory for one hour.'' Now, today, we don't force individuals convicted of perjury to stand in the pillory for up to 1 hour.
Today, perjury is punishable by up to 5 years imprisonment in a Federal penitentiary if you perjure yourself in a Federal jurisdiction. Likewise, the Supreme Court has repeatedly noted the extent to which perjury subverts the judicial process and, thus, the rule of law. For example, in 1976, in a case of United States v. Mandujano, the Supreme Court emphasized:
Moreover, it is obvious that any testimony given to a grand jury must be truthful, for the grand jury process is, in fact, the truth-seeking process of our criminal justice system. As the Supreme Court stated in 1911 in the case of Glickstein v. the United States:
Before the grand jury, President Clinton testified that the testimony that he gave in the underlying civil case of Jones versus Clinton in a civil deposition, that it was truthful. We submit that that is a lie. So what we have is perjury on perjury.
You may hear the President's lawyers remark that the view of the founders is quaint, not really applicable to these settings today. Let's look at a few very recent examples to see if the view of the seriousness of telling the truth under oath, as envisioned by the Founding Fathers, has changed any here today.
In the case of the United States v. Landi in the Eastern District of Virginia in 1997, the defendant was convicted on two counts of perjury: one for lying in a declaration she made during a civil forfeiture case, and the other for lying to the grand jury in a related criminal investigation. Here is what the judge said in this case:
In a second case, United States v. Vincent Bono in the District of New Hampshire in 1998, the defendant was found guilty of lying before a grand jury in trying to cover his stepson's involvement in a robbery that the grand jury was investigating. Here is what the judge had to say about lying before a grand jury:
In another case in United States v. Ronald Blackley in the District of Columbia in 1998, the defendant was the former chief of staff to the Secretary of the U.S. Department of Agriculture. The defendant was found guilty at trial on three counts of making false statements to the grand jury in connection with his official duties. Here is what the judge had to say in this case:
See, there are many other cases, and you can go to your Lexis and Westlaw and you can research them. These three cases make it very clear that lying under oath is as serious today in the 106th Congress as it was in 1790 in the first Congress when it enacted the perjury statute. The first Congress recognized the seriousness of perjury and its attack on the judicial system.
Now, I would like to discuss article II, which is the obstruction of justice, and how it is an attack on our judicial system. In either a criminal or a civil case, obstruction undermines the judicial system's ability to vindicate legal rights. If it is allowed to go unchecked, then the system will become a farce and ultimately a test of which side is better at using underhanded methods. Accordingly, Federal courts have called the Federal obstruction of justice statute "one of the most important laws ever adopted'' in that it prevents the "miscarriage of justice.''
This is "Black's Law Dictionary.'' "Black's Law Dictionary" defines "obstruction of justice'' as "[i]mpeding or obstructing those who seek justice in a court, or those who have duties or powers of administering justice therein.'' It is very clear. Not only is obstruction of justice, on its own, a crime in the Federal Code, but, in addition, the Federal Sentencing Guidelines--the Federal Sentencing Guidelines--increase the sentence of a convicted defendant who has "willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing'' of his offense. The commentary on the Guidelines specifically lists as examples of obstruction actions the House alleges that President Clinton has committed, including "committing, suborning, or attempting to suborn perjury'' and "destroying or concealing or directing or procuring another person to destroy or conceal evidence that is material to an official investigation or judicial proceeding. . . .''
Yesterday, you learned from Mr. Manager McCollum of Florida, when he discussed, that perjury and obstruction of justice is punished more severely in the Federal Sentencing Guidelines than bribery. As I stated earlier, Blackstone put bribery and perjury side by side.
At a hearing on the background and history of impeachment as part of the House impeachment inquiry, we were privileged to have the testimony of Judge Griffin Bell, an individual who has highly distinguished himself in public service. Judge Bell was appointed to the Federal bench by President John Kennedy, and he served as the U.S. Attorney General under President Carter. Judge Bell said that, "I have thought about this a great deal. This is a serious matter. Trifling with the Federal courts is serious. And I guess I am biased because I used to be a Federal judge. But I cannot imagine that it wouldn't be a serious crime to lie in a Federal grand jury or to lie before a Federal judge, and that is where I come down.''
