THE IMPEACHMENT TRIAL
Jan. 25: White House Argues for Dismissal
From the Congressional Record
Ms. Counsel SELIGMAN. Mr. Chief Justice, ladies and gentlemen of the Senate, distinguished House managers, good afternoon. My name is Nicole Seligman. I am a member of the law firm of Williams & Connolly here in Washington, DC. I have been privileged to represent President Clinton as personal counsel since 1994.
I am honored to stand before you today to argue in support of the motion to dismiss the impeachment proceedings that has been offered by the senior Senator from West Virginia, Senator Byrd.
The Constitution reposes in this body and nowhere else the sole authority to try impeachments. It has placed in your hands alone the decision whether to dismiss now or to go forward.
There is no judicial review. There is no judicial guidance other than that which each of you, in your wisdom, may choose to apply by analogy from judicial experience. There are no particular rules of civil or criminal procedure that you must follow. The Constitution has freed you from that. It has wisely placed in your hands alone the ability to make a sound judgment in the manner you think best for the reasons you think best, based on your wisdom and experience, as to what is best for this Nation at this moment in the proceedings.
We submit to you that the moment has arrived where the best interests of the Nation, the wise prescription of the framers, and the failure of the managers' proof, all point to dismissal. You have listened. You have heard. The case cannot be made. It is time to end it.
Without presuming to infringe on the constitutional authority that is yours alone, and without repeating at undue length the arguments that you heard over the past few weeks, I do want to set out briefly the reasons that we believe to be some of the grounds on which an early and fair disposition of this difficult matter might rest. There are at least four such grounds. Each one stands by itself as sufficient reason to vote for the motion of Senator Byrd.
The first ground is the core constitutional issue before you, the failure of the articles to charge impeachable offenses. They do not do so. They do not allege conduct that, if proven, violated the public trust in the manner the framers intended when they wrote the words 'treason, bribery, or other high crimes and misdemeanors.' For absent an element of immediate danger to the state, a danger of such magnitude that it cannot await resolution by the electorate in the normal cycle, the framers intended restraint. There is no such danger to the state here. No one has made that claim, or could, or would. A vote for the motion is a vote for constitutional stability.
Impeachment was never meant to be just another weapon in the arsenal of partisanship. By definition, a partisan split like that which accompanied these articles from the House of Representatives creates doubt that makes plain a constitutional error of the course that we are on. As Senator William Pitt Fessenden wrote 130 years ago on a great and decisive historical occasion, the impeachment trial of Andrew Johnson:
Conviction upon impeachment should be free from the taint of party and leave no ground for suspicion upon the motives of those who inflict the penalty.
His words echoed those of Alexander Hamilton who, in the much quoted Federalist 65, had warned, in his words, of 'the greatest danger that the decision'--that is the decision by the Senate--'will be regulated more by the comparative strength of the parties than by the real demonstrations of innocence or guilt.'
Now, Mr. Manager Graham has candidly acknowledged that reasonable people could disagree about the propriety of removal. He said they absolutely could. We suggest to you that there can be no removal when even the prosecutor agrees that such reasonable doubts exist. If reasonable people can disagree, we suggest to you that reasonable Senators should dismiss. The constitutional standard for impeachment is not met here.
The second and third grounds we offer to you relate to the deeply flawed drafting of the articles by the House of Representatives. They have left the House managers free to fill what Mr. Ruff described as 'an empty vessel,' to define for the
House of Representatives what it really had in mind when it impeached the President. But that is not a role that the Constitution allows to be delegated to the House managers. It is not a role that the Constitution allows them to fill. It is a role that is explicitly and uniquely reserved to the full House of Representatives which, under our Constitution, has the sole power to impeach.
The articles also are unconstitutionally defective for yet another reason, because each article combines a menu of charges, and the managers invite the Members of this body to convict on one or more of the charges they list. The result is the deeply troubling prospect that the President might be convicted and removed from office without two-thirds of the Senate agreeing on what the President actually did. Such a result would be in conflict with the requirement that the President cannot be convicted unless two-thirds of this body concurs. The requirement of a two-thirds supermajority is at the core of the constitutional protection afforded the President and the American people. The Founding Fathers were wise to guarantee that protection, and it has protected the Presidency for more than two centuries. The House must not be allowed to erode that protection today. The articles, as drafted, are unconstitutional.
