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THE IMPEACHMENT TRIAL
Jan. 22: Questions 17 to 30

  • More Transcripts From the Trial

  • From the Congressional Record
    Friday, January 22, 1999

    The CHIEF JUSTICE. The Chair recognizes the majority leader.

    Mr. LOTT. Mr. Chief Justice, I believe we are ready to resume the questions, and I believe this will be question No. 16. We send the question to the Chief Justice.

    The CHIEF JUSTICE. This is a question from Senator Santorum, Smith of Oregon, and Thomas to the House managers:

      Please respond to the presentation made by counsel to the President, including the argument made by Mr. Craig, to the effect that the rejection of article II had the effect of eliminating that portion of article I. Did the House conclude that lying in a civil deposition is not impeachable, but that lying to the grand jury about whether the witness lied in a civil deposition is impeachable?

    Mr. Manager ROGAN. Mr. Chief Justice, I thank the Senators for the question and for the opportunity to rebut the presentation a few minutes ago by counsel for the President, Mr. Craig.

    In his response he asks the Senate to do specifically what none of the attorneys can do in their presentations, and that is go beyond the record. Specifically, Mr. Craig is asking the Senate to make assumptions as to why the House of Representatives defeated what was then known as article II, a stand-alone article of impeachment that the President lied during the civil deposition. And he goes so far in his presentation to say because the House of Representatives defeated what was then article II, the Senate should not consider any of the language relating to the President's perjury during the civil deposition.

    First, I ask the Senate not to make those assumptions because if there was any reasonable inference to be drawn, it would be that it was cumulative. Why is it cumulative? Why did the House not want this to be a stand-alone article? It is cumulative because, if Mr. Craig would read article I, he would see that one of the allegations of perjury is that the President committed perjury in the grand jury when he referenced his civil deposition answers and reiterated those to the grand jury. And so the House made a decision not to use a separate stand-alone article. But I would respectfully submit to this body that that is the only inference that can be drawn.

    The other thing that I want to mention briefly about Mr. Craig's presentation on that issue is what I found to be a startling admission on his part. Assuming, of course, that the Senate is going to look at article I as it was drafted and passed by the House and is presented to you dealing with civil deposition perjury, Mr. Craig said that the President's testimony in the Jones case was evasive and incomplete.

    He goes even further in his testimony, or statement to the Senate a couple days ago, and I am quoting. He said, "The President's testimony in the Jones case, the President was evasive, misleading, incomplete in his answers.''

    That begs the question. What kind of oath did the President take in the civil deposition? Did he take an oath, did he raise his hand and swear to tell the truth, the evasive truth, and nothing but the evasive truth? Did he take an oath to tell the truth, the misleading truth, and nothing but the misleading truth? Did he take an oath to tell the truth, the incomplete truth, and nothing but the incomplete truth? Because, if he did, if that was the language that the President used when he took his oath and testified, then perhaps Mr. Craig's position is well taken. But a brief review of the oath that the President took clearly states that he took an oath and was obliged under the law to tell the truth, the whole truth, and nothing but the truth--not the incomplete or misleading truth, the truth, the whole truth, and nothing but the truth.

    And so this body has to make a determination when they review that testimony, both given during the civil deposition and reiterated during the grand jury, whether the President fulfilled his legal obligation in a sexual harassment lawsuit. And if he did, then clearly that should be stricken, and you should not consider that. But if he did not, if you find that in fact he testified, as Mr. Craig says he testified, incompletely, evasively, and misleadingly, then I believe this body has an obligation to cast a vote accordingly.

    The CHIEF JUSTICE. Senator Reed of Rhode Island asks the 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. I thank you, Mr. Chief Justice.

    You know, Mr. Manager Rogan asked you not to make assumptions about what the actions of the House mean, and then proceeded to make a series of assumptions about what the House might have meant.

    The problem with Mr. Manager Rogan's analysis is twofold: One, he and his colleagues in the House on the Judiciary Committee drafted these four articles. They believed, at least 20 of the majority believed, that it should be an impeachable offense, as he now puts it: did he fulfill, did the President fulfill his obligation in the Jones deposition? You don't need to make a lot of assumptions to understand merely on the face of the action that was taken that the full House said, no, it is not, even if we were to conclude, as the House Judiciary majority wishes us to conclude, an impeachable offense.

    And so the managers have had to find a way to drag back into article I all of the problems that they see in the President's testimony in the Jones deposition. The problem is that--and you can listen to it in the language that Mr. Manager Rogan has used not only today but earlier and that is used in the brief filed by the House managers--that the President, in his words, referenced and reiterated his testimony in the Jones case. Senators, that is not so.

    Now, they try to hook onto a statement, as best we are able to tell in searching their position and their writings on the subject, the managers hook onto a statement in which the President said, I tried to walk through the minefield of the Jones deposition without violating the law and think I did. And, on that frail hook--which is clearly a statement of the President's state of mind about whether he succeeded or didn't succeed in testifying without violating the law in the Jones case--on that hook they hang every single item. They didn't tell us what they were--but they hang every single item that the House rejected out of hand in article II.

    Now, wholly apart from the inadequacy of the predicate that they lay, if there was ever an example of a situation that Mr. Craig talked about earlier and that I talked about on Tuesday, in which I challenge anybody in this room to tell me how you would have known coming into this Chamber what it was that the managers were alleging with respect to the Jones deposition, this is it.

    If you listened--look at the trial brief. If you look at Manager Rogan's presentation of the other day, if you listened to his presentation today, where, amongst all that, do we pick and choose to find the statements? Even if you agree with Mr. Manager Canady that it is all right just to sort of generally charge, as a constitutional proposition--and I firmly disagree with that. I don't care under what level you are operating--the lowest trial court in the country--nobody would ever say: Now, Mr. Defendant, I want you to understand that you are being charged with what you'll find at page, whatever it is, of the majority report where we refer you over to this list of other things that was rejected by--just let us say the grand jury--and somewhere in there you are going to find the charges to which we ask you to respond.

