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THE IMPEACHMENT HEARINGS
Dec. 1 Afternoon Session: Nine Experts


  • More Transcripts From the Hearings

  • By Federal News Service
    Tuesday, December 1, 1998

    Witnesses:

    • Gerald B. Tjoflat, U.S. Appeals Court judge
    • Charles E. Wiggins, U.S. Appeals Court judge
    • A. Leon Higginbotham Jr., retired U.S. Appeals Court judge
    • Elliot Richardson, former U.S. attorney general
    • Leon A. Edney, retired chief of naval operations
    • Thomas P. Carney, retired army chief of staff
    • Alan Dershowitz, Harvard Law School professor
    • Stephen Saltzburg, George Washington University Law School professor
    • Jeffrey Rosen, George Washington University Law School professor

    REP. HYDE: Well, I hate to keep you waiting. You've already waited so long. Some of the members will come straggling in, I dare say. So we will resume. Again, your patience has been saintly, and we thank you very much.

    On our second panel we have nine witnesses who will give us a variety of perspectives on the consequences of perjury and related crimes. The panel consists of federal judges, a former attorney general, retired military officers, legal scholars, and this morning we had the other panel of people who have actually been convicted of these crimes.

    Let me note at the outset that all of these witnesses are appearing in their personal capacities, and none of their statements should be construed as expressing the views of any organizations with which they might be associated.

    Our first witness is the honorable Gerald B. Tjoflat, a United States circuit judge on the United States Court of Appeals for the 11th Circuit. Judge Tjoflat is a graduate of the University of Cincinnati and Duke University School of Law. His law school tenure was interrupted by two years' service as a special agent in the U.S. Army Counterintelligence Corps. After law school, Judge Tjoflat practiced law in Jacksonville, Florida for a number of years. He took the bench in 1968 as a circuit judge on Florida's fourth judicial circuit. In 1970 he was appointed to the United States district court for the middle district of Florida.

    In 1975 he was appointed to the United States court of appeals for the fifth circuit. And when Congress split the fifth circuit, he went to the newly-created 11th circuit. He served as chief judge for the 11th circuit from 1989 until 1996. In addition to his court duties, he's involved in local and national community service, educational and professional development organizations. He received the 1996 Fordham Stein prize, a national prize that recognizes positive contributions of the legal profession to American society.

    Next to Judge Tjoflat is the honorable Charles Wiggins, a dear friend of this committee's, a man who served on this committee for many years. And he's now a senior United States circuit judge on the United States court of appeals for the ninth circuit. Judge Wiggins, as a former colleague and a dear friend, we're particularly pleased to have him here today. He graduated from college and law school at the University of Southern California and served two tours as an infantry officer in the United States Army.

    He began his law practice in El Monte, California in 1957, where he also served in a variety of local elected offices. In 1966 he was elected to the United States House of Representatives, where he served with distinction on this committee during the impeachment inquiry of President Nixon, and he played a very vital role in that hearing. Judge Wiggins left Congress in 1978, returned to private practice till 1984, when he was appointed to the ninth circuit, and he's served on that court since that time.

    Is Mr. Conyers here? Well, we'll skip you, Judge Higginbotham, only because Mr. Conyers wants the honor of introducing you. So it's not out of disrespect.

    Our next witness is the honorable Elliot Richardson. Mr. Richardson is a graduate of Harvard College and Harvard Law School. After law school he clerked for Judge Learned Hand of the second circuit and Supreme Court Justice Felix Frankfurter. Throughout his distinguished career he has served in numerous public positions, including secretary of Health, Education & Welfare, secretary of Defense, attorney general of the United States, secretary of Commerce, and ambassador to the Court of St. James. That is a resume. In 1992 he retired as a senior partner in the Washington office of the law firm Milbank, Tweed, Hadley & McCloy. In January of this year, President Clinton awarded him the Presidential Medal of Freedom.

    And now I'll yield to John Conyers for purposes of introducing Judge Higginbotham.

       


    REP. CONYERS: Thank you, Mr. Chairman. A. Leon Higginbotham, Jr., started out as a President Kennedy appointee to the FTC. He then -- he had finished Antioch, Yale Law School, Harvard, University of Michigan, New York University, University of Pennsylvania. I counted them. He has 62 honorary degrees from universities. And he's written extensively, particularly about race relations in America and how the justice process has impacted on it. And he's currently writing his biography and other writings.

    He's been so helpful in the civil rights movement across the years, and he is presently professor of jurisprudence at Harvard and the John F. Kennedy School of Government, counsel to Paul, Weiss, RifkinD, Wharton & Garrison in their New York and Washington offices, and a former circuit judge and chief judge of the United States court of appeals for the third circuit. We're delighted that you as well as all of the distinguished members here could stay with us for this lengthy period today.

    Thank you, Mr. Chairman.

    REP. HYDE: Thank you, Mr. Conyers. Our next witness is Admiral Bud Edney, who retired from the United States Navy in 1992 after 39 years of service. He's a graduate of the United States Naval Academy and has a master of public administration degree from Harvard University. A naval aviator, he has logged over 5,600 carrier flight hours and flown 350 combat missions.

    During his career, his assignments included command of a carrier air wing, command of the aircraft carrier USS Constellation, and command of a carrier battle group. He also served as commander of all U.S. forces in the Atlantic and commandant of midshipmen at the U.S. Naval Academy. He concluded his career as supreme allied commander of NATO forces in the Atlantic and commander-in-chief of the U.S. Atlantic Command following his service as vice chief of naval operations and chief of naval personnel.

    Since his retirement he has served as a member of the Defense Department's roles and mission commission, as a senior fellow at the Center for Naval Analysis, as a director of the Retired Officers Association, and a director of Newport News Shipbuilding. He presently teaches ethics at the Naval Academy, holding the distinguished leadership chair.

    Our next witness is Lieutenant General Thomas Carney, who retired from the United States Army in 1994 after 35 years of service. He is a graduate of the United States Military Academy and has a master's degree in operations research and systems analysis from the Naval Postgraduate School. Just before his retirement, he served as the Army's deputy chief of staff for personnel. In that position he was responsible for developing all plans, policies and programs for the management of the Army's military and civilian personnel. Prior to holding that position, he commanded the Army's recruiting command, where he was responsible for the Army's efforts to recruit new soldiers.

    General Carney has also held a number of combat commands, including serving as commander of the fifth infantry division and assistant commander of the 82nd Airborne Division. An airborne- qualified Ranger, he served two tours of duty in Vietnam, was awarded two distinguished service medals, three legions of merit, three bronze stars, the combat infantryman's badge for coming under fire in combat, and a combat jump star for making a parachute jump into combat.

    Since his retirement, General Carney has served as an independent management consultant to the Shell Oil Company, the Delaware Port Authority, Deloitte & Touche accounting firm, and the National Academy of Public Administration. Most recently he served as deputy librarian of Congress, where he acted as chief executive officer of the world's largest library.

    Our next witness is Professor Alan Dershowitz, the Felix Frankfurter professor of law at Harvard Law School. Professor Dershowitz is a graduate of Brooklyn College and Yale Law School. After law school he clerked for Chief Judge David Bassilon (sp) of the DC circuit and Supreme Court Justice Arthur Goldberg. Since that time he has taught at Harvard Law School. He's authored dozens of books and articles on various subjects, and he has represented numerous high-profile clients, including O.J. Simpson, Mike Tyson and Claus von Bulow.

    Our next witness is Professor Stephen Saltzburg, the Howry (sp) professor of trial advocacy, litigation and professional responsibility at George Washington University Law School. Professor Saltzburg is a graduate of Dickinson College and the University of Pennsylvania Law School. After law school he clerked for Judge Stanley Wigel (sp) of the U.S. district court for the northern district of California and Supreme Court Justice Thurgood Marshall. He taught at the University of Virginia Law School for many years before moving to George Washington in '93. He has also served as deputy assistant attorney general for the criminal division and an associate independent counsel. He has published numerous articles in the field of criminal law.

    Our next witness is Professor Jeffrey Rosen, an associate professor of law at George Washington University Law School.

    Professor Rosen is a graduate of Harvard College and the Yale Law School, and after law school he clerked for Chief Judge Abner Mikva of the DC circuit. In addition to his teaching duties, Professor Rosen is the legal affairs editor of The New Republic and a staff writer for The New Yorker. He has authored numerous published articles.

    We will begin with Judge Tjoflat. It would be helpful if you could hold your remarks in chief to about five minutes. We will have the light on. If you go over, I certainly am not going to cut you off, but we have a big panel and we have an inquiring membership up here. So Judge Tjoflat.

    MR. TJOFLAT: Thank you, Mr. Chairman. As you indicated before you began the introduction --

    REP. HYDE: Move the mike over.

    MR. TJOFLAT: All right. Is that all right?

    REP. HYDE: That's fine.

    MR. TJOFLAT: As you indicated before you began the introductions, none of us here appears in behalf of any group. So I don't appear in behalf of the judicial branch or the judges of the 11th circuit. I appear myself. And the views I express on the subject of the consequences of perjury and related crimes are my own views, though I think they're shared in general, as my own opinion, by most judges, and probably by most of the members of this committee.

    I am not here to suggest what the committee should do.

    REP. HYDE: Your Honor, Mr. Conyers --

    REP. CONYERS: Mr. Chairman, with all due fairness to our sitting judges that are here, I want to explain to you that we have the canons. We have the advice from the experts. And the fact that you're indicating your own individual views are not exculpatory at all. And so if you want, I will send down to you the ABA Code of Judicial Conduct, Canon 3(b)(9), that doesn't talk about your own views. We know you're not representing anybody but yourself. But as a sitting judge, you are still under the Code of Judicial Conduct, which precludes sitting judges from commenting on pending matters. Aware?

    MR. TJOFLAT: I'm fully aware.

    REP. CONYERS: All right.

    MR. TJOFLAT: And it is not my intent to comment on the merits of the matter before this panel.

    REP. CONYERS: I just wanted to bring this to your attention, sir.

    MR. TJOFLAT: I'm fully familiar with the canons, and I appreciate your citing them.

    The system of justice depends on three things in order to function as its framers intended. The first thing is an impartial judiciary. It is absolutely imperative that whoever is on the bench in a matter be impartial. The second thing that is indispensable to the administration of justice is a bar of lawyers who are committed to adhering to the code of ethics at all times, in all matters. And the third thing that is indispensable to the administration of justice is the oath taken by witnesses.

    Those three things together, under our system, produce justice. It's like a three-legged stool in a way. And if one of the legs or two of the legs break, then the stool collapses. To the extent that this situation permeates the system, either because the oath is not obeyed or because lawyers do not adhere to the canons of ethics or because judges don't carry out their oaths of office, disrespect for the rule of law is bred and the people mistrust the system. And when they do that, they resort to other means of resolving their disputes.

    Now, today's hearing focuses on the third element, and that is the oath; in particular, what effect perjury has on the system of justice. One way to illustrate what perjury can do to the administration of justice is to imagine a pool of water, a pond, and you drop a pebble into the pond. The pebble is perjury, let us say, and it creates a ripple effect. The extent of the ripple effect depends on the extent to which the perjury is material, is important to the matter under inquiry, to the truth-seeking process.

    Now, what happens with the ripple effect is that perjury of that sort implicates the judicial system and the parajudicial system, we'll call it. It may require -- for example, if it occurs in a case that is on trial, it may require a continuance of the case. It may require a mistrial. It may require more discovery. In a criminal case, it could likewise carry the same -- a mistrial or require a continuance. If it's a pretrial proceeding of some sort, other machinery of the courts may have to be brought into play, because the natural tendency is to counteract perjury with other evidence in order to shed light on the truth.

    And when that occurs, the courts are taxed in the sense that they cannot be made available to other litigants who are standing in the pipeline ready to be served. The courts have to expand themselves and their processes to accommodate the perjury, and that is called obstruction of justice. The perjury in that circumstance impedes the due administration of justice. It causes, as I say, delay and expenditure of judicial resources. And it precludes a summary disposition in many times of cases.

    So, with that, Mr. Chairman, I'll conclude my opening remarks. I'm sure there will be questions later.

    REP. HYDE: Very well. Judge Wiggins.

    MR. WIGGINS: Thank you, Mr. Chairman. I want to make it clear that I'm here as an individual, at the request of Chairman Hyde.

    REP. HYDE: We can't hear you.

    MR. WIGGINS: I'll speak right into it. All right -- that I'm appearing today as an individual and not as a member of the ninth circuit. I am appearing here at the request of Henry Hyde, your chairman. And I'm honored to be here in his company today.

    I have a problem. I'm just about blind, and I can't read my remarks. But I have prepared remarks and I've submitted them. If you have questions of me, I'll be sure that they're written down, and I'll respond after I get back to my magnifying machine that permits me to read.

    Well, the question asked by Chairman Hyde was whether I would state my views concerning the impeachability of perjury and obstruction of justice, and that's an easy question to answer. Of course, they are. They're impeachable. And I don't think there should be any debate on that subject. But the debate should occur ultimately before the House of Representatives on whether or not the president should be impeached.

    Now, there is no question he is vulnerable. And I think that indicates to the committee what its responsibility is. Is there probable cause to believe that President Clinton has committed impeachable offenses, namely perjury and obstruction of justice? And we can question the legitimacy of the testimony, but I think there is little doubt that the president is vulnerable, could be impeached.

    But that doesn't preclude a second judgment by you as a member of the House to vote in the public interest on the question of whether the president should be impeached. That question troubles me greatly. I believe that the committee is within its responsibility to report articles of impeachment to the House as a matter of law and as a factual matter, too. I confess that there are factual issues, too.

    But I resolve those questions in favor of the committee voting to impeach the president. But that doesn't preclude my second guess as a full member of the House. When you are called upon, as I think you will be called upon, to vote as a member of the House of Representatives, your standard should be the public interest. And I confess to you that I would recommend that you not vote to impeach the president.

    I'm not a fan of impeachment, as you know, but I find it troubling that this matter has grown to the consequence that it now occupies on the public screen when the president has lied -- I think he has lied, but the issue is whether the president should be impeached. And you're ultimately going to be called upon to cast your vote in that regard. I would urge that you not vote to impeach the president.

    I want to send some sort of clue to you about my own research concerning the impeachability of offenses. I find it very troubling that the Judiciary Committee seems to be willing to impeach a president for such vague concepts as obstruction of justice. I find that there is not any necessity that the president know that his acts were impeachable, that he was obstructing justice or abusing power, rather; abusing power at the time he did them.

    That's true with respect to President Nixon's impeachment experience and it's true today. There's some talk about impeaching the president for abuse of power. I think that's too vague. The president is entitled to notice, some notice, that he is performing acts that are wrong and that he did those acts notwithstanding that notice.

    I think the text of my remarks speak for themselves, and I'll stop at this time, Mr. Chairman.

    REP. HYDE: Thank you, Judge Wiggins. Judge Higginbotham.

    MR. HIGGINBOTHAM: Mr. Chair, when I was 35 years old, about the age of Congresswoman Watts (sic), I became a United States district judge. I had that coveted honor for 29 years. I retired about five years ago, so that I'm talking solely as an individual. But I have enough absolute confidence to say to you that I do not speak only for myself. My wife read the speech, and she concurs. (Laughter.)

    I have, in my first two books, spent hundreds of hours going over Foran (sp) and Elliot (sp), who were the two prior major scholars who give us the whole American legal history. And maybe I should start by quoting them. But as I listen today and as I've heard you before, I don't think what this illustrious body needs are quotes from Madison or Mason or Benjamin Franklin, but quotes from a person known as Luther Standing Bear, a member of the Lakota Tribe, who said, "Thought comes before speech."

    And the more I have reflected on it, it seems to me that that is the critical issue. Do we have the capacity, when dealing with one of the most important constitutional issues which this committee will ever have, to pause and to give thought before you speak and before you vote?

    I have filed a very detailed statement with all of the things that academicians do, with footnotes, which will satisfy those who want footnotes. And as I listened to the debate this morning, I heard a spectrum of profoundly conflicting views. Some argued very convincingly that there is a scintilla or maybe more than a scintilla of evidence to justify a perjury prosecution. And others, I thought, with extraordinary good sense, questioned whether this case had the probative weight to make the critical judgment that's necessary.

    And I came to the conclusion that I could not put your thoughts together, and therefore, in my document, I use the words which every great appellate lawyer uses. When you want to test the (core?) and the phrase "assuming (arguendo?)," is there a cause of action? Assuming arguendo that all of the adverse evidence that has been alleged by my adversary, is there a prima facie case?

    And I will assume, for the purposes of analytical discussion, that some reasonable people could find a prima facie case. But if you're going to understand my good friend Luther Standing Bear, that is not the end of the thought but only the beginning. And the thought issue has to be if there is a prima facie case of perjury, does that establish a basis for the unique punishment inherent in impeachment?

    Now, Justice Frankfurter -- and I don't have to tell my good friend Elliot Richardson, because he heard it so many times -- would often say, "If I can define the question, I can determine the answer." For me, the proper question is, even if there is perjury, is there a basis for impeachment?

    And in the document which I've submitted to you, quoting and relying on the historians who've appeared before you -- Professor Holder of Virginia, Professor Sunstein and others -- I don't believe that this case reaches the narrow category of egregious or large-scale abuses of authority that comes from the exercise of distinctly presidential power. And that does not mean that there's any prerequisite to justify the president's conduct. But we are not talking about grand theater, we are talking about a profound constitutional inquiry, which few generations of Congressmen have ever had to make. And it is on that platform, that I would like to address my comments to you.

    And when you've been teaching in law school, the one thing you always try to test the students on, is a hypothetical. You are much too smart to be students, and I'm much too old to not be a professor.

    So, let me give you what -- if I were teaching my class at Harvard, the hypothetical I would present to them. I would say, suppose that on January 17, 1998, and on August 17, 1998, which are the two dates on which President Clinton testified, that he appeared before a grand jury, and that his testimony was that when he was driving his automobile in a 50-mile per hour speed zone, that he said he was going 49, but the record demonstrates, beyond a reasonable doubt, that he was going 55. And it would demonstrate that he knew that he was going 55, and therefore you have perjury material to that inquiry, could the president of the United States, under those circumstances, be removed from office, because he gave a false statement about the speed of his car, in a grand jury inquiry?

    For those of you who use the word "per se" abstract, as if it is a formula which covers everything, then it would be impeachable. I submit to you, that perjury has gradations. And I spend a lot of time in my paper, suggesting to you that there are gradations of perjury. Some are serious, and some are less. And though I do not applaud the president for what he did, for impeachment purposes, there is not much difference between someone who testified falsely on a speeding incident, and someone who testified falsely about his relationship in a sexual matter voluntarily with a private person.

    So therefore, that's one point I think you've got to clarify. Are you going to follow a per se perjury rule, or will you look at gradations. We look at gradations of perjury, even under the sentencing rules, and I cite them here to you.

    Now, let me press the doctrine a little more. Now, the two ladies who testified today, I respect them as decent human beings, who, like all of us, or maybe like me, have frailties, who may not have had the level of perfection which some of you have -- (scattered laughter) -- so, they had frailties. And they were sentenced.

    But what is the relevance? What is the probative relevance of what they did, compared to impeaching a president, one who got 49 percent of the votes of the citizens of this nation? If they are sentenced, the presidency still holds up. But in the Jones case, there was a powerful, concurring opinion by Justice Breyer. And in that concurring opinion, he said, "the president is the most indispensable person in America." You cannot equate the Presidency of the United States, with a basketball coach from South Carolina. And that takes not a thing from her excellence, and the human empathy which we must have for her.

    And there are other concerns I had, when I heard the word "double standards." And if you were a student in my class, I would have started a real Socratic inquiry: "What do you mean about `double standards'?"

    Under the statute, the president of the United States can be treated just like they were. The only difference is a time delay until January 20th. That is not an issue that he has immunity. It is a question of delay. And the Founding Fathers, when creating this Constitution, were concerned about the complexity of government, that they had a whole series of rules --

    REP. HYDE: Pardon me for interrupting you. But I know the light's been on for about 10, 12 minutes.

    REP. COBLE: (Off mike.)

    REP. HYDE: I was going to ask the judge if he could bring his remarks to a close.

    REP. COBLE: Judge, no discourtesy to you. I was just thinking about the other folks on the panel.

    MR. HIGGINBOTHAM: An eminently fair comment. So, let me look at Congress.

    REP. HYDE: That's a terrible way to repay fairness, Judge.

    MR. HIGGINBOTHAM: Mr. Chairman, at least I tried. If you're talking about double standards, look at Dombrowski (ph) versus Eselman (ph), which stands for the proposition that members of the United States Congress can go on the floor of the House, and commit what in a private setting would be libel. They can say things -- I know none of you do it -- which are malicious, which are even fraudulent, and you have absolute immunity from any liability whatsoever. And that has been applied to judges in Stump (ph) v. Starkman (ph), to prosecutors in Emblen (ph) v. Patchman (ph), and to witnesses in Briscoe (ph) v. Lahue (ph).

    So therefore, we don't have a single standard in the operation of our society. We do have some situations of special privilege, and I think you, Mr. Chairman, for your extraordinary indulgence. (Scattered applause.)

    REP. HYDE: Thank you, Judge. Mr. Richardson. Ambassador Richardson.

    MR. RICHARDSON: Mr. Chairman and members of the committee, thank you for giving me this opportunity to share with you my perspective on the responsibilities thrust upon you by President Clinton's conduct. It is a perspective gained from experience, not only as a United States Attorney-General, but also as a state attorney general, and United States Attorney.

    In fact, I may well be the only person who has held all three of those jobs. I will be glad, of course, to respond to your questions, and hope that my testimony will, in the end, have contributed to saving more time than it costs.

    As you have reminded us, Mr. Chairman, the principal focus of this hearing, is on the consequences of perjury and related crimes. That certainly has to be the area of your and your fellow citizens' primary concern. It does not follow, however, that there needs to be comparable emphasis on evidentiary matters. There is no material difference, indeed, between the Starr Report's allegations, and the president's admissions. It is accepted that he did in fact, over a period of months, deny, withhold, and misrepresent the truth as to his relationship with Monica Lewinsky.

    This committee, moreover, has no need to decide whether or not these lies constitute, quote, "perjury," unquote, as that term is defined by criminal law. Taking into account the number, decisions, and context of these lies, as well as the fact that they were deliberately intended to mislead bodies officially charged with pursuing the truth, you could reasonably regard them as warranting impeachment, even though they may not come within the definition of perjury.

    But Article II, Section 4 of the Constitution, specifies that on conviction by the Senate for an impeachable offense, the only available penalty is removal from office. To contemplate impeachment, therefore, is to raise the question of whether or not the circumstances justify so drastic a penalty.

    The members of this committee, I submit, already have all the information they need, on which to base their own individual answers to this question. If a majority of you conclude that the answer to this question should be no, it's obvious that the actual adoption by the House of Representatives of impeachment charges, will be pointless. Worse, such action would automatically transmit those charges to the Senate for trial, thus indefinitely prolonging a final resolution to this matter. The Senate itself, meanwhile, would have no alternative but to convict or acquit; no intermediate outcome would be possible.

    This body, by contrast, is in a position, right now, to submit to the House as a whole, its best judgment as to an intermediate course. And since, unlike a judicial sentence, such an outcome -- censure or rebuke, with or without a formal acknowledgement of guilt -- cannot be made proportional in severity to the seriousness or number of the offenses charged, an attempt by the House to make the grounds for its intermediate action seem more precise, would serve no useful purpose.

    To my mind, the intermediate course offers the most appropriate and least destructive solution. The initial wrongdoing was not criminal, and did not, in contrast to that of Richard Nixon, entail the abuse of power. Given a president's unique status as the Chief Executive, whose authority derives from a vote of the American people, his crimes or misdemeanors, should, in order to justify his removal, have to be higher than those that issue here.

    Thank you, Mr. Chairman. That completes my prepared statement.

       


    REP. HYDE: Thank you, Mr. Richardson. Admiral Edney.

    ADM. EDNEY: Good afternoon, Mr. Chairman. It is a pleasure to appear before your distinguished committee today. I ask that you bear with my voice today. One of the benefits of reaching my stage in life, is that you get to take your grandchildren to the Macy's Day Parade. (Laughter.) Those that witnessed it this year, it rained the entire time. But I did enjoy my time in the Big Apple.

    In view of my particular experience as a career military officer, serving this nation's defense needs for 37 years, I will focus my remarks on the importance of ethics and integrity in the military chain of command of this great country. And at the top of that chain of command, as we all recognize, is our Commander-in- Chief.

