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THE IMPEACHMENT TRIAL
Jan. 22: Questions 1 to 16

  • More Transcripts From the Trial

  • From the Congressional Record
    Friday, January 22, 1999

    The CHIEF JUSTICE. The Senate will convene as a Court of Impeachment. The Chaplain will offer a prayer.

    Prayer

    The Chaplain, Dr. Lloyd John Ogilvie, offered the following prayer:

    Spirit of the living God, fall afresh on us. We need Your strength. The wells of our own resources run dry. We need Your strength to fill up our diminished reserves--silent strength that flows into us with artesian resourcefulness, quietly filling us with renewed power. You alone can provide strength to think clearly and to decide decisively.

    Bless the Senators today as they trust You as Lord in the inner tribunal of their own hearts. You are Sovereign of this land, but You are also Sovereign of the inner person inside each Senator. May these hours of questions bring exposure of truth and resolution of uncertainties. O God of righteousness and grace, guide this Senate at this decisive hour. You are our Lord and Savior. Amen.

    The CHIEF JUSTICE. Senators may be seated. The Sergeant at Arms will make a proclamation.

    The Sergeant at Arms, James W. Ziglar, made proclamation as follows:

      Hear ye! Hear ye! Hear ye! All persons are commanded to keep silent, on pain of imprisonment, while the Senate of the United States is sitting for the trial of the articles of impeachment exhibited by the House of Representatives against William Jefferson Clinton, President of the United States.

      The Journal

    The CHIEF JUSTICE. If there is no objection, the Journal of proceedings of the trial are approved to date.

    Pursuant to the provisions of Senate Resolution 16, the Senate is provided up to 16 hours during which Senators may submit questions in writing directed to either the managers, on the part of the House of Representatives, or counsel for the President. The Chair recognizes the majority leader.

    Mr. LOTT. Thank you, Mr. Chief Justice.

      Order of Procedure
       


    Mr. LOTT. This afternoon, the Senate will begin the question-and- answer period for not to exceed 16 hours, as provided in Senate Resolution 16. I have consulted several times about this procedure with Senator Daschle and others, and we have determined that the majority will begin the questioning process with the first question, and we will then alternate back and forth.

    As I noted yesterday, this has not been done in quite a while, so we will just have to go forward in a way that we feel is fair and comfortable. We ask that you give the benefit of the doubt to us in how we send the questions up to the Chief Justice. Senator Daschle and I will try to make sure that the time stays pretty close to even as we go through the day. Of course, the Chief Justice, I am sure, will make sure the deliberations and the answers are fair. We hope the answers will be succinct and that they will respond to the questions.

    One question that has arisen from Senators on both sides is, can we direct a question to both sides, the White House counsel and the House managers, simultaneously, and the answer is no. Under our rules, we will direct the question to one side or the other, and our questions for either side may go to either one of the parties, but only one can answer that question.

    Of course, there is the possibility for a follow-up question that might be directed to one side or the other. We will just deal with that as we go forward.

    I expect, for the information of all Senators, that we will go approximately 5 hours today. I don't know how many questions we can get done in an hour, but I suspect by 6 o'clock on Friday we will have exhausted a series of questions that will entitle us to a break at that point. But, again, we will just have to see how we feel about it. We would not stop, obviously, in the middle of a question.

    We will resume again on Saturday at 10 a.m., alternating between both sides. The schedule at this point is undecided. We need to see how many questions are left that Senators really feel need to be asked and, again, we will have to see how the day progresses.

    I did have Senators come up to me yesterday and talk to me about we need some reasonable limit on that. But I am thinking in general terms of not going beyond 4 o'clock on Saturday. We will converse and make those announcements after consultation as we go forward tomorrow or during the day even tomorrow.

    I hope we can complete our questioning period by the close of business tomorrow, but if we go with the times I basically mentioned, we are talking about 10 hours, not 16. So we will have to consult and determine if we ask the basic questions or if we want to continue it later or even over on Monday.

    I believe, Mr. Chief Justice, that completed the explanation that I wanted to give at this time.

    I do have the first question prepared to send to the Chief Justice, but I thought perhaps he had some further business he might want to address before I did that.

    The CHIEF JUSTICE. Yes. I would like to advise counsel on both sides that the Chair will operate on a rebuttable presumption that each question can be fully and fairly answered in 5 minutes or less. (Laughter.)

    Mr. LOTT. Mr. Chief Justice, I do send the first question to the desk.

    The CHIEF JUSTICE. Senators Allard, Bunning, Coverdell and Craig ask the House managers:

      Is it the opinion of the House Managers that the President's defense team, in the presentation, mischaracterized any factual or legal issue in this case? If so, please explain.

    Mr. Manager BRYANT. Mr. Chief Justice, distinguished colleagues, and Members of the Senate, there are--first of all, let me thank you for the opportunity to respond to questions. We hope we can do that in a succinct manner today.

    There are a number of mischaracterizations in statements that we disagree with that the President's defense team made. I will not attempt to cover all of these. And I would like to highlight just a few of these, and perhaps might, in a short manner, exceed the rebuttal presumption of 5 minutes.

    Mr. Craig made the argument on behalf of the President that this is a lot about an oath versus oath perjury case. Article I is the perjury allegation--one word against another person's word, "he said, she said.'' However, we would submit that there was not discussed in their presentation the fact that there is ample corroboration which is provided for under the law as it being necessary.

    But we believe factually there was much corroboration; that is, another person or other evidence to support the fact that the President did commit the perjury, and particularly those aspects of the perjury charge that deal with the personal relationship that Ms. Lewinsky and the President had.

    Very clearly, White House records and phone logs, along with Ms. Lewinsky's incredible recollection of particular names and events, and the circumstances surrounding these particular occasions, that have already been highlighted in the past--and we all know about those types of telephone conversations. And she was very clear in the facts. The people have all corroborated her on her presence in the White House at certain times.

    No. 2, the Secret Service testimony that placed her inside the Oval Office, on occasion alone; the fact that there have been contemporaneous statements made by Ms. Lewinsky describing the details of this relationship. And as we all know, the law permits this contemporaneous statement to, in this case, at least eight friends and two professional counselors detailing the particular relationship while it was ongoing.

    The blue dress is very clearly corroboration, and the DNA testing that resulted from that. Also, the transfer of Ms. Lewinsky from the White House, and the later surreptitious efforts with Ms. Currie to sneak her back into the White House, again, indication that efforts had been made to move her, to relocate her, away from the President to protect him from those circumstances.

    Also, the President's prepared statement in the grand jury is another example that was not mentioned. And in particular, I highlight the statement that he made that would lead you to believe that this relationship evolved over a period of time, and that being that he was sorry that what had started out as a friendship turned into this type of relationship, where, in fact, Ms. Lewinsky's testimony is very clear that that relationship began immediately, the very first day that he actually spoke to her.

    Mr. Ruff's statement that the managers' case was misleading is also incorrect, I believe. He used words like "fudging the facts,'' "a witches' brew,'' and "be wary of a prosecutor who feels like he must deceive the court.'' And this comes to somewhat of a surprise to many of us at this table who know that Mr. Ruff is familiar with the facts of this case.

    And just last month, when he testified before the Judiciary Committee, he said: I have no doubt that the President walked up to that line that he thought he understood. Reasonable people--reasonable people--and you may have reached that conclusion that he could have crossed over that line and that what for him was truthful but misleading or nonresponsive or misleading and evasive was in fact false.

    Now, he didn't tell you in his presentation that just a month ago he took the position that reasonable people can disagree, and yet before this Senate, and the audience that we have watching, he asserts that anyone who would accuse his client of perjury is guilty of "fudging the facts,'' "brewing a witches' brew,'' and "deception.'' And even Mr. Craig, unfortunately, borrowed many of those same words in that characterization. It may be good theater, but it is simply not the case that these managers are engaged in that type of practice before the Senate and the American people.