    The bottom line is, you can go down that list. Some of them you will never hear mentioned in this Chamber--haven't heard them mentioned yet. I defy anybody in this Chamber, including the managers, to justify asking the President of the United States to defend against a reference from one page of a brief to another in order to tell the charges that he has been accused of.

    If you read his grand jury testimony, you see he addressed a number of issues that he addressed in the Jones deposition. He clarified. He elaborated. He told the truth in the grand jury. Not once was he ever asked by the independent counsel and all his lawyers there who had been pursuing this investigation for 7 months when they had him in the grand jury--not once did they ask him this simple question: Is everything you testified to in the Jones deposition true? Or, go down the list and say: Is what you testified to on page 6, or page 8, or page 87 true?

    And when they got through with that deposition, 4 hours, professional prosecutors, and they went back and spent from August 18 to September 9, when they sent their referral up, looking back, using a fine-tooth comb on that transcript, and they went back and said--where are the violations? Even they don't say that there is some sort of wholesale importation of the Jones deposition into the grand jury. And, yet, not the House but the Judiciary Committee majority report and the managers, with that big, vacant, empty spot in the middle, the rejection of article II by the House of Representatives, would have you believe that, indeed, what the independent counsel's office didn't believe happened and didn't force to make happen, did happen. And they are asking you to remove the President from office on that kind of logic.

    Thank you, Mr. Chief Justice.

    The CHIEF JUSTICE. This is from Senators Shelby and Snowe to the House managers.

      There has been much debate regarding the nature of the offenses that fit within the definition of "high crimes and misdemeanors.'' When employing this phrase in the Constitution, the Framers relied on precedents supplied by Colonial and English common law to provide context and meaning. Please explain whether or not the offenses charged in the two Articles fit within the types of impeachable offenses contemplated by the Framers as they interpreted Colonial and English common law precedent.

    Mr. Manager CANADY. Mr. Chief Justice and Members of the Senate, I will be happy to respond to this question because it is a question that goes to the heart of the matter that is before us.

    On Saturday I made a presentation which focused on the history of the impeachment process in Great Britain and the way in which that serves as a backdrop for the work of the framers. I would like to refer you, again, to a document to which I made reference during the course of the proceedings on Saturday. This is a document which has also been referred to repeatedly by counsel for the President. It is the report prepared by the staff of the impeachment inquiry in the case of President Nixon entitled "Constitutional Grounds for Presidential Impeachment.''

    I believe that in that report they grapple with the very issue that you have now raised. And in characterizing the background of impeachment and characterizing the things that the framers focused on both in the course of the Constitutional Convention and in the ratification debates and also--it goes a little beyond your question-- the course of impeachment proceedings over the last 200 years here in the House of Representatives and in the Senate, they came to this conclusion, and this is what they said. They said:

      The emphasis has been on the significant effects of the conduct--undermining the integrity of office, disregard of constitutional duties and oath of office, arrogation of power, abuse of the governmental process, adverse impact on the system of government.

    They went on to say: "Impeachment was evolved by Parliament to cope with both the inadequacy of criminal standards''--and one of the issues that they were concerned with was whether there had to be a criminal violation in order for there to be a high crime or misdemeanor, and they concluded, I believe rightly, that there need not be a criminal offense, but they said, "Impeachment was evolved by Parliament to cope with both the inadequacy of criminal standards and the impotence of courts to deal with the conduct of great public figures.''

    They concluded, then, by saying, "Because impeachment of a President is a grave step for the nation''--which all of us in this Chamber concede--"it is to be predicated only upon conduct seriously incompatible with either the constitutional form and principles of our government or the proper performance of constitutional duties of the Presidential office.''

    That is the standard which they set forth, which I believe encapsulates the whole history of the experience of the English Parliament, as well as the discussions in the Constitutional Convention and the ratification debates as well as anything I have seen.

    Let me point out that this was a product of the staff of the Rodino committee. This is not something that the House managers here today have come up with to support our case; it is there as part of the record.

    Let me refer to another part of the--that particular report, which I think gets to the essence of the matter here. They said, "Each of the thirteen American impeachments''--of course, there have been more impeachments since the time this was written--"involved charges of misconduct incompatible with the official position of the officeholder. This conduct falls into three broad categories.''

       


    I think that this is a very sensible division of the types of conduct that may fall--the types of conduct that constitute high crimes and misdemeanors.

      (1) exceeding the constitutional bounds of the powers of the office in derogation of the powers of another branch of government; (2) behaving in a manner grossly incompatible with the proper function and purpose of the office; and (3) employing the power of the office for an improper purpose or for personal gain.

    I would submit to you, in conclusion, that what we have before the Senate in this case is conduct that clearly falls within the scope of category 2, which I just read, which I will repeat--"behaving in a manner grossly incompatible with the proper function and purpose of the office''--for the very reasons I explained a few moments ago. When the President of the United States, who has taken an oath of office to support and defend the Constitution, who has a constitutional duty to take care that the laws be faithfully executed, engages in a calculated course of criminal conduct, he has, in the most direct, immediate, and culpable manner, violated his oath of office, breached his duty under the Constitution, and for that reason has behaved in a way that is grossly incompatible with the proper function and role of the high office to which he has been entrusted--which has been entrusted to him by the people of the United States.

    The CHIEF JUSTICE. This question from Senator Bingaman to 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. Mr. Chief Justice, Senators, let me make a couple of points, if I might. The question that was put to the managers started by asking what we can learn from looking back into English roots of impeachment and how that might bear on the decisions that you face in the coming days.

    I will not, in any sense, hold myself out as a scholar or at least enough of one to be able to answer the question with any specificity, but I do know enough about the parliamentary form of government and its experience with impeachment to know that a couple of lessons can be drawn from it.

    First, that impeachment was a developing tool over the course of the 14th, 15th, 16th and 17th centuries as a weapon in the battle between the Parliament and the Crown. It was one of the ways--indeed, one of the very few ways--the Parliament could reach out and remove the King's ministers or the Queen's ministers, and that was really where the battleground was.

