THE IMPEACHMENT TRIAL
Statement of Sen. Levin (D-Mich.)
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. LEVIN. Mr. Chief Justice, colleagues, first a personal note to our leaders: How proud I am of them, and we all are of you, for holding us together during this very, very difficult time. We will all be closer for having come through this, regardless of what this vote is or how we individually vote.
The burden of proof on the House that the President has committed high crimes and misdemeanors and should be removed from office is a heavy burden, because the effect is so dire in a democracy that depends upon the election of the President. In my judgment, the House of Representatives has not carried that burden of proof as to the specific allegations against the President. The House repeatedly relies on inferences while ignoring direct testimony to the contrary. There is nothing unusual about the reliance on inferences. It happens in trials all the time. What is unusual here is that the House's case relies on inferences from the testimony of people whose direct testimony contradicts the inference. Let me just cite some examples in the obstruction of justice article.
First, the House managers in their report, in their brief, made the following statements: `As evidenced by the testimony of Monica Lewinsky, the President encouraged her to lie.' That is the words of the House brief. Second, `The testimony of Monica Lewinsky leads to the conclusion that it was the President who initiated the retrieval of the gifts and the concealment of the evidence.' Third, `The President needed the signature of Monica Lewinsky on the false affidavit and that was assured by the efforts to secure her a job.'
Those are all direct quotes. Each one of those relies on inferences. Each one of them is contradicted by the explicit testimony of people from whom those inferences are drawn.
Let's just take them one by one. The House managers' inference that the President `encouraged'--that is their word--Monica Lewinsky to lie was contradicted by Monica Lewinsky's proffer, which was then incorporated into her grand jury testimony, that the President `never' encouraged her to lie. That is her word. They say by inference the President encouraged her to lie. She says, `The President never encouraged me to lie.'
The House managers' inference that it was, `President Clinton who initiated the retrieval of the gifts and the concealment of the evidence on December the 28th,' was contradicted by Monica Lewinsky's direct testimony that she initiated the concealment of the gifts. It is uncontested that on December 22 she took some of the gifts and concealed the rest--some of the gifts to her lawyer's office. She decided on her own that she would not turn over the gifts in response to that subpoena because they would embarrass her, or they would, in her words, disclose that there was a special relationship. So on the 22nd she decided on her own to withhold some of the gifts. And yet we are told by the managers by inference that somehow or other it is the President who initiated the withholding and the concealment of the gifts.
And then on the 28th, when they met at the White House, it was Monica Lewinsky who said, `Maybe I should get some of the gifts to Betty.' She initiated the issue. And then the President said either nothing or, `Let me think about it.' And then the question came up: Well, who then made the phone call relative to the pickup of the gifts? Was it Monica Lewinsky calling Betty Currie or was it Betty Currie calling Monica Lewinsky?
And here is where another inference is drawn, that if in fact it was Betty Currie who initiated the call, then the inference is that the President told Betty Currie to call Monica Lewinsky. There is a conflict there between Betty Currie and Monica Lewinsky.
But one of the most intriguing issues in this whole matter, one that I have really given a lot of thought to, is the question: Why would the President give Monica Lewinsky gifts on December 28 if he was concerned about it and wanted to withhold and hide the gifts? It is one of the questions that didn't get a lot of focus up here, by the way.
The President gave Monica Lewinsky at least three things that day: That bear carving that Dale Bumpers referred to that came from Vancouver, a small blanket, and a stuffed animal.
Now, here is the way the House addressed that issue. They asked themselves in their brief the question: Why would the President give Ms. Lewinsky gifts at the same time he was asking her to conceal others that he had already given her? Answer from the House in their brief: The only logical inference--only logical inference--is that the gifts, including the bear, symbolizing strength, were a tacit reminder to Ms. Lewinsky that they would deny the relationship even in the face of a Federal subpoena. That is the inference that they say is the only logical inference from giving three gifts to Monica Lewinsky, including a bear.