    White House Counsel Cheryl Mills spoke in a similar manner and tone to this House about inconvenient and stubborn facts--oh, those stubborn facts. In her meticulous presentation, she passed over--she completely missed--the second occasion wherein President Clinton attempted to coach Ms. Currie.

    Did anyone hear about the second event? As carefully as she tried to make innocent the wrongful effort of the President to tamper with the potential witness, she just as carefully skirted the entire similar episode 2 or 3 days after the first one where he again tampered with her testimony. According--according to Ms. Currie--he spoke with her, just recapitulating. Remember that in our presentation?

    Likewise, in her review of witness tampering, she mischaracterized the law--the law--stating that a threat--an actual threat was required. 18 U.S.C. 1503 states that obstruction of justice occurs when a person corruptly endeavors to influence the testimony of another person. And "corruptly'' has been interpreted by the District Court here in D.C. to mean acting for an improper purpose.

    And, clearly, this was an improper purpose when the President was trying to get her to testify falsely, but a threat is not a part of the law and not needed.

    And I will just quickly, if I might, just mention two more quick ones.

    Mr. Ruff stated the President gave the same denial to his aides that he gave to his country and family. You recall him specifically saying that he just has said nothing different to the American public and his family that he told the aides that we talked about--John Podesta, Sidney Blumenthal.

    Well, that's not right. "He told''--the President told Mr. Podesta-- and this is Mr. Podesta talking--"He told me that he never had sex with her and that he never asked--you know, he repeated the denial. But he was extremely explicit in saying he never had sex with her in any way whatsoever, that they had not had oral sex.''

    And Blumenthal--Mr. Blumenthal--he told Mr. Blumenthal an entirely different story, that "Monica Lewinsky came at me and made a sexual demand on me. [And I, the President,] rebuffed her.'' He said that "I've gone down that road before [and] . . . caused pain for a lot of people and I'm not going to do that again.''

    "She threatened him.'' Ms. Lewinsky threatened the President. And "[s]he said that she would tell [other] people [that she] had an affair, that she was known as a stalker among her peers, and that she hated [that], and if she had an affair . . . [with the President] she wouldn't be . . . anymore.''

    That is not the story that he told the American people and that he told his family. These are embellishments that are very important, because he anticipated that they would go into the grand jury and repeat those misstatements.

    And finally, the affidavit of Monica Lewinsky. White House defense lawyers spoke so eloquently about the procurement of this affidavit--as he glided through how the President believed that Monica Lewinsky could have filed a truthful affidavit while still skirting their sexual relationship sufficiently to--sufficiently to--avoid testifying in the Paula Jones case.

    This is an important issue. As it was specifically raised in the answer before this Senate, the President's lawyers brought this statement into this Senate as part of their answer that he could have advised her that she could have filed an affidavit that would have been truthful while still at the same time denying a sexual relationship sufficiently that she would not be called as a witness.

    I know opposing counsel makes light of the hairsplitting and the legal gymnastics that people have talked about here, but that is an incredible statement that you can do the twister enough to go into a deposition where the purpose of being there is to discover this type of information, who you might have had an affair with, and have her tell a truthful affidavit and still not to be able to testify.

    Had she told a truthful affidavit, she would have been immediately called. Plus, the President was given an opportunity by Ms. Lewinsky to review the affidavit.

    Remember the statement that he didn't need to, he had seen 15 just like it? If he had that "out'' for her where she could have told the truth and still not been able to testify, don't you think he owed it to her to cause her not to have to commit perjury in that affidavit--which she did--not to have to commit a crime? Wouldn't he have shared that with her if he had that information at that time?

    I suggest that he didn't. I have others that I would like to talk to, but in the interest of time and fairness I will stop my presentation at this point.

       


    I thank the Senate.

    Mr. DASCHLE. Mr. Chief Justice.

    The CHIEF JUSTICE. I recognize the minority leader.

    Mr. DASCHLE. Could I inquire as to the length of time that response took.

    The CHIEF JUSTICE. Approximately 9 minutes.

    Senator Sarbanes asks:

      Would you please comment on any of the legal or factual assertions made by the managers in their response to the previous question from Senators Allard, Bunning, Coverdell and Craig?

    Mr. Counsel RUFF. Thank you, Mr. Chief Justice.

    It may be that I will need to call on some of my colleagues to be of assistance here, but let me begin, and we will strive mightily to stay within the rebuttal of 5 minutes.

    Mr. Manager Bryant began by suggesting that there really is corroboration on the key issue that he focussed on, which as you know, is the nature of the specific details of the relationship between the President and Ms. Lewinsky. And he suggested that among the corroborating matters that he would point to were her recollection of events, which is alleged to be detailed; records reflecting that she was, indeed, in the White House on particular days; Secret Service records; DNA testing. None of those have anything to do with the essential issue that Congressman Bryant raised, because nobody disputes the fact that Ms. Lewinsky was in the White House engaged in inappropriate conduct with the President on a particular day.

    The only point that I think the manager raises that is new and needs to be addressed is this notion that contemporary, consistent statements made to third parties about these events are somehow corroborative of Ms. Lewinsky's testimony in this regard. And as all of you who had the pain of suffering through an evidence course will know, or have had the pain of trying lawsuits in which this issue arises, so-called prior consistent statements are not, in fact, viewed as some corroborating evidence that can be introduced by the prosecutors in this Senate; for they know, and I am sure those of you who suffered through these pangs know, as well, that the law rejects the notion that merely because you tell the same story many times it is corroborative of the underlying credibility of the witness' version, and that there are only certain very limited areas in which prior consistent statements are, in fact, admissible.

    A couple of others and I will turn this briefly over to Ms. Mills.

    Manager Bryant suggests that I have somehow gone too far in suggesting that the prosecutors here have in my words "engaged in fudging.'' I have never suggested that the entire presentation is so, and I made very clear in my comments to the Senate the other day the specific examples which I think we documented quite fully. But beyond that, let me go back to his reference to my earlier testimony before the House Judiciary Committee in which I did, indeed, in response to questions, comment that the President may well have walked up to the line believing he didn't cross it, but that reasonable people might conclude otherwise.

    The only problem with that example, as broached by Mr. Manager Bryant, is that I was talking there--and the record is very clear--I was talking about his testimony in the Jones deposition which, as everyone in this room will fully understand, is not before you because the House of Representatives specifically decided that the President's testimony in the Jones deposition was not a basis for impeachment.

    With that, without having used, I hope, all of my time, Mr. Chief Justice, I will allow Ms. Mills, if she would, to come forward and respond specifically to the point raised with respect to her presentation.

    Ms. Counsel MILLS. Thank you.

    I just want to address briefly two issues that the House managers raised. With regard to the statute on obstruction of justice, with respect to witness tampering, the House managers focused on 1512, with respect to Ms. Currie which does require a threat or intimidation and, indeed, specifically addressed that--they wanted to focus on 1512--when they were addressing her and the situation where the President spoke with her.

    With regard to 1503, though, to the extent that the House managers suggest that the President's actions and his conversation with Ms. Lewinsky violated 1503, I think probably you all might recall from my presentation that we discussed the Aguilar case in which it is clearly necessary that you have a nexus between the actual conduct and the official proceeding that would be going forward. In that case, we had a judge who lied to an FBI agent who indicated that he was going to--that this might, might come up in a grand jury proceeding, and Mr. Chief Justice, in his opinion, indicated that was insufficient to find the nexus that was necessary to violate 1503.