    Even in that setting, when it was an avowed political tool, history, I think, will tell us that Parliament did ask itself, Was the conduct of the minister at issue--whoever that minister might be--so subversive of the constitutional form of government that removal of the minister, or in some cases even more severe sanctions, was necessary?

    If you transport that into the experience of the framers, it does two things, I believe: One, it tells you what the framers knew of the seriousness of the offenses that had to be addressed through impeachment and what the need for impeachment was as the ultimate solution to the ultimate problem.

    But it also tells you very clearly that the framers did not want to bring that English experience in wholesale because they recognized it for what it was, which was, indeed, a weapon in the battle between the Parliament and the Crown, and the government that they had created needed balance among the legislature and the executive and the judicial branch. The use of impeachment, as it was reflected over the four or five centuries that had been developed, was not consistent with what these framers were creating. And so they very carefully chose, and the debates reflect that, to limit the scope of impeachment and to use it as they viewed it: only as a matter of constitutional last resort.

    In doing so, they foretold, I think, the positions staked out both by the majority and the minority at the time of Watergate. And let me pause here just for a moment to say that I will not go into detail respecting the conduct engaged in by former President Nixon, except to say and suggest to you that it is so far distant from anything that has been charged here that it doesn't belong in the same sentence, paragraph, or certainly article.

    But if you look at what came out of the House Judiciary Committee in 1974, I agree entirely with the theme of the majority staff report at the time, as did the minority. Their theme was the theme that I hope I have sounded, probably too often, over the last few days. And I am going to read to you again--I apologize to you--something I read to you earlier, which is the minority view on the meaning of impeachment:

      It is our judgment, based upon this constitutional history, that the framers of the United States Constitution intended that the President should be removable but by the legislative branch only for serious misconduct dangerous to the system of Government established by this Constitution. Absent the element of danger to the State, we believe the delegates to the Federal Convention of 1787--

    I will skip over a little language here-- struck the balance in favor of stability in the executive branch.

    Thank you, Mr. Chief Justice.

    The CHIEF JUSTICE. Senators Grassley, Smith of New Hampshire, Bunning and Craig ask the House managers:

      In your presentation, you made the case that the Senate should call witnesses. In light of the White House's response to this argument, do you still hold this position? Please elaborate.

    Mr. Manager McCOLLUM. Mr. Chief Justice and Senators, the House definitely holds to the position that we should call witnesses. But I think the issue here is what has been related to us in anything we have heard in the past few days by the White House counsel that would say we don't need them, or I think just the contrary, what have we heard that says we are more likely to need them, or you are more likely to need them. First of all, I would like to point out to you that the White House counsel is trying to have it both ways.

    They have been arguing to you on a lot of technicalities of the law, the criminal law, for the last few days, and that is understandable.

    As I said to you a few days ago, I think this is a two-stage process. We, the managers, do. You have to determine if the President committed crimes, and if he did, should he be removed from office: two separate questions. They have argued to you that you should use the standard, beyond a reasonable doubt, which is a criminal standard, and I might add that standard is only for facts, it is not for whether you remove; it isn't to determine law.

    You wear the hat as finders of fact as well as the judges, finders of the law, and so forth. But if you choose to use that standard, you need to know, A, that it doesn't mean it excludes any doubt. You probably need to hear a jury instruction, which we can provide at some reasonable point for you, about how a Federal court would charge a jury about that.

    But the point I am making is that they have claimed that, and they claim there is a lack of specificity in the charges. We are not in court in the sense of a real trial here. We don't have to be specific like that. The whole history of the articles of impeachment that have come over here in the past on judges have never gotten down into the technical specificity of a courtroom and been thrown out because they were not exactly right.

    My point is they have gone and built up a whole case about we ought to follow these rules and have a criminal proceeding and judge the crimes on that basis, and yet they have said you wouldn't have witnesses or we shouldn't call witnesses.

    In any criminal trial, you are going to call witnesses; you need to judge their credibility. I want to walk through what else they have said to you in the last couple of days that makes that point very clear with regard to testimony, with regard to judging who you believe or who you don't believe and how important that is.

    First of all, let's just take a few glimpses, but as we do this, remember the big picture is the scheme the President has engaged in. The whole basis for our discussion here today in each of these two articles of impeachment involves the questions of the President trying to thwart the Jones court will, trying to hide evidence from the court and planning not to tell the truth in that deposition in January. Whether that is over here on a perjury count or not is irrelevant. It is critical to this case for both obstruction of justice and perjury that you accept and understand, as I think clearly you do from listening to all of this, that the President lied many times in that deposition in the Jones case because he didn't want them to get the facts, the true facts of his relationship with Monica Lewinsky.

    Well, in that process of looking at that, he needed Monica, if you recall, to file a false affidavit. He needed to obscure the fact that there were gifts there. He needed to obscure the trail that led to him in any detailed relationship with her.

    So let's take, for example, the gift-exchange discussion counsel had out here a couple of days ago with us. They were pointing out to you-- the White House counsel--that on December 28, that Monica Lewinsky, in her grand jury testimony, testified that the President said to her-- with respect to what she should do about those gifts, and she raised giving them to maybe Betty Currie--I don't know or let me think about that.

    The counsel said, well, let's go back and look at 10 different times where she said about that subject all kinds of different ways. I submit to you that her grand jury testimony, after she got the immunity to testify, is clearly the most credible. We presented that to you, and that is what the President said.

    It is significant what he said, because that is part of your chain you have to lead down the road to figure out whether or not he had the requisite intent to go and influence the outcome of what was done with the gifts.

    The reality of this is that when you look at it, you have to question her testimony; you have to question her believability. You ought to bring her out here. She should be brought out here, if they are going to challenge her like this, and give an opportunity for us to examine her on both sides and determine what is her best testimony about that, if that is important to you, and apparently it is to White House counsel.

