THE IMPEACHMENT TRIAL
Feb. 8: White House Counsels' Closing Argument
From the Congressional Record
The CHIEF JUSTICE. The Chair recognizes Mr. White House Counsel Ruff.
Mr. Counsel RUFF. Thank you, Mr. Chief Justice. Mr. Chief Justice, managers of the House, ladies and gentlemen of the Senate, I can't resist beginning, following the lead of my colleagues across the well here, by telling you that my name is Charles Ruff and I am from the District of Columbia, and we don't have a vote in the Congress of the United States. (Laughter.)
I truly did not intend to begin quite this way, but I must. I don't think there is a court in the land where a prosecutor would be able to stand up for one-third of his allotted time, speak in general terms about what the people are entitled to and what the rule of law stands for--as important as all of that may be--and sit down and turn to the defense counsel and ask that defense counsel go forward, reserving 2 hours for rebuttal. I recognize that procedural niceties have not necessarily characterized the way this trial has gone forward. But I do believe--and this is the only time today I will say this, I promise--that kind of prosecutorial gambit is symptomatic of what we have seen before in these last weeks--wanting to win too much.
Now, that said, let me begin where I intended to begin. We are taking the last steps along a path that, for most of us, has seemed to be unending. Indeed, some of us may have a sense that we have gone well beyond `Yogi Berra land' to deja vu all over again and all over again and all over again. I thought long and hard as I thought about what I was going to say today, and how I could be of most help to you as you make this momentous decision that will soon be entrusted to you. I momentarily considered whether the answer to that question was simply to yield back my time, but I weighed that against the special pleasure of stretching out our last hours with you. (Laughter.)
Or as Ernie Banks would have said, `It's such a nice day, let's play two.' (Laughter.)
But cursed as I am with lawyerly instincts, I decided to compromise. I promise you as much brevity as I can manage, even if not much wit, while making a few final points that I think you need to carry with you as you go into your deliberations.
Now, you have heard the managers' vision--or at least some part of it--of the process we have been engaged in and the lessons we have learned and what it will look like at the end of our journey. I respect them as elected Representatives of their people and as worthy adversaries. But I believe their vision could be too dark, a vision too little attuned to the needs of the people, too little sensitive to the needs of our democracy. I believe it to be a vision more focused on retribution, more designed to achieve partisan ends, more uncaring about the future we face together.
Our vision, I think, is quite different, but it is not naive. We know the pain the President has caused our society and his family and his friends. But we know, too, how much the President has done for this country. And more importantly, we know that our primary obligation, the duty we all have, is to preserve that which the founders gave us, and we can best fulfill that duty by carefully traveling the path that they laid out for us.
Now, you have heard many speeches over the past few weeks about high crimes and misdemeanors. As I look back on the arguments and the counterarguments, it seems to me that really very little can be gained by repeating them; for when all is said and done, what they mean is this: The framers chose stability. They made impeachment and removal constitutional recourses of last resort. The question that the managers appear to have asked--and I am unable to tell you what they will ask today--is whether perjury or obstruction of justice in the abstract are impeachable offenses.
That is not the question you must answer.
Nor must you assume, as the managers appear to, that because judges are removed for having committed perjury, a President must be removed as well. That is not what the rule of law requires. The rule of law and evenhanded justice is something more than a simple syllogism. You must decide whether on these facts arising out of these circumstances this President has so endangered the state that we can no longer countenance his remaining in office.
I think in their hearts the managers do not truly disagree. Whatever they have been able to glean from the historical record or more modern scholarship, they cannot in the end avoid the conclusion that removal of the President is not something that the framers took lightly. Indeed, two of their own witnesses in the Judiciary Committee, Professor Van Alstyne and Judge Wiggins, tried to make it clear to them that even if they were to find that the offenses described in the independent counsel's referral as being committed, another decision had to be made. That decision was whether in the interest of society the President should be impeached. As Professor Van Alstyne put it, in words, that I admit are unflattering to my client but nonetheless makes the point: `In my own opinion,' he said, `I regard what the President did, that which the Special Counsel report declared, are crimes of such a low order that it would unduly flatter the President by submitting him to trial in the Senate, I would not bother to do it.'
I read that statement to you, not obviously because the professor and I are on the same side of the political divide or have the same view of the President's conduct, but because it is important, I think, to understand, as I fear the managers do not, that the framers full well understood what they were doing when they drafted the impeachment provision of the Constitution. They consciously chose not to make all misconduct by the President a basis for removal; they chose instead only that conduct that they viewed as most serious, as most dangerous, to our system of government.
As I said, I think in their hearts the managers recognize the force of it. But they have argued to you that perjury and obstruction really should be treated as the equivalent of treason and bribery and the danger that they pose to our society. They have offered on this much rhetoric and a few substantive arguments. And I want to look at just a few of these arguments as they were advanced in the managers' opening and not really addressed instead.
First, a historical item, that Blackstone in his commentary listed bribery and perjury and obstruction of justice under the same heading of `offenses against public justice'; second, a modern statutory equivalent of that argument that under the sentencing guidelines we actually treat perjury more severely than we do bribery; and, third--this is a theme you have heard throughout these proceedings, what I will call the `system of justice argument'--that the President's conduct, if he is not removed, will somehow subvert enforcement of our civil rights laws.
But all of these arguments are mere subterfuge, offered because the managers knew that to make any plausible case for removal they must bring these articles within the very small circle of offenses that the framers believed were truly dangerous to the state.
First, Blackstone: It is true that the commentaries rate perjury as among 21 offenses against public justice. Notably,
however, Blackstone ranks the 21 in order of seriousness, or, as he puts it, `malignity.' No. 1 on the list, a most malignant offense, is a felony that I have to admit is unknown to me--that of vacating records. No. 6 is returning from transportation, also an offense rarely seen in our modern society. Nos. 10 and 12 are barratry, maintenance and champerty, especially dear to me because they involve my profession, but rarely viewed these days, I think you will agree. And, at No. 15 is perjury.
If, as Madison told us, Blackstone was in the hands of every man, what does that tell us about why the framers chose treason and bribery and other high crimes and misdemeanors as the grounds of impeachment? It tells us that they fully understood that comparative gravity of offenses against public justice, and, nonetheless, chose only those that truly pose that danger to the state--treason, for obvious reasons, and bribery because to them the risk that the executive would sell himself to a foreign country, for example, was much more than mere speculation. And then other high crimes of similar severity.
As to the lesson to be learned from the more modern day, the sentencing guidelines, Manager McCollum argued to you a few weeks ago that those to whom you have given the responsibility to assess the comparative severity of crimes have concluded that perjury is at least as serious a crime as bribery. That decision, he told you, is evidenced by the commission's decision to assign perjury an offense level of 12, or approximately 1 year in prison, and to bribery an offense level slightly below that. But even to the extent that such an argument were to be weighed in the constitutional balance, Manager McCollum was simply not being candid with you, for he failed to explain that under these same guidelines a bribe of, let's say, $75,000 taken by an elected official, or a judge for that matter, automatically carries an offense level of 24, or twice that of perjury, and a prison sentence four to five times longer.
The drafters of our guidelines, to the extent that Mr. McCollum asked you to look at them, full well understand the special gravity of bribes taken by the country's leaders, and to distinguish that offense from the offenses, even at best, that are before you now.
Lastly is this system of justice argument--the notion that somehow President Clinton has undermined our civil rights laws. Well, whatever I might say could not match the eloquence of my colleague, Ms. Mills, and, therefore, I will not attempt fate by venturing further into that territory.
I really do not want to become further immersed in the minutia here. On this. I do agree with the managers. We cannot lose sight of the constitutional forest for some of the analytical trees.
There is only one question before you, albeit a difficult one, one that is a question of fact, and of law and constitutional theory. Would it put at risk the liberty of the people to retain the President in office? Putting aside partisan animus, if you can honestly say that it would not, that those liberties are safely in his hands, then you must vote to acquit.
