THE IMPEACHMENT TRIAL
Statement of Sen. Specter (R-Pa.)
Following is a statement from the Senate's closed deliberations on the articles of impeachment against President Clinton, excerpts of which senators were allowed to publish in the Congressional Record for Friday, Feb. 12.
Mr. SPECTER. Mr. Chief Justice, colleagues, a great deal has been spoken in the Chamber about separation of powers and tomes have been written on it. And in reading the Constitution, article I, creating the Congress; and article II, the executive branch; and article III, the judiciary, we have seen the wisdom of limiting power.
The one provision of the Constitution--the impeachment provision--reaches across that divide. It is my thinking that before the Congress can exercise the power of removal, there has to be a very, very heavy burden of proof.
I had occasion, fairly recently, to go very deeply into the issue of separation of powers when I argued the Base Closing Commission case regarding the Philadelphia Navy Yard case, which was unfairly closed--a subject that I will not amplify on--and I had an opportunity to appear before the Supreme Court. I will end on time, as I did on my other two speeches, but I will say that the Chief Justice is a good deal more tolerant here than in the Supreme Court. In the Supreme Court, I was cut off in midsyllable. I didn't know that was possible. But with the forcefulness of the Presiding Officer, I did not do well in that case. I had done better on my previous appearances in the Supreme Court when I was representing the district attorney's office on law and order.
But that sojourn into that case brought me into 200 years of reflection and analysis on case law on separation of powers, something that is not often done by practicing lawyers, and certainly not Senators. It instilled in me a very, very deep appreciation of separation of power.
So when I approached this case--and it has been the toughest case I have ever seen, and I think it has been a very, very intense drain on this body and all of us individually--the focus I had was, What is the burden that you ought to have to show if the Senate is going to remove a President? As I reviewed the evidence, I am not satisfied at all that that burden was met.
The definition of perjury is a very tough one by the Supreme Court of the United States in the famous case called Bronston. Bronston was giving testimony in a bankruptcy proceeding in New York and was asked about bank accounts in Zurich, and said, `My company had a bank account for about 6 months,' leading to the implication that he did not have a personal bank account when in fact he did. He was convicted and upheld by the Second Circuit, but reversed by a unanimous Supreme Court because the interrogator, the prosecutor, has to go further. You have to ask the last questions.
And the President was very artful, very careful, and full of guile as he wound his way through the grand jury proceedings. We heard the testimony again and again. The President said he told his aide. `I told them things that were true.' Well, he didn't comment about the things that he told them that were false. But nobody said, `Did you tell them things that were false as well?' to give him a chance to perjure himself on that. When asked about Monica Lewinsky--was he alone with her--well, on a series of rambling answers he wasn't alone with her in the hallway. But that is not the end of the question. He wasn't alone with her in the hallway. But nobody followed up, and said, `Were you alone with her somewhere else?' which he was not asked and, therefore, did not deny and, therefore, on this record did not commit perjury under the Bronston case.
The testimony of Betty Currie we heard again and again and again. Here in late January 1998, Betty Currie testified that when the President gave her that series of questions, she thought the President was trying to lead her, to mold her testimony. Then she came back on in July, she said, Well, it was different on that occasion. She testified that the President gave her the option of either agreeing or disagreeing.
Betty Currie was not a witness in this proceeding--didn't even have her deposition taken, and was not a witness; did not have her deposition taken because of very, very restrictive rules which the U.S. Senate said what the House managers could do. The House
managers were on very, very sharp notice that if they asked for too many depositions they might get none at all. They made their selection of witnesses, and they left off Betty Currie.
But had House managers been able to present their case in the normal course of events, I dare say the proceeding would have been even faster; that we heard some 12 days of speeches, 6 days of opening speeches; 3 and 3. We could have done that in 2 hours. We then spent 2 days propounding questions through the Chief Justice; learned very, very little. We heard arguments on the motion to dismiss, and on depositions, and arguments on what to do about the witnesses, on those videotapes. Again and again, we heard legal arguments, but we did not hear from witnesses.
We are burdened by this record. It is my view that on this record, the burden of proof has not been met, the kind of a burden that would have to be sustained, in my judgment, for the Senate to remove an American President.
One comment about mindset. The Senate really approached this matter as if it were a waste of time from the outset. There was an early effort to structure a vote to show that one-third plus would not be for conviction and, therefore, to end it. And then when we had the vote on the motion to dismiss, and 44 Senators voted to dismiss, it confirmed what we all knew; and that is that there would not be a two-thirds vote. I think that put a mindset in this body really not to conduct a trial.
The Constitution calls for a trial. The proceeding we had does not measure up in any way, shape, or form to a trial. It is true that there are some few cases submitted on a record where judges are going to decide it. But a trial customarily requires witnesses. Had witnesses appeared on the floor of the U.S. Senate with examination and cross-examination, you would have gotten a feel for what happened here. If Betty Currie had appeared on the floor of the U.S. Senate, or even if her deposition had been taken, there could have been a clarification of inconsistencies in her two lines of questioning.
A word for the future: It would be my hope that if, as, and when the Senate has to revisit impeachment that it would be done differently. Senator Lieberman made a suggestion on a December 20 television show that there ought not to be party caucuses, that there only ought to be joint caucuses. I have passed that recommendation on. I realized that given the history of the Senate and our party caucuses, that would be a very, very abrupt change. But I came out of some of our party caucuses and walked over and talked to my friends on the other side of the aisle, the people that I had agreed with on many, many, many issues. We were just irreconcilably opposed, just totally opposed. My only conclusion was that it was the kind of argument and the kind of discussion on what happened in the caucuses--really choosing sides and having teams--as opposed to trying to make an analytical, judicial decision as to what was involved here.
So it is my hope that if we ever have to undertake this again we will do it differently.
My position in the matter is that the case has not been proved. I have gone back to Scottish law where there are three verdicts: guilty, not guilty, and not proved. I am not prepared to say on this record that President Clinton is not guilty. But I am certainly not prepared to say that he is guilty. There are precedents for a Senator voting present. I hope that I will be accorded the opportunity to vote not proved in this case.
We really end up, colleagues, very much, in my judgment, where at least I started on the matter. I had thought at the outset that this was not an appropriate case for impeachment because the requisite two-thirds would not be present, and had hoped that impeachment would be by-passed, but instead we would allow the President to finish his term of office, which I thought an inevitability, just as it has worked out that way, and that the criminal process would do whatever is appropriate; if indicted, if convicted, whatever a judge would have to say. I am still hopeful that the rule of law will be vindicated in that process.
We obviously have learned much from this proceeding. It is my hope that we will leave a mark to guide future Senates if we ever have to repeat this very, very trying sort of an experience.
Mr. Chief Justice, I ask unanimous consent that a full text and exhibits A, B, and C be included in the Record as if read on the Senate floor.
The removal of an American president through impeachment carries a high burden of proof and persuasion. For conviction in the criminal courts on charges of perjury and obstruction of justice, the proof must be beyond a reasonable doubt. An extra measure of certainty is necessary to persuade the Senate that the national interest mandates invoking the extraordinary remedy of removing the President.
THE CONSTITUTIONAL STANDARD FOR REMOVAL
The starting point is Article II, Section 4 of the Constitution:
The President . . . shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other High Crimes and Misdemeanors.
From that language, there is reason to interpret `other High Crimes and Misdemeanors' as relating back to specific categories of offenses earlier enumerated, such as `Treason and Bribery'; but I think that is too limited. Nor do I agree with the simplistic definition that perjury and obstruction of justice, being felonies and therefore more serious than misdemeanors in the criminal law, are automatically impeachable offenses.
The Framers did not foresee the circumstances before us. The omission of `perjury' and `obstruction of justice' from the enumerated offenses probably reflected the Framers' thought that it would be unlikely that a President would be testifying under oath or be a participant in a judicial proceeding. Yet, it is equally clear that perjury and obstruction of justice are serious crimes. For the President to commit either, he would be placing his own interest above his public duty and the people's interest in due process.
In 1970, then-Congressman Gerald R. Ford offered this definition:
. . . an impeachable offense is whatever a majority of the House of Representatives considers to be at a given moment in history . . .
While that may state the raw power of Congress, it is too subjective to provide any real guidance. Instead, I look to the Framers at the Constitutional Convention, the Federalist papers, and the English and United States impeachment cases.
