TRIAL OF WILLIAM JEFFERSON CLINTON, PRESIDENT OF THE UNITED STATES
[Continued from page S211]
[Page S212]
legal theory or factual basis which sustains
a defendant's
conviction, a specific unanimity instruction
is required.''
United States v. Jackson, 879 F.2d 85, 88
(3d Cir. 1989)
(citing United States v. Beros, 833 F.2d 455,
460 (3d Cir.
1987)). Such instructions are required where
the government
charges several criminal acts, any of which
alone could have
supported the offense charged, because of
the need to provide
sufficient guidance to assure that all members
of the jury
were unanimous on the same act or acts of
illegality. Id. at
88. As the Seventh Circuit recently concluded
in a case
alleging multiple false statements, ``the
jury should have
been advised that in order to have convicted
[the defendant],
they had to unanimously agree that a particular
statement
contained in the indictment was falsely made.''
Fawley, 137
F.2d at 470.
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Thus, where the charging instrument
alleges multiple types
of wrongdoing, the unanimity requirement ``means
more than a
conclusory agreement that the defendant has
violated the
statute in question; there is a requirement
of substantial
agreement as to the principal factual elements
underlying a
specified offense.'' United States v. Ferris,
719 F.2d 1405,
1407 (9th Cir. 1983) (emphasis added). Accordingly,
although
there need not be unanimity as to every bit
of underlying
evidence, due process ``does require unanimous
agreement as
to the nature of the defendant's violation,
not simply that a
violation has occurred.'' McKoy v. North Carolina,
494 U.S.
433, 449 n.5 (1990) (Blackmun, J., concurring).
Such
agreement is necessary to fulfill the demands
of fairness and
rationality that inform the requirement of
due process. See
Schad, 501 U.S. at 637.\131\
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\131\ In our federal criminal process, a duplicitous
pleading
problem may sometimes be cured by instructions
to the jury
requiring unanimous agreement on a single
statement, see
Fawley, supra, but that option is not present
here. Not only
do the Senate Rules not provide for the equivalent
of jury
instructions, they expressly rule out the
prospect of
subdividing an article of impeachment for
purposes of voting.
See Senate Impeachment Rule XXIII. Nor is
the duplicitousness
problem presented here cured by any specific
enumeration of
elements necessary to be found by the factfinder.
See, e.g.,
Santarpio v. United States, 560 F.2d 448 (1st
Cir. 1977)
(duplicitous charge harmless because indictments
adequately
set out the elements of the federal crime;
appellants were
not misled or prejudiced). Article I does
not enumerate
specific elements to be found by the factfinder.
To the
contrary, the Article combines multiple types
of wrong,
allegedly performed by different types of
statements, the
different types occurring in multiple subject
matter areas,
and all having a range of allegedly harmful
effects.
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Where multiple accusations are
combined in a single charge,
neither the accused nor the factfinder can
know precisely
what that charge means. When the factfinder
body cannot agree
upon the meaning of the charge, it cannot
reach genuine
agreement that conviction is warranted. These
structural
deficiencies preclude a constitutionally sound
vote on the
articles.
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
Impermissibly vague indictments
must be dismissed, because
they ``fail[] to sufficiently apprise the
defendant `of what
he must be prepared to meet.' '' United States
v. Russell,
369 U.S. 749, 764 (1962) (internal quotation
omitted). In
Russell, the indictment at issue failed to
specify the
subject matter about which the defendant had
allegedly
refused to answer questions before a Congressional
subcommittee. Instead, the indictment stated
only that the
questions to which the answers were refused
``were pertinent
to the question then under inquiry'' by the
Subcommittee. Id.
at 752. The Court held that because the indictment
did not
provide sufficient specificity, it was unduly
vague and
therefore had to be dismissed. Id. at 773.
The Supreme Court
explained that dismissal is the only appropriate
remedy for
an unduly vague indictment, because only the
charging body
can elaborate upon vague charges:
``To allow the prosecutor, or the
court, to make a
subsequent guess as to what was in the minds
of the grand
jury at the time they returned the indictment
would deprive
the defendant of a basic protection which
the guaranty of the
intervention of a grand jury was designed
to secure. For a
defendant could then be convicted on the basis
of facts not
found by, and perhaps not even presented to,
the grant jury
which indicted him. This underlying principle
is reflected by
the settled rule in the federal courts that
an indictment may
not be amended except by resubmission to the
grand jury . .
