THE IMPEACHMENT TRIAL
Statement of Sen. Fitzgerald (R-Ill.)
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. FITZGERALD. As a freshman Senator, I am saddened that the first issue I confront in my service to the people of Illinois is the impeachment of a President of the United States. It is difficult to imagine a task less welcome and more awesome to me. As a newly elected Senator, I have barely begun to know the Senate, my colleagues, our rules and procedures, our precedents, or, finally, even our duty. I have watched you all so carefully--looking for examples, and guidance--and wondering at the gravity of these days.
On a personal note, before I begin, I want to thank those on both sides of the aisle--Senators who, in difficult days, have been so gracious to a newcomer. Thank you for taking the time, and making the effort, to welcome the newest among you. Through these hours, I have developed a deep respect for my new colleagues, for the Senate as an institution, and for the Constitution that has anchored our Republic for over two hundred years. I thank God for the wisdom of the Framers, and their ability to construct enduring institutions that allow us to confront, peacefully, the question of whether our President should be removed from office. We now come to the conclusion of this Constitutional process, itself an extraordinary example of the rule of law that makes our nation the envy of the world.
The people of Illinois have entrusted me with the duty to uphold the Constitution, a duty I share with all of you. In addition, we share the responsibility of abiding by the separate oath which we took in this proceeding to `do impartial justice according to the Constitution and the laws.'
As a trier of fact and law, I find that the President has committed perjury and obstruction of justice as charged in the two Articles of Impeachment, and that those offenses constitute `high crimes and misdemeanors.' I will vote for conviction on both counts.
I reach this decision after detailed examination of the evidence presented, the arguments of counsel, Senate precedents, and the impeachment clause of the Constitution.
THE STANDARD OF PROOF
The initial decision I made was to determine the appropriate burden of proof. Failure to impose a burden of proof on the House Managers would severely weaken the Presidency, a result the Founders feared and sought to avoid. The precedents of the Senate make it clear that there is no single standard that each of us must apply.
The President has argued that we should apply the criminal standard of `proof beyond a reasonable doubt.' In recent impeachment trials of federal judges, a number of Senators also argued that conviction was only appropriate if the proof met this standard. Some commentators have suggested that Senators could use the preponderance-of-the-evidence standard typically applied in civil cases, or some standard in between.
I have concluded that, to support a conviction, allegations must be proven by `clear and convincing' evidence. The criminal standard is not warranted, because the relief in this instance, i.e., the removal of the President, is not punitive, but remedial. In contrast, the civil standard would place the Presidency at too great a risk. The `clear and convincing' evidence standard strikes a prudent balance, providing sufficient protection for the authority of the Presidency and the expression of popular will represented by the President's election, while avoiding the risk of a President remaining in office despite clear and convincing evidence of impeachable offenses.
ARTICLE I: PERJURY BEFORE A FEDERAL GRAND JURY
The House has presented clear and convincing evidence that the President committed perjury when he testified before a Federal grand jury on August 17, 1998.
On January 17, 1998, President Clinton testified in a civil deposition in the Jones v. Clinton lawsuit, after the Supreme Court had ruled unanimously that a civil suit against a sitting President could proceed. After the deposition, the Independent Counsel secured the approval of the Attorney General, and the three-judge Federal court which superintends the Independent Counsel law, to expand his jurisdiction to inquire into whether the President testified truthfully in his deposition. On August 17, 1998, the President, as the target of the investigation testified by video to a Federal grand jury in Washington, D.C.
The President's deposition testimony in the Jones case was false in numerous respects, and his grand jury statements that he had sought to be completely truthful in his deposition testimony cannot be accurate. [Grand Jury Testimony of President Clinton, 8/17/98, H. Doc. 105-311, pp. 458-59] The falsehoods are of such a quantity and kind that a reasonable reading of the evidence suggests the President had to know at the time he gave his deposition in the Jones case that he was not being truthful. His testimony to the grand jury that he intended to be truthful at his deposition is false.