Judge Bell went on to say, "And all the civil rights cases that I was in in the South depended on the integrity of the Federal court and the Federal court orders and people telling the truth and fairness. Truth and fairness are the two essential elements in a justice system, and all of these statutes I mentioned, perjury, tampering with a witness, obstruction of justice, all deal in the interests of truth. If we don't have truth in the judicial process and in the court system in our country, we don't have anything. We don't have a system.''
As you can see, according to Judge Bell, "truth and fairness'' are the two cornerstones of our judicial system. President Clinton violated both of these bedrock principles.
Finally, Judge Bell spoke to the issue, if a President ever was convicted of a felony. Judge Bell stated: "If the President were indicted and convicted of a felony, such as perjury or obstruction of justice or witness tampering, before impeachment proceedings began, would anyone argue that he should continue to be President? I don't think so. If the President were subsequently indicted and convicted of a felony, which [Judge Bell believes] the Constitution clearly allows, [he went on to say] would anyone argue that he should continue to be President? I don't think so.'' He stated this: He said, "A President cannot faithfully execute the laws if he himself is breaking them.''
Judge Bell hit it right on the head. Judge Bell said: "A President cannot faithfully execute the laws if he himself is breaking them. The statutes against perjury, obstruction of justice and witness tampering rest on vouchsafing the element of truth in judicial proceedings--civil and criminal--and particularly in the grand jury. Allegations of this kind are grave indeed.''
To borrow the words of constitutional scholar Charles J. Cooper, "The crimes of perjury and obstruction of justice, like the crimes of treason and bribery, are quintessentially offenses against our system of government, visiting injury immediately on society itself, whether or not committed in connection with the exercise of official government powers.'' I believe all of you should have these charts at your table. "In a society governed by the rule of law, perjury and obstruction of justice simply cannot be tolerated because these crimes subvert the very judicial processes on which the rule of law so vitally depends.''
When President Clinton had the opportunity to personally uphold the rule of law, to uphold the truth-seeking function of the courts, to uphold the fairness in a judicial proceeding, he failed. Far from taking care that the laws be faithfully executed, if a President is guilty of perjury and obstruction of justice, he has himself faithlessly subverted the very law that the rest of us are called upon to obey.
You may hear arguments that perjury and obstruction don't really have much consequence in this case because it was a private matter and, therefore, not really a serious offense. I would like to arm you with the facts. The courts do not trivialize perjury and obstruction of justice.
According to the U.S. Sentencing Commission, in 1997, 182 Americans were sentenced in Federal court for committing perjury. Also in 1997, 144 Americans were sentenced in Federal court for obstruction and witness tampering.
States in State jurisdictions all across the country, they take the matter very seriously. I have chosen one State, the State of California, which brought 4,318 perjury prosecutions in 1997. There are now at least 115 persons serving sentences for perjury in Federal prisons. Where is the fairness to these Americans if they stay in jail and the President stays in the Oval Office?
If the allegations in the independent counsel's referral were made against a sitting Federal judge, would not the Senate convict? If William Jefferson Clinton were a sitting judge instead of the President, would not the Senate convict? While my colleague, Mr. Manager Graham, will look into this further, let's look briefly at precedent for the moment. When we bring up the issues regarding the impeachment of former Federal judges Mr. Claiborne and Mr. Nixon, one standard was used: high crimes and misdemeanors. The Senate said the one standard that applies to the President and Vice President will also apply to these Federal judges and other civil officers.
You see, in the defense of Judges Claiborne and Nixon, the defense lawyers at the time in the trial here in the Senate argued that Federal judges should be treated differently from the President, that they could not be impeached for private misbehavior because it was extrajudicial. The Senate rejected that proposition as incompatible with common sense and the orderly conduct of government. You rejected that argument, the very same argument that we are about to hear, perhaps, from the White House defense team. And I believe this Senate will uphold your precedent, the precedent that Federal judges and the President should be treated by the same standard--impeachment for high crimes and misdemeanors.
Also, do not be tempted to believe the argument that lying under oath about sex doesn't matter, that it is private. I covered that earlier, but I want to bring it to your attention as some of the House managers did yesterday regarding American law. It makes rape a crime, domestic violence a crime, sexual harassment a civil rights violation, libel, a compensable offense. Without the protections of perjury and obstruction, none of the rights of the victims of such cases could be vindicated. That is why the courts take these matters so seriously.
