THE IMPEACHMENT TRIAL
Statement of Sen. Thompson (R-Tenn.)
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. THOMPSON. In 1994, Paula Corbin Jones sued President Clinton for sexual harassment which she alleged he committed against her in 1991, when he was Governor of Arkansas. The Supreme Court of the United States permitted the lawsuit to proceed in 1997.
Monica Lewinsky began work as a White House intern on July 10, 1995. At the time, she was twenty-one years old. She later worked in the Office of Legislative Affairs at the White House. In 1996, she left the White House for a job at the Department of Defense.
The first day that Ms. Lewinsky spoke with President Clinton, November 15, 1995, she and the President engaged in sexual relations. Their sexual relationship lasted until 1997. The two also engaged in telephone sex at least seventeen times, and they exchanged numerous gifts. The two agreed to keep their relationship secret through the use of cover stories. Ms. Lewinsky, if discovered in the Oval Office, was to say that she was delivering papers, although her job duties never included delivering papers. Once she left the White House, her visits to the President were disguised as visits to Presidential secretary Betty Currie.
The President told Ms. Lewinsky that she could return to the White House after the 1996 election had concluded. Although Ms. Lewinsky tried numerous times to regain employment at the White House, she was never able to do so. After being informed by a friend, Linda Tripp, that she would never be permitted to return to the White House, Ms. Lewinsky decided to seek employment in New York, initially receiving and rejecting a job offer with the United States Ambassador to the United Nations. She then decided to seek employment in New York in the private sector. On November 5, 1997, she met with Vernon Jordan, a prominent Washington lawyer and friend of President Clinton, to seek his assistance in securing such a position. This meeting was arranged by Ms. Currie. Mr. Jordan took no action to help her in November, and does not remember meeting her at this time.
On December 5, 1997, attorneys for Ms. Jones notified the President's attorneys of their list of witnesses. That list included Ms. Lewinsky. Although she was unaware at the time that her name was on the Jones litigation witness list, Lewinsky coincidentally decided to terminate her relationship with the President the following day, but was unable to see him at the White House. President Clinton and Ms. Lewinsky initially exchanged angry words that day over the telephone, but later that day, she came to the White House at his invitation. During this meeting, Ms. Lewinsky told the President that Mr. Jordan had not appeared to have done anything to help her in her job search. In a conversation Ms. Lewinsky described as `sweet' and `very affectionate,' he told her that he would speak to Mr. Jordan about her job situation. The President did not at that time inform Ms. Lewinsky that her name was on the witness list.
Ms. Currie again called Mr. Jordan, and on December 8, 1997, Ms. Lewinsky called to set another appointment with Mr. Jordan for December 11. Although Ms. Lewinsky provided Mr. Jordan with a list of corporations in which she was interested in obtaining employment, Mr. Jordan determined based on his own contacts which companies he would pursue on Ms. Lewinsky's behalf. Following his meeting with Ms. Lewinsky, acting by his own admission at the behest of the President, Jordan called three corporate executives in New York. He also called the President to report on his efforts on behalf of Ms. Lewinsky.
December 11, 1997 was also the date on which Judge Susan Webber Wright, the presiding judge in the Jones litigation, issued an order permitting Jones' attorneys to pursue discovery concerning the names of any state or federal employees with whom the President had had sexual relations, proposed sexual relations, or sought to have sexual relations.
On December 17, 1997, between 2:00 and 2:30 a.m., the President telephoned Ms. Lewinsky. He informed her that Ms. Currie's brother had been killed, as well as that her name was on the Jones witness list. The President indicated that if Ms. Lewinsky were subpoenaed, she should let Ms. Currie know. He also told her that she might be able to sign an affidavit in that event to avoid testifying. In addition, he suggested that she could say that she was coming to see Betty or was bringing him papers. Ms. Lewinsky says that she understood implicitly that she was to continue to deny their relationship.
Ms. Lewinsky was subpoenaed to testify in the Jones litigation on December 19, 1997. The subpoena also required Ms. Lewinsky to produce all gifts that she had received from the President, and enumerated one specific gift that the President had given Ms. Lewinsky, a hatpin. Because Ms. Currie was in mourning, Lewinsky called Jordan, who invited her to his office. She was in a highly emotional state, and that fact, combined with her statements in the conversation that demonstrated her personal fascination with the President, prompted Jordan to ask whether she, a person for whom he was providing job assistance, had had sexual relations with the President. He says she denied such relations. Jordan took a telephone call from the President during that meeting, and made plans to see him that night. Jordan later called Frank Carter, a Washington lawyer, to arrange a meeting at which he would refer Ms. Lewinsky to Mr. Carter as a client.
Notwithstanding Ms. Lewinsky's denial of sexual relations with the President, Jordan asked President Clinton that same evening the same question. The President also denied having had sexual relations with Ms. Lewinsky. Jordan also conveyed a number of Lewinsky's statements to the President, and informed Clinton that Lewinsky had received a subpoena to testify in the Jones case. Following a discussion in which Lewinsky informed Jordan of the nature of the telephone calls she had had with the President, Jordan drove Lewinsky to a meeting at Mr. Carter's office on December 22.
The President met with Ms. Lewinsky on December 28, 1997, at which time they again exchanged gifts. They discussed the subpoena, and she expressed concern, which the President shared, about the specific enumeration of the hatpin, since that suggested that someone knew details of their relationship. Ms. Lewinsky then suggested taking the gifts out of her apartment or giving them to Ms. Currie. The President responded, `I don't know' or `Let me think about that.' Later that same day, Ms. Lewinsky's consistent recollection is that Ms. Currie called her and stated, `I understand you have something to give me' or `the President said you have something to give me.' Ms. Currie later drove to Ms. Lewinsky's apartment, picked up a box containing gifts the President had given Ms. Lewinsky, and hid that box under her bed without asking any questions.
On December 31, 1997, Jordan and Lewinsky had breakfast. Lewinsky, fearing that her relationship with the President would become known and wanting to ensure that she not appear responsible for its becoming known, told Jordan that she possessed notes she had addressed to the President that suggested the nature of their relationship. According to Lewinsky, Jordan told her to dispose of those notes. Jordan initially denied that he ever had breakfast with Lewinsky,
but later recalled having done so when shown the receipt. But he denied ever telling Lewinsky to destroy any notes.
Ms. Lewinsky pursued filing an affidavit to obviate the need for her to testify in the Jones case. On January 6, 1998, she communicated to Mr. Jordan concerns she had about the affidavit that Mr. Carter had drafted for her. Jordan telephoned Carter with her suggestions. Although Mr. Jordan denies the allegations, Ms. Lewinsky contends that she informed Jordan about the details of Carter's proposed affidavit, and that she and Jordan made changes to it prior to her signing it. Lewinsky also spoke with the President about Carter's questions to her about how she obtained her Pentagon job. The President told her that she `could always say that the people in Legislative Affairs got it for you or helped you get it.'
On January 7, 1998, Lewinsky signed an affidavit denying sexual relations with the President. She later testified that the affidavit was false. She showed Jordan the affidavit, and Jordan spoke with the President after conferring with Ms. Lewinsky about the changes. Lewinsky testified that she believed that the President would be satisfied with any affidavit that Jordan approved.
The following day, Lewinsky was interviewed at a company that Jordan had called on her behalf. Believing that the interview had proceeded poorly, she called Jordan, who then called the head of the holding company of the firm with which she had interviewed. Jordan asked that a second interview be granted Lewinsky. She interviewed again the next day, and was made an informal job offer. Jordan testified that his `magic' was responsible for that offer. Lewinsky informed Jordan of her success, and he telephoned Ms. Currie to notify her: `Mission accomplished.' He later informed the President.
The President was scheduled to be deposed in the Jones litigation on January 17, 1998. The President knew that one of the issues was his relationship with Ms. Lewinsky. For the affidavit to successfully deflect questions to the President concerning that relationship, the affidavit would have had to have been filed in time for the court to consider it and for the President's lawyers to see it before the deposition. The President's lawyers called Ms. Lewinsky's attorney once on January 14, twice on January 15, and once on January 16. On the 15th, Lewinsky's lawyer, Mr. Carter, sent President Clinton's counsel a copy of the affidavit. Mr. Carter also called the court twice on that day to ensure that the affidavit could be filed on January 17.
During his deposition, President Clinton made numerous false statements while under oath. These included the sexual nature of his relationship with Ms. Lewinsky, and whether they had exchanged gifts. He relied on the same cover stories as he had discussed with Ms. Lewinsky. The President's lawyer used Ms. Lewinsky's affidavit in an attempt to deflect questions about the President's relationship with her, specifically stating that the President had already seen that affidavit. As the President appeared to be paying close attention, he did not contradict his attorney when he represented to the court that `there is absolutely no sex of any kind in any manner, shape or form with President Clinton. . . .' And he testified, when asked by his attorney, that Ms. Lewinsky's affidavit was absolutely true. However, the judge insisted that President Clinton answer additional questions about his relationship with Ms. Lewinsky. These questions were asked based on the judge's peculiar ruling that used only one-third of a standard courtroom definition of `sexual relations' and the plaintiff's attorneys' insistence in using that truncated definition as a reference for questions they posed to the President about the nature of his relationship with Ms. Lewinsky, rather than asking specific questions concerning what had occurred. In six instances, the President answered questions by referencing Betty Currie, such as in using the cover story that Ms. Lewinsky had come to the White House to visit Ms. Currie, and on one occasion, expressly stated that his questioners should `ask Betty.' Indeed, Ms. Jones' attorneys later placed Ms. Currie's name on their witness list.
