THE IMPEACHMENT TRIAL
Jan. 23: Questions 85 to 105
From the Congressional Record
The CHIEF JUSTICE. The Chair recognizes the majority leader.
Mr. LOTT. Thank you, Mr. Chief Justice.
Mr. Chief Justice, we are ready momentarily to begin with the questioning period again. I believe the first question will come through Senator Daschle.
I do want to say to our colleagues that any Senator is entitled to propound a question on both sides, and so we will give you every opportunity to do that. Again, it is our intent to go today not later than 4 o'clock, and if additional time is needed for questions, it will have to go over until Monday. We have some questions that have already been propounded that we would like to put to one side or the other, but at some point I think we will have a sense that maybe the basic questions have been asked.
So if any Senator on either side feels strongly about a particular question, he or she may want to be thinking about how and when they insist that it be offered. But I think a lot of ground has been covered. I hope that within a reasonable period of time the questions that Senators have will be given and we will have a response, and then we will make a decision on how to proceed from there.
I yield, Mr. Chief Justice.
The CHIEF JUSTICE. This is a question from Senator Bingaman to counsel for the President.
In using his power to assist one party to the pending impeachment trial before the Senate, do you believe he has unlawfully intruded on the power of the Senate to try impeachments?
We were, obviously, dismayed at the role that the independent counsel chose to follow rather than simply sending information to the House that might bear on possible impeachable offenses but, rather, to drive his van up to the building and unload unscreened, undiluted boxes of information which thereafter made their way, at least in part, into the public domain.
But surely it was a shock to all of us, at least on this side, to learn yesterday evening that playing a role in the House proceedings had now become a role in this Chamber, that the independent counsel was using not only his powers of coercion but calling on the U.S. district court to assist him and, in turn, enabling the managers not simply, as they would have it, to do a little work product, to do a little meeting and greeting, to do a little saying hello and a little chatting with someone who may be a witness before this body but, rather, saying to this witness: I hold your life in my hands and I'm going to transfer that power to the managers for the House of Representatives.
The managers have said we are engaged in an adversary process here, and they themselves have talked long and loud today about letting them play out the process that any lawyer would play out preparing for trial. Well, no other lawyer that I know of gets to have a prosecutor sitting in a room with him and saying to the witness: Talk to these people or your immunity deal is gone and you may go to jail.
Now, we have been accused by Manager Hutchinson and others of always talking about process, of always falling back on process. Well, I suggest, Senators, that process is what our justice system is all about. Process is what we have always relied on to protect everyone against the vaunted power of the state in this case; not just the managers, but the state embodied in the independent counsel.
But in this case it is more than just a call for due process, for fairness, because it is going to have a direct and immediate impact on the facts as we learn them, as they learn them, and most importantly as you learn them. Can you imagine can you imagine what it is going to be like for Monica Lewinsky to be sitting in a room with the 13 managers, or however many there are, and the independent counsel, and his lawyers, knowing the threat that she is under, knowing how she got into that room? Can we have any reason to believe that what comes out of that process will be the fair, unvarnished truth? Or will she, of necessity, be looking over her shoulder and saying I better not put one foot wrong because the independent counsel is sitting there watching, and he has already told me that this deal is gone if I don't cooperate with the House managers.
Process and truth, they are inextricably linked, but not not if the independent counsel moves to that side of the room and becomes the moving force in the development of the truth and the facts as this body is entitled to know them.
Accuse us of talking about process if you will; accuse us, if you will, of falling back on process. We do it proudly because process is what this is all about, because process leads to truth. But not that way.
The CHIEF JUSTICE. This is a question from Senators Specter, Frist, Smith of New Hampshire, Inhofe, Lugar, Brownback, Roth, and Crapo to counsel for the President:
Mr. Counsel RUFF. It can't be. It can't be that if the President violates the law and thus violates his duty faithfully to carry out the laws, he is removed from office. Because that would literally encompass virtually every law, every regulation, every policy, every guideline that you could imagine that he is responsible for carrying out in the executive branch. If that were so, it would have been very simple for the framers to say the President shall be impeached for treason, bribery and failure to carry out his oath faithfully to execute the laws. They wrote that. They could have incorporated it into the impeachment clause if they had wished, and they chose not to.
So that if, in fact, you suggest that a failure to faithfully execute the laws inevitably leads to a decision that an impeachable and removable offense has been committed, I suggest with all respect that you have simply eliminated the impact of the words "treason, bribery and other high crimes and misdemeanors.''
Now, you may well judge within that setting that is, within that constitutional standard "other high crimes and misdemeanors'' that some particular violation of law warrants removal. But it surely can't be, just looking back at what the framers did and what the words themselves mean, that any violation, even if you were to find one, must lead you to conclude that having therefore violated his responsibility to faithfully execute the laws, removal must follow.
The framers knew what the other parts of the Constitution said, and they specifically chose the words they chose, intending that they cover only the most egregious violations of the public law and public trust that they could conceive of.
The CHIEF JUSTICE. This is from Senator Graham to counsel for President Clinton:
Assuming that one or more of the above actions are constitutional, are there any other serious policy concerns about the advisability of the Senate formally adopting a legislative sanction of the President that falls outside the scope of the constitutional sanction of removal from office?
Mr. GRAMM addressed the Chair.
The CHIEF JUSTICE. The Chair recognizes the Senator from Texas.
Mr. GRAMM. Mr. President, I would like the record to show that that was Senator Graham of Florida. (Laughter.)
The CHIEF JUSTICE. The record may so show.
Mr. Counsel RUFF. Senator Gramm, my apologies. I assumed since Senator Daschle sent it up it was probably from this side, but I am glad you clarified the record.
That question probably requires much more constitutional learning to answer in great detail than I possess, but let me give it a try. And the easiest one for me to answer is the fourth part: Would it be appropriate for, in some fashion, for the President formally to state that he would not accept a pardon?
I have stated formally on behalf of the President in response to a very specific question by the House Judiciary Committee that he would not, and, indeed, we have said in this Chamber, and we have said in other places, that the President is subject to the rule of law like any other citizen and would continue to be on January 21, 2001, and that he would submit himself to whatever law and whatever sanction or whatever prosecution the law would impose on him. He is prepared to defend himself in that forum at any time following the end of his tenure. And I committed on his behalf, and I have no doubt that he would so state himself, that he would not seek or accept a pardon.
I will not even begin to tread on the territory that is the Senate's jurisdiction and the issues that it takes unto itself, much less give it advice about what it is possible or not possible to do, except to venture this. I see no constitutional barrier, certainly, to the Senate's passing a censure motion in whatever form it chooses whether adopting language from the articles or creating language of its own. We might at the end of the day disagree with you about whether the language is justified or whether it accurately reflects the facts, but there is nothing in the Constitution, I believe, that prevents this body from undertaking that task.
With respect to a formal acknowledgment, there I suppose the interplay between the legislative and the executive branch becomes more tenuous. But to the extent that whatever the Senate chooses to say in such a document needs to be acknowledged or recognized by the President, that can be done without trenching on the separation of powers in that special uncertain area between the legislative and executive branches. I have no doubt that some process can be worked out that meets the Senate's needs. I say this all in the sort of vast limbo of hypothesis, because obviously I am answering both somewhat off the cuff and without knowing what language we are talking about.
But the core position, as we see it, is that nothing stands in the way of this body from voicing its sentiments. Indeed, I have said in the House of Representatives that I thought a censure was an appropriate response, and the President has said he is prepared to accept the censure. I have no doubt, although that was said in the context of the proceedings in the House, it surely is applicable as well to anything that this body chooses to do.