    We live in a society that more and more, is transmitting a confused message on the subject of ethics and integrity, so much so that it often makes one wonder if we are losing our way. Faced with this reality, the Armed Forces have concluded all personnel must be inculcated repeatedly with the requirement and expectation that military leadership must evolve from a foundation of trust and confidence.

    Ethics and integrity of our military leadership, must be much higher than the society at large. And even the elected officials that serve that society.

    Success in combat, which is our business, depends on trust and confidence in our leaders, and in each other. Ethics and integrity are the basic elements of trust and confidence, both in our military leadership in matters from above, and more importantly, from below.

    So today, in our military, we are asking our people: What is right? Why do what is right?

    The moralist answer is, "Because it is the right thing to do." Our answer is, "Because the trust and confidence required of our profession, demands it." This trust and confidence must exist up and down the chain of command, where operations require execution of orders that endanger lives.

    Doing what is right, based on the whole truth, must be natural and automatic for the American military officer. Whenever one reflects on the need for ethics within the military profession, as executed by those who have the privilege of leading the American soldier, sailor, Marine, airmen and Coast Guardmen in the duty of defending our national security interests, I believe it is necessary to reflect on the roots of our nation.

    For it is there where the higher calling of this nation -- some call it a moral purpose -- that we serve today, began . We must never forget the values that this nation was founded on. They are marked forever by the lives of those who fought and gave the ultimate sacrifice for those principles and belief.

    I will submit to you, while there are many effective styles of leadership, two essential ingredients of successful military leadership, are integrity and ethics. Rank and high positions do not confer privileges. They entail unavoidable responsibilities and accountability.

    Young Americans -- and that's who fights, and lose their lives in our wars, and we should never forget it -- young Americans in our military, place their leadership on a pedestal of trust and confidence, when they earn it. The troops have the right to expect unfailing and professional performance and integrity from each level of leadership. As military leaders at all levels, we need to consistently display that match between words and deeds, between laws and compliance, between institutional values and behavior.

    Now, the catch is, this match must take place 24 hours a day. There is no duty time, and then off time, where you can "let your hair down," and not represent these basic values. There can be no compromise on this issue, in a profession where the ultimate you can demand of a subordinate, is that he or she lay down their life in the execution of your orders on behalf of this country.

    When all is said and done, military leadership must have a moral base, a set of ethical values, to keep us true to the high ideals of our forbearers, who provided us the cherished inheritance of freedom and justice.

    The integrity of an officer's word, signature, commitment to truth, concerning what is right, and acting to correct what is wrong, must be natural, involved, and rise to the forefront of any decision issued. Leadership, by example, must come from the top. It must be consistent with the highest standards, and it must be visible for all to see. "Do as I say and not as I do," won't hack it in our military.

    This country is firmly entrenched in the principle of civilian leadership of our military, and the authority of the president of the United States. Therefore, I believe those who hold that leadership position, to be credible, should meet the same standards. America and her Armed Forces have always stood on the side of right and human decency. You do not throw these core values away, in the process of defending them. You also do not lower the bar of ethical standards and integrity, when individuals fail to live up to them.

    We must continue to remove those who fall short, and seek those who meet and exceed the requirements. Lower standards and less accountability at the top, will undermine the trust and confidence so essential to good order and discipline, as well as mission success.

    REP. HYDE: Admiral, can you bring your remarks to a close? Thank you.

    ADM. EDNEY: Military leadership requires asserting what is right, and what is wrong. When there are any number of courses of action that can take, mistakes will happen, and can be directed, usually with a positive learning curve. The cover-up of mistakes and responsibility by lying or obstruction, cannot be tolerated.

    The leadership of our armed forces must be based on principle, not litigious double-talk. Thus, the leadership traits of our military, as well as the civilian leaders of the military, must demonstrate, above all else, a commitment to integrity and ethics on a daily basis.

    In summary, we must learn from our past mistakes, but we must get on with the business at hand, and focus on the future, not our wake. Military readiness and mission accomplishment, depends on the trust and confidence in the integrity of our leader. The actions of the leader, are more important than the words. It is important for those who lead, to know what you stand for. It is also important to know what you won't stand for.

    Finally, regardless of what the exit polls say, the character of a nation and its leaders does matter. And it matters most to those who are prepared to lay down their lives for that nation. Those entrusted with the defense of our nation, are in the risk- taking business.

    Finally, our leaders must eschew obfuscation in all we do. Our national leaders must talk straight, with integrity on every issue. If we lie to ourselves as an institution, or as individuals within that institution, we are laying the seeds of our own individual and national destruction.

    Thank you for the privilege of addressing this committee.

    REP. HYDE: Thank you, Admiral. Lieutenant General Carney.

    GEN. CARNEY: Thank you, Mr. Chairman and members of the committee. I've been asked to testify on the importance of the code of ethics, and particularly integrity to the effective leadership of military forces. I emphasize, as you did, Mr. Chairman, I am speaking for myself as a private citizen, who happens to be a retired Army Lieutenant General, and I'm not speaking for the military.

    Prior to attending West Point almost 40 years ago, my Jesuit high school mentor made me aware that I would have to swear an oath, and that I'd better be comfortable with it. When I read it, I found it to be an oath I could live with. Later, at West Point, i learned how unique it was in military history.

    American servicemen and -women, they swear allegiance to the concepts embodied in a document. We do not swear allegiance to a king or a president, or the motherland, or to the regiment. We swear to support and defend the Constitution of the United States against all enemies, foreign and domestic, and to bear true faith and allegiance to the same.

    Even in retired status, we live by that oath. Indeed, even in retired status, we are subject to the Congress's body of law for the military, known as the Uniform Code of Military Justice, include Article 88, which precludes contemptuous words against the president. I intend certainly to not make any such remarks today, although I believe actions to which he admitted, he would find personally to be contemptuous.

    Of course, also included in that oath, is that we will -- and I quote -- "obey the orders of the President and the officers appointed over me," end quote.

    That's in the oath, and that is not negotiable. We have a professional military today, the best the world has ever seen. It's not a drafted military, as the one I first joined. It's a military that's guided by its oath, and by its supporting code of ethics. Regardless of the service, as the Admiral has pointed out, these codes are quite similar, but I'll discuss the Army's in particular, with which I'm most familiar.

    The first of those codes I encountered, was the West Point motto, "Duty, Honor, Country," three simple words that I still study today. The boundless nature of the word "country" is best described in Article I of the Prisoner of War's Code of Conduct, quote, "I am an America fighting man. I serve in the forces which guard my country and our way of life, and I am prepared to give my live in their defense."

    The word "honor" includes all the chivalrous aspects of the word, including integrity. Integrity was very clearly delineated for us in the Cadet Honor Code, quote "A cadet does not lie, cheat or steal, nor associate with those who do." No one ever made a distinction about whether or not you were under oath or not.

    The rationale for the code went beyond the notion that honorable men do not lie, cheat, or steal. It included the reality that battlefield reports impact decisions that affect the outcomes of battles, and the lives of soldiers. Consequently, soldiers don't want to serve with or around other soldiers that they don't trust.

    For this trust to exist, the military must insist on the highest standards of integrity. And the word "duty" in the "Duty, Honor, Country," motto, said to us that we are not just prepared to give our lives, we are prepared to live tough lives as well. So today, soldiers are months away from their family, serving in Haiti, Bosnia, Croatia, Macedonia, Kuwait, the Sinai, Korea, Central America, and elsewhere.

    Now, there have been very good efforts over the years, to add clarity to the words "Duty, Honor, Country," and in my view, none has been any better than the recent articulation of the Seven Army Values. This particular is carried in the wallets of all the United States soldiers, and a dogtag, slightly smaller than that, is worn on their dogtag chains.

    Those three words I've discussed, are expounded on in the seven words. "Duty, Honor, Loyalty, Integrity, Selfless Service, Courage, and Respect for Others." Note that integrity has now been separately listed from honor, to add even more emphasis to its importance.

    Why is it important that military services be value-based institutions? There are both external and internal reasons. Externally, to paraphrase a great American, America's military is created by America, is for America, and is from America. It hasn't been any other way for the 225 years of its history, and particularly the last 25, since the draft ended.

    It's not really an all-volunteer army, it's an all-recruited army. And each year, half a million young American men and women have to personally elect to join it, and another 1.8 million have to elect to remain. That is truly from America.

    So, the military must have a positive image, or frankly, we'll have to return to the draft. Despite occasional mistakes and setbacks, the military has been the most admired institution in America for almost two decades, according to the Gallup Poll Survey on Americans' confidence in their institutions. It is my personal view, as an old recruiter, that it can't be any other way. If you erode the value system, then Americans will not be proud to join, nor to stay.

    Fortunately, today's highest military leaders are attuned to this reality, and none of them need to be reminded of the importance of an ethical climate. They talk it, and they walk the talk.

    The internal reasons for having solid values: those half- million who join us every year, come from all backgrounds and all walks of life, and not every one of them has had the advantage of being born to parents like my mom and dad. Not all of them have been exposed to the Ten Commandments and the 12 Points of the Scout law. So the Army has an aggressive program of character development, starting with basic training.

    I'm not so naive as so to think that the Army of a million men and men, active Guard and Reserve are void of weak leaders -- certainly not -- but the good news is that there are systems to weed them out in peacetime so that the terrible wartime consequences can be avoided.

    Will soldiers follow weak leaders that don't abide by the standards I have attempted to describe? The answer is yes, they must, for they are bound by their oath to obey the orders of the president and the officers appointed over me. But the difference between an average unit and the best unit is most often its leaders -- great leaders -- men of character inspire soldiers to do extraordinary things. Conversely, a general malaise hangs over units whose leaders are weak. Soldiers want, indeed deserve leaders who are held accountable for the same standards that they are held. The credibility of the system is at stake when that is not the case. The military cannot afford to have its standards viewed as irrelevant or out of step. Military leadership development programs, the Code of Ethics and the Uniform Code of Military Justice all work together in concert to ensure that the standards are applied equally up and down the chain.

    I look forward to your questions, sir.

    REP. GEKAS: Thank you, general.

    Professor Dershowitz.

    MR. DERSHOWITZ: For nearly a quarter of a century I have been teaching, lecturing and writing about the corrosive influences of perjury on our legal system -- especially when committed by those whose job it is to enforce the law, and ignored or even legitimated by those whose responsibility it is to check those who enforce the law.

    I appreciate very much your asking me to share my experience and expertise here with you today. On the basis of my academic and professional experience, I believe that no felony is committed more frequently in this country than the genre of perjury and false statement crimes. Perjury during civil depositions and trials is so endemic that a respected appellate judge once observed that, quote, "experienced lawyers say that in large cities scarcely a trial occurs in which some witness does not lie." Police perjury in criminal cases, particularly in the context of searches and other Exclusionary Rule issues, is so pervasive that the former police chief of San Jose and Kansas City has estimated that hundreds of thousands of law enforcement officials commit felony perjury every year testifying about drug arrests alone.

    But in comparison with their frequency, perjury crimes are among the most underprosecuted in this country. As prosecutor Michael McCant (sp) concluded outside an income tax violation, perjury is probably the most underreported crime in America. Moreover, there is evidence that false statements are among the most selectively prosecuted of all crimes, and that the criteria for selectivity bears little relationship to the willfulness or frequency of the lies, the certainty of the evidence or any other neutral criteria relating to the elements of perjury.

    Historically I think we can all agree that false statements have admitted considerable variation and degree. The core concept of perjury grows out of the Bible, the Ten Commandments, "bearing false witness," a term that consisted in accusing another falsely of a crime. Clearly the most heinous brand of lying is the giving of false testimony that results in the imprisonment of somebody who is innocent. Less egregious, but still quite serious, is false testimony that results in the conviction of a person who may be guilty, but whose rights were violated in a manner that would preclude conviction if the police testified truthfully. There are many other points of this continuum, ranging from making false statements about income taxes to testifying falsely in civil trials. The least culpable genre of false testimony are those that deny embarrassing personal conduct of marginal relevance to the matter at issue in the legal proceeding.

    I think it is clear that the false statements of which President Clinton is accused fall at the most marginal end of the least culpable genre of this continuum of offenses, and would never even be considered for prosecution in the routine cases involving an ordinary defendant.

    My own interest in the corrosive influences of perjury arose from two cases that I appeared in as a young lawyer. In both cases the policemen were caught committing perjury -- one on tape and the other by his own admission. In both cases the policemen were promoted, not prosecuted. Neither of those policemen were called to appear as witnesses here today. All reports on the persuasive -- pervasive problems of police perjury and tolerance of the lying by prosecutors and judges point to a widespread problem. The Mullin Commission in New York for example concluded that the practice of police falsification is so common that it has spawned its own word, "testilying." Officers who commit falsification to charge -- serve what they perceive to be legitimate law enforcement ends are committing perjury. The commission provided several examples of perjured cover stories that had been suggested to young officers in order to make arrests.

    Many judges who listen to or review police testimony on a regular basis agree with Judge Alex Kozinski of the Ninth Circuit, who said it's an open secret long shared by prosecutors, defense lawyers and judges that perjury is widespread among law enforcement officials. Yet there is little apparent concern to remedy that serious abuse of the oath to tell the truth, even among those who now claim to be so concerned with the corrosive influences of perjury on our legal system. This committee, for example, pursuant to its oversight mandate, has never to my knowledge conducted hearing on this deeply corrosive issue, which has far more dangerous impact over our legal system than anything charged against President Clinton. If this were truly today an objective hearing on the consequences of perjury or on double standards, it would focus on the most serious types of perjury -- that committed by police with the approval of prosecutors and judges. Yet we see no such concern.

    A perfect example of the selective morality regarding perjury occurred when President George Bush pardoned the former secretary of defense, Caspar Weinberger, in 1992, even though the evidence was absolutely clear and convincing.

    The real issue was not the couple of convicted perjurers who appeared before this committee today, or the judges who condemn the evils of perjury, but the hundreds of thousands of perjurers who are never prosecuted and who this committee does not seem to care about, many for extremely serious and calculated lies designed to undercut constitutional rights of unpopular defendants, and the judges who say nothing and do nothing about this corrosive phenomenon. You could not fit into this room or into this building all of the people who testified more perjuriously than President Clinton and were not ever prosecuted.

    If we really want to reduce the corrosive effect of perjury on our legal system, the place to begin is at or near the top of the perjury hierarchy. If instead we continue deliberately to blind ourselves to pervasive police perjury and other equally dangerous forms of lying under oath, and focus on a politically charged tangential lie in the lowest category of possible perjury, hiding embarrassing facts by evasive answers to poorly framed question, which were marginally relevant to a dismissible case, we will be reaffirming the dangerous and hypocritical message that perjury will continue to be selectively prosecuted, as a crime reserved for political or other agenda-driven purposes.

    A Republican aide to this committee was quoted in the New York Times as follows: "In the hearing we'd be looking to whether it's tenable for a nation to have two different standards for lying under oath, one for the president and one for everyone else." On the basis of my research and experience, I am convinced that if President Clinton were an ordinary citizen he would not be prosecuted for his allegedly false statements. If President Clinton were ever to be prosecuted or impeached for perjury on the basis of the currently available evidence, it would indeed represent an improper standards, a selectively harsher one for this president and perhaps a handful of other victims of selective prosecution and the usual laxer one for everyone else, especially police perjurers. Thank you. (Applause.)

    REP. GEKAS: The members of the committee will refrain from demonstration. That is not part of the decorum of this committee.

    The gentleman -- the time of the witness has expired, and we now turn to Professor Saltzburg.

    MR. SALTZBURG: Thank you, Mr. Chairman, members of the committee. The conflict among you is as understandable as it is palpable. On the one hand it is totally unacceptable to anyone interested in fair and equal justice to say that if the president committed perjury in a federal court, or before a federal grand jury he should get away with it, because he's president -- the economy is good or we are at peace.

    We cannot excuse perjury in the most highly publicized case involving the most powerful official. We expect the oath to be taken seriously by future witnesses. On the other hand, our Constitution uses carefully chosen words when it limits impeachable offenses to bribery, treason or other high crimes and misdemeanors. There's a strong argument that perjury, offensive as it is, does not amount to corruption of or abuse of office, when the false answers relate to questions that do not address the president's official acts and duties.

    There is reason -- good reason then -- why members of the committee, the full House and the public are conflicted. They want to condemn lying and deceit and have their government teach that truth matters, while at the same protecting this president and future presidents from the impeachment charges that do not rise to the level of misconduct that would justify removal from office.

    Is there a way to resolve the conflicts, condemn lying and deceit, affirm truth and limit the scope of impeachment at the same time? I think there is, and that is what I want to talk about. Judge Starr testified -- accurately, in my view -- that some of the answers that the president gave in the Paula Jones deposition were, quote, "not true," end quote, or were, quote "false," end quote. This is very different from saying as some have that the president committed perjury in giving these answers.

    An example will help to make my point. During the Jones deposition the president was asked to use a very carefully crafted definition of sexual relations. That definition defined certain forms of sexual contact as sexual relations, but for reasons known only to the Jones lawyers limited the definition to contact with any person for the purpose of gratification. It is not at all clear that the president's interpretation of the definition of, quote, "any person," end quote, as meaning other than himself was unreasonable. The question could have been worded much more clearly. And crass and unkind as it might be to suggest it, it is also unclear whether the president sought to gratify any person but himself. Thus his answers might in fact be true rather than false.

    Now, some of you will wince and say, "Aha, semantics -- word- smithing." But you must face the fact that you cannot investigate perjury allegations without considering the state of mind and intent of the witness. And all of the things that might be on a witness's mind are relevant to a perjury inquiry. Indeed, once you recognize the difficulty of investigating perjury, the beginning of an answer emerges to my question of how to resolve the conflicts that divide you and the American people.

    In considering past impeachments involving federal judges, who can be indicted while in office, the Congress generally has waited to let the criminal process work. Only after a judge was convicted of perjury did you consider impeachment. The president's unique constitutional role makes it unlikely that he can be indicted and/or prosecuted while in office, so you do not have the option of waiting. But you do have the option of deciding that allegations of perjury that do not involve corruption of or abuse of office should not give rise to impeachment investigation or charge because perjury is an elusive crime to prove, involves subjective judgments that are especially difficult to make in a politically charged environment. And when rising out of personal conduct, it is too attenuated from the official duties of the president.

    I respectfully suggest to you that whether or not the president is guilty of perjury, he certainly answered questions in the Paula Jones deposition in a way that intended to mislead the Paula Jones lawyers about his relationship with Monica Lewinsky. I understand the president's predicament. Understanding the president's predicament, however, is not to excuse him. He could have conceded liability thereby avoiding the need to answer questions. He could have refused to answer questions about Ms. Lewinsky and suffered the consequences. He could have sought to make an ex parte submission to the court. He could have done many things, but he was not entitled to mislead the court and the Jones lawyers.

    The president made the wrong choice, and there must be consequences for that. It is my firmly held view, however, that this committee has focused too much on whether the president actually committed perjury. It would be, and it is, dangerous to send a message that testimony is acceptable as long as it is not perjurious. This committee has the opportunity to promote the rule of law and to emphasize the importance of truth in judicial proceedings if it declares that no witness -- not the president, not anybody -- may deliberately deceive a court and deliberate create a false impression of facts. This is not exclusively a Republican or a Democrat notion. It is what ordinary, honest Americans want and expect from their judicial system.

    I refer you in my written testimony to a Washington State case that I tried and won, in which a law firm and a company were punished for making false and misleading, but not perjurious, statements. If you agree with me that misleading a court is wrong, whether or not it is perjurious, then your path is clear and involves two steps -- one is collective and one is individual.

    You should be able to unanimously agree upon a resolution that condemns the president for doing what he obviously did, which was answering questions in the Jones deposition to deceive the court and the lawyers, to condemn the president for defending that conduct before the grand jury, and to condemn him for lying to the American people. Such a resolution is perfectly consistent with your constitutional responsibilities. Nothing in the Constitution suggests that when a president engages in conduct that is reprehensible but not impeachable the Congress must be silent. Any resolution passed by both houses of Congress would be placed before the president. Placing such a resolution before him would enable him to act with honor by signing it, or to veto it and face the condemnation of the American people. That's the collective step.

    The individual step is equally important. Each of you has the right to communicate, if you choose, your belief that Federal District Judge Susan Webber Wright should consider whether to impose sanctions on the president for his testimony in the Paula Jones case. Even though the case has been settled, Judge Wright retains power to sanction misbehavior in litigation that was before her. I believe it's important for Judge Wright to consider and to impose sanctions on the president. I say this because if I were in the Department of Justice and received strong evidence that a witness in a federal civil deposition lied under oath, my reaction in almost every case would be to refer the evidence to the federal judge to whom the case was assigned. It is hard to imagine using scarce prosecutorial resources to investigate the matter when the court and at least one party in the civil case have every incentive to do the investigation to correct any injustice that occurred and to sanction misbehavior.

    Judge Wright is in many respects the only hero that I see in this matter. Out of respect for the presidency she personally was present when the Jones lawyers questioned the president. She narrowed their definition of "sexual relationship" to protect the president. She fought to make their gag order work, to protect both sides against embarrassment. And though appointed by a Republican president, she found insufficient evidence to justify Paula Jones a jury trial.

    My speculation is that Judge Wright has staid her judicial hand while this impeachment perjury is ongoing, not wanting to intrude or have the judicial branch perceived as even slightly partisan. But if this committee ends its investigation she should punish the president. She should send a clear message to all future witnesses. If she does so she should satisfy any legitimate interest in promoting truth identified by the committee or by the independent counsel. If she does, and you agree to censure his conduct, we will have resolved the conflicts that divide you. In doing so the government will teach the importance of truth and responsibility. We will condemn lying and deceit, and assure that consequences attach to witness misconduct. And we will carefully and properly reserve the political death penalty of impeachment for behavior more closely related to conduct of office than this president's.

    REP. GEKAS: The time of the witness has expired.

    We now turn to Professor Rosen.

    MR. ROSEN: Thank you, Mr. Chairman. It's a great honor to be here today. This is, I think Democratic and Republican members may agree, a brutal and unforgiving time in American politics in which ordinary citizens and their elected representatives are increasingly threatened with punishment for relatively minor transgressions of the kind that the law used to excuse. Responsibility for this unhappy state of affairs can be traced in the post-Watergate era to the explosive conversion of three novel and expanding sets of laws, the sexual harassment laws, the laws prohibiting lies to federal officials, and the independent counsel law. President Clinton deserves his share of blame for the expansion of these laws, and it is only fair that he be held to account for them. Nevertheless, the appropriate response to the allegations against the president lies not in impeachment or in removal from an office but in congressional censure combined with the possibility of criminal prosecution or civil sanctions after the president leaves office.

    This committee I think deserves great credit for focusing the attention of the nation of the ways in which people can and are severely punished for highly technical violations of the laws against lying. And in that sense I thought the testimony this morning was terribly useful. But it's surely significant that neither the independent counsel, nor anyone else to my knowledge, has been able to identify a case where a defendant was prosecuted, let alone convicted, for peripheral statements in a civil proceeding that he or she did not initiate in order to derive some kind of benefit. This coincides with the traditional reluctance in American law to prosecute perjury based simply on statements asserting one's innocence. Because defendants have traditionally been viewed as inherently unreliable, their testimony, unlike that of witnesses, was not taken under oath until after the Civil War. Judges recognized that the instinct for self- preservation is so strong that a guilty defendant will naturally be tempted to lie to protect himself. And it was considered a form of moral torture to force an accused to choose between incriminating himself on the one hand and facing eternal damnation for betraying his oath to God on the other.

    In Clinton v. Jones the Supreme Court established that a sitting president can be sued and personally deposed, and his private life subject to wide-ranging discovery, even about conduct that preceded his inauguration. In an increasingly partisan environment, any remotely plausible lawsuit against a president will find ample funding, and inevitably there will be a clash of testimony. Now in ordinary civil suits this is nothing to worry about. Assessment of credibility after all is the main function of a jury, and people who lie in civil depositions are ordinarily punished by losing the case rather than being prosecuted for perjury. Paula Jones for example is not threatened for a perjury prosecution, even though she may have misstated the degrees of her salary increases.

    If this president is impeached for lying during civil discovery, however, every time a future president's testimony is contradicted under oath an impeachment perjury may have to be triggered. The country and president will again be distracted in ways whose costs are hard to measure.

    The most serious allegation against President Clinton is that he may have committed perjury before the grand jury when he contradicted Ms. Lewinsky's assertion that he touched her breasts and genitals with an attempt to gratify her. It seems implausible on the one hand that the core of the president's defense to the charges against him is that he didn't intend to arouse or gratify Ms. Lewinsky when he touched her. But wouldn't it be equally implausible to impeach the president of the United States on the grounds that he committed perjury when he denied that he intended to arouse Ms. Lewinsky? This committee chose not to ask the president to clarify his state of mind about this embarrassing subject when it submitted 81 questions to him. And therefore an impeachment count on this ground might fall short of the clear and convincing evidence standard that governed you during the Watergate impeachment hearings.

