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THE IMPEACHMENT TRIAL
Jan. 23: Questions 51 to 67

  • More Transcripts From the Trial

  • From the Congressional Record
    Saturday, January 23, 1999

    The CHIEF JUSTICE. This question is directed to the House managers from Senator Reid of Nevada.

      Would you please tell us whether you provided notice to counsel for the President, or to any official of the United States Senate, of the managers' discussions with the Office of Independent Counsel regarding an informal interview of Ms. Lewinsky, and the intention of the Office of Independent Counsel to file a motion in court to compel Ms. Lewinsky to meet with the managers? If you provided no such notice to counsel for the President or the Senate, please tell us why not.

    Mr. Manager BRYANT. Mr. Chief Justice and Senators, distinguished colleagues, no, the answer to your question. I am not aware of any such notice that was provided as described in the question.

    I would like to make some clarification on this in terms of the witness, Monica Lewinsky – potential witness. As we have been in an evolving discussion over the last few weeks in terms of if we are allowed to call witnesses by the Senate, who those witnesses might be, what our list might look like, obviously, the name of Monica Lewinsky comes up as a potentially very important witness to these proceedings.

    As many of us in this Chamber have had experience in the law, we very much would like to talk to some of these witnesses. The core group that we have considered, however, are, in essence, in the White House control; they are either employed by the White House or close friends and associates of the White House. I am sure the White House, with the attorneys, would be very willing to cooperate with us in making those people available.

    However, Ms. Lewinsky presents a very unique situation in that she is geographically some other place. I am not sure where she is – Los Angeles, New York, maybe Washington. But she has attorneys we have to deal with. It would be very critical, as any attorney in this body knows, that before you actually talk to a witness, and a witness of that importance to this proceeding, that before you produce her for that testimony, that you talk to her. It was intended to be a conversation to discuss it with her.

    I have personally not seen the immunity agreement that she has, but we understand there is a cooperation proceeding and that that agreement is between her, her attorneys, and the independent counsel, the OIC – not Congress, not the managers, not the Senate. So we have no duty, no legal standing, as I understand it, to go in and enforce that agreement, were she not to want to meet with us and cooperate pursuant to the terms of those agreements, to the agreement.

    We did contact the OIC to arrange that meeting, and once we understood that the attorneys did not want to cooperate and furnish their client to meet with us, we asked the OIC to pursue, further, the effort to have Ms. Lewinsky come in and meet with us on an informal basis as, again, anyone would do in preparation for calling a witness at a trial.

    Thank you.

       


    The CHIEF JUSTICE. This is a question from Senators Fitzgerald, Hatch, Mr. Smith of Oregon, and Senator Thurmond, directed to the House managers.

      How do you address the White House's argument that removal is a disproportionate remedy for the alleged acts of perjury and obstruction of justice and should there be any particular concern about establishing a precedent that a President can commit felonies while in office and remain President of the United States?

    Mr. Manager BUYER. I think the proportionality question yesterday was very good in that there is a psychology to be used in judicial decisions. I think there are different factors that will influence that decisionmaking process and the ideals that you, as a sitting judge and juror, will use to strive to attain them. It is important, I think, also, to have reasonableness and just solutions if you are going to individualize the case, as some may hope to do.

    I think as a society, if you take a step backward, we are kind of caught in two diverse trends at the moment. You have one trend whereby judges like to seek individualized solutions to particularized cases; and the other trend is we will apply the law to individualized cases.

    So, let me give you two best examples of both of those. With regard to the best example of individualized solutions to a particular case would be our juvenile justice system. That is where the court would come in and use a variety of means because reformation is, in fact, the goal, and that is what we do in the juvenile court system.

    As a side note of that, I think in society, with regard to – it could be an act of a firing, it could be an administrative hearing for removal, it could even be a Governor who had an employee who had an illicit affair and it was a political appointee and that Governor decided, maybe he decided applying the proportionality that he remove his own political appointee for having an affair. So the individualization can occur out there.

    The other example I will comment on is the justice according to law, and that other trend out there caught in our society – a legislature is not only here in Washington but across in our State jurisdictions; you have legislatures that are beginning to take some of the decisionmaking processes away from judges and they are saying, specifically, in Federal sentencing guidelines, as an example, that if in fact a person is convicted of a particular crime or possession of cocaine, the legislature is now telling these judges exactly: This is, in fact, what your sentence will be.

    So, we are kind of caught, I want you to know, as you are sitting as judges and jurors, in this diverse trend that is occurring in our society. I know as you listen to lectures even from the Supreme Court Justices, they are well aware of these trends, and so you are sitting and you have to come in your own conscience on how best to make that particular decision. I will note, though, that we have stressed the latter. We have stressed that the rule of law and its importance to our society not only to serve the public and social interests, but you are the guardian. When, in fact, there are crimes against the State, who is there to serve the public interest? Especially if, in fact, it is the President, the Vice President, a judicial officer, or other civil officers. Here where you have the President of the United States who has been accused of perjury and obstruction of justice, which are crimes against the State, and as Blackstone said, "are side by side with bribery,'' who is the guardian, then, of the public interest? So in the question of proportionality, it is you; it is you.

