THE IMPEACHMENT TRIAL
Statement of Sen. Conrad (D-N.D.)
Following is a statement from the Senate's closed deliberations on the articles of impeachment against President Clinton, excerpts of which senators were allowed to publish in the Congressional Record for Friday, Feb. 12.
Mr. CONRAD. Mr. Chief Justice, I have served twelve years in the United States Senate.
I respect this institution and all of you as colleagues. I especially respect the job our leaders have done in this trial. They have performed in the highest tradition of the United States Senate. Most of all, I respect our oath of office: to `preserve, protect, and defend the Constitution of the United States.' I know all of us take that oath seriously.
At the end of this proceeding, however, we may reach different conclusions about what the Constitution compels us to do. The simple truth is that this case is not black and white. As Mr. Manager Graham said, reasonable people may come to different conclusions.
There is one thing on which we all agree: The President's conduct was wrong. In fact, it was very wrong. But the question before us is not whether the President's conduct was wrong. The question is whether that conduct meets the Constitutional standard for removing a President from office.
That requires us to make a profound judgment on whether we should overturn the results of a national election. 67 members in this chamber can nullify the votes of the 47 million Americans who voted for President Clinton. That is an awesome power. It must be used with great restraint.
There are three questions we must answer in the affirmative to remove a President: First, did the President commit the crimes he is charged with? Second, are these crimes properly addressed by impeachment, or would they be better left to the criminal justice system? Third, do the charges rise to the level of high crimes and misdemeanors and justify the removal of the President of the United States?
THE SUFFICIENCY OF THE EVIDENCE
Let me start with the first question. The charges against the President are perjury and obstruction of justice.
Five experienced Federal prosecutors representing both Republican and Democratic Administrations concluded that no responsible Federal prosecutor would bring perjury charges based on the facts in this case.
The President in his grand jury testimony acknowledged an intimate and inappropriate relationship with Monica Lewinsky. The details of that relationship are in conflict. But I do not believe relatively minor differences in the details of that relationship would result in a perjury conviction.
On the obstruction charges, again the federal prosecutors told us they would not bring charges based on the facts in this case.
Ms. Lewinsky has testified that no one ever asked her to lie or promised her a job for her silence. Ms. Lewinsky further testified she never discussed the contents of her testimony with the President, ever. Finally, she also testified that she believed she could file a truthful affidavit.
But there are two elements of the obstruction of justice charges that do trouble me.
One is the transfer of gifts from Ms. Lewinsky to Betty Currie. That could constitute concealment of evidence. But Betty Currie has testified five times that Ms. Lewinsky called her to arrange for the transfer of gifts. And both the President and Betty Currie have denied that the President initiated the transfer.
The second troubling charge is the questioning of Betty Currie by the President after his deposition in the Jones case. I find it hard to believe the President was just refreshing his memory when on two occasions he put the same set of questions to Ms. Currie. That could constitute witness tampering.
But at the time of these conversations, Betty Currie was not a witness in any judicial proceeding. And she has testified that she did not feel pressured to agree with the President.
Although I am not certain that there was no wrongdoing, I do conclude that the charges have not been proven beyond a reasonable doubt.
That leads me to the second question: even if these charges were proven, is this a matter for impeachment, or should it be left to the ordinary course of judicial proceeding?
For me, it is a question best answered by the rule of law that governs us all: the Constitution of the United States.
James Madison kept a journal of the Constitutional Convention. In it, he said many of the Founders opposed impeachment altogether. Others believed impeachment was needed to protect against treason, bribery, or other `attempts to subvert the Constitution.' So a carefully crafted, very narrow compromise was adopted.
Article II, section 4 originally read: `The President . . . shall be removed from office on impeachment for, and conviction of, Treason, Bribery or other high crimes and misdemeanors against the United States.'
James Wilson, a nineteenth century constitutional scholar has written that impeachment was designed for `great and publick [sic] offences by which the Commonwealth was brought into danger.'