Each of you has a sense of this in your mind and your heart better than anything I can convey, or I suspect anything better than my colleagues could convey to you. And I will not undertake to instruct you further on this issue.
Just as we ultimately leave that question in your hands, we leave to the conscience of each Member the question of what standard of proof you apply. Despite Congressman Buyer's exhortation to the contrary, this body has never decided for any of you what standard is appropriate or what standard is inappropriate. Each Senator is left to his or her own best judgment.
I suggested to you when I last spoke to you that I believe you must apply a standard sufficiently stringent to enable you to make this most important decision with certainty and in a manner that will ensure that the American people understand that it has been made with that certainty.
This is not an issue as to which we as a people and we as a Republic can be in doubt.
Let me move to the articles. Just as you have listened patiently to our debate about the meaning of `high crimes and misdemeanors,' you have, as well, heard seemingly endless discourse about the specific details of the various matters that the managers allege constitute grounds for removal. I will strive, therefore, not to be unduly repetitive more than is at least absolutely necessary.
My colleagues, last Saturday and in their earlier presentations, have done my work for me, but I want to focus for just a little while on those aspects of the managers' presentation that merit your special attention or those that have been particularly elucidated or, for that matter, beclouded by the testimony you heard and watched on Saturday.
As we start this discussion, let me offer you a phrase that I hope you will remember as I move through the articles with you. That phrase is `moving targets and empty pots.' `Moving targets,' ever-shifting theories, each one advanced to replace the last as it has fallen, fallen victim to the facts. `Empty pots,' attractive containers, but when you take the lid off you find nothing to sustain them.
Now, I used the term, `empty vessels,' in my opening presentation, but it since struck me that that was much too flattering and might even suggest that they had the capacity to float, which they don't.
Article I, the first moving target. Now, as we have said repeatedly, we have been more than a little puzzled as to the exact nature of the charges advanced by the managers under the rubric of article I, and our puzzlement has only increased, I must tell you, since this trial began.
We have argued, I think with indisputable force, that both articles are so deficient that they would not survive a motion to dismiss in any court in the land. Now, we are not insensitive to the claim that we are advancing some lawyer's argument, and we are seeking some technical escape, but I urge you not to treat this issue so lightly. As you look to article I, for example, ask yourselves whether you can at this late moment in the trial identify for yourselves with any remote sense of certainty the statements that the managers claim were perjurious.
I suspect you will hear a lot about that in the 2 hours following my presentation, but I will try to look ahead just a bit.
Ask yourselves whether you are comfortable in this gravest of proceedings that when you retire to your deliberations you could ever know that the constitutionally required two-thirds vote is present on any one charge.
Now, we have been making this argument for some time and with some frequency, and so you would think that at least once the trial began the managers would have fixed on some definable set of charges. But, no. Indeed, it struck me even earlier this afternoon that when Manager Sensenbrenner rose to speak to you, he was prepared to give you four examples of perjury. We have heard a lot of examples. We haven't heard much certainty.
Now, just to give you an example of how rapidly the target can move, you will recall that in describing the incidents of perjury allegedly committed by the President, the managers made much of the preliminary statement he read to the grand jury, including the use of the words `occasionally,' and `on certain occasions' to describe the frequency of certain conduct and made the general allegation that the statement was itself part of a scheme to deceive the grand jury.
Yet, strangely, when Mr. Manager Rogan was asked about these very charges as late as January 20, he quite clearly abandoned them.
I direct your attention to the exhibits before you and to the charts. Appearing on television on January 20, with Chris Matthews, this is what transpired:
MATTHEWS. . . . now defend these--these elements--one, that the president lied when he said he had had these relationships with her on certain occasions. Is that the language?
Rep. ROGAN. That is the . . .
MATTHEWS. And--and why is that perjurious--perjurious?
Rep. ROGAN. In fact, I'm not--I don't think it's necessarily perjurious. That is--that's one little piece of this answer that he gave at the grand jury. . . .
* * * * *
MATTHEWS. Well, another time he used a phrase with regard to this ridiculous thing called phone sex, he referred to it as occasionally or on occasion. Why do you add them in as part of the perjury indictment?
Rep. ROGAN. That's not added in as part of the perjury indictment in Article I. I simply raised that issue when I was addressing the Senate.
* * * * *
MATTHEWS. You better get to those senators because I think they made the mistake I did of thinking that was one of the elements in the perjury charge.
And similarly over here, although I have reversed the order a bit:
MATTHEWS. . . . Go through what you think are the main elements in your perjury indictment of the president, impeachment. . . .
Rep. ROGAN. One of the things they were focusing on is a point, I think, I made last week when I was presenting the case for perjury dealing with that preliminary statement that the president read that just really gave the grand jury a misperception of what the president's relationship was with Monica Lewinsky. Now I never said that was the basis for the perjury charge. In fact, that's not even one of the four areas that's alleged, but they're trying to pick these little dots out of the matrix and try to hang their hat on that. . . .
I have to tell you, as did Mr. Matthews, I made the same mistake. I heard Manager Rogan say:
This prepared statement he read to the grand jury on August 17th, 1998, was the linchpin in his plan to `win.'
I heard him say:
It is obvious that the reference in the President's prepared statement to the grand jury that this relationship began in 1996 was intentionally false.
I heard him say:
The President's statement was intentionally misleading when he described being alone with Ms. Lewinsky only on certain occasions.
And I heard him say:
The President's statement was intentionally misleading when he described his telephone conversations with Monica Lewinsky as occasional.
That is what I heard when Manager Rogan spoke to you a few weeks ago.
Now, I know it is unusual to be given a bill of particulars on television, but maybe that is part of the modern litigation age.
And so as to article I's charge, now that this is off the books, that the President perjured himself concerning his relationship with Ms. Lewinsky, we are once again left with the claim that he lied about touching, about his denial that he engaged in conduct that fell within his subjective understanding of the definition used in the Jones deposition--this in the course of testimony, Members of the Senate, in which the President had already made the single most devastating admission that any of us can conceive of. It defies common sense. And as any experienced prosecutor--and five experienced prosecutors said this to the Judiciary Committee--will tell you, it defies real world experience to charge anyone, President or not, with perjury on the grounds that you disbelieve his testimony about his own subjective belief in the definition of a term used in a civil deposition.
Nothing in the evidentiary record has changed since the OIC referred this matter to the House 6 months ago. Indeed, it is impossible to conceive what could change in the evidentiary record. And the managers have offered this charge and persist in it for reasons not entirely clear to me, but some blind faith that they must go forward, facts or no.
Now, there are three other elements of article I. First, the allegation that the President lied when he claimed he did not perjure himself in the Jones deposition. The President, of course, made no such representation in the grand jury.
And the managers cannot, no matter how they try, resurrect the charges of the article, then, article II, that was so clearly rejected by the House of Representatives. Yet, if you listen to their presentations over the past weeks, it becomes evident that, whether intentionally or unintentionally, they themselves have come to the point where the President's testimony on January 17 in the Jones deposition and August 17 in the grand jury are treated as though they were one and the same.
Now, just a few minutes ago you heard Manager Gekas talk to you about perjury, and probably 90 percent of what he talked to you about was perjury in the Jones case--in the Jones case. It doesn't exist anymore. The House of Representatives determined that that was not an impeachable offense. It appears to make no difference, though, that the House rejected this charge, for the managers do continue to dwell on it as though somehow they could show the House from which they came that they made a mistake.
Only last Saturday, Manager Graham could be heard decrying the President's claim that he had never been alone with Monica Lewinsky, something that comes not out of the grand jury but out of the Jones deposition, at the same time he was taking him to task for his disquisition on the word `is,' something that is in the grand jury but is entirely irrelevant to these perjury charges. You could even see it in their videotape presentation last Saturday when snippets from January 17, then August 17, were played without any definition and without any sense that there was any distinction between the two events.