.''
Id. at 771. See also Stirone v. United States,
361 U.S. 212,
216 (1960); see also United States v. Lattimore,
215 F.2d 847
(D.C. Cir. 1954) (perjury count too vague
to be valid cannot
be cured even by bill of particulars); United
States v.
Tonelli, 557 F.2d 194, 200 (3d Cir. 1978)
(vacating perjury
conviction where ``the indictment . . . did
not `set forth
the precise falsehood[s] alleged' '').
Under the relevant case law, the
two exhibited Articles
present paradigmatic examples of charges drafted
too vaguely
to enable the accused to meet the accusations
fairly. More
than a century ago, the Supreme Court stated
that ``[i]t is
an elementary principle of criminal pleading,
that where the
definition of an offence, whether it be at
common law or by
statute, includes generic terms, it is not
sufficient that
the indictment shall charge the offence in
the same generic
terms as in the definition; but it must state
the species--it
must descend to particulars.'' United States
v. Cruikshank,
92 U.S. 542, 558 (1875). The Court has more
recently
emphasized the fundamental ``vice'' of nonspecific
indictments: that they ``fail[] to sufficiently
apprise the
defendant `of what he must be prepared to
meet.' '' Russell,
369 U.S. at 764.
The Supreme Court emphasized in
Russell that specificity is
important not only for the defendant, who
needs particulars
to prepare a defense, but also for the decision-maker,
``so
it may decide whether [the facts] are sufficient
in law to
support a conviction, if one should be had.''
Id. at 768
(internal citation and quotation marks omitted).
An
unspecific indictment creates a ``moving target''
for the
defendant exposing the defendant to a risk
of surprise
through a change in the prosecutor's theory.
``It enables his
conviction to rest on one point and the affirmance
of the
conviction to rest on another. It gives the
prosecution free
hand on appeal to fill in the gaps of proof
by surmise and
conjecture.'' Russell, 369 U.S. at 766. Ultimately,
an
unspecific indictment creates a risk that
``a defendant could
. . . be convicted on the basis of facts not
found by, and
perhaps not even presented to, the grand jury
which indicted
him.'' Id. at 770.
2. The Allegations of Both Articles Are Unconstitutionally
Vague
Article I alleges that in his
August 17, 1998 grand jury
testimony, President Clinton provided ``perjurious,
false and
misleading'' testimony to the grand jury concerning
``one or
more'' of four subject areas. Article I does
not, however,
set forth a single specific statement by the
President upon
which its various allegations are predicated.
The Article
haphazardly intermingles alleged criminal
conduct with
totally lawful conduct, and its abstract generalizations
provide no guidance as to actual alleged perjurious
statements.
Aritcle I thus violates the most
fundamental requirement of
perjury indictments. It is fatally vague in
three distinct
respects: (1) it does not identify any statements
that form
the basis of its allegations,\132\ (2) it
therefore does not
specify which of the President's statements
to the grand jury
were allegedly ``perjurious,'' which were
allegedly
``false,'' and which were allegedly ``misleading,''
and (3)
it does not even specify the subject matter
of any alleged
perjurious statement.
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\132\ One of the cardinal rules of perjury
cases is that
``[a] conviction under 18 U.S.C. Sec. 1623
may not stand
where the indictment fails to set forth the
precise falsehood
alleged and the factual basis of its falsity
with sufficient
clarity to permit a jury to determine its
verity and to allow
meaningful judicial review of the materiality
of those
falsehoods.'' United States v. Slawik, 548
F.2d 75, 83-84 (3d
Cir. 1977). Courts have vacated convictions
for perjury in
instances where ``the indictment . . . did
not `set forth the
precise falsehood(s) alleged.'' Tonelli, 577
F.2d at 200.