After the deposition, at 7 p.m. that evening, the President called his secretary, Betty Currie, at home. She later testified that she could not remember the President ever calling her at home so late on a Saturday. In that conversation, he asked Ms. Currie to see him in the Oval Office the following day, a Sunday. This was also an unusual occurrence. While in the Oval Office, and contrary to the admonition from the Jones case judge not to discuss his deposition testimony with anyone, the President made the following statements to Ms. Currie: (1) `I was never really alone with Monica, right?' (2) `You were always there when Monica was there, right?' (3) `Monica came on to me, and I never touched her, right?' (4) `You could see and hear everything, right?' (5) `She wanted to have sex with me, and I could not do that.'
Once the President met with Ms. Currie on January 18, Ms. Currie began to seek Ms. Lewinsky. She paged Ms. Lewinsky four times that night. Later than 11:00 p.m. that evening, the President called Ms. Currie at home to determine if she had yet reached Ms. Lewinsky. She had not. In a period of less than two hours on the morning of the 19th, Ms. Currie paged Ms. Lewinsky an additional eight times. The President then called Mr. Jordan, who called the White House three times, paged Ms. Lewinsky, and called Mr. Carter, all within twenty-four minutes of receiving the President's call. Mr. Jordan called Mr. Carter again that afternoon and learned that Mr. Carter had been replaced as Ms. Lewinsky's attorney. Mr. Jordan then called the White House six times in the next twenty-four minutes trying to relay this information. Mr. Jordan called Mr. Carter again, and then called the White House again.
On January 20, the White House learned that a story about the President's relationship with Ms. Lewinsky would appear in the next day's edition of The Washington Post. On January 21, the President told his chief of staff and two deputies that he did not have sexual relations with Ms. Lewinsky. He later told one of those deputies, John Podesta, that he had not had oral sex with Ms. Lewinsky.
Later on January 21, the President told his aide, Sidney Blumenthal, that Lewinsky had made a sexual demand on him, and that he rebuffed her. The President told Blumenthal that Lewinsky had threatened him. President Clinton also indicated that Lewinsky said that she was known among her peers as the stalker, that she hated it, and that she would say that she had an affair with the President whether it was true or not, so that she would not be known as the stalker any more. He also told Blumenthal that he felt like a victim who could not get out the truth. Blumenthal later testified that he believes the President lied to him. The President testified that he was aware at the time that he made his statements that his aides might be summoned before the grand jury.
The President also met with his political consultant, Dick Morris, on January 21. The President authorized that Morris conduct an overnight poll measuring potential public reaction to the affair. The poll concluded that the American people would forgive the President for adultery, but not for perjury or obstruction of justice. The President then indicated that `we just have to win, then.' The President's lawyers could not answer senators' questions why such a poll had been undertaken if the President had not committed any of these acts.
Shortly after the President met with Mr. Blumenthal, press reports began to appear that, quoting White House sources, characterized Ms. Lewinsky as a stalker, and as an `untrustworthy climber obsessed with the President.' Although Mr. Blumenthal in his Senate deposition denied any knowledge of how White House sources were attributed to these stories, one journalist by the time of this writing has sworn to an affidavit stating that Mr. Blumenthal made such characterizations to him. A second similar affidavit has also been filed, corroborating the first one.
Ultimately, Ms. Lewinsky was granted immunity from prosecution by the independent counsel. The independent counsel received from Ms. Lewinsky a dress that according to DNA testing was stained by the President's semen.
On August 17, 1998, the President testified before the grand jury convened by the independent counsel. In a prepared statement, the President made a number of false statements. He stated that he engaged in inappropriate conduct with Ms. Lewinsky in 1996 and 1997, whereas the conduct actually began in 1995, when she was an intern. Based on Ms. Lewinsky's testimony and the dress, he appears to have testified untruthfully about whether he engaged in sexual relations even as that term had been defined at his deposition in the Jones case. And he also testified that he was not paying attention to his attorney when the attorney described the affidavit; that his relationship with Ms. Lewinsky had originally begun as a `friendship;' that he made the statements to Ms. Currie after his deposition in an effort to refresh his recollection; and that he told his aides statements that were true about his relationship with Ms. Lewinsky. Nonetheless, when testifying before the grand jury, the President no longer made a number of the assertions that he had made in the deposition, including denying that he was ever alone with Ms. Lewinsky. With respect to his deposition testimony, the President told the grand jury that his `goal in this deposition was to be truthful, but not particularly helpful . . . I was determined to walk through the mine field of this deposition without violating the law, and I believe I did.'
The Independent Counsel filed a report with the House of Representatives that referred allegations of possible impeachable offenses. The House of Representatives voted to pass two articles of impeachment against President Clinton, for perjury before the grand jury and for obstruction of justice. Two other articles of impeachment, which had been based on perjury in his deposition in the Jones case and misstatements to the House in response to questions propounded to the President by the House of Representatives, failed to pass the House.
`HIGH CRIMES AND MISDEMEANORS'
The most fundamental question, against which the President's actions must be measured, is `what constitutes an impeachable offense?' The Constitution makes impeachable `treason, bribery and other high crimes or misdemeanors.' The Constitution also says that upon conviction in the Senate the President `shall be removed.' Therefore, the questions becomes, in effect, `what actions constitute grounds for removal?'
It should be noted at the outset that what we have in effect is a `mandatory sentence' wherein if there is a finding of guilt then one particular sentence must be imposed--in this case removal from office. However, unlike judges in a criminal case, the Senate may take into consideration the `punishment' in determining guilt. Some have contended that the President may be guilty of high crimes and misdemeanors, but his actions may not be sufficient for removal. I believe the better analysis is that the Senate may conclude that the President's conduct is not sufficient for removal and that that determination, by definition, means that the President is not guilty of high crimes and misdemeanors. I believe that this analysis is important in understanding the scope of our discretion and helps us get away from the notion that there is an objective standard for high crimes and misdemeanors if we could only find it. Historical analysis covering over six hundred years reveals that there is no `secret list' of high crimes and misdemeanors, but rather our forefathers perpetuated a framework that allows for a certain amount of subjectivity which may encompass changing times and differing circumstances.
Such a conclusion emerges from an examination of English law, original state Constitutions, our federal Constitutional Convention, the ratification debates, American impeachment precedents and scholarly commentary.
The phrase `high crimes and misdemeanors' can be traced back to the thirteen hundreds in England. It was clear from the outset that the phrase covered serious misconduct in office whether or not the conduct constituted a crime. Commentators say that the English impeachment tradition covered political crimes against the state and injuries to the state. Beyond that, it is difficult to glean covered conduct from the English tradition.
Apparently there was only one discussion during the Constitutional Convention that dealt with the phrase high crimes and misdemeanors and that occurred on September 8, 1787. As reported out of Committee, impeachable offenses included only `treason and bribery.' Mason wanted to add `maladministration,' which was also contained in many state constitutions. Madison was under the impression that such language would leave the President at the mercy of the Senate. Madison relented and we wound up with the phrase as we have it today. The founding fathers quite clearly rejected impeachment for Congressional disapproval of policy. Impeachable offenses were `political' offenses and, as under English law, not necessarily criminal. Other guidance that can be derived from the Convention is the fact that the founders were acutely aware of their rejection of bills of attainder as existed in the English system and, therefore, they thought that impeachable offenses should be something that any reasonable man could anticipate. He should not be punished for some crime made up after the fact. Also, there was to be a requirement for `substantiality.' This mechanism was not designed for trivial offenses.
We cannot determine the precise intent of the framers because their deliberations were in secret and nothing was printed from their deliberations. They intended for the ratifiers at the state Conventions to be the more authoritative voice for interpretation of the provisions in the Constitution. It is fair to conclude that the attitude of the ratifiers was reflected to a certain extent in the Federalist papers. The most definitive comments concerning impeachment were by Hamilton in Federalist 65 wherein he stated:
The subjects of [impeachment] are those offenses 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 be with peculiar propriety denominated political, as they relate chiefly to injuries done immediately to the society itself.
The ratifiers at the North Carolina convention spoke in terms of serious injuries to the Federal government. James Iredell, later to become an Associate Justice on the Supreme Court, stated that impeachment was `calculated to bring [great offenders] to punishment for crimes which it is not easy to describe but which everyone must be convinced as a high crime and misdemeanor against governments . . . the occasion for its exercise will arise from acts of great injury to the community.' He gave as an example of an impeachable offense the giving of false information to the Senate. Impeachment was not for `want of judgment' but rather to hold him responsible for `willfully abusing his trust.' Iredell also called attention to the complexity if not
impossibility of defining the scope of impeachable offenses with any more precision than the above. And the ratifiers at the Virginia Convention clearly agreed that a President could be impeached for non-indictable offense.
