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THE IMPEACHMENT TRIAL
Statement of Sen. Mikulski (D-Md.)

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.

Ms. MIKULSKI. Mr. Chief Justice, I will vote against the articles of impeachment accusing the President of the United States of perjury before a grand jury and obstruction of justice.

The Republican House Managers have asked the Senate to remove the President from office, overturning a free and fair election in which 100 million Americans cast their vote. Short of voting on whether or not to send our sons and daughters to war, I can envision no more profound decision.

I have taken this responsibility as seriously as anything I have done in my life. A little over a month ago, I escorted the Chief Justice into this chamber and stood with my colleagues when we took a collective oath, as an institution, to render impartial justice in this trial. Then, we individually signed our names and pledged our honor to faithfully fulfill our oath. That was an indelible and profound moment.

I have sought to fulfill both responsibilities--to be impartial and to render justice. I have sought to be impartial, which I view as a test of character and will. And I have sought to pursue justice, which to me includes the responsibility to perform the homework--do the reading, review the evidence and weigh the facts.

I have listened carefully, and with an open mind, to the presentations of the Republican House Managers and the President's Counsel. I have reviewed the evidence. I have read all of the key witnesses' testimony before the grand jury. I have intensely studied the law pertaining to perjury and obstruction of justice, discussed the issue with respected lawyers, developed an appropriate standard of proof, and reviewed the House testimony of Republican and Democratic former prosecutors for their views on the charges. Finally, I have read what our nation s founders wrote about impeachment during those months in 1787 when the Constitution was formed, and considered the writings of many of today's finest scholars.

As I reviewed the historical underpinnings of impeachment, I have reflected on the intentions of the Founding Fathers who developed our famed system of `checks and balances'--our Constitution. That system, designed with the precision of Swiss watchmakers and the concern of loving parents, has served our nation very well over the last 200 years and served as a guidepost for nations around the world as they struggled to establish democracies.

I wondered what the Framers of the Constitution would think of this trial--how they would counsel us. In fact, we can use their rationale and their framework to guide us as we reach conclusions about the evidence and as we determine whether that evidence merits removing a president from office.

Using all this as my guide, I have concluded that the evidence presented by the House Managers does not meet a sufficient standard of proof that President Clinton engaged in the criminal actions charged by the House. I conclude that the President should not be removed from office.

In coming to that conclusion, I have used the highest legal standard of proof--`beyond a reasonable doubt,' which is required in federal and state criminal trials. I believe that removing a president is so serious, and such an undeniably tumultuous precedent to set in our nation's history, that we should act only when the evidence meets that highest standard. The United States Senate must not make the decision to remove a President based on a hunch that the charges may be true. The strength of our Constitution and the strength of our nation dictate that we be sure--beyond a reasonable doubt.

The House Managers' case is thin and circumstantial. It doesn't meet the standard of `beyond a reasonable doubt.'

The first article of impeachment, charging the president perjured himself before the grand jury, has not been proven beyond a reasonable doubt.

For instance, the House Managers claim that President Clinton committed perjury when he used the term `on certain occasions' to define the number of times he had inappropriate contact with Ms. Lewinsky. The Managers believed the term `on certain occasions' meant fewer than the 11 times that were counted by Federal investigators and they labeled it `a direct lie.'

But there is no clear numeric or legal definition of `certain occasions.' To disagree about the definition of `certain occasions' is not perjury. And it is not material whether it was 11 times or `on certain occasions.' President Clinton admitted the relationship, which was the material point.

The Republican House Managers also claimed President Clinton committed perjury by not recalling the exact date, time, or place of events that occurred two years before. This was because other witnesses recalled things slightly differently. I do not believe this is or can be perjury because well-established court standards state that `the mere fact that recollections differ does not mean that one party is committing perjury.'

Overall, the House Manager's assertions rest on Mr. Clinton's vague and unhelpful responses to the Independent Counsel's questions. While those responses may be frustrating to the Independent Counsel, the Republican House Managers, and, perhaps the American public, they are not perjurious as defined by law.

Similarly, the case presented by the Republican House Managers has not presented sufficient direct evidence to prove beyond a reasonable doubt that the President obstructed justice. Instead, the House Managers relied on extensive conjecture about what the President may have been thinking. In fact, there is direct and credible testimony by multiple witnesses that is directly contrary to the House Managers conjecture, leaving ample room for doubt.

