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Jan. 26: White House Argues Against Witnesses

  • More Transcripts From the Trial

  • From the Congressional Record
    Tuesday, January 26, 1999

    Mr. Counsel KENDALL. Mr. Chief Justice, ladies and gentleman of the Senate, House managers, the purpose of the managers' motion and what I am going to address, is whether you need to add any evidence to the record before you. And that is all I am going to address. Now, I am tempted--it is like waving a red flag at the bull to take on the substantive arguments that have been presented here as to why the President is guilty. I am going to refrain from doing that, but my refraining from doing that is not because I agree with them, but that we have already addressed them. I think here that the proper procedure is just address the need for new evidence to add to the record before you.

    The managers' case is in no way--no way--harmed by being unable to call witnesses at this point. The independent counsel conducted a wide-ranging investigation. It was intense. It was comprehensive of every conceivable allegation against the President after the Lewinsky publicity erupted on January 21, 1998. In the record of publicly available materials, which the Senate has asked the House managers to certify, the actual number of pages is somewhat understated, because as I mentioned before, frequently four or five pages of transcript are reproduced on a single page of the bound. But, in fact, there are over 10,000 pages of grand jury testimony, over 800 pages of other testimony such as depositions, 3,400 pages of documentary evidence, 1,800 pages of audio transcripts, and 800-some pages of FBI interviews.

    The Office of Independent Counsel has an unlimited budget with unlimited investigative resources, ranging from the FBI to private investigators. Its agents interviewed people all over the country, used several different grand juries, conducted hundreds of interviews, even called people back from abroad. If the OIC could have turned up anything that was negative or prejudicial, it would be in those volumes. You can rest assured that they did their best to find that evidence.

    And the Starr team has been fully supportive of the pro impeachment forces in the House of Representatives; indeed, so supportive that the independent counsel's ethics advisory professor, Sam Dash, resigned to protest Mr. Starr's zealous advocacy of the impeachment of the President.

    Just this week, Mr. Starr and his staff have aggressively continued to support the House managers during these Senate proceedings. Some commentators have commented that the independent counsel is, perhaps, the honorary 14th House manager.

    Now, I rehash this all not to cast aspersions at Mr. Starr, but to remind the Senate that after 5 years and $50 million President Clinton may be the most investigated person in America. I would certainly say this for Mr. Starr: He is thorough. He is thorough. After all the work that has been done for them by the independent counsel, there is simply no way that the House managers are prejudiced by not being able to add to this record at this point.


    Now, Mr. Manager McCollum repeated this morning that we are afraid of witnesses. We are not. We have reviewed in detail in our presentations what the evidence shows about both the perjury and the obstruction of justice allegation. We are not at all afraid of what the witnesses would say. Indeed, we know what they are going to say because it is all right there in the volumes before you. We think that you have everything there on the basis in which you can make a fair judgment and achieve a fair resolution. The managers' hope to call more witnesses is simply a product of their desire, their hope, their prayer, that something will come to rescue their case.

    Let's be clear about one thing: Any delay in the process necessary for us to have fair discovery is on their heads. Our point here is that there is simply no need to go outside this record, because what you have before you is voluminous, and it is a completely adequate basis for your decision.

    As I pointed out the other day in the questioning period, the only thing left out of this record is evidence that might be exculpatory or helpful to the President. And if we must, we will as conscientious lawyers, seek out that helpful additional evidence through discovery.

    This body has been scrupulously fair in these proceedings, and I am confident it will be fair concerning our need for discovery if the 'genie' of discovery is let out of the bottle and live witnesses are deemed to be appropriate. Then we are going to need a fair period of time for our own discovery.

    But, again, the point today on this motion is that the managers have simply identified no particular need for witnesses, no specific areas of testimony that might contribute to what is already in the record and, indeed, no material questions--you can always think of questions that were unasked--but no material questions, given the allegation in the two articles that are not in the record before you.

