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THE IMPEACHMENT TRIAL
Jan. 22: Questions 31 to 50

  • More Transcripts From the Trial

  • From the Congressional Record
    Friday, January 22, 1999

    The CHIEF JUSTICE. The Chair recognizes the majority leader.

    Mr. LOTT. Thank you, Mr. Chief Justice. Mr. Chief Justice, I had indicated that we would probably go 5 hours today, which would take us to approximately 6 o'clock. But I think we would certainly go for at least another hour or so, perhaps not quite all the way to 6 o'clock, but we will talk to each other and look for a signal from the Chief Justice about exactly when we would end the day's proceedings.

    At this point, Mr. Chief Justice, I believe we are ready for the next question. I believe the previous question came from Senator Lieberman; therefore, I send the next question to the desk.

    The CHIEF JUSTICE. This question is from Senators Thompson and Snowe, to the House managers:

      Do the managers wish to respond to the answer given by the President's counsel with regard to the poll taken by Dick Morris?

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

    Just before we recessed, there was a question directed to the President's defense attorneys regarding the Dick Morris poll. One of the responses to it was that it was basically irrelevant. I think it is one of the more important things that has occurred in this case, because--and I think it is very important--because we get a look inside that window that is blocked for the most part throughout these proceedings. We really get an eye into the minds that are working here. Not only does it say volumes about a person who has to take a poll and decide whether or not to tell the truth, it also provides a great deal of information toward the actual state of mind, the actual willfulness, the actual intent of the actor in this case who has had the poll taken.

    Let me just read briefly from the referral regarding this incident. It talks about how Mr. Morris tells the President that this country has a great capacity for forgiveness and we should consider tapping into it. The President responds, "Well, what about that legal thing, you know, the legal thing, you know, Starr and the perjury and all?'' And they go on and have a discussion and decide to take a poll that night. Now this is January 21.

    And in all fairness to the President, it is not clear from the record that I have that he had had a conversation with Sidney Blumenthal and John Podesta that day, before this effort--the poll was taken, and the results reported that same day, late that evening--or whether the conversation with Mr. Podesta and Mr. Blumenthal occurred afterwards. Those are the ones, in essence, where he questioned what went on, and also with Mr. Blumenthal fairly well attempted to discredit Ms. Lewinsky, too. And you will see how that may or may not tie in, again, depending on the chronology. But certainly all those events happened the same day.

    Mr. Morris takes the poll and reports later that day, later that evening, the same evening, the 21st, the results of that, and basically says the voters are willing to forgive the President for adultery but not for the perjury or the obstruction of justice. And then according to Mr. Morris, the President answers, "Well, we['ll] just have to win, then.'' And later the next day the President has a followup conversation with Mr. Morris, in the evening, and says that he is considering holding a press conference to blast Monica Lewinsky out of the water. But Mr. Morris urges caution. He says, "Be careful.'' According to Mr. Morris, he warned the President not to be too hard on Ms. Lewinsky because "there's some slight chance that she may not be cooperating with Starr, and we don't want to alienate her by anything we're going to put out.''

       


    That is chilling. It truly is chilling that our chief law enforcement officer, the person who sends our soldiers off as Commander in Chief, to possibly die, the person who appoints the Federal judges, nominates Supreme Court Justices, appoints U.S. attorneys around the country who try 50,000 cases a year, has that mentality. And it goes to the state of mind here. And the willfulness and the intentions, from that point forward, certainly are reflected in the perjury and the efforts to continue the obstruction, the pattern, the overall pattern--not just one little incident.

    And I urge you, Senators, as you consider this, to consider it carefully. And as I said in my opening remarks, do not isolate little facts here and there and take the spins. But in every--every--alleged act, ask yourselves the two questions--whether it is the hiding of the gifts, the filing of the false affidavit, letting Bob Bennett use that false affidavit while sitting still, talking to Sidney Blumenthal and John Podesta about what did not really happen, the job search--ask them, every one of those, What was the result, what was the result of those actions?

    I think in every case you will see that something occurs to block the Paula Jones case, the discovery of evidence, the receipt of truthful testimony. And ask yourselves the second question: Who benefits from that? And I will guarantee you every time, in every one of those instances, it is the President who benefits, who derives the effect of that. And he is either the luckiest man in the world because of this and having people willing to commit crimes for him or he is somewhere in the background orchestrating this.

    The CHIEF JUSTICE. This is from Senators Leahy, Harkin, Dorgan, and Reid of Nevada, to the President's counsel:

      In his opening remarks to the Senate, Manager McCollum stated, "I don't know what the witnesses will say, but I assume if they are consistent, they'll say the same thing that's in here,'' referring to the 60,000 page record currently before the Senate. I see no reason to call witnesses to provide redundant testimony.

      Could you comment on Mr. McCollum's statement and clarify also the timetable which might have to be considered for discovery if witnesses are called?