Now, there is a real problem with that. First of all, that bear was obtained by the President in Vancouver weeks before there was a witness list. We are not even offered speculation as to how the President could foresee that Monica Lewinsky would be on a witness list and pick up a symbol of strength while in Vancouver so that he could give it to her as a reminder to deny their relationship in the face of some future, unforeseen Federal subpoena.
But even more to the point, Monica Lewinsky was asked directly at the grand jury--directly--this question as to whether or not she interpreted the gift of that bear as a signal to her to `be strong in your decision to conceal the relationship.' Her direct, one-word answer was `No.' And yet the managers come here saying the only logical inference that can be drawn from three gifts being given from the President on the 28th is that the President was signaling to her to be strong in the face of a Federal subpoena. That is the kind of inference we are asked to draw.
Now, I was raised on the burden of proof, both as a prosecutor in civil rights cases and as a defense lawyer. The House cannot carry the burden of proof on the critical allegations of criminal misconduct that they have made when they depend on those kinds of inferences, a pile of inferences that
run directly contrary to direct testimony on critical points. Impeachment and removal should be based on sturdier foundations than that kind of a heap of inferences. They would have us overlook the forest of direct testimony while getting lost in the trees of their multiple inferences.
The December 11 issue has been discussed here. It was extraordinary to me, listening here as both factfinder and judge, that it could be represented to us that on December 11 the first activity calculated to actually help Monica Lewinsky get a job occurred. That is what they alleged on the floor of the Senate. The first activity--these are their words--calculated to help Ms. Lewinsky actually get a job took place on December 11, and that something happened on that day to trigger Vernon Jordan's meeting and real activity. Something happened that day. What was it? Judge Wright's order.
In their House brief, it is said that that order came in the morning, which was wrong, and in the presentation here in the opening arguments Manager Hutchinson said the following: `The witness list came in, the judge's order came in. That triggered the President to action. And the President triggered Vernon Jordan into action. That chain reaction here is what moved the job search along.'
Wrong. It disintegrated here. Vernon Jordan's meeting was before the judge's order. And yet that is what we are asked to base the removal of a President on. And then the thinking shifts to another theory. Removal of an elected President from office has got to be made of sturdier stuff than those kinds of inferences.
Finally, on the double standard issue--and I think we all must be concerned about that--a former prosecutor who appeared in front of the House said the following. And Senator Sarbanes quoted one line of this, and I want to repeat that, because it is so important, and then add one other thing that they said. `In conversations with many current and former Federal prosecutors in whose judgment I have great faith, virtually all concur that if the President were not involved, if an ordinary citizen were the subject of the inquiry, no serious consideration would be given to a criminal prosecution arising from alleged misconduct in discovery in the Jones civil case having to do with an alleged coverup of a private sexual affair with another woman or the follow-on testimony before the grand jury. I believe the President should be treated in the criminal justice system in the same way as any other United States citizen.
`If that were the case here,' these former prosecutors said, `it is my view that the alleged obstruction of justice and perjury would not be prosecuted by a responsible U.S. attorney.'
I know this is not a criminal case, this is an impeachment trial, but I would think that our standards should be at least as high as would be in a criminal case, and that if this President would not be prosecuted, much less convicted for these specific charges--and these were criminal charges that were very specifically made by the managers against the President--if that prosecution and conviction would not take place in a criminal case, we should be loathe, I believe, and very, very cautious and careful before we remove an elected President from office.
I learned about the burden of proof and presumption of innocence as a young boy, long before law school, when my father, who was a lawyer, taught me that American justice is dependent on these principles. As I grew up and became a lawyer myself, I experienced firsthand the significance of these bedrock principles and learned that it applies to all Americans accused of crimes, including the President. These principles of the burden of proof and the presumption of innocence help guide me now as we exercise our constitutional duty to judge the specific accusations of criminal behavior lodged against the President of the United States.
The burden of proof on the House of Representatives that the President has committed serious crimes and should be removed from office is a heavy one, because overturning an election in a democracy is a drastic and dire action. The House has not carried that burden of proof as to the specific accusations against the President.