There is literally nothing in the President's grand jury testimony that purports to adopt wholesale his testimony in the Jones deposition. If anything, it is evident that he is explaining at length and clarifying and adding to his deposition testimony. Indeed, even if the original article II had survived, the President's belief that he had `worked through the minefield of the Jones deposition without violating the law'--which is a quote from his grand jury testimony--could not allow the managers, somehow, to establish that that statement was independently perjurious, and they surely cannot do so now that the original article II has disappeared.
Now, as to the second and third remaining elements of article I, that the President lied about Mr. Bennett's statement to Judge Wright at the time of the Jones deposition, and that he lied about his own statements to his staff, I will deal with them in my discussion of the obstruction charges in article II. Suffice it to say that nothing in the record as it came to you in January could support conviction on article I, and nothing added to the record since then has changed that result.
Let me move to article II. Manager Hutchinson told you in his original presentation that article II rested on--his words --`seven pillars of obstruction.' I had suggested in my opening statement of a few weeks ago that it would be more accurate to call them seven shifting sand castles of speculation, but Manager Hutchinson has not proved willing to accept my description and so I will accept his. Let's remove one pillar right at the start.
Article II charges that the President engaged in a scheme to obstruct the Jones case--the Jones case--and alleges as one element of this scheme that in the days following January 21 the President lied to his staff about his relationship with Ms. Lewinsky, conduct that could not possibly have had anything to do with the Jones litigation.
I will get to the merits of that charge standing alone in a little while, but I bring up the more--forgive me--technical argument here, to highlight once more the extent to which the House simply ignored the most basic legal principles in bringing these charges to you. I have yet to hear from the managers a single plausible explanation for the inclusion of this charge as part of a scheme to obstruct the Jones litigation, and I can think of none. I am sure that in the 120 minutes remaining to them, some portion of that time will be spent explaining just this point. And, so, one pillar gone; a slight list observed.
Next: Ms. Lewinsky's affidavit and the first of the empty pots. The managers charge that the President corruptly encouraged a witness to execute a sworn affidavit that he knew to be perjurious, false, and misleading, and similarly encouraged Ms. Lewinsky to lie if she were ever called as a witness. In my opening statement, and in Mr. Kendall's more detailed discussion, we made two points: First, that Ms. Lewinsky had repeatedly denied that she had ever been asked or encouraged to lie; and, second, that there was simply no direct or circumstantial evidence that the President had ever done such a thing.
Now, it is not in dispute that the President called Ms. Lewinsky in the early morning of December 17 to tell her about the death of Betty Currie's brother, and in the same call that he told her that she was now listed on the Jones witness list. The managers have from the beginning relied on one fact and on one baseless hypothesis stemming from this call which, in the managers' minds, was the beginning and the middle and the end of the scheme to encourage the filing of a false affidavit. There is literally no other event or statement on which they can rely.
The one fact to which the managers point is Ms. Lewinsky's testimony that the President said that if she were actually subpoenaed, she possibly could file an affidavit to avoid having to testify, and at some point in the call mentioned one of the so-called cover stories that they had used when she was still working at the White House--that is, bringing papers to him. And it is on this shaky foundation, a very slim pillar indeed, that the managers build the hypothesis.
In the face of the seemingly insurmountable hurdle of Ms. Lewinsky's repeated denials that anyone ever asked or encouraged her to lie, the managers have persisted in arguing, and continue to do so, that the President did somehow encourage her to lie, even if she didn't know it. Now you have heard that theme sounded really for the first time on Saturday, and then a little bit today--even if she didn't know it, because both really understood that any affidavit Ms. Lewinsky would file would have to be false if it were to result in her avoiding her deposition. But neither the fact on which they rely nor their hypothesis was of much help to the managers before Ms. Lewinsky's deposition and neither, surely, has any force after her deposition.
After you saw Ms. Lewinsky's testimony, there can be nothing left of what was, at best, only conjecture. Even before her deposition, Ms. Lewinsky had testified, as had the President in the grand jury, that given the claims being made in the Jones case, a truthful albeit limited affidavit might--might--establish that Ms. Lewinsky had nothing relevant to offer in the way of testimony in the Jones case.
Faced with this record, the managers asked you to authorize Ms. Lewinsky's deposition, representing that she would--and I quote, and this is from the managers' proffer--`rebut the following inferences drawn by White House counsel on key issues, among others that President Clinton did not encourage Ms. Lewinsky to file a false affidavit and that President Clinton did not have an understanding with Ms. Lewinsky that the two would lie under oath.'
Unhappily for the managers--and perhaps their unhappiness was best reflected in the tone of Manager Bryant's discussion on this subject--Ms. Lewinsky's testimony, as you saw yourself on Saturday, did just the opposite.
In an extended colloquy with Mr. Manager Bryant on the subject of the affidavit, Ms. Lewinsky made clear, beyond any doubt, first, that the President had never discussed the contents of the affidavit with her; second, that there was no connection between the suggestion that she might file an affidavit and the reference to any cover story; third, that she believed it possible to file a truthful affidavit.
You saw much of this portion of Ms. Lewinsky's deposition on Saturday, and I am not going to impose too much on your patience, but I do want to play just a very few segments of that videotape.
First, two segments dealing with the content of the affidavit.
(Text of videotape presentation:)
Q Are you, uh--strike that. Did he make any representation to you about what you could say in that affidavit or--
Q What did you understand you would be saying in that affidavit to avoid testifying?
A Uh, I believe I've testified to this in the grand jury. To the best of my recollection, it was, uh--to my mind came--it was a range of things. I mean, it could either be, uh, something innocuous or could go as far as having to deny the relationship. Not being a lawyer nor having gone to law school, I thought it could be anything.
Q Did he at that point suggest one version or the other version?
A No. I didn't even mention that, so there, there wasn't a further discussion--there was no discussion of what would be in an affidavit.
* * * * *
Q In his answer to this proceeding in the Senate, he has indicated that he thought he had--might have had a way that he could have you--get you to file a--basically a true affidavit, but yet still skirt these issues enough that you wouldn't be called as a witness.
Did he offer you any of these suggestions at this time?
A He didn't discuss the content of my affidavit with me at all, ever.
Next, a couple of brief segments on the issue of the cover stories.
(Text of videotape presentation:)
Q Well, based on prior relations with the President, the concocted stories and those things like that, did this come to mind? Was there some discussion about that, or did it come to your mind about these stories--the cover stories?
A Not in connection with the--not in connection with the affidavit.
* * * * *
Q Did you discuss anything else that night in terms of--I would draw your attention to the cover stories. I have alluded to that earlier, but, uh, did you talk about cover story that night?
A Yes, sir.
Q And what was said?
A Uh, I believe that, uh, the President said something--you can always say you were coming to see Betty or bringing me papers.
Q I think you've testified that you're sure he said that that night. You are sure he said that that night?
Q Now, was that in connection with the affidavit?
A I don't believe so, no.
* * * * *
Now, you have testified in the grand jury. I think your closing comments was that no one ever asked you to lie, but yet in that very conversation of December the 17th, 1997 when the President told you that you were on the witness list, he also suggested that you could sign an affidavit and use misleading cover stories. Isn't that correct?
A Uh--well, I--I guess in my mind, I separate necessarily signing affidavit and using misleading cover stories. So, does--
Q Well, those two--
A Those three events occurred, but they don't--they weren't linked for me.
And third, a brief segment on the supposed falsity of any affidavit that might be filed.
(Text of videotape presentation:)
Q The night of the phone call, he's suggesting you could file an affidavit. Did you appreciate the implications of filing a false affidavit with the court?
A I don't think I necessarily thought at that point it would have to be false, so, no, probably not. I don't--I don't remember having any thoughts like that, so I imagine I would remember something like that, and I don't, but--
And last, if we might, a brief segment on the question of whose best interests were being served.
(Text of videotape presentation:)
Q But you didn't file the affidavit for your best interest, did you?
A Uh, actually, I did.
Q To avoid testifying.
Brief, put pointed, I think, and I am sure you remember them from Saturday, and I am sure you will take those excerpts with you as you move into your deliberations.
