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THE IMPEACHMENT TRIAL
Jan. 23: Questions 68 to 84

  • More Transcripts From the Trial

  • From the Congressional Record
    Saturday, January 23, 1999

    The CHIEF JUSTICE. The majority leader is recognized.

    Mr. LOTT. Thank you, Mr. Chief Justice. We will go approximately another hour, if questions are still available – and I assume they will be – and then we will break for about an hour for lunch.

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

      If a Senator believes that the President may have lied to the American people, his family and his aides, and that some of his answers before the grand jury were misleading or half- truths, but that he could not be convicted in a court of law for either perjury or obstruction of justice, is it the opinion of the House managers that his actions still justify removing the President from office?

    Mr. Manager BARR. Thank you, Mr. Chief Justice. I have taken two public oaths in my career in the service of the people of this great land. One was as a Member of Congress; the other was as a U.S. attorney. As a U.S. attorney, it was my job on behalf of the people of the United States to prosecute cases against individuals and other entities that violated the Criminal Code of the United States of America. That Criminal Code, as you are well aware, includes the offenses of perjury and obstruction of justice.

    That Criminal Code does not include the offenses of lying to one's family. That is not what brings us here today. What brings us here today is the belief by the House of Representatives in lawful public vote that this President violated, in numerous respects, his oath of office and the Criminal Code of the United States of America – in particular, that he committed perjury and obstruction of justice.

    I can tell you, as a U.S. attorney serving under two Presidents, that I would prosecute these cases, because I did prosecute such cases. I prosecuted cases against people, including members of the body from which we as managers come, who appeared before grand juries and lied, who appeared before grand juries and misled grand juries, people who obstructed justice, people who tampered with witnesses in precisely the same way that this President has committed perjury, tampered with witnesses and obstructed justice.

    We respectfully submit to the Senators of the United States of America assembled here today that these are prosecutable cases, that they are cases that have been prosecuted, and that the question before this body, we respectfully submit, in the House of Representatives' articles of impeachment, is not that the President lied to his family. What is before this body, we respectfully submit, as contained in the two articles of impeachment passed by the House of Representatives, is that this President violated his oath of office and committed the offenses of perjury and obstruction of justice, which we firmly believe on behalf of the people of the United States of America provide a sufficient basis on which this body, exercising its deliberative power and its legitimate jurisdiction, may find that this President, as people in courts of law similarly but not identically situated, are indeed found guilty and removed from positions of trust, as this President ought to be for committing the perjury and obstruction of justice – not lying to his family.

    Thank you.

       


    The CHIEF JUSTICE. This is a question from Senators Snowe, Mack, Chafee, Burns, and Craig to the House managers:

      Before Ms. Lewinsky was subpoenaed in the Jones case, the President refused on five separate occasions – November 3, November 10, November 12, November 17, and December 6 – to produce information about gifts from Lewinsky. The President's counsel argued the President was unconcerned about these gifts. If that is the case, why didn't he produce these gifts in November and December?

    Mr. Manager ROGAN. Mr. Chief Justice, I thank the Senators for the question. This case needs to be looked at for the mosaic that it is.

    There is a reason why the President never produced gifts. There is a reason why the President continued to give Ms. Lewinsky gifts. It is because he believed that she would never produce them. We know that from her testimony.

    In my presentation to the Senate a week ago, I quoted from the transcript where she said, "Nobody ever asked me to lie.'' But then she also said there was never any doubt but that "we" would deny the relationship if asked.

    We see that throughout the entire proceeding. We see that before Monica Lewinsky's name appeared on the list – on December 5 – on the witness list. And we especially see it after. In fact, Monica Lewinsky went to the President and said, "I've been subpoenaed. They are asking for gifts. What should I do? Maybe I should give them to Betty.'' And the President said, "Let me think about that.'' And we all know by now that within a few hours Betty Currie called Monica Lewinsky and came and retrieved the gifts, not to give them to the Jones lawyers pursuant to the subpoena, not to cooperate with the sexual harassment lawsuit; she took the gifts and she put them under her bed.

    Members of this body, it begs common sense for any interpretation of that conduct to be somehow cooperative with the legal proceedings in the sexual harassment case. Every piece of this puzzle, when put together, demonstrates a very clear pattern of obstructing justice, not to cover up personal affairs, not to cover up an indiscretion, but to destroy Paula Jones' rights under the sexual harassment laws of this country to have her day in court. That is the ultimate question that this body is going to have to address.

    Yes, reasonable minds can differ on this case as to whether the President should be removed office. But reasonable minds can only differ if those reasonable minds come to the conclusion that enforcement of the sexual harassment laws in this country are less important than the preservation of this man in the office of the Presidency. And that is the ultimate question that this body is going to have to answer. What is more important – the survival of Bill Clinton's Presidency in the face of perjury and obstruction of justice, or the protection of the sexual harassment laws in this country?

    And imagine, every victim in the workplace will be waiting for your answer.