There was continued discussion and debate after ratification concerning the impeachment process. James Madison contended that the wanton removal of meritorious officers would subject a President to impeachment and removal from office. Forty years later, Justice Story, in his Commentaries insisted that `not every offence' is a high crime and misdemeanor, that `many offences, purely political . . . have been held to be within the reach of parliamentary impeachments, not one of which is in the slightest manner alluded to in our statute book,' that `the only safe guide' in determining `high crimes and misdemeanors' `must be the common law,' and left open the possibility that actions a civil officer took that were unconnected to his office might be properly the subject of impeachment.
Therefore, it seems that despite the framers' and ratifiers' incomplete discussion, our inability to put our hands on documentation reflecting some of their thoughts, and the fact that perhaps they simply did not think of some of the problems that might arise in the future, we see a certain framework develop--certain perimeters within which our decision should be made.
The Senate's own precedents do not change this evaluation because they are not terribly instructive either. In impeachment cases, the Senate has convicted on seven occasions, acquitted on five, dismissed two cases on jurisdictional grounds and one case was withdrawn because of resignation. An acquittal serves very little value as precedent beyond the facts of the case since an acquittal can be based on any number of grounds (jurisdictional, failure to prove the factual allegations, offenses not rising to the level of impeachable conduct, etc.) and the motivation for the vote is not reflected when the verdict is rendered `not guilty.' There is little more help derived from convictions, in terms of precedential value. There has only been one impeachment trial for a President, that of Andrew Johnson, and that, of course, resulted in an acquittal. A large majority of the remainder of the cases have been those of federal judges.
The question has arisen whether judicial impeachments are to be considered by the same standards as presidential impeachments. It seems to me that certainly the application of the standard of `high crimes and misdemeanors' for a president must differ from that of a judge. Removing the President removes the elected head of the nation. Removing a single judge does not carry the same implications for the country. And while a President should act according to the highest standards of probity, it is quite easy to imagine circumstances that would warrant judicial impeachment that would not justify presidential impeachment, such as making official decisions based purely on political considerations. It is also possible that certain crimes would be impeachable if a judge committed them, because of the specific nature of the judicial office in our system of government, but would not be impeachable for a President.
It has been argued that the standard should be different for presidents than judges because the former serves for a fixed term and the latter serve `during good behavior.' I do not share that view. The standard itself is the same for each category: treason, bribery, and other high crimes and misdemeanors. But the difference in tenure is relevant in a way. Because impeachment is not punishment and is political, the Framers vested the process in the legislative branch. Prosecution for crimes was lodged in the judiciary. Thus, a President, who cannot be prosecuted while in office, can be impeached and removed from office before he faces criminal prosecution. While a judge can also be impeached and removed before being convicted of a crime, it is also the case that criminal punishment can be, and has been, imposed on sitting judges. But since courts were expressly not given the power to remove civil officers, federal judges who have been criminally convicted and have refused to resign have continued to draw their salary `during good behavior,' i.e., until they were impeached. That is the only significance with respect to impeachment of judges and of presidents based on their differing terms of service.
Scholars have looked to the purposes to be served by the impeachment process as well as history in making their own analysis as to the meaning `high crimes and misdemeanors.' For Charles Black they would include offenses (1) which are extremely serious, (2) which in some way corrupt or subvert the political and governmental process, and (3) which are plainly wrong in themselves to a person of honor or to a good citizen regardless of words on the statute books.
Also qualifying according to Professor Black would be `serious offense against the nation or its governmental or political processes.' Furthermore, he would include purely personal actions that would make a President unviable as a national leader. Murder, of course, would be the prime example here. He would also include a totally different category of offenses which seriously threaten the order of political society as to make dangerous the continuation in power of the President. Finally, he would include actions that would `undermine government and confidence in government' such as serious tax fraud.
Professor Michael J. Gerhardt on the issue of purely personal conduct of the President states: `Even if such a crime were unrelated to the President's Constitutional duties, his criminal act considerably cheapens the Presidency, destroys his credibility with the other branches (and other nations, for that matter), and shows such lack of respect for human life and disdain for the law (which he has sworn to enforce faithfully) that Congress could reasonably conclude that he had seriously breached his trust and no longer deserves to hold office.' Again, murder was the easy example.
However, he contends further that an official may be impeached for conduct in office that does not relate to his or her former responsibilities if an office holder violates his public trust and loses the confidence of the people. Then he must forfeit the privilege of holding at least his or her present office. `In this context, conduct that may plainly be unrelated to the responsibilities of a particular office may still relate to an official's capacity to fulfill the functions of that office and to hold the people's trust.' He gives the example of income tax fraud.
Gerhardt points out that not all statutory crimes demonstrate unfitness for office, but that on the other hand, there are some indictable offenses for which certain high level government officials may be impeached. Among them are offenses which `demonstrate serious lack of judgment or disdain for the law and the commission lowers respect for the office.' In other words, there are certain statutory crimes, that, if committed by public officials, reflect, in Congress' estimation such lapses of judgment, breaches of the public trust and disregard for the public welfare, the law, and the integrity or reputation of the office held, that the occupant may be impeached.
What I derive from this, is that there is no `holy grail' of impeachable offenses. The framers provided the Senate with a framework within which to operate and history provides us with a map, but not a destination. Our conclusions must depend upon the particular circumstances of the case, the nature of the act or acts involved, and their effects on society or integral parts of our political structure.
Today we are faced with an unprecedented situation. The President engaged in inappropriate personal conduct. It had nothing to do with his official duties, but it did involve a federal employee under his supervision, government time and government facilities. In an attempt to conceal and cover up that activity, he lied, misled and helped conceal evidence both physical and testimonial in a court proceeding. In doing so he elicited the help of other government employees. Therefore, the subject matter was essentially private, but the forum, a United States court, became public. One side says that he `only lied about sex,' and it had nothing to do with his official duties, therefore, it `clearly does not rise to the level of an impeachable offense.' The other side says that any perjury and any obstruction of justice `clearly does rise to the level of an impeachable offense.' I do not think that either position is consistent with history or proper analysis.
For example, I agree with Professor Black that not every imaginable act that might technically constitute obstruction of justice would necessarily be impeachable.
On the other hand, opponents of conviction in the present case, have raised the bar for impeachment to unreasonable heights. Usually they concede that an impeachable offense does not have to be a crime, but often it is maintained that the abuse of power has to come from his public position such as Nixon's abuse of the CIA or FBI. Of course, this immediately runs headlong into the murder hypothetical and many other hypotheticals of serious, although totally personal, conduct as well.
They then make the further argument that the violation has to be `an offense against the state.' While I agree that an offense against the state is one of the categories of offenses that impeachment was primarily designed to cover, offenses against the state's governmental and political processes, including the court system, as well as attempts to subvert them, are also
impeachable. Besides, it would seem to me, that subversion or serious damage to our governmental institutions constitute offenses against the state.
They also point out that one of the purposes of impeachment is to protect the nation from the offender President. I agree again that this may be one of the purposes of impeachment. However, it is not the only purpose, and protection of the public is not always a requirement. If an offense has been laid bare and totally exposed, and the President is completely incapable of continuing his conduct, this lack of imminent threat to the nation does not necessarily mean that he should not and cannot be impeached. President Nixon probably would not have been forced from office if that were the only criteria.
Opponents of conviction also overlook the fact that we may look to the effects of the President's conduct. Actions, even private actions, that serve to undermine the government or the people's confidence in the government or the President, may also be impeachable. In other words, opponents of impeachment rightly point out some of the categories that are applicable in impeachment cases, but they set them forth as exclusive when, in fact, they are not.
The impeachment bar has been raised even higher most recently by respected commentators in the media. The New York Times editorial page, for example, takes a position that the President's action must `threaten the welfare or stability of the state.' On another occasion, they stated that the President's actions must `show some fundamental harm to the security interest or stability of the state or some attempt to undermine the Constitution.' The problem with this is that there is absolutely no authority to support such a contention. Such a theory relies exclusively upon the `protect the nation' theory of impeachment. The founders certainly did not mean that the President had to be on the verge of throwing the nation into chaos or endangering national security in order to be impeached.
It is extremely important that we refrain from latching onto a definition of `high crimes and misdemeanors' simply because it leads us inexorably to a conclusion which we may desire. Clearly, a President's offense or offenses must be serious and/or have serious consequences. Also, while they do not have to be crimes, my own opinion is that in most cases they will be crimes. They must be crimes against the state, but we cannot adopt an unreasonable restriction of that term. The President does not have to order tanks to move on the J. Edgar Hoover building. Offenses against the state can include activity which will undermine our governmental institutions. How can we say that bribing a judge to effect an outcome in a law suit involving a President's purely personal conduct constitutes an impeachable offense, but say that insinuating perjury into that same law suit to effect the same outcome is clearly not impeachable? And while it is true that the founders meant to cover `public' behavior, I believe they also meant to cover behavior that has a negative effect on the public if it is of sufficient gravity. Furthermore, if the President's conduct poses a threat and danger to a country, that certainly is a legitimate (though not exclusive) consideration. If that same conduct serves to undermine the President's credibility and moral authority, that could also pose a danger to the country and is similarly a legitimate consideration. And, again his conduct does not necessarily have to deal with his office. In the Constitution, a named offense is bribery (treason, bribery or other high crimes and misdemeanors), and bribery itself does not necessarily have to do with the President's official capacity, if the President is making the bribe.
