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Lowell: Defender of Democrats in Trouble

'Not All Offenses Are High Crimes and Misdemeanors'

Federal Document Clearing House
Tuesday, October 6, 1998; Page A9

Following is a statement by House Judiciary Committee Minority Counsel Abbe D. Lowell during hearings on whether to conduct an impeachment inquiry of President Clinton.

I appreciate the opportunity to address this committee and to present what are the very different approaches and different analyses between us and the majority staff.

In the time that I have, I will set out the enormous differences in approach between the majority staff's and the minority staff's analyses. I will point to some of the problems caused by the committee's not having begun this process with a discussion of a constitutional standard of impeachment. I will bring the committee's attention to why the huge gaps between the charges in the referral, and now as proposed by majority counsel, and the actual evidence support the type of fair, focused and expeditious review being proposed by the Democratic members. And we will recommend that part of the committee's work should include evaluating the weight and the credibility of the evidence because of the conduct of the independent counsel.

To begin with, we differ from our staff colleagues as we do not believe that this committee or the House of Representatives is supposed to be an extension of the office of the independent counsel. In majority counsel's presentation, I am sure the committee has heard that in just the two weeks there has been to actually review the evidence, majority counsel has now walked away from two of the grounds submitted by the independent counsel and has rewritten or added four others by simply subdividing the charges.

As the committee considers my and my counterpart's summaries of the evidence, and what type of inquiry is needed, we offer this observation. The evidence that Congress has received from the independent counsel on the Lewinsky matter alone comes after he spent nine months with a large staff of trained investigators and prosecutors and $4 million. It is a one-sided presentation by a prosecutor.

The independent counsel's evidence includes 22 interviews or grand jury appearances by Monica Lewinsky, nine by Betty Currie, five by Vernon Jordan, and 20 by Linda Tripp. If after this much time, by this many experienced attorneys, spending this much money, and conducting these many interviews, the evidence he sent does not support the charges he makes, how does renaming or relisting or further subdividing the grounds using that same evidence as majority counsel has just done make the case any stronger or the issues any clearer?

We also seem to differ because we see the committee's constitutional and historic task quite differently from the type of listing of laws and statutes that the independent counsel's referral contains and as majority counsel has just done.

The determinations of whether to begin an impeachment inquiry and what type of inquiry to conduct are vastly different than the determination of whether there is evidence of a violation of law or statute. In other words, the independent counsel's referral and the majority counsel's presentation suggest that there is some kind of equal sign between a violation by a president of any number of laws in the statute books on the one side, and the impeachment provisions of Article II, Section 4 of the Constitution on the other.

We read the precedents differently and see that initiating an impeachment process for only the third time in American history takes a far higher threshold than simply making a laundry list of laws a president may have violated.

As [Rep. Howard L.] Berman said this morning, not all offenses are high crimes and misdemeanors, and not all high crimes and misdemeanors come from criminal conduct.

In our review of the evidence contained in the 18 boxes, which includes every piece of evidence that our majority counsel has just detailed, we have been particularly guided by the gravity impressed on us by our own staff predecessors 24 years ago, when they wrote: "Because the impeachment of the president is a grave step for the nation, it is to be predicated upon conduct seriously incompatible with either the constitutional form and principles of government or the proper performance of constitutional duties of the presidential office."

Unlike some, we have also kept one central point in mind. We have reviewed the referral as it was sent, not as a set of theoretical questions about what is or is not an impeachable offense in a vacuum, but a specific set of 11 grounds tied closely with the facts as the independent counsel has presented them. And even though majority counsel has just attempted to add additional grounds or to rename others, they too will fit into the few categories for the committee that I will propose in a few minutes.

As to the referral itself, we have seen or heard the media ask members the largely rhetorical question: Are you saying that lying under oath or obstruction of justice is not an impeachable offense? This may be the basis for excellent classroom debate, but it begs the issue in the actual Starr referral.

The question the committee will be called upon to answer is whether the allegations of lying under oath, obstruction and tampering – or even as majority counsel renames them as misprision of a crime, false statements or even conspiracy – tied to the specific facts alleged in the referral and the evidence constitute grounds for proceeding, because wrenching the individual words "perjury," "false statements," obstruction" or "tampering" from their factual context is not consistent with the historical precedents concerning the constitutional framework defining a proceeding.