    So when Mr. Craig began by arguing that this trial is not about vindicating the rule of law, that only criminal courts are charged with that duty, I would respectfully submit that the President's counsel is confusing the punishment of a particular criminal case or controversy in a court with your duty as Congress to ensure that future officers entrusted with power granted by the people may not, while their offices eviscerate the proper administration of justice which is a cornerstone of our Republic.

    I now yield to Mr. Graham.

    Mr. Manager GRAHAM. I know I have a minute. Great minds can differ on this one: Can you have a high crime, and for the good of the nation removal is not appropriate? I was asked that yesterday, and I kind of wanted to make a case about why I think this is not true. This is a great question.

    The problem we have here is that you run into the judge cases. When you find that a judge perjured himself, you remove the judge. The President is different than the judge; I will certainly concede that. But we don't want, I think, in the use of proportionality, to create a standard that doesn't make any sense, that confuses people. The law loves repentance. Baptists love repentance. I am a Baptist. In my church, everybody gets saved about every other week. The idea that if you will come forward and admit you are wrong, you will get a different result, is loved in the law.

    Another thing to consider about proportionality is the impact on society. I think you should consider that. I think very much you should consider, even if this is a high crime, the impact on our society, if you decided to make the ultimate punishment. The death penalty of a political crime is removal from office. I started that train of thought 3 months ago. Impeachment is equivalent to the political death penalty. Every felony doesn't allow you to have a death penalty. What I hope you will be able to do, as a wise body, is not leave this confusion behind – whether or not it is a crime.

    Ladies and gentlemen of the Senate, it can be a high crime, and you then have to decide the impact on society. But if you leave us confused about whether or not this is a crime, the impact on society is far greater than if you make the decision that it is a crime, but proportionally it is not what the death penalty would call for. It would not be a political death penalty case. Thank you very much.

    The CHIEF JUSTICE. This question is from Senator Leahy to the House managers:

      Did any of the managers consult with any Member of the Senate before seeking aid from Kenneth Starr to speak with Ms. Lewinsky? Did you discuss whether this violated the Senate's 100-0 vote on trial procedure?

    Mr. Manager McCOLLUM. Thank you, Mr. Chief Justice. The question is a valid question to ask. We did not consult with any Senators about this. We don't think that what we wanted to do, to talk to Ms. Lewinsky, has anything to do with the rule you passed. We don't want to violate those rules and we don't think we have.

    As anybody who knows, if you have a witness that you are going to produce, you have a right to prepare that witness. It is as plain and simple as that.

    I have practiced a lot of trial law before I came to Congress, and a number of you have. If you are going to have a deposition given, it is going to be your witness. You are going to go down and try to talk to that witness and prepare that witness. You have a right and obligation to do that. It has nothing to do with the formal proceeding of taking the deposition, which is covered by the rules that you have passed, as to how and when depositions will be taken, and it has nothing to do with the issue of her testimony actually here, where the opposing counsel would have a right to be present. It has everything to do with the right of anyone to prepare their witness, to get to know their witness, to shake hands, say hello, to put a face on that. It is normal practice to do this.

    We see in no way how that abrogates this rule, or in any way violates what you have set forth. As a matter of fact, we think we would have been incompetent and derelict as presenters of the witnesses, if we get a chance to present them, if we couldn't talk to her. We tried to do this some time ago. We suggested to her attorneys that it would be appropriate to quietly have this discussion, to meet her, as you normally would. I think they were apprehensive. They wanted a court order, I guess, to force this to occur, and that is why we eventually have gone to do that.

    Thank you.

    The CHIEF JUSTICE. This question is from Senators Lott and Thurmond to the House managers:

      Please give specific examples of conflicting testimony or an incomplete record where the calling of witnesses would prove beneficial to the Senate.

    Mr. Manager HUTCHINSON. Thank you, Mr. Chief Justice. Good morning, everyone. I want to echo what my colleagues have said – that we are trying to be prepared. We are trying to move through this process expeditiously. But we do believe that we need to call witnesses; and secondly, that we should be prepared, without any delay, to proceed forward in the event we are granted that opportunity.

    One of the reasons that the calling of witnesses is important is because there exists conflicts in the testimony. The White House counselors, the President of the United States, has denied each and every allegation under the two articles that have been submitted to this body. I focused on the obstruction of justice, and each of the seven elements of the obstruction of justice has been denied by the President. This puts it all in issue.

    For example, let's start with the issue of lying to the aides. The President said he was truthful with his aides, Mr. Podesta and Sidney Blumenthal. Yet, if you look at the testimony of John Podesta, where he says the President came in and denied having sex of any kind with Ms. Lewinsky and goes into the details of that, that is in direct conflict with the testimony of the President of the United States. The same thing is true of the testimony of Mr. Blumenthal versus the testimony of the President of the United States.

    Another conflict in the testimony is between the President and Ms. Lewinsky – in a number of different areas. First of all, in regard to the gifts, the President said, "And I told her that if they asked for gifts, she had to give them.'' That is the President's testimony. Yet, Ms. Lewinsky says that in that conversation the President said, when asked about the gifts, "Give them to Betty.'' Then he says, "I don't know,'' or "Let me think about it.'' Again, that is a direct conflict between Monica Lewinsky and the President.

