THE IMPEACHMENT TRIAL
Jan. 16: Graham on Impeachment Precedents
From the Congressional Record
Mr. Manager GRAHAM. Thank you, Mr. Chief Justice. I think I broke the code there. When I hear stomachs growling, I know it will be time to wrap this up.
This is an unbelievable occasion for all of us. I am Lindsey Graham from South Carolina. We talk about civil rights. I am a child of the South and I will give you my views on civil rights and how we progressed in this country, but I am going to talk to you a bit about some decisions this body has made regarding the crime of perjury and obstruction of justice and the impeachment clause in the Constitution as it applies to Federal judges. I am not so presumptuous to tell you I know more about what you did than you did. I am going to try to highlight some of the things that you did that I think served this country well in this area. But before we get there, a couple of observations.
As I was walking over through the Rotunda today, there was a group of Japanese tourists there, and I stopped and talked. My dad, who is now deceased, was a World War II veteran, and it struck me, 50 years plus, how resilient this world is. My dad's generation I don't think would have ever envisioned 50 years ago that his son, one, would be a Congressman, which is a great thing about this country, would be stopping and talking to Japanese tourists in the Capitol of the United States.
So when we talk about the consequences of this case, no matter what you decide, in my opinion, this country will survive. If you acquit the President, we will survive. If you convict him, it will be traumatic, and if you remove him, it will be traumatic, but we will survive.
This has been billed as a constitutional drama, by some of the pundits, that is called a snoozer. I can understand that a little bit. I am the 12th lawyer you have had to listen to, and I think my colleagues have done a very good job. But it is a very long and tedious process in many ways. It is hard to sit here and listen to 12 lawyers talk to you. But you have done a wonderful job, I think. I am very proud of the U.S. Senate. You have paid great attention.
But the fact that people call this boring is not a bad thing to me. I think it shows the confidence we have achieved in 200 years as a Republic that people can go on about their business, and they are upset. I know my phone rings a lot, and your phone rings a lot, about what to do. But there is a calmness in this country in the midst of something so important like this that tells me we have done it right for a long time.
How many countries would love the chance to be bored when their government is in action? How many countries fear that the government won't work for them; that to get it right, you have to pick up a gun? That happens every day throughout this world. And the fact that we can come together and talk about something so important and the country can go on and people not be so anxious about their personal lives and their freedoms and their properties and their jobs is a compliment to every generation who has ever served this Republic.
Tom Brokaw has a book out called "The Greatest Generation,'' and I recommend it to you to read, because we will be talking about that in a moment. But let's talk about some of this country's imperfections. Mr. Buyer talked about, very eloquently, the rule of law and how it makes us so different and how it is something that people literally do die for and have died for.
But let me tell you, as a lawyer, it is not a perfect legal system. If you are a poor person and you are charged with a crime, you are likely to get a public defender right out of law school and, hopefully, that public defender will do the best he can or she can. But it is not a perfect system. Don't ever think it is.
Civil rights have been advanced a lot in my lifetime, but we have a long way to go in South Carolina. I think we have a long way to go in this Nation. In my lifetime, I started school with no black person in my class. By the sixth grade--I think it was the sixth grade-- integration hit in my area, and I can remember my mom and dad being scared to death about what it would do and what it would mean. But we made it, and we are better off as a country.
We are here to judge our President. We are here to say whether or not he is guilty, to begin with, of some serious offenses that are colored by sex, and there is absolutely no way to get around that, and I know it is uncomfortable to listen to.
My father and mother owned a restaurant, a beer joint, I guess is what we would say in South Carolina. I can remember that if you were black, you came and you had to buy the beer and you had to go because you couldn't drink it there. That is just the way it was, is what my dad said. I always never quite understood that. My dad and mom were good people, but that is just the way it was. That is not the way it is now, and we are better off for that.
In sexual harassment cases, it is always uncomfortable to listen to. That is just the way it is. It used to be in this country, not long ago, there was really no recourse if you were sexually harassed. We have changed things for the better.
The reason we are here today is not because somebody wanted to look into the personal life of the President for no good reason. We are here today because somebody accused him when he was Governor of picking them out of a crowd, asking her to come to a hotel room, and if you believe her, did something very crude and rude that you wouldn't want to happen to anybody in your family. Now only God knows what happened there. That case has been settled. The parties know and God knows. We will never know.