Commenting on impeachment at the Constitutional Convention James Wilson said:
. . . far from being above the laws, he (the President) is amenable to them in his private character as a citizen, and in his public character by impeachment
The President's attorneys have argued that the charges arise from private conduct unrelated to his official duties. The issue then arises whether his conduct is `in his public character' by virtue of his Constitutional duty:
. . . he (the President) shall take care that the Laws be faithfully executed . . .Article II, Section 3--
Such a public duty may be insufficient for impeachment under Alexander Hamilton's definition of impeachment in Federalist No. 65:
. . . those offences (sic) which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.
From Hamilton's statement, the conventional wisdom has evolved that impeachment is essentially a political question. The Framers, cases and commentaries have not articulated a handy definition of `high crimes and misdemeanors.'
Whether to impeach and convict transcends the facts and law to what is in the national interest at a specific time in the nation's history on the totality of the circumstances.
Consideration of the national interest may include whether there is a clear and present danger to the integrity or stability of the national government; or whether the conduct is so vile or reprehensible as to establish unfitness for office; or whether the electorate has lost confidence in the President to the extent that he cannot govern.
The precedents and commentaries leave substantial latitude for Senators to establish their own standards. The ultimate definition may be analogous to Supreme Court Justice Potter Stewart's struggle to define obscenity when he concluded: ' . . . perhaps I could never succeed in intelligibly doing so. But I know it when I see it.'
PARTISANSHIP IN THE HOUSE
The extreme partisanship of the impeachment proceeding in the House prejudiced the matter before it came to the Senate. While it takes two to tango or be partisan, somehow the House Republicans bore the brunt of the public disdain on the partisan charge. It was more than the party line votes. The whole process was filled with rancor, acrimony and bitterness which contributed significantly to the public view that it was all politics without real substances.
It has been widely noted that there must be significant bi-partisan support to remove a president. President Nixon's forced resignation occurred only when Republican elders like Senators Goldwater and Scott joined Democrats in urging his resignation.
In an early Sunday TV talk show on December 20, 1998, the day after the House sent the Articles to the Senate, Senator Joseph Lieberman and I appeared together on `Face the Nation' where he urged that there be no party caucuses but only joint caucuses. I recommended that to Senator Lott in my memorandum of December 29 and urged that policy to colleagues on both sides of the aisle. Perhaps, it was too much to expect or even hope that would be done given the Senate's history and practice of party caucuses.
As noted in this floor statement, the Senate struggled to achieve bi-partisanship, mostly without success, but we did avoid the rancor and bitterness which prevailed on the
THE IMPROBABILITY OF TWO-THIRDS FOR CONVICTION OVERSHADOWED THE PROCESS
From the outset, the conventional wisdom was there would not be two-thirds of the Senate in favor of conviction. That pervasive view has cast a long shadow over the impeachment proceedings. When the Senate convened on January 6th, there was immediate informal consideration on taking a test vote to determine if there were 34 Senators opposed to conviction which would end the matter. There appeared to be even more than that number so opposed who based their judgments on news media accounts. That trial balloon was abandoned when many Senators objected on the ground that the Constitution called for a trial and the Senate owed the House the Constitutional deference to give the House Managers a chance to prove their case.
In mid-November, I wrote in a New York Times `op ed' article that impeachment should be bypassed and the President should be held accountable through the criminal process after his term ended. When the House of Representatives returned Articles of Impeachment in mid-December, I felt at that stage the Senate had a constitutional duty to proceed to a trial.
THE CONSTITUTIONAL REQUIREMENT FOR A TRIAL
The Constitution explicitly provides for a trial:
The Senate shall have the sole Power to try all impeachments (emphasis added). Article I, Section 3, Clause 6
The same clause refers to being convicted and the next clause refers to judgment, so the constitutional mandate for a trial is plain. Senate Impeachment Rules 6 and 17 deal with witnesses.
The Senate was schizophrenic in wanting to avoid what many considered to be a pointless trial. Others considered it to be our Constitutional duty to hold a trial and give appropriate deference to the House's action on the Articles. In a series of halting half-steps, the Senate stumbled through a `pseudo-trial', a `sham trial'--really no trial at all. In the end, it would have taken less time to let the House Managers put on their case with a full White House defense than the helter-skelter procedures adopted by the Senate.
THE ADVERSE PUBLIC REACTION
From the time the Senate reconvened on January 6, 1999, the public pressure to conclude the trial promptly was palpable. The improbability of a two-thirds vote for conviction was only one factor although the totality of the other factors contributed to that improbability.
The adverse public reaction was reflected in consistent polling data and the feel on the streets in our various states. Notwithstanding the serious charges of perjury and obstruction of justice, Democratic Senators argued and many people agreed that a private sexual liaison should not have caused a multi-year, multi-million dollar investigation. If the Independent Counsel, they argued, could establish no wrongdoing in Whitewater, Travelgate and Filegate, why elevate a charge based on sex to an impeachable offense?
I think it is a significant distinction that President Clinton, unlike President Nixon, was not charged with covering up an underlying crime. President Clinton had the option of not answering deposition questions and/or simply not defending the Paula Jones lawsuit. At worst that would have resulted in a default judgment being entered against him with an assessment of damages. As it worked out, a non-defense might still have led to dismissal of the case as a matter of law and on the eventual settlement. In any event, the President would have avoided his present predicament by not responding.
Once the President undertook his course of action, then he must answer to the serious charges of perjury and obstruction of justice even though he was not covering up criminal activity.
Attorney General Reno made a major mistake in acting to expand Judge Kenneth Starr's jurisdiction to include the Lewinsky matter. In mid-January 1998, contemporaneously with the Attorney General's action, I commented that the public would suspect a vendetta on the part of Judge Starr because there had been so many apparently unproductive investigations going on for so long. This was not a criticism of Judge Starr, but an inevitable public reaction. The public's suspicion of Judge Starr carried over to impeachment.
When I challenged Attorney General Reno in the Judiciary Committee oversight hearing on July 15, 1998 about why she acted to expand Judge Starr's authority, she refused to answer the question saying only:
The application speaks for itself, Senator.
THE WITNESS WAR
The failure of the House to call witnesses during their hearings injected a Trojan Horse into the Articles. The House had good reason not to call witnesses because of its concern to finish its work before the 106th Congress convened to take up the nation's important pending business. But, that set the stage for the witness issue to haunt the Senate from the outset.
Early in January, there was a strenuous effort for bi-partisanship on witnesses and procedures. At a joint caucus on January 8th, by almost spontaneous combustion, agreement was reached 100-0 on preliminary procedures leaving depositions and witnesses until later.
Immediately thereafter, bi-partisanship broke down. While this may seem self-serving from the Republican point of view, Republicans had more to gain from bi-partisanship than Democrats to avoid the rancor of the House proceedings and give legitimacy to impeachment. Many Democrats openly said the President would be helped by party line votes making the Senate look like the House.
The Democrats then lined up solidly behind the President
with a number of Republicans, sometimes more than six, teetering on joining the Democrats. There are obviously limits to what elected officials will do to vote a straight party line if it puts their seats in jeopardy. The Senate Democrats had the effective cover of a popular President and their party line votes followed while a significant number of Republicans faced constituents opposed to impeachment in their election cycles.
The sequence of partisan maneuvering on witnesses is important to understanding how the House Managers were precluded from presenting their case in a fair way. Appendix A describes those events in some detail. The ultimate result was a sharply limited number of deposition witnesses, three, with videotaped depositions only and no live witness at trial.
In my Senate tenure, I have not seen a more contentious issue than the calling of witnesses either live or videotaped. It goes beyond the public pressure to terminate or at least abbreviate the Senate proceeding. The argument that the well of the Senate should not be the stage for lewd and lascivious testimony was answered by the commitment of the House Managers to avoid such testimony. The argument that Monica Lewinsky should not appear on the Senate floor once occupied by Daniel Webster and John F. Kennedy has to give way to the Senate's duty to try this President. The Senate did not choose the President's consorts and potential witnesses, but the Senate is duty bound to `try' the case as mandated by the Constitution and do `impartial justice' as the Senators' oath specified.
THE LIVE WITNESSES
I was one of three Senator presiders/observers designated by Senator Lott, the Majority Leader, for the depositions of Monica Lewinsky, Vernon Jordan and Sidney Blumenthal. Observing these live witnesses confirmed my thinking that the full senate should have seen and heard their testimony in the tradition of trial practice. While a videotape is very informative, there is no substitute for the more precise evaluation of demeanor and its many nuances which comes across fully only through live testimony.