The CHIEF JUSTICE. This is a question from Senator Thompson to the House managers:
Mr. Manager McCOLLUM. Mr. Chief Justice, Senators, thank you for that question. It is our judgment and I think a fair judgment that we should be allowed and are permitted, under any of the rules normal to this, to request of the Office of Independent Counsel the opportunity to talk to Monica Lewinsky, which we otherwise apparently were not going to be able to have as a normal course of preparation.
It makes me wonder with all of the complaints that are going on here from the White House attorneys about this and their desire not to have witnesses what they are afraid of. Are they afraid of our talking to Monica Lewinsky? Are they afraid of the deposition of Monica Lewinsky? Are they afraid of what she might say out here? I don't think they should be, but they appear to be.
We are not doing anything abnormal. We are exercising our privileges, our rights. If it were a prosecutor and you had a prosecutorial arm, which you do in the case of the Independent Counsel Office, that had an immunity agreement, as there is in this case, you certainly would not hesitate if you had a recalcitrant witness who you needed to call to utilize that immunity agreement and have the opportunity to discuss the matter with that witness, and you certainly would not hesitate if you needed to use that immunity agreement to assure truthful testimony in any proceeding that was going on.
So I think there is an awful lot being said today about our meeting that we want to have with Ms. Lewinsky to prepare her as a witness. I want to tell you all it is being done, in my judgment, with all due respect to those who are doing it, principally because of the concerns they don't want us to have that opportunity or they want to cast some aspersion or doubt, or whatever.
We are not about to do anything improper. We can assure you of that. We would never do that. We are going to follow regular order and do this as good counsels would do in good faith, and in no way would we wish to do it otherwise, nor have we. Thank you.
The CHIEF JUSTICE. This is a question of Senator Baucus to the House managers:
Mr. Manager HYDE. Mr. Chief Justice, ladies and gentlemen of the Senate, I don't think anyone contends that if the President is acquitted that suddenly it is apocalypse now or the Republic will be threatened from without or from within. I think erosion can happen very slowly and very deliberately. The problem that I have is with this office being fulfilled by someone who has a double responsibility.
The first responsibility is to take care that the laws be faithfully executed. He is the only person in the country, in the world, who has that compact with the American people. The other, of course, is his oath to preserve, protect and defend the Constitution. He is the national role model, he is the man, he is the flagbearer in front of our country. He is the person, his office is the person every parent says to their little child, "I hope you grow up and be President of the United States some day.'' We do nothing as important as raising our kids, and the President is the role model for every kid in the country.
When you have a President who lies and lies and lies under oath and that is the key phrase, "under oath.'' I don't care about his private life or matters that are not public. But when he takes an oath to tell the truth, the whole truth, nothing but the truth and then lies and lies and lies, what kind of a lesson is that for our kids and our grandkids? What does it do to the rule of law?
Injustice is a terrible thing. The longer you live, the more you can encounter it. Injustice, abuse, oppression, and the law is what protects you; the law, having resort to an objective standard of morality in action. And when you are sworn to take care that the laws are faithfully executed, how do you reconcile the conduct of perjury and obstruction of justice with that obligation?
I have a suggestion. Let's just tear it out of the Constitution. Tear out that "take care to see that the laws are faithfully executed.'' It is wrong. It is an example we are setting for millions of kids that if the President can do it, you can do it. What do you say to master sergeants who have their careers destroyed because they hit on an inferior member of the military? We are setting the parameters of permissible Presidential conduct for the one office that ought to gleam in the sunlight. And the kids, that is what moves me, the kids.
The CHIEF JUSTICE. This question is from Senators Nickles, Warner, Crapo, Helms, Inhofe, and Thurmond to the House managers:
Mr. Manager BUYER. Mr. Chief Justice, I would like to thank the Senators for the question, because I believe it is also insightful.
The question of double standards or establishing lower standards, I believe, is extraordinarily important. The defense asserted and it is hard for me to believe but they are asking you to set a higher standard for judges and a lower standard for a President who nominates them to you, asking you they think that we can set a higher standard for law enforcement, yet establish a lower standard for the Chief Executive or the chief law enforcement officer that has the duty to faithfully see that the laws are executed; set a higher standard for military personnel, and then a lower standard for the Commander in Chief who must make the painful decisions to send them into battle.
Now, the precedents in impeachment trials here in the Senate, the judgment of the Armed Services Committee and the Senate regarding the standards for promotion, have been otherwise than that which Mr. Ruff has asserted.
We must confront the fact that the President is the Commander in Chief. And I believe that it is perfectly acceptable of the American people to demand of the military the highest standard, which also means that those of whom find themselves in positions of responsibility in the Pentagon of whom are in civilian leadership must also live by such exemplary conduct and standards. The high character of military officers is a safeguard of the character of a nation.
The Senate, who must ratify the officers' promotion list, has repeatedly found that anything less than exemplary conduct is therefore unworthy of a commission or further promotion. I recall when I first came to Congress in 1992, there were many making a big to-do over Tailhook. Remember? And it was serious. There are still remnants around of Tailhook because there are still those who are screening the officers' promotion. If you were within 100 miles of Tailhook, look out for your career. That needs to be put to bed.
Then I was given a duty to ensure that after Aberdeen broke and the sexual misconduct in the military whether it was at Fort Jackson, Aberdeen, or at other places I spent 18 months out on the road to ensure that the policies of the military were fair and the treatment of equal dignity in the workplace among men and women. We cannot forget that.
You see, we also must recognize and must be candid with the harsh reality that the officers and NCOs are human and not without fault, folly, and failings. I believe, though, it is the aspirations of high ideals that are important for each of us, but more so to the military in order to keep the trust and the public faith of the military. You see, a soldier, a sailor, an airman or marine is prepared to lay down his or her life to defend the Constitution. And it is the devotion and the fidelity to the oath without mental reservation that is the epitome of character.
Now, the President is not and should not be subject to the Uniform Code of Military Justice. And I concur with Mr. Ruff when he made that point. And the President is not an actual member of the military. But we have a unique system in the world. We have that civilian control of the military, and it works. But we also must recognize and be cognizant that the President, however, is at the pinnacle, he is at the top of the chain of command. And that is what I learned about, being on the road for 18 months, and How do we make corrections? and How do you set the proper dignity in the workplace?
It doesn't matter if it is your own office or, in fact, if you are the President as Commander in Chief. Whoever leads you sets the tenor of those who must follow. You see, the message is that the military personnel do look to the Commander in Chief to set the high standard of moral and ethical behavior. The military personnel are required to set a high standard of conduct in order to set the example to those they lead. Adherence to high standards is the fabric of good order and discipline. When military leaders fall short of this ideal, then there is confusion and disruption in the ranks. And today many do see a double standard. There is a double standard because the Commander in Chief has allegedly conducted himself in a manner that would be a court-martial offense for military personnel having been alleged of the very same thing.
The President's actions have had an intangible and coercive impact upon military personnel. To turn a blind eye and a deaf ear to it would be shame on us. The question soldiers and sailors ask is: I took an oath to swear to tell the truth. And I also took an oath to uphold the Constitution. How can this President take the same oath and not be truthful and remain in office? If I were to have done what the President did, I would be court-martialed.
You see, we also have to recognize that each of the services are recruiting young people all across the Nation. At boot camp they infuse these young people with the moral values of honor, courage and commitment, and they're teaching self-restraint, discipline and self- sacrifice. Military leaders are required to provide a good example to those young recruits, yet when they look up the chain of command, all the way to the Commander in Chief, they see a double standard at the top. Again, it is the President that sets the tone and tenor in the military, just as he does for law enforcement.
I believe the President has violated this sacred trust between the leaders and those of whom he was entrusted to lead. I also spoke in my presentation that it was the President's self-inflicted wounds that have called his own credibility into question not only in his decisionmaking process, but with regard to security policies.
The CHIEF JUSTICE. The Chair has the view that you have answered the question.