Let me just say this. I am proud of my country where you, as a low- level employee, can sue the Governor of your State and if that Governor becomes President, you can still sue.
The Supreme Court said 9 to 0--a shutout legally--"Mr. President, you will stand subject to this suit.'' We are going to talk about is this private or public conduct; does this go to the heart of being President, or is this just some private matter he could be prosecuted for after he gets out of office? Is this really a big deal about being President?
I contend, ladies and gentlemen of the Senate, it became a big deal about being President when he raised the defense, "You can't sue me now because I am the President, I am a busy man, I have a lot going on.'' He used his office, or tried to, to avoid the day in court, but the Supreme Court said, "No, sir, you will stand subject to suit under some reasonable accommodation.'' And we are here today.
If I had been on the Supreme Court, I don't know if I would have ruled that way. There is not much chance of that happening any time soon, if you are worried about that. I don't think that is going to be in my future. [Laughter.]
I may not have ruled that way, and we in Congress, if we don't like the way all this has come out, we can change that law, we can change that ruling by law. But it is the law of the land, because the Chief Justice and his colleagues said so.
What did our President do? He tried to say, "You can't sue me because I am President.'' He participated in that lawsuit because he was told to, and I would argue, ladies and gentlemen, that we all assumed he would play fair. Now isn't there a lot of doubt about that?
Ladies and gentlemen of the Senate, what if he had not shown up? What if he refused to answer any court order? What if he had said, "I am not going to play, that is it; I am not going to listen to you, judicial branch?'' You know the remedy we have to resolve problems like that when Presidential conduct gets out of bounds. Do you know where that remedy lies? It lies with us, the U.S. Congress. When a President gets out of bounds and doesn't do as he or she should do constitutionally--and I would argue that every President and every citizen has a constitutional duty not to cheat another citizen, especially the President--and they get out of bounds, it is up to us to put them back in bounds or declare it illegal.
And how do we do that? How do we regulate Presidential misconduct when it is done in a Presidential fashion? Through the laws and powers of impeachment. That is why we are here today.
It is going to take team work on our part to get this right, because I will argue to you in a moment that the President of the United States, through his conduct, flouted judicial authority and decisionmaking over him. When he chose to lie, when he chose to manipulate the evidence to witnesses against him and get his friends to go lie for him, he, in fact, I think, vetoed that decision.
It's worse than if he had not shown up at all. Is that out of bounds? That is what we are going to be talking about today. And we have some guidance as to what really is in or out of bounds for high Government officials. What is a high crime? How about if an important person hurts somebody of low means? It is not very scholarly, but I think it is the truth. I think that is what they meant by "high crimes.'' It doesn't have to be a crime. It is just when you start using your office and you are acting in a way that hurts people, you have committed a high crime.
When you decide that a course of conduct meets the high crimes standard under our Constitution for the President, what are we doing to the Presidency? I think we are putting a burden on the Presidency. And you should consider it that way, that if you determine that the conduct and the crimes in this case are high crimes, you need to do so knowing that you are placing a burden on every future occupant of that office and the office itself. So do so cautiously, because one branch of the Government should never put a burden on another branch of the Government that's not fair and they can't bear.
Ladies and gentlemen of the Senate, if you decide, from the conduct of this President, that henceforth any officeholder who occupies the office of President will have this burden to bear--let me tell you what it is: don't lie under oath to a Federal grand jury when many in the country are begging you not to--can the occupant bear that burden?
I voted against article 2 in the House, which was the deposition perjury allegations against the President standing alone. I think many of us may have thought that he didn't know about the tapes, that he and Ms. Lewinsky thought they had a story that was going to work, and he got caught off guard, and he started telling a bunch of lies that maybe I would have lied about, maybe you would have lied about, because it is personal to have to talk about intimate things; and our human nature is to protect ourselves, our family; that is just human nature.
But, ladies and gentlemen, what he stands charged of in this Senate happened 8 months later, after some Members of this body said, "Mr. President, square yourself by the law. Mr. President, if you go into that Federal grand jury and you lie again, you're risking your Presidency.'' People in this body said that. Legal commentators said that. Professor Dershowitz and I probably don't agree on a lot. I think he would probably agree with that statement. That would be one thing we would agree on. He said --and he is a very smart, passionate man; and I like passionate people even if I don't agree with them--even he said that if you go to a grand jury and you lie as President, that ought to be a high crime.
