TRIAL OF WILLIAM JEFFERSON CLINTON, PRESIDENT OF THE UNITED STATES
[Page S191]
____
[In the Senate of the United States Sitting as a Court of Impeachment]
In re Impeachment of William Jefferson Clinton,
President of
the United States
TRIAL MEMORANDUM OF PRESIDENT
WILLIAM JEFFERSON CLINTON
David E. Kendall
Charles F.C. Ruff
Nicole K. Seligman
Gregory B. Craig
Emmet T. Flood
Bruce R. Lindsey
Max Stier
Cheryl D. Mills
Glen Donath
Lanny A. Breuer
Alicia L. Marti
Office of the White House Counsel
Williams & Connolly
The White House
725 12th Street, N.W.
Washington, D.C. 20502
Washington, D.C. 20005
January 13, 1999.
TABLE OF CONTENTS
I. INTRODUCTION
A. The Constitutional Standard
for Impeachment Has Not Been
Satisfied
B. The President Did Not Commit
Perjury or Obstruct Justice
C. Compound Charges and Vagueness
II. BACKGROUND
A. The Whitewater Investigative
Dead-End
B. The Paula Jones Litigation
C. The President's Grand Jury
Testimony About Ms. Lewinsky
D. Proceedings in the House of
Representatives
III. THE CONSTITUTIONAL STANDARD
AND BURDEN OF PROOF FOR
DECISION
A. The Offenses Alleged Do Not
Meet the Constitutional
Standard of High Crimes and Misdemeanors
1. The Senate Has a Constitutional
Duty to Confront the
Question Whether Impeachable Offenses Have
Been Alleged
2. The Constitution Requires a
High Standard of Proof of
``High Crimes and Misdemeanors'' for Removal
a. The Constitutional Text and
Structure Set an
Intentionally High Standard for Removal
b. The Framers Believed that Impeachment
and Removal Were
Appropriate Only for Offenses Against the
System of
Government
3. Past Precedents Confirm that
Allegations of Dishonesty
Do Not Alone State Impeachable Offenses
a. The Fraudulent Tax Return Allegation
Against President
Nixon
b. The Financial Misdealing Allegation
Against Alexander
Hamilton
4. The Views of Prominent Historians
and Legal Scholars
Confirm that Impeachable Offenses Are Not
Present
a. No Impeachable Offense Has
Been Stated Here
b. To Make Impeachable Offenses
of These Allegations Would
Forever Lower the Bar in a Way Inimical to
the Presidency and
to Our Government of Separated Powers
5. Comparisons to Impeachment
of Judges Are Wrong
B. The Standard of Proof
IV. THE PRESIDENT SHOULD BE ACQUITTED
ON ARTICLE I
A. Applicable Law
B. Structure of the Allegations
C. Response to the Particular
Allegations in Article I
1. The President denies that he
made materially false or
misleading statements to the grand jury about
``the nature
and details of his relationship'' with Monica
Lewinsky
2. The President denies that he
made perjurious, false and
misleading statements to the grand jury about
testimony he
gave in the Jones case
3. The President denies that he
made perjurious, false and
misleading statements to the grand jury about
the statements
of his attorney to Judge Wright during the
Jones deposition
4. The President denies that he
made perjurious, false and
misleading statements to the grand jury when
he denied
attempting ``to influence the testimony of
witnesses and to
impede the discovery of evidence'' in the
Jones case
V. THE PRESIDENT SHOULD BE ACQUITTED
ON ARTICLE II
A. Applicable Law
B. Structure of the Allegations
C. Response to the Particular
Allegations in Article II
1. The President denies that on
or about December 17, 1997,
he ``corruptly encouraged'' Monica Lewinsky
``to execute a
sworn affidavit in that proceeding that he
knew to be
perjurious, false and misleading''
2. The President denies that on
or about December 17, 1997,
he ``corruptly encouraged'' Monica Lewinsky
``to give
perjurious, false and misleading testimony
if and when called
to testify personally'' in the Jones litigation
3. The President denies that he
``corruptly engaged in,
encouraged, or supported a scheme to conceal
evidence''--
gifts he had given to Monica Lewinsky--in
the Jones case
a. Ms. Lewinsky's December 28
Meeting with the President
b. Ms. Currie's Supposed Involvement
in Concealing Gifts
c. The Obstruction-by-Gift-Concealment
Charge Is at Odds
With the President's Actions
4. The President denies that he
obstructed justice in
connection with Monica Lewinsky's efforts
to obtain a job in
New York in an effort to ``corruptly prevent''
her ``truthful
testimony'' in the Jones case
a. The Complete Absence of Direct
Evidence Supporting This
Charge
b. Background of Ms. Lewinsky's
New York Job Search
c. The Committee Report's Circumstantial
Case
(1) Monica Lewinsky's December
11 meeting with Vernon
Jordan
(2) The January job interviews
and the Revlon employment
offer
d. Conclusion
5. The President denies that he
``corruptly allowed his
attorney to make false and misleading statements
to a Federal
judge'' concerning Monica Lewinsky's affidavit
6. The President denies that he
obstructed justice by
relating ``false and misleading statements''
to ``a potential
witness,'' Betty Currie, ``in order to corruptly
influence
[her] testimony''
7. The President denies that he
obstructed justice when he
relayed allegedly ``false and misleading statements''
to his
aides
VI. THE STRUCTURAL DEFICIENCIES
OF THE ARTICLES PRECLUDE A
CONSTITUTIONALLY SOUND VOTE
A. The Articles Are Both Unfairly
Complex and Lacking in
Specificity
1. The Structure of Article I
2. The Structure of Article II
B. Conviction on These Articles
Would Violate the
Constitutional Requirement That Two-Thirds
of the Senate
Reach Agreement that Specific Wrongdoing Has
Been Proven
1. The Articles Bundle Together
Disparate Allegations in
Violation of the Constitution's Requirements
of Concurrence
and Due Process
a. The Articles Violate the Constitution's
Two-Thirds
Concurrence Requirement
b. Conviction on the Articles
Would Violate Due Process
Protections that Forbid Compound Charges in
a Single
Accusation
C. Conviction on These Articles
Would Violate Due Process
Protections Prohibiting Vague and Nonspecific
Accusations
1. The Law of Due Process Forbids
Vague and Nonspecific
Charges
2. The Allegations of Both Articles
Are Unconstitutionally
Vague
D. The Senate's Judgment Will
Be Final and That Judgment
Must Speak Clearly and Intelligibly
VII. THE NEED FOR DISCOVERY
VIII. CONCLUSION
TRIAL MEMORANDUM OF PRESIDENT WILLIAM JEFFERSON CLINTON
I. Introduction
Twenty-six months ago, more than
90 million Americans left
their homes and work places to travel to schools,
church
halls and other civic centers to elect a President
of the
United States. And on January 20, 1997, William
Jefferson
Clinton was sworn in to serve a second term
of office for
four years.
The Senate, in receipt of Articles
of Impeachment from the
House of Representatives, is now gathered
in trial to
consider whether that decision should be set
aside for the
remaining two years of the President's term.
It is a power
contemplated and authorized by the Framers
of the
Constitution, but never before employed in
our nation's
history. The gravity of what is at stake--the
democratic
choice of the American people--and the solemnity
of the
proceedings dictate that a decision to remove
the President
from office should follow only from the most
serious of
circumstances and should be done in conformity
with
Constitutional standards and in the interest
of the Nation
and its people.
The Articles of Impeachment that
have been exhibited to the
Senate fall far short of what the Founding
Fathers had in
mind when they placed in the hands of the
Congress the power
to impeach and remove a President from office.
They fall far
short of what the American people demand be
shown and proven
before their democratic choice is reversed.
And they even
fall far short of what a prudent prosecutor
would require
before presenting a case to a judge or jury.
Take away the elaborate trappings
of the Articles and the
high-flying rhetoric that has accompanied
them, and we see
clearly that the House of Representatives
asks the Senate to
remove the President from office because he:
* used the phrase ``certain occasions''
to describe
the frequency of his improper intimate contacts
with Ms.
Monica Lewinsky. There were, according to
the House Managers,
eleven such contacts over the course of approximately
500
days.
Should the will of the people
be overruled and the
President of the United States be removed
from office because
he used the phrase ``certain occasions'' to
describe eleven
events over some 500 days? That is what the
House of
Representatives asks the Senate to do.
* used the word ``occasional''
to describe the
frequency of inappropriate telephone conversations
between he
and Monica Lewinsky. According to Ms. Lewinsky,
the President
and Ms. Lewinsky engaged in between ten and
fifteen such
conversations spanning a 23-month period.
Should the will of the people
be overruled and the
President of the United States be removed
from office because
he used the word ``occasional'' to describe
up to 15
telephone calls over a 23-month period? That
is what the
House of Representatives asks the Senate to
do.
* said the improper relationship
with Ms. Lewinsky
began in early 1996, while she recalls that
it began in
November 1995. And he said the contact did
not include
touching certain parts of her body, while
she said it did.