    Mr. Counsel KENDALL. Mr. Chief Justice, I think, as I said in an earlier question, that the answers the witnesses would provide are already contained in the five volumes of testimony. As I am sure you are aware, when I say five volumes, that is not really five volumes, because on many of the pages the grand jury transcript is shrunk, called a miniscript, so you get 6 pages of testimony per page. Your eyesight may fail you before you get through. The witness testimony is there. I don't think calling the witnesses again will add anything to that.

    In terms of a discovery schedule, it is hard to say, because we have had no opportunity to shape the record. We don't know what we will need. We would need documents. We would need testimony. One deposition could lead to another. I think we are talking a matter of a few months to finally get through it.

    But I think the real question is, What questions are there that have not been asked? I think if you ask that question, What questions are there that have not been asked, you will find there are no questions. In fact, there are questions that have been asked a number of times.

    Now, Mr. Manager Hutchinson told you that, Well, the independent counsel didn't have a chance to ask questions after the President's testimony. Indeed he did. You will see that Ms. Lewinsky was examined after the President testified, both in the grand jury and in FBI interviews. I don't think that witness interviews or further evidentiary proceedings will add in any measurable way to the record before you.

    The CHIEF JUSTICE. This question is directed to the House managers by Senators Hatch, Thompson, DeWine, and Warner:

      The unanimous consent agreement pending before the Senate permits the filing of a motion to dismiss next week. What legal standard should the Senate apply, and applying that standard to this case, what specific acts of Presidential misconduct would a Senator deem unworthy of impeachment by voting for a motion to dismiss?
       


    Mr. Manager HYDE. Mr. Chief Justice, Members of the Senate, the President wants all of the protections of the criminal trial beyond a reasonable doubt, standard of proof, strict pleadings, but yet deny us the right to call any witnesses.

    You know, in the House we did not call witnesses and there is a reason. There are several reasons for that. First of all, we were operating under time constraints which were self-imposed but I promised my colleagues to finish it before the end of the year. I didn't want it to drag out. We had an election intervene, we had Christmas, but we did--because we had 60,000 pages of sworn testimony, transcripts, depositions, grand jury testimony, and we had a lower threshold.

    The threshold in the House was for impeachment, which is to seek a trial in the Senate. We could not try the case in the House. The Constitution gives the Senate the exclusive right to try the case. All we could do was present evidence sufficient to convince our colleagues that there ought to be a trial over here in the Senate. And we did that.

    But now that we are over here--by the way, we were roundly criticized for not producing any witnesses. And I might add, Mr. Kendall has said repeatedly they did not have a fair discovery process; they didn't have any witnesses and weren't permitted to cross-examine.

    I want to tell you, repeatedly--repeatedly--I invited the President's lawyers, the staff of the Democrats on the House Judiciary Committee: Any witnesses you want, call them; give me their name and we will bring them in and you can cross-examine them to your heart's content.

    No, they never did. Finally, they brought in some professors and Mr. Ruff testified, Mr. Craig testified. But they didn't want, in fact, any witnesses. That is the last thing they wanted. They had full opportunity to call them, and I really, really, bristle when they say, "You were unfair.'' We wanted to be fair. We tried to be fair because we understand you need a two-thirds vote to remove the President. We needed Democratic support. So far we had none. That is OK. Let the process play itself out. But we were fair.

    And when Mr. Kendall says they had no opportunity, he means they didn't avail themselves of an abundant opportunity to call witnesses.

    Now, a motion in lieu of a trial should provide that all inferences, all fact, questions, be resolved in favor of the respondent, the House managers. I don't think that is going to happen. I think by dismissing the articles of impeachment before you have a complete trial, you are sending a terrible message to the people of the country. You are saying, I guess, perjury is OK, if it is about sex; obstruction is OK, even though it is an effort to deny a citizen her right to a fair trial. You are going to say that even when judges have been impeached for perjury--and, by the way, the different standards between judges and the President: This country can survive with a few bad judges, a few corrupt judges; we can make it; but a corrupt President, survival is a little tougher there. So there is a difference, and the standard ought to be better and more sensitive for the President because the President is such an important person.

    Look, the consequences of cavalier treatment of our articles of impeachment, your articles of impeachment: You throw out the window the fact that the President's lies and stonewalling have cost millions of dollars that could have been obviated. The damage to sexual harassment laws--you think they are not going to be damaged? They are, seriously, making it more difficult to prosecute people in the military or elsewhere for perjury who lie under oath. Those are serious consequences.

    I know, oh, do I know, what an annoyance we are in the bosom of this great body, but we are a constitutional annoyance, and I remind you of that fact.

    Thank you.

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

      Can you comment on Manager Hyde's contention that the President was free to call witnesses before the House, but that the House did not have the time to do so, or to call any witnesses?

    Mr. Counsel RUFF. Mr. Chief Justice, I think it is important to understand the reality of what is going on in the House. Most of you know something of it by simply the virtue of press coverage. But let me tell you what it was like from the perspective of the President.

       


    From the very first moment when we began to speak with representatives of the Judiciary Committee--whether senior staff or the chairman, who is always gracious--the one thing we said was, "Please tell us what we are charged with, please.'' And we went from Mr. Schippers' extensive opening discussion of 15 possible violations of law to an ever-shifting body.