When the videotapes were played in the Senate chamber, the contrast was stark with the same live testimony I saw and heard. On a number of occasions, the sound was inaudible and the tape could not be rewound. There was a far superior opportunity in person to observe the witnesses' facial responses, their reactions and their general demeanor. In addition, only a portion of their videos was played. Although senators had a chance for full private viewings, it is inevitable that many Senator-jurors did not utilize that opportunity to observe all the videos.
Ms. Monica Lewinsky was a very impressive witness: poised, articulate, well-prepared. Seeing her testify in person, I understand why the President's counsel had fought so strenuously to keep her away from the well of the Senate. Had she told her whole story in the well of the Senate, a rapt national TV audience would have been watching and the dynamics of the proceeding might have been dramatically changed.
LAWYERS' ARGUMENTS INSTEAD OF TESTIMONY
Instead of hearing testimony from live witnesses, the Senate listened to twelve days of lawyer's arguments. Six days were consumed with opening statements which should have taken a few hours. For two days, Senators submitted questions through the Chief Justice for responses from attorneys which added little illumination to what was already on the record. Two more days were spent arguing the motion to dismiss and the resolution on depositions where the lawyers essentially repeated earlier arguments with an additional day for votes on those issues.
Finally, limited evidence was presented with three videotaped depositions--Monica Lewinsky, Vernon Jordan and Sidney Blumenthal. Another day was consumed on votes rejecting live witnesses and permitting use of the videotapes. On the day designated for presentation of those depositions, only snippets were shown with most of the time consumed by lawyers' arguments. A final day for closing arguments was held with lawyers again presenting arguments which had been repeated on eleven prior days.
So, in place of a traditional trial with live witnesses such as Monica Lewinsky, Betty Currie, Vernon Jordan, Erskine Bowles, John Podesta, Sidney Blumenthal, possibly Kathleen Willey or whomever the House Managers chose to call, the Senate heard days of repetitious lawyers' argument from a grand jury record.
THE PERJURY ARTICLE
The President's version was limited to his deposition in the Paula Jones case on January 17, 1998 and his grand jury testimony on August 17, 1998. In their totality, those two cameo appearances raised more questions by far than they answered. As expected, the President was exceptionally well prepared on the law and exceptionally adroit and manipulative on the facts or, more accurately, on evading the facts.
The law on perjury is set forth in the case of Bronston versus United States, 409 U.S. 342 (1973), where the Supreme Court of the United States established a rigorous standard for proving perjury. Bronston, under oath in a 1966 bankruptcy hearing, was asked whether he ever had bank accounts in Swiss banks and he replied: `the company had an account there for about six months, in Zurich.'
His answer that the company had an account there for about six months was accurate. It was not accurate that was the only account the company had. The Supreme Court exonerated Bronston on the charge of perjury because the questioner did not press further to get a specific answer on whether the company had an account in addition to the one
responded to by Bronston.
Utilizing the holding in Bronston to the utmost, the President couched his answers with great care relying on the questioner not to pursue the unanswered issues. For example, the President did not deny lying to his aides, but rather evaded the question and there was no follow-up. John Podesta, President Clinton's Deputy Chief of Staff at the time, testified that on January 23, 1998:
He [President Clinton] said to me he had never had sex with her [Monica Lewinsky], and that--and that he never asked--you know, he repeated that denial, but he was extremely explicit in saying he never had sex with her--[H]e [President Clinton] said that he never had sex with her [Monica Lewinsky] in any way whatsoever--that they had not had oral sex.
In a Senate deposition, Sidney Blumenthal, an assistant to the President, testified that the President lied to him. In testimony before the grand jury, Mr. Blumenthal testified that the President told him that he had `rebuffed' Ms. Lewinsky's advances. Mr. Blumenthal further testified that the President told him the following:
She [Monica Lewinsky] threatened him. She said that she would tell people they'd had an affair, that she was known as the stalker among her peers, and that she hated it and if she had an affair or said she had an affair then she wouldn't be the stalker any more.
He [President Clinton] told me that she [Monica Lewinsky] came on to him and that he had told her he couldn't have sexual relations with her and that she threatened him. That is what he told me.
In his testimony before the grand jury, President Clinton stated,
I told them [his aides] things that were true about this relationship. They [things the President said to his aides] may have been misleading, and if they were I have to take responsibility for it, and I'm sorry.
Note that the President does not deny lying but only that:
I told them things that were true about this relationship.
The President did say some things which were true. The questioner did not then pursue the line of interrogation by asking if, in addition to saying some things which were true, the President told his aides other things which were lies. On that clever, ambiguous record, the President escapes the perjury net.
Similarly, President Clinton dodged the perjury charges on his testimony on being alone with Monica Lewinsky. She testified they were alone when they had eleven sexual encounters either in the President's personal office or the adjacent hallway. In his January 17th deposition, the President was asked if he was ever alone with Monica Lewinsky in any room of the White House. The President responded,
I have no specific recollection, but it seems to me that she was on duty on a couple of occasions working for the legislative affairs office and brought me some things to sign, something on the weekend.
Further, when the President was asked if he was ever alone with Ms. Lewinsky in the hallway between the Oval Office and the kitchen area, the President responded,
I don't believe so, unless we were walking back to the back dining room with the pizza. I just, I don't remember. I don't believe we were alone in the hallway, no.
The President again gets away with vague, unresponsive replies. When the President says `I don't believe we were alone in the hallway, no', there is then no pursuit as to whether they were alone in other places. He succeeds in avoiding and misleading, but does not make the unequivocal false statement required by Bronston to constitute perjury.
The President was treated differently than other witnesses before a grand jury when he was permitted to read from a prepared statement:
I engaged in conduct that was wrong. These encounters did not consist of sexual intercourse. They did not constitute sexual relations as I understood that term to be defined at my January 17th, 1998 deposition. But they did involve inappropriate intimate contact.
The President then declined to respond to Monica Lewinsky's specific charges and was not pressed for answers. He made a blanket denial of having sex with Monica Lewinsky relying on a tortured interpretation of Judge Wright's definition of sexual relations:
I thought the definition included any activity by the person being deposed, where the person was the actor and came in contact with those parts of the bodies with the purpose or intent of gratification, and excluded any other activity. For example, kissing is not covered by that, I don't think.
He further stated that:
My understanding was, what I was giving to you, was that what was covered in those first two lines was any direct contact by the person being deposed with those body parts of another person's body, if the contact was done with an intent to arouse or gratify. That's what I believe it means today.
The question was not pursued whether there was a sexual relationship where Ms. Lewinsky was the actor who made contact with the President's body with an intent to arouse or gratify. When asked specifically about oral sex, the President responded,
. . . (Y)ou asked me did I believe that oral sex performed on the person being deposed was covered by that definition, and I said no. I don't believe it's covered by the definition.
And there is the curious contention by the President on what the meaning of the word `is' is. A videotape of his deposition shows the President sitting quietly and listening to his attorney, Robert Bennett's arguments to Judge Wright based on Ms. Lewinsky's affidavit which the President knew to be perjurious.
In his grand jury testimony, the President defended his silence during this statement:
I was not paying a great deal of attention to this exchange. I was focusing on my own testimony.
The President also told the grand jury that Mr. Bennett's statement that there `is' no sex of any kind was not necessarily false, but rather:
It depends on what the meaning of the word `is' is. If the--if he--if `is' means is and never has been, that is not--that is one thing. If it means there is none, that was a completely true statement.
On this state of the record, the Senate should have pressed the President for responses to so many important unanswered questions. Since the President was, in effect, asking the Senate to leave him in office, why was the Senate
not justified in, at least, insisting on answers to key questions. When Senators submitted interrogatories to the Chief Justice for responses from the attorneys, I submitted the following question:
Would the President honor a request by the Senate to testify? If not, why not? If he declined to testify either on his own initiative or a Senate invitation, would the Senate be justified in drawing an adverse inference from his failure to testify?
With so many other questions submitted, this one was not asked. During the trial, White House Counsel said the President would respond to written questions, but that offer was rescinded. On January 25th the President refused to answer ten written questions submitted by Republican Senators.
On February 3rd, twenty-six Republican Senators sent the President a letter requesting a deposition. As expected, he declined. In a context where the Senate voted against live witnesses and permitted only three deposition witnesses, it was not surprising that there was no political will to press the President for his testimony. I believe that was a serious mistake. In the context where the Senate could not even consider exercising the political will to ask, let alone compel, the President to leave the Oval Office for a day or a few days to testify at his impeachment trial or even to give a deposition, how could the Senate be expected to exercise the much greater political will to remove the President from office?