Should the will of the people
be overruled and the
President of the United States be removed
from office because
two people have a
[Page S192]
different recollection of the details of a
wrongful
relationship--which the President has admitted?
That is what
the House of Representatives asks the Senate
to do.
The Articles of Impeachment are
not limited to the examples
cited above, but the other allegations of
wrongdoing are
similarly unconvincing. There is the charge
that the
President unlawfully obstructed justice by
allegedly trying
to find a job for Monica Lewinsky in exchange
for her silence
about their relationship. This charge is made
despite the
fact that no one involved in the effort to
find work for Ms.
Lewinsky--including Ms. Lewinsky herself--testifies
that
there was any connection between the job search
and the
affidavit. Indeed, the basis for that allegation,
Ms.
Lewinsky's statements to Ms. Tripp, was expressly
repudiated
by Ms. Lewinsky under oath.
There is also the charge that
the President conspired to
obstruct justice by arranging for Ms. Lewinsky
to hide gifts
that he had given her, even though the facts
and the
testimony contain no evidence that he did
so. In fact, the
evidence shows that the President gave her
new gifts on the
very day that the articles allege he conspired
to conceal his
gifts to her.
In the final analysis, the House
is asking the Senate to
remove the President because he had a wrongful
relationship
and sought to keep the existence of that relationship
private.
Nothing said in this Trial Memorandum
is intended to excuse
the President's actions. By his own admission,
he is guilty
of personal failings. As he has publicly stated,
``I don't
think there is a fancy way to say that I have
sinned.'' He
has misled his family, his friends, his staff,
and the Nation
about the nature of his relationship with
Ms. Lewinsky. He
hoped to avoid exposure of personal wrongdoing
so as to
protect his family and himself and to avoid
public
embarrassment. He has acknowledged that his
actions were
wrong.
By the same token, these actions
must not be
mischaracterized into a wholly groundless
excuse for removing
the President from the office to which he
was twice elected
by the American people. The allegations in
the articles and
the argument in the House Managers' Trial
Memorandum do not
begin to satisfy the stringent showing required
by our
Founding Fathers to remove a duly elected
President from
office, either as a matter of fact or law.
a. the constitutional standard for impeachment has not been satisfied
There is strong agreement among
constitutional and legal
scholars and historians that the substance
of the articles
does not amount to impeachable offenses. On
November 6, 1998,
430 Constitutional law professors wrote:
``Did President Clinton commit
`high Crimes and
Misdemeanors' warranting impeachment under
the Constitution?
We . . . believe that the misconduct alleged
in the report of
the Independent Counsel . . . does not cross
the threshold. .
. . [I]t is clear that Members of Congress
could violate
their constitutional responsibilities if they
sought to
impeach and remove the President for misconduct,
even
criminal misconduct, that fell short of the
high
constitutional standard required for impeachment.''
On October 28, 1998, more than
400 historians issued a
joint statement warning that because impeachment
had
traditionally been reserved for high crimes
and misdemeanors
in the exercise of executive power, impeachment
of the
President based on the facts alleged in the
OIC Referral
would set a dangerous precedent. ``If carried
forward, they
will leave the Presidency permanently disfigured
and
diminished, at the mercy as never before of
caprices of any
Congress. The Presidency, historically the
center of
leadership during our great national ordeals,
will be
crippled in meeting the inevitable challenges
of the
future.''
We address why the charges in
the two articles do not rise
to the level of `high Crimes and Misdemeanors''
in Section
III, Constitutional Standard and Burden of
Proof.
B. The President Did Not Commit Perjury or Obstruct Justice
Article I alleges perjury before
a federal grand jury.
Article II alleges obstruction of justice.
Both perjury and
obstruction of justice are statutory crimes.
In rebutting the
allegations contained in the articles of impeachment,
this
brief refers to the facts as well as to laws,
legal
principles, court decisions, procedural safeguards,
and the
Constitution itself. Those who seek to remove
the President
speak of the ``rule of law.'' Among the most
fundamental
rules of law are the principles that those
who accuse have
the burden of proof, and those who are accused
have the right
to defend themselves by relying on the law,
established
procedures, and the Constitution. These principles
are not
``legalisms'' but rather the very essence
of the ``rule of
law'' that distinguishes our Nation from others.
We respond, in detail, to those
allegations whose substance
we can decipher in Section IV, The President
Should Be
Acquitted on Article I, and in Section V,
The President
Should Be Acquitted on Article II.
C. Compound Charges and Vagueness
If there were any doubt that the
House of Representatives
has utterly failed in its constitutional responsibility
to
the Senate and to the President, that doubt
vanishes upon
reading the Trial Memorandum submitted by
the House Managers.
Having proferred two articles of impeachment,
each of which
unconstitutionally combines multiple offenses
and fails to
give even minimally adequate notice of the
charges it
encompasses, the House--three days before
the Managers are to
open their case--is still expanding, not refining,
the scope
of those articles. In further violation of
the most basic
constitutional principles, their brief advances,
merely as
``examples,'' nineteen conclusory allegations--eight
of
perjury under Article I and eleven of obstruction
of justice
under Article II, some of which have never
appeared before,
even in the Report submitted by the Judiciary
Committee
(``Committee Report''), much less in the Office
of
Independent Counsel (``OIC'') Referral or
in the articles
themselves.\1\ If the target the Managers
present to the
Senate and to the President is still moving
now, what can the
President expect in the coming days? Is there
any point at
which the President will be given the right
accorded a
defendant in the most minor criminal case--to
know with
certainty the charges against which he must
defend?
---------------------------------------------------------------------------
\1\ For example, the House managers add a charge
that the
President engaged in ``legalistic hair splitting
[in his
response to the 81 questions] in an obvious
attempt to skirt
the whole truth and to deceive and obstruct''
the Committee.
This charge was specifically rejected by the
full House of
Representatives when it rejected Article IV.
---------------------------------------------------------------------------
The Senate, we know, fully appreciates
these concerns and
has, in past proceedings, dealt appropriately
with articles
far less flawed than these. The constitutional
concerns
raised by the House's action are addressed
in Section VI, The
Structural Deficiencies of the Articles Preclude
a
Constitutionally Sound Vote.
II. Background
A. The Whitewater Investigative Dead-End
The Lewinsky investigation emerged
in January 1998 from the
long-running Whitewater investigation. On
August 5, 1994, the
Special Division of the United States Court
of Appeals for
the District of Columbia Court Circuit appointed
Kenneth W.
Starr as Independent Counsel to conduct an
investigation
centering on two Arkansas entities, Whitewater
Development
Company, Inc., and Madison Guaranty Savings
and Loan
Association.
In the spring of 1997, OIC investigators,
without any
expansion of jurisdiction, interviewed Arkansas
state
troopers who had once been assigned to the
Governor's
security detail, and ``[t]he troopers said
Starr's
investigators asked about 12 to 15 women by
name, including
Paula Corbin Jones. . . .'' Woodward &
Schmidt, ``Starr
Probes Clinton Personal Life,'' The Washington
Post (June 25,
1997) at A1 (emphasis added). ``The nature
of the questioning
marks a sharp departure from previous avenues
of inquiry in
the three-year old investigation. . . . Until
now, . . . what
has become a wide-ranging investigation of
many aspects of
Clinton's governorship has largely steered
clear of questions
about Clinton's relationships with women.
. . .'' \2\ One of
the most striking aspects of this new phase
of the Whitewater
investigation was the extent to which it focused
on the Jones
case. One of the troopers interviewed declared,
``[t]hey
asked me about Paula Jones, all kinds of questions
about
Paula Jones, whether I saw Clinton and Paula
together and how
many times.'' \3\
---------------------------------------------------------------------------
\2\ Ibid. Trooper Roger Perry, a 21-year veteran
of the
Arkansas state police, stated that he ``was
asked about the
most intimate details of Clinton's life: `I
was left with the
impression that they wanted me to show he
was a womanizer. .
. . All they wanted to talk about was women.'
'' Ibid.
(Ellipsis in original).
\3\ Ibid.
---------------------------------------------------------------------------
In his November 19, 1998, testimony
before the House
Judiciary Committee, Mr. Starr conceded that
his agents had
conducted these interrogations and acknowledged
that at that
time, he had not sought expansion of his jurisdiction
from
either the Special Division or the Attorney
General.\4\ Mr.
Starr contended that these inquiries were
somehow relevant to
his Whitewater investigation: ``we were, in
fact
interviewing, as good prosecutors, good investigators
do,
individuals who would have information that
may be relevant
to our inquiry about the President's involvement
in
Whitewater, in Madison Guaranty Savings and
Loan and the
like.''\5\ It seems irrefutable, however,
that the OIC was in
fact engaged in an unauthorized attempt to
gather
embarrassing information about the President--information
wholly unrelated to Whitewater or Madison
Guaranty Savings
and Loan, but potentially relevant to the
lawsuit filed by
Paula Jones.
---------------------------------------------------------------------------
\4\ Transcript of November 19, 1998 House Judiciary
Committee
Hearing at 377-378.
\5\ Ibid. at 378.