    And if you all have my package, you can look back. I provided you with a specific quotation. So in this instance, we clearly wouldn't have the nexus between the President's conversation with Ms. Currie, who was not yet a witness. There was no suggestion that she was going to be a witness in the Jones case; indeed, no one even mentioned that fact to him, as you actually did have in Aguilar.

    In addition, with regard to both statutes, the specific intent is not fulfilled. That is something we spoke about when I gave my presentation before.

    With regard to the President's conversation with Ms. Currie, which happened on the 18th and again on a subsequent day, in that instance it also happened prior to all of the media attention and other matters that came out. So in effect, all of the same issues apply because there was no--at that point--no indication that the independent counsel was involved in this matter, and the President still was concerned about the Jones proceeding; indeed, he was concerned that the media attention would be significant, and he was accurate as it began to grow and grow.

    Thank you.

    Mr. LOTT. Mr. Chief Justice, we send our next question to the desk.

    The CHIEF JUSTICE. Senators Enzi and Coverdell ask the House managers:

      Please elaborate on whether the President's defense team failed to respond to any allegations made by the House managers.

    Mr. Manager HUTCHINSON. Mr. Chief Justice, ladies and gentlemen of the Senate, as to the areas that were not covered by the President's defense team, I think that my fellow Manager Bryant already mentioned one, but I thought it was significant that in the questioning of Ms. Currie, or the statements made to Betty Currie after the President's deposition on January 17 where he brought her into the office and he went through that series of questions--"I was never alone, right,'' and that series of questions everybody is so familiar with, they discussed that primarily in the terms that she was not a witness. But during 3 days of presentation they never discussed the fact that it was 2 days later that the same series of questions or statements or coaching were addressed to Ms. Currie.

    So the President's defense that, "Well, I was just trying to refresh my recollection on the facts so I could respond to media inquiries,'' does not make sense in light of the fact that it was done on one day-- the series of questions. But Betty Currie testified that 2 days later she was called into the office, the same series of statements, declarations, coaching was made to her, and the only possible explanation for that is that the President was trying to make a very clear statement to her--"This is what I remember; this is what I want you to do,'' and for 3 days, for 3 days of presentations, the President's defense lawyers never, never mentioned that.

    Now, I want to come back to what Ms. Mills just said because this was a big issue in the presentation of Mr. Ruff. In fact, I have the quotes here. I hope that that will be turned over to you. But whenever Betty Currie was questioned, they say, well, she wasn't a witness. There was never any clue she was going to be a witness, that the Jones lawyers never anticipated she was going to be a witness, and that it was never put at all on the witness list. That's very significant.

    I just want to drive this point home. This is Mr. Ruff--talk about prosecutorial fudging; how about defense fudging? Mr. Ruff said this:

      Ms. Currie was neither an actual nor prospective witness.

      In the entire history of the Jones case, Ms. Currie's name had not appeared on any witness list, nor was there any reason to suspect that Ms. Currie would play a role in the Jones case.

      Discovery was down to its final days.

    That was Counsel Ruff.

      Yet, in the days and weeks following the deposition, the Jones lawyers never listed her, never contacted her, never added her to any witness list.

    That was the presentation of Mr. Ruff, and it was also that of Ms. Mills. Yet, if you look at the facts in the Jones case, the deposition was concluded on January 17. There was a holiday on the 18th. In fact, on January 22, within 5 days of the deposition, a subpoena was issued for Betty Currie. Within 5 days, a subpoena was issued for Betty Currie, and, in fact, on the 23rd, there was a supplement to the witness list by the Jones lawyers, which included Betty Currie's name as 163. This was served on Mr. Bennett and the other lawyers for the President.

    In addition, I have--which I will distribute to you--the actual subpoena that was issued for Betty Currie, as I indicated, which was issued on January 22nd, and the proof of service in which Betty Currie was served as a witness in that case on January 27--the proof of service. So the statements by Mr. Ruff that there was never any indication that the Jones people knew she was going to be a witness is totally not within the record. In fact, it is clear that the subpoena was issued; it was served.

    Whenever that deposition was over of the President, both the President left there and the Jones lawyers left there knowing immediately that Betty Currie was going to be a witness. She had to be a witness, with the President asserting, "ask Betty, ask Betty, ask Betty,'' so many times during that. That is why the President came back and had to deal with Betty Currie being a witness, and the Jones lawyer went out and immediately amended the witness list so as to do that, and then issued a subpoena, which was served on Betty Currie. That is the record. Those are the facts. We will distribute this to you.

    The CHIEF JUSTICE. Senator Levin asks White House counsel:

      Would you please comment on any of the legal or factual assertions made by the managers in their response to the previous question?

    Mr. Counsel RUFF. Thank you, Mr. Chief Justice. Let me respond very briefly to Manager Hutchinson's last remarks, because I owe him indeed an explanation and he is correct in one respect. I did not accurately reflect the fact that after the January 21 story in the Washington Post, the Jones lawyers did, in fact, attempt to track the entire independent counsel investigation. And I think Mr. Hutchinson will tell you, they indeed issued a long list of subpoenas. For that misleading statement, I apologize, and I trust we will hear equally candid assessments from the managers. But more importantly, let me return to the substance of that issue because it is important to note, without the chart being up there, that indeed, at the moment, which is the critical moment, when the President was talking about Betty Currie, whether it be on the 18th or on the 20th or 21st--the 21st, you remember, is when the story breaks. The answer is the same. He had no reason to believe at that stage--and that is the critical stage because that's what's in his mind and that is what you have to ask if you are talking about obstruction of justice or witness tampering--at that stage, he had no more reason to know that Ms. Currie was going to be a witness than he did, as we explained it, both I and Ms. Mills, in our earlier presentations.

    The fact that the Jones lawyers, once this story became a matter of public knowledge, which it did on the 21st, thereafter dumped a series of subpoenas and deposition notices literally in the closing days of discovery does not bear on the question of what was in the President's mind, which is the critical moment for testing his intent, at the moment when he first had his conversations with Betty Currie.

    Thank you, Mr. Chief Justice.

    The CHIEF JUSTICE. Senators Thurmond, Grassley, Chafee and Craig direct to the House managers:

      President Clinton has raised concerns about whether the articles of impeachment are overly vague and whether they charge more than one offense in the same article. How do you respond to this concern?

    Mr. Manager CANADY. Mr. Chief Justice and Members of the Senate, I will be pleased to do my best to address this question.

    The President has made two claims against the forum in which the articles of impeachment have been drafted. I submit to you that neither of these claims has any merit, and I will be pleased to address both claims as briefly as I can.

    First, the President claims that the two articles of impeachment are vague and lack specificity and, therefore, prevent him from knowing what he has been charged with.

    Second, the President asserts that the articles are flawed because they charge multiple defenses in a single article. With respect to the first claim, it is clear in the President's trial memorandum and his presentation here that President Clinton and his counsel know exactly what he is being charged with. And I submit to you that if President Clinton had suffered from any lack of specificity in the articles, he could have filed a motion for a bill of particulars. He did not choose to do so.

    Moreover, articles of impeachment have never been required to be drafted with the specificity of indictments. After all, this proceeding is not a criminal trial. If it were, then we, as the prosecutors, would not only be entitled to call witnesses, but would be required to call them to prove our case. We would certainly not be put in the position of defending the appropriateness of witnesses.

    President Clinton wants all the benefits of a criminal trial without bearing any of its burdens. Impeachment is a political and not a criminal proceeding. That has been clear from the institution of this proceeding in our Constitution. As recognized by Justice Joseph Story, the Constitution's greatest interpreter during the 19th century, "Impeachment is designed not to punish an offender by threatening deprivation of his life, liberty, or property, but to secure the State by divesting him of his political capacity.'' Justice Story thus found the analogy of articles of impeachment to an indictment to be invalid. I quote what Justice Story had to say, which is directly pertinent to this question:

      The articles need not and indeed do not pursue the strict form and accuracy of an indictment. They are sometimes quite general in the form of the allegations, but ought to contain certainty as to enable the party to put himself upon the proper defense, and also in the case of acquittal, to avail himself of it as a bar to another impeachment.
       