    Just recall, in the House the managers believed that this was an adequate record to come to you and urge removal of the President. They rested on that record in the House, and they impeached an elected President on the basis of that record. They cannot now complain that it is, for some reason, unfair to submit this same record to you for judgment at this point. We are not afraid of or reluctant to call witnesses, but we think that at the end of the day, the addition of more testimony from the three witnesses you have heard about won't affect any evidentiary judgment you have to make.

    Mr. Manager Barr declared during his presentation a week ago Friday, on January 15, that this was in fact a relatively simple case, although we, the White House lawyers, would try to nitpick the evidence. He told you that what we have before us, Senators and Mr. Chief Justice, is really not complex--critically important, yes, but not essentially complex. The able House managers have kept insisting on their need for witnesses, but they haven't indicated what substantial, material, and relevant questions the witnesses would be asked, which haven't already been asked, or why such questions are essential or even relevant to the resolution of this proceeding.

    Frankly, I think this is because there just aren't that many more questions to ask of these witnesses. Mr. Manager McCollum kind of let the cat out of the bag on this one when, a week ago Friday, he told you, 'I don't know what the witnesses will say, but I assume if they are consistent, they will say the same thing that's in here.'

    I was surprised at some of the statements the managers made during the questioning period on Friday and Saturday. Mr. Bryant said, 'We would very much like to talk to some of these witnesses.' And he added, 'It is very critical that you talk to the witness before having that witness testify.' Mr. Manager McCollum stated, 'As a matter of fact, we think we would have been incompetent and derelict as presenters of the evidence if we hadn't talked to them first.' Just this Sunday Mr. Manager Hyde, on 'Meet the Press,' observed that the purpose of the court-ordered Office of Independent Counsel's chaperoned interview of Ms. Lewinsky last Sunday was to get a sense of what kind of a witness she would make.

    I say this respectfully, but I am duty-bound to observe that it is, in fact, a dereliction of duty to have come this far in the process, to have made this serious set of charges as have been made against the President to seek his removal, and not to have talked to the witnesses on whom they purport to rely. How can they have come this far and now tell you: Oh, yes, we now need to meet face to face with the witnesses? We don't know what they sound like, how credible they will be, but we have rested our judgment on this. We need to see them personally.

    This procedure, I submit to you, is just backward. First, they filed the charges, which have been spoon fed by Mr. Starr. They don't bother to check these out; they take them at face value, and now they finally want to talk to the witnesses, and they again use Mr. Starr to threaten Ms. Lewinsky with imprisonment unless she cooperates with them.

    Now, it is no answer to say that the witnesses didn't want to talk to us. There was a way to talk to them in the House of Representatives, and that was through the subpoena power that the House could have used if they had wanted to talk to their witnesses, if they had fulfilled the obligation they had before they proffered these charges to you.

    This has been a partisan process on the part of the House managers. In the House, they had the votes. They didn't think they needed to talk to witnesses. When you have the votes and the independent counsel on your side, you don't need to independently develop the evidence. Indeed, Sunday, on CNN, Mr. Manager Cannon provided some insight----

    Mr. HUTCHINSON addressed the Chair.

    The CHIEF JUSTICE. The Senator from Arkansas.

    Mr. HUTCHINSON. I object to White House counsel's continual reference to comments made on television programs which are outside the record before the Senate.

    The CHIEF JUSTICE. This is on a motion to call additional witnesses, and the argument has been very free form and kind of far reaching. I think this is a permissible comment, so I overrule the objection.

    Mr. Counsel KENDALL. Thank you, Mr. Chief Justice. I think Mr. Manager Cannon's comments did provide some insight into the need for witnesses or the justification for witnesses here. He noted that the Republicans had lost five seats in the November election, and he went on to say that, accordingly, the Republicans felt a need to speedily complete impeachment in the lame duck session before the 106th began its session. He said, 'Republicans on the Judiciary Committee were committed to being done by the time we got done,' and that is where we got on that track with no witnesses.

    Now, they are trying to take a different track, and I think it comes from desperation. You have had the case analyzed before you; you have had the evidence in the case assessed. I think it has been demolished in an adversary proceeding.