---------------------------------------------------------------------------
B. The Paula Jones Litigation
The Paula Jones lawsuit made certain
allegations about
events she said had occurred three years earlier,
in 1991,
when the President was Governor of Arkansas.
Discovery in the
case had been stayed until the Supreme Court's
decision on
May 27, 1997, denying the President temporary
immunity from
suit.\6\ Shortly thereafter, Ms. Jones' legal
team began a
public relations offensive against the President,
headed by
Ms. Jones' new spokesperson, Mr. Susan Carpenter-McMillan,
and her new counsel affiliated with the conservation
Rutherford Institute.\7\ ``I will
[Page S193]
never deny that when I first heard about this
case I said,
``Okay, good. We're gonna get that little
slimeball,' said
Ms. Carpenter-McMillan.''\8\ While Ms. Jones'
previous
attorneys, Messrs. Gilbert Davis and Joseph
Cammarata, had
largely avoided the media, as the Jones civil
suit
increasingly became a partisan vehicle to
try to damage the
President, public personal attacks became
the order of the
day.\9\ As is now well known, this effort
led ultimately to
the Jones lawyers being permitted to subpoena
various women,
to discover the nature of their relationship,
if any, with
the President, allegedly for the purpose of
determining
whether they had information relevant to the
sexual
harassment charge. Among these women was Ms.
Lewinsky.
---------------------------------------------------------------------------
\6\ Clinton v. Jones, 520 U.S. 681 (1997).
\7\ Ms. Jones was described as having ``accepted
financial
support of a Virginia conservative group,''
which intended to
``raise $100,000 or more on Jones's behalf,
although the
money will go for expenses and not legal fees.''
``Jones
Acquires New Lawyers and Backing,'' The Washington
Post
(October 2, 1998) at A1. Jones' new law firm,
the Dallas-
based Radar, Campbell, Fisher and Pyke, had
``represented
conservatives in antiabortion cases and other
causes.'' Ibid.
See also Dallas Lawyers Agree to Take on Paula
Jones' Case--
Their Small Firm Has Ties to Conservative
Advocacy Group,''
The Los Angeles Times (Oct. 2, 1997) (Rutherford
Institute a
``conservative advocacy group.'').
\8\ ``Cause Celebre: An Antiabortion Activist
Makes Herself
the Unofficial Mouthpiece for Paula Jones.''
The Washington
Post (July 23, 1998) at C1. Ms. Carpenter-McMillan,
``a
cause-oriented, self-defined conservative
feminist''',
described her role as `flaming the White House''
and declared
```Unless Clinton wants to be terribly embarrassed,
he'd
better cough up what Paula needs. Anybody
that comes out and
testifies against Paula better have the past
of a Mother
Teresa, because our investigators will investigate
their
morality.''' ``Paula Jones' Team Not All About
Teamwork,''
USA Today (Sept. 29, 1997) at 4A.
\9\ After Ms. Jones' new team had been in
action for three
months, one journalist commented: ``In six
years of public
controversy over Clinton's personal life,
what is striking in
some ways is how little the debate changes.
As in the
beginning, many conservatives nurture the
hope that the past
will be Clinton's undoing. Jone's adviser,
Susan Carpenter-
McMillan, acknowledged on NBC's `Meet the
Press' yesterday
that her first reaction when she first heard
Jone's claims
about Clinton was, ``Good, we're going to
get that little
slime ball.'' (Harris, ``Jones Case Tests
Political
Paradox,'' The Washington Post (Jan. 19, 1998)
at A1.
---------------------------------------------------------------------------
In January 1998, Mr. Linda Tripp
notified the OIC of
certain information she believed she had about
Ms. Lewinsky's
involvement in the Jones case. At that time,
the OIC
investigation began to intrude formally into
the Jones case:
the OIC met with Ms. Tripp through the week
of January 12,
and with her cooperation taped Ms. Lewinsky
discussing the
Jones case and the President. Ms. Tripp also
informed the OIC
that she had been surreptitiously taping conversations
with
Ms. Lewinsky in violation of Maryland law,
and in exchange
for her cooperation, the OIC promised Ms.
Tripp immunity from
federal prosecution, and assistance in protecting
her from
state prosecution.\10\ On Friday, January
16, after Ms. Tripp
wore a body wire and had taped conversations
with Ms.
Lewinsky for the OIC, the OIC received jurisdiction
from the
Attorney General and formalized an immunity
agreement with
Ms. Tripp in writing.
---------------------------------------------------------------------------
\10\ Supplemental Materials to the Referral
to the United
States House of Representatives Pursuant to
Title 28, United
States Code Section 595(C), H. Doc. 105-316
(hereinafter
``Supp.'') at 3758-3759, 4371-4373 (House
Judiciary
Committee) (Sept. 28, 1998).
---------------------------------------------------------------------------
The President's deposition in the
Jones case was scheduled
to take place the next day, on Saturday, January
17. As we
now know, Ms. Tripp met with and briefed the
lawyers for Ms.
Jones the night before the deposition on her
perception of
the relationship between Ms. Lewinsky and
the President--
doing so based on confidences Ms. Lewinsky
had entrusted to
her.\11\ She was permitted to do so even though
she has been
acting all week at the behest of the OIC and
was dependent on
the OIC to use its best efforts to protect
her from state
prosecution. At the deposition the next day,
the President
was asked numerous questions about his relationship
with Ms.
Lewinsky by lawyers who already knew the answers.
---------------------------------------------------------------------------
\11\ Baker, ``Linda Tripp Briefed Jones Team
on Tapes:
Meeting Occurred Before Clinton Deposition,''
The Washington
Post (Feb. 14, 1998) at A1.
---------------------------------------------------------------------------
The Jones case, of course, was
not about Ms. Lewinsky. She
was a peripheral player and, since her relationship
with the
President was concededly consensual, irrelevant
to Ms. Jones'
case. Shortly after the President's deposition,
Chief Judge
Wright ruled that evidence pertaining to Ms.
Lewinsky would
not be admissible at the Jones trial because
``it is not
essential to the core issues in this case.''
\12\ The Court
also ruled that, given the allegations at
issue in the Jones
case, the Lewinsky evidence ``might be inadmissible
as
extrinsic evidence'' under the Federal Rules
of Evidence
because it involved merely the ``specific
instances of
conduct'' of a witness.\13\
---------------------------------------------------------------------------
\12\ Order, at 2, Jones v. Clinton, No. LR-C-94-290
(E.D.
Ark.) (Jan. 29, 1998).
\13\ Ibid.
---------------------------------------------------------------------------
On April 1, 1998, the Court ruled
that Ms. Jones had no
case and granted summary judgment for the
President. Although
Judge Wright ``viewed the record in the light
most favorable
to [Ms. Jones] and [gave] her the benefit
of all reasonable
factual inferences,'' \14\ the Court ruled
that, as a matter
of law, she simply had no case against President
Clinton,
both because ``there is no genuine issue as
to any material
fact'' and because President Clinton was ``entitled
to a
judgment as a matter of law.'' Id. at 11-12.
After reviewing
all the proffered evidence, the Court ruled
that ``the record
taken as a whole could not lead a rational
trier of fact to
find for'' Ms. Jones. Id. at 39.
---------------------------------------------------------------------------
\14\ Jones v. Clinton, No. LR-C-94-290 (E.D.
Ark.),
Memorandum Opinion and Order (April 1, 1998),
at 3 n.3.
---------------------------------------------------------------------------
c. the president's grand jury testimony about ms. lewinsky
On August 17, 1998, the President
voluntarily testified to
the grand jury and specifically acknowledged
that he had had
a relationship with Ms. Lewinsky involving
``improper
intimate contact,'' and that he `'engaged
in conduct that was
wrong.'' App. at 461.\15\ He described how
the relationship
began and how he had ended it early in 1997--long
before any
public attention or scrutiny. He stated to
the grand jury
``it's an embarrassing and personally painful
thing, the
truth about my relationship with Ms. Lewinsky,''
App. at 533,
and told the grand jurors, ``I take full responsibility
for
it. It wasn't her fault, it was mine.'' App.
at 589-90.
---------------------------------------------------------------------------
\15\ Appendices to the Referral to the United
States House of
Representatives Pursuant to Title 28, United
States Code
Section 595(c), H. Doc. 105-311 (hereinafter
``App.'') at 461
(House Judiciary Committee) (Sept. 18, 1998).
---------------------------------------------------------------------------
The President also explained how
he had tried to navigate
the deposition in the Jones case months earlier
without
admitting what he admitted to the grand jury--that
he had
been engaged in an improper intimate relationship
with Ms.
Lewinsky. Id. a 530-531. He further testified
that the
``inappropriate encounters'' with Ms. Lewinsky
had ended, at
his insistence, in early 1997. He declined
to describe,
because of considerations of personal privacy
and
institutional dignity, certain specifics about
his conduct
with Ms. Lewinsky,\16\ but he indicated his
willingness to
answer,\17\ and he did answer, the other questions
put to him
about his relationship with her. No one who
watched the
videotape of this grand jury testimony had
any doubt that the
President admitted to having had an improper
intimate
relationship with Ms. Lewinsky.
