THE IMPEACHMENT TRIAL
Statement of Sen. Kerry (D-Mass.)
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. KERRY. Mr. Chief Justice, my colleagues, I want to thank the Chief Justice for his important stewardship of these proceedings. And I thank Senator Lott and Senator Daschle for their patient leadership in helping to bridge the divide of partisan votes so that these are not partisan deliberations.
There is a special spirit in this Chamber. No matter all the easy criticisms directed our way, this is a great institution and in our own way we are witnessing--living out--the remarkable judgment of the Founding Fathers.
Let me turn to the question of removing President William Jefferson Clinton.
Many times the House managers have argued to us that if you find the facts as you argue them, you must vote to convict and thereby remove. But of course, that, like a number of things that they said, is really not true. You can, of course, find the facts and still acquit, because you don't want to remove on a constitutional basis or, frankly, on any other balance that a Senator decides to make in the interest of the Nation.
Now, I agree that perjury and obstruction of justice can be grounds for removal or grounds for impeachment. The question is, Are they in this case? I will not dissect the facts any further because I don't have the time but also because I believe there are issues of greater significance than the facts of this case.
Let's assume you take the facts as the House managers want you to. I would like to talk about some of the things in the arena outside of the mere recitation of facts--critical considerations in this matter.
I have listened to all of the arguments for removal, and I must say that even as I understand what many have said, there seems to be a gap between the words and the reality of what is happening in this country.
Some have said it sets a double standard for judges, despite the fact that the vast majority of scholars say there is a difference between impeachment of judges and the President, despite a difference clearly spelled out in the Constitution, and despite all of the distinguishing facts of each one of those cases involving judges.
Some have said we will have a negative impact on kids, on the military, and on the fabric of our country.
And while I agree that this is absolutely not about polls and popularity, some are making a judgment that clearly the country itself does not agree with. The country does not believe the fiber of our Nation is unraveling over the President's egregious behavior, because most people have a sense of proportion about this case that seems totally lacking in the House managers' presentation.
No parent or school in America is teaching kids that lying or abusing the justice system is now OK. In fact, the President's predicament, I argue, does not make it harder to do so. If anything, there may now be a greater appreciation for the trouble you can get into for certain behavior. More parents are teaching their children about lying, about humiliation, about family hurt, about public responsibility, than before we ever heard the name of Monica Lewinsky.
The clear answer to children who write letters about the President is that since being discovered he has been in a lot of trouble, may even be criminally liable, has suffered public humiliation, and all of history will not erase the fact of this impeachment, this trial, or the lessons of this case.
But the bottom line for us is our constitutional duty, our responsibility to balance based on common sense and sense of honor.
There is a simple question but a question of enormous consequence: Do we really want to remove a President of the United States because he tried to avoid discovery in a civil case of a private, consensual affair with a woman who was subsequently determined to be irrelevant to the case, which case itself was thrown out as wholly without merit under the law? That is the question.
Let me be clear about the President's behavior so no one misinterprets. I am as deeply disturbed by it as all of us are here in the Senate. But I am not sure we need additional moralizing about something that the whole Nation has already condemned and digested. The President lied to his countrymen, to family, friends, to all of us. And if one is not enormously concerned by gifts not surrendered, conversations which can't refresh recollection, jobs produced with uncommon referral and speed, certainly one must be unsettled by the mere lack of easy compliance with judicial inquiry by a President. That is of grave concern to all. It deserves our censure.
But let me say as directly as I can that no amount of inflated rhetoric, or ideological or moral hyperextension can lift the personal, venial aspects of the President's actions to the kind of threat to the fabric of the country contemplated by the Founding Fathers. I must say that I am truly somewhat surprised to see so many strict constructionists of the Constitution giving such new and free interpretation to the clear intent of the framers.
And I have, frankly, been stunned by the overreach, the moral righteousness, even the zealotry of arguments presented by the House managers.
No matter the words about not hating Bill Clinton, no matter the disclaimers about partisanship, I truly sensed at times not just a scorn but a snarling, trembling venom that told us the President is a criminal and that `we need to know who our President is.'
Well, the President is certainly a sinner. We all are. And he may even have committed a crime. But just plain and simply measured against the test of history so eloquently articulated by the Senator from New York this morning and by the Senator from Delaware yesterday, just plain and simply, this is not in any measure on the order of high a crime and misdemeanor so clearly contemplated by the Founding Fathers.