In her civil lawsuit, Paula Jones had been able to compel the President to give a deposition. In the grand jury proceeding, the Independent Counsel, in effect, compelled the President to testify. Why, then, shouldn't the Senate exercise the commensurate power in an impeachment proceeding to obtain the President's testimony when there were so many open questions.
In my legal judgment, the Senate has the power to subpoena the President. (My memorandum to Senator Lott dated December 10, 1998, attached as Appendix B, discusses the Senate's legal authority to subpoena the President at pages 8 through 11. My memorandum to Senator Lott dated December 29, 1998, attached as Appendix C, discusses possible testimony by the President at pages 12 and 13.) Senate Impeachment Rule 6 gives the Senate the subpoena power. The Supreme Court of the United States held President Nixon was subject to subpoena to turn over the famous tapes under the established principle `That the public * * * has a right to every man's evidence.' President Nixon's case, although not dealing with impeachment, is further instructive in the Supreme Court's sweeping language on the need for all the facts even where the President is subject to subpoena:
The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rule of evidence. To ensure that justice is done, it is imperative to the function of the courts that compulsory process be available for the production of evidence needed either by the prosecution or the defense.
THE ARTICLE ON OBSTRUCTION OF JUSTICE
Following President Clinton's deposition in the Paula Jones case on January 17, 1998, the President called his personal secretary, Betty Currie, at home and asked her to come into the office on the following day. On Sunday, January 18, President Clinton met with Ms. Currie and, according to Ms. Currie, made the following statements to her, one right after the other:
You were always there when she was, right?
We were never really alone.
Monica came on to me, and I never touched her, right?
You can see and hear everything, right?
Ms. Currie testified at first (1/27/98) that, based on his demeanor and the way he made the statements, the President wanted her to agree with them.
Six months later (7/22/98) when she testified for the second time, Ms. Currie said that although the President stated `right?' at the end of the statements, she understood that she could agree or disagree with them.
I find the testimony of Betty Currie on January 27, 1998 most troubling. Why would the President ask a series of questions when he knew the answers unless he sought to influence her testimony? But then, Ms. Currie undercut her January 27th testimony when she testified on July 22, 1998 that she understood from the President that she could disagree with him on those questions.
In order to make a finding on an important issue like this which could lead to the removal of the President, the Senate should have heard Ms. Currie in person to clarify her testimony. In the absence of such clarification on this state of the record, there is at least a reasonable doubt on this issue.
Monica Lewinsky testified that she met with the President in the Oval Office on December 28, 1997 and that the President gave her several Christmas presents at this meeting. Ms. Lewinsky further testified that at some point in the conversation, she said to the President, `Maybe I should put the gifts away outside my house somewhere or give them to someone, maybe Betty.' Ms. Lewinsky recalled that the President responded either, `I don't know' or `Let me think about that.'
The President testified that he has no distinct recollection of discussing the gifts with Ms. Lewinsky on December 28. He told the grand jury that:
My memory is that on some day in December, and I'm sorry I don't remember when it was, she said, well, what if they ask me about the gifts you have given me. And I said, well, if you get a request to produce them, you have to give them whatever you have.
In the afternoon of December 28, 1997, Betty Currie drove to Ms. Lewinsky's Watergate apartment and collected a box containing most of the President's gifts. Ms. Currie then drove home and placed this box under her bed. According to Ms. Lewinsky, the transfer originated in a phone call from
Ms. Currie in which Ms. Currie stated, `I understand you have something to give me,' or, `The President said you have something to give me.'
Betty Currie testified that it was Ms. Lewinsky who first raised the idea of the gift transfer, either in person or over the telephone. Ms. Currie testified that she did not remember the President ever telling her to call Ms. Lewinsky or to pick something up from Ms. Lewinsky.
Monica Lewinsky testified that Ms. Currie came over to pick up the gifts at `around 2:00 pm or so'. Cellular phone records reveal that Ms. Currie phoned Monica Lewinsky's home at 3:32 on December 28th and had a conversation of one minute or less.
The evidence against the President on the gifts issue is equivocal where the idea returning the gifts in the conversation between the President and Monica Lewinsky originates with Ms. Lewinsky; Ms. Currie says she does not remember the President telling her to call or pick up something from Ms. Lewinsky; the time of the call as shown on the cell phone records conflicts (3:32 pm) with Ms. Lewinsky's version of the sequence of events and the President gave Monica Lewinsky more gifts on December 28, 1997, the same day that efforts were made for the return of some of the gifts.
In December, 1997 and January, 1998, the President's close friend, Washington attorney Vernon Jordan, helped find Monica Lewinsky a job in New York City. On Friday, December 5, 1997, the President's attorneys received a witness list for the Paula Jones case. Monica Lewinsky was included on this list.
On December 11, 1997, Judge Susan Webber Wright issued an order which stated that Paula Jones was entitled to `information regarding any individuals with whom the President had sexual relations or proposed or sought to have sexual relations and who were during the relevant time frame state or federal employees.' This order made it clear that Ms. Jones would be able to subpoena Monica Lewinsky.
On December 11, 1997 Mr. Jordan and Ms. Lewinsky met and Mr. Jordan took concrete actions to help Ms. Lewinsky find a job. Mr. Jordan placed calls on her behalf to three business contacts. Mr. Jordan also told her to send letters to three additional business contacts that he provided to her. This meeting and the phone calls took place prior to the issuance of Judge Wright's order of the same day.
On January 7th, Ms. Lewinsky signed an affidavit denying a sexual relationship with the President. On January 8th, Ms. Lewinsky had an interview with McAndrews and Forbes in New York. Afterwards, she phoned Vernon Jordan to report that the interview had gone poorly. Vernon Jordan immediately phoned Mr. Ron Perelman, the CEO of McAndrews and Forbes, and asked for this help. The next day, Ms. Lewinsky was given another interview and was extended an offer to work for Revlon, a subsidiary of McAndrews and Forbes.
Vernon Jordan defended his efforts to help Monica Lewinsky get a job as a payback for help he secured as a young lawyer in getting a job when he was a victim of racial discrimination. Jordan testified that he told no one at Revlon that Monica Lewinsky was a witness in a case involving the President and that Revlon offered Monica Lewinsky a job because she was qualified.
If the Revlon job offer was part of a plan or conspiracy to obstruct justice, then Vernon Jordan would have had to be part of that. The House Managers raise no such contention.
An important piece of evidence on this issue was the uncontradicted testimony of Monica Lewinsky that she intended to deny her relationship with the President from the outset before she was subpoenaed or the President coached her or Vernon Jordan helped her get a job.
LIMITATIONS ON THE HOUSE MANAGERS
The signals to the House Managers from the Senate were unmistakable that the Senate was unlikely to approve depositions if the list was too long. Responding to that advance notice, the House Managers submitted only three names for depositions necessarily leaving off potentially important witnesses like Ms. Currie. Given the absence of live witnesses and limitations on depositions, the House Managers have been compelled to rely on transcripts from questioning by the Independent Counsel in grand jury proceedings. Those transcripts have left many key issues unresolved.
TV AND THE TRIAL
The Senate proceeding posed a curious dichotomy with one hundred sitting silent Senators in the Chamber and non-stop Senators' interviews in the corridors and media galleries. The case was really not being tried in the Senate Chamber, but in a sense was being tried in the Senate corridors, on the evening TV interview shows and on the Sunday talk shows.
I declined TV interviews after the day the trial began on the ground that my oath to do `impartial justice' was in jeopardy by interviews on the day's proceedings which might conflict with my juror's functions. Again, oddly, on the occasions when Senators were permitted to speak on the Senate floor on the motion to dismiss and the Resolution on depositions, the sessions were closed so that the public could not hear our debate.
Efforts to open the Senate proceeding during final deliberations also failed to get the two-thirds vote to overturn the Senate rule closing the Chamber. I thought the public and posterity should know the reasons for our votes as a guide for today and the future. The informal, seat-of-the pants, corridor comments may be found in the CNN or MSNBC files, but there will be no Senate videotape to record what could be important Senators' views.
Each Senator individually and the Senate collectively took an oath to do `impartial justice'.
The Senate has done only `partial justice', a double entendre, both (1) in the sense of not doing `impartial justice' to the House Managers by unduly restricting them in the presentation of their case; and, (2) `partial justice' in the sense of hearing only part of the evidence.
When the Senate prohibited live witnesses and permitted only three videotaped depositions, the House Managers had one hand tied behind their back. There has been no `trial' but only a `pseudo-trial' or a `sham trial'. The best the House Managers could do was to cut, paste and glue together transcripts from the Independent Counsel's grand jury proceedings. Ms. Lewinsky testified briefly on videotape and the President gave two vague, evasive depositions.