    It wasn't until I was within literally a few minutes of completing my testimony on December 9 that we were ever honored with anything that looked like a description of the violations that the President was charged with, and those came in the form of hard draft articles of impeachment.

    I think, indeed, if you will all remember back--if any of you were watching that day--I was actually given a draft copy of those articles just as I was completing my testimony, and then they were snatched back because it was premature for the President's counsel at 4:30 in the afternoon on December 9 to know what the President was charged with.

    Now, one thing you generally like to know as a litigator in any forum, before you start thinking about producing exculpatory evidence, as we were asked to do, or thinking about calling witnesses, is to sort of know what you have to defend against. In any forum, whether it is criminal or civil or legislative, the accused generally has that right.

    Beyond that, as you all know--indeed, as Mr. Manager Hyde has indicated--we were operating on a very fast track. We asked, for example, when the issue arose as to whether or not the staff of the committee would take depositions, whether we would be entitled to be present, because we knew that none of them was on the calendar to be called in any open hearing, and we were denied that opportunity, theoretically because under the policies of the committee it was not appropriate for the President's counsel to be present at the only opportunity that certain witnesses would ever have to testify under oath.

    It seems odd to me, when you come right down to it, that we should be accused of failing in our duty, with the burden on the House Judiciary Committee to make its case and our right to respond, that the House, having determined never to call a witness who knew anything firsthand, we should somehow be charged with having to fit into this discovery process. Discovery is very different, as all of you understand, from calling a witness--whoever it may be--in public, before the full Judiciary Committee, and having the opportunity to examine. We were excluded from whatever true discovery process might have been involved, and left only with this notion that, in the absence of any specific charges, we were to call witnesses to defend ourselves. I suggest to you that in any setting that we are used to, whether those of you who are litigators or those of you who are simple observers of the justice system, that is a very long process, indeed.

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

      Which of the President's statements not already discussed today do you believe to be of particular importance to the perjury charge?

    Mr. Manager ROGAN. Thank you, Mr. Chief Justice. I thank the Senator for the question. I will keep one eye on the clock and stay within the 5-minute rule, so obviously I won't be able to give a comprehensive list of that which we submit to the Senate is perjurious. Let me try to get through at least one or two.

    One example that I invite the Senate's attention to is the answers the President gave in the grand jury about his attorney using Monica Lewinsky's false affidavit. Bear in mind, again, the predicate facts for this. Judge Susan Webber Wright, in the deposition, had ordered the President to answer questions relating to whether he ever had sexual relationships with subordinate female employees in the workplace as Governor or as President, because that is fair game in any sexual harassment suit. Victims of harassment in the workplace are entitled to discover that information.

    The President was able to get Monica Lewinsky to file a false affidavit in the Jones deposition. And when that affidavit was in hand and filed, as soon as the attorney for Paula Jones asked the first question about Monica Lewinsky, the President's attorney, Mr. Bennett, put forth that affidavit and objected to the attorneys even asking the question. He said, "There is no good-faith belief that this question should be asked because of the affidavit.'' And the President did absolutely nothing to correct the record.

    When this came up in the grand jury, the President was asked about the affidavit and the statement that Mr. Bennett made to Judge Wright that "there was no sex of any kind, in any manner, shape or form.'' And the attorney, Mr. Bittman, at the grand jury, referred to that and said to the President, "That statement is a completely false statement,'' and asked the President to explain. This was the President's answer:

      It depends on what the meaning of the word "is'' is. If the--if he--if "is'' means is and never has been, that is not--that is one thing. If it means there is none, that was a completely true statement.

    Then the President went on to say:

      I was not paying a great deal of attention to this exchange. I was focusing on my own testimony.

    Now, rather than simply give a truthful and complete answer to the grand jury in their criminal investigation, the President gave a bifurcated answer that essentially invited the grand jury to accept one of two explanations.

    Explanation No. 1: I wasn't paying attention to my attorney when he said that. I was busy thinking of other things.

    Or, if you don't like that explanation: I was paying such specific attention to what my attorney was saying that I focused on the tense of what the word "is'' meant--as if to suggest when Mr. Bennett said that there is no sex of any kind, he meant there was no sex that day because he was there being deposed before Judge Wright. Under either scenario, the President absolutely failed in his obligation to provide the grand jury conducting a criminal investigation into possible obstruction in the Paula Jones case--he failed in his obligation to tell the truth, the whole truth, and nothing but the truth.

    You have seen the evidence just from the initial presentation. No. 1, when the President said he wasn't paying attention, that was negated by watching the videotape. The President was paying very close attention. Why was he paying such close attention? Because the fate of his Presidency hung on the answer to that question. This is the most important question in the President's political life. Is he going to have to disclose information that he thought would help destroy his Presidency?

    You don't even have to accept the representation from the videotape to know the President testified falsely, because Mr. Bennett did us the favor of not asking us simply to rely on watching the President pay attention to the testimony. Mr. Bennett then read the President the portion of Ms. Lewinsky's affidavit in which she denied having a sexual relationship with the President, and he asked the President if Ms. Lewinsky's statement was true and accurate. The President said, "That is absolutely true.''