Mr. Manager BUYER. Thank you, Mr. Chief Justice.
The CHIEF JUSTICE. This is a question from Senators Torricelli and Kohl to the President's counsel:
In evaluating the case against the President, should the Senate take into account: (a) the partisan nature of the proceedings in the House, or (b) the public's "lack of confidence'' in the proceedings thus far?
Mr. Counsel KENDALL. Mr. Chief Justice, I think that this body has got to take into consideration what brought these articles here, and that is the action both of the independent counsel and the House of Representatives. I think when fairly considered, when you look at the actions of both, you find an absence of fairness and bipartisanship.
The independent counsel investigated this case for 8 months. It developed every bit of evidence it could that was negative, derogatory, or prejudicial, and it put them into those five volumes. It did not pursue exculpatory leads. It did not follow up evidence that might lead to evidence of innocence. And it downplayed, when it came to write the referral, significant testimony which was exculpatory or helpful.
I think the independent counsel's process was really epitomized by Ms. Lewinsky's statement that nobody asked her to lie or had promised her a job for silence. You see, the independent counsel didn't bring out that testimony. In fact, it came out when the independent counsel was through examining Ms. Lewinsky in the grand jury. I want to read you a very short part of that, page 1161 of the appendix.
Independent counsel prosecutor says, "We don't have any further questions,'' and a grand juror pipes up, "Could I ask one?''
Here is what Ms. Lewinsky says:
Now, we requested the independent counsel, before he sent the referral to the House of Representatives, for an opportunity to review that. We were denied this.
I think if you compare what happened here with what happened in 1974 when Special Prosecutor Jaworski sent a transmission of evidence to the House Judiciary Committee, the comparison is very revealing. Then Special Prosecutor Jaworski sent only a road map of the evidence, a description of what was in the record. Judge Sirica reviewed that at a hearing where White House counsel were present. Judge Sirica then said it was a fair, impartial summary and transmitted it on to the House Judiciary Committee. Here, without review either by the presiding judge or the grand jury, a referral was sent to the House that was a one- sided, unfair prosecutorial summary.
When the House managers speak of the need for discovery, they have no such need. Everything prejudicial that could be found through an unlimited budget and seemingly endless investigation has been found and put there, tied up with a red ribbon for you.
In terms of bipartisanship in the House, I think that speaks for itself. I don't think this was a bipartisan process. I don't think it was a bipartisan result. I think, though, it rests with this body to try the case. It is clear under the Constitution that this body has the power, the sole power, to try impeachment. The Chief Justice in the Nixon case made that very clear.
I am not going to comment on the independent counsel's assistance to the House manager with Ms. Lewinsky. I think that is for you to decide whether that is consonant with how you decide the case ought to be tried. But I think that the presentation of the articles to this body has been neither fair nor bipartisan.
Mr. Manager HYDE. Mr. Chief Justice, Members of the Senate, I welcome this opportunity to fill in a considerable gap in the record.
Mr. Counsel Kendall said earlier today or perhaps yesterday it was yesterday "We never had a chance to call witnesses ourselves, to examine them, to cross-examine them, to subpoena documentary evidence, at no point in this process.''
On October 5, 1998, the House Judiciary Committee passed House Resolution 581 by voice vote, the impeachment inquiry procedure, which included the right to call witnesses for the President.
On October 21, the House Judiciary Committee staff met with Mr. Ruff, Mr. Kendall, and Mr. Craig. At that time, the Judiciary Committee staff asked the White House to provide any exculpatory information, provide a list of any witnesses they wanted to call, without result.
On November 9, the House Judiciary Committee wrote to Messrs. Ruff, Kendall, and Craig and again informed them of the President's right to call witnesses.
On November 19, Independent Counsel Starr testified 12 hours before the House Committee on the Judiciary. President's counsel was given the opportunity to question the independent counsel. He did not ask a single question relating to the facts of the independent counsel's allegations against the President. Now, the Democrats have Mr. Kendall, they had Abbe Lowell; we had Dave Schippers. That is not an invidious comparison.
On November 25, I wrote a letter to the President asking the President, among other things, to provide any exculpatory information and inform the committee of any witnesses it wanted to call, without success.
On December 4, two working days before the presentation of the President to the Judiciary Committee, counsel for the President requested to put on 15 witnesses. The White House was allowed to present all 15 witnesses. Not a single one of those was a fact witness.
Lastly, I quote from a letter from Mr. Kendall to Mr. Bittman. It is in volume 3, part 2 of 2, page 2326.
The CHIEF JUSTICE. This question is from Senator Leahy to the White House counsel:
Mr. Counsel RUFF. The question, in virtually every respect, speaks for itself.
But I would make this point because I think it fleshes out a bit my earlier answer and responds in some fashion to the argument made by the managers on this very issue. I was probably too lawyerly, as is my wont, in responding to the earlier question on this issue by Senators Warner and Thurmond, because I think the one point that needs to be made in the context of Senator Leahy's question which goes to the leadership of the Secretary of Defense and the issue of what it means to undertake the removal of a President, the distinction that I think we all need to hold on to that I probably glided over too rapidly in my earlier answer, is that the President of the United States is elected by the people of the United States.
He appoints the Secretary of Defense; he appoints the officers in the military; he appoints the judges. And the Senate plays a role in that process by approving his choices, or occasionally not approving his choices. But there is only one person who is put in his job with the voice of the people, and however we may be concerned, as rightly we should, if that person oversteps the bounds either of his office or his personal conduct, to say that there is some one-to-one, or any other number you can think of, comparison between the impact of enforcing the law on those civilian and military personnel who serve our country and the very different question of whether the voice of the people will be stilled by removing the President is the point on which I think this body needs to focus.
The CHIEF JUSTICE. This question is from Senators Kyl and Mack to counsel for the President:
Mr. Counsel CRAIG. Senator, it is true that he testified that he tried to be truthful in the Jones deposition, that it was his purpose to be accurate in the Jones deposition. He tried to navigate his way through a minefield without violating the law, and believes that he did. There is no statement in that testimony in the grand jury that reaffirms, ratifies, and confirms all of his testimony in the Jones deposition.
Now, we would be happy to take questions and get responses to you, consult the President, if you would like to submit them.
The CHIEF JUSTICE. This is a question from Senator Murray to the White House counsel:
Mr. Counsel KENDALL. Mr. Chief Justice, Ms. Lewinsky has made no such claim. What happened between the President and her was improper, but it was consensual. To say that does not excuse it or sugarcoat it or justify it, but it does, I think, put it in the proper context. She has never claimed that she has any evidence at all relevant to sexual harassment by the President. When the President and I went through this on Thursday in respect to the obstruction of justice allegation, about the President stating that she could file an affidavit. The President and Ms. Lewinsky reasonably believe that she could have filed a limited but truthful affidavit.
And I think you have to look to the fact that the Jones case was not a class action. It was a suit only about what Ms. Jones claimed happened in May 1991 in a Little Rock hotel room. The December 11 ruling on discovery was a ruling not only on admissibility, but discovery. The President believed that an affidavit a truthful affidavit might be successful not that it would, but that it might be.
Now, in filing such an affidavit, in preparing it, no particular form was necessary. There was nothing to dictate what had to go in and what had to go out of it. There were many witnesses on the witness list. The end of discovery was approaching, and there was at least some chance, they thought, that a factual affidavit, which was limited, might accomplish the purpose. And I think this is confirmed by the fact that when Judge Wright considered whether to order Ms. Lewinsky's deposition, she issued a ruling on January 29 saying that the deposition would not go forward because evidence from Ms. Lewinsky would not be admissible at the Paula Jones trial because it was both irrelevant to the court allegations and it was inadmissible as extrinsic evidence of other facts.