I believe that the founders did not intend to make our job easy. They provided no list of offenses. They refused to spare us from the difficult analysis that we must now go through. We must take into consideration the offense or offenses, the capacity in which they were committed, the effect on our public institutions, the effect on our people and our people's attitude toward the Presidency and our other institutions, whether the President's conduct was one or more isolated events, or a pattern of conduct, the period of time over which the conduct was carried out and ultimately decide whether in view of all of these circumstances, it is in the best interest of the country to remove this President.
The significance of a `pattern of conduct' is recognized by John R. Labovitz in his book Presidential Impeachment. Labovitz concluded that focusing on whether the President has committed `an impeachable offense' is of limited usefulness, since few individual crimes warrant removal, such as a single act of treason or a single act of bribery. Even in the case of President Nixon, `[i]t was necessary to combine distinct actions into a pattern or course of conduct to establish grounds for removal from office.' As he also wrote:
The concept of an impeachable offense guts an impeachment case of the very factors--repetition, pattern, coherence--that tend to establish the requisite degree of seriousness warranting the removal of a president from office. Just as a recidivist deserves a more stringent sentence than a first offender, so presumably a repeated offender is more likely to deserve removal from an office of public trust, and especially the highest trust in the land. . .. [I]t is necessary to take a less divided view of the charges. Because the remedy is not additive, the offenses must be considered cumulatively in deciding whether or not it should be imposed. The House must decide whether or not to prosecute an impeachment on the basis of the charges taken as a whole. And, unless the Senate is to take the determination of the House without question, it too must judge the combined seriousness of the wrongdoing that is proved.
I believe that this statement is very relevant to the obstruction of justice charge, which I will discuss later.
ARTICLE I--GRAND JURY PERJURY
Article I, after alleging generally that President Clinton violated his oath of office and failed to take care that the laws be faithfully executed by manipulating the judicial process for his personal gain, alleges that on August 17, 1998, following taking an oath to tell the truth, he
In doing this, William Jefferson Clinton has undermined the integrity of his office, has brought disrepute on the Presidency, has betrayed his trust as President, and has acted in a manner subversive of the rule of law and justice, to the manifest injury of the people of the United States.
Wherefore, William Jefferson Clinton, by such conduct, warrants impeachment and trial, and removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under the United States.'
Never has the Senate convicted on an article worded such as this. Several crimes or categories of crimes (the exact number cannot be determined from reading the article) are charged in this one article. The perjurious statements are not described, nor are their dates. In
large part, this article charges that the President committed perjury because he denied prior perjury.
At the outset, it is clear that a count such as this in an indictment would not survive court challenge. However, it is equally clear that the Senate is not bound to follow normal legal rules. Impeachment, Hamilton wrote in Federalist No. 65, `can never be tied down by such strict rules, either in the delineation of the offense by the prosecutors or in the construction of it by the judges, as in common cases serve to limit discretion of courts in favor of personal security.' Nevertheless, we should examine the basis for such rules and determine the extent, if any, we should apply them to our deliberations.
The reason for rules against charging several offenses in one article is clear. A group of senators as few as seventeen could conclude that the President was guilty of one offense in the article, and a group of other senators could conclude that the President was guilty of another offense in the article and so on. This could result in the President being found guilty on one article without two-thirds of the senators ever agreeing upon a single offense that the President committed.
Compounding this problem, the individual items alleged in the article are vague because they could reach different instances of objectionable conduct within a general heading. The problem with failing to specifically identify the offenses charged is that it does not give the person charged fair notice. Although I believe that the president had actual notice for the most part, what is actually being charged in this article has not been without dispute.
The articles pending against President Clinton are unique. Never has the Senate considered articles that are simultaneously omnibus, vague, and based upon `one or more' of the charges being proved.
Again, we have substantial leeway in considering these matters, but we must be fair. We are creating precedent, and this is not good practice. The rule of law must apply to the President when it inures to his benefit just as when it inures to his detriment.
The House relies on Rule XXIII of the Senate's impeachment rules as granting this body's tacit approval for the drafting of impeachment articles in the form of those from President Nixon's impeachment proceedings. The House also argues that its committee report provided adequate notice of charges, occupying 20 pages just to list `the most glaring instances of the president's perjurious, false, and misleading testimony before a federal grand jury and requir[ing] 13 pages just to list the most glaring incidents in the president's course of conduct designed to prevent, obstruct, and impede the administration of justice.' But this argument underlines the problem. These allegations were not made in the articles themselves, and even now, can it truly be said that these were the entirety of the charges that could have been raised at trial, or even in a later impeachment?
Articles of impeachment henceforth should not permit conviction based upon `one or more' findings of guilt. They should list specific conduct, preferably in separate articles. Removal of elected or appointed government officials, especially a president, should occur only when the public can be sure that the process has been appropriate. Articles such as those before the Senate in this case do not further that goal. The Senate should amend Rule XXIII to permit impeachment articles to be divided, so as to eliminate any incentive for the House to adopt duplicitous articles of impeachment.
In prior impeachments charging false statements, the House has always delineated the date and substance of the false statement. Indeed, in every impeachment proceeding since Judge Pickering in 1803, articles of impeachment exhibited by the House have included allegations of specific misconduct. Although the Senate has at times voted in favor of articles containing multiple or cumulative allegations, it has only done so where specific allegations were made in other separate articles and where the omnibus article was written in the conjunctive. Never has the Senate voted for conviction on an article that charged an individual with `one or more' improper actions.
Unfortunately, instead of following precedent, the House in the case before us deviated from previous practice. In prior cases, the House avoided lumping together several amorphous charges into one article, with conviction permitted if `one or more ` alleged offenses had been proved--in all cases but one: Richard Nixon. Here, the House explicitly followed the Watergate example, probably thinking that they would be on safe ground. Unfortunately, the articles drafted against President Nixon were deficient in the extreme.
The first article of impeachment against President Nixon charged that the President had `engaged in a course of conduct or plan designed to delay, impede and obstruct investigations of [the] unlawful entry [of the headquarters of the Democratic National Committee]; to cover up, conceal and protect those responsible; and to conceal the existence and scope of other unlawful activities. The means used to implement this course of conduct or plan have included one or more of the following.' The article of impeachment then listed nine separate charges, each extremely broad. The second Nixon article charged dozens of indeterminate criminal offenses within several wide-ranging categories.
The charges contained in the Nixon articles are alarmingly vague and duplicitous. The articles before us are not that deficient, but they represent a second step down a road we should not take. While these problems with Article I in isolation may not be sufficient to defeat this article, they are more than technicalities, and pose potentially serious consequences for the future.
The Senate, of course, did not have occasion to consider the impeachment articles against President Nixon. Only once in its history has the Senate actually considered an article of impeachment charging violations of `one or more' alleged acts. Among the articles of impeachment against Judge Walter Nixon in 1989 was an article alleging that Judge Nixon made `one or more" false statements. Unlike the articles against Presidents Nixon or Clinton, however, the article in question in the case of Judge Nixon specifically enumerated the alleged material false statements, including the date and nature of the statement made. The Senate, though defeating a motion to dismiss the article, nevertheless acquitted Judge Nixon on this article. Several Senators explained their votes to acquit on this article due to the multiplicitous (actually, duplicitous) and disjunctive `one or more' form of the article.
I agree with those senators who criticized the form of the omnibus article of impeachment that was brought against Judge Nixon. An article of impeachment charging a defendant with `one or more' acts is not only unfair to the defendant, but it does not permit senators to perform adequately their constitutional duty and the American people to understand their actions. If the Senate were to convict on a `one or more' acts count of an article of impeachment, the votes to convict would obscure the real basis for each senator's vote. Ultimately, the American people would be deprived of knowing the basis on which the President they duly elected was removed from office.
The Senate also has never been asked to convict someone for conduct that formed the basis for an article of impeachment that was rejected by the House. Although in a literal sense, no such article is before the Senate, in a practical sense that is the situation. The House failed to pass an article of impeachment against President Clinton that accused him of, on January 17, 1998, `willfully provid[ing] perjurious, false, and misleading testimony in response to questions deemed relevant by a Federal judge concerning the nature and details of his relationship with a subordinate Government employee, his knowledge of that employee's involvement and participation in the civil rights action brought against him, and his corrupt efforts to influence the testimony of that employee.' Yet, in Article I, the Senate is asked to convict the President based on `one or more' sets of actions, one of which is the President's `prior perjurious, false, and misleading testimony he gave in a Federal civil rights action brought against him.' That portion of Article I has resulted in the House recharging all the allegations of perjury made by the President in his civil deposition that were dismissed when the House rejected an article of impeachment that was based on that deposition. The House does so explicitly: `In addition to his lie about not recalling being alone with Ms. Lewinsky, the President told numerous other lies at his deposition. All of those lies are incorporated in Article I, Item 2.' House Trial Memo. at 61. The House claims that the President's statement in his grand jury testimony that he intended to be unhelpful but truthful in his deposition, and that he did not violate the law in his deposition, amount to perjury in the grand jury if a single statement in his deposition was perjurious. However, the President did not broadly reaffirm the truth of all his deposition testimony. Indeed, before the grand jury, the President revised many statements he had made in the Jones deposition.
