THE IMPEACHMENT TRIAL
Statement of Sen. Lieberman (D-Conn.)
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. LIEBERMAN. Mr. Chief Justice, throughout the history of this great country, we have endured trials that have strained the sinews of our democracy and sometimes even threatened to tear apart our unparalleled experiment in self-government. Each time the nation has returned to the Constitution as our common lodestar, trusting in its vision, its values and its ultimate verity. Each time we have emerged from these tests stronger, more resilient, more certain of Daniel Webster's claim of `one country, one constitution, one destiny.' (Speech to a Whig Party rally in New York City, March 15, 1837.) And each time our awe of the Founders' genius has been renewed, as has our reverence for the brilliantly-calibrated instrument they crafted to guide their political progeny in the unending challenge of governing as a free people.
At this moment, we face a test that, although not as grave or perilous as some before, is nevertheless unlike anything this nation has ever experienced. As my colleagues well know, the impeachment trial of William Jefferson Clinton marks the first time in our history that the United States Senate has convened as a court of impeachment to consider removing an elected President from office. But what also makes this trial unprecedented are the underlying charges against President Clinton, which stem directly from his private sexual behavior. The facts of this case are complicated, embarrassing, demoralizing, and infuriating. They raise questions that Madison, Hamilton, and their brethren could never have anticipated that the Senate would have to address in the solemn context of impeachment.
The public examination of these difficult questions--about private and public morality, about the role of the Independent Counsel, and about our expectations of Presidential conduct--has been a wrenching, dispiriting and at times unseemly process for the nation. It has divided us as parties and as a people, reaching its nadir in the partisan bickering and badgering that unfortunately defined the impeachment vote in the House of Representatives and compromised the legitimacy of this process in the eyes of many Americans. It has set off a frenzy in the news media that has degraded and devalued our public discourse and badly eroded the traditional boundaries between public and private life, leaving a pornographer to assume the role or arbiter of our political mores. And it has so alienated the American people that many of them are hardly paying attention to a trial that could result in the most radical disruption of the presidency--excepting assassination--in our nation's history.
Yet despite the significant pain this trauma has caused for the country, I take heart from the fact that we have once again reaffirmed our commitment to the Constitution and the fundamental principles underpinning it. The conduct of the trial here in the Senate has been passionate at times, but never uncivil, and while some votes have broken along party lines, they have never broken the spirit of common purpose we share. Indeed, throughout the past several weeks we as a body have grown closer as we have continually measured our actions with the same constitutional yardstick, and each of us has sought to remain faithful to the Founders' vision as we understand it in fulfilling our responsibilities as triers of the President. This, I believe, is in the end a remarkable testament to the foresight of our forefathers, that even in this most unusual of crises, we could and would rely on the Constitution as our compass to find a peaceable and just resolution.
We are about to achieve that resolution and complete our constitutional responsibilities
by rendering a judgment, a profound judgment, about the conduct of President Clinton and the call of the House of Representatives to remove him from office. This is the duty we accepted when we swore to do `impartial justice,' and it is a duty that I, as each of you, have pondered night and day since this trial began.
As I have stated previously on this Senate floor, I have been deeply disappointed and angered by this President's conduct--that which is covered in the Articles, and the more personal misbehavior that is not--and like all of us here, I have struggled uncomfortably for more than a year with how to respond to it. President Clinton engaged in an extramarital sexual relationship with a young White House employee in the Oval Office, which, though consensual, was irresponsible and immoral, and thus raised serious questions about his judgment and his respect for the high office he holds. He then made false or misleading statements about that relationship to the American people, to a Federal district court judge in a civil deposition, and to a Federal grand jury; in so doing, he betrayed not only his family but the public's trust, and undermined his moral authority and public credibility.
But the judgment we must now make is not about the rightness or wrongness of the President's relationship with Monica Lewinsky and his efforts to conceal it. Nor is that judgment about whether the President is guilty of committing a specific crime. That may be determined by a criminal court, which the Senate clearly is not, after he leaves office.
