THE IMPEACHMENT TRIAL
Jan. 25: Managers Argue Against Dismissal
From the Congressional Record
Mr. Manager CANADY. Mr. Chief Justice, Members of the Senate, on behalf of the House of Representatives, I rise to speak in opposition to the motion to dismiss. During the hour allotted to the managers, I will offer a few introductory comments concerning why adoption of the motion would be inconsistent with constitutional standards and harmful to the institutions of our Government. Mr. Hutchinson, Mr. Graham, and Mr. Gekas will present arguments concerning the facts and the law, and then Mr. Hyde will close.
At the outset, I must urge you to consider the fact that this motion to dismiss is without precedent. The Senate has
never--not once in the more than 200-year history of our Constitution--dismissed a proceeding against an official who remained in office after impeachment by the House of Representatives. I humbly urge you not to depart from the Senate's well-established practice of fully considering cases of impeachment and rendering a judgment of either conviction or acquittal.
In the midst of the great differences between the President's counsel and the House managers, there actually is at least a little common ground. Both sides agree that the impeachment and removal power is designed to protect the well-being of the institutions of our Government. But there is a critical difference that divides us, as is obvious from the argument that has gone before.
The managers have argued that this power--the power of impeachment and removal--is a positive power granted by the Constitution to maintain the integrity of Government, a power to preserve, protect, and strengthen our constitutional system against the misconduct of officials that would subvert, undermine, or weaken the institutions of our Government.
The President's lawyers, on the other hand, advance a much narrower view of the role of the impeachment power in protecting our institutions. Their case rests on the argument that it is a power to be used only in response to conduct threatening devastating harm to the system of Government--at least when it is used against a President.
But I submit to you that Alexander Hamilton did not contemplate that the impeachment process would be so restricted when he spoke of it as a 'method of national inquest into the conduct of public men.' And James Iredell did not have such a narrow view in mind when he spoke of the accountability through impeachment of anyone who 'willfully abuses his trust.' Iredell did not have such a limited view when he spoke of the impeachment of a President who, as he said, 'acted from some corrupt motive or other.'
Under the standards urged by the President's lawyers, the misdeeds of Richard Nixon would not be the threshold for impeachment and removal. What he did was corrupt. The legal rights of citizens were treated with contempt. President Nixon showed an egregious lack of respect for the law. But all these misdeeds did not threaten the sort of ruinous harm to the system of Government that the President's lawyers argue would be required to justify conviction and removal. After all, the core charges against President Nixon related to the coverup of a third-rate burglary.
Members of the Senate, as you consider the motion to dismiss, I ask you to pause and reflect on the consequences of the standard advocated by the President's lawyers. Consider the consequences for the system of justice of allowing the President's dangerous example of lawlessness to stand. Consider the consequences for the Presidency itself.
I respectfully submit to you that the standard advocated by President Clinton's lawyers will debase and degrade the institution of the Presidency. I know that is not the intention of the President's lawyers, but it is the necessary consequence of their position.
Only 42 men have held the office of President of the United States. Some of them have been ordinary men of limited talent. A handful of our Presidents have been great men. Most have been capable men who brought special skills to the office. No matter what our individual judgments may be concerning President Clinton, it is clear that he is one of the most intellectually gifted and politically skilled men to hold the office of President.
He was raised to this great eminence--the most powerful office in the greatest Nation in the history of the world--an unparalleled opportunity, honor and privilege. And in this position of eminence and honor, and in this position of trust, what did he do? He made a series of choices that has brought us to this day. He made the choice to violate the law--and he made that choice repeatedly. He knew what he was doing. He reflected on it. Perhaps he struggled with his conscience. But when the time came to decide, he deliberately and willfully chose to violate the laws of this land. He chose to turn his back on the very law he was sworn to uphold. He chose to turn his back on his solemn oath of office. He chose to turn his back on his constitutional duty.
As you deliberate on this motion, I ask you to consider what William Jefferson Clinton has done to the integrity of the great office he holds as a trust. I ask you to consider the harm he has caused, the indignity he has brought to the institution of the Presidency.
Some have asked of us, 'Where is the compassion and where is the spirit of forgiveness?' Let me say that I, for one, believe in forgiveness.