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The first defect is fatal, because
it is axiomatic that if
the precise perjurious statements are not
identified in the
indictment, a defendant cannot possibly prepare
his defense
properly. See, e.g., Slawik, 548 F.2d 75,
83-84 (3d Cir.
1977). Indeed, in past impeachment trails
in the Senate where
articles of impeachment alleged the making
of false
statements, the false statements were specified
in the
Articles. For example, in the impeachment
trial of Alcee L.
Hastings, Articles of Impeachment II-XIV specified
the exact
statements that formed the bases of the false
statement
allegations against Judge Hastings.\133\ Similarly,
in the
impeachment trial of Walter L. Nixon, Jr.,
Articles of
Impeachment I-III specified the exact statements
that formed
the bases of their false statement allegations.\134\
In this
case, Article I falls far short of specificity
standards
provided in previous impeachment trials in
the Senate.
---------------------------------------------------------------------------
\133\ Proceedings of the United States Senate
in the
Impeachment Trial Alcee L. Hastings, 101st
Cong., 1st. Sess.,
S. Doc. 101-18 at 4-7 (1989). See, e.g., Id.
at 2 (Article II
alleging that the false statement was ``that
Judge Hastings
and Wiliam Borders, of Washington, D.C., never
made any
agreement to solicit a bribe from defendants
in United States
v. Romano, a case tried before Judge Hastings'').
\134\ Proceedings of the United States Senate
in the
Impeachment Trial of Walter L. Nixon, Jr.,
101st Cong., 1st
Sess., S. Doc. 101-22 at 430-32 (1989). See,
e.g., Id., at
432 (Article I alleging that the false statement
was
``Forrest County District Attorney Paul Holmes
never
discussed the Drew Fairchild case with Judge
Nixon.'').
---------------------------------------------------------------------------
As to the second vagueness defect,
there is a significant
legal difference between, on the one hand,
statements under
oath which are ``perjurious,'' and those,
on the other hand,
which are simply ``false'' or misleading.''
Only the former
could form the basis of a criminal charge.
The Supreme Court
has emphatically held that ``misleading''
statements alone
cannot form the basis of a prejury charge.
In Bronston v.
United States, 409 U.S. 352 (1973), the Court
held that
literally true statements are by definition
non-perjurious,
and ``it is no answer to say that here the
jury found that
[the defendant] intended to mislead his examiner,''
since
``[a] jury should not be permitted to enage
in conjecture
whether an unresponsive answer. . . was intended
to mislead
or divert the examiner.'' Id. at 358-60 (emphasis
added). The
Court emphasized that ``the perjury statute
is not to be
loosely construed, nor the statue invoked
simply because a
wily witness succeeds in derailing the questioner
so long as
the witness speakes the literal truth.'' Id.
Thus,
specification of the exact statements alleged
to be
prejurious is required, because ``to hold
otherwise would
permit the trial jury to inject its inferences
into the grand
jury's indictment, and would allow defendants
to be convicted
for immaterial falsehoods or for `intent to
mislead' or
`perjury by implication,' which Bronston specifically
prohibited.'' Slawik, 538 F.2d at 83-84 (emphasis
added).
Thus, if the House meant that certain statements
were
misleading but literally truthful, they might
be subject to a
[Page S213]
motion to dismiss on the ground that the offense
was not
impeachable.
The same is true for allegedly
``false'' answers, because
it is clear that mere ``false'' answers given
under oath,
without more, are not criminal. 18 U.S.C.
Sec. 1623, the
statute proscribing perjury before a federal
grand jury,
requires additional elements beyond falsity,
including the
defendant's specific intent to testify falsely
and the
statement's materiality to the proceeding.
A defense to a
perjury charge is therefore tied directly
to the specific
statement alleged to have been perjurious.