Two perjury statutes have been enacted as part of the federal criminal code. 18 U.S.C. 1623 and 1621. The elements of section 1623 are that the defendant (1) knowingly make a (2) false (3) material declaration (4) under oath in a proceeding before or ancillary to any court or grand jury of the United States. Statements which are misleading but literally true cannot form the basis for a perjury conviction. Bronston v. United States, 409 U.S. 352 (1973). The most difficult element of the offense is materiality. A statement is said to be material `if it has a natural tendency to influence, or is capable of influencing, the decision of the decisionmaking body to whom it is addressed.' United States v. Durham, 139 F.3d 1325, 1329 (10th Cir. 1998); see Kungys v. United States, 485 U.S. 759 (1988). The Supreme Court has characterized the conduct prohibited by 1621 as follows: `A witness testifying under oath or affirmation violates this section if she gives false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory.' United States v. Dunnigan, 507 U.S. 87, 94 (1993). As with 1621, testimony that is misleading but literally true does not fall within the ambit of 1623.
A preliminary matter before consideration of these charges concerns the burden of proof of the charges in the articles of impeachment which I believe should apply. It is well established that senators are free to weigh the evidence in particular cases under a standard they consider appropriate. My own view is that different cases will be considered under different standards, depending on the nature of the particular charge. Impeachment is neither a civil nor a criminal proceeding, but a hybrid. It is therefore inappropriate to always apply one or the other of the criminal or civil burdens of proof. When the consequences to the nation of the alleged conduct are most serious, such as treason, then the Senate should consider the case under a clear and convincing standard, for fear of leaving a likely traitor in office simply because his guilt has not been established beyond a reasonable doubt. By contrast, when the charges allege harms that are not imminently serious to the national well-being, it becomes more appropriate to apply the criminal burden of proof: beyond a reasonable doubt. I concede that the charges alleged here, while serious, do not fall within the former category, and I will therefore review the facts under the beyond a reasonable doubt standard.
With that background, I now consider the facts relating to the three perjury specifications concerning the President's grand jury testimony that are properly before the Senate. The first is his testimony concerning `the details and nature of his relationship with a subordinate Government employee.' The President admitted in the grand jury that he had an inappropriate relationship with Ms. Lewinsky.
To be sure, President Clinton contended that the relationship began in 1996, rather than 1995. The House managers note that this is significant because Ms. Lewinsky was an intern in 1995. The House also points out that the President admitted inappropriate conduct `on certain occasions,' when, in reality, there were eleven such occasions, and that he had `occasional' telephone encounters with Ms. Lewinsky when there were at least seventeen that contained sexual banter. I do think that these statements constitute perjury. They were false, were made willfully, and were material. Something that happens seventeen times in a year does not occur `occasionally.' Given the sensitivity of Ms. Lewinsky's status as an intern, I believe that the President deliberately told the grand jury that his relationship with her began in 1996, when she no longer had that status. Finally, the statement is material because it concerns a matter that the grand jury was investigating as part of its work: the nature of the President's relationship with Ms. Lewinsky. For these reasons, the statement was perjurious.
The President's statement to the grand jury that he regretted that what began as a friendship changed into an inappropriate sexual relationship was also knowingly false, since the two engaged in sexual relations twice on the same day that they first spoke. Thus, the statement was made to deceive, and given that it related to a subject of the grand jury's inquiry, it was material. Therefore, I agree that this statement also constitutes perjury, so that the first item of Article I has been proved. The second item charged in Article I addresses statements the President made in the grand jury regarding the truth of his deposition testimony. For the reasons above stated, I consider finding perjury based on an article of impeachment that the House rejected to be questionable.
The third item charged in Article I concerns grand jury testimony involving `false and misleading statements he allowed his attorney to make to a Federal judge in that civil rights action.' Before the grand jury, President Clinton testified that he was `not even sure I paid attention to what he [Mr. Bennett] was saying' when his attorney represented to the court that Ms. Lewinsky's affidavit stated that there was no sex of any kind between her and the President. As a factual matter, given the videotape that shows the President concentrating very carefully on his attorney's words and the great importance that he placed on that affidavit and its filing in time, this statement's characterization of the President's attention was certainly false. However, the President said that he `was not even sure" that he was paying attention. It is possible, although unlikely, that he was not sure in August that he was paying attention to that specific statement in January. That would make the statement literally true and thus, by definition, not
perjurious. And in any event, I cannot determine beyond a reasonable doubt that his statement was perjurious. Indeed, the real issue is whether President Clinton used the affidavit to obstruct justice: whether he actually was paying attention to his unsuspecting attorney when the affidavit was actually used to obstruct justice is of questionable materiality.
The fourth item of the perjury allegations in Article I concerns `his corrupt efforts to influence the testimony of witnesses and to impede the discovery of evidence in that civil rights action.' The first set of facts under this category evidently concerns President Clinton's statements to Ms. Currie on January 18, 1998, which he described as having been made to refresh his recollection. The President's stated reason for making these statements to Ms. Currie was false. He knew that they were not true, and the President knew that Ms. Currie could not testify to their truthfulness. Thus, his statement of purported purpose for making them, as communicated to the grand jury, was made willfully, with the intent to deceive the grand jury. They were material as well, since they went to the issue of whether he had committed a federal crime. They thus constitute perjury.
The second set of facts at issue in item four of Article I apparently concerns whether the President truthfully told the grand jury that when the subject of the subpoenaed gifts arose at his December 28, 1997 meeting with Ms. Lewinsky, he told her `if they asked her for the gifts, she'd have to give them whatever she had, that that's what the law was.' Although Ms. Lewinsky never testified that the President said this to her, she once indicated that it sounded familiar. Thus, I am not convinced beyond a reasonable doubt that the President lied when he testified that he made this statement.
The third set of facts in item four of Article I addresses alleged lies that he made to the grand jury concerning the truth of statements that he made to White House aides. Before the grand jury, the President stated that he had told his aides that he did not have sex with Ms. Lewinsky as he defined it, and that he told them `things that were true about this relationship.' In reality, the President told them false statements, such as a broader denial of sexual activity than that defined as even he had defined it, and that Ms. Lewinsky was a stalker who came on to him, but whom he rebuffed. The President's statements to the grand jury in this regard were false, and were intended to deceive the grand jury about a federal crime of obstruction of justice through the telling of false statements to persons he knew might become witnesses before that grand jury, and therefore committed perjury.
As noted above, not all impeachable offenses are crimes, and not all crimes are impeachable offenses. While I conclude that one of the three sets of facts at issue in item four of Article I does not constitute perjury, I conclude that the statements concerning Betty Currie, and the statements concerning what he told his aides do constitute perjury. I also find that the President committed perjury with respect to item one of Article I with respect to his statements that he and Ms. Lewinsky's relationship began as a friendship, that it started in 1996, and that he had `occasional' encounters with her. These are the only examples of grand jury perjury that I believe have been proved in the entirety of Article I. The question then is whether these examples of perjury warrant removal of the President for the commission of high crimes and misdemeanors.
Make no mistake, perjury is a felony, and its commission by a President may sometimes constitute high crimes and misdemeanors. But is removal appropriate when the President lied about whether he was refreshing his recollection or coaching a witness about the nature of a sexual relationship? Is removal appropriate when the President lied to the grand jury that he denied to his aides that he had engaged in sex only as he had defined it, when in fact he had denied engaging in oral sex? Is removal warranted because the President stated that his relationship began as a friendship in the wrong year and actually encompassed more telephone encounters than could truthfully be described as `occasional'? To ask the question is to answer it. In my opinion, these statements, while wrong and perhaps indictable after the President leaves office, do not justify removal of the President from office.
In no way does my conclusion ratify the White House lawyers' view that private conduct never rises to impeachable offenses, or that only acts that will jeopardize the future of the nation warrant removal of the President. It simply recognizes how the principles the Founding Fathers established apply to these facts.
I therefore vote to acquit the President of the charges alleged against him in Article I.
ARTICLE II--OBSTRUCTION OF JUSTICE
Article II charges that President William Jefferson Clinton, in violation of his oath of office, and in violation of his constitutional obligation to take care that the laws be faithfully executed
The means used to implement this course of conduct or scheme included one or more of the following acts:
(1) On or about December 17, 1997, William Jefferson Clinton corruptly encouraged a witness in a Federal civil rights action brought against him to execute a sworn affidavit in that proceeding that he knew to be perjurious, false, and misleading.
(2) On or about December 17, 1997, William Jefferson Clinton corruptly encouraged a witness in a Federal civil rights action brought against him to give perjurious, false and misleading testimony if and when called to testify personally in that proceeding.
(3) On or about December 28, 1997, William Jefferson Clinton corruptly engaged in, encouraged, or supported a scheme to conceal evidence that had been subpoenaed in a Federal civil rights action brought against him.
(4) Beginning on or about December 7, 1997, and continuing through and including January 14, 1998, William Jefferson Clinton intensified and succeeded in an effort to secure job assistance to a witness in a Federal civil rights action brought against him in order to corruptly prevent the truthful testimony of that witness in that proceeding at a time when the truthful testimony of that witness would have been harmful to him.