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

      Will you agree to arrange to have prepared a verbatim, unedited transcript of any debriefing which may occur with Ms. Lewinsky for immediate distribution to the Senate? And will you agree also to provide for the inclusion of any such debriefing of representatives of the Senate, one selected by the majority and one by the minority?

    Mr. Manager McCOLLUM. Mr. Chief Justice and Members of the Senate, it is not our intent to be doing a deposition, a formal presentation, a preparation for the Senate, if we talk to Ms. Lewinsky. It is our intent to do what any good attorney would do in preparing to go to trial, presuming – we don't know that you are going to allow us to have witnesses – but presuming we are going to be able to depose and have witnesses, and that is to meet with the witness, talk with the witness, and prepare the witness. And any good attorney who does that is going to meet his or her witness in their own confidences, in their own quiet respite. We discover things that way. We are not prepared. No. The answer to your question is no, we are not prepared to say we are going to give you our work product, which is what that would be.

    "Work product'' is a technical term of law which, for anybody who is out in the public, is what lawyers do all the time. And they work on their case, and they prepare what they are going to do, and then they present it. That is the system we have.

    Somebody said – I think it was Mr. Hutchinson who said earlier – this is an adversarial position. The White House counsel will have their chance to talk to witnesses that they are going to present; we will have our chance to talk to ours. Then there is the opportunity for the depositions, which is what comes next, which is the formal proceedings when we both have a chance to talk with them. Then, of course, if you let us call them as witnesses here, they will be here, and they will get cross-examined, and examined, and all the questions you can imagine will be asked. That is the traditional American system of justice.

    So, no, we would not give you our work product notes. We have no idea what would be in them. We don't think that is appropriate. We think that a lot is being made out of this. We attempted to do this a couple of weeks ago. We would have liked to have talked to her earlier. It has not worked, that we have been permitted to, for reasons that we are not sure. But the reality is, this is the normal process. We would talk to any other witness despite however the White House counsel wants to argue about it. They do the same thing.

    I yield what time I have left to Mr. Graham.

    Mr. Manager GRAHAM. I would like to echo the work product analogy.

    But let me just say this as directly as I know how to say it – that if this body as a whole believes we are going to do anything improper, then whatever rule you need to fashion to make sure we don't, you do it, because nobody should ever doubt whether a witness comes into this body in this case with anything other than testimony that was truthful. If you want to go down the road of the atmosphere that people were approached and how they were treated about being witnesses, let's go down that road together. Let's bring in people in this body and let's see how they were approached when they were asked to participate in this trial, what the atmosphere and the mood was, when it comes to their time to be identified as witnesses.

    So I would just say as strongly as I know how that if you have any doubt about us and what we are up to, you fashion rules so we do not create an unfairness in this body; but please, when we ask for witnesses and we raise doubt about how people may have been treated, that you give us the same opportunity to explore the moods and atmosphere of those witnesses.

    The CHIEF JUSTICE. This question is to the House managers from Senators Murkowski, Gregg, Grams, Thomas, Crapo, Thompson and Hatch:

      The President's counsel rely upon the President's statements in many instances. Therefore, the President's credibility is at issue. Is the President's credibility affected by the fact that, until the DNA evidence surfaced, the President denied any improper relationship with Ms. Lewinsky?

    Mr. Manager ROGAN. Mr. Chief Justice, I thank the Senators.

    First, I don't think it was a compliment to me from my colleagues that as soon as the issue of DNA came up, they all pointed to me and told me to come up and answer the question. I will do my best.

    Obviously, as the triers of fact, Members of this body individually will have to make determinations respecting credibility of the President as well as the other witnesses. It is indisputable, however, that from January 1998, when he spoke at the deposition, until August 17, when he made a quasi-admission before the grand jury, there were intervening factors that required him to change his position.

    We saw from the moment the story first broke in the press about Monica Lewinsky the President making denials in the most emphatic of ways, and not only doing it repeatedly himself but sending out his Cabinet and his aides and his friends to do it on his behalf. That continued up until the eve of the deposition. Was it because the President suddenly had a change of heart? Was it because his conscience was suddenly bearing down upon him? Or were there other reasons? Well, let's see.

    Just before his deposition testimony, Monica Lewinsky decided to cooperate with the Office of Independent Counsel. Monica Lewinsky suddenly turned over a blue dress. And that is fascinating because, as you know from the record and you have heard from the presentations, the President was prepared to take Monica Lewinsky and trash her in a very public way until the dress was turned over to the FBI. Remember what he said to Sidney Blumenthal. He called her a stalker. He said that she was threatening him. But he no longer could make these presentations publicly or privately once he knew there was potential physical evidence.

    So I think there are a number of factors Members of this body can look at with respect to credibility just from the cold record. But if that is not enough, if Members of this body are not satisfied that they are able to resolve these issues of credibility, then the way to handle this is to follow the dictates of the Constitution and our Framers who understood the value of trial and bringing witnesses forward, placing them under oath and giving the triers of fact the opportunity to see the witnesses, to hear their testimony, to gauge their credibility.