The fourth ground for the motion is based on the facts. Mr. Manager McCollum has twice asserted that this body must first determine whether the President committed crimes, and then move on to the question of removal from office. Recognizing that each Senator is free to choose the standard of proof that his or her conscience dictates, we submit that if the question is, as the managers would have it, whether the President has committed a crime, that standard should be proof beyond a reasonable doubt. And it is clear that such a standard, that is, proof to the level of certainty necessary to make the most significant decisions you face in life, cannot possibly be met here. The presentations last week demonstrated that the record is full of exculpatory facts and deeply ambiguous circumstantial evidence that will make it impossible for the managers to meet this standard or, in fact, any standard that you might in good conscience choose to apply here.
Now, the managers have with great ingenuity spun out theories of wrongdoing that they have advanced repeatedly, persistently, passionately. But mere repetition, no matter how dogged, cannot create a reality where there is none. The factual record is before you. We submit that it does not approach the kind of case that you would need to justify the conviction and removal of the President from office. And calling witnesses is not the answer. All the evidence you need to make your decision is before you, documented in thousands of pages of testimony given under oath or to the FBI agents and Mr. Starr's prosecutors under penalty of law.
These, then, are the four grounds for the motion to dismiss. I know many of these arguments are not new to you, and I will try to be brief as I review them.
The question before this body requires solemnity on all of our parts. It inevitably creates no small measure of apprehension. In our Nation's political history, in our legal history, it is fair to say that few decisions of such overwhelming magnitude have been confronted by this body. There could be no matter more clearly placed in your hands alone by the Constitution, and on its resolution rests more than the political fate of William Clinton; there rests the course of our democracy in the coming years of the new century and for untold years thereafter.
Constitutional history confirms that the decision before you was meant to be significant and difficult to make. It demonstrates that only the most extraordinary of charges warrants the most extraordinary of outcomes. Any question, any doubt, must be resolved in favor of the electoral will, for it is the will of the people, the people who have all sovereignty in our law, that in the end is the foundation of our democracy. And we submit that the doubt here is pervasive: Doubt about whether the charged conduct, efforts to conceal a private personal embarrassment, could reasonably be deemed a violation against the state at all, let alone a violation so severe as to compel removal; doubt about the constitutionality of the articles as drafted; doubt about the sufficiency of the managers' case; and that doubt upon doubt upon doubt makes a vote to dismiss the only fair choice.
Let me turn then to the fundamental constitutional argument.
The impeachment power was meant to remove the President of the United States from office only for the most serious abuses of official power or for misbehavior of such magnitude that the collective wisdom of the people would compel immediate discharge. One of America's leading professors of constitutional law, Professor Akhil Amar of the Yale Law School, has framed the problem poignantly and concisely, stating:
The question to ask is whether [President Clinton's] misconduct is so serious and malignant as to justify undoing a national election [and] canceling the votes of millions.
We know the answer. It was provided by Charles Black in his classic book on impeachment when he wrote that:
Impeachment and removal should be reserved only for offenses that so seriously threaten the order of political society as to make pestilent and dangerous the continuance in power of their perpetrator.
James Madison made much the same point two centuries earlier, stating that an impeachment provision of some kind was 'indispensable' because a President's 'loss of capacity or corruption . . . might be fatal to the Republic.'
The statements and writings of the framers of our Constitution and centuries of scholarship and the meaning of that brief but so significant phrase, 'high crimes and misdemeanors,' enable us to establish with solid assurance that the conduct charged against the President does not amount to an impeachable offense.
Our argument today is a simple one: Ordinary civil and criminal wrongs may be addressed through ordinary civil and criminal processes, and ordinary political wrongs may be addressed at the ballot box or by public opinion. Only the most serious public misconduct, aggravated abuse of Executive power, is meant to be addressed through exercise of the Presidential impeachment power.
