THE IMPEACHMENT TRIAL
Jan. 26: House Rebuttal and Vote on Closed Session
From the Congressional Record
Mr. Manager BRYANT. Mr. Chief Justice, may I inquire how much rebuttal time we have remaining?
The CHIEF JUSTICE. Thirty minutes.
Mr. Manager BRYANT. Thank you, Mr. Chief Justice. I will be brief and ask other managers to come up and follow me. I have four quick points to make.
Before I get into that, I want to thank my distinguished colleague from DC, Mr. Kendall. Over my practice of law for several years, I have received a number of jabs before in the courtroom, but never so gentle and never so eloquently, and I thank you.
I think his presentation was very good, but probably makes the best illustration of why witnesses are needed in that he has chosen to use selective quotes. He likes to use those quotes and point to the managers over there where we were quoted without a real context and certainly that is what this hearing has been about so far, both sides picking and choosing among quotes that best illustrate the point we want to make at the time.
Really, what we need is the big picture, the entire, complete picture that witnesses and only witnesses can provide in this case.
Let me go back to a couple of the selective quotes, and that is the quotes that we made back in the House when we were involved in the proceedings, which I would remind each one of you involved these very same stacks of books here, the record, that they have shown you in the past in a very, I guess very often form, that this is the record here; why do we need to go outside the record? That very same record was there in the House, and it was at that time Mr. Lowell, the minority counsel, was representing the President's interests, but also Mr. Kendall was there. In fact, both together examined Mr. Starr. That was when they were making the request for the witnesses, based on this very same record. Notwithstanding that, we need witnesses. I simply point that out to you to show you that Mr. Kendall and his very talented staff do not have a monopoly on consistency.
Another example of selective quoting has to do with quotes made about our occasion to visit Ms. Lewinsky, to talk to her. This was the one witness we have not been able to talk to. He pulled those quotes out as if we need to talk to all the witnesses. We don't need to talk to all the witnesses, but we just need to sit down and talk with her. I might tell you she was ably represented by three attorneys. She had as many lawyers there as we did and perhaps more. So she was not imposed upon.
I think in terms of my statement about discovery, I think I perhaps was misunderstood, but I certainly conceded the White House might want discovery to depose Ms. Lewinsky, but I still have a hard time determining why they would need to discover what Ms. Currie might want to say, who sits right outside the President's office every day, or what Mr. Jordan might say, who plays golf with Mr. Clinton every day, or Mr. Podesta, his former Chief of Staff.
I am just trying to save this Senate some time and question why we would need to go through discovery of those types of people.
My last point I would like to make before I bring Mr. Hutchinson in is Mr. Kendall makes a point, and I am not sure where they were going in perhaps trying to worse case this situation, in terms of taking forever and a day to conclude all kinds of witnesses. He alluded we needed to take all the lawyers of Paula Jones and question her motivation. I suggest to you that a real clue for her motivation for this lawsuit, we could say, was the 850,000 reasons motivation she received the other day.
But let me end with that note and bring up Mr. Hutchinson who will continue this process.
The CHIEF JUSTICE. The Chair recognizes Mr. Manager Hutchinson.
Mr. Manager HUTCHINSON. I thank you, Mr. Chief Justice. I will just take a moment.
Mr. Kendall did an outstanding job, as he always does, of making his case for not calling witnesses. I thought the most compelling example as to why we need witnesses was the fact that he called a live witness, Vernon Jordan. Mr. Jordan testified here in this Chamber. Why did they not present a transcript? Why did he want to bring a live witness? Because it was real. It was alive. He was more meaningful than a transcript. He told the story in short, concise ways that I have not been able to do during my presentation during the last week. We would like to have the same opportunity, not through video, but to present a live witness so that he could cross-examine, so that we could question. I think that is a fair proceeding.
Now, Mr. Kendall raised the point that the statements about the notes that Ms. Lewinsky testified she discussed with Mr. Jordan were referenced in her February 1998 proffer. When I was making my point, I was referencing her August grand jury testimony, not the February proffer, because my recollection is that the February proffer that was submitted by Mr. Ginsburg had subsequently become a subject of litigation because we were not able to reach an immunity agreement. So perhaps that was the reason that subject was not inquired into by the independent counsel. For whatever reason, my review of the transcripts is that that subject was never broached with Mr. Jordan. I do not profess perfect knowledge of it, but that is my understanding of it.