    In regard to Monica Lewinsky, he was coaching her testimony or suggesting to her that "Maybe you can sign an affidavit,'' or "You can always say you were coming to see Betty, or that you were bringing me letters.'' This is the testimony of Monica Lewinsky. What does the President say regarding that? He said that he never talked to her about a cover story in a legal context. In other words, it is a denial of obstruction of witness tampering, in contrast to the testimony of Monica Lewinsky. Obviously, there is a conflict in the details of the relationship.

    There is a conflict between the testimony of Monica Lewinsky and Vernon Jordan in three different areas. Ms. Lewinsky said she shared with Mr. Jordan some details of the relationship. Mr. Jordan says that was not accurate. Ms. Lewinsky says in a particular meeting that Mr. Jordan – where they discussed about notes she had been keeping, Mr. Jordan said, "Go home and make sure they're not there.'' But Mr. Jordan denies that.

    In another area, on the affidavit, Ms. Lewinsky says that she brought to Mr. Jordan the affidavit, and he assisted in making some corrections. Mr. Jordan does not recall that. So there are conflicts between Ms. Lewinsky and Mr. Jordan.

    There are conflicts between Ms. Currie and the President in regard to the coaching incident. Ms. Currie said the statements were made and taken in the sense that "the President wished me to agree with the statement.'' The President says, "I was trying to get as much information as quickly as I could.'' Obviously, Betty Currie testified before the grand jury before the President did, and there were never any follow-up questions. I would want to ask her: What did you say in response? Did you provide any information that the President was soliciting at that particular moment, according to the defense he has asserted? So there is conflict there.

    There is a conflict between the President and a witness that we would offer from the deposition. The President denies that he focused on what Attorney Bennett was stating in reference to the false affidavit. I believe that we can offer a witness – it could be in the form of an affidavit or deposition – that would testify that he was focusing, paying attention.

    So there is clear conflict in the record that can only be established through the presenting of additional questions or additional witnesses.

    The need for witnesses is so basic and fundamental to our truth- seeking system of justice in this country that words fail me in making the case that we should call witnesses and then you should permit it in this proceeding.

       


    We are sympathetic totally with the timeframe and the time constraint of the U.S. Senate, and for that reason we will prepare our witness list, we will accommodate a quick session. The White House counselor said this is going to drag on for months. If it drags on for months, it is because they want it to drag on for months. We will do all that we can to end this in a timely fashion, and the American people and the U.S. Senate need to understand that.

    Why are the White House counselors so concerned about witnesses? Many of these witnesses are friendly to them. We are in a truth-seeking endeavor, and I would respectfully submit that the calling of witnesses would help resolve the conflicts that I have recited.

    The CHIEF JUSTICE. This question is from Senator Dodd to the counsel for the President:

      Do you believe that a fundamental question of fairness and due process has been raised by the failure of the House managers to notify you of the proposed Lewinsky interview or by your exclusion from that interview? And do you wish also to respond to Mr. Hutchinson's comments?

    Mr. Counsel RUFF. If I may, Mr. Chief Justice, I will use most of my time on the first part of that question and try to perhaps weave in a few comments on the second part.

    I am not going to seek here this morning to vindicate the interests of this body; that is for others. But I do think it useful to speak for a bit about the interests of the accused, the President of the United States.

    It is odd as I think we listen to the managers explain what they were seeking to do to put that in the context of what we know was actually happening here. It was suggested that they wanted to just have a conversation like any lawyer getting ready for a trial would want to have a conversation with a witness before he or she put the witness into a deposition or on trial – that it was sort of normal for a trial lawyer to do this.

    I think one of the managers suggested they just wanted to say "hello'' to put a face on it. And they even suggested that counsel for Ms. Lewinsky wanted a court order to force their client to testify. Well, as we will all see once the record is made available to everyone, that last point is sheer nonsense.

    But I suggest that earlier suggestions that just a friendly little chat was all they were looking for is belied by the notion of what we have here is the managers using their "institutional role'' to get the independent counsel to join with them and use the authority that he has under the immunity agreement to threaten Ms. Lewinsky with jail, to threaten her with violation of her immunity agreement, and opening up the prospect of prosecution if they do not meet in a friendly little conversation, just say hello, just like to meet you, gathering with the managers.

    Can you imagine what that little conversation is going to look like, held in the independent counsel's office, with the people there who have the capacity to put Ms. Lewinsky in jail, while there is this friendly little conversation, just say "hello,'' normal everyday discussion between the trial lawyer and the witness he would like to get to know?

    From the perspective of my client for the moment, putting aside the rules which you all agreed on as to how we ought to proceed, can we really say that is just normal, just OK, to have one side using the might and majesty of the independent counsel's office, threatening a witness with violation of an immunity agreement if she doesn't agree to fly across the country and meet for this friendly little chat? I think not.

    I don't know whether I have a minute or two left. But on the issue of conflicts, this is, of course, something that has been the subject of much discourse over the last few days. Let me just take a couple of examples put to you by Manager Hutchinson.