    The same thing is true of the questions with regard to Ms. Currie and the phone call dealing with the question of coming over to get the gifts. There White House counsel is saying, in essence, Ms. Lewinsky is not telling the truth; Ms. Currie is. If you don't have them here to listen to, who are you going to believe? I suspect if Ms. Lewinsky came out here, that 1-minute phone conversation, which was not part of the Starr referral--we discovered that subsequent to that--would be something she could comment on and explain, and maybe Ms. Currie could, too. But we do not have that. And they made a big to-do over that in the last couple days.

    Last, but not least, what I put up on the chart here is dealing with this affidavit. Now, this affidavit is very important. It is a central part of the obstruction of justice. It is the very first obstruction of justice and the question of truthfulness. And who you believe in this pattern is very, very important.

    The White House counsel have been arguing the last few days that, indeed, with regard to the cover stories, that there was no discussion of cover stories in a timely way during the December 17 phone conversation when the President suggested Monica Lewinsky file an affidavit, and that the cover story idea somehow isn't tied into the issue of putting into her head that she should tell a lie.

    Well, I call your attention to what I read to you the other day. It is up here on this board. And I refer it back to you on the chart. This is one of the charts where she testified before the grand jury--Monica Lewinsky did:

      At some point in the conversation, and I don't know if it was before or after the subject of the affidavit came up--

    I don't know if it was before or after, but it was during that conversation on December 17 when the affidavit did come up--

      he sort of said, "You know, you can always say you were coming to see Betty or that you were bringing me letters.'' Which I understood was really a reminder of things that we had discussed before.

    And she went on to say the famous quote: "And I knew exactly what he meant [by this].''

    And if you remember--I read that to you the other day--she also said: "It was the pattern of the relationship, to sort of conceal it.''

       


    I am not going to put the other board up here, but in the same context they have been saying, with respect to this affidavit issue again, "No one asked me to lie.'' Remember that was repeated over and over and over again. And I, again, point out to you that you need to bring her in here, I think, based on what they are saying and arguing, to find out for yourself if she is going to corroborate this.

    She said in the grand jury testimony:

      For me, the best way to explain how I feel what happened was, you know, no one asked or encouraged me to lie, but no one discouraged me either.

    And she went on to say: "And by him not calling me and saying that''--that she shouldn't lie; I didn't read the whole paragraph--"I knew what [he] meant.''

    "Did you understand all along that he would deny the relationship also?''

    She says: "Mm-hmmm. Yes.''

    The question: "And when you say you understood what it meant when he didn't say, `Oh, you know, you must tell the truth,' what did you understand that to mean?''

    She says: "That--that--as we had on every other occasion and every other instance of this relationship, we would deny it.''

    If you believe her, then the President is not telling the truth. The affidavit clearly is something he was trying to get her to file falsely. It makes sense that he would, because he relied on it in the deposition. He patterned it after the cover stories in the affidavit-- what he had to say--the lies he told about the relationship. It makes common sense to me.

    The CHIEF JUSTICE. Mr. McCollum, I think you have answered the question.

    Mr. Manager McCOLLUM. Thank you very much.

    My point is, you ought to bring the witnesses.

    The CHIEF JUSTICE. The question from Senator Bryan to the 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, focusing on the need for witnesses and the time likely required to prepare for and conduct discovery?

    Mr. Counsel KENDALL. Mr. Chief Justice, the first question to ask about the need to call witnesses is, What would the witnesses add? That has not been described. What you have heard are vague expressions of credibility and hope. You have not heard specifically what these witnesses would add. And the answer to that is, they would add nothing to what is not already there.

    Yesterday, I held up the five volumes of testimony, thousands and thousands of pages. You have it before you. Now, those five volumes represent 8 or 9 months of activity by the independent counsel. The independent counsel called many, many, many witnesses, many, many, many times. They proceeded with no limitation on their budget, on their resources. They turned things upside down. And they repeatedly--I think abusively--but they repeatedly called witnesses--like Ms. Currie, Mr. Jordan, Ms. Lewinsky--back to the grand jury for repeated interviews. It is all right there. And the managers have really told you nothing that could be added to this record.

    Second, they have not made a representation about what the witnesses would really say that is different. And the reason they have not is that they themselves don't know. They themselves have done no investigation. They don't know what these witnesses would say. They are hoping that maybe something will turn up.

    Now, what they have done, they have taken those five volumes, and more, from the independent counsel. And I am reminded of the old bureau that many newspapers had called "Rewrite.'' That was not a bureau which did independent reporting. When an editor read something that was incomprehensible, he or she would say, "Get me Rewrite.'' So what the House has done is gotten "Rewrite'' to write up its own report. They cannot tell you--they can tell you what they hope --they cannot make a representation or a proffer to you about what any witnesses would say.

    Now, their third, and really their only argument, is the credibility argument--got to see these witnesses. Well, in point of fact, in the real world, when you have witnesses, their stories often differ in some ways. They differ not because anybody is lying; they differ only because people don't always have precisely the same recollection of things. Now, that doesn't mean that looking at them will add anything other than getting for you the 6th, 7th, 8th, 9th, 10th account of what some witnesses said.

    For example, in our trial brief, we quote--and Mr. McCollum referred to this--at pages 66 to 67, 11 accounts that Ms. Lewinsky has given on the gift exchange. Now, I do not think you are going to learn anything from a 12th account. And by the way, with respect to the question of, well, she might have testified differently after she got immunity, 9 out of 11 of these accounts were given, as you will see from the dates and the testimony, after she got immunity. Calling witnesses will add nothing to the record now before you. All the major witnesses have testified, and their testimony is right there.

    Now, in response to the question of how long it will take, I must tell you, we have never had a chance to call witnesses ourselves, to examine them, to cross-examine them, to subpoena documentary evidence-- at no point in this process. It would be malpractice for any lawyer to try even a small civil case, let alone represent the President of the United States when the issue is his removal from office, without an adequate opportunity for discovery.

    And I think if they are going to begin calling witnesses, and going outside the record, which we have right now--I think the record is complete; and we are dealing with it as best we can without having had an ability ourselves to subpoena people and cross-examine them and depose them--but I think you are looking realistically at a process of many months to have a fair discovery process.