These charges against the President just do not measure up to that standard. Hiding presents under a bed. Asking a secretary leading questions. These can hardly be the great and public offenses that our Founding Fathers had in mind. These charges, and the facts behind them, simply do not bring our commonwealth into danger.
So is the President above the law? Most emphatically, no.
William Rawles, a contemporary of the Founders and a distinguished commentator on the Constitution wrote: `In general, those offenses which may be committed equally by a private person as a public officer, are not the subject of impeachment . . . [A]ll offenses not immediately connected with office, except the two expressly mentioned, are left to the ordinary course of judicial proceeding.'
I do not argue that no private wrongs can rise to the level of impeachable offense, but they must be heinous crimes.
Article I, section 3, of the Constitution says: `Judgment in Cases of Impeachment shall not extend further than to removal from Office . . . but the party convicted shall nevertheless be liable and subject to Indictment, trial, judgment and punishment according to law.'
The President is not above the law. He can be prosecuted, indicted, convicted, and sentenced for alleged wrongful acts, just like any other American.
We have our Founding Fathers' own words, distinguishing between public crimes and those that involve the President's conduct as a private individual. We have their deeds to guide us as well. When Vice President Aaron Burr killed Alexander Hamilton in a duel and was indicted for murder, impeachment was not even considered.
Almost two hundred years later, the House Judiciary Committee dismissed a tax evasion charge against President Nixon when an overwhelming majority of the Committee concluded, in the words of Congressman Ray Thornton, `these charges may be reached in due course in the regular process of law.'
In the case before us today, the underlying offense is that the President had an extra-marital affair. He is alleged to have lied about that under oath, and to have obstructed justice. These are serious allegations, and we have considered them seriously.
Offensive as they were, the President's actions have nothing to do with his official duties, nor do they constitute the most serious of private crimes. In my judgment, these are matters best left to the criminal justice system.
REMOVAL FROM OFFICE
That brings me to the third and final question: do the charges so fundamentally threaten our democratic system of government that they constitute high crimes and misdemeanors and justify removal of the President from office?
Our Founding Fathers told us two things about impeachment. First, the matter at hand had better be a very significant crime--a `high crime' that threatens our fundamental freedoms. These alleged crimes do not meet that standard. Second, they told us that it better not be partisan. That's why they required a 2/3 vote in the Senate to remove a President.
They feared the passions of what they called a `faction.' This is a classic case of just that. This proceeding was partisan in the House. It has become partisan here. I'm not casting aspersions here. I am stating a fact.
Impeachment will fail. And it should. It lacks the fundamental legitimacy only a bipartisan consensus can provide.
My colleagues, the Republic still stands. Our safety as a Nation is not in jeopardy. Our Constitution has not been shaken.
Voting to impeach the President under these circumstances would undermine the core principle that lies at the heart of our system of government: the separation of powers. Our Founding Fathers made it difficult to remove a sitting President by design. They were convinced of the wisdom of having three co-equal branches of government. They did not want the President serving at the pleasure--or being removed at the displeasure--of the legislative branch.
Our Founding Fathers were right. Removing a popularly elected President from office would have implications not only for this President, but for every President to follow, and ultimately for the very system of government who hold so dear. Thomas Jefferson once said, `I know of no safe depository of the ultimate powers of the society but the people themselves.'
My colleagues, we are a democracy. In a government `of the people, by the people, and for the people,' we cannot ignore the will of the people. Removing the President under these circumstances would be the most fundamental violation of the rule of law. It would overturn the rule of the people as expressed in a free election. It would adopt minority rule, overturning the clear wishes of a majority of the American people.
Our freedom and liberty are not threatened by the wrongful acts of this President. But our freedom and liberty might be threatened if a minority can overturn the will of the majority.
There may yet come a time when we have no choice but to substitute our judgment for the will of the people. I pray I never see that time. I know it has not come in this case.
My colleagues, I will vote against the articles of impeachment in the case of William Jefferson Clinton.
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