No, the question before us now is whether the President's conduct--as alleged in the two articles of impeachment--makes his continuance in office a threat to our government, our people, and the national interest. That, I conclude, is the extraordinarily high bar the Framers set for removal of a duly-elected President, and it is that standard we must apply to the facts to determine whether the President is guilty of `high Crimes and Misdemeanors.'
Each side has had ample opportunity to present its case, illuminating the voluminous record from the House, and we Senators have been able to ask wide-ranging questions of both parties. The House was also authorized to conduct depositions of the three witnesses it deemed most important to its case. I have listened intently throughout, watched the videotaped depositions, and been very impressed by both the House Managers and the counsel for the President. The House Managers, for their part, have presented the facts and argued the Constitution so effectively that they impelled me more than once to seriously consider voting for removal.
But after much reflection and review of the extensive evidence before us, of the meaning of the term `high Crimes and Misdemeanors,' and, most importantly, of the best interests of the nation, I have concluded that the facts do not meet the high standard the Founders established for conviction and removal. No matter how deeply disappointed I am that our President, who has worked so successfully to lift up the lives of so many people, so lowered himself and his office, I conclude that his wrongdoing in this sordid saga does not justify making him the first President to be ousted from office in our history. I will therefore vote against both Articles of Impeachment.
In reaching the judgment that President Clinton is not guilty of high crimes or misdemeanors, I started from the same premise that the Founders did--the right of the people
to choose their leaders is paramount in America, derived directly, as Thomas Jefferson wrote in the Declaration of Independence, from the equality of rights endowed to the people by our Creator. The supremacy of this first democratic principle was well described by Alexis De Tocqueville in Democracy in America: `The people reign in the American political world as the Deity does in the universe. They are the cause and the aim of all things; everything comes from them, and everything is absorbed in them.' (Heffner ed. 1956 p. 58)
In debating the President's fate, we must remember that we are deciding is whether to supersede the people's decision about who should lead them--to substitute our judgment for theirs. On this point, the Framers of the Constitution were clear. They had boldly rejected the autocratic rule of a monarch and put in his place a President elected by, and accountable to, the people. Their deliberations show that they did not want even the legislature to exercise too much control over he popularly-chosen President. The Framers provided impeachment to serve as the narrowest of escape valves in the most extreme of cases. As a result, they set an extraordinarily high bar--both procedurally and substantively--for Congress to overcome before we, rather than the voters, could remove a President from office.
Specifically, they required a majority of the House of Representatives to impeach and permitted removal only upon the concurrence of two-thirds of the Senate--which the Framers surely knew, and the current proceedings have demonstrated, is exceedingly difficult to obtain. They also established a very strict substantive standard, authorizing the Congress to remove a President from office only upon `Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.' (U.S. Constitution, Art. II, sec. 4)
The first time I read that clause, `high Crimes and Misdemeanors,' I assumed it included any criminal offense--and only criminal offenses--and I thought that it gave Congress broad latitude to impeach and remove from office a President who had committed any violation of the criminal code. But the more I studied the history, the less clear that interpretation became. The phrase `high Crimes and Misdemeanors' was a term of art to the Framers, and it meant something very different from ordinary crimes, the response to which must be left to the criminal justice system. The Framers chose the term high crimes, to connote a very specific type of offense, like treason or bribery, which has a direct impact on the government and undermines the chief executive's ability or will to continue serving without corruption and in the national interest. As Alexander Hamilton explained in the Federalist Papers, high crimes and misdemeanors are `those offenses 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 Federalist Papers, No. 65 Rossiter ed. 1961 p. 396 (emphasis in original))
It is not necessary here to offer a lengthy dissertation on the Constitutional Convention's impeachment debates. But I would like to share a statement of James Madison that illuminates the reasons why the Framers wanted to authorize impeachment and removal, as well as the intended scope of that power. In response to the suggestion that it was dangerous to authorize the legislature to remove the President, Madison argued that it was:
indispensable that some provision should be made by defending the Community against the incapacity, negligence or perfidy of the chief Magistrate. The limitation of the period of his service, was not a sufficient security. He might lose his capacity after his appointment. He might pervert his administration into a scheme of peculation or oppression. He might betray his trust to foreign powers . . . In the case of the Executive Magistracy which was to be administered by a
`Loss of capacity or corruption'--that is the evil at which the Constitution's impeachment clauses were directed, in Madison's view.