(5) On January 17, 1998, at his deposition in a Federal civil rights action brought against him, William Jefferson Clinton corruptly allowed his attorney to make false and misleading statements to a Federal judge characterizing an affidavit, in order to prevent questioning deemed relevant by the judge. Such false and misleading statements were subsequently acknowledged by his attorney in a communication to that judge.
(6) On or about January 18 and January 20-21, 1998, William Jefferson Clinton related a false and misleading account of events relevant to a Federal civil rights action brought against him to a potential witness in that proceeding, in order to corruptly influence the testimony of that witness.
(7) On or about January 21, 23, and 26, 1998, William Jefferson Clinton made false and misleading statements to potential witnesses in a Federal grand jury proceeding in order to corruptly influence the testimony of those witnesses. The false and misleading statements made by William Jefferson Clinton were repeated by the witnesses to the grand jury, causing the grand jury to receive false and misleading information.
In all of this, William Jefferson Clinton has undermined the integrity of his office, has brought disrepute on the Presidency, has betrayed his trust as President, and has acted in a manner subversive of the rule of law and justice, to the manifest injury of the people of the United States.
Wherefore, William Jefferson Clinton, by such conduct, warrants impeachment and trial, and removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under the United States.'
Section 1503(a) of Title 18 of the United States Code states:
Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any grand or petit juror, or officer of any court of the United States, or officer who may be serving at any examination or other proceeding before any United States magistrate judge or other committing magistrate, in the discharge of his duty, or injures any such grand or petit juror in his person or property on account of any verdict or indictment assented to by him, or on account of his being or having been such juror, or injures any such officer, magistrate judge, or other committing magistrate in his person or property on account of the performance of his official duties . . . shall be punished as provided in subsection (b).
Courts have interpreted this provision to require the government to prove: `(1) that there was a pending judicial proceeding, (2) that the defendant knew this proceeding was pending, and (3) that the defendant then corruptly endeavored to influence, obstruct, or impede the due administration of justice.' United States v. Monus, 128 F.3d 376, 387 (6th Cir. 1998).
Here, there is no doubt that a judicial proceeding was pending and that President Clinton knew that the proceeding was pending. The question is whether he corruptly intended to influence, obstruct, or impede the due administration of justice. Courts have held that to act corruptly means to act with the intent to influence, obstruct, or impede the proceeding in question. United States v. Mullins, 22 F.3d 1365, 1369 (6th Cir. 1994); United States v. Littleton, 76 F.3d 614, 619 (4th Cir. 1996); United States v. Russo, 104 F.3d 431, 435 (D.C. Cir. 1997). Because the prohibited intent is so closely related to the prohibited act, courts have required a nexus between the obstructing conduct and the target proceedings. Thus, the defendant's acts must have the `natural and probable effect' of interfering with the due administration of justice. United States v. Aguilar, 515 U.S. 593, 599 (1995). But the defendant need only endeavor to obstruct justice to commit this offense. There is no requirement that he actually succeed in obstructing justice. Id. at 599, 600.
Among the acts that courts have concluded violate 1503(a) include the creation of false documents to be presented in evidence, United States v. Chihak, 137 F.3d 252 (5th Cir. 1998); and instructing a subordinate to conceal evidence, United States v. Lefkowitz, 125 F.3d 608 (8th Cir. 1997). These actions are alleged to have occurred in Article II.
Section 1512(b) of Title 18 prohibits witness tampering. Specifically, it prohibits knowingly using one or more of the prohibited forms of persuasion with the intent to prevent a witness's testimony from being presented at official federal proceedings or with the intent to prevent a witness from reporting evidence of a crime to federal authorities. United States v. Thompson, 76 F.3d 442, 452-53 (2d Cir. 1996). Unlike 1503, 1512(b) does not require that the defendant be aware of the pendency of federal proceedings. United States v. Romero, 54 F.3d 56, 62 (2d Cir. 1995). Courts differ about the standard of corrupt persuasion, but even the more stringent courts agree that it is sufficient if the defendant attempts to persuade a witness `to violate her legal duty to testify truthfully in court.' United States v. Morrison, 98 F.3d 619, 630 (D.C. Cir. 1996). Contrary to the representations of White House counsel at the impeachment trial, it is not necessary that the defendant threaten or cause physical harm to a witness to fall within subsection (b). When the defendant's misconduct takes the form of deceiving a potential witness with the intent that the witness later repeat the deception in federal proceedings, the crime does not require that the potential witness was in fact deceived, nor that there was any particular likelihood that that potential witness would in fact ever be called upon to testify. United States v. Gabriel, 125 F.3d 89, 102-03 (2d Cir. 1997). The prohibited intent of this subsection is intent to obstruct a federal proceeding.
There are seven specifications of obstruction of justice in Article II. The first two charge that on or about December 17, 1997, President Clinton corruptly urged a witness in a federal civil rights action to execute a false affidavit and to give false testimony if called to testify. That is the day he informed Ms. Lewinsky that she was on the Jones witness list, that she should contact Ms. Currie if she were subpoenaed, and that she could file an affidavit in the case to avoid testifying. In this conversation, the President told Ms. Lewinsky that she could `always say you were coming to see Betty or that you were bringing me letters.'
The President conducted an improper relationship with an employee of the federal government, Monica Lewinsky. He carried on that relationship off the Oval Office. He engaged in sexual banter over unsecured telephone lines to Ms. Lewinsky's residence, compromising himself and making himself susceptible to blackmail.
And on December 17, 1997, the President raised to Ms. Lewinsky both the cover stories and filing an affidavit to prevent these facts from being disclosed. While Ms. Lewinsky testified that he did not expressly tell her to raise the cover stories in the affidavit, his intent was unmistakable: to corruptly endeavor to influence Ms. Lewinsky to file an affidavit that would prevent Paula Jones's attorneys from learning of the President's relationship with Ms. Lewinsky, a relationship of the type that the judge in her case had ruled to be relevant. And even if not directly linked to the affidavit, there is no question from Ms. Lewinsky's consistent testimony that the President was asking her to use those cover stories if she were ultimately asked to testify, since that was the context of the conversation. The White House's repeated retort that the relationship with Ms. Lewinsky was consensual, while the allegations by Ms. Jones were of non-consensual sex, is therefore irrelevant. President Clinton did not tell Ms. Lewinsky to lie, but neither did he need to, as she understood that she was to raise the cover stories. Ms. Lewinsky admitted that the affidavit was indeed false. And since Lewinsky's truthful testimony would have definitely led to her being called as a witness, the President clearly understood that Ms. Lewinsky would file an affidavit he had strong reason to believe would be false. That is obstruction of justice, as shown by the cases that have held creation of false documents to be presented in evidence to fit within the statutory prohibition. Moreover, this charge must be considered in connection with the President's discussions with Ms. Lewinsky as her affidavit was being prepared, his conversation with Mr. Jordan after he spoke with her, and his lawyer's deep involvement in ensuring that the affidavit was filed and that the President had an opportunity to see it before that occurred, all of which shed light on what the President intended Ms. Lewinsky to do in that affidavit and if she testified.
The third item of Article II charges that President Clinton, on or about December 28, 1997, corruptly engaged in, encouraged, or supported a scheme to conceal evidence that had been subpoenaed in a federal civil rights action against him. That is the day the President discussed the subpoenaed gifts with Ms. Lewinsky, and there is no doubt that the President indicated that he was `bothered' by the specific gift, a hatpin, that the subpoena requested. In none of the many times that Ms. Lewinsky testified did she ever say that the President told her to turn over the gifts, although once she said that the remark seemed familiar, and a number of
times she testified that he asked to think about her suggestion that she give the gifts to Ms. Currie. The gifts, of course, ultimately were secreted under Ms. Currie's bed, and there is no doubt in Ms. Lewinsky's mind that Ms. Currie initiated the call that led to that exchange of the gifts. Since only the President and Ms. Lewinsky were present when the subject of giving the gifts to Ms. Currie was raised, and since Ms. Lewinsky did not call Ms. Currie, the only way that Ms. Currie could have called Ms. Lewinsky and not be surprised to obtain the gifts was if the President had told her to contact Ms. Lewinsky to retrieve them. This is also consistent with the President's course of conduct in this matter.
The President thus corruptly acted to obstruct the Jones case by asking Ms. Currie to retrieve and secret the gifts. That constitutes obstruction of justice, as demonstrated by the cases that have convicted defendants of that charge for having instructed subordinates to conceal evidence.
The White House's arguments to the contrary are unpersuasive. It is irrelevant that the President did not initiate the subject of the gifts in his conversation with Ms. Lewinsky. It is also irrelevant that he did not tell her to conceal the gifts. What is relevant is that the President, after thinking about the gifts, instructed Ms. Currie to retrieve the gifts from Ms. Lewinsky. The President's and Ms. Currie's denials simply cannot be squared with the evidence.