    On the issue of the statements made by the President, Mr. Podesta, and Mr. Blumenthal, there is no conflict in the testimony here. The President indeed said that he was trying to keep his aides from becoming witnesses. He even said that he didn't even remember his conversation with Mr. Podesta but he took as true – this is what he said to the grand jury – he accepted as true that Mr. Blumenthal said this is what that conversation sounded like. Mr. Podesta said that is what the conversation was. There was no conflict. The President indeed adopted in the grand jury what those people would say. And of course he didn't put them into the grand jury in order to repeat some or to mislead the grand jury as to their knowledge of what they told him. They testified truthfully in the grand jury when they recited their conversations with the President.

    But I want to move just a second to something you have never heard before in the entire days that we have been sitting here. We heard little hints about how Vernon Jordan might be a liar because of what he said about December 11. All of a sudden just 5 minutes ago, this body heard for the first time he not only may be a liar about the job search, he may be a liar about destroying evidence. Words fail me.

    The CHIEF JUSTICE. This is a question from Senator Abraham to the President's counsel:

      Is it your position that Ms. Lewinsky was lying in her grand jury testimony, her grand jury deposition, and her FBI interviews when she said that the President engaged in conduct with her that constituted "sexual relations'' even under his narrow interpretation of the term in the Jones deposition? Is it your position that she was also lying when she gave essentially the same account contemporaneously with the occurrence of the events to her friends and counselors?

    Mr. Counsel CRAIG. Senator, our position is not that she is lying. Our position is that there are two different versions of what happened, and there is a discrepancy.

    In my presentation to the Senate, I acknowledged that there was a disparity between what the President had recounted and what Ms. Lewinsky said happened when it came to recalling and reporting these specific rather graphic and intimate details concerning their activities. I pointed out that, with respect to other essential elements of the relationship, there was no disagreement that they acknowledge that there was a relationship, that they tried to conceal it. But I also suggested – and I suggest to you today – that not every disagreement, not every discrepancy, is the foodstuff or the subject of a perjury charge.

    I also made the observation that perhaps this kind of conflict of testimony as to who touched who, when, where, and why, was not the kind of conflict that this institution would want to resolve through testimony on the floor. If you have any doubts about that point, I would suggest you read Ms. Lewinsky's August 20 testimony before the grand jury which is very complete and entirely and vigorously dedicated to eliciting every single gritty detail of what went on between them. I said also that I thought that this disagreement, this disparity, was of questionable materiality. Let me explain why.

    On January 29, Judge Wright ruled that Ms. Lewinsky's testimony about her relationship with President Clinton was unnecessary and maybe even inadmissible; that she had had no information relating to the core issues of the case. She made that ruling after all the allegations about that relationship had been made public. And the judge knew what had been reported in the newspapers and what was generally understood about it at that point. She had been there when the President testified about this. And she concluded that Ms. Lewinsky's testimony was not required, at least for the Paula Jones case. In truth, Ms. Lewinsky was an ancillary or peripheral witness in the Paula Jones case. She had absolutely no firsthand knowledge about what happened in the Excelsior Hotel when Ms. Jones claimed that then-Governor Clinton made an unwelcome sexual overture to her. Ms. Lewinsky had nothing to add or subtract, no ability to testify about that issue.

    So on the issue of the materiality to the Jones case as to the truth of what actually happened between them, it is clear it is of questionable, if no, materiality whatsoever. She was a peripheral witness on issues not having to do with the core issues of the case, and the case had no legal merit.

    Please recall that the judge concluded that the case had no legal or evidentiary merit. Please also remember that the Jones lawyers, when they were asking these questions of President Clinton, presumably knew the answers to these questions about the relationship because they had been fully briefed the night before.

    Now, as to the question of the materiality of this testimony and this issue of who touched whom, when, where and why to the grand jury, let me just say this: The House managers claim that one or the other must be lying because both cannot be correct. They argue that if you believe Monica Lewinsky on this issue, you must disbelieve Bill Clinton, and if you disbelieve Bill Clinton, you must conclude that he knowingly perjured himself when he denied under oath having this kind of contact with Ms. Lewinsky.

       


    Now, this direct issue was addressed by the panel of expert prosecutors that we brought to testify before the Judiciary Committee, and they all agreed that this kind of issue would never be the subject of a perjury prosecution. I would urge you to go back and look at some of the testimony that they gave to the Judiciary Committee. They talked about the oath-on-oath issue, they talked about what is independent corroborative evidence and what is not, and they concluded that no reasonable, though responsible, prosecutor would bring this kind of case based on that kind of an issue.

    We are not arguing with the managers about the law. We are not arguing with the managers about the disparity. We are talking about prosecutorial practices, what in reality would be a criminal prosecution, and I submit to you that no reasonable, no responsible prosecutor would bring this kind of a case based on that kind of evidence.

    Thank you.

    The CHIEF JUSTICE. This is a question from Senator Daschle addressed to counsel for the President:

      Do you believe that it is a requirement of due process and fairness that you be allowed to participate in the Lewinsky witness debriefing sought by the managers, and do you believe that the House would have asked for the same right if the White House had attempted to interview Ms. Lewinsky?