The conduct here arises out of a private lawsuit. Let me talk for a moment about that lawsuit which is the backdrop for these proceedings.
The Jones case arose out of an alleged incident that predated the President's first term as President. The charges at issue here arise out of the President's conduct in that lawsuit. No charge relates to his official conduct as President. Indeed, as we know, the Supreme Court told President Clinton that he could not delay defending the Jones lawsuit until he was out of office. And when it ruled that way, the Court emphasized just this very point. It made clear that he might have been able to delay or avoid the lawsuit if it had related to his official conduct, because the law provides various immunities for such lawsuits; but precisely because it related to his private actions, it would be allowed to go forward.
In drawing that conclusion, interestingly, the Supreme Court actually looked to the wisdom of James Wilson, a framer, a Supreme Court Justice, and a constitutional commentator, and cited the distinction he drew between a President's acts performed in his 'public character,' for which he might be impeached, according to Justice Wilson, and acts performed in his private character, to which the President is answerable, as
any other citizen, in court.
We agree that there might be extreme cases where private conduct would so paralyze the President's ability to govern that the impeachment power must be exercised, where the certainty of guilt and the gravity of the charge would leave no choice. But charges arising out of the President's efforts to keep an admittedly wrongful relationship secret are, by no analysis, of that caliber.
Some have suggested that making this argument is the same as arguing that the President is above the law. That simply is not so. The often repeated statement that no man--or woman, I should add--is above the law is, of course, true. Once he leaves office, the President is as amenable to the law as any citizen, including for private conduct during his term of office. As my colleagues Mr. Ruff and Mr. Craig argued to you last week, if a grand jury should choose to consider charges against this President, his status as a former President will not prevent that consideration.
But here is the point: Impeachment is not meant to punish an individual; it is a protection for the people; in Alexander Hamilton's words, a remedy for great 'injuries done to the society itself.' It is, as your 19th century predecessor, Senator Garrett Davis, pointed out in the Andrew Johnson proceedings, 'the extreme remedy . . . intended for the worst political disorders of the executive department.'
The House managers appear to argue that the President must be removed nonetheless, because to do otherwise places him above the law. But there is one thing that can be said with certainty about the impeachment power. Although it may have that result, it is not meant to punish the man, to set an example, or to provide a 'cleansing' of the political process; it is meant to protect the state. If it is punishment the House managers seek, they are in the wrong place, in the wrong job, at the wrong time, and for the wrong reasons.
A question has arisen whether, as a general matter, any violation of law demands removal because it would be a violation of the President's duty to take care that the laws be faithfully executed or a breach of the public trust. But, again, the history of the clause makes clear that the framers intentionally chose not to make all crimes or even all felonies impeachable.
I suggest we would all agree that, in the broadest possible sense, a proven violation of criminal law is a violation of a public trust. But the framers consciously elected not to make impeachment the remedy for 'all crimes and misdemeanors.' When the framers wished to address all crimes, they knew how to do it, and they did it. In article IV, section 2, the Constitution states that, 'A Person charged in any State with Treason, Felony, or other Crime' is susceptible to extradition--'or other crime.' The framers knew how to say it, but they didn't say it about impeachment, because that is not what they meant.
Some also have argued that the experience of judicial impeachments in this body undermines this argument. They claim that judges have been removed for purely private conduct and that a President should be treated no differently. This argument completely misses the mark as well.
By constitutional design, judges are very different from a President. Presidents are elected for a fixed term, while Federal judges serve with life tenure. Presidents are elected by the people in one of the great periodic exercises of national will, and their tenure is blessed as the choice of the people.
Judges, on the other hand, are appointed and confirmed by the representatives of the people, but their selection does not represent a direct expression of the will of the people. Judges' tenure is conditioned on good behavior, while that of a President is not. And there is an obvious reason for this distinction. Life tenure, which was designed to assure judicial independence, plainly becomes a problem in the event of a judge who is not fit to serve. A President may be voted out by the people, a judge may not; hence the good behavior requirement and the duty upon the Congress to enforce it in those exceptional cases where it must be enforced.