The arguments of the House Managers in support of the Articles suffer from fundamental weaknesses. They repeatedly rely on inferences while ignoring direct testimony to the contrary; they omit key materials which contradict their charges; and they contain serious misstatements of key facts. In a matter of such consequence as the removal of an elected President from office, such a case should not lead to conviction.
Let me cite some key examples from Article II, the allegation of obstruction of justice. First, the House Managers in their report, brief, and arguments to the Senate repeatedly rely on inferences to prove key points and ignore direct testimony to the contrary. In opening arguments, House Manager Hutchinson made the following claims:
As evidenced by the testimony of Monica Lewinsky, [the President] encouraged her to lie.
. . . (T)he testimony of Monica Lewinsky . . . leads to the conclusion that it was the President who initiated the retrieval of the gifts and the concealment of the evidence.
. . .The President needed the signature of Monica Lewinsky on the false affidavit, and that was assured by the efforts to secure her a job.
Mr. Hutchinson's arguments rely on inferences. Relying on inferences is not unique to proving a case. What is unique is that in this case, the House Managers use inferences primarily from bits and pieces of testimony of people who explicitly deny those inferences in their direct testimony. The House Managers' inference that the President encouraged Monica Lewinsky to lie was contradicted by Monica Lewinsky's direct testimony that the President never `encouraged' her to lie.
The House Managers' inference that `it was President Clinton who initiated the retrieval of the gifts and the concealment of the evidence on December 28, 1997,' was contradicted by Monica Lewinsky's direct testimony that she initiated the concealment of gifts. Not only is it an uncontested fact based on direct testimony that it was Monica Lewinsky who on December 22, 1997,
following the receipt of a subpoena for gifts and having decided on her own to withhold gifts which would `give away any kind of special relationship,' brought to her attorney only those gifts that were `innocuous' and typical of the kind of gifts an intern might receive. It is also an uncontested fact based on direct testimony that it was Monica Lewinsky who, on December 28, 1997, expressed her interest in wanting to hide the gifts when she said to the President that maybe she should transfer the gifts to Betty Currie. Ms. Lewinsky testified that the President either didn't respond to her comment or said he'd think about it.
But what makes the Managers' inference even more speculative is the fact that at the December 28th visit, the President gave Ms. Lewinsky even more gifts, including a bear carving from Vancouver, a small blanket and a stuffed animal. Why would the President give Ms. Lewinsky gifts at the same time he is asking her to conceal others he had already given her? I was struck by the House's answer. `The only logical inference,' according to the House Managers, `is that the gifts--including the bear symbolizing strength--were a tacit reminder to Ms. Lewinsky that they would deny the relationship--even in the face of a federal subpoena.'
That inference, called `the only logical inference,' is not only the rankest form of speculation, it is also contrary to the direct evidence.
The undisputed grand jury testimony was that the bear carving was brought back by the President from Vancouver, a trip which occurred weeks before Monica Lewinsky's name appeared on any witness list. We're not even offered speculation as to how the President could foresee that Monica Lewinsky would be on a witness list, and pick up a symbol of strength while in Vancouver so that he could give it to her as a reminder to deny their relationship in the face of some future, unforseen federal subpoena. But even more to the point, when Ms. Lewinsky was asked the direct question at the grand jury whether she interpreted the gift of the Vancouver bear carving as a signal to her to `be strong in your decision to continue to conceal the relationship,' her direct, one-word answer was `no.'
The Managers' reliance on inferences from testimony of persons whose direct testimony contradicts the inferences was a recurring pattern during this trial. The Managers alleged that the signing of the affidavit and the obtaining of the job for Ms. Lewinsky were linked, based on inference from bits and pieces of testimony of Monica Lewinsky and Vernon Jordan. But Vernon Jordan and Monica Lewinsky explicitly denied any such linkage. Ms. Lewinsky said, `There was no agreement with the President, Jordan, or anyone else that [I] had to sign the Jones affidavit before getting a job in New York.' Mr. Jordan told the grand jury in answer to the question whether the job search and affidavit signing were linked, `unequivocally, indubitably, no.'