So the context in which you are going to decide this case has to understand human failings, because if you don't do that, you are not being fair. And I know you want to be fair.
Human failings exist in all of us. Only when it gets to be so premeditated, so calculated, so much "my interest over anybody else'' or "the public be damned,'' should you really, really start getting serious about what to do. That happened in August, in my opinion, ladies and gentlemen. After being begged not to lie to the grand jury and end this matter, he chose to lie.
That is the burden you will be placing on the next President: "Don't do that. Don't lie under oath when you are a defendant in a lawsuit against an average citizen. Have the courage to apply the law in a fair manner to yourself.''
Mr. Buyer talked about values and courage. Let me say something about President Clinton that I believe. I believe he does embrace civil rights for our citizens. I believe he has been an articulate spokesman for the civil rights for our citizens. I believe that may be one of the hallmarks of his Presidency. And I am not here to tell you that he doesn't. I am here to tell you that when it was his case, when those rights had to be applied to him, he failed miserably.
It is always easy to talk about what other people ought to do. The test of character is the way you judge people you disagree with: Don't cheat in a lawsuit by manipulating the testimony of others. Don't send public officials and friends to tell your lies before a Federal grand jury to avoid your legal responsibilities. Don't put your legal and political interests ahead of the rule of law and common decency.
If you find that these are high crimes, that is the burden you are placing on the next officeholder. If they can't meet that burden, this country has a serious problem. I don't want my country to be the country of great equivocators and compartmentalizers for the next century. And that is what this case is about, equivocation and compartmentalizing.
What I have described to you as the conduct of the President being a high crime I think is just his job description. We are asking no more of him than to be the chief law enforcement officer of the land--follow your job description. A determination that this conduct is a high crime is no burden that cannot be borne in a reasonable fashion by future occupants.
What went on? It was a constitutional dance of magnificent proportions. You had litigation that was resolved for the individual citizen so they could go in and acquire the rights, full benefits, of a citizen of that State; you had legislation coming out of this body; and you had defiance against the Federal Government from the State level; and you had the President and the executive branch federalizing the National Guard. And Governor Wallace: "Step aside.''
When it was 9 to nothing that Bill Clinton had to be a participant in the lawsuit and he chose to cheat in every manner you can cheat in a lawsuit, his conduct needs to be regulated, and it needs to be brought to bear under the Constitution. If you put him in jail after his office, that would not solve the constitutional problem he created. The constitutional conduct exhibited by the Executive, when he was told by the judicial branch, "You've got to participate in a lawsuit,'' was so far afield of what is fair, what is decent, that it became a high crime, and it happened to be against a little person.
The Senate has spoken before about perjury and obstruction of justice and how it applies to high Government officials. And those Government officials were judges.
Before we start this analysis, it is important to know--and some of you know this better than I will ever hope to know, the history of this Senate, the history of this body and how it works and why it works-- that when a judge is impeached in the United States of America, the same legal standard--treason, bribery, or other high crimes and misdemeanors--is applied to that judge's conduct as it is to any high official, just like the President. So we are comparing apples to apples.
Now, in Judge Claiborne's trial they seized upon the language, "Judges shall hold their office during good behavior.'' And the defense was trying to say, unlike the President and other Government officials, high Government officials, the impeachment standard for judges is "good behavior.'' That is the term. It's a different impeachment standard. You know these cases better than I know these cases. And you said "Wrong.'' The good behavior standard doesn't apply to why you will be removed. It is just a reference to how long you will have your job.
Our President is two terms. A judge is for life, conditioned on good behavior. What gets you out of office is whether or not you violate the constitutional standard for impeachment, which is treason, bribery, or other high crimes and misdemeanors.
So as I talk to you about these cases and what you as a body did, understand we are using the same legal standard, not because I said so, but because you said so. Judge Claiborne, convicted and removed from office by the Senate, 90-7. For what? Filing a false income tax return under penalties of perjury. One thing they said in that case was, "I'm a judge and filing false income tax returns has nothing to do with me being a judge and I ought not lose my job unless you can show me or prove that I did something wrong as a judge.'' They were saying cheating on taxes has nothing to do with being a judge.