    That is what the purpose of a trial is for. And the House managers entrust this body to make sure that at the end of the day this is more than a proceeding; this is an arena where the truth will be determined not just for our time but for history.

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

      Could you reply to the comments of Manager Rogan?

    Mr. Counsel RUFF. The existence of DNA or any other evidence or any other events before the President's grand jury testimony had no bearing whatsoever on his determination which he carried out on that day in the middle of August to answer the grand jurors' questions truthfully. He did so. It may be that the managers can speculate about, well, there must have been some reason why in the middle of August, after some months of denying to the Nation and his family any misconduct, he changed his mind and told the truth. But there was one reason why he did that. Because he went before the grand jury for the United States District Court of the District of Columbia and told the truth.

    Now, it has been suggested by many of the managers over the last day that the President was somehow anxious to – or contemplated the prospect of, as they put it, trashing Ms. Lewinsky. This issue was raised yesterday and has been raised again by Mr. Manager Rogan. I think it is time to set that record straight.

       


    Mr. Manager Bryant yesterday, as he was discussing the Dick Morris issue, purported to recite from the independent counsel's referral and purported to describe a conversation between the President and Mr. Morris in which, to quote from Mr. Manager Bryant, "According to Morris, the President warned him'' – that is, Mr. Morris, he warned the President – excuse me. Let me start before that.

      Later the next day, the President has a followup conversation with Mr. Morris, in the evening, and says that he –

    That is, the President –

      is considering holding a press conference to blast Monica Lewinsky out of the water. But Mr. Morris urges caution. He says, "Be careful.''

    And that he warned the President not to be too hard on her.

    Well, 180 degrees off from that description, let me read you what, in fact, the independent counsel's office referral says, and I am sure it was just a slip of the read that you heard yesterday.

      The President had a followup conversation with Mr. Morris during the evening of January 22nd, 1998 –

    This is page 127 of the independent counsel's referral –

      when Mr. Morris was considering holding a press conference to "blast Monica Lewinsky 'out of the water.''' The President told Mr. Morris to "be careful.'' According to Mr. Morris, the President warned him not to "be too hard on [Ms. Lewinsky]''. . .

    Close. Close. One hundred eighty degrees off. Beyond that, let me be very clear about one proposition which has been a subtheme running through some of the comments of the managers over the last many days. The White House, the President, the President's agents, the President's spokespersons, no one has ever trashed threatened, maligned or done anything else to Monica Lewinsky – no one.

    The CHIEF JUSTICE. This is a question from Senators Hutchison of Texas, Snowe, Allard, Collins and Hatch to the House managers:

      The counsel for the President have said that the heart of this case is private consensual sex. A tenet of sexual harassment law, however, is that the implied power relationship between a supervisor (in this case, the President), and a subordinate (in this case an intern), is enough to constitute sexual harassment.

      This is well settled in military law and is developing along this line in the civilian sector. In your view, how might acquittal of this case affect laws regarding sexual harassment?

    Mr. Manager ROGAN. Mr. Chief Justice, the law of sexual harassment is a relatively new genre. If somebody wanted to make a case before the Congress had stepped in and improved upon the law, it essentially reduced women in the workplace, for instance, who had been harassed into what has been referred to as a "he said-she said'' type of argument, and so the law has improved upon that type of argument because the law recognizes today that sometimes there can be evidence of a pattern of conduct, and that conduct is relevant to prove how somebody may have behaved.

    Consider what would happen if victims of the workplace get a message from the Congress of the United States that what the President did with Paula Jones, or allegedly did with Paula Jones, is of no constitutional significance here. It would send a message to every woman in the workplace that if they have a complaint against an employer who is attempting to use a position of power and authority to pursue improper advancement, the message would be that you might as well just keep quiet about it because the person can lie in court and suffer no recrimination. First, they will probably never be discovered, because most of the time DNA evidence doesn't suddenly appear, but even if DNA evidence does appear to corroborate the victim, the message is that as long as he is appropriately apologetic and the lie was, after all, only about sex, it is of no import with respect to removing them from their job or having them suffer any legal consequences. I think that would be a horrible message.

    The reason the law allows this pattern-of-conduct evidence is because sexual harassers operate in a unique way. They get their victims alone. They typically don't commit these crimes under the glare of klieg lights or in front of television cameras or where witnesses can testify. They get their victims alone for one reason – because they know through intimidation and fear one of two things will happen. Through intimidation or fear, the victim will submit; or through intimidation or fear, the victim will not submit but will keep their mouth shut about it.

    What is the message to these victims who do brave losing their job, being destroyed publicly, having their reputations destroyed? What is the message to them if, when they come forward and they want to pursue their case, we take the legal view that somebody can perjure themselves, somebody can lie, somebody can obstruct justice, somebody in the greatest position of power in our country can take whatever steps are necessary to destroy that woman's claim in a court of law where she is entitled to pursue it if at the end of all of this we say: Well, you know, he was embarrassed, he did lie but it was only about sex? Lies in sexual harassment cases, Members of the Senate, are always only about sex.