And then finally I want to also look at the discovery that Mr. Bryant referenced. There was a gambling illustration that Mr. Kendall used about blackjack. But another part of poker is bluffs. And I don't know whether they are bluffing. I don't know whether they are serious about all the discovery that they need to have. But I know that lawyers do that sometimes to intimidate, to scare you away.
But I think even more important is that the House managers have submitted to the rules of the Senate. We were not particularly happy about all of them, but we recognized it was important to have legitimacy in this process. We accept that. We move on.
I hope that whatever rules of discovery, whatever limitations you wish to put, whatever timeframes you wish to put, that the White House counsel will be as amenable to the desire of this Senate and this Nation to conclude this as we have been in adopting what our desires are to your schedule.
I yield to Mr. McCollum.
The CHIEF JUSTICE. The Chair recognizes Mr. Manager McCollum.
Mr. Manager McCOLLUM. Mr. Chief Justice, thank you very much.
I want to make a couple of observations, and one of them seems pretty apparent. Mr. Kendall says they are not afraid and I was wrong in characterizing them as being afraid--the White House counsel--of calling witnesses. But I am going to tell you, I cannot rationalize any other way why he would be out here to make the pitch as hard as he is against witnesses, especially the sort of threat that this is going to go on and on and on if we open the door and we call three witnesses. You know, we are down from thinking we ought to have 10, 12, maybe 15 witnesses, to 3--Monica Lewinsky, Vernon Jordan, and Sidney Blumenthal. And we have introduced three--or proposed to introduce three very simple pieces of new evidence. That can't take a lot of discovery, the need to go further than that. You know, if he wants to produce witnesses, that is fine. But I just can't imagine why that opens that door.
Mr. Holmes, he talks about, the attorney. What is the significance of that declaration or affidavit, that sworn declaration that we would like you to take in that says, 'well, we have to depose Mr. Holmes. That was put in very simply because the counsel on the other side--I don't accuse them of doing it intentionally--but the other day they misled us, I think unintentionally misled you, on the idea that the President, at the time he left the deposition in the Jones case and went over to talk to Betty Currie the next day, didn't and couldn't have had any idea that she was going to be called as a witness. In fact, I think they said she never was on the witness list and she never was subpoenaed.
What Mr. Holmes' declaration does, as I said earlier, is bring into the record the subpoena that in fact was issued within a day or so of that time of when Betty Currie was talked to. Remember, she was talked to twice, the notice about it and her name being put on the witness list--that is what that is all about--and a general explanation of why they chose, as attorneys, to make that case, why they chose to put her name out there, and subpoena her, so it is clear on the record.
Very simple. If you look at it--and I am sure you will have
it before you--his declaration is very short. It is like three paragraphs. And it goes straight to the point. And it encloses these accompanying documents.
I don't think you should, for one minute, think it opens the door to some great big, gigantic discovery period. That is simply an idle threat to intimidate, in my judgment--with a proper intimidation effort, proper tactic; I don't accuse him of anything improper--to try to discourage you from letting us have these three witnesses.
Second, I want to point out that with respect to some of the things that I said, one thing I did say earlier is I don't know what all the witnesses would say if we called them. I don't know what they all would say, certainly. But I would expect them all to be consistent with what they have already said in their sworn testimony. And there is nothing inconsistent with my expecting them to be consistent on the facts.
We already know with that sworn testimony in the case of Monica Lewinsky--she has immunity--that if she deviates and goes off of it, she can get herself in trouble. But by no means does my expectation that the testimony you already have will remain true mean that I don't think there are new things to be brought out or that you shouldn't have live witnesses here.
And I thought it interesting that Mr. Kendall totally ignored the one thing that was most significant, in my mind, and that is, the whole idea that there is a need for witnesses out here to determine their credibility, to check their demeanor, to see how they respond to questioning, to do all of those things that I described earlier, that any reasonable attorney in any courtroom setting in this country in a criminal case--and you do have to decide whether the crimes were committed or not--would expect to do. So you can, as my colleagues have said, look them in the eye and make that determination yourself. He didn't even address that. And I think that that alone is sufficiently good reason to have a live witness here, as I said before to you.
So with that in mind, I will yield to Mr. Rogan.
The CHIEF JUSTICE. The Chair recognizes Mr. Rogan.