The Republican House Managers also did not prove beyond a reasonable doubt that there was a causal connection between Ms. Lewinsky s job search and the affidavit she gave in the Jones lawsuit. Ms. Lewinsky testified clearly and repeatedly that she was never promised a job for her silence. That testimony is not challenged by any other witness. In fact, other witnesses support that testimony and her most recent deposition by the House Managers confirms it.

From the outset of this trial, I established that I would use a two-tier analysis for my deliberations. First, I would determine whether the evidence proved beyond a reasonable doubt that the president was guilty of the charges. Second, I would then determine whether or not those charges rose to the level of `high crimes and misdemeanors'--the standard required by the Constitution for conviction and removal of a

president.

Since my analysis of the charges brought by the Republican House Managers determined that they had not been proven beyond a reasonable doubt, the question of determining high crimes and misdemeanors is, I believe, moot. I will say, however, that I am again taken by the wisdom and prescience of the Founding Fathers in addressing this point. I, like many, have read and re-read the work of Alexander Hamilton with particular interest. On March 7, 1788, he wrote `Federalist 65,' outlining the reasons for, and consequences of, an impeachment trial in the Senate. In that writing, Mr. Hamilton asserted that the proper subject of an impeachment trial would be `the abuse or violation of some public trust . . . as they relate to injuries done immediately to the society itself.'

I believe it is clear from those words, and the words of others who drafted the Constitution, that impeachment was not intended to be used for an act that did not meet that standard it was not meant to be used for punishment of the president. I believe that the Framers intended the last resort of impeachment to be used when a presidential action was a clear offense against the institutions of government. I do not believe that President Clinton's conduct, as wrong as it was, rises to that level.

I wish to choose my words judiciously for I believe the behavior of the president was wrong, reckless and immoral. President Clinton has acknowledged that his behavior has harmed his family and the nation, and that his behavior, in the end, is what brought us to this day. Mr. Clinton engaged in an illicit, inappropriate relationship and tried to hide it out of shame and the fear of disgrace. Those actions are clearly deplorable and should be condemned in the most unequivocal terms. But the evidence simply and profoundly does not prove criminal wrongdoing.

Certainly, the impeachment process has been a difficult period in our nation's history. It has challenged the strength of our institutions and the strength of our nation. But, Mr. Chief Justice, I still find reason for tremendous hope.

First, I find hope in the unflagging commitment of the United States Senate to do the right thing for the right reason. I am proud to be a part of this Senate that was ably led by Mr. Lott and Mr. Daschle and conducted this trial in a serious, bipartisan, reflective, and cooperative spirit.

I am reassured that Alexander Hamilton and other constitutional Framers saw fit to charge the Senate with the responsibility to try such a case. I hope and believe that we have fulfilled their expectations to be a sufficiently dignified and independent tribunal, one that could preserve `unawed and uninfluenced, the necessary impartiality' between the parties in this trial. I would like to thank my colleagues on both sides of the aisle for meet their responsibilities with such commitment, honor, professionalism, and concern for this body and the judgment of history. I will modestly presume that history will say we discharged our duty well.

I will never forget one of our finest hours--when, early in the process, we convened in the old Senate Chamber to deliberate. I had the honor to preside, with my Republican colleague Mr. Mack, over that colloquy in which we established a process that would maintain the dignity of the Senate and provide a framework for conducting the trial. That precedent set an important tone for the proceedings that followed and I believe that the good will generated in that historic meeting held throughout our deliberations.

Finally, I also find tremendous hope in the growing national consensus that we must move forward together to address pressing problems in our neighborhoods, communities and cities. Over the last month, the nation has cried out for a focus on education, preserving Social Security and Medicare, investing in our economy, and providing global leadership.

We should now heed those calls. I will not say that now we must `return to the nation's business.' In fact, as difficult and time consuming as this process has been, I believe fulfilling our duty to `render impartial justice' has been the nation's business. I am hopeful that with the conclusion of this trial, we may all return to the work of making our nation more prosperous, our families stronger, our children better educated, our communities more cohesive, and our world safer at home and abroad. I believe we will move on knowing that we have fulfilled our constitutional responsibilities with diligence and honor.

Thank you.


© Copyright 1999 The Washington Post Company

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