    Now, on August 6, Monica Lewinsky, incidentally, testified before the grand jury, and she didn't play these games with the grand jury, like "it all depends what `is' means,'' or "I wasn't paying attention.'' She was asked a straightforward question:

      Paragraph 8 of the affidavit says, "I have never had a sexual relationship with the President.'' Is that true?

    Answer by Monica Lewinsky:

      No.

    Mr. Chief Justice, I see my time has expired. I will be happy to invite additional questions relating to additional specific examples.

    The CHIEF JUSTICE. This is to the President's counsel from Senator Schumer and Senator Kerrey of Nebraska:

      Isn't it true that the alleged perjurious statements have changed in number and substance since the OIC first delivered its referral to the House, and that the referral, Mr. Schippers' presentation before the House, the majority report, the trial brief, and the managers' statements before this body contain different allegations of what constitutes the alleged perjurious statements?

    Mr. Counsel CRAIG. Thank you, Mr. Chief Justice. The answer to that question is, yes. They were changing right up until the time we met, the very first day of this trial when Mr. Manager Rogan made his presentation. What he said when he described perjurious statements alleged against the President was different from what was appearing in the trial brief before. And that was the end of a long period of time where every time we heard what the allegations were, at least when it came to the issue of perjury, they changed.

    There were allegations added; there were allegations subtracted. Two of the allegations that Mr. Schippers presented when he made his statement to the Judiciary Committee were withdrawn. So it was a process where we never had a chance to sit down, as you should in a very serious and fair and evenhanded exercise, and focus on what precisely it was that the President said in the grand jury that was perjurious.

    Now, as to the specifics of the allegation that we have been discussing just now, when I first opened this discussion, I said it is very important to look at the record. Do not allow anyone to misrepresent the record because you are setting up the President's statement and saying that is perjurious, when the President's statement may well be something very different in the record.

    Now, when Mr. Rogan first made his argument on this issue, he misrepresented the record as to what the President said in this case. I tried to correct him about what the President actually said. He never claimed, at the moment these questions were being asked back and forth, that he thought about the current tense. Even as I was speaking, Mr. Rogan was out talking to the television cameras, saying precisely the same thing. Now we have this same misrepresentation the third time.

       


    I will say it one more time. He answered the question. He wasn't focusing on it. He answered that four times the same way. It was not a bifurcated answer; it was one answer. He was not paying attention at that particular moment. It moved very quickly; the moment was passed and they were into the judge talking and debating with the lawyers. That was his answer. There was no other answer.

    Then, at the grand jury some 7 months later, he was read that statement by the special prosecutor. The question was, "And this statement was false, isn't that true?'' The answer the President gave was that, well, in fact, it depends on the meaning of the word "is.''

    He didn't claim that that was what he was thinking at the time in the Jones deposition. He said very clearly, "I never even focused on that issue until I read it in this transcript in preparation for this testimony.'' It is on page 512, Mr. Rogan. "I never focused on that issue until I read it in this transcript in preparation for this testimony.'' There was not a bifurcated answer. He answered directly. He wasn't focusing on it.

    That is a problem we have had throughout this case when it comes to perjury the allegation. It was a problem we had with the earlier one. If you don't have the specific statement quoted, it is impossible to defend it. It is unfair.

    Thank you, very much.

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

      Do you wish to respond to the answers just given by the President's counsel?

    Mr. Counsel ROGAN. Mr. Chief Justice, I am not sure if I wish to respond or I feel the need to respond. But in either event I will take advantage of the opportunity. I thank the Senator for posing the question.

    Try as they might, the facts are clear. The President, in his August deposition, attempted to justify away, attempted to explain away his perjurious conduct on January 17 when he was deposed. And I am not going to stand and quibble with Mr. Craig over this beyond what was already noted.

    What I prefer to respond to is the bigger question that the White House attorneys have raised on a number of occasions--the idea that the President has been treated unfairly because he hasn't had sufficient notice as to what the allegations are against him.

    Contemplate that for just one moment. Because, were that to be true, the President of the United States would have to be not a human. He would be an ostrich with his neck so far down in the sand--that which every schoolchild now in America knows, that which every person in America with a television or a radio or Internet access knows, and is obvious to everybody which they claim is not obvious to the President.

    When the President of the United States testified at the deposition and before the grand jury--that brought us into late August of 1998, about a month after that--the Office of Independent Counsel filed a report. The binder was about 445 pages. The written document was a little more than 200 pages. But within the four corners of that report are all of the allegations, are all of the facts, and all of the circumstances that were forwarded to the House of Representatives for review. The House Judiciary Committee, specifically at the request of the White House and at the request of our Democrat caucus, did not go beyond the four corners of Judge Starr's report. Not only did the President have the benefit of Judge Starr's report, he also has the benefit of the written report from the House Judiciary Committee--same facts, same circumstances, nothing changed.