You know what the Senate said? It has everything to do with being a judge. And the reason you said that is because you didn't buy into this idea that the only way you can lose your job as a high Government official under the Constitution is to engage in some type of public conduct directly related to what you do every day. You took a little broader view, and I am certainly glad you did, because this is not a country of high officials who are technicians. This is a country based on character, this is a country based on having to set a standard that others will follow with that.
This is Manager Fish:
That is very strong language. Apparently, you agreed with that concept because 90 of you voted to throw him out. What did he do? He cheated on his taxes by making false statements under oath.
Now we will talk more about public versus private. Senator Mathias, about this idea of public versus private:
It is my opinion . . . that the impeachment power is not as narrow as Judge Claiborne suggests. There is neither historical nor logical reason to believe that Framers of the Constitution sought to prohibit the House from impeaching . . . an officer of the United States who had committed treason or bribery or any other high crime or misdemeanor which is a serious offense against the government of the United States and which indicates that the official is unfit to exercise public responsibilities, but which is an offense which is technically unrelated to the officer's particular job responsibilities.''
This hits it head on:
It would be absurd to conclude that a judge who had committed murder, mayhem, rape or perhaps espionage in his private life, could not be removed from office by the U.S. Senate.
The point you made so well was that we are not buying this. If you are a Federal judge and you cheat on your taxes and you lie under oath--it is true that it had nothing to do with your courtroom in a technical sense, but you are going to be judging others and they are going to come before you with their fate in your hands, and we don't want somebody like you running a courtroom because people won't trust the results.
Judge Walter Nixon, convicted and removed from office for what? Perjury before a grand jury. What was that about? He tried to fix a case for a business partner's son in State court. He went to the prosecutor who was in State court and tried to fix the case. When they investigated the matter, he lied about meeting with the prosecutor. He lied about doing anything related to trying to manipulate the results. He was convicted and he was thrown out of office by the U.S. Senate.
I guess you could say, what has that got to do with being a Federal judge? It wasn't even in his court? It has everything to do with being a high public official because if he stays in office, what signal are you sending anybody else that you send to his courtroom or anybody else's courtroom?
I am not going to go over the facts again because you have been bombarded with the facts. If you believe he committed perjury and if you believe he obstructed justice, the reason he did it was to fix his case. And you have some records to rely upon to see what you should do with somebody like that.
Judge Hastings: this Federal judge was convicted and removed from office by the U.S. Senate. But do you know what is interesting about this case to me? He was acquitted before he got here. He was accused of conspiring with another person to take money to fix results in his own court. He gave testimony on his own behavior. The conspirator was convicted but he was acquitted.
You know what the U.S. Senate and House said? We believe your conduct is out of bounds and we are not bound by that acquittal. We want to get to the truth and we don't want Federal judges that we have a strong suspicion or reasonable belief about that are trying to fix cases in their court.
So the point I am trying to make, you don't even have to be convicted of a crime to lose your job in this constitutional Republic if this body determines that your conduct as a public official is clearly out of bounds in your role. Thank God you did that, because impeachment is not about punishment. Impeachment is about cleansing the office. Impeachment is about restoring honor and integrity to the office. The remedy of prosecuting William Jefferson Clinton has no effect on the problem you are facing here today, in my opinion.
Now, every case was tried before it got here with different results. Two of them were convicted; one of them was acquitted. You had a factual record to go upon. I urge you, ladies and gentlemen of the U.S. Senate, that that cannot happen in this case unless we have a trial in the true sense of the word. The evidence is compelling and overwhelming, but it has only been half told. The learned counsel for the President will have their chance, and they are excellent lawyers.
If this were a football game, we would be almost at half time. Please, please wait, because I have sat where they are sitting, dying to say something. I know there are things they want to tell you about what we have said that may put this in a different light. That is coming, and it ought to come.
But there is another thing that you will have to decide: Has the factual record been developed enough that I can acquit with good conscience or that I can convict and remove with good conscience? In these judge cases, there was a full-blown trial. Because we can't prosecute the President criminally, we can't do the things that happened in the judge cases, so we don't have that record. I just submit that to you for your wisdom. None of this matters unless you believe he committed the offense. And I am not going to go over that again.