If the President's lawyers try to tell you that this case is simply about an illicit affair, I believe that it demeans our civil rights laws. If, indeed, the President is successful in trying to make everyone believe that this case is only about an illicit affair, what will the message be from those in this hollowed body who have in the past been passionate advocates of our civil rights laws, whether it be by race, gender, religion, or disability? If the evidence-gathering process is unimportant in Federal civil rights sexual harassment lawsuits--remember, that was the underlying basis of this case--what message does that send to women in America?
There are some important questions we need to ask. Are sexual harassment lawsuits, which were designed to vindicate legitimate and serious civil rights grievances of women across America, now somewhat less important than other civil rights? Which of our civil rights laws will fall next? Will we soon decide that the evidence-gathering process is unimportant with respect to vindicating the rights of the disabled under the Americans with Disabilities Act? Will the evidence-gathering process become unimportant with respect to vindicating the voting rights of those discriminated against based on race or national origin? Who will tell the hundreds of Federal judges across the Nation that the evidence-gathering process in these cases is now unimportant?
Consider postal worker Diane Parker who was convicted of perjury and sentenced to 13 months in prison for making a false material declaration during the discovery deposition in a sexual harassment lawsuit. Judge Lacey Collier said: "One of the most troubling things in our society today is people who raise their hands, take the oath to tell the truth, and then fail to do that. . . . This, I hope, is sufficient punishment for you,'' the judge stated. The judge went on to say, "But more importantly, I hope that it is a deterrence to others. So your story can be taken far and wide to demonstrate to others the seriousness of the responsibility of telling the truth in court proceedings.''
The Senate must now determine whether it is acceptable or whether it is appropriate to set a precedent to have an individual serve as President of the United States when that individual has committed, is alleged to have committed, serious offenses against our system of government while holding that office.
While we have been discussing how perjury and obstruction of justice are attacks on our judicial system, we must recognize how the judicial system is a core function of the government. When Mr. Manager Henry Hyde speaks of the rule of law protecting us from the knock on the door at 3 a.m., what, exactly, was he referring to? Well, in totalitarian societies, rulers may drag the ruled off to prison at any time for any reason. Our system differs because we require our leaders to go through a judicial procedure before they put someone in prison or otherwise violate their individual rights. The President's offenses assault the administration of this judicial procedure. As such, they constitute an assault on the core function of the government and repudiate our most basic social contract. A core function of the government derives its role from the social contract that our civilized society has under which the fundamental exchange of rights takes place between those of us as individuals and unto the government.
We give up our individual rights to exercise brute force to settle our personal disputes. That is a situation where chaos reigns and the strongest most often prevails. Instead, we submit to the power delegated to the State under which the individual then submits to the governmental processes as part of the social contract. Indeed, when conflict arises in our society, we as individuals are compelled via the social contract to take disputes to our third branch of government--the courts. The judicial branch then peacefully decides which party is entitled to judgment in their favor after a full presentation of the truthful evidence.
Now, implicit in the social contract that we enter as a civilized society is the principle that the weak are equally entitled as the strong to equal justice under the law. Despite the tumbling tides of politics, ours is a government of laws, not of men. It was the inspired vision of our Founding Fathers that the judicial, legislative, and executive branch of government would work together to preserve the rule of law. The U.S. Constitution requires the judicial branch to apply the law equally and fairly to both the weak and the strong.
Once we as a society--and particularly our leaders--no longer submit to the social contract and no longer pay deference to the third branch of government, which is equally as important as the legislative and executive branches of government, we then begin to erode the rule of law and begin to erode the social contract of the great American experiment.
That, I believe, is why Judge Bell stated, "A President cannot faithfully execute the laws if he himself is breaking them.''
The administration of justice is a core function of the Government precisely because of the importance we place on the fair resolution of disputes and on whom and for how long a person will be denied liberty for violating our criminal laws. Any assault on the administration of justice must be interpreted as a threat to our system of Government. Our President, who is our chief executive and chief law enforcement officer, and who alone is delegated the task under our Constitution to "take care that the laws be faithfully executed,'' cannot and must not be permitted to engage in such an assault on the administration of justice.
