THE IMPEACHMENT TRIAL
Jan. 15: Cannon on Perjury and Obstruction
From the Congressional Record
Mr. Manager CANNON. Mr. Chief Justice, Senators, distinguished counsel of the President, my name is Chris Cannon. I represent Utah's Third Congressional District.
John Locke once said, 'Wherever law ends, tyranny begins.' And speaking to our American experience, Teddy Roosevelt added, 'No man is above the law and no man is below it; nor do we ask any man's permission when we require him to obey it. Obedience to the law is demanded as a right; not as a favor.'
This case is about the violation of law. My task is to clarify what the law states pertaining to obstruction of justice and what legal precedent is applicable to the charges against William Jefferson Clinton.
While both the laws and the violations in this case are clear and direct, the presentation I am about to make will not be simple. I ask your indulgence and attention as I walk you through case history and statutory elements. I promise to be brief--probably less than a half-hour--and direct.
I will present the legal underpinnings of the law of obstruction of justice. You should have before you the full text of this speech, including full citations to cases and copies of the charts I will use in this presentation.
Article II of the articles of impeachment alleges that the President prevented, obstructed, and impeded the administration of justice, both personally and through his subordinates and agents, and that he did so as part of a pattern designed to delay, impede, cover up, and conceal the existence of evidence and testimony related to a Federal civil rights action brought against him.
Article II specifies seven separate instances in which the President acted to obstruct justice. The House believes the evidence in this case proves that each of the seven separate acts which comprise the President's scheme constitutes obstruction of justice.
I would like to draw your attention at this time to the chart on my right, and the first page in your packet, which depicts elements of section 1503:
(a) Whoever . . . corruptly . . . influences obstructs or impedes; or endeavors to influence, obstruct or impede, the due administration of justice, shall be punished as provided in subsection (b).
(b) The punishment for an offense under this section is . . .
(3) . . . imprisonment for not more than 10 years, a fine under this title, or both.
Section 1503 is often referred to as the general obstruction statute. It describes obstruction simply as an impact on the due administration of justice.
Section 1503 deems it criminal to use force or threats, or to otherwise act corruptly, in order to influence, obstruct, or impede the due administration of justice.
Federal court rulings clarify that it is not necessary for a defendant to succeed in obstructing justice. Again, I direct your attention to the chart, or the accompanying chart, in your package.
Russell and Aguilar each ruled that it is not necessary that a defendant's endeavor succeed for him to have violated the law. Rather, simply attempting to influence, obstruct, or impede the due administration of justice violates the statute.
Maggitt clearly stated, 'it is the endeavor to bring about a forbidden result and not the success in actually achieving the result, that is forbidden.'
For the Government to prove a section 1503 crime, it must demonstrate that the defendant acted with intent. This can be shown through use of force, threats by the defendant, or by simply showing that the defendant acted 'corruptly.' The following chart gives three case histories regarding the term 'acting corruptly.'
Haldeman and Sprecher held that a defendant acts corruptly by having an evil or improper purpose or intent.
Barfield defined 'acting corruptly' as knowingly and intentionally acting in order to encourage obstruction.
Sprecher also ruled the Government need not prove the actual intent of the defendant, but, rather, the intent to act corruptly can be inferred from that proof that the defendant knew corrupt actions would obstruct the justice being administered.
Under section 1503, the Government must also prove that the defendant endeavored to influence, obstruct or impede the due administration of justice. The statute is broadly applicable to all phases of judicial proceedings.
Brenson described due administration of justice as 'providing a protective cloak over all judicial proceedings, regardless of the stage in which the improper activity occurs.'
Section 1503 is also intended to protect the discovery phase of a judicial proceeding, stating that the phrase 'due administration of justice' is intended to provide a 'free and fair opportunity to every litigant in a pending case in Federal court to learn what he may learn . . . concerning the material facts and to exercise his option as to introducing testimony of such facts.'
The House believes that the facts of this case make it very clear that the President did, corruptly, impair the ability of a litigant in Federal court to learn all of the facts that she was entitled to learn. In doing so, the President committed obstruction of justice under section 1503.
The other Federal crime which the President committed was witness tampering under section 1512 of title 18. Again, I refer you to the chart on my right, and to the second page in the package, which depicts the elements of the section.
(b) Whoever knowingly . . . corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to--
(1) influence, delay or prevent the testimony of any person in an official proceeding; or
(2) cause or induce any person to--
(A) withhold testimony, or withhold a . . . document . . . or an object . . . from an official proceeding;
. . . shall be fined under this title, or imprisoned for not more than ten years or both.
Sections 1503 and 1512 differ in an important way. There does not need to be a case pending at the time the defendant acts to violate the law under section 1512. The statute specifically states that 'for the purpose of this section, an official proceeding need not be pending or about to be instituted at the time of the offense . . .' for the crime to be committed.
Putting it another way, a person may attempt to tamper with a witness and commit the crime of witness tampering before such a person is called as a witness and even before there is a case underway in which that person might be called to testify.
For the Government to prove the crime of witness tampering, it must prove that the defendant acted with the intent to cause one of several results. The defendant can be convicted if he acted to influence, delay or prevent the testimony of any person in an official proceeding; or the defendant can be convicted if he acted to cause another person to withhold an object from an official proceeding.
In the case before us, the evidence proves that the President endeavored to cause both of these results on several occasions. And the Government may show intent on the part of the defendant in several ways. It may prove the use of intimidation, physical force or threats; or it may prove intent by showing the use of corrupt persuasion or misleading conduct.