    Indeed Alexander Hamilton had commented on the same point in the Federalist. We have heard many references to Federalist number 65, and in this trial today I will refer once again to what Alexander Hamilton said in the Federalist on this particular point. There Alexander Hamilton stated that impeachment proceedings:

      . . . can never be tied down by such strict rules, either in the delineation of the offense by the prosecutors, or in the construction of it by the judges, as in common cases served to limit the discretion of courts in favor of personal security.

    By that, he means in criminal cases. I think this statement from Alexander Hamilton refutes the argument of the President's counsel directly.

    I also point out that unlike the judicial impeachments in the 1980s, President Clinton has not committed a handful of specific misdeeds that can be easily listed in separate articles of impeachment. In order to encompass the whole assortment of misdeeds that caused the House of Representatives to impeach the President, the Judiciary Committee looked to the more analogous case, that of President Nixon. In 1974, in the proceedings with respect to President Nixon, the committee also was faced with drafting articles of impeachment of a reasonable length against a President who had committed a series of improper acts designed to achieve an illicit end.

    The first article against President Nixon charged that in order to cover up an unlawful entry into the headquarters of the Democratic National Committee and to delay, impede, and obstruct the consequent investigation and for certain other purposes, he engaged in a series of acts such as "making or causing to be made false or misleading statements to lawfully authorized investigative officers, endeavoring to misuse the Central Intelligence Agency, and endeavoring to cause prospective defendants and individuals, duly tried and convicted, to expect favored treatment and consideration in return for their silence or false testimony.

    The articles did not--I repeat "did not''--list each false or misleading statement, did not list each misuse of the CIA, and did not list each respective defendant and what they were promised. That is the record. Anyone who is familiar with the Nixon case--President Nixon case--is familiar with those facts.

    In like fashion, the articles of impeachment against President Clinton charged him with providing perjurious, false, and misleading testimony concerning four subjects, such as sexual relations with a subordinate government employee, engaging in a course of conduct designed to prevent, obstruct, impede the administration of justice, which of course included four general acts, such as an effort to secure job assistance for that employee.

    I would submit to you that an argument can be made that the articles of impeachment against President Clinton were drafted with more specificity than the articles that were drafted against President Nixon.

    I will do my best to briefly address the second claim which has been asserted by the President's lawyers against the form of the articles of impeachment; that is, that they are invalid, charging multiple offenses in one article. The articles of impeachment allege that President Clinton made one or more perjurious, false and misleading statements to the grand jury and committed one or more acts in which he obstructed justice.

    Once again, these articles are modeled after the articles adopted by the House Committee on the Judiciary against President Nixon and were drafted with the rules of the Senate. Specifically in mind, the Senate rules explicitly contemplate that the House may draft articles of impeachment in this manner and prior rules of the Senate have held that such drafting is not sufficient and will not support a motion to dismiss.

    Rule XXIII of the Rules of Procedure and Practice in the Senate When Sitting On Impeachment Trials now states that an article of impeachment "shall not be divisible for the purpose of voting thereon at any time during trial.'' When the Senate Committee on Rules and Administration amended rule XXIII in 1986, it explained that. And I quote this at length. And this goes right to the heart of the matter. This is what the Rules Committee in its report said. It said:

      The portion of the amendment effectively enjoining the division of an article into separate specifications is proposed to permit the most judicious and efficacious handling of the final question both as a general matter and, in particular, with respect to the form of the articles that proposed the impeachment of President Richard M. Nixon. The latter did not follow the more familiar pattern of embodying an impeachable offense in an individual article but, in respect to the first and second of those articles, set out broadly based charges alleging constitutional improprieties followed by a recital of transactions illustrative or supportive of such charges. The wording of Articles I and II expressly provided that a conviction could be had thereunder if supported by "one or more of the enumerated specifications. . . . [I]t was agreed to write into the proposed rules language which would allow each Senator to vote to convict under either the first or second articles if he were convinced that the person impeached was `guilty' of one or more of the enumerated specifications.''

    The Senate rules themselves, thus, specifically contemplate that an article of impeachment may include multiple specifications of impeachable conduct as in the case of President Nixon. The Senate itself has recognized the articles against President Nixon as an appropriate model to be followed. The House has, in the articles now before the Senate, simply followed that model.

    Moreover, I would point out in conclusion that the Senate has convicted a number of judges on such omnibus articles, including Judges Archibald, Louderback and Claiborne.

    I would submit to the Members of the Senate that the articles of impeachment against President Clinton present his offenses and their consequences in an appropriately transparent and understandable manner. They are not constitutionally deficient.

    Thank you.

    The CHIEF JUSTICE. This question is sent by Senators Dodd and Leahy:

      Would you please comment on any of the legal or factual assertions made by the managers in their response to the previous question by Senators Thurmond, Grassley, Chafee, and Craig; particularly what would have stopped or limited the House in specifying precisely the statements on which the articles were based?

    Mr. Counsel CRAIG. In our case, we are talking about an allegation of perjury. In the Nixon case--in the 1974 Nixon case--he was not charged with perjury. I think our argument was that perjury is a different kind of thing. You have to be very specific in what you charge, and you have to be very clear as to what the statement is when you are charging perjury. And that is the tradition of our criminal justice system and of our jurisprudence.

    The danger here is that if you do not, if you are overly broad, as we contend in article I, that at any given moment you can fill the vessel with what your meaning is.

    Let me give you a little history of these allegations of grand jury perjury against the President.

    The Starr referral had three allegations. The Starr referral was September 9. Mr. Schippers, when he made his presentation to the Judiciary Committee, had two allegations. One was different. He incorporated one of Starr's. When Starr appeared and testified on November 19 in front of the Judiciary Committee, he almost spent no time on this at all--one or two sentences. But he added a new charge, which was that the President was not truthful when he testified that he had been truthful in the deposition.

    Then, we appeared and made our representations and our defense on behalf of the President on the basis of what Mr. Starr had written in his referral and what Mr. Schippers had presented to the Judiciary Committee and in addition to what Mr. Starr had said when he appeared. But then when Mr. Schippers gave his closing argument the following day, we saw the new articles. We had, by my count, 10 allegations from Mr. Schippers. Two had to do with the definition of sexual relations. Three had to do with the prepared statement. Two had to do with things that were never alleged again and never surfaced again in the course of the case. And they had to do with Mr. Bennett and his proffer of the Lewinsky affidavit.

    Then, on December 16 we had a whole new additional collection of reports of allegations. And on January 11, the file brief here set forth eight examples.

    Just to highlight the danger of not being specific, of not tying yourself to a definition, let me compare, for example, the trial brief that was submitted by the House managers 3 days before Mr. Rogan made his presentation.

    The precise statement that the President is accused of testifying falsely in front of a grand jury was that he was lying when he said that the reason that he was seeing Betty Currie was to refresh his recollection. In the trial brief--they make that reference one, two, three, four times--that the statement that is specific here in the trial brief is he lied when he said he was going to refresh his recollection. That is not even mentioned in Mr. Rogan's presentation. He changes it. And he says he lied when he said he wanted to ascertain what the facts were, trying to ascertain what Betty's perception was--a very different statement requiring a very different defense. And 2 days before, 3 days before we even hear the allegations on the floor of the Senate, we still don't know precisely what they are.

    Mr. Counsel RUFF. Mr. Chief Justice, if I may absorb whatever rebuttal time is still available to us, may I for just a moment, sir?

    The CHIEF JUSTICE. Sure.