Example: the President had testified in his deposition that he believed that, in the preceding two weeks, no one had reported to him any conversations with Ms. Lewinsky about the Jones suit. [Jones Deposition of President Clinton, 1/17/98, S. Doc. 106-3, Vol. 22, p. 22] In testifying to the grand jury that he was truthful in his deposition, the President reaffirmed this portion of his deposition testimony. [Grand Jury Testimony of President Clinton, 8/17/98, H. Doc. 105-311, p. 458] We know, however, that Vernon Jordan had, within the two weeks prior to the President's deposition, told the President that Ms. Lewinsky had signed her affidavit. [Deposition Testimony of Vernon Jordan, 2/2/99, 145 Congressional Record S1241 (daily ed. Feb. 4, 1999)] The President's grand jury testimony was material to the issue of whether the
President had sought to influence the content of Ms. Lewinsky's affidavit and thereby obstruct justice.
The President again committed perjury before the Federal grand jury when he tried to explain why he made a series of false statements to his secretary, Betty Currie, on two separate occasions. At his deposition, the President was questioned about Ms. Lewinsky. The President attempted to employ Ms. Currie as an alibi witness. In the wake of the deposition, the President asked Ms. Currie to come to the office on a Sunday. Once there, the President asked Ms. Currie a series of leading questions concerning her recollection of events regarding Ms. Lewinsky. [Grand Jury Testimony of Betty Currie, 1/7/98, H. Doc. 105-316, pp. 559-60] A few days later, the President again queried Ms. Currie with leading questions. [Id. at p. 561]
When questioned during his grand jury testimony about the series of leading questions he had directed to Ms. Currie, the President responded: `I was trying to figure out what the facts were. I was trying to remember.' [Grand Jury Testimony of President Clinton, 8/17/98, H. Doc. 105-311, p. 591] He also claimed that he was only trying to `ascertain what the facts were, trying to ascertain what Betty's perception was.' [Id. at p. 593]
While Ms. Currie would not say she felt pressured by the President, she did testify that she believed that the President was seeking her agreement with those statements. [Grand Jury Testimony of Betty Currie, 1/7/98, H. Doc. 105-316, p. 559] It is unreasonable to conclude that the President was trying to refresh his recollection by making patently false statements to Ms. Currie, in the days immediately following his deposition for the Jones case. Ms. Curry could not possibly have known the answers to some of the President's `questions,' and the President clearly already knew the answers to others.
We took an oath to do impartial justice. We did not take an oath to check our common sense at the door of this Chamber. The President's proffered explanation of the questions he directed to Ms. Currie defies common sense. I believe he sought, instead, to influence Ms. Currie's anticipated testimony by imparting to Ms. Currie his preferred version of the events. His false explanation was material to the grand jury's inquiry and constitutes perjury.
The President also committed perjury when he testified and then reiterated before the Federal grand jury, in answer to a question about false accounts he gave to his aides regarding Ms. Lewinsky, that `I said to them things that were true.' [Grand Jury Testimony of President Clinton, 8/17/98, p. 106, H. Doc. 105-311, pp. 557-58]
In fact, the President said to his aides things that were false. Presidential aide Sidney Blumenthal testified in his Senate deposition that the President had told him that Ms. Lewinsky had threatened him, and that she was called `the stalker.' [Deposition Testimony of Sidney Blumenthal, 2/3/99, 145 Congressional Record S1301 (daily ed. Feb. 6, 1999)] Mr. Blumenthal testified he now knows that the President lied to him. [Id. at S1302] The President knew what he said to Mr. Blumenthal was false because the President knew the facts. The one fact the President did not know was that Ms. Lewinsky would produce DNA evidence that would provide incontrovertible physical evidence to contradict him.
The President's statements before a Federal grand jury regarding accounts he gave to his aides of Ms. Lewinsky were false, and the falsehoods were material to the grand jury's investigation into whether the President had testified falsely in the Jones deposition.