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

      The White House defense team makes a lot out of Monica Lewinsky's statement that she delivered the presents to Betty Currie around 2:00 or 2:30 and about the fact that the phone call came from Betty Currie at 3:32. Isn't it reasonable to assume that Ms. Currie meant that she delivered the presents to Ms. Currie in the afternoon?

    If the President was unconcerned about the presents, as he said in his grand jury testimony, why didn't he simply tell Ms. Lewinsky not to worry about it?

    Mr. Manager HUTCHINSON. Thank you, Mr. Chief Justice.

    Let me just broadly review the whole gift issue and the discrepancy in the testimony.

    First of all, I want to go back to Mr. Ruff's presentation during the last 3 days.

    He argued that I unfairly characterized Betty Currie as having a fuzzy memory whenever she was unclear. And she was clear that it was her memory that Monica Lewinsky called to initiate the retrieval of the gifts. And of course that is in conflict with the testimony of Monica Lewinsky.

    Further, they argue that Monica Lewinsky's time sequence as to when she went to pick up the gifts, when Betty Currie went to pick up the gifts, destroys her credibility. Her time sequence does not fit. Let's look at her testimony on this particular point. This is what Betty Currie has testified to, and this is exhibit H-A in your folder on my presentation; exhibit A. These are statements of Betty Currie in her deposition testimony about when she picked up the gifts.

    Now the first one is her testimony on January 27, 1998. She was asked when she picked up the gifts, and she said, "Sometime in the last 6 months;''

    Now, in May she was asked when she picked up the gifts, and she said, "A couple of weeks'' [after the December 28 meeting]; in the May 6 testimony, it was after the 28th meeting; and then in her last testimony, July 22, in the "fall maybe.''

    That is Betty Currie's testimony. Contrast that to that of Monica Lewinsky.

    This is her recollection as to when Betty Currie came to pick up the gifts. You will see that she has testified in her proffer of February 1, "Later that afternoon''; July 27, she said Currie called "several hours after leaving the White House;'' "about 2 o'clock''; "Later in the day''; and August 6, called "several hours'' after Lewinsky left the White House. Her memory is fairly good about this.

    The question is, the cell phone call, which really corroborates what Monica Lewinsky said, that it was Betty Currie who called to retrieve the gifts, and said the President said, "You have something for me,'' or something to that effect. That came about 3:30. The cell phone record was retrieved after Monica Lewinsky's testimony.

    Now, does this destroy her credibility, particularly in contrast to that of Betty Currie? I think it reflects that you are trying to remember--you remember that it was a call specifically from Betty Currie to retrieve the gifts. At the time, she said it was in the afternoon. I think it corroborates her because she has never had an opportunity to look at the cell phone record--neither has Betty Currie--to refresh her recollection and trigger it and see what that produces.

    Now, that is on the gift issue.

    I think they say, well, what would it add to call witnesses? How are you going to determine the truthfulness of this issue? Juries across the country do it by calling witnesses.

    Now in this particular case, it should be noted that all other testimony of Betty Currie--I think her last one was about July 27 before the grand jury--all of it preceded the testimony of William Jefferson Clinton which was in August before the grand jury. The point is, because of the rush, the push, the independent counsel didn't call anybody back to the grand jury to re-question them after the information received from William Jefferson Clinton.

    So there are a lot of unanswered questions, perhaps, that were generated by his testimony. The 1-minute call was raised: How in the world could this be expressed in 1 minute--the conversation that Betty Currie called to retrieve the gifts? If you look at Monica Lewinsky's description of that call--excuse me, let me read from her grand jury transcript. She was asked about the call, and her answer was,

      What I was reminded a little bit, jumping back to the July 14th incident where I was supposed to call back Betty the next day, but not getting into the details with her that this was along the same lines.

    Question to Monica Lewinsky:

      Did you feel any need to explain to her what was going to happen?

      Her answer:

      No.

    In other words, this was a cell phone call. It was a cryptic call. It was about retrieving gifts that were under subpoena. It was a short conversation. It doesn't take a minute to say, "The President indicated you had something for me''--Monica knows what she is talking about--"Come over,'' and that is the end of the conversation-- certainly would not take 1 minute.

       


    So all of the evidence is consistent with Monica's testimony.

    But let's look at the big picture on the gifts. The evidence was concealed under the bed. It was evidence that was concealed in a civil rights case; secondly, it was under subpoena; thirdly, the President knew it was under subpoena; and fourthly, Monica Lewinsky's testimony indicates that it was, the call from Betty Currie, at the direction of the President--and I am arguing there, a little; please understand that--which initiated the retrieval of the evidence that was under subpoena.

    That is the big picture on this. I believe we have made our case on that, and I believe it is strong, and I think it also justified the hearing of the testimony to resolve the remaining conflict.

    The CHIEF JUSTICE. This is to the President's counsel from Senators Leahy, Schumer, and Wyden:

      Notwithstanding the previous response by the House manager, does not the evidence show:

      (a) Ms. Lewinsky's testimony; it was her idea to give the gifts to Betty Currie?

      (b) the President's testimony; that he never told Betty Currie to retrieve the gifts from Ms. Lewinsky?

      (c) Betty Currie's testimony; that it was Ms. Lewinsky, not the President, who asked her to pick up the gifts? And,

      (d) the fact that the President gave Ms. Lewinsky additional gifts on the very morning that he is alleged to have asked for them back?

    Mr. Counsel RUFF. Mr. Chief Justice, I am not sure I managed to capture all four subpoints of that question but I will do my best.

    It is interesting that the managers now suggest that the great discovery of the 3:32 phone call that was so much the heart and soul of Mr. Schippers' presentation and ultimately of theirs is really just a slight glitch in the timetable.

    Yes, it is perfectly possible, I suppose, that Ms. Lewinsky could have just missed by an hour and a half, but she did say, three times, once under oath, and twice to the FBI, which is almost the same, that it was 2 o'clock, not 3:30.