The House Managers could not meet the heavy burden of proof beyond a reasonable doubt. That is the only appropriate statement where the underlying charges are the crimes of perjury and obstruction of justice.
Had the House Managers sustained that burden under these Articles, there was a further burden of persuasion, as I see it, to establish that the national interest warranted removal from office.
Perjury and obstruction of justice are serious offenses which must not be tolerated by anyone in our society. However, I remain unconvinced that impeachment is the best course to vindicate the rule of law on this offensive conduct. President Clinton may still be prosecuted in the Federal criminal courts when his term ends. His lawyers have, in effect, invited that prosecution by citing it as the preferable remedy to impeachment.
A criminal trial for the President after his term ends may yet be the best vindicator for the rule of law.
If the full weight of the evidence with live witnesses had been presented to the Senate instead of bits and pieces of cold transcript, it is possible that the Senate and the American people would have demanded the President's appearance in the well of the Senate. Under firm examination, the President might have displayed the egregious character described harshly by his defenders in their proposed censure petitions. That sequence might have led to his removal.
But on this record, the proofs are not present. Juries in criminal cases under the laws of Scotland have three possible verdicts: guilty, not guilty, not proven. Given the option in this trial, I suspect that many Senators would choose `not proven' instead of `not guilty'.
That is my verdict: not proven. The President has dodged perjury by calculated evasion and poor interrogation. Obstruction of justice fails by gaps in the proofs.
Many Senators have sought to express their gross displeasure by findings of fact or censure. I reject both. The Constitution says judgment in cases of impeachment shall not extend beyond removal and disqualification from future office. Under the crucial doctrine of separation of powers, the Congress is not and should not be in the business of censuring any President. We are properly in the business of examining our own conduct as Senators. On that score, on the record of this `pseudo-trial', it is my view that the Senate failed to fulfill the Constitutional mandate to `try' this case.
I ask unanimous consent that Appendices A, B and C be printed in the Record.
There being no objection, the appendices were ordered to be printed in the Record, as follows:
When the Republican and Democratic caucuses could not agree on the preliminary procedures and witness issue, including depositions, a vote was set for late afternoon on January 7th. That vote was canceled in an effort to achieve a bi-partisan compromise. A joint caucus was then held in the Old Senate chamber at 9:30 am on January 8th where the outline of a procedural agreement was reached for the first stage without resolving the witness or deposition issues, but deferring them until we knew more about the opposing parties' cases.
While a resolution of agreement was being drafted in the early afternoon fleshing out the compromise, Senator Lott asked Senator Kyl, Senator Sessions and me to explore the case to determine what witnesses, if any, the Senate should hear to make its decision. In mid afternoon, Senators Kyl and Sessions and I met with Chairman Henry Hyde and some of the House Managers to inform them of the joint discussions, to get a preliminary idea of their thinking on witnesses and to set up a meeting for the afternoon of January 11 to get their specification on what witnesses they believed necessary for the Senate trial. Later on the afternoon of January 8th, Resolution 16 was agreed to 100 to 0.
In an effort to carry out a bi-partisan approach, I called Senator Lieberman on the morning of January 11th to invite him and/or other Senate Democrats to an afternoon meeting with House Managers. He said he would check with Senator Daschle and then called back to decline. Senators Kyl, Sessions and I met with the House Managers that afternoon to review their witness list. We advised them that the Democrats were opposed to witnesses and there was opposition among Republican Senators to a lengthy trial with many witnesses. We said their best opportunity for witnesses would be to show conflicts in the record testimony which could establish the need for seeing and hearing the witnesses to evaluate their demeanor. They responded they needed witnesses beyond conflicts to show the tone and tenor of their case. We said they might consider using their 24 hours of opening statements to develop the need, as they saw it, for specific witnesses.
I called White House Counsel Charles Ruff on January 12th advising him of the meeting with House Managers stating that Senators Kyl, Sessions and I were interested in meeting with the President's attorneys. Mr. Ruff called back on January 13th declining the invitation.
On January 25th, in advance of consideration of Senator Byrd's motion to dismiss and Senator Lott's resolution on taking depositions, Senator Lott requested Senator Kyl and me to talk again to House Managers to determine how many witnesses they would need and for what purpose. Senator Lott had extended an invitation to join in those discussions to Senator Daschle who declined. Before that meeting was held on January 25th, I advised Senator Lieberman of the scheduled meeting and told him Senator Daschle declined Senator Lott's invitation.
Between our January 11 and January 25th meetings with House Managers, there had been numerous public comment by Republican Senators opposing many witnesses even for depositions with some expressing possible opposition to any deposition witnesses. When Senator Kyl and I met with House Managers on January 25th, we said it was problematic whether there would be 51 or more votes for a lengthy witness list.
In arguments before the full Senate, House Managers complained about the limitations on deposition witnesses and expressed their interest in calling live witnesses with latitude to develop their cases as they saw fit in accordance with regular trial practice.
Late in the evening on January 26th after closed door Senate debate on calling witnesses for depositions, Senator Carl Levin and I discussed a bi-partisan compromise. We continued that discussion early the next morning and presented our views to our respective caucuses on January 27th. While Senator Levin and I did not agree on all points, we were closer together than our caucuses. At mid-day on January 27th on an almost straight party line vote, the Senate decided to take depositions of only three witnesses.
For the balance of the afternoon of January 27th and all day on the 28th, there were strenuous efforts to agree on deposition procedures. Democrats were adamant that the depositions should not be videotaped; or, if videotaped, on the commitment that they could be viewed only by Senators and limited staff. Republicans insisted that the depositions should be videotaped deferring the decision on whether they would be used as a substitute for live witnesses. Late in the afternoon Senator Lott's resolution was adopted to videotape the depositions without specifying their use after defeating Senator Daschle's amendment to limit the depositions to a typed transcript without videotapes.
After those depositions were taken, on February 4, 1999, the Senate voted to exclude live witnesses and to see the videotapes of the three deposed witnesses after the defeat of Senator Daschle's amendment to limit the depositions to the typed transcript only without videotapes.
December 10, 1998.
To: Senator Trent Lott, Majority Leader.
From: Senator Arlen Spector.
As a follow up to our recent meeting, this memorandum sets forth my thinking on how to handle the impeachment proceeding if it reaches the Senate and my analysis on some of the legal issues as follows:
1. May the Senate consider in the next Congress articles of impeachment passed by the House in this Congress?
2. Must the Senate trail begin the day following the House presentment?
3. Is censure authorized in an impeachment proceeding?
4. Must/should the Senate hear testimony from live witnesses?
5. How long will the Senate impeachment trail take?
6. Possibility of conviction
7. Concluding observations
MAY THE SENATE IN THE 106TH CONGRESS CONSIDER ARTICLES OF IMPEACHMENT PASSED BY THE HOUSE OF REPRESENTATIVES IN THE 105TH CONGRESS?
Yes. Precedents hold that the Senate may carry an impeachment over into a subsequent Congress. As noted in the addenda to the Rules on Senate Impeachment Proceedings:
`Articles of impeachment against Harold Louderback, a United States district judge for the northern district of California were exhibited on March 3, 1933, at the end of the second session of the 72d Congress, and the trail occurred during the first session of the 73d Congress, . . .
`At the end of the 100th Congress, the Senate adopted a resolution to continue into the 101st Congress the proceedings in the impeachment of Alcee L. Hastings, a United State judge for the southern district of Florida'.
Notwithstanding a contrary opinion given at the House proceeding, it is my judgment that these practical precedents would virtually certainly be upheld if any judicial challenge was attempted because of the decision of the United States Supreme Court in the case involving Judge Nixon where the Court held the Senate had the authority to establish procedures under the impeachment clause.
MUST RULE III ON SENATE IMPEACHMENT PROCEDURE BE READ LITERALLY TO REQUIRE CONTINUOUS CONSIDERATION BY THE SENATE THE DAY FOLLOWING HOUSE PRESENTATION OF ARTICLES OF IMPEACHMENT?
No. While Rule III appears to impose such a rigid requirement on its face, the Rules taken on the whole and prior practice show the Senate may establish a more flexible schedule.
The specific language of Rule III provides: `Upon such articles of impeachment being presented to the Senate, the Senate shall, at 1 o'clock afternoon of the day (Sunday excepted) following such presentation, or sooner if ordered by the Senate, proceed to the consideration of such articles, and shall continue in session from day to day (Sundays excepted) after the trial shall commence (unless otherwise ordered by the Senate) until final judgment shall be rendered.'