    The question before this body is, what type of validity are we going to give these laws and what sort of message are we going to send to victims in the workplace? I pray that we can put personal relationships aside with respect to how people individually feel about this President personally and how they feel about his administration and focus on what is the ultimate conclusion legally and what is the precedent that would be set if we turned a blind eye to this sort of conduct.

    The CHIEF JUSTICE. This is a question from Senators Boxer, Feinstein, Landrieu, Mikulski and Murray to counsel for the President.

      Has Ms. Lewinsky ever claimed the relationship was other than consensual and was not Ms. Jones' case dismissed as having no claim recognized by law?

    Mr. Counsel RUFF. No. And yes. Indeed, as Mr. Manager Rogan has told you, and others before him on the managers' side, our sexual harassment laws and our civil rights laws are of critical importance to all of us. My colleague, Ms. Mills, spoke eloquently on that subject a couple of days ago.

    But it is important to understand, I believe, with no sense at all that we are in any way diminishing the importance of those laws and of the rights of every American citizen to seek justice under those laws, that we are talking about a case in which the trial judge determined that on all the evidence that had been gathered and all the claims that plaintiff had made and all the discovery that had been taken, there was no case. That is justice. That is the way the system works. The plaintiff brings the claim, the process moves ahead, and a judge ultimately makes the decision. And this didn't have anything to do with what President Clinton said in his deposition on January 17. What the judge ruled was, first, that that evidence was irrelevant to her consideration; and then ultimately, in April of last year, that there simply was no case.

    We accept the results of the justice system whether they go against us or whether they go for us. In either event, it is justice.

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

      Is there any reason to believe that there is any relationship between the President telling Mr. Blumenthal that Ms. Lewinsky was a stalker and expressing his frustration about not being able to get his story out with the fact that shortly thereafter negative stories about Ms. Lewinsky, including the allegation that she was a stalker, began to appear in news articles quoting sources at the White House?

    Mr. Manager HUTCHINSON. Well, I appreciate that question. And thank you, Mr. Chief Justice. Because I made a note of Mr. Ruff's statement that no one – and I believe he specified the President, his aides, or no one has ever trashed or spoken ill – used some other words – of Monica Lewinsky. It really caught me as striking, in light of the sworn grand jury testimony of Sidney Blumenthal. And, of course, he is testifying as to what the President told him. And, of course, in that conversation the President told Sidney Blumenthal, as described by Mr. Blumenthal, that: Monica Lewinsky came at me and made a sexual demand on me. I rebuffed her. The President said: I have gone down that road before, I have caused pain for a lot of people. I am not going to do that again. She, referring to Monica Lewinsky, threatened the President. This is the President's statement. It goes on and describes it; she was known as a stalker.

    In my understanding that is trashing, that is speaking ill, that is being very critical and doing everything you can to basically destroy her reputation.

    Now, why was he telling Sidney Blumenthal that? Was he trying to use Sidney Blumenthal to get the message out to the public and to the grand jury, who might hear this, that she is not a believable person? That the whole idea is that she came on to him, that threatened the President of the United States? I think – I don't understand Mr. Ruff's representation to the Senators that no one, including the President or aides, has ever trashed Monica Lewinsky.

    Now, I think it is important also, at that particular point in time, the President knew that Sidney Blumenthal and John Podesta would be a witness before the grand jury. That was his testimony. That is what the President of the United States admitted to. He said he knew that they were going to be witnesses. And, clearly, that constitutes obstruction of justice; when he knows that they are going to be a witness, he gives them false information knowing they are going to repeat it to the grand jury, and that is an element of one of the pillars of obstruction.

    I want to come back to some things that have been said about the Jones case. First of all, it has been characterized as a "no win'' case – that Judge Susan Webber Wright issued that order.

    Well, if the truth had been known, what we know now about the relationship, about the pattern of conduct, would that have made a difference? And, of course, when those facts came out it was right before a decision by the Eighth Circuit Court of Appeals that might have reversed Judge Wright's order that the President of the United States made a decision he could settle this case for eight hundred and something thousand dollars.

    What would have happened? Maybe Paula Jones would not have had to have gone through that many years of litigation if the truth had just come out.

    But there was a pattern of obstruction of justice, of lying, of coaching witnesses, of tampering with witnesses, which ultimately led to a defeat of that case and the truth not coming out. But when it came out, it made a difference; it made a difference for that plaintiff in that civil rights case.

    Senator Hutchison asked a question about whether the power of the position makes the difference in sexual harassment cases. Let me assure you, if there is any chief executive officer of any company, whether it was consensual or not, with an intern or a young person half of the officer's age and whether it was – whatever they termed it at that point, whether it was a subordinate employee – and that is the key language, "subordinate employee,'' then, yes, Senator, it does make a difference, and that is the crux of many cases that are brought into court to protect women against sexual harassment in the workplace. I think it is a linchpin of this act that this Congress passed. So I think that when you look at the overall picture, there is that pattern of obstruction of justice.