    So if you are going to ask, consistency, good memory, as Ms. Lewinsky is supposed to have on this matter, she was consistent, but you have to ask, if it really happened at 2 o'clock as she recalled, what is the meaning of the 3:32 call?

    Putting aside that dispute, the question itself reflects the essence of our position on this. First of all, there are only two people present at the moment in which, theoretically, the managers would have that the President urged Betty Currie to go off and pick up the gifts. The President of the United States and Betty Currie, they both testified, flatly, that such a conversation did not occur. Do the managers really anticipate if Ms. Currie were brought into the well of the Senate and looked straight in the eye by one of the prosecutors on this team, she would say, "You got me, I had it wrong. The President really did tell me to do something but I have testified straightforwardly and honestly''?

    He didn't say, as my colleague Mr. Kendall indicated--that is wish and hope, and it has no basis in the allegation.

    And of course the managers have thought up a good excuse for why it is that the President is giving Ms. Lewinsky more gifts on the very day when he is conspiring with her to hide them: That somehow it is a gesture, a message being sent, that because of these gifts she is still--she is someone who is being roped into a conspiracy of silence.

    Aside from the fact that there is not one single, not one single, iota of evidence to support that wishful thinking, is it really likely, even given the managers' perception of this matter, that by giving Ms. Lewinsky the bear that my brief but important colleague Senator Bumpers referred to yesterday, and a pin of the New York skyline, and a couple of other things, including a Radio City Music Hall scarf--I may have missed some--that some great message was being sent to Ms. Lewinsky, that this collection of "valuable'' items was a message to keep the faith, stay inside a conspiracy? I don't think so.

    Thank you, Mr. Chief Justice.

    Mr. LOTT. Mr. Chief Justice, may I inquire about the time that has been used on each side?

    The CHIEF JUSTICE. I will ask the Parliamentarian.

    The counsel for the White House has consumed 57 minutes. The counsel for the managers have consumed 54 minutes.

    Mr. LOTT. I believe we have a question at the desk.

    The CHIEF JUSTICE. This question is directed to the House managers, proposed by Senators Snowe, Ashcroft, Enzi, Burns, Smith of New Hampshire, and Craig:

      At the end of the Jones deposition, Judge Wright admonished the parties that, "This case is subject to a protective order regarding all discovery, and all parties present, including the witness, are not to say anything whatsoever about the questions they were asked, the substance of the deposition . . . any details, and this is extremely important to this court.'' Within hours of Judge Wright's admonition to all parties not to discuss details of the deposition, didn't the President telephone Betty Currie to ask her to make a rare Sunday visit to the Oval Office?

    Before answering, the Chair wishes to make a correction in response to the inquiry from the majority leader. The time used by the House managers is 64 minutes, rather than 54 minutes.

    Mr. Manager ROGAN. I trust that doesn't mean I have to sit down, Mr. Chief Justice.

    The CHIEF JUSTICE. It is not retroactive.

    Mr. Manager ROGAN. Maybe I should quit while I am ahead.

    I thank the Senators for their question. That is absolutely true, and we know that because Betty Currie testified to that. She said it was very rare to receive a phone call from the President to ask her to come down to the White House on Sunday. A day after the President testified in a deposition, when he was specifically admonished by the judge that he was not to discuss the deposition, he was not to detail it with anybody, he was not to go into any of those factors, the President called Betty Currie down to the White House and he made some specific statements to her. He said to her:

      I was never really alone with Monica, right?

      You were always there when Monica was there, right?

      Monica came on to me and I never touched her, right?

      She wanted to have sex with me, and I cannot do that.

    When the President was asked 8 months later:

      Why did you call Betty Currie down to the White House and pose not questions, but statements to her?

    When he was asked why he called Betty Currie down to the White House and said that to her, this is how the President responded:

      I was trying to figure out what the facts were. I was trying to remember.

    That is patently false because in August when the President testified, embarrassment was no longer on the table. The President was admitting that he had, as he called it, an improper relationship with Ms. Lewinsky. So why did he call Betty Currie down there? He called her down there that day after the deposition, in violation of the judge's order, because throughout his deposition he kept referring to Betty Currie as the fountain of information. If you read the deposition testimony, you see the President reiterating over and over, "Monica came to see Betty,'' and, "You would have to ask Betty.'' He made innumerable references to Betty Currie.

    That was his invitation to the Jones lawyers to depose Betty Currie, and we know from Mr. Manager Hutchinson's presentation earlier that that is what happened. Betty Currie ended up with a subpoena from the Jones lawyers, and the President could not waste any time; he had to make sure, with discovery closing, that he got to Betty Currie right away, to make sure that the story was straight.

    How can one possibly say that he was posing the statements to Betty Currie to remember, when the President knew that in fact he was alone with Monica, that Betty wasn't always there with him when Monica was in the Oval Office with him? She would not be able to tell him that Monica came on to him and not the other way around. This is patently ludicrous. There is no reasonable explanation.

    Mr. Chief Justice, if I have a minute left, I would like to yield to Mr. Manager Hutchinson.

    The CHIEF JUSTICE. Yes.

    Mr. Manager HUTCHINSON. Thank you. Just a quick point on that, because there was a question raised that the testimony of Betty Currie in that circumstance was that she, I believe, did not feel pressured. The President's counsel makes a big issue of that, as if this is a fatal defect. It is not a fatal defect.

    In fact, it is really irrelevant because the issue is witness tampering, obstruction of justice. The question is the President's intent, not how Betty Currie felt under that circumstance. She can characterize what she wishes. To me, it is an example like, if you as a lawmaker are presented a bribe of $100,000 to cast your vote in a particular way, you might not be tempted in the slightest. You might say, "Go your own way.'' But it is still attempted bribery, attempted obstruction of justice. So that is a critical question. This is one element of obstruction of justice where each element has been met. The proof is clear, without any question of a doubt, as well as the rest of it.

    Thank you, Mr. Chief Justice.

    The CHIEF JUSTICE. This is a question to White House counsel from Senator Kennedy:

      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 start by actually responding briefly to the question that was asked, which is whether in fact the President violated the gag order. I think it is important that we be very direct and candid on this so the record is clear.