Did the defendant
know the particular answer was false? Was
it material? \135\
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\135\ Not surprisingly, courts have specifically
held that
because of these additional elements (the
lack of which may
undermine a perjury prosecution), a defendant
must know
exactly which statements are alleged to form
the basis of a
perjury indictment to test whether the requisite
elements are
present. See, e.g., United States v. Lattimore,
215 F.2d 847,
850 (D.C. Cir. 1954) (``The accused is entitled
under the
Constitution to be advised as to every element
in respect to
which it is necessary for him to prepare a
defense''). For
example, because of the intent requirement,
one potential
defense to a perjury prosecution is that the
question to
which the allegedly perjurious statement was
addressed was
fundamentally ambiguous, as courts have held
that
fundamentally ambiguous questions cannot as
a matter of law
produce perjurious answers. See, e.g., Tonelli,
577 F.2d at
199; United States v. Wall, 371 F.2d 398 (6th
Cir. 1967). A
separate defense to a perjury prosecution
is that the
statement alleged to have been perjurious
was not material to
the proceeding. Thus, ``false'' statements
alone are not
perjurious if they were not material to the
proceeding. By
not specifying which statements are alleged
to be ``false''
or ``misleading,'' Article I precludes the
President from
preparing a materiality defense, and it also
fails to
distinguish allegedly criminal conduct from
purely lawful
conduct. As one court explained,
``It is to be observed that * * * it is not
sufficient to
constitute the offense that the oath shall
be merely false,
but that it must be false in some `material
matter.' Applying
that definition to the facts stated in either
count of this
indictment, and it would seem that there is
an entire lack in
any essential sense to disclose that the particulars
as to
which the oath is alleged to have been false
were material in
the essential sense required for purposes
of an indictment
for this offense.'' (United States v. Cameron,
282 F. 684,
692 (D. Ariz. 1922).).
---------------------------------------------------------------------------
Article I's third vagueness defect
is that it does not
specify the subject matter of the alleged
perjurious
statements. Instead, it simply alleges that
the unspecified
statements by the President to the grand jury
were concerning
``one or more'' of four enumerated areas.
The ``one or more''
language underscores the reality that the
President--and,
critically, the Senate--cannot possibly know
what the House
majority had in mind, since it may have failed
even to agree
on the subject matter of the alleged perjury.
The paramount
importance of this issue may be seen by reference
to court
decisions holding that a jury has to ``unanimously
agree that
a particular statement contained in the indictment
was
falsely made.'' United States v. Fawley, 137
F.3d 458, 471
(7th Cir. 1998) (emphasis added); see also
discussion of
unanimity requirement in Section VI.B, supra.
Article II is also unconstitutionally
vague. It alleges
that the President ``obstructed and impeded
the
administration of justice * * * in a course
of conduct or
scheme designed to delay, impede, cover up
and conceal''
unspecified evidence and testimony in the
Jones case. It sets
forth seven instances in which the President
allegedly
``encouraged'' false testimony or the concealment
of
evidence, or ``corruptly influenced'' or ``corruptly
prevented'' various other testimony, also
unspecified. In
fact, not only does Article II fail to identify
a single
specific act performed by the President in
this alleged
scheme to obstruct justice, it does not even
identify the
``potential witnesses'' whose testimony the
President
allegedly sought to ``corruptly influence.''
The President cannot properly
defend against Article II
without knowing, at a minimum, which specific
acts of
obstruction and/or concealment he is alleged
to have
performed, and which ``potential witnesses''
he is alleged to
have attempted to influence. For example,
it is clear that,
in order to violate the federal omnibus obstruction
of
justice statute, 18 U.S.C. Sec. 1503, an accuser
must prove
that there was a pending judicial proceeding,
that the
defendant knew of the proceeding, and that
the defendant
acted ``corruptly'' with the specific intent
to obstruct or
interfere with the proceeding or due administration
of
justice. See, e.g., United States v. Bucey,
876 F.2d 1297,
1314 (7th Cir. 1989); United States v. Smith,
729 F. Supp.
1380, 1383-84 (D.D.C. 1990). Without knowing
which
``potential witnesses'' he is alleged to have
attempted to
influence, and the precise manner in which
he is alleged to
have attempted to obstruct justice, the President
cannot
prepare a defense that would address the elements
of the
offense with which he has been charged--that
he had no intent
to obstruct, that there was no pending proceeding,
or that
the person involved was not a potential witness.
It follows that the requisite
vote of two-thirds of the
Senate required by the Constitution cannot
possibly be
obtained if there are no specific statements
whatsoever
alleged to be perjurious, false or misleading
in Article I or
no specific acts of obstruction alleged in
Article II.