---------------------------------------------------------------------------
\16\ ``While I will provide the grand jury
whatever other
information I can, because of privacy considerations
affecting my family, myself, and others, and
in an effort to
preserve the dignity of the office I hold,
this is all I will
say about the specifics of these particular
matters.'' App.
at 461.
\17\ ``I will try to answer, to the best of
my ability, other
questions including questions about my relationship
with Ms.
Lewinsky, questions about my understanding
of the term
`sexual relations,' as I understood it to
be defined at my
January 17th, 1998 deposition; and questions
concerning
alleged subornation of perjury, obstruction
of justice, and
intimidation of witnesses.'' App. at 461.
---------------------------------------------------------------------------
d. proceedings in the house of representatives
On September 9, 1998, Mr. Starr
transmitted a Referral to
the House of Representatives that alleged
eleven acts by the
President related to the Lewinsky matter that,
in the opinion
of the OIC, ``may constitute grounds for an
impeachment.''
\18\ The allegations fell into three broad
categories: lying
under oath, obstruction of justice, and abuse
of power.
---------------------------------------------------------------------------
\18\ Referral from Independent Counsel Kenneth
W. Starr in
Conformity with the Requirements of Title
28, United States
Code, Section 595(c), at 1 (House Judiciary
Committee)
(printed September 11, 1998).
---------------------------------------------------------------------------
The House Judiciary held a total
of four hearings and
called but one witness: Kenneth W. Starr.
The Committee
allowed the President's lawyers two days in
which to present
a defense. The White House presented four
panels of
distinguished expert witnesses who testified
that the facts,
as alleged, did not constitute an impeachable
offense, did
not reveal an abuse of power, and would not
support a case
for perjury or obstruction of justice that
any reasonable
prosecutor would bring. White House Counsel
Charles F.C. Ruff
presented argument to the Committee on behalf
of the
President, which is incorporated into this
Trial Memorandum
by reference.\19\
---------------------------------------------------------------------------
\19\ Also incorporated by reference into this
Trial
Memorandum are the four prior submissions
of the President to
the House of Representatives: Preliminary
Memorandum
Concerning Referral of Office of Independent
Counsel
(September 11, 1998) (73 pages); Initial Response
to Referral
of Office of Independent Counsel (September
12, 1998) (42
pages); Memorandum Regarding Standards of
Impeachment
(October 2, 1998) (30 pages); Submission by
Counsel for
President Clinton to the Committee on the
House Judiciary of
the United States House of Representatives
(December 8, 1998)
(184 pages).
---------------------------------------------------------------------------
On December 11 and 12, the Judiciary
Committee voted
essentially along party lines to approve four
articles of
impeachment. Republicans defeated the alternative
resolution
of censure offered by certain Committee Democrats.
Almost
immediately after censure failed in the Committee,
the House
Republican leadership declared publicly that
no censure
proposal would be considered by the full House
when it
considered the articles of impeachment.\20\
---------------------------------------------------------------------------
\20\ See Baker & Eilperin, ``GOP Blocks
Democrats' Bid to
Debate Censure in House: Panel Votes Final,
Trimmed Article
of Impeachment,'' The Washington Post (Dec.
13, 1998) at A1.
---------------------------------------------------------------------------
On December 19, 1998, voting essentially
on party lines,
the House of Representatives approved two
articles of
impeachment: Article I, which alleged perjury
before the
grand jury, passed by a vote of 228 to 206
and Article III,
which alleged obstruction of justice, passed
by a vote of 221
to 212. The full House defeated two other
Articles: Article
II, which alleged that the President committed
perjury in his
civil deposition, and Article IV, which alleged
abuse of
power. Consideration of a censure resolution
was blocked,
even though members of both parties had expressed
a desire to
vote on such an option.
From beginning to end the House
process was both partisan
and unfair. Consider:
* The House released the entire
OIC Referral to the
public without ever reading it, reviewing
it, editing it, or
allowing the President's counsel to review
it;
[Page S194]
* The Chairman of the House Judiciary
Committee said
he had ``no interest in not working in a bipartisan
way'';
\21\
---------------------------------------------------------------------------
\21\ Associated Press (March 25, 1998).
---------------------------------------------------------------------------
* The Chairman also pledged a process
the American
people would conclude was fair; \22\
---------------------------------------------------------------------------
\22\ ``This whole proceeding will fall on its
face if it's
not perceived by the American people to be
fair.'' Financial
Times (Sept. 12, 1998).
---------------------------------------------------------------------------
* The Speaker-Designate of the
House endorsed a vote
of conscience on a motion to censure;\23\
---------------------------------------------------------------------------
\23\ ``The next House Speaker, Robert Livingston,
said the
coming impeachment debate should allow lawmakers
to make a
choice between ousting President Clinton and
imposing a
lesser penalty such as censure. The Louisiana
Republican said
the House can't duck a vote on articles of
impeachment if
reported next month by its Judiciary Committee.
But an
`alternative measure is possible' he said,
and the GOP
leadership should `let everybody have a chance
to vote on the
option of their choice.' '' Wall Street Journal
(Nov. 23,
1998).
---------------------------------------------------------------------------
* Members of the House were shown
secret
``evidence'' in order to influence their vote--evidence
which
the President's counsel still has not been
able to review.
III. The Constitutional Standard and Burden of Proof for
Decision
A. The Offenses Alleged Do Not Meet the Constitutional Standard of High
Crimes and Misdemeanors
1. The Senate Has a Constitutional Duty to
Confront the
Question Whether Impeachable
Offenses Have Been Alleged
It is the solemn duty of the Senate
to consider the
question whether the articles state an impeachable
offense.\24\ That Constitutional question
has not, in the
words of one House Manager, ``already been
resolved by the
House.'' \25\ To the contrary, that question
now awaits the
Senate's measured consideration and independent
judgment.
Indeed, throughout our history, resolving
this question has
been an essential part of the Senate's constitutional
obligation to ``try all Impeachments.'' U.S.
Const. Art.
Sec. 3, cl.7. In the words of John Logan,
a House Manager in
the 1868 proceedings:
---------------------------------------------------------------------------
\24\ In the impeachment trial of Andrew Johnson,
the
President's counsel answered (to at least
one article) that
the matters alleged ``do not charge or allege
the commission
of any act whatever by this respondent, in
his office of
President of the United States, nor the omission
by this
respondent of any act of official obligation
or duty in his
office of President of the United States.''
1 Trial of Andrew
Johnson (1868) (``TAJ'') 53.
\25\ See Statement of Rep. Bill McCollum:
``[A]re these
impeachable offenses, which I think has already
been resolved
by the House. I think constitutionally that's
our job to
do.'' Fox News Sunday (January 3, 1999).
---------------------------------------------------------------------------
``It is the rule that all questions
of law or fact are to
be decided, in these proceedings, by the final
vote upon the
guilt or innocence of the accused. It is also
the rule, that
in determining this general issue senators
must consider the
sufficiency or insufficiency in law or in
fact of every
article of accusation.''\26\
---------------------------------------------------------------------------
\26\ Closing argument of Manager John H. Logan,
2 TAJ 18
(emphasis added). See also Office of Senate
Legal Counsel,
Memorandum on Impeachment Issues at 25-26
(Oct. 7, 1988)
(``Because the Senate acts as both judge and
jury in an
impeachment trial, the Senate's conviction
on a particular
article of impeachment reflects the Senate's
judgment not
only that the accused engaged in the misconduct
underlying
the article but also that the article stated
an impeachable
offense'').
We respectfully suggest that the articles exhibited
here do
not state wrongdoing that constitutes impeachable
offenses
under our Constitution.
2. The Constitution Requires a High Standard
of Proof of
``High Crimes and
Misdemeanors'' for Removal
a. The Constitutional Text and
Structure Set an
Intentionally
High Standard for Removal
The Constitution provides that
the President shall be
removed from office only upon ``Impeachment
for, and
Conviction of, Treason, Bribery, or other
high Crimes and
Misdemeanors.'' U.S. Constitution, Art. II,
section 4. The
charges fail to meet the high standard that
the Framers
established.\27\
---------------------------------------------------------------------------
\27\ For a more complete discussion of the
Standards for
Impeachment, please see Submission by Counsel
for President
Clinton to the House Judiciary of the United
States House of
Representatives at 24-43 (December 8, 1998);
Memorandum
Regarding Standards of Impeachment (October
2, 1998); and
Impeachment of William Jefferson, President
of the United
States, Report of the Committee on the Judiciary
to Accompany
H. Res. 611, H. Rpt. 105-830, 105th Cong.,
2d Sess. at 332-39
(citing Minority Report). References to pages
2-203 of the
Committee Report will be cited hereinafter
as ``Committee
Report.'' References to pages 329-406 of the
Committee Report
will be cited hereinafter as ``Minority Report.''