    And, by the time we came here to the Senate to try this case, the President had the benefit of the resolution passed by this body that said at the initial presentations "we will not go beyond the record already established''--the record that was established in the Office of Independent Counsel report, in the committee's report, and in our hearings. And for a party to be aggrieved, as the White House counsel suggests, to have been given no notice, it is amazing to me how within minutes of Judge Starr's report being filed they had already filed a response. And I believe there were two supplemental responses within 48 or 72 hours. They have always beaten us to the punch on the response. They have an army of lawyers here able to stand up on a moment's notice and respond. And I just do not understand how they can make the case fairly that this is all now a product of a surprise; that they have not been given a proper opportunity to review the facts. They have seen these facts since Judge Starr submitted his report to Congress some 5 months ago. The facts haven't changed. The circumstances haven't changed. The quotations haven't changed. The transcripts haven't changed. Nothing has changed except their attempt to wiggle out from under the truth.

    The CHIEF JUSTICE. This question is from Senators Boxer, Schumer and Kohl to the President's counsel:

      To the best of your knowledge, has the United States Department of Justice ever brought a perjury prosecution where the alleged perjury was inferred from the direction in which the defendant was looking?

    Mr. Counsel RUFF. Mr. Chief Justice, the answer is, not to my knowledge. I will not go farther than that because somebody in the army of people on the other side might dodge one up, but I doubt it very much.

    I think, if I may impose on the kindness of the authors of that last question, I will take just a moment to comment briefly on Mr. Manager Rogan's rejoinder to our response to whatever-- particularly because Mr. Manager Rogan has been a judge, prosecutor, and others have as well, it does seem mildly odd to me that the answer to the question your charges aren't known or are vague is, look at that pile. You will find them right in there. You fellows, you guys did a good job responding to what you could. So you must be perfectly well prepared to defend against whatever charges we bring. I don't think there is a judge anywhere in the United States, from the highest court or the lowest court, who would accept either explanation from a prosecutor.

    The CHIEF JUSTICE. This question is directed to the House managers by Senators Hatch and Burns:

      The President's lawyers cite in their brief Professor Michael Gerhardt for the proposition that for an act to be impeachable there must be a nexus between the misconduct of an impeachable official and the latter's official duties. But isn't it true that Professor Gerhardt also stated that impeachment may lie for conduct unrelated to official duties if such conduct is outrageous and harms the reputation of the office?

      And this citation is to the testimony of Mr. Gerhardt.

      Would the House managers care to respond to this?

    Mr. Manager CANADY. Mr. Chief Justice, Members of the Senate, I do appreciate the opportunity to respond to this point. I think this is a very important point.

    I have a great deal of respect for Professor Gerhardt. He has said a number of different things on this subject. But the point in the question is directly on point.

    I would also like to quote something else that Professor Gerhardt has said that I made reference to without specifically naming him as the source in this statement which I gave to the Senate on Saturday.

    He said in a Law Review article, which he wrote a few years back:

      There are certain statutory crimes that if committed by public officials reflect such lapses of judgments with such disregard for the welfare of the state, and such lack of respect for the law and the office held that the occupants may be impeached and removed for lacking the minimal level of integrity and judgment sufficient to discharge the responsibilities of office.

    I believe that what Professor Gerhardt makes reference to there is exactly what we have before the Senate in this case. What we have before the Senate in this case is a case where the President of the United States has engaged in a course of conduct involving violations of the criminal law. By doing so, he has evidenced a lack of respect for the law, that demonstrates a lack of the minimal level of integrity that we are entitled to expect of the Chief Executive of the United States, of the person who, under our system, is given the preeminent responsibility to take care that the laws will be faithfully executed.

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

      Given the election of a President of the United States is the most important and solemn political act in which we as citizens engage, how much weight should the Senate give to the fact that conviction and removal by the Senate of the President would undo that decision?

    Mr. Counsel RUFF. That question, of course, goes right to the heart of what the framers were thinking, and the standards that I suggest every sensible analyst of this problem has arrived at, whether they might be called supporters or opponents of the President. There is one critical issue that everyone has to address, which is that removal and undoing the will of the people.

    Mr. Manager Graham acknowledged that that's what we were all about here, whether we should undo an election. But if you go back to the very basic debates of the framers in 1787, and you recall both Mr. Manager Canady and I talked about the moment in time in which it was suggested by Mr. Mason that perhaps the scope of the standard for impeachment could be broadened, and the response made then and clearly the principle underlying everything that the framers spoke about in 1787 was: We cure almost all our problems with an elected official through the electoral process.

    And even if you look at what President Ford had to say 29 years ago on the subject, which I also cited to you as he spoke about the difference between judges and Presidents, he said for the Senate to remove--the House to impeach and the Senate to remove the President or Vice President as opposed to a judge in midterm would require proof of the most serious offenses, and we know that those most serious offenses, the only ones the framers contemplated as a basis for overturning the will of the people, were those that, as the minority said in 1974 in its report on the subject, were a danger to the state-- a danger to the state. That is all that can justify overturning the voice of the people.

       


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

      Didn't the framers of the Constitution understand in 1787 that the conviction and removal from office of a President would, under the system they devised, reverse the result of a national election by elevating, not a President's Vice Presidential running mate, as we would do today, but the person who had received the second highest number of electoral votes?