ARTICLE II: OBSTRUCTION OF JUSTICE
The House has presented clear and convincing evidence that President Clinton obstructed justice by engaging in a course of conduct designed to impede, cover up, and conceal evidence and testimony related to the Federal civil rights action brought against him.
The evidence shows that the President improperly influenced Ms. Lewinsky to file a false affidavit in the Jones suit. I believe that the only version of the evidence that makes sense is that offered by the House. Thus, I conclude that the President influenced the entire process that led to the filing of the false affidavit, from its inception to its conclusion. He did so through direct conversations with Ms. Lewinsky, and through his close friend, Mr. Jordan, who was able to monitor the process through an attorney that he, Mr. Jordan, procured for Ms. Lewinsky.
Ms. Lewinsky admitted that on December 17, 1997, the President informed her by telephone at 2 a.m. that she was on the witness list in the Jones case, and suggested that she might avoid testifying by filing an affidavit. [Deposition Testimony of Monica Lewinsky, 2/1/99, 145 Congressional Record S1218 (daily ed. Feb. 4, 1999)] And the President told Ms. Lewinsky to call Betty Currie if she was subpoenaed. [Id.]
The President's assertion that he thought Ms. Lewinsky could have avoided testifying by filing a truthful affidavit is unbelievable. I believe that the President knew that a truthful affidavit by Ms. Lewinsky would have ensured that she would have been called as a deposition witness, and that her subsequent truthful testimony would have been legally damaging to the President. In fact, in the very conversation in which the President suggested that Ms. Lewinsky file an affidavit, they discussed the cover stories they could use to avoid public knowledge of the truth. [Id. at S1219]
Vernon Jordan testified in his Senate deposition that he `was acting on behalf of the President to get Ms. Lewinsky a job.' [Deposition Testimony of Vernon Jordan, 2/2/99, 145 Congressional Record S1293 (daily ed. Feb. 6, 1999)] Mr. Jordan confirmed in the deposition that `The President was obviously interested in her job search.' [Id. at S1314] It was Mr. Jordan --one of the President's closest friends--whom Ms. Lewinsky called when she was subpoenaed. Mr. Jordan met with Ms. Lewinsky and arranged a lawyer for her. [Deposition Testimony of Vernon Jordan, 2/2/99, 145 Congressional Record S1234-36 (daily ed. Feb. 4, 1999)] Mr. Jordan delivered Ms. Lewinsky to her lawyer's office. [Id. at S1238] Mr. Jordan monitored the drafting and content of Ms. Lewinsky's affidavit. [Grand Jury Testimony of Monica Lewinsky, 8/6/98, H. Doc. 105-311, p. 920] Ms. Lewinsky herself delivered a copy of her first signed affidavit to Mr. Jordan's office. Ms. Lewinsky testified that she and Mr. Jordan conferred about the contents of the affidavit and agreed to delete one portion inserted by her lawyer and make other changes. [Id. at pp. 921-22, 1229-30 (Exhibit 3)]
Mr. Jordan kept the President informed throughout the affidavit-drafting process. He personally notified the President that Ms. Lewinsky had signed the false affidavit. [Deposition Testimony of Vernon Jordan, 2/2/99, 145 Congressional Record S1241 (daily ed. Feb. 4, 1999)]
The evidence also clearly and convincingly demonstrates that after Ms. Lewinsky's name appeared on the witness list in the Jones case, the President, through Mr. Jordan, provided intensified assistance to Ms. Lewinsky in finding a job in order to encourage her to file the false affidavit. Mr. Jordan accepted responsibility for the job search and has admitted that he and Ms. Lewinsky discussed both the job search and her affidavit in most conversations. [Id.] Mr. Jordan attempted to separate each aspect of his work with Ms. Lewinsky. He testified that `[t]he affidavit was over here. The job was over here.' [Id.] Whatever Mr. Jordan's belief, it cannot have been lost on Ms. Lewinsky that she had a very prominent and powerful lawyer soliciting job offers for her at the same time she was being asked to help that lawyer's friend, the President, who had first suggested that she file an affidavit.