---------------------------------------------------------------------------
The syntax of the Constitutional
standard ``Treason,
Bribery or other high Crimes and Misdemeanors''
(emphasis
added) strongly suggests, by the interpretive
principle
noscitur a sociis, \28\ that, to be impeachable
offenses, high crimes and misdemeanors must
be of the
seriousness of ``Treason'' and ``Bribery.''
---------------------------------------------------------------------------
\28\ `` `It is known from its associates' .
. . the meaning
of a word is or may be known from the accompanying
words.''
Black's Law Dictionary 1209 (4th ed. 1968).
---------------------------------------------------------------------------
Our Constitutional structure reaffirms
that the standard
must be a very high one. Ours is a Constitution
of separated
powers. In that Constitution, the President
does not serve at
the will of Congress, but as the directly
elected,\29\
solitary head of the Executive Branch. The
Constitution
reflects a judgment that a strong Executive,
executing the
law independently of legislative will, is
a necessary
protection for a free people.
---------------------------------------------------------------------------
\29\ Of course, that election takes place through
the
mediating activity of the Electoral College.
See U.S. Const.
Art. II, Sec. 1, cl. 2-3 and Amend. XII.
---------------------------------------------------------------------------
These elementary facts of constitutional
structure
underscore the need for a very high standard
for impeachment.
The House Managers, in their Brief, suggest
that the failure
to remove the President would raise the standard
for
impeachment higher than the Framers intended.
They say that
if the Senate does not remove the President,
``The bar will
be so high that only a convicted felon or
a traitor will need
to be concerned.'' But that standard is just
a modified
version of the plain language of Article II,
Section 4 of the
Constitution, which says a President can only
be impeached
and removed for ``Treason, Bribery, or other
high Crimes and
Misdemeanors.'' The Framers wanted a high
bar. It was not the
intention of the Framers that the President
should be subject
to the will of the dominant legislative party.
As Alexander
Hamilton said in a warning against the politicization
of
impeachment: ``There will always be the greater
danger that
the decision will be regulated more by comparative
strength
of parties than by the real demonstrations
of innocence or
guilt.'' Federalist 65. Our system of government
does not
permit Congress to unseat the President merely
because it
disagrees with his behavior or his policies.
The Framers'
decisive rejection of parliamentary government
is one reason
they caused the phrase ``Treason, Bribery
or other high
Crimes and Misdemeanors'' to appear in the
Constitution
itself. They chose to specify those categories
of offenses
subject to the impeachment power, rather than
leave that
judgment to the unfettered whim of the legislature.
Any just and proper impeachment
process must be reasonably
viewed by the public as arising from one of
those rare cases
when the Legislature is compelled to stand
in for all the
people and remove a President whose continuation
in office
threatens grave harm to the Republic. Indeed,
it is not
exaggeration to say--as a group of more than
400 leading
historians and constitutional scholars publicly
stated--that
removal on these articles would ``mangle the
system of checks
and balances that is our chief safeguard against
abuses of
public power.'' \30\ Removal of the President
on these
grounds would defy the constitutional presumption
that the
removal power rests with the people in elections,
and it
would do incalculable damage to the institution
of the
Presidency. If ``successful,'' removal here
``will leave the
Presidency permanently disfigured and diminished,
at the
mercy as never before of the caprices of any
Congress.'' \31\
---------------------------------------------------------------------------
\30\ Statement of Historians in Defense of
the Constitution
(Oct. 28, 1998) (``Statement of Historians'');
see also
Schmitt, ``Scholars and Historians Assail
Clinton Impeachment
Inquiry,'' The New York Times (Oct. 19, 1998)
at A18.
\31\ Statement of Historians.
---------------------------------------------------------------------------
The Framers made the President
the sole nationally elected
public official (together with the Vice-President),
responsible to all the people. Therefore,
when articles of
impeachment have been exhibited, the Senate
confronts this
inescapable question: is the alleged misconduct
so profoundly
serious, so malevolent to our Constitutional
system, that it
justifies undoing the people's decision? Is
the wrong alleged
of a sort that not only demands removal of
the President
before the ordinary electoral cycle can do
its work, but also
justifies the national trauma that accompanies
the
impeachment trial process itself? The wrongdoing
alleged here
does not remotely meet that standard.
b. The Framers Believed that Impeachment
and Removal Were
Appropriate
Only for Offenses Against the System of
Government
``[H]igh Crimes and Misdemeanors''
refers to nothing short
of Presidential actions that are ``great and
dangerous
offenses'' or ``attempts to subvert the Constitution.''
\32\
Impeachment was never intended to be a remedy
for private
wrongs. It was intended to be a method of
removing a
President whose continued presence in the
Office would cause
grave danger to the Nation and our Constitutional
system of
government.\33\ Thus, ``in all but the most
extreme
instances, impeachment should be limited to
abuse of public
office, not private misconduct unrelated to
public office.''
\34\
---------------------------------------------------------------------------
\32\ George Mason, 2 Farrand, The Records of
the Federal
Convention of 1787 550 (Rev. ed. 1966).
\33\ As the 1975 Watergate staff report concluded
``Impeachment is the first step in remedial
process--removal
from office and possible disqualification
from holding future
office. The purpose of impeachment is not
personal
punishment; its function is primarily to maintain
constitutional government. . . . In an impeachment
proceeding
a President is called to account for abusing
powers that only
a President possesses.'' Constitutional Grounds
for
Presidential Impeachment, Report by the Staff
of the
Impeachment Inquiry, House Comm. on Judiciary,
93d Cong., 2d
Sess. at 24 (1974) (``Nixon Impeachment Inquiry'').
\34\ Minority Report at 337.
---------------------------------------------------------------------------
Impeachment was designed to be
a means of redressing
wrongful public conduct. As scholar and Justice
James Wilson
wrote, ``our President . . . is amendable
to [the laws] in
his private character as a citizen, and in
his public
character by impeachment.'' \35\ As such,
impeachment is
limited to certain forms of wrongdoing. Alexander
[Page S195]
Hamilton described the subject of the Senate's
impeachment
jurisdiction as ``those offenses which proceed
from the
misconduct of public men, or in other words
from the abuse or
violation of some public trust. They are of
a nature which
may with peculiar propriety be denominated
POLITICAL, as they
relate chiefly to injuries done to the society
itself.'' \36\
---------------------------------------------------------------------------
\35\ 2 Elliot, The Debate in the Several State
Conventions on
the Adoption of the Federal Constitution 480
(reprint of 2d
ed.)
\36\ The Federalist No. 65 at 331 (Gary Wills
ed. 1982). As
one of the most respected of the early commentators
explained, the impeachment ``power partakes
of a political
character, as it respects injuries to the
society in its
political character.'' Story, Commentaries
on the
Constitution, Sec. 744. (reprint of 1st ed.
1833).
The Framers ``intended that a president
be removable from
office for the commission of great offenses
against the
Constitution.'' \37\ Impeachment therefore
addresses public
wrongdoing, whether denominated a ``political
crime [ ]
against the state,'' \38\ or ``an act of malfeasance
or abuse
of office,'' \39\ or a ``great offense [
] against the
federal government.'' \40\ Ordinary civil
and criminal wrongs
can be addressed through ordinary judicial
processes. And
ordinary political wrongs can be addressed
at the ballot box
and by public opinion. Impeachment is reserved
for the most
serious public misconduct, those aggravated
abuses of
executive power that, given the President's
four-year term,
might otherwise go unchecked.
---------------------------------------------------------------------------
\37\ John Labovitz, Presidential Impeachment
94 (1978).
\38\ Raoul Berger, Impeachment 61 (1973).
\39\ Rotunda, An Essay on the Constitutional
Parameters of
Federal Impeachment, 76 Ky. L.J. 707, 724
(1987/1988).
\40\ Gerhardt, The Constitutional Limits to
Impeachment and
Its Alternatives, 68 Tex. L. Rev. 1, 85 (1989).
---------------------------------------------------------------------------
3. Past Precedents Confirm that Allegations
of Dishonesty Do
Not Alone State Impeachable
Offenses
Because impeachment of a President
nullifies the popular
will of the people, as evidence by an election,
it must be
used with great circumspection. As applicable
precedents
establish, it should not be used to punish
private
misconduct.
a. The Fraudulent Tax Return Allegation
Against President
Nixon
Five articles of impeachment were
proposed against then-
President Nixon by the Judiciary Committee
of the House of
Representatives in 1974. Three were approved
and two were
not. The approved articles alleged official
wrongdoing.
Article I charged President Nixon with ``using
the powers of
his high office [to] engage [ ] . .
. in a course of conduct
or plan designed to delay, impede and obstruct''
the
Watergate investigation.\41\ Article II described
the
President as engaging in ``repeated and continuing
abuse of
the powers of the Presidency in disregard
of the fundamental
principle of the rule of law in our system
of government''
thereby ``us[ing] his power as President to
violate the
Constitution and the law of the land.'' \42\
Article III
charged the President with refusing to comply
with Judiciary
Committee subpoenas in frustration of a power
necessary to
``preserve the integrity of the impeachment
process itself
and the ability of Congress to act as the
ultimate safeguard
against improper Presidential conduct.'' \43\
---------------------------------------------------------------------------
\41\ Impeachment of Richard M. Nixon, President
of the United
States, Report of the Comm. on the Judiciary,
93rd Cong., 2d
Sess, H. Rep. 93-1305 (Aug. 20, 1974) (hereinafter
``Nixon
Report'') at 133.