There was another issue that surfaced early on, although perhaps it has dissipated, and that is whether the President ever saw a draft of Ms. Lewinsky's affidavit, something that the managers alleged early on but, indeed, as we now know from that testimony, not only did nobody ever see a draft of the affidavit, the President and Ms. Lewinsky never even discussed the content of her affidavit. `Not ever,' as she put it, either on December 17 or on January 5 or on any other date. According to Ms. Lewinsky, the President told her he didn't need to see a draft because he had seen other affidavits.
Early on, Manager McCollum speculated for you--speculated for you--that when the President told Ms. Lewinsky that he didn't need to see her affidavit because he had seen other affidavits, he really must have meant that he had seen previous drafts of hers, and this is what he said:
I doubt seriously the President was talking about 15 other affidavits of somebody else and didn't like looking at affidavits anymore. I suspect, and I would suggest to you, that he was talking about 15 other drafts of this proposed affidavit, since it had been around the horn a lot of rounds.
That is what Manager McCollum told you. Now we know that those drafts didn't exist. They never existed. How do we know? Somewhat belatedly, the managers got around to telling us that. In describing the testimony they would expect to receive from Ms. Lewinsky when they moved for the right to take her deposition, they wrote in their motion:
That same day, January 5, she called President Clinton to ask if the President would like to review her affidavit before it was signed. He declined, saying he had already seen about 15 others. She understood that to mean that he had seen 15 other affidavits rather than 15 prior drafts of her affidavit (which did not exist).
In sum, one, the only reference to an affidavit in the December 17 call was the suggestion of the President that filing one might possibly enable Ms. Lewinsky to avoid being deposed, itself an entirely legitimate and proper suggestion.
Two, the President and Ms. Lewinsky never discussed the content of her affidavit on or after December 17.
Three, the President never saw or read any draft of the affidavit before it was signed.
Four, the President believed that she could file a true affidavit.
Five, Ms. Lewinsky believed that she could file a true affidavit.
Six, there is not one single document or piece of testimony that suggests that the President encouraged her to file a false affidavit.
If there is no proof the President encouraged Ms. Lewinsky to file a false affidavit, surely there must be some proof on the other charge that encouraged her to give perjurious testimony if she were ever called to testify.
Well, there isn't.
Let's begin by noting something that should help you assess the President's actions during this period--both the charge that he encouraged the filing of a false affidavit and the charge that he encouraged Ms. Lewinsky to testify falsely.
The conversation that the managers allege gave rise to both offenses is that call of the early morning of December 17. The managers suggest that the President, in essence, used the subterfuge of a call to inform Ms. Lewinsky about the death of Ms. Currie's brother to discuss her status as a witness in the Jones case. Subterfuge? Come on. A tragedy had befallen a woman who was Ms. Lewinsky's friend and the President's secretary.
But let's put this in the managers' own context. On December 6, the President learned that Ms. Lewinsky was on the Jones witness list. According to the managers, that was a source of grave concern and spurred intensified efforts to find her a job--efforts that were still further intensified when, on December 11, Judge Wright issued her order allowing lawyers to inquire into the President's relationships with other women. Yet, I have not heard any explanation as to why the President, now theoretically so distraught that he was urging Mr. Jordan to keep Ms. Lewinsky happy by finding her a job, as Manager Hutchinson would have it, waited until December 17--11 days after he learned Ms. Lewinsky was on the witness list and 6 days after the supposedly critical events of December 11--to call and launch his scheme to suborn perjury.
Now, as to the charge of subornation, the managers do concede, as they must, that the President and Ms. Lewinsky did not even discuss her deposition on the 17th, logically, I suppose, since she wasn't actually subpoenaed until 2 days later.
Now, one might think that this would dispose of the matter, since they do not identify a single other moment in time when there was any discussion of Ms. Lewinsky's potential testimony. But once again, having lifted the lid and seen that their pot was empty, they would ask you to find that the same signal that we now know did not encourage the filing of an affidavit was a signal to Ms. Lewinsky to lie if she was ever called to testify. But of course we have long known that there was no such signal. And the grand jury--as was so often the case, one of the jurors took it upon him or herself to ask that which the independent counsel chose not to. And you have this before you. And you have seen it before.
A JUROR: It is possible that you also had these discussions [about denying the relationship] after you learned that you were a witness in the Paula Jones case?
[MS. LEWINSKY]: I don't believe so. No.
A JUROR: Can you exclude that possibility?
[MS. LEWINSKY]: I pretty much can. I really don't remember it. I mean, it would be very surprising for me to be confronted with something that would show me different, but I--it was 2:30 in the--I mean, the conversation I'm thinking of mainly would have been December 17th, which was--
A JUROR: The telephone call.
[MS. LEWINSKY]: Right. And it was--you know, 2:00, 2:30 in the morning. I remember the gist of it and I--I really don't think so.
A JUROR: Thank you.
But all of this is not enough to dissuade the managers.
Now that they know that the only two participants in the relevant conversation denied that there was any discussion of either the affidavit or the testimony, they have created still another theory. As Manager Bryant told you last week--and in essence it was repeated today--`I don't care what was in Ms. Lewinsky's mind.'
Well, that is quite extraordinary. The only witness, the supposed victim of the obstruction, the person whose testimony is being influenced, says that it didn't happen. And the managers nonetheless want you to conclude, I assume, that some subliminal message was being conveyed that resulted in the filing of a false affidavit without the affiant knowing that she was being controlled by some unseen and unheard force. I won't comment further. Two more pillars lie in the dust.
Next, the gifts. On this charge, the record is largely, but in critical respects not entirely, as the record has been from the beginning. Here is what it shows.
On the morning of December 28, the President gave Ms. Lewinsky Christmas presents in token of her impending departure for New York. Ms. Lewinsky testified that she raised the subject of her subpoena and said something about getting the gifts out of her apartment, to which she herself has now told you the President either made no response or said something like, `Let me think about it.'
Betty Currie testified consistently that Ms. Lewinsky called her to ask her to pick up a box and hold them for her. Ms. Lewinsky has testified equally consistently, and testified again in her deposition, that it was her recollection that Ms. Currie called her and said that she understood she `had something for her' or perhaps even the President said, `You have something for me.' The President denies that he ever spoke to Betty Currie about picking up gifts from Monica Lewinsky. Betty Currie denies that the President ever asked her to pick up gifts from Monica Lewinsky.
Now, Ms. Lewinsky has stated on three occasions before her most recent deposition that Ms. Currie picked up the gifts at 2 o'clock in the afternoon on the 28th. Having been shown the infamous 3:32 cell phone call, which had previously been trumpeted by the managers as absolute proof that it was Ms. Currie who called Ms. Lewinsky, who initiated the process, Ms. Lewinsky testified on Monday that Ms. Currie came to pick up the gifts sometime during the afternoon and that there had been other calls earlier in the day.
But we learned at least a couple of interesting new things from Ms. Lewinsky on this subject.
First, when she received her subpoena on December 19, 9 days --9 days--before she spoke to the President about them, Ms. Lewinsky was frightened at the prospect that the Jones lawyers would search her apartment, and she began to think about concealing the gifts that she cared most about that would suggest some special relationship with the President. And as she told you, she herself decided then that she would turn over only what she described as the most innocuous gifts, and it was those gifts that she took with her to see her lawyer, Mr. Carter, on December 22.
Thus, when she arrived to pick up her Christmas gifts from the President on December 28, she had already decided that she would not turn over all the gifts called for by the subpoena and had already segregated out the ones she intended to withhold. But she didn't tell the President about that. Instead, as she testified, she broached the question of what to do with the gifts and the possibility of giving them to Betty Currie, again without describing what had already occurred, to which the President either made no reply or said something like, `I'll think about it.'
This testimony sheds light on one of the issues that has troubled everyone who has tried to make sense out of what happened on that day. Why would the President, if he were really worried about Ms. Lewinsky's turning over gifts pursuant to the subpoena, give her more gifts? From our perspective, the answer has always been an easy one. He wouldn't have been concerned. He's testified that he's not concerned about gifts, that he gives them all the time to all sorts of people, and he wasn't worried about it.