On the day after Ms. Lewinsky signed the false affidavit, Mr. Jordan personally called the CEO of a Fortune 500 company to secure a job for her, a job she was offered on the subsequent day. [Id. at S1241-42] On the day that Ms. Lewinsky received the job offer, Mr. Jordan called the President, through Ms. Currie, and left the message `mission accomplished.' [Grand Jury Testimony of Vernon Jordan, 5/28/98, S. Doc. 106-3, p. 1898] The President's own testimony in his deposition for the Jones case followed exactly the false claims of Ms. Lewinsky's false affidavit. While the President's lawyers encouraged the perception that this convergence was a coincidence, I do not buy it.
The evidence is clear and convincing that the President continued to involve Ms. Currie in his lies and obfuscation. Ms. Lewinsky testified that on December 28, 1997, she met with President Clinton and informed him that she had been subpoenaed, and that the subpoena required her to produce all gifts she had received from the President. She testified that the subpoena specifically requested a hat pin, which alarmed her. [Grand Jury Testimony of Monica Lewinsky, 8/6/98, H. Doc. 105-311, p. 852] The President responded that the subpoena `concerned' him. [Id. at p. 872] When Ms. Lewinsky asked him what she should do in response to the subpoena for the gifts, the President answered, `I don't know,' or `Let me think about that.' [Id.] He never gave the only appropriate answer, which was to comply.
Ms. Lewinsky testified that later that same day, Ms. Currie telephoned her, saying, `I understand that you have something for me,' or `the President said that you have something to give me.' [Id. at pp. 874-75] Ms. Currie had an unclear memory about this incident, but said that `the best [she] remembered,' Ms. Lewinsky called her. [Grand Jury Testimony of Betty Currie, 5/6/98, H. Doc. 105-316, p. 581]
Ms. Lewinsky's testimony that Ms. Currie instigated the retrieval of the gifts is credible and convincing. In contrast, Ms. Currie's testimony that Ms. Lewinsky instigated the retrieval is not persuasive. I do not believe that the President's personal secretary would have acted upon a request from Ms. Lewinsky to retrieve the gifts without asking the reason for such an exchange or informing the President of the request. It is too bizarre that she would simply pick up a box of gifts and deposit them under her bed. It defies a common-sense reading of the evidence and the evidentiary narrative.
The evidence is also clear and convincing that the President obstructed justice by coaching Ms. Currie, a potential witness in the Jones case, to provide false testimony in the Jones case, and by arranging for the concealment of gifts subpoenaed by the Jones lawyers.
On Saturday, January 17, 1998, a few hours after completing his own deposition in the Jones case, the President called Ms. Currie and asked her to come to the White House on Sunday, January 18, 1998. [Id. at p. 558] The President's assertions and leading questions to Ms. Currie on January 18 and January 20 or 21, 1998, were indisputably false. The President knew that Ms. Currie was a potential witness when he made these false statements to her. In his deposition in the Jones case, the President brought Ms. Currie's name up, without prompting, in at least sixteen different answers to questions, clearly anticipating and inviting the Jones attorneys to subpoena her to back up his account.
I am unable to conclude that the President was attempting to `refresh his recollections' by calling Ms. Currie and requesting her to come to the White House on a weekend and making false statements to her. Simple common sense tells us that he was letting her know what he had said in his deposition and that he was hoping that she would later corroborate his false account.
HIGH CRIMES AND MISDEMEANORS
Although I have determined that the House has proven the acts alleged in both Articles of Impeachment by clear and convincing evidence, the inquiry does not end here. I must also consider whether the acts constitute `high crimes and misdemeanors,' as required by the Constitution. This has been a singularly difficult question for this body, but I conclude that the President's offenses rise to the level of `high crimes and misdemeanors' within the meaning of the Constitution.