    This is an indiscrete subject, but let me close with a call for prosecutorial discretion. Many of you are understandably concerned about establishing a double standard. Why should ordinary citizens be convicted of perjury for lying about sex while the president escapes punishment? But this concern is unfounded. If you exercise your discretion not to impeach the president, he will still be subject after he leaves office to precisely the same legal penalties as the witness who testified so movingly before us this morning, possible criminal prosecution and conviction as well as possible civil sanctions or disbarment. Indeed, you may well choose to rebuke the president with a reputational sanction that no ordinary citizen faces -- a congressional resolution of censure.

    The Lewinsky investigation has been in many ways a nightmare for the country. But it has also been for all of us a constitutional education, reminding all of us that even well intentioned laws can have illiberal consequences when they are expanded beyond their historical roots. By reclaiming your constitutional duty to exercise the sole power of impeachment, which includes the power not to impeach, you can offer the country an aspiring example of statesmanship while at the same time rebuking the president for his reckless conduct in a way that will remain a permanent part of his legacy. Thank you.

       


    REP. GEKAS: Thank you very much, Professor Rosen.

    We will now begin the five-minute rule exposition of the members of the committee. We'll begin with the five minutes granted to the gentleman from Michigan.

    REP. CONYERS: Thank you very much. I want to thank every one of you who have been here today. For us the wait was worth it. We only hope that it has some small measure of fulfillment for you. I commend everyone here.

    Let us talk in terms of the realities that confront the 37 members in front of you. How do we move toward the exit door with some small measure of grace, Judge Higginbotham? How do we put a wrap around this so that this hearing -- this inquiry when it is studied by future scholars, by other members on the Judiciary Committee -- how do we put an end on it, even though we are so fragmented at this point apparently? But somehow around this one question of perjury, which I think has been discussed very importantly, Professor Dershowitz, and I think we have a frame of reference on it, what do you think we might want to do? Professor Saltzburg has been most explicit about that, and I thank you for that part of it. But would you begin this dialogue with us, please, because that is the key here: How can we find some path of reconciliation that will get us with some small measure of honor out of the door altogether?

    JUDGE HIGGINBOTHAM: Were you talking to me, sir?

    REP. CONYERS: I was.

    JUDGE HIGGINBOTHAM: Well, more than a hundred years ago, when Justice Holmes gave his famous common law lectures he said a page of history is worth a volume of logic. And it seems to me that you have to put this within the corridor of history.

    The other thing is what is on Auschwitz. He who does not know the lessons of history will be doomed to repeat its worst mistakes. And if you just look and reflect upon the fact that there has never been -- never been an impeachment proceeding on this minuscule level then it seems to me you would pause. Everyone talks about the Nixon experience -- but not as it's different -- the difference between zero and infinity. In the Nixon case you're using the Internal Revenue Service -- he was using the Internal Revenue Service -- not patting some woman on the side -- using the Internal Revenue Service to engage in improper tax audits and investigation of political enemies. In the Nixon case he was attempting to obtain confidential information maintained by the IRS concerning political enemies. In the Nixon case he was using the Federal Bureau of Investigation, the Secret Service and other executive personnel to undertake improper electronic surveillance and other investigatory techniques with regards to public enemies. In the Nixon case he was creating and maintaining a secret investigative unit within the Office of the President, which utilizes the resources of the Central Intelligence Agency, engage in covert and illegal activities -- and I could name about eight others which are beyond dispute. Is that comparable to this? If it's not, then I think Justice Holmes was right: a page of history is worth a volume of (allegations ?).

    REP. CONYERS: Thank you so much, Judge.

    Professor Dershowitz, would you elucidate for us please?

    MR. DERSHOWITZ: I think history will not be kind to this committee. History will not be kind to this Congress. I think this committee and this Congress will go down in history along with the Congress that improperly impeached Andrew Johnson for political reasons.

    I think there is no exit strategy that will permit this committee and this Congress to regain any place in history which is going to look positively. It made a dreadful mistake by ever opening up an impeachment inquiry on the basis of sex lies and coverups of sexual events. It's down that line. Now it's getting worse. It's like my typical client. First he commits the crime and then he compounds the crime by making it worse. Now it's becoming worse, because now we are seeing incredible hypocrisy introduced into the debate: "Oh, we care so much about perjury -- what a terrible thing perjury is." The only reason the majority of this committee cares about perjury is because they believe that President Clinton, their political opponent, is guilty of it. They couldn't have cared less about perjury when Caspar Weinberger was guilty of it.

    REP. GEKAS: The time of the witness has expired. And the time of the gentleman --

    MR. DERSHOWITZ: And they don't care at all about perjury by the police, as evidenced by the lack of attention to this problem.

    REP. CONYERS: George Gekas's patience has expired.

    REP. GEKAS: That's absolutely right. Now you may applaud. (Laughter.) (Light applause.) No, please don't take me literally. (Laughter.)

    The chair now turns to the gentleman from Florida, Mr. McCollum.

    REP. MCCOLLUM: Thank you very much, Mr. Chairman. First of all, I sat on the Iran-contra committee, and I do not believe for one minute that Caspar Weinberger committed perjury. But that's beside the point.

    I also am chagrined with some other testimony today that implies that the president of the United States is irreplaceable. I don't think anybody is irreplaceable. I don't think anybody is indispensable. I think Al Gore would make as fine a president as President Clinton. I don't necessarily agree with him politically, but I certainly do.

    I also am very concerned that some have tried to diminish the nature of the perjury and obstruction of justice, which I think there's compelling evidence of. The president committed perjury, from my reading of every bit of the facts we have here -- and I'm really convinced of this, the more I have studied it, and I've studied it a great deal more even this weekend -- when he lied under oath before the grand jury and in the Paula Jones case about whether he had sexual relations with Lewinsky, whether he was alone with her, whether he talked with her about her testimony, and on numerous other occasions.

    And not only that, but it's very clear that long before she was subpoenaed in the Jones case, the president and Monica Lewinsky had an understanding that she would deny and he would deny any sexual relations if anybody ever asked about it. And then when she was subpoenaed, he suggested that she file an affidavit, knowing good and well it was going to be false, and encouraged her to do that.

    And then, when there was a subpoena for her to produce any gifts that he had given to her, that specifically named a hat pin, and she wondered why in the world that was named there and was really worried about it, because that was the first gift she said he ever gave her. He then conspired with her to hide those gifts from the court. And then after that, he encouraged his secretary, Betty Currie, to lie to protect him.

    Now, all of that to me, if proven -- and I think it's been proven in this case, and I think it would be proven in any court of law and a jury would convict him of all of those things -- arises to a very high level of high crimes and misdemeanors. Not only does it do that, but to me as well the problem we see in this is that there is injury to the nation, grave injury, if we find this to be true that the president has committed these crimes and then we tolerate them; then we don't impeach him.

    The real question here today shouldn't be what are the consequences of perjury. The real question is, what are the consequences of not impeaching the president if he has committed perjury and obstruction of justice and witness tampering? What are the consequences? What are the consequences to the courts with respect to that if we look the other way? There are parties to every civil lawsuit. Those parties to every lawsuit out there expect truth to be told.

    And if witnesses that they call or witnesses who are called lie or encourage other people to lie or hide evidence or encourage other people to hide evidence, then the parties to that lawsuit can't get justice. They can't get a fair judgment. That's what undermines the court system. And to have the president of the United States engaging in activities that do that and then we don't impeach him -- he gets away with it, we tolerate it, we don't hold him accountable -- that's the problem. Congress has that responsibility under the Constitution, and I think that's the injury to the nation there.

    And then, with respect to our military, as Admiral Edney, you and General Carney well stated, and Admiral Moorer said in written testimony that he didn't give here today, what about his role as commander-in-chief? When you expect military officers to be the leaders and you expect military officers to be, as Admiral Moorer, a former chairman of the Joint Chiefs of Staff, has said to us, to serve as role models for honorable and virtuous conduct, and you find that we don't hold the president accountable, the commander-in-chief accountable for matters that officers would be removed for, probably court-martialed for, what does that do to undermine our military and our good order and discipline in the military?

    So I have two questions to ask. One I want to ask to Judge Tjoflat. One I want to ask to you, Admiral Edney. Judge Tjoflat, if we find the president guilty of perjury, obstruction of justice and so forth, and do not impeach him, what injury do you believe this could cause to the justice system? Are people more likely to commit perjury in the future if we do that than if not?

    And then, because my time is running out, I want to ask Admiral Edney, if we find the president to have been guilty of perjury, obstruction of justice and so forth, and don't impeach him, what does this mean, since he is the commander-in-chief? Does it mean that we're undermining the trust and confidence you discussed that's central to good order and discipline in the military? Will we be undermining it if we don't impeach him, if we find him guilty of these crimes I've just described?

    Judge Tjoflat, would you first respond? And then Admiral Edney, the other question.

    MR. TJOFLAT: I think your question implies the answer.

    REP. MCCOLLUM: And the answer is?

    MR. TJOFLAT: Well, if that's the committee's finding, then there's going to be an effect on the administration of justice.

    REP. MCCOLLUM: A negative effect --

    MR. TJOFLAT: Yes.

    REP. MCCOLLUM: -- if we don't impeach him.

    MR. TJOFLAT: Well, I don't know about the remedy. All I'm saying is if that is the committee's finding, then you have a negative effect on the administration of justice, if that's the case.

    REP. MCCOLLUM: What about the good order and discipline of the military, Admiral Edney? You described it. I've always heard the term "prejudice to good order and discipline." Could you tell us what that means? And would we be undermining that if we didn't impeach the president of the United States if he is guilty of these crimes that have been described, if we find him so?

    ADM. EDNEY: I don't believe that there's any straight, clear answer to that, because the military of this country serve under a different code, which you have recognized as the UCMJ. And the president operates under the civilian laws. The professional military of this country will perform their duties and loyalty to the Constitution and the office of the president. That is the strength of the military.

    Will it undermine the good order and discipline to have that example? That's like how you ensure safety. But it will not have a beneficial effect in the ability to measure the disadvantages or the adversarial effects as far as who stays in the military, who will come in the military, who will serve, and will the quality of the people -- we need a portion of this country's best to serve in the military. So it's hard for me to put an exact quantitative statement to your question, but certainly it is an issue that will not affect the performance of the military, but it might affect the quality and the numbers that make it a career.

    REP. GEKAS: The time of the gentleman has expired. We turn to the gentleman from Massachusetts for five minutes.

    REP. FRANK: Admiral, let me follow up on that, because I gather you're saying that you can't quantify it. And I appreciate your pointing out we all tend sometimes to be alarmist, and I would certainly agree with you that the people who are in the military now are going to do their best, and we should not assume they are easily swayed from their duty. And people will -- (inaudible) -- from both sides.

    But you said it could have a longer-term negative effect, and that's because the commander, the person right up there in the chain of command -- in the civilian chain of command, but nonetheless in the chain of command -- might be seen to be getting away with conduct and not being held accountable for conduct that would be severely punished in the military. Is that true?

    ADM. EDNEY: What you'll see, in my judgment, Congressman Franks, is a tendency to see the rationale that is being put forth here on the insignificance of lying and the insignificance of adultery and these other issues as then being used as a defense, and in that manner it will undercut the good order and discipline.

    REP. FRANK: We don't have to speculate, because in December of 1992, George Bush, the outgoing president, pardoned Caspar Weinberger, who had been secretary of defense for, I think, six years during the Reagan administration. And while the commander-in-chief is here, the secretary of defense is between you all and the commander-in-chief and he has a very direct relevance here.

    So I guess I would ask you -- now, my colleague from Florida says he's confident that Caspar Weinberger didn't commit perjury. I don't know whether Caspar Weinberger committed perjury or not and will never know, because George Bush pardoned him. He was indicted on four counts, including obstruction of Congress, false statements, and two counts of perjury. George Bush pardoned him after the 1992 election.

    So the secretary of defense, who is obviously very directly in the chain of command in the armed services, was indicted on two counts of perjury and the president of the United States pardoned him. Did that have the negative effect on the military that you're afraid -- and, if not, why not? Because isn't it very similar? The secretary of defense certainly has a relevance to the military. He's in the chain of command.

    ADM. EDNEY: No. First of all, the Weinberger case was never carried forth, so we do not know.

    REP. FRANK: That's right. The president pardoned him. But he was indicted. And the question about whether or not it was carried forth begs the question, because the question is whether we should carry this forth. Caspar Weinberger was indicted. I guess the question is, when George Bush pardoned Caspar Weinberger, was he saying to the military, "Look, he's not going to be held accountable," and did that not have a bad effect to pardon someone before he was even tried but was indicted?

    ADM. EDNEY: No. There is no proof on whether or not Caspar Weinberger committed --

    REP. FRANK: Well, of course there was no proof, because it didn't go to trial. There couldn't be proof. George Bush made it proof-proof. And that's a problem. But it would be similar here. So if we don't move to impeach President Clinton, there won't be any proof either. They're in exact -- in fact, in both cases independent counsel had made charges. In fact, in the Weinberger case, the independent counsel went a step further. He brought indictment. In this case he just came and told us. So they're on the same footing.

    And I have to say, Admiral, if, in fact, this was the case, I mean, my guess is this doesn't have a big effect on morale in either case. And I do want to say, you know, I remember when George Bush pardoned Caspar Weinberger. Les Aspin, the late Les Aspin, who later became the secretary of defense -- he was chairman of the Armed Services Committee -- he praised -- he said it was okay for George Bush to do that. It wasn't terribly partisan. I don't criticize George Bush for pardoning Caspar Weinberger, but I do think what is sauce for the wild goose chase ought to be sauce for the gander, to join our metaphors.

    ADM. EDNEY: Let me make -- excuse me. Pardon my voice. One of the differences is the Weinberger case involves the execution of foreign policy, which is much more complex to understand and the issues involved, whereas the issues involved here are a very common, frequent occurrence in the military, and they get --

    REP. FRANK: I think, A, you're denigrating the military, at least its top rank. I would hope they would understand national security policy. It had to do with arms sales, which I think frankly many of you understand better than I. But also I would say the charge was lying and not remembering. It wasn't some complex question about "Name six ayatollahs and give their" -- I mean, it was not a foreign policy test. It was, "Do you remember?" "No, I don't remember." It happened last week. "Do you know of any such things?" Well, they were in his desk, according to them. He was denying that he remembered things that were in the desk, you know, a little bit (away?).

    I mean, Bill Clinton is being accused by my friends on the other side of perjury before the grand jury because he said, in August of 1998, that the activity began in February of '96 and Monica Lewinsky said November of '95. That's one of the three counts of grand jury, a question of a couple of months' difference in remembering something over two years. Caspar Weinberger was asked for a much shorter period of time. So I disagree with you as to the complexity. And I must say, I think that I unfortunately have to infer a lack of objectivity in your approach to this.

    ADM. EDNEY: I am not implying in either case -- I will say that no matter who does it, whether it's a Republican or a Democrat, if you are found to be guilty of lying under oath under the judicial system of this country, it is a serious offense and it is --

    REP. FRANK: And neither one has been found because of the pardon in one case and --

    ADM. EDNEY: Then there was no conclusion to your questions, if you haven't found guilty Weinberger or the president. I'm not making any conclusions.

    REP. HYDE: The gentleman's time has expired. The gentleman from Pennsylvania, Mr. Gekas.

    REP. GEKAS: I thank the chair. Many of the members who have immediately rushed to the side of President Clinton, as they did from the very first moment that this case began, have already, even from that very first moment, pronounced that the president is guilty of no offense. Even though he lied under oath or may have committed perjury or all these others, it is not an impeachable offense.

    In my estimation, they have issued individual pardons to the president as they sit here as members of Congress. They say he committed these acts. "We don't think that they should be impeachable."

    REP. : Would the gentleman yield for a second?

    REP. GEKAS: I will not yield. But I want to go to a little scene that was erected by Judge Higginbotham and ask if I might use "assuming (arguendo?)" back at you for a moment. The --

    MR. HIGGINBOTHAM: It would be a pleasure, Congressman.

    REP. GEKAS: Yeah. The scene --

    MR. HIGGINBOTHAM: I want you to know that I once lived in your great commonwealth.

    REP. GEKAS: Very good. The scene that you constructed was of the president admitting only to going 49 miles per hour while everybody in the world knew that he was doing 55. Is that what --

    MR. HIGGINBOTHAM: No. I did not state it with the precision -- it's in the question, in my paper. I said the hypothetical was --

    REP. GEKAS: Yes.

    MR. HIGGINBOTHAM: -- the president factually was going 55 miles per hour in a 50 mile-per-hour zone.

    REP. GEKAS: Right.

    MR. HIGGINBOTHAM: He's questioned before a grand jury as to what was his speed.

    REP. GEKAS: He says 49.

    MR. HIGGINBOTHAM: And he says 49, knowing that it was 55.

    REP. GEKAS: All right. Very good. Stop right there. Can you, assuming arguendo, assume also that there is another person involved in this case, a woman or a man or someone whose child was run over by the defendant, who insists that he did not go over 50 miles per hour, but everyone in the world knows that he violated the speed limit at 50, and thus he could amount to be a destroyer of the case of the plaintiff, who insists that negligence or speeding or going over the speed limit is the cause of the great damage to one's family? Is that an assumption that is beyond a scenario?

    MR. HIGGINBOTHAM: I'm perfectly willing to accept your amendment of the scenario. And I'm willing to answer it, if you desire.

    REP. GEKAS: Well, yeah, I will. I'll let you in a moment. But what I'm asking, isn't that tantamount to the Paula Jones case, where Paula Jones, whether you agree or not that she should have been granted the right by the Supreme Court to sue the president of the United States -- by the way, I disagreed with that opinion of the Supreme Court. I still rue the day that the Supreme Court ruled that way in that particular case, but now that's history.

    Paula Jones was entitled, then, under the ruling of the Supreme Court, was she not, Judge Higginbotham, to the pursuit of her rights to find damages against the defendant in her case? Now, if indeed the president and Monica Lewinsky testified falsely in those proceedings in order to destroy the case of a fellow American citizen, to get away with not having to pay damages, to avoid the possibility of being found liable by a jury, to do all of those things, isn't that more serious than just a case of a triviality like a traffic offense, where if it's limited to a traffic offense, all of us would say you're absolutely correct? But when it involves destroying a negligence case or a reckless case of involuntary manslaughter, doesn't it take on different connotations when rights are destroyed by the virtue of false statements under oath? That's a very important question to me.

    MR. HIGGINBOTHAM: No doubt about it. I tried personal injury cases as a federal judge for 13 years as a district court judge, not in your area, sir, but in Philadelphia. I must have had 200 right- angle collisions tried before me where there was a traffic light.

       


    REP. GEKAS: That's why I don't go to Philadelphia.

    MR. HIGGINBOTHAM: And in 200 cases, 199 had the green light on each side, so that -- (laughter) -- so that either Philadelphia has the worst traffic light system in the world, where all the lights are green when they come, or there is something less -- there's a diminution of accuracy.

    REP. GEKAS: What I'm saying --

    REP. HYDE: The gentleman's time --

    REP. GEKAS: I ask unanimous consent for 30 seconds more.

    REP. HYDE: Of course.

    REP. GEKAS: I'm simply drawing the parallel, and you have helped me to draw it, that the added element of the fact that certain other American citizens' constitutional rights, to use the words of Professor Dershowitz, the constitutional rights might be damaged by perjury, where he thinks that should be investigated further, these constitutional rights to sue for damages might have been damaged by the testimony before a grand jury.

    I yield back the balance of my time.

    MR. HIGGINBOTHAM: Do you want me to answer, Mr. Chairman? I'm perfectly willing to, but I don't want to be disrespectful of your ruling.

    REP. HYDE: I'm being instructed that you should answer.

    MR. HIGGINBOTHAM: Well, all that I was suggesting is you can't apply a (per se?) rule, and you have to be factual-specific.

    REP. GEKAS: And you have helped me.

    MR. HIGGINBOTHAM: Okay.

    REP. HYDE: I thank the gentleman. And Mr. Boucher, the gentleman from Virginia.

    REP. BOUCHER: Thank you very much, Mr. Chairman. I'll direct this question to Professor Rosen, Professor Saltzburg and Professor Dershowitz; and following their answers, if others on the panel would also like to comment, and if time permits, we'd be happy to hear from them as well.

    Since the referral to this committee of September 9th by the Office of Independent Counsel, a great deal has been said about the supremacy of the rule of law and the principle of American jurisprudence that no person, including the president of the United States, should be above the law. We've heard statements from witnesses today referring to those principles, and a number of members of this panel have talked about those very important principles in their questions.

    Some have suggested that if one concludes that the president committed a crime such as perjury, the only way to pay service to these important principles is to impeach and remove the president from office. But the constitutional history of the impeachment power suggests that it was not designed as a punishment for individual misconduct on the part of the president.

    Rather it was designed to protect the nation from the conduct of a president who, through his actions, has become a national threat.

    Punishment of the individual for any crimes that the individual may have committed, while he holds the office of the presidency, is expressly provided for in Article I, Section 3, of the United States Constitution. In his testimony before this committee last week, the independent counsel, Mr. Starr, stated that in his view, the president would be vulnerable to the criminal justice process when he leaves the Office of the Presidency, in January of the year 2001.

    He stated that the president at that time could be indicted, tried, convicted and given appropriate sentence for any crimes, including perjury, that were committed by the president during his tenure in the presidency. Mr. Starr also confirmed that the statute of limitations for the offenses that are described in his referral, is five years, and that there would be time remaining with the statute of limitations, to indict and prosecute the president after he leaves office, in the year 2001.

    So, given the fact that the president can be prosecuted for any crimes that he may have committed while in office, and given the fact that the impeachment power was designed for the protection of the nation, not for the punishment of the president individually, should the House of Representatives decide that the president should not be impeached, would you not agree that the rule of law, and the principle that no person is above the law, including the president of the United States, is well served, in the event that he is vulnerable to prosecution, indictment, and trial for any crimes that he commits, while he holds the office of president?

    Mr. Dershowitz, let's begin with you.

    MR. DERSHOWITZ: Theoretically, the president could be prosecuted after he leaves office. The president will not be prosecuted after he leaves office, for several reasons.

    First, this would be a selective prosecution. People who commit acts like the president, are never prosecuted for those acts. Second, no prosecutor in his right mind, would indict a president unless he were confident he would get a conviction. There would be no conviction in this case.

    The problem is, that by Kenneth Starr holding this threat of prosecution over the president and his lawyers, they have made it impossible for the president to come and apologize, and do what many members of this House would like him to do: acknowledge more than he's already acknowledged.

    As a practicing criminal lawyer, I can tell you, no lawyer worth his salt would ever recommend the president acknowledge anything, while there is a prosecution pending.

    So, the answer is very simple. Let Kenneth Starr announce now what he will inevitably announce months from now: He will not prosecute the president. And I have a relatively high level of assurance, that the president would respond, by making statements unlike the statements he has made up to now.

    But don't expect the president to admit complicity, while at the same time encourage the independent prosecutor, to threaten him with prosecution. It won't happen.

    REP. BOUCHER: Let me briefly ask the other two witnesses to respond. And the question is this. Is not the rule of law well served by the president being vulnerable to the criminal justice process, just as any other American is, for crimes that he commits while he holds the office of the presidency?

    Professor Saltzburg.

    MR. SALTZBURG: I want to begin my answer by just saying to the chair, that a couple of us have to leave at five. And I know that by yielding, if there are questions members want to ask, we'd like to be able to answer them. And I want to answer this one.

    It's very clear to me, that there is now a threat of criminal prosecution against the president. I'm very serious when I suggest to you, that but for this committee's going forward, I believe there's every reason to think that Judge Wright, would do what judges ought to do, which is, at the first hint -- not just of perjury, but that the court has been deceived, they ought to take action.

    If you wanted to really send a message to the American people that everybody's equal under the law, and you really cared about honesty and integrity in the court system, what you'd do, is you'd put it in the hands of the court, where it can't be now, because the court, out of respect for a co-equal branch of government, would leave it with this committee.

    There is a solution that would guarantee that the president would be no better off, and no worse off, but for timing.

    REP. HYDE: Professor Rosen.

    MR. ROSEN: I agree with Professor Saltzburg, that Kenneth Starr may indeed bring a criminal prosecution. But I'm interested in the light that your question casts, in the decision that your colleagues on the other side face.