    Mr. Counsel RUFF. Mr. Chief Justice, that question raises an interesting mix of issues, because I think in one respect the House managers are correct, that once the Senate determines that it is prepared to go forward – I trust it will not – but if it does determine that it is prepared to go forward in some way with respect to the depositions of witnesses, at that point, with the Senate having made that decision, it would be appropriate for both sides to seek a voluntary, consensual, typical opportunity to meet with any witness in a setting that doesn't involve having the prosecutor with life and death authority over that witness doing the debriefing or being present while you talk to the witness.

    Thus, although I will take the opportunity of offering to sit in on any meeting between the managers and the independent counsel and any witness, because I would certainly like to know what the mood and the atmosphere of that process really sounded like, the issue here, I think, is not so much whether it would be nice to sit in on that meeting but whether there can be any hope for due process, fairness and opportunity for both sides, or certainly my side – I won't speak for the managers – to have an opportunity for a reasonable, fair and open discussion voluntarily with any witness who will talk with us, not – not to be too rhetorical about this – with the looming presence of the prosecutors sitting in the room with us.

    As everyone who practices in this district knows, indeed, it is a matter of law that a prosecutor may never interfere with the access of any witness to defense counsel. I can't think of much more interference than being required to sit in the room with the prosecutor and with another prosecutor while that kind of discussion goes on.

    So the answer is, fairness, no. But if it is my only opportunity to meet with Ms. Lewinsky, I will take it. But I trust that as a matter of due process it will not be.

    The CHIEF JUSTICE. This is a question from Senators DeWine, Collins and Murkowski to the House managers:

      With all of the conflicting testimony that exists on the record between Monica Lewinsky and Betty Currie, for example, how are we to resolve the questions of perjury and obstruction of justice without observing the demeanor of witnesses?

    Mr. Manager HUTCHINSON. I do not think there is any way to resolve the conflicts in their testimony without calling witnesses. You can read the transcripts and you can look at those and you can try to determine whether there is any corroborating evidence, how you can believe it, make some of those kinds of evaluations. But particularly whoever you are looking at, whether it is Monica Lewinsky or Betty Currie, there are followup questions and there is the demeanor that allows you to determine who is telling the truth and who you believe.

    And in contrast, Mr. Ruff tries to make the point that somebody is lying here, and maybe somebody is lying, but a jury – in this case the Senators – can look at this and say, well, someone is not recalling the same way, someone is more believable because their recollection is better, it is corroborated, or you could conclude that someone is lying. It doesn't always break down that simply, but you have to evaluate that. And that is how you resolve it.

    But let me just come back – I think what we see here today is the White House counsel do not want to talk about the facts. They do not want to talk about this case. They do not want to talk about obstruction of justice; just like in the House, they want to talk about the process. They want to talk about everything that is going on except for the case of obstruction of justice. And it probably will be the news story later on today, the questions that they have raised about this.

    But the fact is, it is very simple that they have access to Betty Currie. Every time the President has talked to and tried to coach Betty Currie, I don't think the President invited the independent counsel in when this was under investigation, or the Paula Jones lawyers. I don't think that happened. I don't think that – at least from the news clips, when I saw Betty Currie hugging the President, I don't think he invited the House managers in. I didn't necessarily expect him to. But we have to be prepared.

    And I will just tell you right now, so nobody is surprised, if we get to call Vernon Jordan, I don't want to delay the U.S. Senate in order to be prepared for that, so I confess today that I called up William Hundley, the lawyer for Vernon Jordan, to visit with him.

    Now, I hope that if you talk to any witnesses, that if you feel it is fair, that you will give us a chance to join with you in that. But, obviously, this is an adversary process we are engaged in, and I think that we today in this question and answer session that you all so graciously extended to us should focus on the obstruction of justice charges because that is what you have to determine – on the perjury allegation, because that is what we have to determine today.

    I thank the Chief Justice and the Senators.

    The CHIEF JUSTICE. This question is from Senators Kohl and Edwards. To whom is it addressed? Oh, it is to the House managers:

      Throughout this trial both sides have spoken in "absolutes''; that is, if the President engaged in this conduct, prosecutors claim he must be convicted and removed from office, while the President's lawyers argue that such conduct does not in any way rise to an impeachable offense. It strikes many of us as a closer call. So let me ask you this: Even if the President engaged in the alleged conduct, can reasonable people disagree with the conclusion that, as a matter of law, he must be convicted and removed from office – yes or no?

    Mr. Manager GRAHAM. Absolutely. And this is a hard case in a couple of areas, and I think it is an easy case in many areas.

    The Constitution reads that upon conviction, the person shall be removed. You have to put it in the context of the judge cases, because that is where it gets to be hard for this body. Because of the precedents of the body when you apply the same legal standard of high crimes and misdemeanors to the fact that a judge who was convicted of perjury was removed by the body, and you conclude in your mind that the President committed perjury, you have a dynamic you have to work through.

    Mr. Bumpers says there is perjury, then there is perjury. I would suggest to you that the allegations of perjury and obstruction of justice in this case are not trivial. It is not about a speeding ticket or a trivial matter. It is about the activity of the President when he was defendant in a lawsuit, a sexual harassment lawsuit, when he was told by the Supreme Court you have to play and you have to play fairly.

    If you determine that he committed the crime of perjury and you determine that he committed the crime of obstruction of justice, based on the precedents of the Senate I think you would have a hard time saying under the situation of this case that that is not a high crime. But I would be the first to admit that the Constitution is silent on this question about whether or not every high crime has to result in removal.