    The House managers are like the character in David Copperfield, Mr. Micawber, who was always hoping that something would turn up. They continue to hope that something will turn up for them. They don't know what it is, but they believe they will know it when they see it and they hope if, for the first time in these proceedings, they actually talk to the witnesses on whom they have relied, they will find something to persuade you to overcome the evidence in the record.

    Now the managers have said, 'Well, we told the White House that they could have called witnesses in the House if they wanted to, and they chose not to do so, so it is really their fault.' I respectfully submit to you that only in the world of Franz Kafka do you have to present evidence of your own innocence before you even hear the charges or the allegations against you.

    It was the burden of the House to establish, by an adequate evidentiary basis, a case for impeaching the President. They failed to do that, I respectfully submit. They are a little like a blackjack player who sees 20 on the table and has 19 and is going to try to draw that 2, hoping against the odds. Here they are simply gambling. And gambling may have its place as a recreation, but I don't think it has a place in this impeachment trial when the fate of the President is at stake.

    Now, I don't want to be uncharitable to the House managers--and they are able--but I think it is perhaps appropriate to remind you, as my partner Ms. Seligman did in her argument yesterday, that in their own Chamber the House managers sang a very different song about the need for witnesses. And to be fair, this was not just one manager; they sang as kind of a barbershop chorus. Most of them are on the record to this effect, and I think the very best witnesses you have about the need for witnesses are the House managers themselves.

    Let's listen to some of the comments of the managers on whether live witnesses needed to be heard to supplement the evidence in the many volumes already gathered by the independent counsel.

    For example, on November 5, Mr. Manager Hyde said:

    We believe the most relevant witnesses have already testified at length about the matters in issue, and in the interest of finishing our expeditious inquiry we will not require most of them to come before us to repeat their testimony.

    He added that, '[Monica Lewinsky and Linda Tripp] have already testified under oath. We have their testimony. We don't need to reinvent the wheel.'

    The very next day, on November 6, Mr. Manager Gekas stated:

    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.

    On December 1, during a hearing before the House Judiciary Committee to which the committee received testimony concerning the consequences of perjury and related crime, Mr. Manager Chabot stated:

    We could call more and more and more witnesses. We are trying to get this wrapped up as expeditiously as possible. I think both sides want to do that. If we call more witnesses and drag this on into next year, then they are going to scream because they say we are on a fishing expedition, we have already got enough evidence.

    At that same period, Mr. Manager Canady said, of the need for witnesses:

    Now, we do have a responsibility to make certain that we act on a solid basis. We should not move forward with articles of impeachment on the basis of insubstantial evidence. I think all of us agree on that. The fact of the matter is that we have a mountain of sworn testimony. . . .

    On December 9, Congressman Coble, who was a member of the House Judiciary Committee, told us during our presentation on behalf of the White House:

    Mr. Ruff, I want to address a couple of myths and one myth is that we have no evidence because there have been no fact witnesses called . . .

    Five volumes sit alongside me. These are the same five volumes that are at our table that contain sworn testimony before a criminal grand jury, FBI interviews, depositions and other materials.

    Mr. Manager Hyde made two statements on the floor of the House of Representatives during the debate over the articles of impeachment which I think bear quotation here.

    On December 18, Mr. Manager Hyde stated:

    We had the facts, and we had them under oath. We had Ms. Lewinsky's heavily corroborated testimony under a grant of immunity that would be revoked if she lied; we accepted that . . . .

    And then the next day, on Saturday, December 19, Mr. Manager Hyde stated:

    No fact witnesses, I have heard that repeated again and again. Look, 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. We chose to believe it and accept it. Why reinterview 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?

    'Why interview Monica Lewinsky when we had her statement under oath, and with a grant of immunity that if she lied, she would forfeit.'

    After the House voted its two articles of impeachment, the House managers still sought no need for live witnesses. On December 29, Mr. Manager Gekas stated:

    We are going to make the case that there is already
    enough testimony under oath, in one grand jury testimony and affidavits.