    Those who believe that the perjuries in question are impeachable offenses. What is the likelihood that a jury would convict, cast in the question of prosecutorial discretion. The lying cases suggest that overzealous prosecutors, who bring lying prosecutors, rarely succeed. Oliver North, for example, was prosecuted for lying to you, lying to Congress, and a Washington, D.C. jury acquitted. There are many other cases of citizens who are far more indulgent of lies, because they have common-sense intuitions about what lies should be punished, and therefore ultimately acquitting.

    It seems that if you conclude, that your trier of fact, the Senate, is unlikely to convict, that might indeed be a factor in your decision, as the Grand Inquest of the nation, whether or not to bring an impeachment article in this case in the first place.

    REP. HYDE: The gentleman's time has expired. Mr. McCollum. Mr. Coble.

    REP. COBLE: Thank you, Mr. Chairman, thank you all for being with us, gentleman. Judge Tjoflat, is perjury a more acceptable transgression -- strike that, let me phrase it. Is perjury a less offensive transgression in a civil case, rather than a criminal one?

    MR. TJOFLAT: No. Perjury is the same, regardless of the circumstances. I think that's well settled.

    REP. COBLE: Thank you, sir. That was my thought as well. Admiral or General, I'm familiar with the military imposition of sanctions for fraternization. I've always felt that they should probably be imposed more flexibly. As an enlisted member, I have gone ashore with officers. As an officer, I've gone ashore with enlisted members, and never had any fraternization problems, so that's why I'm thinking the way I do.

    But let me put this to you, Admiral. In the unlikely event -- probably unlikely event -- that an admiral would have a sexual affair with a seaman or a third class petty officer, and it was ultimately revealed, what would be the consequences?

    ADM. EDNEY: The consequences would be immediate removal from the position I held, and a required resignation and potential loss of salary. But say only the first two, removal of office and required resignation, and then it would be up to the Congress what the salary of my retirement would be.

    REP. COBLE: General, I'm sure you concur with that, probably.

    GEN. CARNEY: Well, it depends on the nature of discredit to the service. I mean, if this had become rather public within the command, it was viewed to be detrimental to good order and discipline --

    REP. COBLE: And I'll talk with you all later on ashore one night, about the flexibility of sanctions. We'll do that for another day.

    Professor Saltzburg, Professor Dershowitz says that he believes that history will not smile favorably upon this committee nor upon this Congress. How do you think history will smile upon this committee, this Congress and President Clinton?

    MR. SALTZBURG: Let me say that I think anyone who predicts history, is wrong. (Laughter.) Having said that, I will answer your question. I don't think, that as for this committee, I think that Professor Dershowitz is premature. You haven't reached the judgment yet. I mean, I know some of the press say you have. But if I thought you had, I wouldn't have come today.

    You're struggling with important issues. And if you do your job well -- and, in my judgment, if you decide that there's a better way to handle this than impeachment, that if there's a better way, that history will say you took a difficult task, and you did it well.

    I think, as for the Congress, it depends also on what the committee does. It's hard to know how the Congress will be judged, because it will depend on what you do first. And as for the president, I think tragically -- for any president, I don't just say this about this president -- I think that throughout history, every time the name "Bill Clinton" is mentioned, the name Monica Lewinsky will be mentioned also. And that, for any president, has to be the ultimate tragedy.

    REP. COBLE: Well, my professorial -- you were sitting between the two learned men, so I went in the middle. Let me put a question to the appellate judges.

    Gentleman have you all ever upheld a perjury case that was sent to you by a district court?

    MR. TJOFLAT: Yes, I think many times.

    REP. COBLE: Judge Wiggins?

    MR. WIGGINS: Oh yeah, sure.

    MR. TJOFLAT: I believe that's true.

    REP. COBLE: And Judge Higginbotham?

    MR. HIGGINBOTHAM: Yes, I cite some cases which I wrote in footnote 13, sir.

    REP. COBLE: Well, I see my time is about to expire. I want the chairman to recognize that I beat the red clock again, Chairman. Good to have you with us, gentlemen.

    REP. HYDE: Thank you, Howard. Mr. Nadler.

    REP. NADLER: Thank you, Mr. Chairman. Mr. Chairman, I have a question for the three professors at the end. Professors Dershowitz, Saltzburg, and Rosen.

    We've talked a lot today about equality before the law, that the president should not be above the law. Presumably, he shouldn't be beneath the law either. But he shouldn't be above the law, any more than any other person.

    I'd like to ask the three of you, two separate questions on this. In terms of the fairness of the procedure, I alluded earlier today, to the fact that we are considering impeachment. We're going to be voting on articles of impeachment next week, and so far what has happened, is that an independent counsel gave us a report in which he characterized testimony that he received, or his people received. He reached conclusions from it, conclusions of fact and conclusions of law: "The president did this, the president did that, we know that from so-and-so's testimony, and these deeds amount to impeachable offenses."

    He reached those conclusions. He gave those conclusions to us. The only witness we've had as to that so far, has been the prosecutor, who in effect said "I was right in the report. These witnesses said these things. We conclude that -- or I conclude -- that he committed impeachable offenses, and they are impeachable offenses."

    Now we're told that we don't need -- the prosecution, in effect, doesn't have to call any witnesses before the committee, because after all, they testified under oath at the grand jury. We don't need to hear them, and they're believable, because they testified under oath.

    We're also told that by the defense, in effect, the Democrats here not calling any witnesses, we're pleading nolo contendere, we're essentially admitting the facts. Some of us think the facts haven't been put before the committee, because there is no evidence before the committee, since the prosecutors' opinions and conclusions are not evidence.

    And my first question is, how would you judge all of that? Have we followed any kind of procedure that comports with due process, or is this upside down?

    My second question is a more simple question. The analogy has been made to the grand jury, we don't have to call the witnesses here, we're more like the grand jury, we just have to find probable cause, and pass it on to the Senate.

    Given the precedents, do we need probable cause, do we need clear and convincing evidence? What is our role?

    MR. DERSHOWITZ: I think the two questions really are rolled up into one. If, in fact, Congress is like the grand jury, and if impeachment is exactly like indictment, then what they're doing is flawless. But obviously, the analogy is completely flawed.

    Indictment is the second-most serious act that can be taken in a constitutional government -- I'm sorry, impeachment -- second only to removal.

    When you impeach a president, you have gone down historically and made a very significant decision. Andrew Johnson was impeached. That will live with him for the rest of his life. It doesn't get undone in the rest of our lives, and the rest of the lives of our country. It doesn't get undone, simply by the fact that he was not removed by one vote.

    And so, for impeachment to occur, you need to do what the committee did last time around with President Nixon. You need to hear evidence. You need to make credibility determinations. You need to ask yourself the question, is the evidence -- has it reached a level of clear and compelling evidence, so that you are prepared to go down on record historically, as saying "I am prepared to impeach a president of the United States, to start the process of undoing an election, to in effect implement a legislative coup d'etat," the most dramatic act of check-and- balance.

    To think that it's like an indictment, which could be handled on the basis of hearsay testimony, having a prosecutor come in and say "I've interviewed six witnesses, and this is what they say, because the courts say you can indict on the basis of hearsay," is to misunderstand the difference between a criminal case, and a great constitutional crisis.

    REP. COBLE; Professor Saltzburg?

    MR. SALTZBURG: Congressman, I don't know that you're going to like my answer. But it's going to be shorter -- (laughter) -- and straightforward.

    As one who has watched this committee struggle a little bit, with accusations flying back and forth, let me answer you this way. There was no independent counsel in 1974. There was no one who did that kind of investigation, and it makes all the difference in how you view due process, in my judgment.

    I think that the independent counsel's report, is a fair starting point. I think that it's wrong to suggest that you ignore it and proceed as though it didn't exist, and that it is perfectly fair for the majority to say -- point to the things that we ought to take evidence on.

    I don't see how -- having said that, however -- I don't see how, to answer your first question, certain judgments could be made without witnesses. I don't see how you could make an obstruction of justice conclusion regarding gifts, without hearing from the participants, because as I read the information you have, the testimony is absolutely confusing. You have to hear that. That's one.

    On others, it seems to me, you wouldn't have to hear witnesses. You know what the president said. You heard his explanation. So either you know enough to make a judgment about whether you think this is impeachable.

    As for the standard, you know, there isn't one of the three of us, that can give you much help on this, because you know more about it than we do. We didn't run for office. We didn't go out to the voters and get elected. We're not the ones who held ourselves out there to be criticized, to fight those battles.

    I mean, you know, much better than anybody, what this is about. And what it's about, is a simple question. If you decide to impeach the president, you're saying that it's important enough to paralyze this country for some period of time, because that's what it would be. You've got to decide that it's that important, and if it is, if you reach that conclusion, you'll do it. And I can't. All I can tell you, is that I have a judgment about that. But it's no better than yours. And I don't think I can help you.

    But it's not just indictment. You can indict any individual, anywhere, any time, without paralyzing the country. So the question your ask yourself is, is the quality of the evidence, and the nature of the charges enough to warrant putting the country -- not just the president, but the country -- through that kind of proceeding?

    REP. COBLE: Go ahead, Professor.

    MR. ROSEN (?): I'm not sure that that was shorter than Professor Dershowitz's, but -- (Laughter.) --

    REP. COBLE: (Off mike.)

    MR. ROSEN (?): The one salutary effect of this particular hearing, is to convince people on both sides of the political spectrum, of the deep constitutional problems with the independent counsel statute. And I think this goes to the core of the questions.

    Section 595(c), which requires the independent counsel to advise the House of Representatives of substantial and credible evidence, arguably requires him to turn over raw information. It's arguably a derogation of your sole constitutional authority, Article I, Section 2, to exercise the sole power of impeachment, to allow the independent counsel, or anyone else, to do the narrative project of forming legal conclusions, and judging the credibility of witnesses.

    Clearly, you do have an obligation to engage in independent fact- finding about whether or not the alleged statements in question arise to the technical violation of perjury.

    As to the second question, the Johnson Congress, its name was taken in vain earlier today, and I'd like to say a word on its behalf. The Johnson Congress acted with such constitutional scrupulousness. It carefully separated the lower-level charges of lying in public, drunkenness, and general partisanship, from the abuse of power charge, violating the Tenure of Office Act.

    On that count, and this is an important precedent, I think it was established, beyond clear and convincing evidence. President Johnson didn't dispute that he had indeed -- he was indeed guilty of the charge in question. Therefore, that relevant threshold sets the bar quite high. This is not probable cause. This is a question about which the entire Congress, members from both parties, converged and agreed.

    REP. HYDE: The gentleman's time has expired. The chair will yield himself five minutes. I missed part of Professor Dershowitz's statement, and I regret that. I had to attend to some other business. But I take it there was some concern about this committee being the only engine in the country that's moving in the direction we're moving in.

    And by way of defense for this committee, I am proud of this committee, both sides of this committee. We're fighting, really, for a principle that is submerged in all of the persona that overwhelms this discussion, and the Dow Jones Average.

    And we are fighting for the rule of law, really; what does it mean? What does an oath mean?

    It isn't that you tell a falsehood about 55 miles an hour; it's that you have sworn "to almighty God to tell the truth, the whole truth and nothing but the truth," in a formalized procedure, and that you are the one man in the country who has a constitutional obligation to take care that the laws are faithfully executed. You are the chief law-enforcement officer in the country. And you have taken that oath, and you have cheapened it. You have disparaged it.

    And is that not worth our time and discussion? Does the rule of law -- have you been to Auschwitz? Do you see what happens when the rule of law doesn't prevail?

    Now, I don't leap from the Oval Office on a Saturday afternoon to Auschwitz, but there are similarities when the rule of law doesn't obtain, or where you have one law for the powerful and one for the nonaristocratic.

    That's what we are discussing; the significance of the oath, the significance of truth, the breach of promise when someone lies to you. But when they lie, having raised their hand and sworn to tell "the whole truth" -- I wonder why they don't just say "tell the truth"? Why do they say "the whole truth and nothing but the truth"?

    Evasions, evasions. There are all kinds of lies: There are fibs, little white lies. There is hyperbole, exaggeration and mental reservations, evasions. But then there is swearing "to God to tell the truth, the whole truth and nothing but the truth," and then deliberating deceiving, lying.

    And that's worth -- someone said Paris is worth a Mass. I think that's worth our time to thrash this thing out. I don't know where it's going to come out. I think if many of you -- if Mr. Wiggins, who surprised me today, has his way, we'll pass a Resolution of Impeachment out of here, and it will fail on the floor, and that will end it.

    And what becomes of the rule of law? What has happened to the oath? Has it been cheapened? And what does that mean for the rule of law?

    These are important questions, and what about that "take care that the laws be faithfully executed," have we diminished that?

    MR. DERSHOWITZ: May I respond?

    REP. HYDE: Yeah. If I'm running out of ideas -- (laughing) -- you may respond.

    MR. DERSHOWITZ: Well, I think you've made an excellent point and I think it is crucially important for this committee to be concerned with the rule of law and the importance of the oath. I think this committee is doing a terrible, terrible disservice to the rule of law and to the sanctity of the oath by trivializing the differences, as Judge Tjoflat said in one of the most unbelievably wrong-headed statements I have ever heard from a judge, that there is no difference between types of perjury.

    I challenge anybody to respond and say that there is no difference between a police officer who deliberately frames an innocent man or woman who he knows is guilty (sic) and subjects that person to false imprisonment or the electric chair and someone who lies to cover up a private, embarrassing sex act.

    What this committee is doing is trivializing the oath. What this committee is doing is trivializing the rule of law by only focusing on perjury because they want to get a president of the opposite party, they are telling the American public they don't care about perjury, they don't care about the real perjury that exists and is pervasive in this country, in courthouses and courtrooms and police stations. All they care about is Democratic perjury. Not Republican perjury by Caspar Weinberger, that -- which doesn't exist because you've read that record and you don't believe it's perjury -- not perjury by police officers, not perjury that affect the lives of Americans on a daily basis, but only perjury committed by one Democratic president. Nothing can trivialize the rule of law more than to selectively isolate this case and act as if it is the only case of perjury that's worth -- that's important.

    And Mr. Chairman, you contributed to that in the beginning when you said that this was going to be a broad hearing about the pervasive influence of perjury on the American system. That is Hamlet without the prince, to talk about the pervasive influence of perjury on the American legal system and ignore a hundred years of police perjury and documented reports about police perjury, and pretend and close your eyes and make believe that the only perjury worth considering is perjury about a sex lie committed by a president of the opposite party, trivializes the rule of law and trivializes the oath of office.

       


    REP. HYDE: I thank you, Professor Dershowitz. I don't thank you for criticizing the motives, saying that we're out to get the president. You haven't the slightest idea of the agony that many of us go through over this question.

    Many of us are sensitive to those concerns -- all of us, I dare say. I think you have disparaged us by leaping to conclusions without any basis. But I will --

    REP. CONYERS: Well --

    REP. HYDE: Just a minute!

    Now I will tell you something. These two women who came here today are suffering permanent damage because they lied under oath about matters that are relatively trivial, relatively trivial, and we are concerned about the double standard. That may mean nothing to you --

    MR. DERSHOWITZ: It means a great deal to me.

    REP. HYDE: -- but it means something to us.

    REP. CONYERS: Mr. Chairman?

    MR. DERSHOWITZ: It means a great deal to me. (Applause.) You selected these two women -- I mean, when is the last time this committee has expressed concern about the rights of criminal defendants -- (a chorus of "regular order" from committee members) -- except when criminal defendants can show that the president is being selectively prosecuted? It's a sham.

    REP. CONYERS: Mr. Chairman?

    REP. HYDE: Yes, Mr. Conyers.

    REP. CONYERS: And I thank you for this interchange. But it is not unknown to ourselves and to anyone that's been watching our proceedings in the Judiciary Committee that we are split totally down the middle in the most partisan fashion that has ever happened. Never, Judge Wiggins, in our '74 proceedings were we split this far apart.

    The result is fairly obvious of what's going to happen to anybody with the least understanding of this matter. So for you to be offended by the Dershowitz evaluation strikes me as a little disingenuous. You know what we're going to do here because it's been said repeatedly by every Republican member of the committee! So let's not get offended by the truth at this point in our proceedings.

    REP. HYDE: You know a lot more than I know about how the Republicans -- every member -- is going to vote, because I don't know!

    REP. CONYERS: Well I've heard them tell me what they were going to do. I've heard them tell me what's impeachable.

    REP. HYDE: All right --

    REP. : I ask for regular order.

    REP. CONYERS: I've heard it, sir.

    REP. HYDE: All right --

    REP. CONYERS: And I thank you for the intervention.

    REP. HYDE: You bet.

    The gentleman from Texas.

    REP. LAMAR SMITH (R-TX): Mr. Chairman, I'm going to yield part of my time to my colleague from California, Mr. Gallegly.

    REP. ELTON GALLEGLY (R-CA): Thank you very much for yielding, my good friend from Texas, Mr. Smith.

    Mr. Chairman, thank you for your comments. You echoed, I'm sure, the sentiments of many members on this committee and we share that frustration.

    I want to thank this witness panel for coming here today. I know the hour is getting late. I understand we have a couple of individuals that have to leave here shortly. We still have 20 members of our committee that have not had an opportunity to ask you questions.

    So -- and the sake of brevity and respect for the gentleman that yielded to me. I would just like to ask Tjoflat one question. Judge, if you would be kind enough to explain to us what your opinion of the consequences would be to our system of justice if perjury becomes commonplace in courts. What would happen if lying on the witness stand is winked at because the person on the witness stand, for whatever reason, feels it's inconvenient, embarrassing, or maybe even politically harmful if he or she told the truth under oath?

    MR. TJOFLAT: Well, as I said in my opening remarks, the system of justice functions because of three things -- first, an impartial judge; second, lawyers who obey the canons of ethics; and thirdly, witnesses who take the oath sincerely -- and that if any one -- it's a three-legged stool. If any one of those legs collapses, then the system is unable to render justice, as I see it. And of course, if it happens repeatedly, then the people lose respect for the law, they lose confidence in the system of justice, and they resort to other means to resolve their disputes.

    REP. GALLEGLY: Thank you very much, Judge Tjoflat. And I want to thank Mr. Smith for yielding to me and would yield back to him.

    REP. SMITH: Mr. Chairman, I'm going to reclaim my time and address my first question to Judge Wiggins.

    Judge Wiggins, in your prepared testimony, you made this assertion: "The answer to the question of whether perjury or obstruction of justice is a high crime or misdemeanor is a relatively simple one. Of course it is." It's not that clear to everybody here today, and perhaps to some of your panelists, though it is clear to a large number of other people. Why is it that you feel that perjury is an impeachable offense?

    (Off-mike cross talk.)

    MR. WIGGINS: Why do I feel that way?

    REP. SMITH: Yes.

    MR. WIGGINS: Well, I think the phrase "treason, bribery, and other high crimes and misdemeanors" is a deliberately vague phrase and does not have a fixed meaning, except perhaps for treason and bribery. But the others -- offenses are vague.

    And I don't think that you must impeach for every finding of perjury and every finding of obstruction of justice, but there are some findings of perjury and obstruction of justice that are so important to arouse public attention to the gravity of the offense and the misconduct of the offender and you must react.

    Now, I think that if you say that is the crime of perjury, for example, an impeachable offense, of course it is. It is a crime, it's a felony. Thousands of people are in jail or have been in jail for violating that crime. If the president commits perjury, he is vulnerable for impeachment. But I don't -- and that's the issue before this committee. But once it passes from this committee, it's another issue --

    REP. SMITH: I understand --

    MR. WIGGINS: -- before the House of Representatives, and that's where I maybe draw a different conclusion.

    REP. SMITH: The point that I was hoping you would make, which you did make, was that perjury, in your judgment, at least, is clearly and can be an impeachable crime. Is that right?

    MR. WIGGINS: Of course it can be.

    REP. SMITH: Okay. Thank you.

    Thank you, Mr. Chairman.

    REP. HYDE: Thank you.

    Mr. Scott.

    REP. ROBERT SCOTT (D-VA): Thank you, Mr. Chairman.

    Mr. Chairman, I want to submit for the record with unanimous consent a copy of Rule 6(c) of the Rules of Criminal Procedure, that state that the court shall appoint one or more jurors to be foreperson and another to be deputy foreperson; the foreperson shall have the power to administer oaths and affirmations and shall sign all indictments. It's my understanding that the president was sworn in by one of the prosecutors at the grand jury testimony.

    I also have a copy of a memo from Bob Weinberg that outlines the basis for raising questions about the oath, and two cases that are relevant to this issue. And I'd like these introduced into the record.

    REP. HYDE: Without objection, so ordered.

    REP. SCOTT: I've asked Judge -- excuse me, Mr. Starr to comment on this, and I'm awaiting his response.

    Mr. Chairman, I've raised questions of fairness and the need for the first order of business to be designating what the charges are that we're actually pursuing. I was interested to see earlier today that when challenged by the gentleman from Massachusetts as to one of three of the perjury charges, maybe I misunderstood you, but I thought I understood you to say that one was not particularly serious, which would mean that we wouldn't have to respond to that one.

    We've also today expanded the focus of the inquiry. So without a designation of what charges we're actually investigating, it seems absurd to me to ask anyone to respond to the charges before they know what the charges are.

    Another point I want to make, Mr. Chairman, is that we keep hearing the if we don't impeach the president, we condone his actions. As my colleague from Virginia, Mr. Boucher, has mentioned, we are limited in our constitutional ability to do anything unless the allegation is treason, bribery or other high crimes and misdemeanors. We heard at our constitutional hearing that the term treason, bribery and other high crimes or misdemeanors does not cover all felonies. And therefore, it is conceivable that the president could commit a felony, and we would have no legal authority under the rule of law to do anything about it.

    My colleague from Virginia noted however that the president would be subject to indictment, prosecution and punishment for violation of that -- for commission of a felony, but that would obviously wait until after he's out of office.

    Judge Wiggins, you mentioned perjury as, of course, an impeachable offense. Could you cite any person impeached in United States history or English history for that matter, going back to 1300, where the underlying behavior was personal in nature and not an abuse of power?

    MR. WIGGINS: I'm unable to cite specific instances with it, but I'll be pleased to respond to your question.

    REP. SCOTT: That would be fine. If you find one, you will be the only person to have provided an answer to that -- a positive answer to that questions, including --

    MR. WIGGINS: Well, I may already have found one.

    REP. SCOTT: -- including the Congressional Research Service, which has looked back to 1300 and has not found one.

    MR. WIGGINS: You're advising me that the Congressional Research Service has determined that no public official subject to impeachment has been impeached for perjury.

    Is that right?

    REP. SCOTT: No. No, no, for perjury involving personal behavior, not an abuse of power.

    MR. WIGGINS: Well, what is that?

    REP. SCOTT: What Richard Nixon did.

    MR. WIGGINS: I'm not sure. Say again?

    REP. SCOTT: What Richard --

    MR. WIGGINS: I've been eager to respond to some of these outrageous comments about Richard Nixon, but I've held my breath. But I'll be pleased to do so.

    REP. SCOTT: Let me try to get in one question to Judge Higginbotham. We've heard that all perjury is the same. In your comments you indicated that the sentencing guideline differentiate (sic) different kinds of perjury and punishments, depending on what kind of perjury it was. Could you comment on all perjuries being the same?

    MR. HIGGINBOTHAM: Well, it's clear that all perjury is not the same, just like all people are not the same size. You're much brighter than I am, but I'm taller than you. (Soft laughter.)

    On page 5, I spend a considerable amount of time going over the United States sentencing guidelines, and I spell out a whole series of those sections where there are significantly varying penalties -- and, as you of course know, that when the Founding Fathers created this, they didn't put the word "perjury" in. They put the word "treason." So you have necessarily an ambiguity. And if they felt that all perjury would be included, they would have at least put "perjury."

    So I am persuaded by the historians who've studied this, from my having read Foran (sp), from my having read Eliot (sp), that certain types of perjury clearly, involving a private act, on a private activity, would not reach the impeachment criteria.

    REP. SCOTT: Mr. Chairman --

    REP. HYDE: The gentleman's --

    REP. SCOTT: Mr. Chairman?

    REP. HYDE: Yes?

    REP. SCOTT: I would like to first of all apologize to Judge Wiggins. I didn't mean to be abrupt. The point I was making was that the Congressional Research Service had not found personal behavior being the subject of impeachment. I don't expect you to -- and I apologize for the reference to President Nixon.

    I didn't mean to be abrupt, but I was trying to get in one last question. So I want to apologize for being short with the witness.