    Mr. Counsel RUFF. Thank you.

    I want to talk briefly about just two aspects of Manager Canady's presentation.

    First of all, he asks why didn't we seek a bill of particulars. Well, let me all remind the Senators, although I don't think any of you were here at the time of the trial of Judge Louderback who also saw a bill of particulars, and the House of Representatives at the time made it clear that the managers do not have the authority to rewrite the articles, though they certainly have, I suggest, attempted to do so on the fly, but that it would have required a remand to the House of Representatives in order to have a bill of particulars to judge what they themselves meant when they had passed these articles.

    Second, just very briefly, I spoke to the issue of multiplicity, duplicity, the other day, and the question of whether the rule 23 revision makes any difference. As I pointed out--and I won't embarrass him any further--one Member of this body spoke at length about the importance of not loading up multiple offenses into one count well after the revision of rule 23, clearly with no sense that this body had been precluded from dealing with the critical issue of whether a two- thirds vote can sensibly be taken on an article that contains multiple and, particularly as my colleague, Mr. Craig, indicated, multiple nonspecific violations.

    Thank you, Mr. Chief Justice.

    The CHIEF JUSTICE. Senators Thompson and Grassley, Thurmond, Allard, Frist, Burns, and Inhofe direct this question to the President's counsel:

      If the President were a Federal judge accused of committing the same acts of perjury and obstruction of justice and the Senate found sufficient evidence that the acts alleged were committed, should the Senate vote to convict?

    Mr. Counsel RUFF. This will sound half hearted, but it is not. I am glad you asked that question. This really goes right to the heart of the managers' argument here, which is that there is no difference in the consideration of the impeachment process between an allegation against a Federal judge and an allegation against the President of the United States.

    I will not repeat the extended discussion of this subject of a few days ago, but let me try to summarize very briefly. It is absolutely crystal clear from the history of the drafting of the impeachment clause that the concern of the framers was, is there such action as to subvert our Government that we can no longer persist in permitting, in their case, the President of the United States to remain in office. That question must be dramatically different when you ask it about the conduct of 1 of 1,000 judges.

    Beyond that, it is also clear that there has been extended debate in many forums and at many times in the past 210 years about, indeed, just what the standard is for the impeachment of judges.

    I hesitate to do this, and I do it apologetically, Mr. Chief Justice, but the Chief Justice himself in an earlier time and an earlier guise spoke to this issue and made it clear--this during his tenure as assistant attorney general for the Office of Legal Counsel--when the issue was being debated whether there was a nonconstitutional, nonimpeachment device for disposing of judges alleged to have engaged in misconduct that may not fall within the high crimes and misdemeanors provision of the impeachment clause, that, indeed, the good behavior standard for judges was something far broader than the standard to be applied under the high crimes and misdemeanors standard. And, indeed, that debate was resumed many years later in the context of a further effort to establish a nonconstitutional device for removing judges.

    That history, and just the core question, do you ask the same questions about the trauma that the Nation suffers when you are removing a judge and you are removing a President, the answer must be no. You must ask, what is the nature of the perjury that has been committed? What is the nature of the offense that has been committed? What is the factual setting in which it occurs? And, ultimately, does it so subvert the accused's ability to perform the duties of his office that you must remove him?

    That question for Judge Nixon, convicted and imprisoned, has got to be different from--"different'' is much too mild a word--stunningly different from the question you ask against the backdrop of our history when you ask whether the President of the United States should be removed and the will of the electorate overturned.

    Thank you, Mr. Chief Justice.

    The CHIEF JUSTICE. Senators Dorgan and Baucus and Schumer to the President's counsel:

      In Counselor Ruff's presentation, he set forth a time line that undermined the managers' theory that Judge Wright's December 11 discovery letter triggered an intensification of the President's and Jordan's efforts to assist Lewinsky in finding a job. In response to Mr. Ruff's presentation, the managers handed out a press release outside the Senate Chamber asserting that it was the December 5 issuance of the witness list in the Jones case and not the judge's discovery order on the 11th that triggered the intensification of the job search. It does not appear consistent with assertions made by the House managers in their trial brief and oral presentations. Please comment.

    Mr. Counsel KENDALL. It was the assertion very clearly voiced in Mr. Manager Hutchinson's presentation and very clearly made in the trial brief of the House managers that it was, indeed, the December 11 order that--I used the word "jump-started'' yesterday--that catalyzed, that pushed forward, the job search.

    If you look at page 21 of the House managers' brief, you see them say this sudden interest was inspired by a court order entered on December 11, 1997. Now, their position could not have been clearer until we began our presentations, and then, all of a sudden, it wasn't the December 11 order; it was, instead, the December 5 witness list.

       


    Well, there are a number of things to be said about that. One of them is that they have very clearly said that there was no urgency at all after the witness list arrived to help Ms. Lewinsky. They have said that Mr. Jordan met with the President on December 5 but that meeting had nothing to do with Ms. Lewinsky. This was in the majority report at page 11. They said that very clearly.

    So they have now suddenly--because it has been clear that the December 11 order was entered at a time when Mr. Jordan was flying to Europe, he could not have known about it. He had met with Ms. Lewinsky earlier that day. And, indeed, that December 11 meeting had sprung from actions taken by Ms. Lewinsky in a phone call with Mr. Jordan in November. They had set that--they agreed that when Mr. Jordan returned to the country, they would set up a meeting. They did that on December 5, or she tried to get in touch on December 5. They tried to get--they finally succeeded in getting in touch on December 8, and that was not at a time she knew she was on the witness list.

    So the point is these were two entirely separate chains of events going forward--the job search and the witness list. And nothing supports the intensification theory presented by the managers, certainly not this new, "Well, it wasn't the December 11th order; it was the December 5th order.''

    The CHIEF JUSTICE. Senators Ashcroft and Hatch--is there anyone on the floor who can't hear me? This is for the House managers:

      The White House makes much of the fact that Vernon Jordan was on a flight to Holland on December 11 before Judge Wright ruled that afternoon that other women who may have had relationships while in President Clinton's employ were relevant to the Jones suit. However, the President was faxed a witness list on December 5 and actually reviewed it no later than the 8th. Thus, isn't the White House argument that the President had no incentive to assist Ms. Lewinsky's job search until December 11 just a red herring?

    Mr. Manager HUTCHINSON. Thank you, Mr. Chief Justice. And I appreciate the opportunity to respond here.

    Just let me say, by way of preface, that we are lawyers. We are trying to do three things at once. Usually you have an opening statement where you outline where you want to go in a case, then you have a presentation of the evidence, then you have a closing argument. And we are trying to do it all at the same time.

    It is for that reason, as I said at the very beginning of my presentation, that you need to pay attention to the record and to the facts. That is what you depend upon. And I get carried away in my argument. I am arguing, just as they are arguing their theory of the case. We are both arguing a point of view here, and it is up to you to make the determination.

    I have great respect for these counselors. They are admirable. They are doing a great job for their client, and they are presenting their theory of the case. We are arguing our point of view, and it is the facts that make the determination.

    Now, let me go back to--and you have it in front of you--my presentation, exhibit C, which I guess is the third exhibit, which is really the White House exhibit that Mr. Ruff had up here for a number of days, because they were really trying to hammer home this statement that I made in my presentation. I hope you all have that.

    Mr. GRAMM. Just tell us.

    Mr. Manager HUTCHINSON. I will tell it to you then. Thank you.

    Exhibit C--which I hope you have; we asked them to distribute that-- is a statement that Mr. Ruff portrayed, from me, which in my presentation I said: "The judge--the witness list came in, the judge's order came in, that triggered the president into action and the president triggered Vernon Jordan into action.''