Without forgiveness, what hope would there be for any of us? But forgiveness requires repentance; it requires contrition. And so I must ask, where is the repentance? Where is the contrition?
It is true that the President has expressed regret for his personal misconduct. But he has never--he has never--accepted responsibility for breaking the law. He has never taken that essential step, as the argument advanced so vigorously by his counsel makes clear. He has refused to accept responsibility for breaking the law. He has stubbornly resisted any effort to be held accountable for his violations of the law, for his violations of his constitutional oath, and his violation of his duty as President. To this day, he remains adamantly unrepentant. And, of course, under our system of justice, even sincere repentance, which is so lacking here, does not eliminate all accountability.
In the discussion thus far, the debate has brought the concept of proportionality to the fore from time to time. You have been urged to reject your own precedents--the clear precedents establishing that crimes such as lying under oath justify conviction and removal. The principle of proportionality, it has been urged, requires that the rule you have applied to Federal judges not be applied to the President of the United States.
I will be the first to concede that removing a President of the United States is, without doubt, a more momentous decision than removing one of the hundreds of Federal judges who hold office in this country. When the Chief Executive is removed, the gravity of the matter undeniably reaches a higher level. But it is also true--and it must not be forgotten--that when the President engages in a calculated and sustained course of conduct involving obstruction of justice and perjury, the gravity of the consequences for the Nation also reaches a far higher level. Such lawless conduct by the President does immeasurably more to subvert public respect for the law than does the misconduct of any Federal judge or any other Federal official.
As has been pointed out more than once, the Constitution contains a single standard for impeachment and removal of all civil officers; there is not one standard for the President and another standard for everyone else. There is nothing in the Constitution that requires you--or allows you--to set a lower standard of integrity for the President than the standard you have set for other officials who have been convicted and removed by your solemn action.
Although they can point to nothing in the Constitution, the President's lawyers assert that the President is simply different because he is elected. So let me say this. The Senate itself has established a standard of integrity for its own elected Members that President Clinton could not meet. As recently as 1995, an elected Senator resigned under imminent threat of expulsion for offenses that included acts similar to the acts of obstruction of justice committed by President Clinton.
Senator Robert Packwood was elected, yet he was on his way to certain expulsion. Listen to what the Senate Select Committee on Ethics had to say about Senator Packwood's conduct. He was guilty, the committee found, of
The statute referred to by the committee in the Packwood case is closely analogous to the obstruction of justice statute the President has violated. Senator Packwood unlawfully sought to impede the discovery of evidence. President Clinton has done the same thing. For his violation of the law, Senator Packwood, an elected Senator, was judged worthy of expulsion from the Senate.
But the President's lawyers argue the President should be held to a lower standard of integrity than the standard you have set for yourselves as Members of the Senate. According to them, the Constitution establishes a lower standard of integrity for the President than the standard for Senators, a lower standard than the standard for Federal judges, and a lower standard than the standard for members of the Armed Forces of the United States.
Ladies and gentlemen of the Senate, I submit to you that the President's lawyers, honorable as they are, are simply wrong. They advocate an arbitrary standard that would insulate the President from the proper accountability for his misconduct under our Constitution. Our Constitution does not establish a lower standard of integrity for the President of the United States.
The Senate, I respectfully submit to you, should follow the well established precedents. The Senate should reject the motion to dismiss.
The CHIEF JUSTICE. The Chair recognizes Mr. Hutchinson.
Mr. Manager HUTCHINSON. Mr. Chief Justice, how much time has expired?
The CHIEF JUSTICE. Twelve minutes.
Mr. Manager HUTCHINSON. Mr. Chief Justice, ladies and gentlemen of the Senate, in my former life, when I tried cases, the defense counsel would routinely offer a motion to dismiss and my clients would always ask me how they could argue to dismiss a case before we had a chance to put on our evidence. I would always explain that there was more than sufficient evidence to get this case to a jury and they didn't have to worry.
We all know that granting a motion to dismiss is a weapon that is rarely used in court. It is a severe remedy that cuts off an individual's right to seek justice in court. For that reason, a motion to dismiss must fail if there is any substantial evidence to support the case. In addition, as you evaluate evidence under a motion to dismiss, the facts are to be considered in a way that is most favorable to the respondent--in this case the House managers.