And another defining difference between us and the majority staff is that we agree with our Democratic members who have stated so articulately that the process thus far is backwards. The committee is considering whether to open what type of actual impeachment inquiry without having spent a single minute discussing what conduct by a president rises to an impeachable offense. This, members of the committee, is the equivalent of a ship's captain leaving on a difficult and uncharted voyage hoping to find his or her compass somewhere along the way.

Moreover, the entire process has now been started by a referral from an independent counsel who states his role "is not to determine whether his president's actions warrant impeachment," but then proceeds to usurp the constitutional role of the House by including 11 reasons why it should just do that.

In this regard, the committee should compare the proceedings today and those 24 years ago. Then, special prosecutor Leon Jaworski wrote what has been called a road map of evidence that was neither accusatory nor conclusory. Today, the independent counsel has written 445 pages of conclusions that read like an indictment.

One more important difference to consider is that road map written by Mr. Jaworski remains secret to this very day. Mr. Starr's referrals and nearly 7,000 pages of evidence can be dialed up on the Internet.

Were the committee to proceed as the Democratic members have been urging, to develop a shared understanding of what constitutes an impeachable offense, the committee might save time and resources, because at the end of that consideration the committee might find that none of the alleged violations, no matter how they were originally named by the independent counsel or renamed by majority counsel and all of which are based on the president's private relationship with Monica Lewinsky, would rise to the constitutional threshold.

Without having what will be the committee's deliberations on this important issue, the staff simply kept in mind the broadest and the least-forgiving definition of the constitutional definition of high crimes and misdemeanors. And when we did that, this is what we saw: From the beginning, the framers said that they had to involve "great and dangerous offenses to subvert the Constitution," the quote from George Mason.

Or that as Alexander Hamilton stated, they require there to be "injuries done immediately to the society itself."

Or, as Republican ranking member Edward Hutchinson said when reviewing the conduct of President [Richard M.] Nixon, the offenses had to be "high in the sense that they were crimes directed against or having great impact upon the system of government itself."

And even as the majority staff chooses to rewrite the Starr referral, they, as we, have a ready reference point which they have apparently rejected.

One of the lesser-known offenses alleged against President Nixon outside of the Watergate coverup was that he had purposely and knowingly engaged in tax evasion, including the allegation that there was backdating of documents and a false filing under oath to the IRS. With the Democrats in the majority and the Republicans in the minority, judging a Republican president, the committee voted 26 to 12 that these acts by the president, while perhaps constituting offenses, even criminal offenses, even felonies, were not grounds for impeachment.

The Democratic alternative which tries to put the cart of establishing standards back behind the horse of evaluating evidence understands this basic question: If President Nixon's alleged lies to the IRS about his taxes were not grounds for impeachment in 1974, how, then, are alleged lies about President Clinton's private, sexual relationship with Ms. Lewinsky grounds in 1998?

The independent counsel's referral is composed of 11 separate charges. Majority counsel has already seen fit to reject one or two of these and he has renamed five or six others. But it is not the number of counts or grounds that matter, it is the underlying conduct.

In our law, there is a prosecutor strategy which courts routinely disapprove by which they divide what they believe to be a single offense into many different charges.

They do this to make a case look more serious or foreboding.

This is very much what the independent counsel has done, and now what majority counsel has adopted as his approach. The independent counsel can take the same conduct by the president, and with all the laws that exist on the books, call them one offense, 10 offenses or 100 offenses. That is what prosecutors do.

But no matter how many different grounds were sent by the independent counsel, and no matter how majority counsel may further divide them up or rename them to be in order to pile on additional charges, they fit into three distinct claims: First, that the president lied under oath about the nature of a sexual relationship with Monica Lewinsky; second, that he committed obstruction when he sought others to help him conceal that inappropriate relationship; and third, that he abused the office of the presidency by taking steps to hide that relationship.

So no matter how majority staff may hope to strengthen their recommendation by finding new offenses to tag on, one basic allegation – that is, that the president was engaged in an improper relationship which he did not want disclosed – is the core charge that Mr. Starr and the majority suggest triggers this constitutional crisis.