Impeachment and removal should be based on sturdier foundations than the heap of inferences that have been placed before us, when those inferences are pieced together from bits of testimony of witnesses whose direct, explicit testimony contradicts the inferences. The House Managers would have us
overlook the forest of direct testimony while getting lost in the trees of their multiple inferences.
The House Managers' case also omitted directly relevant, contradictory material and misstated key facts. For instance, the House Managers argued in their brief that relative to the job search assistance for Ms. Lewinsky, `nothing happened in November of 1997.' But, in fact, our Ambassador to the United Nations, at the request of the Deputy Chief of Staff of the White House, offered Ms. Lewinsky a U.N. job on November 3rd.
The House Managers' report explicitly represented that `(t)he first activity calculated to help Ms. Lewinsky actually get a job took place on December 11,' and that `(s)omething happened that changed the priority assigned to the job search.' What happened, the Managers argued, was a court order `on the morning of December 11' by Judge Wright requiring President Clinton to provide information about prior relationships involving state and federal employees. The Senate was told by the House Managers that `(s)uddenly, Mr. Jordan and President Clinton were now very interested in helping Ms. Lewinsky find a good job in New York' and that Vernon Jordan got active on the afternoon of December 11 when he and Ms. Lewinsky met.
Manager Hutchinson said in his argument to the Senate:
The witness list came in. The judge's order came in. That triggered the President to action. And the President triggered Vernon Jordan into action. That chain reaction here is what moved the job search along.
But that key argument disintegrated before our eyes when it turned out that Judge Wright's December 11 order came late in the day, well after the meeting between Vernon Jordan and Monica Lewinsky, and in addition, the meeting had been scheduled many days before.
With respect to the perjury article, the House Managers failed to meet their burden as well. The President admitted to the grand jury that he did have `inappropriate intimate contact' with Monica Lewinsky when he was alone with her, and the House Managers failed to identify specific statements that would meet the requirements of a perjury charge.
The lack of substantive evidence supporting the charges explains why a panel of five highly regarded former Democratic and Republican federal prosecutors, who appeared before the House Judiciary Committee, testified that this case against the President would not have been pursued by a responsible federal prosecutor. Thomas Sullivan, who served for four years as U.S. Attorney for the Northern District of Illinois, and whom Chairman Hyde described as having `extraordinarily high' qualifications had this to say:
. . . (I)n conversations with many current and former Federal prosecutors in whose judgment I have great faith, virtually all concur that if the President were not involved--if an ordinary citizen were the subject of the inquiry--no serious consideration would be given to a criminal prosecution arising from alleged misconduct in discovery in the Jones civil case, having to do with an alleged coverup of a private sexual affair with another woman or the follow-on testimony before the grand jury . . . I believe the President should be treated in the criminal justice system in the same way as any other United States citizen. If that were the case here, it is my view that the alleged obstruction of justice and perjury would not be prosecuted by a responsible United States Attorney.
Finally, I have had a deep concern about the impeachment process which formed the basis of this trial. While my decision to reject the articles is based on the inadequate proof of the crimes alleged, the process which brought this matter to trial was deeply flawed.
The articles of impeachment before us are based on materials, the so-called Starr Report, compiled by an outside prosecutor, not by the legislative branch itself, which has under the Constitution the `sole' responsibility for impeachment. Instead of doing an independent investigation, the House of Representatives unwisely delegated, in my judgment, the critically important investigative function to an outside prosecutorial foe of the President and an actual advocate of his impeachment. The House took that prosecutor's record and his testimony and made them the basis of articles of impeachment presented to us.