Unlike President Nixon's impeachment case, no government power or agency was unleashed or abused for a goal directly affecting public policy. No election was interfered with. No FBI or IRS power was wrongfully employed. At worst, this President lied about his private, consensual affair and tried wrongfully, but on a human level--understandable to most Americans, at least as to the Paula Jones case--to cover it up. I think, in fact, that most Americans in this country understood there was in that inquiry a violation of a zone of privacy that is as precious to Americans as the Constitution itself.
The fact that the House dropped the Paula Jones deposition count underscores the underlying weakness on which all of this is based. So I ask my colleagues, are we really incapable of at least measuring the real human dimensions of what took place here and contrasting it properly with the constitutional standards we are presented by precedent and history?
We have heard some discussion of proportionality. It is an important principle within our justice system and in life itself. The consequences of a crime should not be out of proportion to the crime itself. As the dictionary tells us, it should correspond in size, degree or intensity.
I must say that no one yet who will vote to remove has fully addressed that proportionality issue.
If you want to find perjury because you believe Monica about where the President touched her, and you believe that adopting the definition given to him by a judge and by Paula Jones' own lawyers, and you can reach into the President's mind to determine his intent, then that is your right. But having done that, if you think a President of the United States should be removed, an election reversed, because of such a thin evidentiary thread, I think you give new meaning to the concept of proportionality. If you do that, you turn away from the central fact that the President opened his grand jury testimony by acknowledging `inappropriate, intimate contact' with Monica Lewinsky.
Enough said, you would think. But no, not enough for this
independent prosecutor. While not one more question really needed to be asked, a torrent of questions followed. Every question thereafter calculated to either elicit an admission of a lie in a case found to be without merit, or to create a new lie which could bring us here.
With the President's acknowledgment of intimate contact, everyone in this Chamber understood what had happened. Everyone in America understood what had happened. For what reason did we need eighty percent of the questions asked about sexual relations? For the simple reason that the Presidential jugular instinct of the so-called independent counsel was primed by what all of us have come to know--he had colluded with Paula Jones' attorneys and Linda Tripp to set the Monica trap in the January deposition, and now he was going to set the perjury trap in the grand jury. Mr. Bennett's own comments in the deposition underscore this:
`I mean, this is not what a deposition is for, Your Honor. He can ask the President, What did he do? He can ask him specifically in certain instances what he did, and isn't that what this deposition is for? It is not to sort of lay a trap for him.'
I wonder if there is no former district attorney, now Senator; no former attorney general, now Senator; no former U.S. attorney, now Senator; former officer of the court, now Senator, who is not deeply disturbed by a so-called independent counsel grilling a sitting President of the United States of America about his personal sex life, based on information from illegal phone recordings?
Is there no one finding a countervailing proportionality in this case when confronted by our own congressionally created Javert who is not just pursuing a crime but who is at the center of creating the crime which we are deliberating on now?
Think about it. When Mr. Starr was appointed, when we authorized an independent counsel, when the grand jury was convened, the crime on trial before us now had not even been committed, let alone contemplated.
I wonder also if there is no one even concerned about Linda Tripp--who new gives definition to the meaning of friendship--working with Paula Jones' attorneys even as she was in the guidance and control of Mr. Starr as a Federal witness. Some of you may want to turn away from these facts. Secondly, the House managers never even acknowledged them in their presentations. I raise them, my colleagues, not for ideological or political purposes, but fundamental fairness demands that we balance all of the forces at play in this case.
Now, much has also been made in this trial of the rights of Paul@ Jones and her civil rights case--that we must protect Paul@ Jones' rights against the President of the United States.
My fellow colleagues--please let us have the decency to call this case what it was. This was no ordinary civil rights case. It was an assault on the Presidency and on the President personally, and the average American's understanding of that is one of the principal reasons our fellow citizens figured this case out long ago.
But there is more to it than that:
Mr. Starr became involved in the Paula Jones suit before he became independent counsel.
He had contacts with Paula Jones' attorneys before his jurisidction was expanded.
He wired Linda Tripp before his jurisdiction was expanded.
Many sources documented that without any expansion of jurisdiction, in 1997, he had FBI agents interrogating Arkansas State troopers, asking about Governor Clinton's private life--especially inquiring into Paula Jones.
After Paul@ Jones filed her suit in 1994, announcing it at a conservative political convention, and with new counsel affiliated with the Rutherford Institute, her spokesperson said, `I will never deny that when I first heard about this case, I said, `OK, good. We're gonna get that little slime ball.'