    Mr. Manager HYDE. Mr. Chief Justice, the statement has been made with some fervor that if the President were removed upon a finding of conviction of the articles or an article of impeachment, it would reverse a national election. I just respectfully say that is not true. The election is provided for in the Constitution and so is impeachment. They are processes of equal constitutional validity. And should the Senate remove the President, Bob Dole will not become President, Jack Kemp will not become Vice President, but Mr. Gore will move up to be President, and the same party, the same programs, I dare say, will continue. It will not reverse an election; it will fulfill a constitutional process that our Founding Fathers were wise enough to provide for.

    The CHIEF JUSTICE. Senator Edwards asks the House managers:

      Are there any statements contained in the exhibits used during the managers' presentations or omissions from those exhibits that you believe, in the interest of fairness or justice, should be corrected at this time? If so, please do so now.

    Mr. Manager BUYER. Mr. Chief Justice, with regard to our own exhibits?

    The CHIEF JUSTICE. Perhaps I should ask Senator Edwards.

    Mr. EDWARDS. Yes, Mr. Chief Justice, with regard to their exhibits.

    Mr. Manager HUTCHINSON. Mr. Chief Justice, I would be happy to take advantage of the 5 minutes, but I have talked to the other managers and we are not aware of any corrections that need to be made on any of our exhibits we have offered to the Senate.

    Mr. KERRY addressed the Chair.

    The CHIEF JUSTICE. The Chair recognizes the Senator from Massachusetts.

    Mr. KERRY. I would simply ask whether or not that answer was in fact fully responsive to the question. I believe the question also asked whether or not there were any omissions.

    The CHIEF JUSTICE. The Parliamentarian advises me this is a nondebatable period and the inquiry is out of order, and I so rule.

    This is from Senator Roberts. It is directed to the House managers.

      Given the fact that the White House characterizes the assistance that Monica Lewinsky received as "routine,'' does the record reflect that any other White House interns other than Monica Lewinsky received the same level of job assistance from Vernon Jordan, John Podesta, Betty Currie, and then-Ambassador Richardson?

    Mr. Manager McCOLLUM. Mr. Chief Justice, if I might, as far as we know as House managers, in the record the only comments about assisting anybody else other than Monica Lewinsky, of any nature, were made in testimony by Vernon Jordan. He did assist other people. But I don't believe there is anything, to the best of our knowledge and recollection--of course, we have a lot of paperwork here--that he referred to assisting another intern or anyone in a like position. And certainly there was no indication that the kind of intensity of that assistance occurred in the kind of manner in which the proceedings did with developing her job opportunities, that is, somebody in this direct involvement with the President, or certainly nobody with a close relationship and interest on the part of the President. There certainly was nothing in the record to show that, and that is, of course, central to this entire case as far as the job search part of this obstruction of justice is concerned.

    Thank you.

    Mr. ROBERTS addressed the Chair.

    The CHIEF JUSTICE. The Chair recognizes the Senator from Kansas.

    Mr. ROBERTS. I had directed that question, sir, to the White House counsel. It was my intent to direct it to White House counsel. I do not know what the proper procedure would be at this time.

    The CHIEF JUSTICE. Is there any objection to the White House counsel answering the question at this time?

    Without objection, the White House counsel may answer.

    Mr. Counsel RUFF. Thank you, Mr. Chief Justice. This may be a moment worth noting in the proceedings because in essence I think we are in agreement with Mr. Manager McCollum.

    I would perhaps only do this, and that is, to note with some greater emphasis Mr. Jordan's testimony, which we will be glad to highlight if we have another opportunity here, that indeed he has regularly and frequently assisted young people, and not-so-young people, in finding jobs.

    Again, I couldn't tell you whether any of them had been an intern at any time. I would only note that, of course, Ms. Lewinsky was not an intern at the time Mr. Jordan was helping her, but rather was an employee of the Pentagon.

    But beyond that, and perhaps with somewhat greater emphasis on Mr. Jordan's emphasis on behalf of young people in the city, I am in essential agreement with Manager McCollum.

    The CHIEF JUSTICE. This is a question from Senators Dodd and Levin to the House managers:

      On page 11 of House committee report accompanying H. Res. 611, the report states that Judge Susan Webber Wright issued her order "on the morning of December 11th.'' Will the managers now acknowledge that the report was factually incorrect? Yes or no?

    Mr. Manager HUTCHINSON. Thank you, Mr. Chief Justice. If I look back at the facts of this--of course, I have explained earlier today that the action on the 11th was initiated or triggered by the witness list that came in on December 5, that the President knew about it at the latest on December 6.

    On the 11th, Judge Wright entered an order in that case which allowed the Jones lawyers an opportunity to ask questions about the prior relationships with other Federal employees or State employees.

    Mr. DODD addressed the Chair.

    The CHIEF JUSTICE. The Chair recognizes the Senator from Connecticut.

    Mr. DODD. Mr. Chief Justice, as one of the authors of the question, a yes or no answer was requested and I object to the answer.