    MR. WIGGINS: (Off mike) -- apology -- need not apologize for comments about Richard Nixon. I live with Richard Nixon, literally, all of my life because people are making adverse comments about him. But I don't understand where they get their facts. They probably read them from the newspaper, and I sat up here next to your ranking minority member, Mr. Conyers, and heard evidence, and I didn't come away from -- with that conclusion. You know, that was a massive investigation of the Nixon administration, and the press convinced the American people that the Nixon administration had to be replaced. But the Nixon administration wasn't subject to impeachment; it was one individual, and Richard Nixon was the target. And if he didn't participate and had no knowledge or didn't conspire with others to violate the law, he's being unjustly accused. But he did conspire, briefly, with others to violate the law back in 1972, and he was punished for that. But it was a very brief period of time.

    MR. SCOTT: Well, Mr. Chairman, I'm glad I gave him an opportunity to respond. Thank you.

    REP. HYDE: The gentleman's time has expired. The gentleman from Tennessee seeks recognition to go out of order.

    REP. ED BRYANT (R-TN): Mr. Chairman, I do ask unanimous consent. I need to catch a very important plane as well as I would like the opportunity to examine the two professors who have to leave.

    REP. HYDE: Very well.

    REP. BRYANT: Thank you. Thank you, Mr. Chairman. I thank the distinguished panel for your testimony. I think -- about four of you showed up about a week late, I think. You missed the panel where we had the law professors and historians testifying, but I still appreciate your opinions and I take them just as they are, opinions. I certainly think, in some instances, the slips were showing in terms of partisanship, but we'll overlook that because we're used to being -- have that said about us, too.

    Let me ask that the two professors on the end who have to leave, Professor Saltzman (sic) and Professor Rosen, a question that has come up.

    And I'm one of those people that believe that because of the separation of powers that we have to be very careful that the bar between -- the fence between -- among the three branches is very tall, and we have to be very careful when we talk about such things as censure and reprimand. I oppose that. I feel strongly that our obligation is to pursue the articles of impeachment, if the proof leads us that way.

    But since I do have your availability and the expertise that you bring to this table, and because it seems to be floating around in the newspapers and on all the talk shows, I wanted to ask you -- Mr. Richardson, our very distinguished former attorney general, made the comment about being limited to -- if we impeach, if we send it to the Senate, they would be limited to simply removing the president from office and/or limiting his ability to serve further in a federal office, to hold office.

    As I read that part of the Constitution -- and I want to get the exact language because I think this is important. Under Section 7 of that it says, "A judgment in cases of impeachment shall not extend further than to removal of office" and so forth. Which seems to me to set a maximum, a ceiling, if you will. Which if one wanted to argue that censure or reprimand was appropriate you could say, well, that's the ceiling and you can do less than that if you wanted to. And that's a position I'm coming around to, but I feel very strongly -- and I want to get your opinion on this that if -- the position I'm coming around to, if there's censure or reprimand available, it's through the Senate only, and that's their decision. I would say that we, as a House, have only the constitutional requirement to charge, to impeach, if you will, not to punish. And to get to the point where the Senate could consider some type of punishment, they first have to have these articles of impeachment; we have to vote these out in order to get a censure, in effect, a reprimand opportunity. I'd like to have your comments on those two -- from you two. I'm sorry.

    MR. ROSEN: Congressman, I very much respect the seriousness with which you're struggling with this important constitutional issue, and it's a delicate and hard one.

    Let's think of a range of options that you have available to you. I think no scholar would say that if you were to pass joint resolutions in the House and Senate expressing your deep condemnation of the president's behavior that that would raise any constitutional difficulty at all. It wouldn't be part of the impeachment process and, therefore, wouldn't derogate from it, nor would it have the force of law; it wouldn't be presented to the president for his signature and, therefore, couldn't be considered a bill of attainder.

    The main constitutional --

    REP. BRYANT: Let me ask you this. Wouldn't that -- in the interest of trying to invent something here -- wouldn't that -- and in the interest of expediency -- wouldn't that be a terrible, terrible precedent? I mean, I know folks like me that get very upset with the president, who maybe vetoes a bill that I feel we need. And wouldn't I now have that possibility, if we do it here, that I could say, "Well, let's start a move to reprimand the president over this"?

    I think what we have to have is a two-step process if you are going to get to that point: The first is the indictment, so to speak, by the House; and then it goes to the Senate to let them consider it. But I don't think either house ought to be able to independently pass a resolution to reprimand the president.

    MR. ROSEN: But then that would exacerbate the very constitutional problem you are worried about. If the censure were part of the impeachment process, then it would derogate from the exclusive process set out in the Constitution. It seems that it wouldn't be a troubling process because it would have no more weight than a petition that a citizen were to sign, saying that the president is a bad person. And surely, you have a First Amendment right, as well as a right under the speech and debate clause, to express your opinion of the president in any form possible.

    Now you may want to go further and pass a formal bill presented to the president for his signature. And that -- I think you have to be very careful to make sure that it's not presented as a threat; it's not a lesser punishment, as you put it, but it is -- instead is a conditional amnesty. In other words, "Mr. President, if you do 'X,' 'Y' and 'Z,' then you will be censured and granted this immunity." But that requires you to give him some benefit in return, and this you may not be willing to do.

       


    REP. HYDE: The gentleman's time has expired.

    The gentleman --

    REP. CONYERS: Mr. Chairman?

    REP. HYDE: Yes?

    REP. CONYERS: Professor Saltzburg had a very brief comment, sir.

    REP. HYDE: I am sorry.

    MR. SALTZBURG: I thought that question was also directed to me, Mr. Chairman. I didn't --

    REP. BRYANT (?): (Off mike.)

    MR. SALTZBURG: I disagree with my colleague in part and agree in part, Congressman Bryant. And let me see if I can explain this to you.

    First, the language that you read that "the punishment shall not exceed removal from office and" -- the history of that I am sure you heard on November 9th, was in England, it was common when they had impeachments, to prescribe punishment that included death. And the framers wanted to make sure what the limits of punishment were.

    If you decide to vote articles of impeachment and they pass the House, and if the Senate convicts, I believe the Constitution requires removal as a minimum. The Senate wouldn't have to convict. The Senate could acquit, and then they could propose a Resolution of Censure. That could happen.

    The stomach for a censure resolution or anything after you went through that process, I think, would be unlikely that anybody would want to go forward.

    It is -- as I said, I think, before -- it is absolutely consistent with the Constitution for you to reach the judgment if this is what you think is right. If you say on balance we don't like this conduct but we don't think we'll vote impeachment, we don't think it rises to that level, so we've answered our question, we're not going to charge, then I agree with Jeffrey that you have every right under the Constitution to pass a resolution, just as you would condemning Saddam Hussein, praising turkeys, you know, creating National Mothers Day. Whatever you want to do, you can do. The thing I think he's wrong about, and I think it's not unimportant, is a joint resolution of both houses, I think, must be sent to the president. And that's a significant thing because his signing it could be -- when you talk about bringing us together, it seems to me that that's something that might work.

    REP. HYDE: The gentleman's time has again expired.

    Mr. Delahunt is being recognized out of order with the permission of those people disadvantaged by this maneuver.

    REP. BILL DELAHUNT (D-MA): Thank you, Mr. Chairman. I appreciate my colleagues. I have a meeting that I have to attend to.

    And I appreciate my friend, Mr. Bryant, raising the issue of censure because it is my intention to bring a resolution of censure up when we go to markup on this particular committee. And I'm really struck by the testimony of Judge Wiggins. I have a memory, Judge Wiggins, of watching you as a member of the minority during the Watergate hearings. I had dark hair at that point in time, and --

    MR. WIGGINS: So did I.

    REP. DELAHUNT: -- I'm sure you can empathize with my position as a member of the minority. But you said something just recently, or just a moment ago, regarding President Nixon. And you made the statement that you heard evidence. And I would ask you to refresh your memory as to the witnesses that you actually heard from, that you took testimony from, if you can remember.

    MR. WIGGINS: Well, yes. We heard testimony from H.R. Haldeman, from Erlichman, John Erlichman, from John Dean, from a fellow named Parker, I think his name was.

    REP. DELAHUNT: That's fine. I simply wanted to make the point that during the Watergate hearings -- and you were, as I indicated, a minority member, you were a Republican -- the process at that particular juncture in our history was to take evidence from individuals that had firsthand knowledge of the events that occurred in which these -- and which led to a vote on articles of impeachment.

    Is that a fair statement?

    MR. WIGGINS: I think so, but there is a difference, and I think you should recognize that difference. The president of the United States has literally admitted --

    REP. DELAHUNT: I'm sorry?

    MR. WIGGINS: Admitted to telling a falsehood.

    REP. DELAHUNT: I might disagree with you. In fact, I do disagree with you on that particular point, but I respect your opinion.

    MR. WIGGINS: I understand. Yes.

    REP. DELAHUNT: Could I -- I just want to move to another subject, and that is the discussion surrounding censure, because, again, I want to read from your written testimony, which I found interesting. And I'm quoting, "I don't mind confessing that if I had a vote on this committee, I wouldn't vote to impeach the president.

    MR. WIGGINS: Yes.

    REP. DELAHUNT: "But before the full House of Representatives, I certainly am not sure. I am presently of the opinion that the misconduct immediately occurring by the president is not of the gravity to remove him from office."

    MR. WIGGINS: That's the remedy.

    REP. DELAHUNT: Would you, then, support a resolution to censure or to sanction or to rebuke or condemn?

    MR. WIGGINS: Oh, yes. You should read on from my testimony. I recommend that the president be sanctioned monetarily and I bounce the figure of a million dollars off of you, and that he be personally brought to account by a resolution of, probably, the -- both houses.

    REP. DELAHUNT: So you, as a former member of this committee who sat as a member of the so-called Watergate proceedings, feel comfortable with the concept of censure?

    MR. WIGGINS: Well, yes, there is some historical precedent for it. The precedent of Andrew Jackson is clear, although it was reversed subsequently.

    REP. DELAHUNT: I also just want to make a point, too, in terms of your testimony. You used the concept "probable cause."

    MR. WIGGINS: Yes.

    REP. DELAHUNT: And I respectfully take issue with that particular stand, because everything that I have been able to discern from the precedents in the literature, the standard is "clear and compelling evidence," or "clear and convincing evidence."

    MR. WIGGINS: Well, it's been articulated in many ways, and I think you'll probably find the use of the term "beyond a reasonable doubt" in the Nixon impeachment process.

    But I think that --

    REP. DELAHUNT: In -- my time is running out. And again, I don't mean to interrupt or be disrespectful.

    MR. WIGGINS: The proper analogy is the grand jury analogy.

    REP. DELAHUNT: Fine. In -- let me just conclude by asking this particular question: Do you think it's the responsibility of this committee to hear evidence, as you did during the Watergate hearings, from witnesses who had firsthand knowledge? By doing that, I believe -- and I will give you my opinion -- I believe we meet our constitutional responsibility, rather than just simply accept a report from a prosecutor which clearly creates in many areas disparate inferences and can lead to varying conclusions. Do you feel that we have that constitutional responsibility?

    MR. WIGGINS: Well, I'm not sure. I'm not sure. I think that your responsibility is to get at the truth and to resolve the legal question of whether the offenses alleged are "high crimes and misdemeanors."

    REP. DELAHUNT: Thank -- I note my time is up, and I want to thank you very much. I'd also just note, for a matter of record, that -- and I don't want to get into the nuances of perjury, but there are gradations and --

    MR. WIGGINS: Oh, yes, indeed.

    REP. DELAHUNT: In -- you know, in Massachusetts, for example, if you commit perjury in a capital case, the sanction, the penalty, is life imprisonment. If you commit a -- if you commit perjury in a civil deposition, clearly the court, I presume, would entertain something less than life imprisonment.

       


    REP. HYDE: The gentleman's time has expired.

    REP. DELAHUNT: Thank you, Mr. Chairman.

    REP. HYDE: The gentleman from Florida, Mr. Canady.

    REP. CHARLES CANADY (R-FL): Thank you, Mr. Chairman. I want to thank all the members of this panel for being with us here today. We appreciate your testimony, which I think has been helpful to the work of the committee.

    I want to go back to a question that was raised by Mr. Scott, on the issue of whether any official has ever been impeached for personal misconduct, as opposed to abuse of office. I can't give you an exhaustive answer to that, but one clear example of an official recently being impeached for personal misconduct, as opposed to abuse of office, is the case of Judge Harry Claiborne (sp), a District Court judge from the state of Nevada.

    In that case, Judge Claiborne was impeached by the House and removed from office because he signed an income tax return that was false. Basically, he was removed because he made a false statement about his personal income. So I think that example is very clear, it is relatively recent, and I think that should be noted.

    Now, on this issue about perjury and gradations of perjury, I think all of us would recognize that any offense, depending on the context, may be more serious than that same offense in another context. That's not really contested. What I object to is the argument that any acts of perjury that the president may have committed would fall under the category of less serious offenses of perjury.

    Now, I agree that we should not apply a per se rule that any perjury automatically, regardless of the context, would result in impeachment, but I think we have to look at several factors in the evidence before us which go to the seriousness of the offenses that the evidence shows the president committed. I haven't reached a final conclusion on that, but so far, we're seeing no effort to really rebut the facts. And the facts show that this was a pattern of conduct. It shows that there were multiple instances of perjury. There was a false affidavit. There were multiple lies, which Mr. Goodlatte recounted in his statement earlier today, in the president's deposition. There was perjury before a grand jury. And finally, I believe, there were false and misleading answers to the questions that the chairman of this committee propounded to the president very recently.

    Beyond that, the perjury was calculated. This is not a case of a witness being surprised and reacting instinctively, and understandably, to cover up an embarrassing situation. Instead, this is the case of a witness who went in with a plan to lie.

    This was calculated. And I think that goes to the seriousness of the offense. And to state the obvious, the perjury was sustained. The evidence points to the conclusion that the president has been lying for nearly a year.

    Now, I suggest to you that all of this points to the conclusion that the president has been guilty of an egregious disregard for the oath that he took to tell the truth, the whole truth and nothing but the truth. Now we can have differences of opinion on that, but I think we need -- if we look at this in context, we are pushed toward the conclusion that this is indeed not a trivial instance of perjury, but a serious matter.

    Now, I would again refer the members of the committee to something I read earlier. Now, this is a statement that was prepared -- a report prepared by the Association of the Bar of the City of New York on the law of presidential impeachment. I think this is important because this was prepared long ago in the context of the Nixon impeachment. This was not aimed at anybody who is before us today. This wasn't framed with a view toward getting at President Clinton.

    But what the lawyers of the Bar of the Association -- the Bar Association of New York said is this, this is their conclusion: "We believe that acts which undermine the integrity of government are appropriate ground for impeachment, whether or not they happen to constitute offenses under the general criminal law. In our view, the essential nexus to damaging the integrity of government may be found in acts which constitute corruption in or flagrant about of the power of official position. It may also be found in acts which, without directly affecting governmental processes, undermine that degree of public confidence and the probity of executive and judicial officers which is essential to the effectiveness of government in a free society."

    I believe that this is a reasonable interpretation of the impeachment power, and I believe that the course of conduct which the evidence points to here undermines the integrity of government. I don't know how else you can interpret that. And so I would just ask that the members step back and look at all of the evidence, look at this in a dispassionate way, and I think if we do that, we are going to understand that we have a very, very serious matter in front of us.

    And, Mr. Dershowitz, I just want to respond to what you said about the motives of the members of the committee. None of us are enjoying this. This is not to the political advantage of anyone, and you don't have to be very smart to figure that out. But we have a serious matter before us, and we are trying to deal with it in a responsible way. And I think that's the duty that we have under the oath that we have taken under the Constitution.

    And I yield back the time, which I don't have remaining.

    REP. HYDE: The gentleman's time has expired.

    And once more, we leap out of turn for Mr. Barrett.

    REP. THOMAS BARRETT (D-WI): Thank you, Mr. Chairman. And first I would yield to Mr. Scott.

    REP. ROBERT C. SCOTT (D-VA): Thank you, Mr. Chairman.

    The gentleman from Florida mentioned the Claiborne (sp) case. First, I'd like to clarify the question that I asked Judge Wiggins was whether he knew of any individual for personal activity involving perjury. It wasn't any impeachment; it was just perjury. But since --

    REP. CANADY: If the gentleman would yield --

    REP. SCOTT: But --

    REP. HYDE: No. No.

    REP. SCOTT: But since the gentleman mentioned the Claiborne (sp) case, I just want to say 727 F. 2nd at page 842, where it says that count one of an indictment alleged that Claiborne (sp) solicited and received $30,000 in return for being influenced in his performance of official acts. And footnote one said that counts four, five and six charge the Claiborne (sp) failed to report bribes as income on his tax returns, which I think associates it -- and we are still doing research on this --

    REP. BARRETT: And I would yield -- if I could yield to --

    REP. CONYERS: Thanks, Tom.

    Professor Dershowitz, do you happen to have a response to my friend from Florida's reference to the New York Bar evaluation in '74 -- I happen to remember that -- about this pattern of lies and so forth that, to him, creates a case? I just wanted to see if there was a brief response for you.

    MR. DERSHOWITZ: I appreciate that.

    I think the Association of the Bar of the City of New York report is regarded very well by people and historians and legal scholars. It was talking largely about impeachment in general of judges and not singling out the president. And I think many scholars now agree that the criteria for impeaching and removing a president must be different from the criteria for removing a single member of the judiciary.

    A member of the judiciary, for example, serves during good behavior and any failure of good behavior might constitute an impeachable offense or a removable offense. The president is the executive branch of government --

    REP. BARRETT: Okay, I will reclaim my time. Mr. Dershowitz, if I could, I reclaim my time, since I just have several more minutes.

    MR. DERSHOWITZ: Oh, I'm sorry. And so I think that it's quite different.

    REP. BARRETT: We've had a good afternoon. We've heard from nine experts, nine, I think it's nine, gentlemen who are very good. Last week we heard from, I think, nine or 10 gentlemen who were experts on impeachment and one woman. I think the time is now for us to bring in 10 mothers or 10 grade school teachers to talk about what we do when someone's done something wrong. Because that's what's occurred here, and we need, again, to move forward.

    And I hear my colleagues from the other side who say that perjury's a serious offense, and I agree with that. People should not perjure. It's that simple. People should tell the truth when they're under oath. But the question that we face is, if we want this principle to be held in high regard, what do we do? And I have yet to talk to one single person who thinks that the United States Senate would ever have a two-thirds vote to convict the president and remove him from office.

    So, if we're going to go down that route, at the end of the day those people who say that he must be held accountable are going to be as angry then as they are now. The only difference is we're going to drag this country through a year of hearings. And I don't think that that's going to increase respect for the rule of law. I think the longer we drag this thing out, the worse it's going to get. This whole incident, escapade, reminds me of a problem in a family. Uncle Harry did something wrong. And I think the question we have to decide is, are we going to continue to flog ourselves for nine months, 10 months, a year, as a family, as a national family, or are we going to deal with it?

    And the American people have said over and over and over again, we want you to deal with it. And I think that the censure resolution shows the gravity of the offense and allows us to do it in a way that does not drag this on. We should move on to something else. We should move on to the nation's business. If, in the end, we are going to have an impeachment without a conviction, it's really no different in effect, than a censure, because an impeachment without a conviction is also just a slap in the fact. Some might argue it's a stronger slap in the face, or it's a constitutionally created slap in the face, but it's a slap in the face, nothing more.

    President Clinton is going to carry this with his legacy. And when he gets to heaven or wherever he goes, and you got all the ex-presidents standing there, and he's -- they're going to say, "Well, what was the biggest event in your last two years," his legacy is going to be "I either escaped impeachment or I didn't escape impeachment." If I were president of the United States, that's not something I'd be proud of. So I think that he is carrying a scar with him, and it's a scar that he can't escape, regardless of what this committee does.

    But I think it's time for us to move forward. I think that the chairman should get together three Republicans and three Democrats, or four Republicans and four Democrats, and in a bipartisan basis, just like we did when Speaker Gingrich got in trouble -- we had people from both parties sit down, iron out what the language should be -- and then we bring it to the floor and we move on. We should be acting like the Ethics Committee did in that matter, where the speaker had lied. We can do that, and we should do that.

    And if we do that, I think this committee will be remembered as doing something right, Mr. Dershowitz. I think we will be remembered as a committee that fought bitterly but in the end decided that, for the sake of this country, it was more important for us to say that perjury is wrong, to say that lying under oath is wrong, and to say, "This is what the condemnation will be: a public reprimand." And that's not something that's taken lightly. If the last time it happened was 150 years ago, I don't think that there's a danger that you're going to have every Congress applying the same remedy to somebody simply because they disagree, for political reasons.

    And with that, I would yield back the balance of my time.

    REP. HYDE: I thank the gentleman.

    I would announce that it is almost 5:00, and some of the panel have expressed a desire to leave because of commitments. And we sure understand that. So I want you to know none of us will be offended if you should head towards the door. But we will try to wind up as quickly as we -- possible, if the questions are crisp and the answers are crisper.

    So the gentleman from South Carolina, Mr. Inglis.

    REP. BOB INGLIS (R-SC): Thank you, Mr. Chairman. We just heard the other view. You know, it's interesting; apparently, no matter what -- particularly you, Mr. Chairman, do, you'll be criticized, because now we hear that we need to move along and not, I assume, have any witnesses. That was the import of the last discussion -- no witnesses, move along.

    So I really understand the challenge that the chairman has. He's got to -- he's really got to figure these sort of conflicting arguments that we're hearing.

    Another point that I would make, Mr. Chairman, is that Mr. Frank mentioned earlier something that I dare say that neither Admiral Edney nor General Carney would probably be comfortable speaking of, but if I may -- I'll not speak on your behalf but on behalf of many South Carolinians who have said this to me, is that they, in military families, are severely affected by what's going on in the White House, and that morale is dangerously low and dangerously affected by what they perceive as a clear lie by the commander in chief.

    And again, I won't put the folks in uniform or formerly in uniform on the spot there, but that's what I'm hearing. It's the same thing that I hear from my eight-year old. He said to me recently, "Daddy, the president is lying, isn't he?" I said, "Yes, Macauley (ph), he's admitted to lying, admitted to lying under oath." Now, he would say it's not technically perjury. And maybe Professor Dershowitz has a new client here because he says that his clients commit the crime and then they compound their problem by lying about it. So he may have a new client here down at the White House; William Jefferson Clinton would be available as a good client to fit that M.O.

    But there's something that I would particularly like to take up with my evidence professor, Professor Saltzburg. There is something that I do find that I agree with Professor Dershowitz about and I would disagree with what you were saying, and that is, I think Professor Dershowitz is right, the prospect of this president being prosecuted after leaving office is really a non-starter. I mean, I'd love it if it weren't, because I think that is, as you said earlier, a way of vindicating the rule of law. If we don't impeach and -- if the president has committed the crimes that he's accused of and if we don't impeach, then prosecuting him upon leaving office is one way to vindicate the rule of law. And in response to some questions from Mr. Boucher earlier, there was some discussion from Mr. -- Professor Dershowitz about how that's really a non-starter.

    So I would ask you, Professor Saltzburg: The prospect of this president entering the East Front of the Capitol, walking over to the West Front to swear in a new president in 2002 and then walking back to the East Front and being handcuffed upon descending the stairs is probably not a picture that any president who succeeds him would want to be part of.

    So is that really a nonstarter; what we are talking about here, your suggestion that he might be prosecuted, and that would be a way of indicating the rule of law? Is that really a nonstarter? Or do you disagree with Professor Dershowitz on that?

    MR. SALTZBURG: I disagree with him in part.

    And by the way, let me say it's quite an honor to have a former student hold your position. It makes me very proud. It's why we teach.

    And I state, in the hope I'd be able to -- that you'd put a question to me, and I'd try my best to answer it so I could -- before I took off.

    The --

    REP. INGLIS: Let me put a hypothetical to you -- (laughter) -- that would be a better way -- and then I could call on you: "Mr. Saltzburg, answer this question." Maybe that -- (laughs) -- (laughter) --

    MR. SALTZBURG: I think the -- what I would say is -- and I don't want to repeat myself, but immediately I think -- if you make a decision or the House makes a decision not to proceed further, I believe that the president, like any person who deceived a federal court and a litigant, can be punished by the court without any doubt. And I think that will happen. I think that is a starter. I think that is required if this system is going to make any sense.

    Now as to whether he will be prosecuted, I have my doubts. I have my doubts because I'll tell you what I really think will happen; I believe when this process ends -- and I believe it will end -- I think the Republican candidate for president, whoever that person is, will say, "I would pardon him if somebody tried to prosecute him, because, you know, this process has punished him."