So I think that Ms. Lewinsky had nothing whatsoever to offer on the critical issue in the Paula Jones case, which was an issue of sexual harassment.
The CHIEF JUSTICE. This is a question by Senator Shelby to the House managers:
Mr. Manager HYDE. Mr. Chief Justice, Members of the Senate, there are various options. It is really a misdirected question, if I may say, to ask us to suggest the consequences of solutions to this dilemma that we are in. I think the beauty and that is not the word I think the advantage of proceeding with the articles of impeachment is it is consonant with the Constitution. It is simple; it is clean: either guilty or not guilty.
The consequences of that verdict, of course, are up to any individual who casts a vote. Now, I have heard the word "censure'' sometime before. You gentlemen and ladies do anything you want to do. It is your power, it is your authority, it is in your yard, but you have to deal with the Constitution, no matter what you do.
You have a problem of a bill of attainder, a problem of the separation of powers, and you have a problem that any censure, to be meaningful, has to at least damage the President's reputation; and that becomes, in my judgment, a bill of attainder, but that, again, is up to you. The consequences, I don't think, will harm us, whatever you do. We have done our best. We have lived up to our responsibility under the Constitution, and all we ask is that you live up to your responsibilities under the Constitution and give us a trial. I am sure you will.
The CHIEF JUSTICE. This is a question to the President's counsel from Senator Levin:
Mr. Counsel RUFF. I think Senator Levin's question goes to the heart of much of what we have been saying for the last few days. If, in fact, you look at the five volumes stacked up in front of my colleague, Mr. Kendall, you will see Ms. Lewinsky say not just once, but many times, in essence: I was never told to, never encouraged to lie, never traded an affidavit for a job, never did any of the things that lie at the very heart of the managers' case. And so what do we have, then? We have the managers trying to snatch a bit of evidence here, a bit of speculation there, or a bit of extrapolation over there, and say, well, she really didn't mean it when she said several times quite directly, "Nobody ever told me or encouraged me to lie.''
It is possible, of course, whenever one deals with circumstantial evidence, to make reasonable leaps from that evidence to some viable conclusion. But I think most courts that we are familiar with and those of you who practice law are familiar with would have a good deal of difficulty in concluding that if I take a little bit here and a little bit there and a little bit over there, pull them all together into some vast speculation about what was really in someone's mind, and on the other side I have the person saying what is in her mind and saying the opposite, I don't think that case would ever get to the jury.
And maybe it is one of the things that worries me just a little bit about the normal, everyday we do it all the time in conference between the managers and the independent counsel and Ms. Lewinsky that maybe in that setting, to the independent counsel gently patting Ms. Lewinsky on the back and telling her it is time to cooperate, maybe the message will become closer to their side and their speculation, don't stay where you were, which is what you told the grand jury, the FBI, and us under oath and not under oath on multiple occasions, which is, indeed, "Nobody told me to, nobody encouraged me to lie.''
The CHIEF JUSTICE. This is a question from Senator Bond to the House managers:
Mr. Manager HUTCHINSON. Thank you, Mr. Chief Justice.
There are numerous evidences in the record to show that the President was not surprised about the questions pertaining to Monica Lewinsky at the January 17 deposition. First of all, in regard to the affidavit testimony of Monica Lewinsky I believe it was January 6 5th or 6th is that she discussed that with the President, signing that affidavit, and the content of the affidavit. That is whenever he made his statement, "I don't need to see it. I have seen 15 of them.''
Again, we don't know what he is referring to in reference to that "15.'' But clearly, according to Monica Lewinsky's testimony, she went over the contents of that, even though she might not have had it in hand, with the President.
Also, circumstantially, there is a conversation between Mr. Jordan and the President during this time.
But in addition, let me just recall something I made in my presentation that a few days before the President's deposition testimony, that it was Michael Isikoff of a national publication called Betty Currie and asked about courier records on the gifts. This startled Betty Currie, obviously, because the gifts at that point were under her bed. As she recalled, she probably told the President that. And then second, she went to see Vernon Jordan about that issue.
All of that leads you to believe, clearly, that the President fully knew that when he went into the deposition on January 17, that he would be asked time and time again about the specifics of his relationship with Monica Lewinsky.
So I think that addresses part of that question.
Let me remark on what Mr. Ruff just said I am just constantly amazed about our effort to interview witnesses, because yesterday Mr. Ruff I believe it was; it might have been Mr. Kendall; excuse me if I have gotten the attribution wrong but criticized us, saying they want to call witnesses but they have no clue what these witnesses would say. Do you recall that? That was the argument yesterday. And so, if we make an effort to determine what these witnesses would say, then we are criticized for trying to find out what they would say.
So I think that again it is more convenient to talk about what the managers are doing, what the process is, rather than the facts of obstruction.
The CHIEF JUSTICE. This is a question to the White House counsel from Senator Kennedy:
Mr. Counsel CRAIG. Mr. Chief Justice, thank you for that question.
Children what do we tell the children? Well, ladies and gentlemen of the Senate, that is not an academic question for me and for my wife. I assume that is the case for many, many families all over this country. We happen to have quite a few children, and they are very young; they are under 12. And we talk about what is going on here. We talk about how important it is to tell the truth, and we talk about how wrong it was for the President of the United States not to tell the truth. And we think that we have learned a lot by going through that process. We have talked about what President Clinton did and why it was wrong.
With all due respect to the chairman of the House Judiciary Committee, I and my wife and I don't think many parents when they raise their children rely every day on messages or resolutions from the Congress of the United States to tell them that it is important to teach children the importance of truth telling.
I am a little bit disappointed in the inference of the argument that those of us who oppose impeachment, for the reasons that you understand, somehow are sending a message that it is OK to kids not to tell the truth. I am a little bit disappointed in that argument, because I don't think that is the way the parents of this country feel. That is certainly not the way I feel. And I don't believe that impeachment is a question of what you tell your children about truth telling. Of course you tell your children to tell the truth. Of course you tell your children the difference between right and wrong. I am surprised that it is an issue here.
The second part of your question, Senator: I went through that House of Representatives experience, and I must say that I was disappointed in it, because we had been promised bipartisanship. When the Office of Independent Counsel sent its referral to the House of Representatives, White House counsel did not have access to that document before it was released to the world. When the Office of Independent Counsel sent its 60,000 pages, 19 boxes of evidence, to the House of Representatives, we were not given access, the way Members of the Judiciary Committee were, to all that material. We were given access to a very limited amount of material in the course of that process. In fact, much of that material we never had access to on behalf of the President.
We were disappointed that there was no actual discussion of the constitutional standards for impeachment before they went forward to vote on an impeachment inquiry. We thought that was the cart before the horse.
We were disappointed and we regretted that grand jury materials provided with promises of confidentiality were dumped into the public with salacious material, unfiltered by the House of Representatives and the Judiciary Committee, and we saw party line vote after party line vote after party line vote over and over and over again in the Judiciary Committee. We were disappointed that the depositions went forward without our participation. We were disappointed there was no definition of the scope of the inquiry. We were disappointed that there was no term of time, no limitation on either the scope or the time of this inquiry. And we were disappointed that there was no adequate notice of the charges.
There were two events that happened near the end of this process that I think were particularly disappointing to us. One was that while the debate was underway on the House floor, Members of the House of Representatives were taken into the evidence room and shown evidence that was not in this record, that had not been included in the discussion in the House Judiciary Committee, that had never been shown to counsel for the President, that was not in the referral and became a factor in the decisionmaking at least of some Members of the House unfairly so, I think.
And finally, we were disappointed that the Members of the House of Representatives were denied the right and the opportunity to vote for censure. They were promised the right to vote their conscience. They were told they could vote their conscience. And if they had been given that right to vote their conscience, we may not be here today. We might have had the resolution of censure and this thing might have been resolved, and that was the greatest disappointment of all.