    Then again, a week later, Mr. Manager Gekas stated:

    In my judgment, there might not be any real rationale for calling Linda Tripp or Betty Currie or Vernon Jordan if the testimony of Monica Lewinsky is accepted as being what she offered on grand jury terms.

    Rollcall reported on January 7 that Mr. Manager Cannon stated, regarding calling Ms. Currie as a witness in the Senate trial:

    I am reluctant to call [Ms. Currie] because it's a rotten, nasty thing to do to a public servant.

    When confronted with this inconsistency, the managers, who are talented attorneys and successful Congressmen, have all argued, 'Oh, well. The forum has changed,' as if it is no big deal for the House to impeach a President without witnesses. But it would be unconscionable for the Senate to acquit the President without first doing the 'rotten, nasty thing'--Mr. Manager Cannon's phrase--to some witnesses. How can you have a trial, they protest, without witnesses? One might ask, How can you have a hearing without witnesses? But the House did. How can you impeach a President without witnesses? The House showed you.

    Finally, it is instructive to note that when the managers were presenting their case in the House in the Judiciary Committee, they did not declare that they would insist on witnesses when they got to the Senate. They did not tell their colleagues, We will not need witnesses in the House because we will have them in the Senate. No. They rushed this through the House because they had the votes and now they want to delay in the Senate because they are afraid they don't have the votes.


    There is no reason, we respectfully submit, to delay this Chamber, to drag out these proceedings and defer doing the business of the American people.

    I would like to discuss each of the five categories. I will call them categories. There are three witnesses. Then there are the two affidavits, and then there are the telephone records. There are really six. I would like to discuss these in terms of whether they add anything, or whether the managers have made a proffer that they add anything to the record which is now before you, because I think that is the question you have to determine.

    On this motion, you are not voting whether substantively to convict the President. You are simply determining, Is the record adequate?

    Let's first take Ms. Lewinsky. On Sunday the House managers, with the gentle assistance of the independent counsel prosecutors, were able to interview Ms. Lewinsky after schlepping her across the country from California. They did so despite the fact that the Senate had established by a 100-to-0 vote a procedure for the orderly calling of witnesses after discussion and debate. They did so after declining to interview Ms. Lewinsky at any time during the House proceedings when they could have compelled her appearance by the House subpoena power. And they did so without providing us here with any reliable record for what that 'talk-fest' on Sunday may have produced.

    Newspaper reports indicate that the managers did not take notes. You will recall, of course, that during the questioning period on Saturday they explicitly rejected a request they received during the question period that they provide either an unedited transcript or a videotape of that interview to be sure that the interview would be open to scrutiny for fairness, and ascertain whether Ms. Lewinsky in that interview really did add anything to the record. They declined to do that. But when they emerged from the Mayflower Hotel on Sunday, after meeting for their sidewalk press conference, we heard some general statements generally commending Ms. Lewinsky. Mr. Manager Bryant called her 'an impressive person.' Mr. Manager Hutchinson praised her 'intelligence and poise.'

    I thought to myself, where have we heard that before about Ms. Lewinsky? It was deja vu all over again. Of course, we heard from Mr. Jordan, from Ambassador Richardson, and from the people who interviewed Ms. Lewinsky for a job in New York. It is helpful that the House managers have now at least confirmed those observations in the record.

    At their press conference we heard the managers make some abstract pronouncements about what Ms. Lewinsky was going to add--she would be a valuable witness; she would be a helpful witness; and it was a productive meeting and a benefit to our case.

    That is what we heard. But Ms. Lewinsky's lawyer, Mr. Plato Cacheris threw, if I might say, some cold water on those happy and optimistic pronouncements. It could not have been clearer in his comments that, not surprisingly, nothing new whatsoever had emerged from that session. You really didn't hear that. I think the House managers were quite honest about the session, because you heard nothing about what had emerged from that today.

    Mr. Cacheris told the press conference--some of you may have seen it: Ms. Lewinsky answered all their questions; there was nothing new; she added nothing to the record that is already sitting before the Senate. She shouldn't be called to the Senate to testify.