    There is no question that a gag order was issued, that it had been in existence for some 3 months, and it applied to the parties and lawyers. It is important, I think, to understand the purpose for which it was entered.

    During the months of litigation in the Jones case, we have seen a veritable flood of leakage out of the deposition, all of which was adverse to the President. The judge made very clear that her concerns were revelations to the press.

    I think it is fair to say that even if one might argue that the President talking to his secretary on the day after a deposition was somehow talking to a person that he should not after his deposition, I suggest that any person covered by--certainly a party covered by a gag order, particularly the President of the United States, is free to speak with those from whom he needs assistance in the preparation of his defense. That, of course, is at least in part what the President has said here.

    But let me be very clear that, to the extent President overstepped his bounds in terms of this gag order, that is a matter of concern that the judge could take up, or the parties could take up. And as far as I know--probably because their sense of shame would not permit it--the parties on the other side of the Jones case have never suggested that this was a problem. Indeed, it was not a problem until we heard about it recently in this Chamber.

    More specifically, with respect to the substance of Mr. Manager Rogan's response, and Manager Hutchinson's response, my colleague, Ms. Mills, told you what the essential human dynamic was that was going on with the President, who had just gone through a deposition in which his worst fears were being realized--his life, in terms of his relations with his family, was beginning to unravel. He could see it coming. He could see the press coming at him. They were already on the Internet. There was no question in his mind that his worst fears of public disclosure were about to be realized.

    Put yourselves in a comparably traumatic human situation and ask whether you wouldn't reach out to have this kind of conversation with the one person you knew who was the most familiar with the facts that Monica Lewinsky had, indeed, been in and out of the White House, exchanged gifts, and done all the other things that Betty knew about, even though she didn't know about the primary extent of their relationship. But ask yourself also whether, in fact, under any circumstances, either on the 18th of January when the first conversation occurred, or on the 20th of January when we believe the second conversation occurred, if there is really any reason to believe that the President had somehow invited Jones lawyers to make Betty Currie a witness, because, as my colleague, Ms. Mills, put it most sharply and most clearly, the last thing in the world the President of the United States wanted to do was to invite anybody to depose or have testify the one woman who knew that, indeed, there had been gifts exchanged, and visits, and letters. It simply doesn't make sense.

    Lastly, let me, I suppose, just ask as the question has been put to you on a couple of occasions, what is it that would come from calling witnesses in the case? Ms. Currie has testified not just once, but a multiple of occasions about the events, no new facts had come out, and the only thing that you would hear would be a repetition of the bottom- line assessment. I could have said wrong when he said right and I was under no pressure whatsoever.

    Thank you.

       


    The CHIEF JUSTICE. This is from Senators Gramm of Texas and Smith of New Hampshire to White House counsel:

      If you said that our oath to impartial justice required us to allow the President to have a handful of witnesses to defend himself, don't you believe that all 100 Senators would say "yes''? How can we do impartial justice by turning around and denying the House that same right?

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

    Senators, the answer to that question, I think, is really very straightforward and easy and the fog of some of the discussion which has been had on the subject over the last days and weeks ought not to get in the way of this.

    The House of Representatives, at least as they are described by the managers they sent to you--I don't know how to put this gently-- violated their constitutional responsibility in the handling of this matter. They characterized themselves as nothing more than a grand jury, nothing more than a screening device between the allegations transported to them by the independent counsel, and the ultimate vote a month and 3 days ago. They felt, as they have reiterated constantly during that process, that they knew everything they needed to know not to make the judgment; that it was, you know, worth sending on to the Senate for them to think about. But they knew everything they needed to know, as you heard them say so eloquently and so forcefully here, to remove the President of the United States from office. Now they are saying to you, "Well, maybe not. There really isn't enough here to make that important critical judgment.''

    So having abandoned--not to put it too sharply--what I view and I think most would view as their obligation to do the right constitutional thing a month ago, they turn to us and say, "Well, protect our managers rights to just add a little bit and see if we can make it, and then we will turn to you and see if you want to call witnesses in response.''

    Senators, I really think they should have done it right the first time. And they have told you--not back then, but they have told you now--that they have done it right, because otherwise they wouldn't, as a matter of their responsibility, be able to stand in the Well of this Senate and urge you to remove the President of the United States. How could they make that recommendation if they had any uncertainty? If they didn't believe what was in those five volumes was sufficient under the day, they couldn't. They couldn't.

    Our rights are these for the President of the United States: He is entitled to ask you whether when the House of Representatives voted to impeach him they had enough evidence to make one of the most serious constitutional judgments that is entrusted to them. And it can't be that because they didn't do it right then, that you and we are now asked to extend this process just so that maybe if they go to the right person and ask the right question, or find the right document something will emerge that translates those five volumes into something that really is a constitutional basis for the removal of the President.

    The CHIEF JUSTICE. This is from Senator Feingold to the House managers.

      In light of the allegations in the articles of impeachment that the President is guilty of providing "perjurious'' statements to a grand jury and has "obstructed . . . the administration of justice,'' is the appropriate burden of proof for these particular articles "beyond the reasonable doubt,'' as it would be in an ordinary criminal proceeding? Should a Senator vote to convict the President based on his allegedly committing these Federal statutory crimes if each of the elements of the crimes have not been proven beyond a reasonable doubt?

    Mr. Manager BUYER. Thank you, Mr. Chief Justice. And I would say to Mr. Ruff I violated no oath nor the Constitution, and I think the House managers, in fact, followed the Constitution when we served the articles of impeachment. And I also note, for historical note as well, Mr. Ruff, you know that in the impeachment trial of Andrew Johnson, the House didn't even hold a single hearing.

    So I just want to be very up front and fair here.

    With regard to the question that was asked by the gentleman, the Constitution does not discuss the standard of proof for impeachment trials. It simply states that the Senate shall have the power to try all impeachments. Because the Constitution is silent on the matter, it is appropriate to look at past practice of the Senate.