The CHIEF JUSTICE. This is a question from Senators Bennett, Brownback, Campbell, Hagel, Roth, Specter and McConnell to the House managers:
Mr. Manager BRYANT. Mr. Chief Justice, I know there are several, probably not only at our table, but all across this Senate, who have had some experience somewhere in prosecution of cases. I would just briefly say that and I think it has probably been said very well today more eloquently than I will say it, not only from some of the people on our side, but even some of the people on the President's side have talked about this same concept of justice and the rule of law it is so important in our system of justice that the American people have confidence in that.
And one of the ways that I found in my experience that confidence sometimes suffered were phone calls that occasionally you would receive where there had been an allegation that someone in an elected office or some public official in particular had, allegedly again, committed a crime or perhaps been charged with a crime with allegations of coverup because of who that person was there was not equal justice out there, people were being treated differently and specially. And that happens, that comes with our territory. We are very visible people. Certainly the President of the United States is the most visible of us.
As I said in my opening remarks, he is a role model for many people. And certainly when these kinds of allegations come up against the President, people raise these kinds of thoughts and complaints.
As a prosecutor, I would find this type of charge particularly of concern not only because of the perjury, which is so important because, as I said earlier, too, truth underpins our whole system, but I find it equally compelling as a prosecutor that a person of this visibility, of this responsibility not only commits a crime himself, but he brings someone else into that. He ensnares another person, actually other people into this, the coverup, the obstruction part Monica Lewinsky, Betty Currie, Vernon Jordan, all the White House people that we have talked about. He brings other people into this and causes other people to commit crimes. I would view that even more seriously because of the fact that he made other people commit types of crimes. And because of that, I think as a prosecutor, were this another person, a John Doe of some visibility, a local district attorney, a local mayor or someone like that, there would be no doubt that the allegations would have to go to court.
And I might add in line with this that we have heard of this selecting the President out of this process by saying, well, we should not consider him like we would a Federal judge or like a general that we are talking about maybe promoting to head the Joint Chiefs of Staff or a captain for promotion to major or really anyone else here. It almost seems that yes, he is different, but it almost seems that we want to treat him like a king because he is the only person we have got here, and because he is the only one, we can't look at him like a thousand judges or 200 generals or other public officials.
I think that is a fallacious argument. If the facts are there, no matter if this man is the President, to me that is what the Constitution is about. I think they set up this process to avoid a king and a kingdom.
I will yield time to Mr. McCollum.
Mr. Manager McCOLLUM. I will be much briefer in answering that question, Mr. Chief Justice.
I served as a military judge advocate for 4 years on active duty, 20 more years in the Reserves. I was a prosecutor, defense attorney and military judge. I think this is a very compelling case on the evidence. I would never hesitate to take this to trial if I were prosecuting the crimes of perjury, obstruction of justice, or any of the military offenses that might be included in here. But just on the criminal charges which are in the UCMJ, I would certainly do so if given the opportunity for all the reasons and then some that Mr. Bryant gave.
Mr. Manager BARR. Mr. Chief Justice, to me this is not a hypothetical question in any sense of the word. As a United States attorney under two Presidents, I had the opportunity not only to contemplate bringing such cases based on the evidence and the law but actually having the responsibility of carrying those cases out and prosecuting them, including a case that probably cost me a primary election in the Republican Party for prosecuting a Member of Congress for precisely the activity which brings us here today; that is, perjury, misleading a grand jury.
So the answer to the question, Mr. Majority Leader, is not only yes but absolutely yes.
The CHIEF JUSTICE. Mr. Hutchinson.
Mr. Manager HUTCHINSON. I know we have run out of time. The facts and law support it, and the answer is yes. And may I add that Mr. Rogan who has certainly prosecuted, Mr. Lindsey Graham, and Mr. Gekas, all would if you would like to join in that. Otherwise, we all would affirm that the answer is yes.
The CHIEF JUSTICE. This is a question to the President's counsel from Senators Boxer and Johnson.
Mr. Counsel RUFF. I suppose the one quote that has been heard most often throughout these proceedings in the House and in this body is Theodore Roosevelt's, and I won't repeat it except to go to the heart of this question. The fact that we are having this trial in this Chamber, the fact that we had an impeachment proceeding in the House, is itself part of our rule of law. The President is immersed in the application of the rule of law at this very moment. And the rule of law, as I think my colleague, Ms. Mills, said, is neither a sword nor a shield, depending on your perspective. We are all subject to it and we live with its outcome, if it is fair and is consistent with the system of justice that we have developed in the last 210 years.
And, so, the verdict here, if it is "not guilty'' as I trust it will be, or if this trial is ended appropriately through some other legal motion or mechanism, as long as it is done within the rule of law, will have met all of our obligations. And most importantly, it will have ensured that the President is treated neither above nor below.
But certainly the one issue that is raised in this question is important to focus on, because this is not a situation in which the President walks away scot-free no matter what happens, not to mention the personal pain and the pain that has been suffered in going through this process. The President has said, and I have said on his behalf, that he will not use his powers, or ask anyone else to use their powers, to protect him against the application of the rule of law. Moreover, just in case it has slipped anyone's mind and it has occasionally been misstated in other forums the statute that has allowed the independent counsel to pursue the President for the last 4- plus years specifically provides that he retains jurisdiction over the President for a year after the President has left office.
So there can be no argument that, oh, this will just fall into the cracks, or this will disappear into the ether somewhere. The President will be at risk. We trust that reasonable judgments will be made and a determination will be reached that it is not appropriate to pursue him. But that, too, will be pursued under the rule of law to which he is subject.
The CHIEF JUSTICE. This is a question from Senators Campbell, Hagel and Specter to the House managers:
Mr. Manager McCOLLUM. Mr. Chief Justice, that question goes to the heart of what we are here about today. We have had a great deal of discussion about a lot of peripheral questions and issues, but the fact of the matter is, the simplest portion of this deals with grand jury perjury, and I assume the question principally is directed to the first of four points under the grand jury perjury article, because, for example, the second point with respect to the President having the goal or the intent of being truthful which he said he did in the grand jury in the Jones deposition there isn't a "he says, she says'' question.
That is just very simple. The President lied multiple times in that civil deposition, and if he said in the grand jury to the grand jurors, "My goal was to be truthful,'' it is pretty self-evident that that was a lie and he perjured himself. So that is not a "he says, she says.''
But the question that the counsel over here has tried to bring up several times, saying the part with respect particularly to Monica Lewinsky saying that the President touched her in certain parts of her body which would have been covered by the Jones definition of sexual relations, and the President who said explicitly in his grand jury testimony, "I didn't touch those parts,'' and, "Yes, I agree that would have been and is part of the definition of sexual relations in the Jones case'' that is, whether you believe her or him, and they say that is a "he says, she says,'' and it is not.
But even if it were, you could listen to it and accept it. I think there is some confusion about the law. The law of grand jury perjury does not require two witnesses. Nor does it require the corroborating testimony of anybody else. It does not. That is why, in 1970, it was changed, and most prosecutions today for perjury, including people who are in Federal prison today for perjury in civil cases for lying about matters related to sex and there are several, a couple of whom testified before us in the Judiciary Committee during our process and hearings are based upon that 1970 law that does not require any corroboration.
In this case, you have Monica Lewinsky, who is a very credible witness by other reasons, so that you don't even have to get to those corroborating witnesses on those points. No. 1, she was under immunity under the threat of prosecution when she testified that way. No. 2, she has consistent statements throughout, many times over. She didn't say she had sexual intercourse with him. She could have made that up, but she didn't. Everything she says is believable about that portion of it. And third, and not last in all of this, is that she did make very contemporaneous statements to at least six other people who were her friends and counselors, describing in detail exactly the same thing she testified to under oath before the grand jury in this respect.