Different Senators might decide that different
statements or
different acts were unlawful without any concurrence
by two-
thirds of the Senate as to any particular
statement or act.
Such a scenario is antithetical to the Constitution's
due
process guarantee of notice of specific and
definite charges
and it threatens conviction upon vague and
uncertain grounds.
As currently framed, neither Article I nor
Article II
provides a sufficient basis for the President
to prepare a
defense to the unspecified charges upon which
the Senate may
vote, or an adequate basis for actual adjudication.
D. The Senate's Judgment Will Be Final and That Judgment Must
Speak
Clearly and Intelligibly
An American impeachment trial is
not a parliamentary
inquiry into fitness for office. It is not
a vote of no
confidence. It is not a mechanism whereby
a legislative
majority may oust a President from a rival
party on political
grounds. To the contrary, because the President
has a limited
term of office and can be turned out in the
course of
ordinary electoral processes, a Presidential
impeachment
trial is a constitutional measure of last
resort designed to
protect the Republic.
This Senate is therefore vested
with an extremely grave
Constitutional task: a decision whether to
remove the
President for the protection of the people
themselves. In the
Senate's hands there rests not only the fate
of one man, but
the integrity of our Constitution and our
democratic process.
Fidelity to the Constitution and
fidelity to the electorate
must converge in the impeachment trial vote.
If the Senate is
to give meaning to the Constitution's command,
any vote on
removal must be a vote on one or more specifically
and
separately identified ``high Crimes and Misdemeanors,''
as
set forth in properly drafted impeachment
articles approved
by the House. If the people are to have their
twice-elected
President removed by an act of the Senate,
that act must be
intelligible. It must be explainable and justifiable
to the
people who first chose the President and then
chose him
again. The Senate must ensure that it has
satisfied the
Constitution's requirement of a genuine two-thirds
concurrence that specific, identified wrongdoing
has been
proven. The Senate must also assure the people,
through the
sole collective act the Senate is required
to take, that its
decision has a readily discernible and unequivocal
meaning.
As matters stand, the Senate will
vote on two highly
complex Articles of Impeachment. Its vote
will not be shaped
by narrowing instructions. Its rules preclude
a vote on
divisible parts of the articles. There will
be no judicial
review, no correction of error, and no possibility
of
retrial. The Senate's decision will be as
conclusive as any
known to our law--judicially, politically,
historically, and
most literally, irrevocable.
Under such circumstances, the
Senate's judgment must speak
clearly and intelligibly. That cannot happen
if the Senate
votes for conviction on these articles. Their
compound
structure and lack of specificity make genuine
agreement as
to specific wrongs impossible, and those factors
completely
prevent the electorate from understanding
why the Senate as a
whole voted as it did. As formulated, these
articles satisfy
neither the plain requirement of the Constitution
nor the
rightful expectations of the American people.
The articles
cannot support a constitutionally sound vote
for conviction.
VII. The Need for Discovery
The Senate need not address the
issue of discovery at this
time, but because the issue may arise at a
later date, it is
appropriate to remark here on its present
status. Senate
Resolution 16 provides that the record for
purposes of the
presentation by the House Managers and the
President is the
public record established in the House of
Representatives.\136\ Since this record was
created by the
House itself and is ostensibly the basis for
the House's
impeachment vote, and because this evidence
has been publicly
identified and available for scrutiny, comment,
and rebuttal,
it is both logical and fair that this be the
basis for any
action by the Senate. Moreover, Senate Resolution
16
explicitly prohibits the President and the
House Managers
from filing at this time any ``motions to
subpoena witnesses
or to present any evidence not in the record.''
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\136\ S. Res. 16 defined the record for the
presentations as
``those publicly available materials that
have been submitted
to or produced by the House Judiciary Committee,
including
transcripts of public hearings or mark-ups
and any materials
printed by the House of Representatives or
House Judiciary
Committee pursuant to House Resolutions 525
and 581.''