    Punishment comes in very, very different ways. We all know that. No other American would be put through anything like this process. No other American would be censured as he might be.

    And I think that if I were Judge Wright and the case were before me rather than before you, the punishment I would impose in terms of a sanction on him, would be so much higher than I would impose on any other citizen, to send a message that what I believe is not only that honesty and integrity in the courts matter for the reasons Judge Tjoflat said, but that responsibility does increase with the office that you hold and the lessons we teach are important.

    I just tried to say you don't need to impeach a president to teach those lessons. There are better ways to do it.

    REP. HYDE: The gentleman's time has expired. The gentlelady from Texas.

    REP. SHEILA JACKSON LEE (D-TX): And I think you are aware, Mr. Chairman, that I'm not taking anyone's place out of order. (Laughs.)

    REP. HYDE: No, ma'am.

    REP. JACKSON LEE: Let me, as Professor Saltzburg has to go, let me thank him for his presence and thank every one of the panelists for what has been an eloquent presentation of a very difficult question. Each of you have acknowledged the task and the charge that we have before us. And excluding the military witnesses, and I believe Judge Tjoflat, I think, collectively, witnesses on both the minority and majority sides seemed to conclude that there is a major question as to whether or not we have, in these fact situations, impeachable offenses. And I think, frankly, surprisingly for all of us, on December 1st, 1998, we may have some form of consensus. And frankly, I think it is also good that many of us are discussing censure in this committee. Several of us, including myself, have drafted resolutions on censure and expect to offer them. And so maybe we have come further than we think we have come. And so I'd like to just pose some questions and make some comments, in particular, to Judge Higginbotham and General Richardson.

    I think that our Republican friends are splitting hairs, if you will. Royalty of many years ago stated, let them eat cake. And for some reason, I think my colleagues are attempting to have their cake and eat it, too. And the reason I say that is because impeachment is decidedly a constitutional process, but yet my colleagues today have been reminding us constantly of the rule of law. And I would simply bring to the panelists' attention as to whether or not we have actually had the rule of law in these proceedings.

    Was it the rule of law when due process was denied the president by way of no notice and the lack of the opportunity of his lawyers to make a presentation for more than 30 minutes, until raised in the committee? Was the rule of law followed when attorney-client privilege was obliterated and ignored?

    Was the rule of law followed when grand jury testimony was released not to the nation or to the House of Representatives, but to the world? And frankly, do we have the rule of law when we ignore the rights that are given to any American who might defend themselves against perjury on the grounds that they thought they were telling the truth, or whether or not the issue was material?

    So I think that as we discuss this very somber process, we have to consider what we have done to the rule of law and realize that we are standing more grounded in the basis of constitutional premises as we decide really the decision that will warrant one of conscience and understanding of the Constitution.

    Let me, before I ask a question, just simply say to the gentlemen representing the military, I have the highest degree of respect for you and your service, and the men and women who have served us and are serving us in this nation.

    In fact, it saddens me that this week in Texas we lost Roy Benevides (sp), a Medal of Honor winner who rose time and time again, wounded in Vietnam, to save several of his comrades, to participate in reconnaissance. And when they wanted to applaud him, he simply said, "It was my duty."

    So I would take issue with you about any suggestion of the demoralizing of the outstanding military personnel that we have for the bad acts, unfortunately, of who is now the commander in chief or any other commander in chief, such as President Reagan, who did not remember he had told the situation of the Iran-contra, selling weapons for drugs or vice versa. And I respect you for your presence.

    But let me ask Judge Higginbotham and the general these questions: Judge Higginbotham -- and I will ask the questions, and if you would answer it -- would you help me understand the distinction between the criteria in a presidential and judicial impeachment? That has been raised about an impeachment of a judge. And we keep talking about double standards around here and why the president is privileged. And I think the American people should not have a distorted perspective. I'm going to finish my question. Then I'd like you to answer it.

    General Richardson, let me thank you for being a great American. You were actually in the midst of the proceedings, the activities of 1974. You resigned rather than be fired by the president of the

    United States, because you refused to fire, I believe, Archibald Cox, if I have it accurately, who refused to accept the compromise of President Nixon.

    Do you think at that time there was abuse of power? And do you feel that we would be in a comfortable position if we offered to resolve these matters with a censure by this body, by this House?

    MR. RICHARDSON: I would say very clearly that the distinction is sharp and wide between the pattern of abusive actions undertaken by Mr. Nixon, all of which were antecedent to or separate from any false statements by him. He was, in addition, charged with false statements, the so-called cover-up of the burglary. But there was a pattern, known as Watergate, which involved abuses of executive power, deliberate undercutting of the procedures of various institutions of government, the condoning, indeed, of a second burglary, that of the psychiatrist of Daniel Ellsberg, the man who had written a critical analysis of the conduct of the Vietnam War.

    To put it briefly, there is no comparison between the aggregate of the things for which this committee voted articles of impeachment in 1974 and the conduct of a president in a sexual relationship with a White House intern. So if you put the conduct on one side and look at the conduct of President Clinton and compare it with the conduct of President Nixon, the contrast is marked and dramatic. On the other side are aspects of concealment, primarily, as I noted in the Nixon case with regard to the burglary, but a long series of attempts to conceal, avoid, deny, deceive with respect to the very existence of the sexual relationship with Monica Lewinsky.

    And so, the issue before the committee is how seriously should we regard that cumulative series of efforts to hide the Lewinsky relationship. There's a lot of it, but there's only one underlying situation, and that one underlying situation did not in any respect involve matters of state or the powers of the president, per se.

    And so it is against that background one addresses the question: was this aggregate set of misleading statements, lies, whether or not technically perjury sufficient to be regarded as a high crime or misdemeanor.

    Now, what I've suggested, and I would submit to the committee, and I'm glad I have the opportunity to restate it --

    REP./MR. : Brevity is the soul of wit.

    MR. RICHARDSON: -- you have -- there are only three possible outcomes of this matter: one is removal from office. If the president is impeached by the House -- (mike falls down) -- the whole matter automatically then and there goes to the Senate. The Senate is then required to hold a trial. The trial can only have two outcomes, possible outcomes, acquittal or conviction. If the president is convicted, there is only one penalty permitted by the Constitution, that is removal from office.

       


    Now this committee can, right now, as I've tried to emphasize, address the question of whether everything you know, assuming the worst, with great respect to the members of the committee who have said, well we haven't heard the witnesses. I would say, yes, if you were -- if the question of whether or not to impeach might be tipped one way or the other by evidence, by all means hear the witnesses -- but if you assume the worst of everything that has been said, and ask yourselves the question, do we believe that because of this tissue of lies the president of the United States should be removed, or not? You know everything you need to know to answer that question. Why not address it? If the answer is yes, he should be removed, then you vote the articles of impeachment to get submitted to the House, if they are approved by the House it goes over there.

    But if you think that's too much -- and if I learned anything in law school, it was, and, by the way, as a law clerk for two of our very greatest judges, it is that all hard questions are questions of degree -- you can't divide the outcome into a series of graduated responses. No matter how close the call may be, you only, as a practical matter, have one choice. Removal or not, censure or not.

    REP. HYDE: The gentlelady's time -- (off mike).

    REP. CONYERS: Judge Higginbotham was asked a question, sir.

    REP. JACKSON LEE: Thank you.

    REP. CONYERS: Judge Higginbotham was asked a question, sir.

    REP. JACKSON LEE: Thank you. I'd appreciate it if he could answer the question.

    REP. : Mr. Chairman, the lady's time has far since expired.

    REP. CONYERS: We weren't questioning that, sir. We were just pointing out that Judge Higginbotham had been asked the first question, and had not responded. And I was asking --

    REP. HYDE: Certainly. We'll hear from Judge Higginbotham.

    REP. JACKSON LEE: Thank you, Mr. Chairman, thank you, Mr. Conyers.

    MR. HIGGINBOTHAM: Mr. Chairman, keep the light on. I won't be long.

    REP. HYDE: Sounds like a commercial for a motel,doesn't it? (Laughter.) "We'll keep the light on for you." (Laughs.)

    REP. JACKSON LEE: I'll be there.

    MR. HIGGINBOTHAM: There's a Brahmin expression. If you don't know where you're going, any road will take you there. And the importance of a civilized society, is that you have due process, so that you do have a road map which describes the journey which one must take to get justice.

    I think that there are more profound injustices which are caused by procedural unfairness, than by substantive adjudication. So in terms of what this group should do, you I submit respectfully, should be the models of fairness from an analytical way, in terms of how you probe evidence.

    More than 60 years ago, a governor of Mississippi pled before the United States Supreme Court, in behalf of black prisoners who had received the capital punishment. And he said to Chief Justice Hughes, "Help us save my state, because they have denied due process." And that was the first case, where the United States Supreme Court ever held that a confession which had been extracted involuntarily, with brutality and cruelty, was not admissible. And that is a glorious day in the history of the Supreme Court.

    It seems to me that you have the same kind of obligation that Chief Justice Hughes recognized the nation must have, in terms of procedural fairness. And the questions you raise, fit within that.

    REP. HYDE: The gentlelady's time -- are you through, Judge? I'm sorry.

    MR. HIGGINBOTHAM: I suppose I'll waive the rest of what I was going to say.

    REP. JACKSON LEE: Mr. Chairman, he had a question on comparing judicial --

    REP. HYDE: Ma'am, really --

    REP. JACKSON LEE: I'll just ask him to put it in writing for me, please.

    REP. HYDE: Yes

    REP. JACKSON LEE: Judge Higginbotham, I will await your answer in writing on the difference between the criteria of presidential and judicial impeachments. And I thank you, I know that you answered several questions at once.

    MR. HIGGINBOTHAM: And I have it on page 10 and 11 of the document I submitted to you, because I think it's one of profound difference.

    REP. JACKSON LEE: Thank you, and I'll refer to that. Thank you very much.

    REP. FRANK: Mr. Chairman, could I just thank you for your forbearance? I appreciate it. This has been a tough day, and you have today really gone out of your way, to keep this in the best possible key. I just want to acknowledge -- I know how difficult it's been, and I want to express my appreciation.

    REP. HYDE: I owe you a very good cigar.

    REP. JACKSON LEE: I echo that, Mr. Chairman. Do I get one as well? (Laughter.)

    REP. HYDE: I plead the Fifth. Not from me.

    REP. JACKSON LEE: Mr. Chairman, we are an above-board committee here.

    REP. HYDE: Yes, we are, indeed. The gentleman from Virginia.

    REP. GOODLATTE: Thank you, Mr. Chairman. Mr. Chairman, all afternoon we've been treated to diatribes by Professor Dershowitz regarding the motivation of the members of this committee, regarding the issue of perjury, and his assertion that we don't care to address it, except when it amounts to what we considers to be the lowest level of perjury, which is somebody lying to conceal something -- their embarrassment about their personal indiscretions.

    First, I reject both of the premises. I agree with the gentleman from Florida that no one on this committee, on either side of the aisle, has asked to have this burden placed upon us. And it's incumbent upon us, to deal with the facts that we have before us.

    But most especially, I reject the second assertion, and that is that this is simply about lying to cover up personal indiscretions.

    First, with regard to the testimony before the grand jury, at the end of the process, I'd like to read something written on August 20th of this year.

    "If the president's public speech is any guide to what he swore behind closed doors, it may be possible to discern his new battle plan: to admit to private sexual indiscretions, which are provable, but not impeachable, and to deny obstruction of justice and subornation of perjury, which would be impeachable, but are not provable."

    You wrote that, Professor Dershowitz --

    MR. DERSHOWITZ: That's right.

    REP. GOODLATTE: -- in the Boston Herald, on August 20th, under your byline. And it seems to me, that on August 20th, you hit the nail on the head.

    The reason for the president testifying falsely under oath, if indeed he did before that grand jury, was not to cover up personal indiscretions, because he went on national television, moments after that testimony, and admitted those personal indiscretions. The reason he lied -- if the evidence supports that conclusion -- is because he wanted to evade criminal prosecution for his previous efforts to obstruct justice, suborn perjury, and commit perjury, in the Paula Jones lawsuit.

    So now we go back to the Paula Jones lawsuit. And we say "Well, did the president of the United States lie under oath in that case, for the purpose of avoiding personal indiscretions?" Well, I suggest not, because in those very depositions, he admitted to other personal embarrassing indiscretions that he had committed.

    No. I would suggest to you, that the evidence would suggest that he did so, for the purpose of defeating that lawsuit, of winning the case. Which, I might add, is exactly the same reason why you have criticized, and rightly criticized, police officers and others, for committing perjury and lying under oath in cases involving your clients that you've defended, and others, to win the case. It's exactly wrong for them to do it, and it's exactly wrong for the president to do it.

    And we certainly should take a strong stand against perjury, including perjury by law enforcement officers. And recently, a Boston police officer -- you may be familiar, since you are from the Boston area -- was recently sentenced in federal court to two years and 10 months in prisons, for being convicted of one count of perjury before a federal grand jury, and one count of obstruction of justice, for giving evasive and misleading testimony, and withholding information from the grand jury. The officer lied about his observations of events, where a plainclothes officer mistaken for a suspect, was beaten by other Boston police officers.

    I agree with you. I was going to ask you the question, before we ever got your testimony at the outset. I agree with you, thought, that lying under oath by law enforcement officials, is particularly egregious.

    Well what about lying under oath by the chief law enforcement officer in the country, the president of the United States? And not simply to cover up personal indiscretions, but to defeat a lawsuit, and to avoid criminal prosecution, because of previous violations under the law? That, it seems to me, is the heart of what this matter is about before this committee, not lying to cover up personal indiscretions. And I'll give you an opportunity to respond. Briefly, since I have very little time, and you've had a lot more.

    MR. DERSHOWITZ: I appreciate it. Thank you very much. First of all, I did not engage in diatribes against this committee. I responded to a point made by the chairman, characterizing my remarks, which he did not hear. And I responded to a specific allegation made in a single instance, and I stick by what I said. If I offended anybody, I'm sorry. I certainly don't want to attack the --

    REP. GOODLATTE: Apology accepted.

    MR. DERSHOWITZ: Well, I don't want to attack the motivations of any individual on this committee, and I don't intend to. What I have looked at, is the votes of the committee on a partisan basis. And that is upsetting. The issue that you've put, is a good one. And in a booklet I've written analyzing the case, I don't completely disagree with your analysis. I think that the problem began with an attempt to keep from the president's family, a matter of personal interest. It then may have evolved and evolved and evolved.

    I take it very, very seriously. And I am very critical of the president's actions, I'm critical of the actions of his lawyer, Robert Bennett. for allowing him to get into this situation, rather than settling the case. And I don't mean, in any way, to trivialize the president's misbehavior. I do very strongly take the position, though, that there is a difference between an impeachable crime of perjury, and condemnable but not impeachable allegations --

    REP. GOODLATTE: My time is very brief, and may have already expired. Let me recall my time that is remaining, and serve you some more of your words, because I think that is the heart of the question there. Divining between whether or not this is an impeachable offense or not, because you do agree with us that certain types of perjury would be an impeachable offense.

    MR. DERSHOWITZ: Of course.

    REP. GOODLATTE: Okay. Well, on July 29, 1998, you appeared on the show "Hardball" with Chris Matthews (ph). And during that show, you said, "I think his lawyers and he are in a very difficult dilemma -- referring to the president -- "precisely 'cause it's what he does from now on." And your comments were prescient, because this was in July, before he ever appeared before the grand jury.

    If he were now to go in front of a grand jury, and he were to repeat his apparently categorical denial of any sexual contact, and get himself into a swearing contest with a bought witness -- Monica Lewinsky -- that could cause a very serious problem. If the prosecutor could prove that he committed perjury in front of a grand jury, he would, I believe, be impeached.

    MR. DERSHOWITZ: I stick by that position, and I make it --

    REP. GOODLATTE: Good. That's what we're going to decide in this committee. Mr. Chairman, I yield back.

    MR. DERSHOWITZ: Let me please finish the answer, because you've taken my answer out of context. I was very prescient. Before he ever testified in front of the Paula Jones case, I urged settlement or default. I also urged that he be completely forthright in his grand jury testimony. I don't believe he was completely forthright in his grand jury testimony, but I don't believe that he committed perjury in his grand jury testimony. And there is a big difference.

    He did not categorically deny any sexual contact, he admitted sexual contact, and then he refused to answer questions, and the Starr people didn't press him, as perhaps they should have and might have.

    And so, I think we have a record that does not demonstrate perjury in front of a grand jury. If it did, or if there were evidence of subornation of perjury, of the kind of cover-up that you describe, I think it would be a very, very different matter, even though the origin was an offense of sexual conduct. If it eventually escalates to the point of obstructing and suborning and compounding the perjury in front of a grand jury, that escalates the matter very considerably. Thank you.

    REP. HYDE: The gentleman's time has expired. The gentleman from Massachusetts, Mr. Meehan.

    REP. MEEHAN: Thank you, Mr. Chairman. The hour is getting late, it's been a long day. And I guess we do impeachment by news cycles. I guess the news cycle today is going to be that the impeachment matter is going from the Lewinsky matter to campaign finance. We're going to have a reprise of Dan Burton's greatest hits, that'll be the new cycle tomorrow.

    I always find it interesting to hear many of the committee's Republican members expounding on the campaign finance abuses. It seems that many of them didn't appear the slightest bit interested in closing the soft money loophole, which is the root of many of our campaign finance abuses.

    At the time when we debated the issue on the floor of the House, when we had a bipartisan bill 51 Republicans voted for, but the vast majority of the members of the committee, didn't vote to close that loophole at that time. Nonetheless, we were able to pass the bill through the House.

    I'm interested in many of the comments. I associate myself with the comments of Mr. Barrett, my colleague from Wisconsin, when he talks about the need for bipartisanship, and wouldn't it be great if we could get three Republicans and three Democrats to get together and work out some kind of a censure, or some kind of a reasonable middle ground.

    But it isn't going to happen. Every Republican member of this committee, will vote to impeach the president. It's a vote that's going to take place next week, 'cause the week after that, we need to have the full House to come in to vote on it. So, as much as it would be nice if we could listen to the witnesses, and determine whether there's a reasonable middle ground, this is a done deal. The die has been cast. We're going to vote, the majority of the members of the committee are going to vote to impeach the president of the United States sometime next week, regardless of who's subpoenaed, regardless of who is or isn't called as witnesses, and whether they're material or not.

    And I was interested to hear Attorney General Richardson talk about the gravity of what we face. 'Cause I hear a lot of Republican members say "Well, we're going to vote to impeach the president. But we're just like a grand jury. We're a grand jury here. We just determine whether we send it over to the United States Senate for trial. The trial would be over there. This is the same standard that any grand jury would have to meet."

    Well, that's fine, but any of us who have been around grand juries, clearly recognize where the old saying that a grand jury would indict a ham sandwich if a prosecutor suggested they should, is true. I call this, by the way, the Ham Sandwich Theory of Impeachment. "We're just a grand jury, we're going to send it over to the Senate. Let them decide whether the president should be removed."

    And I was interested, Attorney-General Richardson, on your perspective on that. And I'm wondering, what do you think about a lax level of scrutiny? And is it appropriate for the Judiciary Committee, or the full House, to use this "grand jury/ham sandwich" level of scrutiny to impeach the president?

    MR. RICHARDSON: My answer is clearly no. When I was a prosecutor, directing -- as the United States Attorney for the District of Massachusetts, my instruction to my assistants was that they should never seek an indictment, unless, if they were the trial judge, they would reject a motion for a directed verdict of acquittal at the end of the government's case. And I think that is the standard that this committee ought to have.

    But I have to reiterate, that in the criminal process, in the criminal courts, the sentence can be very precisely adjusted to the level of seriousness of the offense. I don't yield to anybody at this table, including my military colleagues, as to the seriousness of the offense of perjury, or the misrepresentation of the truth in any government context.

    But unlike the federal district court, the Senate has no choice in deciding what the appropriate sentence should be. That is why, as I say, from my point of view, I say respectfully, you could address any old time the issue of whether or not removal is the right result. A vote to impeach, is a vote to remove. If members of the committee believe that should be the outcome, they should vote to impeach. If they think that is an excessive sentence, they should not vote to impeach, because if they do vote to impeach, the matter is out of their hands, and if the Senate convicts, out of its hands.

    REP. MEEHAN: Thank you.

    REP. HYDE: The gentleman's time has expired. The gentleman from Indiana, Mr. Buyer.

    REP. BUYER: Thank you very much. I have with me here, testimony of Admiral Thomas H. Moorer, United States Navy, the former chairman of the Joint Chiefs of Staff, and would ask unanimous consent that his written testimony here be placed in the record, Mr. Chairman.

    REP. HYDE: Without objection, so ordered.

    REP. BUYER: I note that Admiral Moorer, the former chairman of the Joint Chiefs, wrote, "The president is the Commander-in-Chief. Although he does not wear a military uniform, he is a military leader. he also goes on to say "I urge Congress to hold the Commander-in-Chief accountable not only for the good order and discipline of the United States Armed Forces, but also, more fundamentally, for the survival of the American rule of law.

    "When a military leader chooses to engage" -- I suppose when he said "military leader," he's also meaning the Commander-in-Chief -- "when a military leader chooses to engage in dishonorable conduct, he should either resign or is removed from any position of responsibility, i.e., cashiered by those to whom he is accountable."

    He goes on to say, "When troops know a leader is not being held accountable for dishonorable conduct, the coercive effect is devastating on the good order and discipline of the Armed Forces."

    I have some questions I would like to ask of you, Admiral, and General, and I appreciate your testimony here, and your candor. You've made a contribution.

    Admiral, at the Naval Academy -- these will be "yes" or "no" questions -- at the Naval Academy, do midshipmen learn that the president is the Commander-in-Chief of the military, and the president's picture is present on every ship stationed throughout the military, in that capacity of the chain of command?

    ADM. EDNEY: That is correct.

    REP. BUYER: Admiral, do you agree that integrity, honesty and ethics are required traits of a military leader?

    ADM. EDNEY: That's correct.

    REP. BUYER: Admiral, as the ethics professor at the Naval Academy, do you teach your midshipmen that they must have a strong moral character in order to be an effective military leader?

    ADM. EDNEY: That's correct.

    REP. BUYER: Admiral, is it for that reason that the Naval Academy and all the service academies, to include the military colleges, have honor codes that state individuals, in essence, will not lie, cheat, or steal, nor tolerate those who do?

    ADM. EDNEY: That's correct. We have a different toleration clause, but the purpose is the same in our concept that the Academy says you must identify all the truth, act on the truth, and do it as right. But you're right.

    REP. BUYER: Admiral, do you also teach the midshipmen at the Naval Academy, that good leaders must set the example for the sailors and Marines under their command?

    ADM. EDNEY: That's correct.

    REP. BUYER: Admiral, would you say that it is essential that hose sailors and Marines trust those in the chain of command, in order for a unit to be effective.

    ADM. EDNEY: That's correct. Trust and confidence is earned, but you're right.

    REP. BUYER: It is earned. Is not it also true, though, that trust and confidence is reposed in the commission that is granted unto an officer, by the president of the United States?

    ADM. EDNEY: That's correct. It's in the oath of office.

    REP. BUYER: Reposed.

    ADM. EDNEY: It's reposed.

    REP. BUYER: General, would you agree with that, General Carney?

    GEN. CARNEY: The president reposes a special trust and confidence consisting of patriotism, valor, and fidelity of the officer he is commissioning.

    REP. BUYER: So the president does that in the commissioning oath. So he grants that repose authority under the commissioning.

    ADM. EDNEY: That's correct.

    GEN. CARNEY: That's correct.

    REP. BUYER: So it comes from the president as the Commander- in- Chief.

    REP. BUYER: General Carney, is it not true that those at the top of the chain of command, and in particular commanders, set the tone of the military organization?

    GEN. CARNEY: Yes, sir.

    REP. BUYER: General, is it true that if the commander sets a poor example, that it has a detrimental effect on the morale and discipline of the force?

    GEN. CARNEY: Yes, sir.

    REP. BUYER: Regardless of the size of that force. Whether it's a division commander, all the way down to a platoon commander.

    GEN. CARNEY: Well, the lower the commander, the more visible is the impact. But high-level commanders are also impactful.

    REP. BUYER: General, would you say that it would be devastating to a unit's morale, if the commander disciplined an individual for an action that the commander himself was accused of?

    GEN. CARNEY: Yes, sir.

       


    REP. BUYER: General, although the president is not a member of the armed services, do the president's actions constitute the appearance of a double standard between the commander-in-chief, and his military forces?