Although neither the words of the Constitution nor the writings of Hamilton, Madison or any of the other Framers of the Constitution provide a precise list of those offenses that prove `the abuse or violation of some public trust,' or the `loss of capacity or corruption' that would constitute `high Crimes and Misdemeanors,' their words and our history offer some help in supplying a more detailed meaning to those terms.
First, the Framers saw impeachment as an extreme remedy meant to respond to only a limited universe of offenses. They took great care to ensure that their chosen substantive standard did not have the effect of providing Congress so much discretion over the President's fate that it could use its power to infringe on the President's independence. It was for this precise reason that Madison successfully argued against allowing for removal for `maladministration,' for fear that `[s]o vague a term will be equivalent to a tenure during pleasure of the Senate.' (II Records of the Federal Convention of 1787, p. 550 (Farrand ed. 1888))
Second, pervading the Framers' discussions--and the Constitutional language they ultimately adopted--was the view that impeachment was intended to protect the nation and the national interest and not to provide the legislature an alternative to the criminal justice system for holding accountable the President or any other violator of the nation's criminal laws. In crafting our Constitution's impeachment clauses, the Framers specifically and consciously departed from the English practice, in which Parliament could use its impeachment power to impose criminal sanctions. Emphasizing that the legislative branch has no constitutional role whatsoever in meting out punishment, whether for the Chief Executive or any other citizen, was so important to the Framers that they declared it not once, but twice in the Constitution--first when they outlawed bills of attainder (Art. I, sec. 9, cl. 3), and again when they emphasized that `Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law' (Art. I, sec. 3, cl. 7).
It is this linguistically-driven irony--that the Constitution's impeachment clauses employ the language of criminal law to authorize a process entirely outside of and distinct from the criminal justice system--that has created so much confusion over our precise task here. The House Managers often appear to suggest that if they show that the President committed a crime, then they have met their burden, because it is our responsibility to hold accountable a President who violates the law and to send a message that the President is not above the law.
But as Professor Charles Black so well explained in Impeachment: A Handbook, criminality in and of itself is neither a necessary nor a sufficient basis for concluding that a President has committed a high crime or misdemeanor, because our goal is to protect the nation's interests, not to punish a President for violating the criminal law. He states: `I think we can say that `high Crimes or Misdemeanors,' in the constitutional sense, ought to be held to be those offenses which are rather obviously wrong, whether or not `criminal,' and which so seriously threaten the order of political society as to make pestilent and dangerous the continuance in power of their perpetrator. The fact that such an act is also criminal helps, even if it is not
essential, because a general societal view of wrongness, and sometimes of seriousness, is, in such a case, publicly and authoritatively recorded.' (1998 ed. pp. 39-40)
If the purpose of impeachment was to ensure that the President is held accountable for violating the law, then the Framers would have authorized Congress to impeach and remove, not just for high crimes but for any crimes. They did not do that. They gave us the power of impeachment and removal for one reason and one reason only: to protect the Republic from a Chief Executive who, by his acts, has demonstrated that he can no longer be trusted to govern in the national interest. Responses to all other forms of malfeasance were left to the other branches.
That is why I conclude that the appropriate question for each of us to ask is not whether the President committed perjury or obstruction of justice, but whether he committed a high crime or misdemeanor--a term I understand from the history to encompass two categories of offenses. The first includes those that are like treason or bribery in that they represent a gross misuse of official power to directly injure the State or its people. Those guilty of such offenses must be removed from office because they have explicitly demonstrated, by their conduct, that they will place their personal interests above the national interest.