    Now there are two things that I am pointing to as the trigger mechanisms for the job search intensification. One of them is the witness list that comes in on December 5, the President knows about, at the latest, on December 6. The other thing that intensified that effort was the judge's order on December 11.

    They went through this long circumstance of Mr. Jordan being in Holland and the time of the phone call with the judge and all of that, showing that the judge's order of December 11 could not have triggered any action on the 11th. There is no question about that. That is obvious from the facts, as it was obvious when I made my presentation. The meetings on the 11th, with Vernon Jordan and Monica Lewinsky, were triggered by the witness list coming on the 5th, that the President knew about on the 6th, that he discussed with Vernon Jordan as well.

    Now, we say that the judge's order of the 11th, which was filed that day--the only thing that was filed on the 12th was their memorandum of that telephone conversation--that triggered additional action down the road. The job search was not over; the activity continued into January. And, so, that all put pressure on the ultimate fact, in January when the job was obtained, the false affidavit was filed.

    Now let me just point to a couple of other things along that line. We need to look at this because they basically make the point that there is not any connection between the false affidavit--and that is my characterization--that was filed, and the job search. But if you look at the testimony of Vernon Jordan, and that is exhibit--I think they are giving them out now--F, that I am presenting to you, the sworn testimony of Vernon Jordan which was on March 3 of 1998, he testifies in answer to a question:

      Counselor, the lady comes to me with a subpoena in the Paula Jones case that I know, as I have testified here today was about sexual harassment. . . . you didn't have to be an Einstein to know that that was a question that had to be asked by me at that particular time because heretofore this discussion was about a job.

    And then he says, "The subpoena changed the circumstances.'' And I think this is important, that Mr. Jordan, who is filled with common sense, he says you don't have to be an Einstein. You don't have to be learned, like Mr. Ruff or any of the other White House counsel, to apply common sense. Common sense tells you that whenever he knew about the subpoena, it escalated to a new arena and obviously the witness list would have the same impact.

    And, so, Mr. Jordan himself makes the connection, the job search was one thing but whenever she became a witness in the Jones case, that changed everything. That changed the circumstances. And let me tell you, that is a friend of the President who is making that statement.

    And, so, we have to take this picture, that they were related as they were going two tracks, they became interconnected and became one track.

    The final point--and this was raised on the job search issue--that the call by Mr. Jordan to Mr. Perelman, the CEO of the parent company of Revlon, really had no impact on Monica Lewinsky getting a job because there is a misinterpretation as to how well she did on the interview. But if you look back to the testimony, the grand jury testimony, there was a connection, because Mr. Jordan calls Mr. Perelman and, as he characterized it: Make it happen if it can happen. Mr. Perelman then calls Mr. Durnan, and then Mr. Durnan calls Ms. Seidman, who was actually doing the interview the next day with Monica Lewinsky.

    So the person who was going to make the decision whether to hire Monica Lewinsky got the word down through the channel before that interview took place and before the decision was made. And of course the important thing is: What was the intent? Not the result, but the intent. And I think that you can see that there was an intent to make sure that Monica Lewinsky was taken care of. Again she was on board, part of the team, before she actually would have to give testimony or the President would have to give testimony.

    The CHIEF JUSTICE. This question from Senator Boxer, and it is to counsel for the President:

      In light of the concession of Manager Hutchinson that Judge Wright's order had no bearing on the "intensity'' of the job search, can you comment on the balance of his claim on the previous question?

    Mr. Manager HUTCHINSON. Mr. Chief Justice, could I object to the form of the question? That was not proper characterizing what I just stated.

    The CHIEF JUSTICE. I don't think managers--I am not sure whether the managers--can the managers object to a question? (Laughter.)

    Mr. Manager HUTCHINSON. I withdraw my objection.

    The CHIEF JUSTICE. Very well. I think--the Parliamentarian says they can only object to an answer, not to a question, which is kind of an unusual thing, but----

    Mr. Counsel RUFF. Mr. Chief Justice, I was going to remark that they can if they have the courage.

    I want to link up my response to Manager Hutchinson's most recent comments with the previous discussion about vagueness. If there was ever a moving target, we have just seen it in motion: Well, it really wasn't December 11, because now we know it didn't happen on December 11, so let's go to December 19, or maybe January 8, and somewhere in there we are going to find the right answer.

    I suggest to you that that is reflective of both the difficulty we have had in coming to grips with these charges and, candidly, the difficulty that the House might have had figuring out what those charges really were.

    Let me just respond briefly to Mr. Manager Hutchinson's argument. And let me focus, first, on another portion of his presentation in which he states, and there--and he is referring now to Ms. Lewinsky--she is referring to a December 6 meeting with the President in which, as you will recall, she has testified that there was a brief discussion about her efforts to get a job through Mr. Jordan and the President sort of vaguely said, "Yes, I'll do something about that.'' And this is Mr. Manager Hutchinson's characterization of that moment. December 6, you will recall, is the day after the witness list comes out and the day on which she learns of it:

      So you can see from that that it was not a high priority for the President either. It was, "Sure, I'll get to that, I will do that.'' But then the President's attitude suddenly changed. What started out as a favor for Betty Currie dramatically changed after Ms. Lewinsky became a witness and the judge's order was issued again on December 11.

    But to the extent the managers now seek to drag the intensification process back into the December 5 or 6 period, which is when Ms. Lewinsky went onto the witness list, you must look at what they say.

    Page 11, majority brief, Mr. Jordan met President Clinton the next day, December 7, but they didn't discuss the job at all. Now, it is absolutely clear that the President knew that Ms. Lewinsky was on the witness list when he met with Mr. Jordan on December 7, and yet the issue of Monica Lewinsky didn't even surface.

    I am getting some help here.

    "The first''--"the first,'' their words, page 11, majority brief, majority report--"The first activity calculated to help Ms. Lewinsky actually get a job took place on December 11. There was no urgency.''

    It is possible, of course, as their trial brief reflects, to bob and weave and dodge around the facts here, but their trial brief says:

      There was obviously--

    Referring to the period after she appears on the witness list--

      There was obviously still no urgency to help Ms. Lewinsky.

    And even they acknowledge that the December 7 meeting with Mr. Jordan was unrelated to Ms. Lewinsky.

    But let me point, because I think this really goes to the heart of it, to what the managers ask you to think about in this context in which now, whether we call it a confession or simply an acknowledgment, what they asked you to do when you heard the recitation about the December 11 events. We now know Mr. Jordan is flying over the Atlantic at the critical moment, and here is what Mr. Manager Hutchinson asks you to do with Vernon Jordan, distinguished citizen, distinguished lawyer:

      Now, if we had Mr. Jordan on the witness stand--which I hope to be able to call Mr. Jordan--you would need to probe where his loyalties lie, listen to the tone of his voice, look into his eyes and determine the truthfulness of his statements. You must decide whether he is telling the truth or withholding information.

    There is only one message there: Vernon Jordan must have been lying or at least there is enough question about his credibility and his honesty and his decency to explore whether he was lying. If you predicate that question on the, shall we say, erroneous recitation of events on December 11, you need to know nothing more about what the time line and the chronology and the managers' theory of this case is all about.

    Thank you, Mr. Chief Justice.

    Mr. CHIEF JUSTICE. This question is from Senators Sessions, Gramm of Texas, Smith of New Hampshire, Inhofe, Allard, and Roberts. It is directed to the House managers:

      In defense of the President, Ms. Mills has repeatedly stated, and has just reiterated, that the crime of witness tampering requires some element of threat, intimidation or pressure. Isn't it true that section 1512(b) criminalizes anyone who corruptly persuades or engages in misleading conduct with the intent to influence the testimony of any person in an official proceeding? Please explain.

    Mr. Manager BARR. Mr. Chief Justice, we appreciate the question from the Senators, since it bears on a number of different questions and a great deal of the evidence that you all have heard in this case.