Mr. Manager ROGAN. Mr. Chief Justice, Members of the Senate, Mr. Kendall made a very able and strong presentation. It was particularly effective when he brought up a series of quotations from House Members and House managers talking about the need for witnesses or the lack thereof. It would be more effective if it were presented in context, but it could not be, because the context of every single one of those quotations was in reference to the distinction between the House's function as the accusatory body versus the Senate's constitutional function of being the body where an impeachment case is tried. There he blurs the distinction. That is why in the Constitution a President is impeached solely on the majority vote. But removal requires at the trial a two-thirds vote.
Now, Mr. Kendall's presentation begs the question, did the founders get it wrong when they designed this process? Did the founders simply intend for us to waste our resources rather than conserve them and simply do the very same thing, first in one body and then in the other, with the sole distinction that the only difference would be the ultimate vote? That was not their intent. That was not the procedure established by the Constitution. And it is not the procedure recognized throughout the country in court proceedings.
There is a reason why courts of inferior jurisdiction will be able to hold a defendant in a criminal case to answer for trial at a preliminary hearing based on hearsay testimony, based on transcripts, based solely on police reports.
But that defendant at a trial has a constitutional right to come forward. And the right to confront and cross-examine witnesses is supremely guaranteed in the Constitution, because the Framers understood the difference, even if White House counsel refuses to acknowledge the difference.
Now the argument they have really isn't with the House managers. Their argument is with the precedence of the House. Their argument, in fact, is with people like the venerable Barbara Jordan, our late distinguished former colleague. She understood the difference between the House's function in an impeachment role versus the Senate's function. She said during the Rodino hearings in establishing the division between the two branches of the legislature, the House and the Senate:
Assigning to one the right to accuse and to the other the right to judge, the Framers of the Constitution were very astute. They did not make the accusers and the judges the same person.
Now, in the words of Yogi Berra, 'I fear that we are going through deja vu all over again' with Mr. Kendall's able proceeding, because what he has accentuated in this presentation has been accentuated by White House counsel ever since they first rose to address this body at the lectern, and that is the complaint that no witnesses were called before the House Judiciary Committee, and how wrong it is for members of the House managers now to assert the need and the right to have witnesses before this body when, in fact, no witnesses were called before the Judiciary Committee.
Once again, he mistakes the function of the two Houses. But I would invite the Members of this body, if that is an issue concerning them, to go back and review the voluminous transcripts during the Judiciary Committee where Chairman Hyde did everything but get on his knees and beg the members of the President's defense team, beg our colleagues on the other side of the aisle, to identify for us which witnesses they wished to dispute, what facts they wanted to challenge, let us know who the witnesses are where there is a contention in the evidence, and despite their complaining, and despite their griping and despite their anger over a supposedly unfair process, they never once identified in the factual record whose testimony they wished to challenge.
What we heard repeatedly, day after day in the hearing and outside before the cameras, was an attack upon the process rather than an identification of the issues where there are factual disputes. In fact, they refused to identify, despite the repeated pleas of Chairman Hyde, who those witnesses were that they felt were appropriate, because the chairman said, 'Tell us who they are, we will call them.'
They champion the cause of witnesses in word but they do not champion the cause of witnesses in deed, at least not in the House, because the same people who were complaining of the unfairness in the House for not having witnesses suddenly have an allergic reaction to the concept of witnesses being called before this body where it counts the most, where the ultimate decision is to be made, where the triers of fact have to make the constitutional decision whether the case is sufficient for removal of the President.
And Mr. Kendall's repeated hints and statements that somehow they were denied some form of due process in the House by not being able to call witnesses is patently unfair and does not withstand the test of the record. Chairman Hyde alluded to it a couple of days ago, and based upon Mr. Kendall's presentation, I feel it is worth a minute or two of this body's time. Mr. Kendall has stated in these proceedings, and I am quoting:
We have never had the chance to call witnesses ourselves, to examine them, to cross-examine them, to subpoena documentary evidence--at no point in this process.
The record is to the contrary:
On October 5, the House passed a procedure by a voice vote which included the right to call witnesses. On October 21, the House Judiciary Committee staff met with Messrs. Ruff, Kendall and Craig. At that time, Judiciary Committee staff asked the White House to provide any exculpatory information and provide a list of any witnesses the President wished to call. On November 9, the House Judiciary Committee staff 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 before the House Judiciary Committee. The President's counsel was given the opportunity to question the independent counsel. The President's counsel did not ask a question relating to the facts of the independent counsel's report and allegations against the President. On November 25, Chairman Hyde wrote a letter to the President asking the President, among other things, to provide any exculpatory information and inform the committee of any witnesses he wished to call. On December 4, 2 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, and not a single one of the 15 witnesses did they wish to call, that they asked to call,
were factual witnesses.