Now, we know that from Ms. Lewinsky's perspective, as she explained in her deposition, it also made no difference that the President was giving her additional gifts, because she had already decided, having had the subpoena in hand for 9 days, that she would not turn them over.
Now, a second ray of light also shines on two aspects of the managers' case from Ms. Lewinsky's deposition.
You may remember that as part of article I in their trial brief, the managers allege that the President lied to the grand jury--this is one of the never-ending list of possible perjuries--that he recalled saying to Ms. Lewinsky on December 28 that she would have to `turn over whatever she had' when she raised the gift issue with him.
Well, the managers sought to obtain from Ms. Lewinsky testimony that would support that charge of perjury as well as the concealment charge under article II,
but she turned that world upside down on both the perjury charge and the obstruction charge.
When asked whether the President had ever said to her, `You will have to give them whatever you have,' or something like that, Ms. Lewinsky testified that FBI Agent Fallon of the OIC had interviewed her after the President's grand jury testimony, after they already knew what the President had said under oath, and asked her whether she recalled the President saying anything like that to her. I am sure somewhat to the surprise of Manager Bryant, she testified that she told Agent Fallon, `That sounds familiar.'
Now aside from the not so minor point that Ms. Lewinsky's testimony corroborates the President's recollection of his response and undermines the charge in both article I and article II, a couple of other things are worth noting. As my colleague, Ms. Seligman, pointed out to you on Saturday, this was the first time after all Ms. Lewinsky's recorded versions of the events of December 28, that we had ever heard that the President's version sounded familiar to her. And second, there is not a single piece of paper--at least that we are aware of--in the entire universe turned over by the independent counsel, by the House, and thence to us that reflects the FBI's interview of Ms. Lewinsky. If she hadn't been honest enough to tell Manager Bryant about it, we and you would never have known.
Senators, what else is there in the vaults of the independent counsel or in the memory of his agents that we don't know about?
Another pillar down.
The job search. It may have become tiresome to hear it, but any discussion of the job search must begin with Ms. Lewinsky's testimony oft repeated that no one promised her a job to influence her testimony. Remember my two themes: Moving targets, empty pots. They come together here. What the managers have presented to you in a series of different speculative theories, as each one is shown to be what it is, they move on to the next in the hope they will find one, someday, that actually has a connection to reality. But they cannot find that elusive theory; for the stubborn facts will not budge, nor will the stubborn denials by every participant in their mythical plot.
Now we know that Monica Lewinsky's job search began in the summer of 1997, well in advance of her being involved in the Jones case. In October, she interviewed with U.N. Ambassador Richardson, was offered a job. She had her first meeting with Mr. Jordan early in November, well before she appeared in the Jones case. The next contact was actually before Thanksgiving when she made an effort to set up another meeting with Mr. Jordan and was told to call back after the holiday. She did, on December 8, and set up a meeting on December 11--again, before either she or Mr. Jordan knew that she was involved in the Jones case.
Now, on that date of December 11 which we have heard so much about, Mr. Jordan did open doors for Ms. Lewinsky in New York, but there was no inappropriate pressure. At American Express and Young and Rubicam she failed on her own, and at Revlon she succeeded on her own. As Mr. Jordan told the grand jury when asked whether there was any connection between his assistance to her and the Jones case, his answer was `unequivocally, indubitably no.'
In search of some evidence that Mr. Jordan's efforts were,
indeed, triggering Ms. Lewinsky's status as a witness and therefore inappropriate, the managers focused on his January 8 call to Mr. Perelman, the CEO of MacAndrews & Forbes, admittedly a date known to Ms. Lewinsky, to Mr. Jordan, and to the President. Ms. Lewinsky had reported that her original interview had not gone well, although we know it actually had, and that her resume had already been sent over from MacAndrews & Forbes to Revlon where she ultimately was offered a job.
Mr. Jordan was candid stating he went to the top because he wanted to get action if action could be had, but the record is clear that the woman involved at Revlon who interviewed Ms. Lewinsky had already made a decision to hire her. No one put any pressure on her. There was no special urgency. There was no fix. In fact, if you want it known what happens when Mr. Jordan calls the CEO of a company to get action, look at his call to the CEO of Young and Rubicam: No job; no job. They made an independent decision whether or not to hire Ms. Lewinsky.
Now, other than the managers, there are only two people, as far as I can tell, who ever tried to create a link between the job search and the affidavit: Linda Tripp and Kenneth Starr. No one--not Ms. Lewinsky, not Mr. Jordan, not the President, no one--ever said anything to so much as suggest the existence of such a linkage, and the managers can find no proof; which is not to say they didn't try.
Manager Hutchinson, you will recall, originally asked you to look at the events of January 5 when he said Ms. Lewinsky had met with her attorney, Mr. Carter, and then, according to the managers' account, Mr. Carter began drafting the affidavit and Ms. Lewinsky was so concerned that she called the President and he returned her call. The problem with that version, as my colleague, Mr. Kendall, showed you, was the affidavit wasn't drafted until January 6. Mr. Carter has so testified.
Now, the managers would also have you believe that Mr. Jordan was involved in drafting the affidavit and that he was involved in the deletion of language from the draft that suggested that she had been alone with the President. Ms. Lewinsky's and Mr. Jordan's testimony is essentially the same. They talked, Mr. Jordan listened--you recall him saying, `Yes, she was talking, I was doodling,'--he called Mr. Carter, he transmitted to Mr. Carter some of her concerns, but he made it very clear to Ms. Lewinsky he wasn't her lawyer. And in words that will resonate forever, at least among the legal community, Mr. Jordan said, `I don't do affidavits.' And, of course, Mr. Carter himself testified it was his idea to delete the language about being alone.
Now, the very best that the managers can do on this issue is to establish that Ms. Lewinsky talked to Mr. Jordan in the same conversation about the job search and about her affidavit. But as Mr. Jordan told you, Ms. Lewinsky was always talking about the job search, and he made it very clear to you that there was no linkage between the two.
If we can play just a very brief section of Mr. Jordan's deposition.
(Text of videotape presentation:)
Q In your conversation with Ms. Lewinsky prior to the affidavit being signed, did you in fact talk to her about both the job and her concerns about parts of the affidavit?
A I have never in any conversation with Ms. Lewinsky talked to her about the job, on one hand, or job being interrelated with the conversation about the affidavit. The affidavit was over here. The job was over here.
And of course we have already dispensed with the notion to the extent that the managers continue to assert that the President never discussed the contents of the affidavit with Ms. Lewinsky or even ever saw a draft.
Now, recognizing that they would never be able to show that the inception of the job search was linked in any way to the affidavit, the managers developed a theory which they have advanced to you that the President committed obstruction of justice when the job search assistance became, in their words, `totally interconnected, intertwined, interrelated,' with the filing of Ms. Lewinsky's affidavit.
The problem the managers have had, however, is that they have not been able to figure out when this occurred, why it occurred, or how it occurred. Think back on how many versions of their theory you have heard just in the last few weeks. First, it all started on December 11 when Judge Wright issued her order permitting Jones lawyers to take depositions to prove that the President had relations with other women. That was what galvanized the President and Mr. Jordan to make real efforts to find Ms. Lewinsky a job.
Woops, didn't quite fit the facts.
Mr. Jordan met with Ms. Lewinsky and made calls to prospective employers before the order was issued. Let's try this. Second, well, it wasn't really the 11th, it was the 5th when the witness list came out. But they had already told you in a trial brief quite explicitly, and in the majority report of the committee to the Congress, that there was `no urgency.' Those were their words; there was `no urgency' after December 5. I am a city boy, but that dog went back to sleep.
Third, as Manager Hutchinson told you on Saturday, what really happened was that by December 17 the President had `got the job search moving' and thought `maybe she is now more receptive,' and that is why he called Ms. Lewinsky on the 17th and told her she was on the witness list.