    One can talk around the law, one can talk about the law, one can ignore the law and, as we have seen, one can break the law, but one has to deal with the law in court and in these proceedings. And that is why throughout these proceedings the Senators have heard us, as the House managers on behalf of the House of Representatives, and as the presenters of this case against the President, refer repeatedly and explicitly to the actual language of the statutes which form the basis for the articles of impeachment against President William Jefferson Clinton.

    Counsel Mills has, in fact, misrepresented the law of tampering with witnesses as set forth very explicitly in section 1512 of title 18 of the United States Code. In her arguments 2 days ago, Ms. Mills quite expressly stated that one of the elements that a prosecutor must charge and that must be found here, if, indeed, article II, which is obstruction of justice, should lie as the basis for a conviction thereon, one must find that tampering under 1512 requires threats or coercion. Nothing could be further from the truth.

    Now, if, in fact, Ms. Mills had stated to this body that one of the bases, one of several bases on which a prosecutor or we, as House managers, could, indeed, show this body that tampering with a witness would lie, includes, as an alternative, as an option, threats or coercion, she would have, instead of being misleading, been absolutely correct. That was not her position.

    Section 1512 of the United States Code expressly does not require threats of force, intimidation or coercion. It may be based on the person corruptly persuading another person or engaging in misleading conduct toward another person, both of which are terms, the definitions for which are not found in the ether but are found, yet further reading, in title 18. Neither of them requires threats, intimidation or coercion.

    Moreover, in considering whether or not section 1512 or, indeed, its companion section, 1503, also obstruction of justice under the U.S. Criminal Code, which also does not require for a conviction to lie thereon threats of force, intimidation or coercion, but also may be and is based on corruptly influencing, those terms are expressly defined and dealt with not only in the definitional provisions of title 18, and including specifically definitions that apply to these provisions, these sections, but also in the case law.

    We would respectfully direct the attention of the Senators in reviewing the law of obstruction of justice and the law of tampering with witnesses to some of the very cases cited by the attorneys for the President in their effort to deflect attention away from these particular provisions of the law as they apply to the conduct of the President.

    For example, in her presentation, Presidential Counsel Mills relied on the Supreme Court case of United States versus Aguilar in her statements. In that case, the Court held that a lie told to a criminal investigator was insufficient to prove witness tampering.

    What Ms. Mills failed to disclose, however, was that the Court's decision in that case, in that Aguilar case, was based on a specific finding not applicable to the facts of this case that the evidence was insufficient to prove that the defendant could have even thought that the investigator was a potential witness at the time that he lied to him.

    The overwhelming body of evidence in this case, as we have heard yet this morning, most recently in response to questions, is that not only could the President, and the President did in fact reasonably presume, indeed almost invite, the lawyers in the Jones case to subpoena Ms. Currie as a witness, but we have found, contrary to the prior misleading statements of Counsel Ruff, she was, in fact, subpoenaed and called as a witness.

    Therefore, we believe that on both arguments raised by counsel for the President seeking to deflect attention away from and render inapplicable both obstruction provisions, 1503 and 1512, because they, one, require--as we have shown they do not--but they would argue they require coercion, threats, intimidation or force or, two, they are inapplicable because the President could not have reasonably believed or did not know that Ms. Currie was a witness, could reasonably be expected to be a witness at the time the coercion took place.

    I would yield for 1 minute to House Manager Graham.

    The CHIEF JUSTICE. I believe the House managers' time has expired.

    Mr. Manager BARR. I will not yield to House Manager Graham.

    The CHIEF JUSTICE. Senator Byrd, to the President's counsel:

      Alexander Hamilton, in Federalist essay No. 65, states that "The subjects of impeachment are "those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.'' Putting aside the specific legal questions concerning perjury and obstruction of justice, how does the President defend against the charge that, by giving false and misleading statements under oath, such "misconduct'' abused or violated "some public trust"?

    Mr. Counsel RUFF. Mr. Chief Justice, this, too, goes to the very heart of the deliberations in which you must engage at the end of these proceedings. As I have tried to make clear in my earlier arguments, it is not enough simply, I think, to ask does a particular generic form of misconduct, however serious it may be, lead inexorably to the conclusion that the President of the United States has committed an impeachable offense?

       


    As the framers made clear, and I think the history that lay behind their deliberations and the history that has followed make clear, when we speak of the kind of political--in caps, which is what it was in Federalist 65--offenses against the man in his public role, we speak of offenses which this body must ultimately judge as being so violative of his public responsibilities that our system cannot abide his continuing in office.

    Let us assume for a moment--and we will disagree with each and every element of the accusation--but let us assume for a moment that this body were to conclude that the President lied in the grand jury about his relationship with Ms. Lewinsky. That in and of itself does not lead to the judgment, and in our view must not lead to the judgment, that he needs to be removed from office. It must give you pause. You must think carefully about it.

    But ultimately you must ask, despite our rejection of any such conduct--whether it be a judge or a President or any other civil officer--have the framers instructed us to remove from his office, and overturn the will of the electorate, a President who, admittedly, if you conclude that he did violate the law in this regard, has violated a public trust in the broadest sense, as each of us does who serves the public, if we do anything other than that which are our properly assigned responsibilities, and do them with the utmost of integrity? Each of us violates that trust if we don't meet that standard.

    But the one thing we can be certain of is that the framers understood the frailties with which they were dealing. They understood the nature of the offense that had been the background of impeachment proceedings in England. And certainly the framers, in their debate, made it clear that it has to be at the highest level of public trust--the breach of the public trust that is embodied in the words "treason,'' "bribery,'' "selling your office'' and similar other high crimes and misdemeanors.

    And so all I ask the Senators in this regard is not to simply leap, as the managers would have you do it, from the definition of the offense or the statute governing their conduct, but to ask the constitutional question, as I know you will, the framers' question. If we have not convinced you on the facts, I hope we will convince you that the framers would have asked: Is our system so endangered that we must not only turn the President over to the same rule of law that any other citizen would be put under, after he leaves office, but must we cut short his term and overturn the will of the Nation? And in our view, in the worst case scenario, you can find the answer to that question must still be no.

    Thank you, Mr. Chief Justice.

    The CHIEF JUSTICE. Senator Lott asks the House managers:

      Do the managers wish to respond to the answer just given by the President's counsel?

    Mr. Manager CANADY. Mr. Chief Justice, Members of the Senate, we would briefly respond to the response just given by counsel for the President. We believe that the response and the position taken by the counsel for the President here really involves two great errors. One error is in establishing a standard of conduct for the Presidency that is too low. The other error is in attempting to minimize the significance of the offenses that this President has been charged with and which we submit to you the evidence supports the charges.

    Now, we do not submit that any President--this President, whoever it may be--should be impeached and removed from office for trivial or insubstantial offenses. We believe that an essential part of the focus of your inquiry must be on whether there was a serious, corrupt intent involved in the underlying conduct.

    A President should not be impeached and removed from office for a mistake of judgment. He should not be impeached and removed for a momentary lapse. Instead, he should be impeached and removed if he engages in a conscious and deliberate and settled choice to do wrong, a conscious and deliberate and settled choice to violate the laws of this land.

    We submit that he must be impeached and removed if he does that, because in doing so he has violated his oath of office and in doing so he has turned away from the unique role which he has under our Constitution, as the Chief Executive, charged with ensuring that the laws be faithfully executed. He steps aside from that role and takes on the role of one who attacks the rule of law. And it is for that reason that we believe that this President should be removed. And we would further submit that the attempt to minimize the significance of the conduct of this President does a disservice to the laws of this land.

