Defense: Impeachment Is Not Warranted
Washington Post Staff Writers
Tuesday, December 8, 1998; Page A1
The White House will call more than a dozen witnesses before the House Judiciary Committee beginning today to make the case that President Clinton's conduct in the Monica S. Lewinsky scandal was indefensible but not impeachable, essentially arguing that this is no Watergate.
The president's lawyers will neither introduce new exculpatory evidence in their two-day defense nor question any of the players in the scandal, including Lewinsky herself, even though they had previously complained that they never had a chance to cross-examine the grand jury witnesses whose testimony provided the basis for independent counsel Kenneth W. Starr's report to Congress.
Instead, the White House recruited 14 prominent former prosecutors, constitutional experts and Watergate veterans to "deconstruct the allegations," as one aide put it. Rather than challenge the facts collected by Starr, they plan to challenge his interpretation of them. And while some witnesses will criticize Starr's investigation, the White House abandoned plans to present a panel of witnesses devoted to accusing him of "prosecutorial misconduct."
The defense case beginning at 10 a.m. today will open the final stage in the Judiciary Committee's historic inquiry as Clinton aides scramble to avoid only the second impeachment of a president. With the panel scheduled to begin voting perhaps 24 hours after the Clinton team wraps up tomorrow, committee Republicans met yesterday to prepare three or four proposed articles of impeachment.
The real audience for the Clinton lawyers, however, will not be a committee that appears already to have made up its collective mind to approve impeachment along party lines, or even a general public that already has made its opposition to removing Clinton from office clear in opinion polls. The targets of the presidential entreaties will be about two dozen moderate House Republicans who will be critical to any vote on the floor next week.
Out of camera range, White House allies and some of those key members continued discussions about a possible alternative punishment that would involve a congressional censure of the president combined with some sort of voluntary fine by Clinton. One congressional source said presidential aides had expressed a willingness to accept a $300,000 penalty, though the White House denied shopping any censure or fine proposals.
Cognizant of the grousing by some Republican moderates about what they see as a defiant defense strategy, the White House yesterday emphasized Clinton's contrition for having misled the nation about his affair with Lewinsky and aides held open the possibility that he might speak out again on the subject in the coming days.
"The president is second to none in recognizing what was wrong in his behavior and apologizing to those who he has affected and hurt," said White House press secretary Joe Lockhart. "There has been some speculation that that is no longer the case, but I can tell you with great certainty that it is, that he is . . . keenly aware of what he has done wrong."
In another nod to fence-sitters, Lockhart also acknowledged criticism that Clinton's answers to 81 questions posed by the committee were evasive. "For those people who are fair-minded and are trying to keep an open mind about this process, we would certainly regret that they saw it that way," he said.
Republicans scoffed at the White House defense plans. In a sarcastic tone, Judiciary Chairman Henry J. Hyde (R-Ill.) said so many law professors have appeared before the panel already that he should "get college credit."
Hyde left little doubt about which way his vote will go, saying the committee has made "a compelling case" that Clinton committed perjury and other offenses by trying to hide his dalliance with Lewinsky during the Paula Jones case and subsequent Starr probe.
"For almost two months, I have been pleading with the White House and the committee Democrats to present some additional evidence that might demonstrate the president's innocence," Hyde said, standing before a stack of empty boxes that once contained 60,000 pages of material submitted by Starr's office. "But we haven't heard one word about evidence repudiating or rejecting the facts."
Hyde added: "We haven't heard anybody say Monica Lewinsky is a liar."
Committee Republicans met for two hours behind closed doors yesterday to begin formally reviewing articles of impeachment charging the president with perjury, obstruction of justice and abuse of power, although divisions among them prevented any final decisions.
The committee was likely to offer three articles, Republicans said, though they could expand that number to four and had yet to agree on the exact contents of each one. Members were still debating whether to split the perjury charge into separate articles, one focused on his Aug. 17 grand jury testimony and another on his Jan. 17 deposition in the Jones case.
That owes to the discomfort among some Republicans with basing impeachment on testimony in the civil case. Rep. Lindsey Graham (R-S.C.), for example, said he could support impeaching the president on his grand jury testimony but not on his deposition, since Clinton's relationship with Lewinsky was not central to the Jones case and the lawsuit has since been settled.