It is possible to debate forever whether the good behavior clause represents an independent basis for impeachment or whether, in the case of judges, it is a factor to be weighed when this body exercises its sound judgment to decide what constitutes a high crime or misdemeanor. But there is no need to resolve that dispute here. Either way, it is clear, as the Watergate impeachment inquiry report established, that the term 'high crimes and misdemeanors' is given content by the context of the charge and the office at issue. Because of issues of legitimacy, accountability, and tenure, the framers decided that Federal judges needed the additional check of the good behavior
clause--language they left out of the articles creating Congress and the Presidency.
And the Presidency is, of course, different. Alexander Hamilton said, in Federalist 79, that a judge could be impeached for malconduct. But in the words of the Watergate Impeachment Inquiry Report--a report I remind you that Mr. Manager Canady has commended to your consideration--Presidential impeachment is distinctive. The report stated--and I quote, because it is an important quote--'Because impeachment of a President is a grave step for the nation, it is to be predicated only upon conduct seriously incompatible with either the constitutional form and principles of our government or the proper performance of the constitutional duties of the presidential office. . . . The facts must be considered as a whole in the context of the office,' the report concludes. The office matters. For judges, the good behavior standard comes in one way or the other. For the President, the standard is different.
As I mentioned, Mr. Manager Graham candidly acknowledged last Saturday that reasonable people could disagree as to whether this President should be removed from office, even if they believe he acted as charged--reasonable people could disagree. In this connection, consider, if you will, the words of Senator William Pitt Fessenden, written 130 years ago. Senator Fessenden was one of the seven brave Republicans who crossed party lines to vote against the conviction of President Johnson in his 1868 impeachment trial. He wrote--and I quote--'the offense for which a Chief Magistrate is removed from office . . . should be of such a character as to commend itself at once to the minds of all right thinking men as, beyond all question, an adequate cause.' Think about that phrase--'beyond all question.' Where there is room for reasonable disagreement, there is no place for conviction.
If many in this Chamber and in this Nation believe that these charges do not meet the bar of high crimes and misdemeanors, then the question must be asked, Why prolong this process?
I would like to turn briefly now to two grounds for dismissal based on the manner in which the House drafted these articles. The first is that each of the articles contain several quite different charges. The House compounded its charges. It is tempting to ask how, in a matter of such importance, we can urge what might appear to be a procedural, highly technical argument like this one.
There are several answers to that. The first is that it is neither 'procedural' nor 'highly technical.' It goes to the very heart of our constitutional protections and raises concerns about fairness and the appearance of fairness in this proceeding as so many Senators have so eloquently noted in the past when the issue has arisen.
As Senator Kohl stated in the Judge Nixon impeachment matter, in which a similar omnibus article was defeated--and I quote:
The House is telling us it's OK to convict Judge Nixon on Article III even if we have different visions of what he did wrong. But that's not fair to Judge Nixon, to the Senate, or to the American people. Let's say we do convict on Article III. The American people--to say nothing of history--would never know exactly which of Judge Nixon's statements we regarded as untrue. They'd have to guess. What's more, this ambiguity would prevent us from being totally accountable to the voters
for our decision.
As the Senator said, that is an unacceptable outcome, one that was 'not fair to Judge Nixon, to the Senate, or to the American people.'
Judge Nixon was acquitted on this article. We suggest to you that the House is now asking this Senate to convict President Clinton on just such articles. And that is not fair either to President Clinton, to this Senate, or to the American people.
The second response is that--even if this troubling problem were procedural--fair, constitutional procedures go to the heart of the rule of law. As the Supreme Court has stated, 'The history of liberty has largely been the history of observance of procedural safeguards.' It would, indeed, be ironic if, in the course of this proceeding in which the vindication of the rule of law has so often been invoked, this body were to ignore an important procedural flaw.
The legal basis for this argument is by now well known. Article I, section 3 of the Constitution provides that on articles of impeachment 'no Person shall be convicted without the Concurrence of two-thirds of the Members present.' This requirement is plain. There must be, in the language of the Constitution, 'Concurrence,' which is to say, genuine, reliably manifested agreement among those voting to convict.