For example, if there is a dispute between the testimony of Ms. Lewinsky and the President in consideration of this, I would urge you to--and believe that under proper rules you should--consider that in the favor of the theory of the articles of impeachment.
It has been explained to me many times that standard courtroom rules do not apply in the U.S. Senate. But, still, granting a motion to dismiss by the Senate has the same effect--to cut short the trial and avoid the development of the facts--as it would in any State court case. In this case of impeachment, the House of Representatives found that there was substantial evidence to support these articles. And the Senate should not summarily dismiss the charges.
I might add that, despite Mr. Ruff's references, the House standard for the articles of impeachment was not simply probable
cause. My colleagues on the Judiciary Committee looked at a much higher standard of clear and convincing evidence.
But, coming back to the Senate, to dismiss the case would be unprecedented from a historical standpoint, because it has never been done before; it would be damaging to the Constitution, because the Senate would fail to try the case; it would be harmful to the body politic, because there is no resolution of the issues of the case; but, most importantly, it would show willful blindness to the evidentiary record that has thus far been presented.
An appropriate question, you might ask, is: How should you decide whether this motion should be granted? I would contend that you should decide this issue based upon the facts that you have before you in the record and not on any other criteria. A motion to dismiss should not be granted because you do not think there are presently enough votes for conviction.
Let me assure you that I want this over. As Bruce Lindsey, sitting over here, will probably attest, this is bad for me politically. I am from Arkansas, the State Bill Clinton dominated politically for years, and certainly its most influential politician. But we do have our responsibilities, and I happen to believe that we should follow the process which is dictated by the Constitution and the facts.
I know I am making legal arguments to this Court of Impeachment, in which I understand you make your own rules, and I respect that. But, as opposing counsel pointed out on many occasions, there are reasons for these rules of procedure and they have relevance to your deliberations today. Again, your decision should be based upon the facts, and so let's discuss the facts.
Does the record support the charges of obstruction of justice and perjury? To look at this from a different angle, because we talked about it at length, let's examine how the President responded to critical developments in the Federal civil rights case in which he was a defendant.
First, how did he handle those people he knew to be witnesses? The President did not want them to testify, and, if they did testify, he did not want them to testify truthfully. Two of those witnesses were Monica Lewinsky and Betty Currie.
Clearly, he did not want them to testify in the Federal civil rights case and, likewise, his lawyers today do not want those witnesses to testify before this body.
Now, let's look at what happened when the President learned that Monica Lewinsky was on the witness list. Very quickly, it was December 5 that the witness list came in. He learned about it probably the next day, December 6. Monica Lewinsky visited with him and said Vernon Jordan was not doing very much on the job front. The President's response is, okay, I will talk to him. I will get on it.
Now, Ms. Lewinsky assumed that was a brushoff, but he was serious about it because he later learned that day that at the latest--he learned later that day that Monica was on the witness list when he met with the lawyers.
After that, the next day, he meets with Vernon Jordan at the White House. And even though Mr. Jordan says he thinks it was unlikely that the job situation was discussed, Mr. Jordan makes it clear that he ultimately went to work to get Ms. Lewinsky a job at the direction of the President. According to Mr. Jordan's grand jury testimony on June 9, he testified, 'The President asked me to get Monica Lewinsky a job.' That is undisputed. He had testified to the same grand jury, 'He,' referring to the President, 'is the source of it coming to my attention in the first place.'
And so as the result of the President's request, Vernon Jordan got to work, met with Ms. Lewinsky, assisted her in securing key job interviews and kept the President informed. The job search became critical when she was put on the witness list on December 5, and the December 11 order of Judge Wright served to reinforce the urgency of the matter.
Now, all of this was happening when the President knew she was a witness in the civil rights case, but the individuals affected by the President's unlawful scheme of obstruction may not have been privy to his plans. He kept Ms. Lewinsky in the dark about her being a witness until he had the job search well underway. And Mr. Jordan indicates that he was simply trying to get Ms. Lewinsky a job at the direction of the President without any clue that she was a witness until she got the subpoena on December 19.
Now, the President kept his information about Ms. Lewinsky being on the list away from her until he called her at 2 a.m. in the morning on December 17 to let her know the news.
So how does the President handle witnesses in the judicial system that are a danger to him? He wanted to make sure that they were taken care of and cooperative in concealing the truth from the courts.