    GEN. CARNEY: The president is held accountable to the Constitution, and to the very difficult challenges which you face to remove him by the law of impeachment. That is different than the law the Congress gave the military, in the form of the Uniform Code of Military Justice.

    REP. HYDE: Gentleman's time has expired. The gentleman from New Jersey, Mr. Rothman.

    REP. ROTHMAN: Thank you, Mr. Chairman, and I appreciate the answer of the lieutenant general.

    It is the constitutional decision that we have to make here on the Judiciary Committee, whether the president committed an act of treason, bribery, or other high crime or misdemeanor. Not whether the president's behavior was deceitful, wrongful, immoral, but whether he engaged in treason, bribery, or other high crimes and misdemeanors.

    Some have talked about our upholding the rule of law, and as an adult lawyer and a former surrogate court judge, I believe in the rule of law. But this president will not get any double standard. He can always be sued criminally for his conduct. So that would uphold the rule of law and show that the president is not above any other American -- he can be sued criminally and be held criminally responsible for his conduct.

    Also lying -- I am the father of two kids, and I tell the kids lying violates the Ten Commandments. Adultery of the president violated the Ten Commandments -- it's wrong -- it's morally wrong. And I've said publicly it should be condemned. And the president, when he waved his finger and didn't tell the truth about his relationship with Ms. Lewinsky, after he chose to characterize it, was wrong, and should be punished -- let alone for his having an affair with an intern in the White House.

    So he can be censured, rebuked, reprimanded for his not telling the truth to the American people, and we can teach our kids that lying has negative consequences, and we can uphold the rule of law if he gets sued criminally.

    What we have to decide though is whether the president, according to Mr. Starr, committed perjury, obstruction of justice or abuse of power. That's our job. Now, the charges by Mr. Starr were -- he talked about them. He wrote us a 450-page report, 17 boxes of information, and gave a speech before us for two and a half hours. The president's counsel responded with two rebuttals, my friends on the other side of the aisle. So we have the prosecutor, if you will, giving his opening statement twice -- in writing and orally -- and then we had the president's counsel filing two written responses addressing every one of the charges -- of perjury, obstruction of justice or abuse of power. So how do we decide who's telling the truth? How do we decide where's the clear and convincing evidence that one side is right or not? Who bears the burden of proof? I always thought as an American familiar with our notion of fairness and due process it was the prosecution that bore the burden of proof, to prove before the defendant had to defend and prove his or her innocence, if you will.

    Mr. -- or Professor Dershowitz, you say that there was no perjury before the grand jury. Why do you feel the president did not commit perjury before the grand jury?

    MR. DERSHOWITZ: Perjury is a very technical and difficult defense to prove, and it ought to be. The difference between the rule of law and the rule of human beings is precisely the technicalities of the rules. Now, the president was advised by an excellent lawyer, David Kendall. At this point, unlike in the previous situation, he told his attorney everything presumably -- there were no secrets -- and the answers were carefully crafted. I've looked at the answers. They seem at certain points to be less than completely and totally forthcoming, and the president acknowledged that he was not going to be forthcoming about the details and specifics of his sexual conduct --

    REP. ROTHMAN: But why is it perjury?

    MR. DERSHOWITZ: Because it was not literally false -- at least not literally false in any way that I have seen evidence to demonstrate beyond a reasonable doubt.

    REP. ROTHMAN: Professor, if I will -- if I may -- now we've got a distinguished legal scholar saying there was no perjury, we've got Mr. Starr making charges, the president's lawyer responding -- everything in writing. We don't have a single, solitary fact witness upon whom Mr. Starr relied in making his case -- not a single, solitary fact witness has been brought before this committee -- and we are left with dueling papers. And, professors, the majority of whom say either don't impeach or there was no perjury -- or, if there was perjury, perhaps it's too much to threaten the security of the nation to have an impeachment. So doesn't -- or who bears the burden of proof?

    MR. DERSHOWITZ: Well, I think on impeachment there is a very heavy burden on the proponents of impeachment. It's not like indictment.

    And there is another thing that is very wrong. You hear from people, both on this committee and elsewhere, that the president has acknowledged this, has conceded this. I heard the president admitted he lied. I challenge anybody to find any statement where the president concedes he lied. Indeed that's one of the criticisms made of the president, that he never conceded he lied! One cannot take this case as a nolo contendere or on the pleadings, take every statement made by the president and his lawyers and say, "Aha, there is a concession of impeachable conduct." That is just that in the Kendall report Kendall refutes every single charge by Mr. Starr. So I don't see how there could be an admission. And I for one am looking forward to finding out what the truth is, since I've heard from all the lawyers.

    REP. HYDE: The gentleman's time has expired.

    Mr. Chabot, would you -- Mr. Chabot, would you yield for a question?

    REP. CHABOT: I would be happy to.

    REP. HYDE: Will you think -- try to think maybe over the dinner hour how you could mislead without lying? Maybe body language. Anyway, thank you.

    REP. CHABOT: Thank you, Mr. Chairman. The gentleman from Wisconsin --

    REP. ROTHMAN: Mr. Chairman? A point of inquiry, Mr. Chairman?

    REP. CHABOT: Let me finish.

    REP. ROTHMAN: Were you addressing the question to one of the panelists?

    REP. HYDE: No, I was addressing it to Mr. Chabot.

    REP. ROTHMAN: Oh, I see.

    REP. HYDE: I do that occasionally. We --

    REP. ROTHMAN: Because I thought if you were asking the panelists you would give them the opportunity to respond. Mr. Chairman, I thought if you were addressing the panelists you would give them an opportunity to respond.

    REP. HYDE: Well, if somebody wants to respond they're welcome.

    REP. CHABOT: I assume we'll be getting the full five minutes, Mr. Chairman?

    REP. HYDE: Yes, you go ahead.

    REP. CHABOT: Thank you, Mr. Chairman. The gentleman from Wisconsin -- and he's not with us now, but early on he mentioned that something to the effect that he felt that the president had carried on behavior which was inappropriate and deserved to be punished, but not necessarily impeached, because he said that impeachment, if it went over to the Senate, would drag out for a year and the country couldn't stand that turmoil, and something to that effect. And that's exactly what they said about this committee. They said if we took this up we had to limit the scope of this impeachment, the matters that we took up, and also the time, because they said this would drag on for a year, or perhaps even two years. The chairman was determined not to let that happen, to move forward in an expeditious manner, which we have done. And it's quite likely that this matter will be wrapped up this year. And I think that if the Senate carried this forward in an appropriate and expeditious manner they could wrap it up one way or another in a relatively short period of time. So I don't think this would necessarily drag on for a year or two years, as some have alleged.

    In addition to that, there are many -- particularly on the other side of the aisle, and a few on ours, that are -- although not on this committee I don't think -- that are looking for censure as a way out. They believe that the president should be punished, but they don't think he should be impeached or removed from office. And as we all know, constitutionally if the House impeaches it goes to the Senate, and they ultimately don't have to remove the president from office -- that's for the Senate to determine. And a lot of folks look at the polls. I don't look at the polls, but a lot of folks do look at the polls, and they say that the public doesn't want this president to be impeached, although they do want him to be punished.

    Now, if the president is impeached and not removed from office, that will certainly be a mar on his record, and one justifiably received, assuming that the facts alleged against this president are true. So I think moving towards censure at this juncture is inappropriate and not for the House to determine. If the Senate wants to consider censure, then that's up to them to determine.

    We've also heard it said by a panelist this afternoon -- or in fact a couple of panelists -- that impeachment (sic) happens in the courtrooms all the time -- policemen commit impeachment (sic) -- it's been compared to a traffic offense. It was also said that people are never really charged or punished in this country for the type of impeachment (sic) that the president allegedly carried out. Yet we had two women before us this morning on an earlier panel who clearly shoed that impeachment (sic) oftentimes is punished, and punished very severely in this country. Those two women certainly were. And in addition to that there's 113 other Americans who are behind bars or on some sort of home release or whatever, but being punished by the federal courts because they committed perjury in a federal courtroom. And we have thousands of people in this country who are suffering criminal penalties because they committed perjury in a state courtroom. So people are punished for it.

    And I wanted to -- Judge Tjoflat is now gone for the day I assume. Let me shift over to General Carney and Admiral Edney, if I could ask you a quick question here. At one point in the Jones case the president had argued that he was immune from suit because he was commander in chief and should in effect be considered an active duty officer and should not be held accountable. If that particular argument had carried the day and the president were now subject to the Military Code of Justice, what types of penalties could he face for the charges of perjury or adultery, if that would have been a charge -- the federal courts or obstruction of justice -- either the admiral or general.

    GEN. CARNEY: Well, the Uniform Code of Military Justice, for which he is not subject, has a perjury article. It has a false official statement article. And it has what is called a general article 133, conduct unbecoming an officer, which indeed an officer will be charged with lying, whether it's under oath or not. So there would be a number -- if I were in a similar situation in, say, commanding the 82nd Airborne Division, there would probably be five specifications to the various charges against me.

    REP. CHABOT: Thank you, general.

    REP. HYDE: The gentleman's time has expired. The gentleman from North Carolina, Mr. --

    REP. CHABOT: Mr. Chairman, I think the admiral also, Mr. Chairman --

    REP. HYDE: I'm sorry, admiral, go ahead.

    ADM. EDNEY: I just wanted to make the point that, first of all, I don't agree that you can make that assumption -- that the president is under a different law, and he doesn't come under UCMJ. But when you come under UCMJ, because of the importance of command and trust and confidence in command, the first act of the UCMJ is to remove the officer from the position of command because you've lost that trust and confidence, because you cannot leave a person and suspect out there in command. Then you do the investigation. So the process is totally different, and the requirement for speed and action -- maintain trust and confidence is essential to the military, and that's why we act the way we do.

    REP. CHABOT: Thank you.

    REP. HYDE: The gentleman from North Carolina, Mr. Watt.

    REP. WATT: Thank you, Mr. Chairman. I want to start by just ensuring all the witnesses that I am not being punished by going last on this side, and the chairman is not punishing me -- it was actually at my request that I went last. So for those who might be worried I want to make sure that the chairman got the benefit of that also.

    I actually had intended to ask a couple of questions to Judge Tjoflat, but since he has left perhaps I could ask these questions to

    Judge Higginbotham and Mr. Rosen. Is there a difference between lying under oath and perjury?

    JUDGE HIGGINBOTHAM: Yes.

    REP. WATT: And if so could you tell me what that difference is?

    JUDGE HIGGINBOTHAM: It's my recollection that Congress amended the statute because they thought that there were some issues which were not incorporated in the perjury standard.

    And I'd be pleased to send you a note on it. But for an impeachment proceeding, unless you tell me that someone was lying and did not take the oath, it would not make a difference whether it would be lying under oath or perjury in terms of making a judgment on impeachment.

    REP. WATT: Mr. Rosen?

    MR. ROSEN: There's a clear difference between lying under oath and perjury. All sorts of things that all of us would acknowledge are lies don't rise to the level of perjury unless they are both intentional and material. And the president claims in all the allegations against him that although he may have -- we might call it a lie, he might call it a misstatement -- none of his lies rise to that technical level of perjury, because they were not intentional. That is to say he believed they were true when he told them, and they were not material to the cases at hand.

    REP. WATT: Okay, let me go to the second part of that, not the knowledge that he was lying but the materiality of the misstatement. Can you tell me a little bit about what materiality means in the definition of perjury?

    MR. ROSEN: Materiality means that the lie had to have been important enough that there was some possibility that it had a chance of affecting the proceeding in which it was told. That is to say in a relevant lie, a question that was asked about some embarrassing matter that couldn't possibly have affected the proceeding wouldn't have been material.

    Now, reasonable people can certainly disagree about whether the misstatement or lie told in the Jones deposition was or was not material. The judge when she ruled the evidence inadmissible said it wasn't -- didn't go to the core issue of the case. At the same time, she did say that it might be relevant. So one could argue the case either way. It is important though to stress that in convicting people of perjury jurors tend to give people the benefit of the doubt and don't convict in close cases where the materiality is open to question.

    REP. WATT: Thank you, Mr. Chairman. I yield back the balance of my time.

    REP. HYDE: I thank the gentleman. The gentleman from Georgia, Mr. Barr.

    REP. BARR: Thank you, Mr. Chairman. Mr. Chairman, I have been taking some time this afternoon during some of the other questioning and testimony and refreshing my recollection which in this instance is remarkably good. Certain provisions of the United States Criminal Code, Title 18 -- I have looked over the various provisions on obstruction, false declarations before a grand jury, perjury. And frankly, Mr. Chairman, I don't find any gradations there. I don't find any context there. I find federal criminal statutes -- the American public and the two witnesses here earlier today who have been convicted of those offenses understand a lot better than some of the folks on this panel.

    When I first heard from this panel, other than beginning with Judge Tjoflat, I was somewhat depressed, because what we seem to be hearing from many of the witnesses is perjury may be perjury -- obstruction may be obstruction, but you have to look at the context. You have to look at whether it was really a serious offense. You have to look at whether or not a person won an election by 49.3 percent or 49.2 to determine whether or not it's really -- that was one of the points, Professor Dershowitz, that was made by one of the other witnesses. They harken back to the percentage by which the president had won the election -- not a majority, but a plurality -- as if that apparently figures in whether or not it is impeachable to commit perjury or not.

    But I am not depressed, Mr. Chairman, and the reason I am not depressed is there really are I think two Americas, and there is a real America out there. And I think our military witnesses understand that, and the two witnesses earlier today understood that, and Judge Tjoflat understands that. And it is that America that I have great faith in, because it's that America that understands what perjury is. It is that America that understands that there are not gradations of perjury when we're talking about the president of the United States of America going before a federal judge or a federal grand jury. They understand for example that indeed, as reflected in the sentencing guidelines themselves, it is indeed more serious for sentencing purposes if you have a person in a position of public trust than if you have an average citizen. And now some on this panel may argue that the president is not in a position of public trust. I think that clearly the sentencing guidelines contemplate that.

    And here again the American public, the real America out there, understands that there ought to be a very high standard for our public officials -- the same America out there that understood when I was called upon as a United States attorney to prosecute a sitting Republican member of Congress who served on this very panel back in the 1980s for doing precisely what the president of the United States now has done, and that is to impede, obstruct and lie before a federal grand jury. I prosecuted him, because down in Georgia, in the Northern District of Georgia, we understand that there are not gradations of perjury, there are not gradations of obstruction of justice, there are not gradations in contextual concerns that come into play whether or not to prosecute a member of Congress or a president of the United States for committing those acts.

    Also the reason I'm not depressed, Mr. Chairman, is the real world out there -- people understand the Constitution, and they understand, unlike some of our law professors here today, they understand that the primary focus of the Constitution as given to us by our Founding Fathers for abuse of office, which is not so vague a term as to be unintelligible to any president, despite some of the testimony here today -- they understand that the way the Constitution is crafted the primary mechanism for dealing with abuse of office is impeachment. It is not prosecution for criminal offense. That is precisely why the first point at which abuse of office by a president and a vice president and other high officials comes up is in the context of impeachment, and then the Constitution goes on to provide that that shall not prohibit essentially prosecution.

    So, despite the fact that some of our law professors here today think that this matter should all be handled by the courts and the Constitution should just be shoved aside, the real America understands that the Constitution is there for a reason that it does mean something -- the same as our Title 18 of the criminal code -- means something in terms of defining with tremendous clarity perjury, obstruction of justice and tampering with and interfering with the work of a grand jury.

    So, Mr. Chairman, even though at the beginning of this panel I was somewhat depressed at what we were hearing, I am heartened by the fact that I don't think these views represent the clarity and the rationality and the common sense with which the real America views these matters, and I am thankful to that.

    MR. DERSHOWITZ: Can I respond, 30 seconds, to what I perceive to have been a personal attack? First of all, whenever I hear the word "real Americans," that sounds to me like a codeword for racism -- a code word for bigotry, a codeword --

    REP. BARR: That's absurd, professor, you ought to be ashamed. That is the silliest thing I have ever heard --

    MR. DERSHOWITZ: When I hear you describe me as something other than a real American -- shame on you. We may have a disagreement about the merits of these issues, but I would no more impugn your Americanism than you should impugn mine, sir.

    REP. BARR: You're being silly, professor. You are being absolutely silly.

    MR. HIGGINBOTHAM: May I respond, Mr. Chairman?

    REP. HYDE: Yes, indeed -- far be it from me to not have anyone respond. Go right ahead.

    MR. HIGGINBOTHAM: I take profound disagreement with Congressman Barr's categorization of the "real America," which he apparently understands with such fine discernment, and those of us who teach at universities are oblivious. You know we have students, and they teach us something. And my father was a laborer. My mother was a domestic. And I climbed up the ladder, and I did not come to where I am through some magical band. So t hat I am willing to match you any hour any day in terms of the perception of the "real American."

    Now, let me put this in perspective, because I cited some statistics, and apparently that is not relevant to the real America.

    On page seven I gave the fact that President Clinton got 379 electoral votes and 47,410,054 votes. I cited that because when you do an impeachment -- when you do an impeachment you remove someone, Congressman Barr, who got elected by the real America. And it is the pernicious consequences on which that could happen.

    Now, let me give you an example as a federal judge. In the Sixth Circuit -- Tennessee, Michigan, Ohio, Kentucky -- from the day President Reagan got in to President Bush's last day there was never one African American appointed to those courts. And before him President Clinton -- President Carter appointed blacks. After him President Clinton. Now, when you remove a president you will be removing someone who may have some values which are as important as what you called perjury. And that is pluralism, the opportunity for people who are black to get into the system. There is still conflict whether some people accept what Roger Brooke Taney said in the Dred Scott case that a black man had no right to which the white was bound to respect. That was values, and that was a real America. But Justice McLean and Justice Curtis dissented, so that we have in this country when Dred Scott was decided, when Plessy was decided, and in recent cases, a profound division in terms of pluralism and inclusion, and I think that there's a real America which President Clinton took in terms of fairness, and I would be delighted to debate this issue with you in far greater detail.

    REP. HYDE: Does the gentleman from Georgia wish two minutes to respond?

    REP. BARR: Thank you, Mr. Chairman. My point would be, you know, all of that's fine and good -- it's utterly irrelevant, the same as the silliness that Professor Dershowitz thinks that talking about a real America in terms of understanding certain concepts of the law, the Constitution, military discipline, he thinks that's -- what was it, a racial issue or something -- it was so silly.

    MR. DERSHOWITZ: A codeword.

    REP. BARR: But I think my concern, Mr. Chairman, is when we bring these sorts of thing up and say simply because we have a president that we might remove from office for violating his oath of office or otherwise committing high crimes and misdemeanors, simply because of certain policies, then we get into constitutional and legal relativism that I would certainly think that a learned member of the bar and former member of the federal judiciary would not stray into, using as an excuse for not upholding the rule of law or the constitutional standards that we have simply because we have a president that might do certain things politically that we like, is a very, very slippery slope, Mr. Chairman --

    REP. HYDE: The gentleman --

    REP. BARR: -- and I know that we are not going to go into that.

    REP. HYDE: The gentleman from New Jersey -- I'm sorry, Florida -- Florida, Florida -- Mr. Wexler.

    REP. WEXLER: Thank you, Mr. Chairman. I would just like to ask some short questions of General Carney, if I could, and then give the remainder of my time to Professor Dershowitz if he chooses to respond to the chairman's question of Mr. Chabot, if he chooses.

    General, I find as a part of this debate -- not just today but the ongoing debate over the last year -- the issue of morale in the military -- while it may not be directly related to impeachment or directly related to the issues that this committee concerns itself with, I find that to be one of the most concerning issues. And the allegations that some make that the president's conduct has in some ways, significant or otherwise, lowered the morale in the military.

    My experience in terms of speaking with people in the military in Florida, when you get right down to it, if there is in fact a morale problem it seems to me from my conversations to stem more from budgetary shortfalls, more from a perceived, and I would agree a perceived lack of increases in pay -- things that really matter to the members of the military, more than a specific reference to the behavior of the president.

    And I was wondering, one, if you might comment on that. And, two, what I also hear from admittedly the junior officers and the enlisted personnel in terms of this portrayed double standard of law -- what I hear from enlisted personnel regarding the adultery policy is -- and I don't know if this is quantifiably correct -- but they certainly seem to suggest -- or at least the number of them that I have talked to -- that there is a double standard, that the court martial program is much more quickly used with respect to enlisted personnel as it is with respect to -- and I think the word is red-flag officers. And I was wondering if you might speak to that. How many red-flag officers have been court-martialed for adultery, say, in the last 40 years? The people in the military that I've talked to -- admittedly again not the high officers but the personnel people -- seem to think there's a double standard.

    GEN. CARNEY: Congressman, I was the deputy chief of staff of personnel. I never heard the term "red-flag officers," but I do understand your meaning. I am not aware of a double standard by any stretch of the imagination. What the enlisted people that you are talking to probably don't understand is what happens to senior officers is not very well known to them.

    Secondly, to your first point, yes indeed there is a morale problem. I know Congressman Buyer knows it well. There is a 13 to 15 percent gap in military pay. There is a retirement system that was voted in in '86 that mid-career officers and enlisted soldiers find to be obnoxious. There is an increase in deployments that have occurred in these past six years in the face of a 40 percent reduction of force structure -- and a whole bunch of other problems.

    Now, is there a problem caused by the president's conduct? I don't have any idea. It would in my view be a violation of Article 88 if the military were even to conceive of taking such a poll, and so I doubt seriously that anybody can really respond to what you said.

    REP. WEXLER: Thank you, I appreciate that.

    And if I could, Mr. Chairman, I'd like to give Professor Dershowitz an opportunity to respond to your earlier question.

    MR. DERSHOWITZ: Chairman Hyde, you asked what the difference is between perjury and misleading testimony. The answer is Bronston (sp) v. the United States.

    REP. HYDE: That isn't what I asked.

    MR. DERSHOWITZ: What was the question?

    REP. HYDE: I asked how you can mislead without lying.

    MR. DERSHOWITZ: Oh, how you can mislead without lying?

    REP. HYDE: Yes, yes.

    MR. DERSHOWITZ: Well, the Supreme Court gave the following -- took the following case -- and Mr. Bronston (sp) was asked whether or not he has ever had a Swiss bank account. He responded by misleading, by saying the company had an account there -- in fact he had an account there. The Supreme Court said that petitioner's answers were shrewdly calculated to evade, yet they were not lies -- they were literally the truth with a clear, subjective intent to mislead. Now, you and I wouldn't deal with our families that way -- I wouldn't deal with my students that way. It is wrong to do it that way. But the difference between lying and perjury is whether or not something is a literal truth. A misleading, literal truth is not perjury. The president acknowledged in his testimony that he intended --

    REP. HYDE: Professor --

    MR. DERSHOWITZ: -- to deny information to the Paula Jones lawyers but he did not intend to commit perjury.

    REP. HYDE: I'm not talking about perjury. I'm talking about -- he said he misled people but he didn't lie.

       


    MR. DERSHOWITZ: That's right.

    REP. HYDE: And I am having trouble reconciling how you mislead without lying.

    MR. DERSHOWITZ: If you tell a literal truth that you understand will mislead that is misleading without literally lying.

    REP. HYDE: Well, I can see that, and if you want to soften around the edges. But the person who continues to evade telling you the whole truth and nothing but the truth I would call a liar.

    MR. DERSHOWITZ: I think that's a fair assessment. I think it's a fair appraisal to say in colloquial talk a person who continuously misleads is somebody that we would generally regard as a liar. But there is a difference between moral talk and legal talk, and that's the difference between the rule of law and the rule of people. And under the rule of law that does not constitute technical lying, it does not constitute the crime of perjury.

    REP. HYDE: Thank you. Who's next? Mr. Hutchinson.

    REP. HUTCHINSON: Thank you, Mr. Chairman.

    Professor Dershowitz, if I understand your testimony, you've concluded that if the president lied under oath in the Paula Jones deposition that that would not be an impeachable offense -- is that correct?

    MR. DERSHOWITZ: That's right.

    REP. HUTCHINSON: And -- these aren't complicated questions, they are not trick questions. But then you got to the grand jury testimony -- I believe you concluded in your judgment that he did not commit perjury --

    MR. DERSHOWITZ: That's right.

    REP. HUTCHINSON: -- in grand jury testimony. But if one were to conclude that the president committed perjury in the grand jury testimony, would you agree that it is a fair consideration and a fair debate as to whether that rises to the level of impeachable offense?

    MR. DERSHOWITZ: I think that's as very fair question. I think reasonable people could disagree about that, if the origins of it were an attempt to prevent embarrassing questions from coming up. I think if you had a president that clearly sat down and made a deliberate calculated decision to try to commit perjury to a grand jury that was investigating his criminal conduct you could reasonably include that within the category of impeachable offenses.