Also irrelevant is the fact that Ms. Currie's cell phone call to Ms. Lewinsky occurred at 3:30 p.m., whereas Ms. Lewinsky testified that the gift pickup occurred at 2 p.m. Notwithstanding the White House's willingness to excuse the President's error by two or more months concerning when his improper relationship with Ms. Lewinsky began, while insisting that the cell phone call's 90 minute mistiming is fatal to the theory that Ms. Currie instituted the gift exchange, the cell phone call at 3:30 does not prove that Ms. Lewinsky instituted the gift exchange. First, Ms. Lewinsky testified that she might have been mistaken about the time that Ms. Currie picked up the gifts. Second, there is no evidence that the cell phone call was the one in which Ms. Currie's gift pickup was proposed. Ms. Lewinsky testified that she received other telephone calls from Ms. Currie that day to learn when Ms. Currie was coming to her apartment and also to know when she should actually come outside to meet Ms. Currie.
The White House also maintains that the President would not have given Ms. Lewinsky additional gifts on December 28 if he planned to hide the gifts. The facts do not support that theory. The President gave Ms. Lewinsky those gifts before, pondering Ms. Lewinsky's idea, he determined that he would ask Ms. Currie to retrieve them. Since he had no intent to retrieve the gifts at the time he gave her the gifts on December 28, there is no inconsistency with his later direction to Ms. Currie to pick them up.
The fourth item of Article II alleges that the President, beginning on December 7, 1997, and continuing through January 14, 1998, intensified and succeeded in an effort to secure job assistance to a witness in a federal civil rights action brought against him to corruptly prevent the truthful testimony of that witness. Following a meeting with Ms. Lewinsky in November in which she sought his assistance, Mr. Jordan took no action and provided no help. He does not even remember this meeting. Thus, he made no serious effort to find her a job until after December 7, once the President, not Ms. Lewinsky, asked him to conduct a job search for Ms. Lewinsky. That followed Ms. Lewinsky's appearance on the Jones lawyers' witness list, and followed the President's promise to Ms. Lewinsky that he would ask Mr. Jordan to do more to help her find a job.
Although Ms. Currie, not the President, called Mr. Jordan, he was aware that the request came from the President and that he acted at the behest of the President. Jordan did not call the companies Ms. Lewinsky suggested, but rather, the companies where he was likely to produce a job for her. After December 19, Jordan obviously became aware that the President may have been asking him to assist Ms. Lewinsky obtain a job because he may have had a sexual affair with Ms. Lewinsky. That prompted him to ask both Ms. Lewinsky and the President whether such a relationship had occurred. Jordan continued to help find Ms. Lewinsky employment once they both denied that this was the case. However, he took no additional action until the day after Ms. Lewinsky signed the affidavit, when he called the CEO of McAndrews & Forbes to successfully obtain a second interview for her at Revlon after she told him that the first had proceeded badly. Thus, it is true that Mr. Jordan intensified his job assistance to Ms. Lewinsky at the President's request, following the President's, but not Mr. Jordan's knowledge, that she appeared on the Jones witness list. Jordan took no further action on her behalf until satisfying himself that each had denied that there had been any sexual relationship. He then obtained a job for Ms. Lewinsky by calling the CEO of the holding company of the company that offered Ms. Lewinsky a job. That call was made the day after Ms. Lewinsky signed her affidavit. Because President Clinton did ask Mr. Jordan to intensify his job efforts to assist Ms. Lewinsky to obtain a job after he knew she was on the Jones witness list, the President corruptly obstructed justice by attempting to influence the testimony of a witness in a case against him.
The White House responses to this charge miss the mark. That Ms. Lewinsky had begun her job search in July, and after a few months had not landed a job of her liking is irrelevant to whether, not having obtained a job, the President took steps to make sure she did obtain one once her name appeared on the witness list. That Ms. Lewinsky testified that no one ever promised her a job in return for her silence does not change the fact that these efforts were undertaken. That Linda Tripp suggested that Ms. Lewinsky originally speak with Mr. Jordan means nothing because he took no action following that meeting; only after the President requested that Mr. Jordan assist Ms. Lewinsky once her name appeared on the witness list did he do so. That Mr. Jordan testified that he acted with no sense of urgency is also of no import: it was the President who acted with a sense of urgency, using Mr. Jordan as his agent. Nor is it of consequence that Mr. Jordan placed no undue pressure on the persons he contacted in support of Ms. Lewinsky. The corrupt influence in obstruction of justice that matters is directed to the witness, not to the prospective employer of the witness. President Clinton knew, and Mr. Jordan knew, that the `Jordan magic' in finding people employment did not depend in any way on undue pressure being applied. Thus, the White House's contention that there was no connection between Ms. Lewinsky obtaining her Revlon offer and Mr. Jordan's call to Mr. Perelman is denied by Mr. Jordan himself. President Clinton could be sure that Mr. Jordan would find Ms. Lewinsky a job when her testimonial support of his denials was critical without his own need to do anything. It is also irrelevant that she did not obtain a job offer in each company Mr. Jordan called. Nothing in the record shows that the President ever requested Mr. Jordan to find employment for any White House intern who was not on a witness list in a federal case pending against him. The President obstructed justice through using Mr. Jordan to find Ms. Lewinsky a job once her name appeared on the Jones witness list.
The fifth item of Article II claims that the President obstructed justice by corruptly allowing his attorney to make false and misleading statements to a federal judge. In the
President's presence, his attorney represented to the court, based on Ms. Lewinsky's affidavit, that the President had seen the affidavit, and that it showed that `there is absolutely no sex of any kind in any manner, shape or form with President Clinton,' a statement his lawyer later retracted out of professional ethics obligations. The affidavit stated, inter alia, that `I have never had a sexual relationship with the President, he did not propose that we have a sexual relationship . . .' and `the occasions that I saw the President after I left my employment at the White House in April, 1996, were official receptions, formal functions or events related to the U.S. Department of Defense, where I was working at the time. There were other people present on those occasions.' The President testified that the affidavit was `absolutely true.' The President knew that Ms. Lewinsky's affidavit would be used to perpetrate a fraud on the court, and because he was briefed on its contents by his attorney in advance, he knew that his attorney misunderstood the affidavit, and would inadvertently present the affidavit to the court in a false light. Yet, he took no action to either change his lawyer's understanding or to prevent the use of the affidavit under those conditions. Moreover, with knowledge that the affidavit used the cover stories that he had reminded Ms. Lewinsky to continue on December 17, he testified to those same cover stories. Regardless of whether he was paying attention at the moment that this happened, the President clearly knew at the time the deposition commenced that the affidavit would be used in a way that perpetrated a fraud on the court and on Ms. Jones's proceedings. He corruptly impeded Ms. Jones's efforts to prove the fact relevant to her case that Mr. Clinton had had a sexual relationship with another government employee. He did so intentionally by allowing that affidavit to be portrayed by an officer of the court as proof that there was in fact no sexual relationship between the President and another government employee. That is obstruction of justice. The White House has addressed these facts only with respect to whether the President's statement denying that he was in fact paying attention to his attorney as opposed to looking at him constituted perjury, but has never refuted the President's knowledge that a false affidavit would be used in the deposition to obstruct the proceeding.
The sixth item of Article II concerns the President's obstruction of justice by relating false and misleading statements to Betty Currie in order to corruptly influence her testimony. The President's conversation with Ms. Currie followed his telephone call to her, a call that she testified was made later on a Saturday than any call she had ever received from the President at home. The conversation occurred on a Sunday, when it was rare for Ms. Currie to come to the White House. The conversation occurred in the Oval Office, where the President would exercise the full powers and trappings of his office in the presence of a subordinate. The conversation addressed issues from the President's testimony in the Jones case, despite the fact that at the end of his deposition, the presiding judge ordered him not to discuss his testimony with anyone. In that conversation, the President told Ms. Currie statements that he knew to be false about his relationship with Ms. Lewinsky, and that she also knew were false. Two or three days later, that is, the day the President learned that the court had permitted Independent Counsel Starr to expand his inquiry into the Lewinsky matter or the day after, the President repeated these same statements to Ms. Currie.
The President's call to Ms. Currie followed rapidly upon his deposition in the Jones case, its questions concerning Ms. Lewinsky, and his repeated answers to such questions by invoking Ms. Currie's name, one of which invited the Jones attorneys to `ask Betty.' In fact, Ms. Jones' lawyers placed Ms. Currie's name on their witness list. The `questions' that he asked were leading, and even according to Ms. Currie, were more like statements than questions. He asked her to agree that he was never really alone with Ms. Lewinsky, even though they both knew that he had been alone with her. He asked her to agree that she was always there when Ms. Lewinsky was there, even though she could not logically know whether Ms. Lewinsky had ever been there when Ms. Currie was absent. He asked her to agree that Ms. Lewinsky came on to him and that he never touched her, even though Ms. Currie would have had no ability to know those `facts.' He asked her to agree that she had seen and heard everything, when that was also not the case. And he suggested to her that Ms. Lewinsky wanted to have sex with him and that he could not do that.
These statements constitute witness tampering. The President engaged in misleading conduct, through the use of false statements and omissions to mislead, toward Ms. Currie, with intent to influence her testimony in a federal court proceeding. He acted corruptly, because he acted with the improper purpose of obtaining false testimony from a witness who would corroborate the lies he issued in the Jones deposition to obstruct that case. As stated above, witness tampering convictions need not rest on the defendant's actually having deceived the potential witness or any particular likelihood that the potential witness would in fact ever be called upon to testify. United States v. Gabriel, 125 F.3d 89, 102-03 (2d Cir. 1997).