Now they say, the counselors here, you can't consider that under the Federal Rules of Evidence because that is, presumably, hearsay. Well, there are at least three exceptions to that hearsay rule which could be brought out in a courtroom. They have gone about trying to carefully say we have never said that Monica Lewinsky lied.
I remember, I think it was Mr. Kendall or maybe it was Mr. Craig up there a little earlier, saying when asked that question, "Did she lie in this instance or in any other?'' and they say it is just a different version of the truth. If she is saying it as explicitly as she is about this nine times or four times or whatever, and the President is saying I never did that, I don't see how they can fudge around, challenging her truthfulness and credibility.
That is what they have been doing. And in any courtroom I have ever been in, once that has occurred you can certainly bring in her prior consistent statements, and you don't even have to go with the rules of evidence on this. You are not bound by those rules of evidence. And common sense says she had no motive to be lying to her friends in those numerous telephone conversations or her meetings with her counselors when she described in detail these things the President says he didn't do, because all of those statements occurred, all of those discussions occurred before she ever was knowingly on a witness list or likely to have to testify in any other way.
She is very credible. Those prior consistent statements are very believable, and I submit to you they would be admissible in a court in the kind of contest that would be involved in a situation like this. It goes to the very heart of what we are here about grand jury perjury, the simplest, clearest one. The President lied. Monica Lewinsky told the truth about it. And it is profound and it is important and it is critical to this case. And that is the principal one of the perjuries that we have been drawing your attention to because it is so clear. Thank you.
The CHIEF JUSTICE. This is a question from Senator Dorgan to counsel for the President:
Mr. Counsel RUFF. This, of course, takes us back to the very heart of the argument that raged for a small time here yesterday and on previous days, the notion that the House of Representatives viewed itself during the month of December as merely I won't even say that it rose in their mind to the level of an accusatory body that we would think of when we think of the grand jury, but to a body whose job it was, as one of the managers said at one point, simply to find probable cause to believe that the President had committed these acts.
Perhaps there has been some extraordinary transposition from the mood and the tenor of the comments made during those days when the Judiciary Committee was doing its work to the days when these managers have appeared in the well of the Senate, something that has transformed the mere probable cause screening finding that they allegedly viewed as the role of the House and the Judiciary Committee into the certainty that you hear today.
It is a good question, as to how, then, given the role they saw for themselves, they could go so far, not only to seek the removal of the President but, indeed, to add in all their prosecutorial vigor something that has never been sought before, a bar against holding any future office, at the level of certainty that they must have achieved given the standard that they held themselves to. What happened between December 19 and today that allows these managers to come before you not saying, "Well, we were certain then and we're more certain now,'' or "We only found probable cause back in 1998, but in 1999 we are sufficiently certain that we ought to shut down the public will as expressed in the elections of 1996.''
I haven't yet found an answer to that question.
The CHIEF JUSTICE. This question is from Senators Bond, Brownback, Campbell, Hagel, Lugar, Hutchison of Texas, Roth and Stevens. It is directed to the House managers:
The question is also from Senators Specter and McConnell.
Mr. Manager HUTCHINSON. Thank you, Mr. Chief Justice. First of all, why is obstruction of justice important to begin with? I think back on an opportunity I had at a hearing once to question a member of the Colombian drug cartel. I asked him: "What is the greatest weapon that law enforcement has that you fear?''
His answer was very quickly, "Extradition.''
I said, "Explain. Why is extradition feared?''
He said, "Because in Colombia, you can fix the system, but in America you can't.''
That is why I think the obstruction of justice charge is so important to the administration of justice. Money, position, power does not corrupt, should not corrupt the administration of justice.
The question is, Where has the President attacked, counselors attacked credibly the allegations of obstruction? The first one is that the President personally encouraged a witness, Monica Lewinsky, to lie. This is on December 17 at 2 a.m. in the morning when the President calls Monica to tell her that she is a witness on the list 2 a.m. in the morning. At that time, of course, she is nervous, she is a witness and asked, "Well, what am I going to say?'' And the President offers, according to Monica Lewinsky, you can always say you came to see Betty or you came to deliver papers.
The President's counselor attacked this by saying, "Well, remember what Monica said, 'I was never told to lie.' '' I refer you to a Tenth Circuit case, United States v. Tranakos, Tenth Circuit, 1990. The law is that the request to lie need not be a direct statement. As the court held:
That is common sense. That is logic. That is what a jury applies common sense. And here, of course, in this case, Monica Lewinsky testified that she was told, in essence, to lie. The President didn't say, "Monica, I need you to go in and lie for me.'' He told her the cover story in a legal context that she could use that would cover for him that, in essence, would be a lie. We all know that is what it is.
Of course, the President says well, he denies that. Of course, he said, I never told her to use the cover stories in a legal context, directly in conflict, but clearly the President's counselors have not attacked that obstruction of justice.
The second one is the jobs and the false affidavit. They say there is absolutely no connection in these two, none whatsoever. Of course, I pointed out the testimony of Vernon Jordan who testified it doesn't take an Einstein to know that whenever he found out she was a witness, she was under subpoena, that the subpoena changed the circumstances. That is the testimony of Vernon Jordan. They say there is no connection. Vernon Jordan, the President's friend, says the circumstances change whenever you are talking about getting a job with somebody who is also under subpoena in a case that is very important to the President of the United States.
Of course, Vernon Jordan also indicated the President's personal involvement when he testified before the grand jury in June. He said he was interested in this matter: "He'' referring to the President "was the source of it coming to my attention in the first place.''
He further testified: "The President asked me to get Monica Lewinsky a job.''
The President was personally involved in the obtaining of a job. He was personally concerned about the false affidavit, and Vernon Jordan acknowledges that when those are combined, the circumstances are different.
The third area of obstruction is tampering with the witness, Betty Currie, on January 18 and January 20 when the questions were posed after the deposition. The President's counselor challenged this and said, Well, she wasn't a witness. Even the Jones lawyers never had any clue that she was going to be a witness in this case. The President couldn't know that she was going to be a witness.
They hoped that we would never find the subpoena, because Mr. Ruff made that statement early on, which he very professionally expressed regret that he made that misrepresentation, but we found the subpoena. We found the subpoena that was actually issued a few days after the deposition for Betty Currie. She was a witness; she was not just a prospective witness. She was there, she had to be ready to go and the President knew this and the Jones lawyer knew it. So that stands. The pillar of obstruction stands.
The false statements to the grand jury that has been covered. There has never been any holes that have been poked into that, but it was to continue the coverup of the false statements that were made in the civil rights case.
Another area of obstruction was December 28 when the gifts were retrieved, and this has been challenged. I will admit, as I always have, that there is a dispute in the testimony. But I believe the case is made through the circumstances, the motivation, the testimony of Monica Lewinsky as to what Betty Currie said when she called and the corroborating evidence. I don't believe they have poked a hole in that. I believe it stands. We would like to hear the witnesses to make you feel more comfortable in resolving that conflict and determine the credibility of those witnesses.
But the gifts that were subpoenaed were evidence in a trial; they were needed in a civil rights case. The President knew they were under subpoena; he had the most to gain, and they were retrieved. And I believe the testimony indicates that it was based upon the actions of Betty Currie that would have been directed by the President.
There are other areas of obstruction, including the President allowing his attorney, Robert Bennett, to make false representations to the Federal district judge in the deposition. The President's defense is that there is no proof whatsoever that he was paying any attention. We offered the videotape that shows he is believed to be looking at the attorney, but we would offer a witness in that regard to show that he was attentive. That is simply something that can be substantiated.
We believe that you can evaluate that, that he was paying attention, but that is an element of obstruction because he was allowing his attorney to make a false representation to the court that was totally untrue, that would aid in the coverup and that was presented.