    The New York Times reported yesterday that after the interview, Ms. Lewinsky told a friend: It went really well; I feel positive about it, but I didn't have anything new to say.

    Now, according to the Washington Post, the managers were focused on making sure Ms. Lewinsky had no intention of changing her testimony. The Washington Post went on to confirm that she did not indicate any desire to change her testimony in any way. And the Post article continues that, in fact, Lewinsky reaffirmed her grand jury statement that no one ever asked her to lie or offered her a job in exchange for a false affidavit in the Jones case.

    Now, as you are well aware, Ms. Lewinsky was interviewed extensively by the Office of Independent Counsel. She testified twice before the grand jury. She gave a lengthy deposition to the prosecutors. She was extensively interviewed by the agents. There are over 20 interview reports.

    I should also add that a great deal of this comes after the President was examined in the grand jury on August 17. Ms. Lewinsky has given detailed and explicit testimony, particularly in her August 26 deposition, as to her account of the physical relationship she had with the President. Nothing at all would be added by further interrogation of her. Nothing could be gained by repetition in a Senate deposition or in the well of this body by a repetition of that testimony.

    I confess I don't fully understand--I seem to hear Mr. Manager Bryant and Mr. Manager McCollum say slightly different things about what they intended to present in the way of Ms. Lewinsky's testimony. The record on that is what it is. But whenever I hear somebody tell me, as the very able Mr. Manager Bryant did, they don't need to cross-examine, really, I am reminded of what Senator Bumpers said, and he got it from H.L. Mencken, who probably got it from somebody else: The more they say they don't have to cross-examine, the more need I feel to cross-examine.

    I don't know what they intended to do there, but in the grand jury the President plainly acknowledged an improper relationship with Ms. Lewinsky. He declined to answer further key questions about that. The Office of Independent Counsel did not seek either to compel him or it didn't seek to issue a new grand jury subpoena which would cause the President to come back and go through those explicit details.

    The testimony is what it is, and I don't think anything further from Ms. Lewinsky is going to in any material way affect it or even add to it.

    With regard to some of the conflicts that are there, I think we have addressed those in the question period. I am not going to go over them again in full. Did the improper relationship begin in November? Did it begin 6 or 7 weeks later? That conflict is utterly immaterial, I respectfully submit, in view of what the parties have acknowledged. Mr. Manager Hyde, indeed, stated in a House Judiciary Committee hearing on December 1 that that particular point did not strike him as a terribly serious count, and I agree with that.

    The managers have claimed, Mr. Manager Hutchinson claimed this morning, that there is a contradiction in the President, in the testimony of the President and Ms. Lewinsky with regard to cover stories. This is not true. We have gone over that again and again. There is nothing that links this testimony to any deposition in the Jones case. These were discussed, the record shows, in a nonlegal context.

    I don't think there is anything further to be gained from Ms. Lewinsky's testimony that is not already there in the record.

    Now, Mr. Vernon Jordan, let's take him. Mr. Manager Hutchinson was kind enough to leave up here his copies of Mr. Vernon Jordan's five appearances before the grand jury. He held them up on a chart. I think it is proper to point out that Mr. Jordan's testimony runs over 900 pages. On March 3, the transcript is 196 pages; 2 days later, on March 5, with the transcript running to 212 pages, Mr. Jordan emerged from the grand jury, and he made the following statement which I would like to play for you:

    (Text of videotape presentation:)

    First of all it is a fact that I helped Monica Lewinsky find private employment in New York. Secondly, it is a fact that I took Monica Lewinsky to a very competent lawyer, Frank Carter, here in Washington, D.C. And thirdly, it is a fact that I kept the President of the United States informed about my activities. I want to say two further things. One is I did not in any way tell her, encourage her, to lie. And secondly that my efforts to find her a job were not a quid pro quo for the affidavit that she signed.

