THE IMPEACHMENT TRIAL
Statement of Sen. Gorton (R-Wash.)
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. GORTON. Mr. President, the statement that I am placing in the record is the statement I would have given had I been permitted to speak longer and in open session. During our closed deliberations, I gave a similar, but abridged statement.
For almost two years, the President of the United States was engaged in what he has come to describe as an `inappropriate intimate' relationship with a young woman who came to his attention as a White House intern. He then lied about their relationship, publicly, privately, formally, informally, to the press, to the country, and under oath, for a period of about a year.
This course of conduct requires us to face four distinct questions.
First, we must determine if the material facts alleged in the Articles of Impeachment have been established to our satisfaction.
Second, do the established facts constitute either obstruction of justice or perjury, or both?
Third, are obstruction of justice and perjury high Crimes and Misdemeanors under the Constitution?
And, fourth, even if the acts of the president are high Crimes and Misdemeanors, are they of sufficient gravity to warrant his conviction if it allows of no alternative other than his removal from office?
The first article of impeachment alleges that the President committed perjury while testifying before the Starr grand jury. Although the House Managers assert that his testimony is replete with false statements, it is clear, at the least, that his representations about the nature and details of his relationship with Miss Lewinsky are literally beyond belief.
From November 1995, until March 1997, the President engaged in repeated sexual activities with Monica Lewinsky, who was first a volunteer at and then an employee of the White House and eventually the Pentagon. Though he denies directly few of her descriptions of those activities, he testified under oath that he did not have `sexual relations' with her. His accommodation of this paradox is based on the incredible claim that he did not touch Miss Lewinsky with any intent to arouse or gratify anyone sexually, even though she performed oral sex on him.
It seems to me strange that any rational person would conclude that the President's description of his relationship with Miss Lewinsky did not constitute perjury.
In addition, while we are not required to reach our decision on these charges beyond a reasonable doubt, I have no reasonable doubt that the President committed perjury on a second such charge when he told the grand jury that the purpose of the five statements he made to Mrs. Currie after his Jones deposition was to refresh his own memory.
The President knew that each statement was a lie. His goal was to get Mrs. Currie to concur in those lies.
The other allegations of perjury are either unproven--particularly those requiring a strict incorporation of the president's Jones deposition testimony into his grand jury testimony--or are more properly considered solely--with those already discussed--as elements of the obstruction of justice charges in Article II.
To determine that the president perjured himself at least twice, however, is not to decide the ultimate question of guilt on Article I. That I will discuss later.
All the material allegations of Article II seem to me to be well founded. Four of them, however, those regarding the president's encouraging Miss Lewinsky to file a false affidavit and then to give false testimony, those regarding the president's failure to correct his attorney's false statements to the Jones court, and those bearing upon the disposal of his gifts to her are not, in my mind, proven beyond a reasonable doubt. Again, I do not believe this standard to be required in impeachment trials, but because I believe that the other three factual allegations of Article II do meet that standard, I adopt it for the purposes of this discussion.
(1) From the time she was transferred to the Pentagon in April, 1996, Miss Lewinsky had pestered the president about returning to work at the White House, and, other than some vague referrals, until October 1, 1997, the President had done nothing to make this happen and little to help her find another job.
On the first of October, 1997, the president was served with interrogatories in the Jones case asking about his sexual relationships with women other than his wife, and during the rest of October the President and his agents stepped up their efforts to find Miss Lewinsky a job. Three weeks later, on October 21, the United States Ambassador to the United Nations, Bill Richardson, called Miss Lewinsky personally to schedule an interview in her apartment complex, though apparently he interviewed no one else. Shortly after this unusual interview, the Ambassador created a new position in New York and offered it to Miss Lewinsky.
What is perhaps most striking about the U.N. job is not even how promptly it materialized, nor that the United States Ambassador was so personally involved in hiring a young woman with precious little job experience, but that Ambassador Richardson held the specially crafted sinecure open for two months while the former intern kept him waiting on her decision.
When Miss Lewinsky decided that she preferred the private sector, the president enlisted the help one of his closest personal friends, one of the most influential men in the United States, Vernon Jordan. Miss Lewinsky met with Mr. Jordan in early November. Mr. Jordan, who was acting at the President's behest, apparently did not fully appreciate how important it was for him to cater to Miss Lewinsky, and took no action for a month.