The President's counsel and others suggest that we should stop here, arguing that Congress has no authority to remove a President for any offense not committed through the use of official power. (See Trial Memorandum of President Clinton pp. 19-20) I cannot agree. Instead, Madison's argument that we must have an escape valve that allows the legislature to remove a President when the need arises to defend `the Community against the incapacity, negligence, or perfidy of the chief Magistrate,' coupled with Hamilton's definition of `high Crimes and Misdemeanors' as an `abuse or violation of some public trust,' convince me that it is more than just misuse of official power that can require the Senate to remove an office holder. Acts that, although in their immediate nature and effect differ from treason or bribery because they do not stem from a misuse of official power, may nevertheless undermine the offender's ability to discharge his duties in the interests of the American people. In other words, the second category of offenses that equal `high Crimes and Misdemeanors' are non-official acts that unequivocally demonstrate the same threat posed by treason or bribery: that the President can no longer be trusted to use his power in the best interests of the nation.
It is for this reason that I reject the contention that a President's giving false or misleading statements under oath or his impeding the discovery of evidence in a lawsuit arising out of his personal conduct may never constitute a high crime or misdemeanor. I have no doubt that under certain circumstances such offenses could demonstrate such a level of depravity, deceit and disregard for the administration of justice that we would have no choice but to conclude that the President could no longer be trusted to use the authority of his office and make the decisions entrusted to him as Chief Executive in the best interest of the nation. It is because I hold this position that I found reaching a decision in this case such a difficult matter.
Before evaluating the charges against the President, and determining whether his misconduct in fact meets the high threshold the Constitution establishes for removal, each of us had to resolve the important question of what standard of proof should be used for judging the
evidence against the President. It is widely agreed that the House Managers have the burden of convincing Members of the Senate that the President has committee a high crime or misdemeanor, but there are differences of opinion on the level of certainly each of us in the Senate must reach before we can conclude that the House has met its burden.
During the Impeachment Trial of Judge Alcee Hastings, I gave a great deal of thought to this question, and after weighing the competing interests of preserving the integrity of the judiciary, maintaining the independence of the judiciary, and protecting the personal interests of the office holder, I concluded that the House had to prove it case by `clear and convincing evidence.' (See 135 Cong. Rec. S 14359-61 (Oct. 27, 1989)) Clear and convincing evidence is evidence that, in one formulation, produces in the mind `a firm belief or conviction as to the matter at issue' (U.S. Fifth Circuit District Judges Association, Pattern Jury Instructions Sec. 2.14 (1998 ed.)) or, put another way, persuades the finder of fact that the claim `is highly probable' (Committee on Model Jury Instructions, Ninth Circuit Manual of Model Jury Instructions 1.12.2 (1997 ed.)).
There are valid arguments for adopting the higher standard of `beyond a reasonable doubt' in this case, most importantly that the national trauma caused by the removal of a President so far surpasses the damage imposed by the removal of a single judge, that the Senate must remove a President only if it has a very high degree of certainty in the facts underlying its decision. On the other hand, just as the trauma of removing a President is greater than that flowing from removing a judge, the danger an errant President poses to the Republic far exceeds the threat presented by a misbehaving judge. This need to protect the integrity of the Republic and the welfare of its people argues against setting the standard of proof so high that it would result in leaving in power an individual whose fitness to continue serving in the national interest is seriously in doubt, remembering that no matter what the standard, removal still requires two-thirds of the Senators' support.
In 1974, then Senate Majority Leader Mike Mansfield recommended that the standard of `clear and convincing evidence' was `a logical middle ground between the burden of proof requirement in criminal proceedings (`beyond a reasonable doubt') and the burden of proof requirement in civil proceedings (`by a preponderance of the evidence').' He added these words of insight and reason:
An impeachment proceeding is not a criminal proceeding since the Court of Impeachment is barred by the Constitution from imposing any of the usual criminal law sanctions in the event of conviction, and it is not a civil proceeding because the extraordinary formality and complexity of the process and the serious consequences of a conviction and removal (in at least the case of an impeachment of the President of the United States) militate against accepting as adequate the low threshold requirement of a civil action. The burden of proof, like the terminology and various other requirements, must be unique because impeachment itself is unique. It is unique in that it is a hybrid of the legislative and the judicial, the political and the legal. (Senate Committee on Rules and Administration Executive Session Hearings on Senate Rules and Precedents Applicable to Impeachment Trials, Aug. 5-6, 1974, p. 193)
For similar reasons, Professor Charles Black in his Handbook on Impeachment (p. 17) offer the standard of `overwhelming preponderance of the evidence' as appropriate for impeachment trials.