    The CHIEF JUSTICE. The Chair has not tried to police the responsiveness of the answers to the questions so I am going to overrule that objection.

    Mr. Manager HUTCHINSON. I am not trying to be evasive at all to the Senator, but I did want to lay the groundwork for this and also to get my thoughts so that I would be as accurate as possible.

    The order that Judge Wright entered was on December 11. I do not know the precise time. I believe it was in the afternoon that it was entered, and it was followed by the telephone call with the participants. So I believe that it was entered in the afternoon of the 11th, and not in the morning of the 11th.

    And, of course, that was not in my presentation. My presentation referred to the order being entered on December 11, and that the action on the 11th, of course, was triggered by the witness list on December 5.

    I think that completely answers that question. If there is some other--I would be happy to respond to anything more specific on that issue.

    The CHIEF JUSTICE. This question is directed to the House managers from Senators Domenici, Frist, McCain and Warner.

      What is the historical significance and legal import of taking an oath for performance in public office? What is the historical significance and legal import of taking an oath to tell the truth in a legal proceeding? Please discuss whether oath-taking in such circumstances is a public matter.

    Mr. Manager HYDE. Mr. Chief Justice, Members of the Senate, the taking of an oath is a formalization, a solemnization of truth. You call upon God to witness to the truth of what you are saying. In the long march of civilization, the oath has taken the place of trial by fire, trial by combat, trial by ordeal. It says, in the most sober way: You can trust me. You can believe in me. It is verbal honesty. Our legal system depends on it and our justice system depends on it. The oath underscores our humanity. The oath is an aspect of our sacred honor.

    The CHIEF JUSTICE. This is from Senator Kerry of Massachusetts to the counsel for the President:

      Is it fair to say that the articles and manager presentations stress the Jones perjury allegations rejected by the House, because they cannot credibly, on the law, satisfy the elements and argue perjury in the grand jury investigation?

    Mr. Manager RUFF. Mr. Chief Justice, I am a little bit troubled at answering that question, not because I don't feel strongly about what the answer is but I do not want to suggest in any way that the motivation of the managers is less than professional and appropriate. But I do think that, indeed, they know, as they think through the proof that they have or that they even might ever contemplate, that the President of the United States, when he began his grand jury testimony by making the most painful admission a human being could ever make, and thereafter did his best--albeit in the face of tough and probing and repetitive questioning for 4 hours--did his best to tell the truth.

    That they had a very difficult, indeed virtually impossible, task to persuade any dispassionate trier of fact and law that he had intentionally given false testimony, and you can see that evidenced, I think most clearly, if you look at some of the first allegations made as to what constitutes perjury--things like the use of the words "on certain occasions'' or "occasionally'' to describe a battle over whether 11 or 20 or 17 fit within that description. It does seem fair to say that they would not be fighting those battles in this Chamber if they had any real confidence in their cause on article I, and thus they do seek, for whatever tactical or other purpose, to try to bring in those things which so many of their colleagues rejected out of hand in the House of Representatives.

       


    The CHIEF JUSTICE. This question is directed to the House managers from Senators Hatch, Thompson and DeWine:

      In her presentation to the Senate, Ms. Mills emphasized that Ms. Lewinsky testified on ten different times about the subject of gifts. Did she ever testify that the President told her that she must turn over the gifts because that is what the law requires?

    Mr. Manager McCOLLUM. Mr. Chief Justice, in response to that question the answer is no, she did not. As a matter of fact, that was and is the central point on the part of the gift question. At no time, she says, did the President instruct her to turn those gifts over. I think that is a telling point. In fact, it is a telling point throughout the entire process of the scheme and all the things that happened and why you have to follow, in my judgment, Senators, the issue of this whole process through the scheme that was devised at the beginning, all the way to the end.

    The President was going to ultimately lie to conceal from that case, that court in the Jones case, the truth of his relationship with Monica Lewinsky and, therefore, he had to set it up for the affidavit, the gifts, et cetera. At no point in time, she says in her testimony, did he ever ask her to come clean. Until the time the affidavit was discussed, on the night of December 17, he never suggested she tell the truth there. If you remember we put that up here several times to you. Even though he may not have directly told her to lie, he certainly gave her every indication, she said, from the standpoint of the background that they had had before and what he said that night about the cover stories.

    And with regard to the gifts, the same thing is true. She gave him an opportunity on the day of December 28. Whether there are 10 statements or however many there might be--and they say there are 10; I trust the judgment of the White House counsel--there were 10 different statements, the most significant of which, of course, is the grand jury testimony she gave on the subject of what happened that day when she discussed the gifts with the President because that is when her recollection had been best refreshed. She had been over it a lot of times. She had had much preparation for that, and I submit to you that barring bringing her in, which we of course would suggest you do, and let us ask her to confirm all of this again, you must assume the logical thing to do is to assume the grand jury testimony, the most perfected testimony you have, is the most accurate and most reliable, and on that occasion particularly she emphasizes the fact that with regard to the gifts there certainly was no request by the President that she reveal those gifts.

    Now, of course he says he did. He says he did later. But that is absolutely contradicted by her testimony.