Some reasons that are offered to support an open-ended inquiry are that the evidence is dense; the evidence supports the charges; and that those charges are serious.

The minority staff's review suggests that the committee's inquiry can be as expeditious as the Democrats propose because most of the evidence has already been obtained and that evidence usually does not support the allegations that have been made.

Time does not permit me to point out how each and every allegation of an offense stated by the independent counsel or now relabeled by majority counsel is not as they contend it to be. And in the interest of time, I have, but will not read out loud, the citations to pages in the actual evidence. But I can take the most serious of the charges to demonstrate the serious gap between allegations and proof.

First, as to the allegations that the president lied under oath, whether you call them lying or perjury or false statements or whatever, half the alleged grounds in the independent counsel's referral, and now seven of the grounds renamed by the majority staff, are that the president lied about his relationship with Monica Lewinsky.

It is not the actual lie about the relationship that rises to an impeachable offense. I suppose the independent counsel agrees that people lie about their improper relationships. But it is the fact that the lie occurred during a civil lawsuit or before the independent counsel's own grand jury that, according to the charges, constitutes the offense.

Majority staff's approach, taking up where Ken Starr left off, would have the committee continue to delve into even more details concerning the physical relationship between the president and Ms. Lewinsky, so that I suppose the committee could determine who was telling the truth about who touched who where and when.

However, this unseemly process does not have to occur. The better approach would be to take the independent counsel at his charge. If it was the fact that the president lied at his Paula Jones deposition that creates the possibly impeachable offense, then the inquiry required would be to determine the importance or impact of that statement in that specific case. And this is what the evidence shows.

These were misstatements about a consensual relationship made during a case alleging nonconsensual harassment.

When Judge [Susan] Webber Wright of Arkansas ruled on Jan. 29 that the evidence about Ms. Lewinsky was "not essential to the core issues of the case," and when she then ruled on April 1 that no matter what the president did with any other woman, Ms. Jones herself had not proven that she had been harmed by what she alleged, the judge was giving this committee the ability to determine that the president's statements, whether truthful or not, were not of the legal importance suggested by Mr. Starr, let alone the grave constitutional significance to support impeachment. And a prolonged inquiry is not required to see that proper context.

Furthermore, the referral is quick to conclude that the president committed a serious offense by his interpretation of what did and did not constitute "sexual relations," in a definition invented for a deposition. That is the type of gobbledygook that gives lawyers our bad name, but the committee will never read in the 455-page referral what the full evidence shows: That his definition just happened to be shared by Ms. Lewinsky herself. In the transcript of her taped Oct. 3, 1997, conversation with Linda Tripp, Ms. Lewinsky herself says that she was not having sex with the president, because they were not engaged in intercourse. And even a Paula Jones former attorney – after all, it was Paula Jones's attorneys who created that strained definition – agreed in a television interview that the definition would not necessarily include oral sex.

Members of the committee, no one has suggested that the president's answers, even given his explanation that he was trying to be truthful but not particularly helpful in what he thought was a lawsuit being run by his political enemies, were not misleading, were not evasive, were not technical. But seen in their entire context of the evidence, they do not have the constitutional impact that the independent counsel and majority counsel has just suggested.

Some have raised the impeachment of judges, including Judge [Walter] Nixon, when they have been conducted for perjury as a precedent for this committee. But members of this committee especially know that the lies in those cases had to do with the discharge of those judges' duties, and that the standards for impeaching judges appointed for life are not the same as for reversing presidential elections.

And in this case, these were statements, the evidence shows the intent of which was to prevent the disclosure of an improper consensual relationship, not to interfere with allegations made by Paula Jones that she had been the subject of unwanted harassment. To put the evidence another way, is there anyone involved in such an improper relationship who ever wanted it disclosed? And does anyone believe that the president would have revealed his improper relationship with Ms. Lewinsky had the Paula Jones case not been pending at the time?

Since the answers to these questions are obvious, the inquiry is not on whether his statements were or were not truthful, but what were their context, what were their impact, and what were their subject matter? This, too, the committee can resolve expeditiously.