Without clarity on exactly what the President would be convicted for, there can be no concurrence. These requirements of concurrence and a two-thirds vote are the twin safeguards of the framers' plain intent to assure that conviction not come easily.
And let there be no doubt, these articles present textbook examples of a prosecutorial grab bag. Look at article II, which, by its terms, charges obstruction of the Jones litigation. It presents six topics related to the Jones litigation and one related to the very separate issue of grand jury obstruction. The first six acts alleged are unrelated in time or alleged intent to the seventh. Under no conceivable theory are they part of the same scheme, and no one ever has claimed them to be. But as it is drafted, and as it must be voted on by this body, under the Senate rules, the article would allow certain Senators to convict on obstruction of the Jones case and others on grand jury obstruction. That is not concurrence in a vote on an article, as the Constitution demands it. An indictment against any American drafted like these articles could not go near the jury. It would be dismissed. And no lesser standard should apply here.
A second fatal flaw in the drafting is their complete lack of specificity, which makes it impossible to know precisely what the President is alleged to have done wrong. This defect is most troublesome in the article I perjury charges, which never simply state what the President said that was allegedly perjurious. The defect is a plain and obvious constitutional one: The House of Representatives has unconstitutionally neglected its 'sole' power to impeach and delegated to the House managers that which cannot constitutionally be delegated--the power to decide what the House meant. The result has been what can charitably be described as a fluid approach to the identification of charges against the President. The House majority and its managers have sought to add, delete, amend, expand and contract the list as this matter has proceeded from Mr. Starr, to the committee, to the full House, to this body.
They also, mystifyingly, have insisted on couching their charges as examples. How on Earth can an accused defend against examples? Where is the notice? Where is the due process? And no sooner was this very concern raised here by Mr. Ruff than they did it again. This is quite extraordinary.
In response to Mr. Ruff's challenge, the managers put out a press release, on January 19, purporting to list allegedly perjurious statements on which you are to vote. And what did they say? They offered more examples. They said in response--and I quote--'Here are four examples of perjurious statements made to the grand jury:'
Ladies and gentlemen, almost 40 years ago, the Supreme Court made clear that this kind of charging is unacceptable. When an indictment leaves so much to the imagination of individuals, other than the constitutionally designated charging body, it must be dismissed. Again, no lesser standard should apply here.
Our fourth ground for dismissal is based on the facts. The evidence, in the tens of thousands of pages before you, establishes that the case against the President cannot be proven with any acceptable degree of certainty.
The record is filled with too much that is exculpatory, too much that is ambiguous, too much from the managers that requires unfounded speculation.
A very brief look at the articles and the facts makes clear that in light of the uncontested exculpatory facts, such as the direct denials from Ms. Currie, from Mr. Jordan, and from Ms. Lewinsky of various alleged misconduct, the managers cannot possibly meet their burden of proof here. Look briefly at article I. Much of it challenges the President's assertions of his own state of mind, his understanding of the definition given to him, his understanding of the meaning of a word, his legal opinion of his Jones testimony, his mindset during statements of his lawyer, Robert Bennett. The managers offer speculation and theories about these matters, but you are not here to try speculation and theories. You are here to try facts. And the facts do not support their theories.
Other claims in article I are so insubstantial as to be frivolous and unworthy of the time and attention of this historic body. Certain answers about the particulars of the admitted intimate relationship between the President and Ms. Lewinsky--whether their admitted inappropriate encounters were properly characterized as occurring on 'certain occasions' is but one example--could not possibly have had any bearing on the Starr investigation. These answers were even irrelevant, immaterial, to Mr. Starr.
Remember, in the grand jury the President admitted to the relationship, admitted it was improper, admitted it occurs over time, admitted he had sought to hide it, admitted he had misled his wife, his staff, his friends, the country. But how it began, exactly when it began, how many intimate encounters there were, whether there were 11 or 17 or some other number and with what frequency, these are details irrelevant to the Starr investigation, and I must say, irrelevant to your decision whether to remove the freely elected President of the United States.