The CHIEF JUSTICE. Mr. Hutchinson, I think you have answered the question.
Mr. Manager HUTCHINSON. I thank the Chief Justice.
The CHIEF JUSTICE. This is a question from Senator Levin to counsel for the White House:
It took some doing yesterday to get the House managers to finally acknowledge that the court order was not issued in the morning, but in the afternoon of December 11. Why were the House managers so reluctant to make that acknowledgment?
Mr. Counsel KENDALL. Mr. Chief Justice, well, I think they were reluctant to make the acknowledgement because they were in cement due to their trial brief, which at page 20, as the question indicates, said, as to this particular time period after the December 6 meeting, "There was obviously'' there was obviously "still no urgency to help Ms. Lewinsky.'' They thought that they had a chronology that was consistent with the inference of causation. But when you look at the true time of the events, that dissolves.
Now, Mr. Manager Hutchinson used a word repeatedly, a phrase I would like to call your attention to, as he was summarizing the evidence. He used the phrase: "In essence.'' Now, that is another phrase that is kind of a weasel word. When you hear that, it means that the evidence isn't really quite there, but if you look at the big picture maybe you can see what is there "in essence.'' It doesn't work here. It doesn't work because of the evidence.
Just a week ago, Mr. Manager Hutchinson, on this obstruction of justice question, was asked very clearly: "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 he said, "No, I would not.''
Now, I am not going to walk through each and every element that he identified. I think we have repeatedly dealt with them. And I am not going to step on your patience to do that again each time.
I would like to make two points. That is, in terms of encouraging Ms. Lewinsky to lie, were these cover stories an attempt to encourage her to lie? As I tried to indicate, there is testimony in the record that at a certain time in the relation these cover stories were discussed. There is not any evidence, however, from Ms. Lewinsky, the President, or anyone else, that these were discussed in connection with the testimony, in connection with the affidavit. You remember Ms. Lewinsky, when asked if she could exclude that possibility, said, "I pretty much can.''
Now, the testimony that Mr. Hutchinson mentioned with Mr. Jordan on December 19, you remember he quoted Mr. Jordan. He said the discovery of the subpoena at that point changed the circumstances. Well, it did, but just in the opposite way that Mr. Manager Hutchinson would have you infer, because when Mr. Jordan discovered, on December 19, that Ms. Lewinsky had a subpoena, was going to testify in the Jones case as a witness, unless she could get it quashed, he went to her and went to the President to seek assurance that the job assistance he was engaging in could not at any time be said to be improper because of the presence of an improper relationship. Both parties assured him there was no such relationship. This observation by Mr. Jordan cuts just the opposite way.
Mr. LOTT addressed the Chair.
The CHIEF JUSTICE. The Chair recognizes the majority leader.
Mr. LOTT. Mr. Chief Justice, I do have another question I will send to the desk momentarily, but I would like for the Senators to know that we have had some 104 or 105 questions now that have been asked. I believe that is correct 104. Senator Daschle and I conferred. We want to thank the Senators for their participation and their questions. We do want to make it clear we are not seeking questions. (Laughter.)
So don't feel like you need to help us by sending them down. But under your rights as Senators, under the Senate Resolution 16 and the rules we are proceeding under, every and each Senator is entitled to submit a question if he or she feels it is important, but I hope that it will be one that you think really is essential that has not been touched on somewhere already in the answers to the questions and also would hope and that the Record be made clear that we, in a bipartisan way, have tried very hard to make sure that this proceeding here and the question period, and all we have done, has been fair both to the President's counsel and the House managers. And we will continue to work in that vein.
With that observation, and if we do need to continue going forward with questions, we would have to give some consideration of taking a break and going longer, although I had indicated I hoped we could quit at 4. Maybe after this question and, if necessary, one or two more, we could end for the day and then get together and see if we need more time on Monday for additional questions.
I send the next question to the desk.
The CHIEF JUSTICE. This is a question from Senators Cochran, Roth, Campbell and Frist to the House managers:
Mr. Manager CANADY. Mr. Chief Justice, Members of the Senate, I appreciate the opportunity to answer this question. It is an important question. And it is true that counsel for the President are asking that you use a different standard in this case than the standard you have already established, not in just one case but, in fact, in a series of cases involving Federal judges who were before the Senate in the 1980s. There was a succession of three cases in the Senate, all dealing with the question of whether a Federal judge who had lied under oath should be removed from office because the Federal judge had lied under oath. In all three cases, the Senate decided that the Federal judge should be convicted and removed.
Now, the President's counsel have the burden of establishing that those recent and very clear precedents of the Senate should not apply to this case where the President is charged with lying under oath. And they attempt to do that in a number of ways. But I would suggest, as you evaluate their attempt to distinguish away those precedents, that you look first and last to the Constitution.
The Constitution should be your guide. And I would suggest to you that there is nothing in the Constitution which establishes a different standard for the President for any reason. There is not something in the Constitution that says he is subject to a different standard because he is elected. That argument had been advanced. If you look in the Constitution, you simply will not find that. And to argue for a different standard because the President is elected, I would submit to you, is to impose something on the Constitution that is entirely alien to the document itself.
The Constitution contains a single standard for the application of the impeachment and removal power. I have read it before, but I will read it again. Article II, section 4 provides:
Now, reference was made in the question, and reference has been made by the President's counsel, to the good behavior clause. That is found in article III, section 1. That clause does not alter the standard I have just read to you, however. Rather than creating an altered standard for removal of Federal judges, the good behavior clause merely establishes that the term of office for judicial officers is life.
Now, I wouldn't ask you to take my word for this. Let me refer again to the 1974 report by the staff of the Nixon impeachment inquiry. There they asked the question: "Does Article III, Section 1 of the Constitution, which states that judges 'shall hold their Offices during good Behaviour,' limit the relevance of the. . .impeachments of judges with respect to presidential impeachment standards as has been argued by some?'' That is essentially the question before the Senate now. Their answer was: "It does not.'' It does not. ". . .the only impeachment provision'' they go on to say "discussed in the [Constitutional] Convention and [indeed]. . .in the Constitution is Article II, Section 4, which by its expressed terms, applies to all civil officers, including judges. . .''
Now, I would go on to note, it is very interesting that at the Constitutional Convention, on August 27, 1787, an attempt was made to amend the good behavior clause by adding a provision for the removal of judges by the executive on the application by the Senate and House of Representatives. Now, this proposal, which was offered by John Dickinson, was based on the English parliamentary practice of removal of judges by address, a practice also utilized by several American States. And under this process, judges could be removed for misconduct, falling short of the level of seriousness that would justify impeachment.
Now, the proposal offered by Dickinson was overwhelmingly rejected. It was overwhelmingly rejected by the Convention. Thus, the sole provision for removal and the sole standard for removal is that which I have referred to in article II, section (4).
Now, mention has been made, and I want to respond to this, because mention has been made of efforts of Congress to establish a separate procedure for the removal of Federal judges, a procedure separate and apart from the impeachment and removal process.
Specific mention has also been made of testimony given in 1970 by the Chief Justice, who was then an assistant attorney general, regarding a proposal to establish a separate removal procedure. The testimony given by the Chief Justice at that time related to the constitutionality of the provisions of the bill relating to the removal of judges by methods other than impeachment.
Now, my own view, quite candidly, is that such a removal procedure raises serious constitutional questions serious questions about maintaining the independence of the judiciary. Putting that question aside, and regardless of the standards that might be applied in such a separate removal procedure, it is clear that the single constitutional standard for impeachment and removal would remain the same. That is what is in the Constitution. That can't be changed by any statute or anything set up apart from the constitutional procedures.