The articles of impeachment adopted by the House of Representatives establish an abuse of public trust and a betrayal of the social contract in that the President is alleged to have repeatedly placed his personal interests above the public interest and violated his constitutional duties. For if he is allowed to escape conviction by the Senate, we would allow the President to set the example for lawlessness. We would allow our President to serve as an example of the erosion of the concept of the social contract embraced and embodied in our Constitution. I don't believe the Senate will allow that to happen.
As you undertake your examination of the facts, the law, and your precedents, the Senate must weigh carefully its judgment, for the consequences are deeply profound, not for the moment but for the ages. Should the Senate choose to acquit, it must be prepared to accept a lower standard, a bad precedent, and a double standard. However, should the Senate choose to convict, it would be reinforcing high standards for high office, maintaining existing precedents, and upholding the principle of equal justice under the law.
I think it is important to pause here and reflect upon the constitutional duties of the President of the United States. I agree with the defense argument that this has not been alleged as a dereliction of the President's exercise of executive powers. So let me talk about his executive duties.
The President is reposed with a special trust by the American people. The President is a physical embodiment of America and the hope and freedom for which she stands. When the President goes abroad, he is honored as the head of a sovereign nation; our Nation is acknowledged, not just the individual who occupies the Office of the Presidency. When he walks into a room and receives a standing ovation, the ovation is not that of the individual, it is for the Nation for whom he represents.
The President has a constitutional role as Commander in Chief. The President plays a unique and indispensable role in the chain of command. In Federalist 74, Alexander Hamilton stated that, "Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities, which distinguish the exercise of power by a single hand.''
It is universally agreed that the President, in his role as Commander in Chief, is not an actual member of the military. However, as the "single hand'' that guides the actions of the armed services, it is incumbent that the President exhibit sound, responsible leadership and set a proper example when acting as Commander in Chief.
That leadership is also at the core of the issue before us. In order to be an effective leader, an effective military leader, the President must exhibit the traits that inspire those who must risk their lives at his command. These traits include honor, integrity and accountability.
You see, veracity and truthfulness are important components of a leader's character. In order to have the trust of their subordinates, military leaders must have honor and be truthful in all things. That trust, that bond between the leaders and the led, is an essential element of any successful military organization.
The President's own self-inflicted wounds have called his credibility into question. While a President's decisions are always critiqued, a President receives the benefit of the doubt in the decisionmaking process that he always places the interests of the Nation above his own. But by William Jefferson Clinton's present diminished veracity, he has now forfeited that benefit and has invited doubt into the decisionmaking process.
The lack of trust in the President's motives, his veracity and his judgment is inherently corrosive and can only have a detrimental effect on our military credibility overseas. This corrosion is difficult to measure, for it cannot be quantified easily in a readiness report or training exercise. But in squadbays and wardrooms around the world, and at bases in the United States, there can be heard whispers and conversations of those who know that had they merely been accused of the same offense, their careers would have ended long ago.
This is the intangible effect that the President's actions have had on our military. We cannot ignore the fact that the Commander in Chief's conduct sets a poor example to the men and women in the military. Worse, we cannot ignore the idea that to acquit the President would create a double standard.
The Constitution directs this body to provide advice and consent to the President's nominations for military officers. It is your singular responsibility to set high standards of conduct for these officers, and you have done that. The Senate has in the past--and you will likely again do so in the future--rejected those whose moral and legal misconduct makes them unsuitable to be officers in the military.
Let me indulge in a hypothetical. An officer is nominated by the President for promotion to the rank of major. After the list is submitted, but before the Senate's confirmation, an investigation of the individual's background results in a report that mirrors the allegations in the Office of Independent Counsel's referral. After a very careful review of the Uniform Code of Military Justice, this captain, after having committed similar offenses as are in the Office of Independent Counsel's referral, could be charged with article 105, false swearing, and face up to 3 years; he could be charged in article 107, false official statement, facing up to 5 years; he could be charged with article 131, perjury--probably several times--and face up to 5 years; he could be charged with article 133, conduct unbecoming an officer; he could be charged with article 134, prevent seizure of property, and face up to 1 year imprisonment; he could be charged with article 134, soliciting another to commit an offense, with a penalty of up to 5 years; he could be charged with article 134, subornation of perjury, and face confinement up to 5 years; he could be charged with article 134 again, obstructing justice, and face 5 years. I could probably come up with about four others, but I won't get into the salacious details.