    Mr. Jordan testified a third time before the grand jury on May 5, and that transcript runs to 285 pages. Finally, he testified two more times, on May 28, for 128 pages, and he observed as he exited the grand jury room, if we could have the videotape again:

    (Text of videotape presentation:)

    For the fourth time I have answered every question over and over and over again. I suspect, however that I will have to answer the same questions over and over and over again.

    And guess what. Mr. Jordan was clairvoyant because he was called back to the grand jury for a fifth time on June 9. He said as he exited:

    (Text of videotape presentation:)

    When I came here in March, early March, I said that I helped Ms. Lewinsky get a lawyer. I helped her get a job. I had assurances that there was no sexual relationship and I did not tell her to lie. That was the truth then. And that is the truth today. And I've testified five times, over and over again to those truths.

    One of the justifications Mr. Manager Hutchinson offered for calling Mr. Jordan was to explore an alleged conflict between Mr. Jordan and Ms. Lewinsky over whether Mr. Jordan had told her to go home and make sure that notes she had been keeping were not there. Here, I think Mr. Manager Hutchinson is referencing a statement that Ms. Lewinsky made in her proffer to the Office of Independent Counsel describing her recollection of a breakfast she believed she had with Mr. Jordan. It is in the appendix volume at page 716.

    Now, the thing to note, ladies and gentlemen, about this statement is its date. Ms. Lewinsky said this on February 1, 1998. She had written then that she expressed concern about Ms. Tripp to Mr. Jordan and that Ms. Tripp may have seen notes when she was in Ms. Lewinsky's house. According to the offer, 'Mr. Jordan asked if the notes were from the President. Ms. Lewinsky said that they were notes to the President. Mr. Jordan suggested to Ms. Lewinsky,' the proffer says, 'that she check to make sure they were not there, or something to that effect,' from Ms. Lewinsky.

    Now, contrary to this supposed conflict, Mr. Jordan was never asked in the grand jury on any of the five occasions he was there--all of which, I remind you, were after this February 1 proffer about this matter. He wasn't asked about it. It doesn't concern the President, in any event. And I think, most importantly, it is nowhere alleged, if you look in the actual articles--if you look at article II, nowhere is this conversation alleged in any way as a basis for impeachment, a basis for charging the President with obstruction. I think in fact it is a gratuitous smear of Mr. Jordan. And it certainly does not provide a basis for extending this proceeding to ask him questions about it.

    Now, Mr. Manager Hutchinson also claims that there is a conflict between the testimony of Ms. Lewinsky and Mr. Jordan on the issue of whether they discussed specific changes that were subsequently made in her affidavit. He said to you that he thought that was a basis for calling them as witnesses. However, the record is clear, it could not be clearer, that the idea of certain deletions in the affidavit came from Ms. Lewinsky's lawyer, Mr. Frank Carter.

    As I mentioned in my presentation on Thursday, Ms. Lewinsky discussed that she had talked to Mr. Jordan about some affidavit changes and he told her: Go talk to your lawyer.

    In any event, Ms. Lewinsky's lawyer, Mr. Frank Carter, testified unequivocally to the grand jury: I don't recall Vernon ever asking me the substance of what Monica told me or tried to talk about the substance of what Monica told me. He clearly never told me how I should proceed or what I should do.

    Mr. Carter further testified that paragraph 6 of the affidavit in its draft form, the last part of the sentence, 'has certain words about the private meeting.'

    That paragraph, Mr. Carter--Ms. Lewinsky's lawyer--testified, was modified when we sat down in my office on January 7. He further testified that it was his idea before that meeting to take it out because he didn't want to give Ms. Jones' lawyers any hint of a one-on-one meeting.

    There is simply no basis to call Mr. Vernon Jordan once again to have him go through the things he has testified about a great many times already.

    Now we come to Sidney Blumenthal. Mr. Manager Rogan very ably argued that there was a need to call Mr. Blumenthal because of Mr. Blumenthal's testimony as to what the President had told him, Sidney Blumenthal, in the aftermath of the explosion of publicity over the Lewinsky matter in January a year ago.