Now, one thing I want to say as I move toward concluding my response: It should be recognized that some specific acts might be a breach of duty if done by a judge but not a breach of duty if done by the President of the United States. That is an important distinction that we all should bear in mind. For example, it would be serious misconduct for a judge to engage in repeated ex parte meetings with parties who have an interest in a matter pending before that judge; but it is typical for the President to engage in such ex parte meetings with persons who have an interest in matters on which he will decide. For a judge, such conduct constitutes a breach of duty; for the President, it does not constitute a breach of duty.
The CHIEF JUSTICE. Mr. Canady, I think you have answered the question.
This question from Senator Harkin is to counsel for the President:
How will these witnesses clear up the contradiction?
Mr. Counsel CRAIG. Mr. Chief Justice, Senator Harkin, it is difficult for me to explain how, after you have gotten 19 interviews, 2 grand jury appearances, and 1 deposition to cover that precise territory, any further kind of inquiry along those lines would be of any help.
The House managers have argued that they need to call witnesses for the purposes of resolving inconsistencies, conflicts, and discrepancies in testimony. And they have, in fact, identified Monica Lewinsky in particular as having given testimony in conflict with the testimony of the President, with Betty Currie and Vernon Jordan.
But it would be well to remember that the lawyers for the Office of Independent Counsel certainly are not seeking to elicit testimony that is favorable to the President, that those lawyers have already done a great deal of this precise kind of inquiry at some great length. Those lawyers no friends of the President have already explored inconsistencies, they have already tested memory, they have already laboriously and at great length subjected these witnesses to searching scrutiny, and their work is available for all to see in the record of this case before the Senate today.
Let me be very specific and very concrete. Monica Lewinsky was interviewed by the lawyers for the Office of Independent Counsel or testified before the grand jury on 20 different occasions after Betty Currie and Vernon Jordan had given their testimony before the grand jury. And contrary to the assertions of the House managers, Monica Lewinsky was interviewed six times and testified twice one time before the grand jury and once in a sworn deposition after the President had given his testimony before the grand jury on August 17.
On August 19, she was interviewed by the FBI and by lawyers for the special counsel. She testified before the grand jury Ms. Lewinsky testified before the grand jury on August 20. She was interviewed by lawyers and FBI agents for the independent counsel on August 24. She was interviewed on August 26. She appeared for a deposition held in the conference room of the Office of Independent Counsel on August 26. She was interviewed pursuant to her immunity agreement with independent counsel and FBI agents on September 5. She was also interviewed excuse me; that was September 3. She appeared and listened to tapes with the FBI present on many occasions during the period September 3 through September 6. She appeared and was interviewed by special counsel, independent counsel, on September 7 and September 5 and September 6.
So it raises a question as to whether or not the desire to interview Monica Lewinsky stems from a desire to resolve conflicts that she has with other people, because certainly these occasions gave the lawyers for the independent counsel an opportunity to do so.
I would simply submit that within the bounds of ethical behavior, I am sure, because I respect the professionalism of the House managers, but I would suspect that one of the reasons they want to inquire of Ms. Lewinsky is not to resolve discrepancies and disputes, it is to perhaps challenge her testimony when it is helpful to the President and perhaps bolster her testimony when it is not helpful to the President. The House managers are not neutral investigators, they are neutral interrogators.
It raises questions about what the managers' true purpose is in calling Vernon Jordan and Betty Currie forward as witnesses, what they want to inquire about if they conduct an interview of them. I suggest that this is also a bit of a fishing expedition, looking for evidence that will be damaging to the President.
We are not afraid of witnesses, but we do want fairness, and we don't think it is fair in this process. If you are going to have a real trial, then we want to have a real defense, and to have a real defense requires real discovery and real opportunity to have access to documents and witnesses and evidence that has been in the custody and the control of the House of Representatives, that has never been made available to us, that is in the custody and control of the Office of Independent Counsel, that has not been made available to us.
I suggest, as we have seen from the statements made by the managers to this body yesterday and today about Vernon Jordan suggesting actually suggesting that he did not tell the truth when he testified numerous times before the grand jury, which is an outrageous suggestion, and suggesting, which happened today implying that he destroyed evidence, which not even the independent counsel had suggested, they seek to do nothing more than to attack, attack, attack the best friend of the United States, the President of the United States, and his personal secretary.
That is the reason they want to talk to these people. I think it is an improper reason. It is wanting to win too much. I don't think the U.S. Senate should be part of it.
The CHIEF JUSTICE. This question is from Senators Hagel, Abraham, and Hatch to the House managers:
Mr. Manager McCOLLUM. Thank you, Mr. Chief Justice.
"Methinks thou doth protest too much.'' I think that is what White House counsel has been doing. I don't know why, but they, frankly, don't want witnesses. They don't want what you normally have in a trial. We can paint this with any kinds of colors you want to have, but a trial without witnesses, when it involves a criminal accusation, a criminal matter, is not a true trial; it really isn't. It is not what I think of, and I guarantee it is not what any of my friends sitting over here who have been counsel, prosecutors and defense lawyers, think of. It is remotely conceivable, but certainly not where you have had the inferences and the conclusions that we draw logically from the entire sequence of events that are painted from the very day when the President got word of Monica Lewinsky being on the witness list, and all the way through his testimony in the Jones case, all the way through the grand jury testimony, when they challenge every inference that you should logically draw from the record, and then suggest that, oh, but we should not have anybody in here; so you who are going to judge ultimately whether our representations are persuasive or not about those inferences, whether you should be able to judge and I think you should what the witnesses actually are saying.
I will give you one illustration. I don't know how many times two or three times I put up here on the board, or I have said to you and I know a couple of my colleagues said to you that during the discussion with regard to the affidavit that Monica Lewinsky had in front of the grand jury, she explicitly said: No, the President didn't tell me to lie, but he didn't discourage me either. He didn't encourage me or discourage me.
You need to have her say that to you. They have even been whacking away at that, confusing everything they can, talking about the job searches at the same time they are talking about the affidavit, what she said here, there, or anywhere else. Witnesses are a logical thing. There are a lot of conflicts that are here.
When we get to the point which we presume we will get that opportunity to do to argue our case on why we should have witnesses, maybe Monday or perhaps Tuesday I think that even though you have a motion to dismiss, we will get that chance we will lay out a lot of these things. There are a lot of them out there. But the point is, overall, you need to have the witnesses to judge what any trier of fact judges about any one of these.
I would be happy to yield to Mr. Graham or Mr. Rogan if they wish neither one. That is fair enough.
Mr. LOTT addressed the Chair.
The CHIEF JUSTICE. The majority leader is recognized.
Mr. LOTT. Mr. Chief Justice, it now approaches the hour that we had indicated we would conclude our work on Saturday. There may still be some questions that Senators would like to have offered. I have talked to Senator Daschle.
One suggestion made is that maybe on Monday we would ask that questions could be submitted for the Record in writing. I think that is a common practice. We don't want to cut it off. At this point, I would not be prepared to do that. But I would like to suggest that we go ahead and conclude our business today, and if there is a need by a Senator on either side to have another question, or two or three, we will certainly consult with each other and see how we can handle that, perhaps on Monday, and even see if it would be appropriate to prepare a motion with regard to being able to submit questions for the Record, which would be answered. We would not want to abuse that and cause that to be a protracted process.
In view of the time spent here in fact, we have had around 106 questions, and we are about 10 hours into this now I think we should conclude for this Saturday. We will resume at 1 p.m. on Monday and continue in accordance with the provisions of S. Res. 16. I will update all Members as to the specific schedule when it becomes clear.
Mr. LOTT. I ask unanimous consent that in the Record following today's proceedings there appear a period of morning business to accommodate bills and statements that have been submitted during the day by Senators. I thank my colleagues for their attentiveness during the proceedings.
The CHIEF JUSTICE. Without objection, it is so ordered.
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