The White House arguments in response to these facts is inadequate. It is inadequate as a matter of law for the White House to contend that the President did not know that Ms. Currie was an `actual or contemplated witness,' and is difficult to accept that proposition factually. Nor as a matter of law is it `critical,' as the White House contends, that Ms. Currie testified that she felt no pressure to agree with the President. Witness tampering under 1512 can be accomplished through `misleading conduct,' which includes the making of false statements or intentional omissions that make statements misleading. The White House counsel repeatedly argued that threats are necessary for witness tampering, even after senatorial questions demonstrated the White House's misstatements of the law. The White House also misstated the law of witness tampering by claiming that there `must be a known proceeding.' In fact, the defendant need not know that there is any pending federal proceeding to constitute witness tampering. United States v. Kelley, 36 F.3d 1118, 1128 (D.C. Cir. 1994). The White House contends that the President could not have tampered with Ms. Currie in the proceeding in which she was ultimately a witness, the independent counsel's investigation, since the President could not have known that it existed, at least as of January 18. But the statute does not require that the defendant know of any pending or even contemplated proceedings so long as he engages in misleading conduct with respect to a potential witness. United States v. Romero, 54 F.3d 56, 62 (2d Cir. 1995).
The White House's factual defense to this charge is also insufficient. The President could not have made these false statements to Ms. Currie for the purpose of refreshing his recollection. Nor could he have spoken with her for the purpose of seeking information for the same reason. These claims also do not explain why he simply did not ask her the questions over the telephone on the night of the seventeenth, if that was his intention, or explain why he spoke with her a second time.
The seventh item of Article II alleges that the President obstructed justice by relaying false and misleading statements to his aides. On January 21, the President told his chief of staff and two deputies that he had not had sexual relations with Ms. Lewinsky. On January 23, he
told one of those deputy chiefs of staff, John Podesta, that he did not engage in oral sex with Ms. Lewinsky. The President on January 21 told his aide, Sidney Blumenthal, that Ms. Lewinsky had threatened him. President Clinton also indicated that Lewinsky was known among her peers as the stalker, and that she would say that she had an affair with the President whether it was true or not, so that she would not be known as the stalker any more. Blumenthal later testified that he believes the President lied to him. The President testified that he was aware at the time that he made his statements that his aides might be summoned before the grand jury. These facts constitute paradigmatic witness tampering. The President knowingly engaged in misleading conduct, as defined in the statute, towards his aides, with intent to influence the testimony of those aides in an official proceeding.
Once again, the White House's arguments to the contrary are unavailing. The charge is not that the President lied to his friends, as the White House maintains, but that he lied to potential witnesses about his conduct that the grand jury was investigating. It is not relevant, as the White House contends, that the President did not attempt to influence his aides' own personal knowledge, only their knowledge of the President's views, nor, as stated above, is it relevant as a matter of law that the President did not know that any of these individuals would ultimately become witnesses. Most surprising was the claim that Mr. White House Counsel Ruff raised for the first time in closing argument that the President could not be convicted of obstructing justice with respect to his conversations with Mr. Blumenthal because the fact that the President claimed executive privilege with respect to his conversation with Mr. Blumenthal meant that he never expected the grand jury to hear about it. The President's conversation with Mr. Blumenthal was not subject to a legitimate claim of executive privilege for two independent reasons. First, it was not a discussion that related to the President's official duties. Second, it constituted evidence of crime in and of itself. There was no possibility that any court would have ever upheld such a personally self-serving and frivolous misuse of executive privilege, and the President, as a former constitutional law professor during the time of Watergate fully understood that, as does Mr. Ruff. Indeed, Mr. Blumenthal was required to testify to the grand jury about this conversation notwithstanding the fact that the President did invoke an unwarranted executive privilege claim in an attempt to prevent its disclosure. Nor is there evidence that the President intended to claim executive privilege at the time that he had his conversation with Blumenthal. In any case, there was no reason for the President to tell this tale to Mr. Blumenthal except to disseminate it to his press contacts and on any occasion when he might appear before the grand jury.
Each and every allegation of obstruction of justice and witness tampering has thus been proven. The question then arises whether the conclusion that the President has broken the law in this respect warrants his removal from office. Since all have been proven, I am far less concerned that the `one or more' language appears in this article. It is appropriate to charge an omnibus article in which a series of specific charges are leveled, a finding of guilt on each of which is required for conviction.
President Clinton has committed a pattern of acts of obstruction of justice. The record demonstrates that the President, when his misconduct became relevant to a civil court proceeding in which he was a defendant, used all the methods at his disposal, including his status as President, to obstruct these proceedings and to keep the truth from emerging, including:
coaching and encouraging a witness, another federal employee, Betty Currie, to give false testimony;
facilitating and encouraging Monica Lewinsky to submit an affidavit that he had reason to believe would be false;
through Vernon Jordan, securing employment for Monica Lewinsky in order to keep her from divulging to the court the true nature of their relationship;
using government employees to transfer false information to the grand jury;
allowing a false affidavit to be used to perpetrate a fraud on a federal court;
after lying in a civil deposition, authorized a poll and made a cold, calculated decision based on those poll results to continue his obstruction;
attempting to speak to Monica Lewinsky before she might testify truthfully to the independent counsel about their relationship;
following his inability to contact Monica Lewinsky, telling defamatory lies about her in order to discredit her with his aides and with the public;
facilitating the hiding of evidence in a civil lawsuit;
providing false and misleading testimony in both a civil deposition and before a grand jury in order to protect his personal interests;
lying to the American people in order to cover up his own personal misconduct;
still failing to acknowledge that he committed the above actions, while admitting only as little as he has been forced to by the discovery of definitive physical evidence.
For at least nine months and in some respects up until today, the President has done everything within his power to bring about a miscarriage of justice in both a civil court proceeding and a criminal court proceeding. He took these actions for the sole purpose of protecting himself personally, politically and legally. For those who emphasize the private nature of his original misconduct, I would ask if he should be protected because he obstructed justice for such a low purpose? Time and again, and with premeditation, he was willing to use government personnel to assist in his coverup and his lies, acknowledging part of the truth only when confronted with physical evidence. And he carried his lies and cover up right on into legal proceedings with the grace and ease of someone who regarded a court of law as deserving of no more respect than if he were dealing with a stranger on the street. It is this persistent relentless, remorseless pattern of conduct that requires a verdict of guilty. He was willing to lie, defame, hide evidence and enlist anyone necessary, including government employees over and over again. At every juncture when he had the opportunity to stop, relent or come clean with a forgiving public, he chose instead to go forward. And even today he refuses to acknowledge the damage he has done to the Presidency and the Judiciary, choosing instead to rely upon his high job approval rating and acknowledging only what he is forced to after the production of physical evidence.
Consider what those who oppose impeachment say about his actions:
Senator Bumpers, one of the counsel for the President during his trial, described the President's conduct as `indefensible, outrageous, unforgivable, shameless.' The New York Times editorialized that `President Clinton behaved reprehensibly, [and] betrayed his constitutional duty to uphold the rule of law. . ..' A censure resolution offered by members of his own party in the House, including one of the strongest opponents of impeachment in the Judiciary Committee, concluded that President Clinton `egregiously failed in his obligation'
`to set an example of high moral standards and conduct himself in a manner that fosters respect for the truth;' `violated the trust of the American people, lessened their esteem for the office of President, and dishonored the office which they have entrusted to him;' `made false statements concerning his reprehensible conduct with a subordinate;' and `wrongly took steps to delay discovery of the truth.' Respected members of the President's party in this body expressed or shared the expression of the view that his actions were `disgraceful,' that it was `dismay[ing]' to consider `the impact of his actions on our democracy and its moral foundations,' that it was `immoral' and `harmful' since `the President's private conduct can and often does have profound public consequences' and `compromised his moral authority,' and they described his deception as `intentional and premeditated.'
So we castigate the President in the most bitter terms; decry his disgraceful conduct and his damage to the institutions we hold most dear; disgrace him with the most condemnatory language at our command and yet refuse to even consider his removal from office? By such action we treat the loss of public office as the worst fate imaginable, reserved for only the most treasonous of villains. Has public office become so precious in the United States that we treat it as a divine right? Actually, by such treatment we cheapen it.
At a time when all of our institutions are under assault, when the Presidency has been diminished and the Congress is viewed with scepticism, our Judiciary and our court system have remarkably maintained the public's confidence. Now the President's actions are known to every school child in America. And in the midst of these partisan battles, many people still think this matter is just `lying about sex.' But little by little, there will be a growing appreciation that it is about much more than that. And in years to come, in every court house in every town in America, juries, judges, and litigants will have the President's actions as a bench mark against which to measure any attempted subversion of the judicial process. The notion that anyone, no matter how powerless, can get equal justice will be seen by some as a farce. And our rule of law--the principle that many other countries still dream about--the principle that sets us apart, will have been severely damaged. If this does not constitute damage to our government and our society, I cannot imagine what does. And for that he should be convicted.
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