And so the complaints of unfairness are unfair.
One other point I want to make, because again I see a reversal in roles, is that Mr. Kendall can't seem to decide in what type of 'ogre' role he wants to portray us, because he said in his presentation just a few minutes ago that we were somehow--at least he alluded to the fact we were somehow tools of Judge Starr and the Office of Independent Counsel. I was a little surprised to hear him suggest that Judge Starr spoon-fed us the charges, and that Judge Starr spoon-fed them to us to the point where he didn't know whether Judge Starr should be deemed an honorary member of the House management team.
Well, that is an interesting proposition, because it seemed to me just a day or two ago the same lawyers who are now making this allegation were claiming constitutional unfairness before this body and asking that this body dismiss the articles of impeachment. Why? Because the House Judiciary Committee and the managers didn't present the exact same charges that the independent counsel suggested. You can't have it both ways. You can't fashion the argument depending on what the result is being sought, and yet that is exactly what the managers with the White House counsel are attempting to do.
Yesterday we were renegades who didn't follow the strict rules of Judge Starr and didn't give them proper notice. Now, of course, he is the marionette and we are the puppets doing his will.
Members of this body, it is the job of the House of Representatives, it is the constitutional obligation of the House of Representatives, to act as the accusatory body in an impeachment proceeding. The Constitution gives the authority to this body the right to try that case. This is the place for trial. This is the place to determine guilt. This is the place to determine credibility. This is the place for witnesses.
Mr. Chief Justice, I yield the remainder of our time to our distinguished chairman of the House Judiciary Committee.
The CHIEF JUSTICE. The Chair recognizes Mr. Manager Hyde. Mr. Manager Hyde, you have 9 minutes remaining.
Mr. Manager HYDE. I won't use the entire 9 minutes.
Mr. Chief Justice, distinguished counsel and Senators, I will be very brief. Mr. Rogan and my colleagues have handled this very well, but there are just a couple of things I want to talk about.
It is disturbing, it is annoying, it is irritating when I hear that the counsel for the President had been cut off from information, that we have sequestered things. I pleaded with them to produce witnesses, made the subpoenas available to them. They have a positive allergy to fact witnesses.
Oh, they will come up with academics. We saw a parade of professors. You know what an intellectual is? It is someone who is educated beyond their intelligence. I certainly don't mean that of some of those Harvard professors who they paraded out, even though we disagreed with them, but you would get eye strain looking for a fact witness.
And it is remarkable, the flexibility they have, that they complain that we called no witnesses in the House. Now they are complaining that we are calling witnesses in the Senate as though they don't understand the difference in the threshold. There we had to prove we had enough to submit to the Senate for a trial but not try it over there. And a majority vote prevails over there. Here, you have an extraordinary mountain to climb: a two-thirds vote and the trial is here, and that is the difference.
And witnesses help you. They won't help me. I know the record. I am satisfied a compelling case is here for removal of the President. But they will help you. And we aren't dragging this out. We have been as swift as decency will let us be throughout this entire situation.
Their defense has never been on the facts. If they can come up with a good fact witness that has something to say, we will see a reenactment of the Indian rope trick, it seems to me. We will see professors, though, if past is prologue. I don't know. But the threat of prolonged hearings, I suppose, is supposed to make you tremble. It doesn't to me, but then different things--different strokes, I guess, for different folks.
Their defense has been to demonize Mr. Starr to a fare-thee-well and then yell about the process. That is their defense.
I will be frank with you. I am not sure I could stand a lot more of that. But that is what they will do. As far as the information not available to them, maybe not. Maybe some of the stuff we got from the independent counsel was held in executive session, but it was available to Mr. Conyers, available to Abbe Lowell, available to every Democrat on the Judiciary Committee, and they went through it. I wrote with Mr. Conyers to Mr. Starr a letter saying, 'Show us what you didn't send us. Let's look at what you have over there. There might be some exculpatory material.' Mr. Conyers sent his people over and they looked and they looked and they looked, and I would assume they were in touch with you folks. I would assume they were. If they weren't, they should have been. That is a breakdown in communication.