Nice try. No facts.
Now, I don't know whether this chart, which Manager Hutchinson used, was intended to speak for itself or to be elucidated by his own comments, but let's look at it. `December 5th, witness list--Lewinsky,' exclamation point. Her name is on it. `December 6: President meets with attorneys on witness list.'
`December 7th: President and Jordan meet.'
Well, that is also true, but we know they didn't talk about Monica Lewinsky. I am not quite sure why it is there.
`December 8th: Lewinsky sets up a meeting with Jordan for the 11th.'
True. At that point, she doesn't know she is on the list and Mr. Jordan doesn't know she is on the list.
`December 11th: Lewinsky job meeting with Jordan.'
Yes, true. But as we know, well before Judge Wright's order came out, the two of them still don't know that her name is on the witness list.
December 17th was the calls.
True. They are on the list.
On December 19, the subpoena was served.
`December 28: President and Lewinsky meet; evidence (gifts) concealed.'
Now, true, but I am not sure what that means in this context.
Last, interestingly, was breakfast at the Park Hyatt. `More evidence at risk.'
Now, it is clear that if you string all of these events together and you have a theory that will link them all together, you have made some progress. There is only one problem: Other than what we know to be true on this list, there is nothing other than surmise that links them together in any fashion that one could consider improper or certainly illegal. But that is, in essence, where the managers have brought us in their theorizing, for their fourth theory is that the pressure did not really begin to build until Ms. Lewinsky was actually subpoenaed and began to prepare an affidavit.
On this theory, a call to Mr. Perelman was the final step--going right to the top of MacAndrews & Forbes to make absolutely sure that Ms. Lewinsky stayed on the team. But here there are other facts to deal with. For example, look what happened--or more importantly, didn't happen--on December 19. On that day, Monica Lewinsky came, weeping, to Mr. Jordan's office carrying with her the dreaded subpoena. Mr. Jordan called the President and visited with him that evening. And you
will recall that they talked in very candid terms to the President about their relationship. Wouldn't one think that if the President was, in fact, engaged in some scheme to use a job in New York to influence Ms. Lewinsky's testimony, this would be the critical moment, that some immediate steps would be taken to be absolutely sure that there was a job for her? But what do we find? Mr. Jordan takes no further action on the job front until January 8.
Now, there was never so much as a passing reference concerning any connection between the job search and the affidavit among any of the three participants--any of them--because there was not one conversation that anyone could conclude was designed to implement this nefarious scheme that the managers would have you find. So now we have an entirely new theory--the `one-man conspiracy,' a beast unknown, I think, to Anglo-American jurisprudence.
Now, the fact that Ms. Lewinsky--this is on the managers' theory--didn't know she was on the witness list until December 17, and Mr. Jordan didn't know about it until she was subpoenaed on the 19th, and Mr. Perelman never knew it, all are `proof positive' that the President himself was the `mastermind' pulling on unseen strings and influencing the participants in this drama, without their even knowing that they were being influenced. Under this theory--the latest in a long line--Ms. Lewinsky's denial that she ever discussed the contents of her affidavit with the President, her denial that there was any connection between the job and her testimony, Mr. Jordan's denial that there was ever a connection between his efforts to find her a job and the affidavit, and the fact that Mr. Jordan never discussed any such connection with the President, are simply evidence of the fact that there must have been such a connection; that unbeknownst to Ms. Lewinsky, she was being corruptly encouraged to file a false affidavit. With all due respect, somebody has been watching too many reruns of `The X-Files.'
Confronted with this problem, the managers now offer you one last theory. With ever-increasing directness, they now accuse Mr. Jordan himself of obstructing justice by urging Ms. Lewinsky to destroy her notes. Seemingly, they ask you to find--even in the face of Mr. Jordan's forceful denials--that one who would forget a breakfast at the Park Hyatt until reminded of it by being shown the receipt, and who then admitted his recollection was refreshed and would admit that he remembered a discussion of the notes, must have obstructed justice himself. And, of course, he must have been engaged all along with an effort to influence Ms. Lewinsky's testimony on behalf of the President.
Nonsense. Nonsense. And so this pillar returns to the dust from which it came.
Next, the events surrounding Mr. Bennett's statement to Judge Wright during the Jones deposition formed the basis for two charges: First, that the President obstructed justice in the Jones case; second, that he committed perjury by telling the grand jury that he really wasn't paying attention at the critical moment.
Both charges depend on the managers' ability to prove that, indeed, the President had been paying attention. To do that, they always rely on the videotape of the deposition in which it can be seen that the President was looking in the direction of his lawyer while Mr. Bennett was talking.
But 2 weeks ago, they came to you and they produced, with a modest flourish, a new bit of evidence--an affidavit from Mr. Barry Ward, clerk to Judge Wright, trumpeted, in their words, as `lending even greater credence to their crime.' Now, in their memorandum in support of their request to expand the record by including Mr. Ward's affidavit, the managers told you the following, and this is the managers' own language:
From his seat at the conference table next to the judge, he saw President Clinton listening attentively to Mr. Bennett's remarks, while the exchange between Mr. Bennett and the judge occurred.
Then they said:
Mr. Ward's declaration would lend even greater credence to the argument that President Clinton lied on this point during his grand jury testimony and obstructed justice by allowing his attorney to utilize a false affidavit in order to cut off a legitimate line of questioning. Mr. Ward's declaration proves that Mr. Ward saw President Clinton listening attentively while the exchange between Mr. Bennett and the presiding judge concurred.
But this is what Mr. Ward's affidavit actually says. The affidavit was attached to the very motion the language of which I just read to you. I direct your attention only to the last sentence, because this is the only one of any moment: `From my position at the conference table, I observed President Clinton looking directly at Mr. Bennett while this statement was being made.'
Search if you will for any evidence relating to whether the President was looking attentively or not. There is not one iota of evidence added by the videotape. You were misled. Indeed, Mr. Ward said to the Legal Times on February 1, 1999, `I have no idea if he was paying attention. He could have been thinking about policy initiatives, for all I know.' You were misled.
The record before the affidavit is the record after the affidavit. The managers ask that you remove the President of the United States on the basis of the videotape showing that he was looking in the direction of his lawyer.
Well, it was not much of a pillar to start with.
There is no dispute of the conversation of January 18 between the President and Ms. Currie. There is no dispute that President Clinton called Ms. Currie into the White House on Sunday, January 18, the day after his deposition, and asked her certain questions and made certain statements about his relationship with Ms. Lewinsky. The only dispute is whether, in doing so, the President intended to tamper with a witness. The managers contend that he was corruptly attempting to influence Ms. Currie's testimony. The President denies it.
Since we know that Ms. Currie was not on the Jones witness list at the time of the President's deposition, or at the time of either of the conversations with Ms. Currie, and we know that discovery was about to end, the managers have argued that the President's own references to her in the Jones deposition constituted an invitation to the Jones lawyers to subpoena her. They argue that proof of that invitation can be found in the witness list signed by the Jones lawyers on January 22, which listed Ms. Currie and other potential witnesses.
When I spoke to you on January 19, I told you that Ms. Currie had never been placed on the witness list. I was wrong. Manager Hutchinson has quite properly taken me to task for it. But I fear that he became so caught up in this information that he has lost sight of its true significance, or rather a lack thereof.
In order to convince you that Betty Currie was going to be called by the Jones lawyer when the President spoke to her on January 18, the managers, somewhat like Diogenes, lit their lantern and sought out the most reliable witness they could find, a witness whose credibility was beyond question, who had no ulterior motive, no bias--Paula Jones' lawyer. They brought it to you in a form that they hoped would allow his motive and bias to go untested.
Remember how the managers told you that it is important to look a witness in the eye to test his demeanor. I doubt that you need to do that to understand what might color Mr. Holmes' view of the world. Let's look at what he had to say. You have in the exhibits before you an unredacted witness list attached to Mr. Holmes' affidavit. I have put up on the easels the redacted list as it was originally used by the managers a few weeks ago because I really see no purpose in unduly exposing the names of the people who are on that witness list. But let me direct you to these words just to highlight it: `Under Seal.'