In this case, the evidence shows that on several occasions the President acted corruptly to persuade some witnesses, and engaged in misleading conduct toward others, in order to influence their testimony and cause them to withhold evidence or give wrongful testimony. In each instance, the President violated the witness tampering statute.
How does acting corruptly to persuade a witness differ from engaging in misleading conduct? Section 1515 in title 18 states:
(a) as used in section 1512 [the witness tampering section] . . . of this title and this section--
(3) the term 'misleading conduct' means--
(A) knowingly making a false statement; or
(B) intentionally omitting information from a statement and thereby causing a portion of such statement to be misleading, or intentionally concealing a material fact, and thereby creating a false impression by such statement; or
(C) with intent to mislead, knowingly submitting or inviting reliance on a writing or recording that is false, forged, altered or otherwise lacking in authenticity;
The difference between corruptly persuading a witness and engaging in misleading conduct toward the witness depends on the witness' level of knowledge about the truth of the defendant's statement.
Rodolitz held that misleading conduct involves a situation 'where a defendant tells a potential witness a false story as if the story were true, intending that the witness believe the story and testify to it before the grand jury.'
Let me clarify this detail: If a defendant simply asks a witness to lie and the witness knows that he is being asked to lie, then the defendant is corruptly persuading the witness. In contrast, if a defendant lies to a witness, hoping the witness will believe his story, this is misleading conduct. They are different, but they are both criminal.
Some may ask if it is necessary that the witness who is influenced or tampered with know that he or she might be called to testify? The answer is no.
And both sections 1503 and 1512 answer this question:
The witness tampering statute can be violated even if the victim has not been subpoenaed or listed as a potential witness in an ongoing proceeding.
In Shannon, the U.S. Court of Appeals for the Eighth Circuit reviewed the conviction of a defendant under section 1503 who had attempted to influence the testimony of a person who had not yet been subpoenaed or placed on a witness list. On appeal, the defendant argued that because the target of the obstruction had not yet become an official witness in the case, it was impossible for the defendant to have engaged in obstruction toward her. The court of appeals rejected that assertion. In affirming the conviction, the court held 'neither must the target be scheduled to testify at the time of the offense nor must he or she actually give testimony at a later time. It is only necessary that there is a possibility that the target of the defendant's activities be called on to testify in an official proceeding.'
The witness tampering statute can be violated even when no case is pending.
Therefore, it will not always be clear to whom the defendant intended the individual to testify--and the statute does not require proof of this.
In Morrison, the United States Court of Appeals for the District of Columbia explained that section 1512 is violated if the defendant asks a person to lie 'to anyone who asks.' The court held that it is not necessary that the defendant even use the words 'testify' or 'trial' when he tries to influence the testimony of the other person. In such a case, there are no subpoenas, there are no witness lists.
The mere attempt to influence the person to lie, if asked, is the crime.
So, under either section 1503 or 1512, the fact that the target of a defendant's actions is not named as a witness, or whether the person is not ever called to be a witness, is immaterial.
The focus of both statutes is on what the defendant believed.
If the defendant believes that it is possible that some person might some day be called to testify at some later proceeding and then acted to influence, delay or prevent his or her testimony, the defendant commits the crime.
Now, some have asserted that an obstruction of justice charge cannot, or should not, be made against the President because some of his acts occurred in the context of a civil trial. There is simply no merit to this view.
There is no question that the obstruction and witness tampering statutes can be violated by acts that occur in civil proceedings. And, case law is consistent in upholding that any attempt to influence, obstruct or impede the due administration of justice in a civil proceeding violates section 1503.
Lundwall, which I referred to earlier, is a perfect example, as it began as a civil case.
The actual language of the witness tampering statute makes it clear that it also applies to civil cases.
The statute provides for enhanced penalties in criminal proceedings--a provision that would be unnecessary if the law were only to apply to criminal cases.
In short, the fact that some instances of the President's misconduct occurred in the course of a civil proceeding does not absolve him of criminal liability.
As Mr. Barr will demonstrate, the President of the United States endeavored and did obstruct justice and tamper with witnesses in violation of the law of the United States.
On numerous occasions he acted with an improper purpose with the intent to interfere with the due administration of justice in the Federal civil rights lawsuit filed by Paula Jones.
President Clinton corruptly endeavored to persuade witnesses to lie. In some cases, he succeeded. In every case, he violated the law.
President Clinton engaged in misleading conduct in order to influence the testimony of witnesses in judicial proceedings. He succeeded. In each case, he violated the law.
President Clinton acted with an improper purpose to persuade a person to withhold objects from a judicial proceeding in which that person was required to produce them. He succeeded and in so doing he violated the law.
President Clinton made misleading statements for the purpose of deterring a litigant from further discovery that would lead to facts which the judge ordered relevant in a Federal civil rights case. In so doing, he obstructed the due administration of justice in that case and violated the law.
Whether attempting to persuade a person to testify falsely, or to ignore court orders to produce objects; whether suggesting to an innocent person a false story in hopes that he or she will repeat it in a judicial proceedings; or testifying falsely in the hopes of blocking another party's pursuit of the truth--all these acts obstruct justice; all these acts are Federal felony crimes; all these acts were committed by William Jefferson Clinton.
The CHIEF JUSTICE. The Chair recognizes the majority leader.
Mr. LOTT. Mr. Chief Justice, I ask unanimous consent that there now be a recess again of the proceedings for 15 minutes. Please return promptly to the Chamber.
There being no objection, at 3:29 p.m., the Senate recessed until 3:47 p.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 for the final subject today, from Manager Barr.
The CHIEF JUSTICE. The Chair recognizes Mr. Manager Barr.
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