       


    Senator Biden asked a question, Would any prosecutor bring this case forward? Let me tell you, it would be easier – and I say this with great deference to the Senate – but it would be easier to win a conviction beyond any reasonable doubt, and I could win a conviction beyond a reasonable doubt in a court in this country on obstruction of justice because I know that common sense permeates a jury panel whenever they hear this case and the perjury – they are not going to buy, they are not going to accept what "is'' is. They understand what these words mean, and common sense will apply. And I know that common sense exists in the Senate of the United States.

    But let me assure you that this is a case that I would bring forth without any hesitation, and I believe the proof would demonstrate a conviction beyond a reasonable doubt.

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

      Could you reply to Mr. Hutchinson's allegations?

    Mr. Counsel RUFF. I think it important because the question put to the House managers, Mr. Chief Justice, was whether there was some effort or some relationship between Ms. Lewinsky and a series of articles or stories that supposedly appeared in the early days following the revelation of this investigation. I think it is important to recognize what the real facts are here.

    This was the point made at the very end of my testimony before the House Judiciary Committee on December 9. One of the members of that committee spoke at great length and quite heatedly about what he believed to have been a plan to disseminate unfavorable information in the press, and he submitted for the record a number of newspaper articles.

    The articles that he submitted, which were largely spun off of one Associated Press story, did not contain two – at least two – statements that made it very clear that the accusation that there was some effort on the part of the White House to disseminate disparaging information were simply false.

    In an Associated Press story of January 31, which was used by a member of the House Judiciary Committee as one of his examples of how the White House was supposedly coordinating such an attack, there was omitted the following portion. This is a statement by Ann Lewis, who is the White House communications director:

      To anyone who was saying such things about Ms. Lewinsky, either it reflected a lack of coordination or thought or adult judgment. We are not going down that road. It is not the issue. A discussion of other people is not appropriate.

    That is on January 31. Retrospectively, when Ms. Lewinsky had already begun to cooperate with the independent counsel, the Los Angeles Times wrote the following:

      From the beginning, the White House has been careful about what it has said of Ms. Lewinsky. The week the Lewinsky story broke in January, Clinton's press secretary, Mike McCurry, signaled the tone the White House would take by deflecting questions about whether the 24-year-old intern was less than stable.

    Mr. McCurry:

      "I can't imagine anyone in a responsible position at the White House would be making such an assertion. I've heard some expressions of sympathy for what clearly someone who is a young person would be going through at a moment like this.'' And McCurry quickly signaled that the marching orders had not changed once Lewinsky made a deal with the independent counsel, Kenneth Starr, for immunity from prosecution.

    I think it is important that the record be clear that the stories about which the managers were asked in their last question simply never reflected any plan, coordinated or uncoordinated, to do anything other than treat Ms. Lewinsky with respect.

    The CHIEF JUSTICE. This question doesn't show which Senators are submitting it.

    Mr. LOTT. Senator Hatch.

    The CHIEF JUSTICE. This is a question from Senator Hatch:

      Isn't it true that Chief Federal District Judge Johnson ruled today – in an order that she authorized to be released to the public – that Ms. Lewinsky's immunity agreement, which requires her "to make herself available for any interviews upon reasonable requests,'' compels her to submit to an interview with the House? What light does this shed on the earlier debate on this matter?

    I am sorry, it is addressed to the House managers.

    Mr. Manager BRYANT. Mr. Chief Justice, I think certainly having come from an experience of practicing law and learned so much over the years and trying cases and putting together cases in an ethical and appropriate fashion, to come into a political proceeding, and as we have dealt with this, and I think as the lawyers to my left had to deal with the same type of situation, in a political realm, not just in the Senate, but months and weeks before we came in to here, is very difficult.

    What we have seen this morning is a completely innocent standard practice of sitting down with a potential witness before you have to list your witnesses Monday and deciding whether or not you want to use her.

    They have talked about lawyers committing malpractice by not taking depositions. I submit it would be close to that if you don't talk to a witness before you call that witness. Certainly, while the OIC has had communication with her over some time, we have not. We have not had contact with any of these witnesses.

    I alluded earlier to the White House and the other witnesses that work for the White House that we might be looking at calling. I must presume by this conversation in this area of questioning that they have not had any contact about this case with Ms. Currie and Mr. Podesta and Mr. Blumenthal, and that even a friend of the White House, Mr. Vernon Jordan. We are not asking we be privy to every time they say hello in the hallway to these people or may sit down and talk with them. We understand the realities of life. We simply just wanted that crazy idea that maybe we ought to talk to a witness before we decide whether or not we want to list that witness.

    I think to answer that question – and I will sit down – Judge Johnson clearly vindicated this right to do that, to accomplish that through the immunity agreement. I apologize if we have offended the Senators. We certainly didn't intend to do that. We certainly didn't intend to break any rules about this, and we don't think we did.

    Certainly, if we are going to go down that road, and if you see it is appropriate that we have a rule you can agree on, we would be happy to abide by that, but we would simply like equal treatment with the other witnesses, also with the White House and their attorneys. Thank you.