There has been much discussion about the Jones deposition here and whether it, too, is a part of article I. The point is a simple one. The House of Representatives exercised its constitutional authority, and in a bipartisan vote defeated an article of impeachment based on the answers in the Jones deposition. Those answers are not before you and the managers' sleight of hand cannot now put them back into article I. The article charges only the statements made in the grand jury about that deposition. The managers ask you to look at one response: The President's lawyerly assertion that the Jones deposition was not legally perjurious, however frustrating or misleading, and to read that as an affirmation of every answer he gave. But the grand jury testimony must be read as a whole.
What did the President convey during that testimony? Certainly not that he was standing behind every word in the Jones deposition as the whole truth. He spent 4 hours in the grand jury explaining that testimony--adding to it, clarifying it, discussing the confusing deposition questions and answers, and pointing out his efforts to be literally truthful, if not forthcoming, explaining what he had tried to do, the line he had tried to walk, however successfully or unsuccessfully. He laid it all out. He was not asked by Mr. Starr to reaffirm or adopt the earlier testimony, and he did not reaffirm or adopt it.
This brings us to the last issue in article I, the so-called touching issue. My colleague, Mr. Craig, has talked
at length about the legal and practical obstacles to a case based on an oath against an oath. Whether compelled by law or practice, the rule reflects the commonsense proposition that there will always be a reasonable doubt as to the truth when the case rests merely on an oath against an oath. That is why seasoned prosecutors said in the House of Representatives that they would never bring such a case. That is why you need no more information to conclude that conviction on that basis will not be possible.
The evidence also undermines the allegations of article II. My colleagues, Ms. Mills and Mr. Kendall, made a detailed review of the allegations in each of the seven subparts of article II. They went over the evidence in great detail, and I am certainly not going to repeat that here. They pointed to the significant amount of direct evidence in the record that controverts the claims made in this article, most notably the consistent statements by Ms. Lewinsky that no one ever asked, suggested, or encouraged her to lie, and that no one ever promised her a job for her silence.
They demonstrated that with regard to the transfer of gifts, the testimony of Ms. Lewinsky and Ms. Currie has consistently been inconsistent, but that even Ms. Lewinsky has acknowledged it was she who was concerned about the gifts and who raised the issue with the President. And the fact that the President gave Ms. Lewinsky more gifts on December 28 simply cannot be reconciled with any theory of the managers' case.
Ms. Mills reviewed the evidence concerning the President's conversation with Ms. Currie on the Sunday after the Paula Jones deposition. However ill-advised that conversation might have been under the circumstances, it was not criminal. The President was motivated by his own anxieties and by a desire to find out what Ms. Currie knew in anticipation of the media storm he feared would break, as it surely did. Contrary to the suggestion of Mr. Manager Hutchinson, Ms. Currie had not yet been subpoenaed at the time of that conversation. Ms. Currie was not on any Jones case witness list at the time of the conversation. She testified that she felt absolutely no pressure to change her account during that conversation. She never testified that she felt uncomfortable--again, contrary to the suggestion of Mr. Manager Hutchinson. She was not a witness. There was no pressure. There is a completely reasonable explanation.
Let me be clear here: There is no evidence that the President ever asked Ms. Lewinsky to file a false affidavit or told her to give false testimony if she appeared as a witness. Both believed Ms. Lewinsky could file a limited but true affidavit that might--might--avoid a deposition in the Jones case. While the two had discussed cover stories to explain Ms. Lewinsky's visits, Ms. Lewinsky never testified that they discussed the cover stories in the context of the possibility of her testifying personally, as article II alleges.
Now you have heard in detail from Mr. Craig and Mr. Kendall about the fleeting moment in the Jones deposition when Mr. Bennett tried unsuccessfully to prevent the President being questioned about Ms. Lewinsky by citing her affidavit. The judge immediately overruled the objection. It did not obstruct in any way the Jones lawyers' ability to question the President.
The statement had no effect. And the tape of the President cannot disprove the President's testimony that he wasn't paying attention. He doesn't comment, concur, or even nod. With a weak case at hand, the managers have tried to turn a blank stare into a high crime.