Taken together, those arguments persuaded me to adopt as the appropriate standard of proof the same one I chose in Judge Hastings' impeachment trial: clear and convincing evidence. In other words, to vote for either of the articles before us, I must conclude that there is clear and convincing evidence that President William Jefferson Clinton has committed a high crime or misdemeanor.
This brings me to the crux of this case, where it is necessary to apply the standard of proof I have adopted to the evidence the Managers have presented, in order to reach judgment on the Articles before us.
A number of specific allegations contained in the Articles lack sufficient legal or evidentiary support. For example, it strikes me as highly doubtful that an obstruction case can be made from the President's statements to aides who later testified to the grand jury. The House asserts that these statements constituted obstruction because the President knew his aides would repeat those statements to the grand jury, thereby providing misleading information to the grand jury. But the House has not adequately explained how the President saying privately to his aides the same thing he was saying to the public could constitute obstruction, particularly when we have been presented no evidence showing that the President made those statements for the purpose of having them repeated to the grand jury.
Similarly, the Managers have not offered a convincing legal theory showing how the President obstructed justice simply by failing to dispute his attorney's statements about his relationship with Ms. Lewinsky during the President's deposition. And, the Managers have failed to substantiate their allegation that the President committed perjury by misstating the date of his initial sexual encounter with Ms. Lewinsky when he told the grand jury `When I was alone with Ms. Lewinsky on certain occasions in early 1996 and once in early 1997, I engaged in conduct that was wrong' (Aug. 17, 1998 Grand Jury Testimony of President Clinton pp. 8-9). The Managers have not offered evidence that the President's error was intentional, nor did they provide a convincing explanation how such a misstatement was material to the grand jury's investigation.
Although the Managers offered slightly more weighty evidence concerning the involvement of the President and his friend, Vernon Jordan, in Ms. Lewinsky's job search at the same time she was filing a false affidavit in the Jones case, their case on this point leaves me suspicious but unconvinced. The evidence is highly circumstantial, amounting largely to an overlap in the timing between Ms. Lewinsky's appearance on the Jones' witness list and Mr. Jordan's efforts to find Ms. Lewinsky a job at the President's request. Both Ms. Lewinsky and Mr. Jordan testified that there was no connection between the two events. Although the fact that Ms. Lewinsky's job search and the drafting of her affidavit occurred simultaneously and that Mr. Jordan was involved with both raises questions, nevertheless the ultimate lack of any direct evidentiary connection prevents me from reaching any settled conclusion on the matter.
The House has provided more persuasive evidence to support a number of its other allegations. For example, I am troubled by the President's grand jury testimony that he did not have sexual relations with Ms. Lewinsky within the meaning of the definition offered him in his Jones deposition. (See, e.g., Aug. 17, 1998 Grand Jury Testimony of President Clinton pp. 9, 109) Ms. Lewinsky testified that they had several such encounters. (Aug. 26, 1998 Grand Jury Testimony of Monica Lewinsky pp. 6-40) The President's counsel responded to this allegation by saying: `This claim comes down to an oath against an oath about immaterial details concerning an acknowledged wrongful relationship.' (Trial Memorandum of President Clinton p. 44)
I disagree. The President's statement almost certainly was material to the grand jury's investigation. The grand jury was not investigating whether or not Ms. Lewinsky and the President had a relationship per se, but rather whether the President perjured himself in his Jones
deposition and obstructed justice. Given that in his Jones deposition, the President specifically denied having sexual relations with Ms. Lewinsky, it seems not only material, but central to the grand jury's investigation to determine whether the President told the truth he said he did not have sexual relations with her.
The fact that Ms. Lewinsky was testifying under an immunity agreement and would therefore be subject to prosecution if she lied, and that most of her other testimony is uncontroverted, so much that the President's counsel relies on it at several key points, leads me to view her testimony about the details of her sexual relationship with the President as credible. The same is true of her consistent testimony that it was Betty Currie who called her and told Ms. Lewinsky she understood she had something for her--the gifts from the President. (See Feb. 1, 1999 Deposition of Monica Lewinsky, 145 Congressional Record S. 1225 (Feb. 4, 1999.)