    The CHIEF JUSTICE. This question is to the House managers from Senators Collins and Feingold:

      On the basis of the President's and Betty Currie's testimony concerning their conversation on Sunday, January 18, 1998, have each of the elements of obstruction of justice under 18 U.S.C., section 1503, or witness tampering under 18 U.S.C., section 1512, been met? We are particularly interested in your analysis of whether the Senate can infer that President Clinton intended to corruptly influence or persuade Ms. Currie to testify falsely and the weight to be given Ms. Currie's testimony in that regard.

    Mr. Manager HUTCHINSON. The answer is that, under 18 U.S.C. section 1503, there is a case for witness tampering in the conversation between President Clinton and Betty Currie.

    I want to refer you to a case, United States v. Shannon, which is an Eighth Circuit Court of Appeals case decided October 12, 1987. And for you lawyers here, it has been Shepardized. It is good law, and it really puts this into perspective.

    In the case, the defendant contended that the evidence did not support a conviction under 18 U.S.C. section 1503 because the Government did not prove that the witness in this case, Gray, was ever a witness before the grand jury or that the defendant knew that that person was going to be a witness before the grand jury. And this is what the court said:

      This argument is . . . without merit. A conviction under section 1503 for attempting to influence a witness is appropriate so long as there is a possibility that the target of the defendant's activities will be called upon to testify in an official proceeding.

    Now, this gentleman, this defendant, Mr. Shannon, went to jail. He made the defense that, "Well, I didn't – you know, that person was never called as a witness, it was never an official proceeding,'' and it didn't fly. He was convicted. It was affirmed by the Court of the land and, presumably, he went to jail. Now, that is the law of the land in the criminal courts of our country. And so there would be a conviction under 18 U.S.C. section 1503.

    In this case you have much more because, as I pointed out yesterday in reference to Betty Currie, Betty Currie was clearly a witness. They left that deposition knowing she would be a witness. The Jones attorneys went back and immediately worked on issuing a subpoena for her because they had to have her because the President asserted her name continually through that. The President knew she was going to be a witness. He came back and engaged in one conversation where he coached her testimony. He tampered with her testimony. It wasn't enough, so 2 days later he brought her back in again and did the exact same thing. The legal question is, As a prospective witness, is she covered under the obstruction of justice statute? The answer is, yes, because other people go to jail for exactly the same thing.

    But I think we need to take a step back a moment. This U.S. Senate is not bound by the strictures of the U.S. Criminal Code. If I came in here today and said, "Well, under the criminal procedures of the land, I'm entitled to bring witnesses and I'm entitled to cross-examine, and I'm entitled to do this, and we need to follow the criminal procedure code,'' you would say, "No. This is the Senate of the United States.'' And you would rightfully say that. You set your own rules in this.

    And the same thing is true with the criminal law of the land. I think that we make a criminal case for obstruction of justice that can be prosecuted, as other people are in every courtroom in this land. But that is not the burden here. The issue is, Is this an impeachable offense? And something that is much higher is at stake, and that is the public trust, the integrity of our Government, much more than in United States v. Shannon. And that is what you are dealing with.

    So we can debate the criminal code all day – and we win all that – but we have to talk about the public trust, the integrity of our system. And that is what our country needs you to win for them.

    The CHIEF JUSTICE. This question is from Senators Thurmond and Bunning to the counsel for the President:

      If there was no case and the White House accepted the results of the justice system, why then did the President pay nearly $1 million to Paula Jones?

    Mr. Counsel RUFF. I say this with all due respect, truly. As I think everyone knows in this Chamber, and outside this Chamber, who has practiced law, litigated difficult cases, the judgment of a defendant to settle a case, to pay whatever sum may be required to settle it, is, in all candor, I think, for all of us, not reflective of any belief that he was wrong, that the other side was right. It reflects in this case, very candidly, a judgment by the President, which he has stated publicly, that in the midst of the many matters that he is responsible for, including, I must say, this matter, as well as all those matters of state on which he spends his time and to which he devotes his energy, he could no longer spend any of that time and any of that energy on the Jones case.

    I am so hesitant to say this, but I really believe – please take it in the spirit it is meant – that to ask whether the settlement of this case reflects substantively on the merits of Ms. Jones' claim is not fair. The merits of Ms. Jones' claim were decided by Judge Wright. She concluded that there were none. And I really do believe that to ask whether the President's decision to settle is somehow a reflection on the merits, contrary to those reached by Judge Wright, is simply not the case.

    The CHIEF JUSTICE. This is a question to the White House counsel from Senators Johnson and Leahy:

      A few minutes ago, Manager Hutchinson stated that he would be more confident of obtaining a conviction for obstruction of justice in a court than he is in the Senate. Can that statement be reconciled with the following exchange that occurred on the Sunday program "This Week'' on January 17, 1999, in which Manager Hutchinson was asked, "On the case that you have against the President on obstruction of justice, not the perjury, would you be confident of a conviction in a criminal court,'' and Manager Hutchinson said, "No, I would not''?