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In the event, however, that the
Senate should later decide,
pursuant to the provisions of Senate Resolution
16, to allow
the House Managers to expand the record in
some way, our
position should be absolutely clear. At such
time, the
President would have an urgent need for the
discovery of
relevant evidence, because at no point in
these proceedings
has he been able to subpoena documents or
summon and cross-
examine witnesses. He would need to use the
compulsory
process authorized by Senate Impeachment Rules
V and VI\137\
to obtain documentary evidence and witness
depositions. While
the President has access to some of the grand
jury
transcripts and FBI interview memoranda of
witnesses called
by the OIC, the President's own lawyers were
not entitled to
be present when these witnesses were examined.
The grand jury
has historically been the engine of the prosecution,
and it
was used in that fashion in this case. The
OIC sought
discovery of evidence with the single goal
of documenting
facts that it believed were prejudicial to
the President. It
did not examine witnesses with a view toward
establishing
there was no justification for impeachment;
it did not follow
up obvious leads when they might result in
evidence helpful
to the President; and it did not seek out
and document
exculpatory evidence. It did not undertake
to disclose
exculpatory information it might have identified.
---------------------------------------------------------------------------
\137\ Rules of Procedure and Practice in the
Senate When
Sitting on Impeachment Trials (Senate Manual
99-2, as revised
by S. Res. 479 (Aug. 16, 1986)). There is
ample precedent for
liberal discovery in Senate impeachment trials.
For example,
in the trial of Judge Alcee Hastings, the
Senate issued
numerous orders addressing a range of pretrial
issues over
several months including:
* requiring the parties to provide witness
lists along
with a description of the general nature of
the testimony
that was expected from each witness months
in advance of the
scheduled evidentiary hearing;
* requiring the House Managers to turn over
exculpatory materials, certain prior statements
of witnesses,
and documents and other tangible evidence
they intended to
introduce into evidence;
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[Page S214]
* requiring the production from the House Managers
of
other documents in the interest of allowing
the Senate to
develop ``a record that fully illuminates
the matters that it
must consider in rendering a judgment;''
* setting a briefing schedule for stipulations
of
facts and documents;
* setting a number of pretrial conferences;
* designating a date for final pretrial statements;
and
* permitting a number of pre-trial depositions.
* Report of the Senate Impeachment Trial Committee
on
the Articles of Impeachment Against Judge
Alcee L. Hastings,
Hearings Before the Senate Impeachment Trial
Committee, 101st
Cong. 1st Sess. at 281, 286-87, 342-43, 606-07,
740.
The need for discovery in this case is in
fact greater than
in prior impeachment proceedings. In all other
impeachment
trials, there were either substantive investigations
by the
House or prior judicial proceedings in which
the accused had
a full opportunity to develop the evidentiary
record and
cross-examine witnesses. See Id. at 163-64
(pretrial
memorandum of Judge Hastings).
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Nor did the House of Representatives
afford the President
any discovery mechanisms to secure evidence
that might be
helpful in his defense. Indeed, the House
called no fact
witnesses at all, and at the few depositions
it conducted,
counsel for the President were excluded. Moreover,
the House
made available only a selected portion of
the evidence it
received from the OIC. While it published
five volumes of the
OIC materials (two volumes of appendices and
three volumes of
supplements), it withheld a great amount of
evidence, and it
denied counsel for the President access to
this material. It
is unclear what the criterion was for selecting
evidence to
include in the published volumes, but there
does not appear
to have been an attempt to include all evidence
that may have
been relevant to the President's defense.
The President has
not had access to a great deal of evidence
in the possession
of (for example) the House of Representatives
and the OIC
which may be exculpatory or relevant to the
credibility of
witnesses on whom the OIC and the House Managers
rely.
Should the Senate decide to authorize
the House Managers to
call witnesses or expand the record, the President
would be
faced with a critical need for the discovery
of evidence
useful to his defense--evidence which would
routinely be
available to any civil litigant involved in
a garden-variety
automobile accident case. The House Managers
have had in
their possession or had access at the OIC
to significant
amounts of non-public evidence, and they have
frequently
stated their intention to make use of such
evidence.