And as the committee considers the charges that the president lied under oath, or however they may now be renamed by the majority staff, remember that one example of why the independent counsel would have Congress trigger this inquiry is that the president stated his relationship with Ms. Lewinsky started in 1996, when the independent counsel contends it started in late 1995. For the difference of these few months, a constitutional crisis is not warranted.

Turning to the obstruction allegations, because of its reminiscence to the Watergate proceeding, the phrase "obstruction of justice" is one which many have stated is the most egregious ground alleged in the Starr referral, and why it was so emphasized by majority counsel, who now splits the four contained in the Starr referral, Counts 5, 6, 7 and 9 there, into his Counts 2, 3, 4, 9, 10, 11, 13 and 14. But they're the same.

Just as the committee cannot divorce the phrase "lying under oath" from the facts about which the president is alleged to have lied, so, too, it should not divorce the allegations of obstruction, or whatever the majority staff chooses to call them, from the actual evidence.

Perhaps the three widest quoted obstruction charges made by the independent counsel are that first, the president initiated a return of the gifts he had sent Ms. Lewinsky so that they would not be discovered in the Paula Jones case.

Second, he tried to have Ms. Lewinsky submit a false affidavit. And third, he sought to tamper with the testimony of Ms. Currie.

But all of these are undercut by the evidence. As to the gifts, Mr. Starr's referral states, "Lewinsky and the president discuss the possibility of removing some gifts from her possession." Majority counsel contends this to be a potential ground for imprisonment and so, too, calls it obstruction.

Certainly, this would be a serious charge if true. The actual evidence, however, shows it is not true. No matter how cast – as the independent counsel first did or as majority staff will label it now. Read the actual testimony and the committee will see that Ms. Lewinsky admits that she was the one who raised the gift issue with the president, not vice versa. And his response was not encouraging. He said, "Let me think about it."

This and his having already told her she would have to turn over whatever she had, hardly can support a charge of obstruction or misprision or conspiracy as a criminal offense, let alone to justify the majority counsel's conclusion of an impeachable one. Read further and the committee will see that, contrary to the conclusion that the president was worried about gifts, he actually gave Ms. Lewinsky additional gifts after she had expressed concern about them and after he knew they were subpoenaed; hardly the acts of a man set on obstruction.

Finally, where the actual referral would indicate that it was the president or Ms. Currie who initiated the gift idea, Ms. Currie indicated that the idea came from Ms. Lewinsky. Not satisfied with this answer, that did not match the charge that they were preparing, the independent counsel then proposed to Ms. Currie that her memory differed from Ms. Lewinsky.

When Ms. Currie said that that might be the case, that one word "might" was all the independent counsel needed to make his charge. But read in its entirety, Ms. Currie's testimony is clear, and no leading question or quotation out of context can change the one important thing about her testimony. The president did not ask her to call for or retrieve the gifts.

As to the affidavit, the independent counsel charges, and majority counsel would argue, that more inquiry is needed because the evidence is that the president sought Ms. Lewinsky to submit a false affidavit in the Jones case, a serious charge, which, again, is not contained in the evidence.

There is no doubt that the president and Ms. Lewinsky discussed the affidavit, and no doubt that neither wanted her to have to testify in a case concerning sexual harassment about what was their improper, but entirely consensual relationship. The way Ms. Lewinsky puts it was: "It was a personal one and none of Paula Jones's business."

Wanting an affidavit to avoid this consensual relationship from being exposed, and seeking a false affidavit are not the same. Even though the Starr referral jumps right over this difference. And as to the only facts that would matter, both the president and Ms. Lewinsky agree that he never asked her to file a false affidavit, and that the president did not even want to see the affidavit once it was finished. And even though the independent counsel tries to enhance his charge that the president sought Ms. Lewinsky to lie by "assisting her job search to keep her on the team."

Hasn't everyone now seen that the job search began by others than the president long before the Jones case issue arose, that it was started to remove Ms. Lewinsky from the White House before the election, that Linda Tripp, not the president, suggested getting Vernon Jordan involved, that Ms. Currie pushed getting her then-friend a job, because she felt badly about Ms. Lewinsky having been transferred. And, finally, that Ms. Lewinsky, even though she was never asked by the independent counsel, made sure she did not finish her testimony before stating: "No one asked me to lie, and I was never promised a job for my silence."