Although it is a less central matter, I am puzzled by the President's including in his prepared grand jury testimony the statement that `I regret that what began as a friendship came to include this [inappropriate] conduct.' (Grand Jury Testimony of President Clinton p. 9.) As the House Managers pointed out, according to Ms. Lewinsky, she and the President engaged in `this conduct' on the first day they met.
The series of questions which Betty Currie (a friendly witness to the President) testified that the President asked her on the day after his deposition in January 1998 and again a few days later are most troubling--both as to the credibility of the President's testimony to the grand jury regarding those statements and as to whether his intent in making those statements was to wrongly influence Ms. Currie's potential testimony. The President testified that he asked Ms. Currie those questions `to refresh my memory about what the facts were.' (Grand Jury Testimony of President Clinton p. 131.) In their trial memorandum (pp. 52-53), the President's counsel assert that his statement is consistent with Ms. Currie's testimony that the President seemed to be trying to gather information. But the President did not testify that he was trying to gather information generally. He stated that he was trying to refresh his own memory. And this, unfortunately, seems to me to be an implausible explanation of what he was doing. In his testimony before the grand jury on August 17, 1998, the President admitted that he had `inappropriate intimate contact' with Ms. Lewinsky and that the relationship occurred `when I was alone with Ms. Lewinsky.' (Grand Jury Testimony of President Clinton pp. 8-9.) He therefore must have known in January 1998, when he asked Ms. Currie the series of questions, that the statements they contained (for example, that `I was never alone with Monica Lewinsky,' that Ms. Currie `could see and hear everything,' and that `Monica came on to me, and I never touched her, right?') either were not true or were beyond Ms. Currie's knowledge and that Ms. Currie could not possibly help refresh his memory.
The President called Ms. Currie in on January 18, 1998 to ask her those questions after the surprise questions he was asked the day before in the Jones deposition about his relationship with Ms. Lewinsky, and after he repeatedly invoked Ms. Currie's name in connection with Ms. Lewinsky in response to those questions. (See Jan. 17, 1998 Deposition of President Clinton, reprinted in Senate Doc. 106-3 Vol. XXII, pp. 17, 20, 21, 22, 23, 24, 25, 26, 27.) Certainly, if the Jones lawyers wanted to further investigate the President's relationship with Ms. Lewinsky, the President's own statements would have led them directly to Ms. Currie.
In summary, although the House managers have left me thoroughly unconvinced of some of their allegations, the evidence presented on others does lead me to believe that it is likely that there were occasions on which the President made false or misleading statements and took actions which could have had the effect of impeding the discovery of evidence in judicial proceedings.
Whether any of his conduct constitutes a criminal offense such as perjury or obstruction of justice is not for me to decide. That, appropriately, should and must be left to the criminal justice system, which will uphold the rule of law in President Clinton's case as it would for any other American. What I must do is uphold the Constitution and decide whether the House Managers have presented clear and convincing evidence that the President has committed a high crime or misdemeanor, which is to say whether they have demonstrated that his misconduct has so compromised his capacity to govern in the national interest that he must be removed.
I conclude that the House Managers have not met that high burden. I am, of course, profoundly unsettled by President Clinton's irresponsibility in carrying on a sexual relationship with an intern in the Oval Office and by the disregard for the truth he showed in trying to conceal it from his family, his staff, the courts and the American people. But the Managers have failed to convince me with the evidence they have presented that his misbehavior, as charged in the articles of impeachment, makes him a threat to the national interest, and that we can no longer expect the President to govern free of corruption in the nation's best interests.
Indeed, the Managers have barely addressed this point of consequences at all, providing almost no evidence or argument that the republic needs protecting from this President. Rather, they have presented their case largely as if the Senate were a criminal court, as if our sole responsibility were to determine whether the President is guilty of the crimes of perjury and obstruction of justice, as if those specific crimes were the indisputable equivalent of high crimes or misdemeanors automatically warranting the President's removal. And in doing do, I believe, they have failed to cross the higher constitutional threshold of proving that the President has forfeited his right to fill out the term for which the people elected him.