    Mr. Manager HUTCHINSON. Mr. Chief Justice – –

    The CHIEF JUSTICE. It's addressed to the President's – is it the President's counsel? It is addressed to the President's counsel.

    Mr. Manager HUTCHINSON. I believe under your ruling yesterday I can't object to questions.

    The CHIEF JUSTICE. That is correct.

    Mr. Manager HUTCHINSON. I would – –

    Mr. LEVIN. Objection.

    Mr. REID. Objection.

    Mr. LEVIN. I object to this, if he is unable to object, to make an objection in any other form.

    The CHIEF JUSTICE. The Parliamentarian advises me that the manager may make an objection to the question being answered.

    Mr. REID. Nothing being answered.

    The CHIEF JUSTICE. I have second thoughts, frankly. That ruling is based on a very Delphic, almost incomprehensible statement that Salmon Chase made during the trial of Andrew Johnson. And I think the correct response is that the managers do not have a right to object to a question by the Senator. So I rule the objection out of order.

       


    Mrs. BOXER. Regular order.

    Ms. Counsel MILLS. I just wanted to address, for a second, Manager Hutchinson's comments with regard to 1503. And he cited a 1987 case. In 1995, I think, as we talked a little bit about, and the House managers had discussed, Aguilar came down. And in that case the issue was, Was there sufficient nexus between the actual conduct of the person involved and the proceeding? And in particular, I am just going to read to you for 1 minute from the case law.

      The Government argues that respondent "understood that his false statements would be provided to the grand jury'' and that he made [these] statements . . . to thwart the grand jury investigation and not just the FBI investigation. . . . The Government supports its argument with . . . the transcript . . .

    They go through the discussion that was between the judge and the agent in which the judge specifically asked whether or not he was a target for the grand jury investigation, and the agent responded:

      There is a grand jury meeting. Convening I guess that's the correct word. . . . [E]vidence will be heard . . . I'm sure on this issue.

    So, in other words, the person making the statement knew at that point that there was potentially the possibility that his testimony would be presented to the grand jury, and the court ruled, as I talked to you a little bit about during my presentation before, that that was an insufficient nexus for there to prove a violation of 1503.

    The CHIEF JUSTICE. This question is from Senators Helms and Stevens to the House managers.

      Do you have any comment upon the answer just given by the President's counsel?

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

    First, I want to thank Ms. Mills for the courtesy she extended to me just a moment ago. And in our exchange, and Mr. Chief Justice, what I started to state my objection was, was really not to the question at that point, but I was just going to make the reference to the anticipated answer that the statement on "This Week with Sam and Cokie'' was not exactly a part of this record. We are to be debating the facts of this case, and Ms. Mills was kind enough not to go into that. I think she was going to make the point that the answer I made was in reference to the need to call witnesses; that how confident can you be in any case without calling a witness so the jury can hear it?

    Let me go back to what Ms. Mills said. She did cite the United States v. Aguilar, and I wish the Chief Justice – since he wrote the opinion – could give us a lecture on that particular decision. I feel maybe we should not be talking about this. But I read that opinion as totally consistent with the United States v. Shannon and that the law is clear, that if this body were to apply 18 U.S.C., section 1503, that a conviction would obtain, but again this is a body gathered for the purpose of consideration of an impeachable offense.

    I also yield to Mr. Graham on that point.

    Mr. Manager GRAHAM. This is Saturday at 12:30 and a lot of people are probably watching with interest what is going on. Let's talk about the law just for a moment in a way that we all can understand when this thing is over with.

    It is a long time since I have been in law school, but I liked the exchange between the professor and the students because you kind of understood what the law was about at the end of the day. Witness tampering is designed – the statute is designed to do what? As Senator Bumpers and I would say in Arkansas and South Carolina, "messin' with people.'' We can elevate that a little bit and say that the witness tampering statutes that we are talking about here are designed to make sure we get to the truth. Section 1512 is in the conjunctive, part (B): "Whoever knowingly uses intimidation or physical force.''

    That is one thing you don't want to happen here. You never want anybody to go up to a potential witness and threaten through force or intimidation to tell something that is not true. So that is out of bounds. That is illegal.

    Or "corruptly persuades'' – now, what does that mean? There are some cases that talk about what that means. That means if the person has an intent, an evil intent or an improper purpose to persuade somebody without force or intimidation, that that is a crime.

    Or listen to this: "Engages in misleading conduct toward another person with the intent to influence or prevent the testimony of any person in an official proceeding.''

    What are we getting to there, ladies and gentlemen? What the law says, if you go to a person who likes you, who is your friend, who trusts you, and you try to get them to tell a story – through misleading them – that is not true, that is a crime.

    The marvelous thing about the law is that it is based in common sense. It is very obvious to us we don't want somebody to tell a story that is not true. It is also obvious to us that we don't want to take personal relationships and misuse them to get false testimony out into a courtroom.