She later said: `Unless Clinton wants to be terribly embarrassed, he'd better cough up what Paula needs. Anybody that comes out and testifies against Paula better have the past of a Mother Teresa, because our investigators will investigate their morality.'
Even Steve Jones, Paula Jones' husband, was part of an operation to poison the President's public reputation by divulging the secrets of his personal life--threatening even to employ subpoena power to depose, under oath, every State trooper in Arkansas who may have worked for the Governor. Steve Jones pledged that: `We're going to get names; we're going to get dates; we're going to do the job that the press wouldn't do. We're going to go after Clinton's medical records, the raw documents, not just opinions from doctors. . .we're going to find out everything.'
Into all of this came Ken Starr, and the police power of our Nation.
This was not a civil rights suit in the context most of us would recognize. Indeed, there existed an extended and secret Jones legal team of outside lawyers--including George Conway and Jerome Marcus, experts on sexual harassment and Presidential immunity, who ghostwrote almost every substantive argument leveled by Paula Jones' lawyers; Ken Starr's friend Theodore Olson, and Robert Bork, the former Supreme Court nominee, who together advised the Jones team; Richard Porter, a law partner of Ken Starr and former Bush-Quayle opposition research guru, who also wrote briefs for the Jones team; and the conservative pundit and longtime Clinton opponent Ann Coulter, who worked on Paula Jones' response to President Clinton's motion for a dismissal. The connections between this crack--and covert--legal team, and Ken Starr's staff and his witnesses--including Paul Rosenzweig, Jackie Bennett, and Linda Tripp--as well as familiar figures including Lucianne Goldberg, add up to something far more than a twisted and disturbing game of six degrees of separation.
I do not suggest that this was the right wing conspiracy bandied about on the talk shows. But I ask you--are we not able to acknowledge that this was a legal and political war of personal destruction--not just a civil rights case?
And we cannot simply dismiss the fact that all of this turmoil--these entire proceedings--arise out of this deeply conflicted, highly partisan, ideologically driven, political civil rights case with incredible tentacles into and out of the office of the independent counsel.
Moreover, I remind my colleagues, Mr. Starr is supposed to be independent counsel--not independent prosecutor. He was and is supposed to represent all of the Congress and nowhere do I remember voting for him to make a referral of impeachment--a report of facts, yes--a referral of impeachment, no.
Now there is a rejoinder to all of this. Nothing wipes away what the President did or failed to do.
So, some of you may say, So what? The President lied. The President obstructed justice. No one made him behave as he did. And yes, you're right. The President behaved without common sense, without courage, and without honor, but we are required to measure the totality of this case. We must measure how political this may have been; whether process was absurd; whether the totality of what the President did meets the constitutional threshold set by the Founding Fathers.
We must decide whether the removal of the President is proportional to the offense and we must remember that proportionality, fairness, rule of law--they must be applied not just to convict, but also to defend--to balance the equities.
I was here during Iran-contra and I remember the extraordinary care Senator Rudman, Senator Inouye, and Senator Sarbanes exerted to avoid partisanship and maintain proportionality. I wish I did not conclude that their example frankly is in stark contrast to the experience we are now living.
The House managers often spoke to us of principle and duty. And equally frequently we were challenged to stand up for the rule of law.
Well, we all believe in rule of law. But we also believe in the law being applied fairly, evenly--that the rule of law is not something to cite when it serves your purposes, only to be shunted aside when it encumbers.
But where was the managers' duty to their colleagues in the House--in the committee--on the floor; where was the same self-conscious sense of pain for what they were going through, when they denied a bipartisan process for impeachment; where was their commitment to rule of law in denying the President's attorneys access to the exculpatory evidence which due process affords any citizen?
Rule of law is a process in a democratic institution, and there is a duty to honor process.
I believe the Senate has distinguished itself in that effort and I want to express my deep respect for the strongly held views of all my colleagues. Reasonable people can differ and we do, but we can still come together in an affirmation of the strength of our Constitution.
Chairman Hyde says `let it be done'--I hope it will be. Right requires we be proportional as to all aspects of this case. I hope that what we do here will apply the law in a way that gives confidence to all our citizens, that everyone can look at the final result of our deliberations and say justice was done. And we have called an end to the process by which we savage each other, and are beginning to heal our country.
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