You will remember that the President has been criticized for violating a gag order when he spoke to his own secretary about his deposition. What then do we say when the managers produce a document from a lawyer for one of the parties that is still under seal, not yet released by the court, and reveals the names of individuals who are no part of these proceedings? Surely the managers could have made their point just as well without such a revelation.
Mr. Holmes states that the Jones lawyers had two reasons for putting Ms. Currie's name on the witness list: One, because of President Clinton's deposition testimony; and, two, because they had `received what they considered to be reliable information that Ms. Currie was instrumental in facilitating Monica Lewinsky's meetings with Mr. Clinton and that Ms. Currie was central to the cover story Mr. Clinton and Ms. Lewinsky had developed to use in the event their affair was discovered.' They don't tell us where he got this reliable information. But of course we know.
Let's figure out whether in fact Betty Currie really made it on the list because of the President's testimony. If you look at the number of times she is mentioned in the deposition, it becomes conventional wisdom that the President inserted her name into his testimony so frequently and so gratuitously that he did in fact invite the Jones lawyers to call her and, thus, must have known that she was going to be a witness when he spoke to her on January 18. But if you look at the deposition, you will find that the first time her name is mentioned, the President is simply responding to a question about his earlier meetings with Ms. Lewinsky and stated that Betty was present.
The lawyers for the plaintiff then asked 13 questions, give
or take a few, about Ms. Currie. And we know there is no secret here. They got their information from Linda Tripp. And Linda Tripp surely told them about Ms. Lewinsky's relationship with Ms. Currie. It was only in response to a couple of their questions about whether letters had ever been delivered to Ms. Currie and whether she stated at some extraordinarily late hour that the President said, `You'll have to ask her.' He didn't invite. He did not suggest to them that they call Ms. Currie. They knew whatever they needed to know about Ms. Currie to put her on their witness list.
To judge further whether Ms. Currie made it on the list because of the President's invitation, or because they already knew about witnesses from Ms. Tripp, let me direct your attention--if you look at the exhibit in front of you rather than the redacted version here, the first listed on the witness list is No. 165. Her name does not come up at all in the deposition. But we know that she was in fact the subject of conversation surreptitiously recorded between Ms. Tripp and Ms. Lewinsky. And note that the name of Vernon Jordan is not on the list. They are the ones, the Jones lawyers are the ones, who first bring them up. And we know, of course, that they knew from Ms. Tripp that he was already involved in this scenario.
Thus, neither the January 22 witness list nor Mr. Holmes' affidavit supported the managers' theory. The President did not know that Ms. Currie would be a witness when he spoke to her after her deposition, and he could not, therefore, have tampered with the witness.
Well beyond their statement about how they got this information, Mr. Holmes volunteers that they didn't get it from the Washington Post, or perhaps not. But it is clear that in the days after the Post article, we know that some of the names on the list came from the press reports, we know that Jones lawyers began tracking the newly public activities of the independent counsel, which was issuing its own subpoenas in the hours and days following the lawyers' release. And for some insight into what they believe the independent counsel thought was going on, look at the pleading they filed with Judge Wright on Wednesday, January 28, to prevent the Jones lawyers from continuing to use their investigation as an aid--that is, the independent counsel's investigation--as an aid to civil discovery.
The pleading said, `As recently as this afternoon, plaintiff's counsel caused process to be served on Betty Currie who appeared before the grand jury in Washington yesterday. Such deliberate and calculated shadowing of the grand jury's investigation will necessarily pierce the veil of grand jury secrecy.'
The managers have criticized us for ignoring the second conversation between the President and Ms. Currie, suggesting that I suppose it takes on an even more sinister cast than the first.
But there is simply nothing of any substance to take from this second conversation that adds to the events of January 18. It is clear that the conversation occurred on Tuesday, January 20, before the Starr investigation became public. The managers disingenuously have suggested in their exhibit, the one they distributed on Saturday, that this conversation occurred after the Post story appeared. If you look at the exhibit that was used on Saturday, you will see: January 20, Post story is known. Of course, that's late at night. January 21, Post story was on the Internet. The President calls Betty for 20 minutes. And then sort of sneaking it in down here, January 20 or 21, President coaches Currie for the second time.
But the record shows this: Ms. Currie has said that the conversation occurred `whenever the President was next in the White House.' That is after the Sunday conversation. And that was Tuesday, the 20th, the day after the Martin Luther King holiday. Thus, the second conversation is of no greater legal significance than the first since the President knew no more about Ms. Currie's status as a witness on Tuesday than he did on Sunday.
In sum, the managers have tried to convince you that the President knew or must have known that Betty Currie would be a witness in the Jones case. If anything, we now know that the reason she was put on the January 22 list, along with many others, had more to do with Linda Tripp than anything else.
But putting this aside for the moment; that is, putting aside the question whether the President could have had any reason to believe that Ms. Currie would be a witness, look at whether Ms. Currie herself believed that she was being corruptly influenced on January 18. In response to continuing efforts by
the prosecutors to get her to admit that she felt some untoward pressure from the President, she testified--and you have seen this before as well:
. . . did you feel pressured when he told you those statements?
A. None whatsoever.
Q. What did you think, or what was going through your mind about what he was doing?
A. At the time I felt that he was--I want to use the word shocked or surprised that this was an issue, and he was just talking.
* * * * *
Q. That was your impression, that he wanted you to say--because he would end each of the statements with `Rights?,' with a question.
A. I do not remember that he wanted me to say `Right.' He would say, `Right?' and I could have said, `Wrong.'
Q. But he would end each of those questions with a `Right?' and you could either say whether it was true or not true.
Q. Did you feel any pressure to agree with your boss?
And so on a human level, a human level, we have the President, who has just seen his worst nightmare come true, and who knows that he is about to face a press tidal wave that will wash over him and his family and the country, and we have his secretary who knows of, indeed, has been a part of, his relationship with Monica Lewinsky but knows nothing about the long-since ended improper aspects of that relationship--we have a conversation that was the product of the emotions that were churning through the President's very soul on that day. What we do not have is an attempt to corruptly influence the testimony of the witness.
Only one pillar left. The managers ask the Senate to find that the President's conversations with Mr. Blumenthal and other aides was an effort to influence their testimony before the grand jury. Their theory, much as was true of some of their other theories, flounders on shoals that they don't account for. As they would have it, in the days immediately following the Lewinsky story, the President spoke with a few members of his senior staff, as they would allege, knowing that they would probably be grand jury witnesses and misled them about his relationship with Ms. Lewinsky, so that they would convey that misinformation to the grand jury when they were called.
Now, just so that you can see for yourself what the President testified to in the grand jury on the subject, I want to play about 3 or 4 minutes of that testimony for you.
(Text of videotape presentation:)
Q. If they testified that you denied sexual relations or relationship with Monica Lewinsky, or if they told us that you denied that, do you have any reason to doubt them, in the days after the story broke; do you have any reason to doubt them?
PRESIDENT CLINTON. No. The--let me say this. It's no secret to anybody that I hoped that this relationship would never become public. It's a matter of fact that it had been many, many months since there had been anything improper about it, in terms of improper contact. I--
Q. Did you deny it to them or not, Mr. President?
PRESIDENT CLINTON. Let me finish. So, what--I did not want to misled my friends, but I wanted find language where I could say that. I also, frankly, did not want to turn any of them into witnesses, because I--and, sure enough, they all became witnesses.
Q. Well, you knew they might be----
PRESIDENT CLINTON. And so----
Q: witnesses, didn't you?
PRESIDENT CLINTON. And so I said to them things that were true about this relationship. That I used--in the language I used, I said, there's nothing going on between us. That was true. I said, I have not had sex with her as I defined it. That was true. And did I hope that I would never have to be here on this day giving this testimony? Of course, But I also didn't want to do anything to complicate this matter further. So, I said things that were true. They may have been misleading, and if they were I have to take responsibility for it and I'm sorry.