Other Rules provide for intervening action between the time the articles are presented by the House to the Senate and subsequent proceedings before the Senate. For example, Rule 8 provides for a writ of summons to be issued to the person impeached with a date to appear before the Senate.
The impeached party is given a date to answer the Articles and the House is then given a date to reply.
For example, in the trial of President Andrew Johnson, the President was given 17 days to prepare his answer (his counsel had requested 47 days to prepare). The House managers took one day to file their brief reply to the President's answer. In the 1989 trail of Judge Walter Nixon, the Judge was given 29 days to prepare his answer, and the House was given 12 days to file its response.
These rules and that prior practice demonstrate that there is a necessary time lapse between the presentation of the Articles to the Senate and the commencement of further Senate hearings or proceedings.
IS CENSURE AN AUTHORIZED CONSEQUENCE OR REMEDY IN AN IMPEACHMENT PROCEEDING?
No. The specific language in the Constitution Article 1, Section 3, Clause 7 contains the clear implication that judgment in an impeachment proceeding shall not include censure or any consequence or remedy other than that specified in the Constitution: `Judgement in Cases of Impeachment shall not extend further that to removal from Office, and disqualification to hold and enjoy any Office of Honor, Trust or Profit under the United States.' The language `shall not extend further' than the enumerated consequences or remedies precludes any judgment beyond `removal from office' and `disqualification to hold and enjoy any Office of Honor, Trust or Profit under the United States'.
Further support for the conclusion that impeachment does not contemplate penalties like censure is contained in the historical references. Of the fifteen individuals impeached by the House of Representatives, all seven convicted by trial in the Senate were removed from office.
Contrasted to censure, impeachment and removal from office are not intended to be a punishment. In his `Commentaries on the Constitution of the United States,' Justice Joseph Story notes that impeachment `is not so much designed to punish an offender as to secure the state against gross political misdemeanors. It touches neither his person nor property but simply divests him of his political capacity.'
Consequently, the impeachment process does not contemplate Congress imposing any penalty, including censure, as part of an impeachment proceeding. Once the impeachment proceeding is concluded, it is a different issue as to whether Congress can pass a resolution of censure in the same manner Congress enacts resolutions generally.
WOULD THE CONSTITUTIONAL REQUIREMENTS OF THE SENATE IMPEACHMENT PROCEEDING BE SATISFIED BY THE FACTUAL RECITATIONS IN THE STARR REPORT OR IS THE SENATE OBLIGATED TO HEAR TESTIMONY FROM LIVE WITNESSES?
While the Constitution provides no explicit answer, inferences from the Constitution, the Senate Rules on Impeachment and the prior practice strongly suggest that live witnesses were contemplated by the framers instead of merely a hearsay report.
The Constitution explicitly provides for a trial in the provision of Article 1, Section 3, Clause 6: `The Senate shall have the sole Power to try all impeachments' (Emphasis added). The seriousness and magnitude of removal of a Federal official, especially the President, suggests that the jury (senators) should have the best evidence and that would require something more than a hearsay document no matter how extensive and explicit the Starr Report may be.
That clause further provides: `and no person shall be convicted without the concurrence of two-thirds of the Members present' (Emphasis added). The use of the word `convicted' again refers to a phase or the consequence of trial and the analogy to a criminal proceeding. While the Senate is not bound by traditional rules of evidence so that we might consider matters not admissible in a court of law, it would seem questionable or appear unseemly to base our judgment exclusively on hearsay on such an important proceeding.
The provisions of Article 1, Section 3, Clause 7 carry forward the analogy of trial referring to the ultimate `judgment': `Judgment in cases of impeachment shall not extend further . . .' (Emphasis added).
The Senate Rules on Impeachment further contemplate, although do not necessarily mandate, a proceeding with live witnesses and opportunities for the examination and cross-examination of such witnesses. For instance, Rule 6 provides that: `The Senate shall have power to compel the attendance of witnesses. . . .' Rule 17 provides that: `Witnesses shall be examined by one person on behalf of the party producing them, and then cross-examined by one person on the other side.'
Although the Rules never explicitly give the parties the right to call witnesses, the language `on behalf of the party producing them' in Rule 17 implies that the parties do have such a right. The practice of the Senate confirms this implication that the parties have the right to call witnesses. For example, in the trial of Andrew Johnson, witnesses for the President were called and heard over a period of one week. In the trial of Alcee Hastings, both sides were allowed to call a total of 55 witnesses.
The foregoing analysis does not conclusively rule out the propriety of proceeding on the Starr Report.
The House of Representatives relied upon the Starr Report for the facts even though the practice of the House in prior impeachment hearings has been to take testimony from witnesses. `Hinds' Precedents of the House of Representatives' notes that witnesses were called during the House impeachment hearings on Senator Blount and Judge Perry. More recently, during the House deliberations on the impeachments of President Nixon, Judge Claiborne, Judge Hastings and Judge Nixon, numerous witnesses were called to lay a factual basis for the impeachment charges. In the case of Judge Nixon alone, witnesses provided testimony to the House committee for over a month.
As a practical matter, it is obvious the House did not take the time to hear witnesses because the House proceedings were structured to finish in the abbreviated time frame between the election of November 3rd and the end of the year. Starting in mid-November and seeking to finish shortly after mid-December, that time frame was even further constricted.
HOW LONG WILL THE SENATE IMPEACHMENT TRIAL TAKE?
It depends entirely on what the Senate seeks to do and what parameters are established.
If the Senate peremptorily chooses to dismiss the House articles without consideration, there is authority that could be accomplished at the outset by a majority vote on a motion to adjourn. Since there is no specific Rule relating to the adjournment of an impeachment trial, the general rules of the Senate would apply. A motion to adjourn the Senate requires only a majority vote and is not subject to debate. The Senate impeachment proceeding could be concluded by adjournment with, in effect, a dismissal which would be the equivalent of a nol pros in a criminal case. That is the equivalent of a judgment of acquittal. The Senate would then resume its normal business.
There is historical precedent to concluding the Senate impeachment proceeding by passing a motion to adjourn. In the impeachment trial of Andrew Johnson, the Senate voted on three of the eleven articles of impeachment. After failing to secure a conviction on these three articles, Senator Williams moved that the Senate sitting as a court of implement adjourn sine die. The motion carried and the trial of Andrew Johnson ended prior to a vote on the remaining eight articles.
If the Senate chose to accept the facts of the Starr Report, the entire trial could be relatively brief if the President did not put on a factual defense.
An adequate Senate trial need not necessarily be long. The key witnesses would be Monica Lewinsky, Betty Currie and Vernon Jordan and possibly Kathleen Willey. There may be a few other peripheral witnesses such as Judge Susan Webber Wright. It is hard to calculate but it will probably be a matter of weeks, not months. That estimate would be expanded if President Clinton testifies and/or if he puts on a factual defense.
POSSIBILITY OF CONVICTION
This matter has had unprecedented and unpredictable turns of events. The President's August 17th short speech was a bomb. The House's release of the President's grand jury deposition reversed the tide. The President's answers to the House questions reversed the reversal.
It is entirely conceivable that a Senate trial could defy conventional wisdom and find the two-third votes for conviction if the evidence is properly presented focusing on abuse of power and obstruction of justice instead of lying about sex. While impossible to quantify with precision, it may be that there are now about fifty votes for conviction, perhaps a half dozen open minds and maybe another dozen senators might be persuadable if they think there is insufficient political cover to acquit.
Monica Lewinsky has the potential to be a strong witness because her recollection is so extraordinary. She was able to pinpoint with precision the two dates when, as she put it, the President received telephone calls from a congressman with a nickname and a sugar grower in Florida with a name something like `Fanuli'. It was later confirmed that the President had talked on those two dates to Congressman Sonny Montgomery and a Florida sugar grower named Alfonso Fanjul.
Although Betty Currie's testimony was watered down as the investigation proceeded, questioning her from her first statement might provide highly incriminating testimony on the obstruction charge. Vernon Jordan's testimony has substantial potential on the abuse of power issue. Jordan testified he reported to the President `mission accomplished' after Monica Lewinsky's perjurious affidavit was obtained and Jordan secured a job for Ms. Lewinsky with Revlon. When her initial interview went badly, Jordan called Ronald Perelman, head of Revlon's holding company, and Ms. Lewinsky was recalled the next day for another interview and given a job on the spot.