The President and Mr. Jordan realized, however, on December 5, 1997, the importance of satisfying Miss Lewinsky 's fancy when her name appeared on the Jones witness list. Before that date, the President needed Miss Lewinsky only to commit a lie of omission--simply to refrain from making their relationship public. Her appearance on the witness list now meant that she would have to lie under oath.
Fully appreciative of the higher stakes, the President redoubled his efforts and those of his agents to find Miss Lewinsky a job and keep her in his camp. In the weeks after Miss Lewinsky's name appeared on the witness list, Mr. Jordan kept the President apprised of his efforts to find work for her in the private sector. He called his contacts at American Express, Young & Rubicam, and MacAndrews & Forbes (Revlon's parent corporation). When Miss Lewinsky was subpoenaed on December 19, 1997, to be deposed in the Jones case, Mr. Jordan oversaw the preparation of the affidavit that the President had suggested she file in lieu of testifying. On January 7, 1997, Miss Lewinsky signed the affidavit, which she later admitted was false, denying that she had a `sexual relationship' with the President. On January 8, she interviewed with MacAndrew & Forbes. When she told Mr. Jordan that she had done poorly, he called the Chairman of the Board, Ronald Perelman, to recommend Miss Lewinsky, whom he commended as `this bright young girl, who I think is terrific.' As a result of this conversation, Miss Lewinsky was called back for another interview with MacAndrews the following day and given an informal offer. On January 9, she reported this to Mr.
Jordan, who called Mrs. Currie with the message, `mission accomplished' and then called the President himself to share his success.
The President's lawyers arranged for Miss Lewinsky's affidavit to be filed on January 14, 1998. After this date, although Miss Lewinsky did not end up with a job in the private sector, neither the President nor Mr. Jordan, who so resolutely pursued their earlier mission, lifted a finger to help the `bright * * * terrific' young woman. Why? Because shortly thereafter the fiction of the president's platonic relationship with Lewinsky had exploded. Monica Lewinsky was the same Monica Lewinsky, but she now could no longer protect the President.
It is impossible to reconcile the President's course of conduct with any purpose other than to preclude Miss Lewinsky's truthful testimony in the Jones case, or, indeed, to prevent her testifying at all. The case for obstruction of justice is clear. Obstruction was the President's only motive.
(2) Next we have the Currie conversation--a set of statements by the President in the nominal form of questions, addressed by the President to Mrs. Currie on the Sunday evening following his Jones deposition when she was called to the White House at an extraordinary time and for apparently a single purpose. We are all familiar now with the questions he posed:
`I was never really alone with Monica, right?'
`You were always there when Monica was there, right?'
`Monica came on to me, and I never touched her, right?'
`You could see and hear everything, right?'
`She wanted to have sex with me, and I cannot do that.'
Those five statements have a single common thread: the President knew each and every one of them to have been totally false.
Had Mrs. Currie been willing to confirm the President's suggestions, she would have been a devastatingly effective witness for him.
There is no reasonable explanation of this incident other than it is the President's clear attempt to obstruct justice, both in the Jones case and in the subsequent grand jury investigation.
(3) The false self-serving statements by the President to senior members of his staff, to his cabinet, and to the American people just after his affair became public present a somewhat different face. It is reasonably clear that, at the time at which they were made, the President's goal, at least in part, was to save face with his staff and put a less humiliating spin on the Lewinsky matter. At the same time, coupled with his public statements, the President's assertions to his staff were designed to influence their testimony at some future time and place and to enlist them in disguising his conduct. In fact, they did obstruct the grand jury investigation. The President's manipulation of friendly witnesses to testify falsely, if unknowingly, extended for months until the DNA evidence shattered both his public and private positions.
The President's attempt to derail the Independent Counsel's inquiry--an inquiry the very purpose of which was to discover whether the President gave false testimony and tampered with witnesses--by lying to his colleagues, his cabinet, his confidantes, the media, the American people, and ultimately, the grand jury, is--beyond a reasonable doubt--a wide-ranging and highly public obstruction of justice, deeply damaging to the judicial fabric of the United States.
One final note: to the extent that there are unresolved questions of fact, almost every one of them could be resolved by truthful and complete testimony by the President himself. That is a course of action he spectacularly avoided both in his Jones deposition and before the Starr grand jury. Now, he refuses to answer interrogatories from Senator Lott and refuses to appear at this trial to testify on his own behalf.
Under the circumstances, is it not appropriate to infer that to tell the truth would be to confirm all of the questionable charges against him? I have not done so for the purposes of this argument, and have considered only those charges proven beyond a reasonable doubt, but the president's silence allows the inference that every one of the factual charges by the House managers is true.