The Framers of our Constitution provide that the Senate can only convict a President for `treason, bribery, or other high crimes and misdemeanors.' The Framers relied, in part, on William Blackstone for their understanding of the common law they inherited from England. In the fourth book of his Commentaries on the Laws of England, Blackstone addressed the criminal law. He distinguished between crimes that `more directly infringe the rights of the public or commonwealth, taken in its collective capacity,' and `those which in a more peculiar manner injure individuals or private subjects.' [IV William Blackstone, Commentaries on the Laws of England 74, 176 (special ed., 1983)]
Within the latter category, Blackstone included crimes such as murder, burglary, and arson. The former category of `public' crimes included offenses that were counted as `offenses against the public justice.' Blackstone included within this category the crimes of perjury and bribery side-by-side. [Id. at 127, 136-39] Blackstone's formulation equating perjury and bribery as `public' offenses suggests that, within the definition of the Constitution, perjury may also be a high crime and misdemeanor.
Because perjury, at its core, involves an effort to obstruct justice, other acts that obstruct justice may very well be considered `public' offenses as the Framers would have understood them. Indeed, Blackstone writes that `impediments of justice' are `high misprisions' and `contempts' of the King's courts. [Id. at 126-28]
The intent of the Framers and subsequent interpretation of this clause show that impeachment and conviction of the President is a Constitutional remedy for serious offenses against our system of government. Alexander Hamilton, in Federalist No. 65, explained that impeachable offenses, `relate chiefly to injuries done immediately to the society itself,' and arise `from the abuse or violation of some public trust.'
Certainly, perjury before a grand jury and obstruction of justice are offenses against the American system of government, as they strike at the rule of law itself. These acts subvert the truth-seeking process that is the very essence and foundation of the judicial branch. These acts, when committed by a President, are a repudiation of our judicial system by the Chief Executive of the country, undermining the checks and balances and disturbing the delicate balance between the branches of the Federal government that is at the heart of our Constitutional form of government.
The President's counsel attempted to diminish the severity of the crimes of perjury before a Federal grand jury and obstruction of justice. But the Founding Fathers understood that these crimes are offenses against the public trust. Perjury was among the few offenses outlawed by statute by the First Congress, in 1790. And today, perjury is punishable by up to five years imprisonment in a federal penitentiary. [18 U.S.C. 1621-23] The Supreme Court, in a 1976 plurality opinion, wrote, `[p]erjured testimony is an obvious and flagrant affront to the basic concepts of judicial proceedings.' [United States v. Mandujano, 425 U.S. 564, 576]
We do not need to decide whether the President's perjury before the grand jury would have risen to the level of a `high crime and misdemeanor' had the target of the grand jury been someone other than the President, nor do we need to decide whether a President's perjury in a civil trial in and of itself rises to the level of an impeachable offense. I have reservations about considering such acts `high crimes' or `high misdemeanors.' But where, as here, the President committed perjury in a Federal grand jury investigation of which he was the target, I am convinced that his acts fall into the category that warrants removal from office.
Further support for this conclusion comes from Senate precedent in the impeachment, conviction, and removal from office of two Federal judges in the 1980s--Walter Nixon and Alcee Hastings. Judge Nixon was impeached and convicted for lying to a grand jury that was investigating him, and Judge Hastings was impeached and convicted for making numerous false statements under oath in testimony in his own criminal trial.
Obstruction of justice is particularly serious. Two federal criminal statutes, Sections 1503 and 1512 of Title 18 of the U.S. Code, specifically prohibit corruptly influencing or obstructing the due administration of justice or the testimony of a person in an official proceeding.