The case is also reportedly strong on the perjury charge against the President on the incident involving Kathleen Willey. Judge Susan Webber Wright's testimony, in observing the President's attentiveness at this deposition in the Jones' case, could undercut the President's contention that he wasn't paying attention when his lawyer strenuously argued for the President's
As you know, my own initial preference was for both Houses to abandon impeachment proceedings and to then hold the President accountable through the judicial criminal process once his term was over leaving the Congress free to attend to the nation's other business: social security, health, education, etc.
My view on waiting to hold the President accountable after he leaves office was based on the blunt proposition that it was more trouble to get rid of him than to keep him. It may well be that the public opposition to impeachment had the same basis. Once we get to the Senate trial, my view may change if it is no more trouble to get rid of him than to keep him. Perhaps the public will have a similar change of heart.
If the House returns Articles of Impeachment, the Senate should proceed with a dignified trial with the calling of witnesses because the seriousness of the issue and the historical impact call for an unhurried, deliberative trial. To the maximum extent possible, we should make the proceeding non-partisan. Concessions to the minority on some procedural matter would be worthwhile. As the majority party in charge, we should take the lead on non-partisanship. We should avoid the House bickering at all reasonable costs.
The Senate prides itself on being the world's greatest deliberative body. This trial will be by far the highest visibility for the Senate in its history to date and for the foreseeable future. While the President will be on trial, the Senate will also be on trial.
December 29, 1998.
To: Senator Trent Lott, Majority Leader.
From: Senator Arlen Specter.
Supplementing my memorandum of December 10 and our telephone conversation of December 22, this memo suggests procedures to deal with the Senate trial in light of the public dissatisfaction with the House proceedings, public impatience with impeachment generally and ways to achieve a judicious, non-partisan Senate trial. Since this memorandum was written while I have been traveling, the rules and case citations could be checked only by long-distance telephone.
CAN PROCEDURES BE STRUCTURED TO SHORTEN THE LENGTH OF THE TRIAL?
Yes. While it is impossible to say with certainty the duration of any trial, procedures can be put into place to abbreviate the trial with a reasonable likelihood of reaching a verdict within a few weeks (perhaps even three weeks as earlier predicted by you--Senator Lott) as contrasted with some assessments that the trial would take months or the better part of a year.
The Senate already is under pressure and will probably be under greater pressure to finish at an early date which accounts for the call for short-circuiting the trial through a plea-bargained censure. It is obviously in the national interest to end the trial as soon as possible without rushing to judgment and it would doubtless meet with public approval to announce at the outset a plan to accomplish that.
Several steps could be taken to abbreviate the trial time:
(1) Require submission of pre-trial memoranda by the parties followed by a pre-trial conference with the Chief Justice to establish the parameters of the trial;
(2) Organize the House Managers' case, with input from the Senate, to focus on only the key witnesses and indispensable lines of questions; and
(3) Establish long trial days and Saturday sessions.
Without management and limitations, the lawyers could take a long, indeterminate time. By analogy to Federal court litigation, this trial could be managed by having the parties submit pre-trial memoranda which would identify any pre-trial motions, list prospective witnesses and lines of questions, etc., and approximate the time involved at each stage.
The Chief Justice would then meet with the parties and issue a pre-trial order establishing the trial parameters just as the presiding judge does in Federal court trials.
AN ACTIVIST, BIPARTISAN SENATE
In an impeachment trial, Senators function in a very unusual way in that we are both jurors and judges. A majority of Senators may overrule the Chief Justice's rulings. We decide individually for ourselves what is the burden of proof and what evidence on what conduct is sufficient for a guilty verdict.
The Senate will be proceeding without precedent on most issues. The Senate has broad latitude as noted by the Supreme Court of the United States in the case of Judge Nixon where the
This case and these times call for a more activist approach by the Senate than prior impeachment trials. While it was not inconvenient or problemsome to allow the House managers to set the pace for the Hastings, Nixon or Claibourne trials, this is obviously a very different matter. The impeachment trials of President Johnson and those which occurred earlier offer little guidance on how the Senate should proceed today.
The existing Senate rules on impeachment are a starting point. They can be changed by a majority vote unless there is disagreement in which case proposed changes are debatable and subject to a two-thirds vote.
It is only through bipartisanship that the Senate can succeed in having a judicious, non-partisan trial which can gain public acceptance. So, all significant procedures must have the concurrence of most Senators from both parties.
In my judgment, it would be appropriate and practical to structure the presentation of the evidence by having a small bipartisan Senate committee work with the House managers and President's lawyers on what the Senate wants presented in a tightly focused case, taking into consideration any differences with the House managers which could then be worked out.
Arguments in appellate courts customarily take the form of the appeals judges focusing on the questions they want addressed by counsel as opposed to having the lawyers decide how to use their allotted time. It would be analogous to such appellate proceedings to have the Senate direct, or work out collaboratively with the House the evidence the Senate wants to hear.
I suggest that a small committee, perhaps five Senators with three Republicans and two Democrats, work up a trial format and trial brief. It will be helpful for the Senators to have prosecution or criminal defense experience. This Senate committee, or perhaps one Republican and one Democrat, should participate in preparation of the pre-trial memorandum and pre-trial conference.
LONG TRIAL SESSIONS
Substantial evidence could be presented with trial days from 9:30 am to 5 pm or even 9 am to 6 pm with Saturday sessions. The Philadelphia criminal courts had the minimum trial day established from 9:30 am to 5 pm. Senate Impeachment Rule 3 provides for Saturday sessions in impeachment trials.
I recommend against the so-called double track with the Senate sitting half days on the trial and half on other Senate business. There is too much legitimate public concern to have the trial proceed expeditiously and end as soon as possible. Even with the trial ending at 5 pm or 6 pm, some Senate business could be conducted in the evenings on confirmations or other business which can be handled by unanimous consent.
We might consider canceling our February and March recesses for the trial, which would likely produce significant public approval.
THE IMPORTANCE OF LIVE WITNESSES
I strongly recommend live witnesses on the key issues although there is no prohibition against use of hearsay such as the Starr Report. Prior impeachment cases establish the precedent for live witnesses and the Senate rules provide procedures for live witnesses. Live witnesses have customarily testified in House impeachment proceedings. In the Senate, for example, live witnesses testified in cases involving President Johnson and in the most recent impeachment case on Judge Alcee Hastings. Senate Rules 6 and 17 establish procedures for dealing with witnesses.
The dignity, tenor and stature of the Senate Trial call for live witnesses on an impeachment of this magnitude. Everything the Senate does will be subjected to a microscope both contemporaneously and historically. While it is a sweeping generalization, I think it is fair and accurate to say that no trial in history to date has been or will be so closely watched.
We have some gauge as to how closely this trial will be scrutinized from the work of the Warren Commission which has been the most closely dissected investigation in history. Notwithstanding constant pressure from Chief Justice Warren, who wanted the inquiry concluded at an early date, the staff lawyers insisted on extended tests and extensive interrogation knowing the record would be closely examined. At that time, we couldn't conceive of the extent of the scrutiny, but we had some inkling
It may be sufficient to use the Starr Report to establish some of the lesser proofs for the record.
Without attempting to be dispositive on who are all the key witnesses and what are all the indispensable lines of questioning, a suggested focused strategy would be to call:
(1) Monica Lewinsky to testify on the perjury issue by covering the numerous times she and the President were alone (he claimed they were never alone) and the specifics of their conduct on the issue as to whether they had sex.
It may be wise to have her testify in a closed session on the details of their sexual relationship. In retrospect, the Judiciary Committee might have been wise to hear some of the testimony by Prof. Hill and Justice Thomas in a closed session. In the confirmation hearing of Justice Breyer, testimony was taken in a closed session on his finances.
Even though most, if not all, of Ms. Lewinsky's testimony has already been made public, it would be less offensive to public taste and arguably less prejudicial or more considerate of the President to avoid the spectacle of television on the specifics of their sex. Any objection to the closed or secret hearing could be largely answered by releasing a transcript to the public at the end of each daily session.
If the President testifies, consideration should also be given to a closed session on the specifics of their sexual activities. It is arguably, and perhaps realistically, different to have a closed session with the President, but these questions will have to be thrashed out at the time depending on the feel of the case if, as and when they arise.
In order to have a closed session, there would have to be a modification of Rule 20 which requires the Senate doors to be open except during deliberation.
(2) Vernon Jordan to testify about contacts with the President including his telephone call where he reported `mission accomplished' after arranging with another lawyer to get Ms. Lewinsky's perjurious affidavit and getting her a job with Revlon.