\42\ Nixon Report at 180.
\43\ Id. 212-13.
---------------------------------------------------------------------------
On article not approved by the
House Judiciary Committee
charged that President Nixon both ``knowingly
and
fraudulently failed to report certain income
and claimed
deductions [for 1969-72] on his Federal income
tax returns
which were not authorized by law.'' \44\ The
President had
signed his returns for those years under penalty
of
perjury,\45\ and there was reason to believe
that the
underlying facts would have supported a criminal
prosecution
against President Nixon himself.\46\
---------------------------------------------------------------------------
\44\ Id. at 220. The President was alleged
to have failed to
report certain income, to have taken improper
tax deductions,
and to have manufactured (either personally
or through his
agents) false documents to support the deductions
taken.
\45\ Given the underlying facts, that act
might have provided
the basis for multiple criminal charges; conviction
on, for
example, the tax evasion charge, could have
subjected
President Nixon to a 5-year prison term.
\46\ See Nixon Report at 344 (``the Committee
was told by a
criminal fraud tax expert that on the evidence
presented to
the Committee, if the President were an ordinary
taxpayer,
the government would seek to send him to jail'')
(Statement
of Additional Views of Mr. Mezvinsky, et al.)
---------------------------------------------------------------------------
Specifying the applicable standard
for impeachment, the
majority staff concluded that ``[b]ecause
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 constitutional
duties
of the president office.'' \47\
---------------------------------------------------------------------------
\47\ Nixon Impeachment Inquiry at 26 (emphasis
added).
---------------------------------------------------------------------------
And the minority views of many
Republican members were in
substantial agreement: ``the framers . . .
were concerned
with preserving the government from being
overthrown by the
treachery or corruption of one man. . . .
[I]t is our
judgment, based upon this constitutional history,
that the
Framers of the United States Constitution
intended that the
President should be removable by the legislative
branch only
for serious misconduct dangerous to the system
of government
established by the Constitution.'' \48\
---------------------------------------------------------------------------
\48\ Nixon Report at 364-365 (Minority Views
of Messrs.
Hutchinson, Smith, Sandman, Wiggins, Dennis,
Mayne, Lott,
Moorhead, Maraziti and Latta).
---------------------------------------------------------------------------
The legal principle that impeachable
offenses required
misconduct dangerous to our system of government
provided one
basis for the Committee's rejection of the
fraudulent-tax-
return charge. As Congressman Hogan (R-Md.)
put the matter,
the Constitution's phrase ``high crime signified
a crime
against the system of government, not merely
a serious
crime,''\49\ As noted, the tax-fraud charge,
involving an act
which did not demonstrate public misconduct,
was rejected by
an overwhelming (and bipartisan) 26-12 margin.\50\
---------------------------------------------------------------------------
\49\ Id. (quoting with approval conclusion
of Nixon
Impeachment Inquiry).
\50\ Nixon Report at 220.
---------------------------------------------------------------------------
b. The Financial Misdealing Allegation
Against Alexander
Hamilton
In 1792, Congress investigated
Secretary of Treasury
Alexander Hamilton for alleged financial misdealings
with a
convicted swindler. Hamilton had made payments
to the
swindler and had urged his wife (Hamilton's
paramour) to burn
incriminating correspondence. Members of Congress
investigated the matter and it came to the
attention of
President Washington and future Presidents
Adams, Jefferson,
Madison and Monroe.
This private matter was not deemed
worthy of removing Mr.
Hamilton as Secretary of the Treasury.\51\
Even when it
eventually became public, it was no barrier
to Hamilton's
appointment to high position in the United
States Army.
Although not insignificant, Hamilton's behavior
was
essentially private. It was certain not regarded
as
impeachable.
---------------------------------------------------------------------------
\51\ See generally Rosenfeld, ``Founding Fathers
Didn't
Flinch,'' The Los Angeles Times (September
18, 1980).
---------------------------------------------------------------------------
4. The Views of Prominent Historians and Legal
Scholars
Confirm that Impeachable
Offenses Are not Present
a. No Impeachable Offense Has
Been Stated Here
There is strong agreement among
consititutional scholars
and historians that the articles do not charge
impeachable
offenses. As Professor Michael Gerhardt summarized
in his
recent testimony before a subcommitte of the
House of
Representatives, there is ``widespread recognition
[of] a
paradigmatic case for impeachment.''\52\ In
such a case,
``there must be a nexus between the misconduct
of an
impeachable official and the latter's official
duties.''\53\
---------------------------------------------------------------------------
\52\ Statement of Professor Michael J. Gerhardt
Before the
House Subcommittee on the Constitution of
the House Judiciary
Committee Regarding the Background and History
of Impeachment
(November 9, 1998) at 13 (``Subcommittee Hearings'').
\53\Ibid. (emphasis added).
---------------------------------------------------------------------------
There is no such nexus here. Indeed
the allegations are so
far removed from official wrongdoing that
their assertion
here threatens to weaken significantly the
Presidency itself.
As the more than 400 prominent historians
and constitutional
scholars warned in their public statement:
``[t]he theory of
impeachment underlying these efforts is unprecedented
in our
history . . . [and is] are extremely ominous
for the future
of our political insitutions. If carried forward,
[the
current processes] will leave the Presidency
permanently
disfigured and diminished, at the mercy as
never before of
the caprices of any Congress.\54\
---------------------------------------------------------------------------
\54\ Statement of Historians.
---------------------------------------------------------------------------
Similarly, in a letter to the House
of Representatives, an
extraordinary group of 430 legal scholars
argued together
that these offenses, even if proven true,
did not rise to the
level of an impeachable offense.\55\ The gist
of these
scholarly objections is that the alleged wrongdoing
is
insufficiently connected to the exercise of
public office.
Because the articles charge wrongdoing of
an essentially
private nature, any harm such behavior poses
is too removed
from our system of government to justify unseating
the
President. Numerous scholars, opining long
before the current
controversy, have emphasized the necessary
connection of
impeachable wrongs to threats against the
state itself. They
have found that impeachment should be reserved
for:
---------------------------------------------------------------------------
\55\ See Letter of 430 Law Professors to Messrs.
Gingrich,
Gephardt, Hyde and Conyers (released Nov.
6, 1998).
---------------------------------------------------------------------------
* ``offenses against the government'';\56\
---------------------------------------------------------------------------
\56\ Labovitx, Presidential Impeachment at
26.
---------------------------------------------------------------------------
* ``political crime against the
state''; \57\
---------------------------------------------------------------------------
\57\ Berger, Impeachment at 61.
---------------------------------------------------------------------------
* ``serious assaults on the integrity
of the
processes of government''; \58\
---------------------------------------------------------------------------
\58\ Charles L. Black, Jr. Impeachment: A Handbook
38-39
(1974).
---------------------------------------------------------------------------
* ``wrongdoing convincingly established
[and] so
egregious that [the President's] continuation
in office is
intolerable'';\59\
---------------------------------------------------------------------------
\59\ Labovitz Presidential Impeachment at 110.
---------------------------------------------------------------------------
* ``malfeasance or abuse of office,''\60\
bearing a
``functional relationship'' to public office;
\61\
---------------------------------------------------------------------------
\60\ Rotunda, 76 Ky. L.J. at 726.
\61\ Ibid.
---------------------------------------------------------------------------
* ``great offense[s] against the
federal
government''; \62\
---------------------------------------------------------------------------
\62\ Gerhardt, 68 Tex. L. Rev. at 85.
---------------------------------------------------------------------------
* ``acts which, like treason and
bribery, undermine
the integrity of government.'' \63\
---------------------------------------------------------------------------
\63\ Committee on Federal Legislation of the
Bar Ass'n of the
City of New York, The Law of Presidential
Impeachment 18
(1974).
The articles contain nothing approximating
that level of
wrongdoing. Indeed the House Managers themselves
acknowledge
that ``the President's [alleged] perjury and
obstruction
[Page S196]
do not directly involve his official conduct.''
\64\
---------------------------------------------------------------------------
\64\ House Br. at 109.
---------------------------------------------------------------------------
b. To Make Impeachable Offenses
of These Allegations would
Forever
Lower the Bar in a Way Inimical to the
Presidency
and to Our Government of Separated powers
These articles allege (1) sexual
misbehavior, (2)
statements about sexual misbehavior and (3)
attempts to
conceal the fact of sexual misbehavior. These
kinds of wrongs
are simply not subjects fit for impeachment.
To remove a
President on this basis would lower the impeachment
bar to an
unprecedented level and create a devastating
precedent. As
Professor Arthur Schlesinger, Jr., addressing
this problem,
has testified:
``Lowering the bar for impeachment
creates a novel . . .
revolutionary theory of impeachment, [and]
. . . would send
us on an adventure with ominous implications
for the
separation of powers that the Constitution
established as the
basis of our political order. It would permanently
weaken the
Presidency.'' \65\
---------------------------------------------------------------------------
\65\ Subcommittee Hearings (Written Statement
of Arthur
Schlesinger, Tr. at 2).