    The CHIEF JUSTICE. Senator Reid of Nevada sends this question for 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?

    Ms. Counsel MILLS. There is, obviously, a conflict in the testimony between the President, who said he directed Ms. Lewinsky to turn over whatever she had, and Ms. Lewinsky's statements. I would just like to read to you, given the House managers' reference that we must credit her grand jury testimony, the version of her grand jury testimony, which you all will no doubt remember it as one of the ones I read to you that was never presented by the House managers, and that is on August 20, 1998, after the President had testified:

      It was December 28th. I was there to get my Christmas gifts from him, and we spent about 5 minutes or so, not very long, talking about the case. And I said, "Well, do you think''-- and at one point I said, "Well, do you think I should?'' And I don't think I said, "Get rid of, but do you think I should put away, give to Betty or someone the gifts''--and he--I don't remember his response. I think it was something like "I don't know'' or hmm or there was really no response.

    On that same day when she was asked that same question, if it is her grand jury testimony that is to be addressed, she also said:

      A Juror. Now, did you bring up Betty's name or did the President bring up Betty's name?

      The Witness. I think I brought it up. The President wouldn't have brought up Betty's name because he didn't--he didn't really discuss it.

    All of those are in her grand jury testimony. So her grand jury testimony is the testimony that states he might not have given any response. So, to the extent the House managers' theory is that "Let me think about it'' leads to obstruction of justice, her grand jury testimony does not state that.

    The CHIEF JUSTICE. Senators Specter, Helms, Abraham, Ashcroft, and Stevens direct this question to the President's counsel:

      President Clinton testified before the grand jury that he was merely trying to "refresh'' his memory when he made these statements to Betty Currie. How can someone "refresh'' their recollection by making statements they know are false?

    Ms. Counsel MILLS. I think one of the things I tried to address in addressing what the President's testimony was with respect to his conversation with Ms. Currie was obviously he was understandably concerned about the media attention that he knew was impending. And in particular, as he walked through the questions, he was thinking about his own thoughts and seeking, as I think I talked about, concurrence or input or some type of reaction from Ms. Currie.

    I think in making those statements, he was asking questions to see what her understanding was based on some of the questions that had been posed to him by the Jones lawyers, because some of them were so off base. And so he was asking from Ms. Currie essentially what her perception was, what her thoughts were.

    I think as you walk through each one of those questions, he was expressing what his own thoughts and feelings were with regard to this and was seeking some concurrence or affirmation from her. I think he was agitated. I think he was concerned. He knew what was going to happen, and I think that is why he posed the question in the way that he did.

    The CHIEF JUSTICE. A question from Senator Bayh to counsel for the President:

      Can you comment on the importance of "proportionality'' to the rule of law?

    Mr. Counsel RUFF. How much time do we have? Thank you, Senator.

    I think proportionality, in all its many guises, is an issue that has given us some pause, going well back into the investigative phase of this matter, and I think many who have watched and who have made their lives and careers as professional prosecutors, indeed many who have been criminal defense lawyers or just plain sensible citizens watching, have asked whether the resources and the energy and the time devoted to this matter and the manner in which it has been treated at every stage before it ever got to the House of Representatives does, in fact, reflect an appropriate assessment of the conduct being investigated and the seriousness of the conduct, which is not ever to suggest that we condone perjury or obstruction of justice.

    We all recognize, if those offenses have been committed, they are worth pursuing. But one only need look at the testimony and the professional prosecutors who testified before the Judiciary Committee to get a sense of what the world of professional prosecutors would do faced with these kinds of allegations in this kind of setting, and that really is the key: How many prosecutors would ever reach into the middle of an ongoing civil litigation and bring these kinds of charges?

    The proportionality, obviously, has other implications and certainly goes right to the heart of the role played by this body. That is, what is the proportional response to whatever you think of the President as a man, whatever you think of his conduct. Even if you should conclude-- although we do not believe you should--that he violated the law in some respect, what is the constitutionally proportional response to your judgment. And there you go right back to the essence of what the framers were talking about, which is responding with the ultimate sanction only when the ultimate problem is posed to you.

    I suggest, as I have on too many occasions, I fear, that if that is the proportionality question you are asking--and all must at some point ask that question--the answer has to be clear, that no one ever thought in 1787 and, I suggest to you, in the intervening 212 years that it would be a proportional response to the conduct alleged here to remove a President.

    The CHIEF JUSTICE. The Chair recognizes the majority leader.

      Order of Procedure

    Mr. LOTT. Mr. Chief Justice, I believe we have reached a point where we can take a break. I think we have had responses to approximately 50 questions today. Now we will have a chance to assess, on all sides, what additional questions might be needed to be asked tomorrow. I remind my colleagues that we are scheduled to resume at 10 a.m. on Saturday.

      Adjournment

    Mr. LOTT. If there is nothing further, I move we adjourn, Mr. Chief Justice.

    The motion was agreed to; and at 5:49 p.m., the Senate, sitting as a Court of Impeachment, adjourned until Saturday, January 23, 1999, at 10 a.m.

       


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