Federal appellate courts have applied these statutes to individuals who provide misleading stories to a potential witness without explicitly asking the witness to lie. For example, in 1988, a Federal appellate court upheld the conviction of an individual for attempting to influence a witness even though that witness was not scheduled to testify before the grand jury nor ever appeared before a grand jury. The court held that a conviction under Section 1503 is appropriate so long as there is a possibility that the target of the defendant's activities will be called upon to testify in an official proceeding. [United States v. Shannon 836 F. 2d 1125, 1127 (8th Cir. 1988)]
The Supreme Court has called the President's responsibility to enforce the laws, `the Chief Executive's most important Constitutional duty.' [Lujan v. Defenders of Wildlife, 504 U.S. 555, 577 (1992)] A President who obstructs the very laws he is called upon to enforce has committed high crimes and misdemeanors as set out in the impeachment clause of the United States Constitution.
Some argue that the Senate, sitting as a court of impeachment, should allow public opinion polls to influence its judgment, claiming that these proceedings are not judicial, but political in nature. I believe the Constitution, the intent of the Framers, and the Senate's own impeachment procedures show that when the Senate convenes to fulfill its obligation to `try all impeachments,' as Article I of the Constitution prescribes, it takes on a judicial role quite distinct from its normal legislative proceedings. The Constitution also states, in Article III, that `the trial of all Crimes, except in Cases of Impeachment, shall be by Jury. . .,' implying that an impeachment trial is a trial similar to all others. When a President stands accused, the Constitution requires the Chief Justice of the Supreme Court to preside, explicitly introducing the judicial branch into the trial by the Senate. And Alexander Hamilton, in Federalist No. 65, discusses `the judicial character of the Senate' when it meets as `a court for the trial of impeachments.'
We are required to take a special oath for impeachments, above and beyond our oath of office, to `do impartial justice according to the Constitution and the laws.' What can this oath mean if it does not place on us a special, judicial burden, unique among our Senatorial duties, to apply rules of impartiality and independence in pursuit of a verdict that is just? If an innocent President can be convicted, or a guilty President can be acquitted, even in part because of the polls that purport to reflect the will of the moment, then we violate our Constitutional duty and assault the very foundations of our system of justice.
Carved into the West Pediment of the U.S. Supreme Court building in Washington are four simple words: `Equal Justice Under Law.' Standing watch in front of that building is a statue of Justice, blindfolded because justice must be blind. Even the President must respect the laws of the land. To the extent that we allow the popularity or unpopularity of a particular President to inform our votes for either conviction or acquittal, we undermine the principle of `Equal Justice Under Law,' and we chip away at the blindfold that covers the eyes of Justice.
As a trier of fact and law, I find that the President has committed perjury and obstructed justice as charged in the two Articles of Impeachment, and that those offenses constitute `high crimes and misdemeanors.' I will vote to convict on both counts.
For me, this is not an easy verdict to reach, and comes after great deliberation. I am 38 years old. Today is my 38th day as a Senator. Those 38 days feel like they have lasted my entire life. As a freshman, I have had to confront, very suddenly, difficult truths that at the very least have challenged the idealism that propelled me here in the first place. But through the din of argument and counter-argument, it has occurred to me that the President's acts, however serious, are not nearly as consequential as our response. I have listened to those who assert that perjury before a grand jury and obstruction of justice are not removable offenses--or that if they are, removal of a President, in this time, is too disruptive to contemplate.
And truly, the call to do nothing is seductive. I hear it, too. We are so comfortable--so prosperous--that it is difficult to be bothered with unpleasantness. But as the youngest member of this body, I believe we must hold firm to the oldest truths. The material blessings of peace and prosperity are but the fruit of liberty that does not come without a price --a liberty sustained, only and finally, by the rule of law, and those willing to defend it. Our commitment to impartial justice, now and forever, is an abstraction more profound and precious than a soaring Dow and a plummeting deficit. I vote as I do because I will not stand for the proposition that a President can, with premeditation and deliberation, obstruct justice and commit perjury before a grand jury. It cannot be.
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