You see, needless to say, the Senate would insist on this hypothetical officer's removal from the promotion list. You would do that. The Service would certainly relieve him of his duties.
In every warship, every squadbay, and every headquarters building throughout the U.S. military, those of you who have traveled to military bases have seen the picture of the Commander in Chief that hangs in the apex of the pyramid that is the military chain of command.
You should also know that all over the world military personnel look at the current picture and know that, if accused of the same offenses as their Commander in Chief, they would no longer be deserving of the privilege of serving in the military.
Some would say that what I just talked about doesn't matter--that in the military they live under different standards--they live under these high standards. They say words like "duty,'' "honor,'' "country.'' They are instilled with core values and core virtues--that really doesn't matter in this case--that the President really doesn't have to follow those types of high standards--that it elevates some form of high standards, if he stands accused of high crimes--it really is not high crimes; it was about a private matter--that they don't rise to the level needed to remove the President from office.
I would like to remind you of Gen. Douglas MacArthur. In his farewell address at West Point, Gen. Douglas MacArthur stated, when he referenced the words I spoke of, "duty'' and "honor'' and "country,'' and the high principles:
The ideal object must be held high even though we recognize that as humans we are not perfect. No matter how great we aspire, we are human and we will occasionally fail. But there must be the pursuit of such high ideals. We cannot degrade our standards as a people. By a conviction in the Senate of the President of the United States you will be upholding a high and lofty standard, not only for America, but in particular for those military leaders, rather than setting low standards for the President and a high lofty standard for military leaders.
Let me turn to the President's responsibility to see that "the laws are faithfully executed.'' According to scholar Philip B. Kurland, it was probably George Washington rather than the Constitution that is responsible for our hierarchy of Cabinet officers that have been taken for granted over the years. And we have heard of the Presidents as the chief law enforcement officers of the land, and we can find it in the Constitution. So we have to give credit to George Washington and how he put together the Cabinet. And we have accepted it over time. So it has been accepted by custom, practice, and legislation that the executive branch is an entity for which the President is responsible both to Congress and to the public.
Mr. Kurland stated:
The President's Departments of Treasury and Justice seek to bring to account those who disturb our "domestic tranquility.'' And those who seek to disturb our "domestic tranquility,'' whether it be the drugpushers, or unabombers, gangsters, mobsters, church arsonists, violators of individual rights, dedicated men and women of the FBI, DEA, Customs, Secret Service, BATF, INS, the U.S. Marshals Office; they all pursue them methodically, thoughtfully, firmly, doggedly, applying the law while risking their lives to uphold the rule of law for our peace and security. They seek to ensure equal justice under the law for everyone.
In the book, "The Imperial Presidency,'' Professor Arthur Schlesinger, Jr. states:
By a conviction, the Senate will be upholding the high calling of law enforcement in protecting the rule of law and equal justice under the law.
"Equal justice under law''--that principle so embodies the American constitutional order that we have carved it in stone on the front of the Supreme Court building right across the street. The carving across the street shines like a beacon from the highest sanctum across to us here in the Capitol, the home of the legislative branch, and it shines right down Pennsylvania Avenue to the White House, the home of the executive branch. It illuminates our national life and reminds those other branches that despite the tumbling tides of politics, ours is a government of laws and not of men. It was the inspired vision of our founders and framers, again, that the judicial, legislative, and executive branches would work together to preserve the rule of law.
But "equal justice under law'' accounts for much more than a stone carving. Although we can't see it or hear it, this living, breathing force has very real consequences in the lives of every citizen every day in America. It allows Americans to claim the assistance of the government when someone has wronged us--even if the person is stronger or wealthier or more popular than we are. In America, unlike other countries, when an average citizen sues the Chief Executive of our Nation, they stand equal before the bar of justice. The Constitution requires the judicial branch of our government to apply the law equally to both. That is the living consequence of "equal justice under law'' that shines brightly across our country.