    If I was sitting where you are, I would probably get down on my knees before I made that decision. Because the impact on society is going to be real either way. If you find this President guilty in your mind, from the facts, that he is a perjurer and that he obstructed justice, you have to somehow reconcile continued service in light of that event.

    I think it is important for this body to not have a disposition plan that doesn't take in consideration the good of this Nation. I have argued to you that when you found that a judge was a perjurer, you couldn't in good conscience send him back in the courtroom because everybody that came in that courtroom thereafter would have a real serious doubt.

    I will argue to you that when you find this President guilty of perjury, if you do, that he has violated his oath and that by a consequence of that, some public trust has been lost. And I would show to you the body of evidence from this question, "Do you trust William Jefferson Clinton?'' – the American people will tell you – three out of four say no. But the American people will also tell you that I understand what happened here and some want him removed and some don't. And you have to consider what is best for this Nation.

    I will yield to Mr. Buyer in a second, but the point that I am trying to make, not as articulately as I can, is that I know how hard that decision is. It has also been hard for me.

    It has never been hard to find out whether Bill Clinton committed perjury or whether he obstructed justice. That "ain't'' a hard one for me. But when you take the good of this Nation, the upside and the downside, reasonable people can disagree on what we should do.

    Mr. Manager BUYER. I would just like to remind all of you that the impeachment process is intended to cleanse the executive or the judicial office when it is plagued with such a cancer as perjury or obstruction of justice, which violates the oath required to hold those high offices.

    Now, what may be turning in the gut of some of you are the precedents of the Senate, when in fact you have turned out of office, you have exercised your judgments of proportionality when these judges violated their oaths and had perjury, you said they shall be removed from office.

    Now there are some that are going, well, I am uneasy in this case with the President. That is what may create a little problem here. I would suggest to you that you actually have findings of fact; that the Senate has findings of fact that the President, in fact – he lied or he did not lie or he committed an obstruction; that you actually have findings of fact. And then you can move beyond to the questions of application of the law.

    But when the Senate has performed such a cleansing and removed Judges Nixon, Claiborne and Hastings, all three of them impeached for perjury in some form – and in Judge Hastings' case even though he had been acquitted of the criminal case – the Congress, in particular the Senate, you have a duty to preserve the integrity of public office, and that is what impeachment was precisely designed to do.

    The CHIEF JUSTICE. This is a question from Senators Voinovich, Jeffords and Chafee to the House managers:

      In her interviews with the Office of the Independent Counsel, Ms. Lewinsky stated that on January 5, 1998, the President told her not to worry about the affidavit because he had seen 15 others. Did the President mean that he had seen previous drafts of Ms. Lewinsky's affidavit, or did the President mean that he had seen drafts of other affidavits that were in some way connected to the Paula Jones matter?
       


    Mr. Manager McCOLLUM. Thank you, Mr. Chief Justice. You can take that either way. But I believe in the context – and I presented this to you the other day – in which the President uttered those words, that the most logical conclusion is that he had seen 15 other drafts of hers. If you remember, she was discussing with him the issue of whether he wanted to see this particular draft of her affidavit. And at that particular moment he said, "No, I don't want to. I have seen 15 others.''

    Technically speaking, he could have seen 15 other affidavits in his life somewhere back in Arkansas, who knows? But it strikes me that the logical conclusion, the commonsense conclusion in the context of everything else that you see this President was intent on and had in his mind, and the interest that he had already shown from all the conversations that he had had with Vernon Jordan and others to make sure that this affidavit was on track, and knowing that he was going to testify in a few days himself in the Jones case, and rely on it and in fact did go in and tell the same cover stories that were in this affidavit to the court, untruthfully, that the probabilities are pretty good, that common sense says that he was saying he had seen 15 other drafts of this version of this affidavit. But that is for you to decide. That is a judgment call for the triers of fact. Thank you.

    The CHIEF JUSTICE. This is a question from Senator Leahy to counsel for the President:

      Could you reply to the statement just made by Manager McCollum.

    Mr. Counsel KENDALL. Mr. Chief Justice, on Thursday afternoon I went over, in perhaps tedious detail, the facts relating to the affidavits. I pointed out that there was no way in which – there was no evidence that the President saw any affidavit draft. Mr. Manager McCollum just now, I think, admitted that he has only a speculation. He doesn't have any record evidence. The President denied seeing any affidavit draft. I pointed out in the managers' chart 7 that their theory about when Ms. Lewinsky could have gotten an affidavit was simply wrong because their theory was she got it on January 5. This is a single affidavit draft. The evidence plainly shows that she could not have gotten it until January 6. There is simply nothing in the record – and the independent counsel interviewed Ms. Lewinsky extensively, both in interviews and before the grand jury – and there is simply no evidence whatsoever that the President saw any drafts or, indeed, that there were 15 drafts.