You know the facts pretty well. If there is any doubt, let's call witnesses and let's develop them fully, and leave no doubt on the table, and make sure that history will judge us well. Everybody, the House and the President, will have a fair shot at proving their case, that these things occurred, the high crimes.
I don't believe, ladies and gentlemen, that when you look at the totality of what the President did and prior precedents of the Senate, the fact that he was told by the Supreme Court to go into this litigation matter and he cheated so badly, you would consider these not to be high crimes. Because you are not placing a burden on this office that the office can't bear, I think that will be resolved, I hope and pray, in a bipartisan fashion.
If we can do nothing else for this country, let us state clearly that this conduct is unacceptable by any President. These are in fact high crimes. They go to the core of why we are all here as a Nation and to the rule of law, the rules of litigation. He cheated, and you have to put him back in bounds, remove him. Determining this as a high crime puts it back into bounds.
This is a hard question. I am not going to tell you it is not. I do not want to be where you are sitting. I think the evidence will be persuasive that he is guilty. The logic of your past rulings and just fundamental fairness and decency, and helping the Supreme Court enforce their rules, if nothing else, will lead you to a high crime determination.
But we are asking you to remove a popular President. I don't know why all this occurred. And we have a popular President. I know this. The American people are fundamentally fair, and they have an impression about this case from just tons and tons and tons of talk, tons and tons and tons of speaking. One in five, they tell me, are paying close attention to this. The question you must ask is: If every American were required to do what I have to do, sit in silence and listen to the evidence, would it be different? You are their representatives; they will trust you. This is a cynical age, but I am optimistic that whatever you do, this country will get up and go to work the next day, and they will feel good, no matter what it is.
To set aside an election is a very scary thought in a democracy. I do not agree with this President on most major policy initiatives. I did not vote for this President. But he won; he won twice. To undo that election is tough.
Let me give you some of my thoughts. How many times have you had to go to a child, a grandchild, or somebody who works for you, and give them a lecture that goes along the lines: Don't do as I do, do as I say? Isn't that a miserable experience? The problem with keeping this President in office, in my opinion, is that these crimes can't be ignored by anybody who looks at the evidence. They can be explained away, they can be excused; but they have far-reaching consequences for the law. And in his role as chief law enforcement officer of the land, how can we say to our fellow citizens that this will not be 20 months of "don't do as I do, do as I say.'' What effect will that have? I think it would be devastating.
This case is the butt of a thousand jokes. This case is requiring parents and teachers to sit down and explain what lying is all about. This case is creating confusion. This case is hitting America far harder than America knows it has been hit. It is tempting to let the clock tick, but I want to suggest to you, ladies and gentlemen of the Senate, if you believe he is a perjurer, that he obstructed justice in a civil rights lawsuit, the question is not, Should he stay? It is, what if he stays? If you believe this President committed perjury before a grand jury when he was begged not to, and people in this body told him, "Don't do it, because your political career is at stake,'' and if you believe he obstructed justice in a civil rights lawsuit, don't move the bar anymore. We have moved the bar for this case a thousand times.
Remember how you felt when you knew you had a perjurer as a judge, when you knew you had somebody who had fundamentally run over the law that they were responsible for upholding. Remember how you felt when you knew that judge got so out of bounds that you could not put him back in court, even though it was unrelated to his court, because you would be doing a disservice to the citizens who would come before him. A judge has a duty to take care of the individuals fairly who come before the court. The President, ladies and gentlemen of the Senate, has a duty to see that the law applies to everyone fairly--a higher duty, a higher duty in the Constitution. You could not live with yourself, knowing that you were going to leave a perjurer as a judge on the bench.
Ladies and gentlemen, as hard as it may be, for the same reasons, cleanse this office. The Vice President will be waiting outside the doors of this Chamber. Our constitutional system is simple and it is genius all at the same time. If that Vice President is asked to come in and assume the mantle of Chief Executive Officer of the land and chief law enforcement officer of the land, it will be tough, it will be painful, but we will survive and we will be better for it.
The CHIEF JUSTICE. The Chair recognizes Mr. Manager Canady.
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