The last subpart of article II is flawed in many respects: The article alleges obstruction of the Jones case, but the President's misleading statements to his White House aides about Ms. Lewinsky had no effect on that case at all. In any event, the effect of the President's statements on his aides was no different than on the millions of Americans who had heard and seen the President make similar denials on television.
And finally, the subpart claims obstruction of the grand jury, whereas the whole point of article II is alleged obstruction of the Jones case. As I asked before, what is it doing here?
As to Ms. Lewinsky's job search, all the managers have presented it is a theory, a hypothesis in search of factual support.
The direct evidence is clear and uncontradicted. Ms. Lewinsky, Mr. Jordan, the President, and people at the New York City companies Ms. Lewinsky contacted all testified that there was no relation of any of the job search activity to the Jones case--none. Not a single witness supports the managers' theory. As we demonstrated, their core theory that the job assistance intensified after the Court's December 11 order was based on plain and simple error. And without that support, the theory collapsed.
No doubt, the managers' response will be that that is why witnesses are needed, to help the managers make their case. But witnesses will not fill the void in the evidence:
First, because the evidence, as we have shown, is overwhelmingly uncontested. If there is no dispute, why do witnesses have to be questioned at all? House Majority Counsel Schippers himself made this point when speaking of the very same transcripts and FBI interviews that you all have before you. He stated to the Judiciary Committee: 'As it stands, all of the factual witnesses are uncontradicted and amply corroborated.'
Second, because the actual disagreements--for example, what was in the President's mind in his deposition?--are about conclusions that must be drawn from the undisputed evidence, not disputes in the evidence itself. More evidence will not inform a judgment on the President's state of mind.
Third, because those witnesses with testimony pertinent to the charges have already repeated their testimony again and again and again--in some instances, 5 or 10 times--over and over and over to FBI agents, to prosecutors, to grand jurors. Experienced career prosecutors, trying to make their best case against the President, questioned scores of witnesses. They compiled tens of thousands of pages of evidence. They questioned Ms. Lewinsky on at least 22 separate occasions. They questioned Mr. Jordan on at least five occasions. They questioned Ms. Currie on at least eight occasions. On one day alone--July 22, 1998--prosecutors asked Ms. Currie more than 850 questions, and that was only 1 of her 5 appearances before the grand jury or FBI agents. And they did, in fact--contrary to the suggestion of the managers--question witnesses, including Ms. Lewinsky, after the President's testimony to the grand jury.
These witnesses whom I have mentioned, who were questioned repeatedly, are not alone. They could not possibly add to their testimony, or amend it, in any significant way that could alter the judgment you could make today. Yet, it is the hope that these witnesses will be forced to change their testimony, to provide evidence where there now is none, that drives the current desire to question them.
Let me make a few final points about this witness issue. 'Bringing in witnesses to rehash testimony that's already concretely in the record would be a waste of time and serve no purpose at all.' That is our argument, but those are not my words, they are the words of Mr. Manager Gekas, spoken just last fall, talking about this same factual record you have before you.
And Mr. Manager Gekas was correct. 'We had 60,000 pages of testimony from the grand jury, from depositions, from statements under oath. That is testimony that we can believe and accept. Why re-interview Betty Currie to take another statement when we already have her statement? Why interview Monica Lewinsky when we had her statement under oath, and with a grant of immunity
that, if she lied, she would forfeit?'
Again, that is our argument, but, again, those are not my words, those are the words of Chairman Hyde. He, too, was correct. Those words apply with equal force today. The witnesses are on the record. Their testimony is known. There is no need to put them through the ordeal of testimony again.
The House managers, no doubt, will answer that that was then, this is now. But that is not good enough. The House had a constitutional duty to gather and assess evidence and testimony and come to a judgment as to whether it believed the President should be removed from office--not to casually and passively serve as a conveyor belt between Ken Starr and the U.S. Senate, not to ask this body to do the work the House failed to do.
The actual power to remove the President resides here, of course. But the power to take that first step rests with the House. And the House exercised it: The articles explicitly find that certain conduct occurred and that that conduct warrants 'removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under the United States.' If there was any doubt about the testimony on which they based their judgment in reaching that conclusion, such doubt should have been resolved before any Member rose to say 'aye' to an article of impeachment calling, for the first time in 130 years, for the Senate to decide on the removal of the President.