Committee Republicans also are considering including in one article an allegation that Clinton misled the panel in responding to written questions during the inquiry. "Certainly there's some real dissatisfaction among members as to the president's evasiveness on the 81 questions," said Rep. Steve Chabot (R-Ohio).
Members also have begun discussing what how much sexually explicit content would have to be included in any articles charging Clinton with perjury, given that the allegation arises in part from the president's denial of "sexual relations" as he defined it. Rep. Asa Hutchinson (R-Ark.) described the topic as "a key subject of discussion," adding that more detailed analysis of Clinton's testimony could be included in an accompanying report rather than the article itself.
While every Republican on the Judiciary Committee has indicated support for a perjury charge, they are split on obstruction of justice and abuse of power. If three Republicans join a solid Democratic minority in opposing any article, it would be defeated.
The obstruction-of-justice article would charge Clinton with coaching Lewinsky and personal secretary Betty Currie on what to say in sworn testimony and telling Currie to collect gifts he had given the former White House intern to avoid complying with a Jones subpoena, allegations the president has denied. The abuse of power article would contend that Clinton's claims of executive privilege during the Starr probe were frivolous and a misuse of his office. But two Republicans, George W. Gekas (Pa.) and Ed Pease (Ind.), have expressed reservations about terming privilege assertions an abuse of power, sources said.
"The positions obviously have hardened in terms of the perjury allegations, but I think it's very fluid, even on the committee, in regards to allegations of obstruction of justice and abuse of power," said Hutchinson. "The president's defense on those two points could very well determine whether those two come out of the committee."
Committee Democrats complained that the majority should have finished drafting possible articles by today in the interest of fairness. "Why can't we get the articles before the president gets to defend himself?" asked Rep. Robert C. Scott (D-Va.). "Is that asking too much?"
Before today's hearing begins, the committee may go into executive session to debate the release of additional material, including the videotape of Clinton's deposition in the Jones case as well as information Starr provided about his request to the Justice Department in January for permission to investigate the Lewinsky matter.
After that, White House special counsel Gregory B. Craig will open the president's defense with a 10- to 15-minute statement, introducing a day-long series of witnesses, many of whom have ties to Watergate as part of a concerted effort to contrast Clinton's actions with those that led to Richard M. Nixon's downfall.
Among the witnesses will be three Democrats who served on the Judiciary Committee that voted to impeach Nixon before he resigned in 1974, former representatives Elizabeth Holtzman (N.Y.), Robert J. Drinan (Mass.) and Wayne Owens (Utah). Two lawyers who worked to investigate Watergate, James Hamilton and Richard Ben-Veniste, will testify in the evening to drive home the point that even if Clinton did what Starr alleged it does not rise to the level of Nixon's wide-ranging abuse of the government.
And on the Clinton defense's second and final day on Wednesday, after bringing forward five lawyers to undermine Starr's contention that Clinton's actions amount to criminal conduct, one last Watergate veteran will speak. White House counsel Charles F.C. Ruff, the last Watergate special prosecutor, will make the closing argument and respond to questions by committee members.
The White House also plans to produce a written report rebutting the case for impeachment, totaling about 200 pages.
Left out of the lineup was David E. Kendall, the president's private attorney who has been battling Starr for four years. Against the advice of some White House allies, Kendall was tapped to cross-examine Starr before the committee last month. But aides said leaving Kendall out this time was no reflection on his performance, merely a recognition that the issue is now a constitutional fight that more properly should be argued by White House lawyers.
In case the defense does not work, the White House will lay groundwork for a possible constitutional challenge to an impeachment vote. Among the witnesses for this morning will be Bruce Ackerman, a Yale Law School professor who plans to testify that articles of impeachment approved by a lame-duck House would be invalid once the next Congress takes office in January and could be quashed by the presiding officer of a Senate trial, Chief Justice William H. Rehnquist.
But other experts disagree. Jefferson's Manual, used by Congress as a procedural guide, dictates that unlike normal legislation impeachment does not expire with a Congress, a proposition that has been upheld during the impeachments of two judges.
"It's settled as far as judges -- impeachment is an exception to all other actions in the House of Representatives," said Charles Tiefer, a former House deputy counsel who wrote Congressional Practice and Procedures. "We start out assuming that's true of a presidential one."
Staff writer Guy Gugliotta contributed to this report.
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