    The attempt to minimize this course of conduct, which started out as an effort to deprive a plaintiff in a civil rights case of her just day in court, is a serious course of conduct, a course of conduct which brings disrespect on the office of the Presidency and, indeed, undermines the integrity of the office of the Presidency, the integrity of the judicial system. And it is for all of those reasons that we would submit to you that the President's counsels' efforts to persuade you that this course of conduct is not impeachable are not persuasive and should not be accepted by the Senate in this case.

    The CHIEF JUSTICE. Senators Torricelli and Rockefeller ask, to the President's counsel:

      The House managers have made the overly broad argument that "[n]othing in the text, structure, or history of the Constitution suggests officials are subject to impeachment only for official conduct.'' Can this unbending argument be reconciled with the following statement from Justice James Wilson: "Our President . . . is amenable to [the laws] in his private character as a citizen, and in his public character by impeachment''--and with the standard adopted by a bipartisan majority in the Watergate proceedings?

    Mr. Counsel RUFF. Mr. Chief Justice, Senators, I could probably simply say no, given the articulate framing of that question, and I would have said as much as needed to be said.

    I think the managers have, in their strawman-building role, tried to suggest that our position somehow is so distant from constitutional realities and the realities of the operations of our Government that we could not conceive of a situation in which private conduct, no matter how egregious, would lead to removal. Of course, that is not the case. None of us could contemplate a setting in which even personal conduct-- and I need not go through any examples--was so egregious that the people simply could not contemplate the notion of a President remaining in office.

    But other than that, if there is one message that comes out, not only of Judge Wilson but of the entire debate of 1787 and all of the commentary since then, it is that, indeed, the focus of attention must be--and this goes back to, in large measure to Senator Byrd's question--must be on the public character of the man; the political, in a broader sense, character of the man; and of his acts.

    And if you look back at the 1974 writings of the House Judiciary Committee, both majority and minority, this is not a partisan view. It makes it absolutely--they make it absolutely clear that the House then believed something which they must either not believe today or have ignored as they engaged in their discussions, which is that the test to be applied is whether the President in this case has so abused the public trust, so abused the powers of his office, that he goes to the very heart of what the framers had in mind in 1787 when they carefully confined and carefully limited the range of activity that could lead to contemplation of removal, and that is not a range of activity that, with all due respect, touches anywhere near the conduct that you have before you today.

    The CHIEF JUSTICE. Senator Nickles asks the House managers:

      President's counsel stated the President did not commit perjury. Please respond.

    Mr. Manager ROGAN. Mr. Chief Justice, I trust that the presumption of 5 minutes is a rebuttable one, correct? I will do my best not to have to go beyond the time. I thank the Senator for the question.

    First, just as a predicate, obviously in 5 minutes I could not do a comprehensive review on the perjury aspects of this case, so let me just start with a preliminary issue and we can move on with different questions and revisit the issue at another time. If anybody wants a lesson in legal schizophrenia, please read the President's trial brief on this very subject. They skirt the issue by saying nowhere in the President's grand jury deposition did he ever affirm the truth of his civil deposition testimony. But they won't come out and say he lied, they won't come out and say he perjured himself, and they try to ignore the actual fact of when the President was asked questions about his oath that he took during the grand jury.

    I read, therefrom:

    Question to the President:

      You understand the oath required you to give the whole truth that is a complete answer to each question, sir.

      Answer: I will answer each question as accurately and fully as I can.

    Question to the President:

      Now, you took the same oath to tell the truth, the whole truth, and nothing but the truth, on January 17, 1998, in a deposition in the Paula Jones litigation, is that correct, sir?

      Answer: I did take an oath there.

      Question: Did the oath you took on that occasion mean the same to you then as it does today?

      Answer: I believed then that I had to answer the questions truthfully, that's correct.

    The colloquy goes on. It is in your materials.

    They attempt to say that that somehow inoculates the President from having to admit that he perjured himself during the Paula Jones deposition.

    But let's take a quick look at some of the answers he gave during the Paula Jones deposition that he affirmed in his grand jury testimony that we now know is false.

    Question to the President:

      If she [Monica Lewinsky] told someone she had a sexual affair with you beginning in November 1995, would that be a lie?

      Answer: It certainly would not be the truth.

      Question: I think I used the term "sexual affair;'' and so the record is completely clear, have you ever had sexual relations with Monica Lewinsky as that term is defined in deposition exhibit No. 1?

      Answer: I have never had sexual relations with Monica Lewinsky. I've never had an affair with her.

    Then they go on to ask:

      Is it true that when Monica Lewinsky worked at the White House, she met with you several times?

      Answer: I don't know about "several times.'' There was a period when the Republican Congress shut the government down. The whole White House staff was being run by interns. She was assigned to work back in the Chief of Staff's Office. We were all working there. I saw her on two or three occasions then. And then when she worked at the White House I think there were one or two times when she brought some documents down to me.

      Question: At any time were you and Monica Lewinsky in the hallway between the oval office and the kitchen area?

      Answer: I don't believe so unless we were walking back to the dining room with pizzas. I just don't remember. I don't believe we were in the hallway, no.

    This colloquy goes on and on. I invite the Senate to review the President's deposition testimony.

    He clearly was giving answers that were false. They were not part of the record. He wasn't doing it to protect himself from embarrassment; he was doing it to defeat Paula Jones' sexual harassment case. When the President testified in August before the grand jury, he never denied the truth of those testimonies. He refused to admit he lied during the deposition. He reiterated the truth of those because he knew he would be subject to perjury.

    The question for the President's counsel is this, and it is a simple question: Did the President lie under oath on January 17 when he was asked questions about the nature of his relationship with Monica Lewinsky? Did he lie when the U.S. Supreme Court had said Paula Jones had a right to proceed in a sexual harassment case? Did he lie when Judge Susan Webber Wright ordered him to answer those basic questions under oath? And if the answer to that question is yes, then we have an incredible admission; if the answer is no, I invite them to point to the record where that is demonstrated.

    The CHIEF JUSTICE. To the President's counsel from Senators Conrad and Torricelli:

      The House of Representatives rejected two proposed articles of impeachment, including an article of alleged perjury in the Jones deposition. Do you believe that the Senate may, consistent with its constitutional role, convict and remove the President based on the allegations under the rejected articles, including the allegations of perjury?

    Mr. Counsel CRAIG. Mr. Chief Justice, article II was defeated. But more importantly, article I specifically incorporates by reference, or tries to incorporate by reference, all the elements of article II. And the House of Representatives, when they voted to reject article II, I think, voted also to eliminate these issues that you have just heard about.

    Now, we predicted--and our prediction has come true--that the managers would like to argue this case. If you look at--if you look at the majority point that comes out before the vote occurs on all four articles and you go to article I and you try to find out where in article I they define those perjurious statements that compose subpart (2), the civil deposition, you will see in the majority report they say go look at article II--which is the argument about the civil deposition--and the House of Representatives specifically voted to take out all those accusations and allegations of misconduct with respect to the civil deposition.

    Now, I have testified, as did Mr. Ruff, before the Judiciary Committee on this issue. I said that the President's responses in the Jones deposition were surely evasive, that they surely were incomplete, that they surely were intended to mislead; and it was wrong for him to do all that. But they were not perjurious.

    If you want to try a perjury case about all of the things and the statements that the House of Representatives did not want to accuse him of, that would be inconsistent, I think, with your duty as members of this court. You cannot impeach the President on the issues that are included in article II. He was not impeached; you cannot remove.

    Mr. LOTT. Mr. Chief Justice, I believe we have had an equal number of questions, although the timing may not be exactly equal.

    I ask unanimous consent that we take a 15 minute recess at this point.

    There being no objection, at 2:41 p.m., the Senate recessed until 3:01 p.m.; whereupon the Senate reassembled when called to order by the Chief Justice.

       


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