We have a good case. We have an excellent case without the witnesses. But the witnesses help you. We have narrowed it down to three--a pitiful three. I should think you would want to proceed with that minimum testimony, and Mr. Kendall can try his cross-examination skills on them, and that I want to watch.
The CHIEF JUSTICE. The time of both sides has now expired. The Chair recognizes the majority leader.
Mr. LOTT. Mr. Chief Justice, in view of the time that we have been in without a break, the next pending business is that we would want to have a motion by Senator Harkin or Senator Wellstone. Before we do that, I suggest that, without objection, we take a 15-minute break.
There being no objection, at 3:42 p.m., the Senate recessed until 4:04 p.m.; whereupon, the Senate reassembled when called to order by the Chief Justice.
The CHIEF JUSTICE. The Chair recognizes the majority leader.
Mr. LOTT. Mr. Chief Justice, I ask unanimous consent that during each day the Senate sits as a Court of Impeachment, it be in order for Senators to submit to the desk statements and introduce legislation.
The CHIEF JUSTICE. In the absence of objection, it is so ordered.
Mr. LOTT. Now, Mr. Chief Justice, I believe at this point it would be in order for a motion to be made that we go into open debate, if any, and then when that is dispensed with, we would go to the move to close and would deal with that issue, and then we would begin the closed session. And so I believe we are ready for a motion to be offered, if any, at this time.
The CHIEF JUSTICE. The Chair recognizes the Senator from Iowa, Mr. Harkin.
MOTION TO SUSPEND THE RULES
Mr. HARKIN. Mr. Chief Justice, in accordance with rule V of the Senate's Standing Rules, I filed a motion of intent to move to suspend the rules to open debate on this motion to subpoena witnesses. The motion is at the desk. It is No. 5, I believe.
The CHIEF JUSTICE. The clerk will report the motion.
The legislative clerk read as follows:
The Senator from Iowa, Mr. Harkin, for himself and Mr. Wellstone, moves to suspend the following portions of the Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials in regard to debate by Senators on a motion to subpoena witnesses during the trial of President William Jefferson Clinton.
(1) The phrase 'without debate' in rule VII.
(2) The following portion of rule XX: ', unless the Senate shall direct the doors to be closed while deliberating upon its decisions. A motion to close the doors may be acted upon without objection, or, if objection is heard, the motion shall be voted on without debate and by yeas and nays, which shall be entered on the record'; and
(3) In rule XXIV, the phrases, 'without debate except when the doors shall be closed for deliberation in that case' and ', to be had without debate.'
Mr. HARKIN addressed the Chair.
The CHIEF JUSTICE. The Senator from Iowa.
Mr. HARKIN. I ask for the yeas and nays.
The CHIEF JUSTICE. Is there a sufficient second? There is a sufficient second.
The yeas and nays were ordered.
The CHIEF JUSTICE. The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. REID. I announce that the Senator from Maryland (Ms. Mikulski) is absent due to illness.
The yeas and nays resulted--yeas 41, nays 58, as follows:
Rollcall Vote No. 3
Subject Harkin motion to suspend the rules
The CHIEF JUSTICE. On this vote the yeas are 41, the nays are 58. Two-thirds of those Senators voting, a quorum being present, not having voted in the affirmative, the motion is not agreed to.
The Chair recognizes the majority leader.
Mr. LOTT. Mr. Chief Justice, that motion being defeated, I believe it is now in order to move to close the session so we can have debate on the question of the motion to subpoena witnesses.
The CHIEF JUSTICE. The majority leader is correct.
Mr. LOTT. I so move, Mr. Chief Justice.
The CHIEF JUSTICE. The question is on the motion.
The motion was agreed to.
The CHIEF JUSTICE. The motion carries.
Mr. LOTT. Mr. Chief Justice, I would like to ask that Senators remain at their place, but I will put in a request for a quorum just momentarily so the appropriate arrangements can be made for the closed session.
Mr. Chief Justice, I suggest the absence of a quorum.
The CHIEF JUSTICE. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
(At 4:29 p.m., the quorum was dispensed with and the doors of the Chamber were closed. The proceedings of the Senate were held in closed session until 8:01 p.m., at which time the following occurred:)
(At 8:01 p.m., the doors of the Chamber were opened and the Senate resumed proceedings in open session.)
Mr. LOTT. Mr. Chief Justice, I now ask unanimous consent that the Senate return to open session.
The CHIEF JUSTICE. In the absence of an objection, it is so ordered.
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