The contrast to the Watergate investigation and the impeachment of President Nixon is stark. In the Watergate investigation, the Senate convened a select committee in February 1973 to investigate the Watergate break-in and other campaign irregularities in the 1972 election. That committee took testimony for a year. In February 1974, the House voted to direct the House Judiciary Committee to conduct an inquiry into impeachment. The Committee conducted its own investigation, including subpoenaing the White House tapes and calling numerous fact witnesses. The Committee also obtained the report of the grand jury meeting under the authority of Leon Jaworski, the Watergate prosecutor. In deciding to allow the grand jury report to be forwarded to the House Judiciary Committee, Judge Sirica found that the report:
` draws no accusatory conclusions. . . contains no recommendations, advice or statements that infringe on the prerogatives of other branches of government. . . . (and) renders no moral or social judgments. The Report is a simple and straightforward compilation of information gathered by the Grand Jury, and no more. . . .' (In re Report and Recommendation of June 5, 1972, Grand Jury Concerning Transmission of Evidence to the House of Representatives, U.S. District Court, District of Columbia, March 18, 1974.)
The report sent to the House of Representatives in the matter before us violated almost every standard followed by Judge Sirica. The Starr Report didn't present the evidence in an impartial manner as contemplated in the independent counsel law. It drew a host of `accusatory conclusions' and rendered judgments. The report contained a large volume of needlessly salacious detail and omitted or dismissed important exculpatory evidence. The impeachment process has suffered as a result.
Moreover, the House made a significant and irreparable mistake in the actual drafting of the articles. Each article alleges multiple acts of wrongdoing. Thus, it would be impossible to determine after a vote on the articles whether a 2/3rds majority of the Senate actually agreed on a particular allegation. Article I, for example, charges that President Clinton committed one or more of the 4 possible acts of perjury; Article II charges that President Clinton committed one or more of 7 possible acts of obstruction. Without separate votes on each of the alleged acts, it would be impossible to determine whether 2/3rds of the Senate agreed that the President had committed any of the actions alleged. Since the Constitution requires conviction upon a vote of 2/3rds of the Senate, the articles as drafted do not allow us to guarantee to the American people that we are complying with the requirements of the U.S. Constitution. This is a flaw that cannot be fixed, because the Senate does not have authority to amend the articles.
Alexander Hamilton in the Federalist Papers asked this question, `Where else than in the Senate could have been found a tribunal . . . [which] . . . would be likely to feel confidence enough in its own situation to preserve, unawed and uninfluenced, the necessary impartiality between an individual accused and . . . his accusers ?'
Each of us, however we vote, will soon answer that question, as we stand between the accuser and the accused, weighing the evidence. The issue before us is not whether the President's conduct was reprehensible; that is clear beyond any reasonable doubt. The issue is whether the President committed the alleged crimes for which he should be removed from office, a proposition which places on his accusers a heavy burden of proof. It is a burden the House Managers have not met, and I will, therefore, vote against the articles of impeachment.
I would like to add my thoughts on censure as well, since this may be the only appropriate opportunity to do so. I support the censure resolution authored by Senator Feinstein, and I commend her for her openness, diligence and hard work in bringing to fruitition a bipartisan product. The President should know, the American people should know, and history should know that by voting to acquit on impeachment, we did not vote to acquit the President for his egregious conduct. I know of no Senator who is not deeply troubled by the President's conduct. While I do not believe the President's conduct in his private, consensual sexual relationship should have become the business of the American public, it did in fact become so, and when it did the President had the duty to tell the truth. And no matter how wrong or improper that disclosure of the President's private life was, it does not justify the lies the President told to the American people, his family and his staff.
I hope that our votes today on impeachment will conclude this unfortunate chapter in our political history and that the President, through a forthright acknowledgment of the wrongfulness of his behavior, will lead the nation toward healing the wounds these events have opened. I believe the American people want an end to this matter more than anything, and that any further criminal investigation of the President with respect to the matters under Mr. Starr's jurisdiction should be immediately concluded. While Senator Feinstein's censure resolution states that President Clinton remains subject to criminal indictment, that is in the resolution as a statement of fact and not as a statement of encouragement. Indictment after this impeachment trial would not be appropriate nor would it be in the public interest. Today's votes should bring this tragic episode to an end.
© Copyright 1999 The Washington Post Company