---------------------------------------------------------------------------
The lowering of the bar that Professor
Schlesinger
described must stop here. Professor Jack Rakove
made a
similar point when he stated that ``Impeachment
[is] a remedy
to be deployed only in . . . unequivocal cases
where . . .
the insult to the constitutional system is
grave.'' \66\
Indeed, he said, there ``would have to be
a
high degree of consensus on both sides of
the aisle in
Congress and in both Houses to proceed.''
\67\
---------------------------------------------------------------------------
\66\ Subcommittee Hearings (Written Statement
of Professor
Jack Rakove at 4).
\67\ Subcommittee Hearings (Oral Testimony
of Professor
Rakove).
---------------------------------------------------------------------------
Bipartisan consensus was, of course,
utterly lacking in the
House of Representatives. No civil officer--no
President, no
judge, no cabinet member--has ever been impeached
by so
narrow a margin as supported the articles
exhibited
here.\68\ The closeness and partisan division
of the
vote reflect the constitutionally dubious
nature of the
charges.
---------------------------------------------------------------------------
\68\ The present articles were approved by
margins of 228-206
(Article I) and 221-212 (Article II). All
prior resolutions
were approved by substantially wider margins
in the House of
Representatives. See Impeachments of the following
civil
officers: Judge John Pickering (1803) (45-8;
Justice Samuel
Chase (1804) (73-32; Judge James Peck (1830)
143-49; Judge
West Humphreys (1862) (no vote available,
but resolution of
impeachment voted ``without division,'' see
3 Hinds
Precedents of the House of Representatives
Sec. 2386);
President Andrew Johnson (1868) (128-47; Judge
James Belknap
(1876) (unanimous); Judge Charles Swayne (1903)
(unanimous);
Judge Robert Archbald (1912) (223-1); Judge
George English
(1925) (306-62); Judge Harold Louderback (1932)
(183--143);
Judge Halsted Ritter (1933) (181-146); Judge
Harry Claiborne
(1986) (406-0); Judge Walter L. Nixon, Jr.
(1988) (417-0);
Judge Alcee L. Hastings (1988) (413-3). The
impeachment
resolution against Senator William Bount in
1797 was by voice
vote and so no specific count was recorded.
---------------------------------------------------------------------------
When articles are based on sexual
wrongdoing, and when they
have passed only by the narrowest, partisan
margin, the
future of our constitutional politics is in
the balance. The
very stability of our Constitutional government
may depend
upon the Senate's response to these articles.
Nothing about
this case justifies removal of a twice-elected
President,
because no ``high Crimes and Misdemeanors''
are alleged.
5. Comparisons to Impeachment of Judges Are
Wrong
The House Managers suggest that
perjury per se is an
impeachable offense because (1) several federal
judges have
been impeached and removed for perjury, and
(2) those
precedents control this case. See House Br.
at 95-105. That
notion is erroneous. It is blind both to the
qualitative
differences among different allegations of
perjury and the
very basic differences between federal judges
and the
President.
First, the impeachment and removal
of a Federal judge,
while a very solemn task, implicates very
different
considerations than the impeachment of a president.
Federal
judges are appointed without public approval
and enjoy life
tenure without public accountability. Consequently,
they hold
their offices under our Constitution only
``during good
behavior.'' Under our system, impeachment
is the only way to
remove a Federal judge from office--even a
Federal judge
sitting in jail.\69\ By contrast, a president
is
elected by the Nation to a term, limited to
a specified
number of years, and he faces accountability
in the form of
elections.
---------------------------------------------------------------------------
\69\ Former House Judiciary Committee Chairman
Peter Rodino,
during a recent judicial impeachment proceeding,
cogently
explained the unique position that Federal
judges hold in our
Constitutional system:
``The judges of our Federal courts occupy
a unique position
of trust and responsibility in our government:
They are the
only members of any branch that hold their
office for life;
they are purposely insulated from the immediate
pressures and
shifting currents of the body politic. But
with the special
prerogative of judicial independence comes
the most exacting
standard of public and private conduct . .
. The high
standard of behavior for judges is inscribed
in article III
of the Constitution, which provides that judges
``shall hold
offices during good behavior. . . .'' (132
Cong. Rec. H4712
(July 22, 1986) (impeachment of Judge Harry
E. Claiborne)
(emphasis added).
---------------------------------------------------------------------------
Second, whether an allegedly perjurious
statement rises to
the level of an impeachable offense depends
necessarily on
the particulars of that statement, and the
relation of those
statements to the fulfillment of official
responsibilities.
In the impeachment of Judge Harry Claiborne,
the accused had
been convicted of filing false income tax
returns.\70\ As a
judge, Claiborne was charged with the responsibility
of
hearing tax-evasion cases. Once convicted,
he simply could
not perform his official functions because
his personal
probity had been impaired such that he could
not longer be an
arbiter of others' oaths. His wrongdoing bore
a direct
connection to the performance of his judicial
tasks. The
inquiry into President Nixon disclosed similar
wrongdoing,
but the House Judiciary Committee refused
to approve an
article of impeachment against the President
on that basis.
The case of Judge Walter Nixon is similar.
He was convicted
of making perjurious statements concerning
his intervention
in a judicial proceeding, which is to say,
employing the
power and prestige of his office to obtain
advantage for a
party.\71\ Although the proceeding at issue
was not in his
court, his use of the judicial office for
the private gain of
a party to a judicial proceeding directly
implicated his
official functions. Finally, Judge Alcee Hastings
was
impeached and removed for making perjurious
statements at his
trial for conspiring to fix cases in his own
court.\72\ As
with Judges Claiborne and Nixon, Judge Hastings'
perjurious
statements were immediately and incurably
detrimental to the
performance of his official duties. The allegations
against
the President, which (as the Managers acknowledge)
``do not
directly involve his official conduct,'' House
Br. at 109,
simply do not involve wrongdoing of gravity
sufficient to
foreclose effective performance of the Presidential
office.
---------------------------------------------------------------------------
\70\ Proceedings of the United States Senate
in the
Impeachment Trial of Harry E. Claiborne, 99th
Cong., 2d
Sess., S. Doc. 99-48 at 291-98 (1986) (``Claiborne
Proceedings'').
\71\ Proceedings of the United States Senate
in the
Impeachment Trial of Walter L. Nixon, Jr.,
101st Cong., 1st
Sess., S. Doc. 101-22 at 430-440 (1989) (``Judge
Nixon
Proceedings'').
\72\ See Proceedings of the United States
Senate in the
Impeachment Trial of Alcee L. Hastings, 101st
Cong., 1st
Sess., S. Doc. 101-18 (1989).
---------------------------------------------------------------------------
Impeachment scholar John Labovitz,
writing of the judicial
impeachment cases predating Watergate, observed
that:
``For both legal and practical
reasons, th[e] [judicial
impeachment] cases did not necessarily affect
the grounds for
impeachment of a president. The practical
reason was that it
seemed inappropriate to determine the fate
of an elected
chief executive on the basis of law developed
in proceedings
directed at petty misconduct by obscure judges.
The legal
reason was that the Constitution provides
that judges serve
during good behavior. . . . [T]he [good behavior]
clause made
a difference in judicial impeachments, confounding
the
application of these cases to presidential
impeachment''.\73\
\73\ Labovitz, Presidential Impeachment at
92-93 (emphasis
added).
---------------------------------------------------------------------------
Thus, the judicial precedents relied upon by
the House
Managers have only ``limited force when applied
to the
impeachment of a President.''\74\
---------------------------------------------------------------------------
\74\ Office of Senate Legal Counsel, Memorandum
on
Impeachment Issues at 26 (Oct. 7, 1988) (summarizing
view of
some commentators).
---------------------------------------------------------------------------
The most telling rejoinder to the
House's argument comes
from President Ford. His definition of impeachable
offenses,
offered as a congressman in 1970 in connection
with an effort
to impeach Associate Justice William O. Douglas--that
it is,
in essence, ``whatever the majority of the
House of
Representatives considers it to be''--has
been cited. Almost
never noted is the more important aspect of
then-Congressman
Ford's statement--that, in contrast to the
life-tenure of
judges, because presidents can be removed
by the electorate,
``to remove them in midterm . . . would indeed
require crimes
of the magnitude of treason and bribery.''\75\
---------------------------------------------------------------------------
\75\ 116 Cong. Rec. 11912, 11913, (1970).
---------------------------------------------------------------------------
b. the standard of proof
Beyond the question of what constitutes
an impeachable
offense, each Senator must confront the question
of what
standard the evidence must meet to justify
a vote of
``guilty.'' The Senate has, of course, addressed
this issue
before--most recently in the trials of Judge
Claiborne and
Judge Hastings. We recognize that the Senate
chose in the
Claiborne proceedings, and reaffirmed in the
Hastings trial,
not to impose itself any single standard of
proof but,
rather, to leave that judgment to the conscience
of each
senator. Many Senators here today were present
for the debate
on this issue and chose a standard by which
to test the
evidence. For many Senators, however, the
issue is a new one.