With sufficient material facts alleged in the two Articles of Impeachment either essentially uncontested or established by overwhelming evidence, and with those facts clearly constituting both perjury and obstruction, we arrive at the third question before the Senate. Are perjury and obstruction of justice high Crimes and Misdemeanors under the impeachment clause of the Constitution?
This is the easiest of the four questions to answer. Perjury and crimes less serious than obstruction of justice have always and properly been considered high Crimes and Misdemeanors.
In 1986 Judge Claiborne was convicted by the Senate and removed from office for filing a false income tax return under penalties of perjury. By a vote of 90 to 7, the Senate rejected his argument that he should not be convicted because filing a false return was irrelevant to his performance as a judge. In 1989, Judge Nixon was convicted by the Senate and removed from office for perjury: in fact, for lying under oath to a grand jury. And in that same year, Judge Hastings was convicted of lying under oath and removed by the Senate even though he had already been acquitted in a criminal trial. (It is generally recognized that an act need not be criminal in order to be impeachable.) As these examples illustrate, perjury is and historically has been a sufficient cause for conviction and removal. Although no person has been convicted and removed for obstruction of justice, the nature and gravity of this crime, punished more harshly under our laws than bribery, clearly is also a sufficient cause for conviction and removal.
Most of the Senate's precedents, of course, are based on the impeachment trials of judges. President Clinton argues that those precedents should not apply; that presidents, who hold the highest office in the land, should benefit from a lower standard for removal than the judges they appoint and the military officers they command. This President would have presidents remain in office for acts that have resulted in the dismissal of military officers under his command, in the removal of judges, and for acts that would have resulted in the removal of Senators like Bob Packwood, who, like the President, are popularly elected for a fixed term. As House Manager Canady has pointed out, the 1974 report by the staff of the Nixon impeachment inquiry concluded that the constitutional provision stating that judges would hold office during `good Behaviour,' does not limit the relevance of judges' impeachments with respect to standards for presidential impeachments. The President's argument that he should be held to a lower standard than judges, military officers and Senators has no basis in the Constitution, in precedent, in equity, or in common sense.
The fourth and ultimate question, nevertheless, is considerably more difficult to answer. For me, the proof of material facts supporting some of the allegations is overwhelming, the proposition that the established facts of the President's conduct constitute perjury and obstruction of justice almost impossible to deny, and the conclusion that perjury and obstruction of justice are high Crimes and Misdemeanors a given.
But the inevitable result of a guilty verdict in this trial is the President's removal from office, and I believe that reasonable minds can differ on whether or not that consequence is appropriate. So does at least one of the House Managers. In answering the question of whether removal is too drastic a remedy for these alleged acts of perjury and obstruction of justice, Lindsey Graham, one of the most thoughtful Managers, stated that great minds may not necessarily agree on the question
of whether, for the good of the nation, one should or should not remove this President for these high crimes. Removal, he said, is the equivalent of the political death penalty, and the death penalty is not imposed for every felony. Considerations such as repentance and the impact of removal on society should also be considered. (Mr. Graham's view was not , incidentally, that reasonable minds could differ on any of the first three questions that I have outlined, but only on the ultimate question of removal.)
While removal upon conviction has not always been considered inevitable, I agree that Article II, Section 4 of the Constitution requires a mandatory sentence of removal upon conviction of high Crimes and Misdemeanors. Nevertheless, a number of thoughtful commentators, and at least a few members of this Senate, have already decided that removal is too drastic a sanction. These commentators and members--who are convinced, perhaps, that the President committed perjury and obstruction of justice, which, as classes of crime, are high Crimes and Misdemeanors--may nevertheless vote not to convict because they believe that removal from office is unwarranted for this perjury and this obstruction of justice.
I share that conclusion with respect to Article I, but not Article II.
On Article I I have decided, with some regret, that the instances of perjury I believe were established beyond a reasonable doubt are offenses insufficient for removing the President from office--based on the gravity of the offenses as against the drastic nature of removal. Equally important is the fact that these instances of perjury are also elements of the obstruction of justice charges in Article II. One conviction for the same acts of perjury is enough.
Nevertheless, I am convinced that one other reflection must precede a decision based on the belief that removal is disproportionate to the gravity of the offenses established here, and that is: what are the consequences of a not guilty finding by the Senate? The consequences are, of course, no sanction whatsoever.