    First of all, there is no conflict here that is material because the President has never disputed Mr. Blumenthal or his aide's accounts of this conversation. Any dispute is wholly immaterial as to the two counts--the two articles of impeachment. The President was examined extensively about this subject in his own grand jury testimony and he testified as to what he tried to say. But he also added that in this period things were a 'blur,' is a term he used one time; 'a blizzard' was a term he used another time--that he had discussions with a number of his aides, including Mr. Blumenthal, he tried to be careful in what he said, he thought he was technically accurate, but he would not dispute and did not dispute their characterizations of what they recalled of the conversations with him.


    Again, Mr. Blumenthal--Mr. Rogan pointed this out--testified three times before the grand jury. His recollection

    of his conversations with the President has been analyzed in detail and a further round of deposition would add nothing of substance to that testimony. Indeed, the President's speech to the Nation the day of his grand jury testimony, when he spoke to the Nation on the evening of August 17, also represented an acknowledgment by the President that he had misled his aides, such as Sidney Blumenthal.

    As I indicated last Thursday, however, any statements to the White House staff could have had no impact whatsoever on the Paula Jones case, as article II alleges each of the seven grounds has, because Mr. Blumenthal had no firsthand knowledge of the President's relation with Ms. Lewinsky. He could only report to the grand jury what the President had told him, however misleading those statements of the President may have been at the time. There is no dispute here, there is no material reason to call Mr. Blumenthal, except to try to embarrass the President by the presentation of testimony from a member of his senior staff.

    Now, the next two things that the managers would seek to add to the record are not, they tell you, live witness testimony. But don't let that fool you. They want to put in two sworn declarations--like an affidavit--from two people. One of them is a Mr. Wesley Holmes, a lawyer for Ms. Paula Jones, and the other is Mr. Barry Ward.

    Now, I don't have the pleasure of knowing Mr. Wesley Holmes, but I do know Mr. Barry Ward. He is a very intelligent, very hard-working and knowledgeable young lawyer in Little Rock, AR, who works as a law clerk for Chief Judge Wright. He has got an encyclopedic knowledge of Razorback athletic lore. He has a lot of fine characteristics. He is very helpful as a law clerk and gets information to you and back very efficiently. But there is one thing Mr. Ward is not, and I am sure he would agree with that, he is not a mind reader. He is not a mind reader. There were a number of people in the room at the deposition. None of them were mind readers. They could all give their testimony about what they thought was going through the President's mind. The President has addressed that a number of times. You have seen the videotape.

    Now, the second witness is exceedingly interesting, and that is Mr. Holmes. And Mr. Holmes would give a sworn declaration to, among other things, say what he had in mind when he issued the witness subpoena to Betty Currie which was several days--which was days after the President's conversation with her on December 18.

    Well, he would be a very interesting witness to depose, let me tell you. This is one of Paula Jones' lawyers talking about offering a declaration about his litigation strategy. And I think the opportunity to depose him would provide a great deal of information about what really motivated the events of January 1998. I think we could show that there were a number of connections between the independent counsel, Linda Tripp, and the Paula Jones lawyers. But I don't think you need to get into that briar patch because Mr. Holmes is not a mind reader any more than Mr. Ward is. You simply don't need that testimony to illuminate the record.

    Now, the last category--let me just, before I leave that, make the point that while the managers would like very much to throw in a couple of sworn declarations, you should be assured of our need to take discovery and, in Mr. Holmes' case, take comprehensive discovery. I don't think anything in S. Res. 16--I don't know if you have gotten to this, but I don't read the resolution as authorizing simple hearsay evidence.

    We would need to depose the Paula Jones lawyers in some detail, and I think they have now waived significant legal protections that would make that possible.

    Finally, there was a category of telephone records. It is a little hard to address that category. Those are just documents. I don't think the record need be expanded by their addition, and I will tell you why.

    Telephone records, as I said the other day, really tell you nothing, unless--it is very important to time, to date a particular call. They really are inscrutable. You have to have the witness testify about what they mean. I don't see anything in there that would justify opening the record to add certain telephone records.