    Let me say a word about whether or not we are addressing the facts. I am not going to frighten you. I am not going to go back through the obstruction of justice evidence. But I think if you will remember the presentation – first by Mr. Craig who addressed in detail the evidence with regard to perjury, then if you will recall what Ms. Mills said addressing two of the seven allegations of obstruction of justice, and with what I said to you on Thursday afternoon for almost 3 hours – and I thank you for your uncommon patience; you were attentive all the way through that exercise – you know that we have addressed the facts. What we had yesterday, what Mr. Ruff has already addressed, is, again, I will use the word "remarkable'' occurrence involving the independent counsel.

    We have addressed the facts, and there is simply nothing to support in all this record, this heavy, long record, that the President had any review of any affidavit or, indeed, that there were more than one or two drafts of Ms. Lewinsky's affidavit.

    The CHIEF JUSTICE. This question is from Senators DeWine, Santorum, and Fitzgerald to the President's counsel:

      If we are to assume that the various allegations as to obstruction of justice are in fact true, is it your contention that if the President tampered with witnesses, encouraged the hiding of evidence, and corruptly influenced the filing of a false affidavit by a witness, that these acts do not rise to the level of an impeachable offense?

    Mr. Counsel RUFF. Mr. Chief Justice, this is something I won't have an opportunity to say very often, but I believe that Mr. Manager Graham has, in fact, stated for you the essential of the role that this body must play. We will probably differ as to what the right answer to the question is, but as to the process and as to the question that must be asked, I think he stated it well.

    I believe that the facts do not support the conclusions that are embodied in the question. But not only can reasonable people differ on the facts, but reasonable people may differ on the outcome. And if, indeed, reasonable people can differ, doesn't that mean, by the very statement of that proposition, that this body cannot meet its constitutional heavy mandate, which is to determine whether or not, whatever conduct you believe the President committed, as outlined by these managers over the last many days – can you legitimately determine that he ought to be removed from office.

    And all I can do, I suppose, is to remind you, as I have too frequently, I am sure, that if you try to put yourself in the minds and the hearts of the men who created our system of Government, they wanted to know only really one answer to one question, as framed in many different ways, but the essence remains the same: Is there a sufficient danger to the state – danger to the state – to warrant what my colleagues across the aisle here have called the political death penalty. And I think the answer to that is no.

    The CHIEF JUSTICE. This is a question from Senator Wellstone to counsel for the President:

      To what extent should the views of the American people be taken into account in considering whether a President should be removed from office?

    Mr. Counsel RUFF. Mr. Chief Justice, I think that the answer to that question is not the polls that you read in the newspapers or that you see on your evening news, whatever those numbers may be; that is only one clue as to what the American people are thinking. And each of you knows the people in your jurisdiction far better than any polltaker does and that certainly I do.

    But surely one way to test the ultimate question that I just described in response to the last inquiry from the Republican side of the House, is to ask yourself, on the basis of experience over the last year, on the basis of your experience in the political – and by that I mean political in the very best constitutional sense of the term as used by Alexander Hamilton – as to your sense of the political structure of this country and what the people are saying to you and what your sense of their needs is: Do they need the kind of cleansing that Manager Buyer spoke about?

    I think the answer to that, if you look within the body of people you are most familiar with, must be no. This isn't to say that it is a popularity contest, that we ought to go out and have a referendum or another poll before you all decide on this. But surely the sense of the people, the will of the people, the belief of the people in this President's ability to govern must educate each of you, not mandate a result, but surely guide the result that you reach in this proceeding.

    The CHIEF JUSTICE. This is a question from Senator Collins to the House managers:

      The President's counsel has made much of Ms. Lewinsky's statement that no one "promised'' her a job for her silence. She did not testify, however, that no one promised her a job in return for a false affidavit – or, for that matter, that no one implied that she would get a job for her cooperation. Can you think of any reason why we should not call Ms. Lewinsky to help clarify such ambiguous testimony?

    Mr. Manager HUTCHINSON. Thank you, Mr. Chief Justice. That is an excellent question and really goes to the heart of some of the disputes.

    I think as you read the testimony of Ms. Lewinsky, as you read some of the other areas of testimony, questions come to your mind. You would like to follow up, you would like to ask her a question, and that one comes out and flags you that that is a question that would like to be asked: No one promised her a job for her silence, and that is the testimony that she gave in response to a question in the grand jury.

    But I believe this is a case in which actions speak louder than words. I think that actions and what took place and the commonsense understanding of what is happening here demonstrate the case that there was a false affidavit that was obtained and that was in conjunction with the obtaining of a job for Monica Lewinsky.

    So I think that is a natural question, and I think that also if you read, if you look at the testimony of Monica Lewinsky, I think it is clear that the case is made that she was encouraged to lie and she was also encouraged to sign a false affidavit and she was also provided a job coincidentally at the same time.

    I would like to take the opportunity, if I might, Mr. Chief Justice, in further answering a question that was raised earlier; it was on the false affidavit. That is, I think, related to the question as well.

    During Mr. Kendall's presentation a few days ago, he made this statement:

      The idea that the telephone call [between Lewinsky and Clinton on January 5] is about that affidavit is sheer, unsupported speculation and, even worse, it is speculation demolished by fact.

    This is the statement that Mr. Kendall gave the other day on this floor, as cited in the Congressional Record, summarizing his presentation that the idea that Clinton and Lewinsky talked about the affidavit "is sheer, unsupported speculation and . . . demolished by fact.''