(3) Betty Currie to testify on the President's efforts to alter and mold her version of what happened. Even though Ms. Currie gave several statements, the essential elements of her testimony could be put on the record at trial by going through her first statement to the FBI.
The President's possible testimony is considered later in this memorandum.
SHOULD THE SENATE TRIAL BE TERMINATED BY AN ARRANGED DISPOSITION FOR CENSURE?
No, for several reasons:
(1) The Constitution specifies the two remedies or consequences in cases of impeachment which necessarily excludes censure: `Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States'--Article 1, Section 3, Clause 7. The language `shall not extend further' specifically precludes censure or any other remedy not enumerated in the Constitution.
The argument is now being strenuously advanced by many, including some Senators, that the impeachment trial should be ended at an early stage by a motion to adjourn the Senate and then, by pre-arrangement, taking up a Resolution of Censure to be approved by the Senate and House. In my judgment, that would be a perversion of and at variance with the Constitution or, simply stated, unconstitutional.
(2) Censure would be meaningless for this President--not worth a `tinker's dam.'
(3) Censure would be a bad precedent which could be used whenever the Congress of one party wanted to express displeasure or embarrass the President of the other party. Simply stated, the Congress is not in the business of censuring the President under our Constitutional separation of powers.
(4) Censure would prejudice a possible later criminal prosecution of the President after he leaves office. There will be an inevitable sense that censure will constitute a form of punishment or final judgment, although not technically double jeopardy, which would preclude a later prosecution, as a practical matter.
The prospects for censure have been dampened by Vice President Gore's statement that the President would not accept censure conditioned on the President's admitting to lying under
Only a court, not the Senate or Congress, can grant immunity from future criminal prosecution. The Senate can take steps to have immunity granted by the Court. But that action can be taken only after the President or any witness asserts the privilege against self-incrimination under the Fifth Amendment. The Court then grants immunity and the testimony cannot be later used against that person in a criminal prosecution.
Since the President has announced his unwillingness to admit to lying under oath, it is fruitless to suggest the Fifth Amendment course.
PRESIDENT CLINTON'S POSSIBLE TESTIMONY
For the Senate to have all the facts--or all versions of the facts from which Senator-jurors must determine what the facts are, the Senate should hear from the President. It may be that the President will choose to testify; and as a matter of comity, the Senate should await the President's decision.
If the President elects not to testify, the Senate will be faced with a difficult legal question and perhaps an even more difficult political question. On its face, Impeachment Rule 6 gives the Senate the authority to compel the President to testify:
`The Senate shall have the power to compel the attendance of witnesses' and `to enforce obedience to its orders, mandates, writs, precepts and judgments.'
Notwithstanding that express language, some doubt has arisen as to whether the President is subject to compulsory process (subpoena) because of Rule 8 which provides:
`A writ of summons shall issue to the person impeached reciting said articles and notifying him to appear before the Senate upon a day and at a place to be fixed by the Senate . . . and file his answer to said articles of impeachment. . .
`If the person impeached, after service, shall fail to appear, either in person or by attorney, on the day so fixed therefore as aforesaid, or appearing, shall fail to file his answer to such articles of impeachment, the trial shall proceed, nevertheless, as upon a plea of not guilty.'
Some have cited President Johnson's refusal to appear at the Senate trial as authority for the proposition that the President cannot be compelled to attend and testify. That inference is unsound because Rule 8 refers to responding to the summons and filing an answer `either in person or by attorney.' So the attorney's action satisfies the rule without the appearance or other action by the President. Accordingly, the impeached party complied with the Senate rules in President Johnson's case which did not raise the issue of the Senate's power to compel the President to testify.
There is no precedent for a case where the impeached official declined to testify and the Senate attempted to compel his testimony. The other impeachment cases offer no close analogy where, as here, critical facts are known to only two people, one of whom is the impeached official.
Analogies from other, although dissimilar, trials suggest the President would be subject to being subpoenaed. The Supreme Court of the United States held President Nixon was subject to compulsory process to turn over the famous tapes under the established principle: `That the public . . . has a right to every man's evidence.'
President Nixon's case, although not dealing with impeachment, is further instructive in the Supreme Court's sweeping language on the need for all the facts:
`The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of the courts that compulsory process be available for the production of evidence needed either by the prosecutions or the defense.'
Since this is not a criminal trial, there would be no rule that a defendant has the right not to testify. Although not a controlling analogy, a party in a civil case may be called involuntarily to the witness stand by his/her opponent `as on cross' which means he/she may be cross-examined.
In my legal judgment, President Clinton could be compelled to testify based on Senate Rule 6, analogies to compulsory process in President Nixon's case and civil litigation and the fact that President Clinton was subject to compulsory process in the Paula Jones case and Starr grand jury. Consideration of
If the President did testify, it could have a profound effect on the public's view of the case and on the Senator-jurors. The President's lawyers could not shield him from cross-examination and he could not avoid the specifics on his contacts with Ms. Lewinsky as he did in his abbreviated grand jury testimony.
If the President sticks to his story that he did not have sex with Ms. Lewinsky and did not lie under oath at his deposition in the Paula Jones case, his credibility could be severely impugned by pointed cross-examination and he could be viewed very negatively by the public and the Senator-jurors. Or, it may be that the public and many Senator-jurors would not be any more adversely affected by his Senate trial testimony than they were by the videotapes of his grand jury testimony.
At this moment, it is impossible to judge what the feel or tenor of the trial would be on subpoenaing the President if, as and when he declined to testify after serious incriminating evidence was presented against him. If subpoena sentiments formed along party lines, it would be the most severe test of acting only with a bipartisan consensus.
Over several centuries, litigation experience has demonstrated the unpredictability of trials. That is why they are called trials. A two-thirds majority may not appear out of thin air, as noted by Congressman DeLay, but it could appear from forceful presentation of the key evidence including cross-examination of the President. If the trial turned heavily against the President, it is conceivable, although highly unlikely at this point, that a plea bargain could be structured with the Independent Counsel's concurrence that the President would resign with his pension, his law license and immunity from prosecution.
Once a trial starts, the genie is out of the bottle and anything can happen. Emotions in all directions are at an all-time high with Republicans, the President, Democrats or anybody else in the line of fire at risk for the ultimate public scorn. An the public's other business would not be attended to forever how long the trial took.
That is why I continue personally to favor putting off holding the President accountable until after his term ends through the criminal process. That accommodates the public's short-term desires for the Congress, the President and the Supreme Court to focus on the nation's business and the long-term national interest to later hold the President accountable for the serious charges through indictment if the grand jury so decides, and to sentencing by a judge if a jury convicts.
THE PUBLIC REACTION
Prospects are reasonably good that the public would not react unfavorably to a non-partisan, judicious, focused, relatively brief Senate trial. In addition, the public would likely understand the Senate has an explicit Constitutional duty to hold a trial after Articles of Impeachment are passed by the House. There has already been a bipartisan recognition of this duty by Senators who are Democrats.
Public reaction, as gauged by the polls, was adverse to the House proceedings, at least in part, because of their highly partisan, strident tenor; and because the House never zeroed in or highlighted the highly incriminating evidence. There may even be some grudging public approval that Congress is willing to take action on a significant matter contrary to the polls.
A favorable public reaction will depend largely if not exclusively on the public's feeling that the proceedings are bipartisan, so the Senate must take extreme care to make the trial bipartisan. As the majority party, we Republicans should bend over backwards to avoid even the appearance of seeking partisan advantage which marred the House proceedings.
I strongly support the suggestion that there should be no separate party caucuses on impeachment issues. It would be useful to convene all Senators at an early date, such as January 8, 1999, when we will all be in town, to discuss ideas on how to proceed. I recollect one such meeting of all Senators from both parties a couple of years ago on appropriations or budget issues near the end of the session.
History will cast a long shadow on what the Senate does in this impeachment proceeding.
The Senate should not, in effect, sweep the matter under the rug by relying on the hearsay Starr Report for the key facts. Some say the Starr Report is a sufficient factual basis for Senate action because the facts are not in dispute. That is not true. A close reading of the President's grand jury testimony and his famous 82 answers to interrogatories demonstrate that he has not conceded the accuracy of the key incriminating evidence.
As detailed above, the Senate can leave it to the criminal courts to put the facts on the historical record and have the indicting grand jury, trial jury and presiding judge hold the President accountable to whatever extent warranted after his term ends.
A rush-to-judgment censure plea bargain would complete the trifecta of inappropriate action by the Senate as well as the House and President.
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