The President of the United States must work with the judicial and the legislative branches to sustain that force. He is the temporary trustee of that office. But, unfortunately and sadly, William Jefferson Clinton worked to defeat it and to bring darkness upon that grand illumination. When he stood before the bar of justice, he acted without authority to award himself. Even if he believed in his heart that the case against him was politically motivated, he simply assumed unto himself that he had by virtue of his power special privileges that he could be clever, create his own definitions of words in his own mind-- create what C.S. Lewis called "verbicide.'' He murdered the plain spoken English slang so he could come up with these definitions in his own mind, state them, and then say, "Well, I never committed perjury because this is what I meant by this word,'' even though it fails the reasonableness test, and it is absurd that no one would believe his own definitions. He assumed these special privileges, and then lied and obstructed justice to gain advantage in a Federal civil rights action in the U.S. District Court for the Eastern District of Arkansas. And he did so then again when a Federal grand jury began to investigate that lawlessness. And he did it before the grand jury in the U.S. District Court for the District of Columbia. His resistance brings us to this most unfortunate juncture for which you sit in judgment.
So "equal justice under law'' lies at the heart of this matter. It rests on three essential pillars: an impartial judiciary, an ethical bar, and a sacred oath. If litigants profane the sanctity of the oath, "equal justice under law'' loses its protective force.
The House, as does the Senate, has the responsibility to uphold the Constitution. We have all taken our oaths to defend the Constitution. The Founding Fathers created a system of checks and balances, a system of accountability between the functions of Government. See, I believe, as I am sure you do, that the Founding Fathers knew the nature of the human heart. Sometimes, as much as we try, we fail, in that the human heart does in fact struggle at times between good and evil. We recognize that no person has perfect virtue and that we each have our human failings. And the founders could foresee a time when corruption could invade the institutions of Government, and they provided the means to address it. The impeachment proceeding is one such means. We are seeking to defend the rule of law.
America, again, is a Government of laws, not of men. What protects us from that knock on the door in the middle of the night is the law. What ensures the rights of the weak and the powerless against the powerful is the law. What provides the rights to the poor against the rich is the law. What upholds the rightness of the minority view against the popular but wrong is the law. As former President Andrew Jackson wrote, "The great can protect themselves, but the poor and the humble require the arm and shield of the law.''
When our Nation began its journey in history over 200 years ago, the United States was nearly unique in depending on the rule of law as opposed to, at that time, the rule of kings and czars and chieftains and monarchs. Now that our unique, grand American experiment has proved unto the rest of the world a success, others now seek to follow us. They seek to follow. And we have seen in the crumbling of the Soviet Union that the former Soviet nations, now infant republics, look and turn to us. They turn to us, a Government ruled by law.
For the sake of ourselves and the sake of generations yet unborn, we, and in particular you who sit in judgment in the Senate, must preserve the rule of law.
I will leave you with the words of the first President of the Senate and the second President of our Nation, John Adams. He said:
I believe John Adams was right. Facts and evidence. Facts are stubborn things. You can color the facts. You can shade the facts. You can misrepresent the facts. You can hide the facts. But the truthful facts are stubborn; they won't go away. Like the telltale heart, they keep pounding, and they keep coming, and they won't go away. What is also stubborn is the precedents of the Senate.
I will now yield the floor for Manager Graham of South Carolina to discuss the precedents of the Senate.
The CHIEF JUSTICE. The Chair recognizes Mr. Manager Graham.
Mr. LOTT addressed the Chair.
The CHIEF JUSTICE. The Chair recognizes the majority leader.
Mr. LOTT. I sense the need for a 10-minute break, but, my colleagues, please tend to your business and return promptly so that we can get started with the proper decorum.
There being no objection, at 11:15 a.m., the Senate recessed until 11:29 a.m.; whereupon, the Senate reassembled when called to order by the Chief Justice.
The CHIEF JUSTICE. The Chair recognizes the majority leader.
Mr. LOTT. Mr. Chief Justice, I believe we are ready to begin with Manager Graham. I have been asked about any changes in the schedule. It would depend on how things move forward. I would ask for consent to change it, depending on how things developed from this point, Mr. Chief Justice.
I yield the floor.
The CHIEF JUSTICE. The Chair recognizes Mr. Manager Graham
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