The voice of the American people, in fact, indicates that just the opposite is true. According to every public poll we have seen, a clear majority of the American people have continued to support the President throughout this ordeal. Nearly two-thirds of them say repeatedly that they approve of the job that President Clinton is doing in running the country, and that they oppose his removal. In my state of Connecticut, a survey done by The Hartford Courant just last week showed that 68 percent of my constituents rate the President's job performance as excellent or good, and a full three quarters of them believe he deserves to stay in office.
In noting this, I recognize that is would be a dereliction of my duty to substitute public opinion polls for reasoned judgment about our national interest in resolving this constitutional crisis. But it would also be a serious error to ignore the people's voice, because in exercising our authority as a court of impeachment we are standing in the place of the voters who re-elected the President two years ago. In this case, the prevailing public opposition to impeachment has particular relevance, for it provides substantial evidence that the President's misconduct has not been so harmful as to shatter the public's faith in his ability to fulfill his Presidential duties and act in their interest.
It is possible, of course, that a popular President could nevertheless be corrupt and pose a threat to the nation, which is to say that public opinion is not the only barometer of fitness for office. But in this democracy it is an indispensable measure, and in light of the ultimately unconvincing evidence the Managers have presented to demonstrate the President's loss of capacity or corruption, the public's opposition to removal carries weight in my deliberations. It carries particular weight given the overwhelming amount of information the news media has provided us about the details of the President's behavior, which strongly suggests that the American people have not reached their conclusions in ignorance of the President's flaws or faults.
The public opinion polls tell us more than that the majority of people support his continuance in office. Those two-thirds who consistently give him high ratings for his job performance have also strongly expressed their disapproval of his sexual behavior and his deliberate lies to the nation. Indeed, surveys have routinely shown that, as a consequence of this scandal, less than one-fifth of the American people claim that they share the President's moral and ethical values, a result I find stunning and which may be unparalleled in our history.
How can so many Americans simultaneously hold the views that the President has demeaned his office and yet should not be evicted from it? We will be trying to answer that question and to weigh the consequences of those seemingly conflicting opinions for a long time to come. But I believe the explanation must have something to do with the context of the President's actions. As the record makes abundantly clear, the President's false or misleading statements under oath and his broader deception and cover-up stemmed directly from his private sexual behavior, something that no other sitting American president to my knowledge has ever been questioned about in a legal setting. The President neither lied about nor was trying to conceal presidential malfeasance or a heinous crime, such as murder or rape, but instead sought to hide a sexual relationship with an intern that was deeply embarrassing, shameful, even indefensible, yet not illegal.
Indeed, troubled as I am by much of the evidence the Managers presented and the arguments they made, on each occasion I considered voting for removal I invariably came back to this question of context, and I asked myself: Are these the kinds of offenses the Founders envisioned when they entrusted us with the awesome power of invoking our democracy's ultimate sanction? Does this tawdry, tragic episode justify, for the first time in our proud history, ejecting from office the individual the American people chose to lead the country? And each time I had to answer no.
To reach this conclusion, that the context matters in judging the President's misconduct, is in the eyes of the House Managers and many of the President's critics and abdication of duty and honor. It is, they contend, to wink at any immorality, any transgression that is connected to sexual behavior, to sacrifice our most precious principles at the altar of moral relativism. And worse, by choosing to acquit the President, they argue, we are setting an awful precedent for presidents to come.
I understand and share the frustrations that lead to these criticisms. As I stated in the speech I made on this floor on September 3rd of last year, I was deeply angered by the President's recklessness and his purposeful deceit. The conduct he had acknowledged at that point in his grand jury testimony was not only immoral but harmful. The President is, as eminent historian Clinton Rossiter noted, the American people's `one authentic trumpet,' (Rossiter `The American Presidency' 1955 p. 23) and when the notes he sounds falter in the expression of our common values, it has an effect, one that cannot be ignored. That was made clear to me in talking with many parents and children about this matter over the last several months, hearing the dismay and distrust in their voices, which was powerful evidence to me that the President had undercut his moral authority and undermined public confidence in his word.