    Well, the record demonstrates that Monica Lewinsky's testimony is that she had a conversation with the President on the telephone in which she asked questions about the affidavit. She was concerned about signing that affidavit. And according to Ms. Lewinsky, the President said, "Well, you could always say the people in Legislative Affairs got it for you or helped you get it.'' And that is in reference to a paragraph in the particular affidavit.

    Now, my question to Mr. Kendall is, Would you agree, Mr. Kendall, that your assertion that there is no support for it in the record is that you are totally rejecting the testimony of Monica Lewinsky as totally unbelievable? And once again you have a conflict that is presented in the testimony, and there is only one way to resolve it, and that is to hear from the key witnesses.

    The CHIEF JUSTICE. This is a question from Senator Lautenberg to counsel for the President:

      Could you reply to the question put by the manager?
       


    Mr. Counsel KENDALL. Mr. Chief Justice, let me address the first part of Mr. Manager Hutchinson's response; and that is, whether the statement by Ms. Lewinsky that "Nobody ever promised me a job for my silence'' covered other possible promises to her. And it is quite clear, when you read all the interviews that were done of her by the independent counsel, all the grand jury testimony, that she unequivocally testified there were no promises made to her, there were no assistances given to her, that were in any way conditioned upon her testifying a certain way or giving a certain kind of affidavit. And she is unequivocal about that.

    Now, in the statement that she made that I quoted, she does not say nobody ever did these other things, but she said that in her previous testimony. She uses the offer of a job as simply a proxy for anything that would connect the assistance she would receive with testifying in a certain way. There is simply no evidence anywhere in the record. And the independent counsel covered that with her in detail. She felt compelled to volunteer her statement at the end of the process because they had left some innuendo in the record that she had been provided assistance. But her testimony is unequivocal. I have quoted it.

    Now, the only testimony in the record about linking the job to some assistance in the Jones case comes from the Linda Tripp audiotapes. And, again, Ms. Lewinsky could not be clearer in her grand jury testimony what she told Linda Tripp was false. There was no connection there whatsoever. Her proffer, which I put up on the board, was quite unconditional. And this you have in your materials. This is in her own handwriting: Neither the President nor Mr. Jordan nor anyone on their behalf asked or encouraged her to lie.

    So with regard to the first part of Mr. Manager Hutchinson's question, there is simply no evidence, again, that any kind of assistance to Ms. Lewinsky was conditioned on her performance in any way in the Jones case.

    Now, with regard to the affidavit, I stand on what I said before you on Thursday. And I want to be very clear about what Mr. Hutchinson's presentation was in chart No. 7 that I was responding to. And I think it is quite important to recall yesterday that a question was addressed to the House managers whether there were any statements contained in their exhibits which contained misrepresentations or omissions that, in the interest of fairness to justice, they would like to correct; and Mr. Manager Hutchinson said, "We are not aware of any corrections that need to be made on any of our exhibits offered to the Senate.''

    I would simply rest on the presentation. I am not going to take you through, again, the many errors in the charts. Those were not refuted in any way. They rested on their charts. I leave that to your judgment.

    But with regard to chart 7, what Mr. Manager Hutchinson told you almost a week ago was that chart 7 was a summary of what happened on January 5: Ms. Lewinsky meets with her attorney, Mr. Carter, for an hour; Carter drafts the affidavit for Ms. Lewinsky; she calls the President; the President returns Ms. Lewinsky's call; and then they had a discussion about this draft affidavit.

    The point of my demonstration through Mr. Carter's testimony and through his billing records was in fact that the affidavit had been drafted the next day. They could not have had a discussion about the affidavit on that date. And I think the record is quite clear on that.

    The CHIEF JUSTICE. This is a question from Senator Lott to the House managers:

      Do you have any comment on the answer given by the President's counsel with regard to the views of the American people?

    Mr. Manager HYDE. Mr. Chief Justice, distinguished Senators, this is a fascinating question. Edmund Burke was asked that once, and he said that a member of Parliament owes the highest degree of fidelity to his constituents, but he doesn't owe his conscience to anybody.

    We have, or we have not, a representative democracy. We are not delegates who are sent here to weigh our mail every day and then to vote accordingly. Our work here is not an ongoing plebiscite. We are elected to bring our judgment, our experience, and our consciences with us here.

    I have always believed – and I believe more firmly than ever; and this experience confirms me in that belief – there are issues of transcendent importance that you have to be willing to lose your office over. I can think of several that I am willing to lose my office over – abortion is one; national defense is another; strengthening, not emasculating, the concept of equal justice under the law. My life is devoted, as a lawyer – I have been on the Judiciary Committee; this is my 25th year – and equal justice under the law is what moves me and animates me and consumes me. And I am willing to lose my seat any day in the week rather than sell out on those issues.

    Despite all the polls and all the hostile editorials, America is hungry for people who believe in something. You may disagree with us, but we believe in something.

      Recess

    Mr. LOTT. Mr. Chief Justice, I ask unanimous consent that we recess the proceedings for 15 minutes.

    There being no objection, at 11:19 a.m., the Senate recessed until 11:36 a.m.; whereupon, the Senate reassembled when called to order by the Chief Justice.

       


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