    Historically, the Senate has never set a standard of proof for impeachment trials. In the final analysis to the question, one which historically has been answered by individual Senators guided by your individual conscience. Now, you will note that earlier one of the White House counsel stood up--and they like to talk to you about criminal statutes and cite that it requires the proof beyond a reasonable doubt. That is not so. This argument has been rejected by the Senate historically.

    For instance, in the impeachment trial of Judge Harry Claiborne, at that time the counsel for Judge Claiborne moved to designate beyond a reasonable doubt as the standard of proof for conviction. The Senate overwhelmingly rejected the motion by a vote of 17 to 75. You rejected that as a standard of proof.

    In the floor debate on the motion, the House managers emphasized that the Senate has historically allowed each Member to exercise his personal judgment in these cases. And during the impeachment of Judge Hastings, Senator Rudman, in response to a question about the historical practice regarding this standard of proof that there has been no specific standard, "You are not going to find it. It is what is in the mind of every Senator, and I think it is what everybody decides for themselves.''

    The criminal standard of proof again is inappropriate for impeachment trials. The result of conviction in an impeachment trial is removal from office, not punishment. As the House argued in the trial of Judge Claiborne, the reasonable doubt standard was designed to protect criminal defendants who risked forfeitures of life, liberty, and property. This standard is inappropriate here because the Constitution limits the consequences of a Senate impeachment trial to removal from office and disqualification from holding office in the future, explicitly preserving in the Constitution the option for a subsequent trial in the courts.

    In addition, the House argued in the Claiborne trial the criminal standard is inappropriate because impeachment is, by its nature, a proceeding where the public interest weighs more heavily than the interest of the individual. Again, the criminal standard of proof, i.e., beyond a reasonable doubt, is inappropriate in an impeachment trial and, Senators, you are to be guided by your own conscience in your decision.

    The CHIEF JUSTICE. The President's counsel are asked by Senators Thompson, Snowe, Enzi, Frist, Craig, DeWine, and Hatch:

      Four days after the President's Paula Jones testimony, wherein he testified under oath about Ms. Lewinsky, why would Dick Morris conduct a poll on whether the American people would forgive the President for committing perjury and obstruction of justice?

    Mr. Counsel RUFF. I couldn't find any volunteers. (Laughter.)

    You know, I think the honest answer has two pieces to it. I don't have a clue, and it ultimately--although I know it rings all sorts of bells and the use of that name conjures up all sorts of images, and that is why I am sure it finds its way into this process from the managers' side. But if you look at the record, other than the value that may come to the managers of making reference to that conversation--and I have no idea whether the conversation ever occurred or not--it seems to me of absolutely no relevance whatsoever because, as far as I am able to represent to you, and if the conversation occurred, there is nothing in this record that suggests that it had any impact on the conduct of the President or any other person. We know that he did wrong. We know that he misled the American people when he said that he had not had relations with Ms. Lewinsky.

    I am not sure what a conversation with Mr. Morris, if it occurred, or a poll, if it was asked for, or what the motivation behind that poll means once you come to grips with the fact that the President of the United States was deceiving his family, his child, his wife, his colleagues, and the American people in that period in January.

    Beyond that puzzlement about relevance, other than the surmise that there must be some dark linkage between the poll and some legal issue before you--and I haven't seen it--I am really otherwise unable to answer your question.

    The CHIEF JUSTICE. Senator Lieberman asks the House managers:

      The House managers argue that the President should be removed from office because of the inconsistency between his actions and the President's duty to faithfully execute the laws. Given that any criminal act would arguably be at odds with the President's duty to execute the law, is it your position that the President may be impeached and removed for committing any criminal act, regardless of the type of crime it is? If the President were convicted of driving while intoxicated, would that be grounds for removal? What if he were convicted of assault?

    Mr. Manager GRAHAM. Thank you, Mr. Chief Justice. Excellent question.

    The answer is no, I would not want my President removed for any criminal wrongdoing. I would want my President removed only when there was a clear case that points to the right decision for the future of the country. Just remember this. Our past is America's future in terms of the law. I would not want my President removed for trivial offenses, and that is the heart of the matter here.

    I think I know why he took a poll. I think I know very well what he was up to: That his political and legal interests were so paramount in his mind, the law be damned and anybody who got in his way be damned.

    Those are strong statements, but I think they are borne out by the facts in this case, and that is what I would look for. I would look for a violation of the law that is the dark side of politics. I would look for something like Richard Nixon did. Richard Nixon lost faith with the American electoral process. He believed his enemies justified being cheated; that when his people broke into the other side's office, when confronted with that wrongdoing, he legitimized it. He didn't trust the American people to get it right, and he went out in shame.

    My belief is that this President did not trust the American legal system to vindicate his interest without cheating. My belief is that when he went back to his secretary, it is not reasonable that he was trying to refresh his memory and get his thoughts together. My belief is that he tried to set up a scenario that was going to make a young lady pay a price if she ever decided to cooperate with the other side. I believe he did not need to refresh his memory whether or not Monica Lewinsky wanted to have sex with him and he couldn't. I don't believe he was refreshing his memory when he asked his secretary: I never touched her, did I?

    I believe that you should only remove a President who, in a calculated fashion, puts the legal and political interests of himself over the good of the Nation in a selfish way, that you only should remove a President who, after being begged by everybody in the country, don't go into a grand jury and lie, and he in fact lied. Nothing trivial should remove my President. We need to try this case, ladies and gentlemen, because you need to know who your President is.

    Thank you.

    Mr. LOTT addressed the Chair.

    The CHIEF JUSTICE. The Chair recognizes the majority leader.

    Mr. LOTT. I would like to note that in the response to the previous question, question probably No. 28, that it was not filed by the managers; it was filed by a group of Senators.

      Recess

    Mr. LOTT. With that, I would ask unanimous consent that we take another brief recess of 15 minutes.

    There being no objection, at 4:18 p.m., the Senate recessed until 4:40 p.m.; whereupon, the Senate reassembled when called to order by the Chief Justice.

       


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