My disappointment and anger with the President's actions were reawakened as I listened to the evidence the Managers have presented. And like many of my colleagues, I am left
dissatisfied with the all-or-nothing nature of the choice we have been asked to make in this proceeding, between removing this President from office on the one hand, or not removing him on the other, which could imply exoneration or even vindication.
But as unsatisfying as that choice is, it is the only one that the Founders empowered the Senate to make in this impeachment proceeding. Our responsibility is not to pass judgment on the morality of the President's behavior, or to find whether he committed a specific crime. Impeachment is not an instrument of protest, or of prosecution, but one of protection, of our country, its people, and our democratic ideals. When the roll is called on each article and I answer `not guilty,' I want it understood that I am saying `not guilty of a high crime or misdemeanor,' and that is all I can say.
With that understood, I do believe the Constitution allows for one recourse that would provide a means for us as the people's representatives to register our and their disapproval, and would, I believe, help us to bring appropriate closure to this terrible chapter in our nation's history. It is well within the Senate's constitutional prerogatives to adopt a resolution of censure expressing our contempt for the President's misconduct, both that which is charged in the articles and that which is not. Such a censure would not amount to a punishment, nor would it be intended to do so. What it would do, particularly if it united Senators across party lines and positions on removal, is fulfill our responsibility to our children and our posterity to speak to the common values the President has violated, and make clear what our expectations are for future holders of that highest office.
And what it could do, I believe, is to help us to begin healing the wounds the President's misconduct and the impeachment process's partisanship have done to the American body politic, and to the soul of the nation. I have observed that roughly two-thirds of the public consistently expresses its opposition to the President's removal. But I do not think we can leave this proceeding, especially those of us who have voted against the Articles, without also noting that roughly one-third of the American people have consistently expressed their belief that this President is unfit to lead this nation. That is a startlingly large percentage of our people who have totally lost confidence in our nation's leader.
This extraordinary divergence of opinion tells us that there is a rift in our public life that extends far beyond the specific circumstances of this case, a rift that the President's misconduct has only exacerbated. A statement of censure is not an antidote that will magically eliminate this division, but I believe it will help by demonstrating that we can find common moral ground and articulate our common values even though we Senators and our constituents have disagreed about impeachment. For that reason, I hope that once this trial is concluded, we will put aside our partisan loyalties and our political hesitations and overcome parliamentary obstacles to join together in passing a resolution that affirms our belief that the presidency is and must continue to be, in the words of Clinton Rossiter, `the one-man distillation of the American people,' (The American Presidency p. 11), the steward of our freedom and our values.
In closing, Mr. Chief Justice, I would like to quote from a wise and compelling insight that Manager Hyde put forward in his final argument. The most formidable obstacle the Managers faced in making their case, he said, was public cynicism, `the widespread conviction that all politics and all politicians are by definition corrupt and venal.' He went on to say, `That cynicism is an acid eating away at the vital organs of American public life. It is a clear and present danger because it blinds us to the nobility and the fragility of being a self-governing people.'
While I disagree with Manager Hyde's ultimate conclusion in this case, I could not agree more with his eloquent assessment of this threat to our democracy. It is a problem I addressed at the end of the campaign finance investigation that the Governmental Affairs Committee conducted in 1997, when I argued that the mad chase for money that dominates and distorts our political system gives the American people, already deeply skeptical of the motives of politicians, good reason to doubt whether they have a true and equal voice in their government. And it is a problem that I fear has grown significantly worse in the wake of this unseemly saga and the damage it has done to the public's esteem for and expectations of their leaders.
The long and painful process of impeachment is about to come to an end, and thankfully so, but the enormous challenge we face in restoring the public's faith in our public institutions and those who serve in them is just beginning. This is the next great test for the President and for each of us, the fight against cynicism's corrosive influence and the loss of public trust. If we once again seek the help of our common Creator and the counsel of our shared Constitution, and through our actions express their ideals and fulfill their expectations, I am confident we can in time renew a sense of common purpose and reassure the citizenry we serve that America is indeed, as Webster proclaimed, one country with one destiny. Thank you.
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