And none previously has had to face the issue
in the special
context of a Presidential impeachment.
We argued before the House Judiciary
Committee that it must
treat a vote to impeach as, in effect, a vote
to remove the
President from office and that a decision
of such moment
ought not to be based on anything less than
``clear and
convincing'' evidence. That standard is higher
than the
``preponderance of the evidence'' test applicable
to the
ordinary civil case but lower than the beyond
a reasonable
doubt test applicable to a criminal case.
Nonetheless, we
felt that the clear and convincing standard
was consistent
with the grave responsibility of triggering
a process that
might result in the removal of a president.
In fact, it had
been the standard agreed upon by both Watergate
Committee
majority and minority counsel (as well as
counsel for
President Nixon) twenty-four years ago.
Certainly no lesser standard should
be applied in the
Senate. Indeed, we submit that the gravity
of the decision
the Senate must
[Page S197]
reach should lead each Senator to go further
and ask whether
the House has established guilt beyond a reasonable
doubt.
Both lawyers and laymen too often
treat the standard of
proof as meaningless legal jargon with no
application to the
real world of difficult decisions. But it
is much more than
that. In our system of justice, it is the
guidepost that
shows the way through the labyrinth of conflicting
evidence.
It tells the factfinder to look within and
ask: ``Would I
make the most important decisions of my life
based on the
degree of certainty I have about these facts?''
In the unique
legal-political setting of an impeachment
trial, it protects
against partisan overreaching, and it assures
the public that
this grave decision has been made with care.
In sum, it is a
disciplining force to carry into the deliberations.
This point is given added weight
by the language of the
Constitution. Article I, section 3, clause
6 of the United
States Constitution gives to the Senate ``the
Power to try
all Impeachments. . . . and no Person shall
be convicted
without the Concurrence of two thirds of the
Members
present.'' (Emphasis added.) Use of the words
``try'' and
``convicted'' strongly suggests that an impeachment
trial is
akin to a criminal proceeding and that the
beyond-a-
reasonable-doubt standard of criminal proceedings
should be
used. This position was enunciated in the
Minority Views
contained in the Report of the House Judiciary
Committee on
the impeachment proceedings against President
Nixon (H.Rep.
93-1305 at 377-381) and has been espoused
as the correct
standard by such Senators as Robert Taft,
Jr., Sam Ervin,
Strom Thurmond and John Stennis.\76\
---------------------------------------------------------------------------
\76\ Claiborne Proceedings at 106-107.
---------------------------------------------------------------------------
Even if the clear and convincing
standard nonetheless is
appropriate for judicial impeachments, it
does not follow
that it should be applied where the Presidency
itself is at
stake. With judges, the Senate must balance
its concern for
the independence of the judiciary against
the recognition
that, because judges hold life-time tenure,
impeachment is
the only available means to protect the public
against those
who are corrupt. On the other hand, when a
President is on
trial, the balance to be struck is quite different.
Here the
Senate is asked, in effect, to overturn the
results of an
election held two years ago in which the American
people
selected the head of one of the three coordinate
branches of
government. It is asked to take this action
in circumstances
where there is no suggestion of corruption
or misuse of
office--or any other conduct that places our
system of
government at risk in the two remaining years
of the
President's term, when once again the people
will judge who
they wish to lead them. In this setting, the
evidence should
be tested by the most stringent standard we
know--proof
beyond a reasonable doubt. Only then can the
American people
be confident that this most serious of constitutional
decisions has been given the careful consideration
it
deserves.
IV. The President Should Be Acquitted on Article I
The evidence does not support the
allegations of Article I.
a. applicable law
Article I alleges perjury, along
with false and misleading
statements, before a federal grand jury. Perjury
is a
statutory crime that is set forth in the United
States Code
at 18 U.S.C. Sec. 1623.\77\ Before an accused
may be found
guilty of perjury before a grand jury, a prosecutor
most
prove all elements of the offense.
---------------------------------------------------------------------------
\77\ Section 1623 provides in relevant part:
``(a) Whoever under oath . . . in any proceeding
before or
ancillary to any court or grand jury of the
United States
knowingly makes any false material declaration
or makes or
uses any other information . . . knowing the
same to contain
any false material declaration, shall be fined
under this
title or imprisoned not more than five years,
or both.'' (18
U.S.C. Sec. 1623(a) (1994)).
---------------------------------------------------------------------------
In the criminal law context, Sec.
1623 requires proof
beyond a reasonable doubt of the following
elements: that an
accused (1) while under oath (2) knowingly
(3) made a false
statement as to (4) material facts. The ``materiality''
element is fundamental: it means that testimony
given to a
grand jury may be found perjurious only if
it had a tendency
to influence, impede, or hamper the grand
jury's
investigation. See, e.g., United States v.
Reilly, 33 F.3d
1396, 1419 (3d Cir. 1994); United States v.
Barrett, 111 F.3d
947, 953 (D.C. Cir. 1997). If an answer provided
to a grand
jury has no impact on the grand jury's investigation,
or if
it relates to a subject that the grand jury
is not
considering, it is incapable as a matter of
law of being
perjurious. Thus, alleged false testimony
concerning details
that a grand jury is not investigating cannot
as a matter of
law constitute perjury, since such testimony
by definition is
immaterial. See, e.g., United States v. Lasater,
535 F.2d
1041, 1048 (8th Cir. 1976) (where defendant
admitted signing
letter and testified to its purpose, his denial
of actually
writing letter was not material to grand jury
investigation
and was incapable of supporting perjury charge);
United
States v. Pyle, 156 F.2d 852, 856 (D.C. Cir.
1946) (details
such as whether defendant ``paid the rent
on her Washington
apartment, as she testified that she did''
were ``not
pertinent to the issue being tried;'' therefore,
``the false
statement attributed to [defendant] was in
no way material in
the case in which she made it and did not
constitute perjury
within the meaning of the statute.'') In other
words, mere
falsity--even knowing falsity--is not perjury
if the
statement at issue is not ``material'' to
the matter under
consideration.
An additional ``element'' of perjury
prosecutions, at least
as a matter of prosecutorial practice, is
that a perjury
conviction cannot rest solely on the testimony
of one
witness. In United States v. Weiler, 323 U.S.
606, 608-09
(1945), the Supreme Court observed that the
``special rule
which bars conviction for perjury solely upon
the evidence of
a single witness is deeply rooted in past
centuries.'' While
Sec. 1623 does not literally incorporate the
so-called ``two-
witness'' rule, the case law makes clear that
perjury
prosecutions under this statute require a
high degree of
proof, and that prosecutors should not, as
a matter of reason
and practicality, try to bring perjury prosecutions
based
solely on the testimony of a single witness.
As the Supreme
Court has cautioned, perjury cases should
not rest merely
upon ``an oath against an oath.'' Id. at 609.
Indeed, that is exactly the point
that experienced former
federal prosecutors made to the House Judiciary
Committee. A
panel of former federal prosecutors, some
Republican,
testified that they would not charge perjury
based upon the
facts in this case. For example, Mr. Thomas
Sullivan, a
former United States Attorney for the Northern
District of
Illinois, told the Committee that ``the evidence
set out in
the Starr report would not be prosecuted as
a criminal case
by a responsible federal prosecutor.'' See
Transcript of
``Prosecutorial Standards for Obstruction
of Justice and
Perjury'' Hearing (Dec. 9, 1998); see generally
Minority
Report at 340-47. As Mr. Sullivan emphasized,
``because
perjury and obstruction charges often arise
from private
dealings with few observers, the courts have
required either
two witnesses who testified directly to the
facts
establishing the crime, or, if only one witness
testifies to
the facts constituting the alleged perjury,
that there be
substantial corroborating proof to establish
guilt.'' See
Transcript of ``Prosecutorial Standards for
Obstruction of
Justice and Perjury'' Hearing (Dec. 9, 1998).
The other
prosecutors on the panel agreed. Mr. Richard
J. Davis, who
served as an Assistant United States Attorney
for the
Southern District of New York and as a Task
Force Leader for
the Watergate Special Prosecution Force, testified
that ``it
is virtually unheard of to bring a perjury
prosecution based
solely on the conflicting testimony of two
people.'' Id. A
review of the perjury alleged here thus requires
both careful
scrutiny of the materiality of any alleged
falsehood and
vigilance against conviction merely on an
``oath against an
oath.'' Weiler, 323 U.S. at 609.
b. structure of the allegations
Article I charges that the President
committed perjury when
he testified before the grand jury on August
17, 1998. It
alleges he ``willfully provided perjurious,
false and
misleading testimony to the grand jury concerning
``one or
more of the following: (1) the nature and
details of his
relationship with a subordinate Government
employee; (2)
prior perjurious, false and misleading testimony
he gave in a
Federal civil rights action brought against
him; (3) prior
false and misleading statements he allowed
his attorney