It is precisely because the absence of any sanction is so objectionable to those who choke over removal that there has been such a spirited search for a third way. But, fellow Senators, there is no third way. There is no third way.
Article I, Section 3 of the Constitution states: `Judgment in Cases of Impeachment shall extend no further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States * * *.'
The drafters did not intend to allow Congress to choose among a range of punishments analogous to those available to the judiciary, and for this reason they specified that the impeached party was to remain subject to judicial process and specifically limited to two--removal and disqualification--the sanctions that Congress could apply.
We must, I believe, by reason of this harsh choice consciously forced on us at the Constitutional Convention in 1787, weigh seriously the effect on the Republic of either of our two possible courses of action. Will the Republic be strengthened, or will it be weakened, by determining that a president shall remain in its most exalted office after perjuring himself and obstructing the pursuit of justice both of a private citizen and of a federal grand jury, in a case occasioned by the president's sexual activities? Will the Republic be strengthened or weakened by removing the President from office by an impeachment conviction for this perjury and this obstruction?
Early in our history an incident involving one of the authors of the Constitution, Alexander Hamilton, shows clearly the bright line between, on the one hand, a private sexual scandal, and on the other, a public obligation--a line the president has intentionally crossed.
In No. 65 of the Federalist Papers, Mr. Hamilton described impeachable offenses as `those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.' The president's defenders place great reliance on this explanation.
Within four years of the composition of this essay, Mr. Hamilton had an opportunity to reflect on his own words. In the summer of 1791, Hamilton, then the Secretary of the Treasury, had an adulterous affair with a Maria Reynolds. Her husband discovered the affair and demanded a job in the Treasury Department. Though Secretary Hamilton turned him down, he did pay blackmail from his personal funds.
A year later, three Congressmen, all politically opposed to Hamilton, learned of the payments, suspected that they might involve Treasury funds, and confronted Hamilton. Despite the tremendous political advantage the story, which eventually leaked, offered them, he immediately and without hesitation told them the truth and nothing but the truth.
The author of Federalist No. 65 knew very well the distinction between a private scandal and the profound embarrassment arising out of its publication--and the violation of a public duty in an attempt to avoid that embarrassment. He chose not to use his Treasury position in a way that would justify an impeachment. The personal cost was immense and he assumed it without blinking.
President Clinton could hardly have chosen a more different course of action. He chose to violate both his oath of office and his oath as a witness, using his office, his staff and his position to try to avoid personal embarrassment. In any event even the personal consequences for him have been far worse than those visited upon Alexander Hamilton. But it is our duty to determine whether he merits a drastic public sanction--or none at all.
Some will say that the President can be charged with crimes related to this affair after his term of office is over.
First, such charges lie outside our jurisdiction or duty.
Second, such charges seem to me to be unlikely if we acquit the President, or in any event.
But third, and most important, let us assume that President Clinton is charged, convicted, and sentenced in 2001. What a devastating judgment on the Senate of the United States that would be! We ourselves would be convicted, by history and forever, of having permitted a felon who abused his office in committing his felonies to remain in office as President of the United States for two long years.
I simply cannot imagine any Senator willing to carry that burden of conscience.
No, we must choose between the sanction of removal and no sanction at all. We know how Alexander Hamilton would vote today on our question. We know how James Madison, one of Hamilton's interrogators and the careful author of the impeachment provision, would have voted. And merely to call up the name of George Washington is to answer the question of how he would vote.
The Republic will not be weakened if we convict. The policies of the presidency will not change. The Administration will not change.
But if we acquit; if we say that some perjuries, some obstructions of justice, some clear and conscious violations of a formal oath are free from our sanction, the Republic and its institutions will be weakened. One exception or excuse will lead to another, the right of the most powerful of our leaders to act outside the law--or in violation of the law--will be established. Our republican institutions will be seriously undermined. They have been undermined already, and the damage accrues to all equally--Republicans, Democrats, liberals, and conservatives.
If there is one thing this President can be relied on to do, it is to put his interests before those of his office and of the Republic. President Clinton has debased the presidency now and, if he is allowed to remain in office, the low level to which he has brought the presidency will continue, and that is not tolerable.
I cannot will to my children and grandchildren the proposition that a president stands above the law and can systematically obstruct justice simply because both his polls and the Dow Jones index are high.
Our duty in this case is as unpleasant as it was unsought. But our duty is clear. It was imposed on us, by history, without equivocation, 212 years ago. It requires us to convict the President of Article II of these Articles of Impeachment. And that is how I vote, with clear conscience and saddened heart.
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