The next critical step for the President to assure that Ms. Lewinsky sticks with her predesigned cover stories was that she would not deviate from that even though they were now in the court system. Vernon Jordan testified in the grand jury that 'it didn't take an Einstein to know when she was under subpoena the circumstances changed,' and, of course, that is clear.
When Ms. Lewinsky was placed on the witness list, the truth became a threat to the President. He tried to avoid the truth at all costs and was willing to obstruct the legal processes of the judicial system in order to protect himself. The obstruction started with the job favors and then continued through the December 17 conversation with the President when the President encouraged her to keep using the cover stories even though she would be under oath as a witness, encouraged her to sign a false affidavit, and then on December 28, according to the testimony of Ms. Lewinsky, the President sent Betty Currie to retrieve items of evidence for the purpose of concealment and with the obvious effect of obstructing the truth.
Despite the concerted effort of the President in keeping Monica Lewinsky from being a truthful witness, the President was not yet home free. He still had to go through the hurdle of his own deposition on January 17. And even though he knew there were going to be questions about Monica Lewinsky, he was hopeful that the false affidavit, the representations of his attorney, Robert Bennett, and the President's own affirmation of the false affidavit would be sufficient to prevent questioning about Ms. Lewinsky. But it didn't work. Despite this effort, the Federal district court judge ordered the President to respond to the questions. At that point he had a choice. He could tell the truth under oath, or he could provide false statements. He chose the latter, and that decision forced a continued pattern of obstruction.
During the deposition, he asserted the name of Betty Currie at least six times, and by doing so he dared the plaintiff's lawyers to question Ms. Currie as a witness. They knew it, and he knew it. When the Jones lawyers returned from the deposition, they immediately set about issuing a subpoena for Betty Currie. And what did the President do? He immediately set about attempting to assure that Betty Currie would not state the truth when called as a witness.
They defended that she wasn't a witness, she wasn't a prospective witness, but yet we produced the subpoena that she was a prospective witness, and they wanted her to testify and everyone knew it. The President called her at home, arranged
for her to come in the next day, and put her through the questioning: He was never alone with Monica, trying to establish that; that Monica was the aggressor and that the President did nothing wrong. That is what he was trying to accomplish through his questioning of Betty Currie.
Can you imagine how uncomfortable Betty Currie was, must have felt on that occasion, being called in to see her boss, then having the President recreate a fictional account in order to prevent the truth from coming out in a court of law. But once was not enough, and 2 days later Ms. Betty Currie was brought in for the same series of questions. The message was clear. You have got to cover for the President even though the purpose was unlawful.
And so we see a pattern developing. When it comes to a witness, whether it is Monica Lewinsky or Betty Currie, the choice is made. The President encouraged the witness to lie, and the President chose to impede the administration of justice rather than assuring that the laws be faithfully executed.
But the President had one final choice, and that was in his grand jury testimony in August. At this point, the embarrassment of the relationship was public, and that could no longer serve as an excuse not to tell the truth. But, once again, the President chose not to abide by his oath but to evade the truth and provide false statements; not to protect his family, not to preserve the dignity of the Presidency, but to prevent the grand jury from knowing the truth in their investigation and to continue the coverup began during the truth-seeking process in the civil rights case.
I do not have time to cover all the facts, but they are more than substantial, they are compelling, and they are convicting.
Let me leave you with some questions. First of all, who asked Vernon Jordan to get Monica Lewinsky a job? The answer? It was the President.
Secondly, who suggested that Monica Lewinsky sign an affidavit to avoid testifying in the civil rights case, which by its nature had to be false? The answer? It was the President. Who obstructed the truth when Monica Lewinsky was subpoenaed as a witness? It was the President. Who impeded the gathering of evidence when the Federal court subpoena called for the production of gifts? The answer? It was the President. Who tampered with the testimony of Betty Currie when it was clear she was a witness in the case? It was the President. Who took an oath and failed to tell the truth before the courts of our land? It was the President.
I state these facts with sadness, but these facts are true. The motion should be defeated.
I thank the Senate. On behalf of the managers, Mr. Chief Justice, I reserve the remainder of the time.
The CHIEF JUSTICE. Very well. The Chair recognizes counsel for the President.
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