And committee members, please note this: Despite the independent counsel having room in his report for pages and pages of unnecessary specifics, quoting directly from Ms. Lewinsky about where, when, and how she touched the president, he could not find the space in his 450 pages to quote her exact, uncompromising, clear and completely dispositive words on this key issue: "No one asked me to lie, and I was never promised a job for my silence."

And as to Betty Currie, while the charge – the independent counsel may call it obstruction; the majority counsel calls it something different – was made that the president was trying to tamper with the testimony of Betty Currie, you can look through the 445-page referral and never see the independent counsel advise you that Ms. Currie was not listed to be deposed and was not on a witness list in the Jones case, or even that the president obviously did not know that Linda Tripp had come to the office of the independent counsel to start this investigation.

Ms. Currie then was not a "witness" who could have been tampered with.

But what the full transcripts of Ms. Currie, the president and the White House staff, and reference to the time frame of Jan. 18 do show is that the president's worry was not Ms. Currie being a witness, but was the fact that the questions and answers at his deposition were going to be leaked to the press and create a media eruption.

The evidence shows that that's exactly what his motives were, because just a few hours after his testimony, the Lewinsky questions and answers were on the Internet and the subject of the next day's Sunday news shows.

And while the independent counsel and now the majority staff contend that the president sought to direct Ms. Currie about what to say, Ms. Currie says just the opposite. Her being called back and back and back to the independent counsel's grand jury, and her now being called before this committee and asked the questions again and again and again did not then and will not now change the facts.

Members of the committee, counts 10 and 11 in the independent counsel's referral are in many ways the most illustrative of that referral and should be seen by you to undermine his entire presentation. They have now, as I hear my colleague, been dropped by majority counsel and staff.

Not content – and those are the allegations of abuse of office – not content with charging lying under oath, witness tampering and obstruction of justice about the president's attempt to hide his private relationship, the independent counsel has asked the committee to recast these same allegations as an abuse of office, just as majority counsel wants to rename his charges.

But the term of abuse of office does indeed invoke the memory of President Nixon's wrongdoing. But the clothes of Watergate do not fit the body of the conduct detailed in this referral.

In effect, grounds 10 and 11 charge that the president lied to his staff or to the people around him about the same inappropriate relationship with Ms. Lewinsky knowing that they might repeat those misstatements, and then that the president violated his oath of office because he and his attorneys tried to protect his constitutional rights by asserting privileges of law – including executive privilege and the attorney-client privilege given to presidents and all Americans alike.

Even majority counsel did not take long to dismiss these ideas as his 15 charges do not include this odd notion of an abuse of office for those reasons. And I now assume that the majority will not pursue those accounts.

But as to the misstatements to the staff that might be repeated in the grand jury or even to the public, the independent counsel's referral continues to divide the charge from what the statement was about. This was not an attempt by a president to organize his staff to spread misinformation about the progress of the war in Vietnam. It was not about a break-in of the Democratic headquarters at the Watergate or even about how funds from arms sales in Iran were diverted to aid the contras in Nicaragua.

This was a president repeating to his staff the same denial of an inappropriate and extremely embarrassing relationship that he had already denied to the public. However wrong the relationship or misleading the denial, it is not nearly the same as those other examples and cannot stand on the same constitutional footing.

And so to the ground for impeachment that the president had the audacity to assert privileges in litigation, it is literally shocking that the independent counsel – himself a former appellate judge and chief lawyer for the United States before the Supreme Court – would even suggest that the assertion of an evidentiary privilege by the president on the advice of his lawyers and White House counsel that was found to exist by a judge in question could ever under any circumstances be grounds for impeachment.

I have heard the independent counsel say, as majority counsel just did some minutes ago, that the president should not be above the law.

And yet the referral would place him below the law that gives every American the right to assert legally accepted privileges without fearing being thrown out of his job.

So if these were so easily dismissed by the majority staff, why would the independent counsel suggest these almost frivolous bases?

As the committee decides on the scope of its work, one other issue should be included that may answer that question. We have pointed to just some of the times when the independent counsel makes a statement not supported by the evidence he sent or then jumps to a guilty inference when a more innocent explanation was far more obvious.