The President did not obstruct justice. The President did not commit perjury. The President must not be removed. The facts do not permit it.
Now, ladies and gentlemen of the Senate, I hope I have outlined clearly for you some of the many valid grounds on which you might base a decision to vote for the motion offered by Senator Byrd.
On constitutional grounds, the matters simply don't meet the test of high crimes and misdemeanors, as specified by the framers or interpreted by hundreds of historians. As a matter of law, these articles are defective. In a court, they would be dismissed in a heartbeat for vagueness and for being prosecutorial grab bags.
The evidence itself, after being gathered in what may be one of the largest criminal investigations in this country's history, fails to offer a compelling case and is based largely on weak inferences from circumstantial evidence. Each of these is reason enough to end this trial now, without further proceedings.
As Senator Bumpers said more personally and eloquently than I could hope to, the President has been punished; he is being punished still--as a man, as a husband, as a father, as a public figure. Beyond his family, you have been reminded that the criminal law will still have jurisdiction over Bill Clinton the day he leaves office. And while I am confident the case would have no merit in a court of law, that is the venue in which justice may be sought against an individual.
So the sole question you are faced with is the most important one: Do you, for the first time in 210 years of our freedom, set aside the ultimate expression of a free people and exercise your power to remove the one national leader selected by all of us?
If you don't believe this body should remove the President, or if you believe that no amount of requestioning of witnesses or torturing facts will change enough minds to garner the two-thirds majority necessary to remove the President, or if you simply have heard enough to make up your mind, then the time to end this is now.
The President has expressed many times how very sorry he is for what he did and for what he said. He knows full well that his failings have landed us in this place, and he is doing all he can to set right what he has done wrong.
The entire Nation--indeed the world--is now looking to this body, to this Chamber, to this floor, for sound judgment, and we are asking you not to answer a serious personal wrong with a grievous constitutional wrong. When we ask you to vote for Senator Byrd's motion to dismiss, we do not mean that nothing ever happened, that this is no big deal--and that is where we lawyers have done a disservice to the language--because this is a big deal. It is a very big deal. Punishment will be found elsewhere. Judgment will be found elsewhere. Legacies will be written elsewhere. None of that will be dismissed. None of that can ever be dismissed.
We ask you to end this case now so that a sense of proportionality can be put back into a process that seems long ago to have lost all sense of proportionality. We also ask you to end the case now so that the family members and others who did no wrong can be spared further public embarrassment.
We also ask you to end this case now so that the poisonous arrows of partisanship can be buried and the will of the people can be done--allowing all of you to spend your full days on the most pressing issues of the country.
You have heard the charges in full; heard the defense. Now is the time to define how the national interests can best be served by extending this matter indefinitely or ending it now. We submit that it is truly in the best interest of this Nation to end this ordeal in this Chamber at this time and in this way.
Mr. LOTT addressed the Chair.
The CHIEF JUSTICE. The Chair recognizes the majority leader.
Mr. LOTT. Could I inquire? Is there further presentation from the White House counsel, or will the time be used for concluding remarks by the House managers?
The CHIEF JUSTICE. The White House counsel has 6 minutes remaining; the managers have reserved 36 minutes.
Mr. Counsel RUFF. There will be no further presentation, Mr. Chief Justice.
Mr. LOTT. In view of that, Mr. Chief Justice, I understand the White House counsel will have no further presentation to make, so what is left would be the concluding remarks by the House managers. I would like for us, when that is concluded, to go right into the votes.
In view of that, I think it would be a good idea to take a 15-minute break at this point. And I ask for that.
There being no objection, at 4:12 p.m., the Senate recessed until 4:38 p.m.; whereupon, the Senate reassembled when called to order by the Chief Justice.
The CHIEF JUSTICE. The Chair recognizes the majority leader.
Mr. LOTT. Mr. Chief Justice, I believe we are ready now for the closing part of the argument by the House managers on the motion to dismiss.
The CHIEF JUSTICE. The Chair recognizes the House managers. Mr. Hutchinson.
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