Q. It may have been misleading, sir, and you knew though, after January 21st when the Post article broke and said that Judge Starr was looking into this, you knew that they might be witnesses. You knew that they might be called into a grand jury, didn't you?
PRESIDENT CLINTON. That's right. I think I was quite careful what I said after that. I may have said something to all these people to that effect, but I'll also--whenever anybody asked me any details, I said, look, I don't want you to be a witness or I turn you into a witness or give you information that could get you in trouble. I just wouldn't talk. I, by and large, didn't talk to people about this.
Q. If all of these people--let's leave out Mrs. Currie for a minute. Vernon Jordan, Sid Blumenthal, John Podesta, Harold Ickes, Erskine Bowles, Harry Thomasson, after the story broke, after Judge Starr's involvement was known on January 21st, have said that you denied a sexual relationship with them. Are you denying that?
PRESIDENT CLINTON. No.
Q. And you've told us that you----
PRESIDENT CLINTON. I'm just telling you what I meant by it. I told you what I meant by it when they started this deposition.
Q. You've told us now that you were being careful, but that it might have been misleading. Is that correct?
PRESIDENT CLINTON. It might have been. Since we have seen this four-year, $40-million-investigation come own to parsing the definition of sex, I think it might have been. I don't think at the time that I thought that's what this was going to be about. In fact, if you remember the headlines at the time, even you mentioned the Post story. All the headlines were--and all the talking, people who talked about this, including a lot who have been quite sympathetic to your operation, said, well, this is not really a story about sex, or this is a story about subornation of perjury and these talking points, and all this other stuff. So, what I was trying to do was to give them something they could--that would be true, even if misleading in the context of this deposition, and keep them out of trouble, and let's deal--and deal with what I thought was the almost ludicrous suggestion that I had urged someone to lie or tried to suborn perjury, in other words.
Now, it is clear from that excerpt, I think, that in the hours and days immediately following the release of the Post story, the President was struggling with two competing concerns: How to give some explanation to the men and women he worked with every day, and worked with most closely, without putting them in a position of being grand jury witnesses. But he was not in any sense seeking to tamper with them or to obstruct the grand jury's investigation.
Putting aside for the moment our strenuous disagreement both with the factual underpinning of and the legal conclusions that flow from the managers' analysis of these events, I find it difficult to figure out how it is that they believe the President intended that his statement to Mr. Blumenthal or his statement to Mr. Podesta would involve their conveying false information to the grand jury, or that he sought in some fashion to send that message to the grand jury when, at the very moment that those aides were first subpoenaed, he asserted executive privilege to prevent them from testifying before the grand jury. For someone who wanted Mr. Blumenthal to serve, as the managers would have it, as his messenger of lies, that is strange behavior indeed.
Now, there is an issue here that I don't really want to get into at length, and I, not having heard the last 2 hours of the managers' presentation, don't know whether they are going to get into, and that is Manager Graham's favorite issue, the question of whether there was some scheme to smear Monica Lewinsky--early, middle, or late. Other than to say that no such plan ever existed, I just want to ask the managers this. Although I must admit that for the first time in my life I have heard Marlene Dietrich's name used as a pejorative--what was Manager Bryant saying about Ms. Lewinsky? That she was lying? That she misled the managers? That because her testimony helped the President, they were now going to attack her character and her integrity? I don't know how many of you have seen `Witness For The Prosecution,' either before or after Mr. Bryant used that example, but ask yourselves: What was he saying? What was he doing?
Ladies and gentlemen of the Senate, I don't know whether there is a market for used pillars, but they are all lying in the dust.
It is difficult for me as a lawyer, as an advocate for my client, to speak to this body about lofty constitutional principles without seeming merely to engage in empty rhetoric. But I would like to think, I guess, that if there were ever a forum in which I could venture into that realm, be excused for doing so, could be heard without the intervening filter of skepticism that I fear too often lies between lawyer and listener, this is the time and this is the moment. Only once before in our Nation's history has any lawyer had the opportunity to make a closing argument on behalf of the President of the United States and only once before has the Senate ever had to sit in judgment on the head of the executive branch.
We all must cast an eye to the past, looking over our shoulders to be sure that we have learned the right lessons from those who have sat in this Chamber before us. But we also must look to the future, to be sure that we leave the right lessons to those who come after us. We hope that no one will ever have need of them, but if they should, we owe them not only the proper judgment for today but the proper judgment for all time.
Now, you have heard the managers tell you very early on in these meetings that we have advanced a, quote, `so what' defense; that we are saying that the President's conduct is really nothing to be concerned about; that we should all simply go home and ignore what he has done. And that, of course, to choose a word that would have been familiar to the framers themselves, is balderdash.
If you want to see `so what' in action, look elsewhere. `So what' if the framers reserved impeachment and removal for only those offenses that threaten the state? `So what' if the House Judiciary Committee didn't quite do their constitutional job, if they took the independent counsel's referral and added a few frills and then washed their hands of it? `So what' if the House approved articles that wouldn't pass muster in any court in the land? `So what' if the managers have been creating their own theories of impeachment as they go long? And `so what,' and `so what,' and `so what?'
By contrast, what we offer is not `so what,' but this: Ask what the framers handed down to us as the standard for removing a President. Ask what impeachment and removal would mean to our system of government in years to come. Ask what you always ask in this Chamber: What is best for the country? No, the President wouldn't allow any of us to say `so what,' to so much as suggest that what he has done can simply be forgotten. He has asked for forgiveness from his family and from the American people, and he has asked for the opportunity to earn back their trust.
In his opening remarks, Manager Hyde questioned whether this President can represent the interests of our country in the world. Go to Ireland and ask that question. Go to Israel and Gaza and ask that question. If you doubt whether he should, here at home, continue in office, ask the parent whose child walks safer streets or the men and women who go off to work in the morning to good jobs.
We are together, I think, weavers of a constitutional fabric in which all of us now are clothed and generations will be clothed for millennia to come. We cannot leave even the smallest flaw in that fabric, for if we do, one day someone will come along and pull a thread and the flaw will grow and it will eat away at the fabric around it and soon the entire cloth will begin to unravel. We must be as close to perfect in what we do here today as women and men are capable of being. If there is doubt about our course, surely we must take special care, as we hold the fabric of democracy in our hands, to leave it as we found it, tightly woven and strong.
Now, before today I wrote down the following: `The rules say that the managers will have the last word.' Well, the rules today say the managers will have the last paragraphs. But that truly isn't so, because even when they are finished, theirs will not be the last voices you hear. Yes, one or more of them will now rise and come to the podium and tell you that they have the right of it and we the wrong, that our sense of what the Constitution demands is not theirs and should not be yours. That is their privilege.
But as each of them does come before you for the final time, and as you listen to them, I know that you will hear not their eloquence, as grand as it may be; not the pointed jibes of Manager Hutchinson nor the stentorian tones of Manager Rogan nor the homespun homilies of Manager Graham nor the grave exhortations of Manager Hyde, but voices of greater eloquence than any of us can muster, the voices of Madison and Hamilton and the others who met in Philadelphia 212 years ago, and the voices of the generations since, and the voices of the American people now, and the voices of generations to come. These, not the voices of mere advocates, must be your guide.
It has been an honor for all of us to appear before you in these last weeks on behalf of the President. And now our last words to you, which are the words I began with: William Jefferson Clinton is not guilty of the charges that have been brought against him. He did not commit perjury. He did not commit obstruction of justice. He must not be removed from office.
Thank you very much.
Mr. LOTT addressed the Chair.
The CHIEF JUSTICE. The Chair recognizes the majority leader.
Mr. LOTT. Mr. President, I ask unanimous consent we take a 15-minute recess.
There being no objection, at 4:19 p.m. the Senate recessed until 4:41 p.m.; whereupon, the Senate reassembled when called to order by the Chief Justice.
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