A full and fair inquiry should therefore consider whether numerous actions by the independent counsel undermine his claim to impartiality and fairness.

Considering this would not be an attempt to divert attention from the president's conduct or for delay.

Excesses by the independent counsel or any gatherer of the evidence on which you're going to rely, as some have contended, is only incidental or tangential? That is not the case. How does the committee know that that's not the case? The independent counsel said so himself.

When Monica Lewinsky's testimony was released by the committee, it was Mr. Starr himself who wrote the committee on Sept. 25, 1998. And this is what he said. "At the time we submitted our referral, we reviewed these questions about his conduct as incidental and tangential. Nonetheless, the issue has now been raised publicly and appears to bear on the substantiality and credibility of the information we've provided to the House in our referral."

We agree with the independent counsel that his conduct bears on the substantiality and credibility of the information he gathered and transmitted. Consequently, on the independent counsel's own invitation to the committee, this, too, should be the subject of its review.

And there are at least three important issues.

First, after four years of investigation, the part of the case which has caused this impeachment referral was the Lewinsky matter. However, it is not clear whether the independent counsel jumped the gun on getting into this area based on the exaggerated and perhaps even manipulated statements of Linda Tripp. It may have begun its dealings with Ms. Tripp earlier than it has now said before. It accepted Linda Tripp's apparently unlawfully obtained tapes and then wired her to trap Ms. Lewinsky before it was given authority by the court to get into these matters.

Second, once it did get involved, its dealings with Ms. Lewinsky, when the independent counsel staff detained her 10 hours despite her asking for a lawyer; with her mother, who was brought to tears by their conduct; with Ms. Currie, who they returned to the grand jury again and again with leading and suggestive questions; and with other witnesses, all raise the issue of the quality of the evidence that they obtained and have now used as the foundation for their referral. Because, as the weight of evidence diminishes, so must conclusions the independent counsel has done. So too, the committee must evaluate the equality and substantiality of the evidence.

Finally, if the committee compares the charges and the main points of evidence from the 450-page referral with the news stories that appeared between January and August, it will confirm that not one charge, not one allegation and not one piece of evidence from the Tripp tapes to the stained blue dress was not leaked to the press. The independent counsel has been asked to show cause why it should not be held in contempt for leaking, and the outcome of that determination, when it is made, as Mr. Starr's invitation would seem to agree, bears on the substantiality and on the credibility of the evidence.

In that same vein, members of the committee consider this. When the referral was finally delivered to the House of Representatives on Sept. 9, 1998, and it was locked in a secure room, in a matter of minutes – in a matter of minutes – the media reported on how many pages and how many counts it contained. Certainly, the committee knows that that information could not have come from Capitol Hill, where the boxes remained under seal. ...

[F]or only the third time in the 200-year history of our country, has an impeachment process been invoked. As members on both sides of the aisle have said, this is not a step that should be undertaken lightly and it is one, as the Democratic members have argued, that should not to a fishing expedition to find something better than that which has been sent in the original referral.

The staff has been asked to make a preliminary evaluation of the charges and of the evidence. This preliminary review indicates that the charges are often overstated; based on strained definitions of what is an offense under the law; are often not supported by the actual evidence in the boxes; and are sometimes, as with the case of counts 10 and 11 in the referral, the product of zeal to make the case rather than to state the law.

As the minority staff, we have fewer resources than our counterparts, just as the majority has more votes than the minority to pass whatever inquiry it believes is right. But it should be the weight of the evidence and not the number of votes that matter.

Congresswoman [ Zoe] Lofgren provided the staff with some history for us to read. In one piece, Alexander Hamilton was called upon to explain the impeachment process to the people being asked to adopt the Constitution. And this is what he said. "Prosecutions of impeachment will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases, it will connect itself with the preexisting factions, and in such cases, there will always be the danger that the decision will be regulated more by the comparative strength of the parties than by real demonstrations of innocence or guilt."

As the committee considers the version of events the independent counsel suggests might rise to impeachable offenses, and then decides between the two alternative resolutions being presented, Hamilton's words seem particularly germane.

© Copyright 1998 The Washington Post Company

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