    REP. HUTCHINSON: Thank you, professor, I appreciate that. And I think that that is consistent with the essays that you wrote contemporaneously and really preceding the president's grand jury testimony. You were, along with other Democrats, were sounding alarms to the president -- make sure you tell the truth.

    MR. DERSHOWITZ: No, no, make sure you don't commit perjury, is what we said. I obviously would have preferred for him to tell the truth, the whole truth.

    REP. HUTCHINSON: And I just want to read some of the language that you used at the time. In July of 1998 you stated that "His testimony promises to be the single most important act in his presidency. He must tell the truth, whatever the truth may be."

    MR. DERSHOWITZ: That's right.

    REP. HUTCHINSON: And then continuing on you also wrote in August of 1998, again preceding the president's testimony before the grand jury warning, "Still there is nothing the president has done so far -- so far -- that will get him impeached, because it all occurred in the context of a civil suit that has been dismissed. But if he were now to deny any sexual involvement with Lewinsky during his grand jury testimony, and if that testimony were to be proved false" -- remember what you said then?

    MR. DERSHOWITZ: He would be impeached.

    REP. HUTCHINSON: "He might well lose his presidency."

    MR. DERSHOWITZ: And I think he -- I think if in fact he had denied any sexual contact with Monica Lewinsky at that point and the DNA evidence had then come forth afterward and proved that he was categorically lying about something which was then the subject of a grand jury investigation, and lied in so dramatic a way, yes, I agree with that. But he didn't do that.

    REP. HUTCHINSON: All right, reclaiming the time, reclaiming the time. I think your testimony is that if he perjured himself before the grand jury that that might well constitute an impeachable offense.

    Now, let me move on to Professor Rosen. You talked about the criminal sanctions. A number of people have made the point that the president could have sanctions, the accountability because he's subject to criminal prosecution. Is this really something that you think is an option? Do you -- who -- first of all, would it not be the independent counsel, Kenneth Starr, that would pursue a prosecution of the president of the United States for perjury?

    MR. ROSEN: It would, and it might well be. The independent counsel has shown an imperviousness to public opinion before, so that's quite conceivable that he might bring a perjury prosecution if you decide not to impeach.

    REP. HUTCHINSON: But it's his call. Would this be really good for the -- but what you're saying and others are saying, Mr. Rosen, that the president should be punished. Well, if we really want accountability, what's the best odds here? Is that -- and what's best for the country? To be punished by Kenneth Starr for -- wait for two years to be prosecuted in the year 2001? Or is it better for the Congress of the United States to deal with this issue?

    MR. ROSEN: A crucial question. The wonderful question that you posed to the country in these hearings is: How can we subject the president of the United States to the same rule of law that was suffered by those witnesses that we have heard from this morning? And the answer is: the ordinary rule of law. It should be a prosecutor. Kenneth Starr can decide to prosecute or not, and he will be subject to the same constraints of prosecutorial discretion.

    REP. HUTCHINSON: Well, which is really an escape hatch because, as Professor Dershowitz said, he will not be indicted after he leaves office. That is your opinion, is it not, professor?

    MR. DERSHOWITZ: Absolutely.

    REP. HUTCHINSON: And is that not your opinion, Professor Rosen?

    MR. ROSEN: I wouldn't -- it is not my opinion. I would not presume to predict the calculations of the independent counsel, Kenneth Starr, who might well indict the president.

    REP. HUTCHINSON: I think everybody in the country would say that we punted on this issue. It was a punt on third down, if we do not deal with the issue that is before this committee.

    REP. HYDE: The gentleman's time has expired.

    The gentleman from Indiana, Mr. Pease.

    REP. PEASE: Thank you, Mr. Chairman. I find myself as I often do at the end of the day with most of the things -- all of the things that I intended to ask having been addressed by those who are brighter than I.

    I do want to thank the witnesses for being with us. I do want to express my regret that at times there were personal statements made by both members of this committee and by members of the panel -- I find that unfortunate. But I am grateful for the information that was provided, the expertise that was shared, and the time that you spent with us. Having said that I want to yield the balance of my time to my colleague from Indiana, Mr. Buyer.

    REP. BUYER: I thank the gentleman for yielding to me. I wear another hat here in Congress. I chair the Military Personnel Subcommittee of the National Security Committee, and General Carney, that's where you and I have had a good working relationship. And I appreciate your candor here today.

    The message that military personnel is I believe that they do look to the commander in chief to set the high standard of moral and ethical behavior. They look all the way up that chain of command to the president as commander in chief.

    And the military -- I think it's proper for the American people to demand of the military the highest standard and to lead, and to lead by example. Adherence to high moral standards is the fabric of good order and discipline -- both of you have testified to that today, and I concur with you.

    When military leaders, to include the commander in chief, fall short of this ideal, then there is confusion and disruption in the ranks. And today many do see a double standard. I'm out there. I've been with the Marines, I've been with the Third Fleet before they sailed. There is a disruption. There is confusion. But the great thing is the message I can say to America is we have a professional military and we do have an adherence to civilian control. And, General Carney, I agree with your answer to Mr. Wexler: they are professional and they will respond, and they are the greatest military in the world. And it is very difficult for us to measure this issue about morale. And I think Mr. Wexler asked very good questions about morale, because it's multi-faceted at the moment. But it would be wrong for us not to ask that difficult question about what is the impact on the force -- is it detrimental? What is its impact upon readiness when the force is disgruntled, when the commander in chief is then held to a different standard or a lower standard than that which he demands of his own service?

    I want to be informative here to my colleagues about the issue of exemplary conduct. And that moves to this question about should the president as commander in chief be held to the same standards of those he leads within the military. We see the Founding Fathers were concerned about the ethical standards of the military leaders. It was John Adams that included in the first naval regulations language that called for naval officers to have high moral and ethical standards. Admiral Moore in his statement included that reference. This language was codified for naval officers by Congress in 1956. When I conducted the review after the Aberdeen sexual misconduct incidents I learned so clearly about the importance of the chain of command, because there are those who sought to weaken the chain of command. And when you look at the Goldwater-Nichols law it goes from that lowly recruit all the way through the secretary of defense, the national command authority. It drops right at the commander in chief.

    So what did we do? We then said in 1997 if in fact the exemplary conduct language applies to the Navy, then we said apply it to the Air Force and the Army, and the Congress did that in 1997, and the president signed that into law. I then said, you know, but it's not done yet. We then need to say it applies to the national command authority as set out in law. That's what we have here.

    See, the Navy, Army and Air Force have exemplary conduct language. And what I did in the -- is -- what this says is that it calls for the officers to show themselves a good example of virtue, honor and patriotism, and to subordinate themselves to those ideals, and to guard against and to put an end to all dissolute and immoral practices, and to correct all persons who are guilty of them. You see, there is frustration and confusion in the military. Because I traveled to a number of the military installations, both in the United States and overseas, I refer to the questions from the military personnel on the behavior of the commander in chief. And as a member of Congress and as a military officer myself I find these questions disturbing. Each of the services are recruiting young people across the nation. At boot camp they're infusing them, the young people, with moral values of honor, courage and commitment. They are teaching self-restraint, discipline and self-sacrifice. Our military leaders are required to provide a good example to these young recruits. Yet when they look up the chain command they see a double standard at the top. That is why I sought to include this exemplary conduct language to apply to the secretary of defense and the president as commander in chief. I have no interest in placing these two civilians under the Uniform Code of Military Justice.

    Now, this was included in the defense bill, but the Senate would not go along with it, so what we have is a sense of the Congress resolution. You see, the Congress here has already spoken on this issue and has said that we believe that the president as commander in chief should be held to this high exemplary conduct language that I read here. And I just -- I thank the gentleman from Indiana for yielding to me on this point, because the language that we are asking the president to abide by - -it's very simple -- and that is that the president and the secretary of defense are to show themselves a good example of virtue, honor and patriotism, and to subordinate themselves to those ideals, to be vigilant in respecting the conduct of all persons who place under their command, to guard against and put an end to all dissolute immoral practice and to correct according to the laws and regulations of the armed forces all persons who are guilty of them, and to take all necessary and proper measures under the laws, regulations and customs of the Armed Forces, to promote, safeguard the morale, the physical well-being and the general welfare of the officers and the enlisted persons under their command or charge. It is not in law, but I will come back in the next Congress to try to make this law so that everyone understands who -- wonder what standard will everyone be applied to. Thank you.

    REP. HYDE: I thank the gentleman.

    The distinguished gentleman from Utah, Mr. Cannon.

    REP. CANNON: Thank you, Mr. Chairman. I would like to first of all apologize to you and to the panel for having interrupted on a couple of occasions to try to keep the five-minute rule at least within the 20-minute parameters. I --

    REP. HYDE: I accept the chastisement.

    REP. CANNON: It was actually an apology, but we'll see about the next hearing when the minority has its time again.

    Let me just make a couple of points, because I had some questions for the two judges who left us, Judge Wiggins and Judge Tjoflat. In the first place let me point out that I think that when we talk about gradations of perjury we're often really talking about gradations of proof or evidence. And where we have clear proof there should not be much reason not to proceed in any case of perjury.

    Secondly, Mr. Rosen pointed out that we don't know what the president's state of mind was -- he hasn't told us what his intent was. But let me point out that all perjurers say they were not intentionally lying or consciously lying. One of the remarkable things about our two witnesses earlier today was after having been caught, after having gone through the process they appeared rather repentant.

    And now let me turn to Judge Wiggins' idea of a million dollar penalty -- a million dollars of course is a great deal of money, and I suppose it is meant there to express something about the seriousness of the president's perjury. But it occurs to me that to impose such a penalty either becomes an ex poste facto bill or bill of attainder on the one hand, both contrary to the Constitution; or, on the other hand, the president comes forward and agrees that that kind of a penalty should be imposed upon him, and doing so it seems to me breaks down the barriers between the branches of government. I think it is a great constitutional sin, and that is why I am deeply opposed to the idea of censure or censure-plus, or censure with pain.

    Let me just point out that I have at this time a deep concern about our constitutional system. And it is part of that concern I have great fear and concern for our military. And so I appreciate General Carney and Admiral Edney joining us today. If I might just ask the two of you a few questions. In the first place, does by his behavior this president pose a danger to our country?

    GEN. CARNEY: No, sir.

    REP. CANNON: Admiral?

    ADM. EDNEY: No. Let me give you a specific. I just got a direct communication from the chief of naval operations.

    He came back with the troops in the Gulf and the Marines in the Gulf, telling how highly committed they were. It goes to what Ms. Lee was talking about -- it is not a single issue -- nobody should mistake that the morale of the armed forces of the United States is such that they will fight and they will do their job better than anyone else.

    What we have said, which has been a little bit, is all of this collectively -- you are seeing indications in the American armed forces through recruitment and retention that says morale is not as high as it should be, and there are multiple factors, one of which is immeasurable but is out there, this conflict that Congressman Buyer was talking about.

    REP. CANNON: Thank you. You actually answered really to the core of what I am concerned about. You have a large turnover every year of about a fifth or a quarter, if I understood, general, what you said earlier -- 500,000 people need to be recruited per year. Over the next couple of years that means we are going to recruit 500,000 or a million people. Do we have a difficulty inculcating into those new recruits the value system when morale is a problem?

    GEN. SHELTON: We have typically all the time -- they come from a variety of walks of life. The Army for example just added one full week of basic training, moving from eight to nine, in order to free up some time to do, among other things, the inculcation of the values system in those seven Army values that I discussed.

    Now, are there people who are not joining us because of this controversy? I have no idea. I suspect that there are some. There are bigger issues right now in the employment position that causes recruiting difficulties in the services.

    REP. CANNON: You mention the "controversy" -- I take it you mean the president's conduct?

    GEN. CARNEY: Yes, sir.

    ADM. EDNEY: Let me say, sir, that the issue is much more complex. We have been charged by the Congress to do a very difficult thing, and that is the total integration in very confined spaces and very difficult missions, with young 18- to 23-year-olds. And so the standards are understood. The growth and maturity and living of them,

    I don't want anyone to think it's easy. And the challenge on the commanding officers out there is extremely a challenging one. And so it's much broader than one individual.

    REP. CANNON: In a very difficult environment, I take it.

    ADM. EDNEY: Very difficult.

    REP. CANNON: From the thrust of your testimony, the president's actions have made that more difficult.

    ADM. EDNEY: They have not helped. Yes, that's correct.

    REP. CANNON: Thank you, Mr. Chairman. I yield back the balance of my time.

    REP. HYDE: I thank the gentleman. The gentleman from California, Mr. Rogan.

    REP. ROGAN: Thank you, Mr. Chairman. First, I want to commend all of the remaining members of our panel for their staying power, and I want to express to each and every one of you my profound appreciation and respect for all of your presentations and for what you've brought to this particular committee.

    I guess, in fairness, Professor Dershowitz, I have to single you out just for one moment, because I want to assure you that you and I have no hard feelings between ourselves. I know that you raised a few hackles here with some of my colleagues with controversial comments, but I want you to know I personally found them to be very therapeutic, because up till now the only excuse I had for not having attended Harvard Law School was my grade-point average. (Laughter.) So you've given me a little different perspective.

    A couple of observations, if I may. (Continued scattered laughter.) That wasn't meant to be funny. (Laughter.) A couple of observations, if I may. I have to be candid. I was a little taken aback today by the constant references to Defense Secretary Weinberger. And I noted, in all seriousness, Professor Dershowitz, your comment that if the committee was actually serious about pursuing perjury issues, we would be looking at the potential perjury of Defense Secretary Weinberger.

    I don't know if that was offered more for rhetorical flourish or not, but I will confess to you that I'm certainly not an expert on that subject. I was not a member of Congress at the time. I do know that the president of the United States, for right or for wrong, has the constitutional power to pardon an individual, and I don't think that there would be any critique on that. I also know that a president has no constitutional prerogative to commit perjury.

    What I found interesting about the Weinberger suggestion was reviewing the Los Angeles Times article from December 25th, 1992, that reported on the pardon. And the Los Angeles Times interviewed various people about how they felt over Mr. Weinberger's potential perjury being pardoned by President Bush. And one of the people they interviewed expressed his grave concern about that pardon. And when they asked him why, he said, "Because it signaled that if you are a high government official, then you are above the law." That quotation was from the president-elect of the United States, Bill Clinton.

    And so here we come full circle to this concept of the rule of law, which haunts the members of this committee night and day. And I wish that I were articulate enough to try to express my feelings on the subject appropriately. I'm not. However, this very morning, over coffee, reading the morning newspaper, I found a very commendable commentary by Paul Greenberg in today's paper. And if I may, I just want to read a few passages from it.

    He said, "In the end, the whole great structure of the law begins to totter when men come to see it not as a guide or restraint, but just as a series of obstacles to evade. Remove the basis of law, like the search for truth that once made perjury a serious charge, and any individual law may be got around, too. Crimes are minimized. And if prosecutors cannot be ignored, they can always be demonized.

    "One after the other, whether they involve campaign contributions or obstruction of justice, great matters or small, individual laws are got around. And soon enough, the idea of law itself will be shrugged off or explained away. No wonder Americans come to assume that we are ruled by the polls or the election results or the spirit of the times or the most persuasive personality. The rule of law becomes a platitude reserved for ceremonial occasions, a quaint concept that all repeat but no one may believe."

    And, Mr. Chairman, I suspect that, in closing, that is the idea that haunts me the most, both as a member of this committee and, more importantly, as a citizen of this country. I hope that will not be the legacy of this Congress now or ever.

    I yield back the balance of my time.

    REP. HYDE: I want to thank the gentleman. And I want to announce, as we're getting down to our very finest members, that some day soon we'll have a hearing and I'll start the questioning at that end. But don't hold me to when that will be, but I will. (Laughter.) I will. I pledge I will. Mr. Lindsey Graham.

    REP. GRAHAM: Thank you, Mr. Chairman. One thing I've learned, that five minutes is not as short as it seems sometimes. And I will try not to abuse it. We've got an admiral and a general, an Army and Navy guy, right? I don't mean to be disrespectful; I'm an Air Force guy. We're going to read the Air Force Academy honor code to you. "We will not lie, steal or cheat nor tolerate among us anyone who does. Furthermore, I resolve to do my duty honorably, so help me God." That's what Air Force Academy folks have to swear to.

    This idea of "tolerating among us anyone who does," is that true for the Army and Navy academies?

    GEN. CARNEY: That is true for West Point.

    ADM. EDNEY: The Naval Academy does not have a no-toleration clause.

    REP. GRAHAM: Okay. I've always wondered; it seems to me we're saying it's just as bad to know about it and do nothing as it is to do it yourself. That seems to be what they're saying. Do you agree with that concept?

    ADM. EDNEY: That's correct. The no-toleration clause does not allow you to do nothing.

    REP. GRAHAM: Right.

    ADM. EDNEY: It says that there are -- each situation has a series of circumstances. You must evaluate it, but you must take action.

    REP. GRAHAM: And that's what I'm trying to do. I know about it, and I know I can't do nothing, but I don't know what to do. You know, I've been here all day, and now I feel guilty about suggesting he tell the truth. Maybe it's my problem, not his. But I'm trying to find a way so that we will be judged well 30 years from now.

    I really believe, 25 years after the Richard Nixon case, most people believe he got what he deserved. And I would like to think that if I had been in Congress then -- no offense to the judge there -- that if I had seen everything that transpired, as a Republican I would have said, "You should lose your job, President Nixon, for covering up things that are probably far worse than the underlying event." And I'm trying to make sure that I don't impose a standard on the president that's going to get us in trouble down the road, because he's not a military officer per se.

    And let me just tell you this. As a junior officer, probably in your command, that if you got stopped by the MP on the base and you lied about how fast you were going, and you were doing 55 and you said you were doing 49, you'd lose your job. In that environment, as a former judge advocate who prosecuted people and defended people in that environment, we really do take stuff very serious that would be trivial anywhere else. But I don't want to put that standard on the president. I just don't think we need to do that to politics, whether it's right or wrong.

    My problem is, I believe in my heart, Professor Dershowitz, that when you told him, "Be careful at the grand jury; this is getting really serious now," that he wasn't careful. And I really believe in my heart that when he was in the Paula Jones deposition, that he left the deposition and he went back to his office and he went to his secretary and he planted in her mind several stories he knew to be false.

    And if I'm -- and I'm a lawyer and I love the law, and I want to go back to the law, maybe sooner rather than later, as long as this thing keeps going -- but it would really bother me as a lawyer to know the other side was messing with the witnesses and was trying to hide the evidence to hurt my client.

    But now I've got to judge whether or not the president should be subject to being impeached and losing his job for things like that. And history is going to judge us one way or the other, and all I can tell you is I can't articulate, as my friend from California said well enough, but I know in my heart it is not right for me, Lindsey Graham, to believe the president committed grand jury perjury and not subject him to being able to lose his job through a trial in the Senate. I know that's not right for me, based on the way I was brought up, based on who I am. And I am a sinner and I've made my fair share of mistakes. I can't live with me, and that's the standard for all of us at the end of the day.

    Now, I've said something today that I could live with. If the president would do what I think is the right thing, and that's come forward and admit to the obvious -- most people believe he lied under oath. If he would show the character trait to admit to what I think is clear from the record, I would treat him differently, knowing as a lawyer now that might subject him to some consequences down the road.

    But I believe, in this situation, it's not about me, it's not about him, but it's about us. And we're political leaders. We're not military officers. Some would say we have a higher standard. I don't want to argue with you about that. But I know this, that the "us," Bill Clinton and Lindsey Graham, need to set a tone that brings out the best in the American people, for they are basically very good. And when I said today that I wanted the president to come forward and do what I think is the right thing, I know there are some consequences to him, but they're minimal for the good it would do this nation.

    And I appreciate all of you coming here today. And at the end of the day, all your advice will be welcome. But we've got to do what we can live with.

    Thank you very much, Mr. Chairman.

    REP. HYDE: Thank you, Mr. Graham. And Mary Bono is our last questioner, and far from our least questioner.

    REP. BONO: Thank you, Mr. Chairman. I would first like to thank all of the witnesses for appearing here today, for your insight, and certainly most of all for your patience. As one who speaks last, I know how patience can be trying at times like this.

    But I'm particularly interested in the statements of Admiral Edney and General Carney. I have great respect for the men and women of our armed forces who sacrifice so much to ensure our freedom. Admiral Edney mentioned how he spent Thanksgiving with his children -- excuse me, his grandchildren -- at the parade. It made me think about my Thanksgiving, and I had the opportunity to spend it with my parents. My father was a -- (inaudible) -- gunner in a B-17. He flew 19 missions over Germany, and I'm very proud of that fact.

    It made me realize, I guess, the admiration that I have, not only for him but for all of our service members, and how that instilled in me the example set by my father. And he has a great sense of commitment, and he dutifully followed his oath to defend this nation. I'm hopeful my children will also gain a strong sense of commitment and honor from him.

    Sometimes I worry about the mixed message they're receiving, based on the conduct of the president and his lack of faith to his oath of office and his oath before the court. Disillusionment with the president was certainly something that I was made aware of a great deal a little while ago back home on Veterans' Day. I spent the day at a parade in Palm Springs, and I was lucky enough to have General Clifford Stanley from Twenty-Nine Palms Marine Air Combat Center in attendance.

    I think some of the concerns I heard, though, are nicely summed up by Admiral Thomas Moorer, former chairman of the Joint Chiefs of Staff, in testimony submitted to the committee today. I would simply appreciate it if Admiral Edney and General Carney would comment on the following statement of Admiral Moorer: "The United States armed forces now have a more fundamental challenge to leadership training than simply instilling character traits adverse to lying, cheating and stealing. How do we instill in young leaders the moral courage to admit when they are wrong and to accept accountability for poor choices? Personal example by senior leaders, up to and including the commander-in-chief, is an essential starting point, and risk to personal ambitions is no excuse for any officer of the United States armed forces to fail in this regard." If you would have a comment on that.

    ADM. EDNEY: My comment is that it is made more difficult when we have examples like we're discussing today. But there is no question that the young people coming into the military are being taught to do what is right, to analyze and come up with the whole truth and act in accordance with the truth. They are being taught to avoid obfuscation. They are being taught to avoid litigious answers and do what is straight talk and right, because it is the troops that you cannot blow smoke in.

    The troops understand what is right. They know right from wrong, and they know when they see their leaders do wrong and not be held accountable, that there is something wrong. And so we are working on all of those issues. And I can say to you, from my exposure to the young military, both officer and enlisted, that the future is in good hands because they have good quality, and you have every right to be proud of them. And they are analyzing the message and they're understanding it.

    Does that mean it's not difficult? Does that mean that you will not get strong differences when you want to talk about it around the table? You'll get some of the same swings that you've been talking here.

    GEN. CARNEY: I'm not concerned about the troops. We teach integrity because it's good to be honorable men and women. But we also, as I stated in my opening remarks, we teach it because of the battlefield component, that false reports on the battlefield can cause lost battles and unnecessary casualties. Troops understand that. They also probably understand that the commander-in-chief was not committing us to battle when he allegedly made these errors. I think they can understand that. And I think that, indeed, the way it's being taught today, the value system will be easily understood.

    REP. BONO: Thank you very much.

    REP. HYDE: I thank the gentle lady. I want to say, before I adjourn the committee, how really grateful I am for you folks who have spent all day, and it's been a long one and a difficult one. Even when you disagreed with us, which is most of the time, you helped us. You're here because you're darn good citizens and you want to contribute to this awful task we are grappling with, and you have made a great contribution. You're all heroic, and I thank you. And the committee stands adjourned.

    REP. JACKSON-LEE: (Off mike.)

    REP. HYDE: Yes.

    REP. JACKSON-LEE: Might you give us some idea of the future hearings, oversight hearings or meetings of this committee? It might be very helpful to many of us in terms of preparation.

    REP. HYDE: I don't have that information. But as soon as it is formulated, you will be communicated with by the most direct route.

    REP. JACKSON-LEE: Thank you, Mr. Chairman. You might expect to see us next week, I imagine.

    REP. HYDE: I think next week will be a big week in our lives.

    REP. JACKSON-LEE: Thank you very much, Mr. Chairman.

    REP. HYDE: Okay, thank you. The committee stands adjourned.

    END.

       



    Copyright © 1998 by Federal News Service, Inc. No portion of this transcript may be copied, sold or retransmitted without the written authority of Federal News Service, Inc. Copyright is not claimed as to any part of the original work prepared by a United States government officer or employee as a part of that person's original duties. Transcripts of other events may be found at the Federal News Service Web site, located at www.fnsg.com.

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