    So if you go back to your secretary – who trusts you, who likes you, who admires you – and you try to mislead them by telling a scenario that is not true, and you believe that they may appear in court one day, what you have done is very wrong, because what you have done is you have planted the seed of a lie in a way that we say is illegal.

    So, if you believe the President of the United States was not refreshing his memory when he told Betty Currie, "She wanted to have sex with me and I couldn't do that. I never touched her, did I, Betty?'' If you believe that is not to refresh his memory, if you believe that was misleading, and you believe that he had reason to believe she was going to be a witness because of his own conduct, then he is guilty.

    The CHIEF JUSTICE. This question is from Senator Kerrey of Nebraska to the counsel for the President.

      Could you elaborate on your comments about the settlement of the Jones case, focusing on the reality, for example, that corporations in this country routinely settle cases they regard as utterly without merit, simply to spare the costs of defense, public embarrassment, and for other reasons?

    Mr. Counsel RUFF. Mr. Chief Justice, I think far better than I did, the Senator from Nebraska has already elaborated on my answer. I think all of us who have been involved, either as lawyers or as parties, unhappily, in litigation know the burden that it imposes, and one can only imagine – I am barely able to – a special burden that it places on a President to be immersed in this kind of litigation.

    We take, I think, as a basic understanding in our jurisprudence that, as a matter of law, the settlement of a case is not probative of any belief on either side about the strengths or weaknesses, but what it is, as a matter of law, is probably less relevant than what it is to this body or to the American public's perception.

    But underlying the law about what one can do in litigation in using a decision to settle is, I think, a commonsense judgment that everybody, whether it be a large corporation or individual or the President of the United States, makes a judgment about where his or her resources should be expended – and I don't mean simply resources in terms of dollars, although they are secondly important – but resources in terms of energy, time, worry, interference with the day-to-day business that all of us have to conduct.

    And I think it is fair to say that it is those factors, those very commonsense factors, the ones we would all weigh, in different circumstances at different settings if we were caught up in litigation, that inform your judgment about what you should or, in my judgment, should not take from the fact that the President settled this case.

    The CHIEF JUSTICE. This question is from Senators Nickles, Warner, Helms, Inhofe, and Thurmond to counsel for the President.

      Members of the armed services are presently removed from service for improper sexual conduct and/or for perjury. If the President is acquitted by the Senate, would not it result in a lower standard of conduct for the Commander in Chief than the other 1.3 million members of the armed services?
       


    Mr. Counsel RUFF. Mr. Chief Justice, this, of course, is a question legitimately asked but I also think legitimately answered no. We all understand entirely what rules are imposed on members of the armed services. Indeed, every member of the Federal civil service, every member of a private company, when they engage in certain conduct, may be sanctioned for it.

    In the military, I understand – as do the Senators who have much greater personal and institutional experience with our Armed Forces than I – the importance of maintaining due order and discipline in the armed services, and also the importance of believing that nothing that the Commander in Chief does or says should ever undermine the strength of our Armed Forces, their cohesiveness, or their belief in the rules and integrity of the rules that govern them.

    But, that said, A, I do not believe, as a matter of what will flow from an acquittal of the President, who is, indeed, Commander in Chief, that that will in fact undermine the good order and discipline of the Army. But if I am wrong in some fashion about that, if my understanding of the process is flawed – and it may well be – we, nonetheless, have to ask the question which I think is implicit in the question that was put to me: Because of the rules that apply to members of the Armed Forces, does it follow that because a sergeant, or a lieutenant, or a general, or an admiral will suffer in his career, that we must go back to the framers who wrote the impeachment clause and say they must have expected that the Commander in Chief, the President, would be removed for the same conduct? They had an Armed Forces then. Indeed, they were probably more intimately involved with that, having just come through the Revolution, than Presidents and leaders of the country have been in the following 210 years. They surely understood that there was a constitutional and societal difference between the President in his role as Commander in Chief and the President in his role as the leader of the country, on the one hand, and those to whom rules of discipline had to apply in order to secure the strongest and best Armed Forces that we could secure.

    It is, in a sense, I suppose, not an easy answer to give, because members of the Armed Forces put their lives on the line, and we want them to feel that they are being treated fairly. But at the end of the day, it cannot be that the President of the United States is removable for conduct that would adversely affect a career of a member of the military.

    There may be occasions on which the President engages in such horrific conduct that he ought to be removed, and the same would happen to an admiral, or a general, or the Chief of Staff of the Joint Chiefs, or the highest military member that you can contemplate. But that doesn't mean that this conduct is transposed from the world of the military into the world of the Constitution in such a way that the President, even if he is our Commander in Chief, should be removed from office, because I think that judgment would be inconsistent with the judgment made by the framers.

      RECESS

    Mr. LOTT. Mr. Chief Justice, I suggest that this would be an excellent time to take a 1-hour break for lunch.

    There being no objection, at 12:44 p.m., the Senate recessed until 1:45 p.m.; whereupon, the Senate reassembled when called to order by the Chief Justice.

       


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