    Finally, I want to be candid with you. I don't want to be alarmist, I want to be honest, though, about what opening the door for discovery will mean for this process. I said before that the Senate had been fair in these proceedings, and it has been fair. I think the identification of a specific record which the parties could agree on, have in the sunlight, talk about, argue about, was the fair thing to do and the right thing to do. I think if discovery is inevitable, we will anticipate and believe that you will be fair in allowing us the discovery we are going to need.

    I ask you, if you would, to read our trial memorandum, because at pages 124 to 130 we have set forth there our need for discovery. It is not a new invention. Should the Senate decide to authorize the House managers to call additional witnesses live in this proceeding or have the depositions taken, we will be faced with a critical need for the discovery of evidence useful to our defense.

    I made the point that the discovery of evidence in the Office of the Independent Counsel proceeding was--not to put too fine a point on it--not aimed at getting us exculpatory or helpful evidence. We need to be able to do that. We have never had the kind of compulsory process, the kind of ability to subpoena documents and witnesses that you will have in a garden variety civil case. We have not had access to a great deal, many thousands of pages of evidence which is, first of all, in the hands of the House managers that they got from the Office of Independent Counsel, but did not put into the public record, did not print up. We also need discovery of those other documents, witness testimony transcripts, interview notes, other materials, which may be helpful or exculpatory that are in the hands of the independent counsel.

    Our dilemma is this: We do not know what we do not know. That is what discovery means. You have to get discovery so you can find out what is available. It may not necessarily prolong a trial, but it makes you available to defend your client in the way you have to be able to do as a lawyer. It doesn't turn on the number of witnesses.

    The calling of these witnesses produces a need in us to be ready to examine them, to cross-examine them. It initiates a process that leaves us unprepared and exposed unless we have adequate discovery. This is a proceeding, I need not remind you--I know everyone recognizes its gravity--to remove the President of the United States. You have to give us, and I believe you will, the discovery that will enable us to represent the President adequately, competently and effectively.

    The sequence of discovery is also important. I want to be clear about that. It is all very well and I recognize how it happens for one side to say, 'Well, we are going to put on three witnesses and they can put on three witnesses.' Ladies and gentlemen of the Senate, we don't know right now how to make a reasoned choice because we haven't had the discovery you would normally have to do that. We would first need to obtain and review the relevant documents. I have indicated where those are. We would then need to be able to depose relevant witnesses. We need to know whether the witness depositions that the House managers had taken would need to lead to other depositions there. Only at that point when we have had discovery of our witnesses will we be able to identify the witnesses we might want to call.

    This is a logical procedure, and I think those of you who have tried cases will recognize it as such. It is simply impossible from where we now are to see how a witness designated by the House managers can be fairly rebutted without ourselves having access to all of the available evidence.

    Given what is at stake, I think fundamental fairness requires fair discovery. We will be expeditious, but in the event the genie is out of the bottle, we need time, we need access to defend the President in the way any client ought to be defended.

    I think the Senate has wisely elected to proceed on a voluminous record, a record that is available for public scrutiny that was assembled by people not favorable to the President. I think you have enough evidence to make your decision on the basis of that record.

    But in the event you decide to expand it, affording us adequate discovery is essential if we are really going to practice the rule of law as I believe the Senate would intend

    for that rule of law to be practiced in its proceedings.

    But let me conclude by saying that I don't think, and I respectfully submit to you, that there is a need to prolong this process. We hope that you will render your decision in a manner that is speedy, and we are confident that you will decide to make that decision in a manner that is fair, and that this body will, as so often it has done in past times of crisis, be able to bring to the country both the closure and reconciliation that the country wants so very much. Thank you.

    The CHIEF JUSTICE. Does counsel for the President have any more presentation?

    Mr. Counsel KENDALL. If I may, Mr. Chief Justice, I reserve the remainder of my time.

    The CHIEF JUSTICE. No, you can't reserve it. It is open, respond and rebuttal.

    Mr. Counsel KENDALL. I will then quitclaim the rest of my time.

    The CHIEF JUSTICE. Very well.



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