Obviously, in order to defend against such
tactics, counsel
for the President are entitled to discovery
and a fair
opportunity to test the veracity and reliability
of this
``evidence,'' using compulsory process as
necessary to obtain
testimony and documents. Trial by surprise
obviously has no
place in the Senate of the United States where
the issues in
the balance is the removal of the one political
leader who,
with the Vice-President, is elected by all
the citizens of
this country.\138\
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\138\ In another context, the Supreme Court
has observed that
``the ends of justice will best be served
by a system of
liberal discovery which gives both parties
the maximum
possible amount of information from which
to prepare their
cases and thereby reduces the possibility
of surprise at
trial.'' Wardius v. Oregon, 412 U.S. 470,
473 (1973).
---------------------------------------------------------------------------
The need for discovery does not
turn on the number of
witnesses the House Managers may be authorized
to
depose.\139\ If the House Managers call a
single witness,
that will initiate a process that leaves the
President
potentially unprepared and unable to defend
adequately
without proper discovery. The sequence of
discovery is
critical. The President first needs to obtain
and review
relevant documentary evidence not now in his
possession. He
then needs to be able to depose potentially
helpful
witnesses, whose identity may only emerge
from the documents
and from the depositions themselves. Obviously,
he also needs
to depose potential witnesses identified by
the House
Managers. Only at that point will the President
be able
intelligently to designate his own trial witnesses.
This is
both a logical procedure and one which is
the product of long
experience designed to maximize the search
for truth and
minimize unfair surprise. There is no conceivable
reason it
should not be followed here--if the evidentiary
record is
opened.
---------------------------------------------------------------------------
\139\ It is not sufficient that counsel for
the President
have the right to depose the witnesses called
by the
Managers, essential as that right is. The
testimony of a
single witness may have to be refuted indirectly,
circumstantially, or by a number of witnesses;
it is often
necessary to depose several witnesses in order
to identify
the one or two best.
---------------------------------------------------------------------------
Indeed, it is simply impossible
to ascertain how a witness
designated by the House Managers could fairly
be rebutted
without a full examination of the available
evidence. It is
also the case that many sorts of helpful evidence
and
testimony emerge in the discovery process
that may at first
blush appear irrelevant or tangential. In
any event, the
normal adversarial process is the best guarantor
of the
truth. The President needs discovery here
not simply to
obtain evidence to present a trial but also
in order to make
an informed judgment about what to introduce
in response to
the Managers' expanded case. The President's
counsel must be
able to make a properly knowledgeable decision
about what
evidence may be relevant and helpful to the
President's
defense, both in cross-examination and during
the President's
own case.
The consequences of an impeachment
trial are immeasurably
grave: The removal of a twice-elected President.
Particularly
given what is at stake, fundamental fairness
dictates that
the President be given at least the same right
as an ordinary
litigant to obtain evidence necessary for
his defense,
particularly when a great deal of that evidence
is presently
in the hands of his accusers, the OIC and
the House Managers.
The Senate has wisely elected to proceed on
the public record
established by the House of Representatives,
and this
provides a wholly adequate basis for Senate
decision-making.
In the event the Senate should choose to expand
this record,
affording the President adequate discovery
is absolutely
essential.
VIII. Conclusion
As the Senate considers these Articles
of Impeachment and
listens to the arguments, individual Senators
are standing in
the place of the Framers of the Constitution,
who prayed that
the power of impeachment and removal of a
President would be
invoked only in the gravest of circumstances,
when the
stability of our system of government hung
in the balance--to
protect the Republic itself from efforts to
subvert our
Constitutional system.
The Senate has an obligation to
turn away an unwise and
unwarranted misuse of the awesome power of
impeachment. If
the Senate removes this President for a wrongful
relationship
he hoped to keep private, for what will the
House ask the
Senate to remove the next President, and the
next? Our
Framers wisely gave us a constitutional system
of checks and
balances, with three co-equal branches. Removing
this
President on these facts would substantially
alter the
delicate constitutional balance, and move
us closer to a
quasi-parliamentary system, in which the President
is elected
to office by the choice of people, but continues
in office
only at the pleasure of Congress.
In weighing the evidence and assessing
the facts, we ask
that Senators consider not only the intent
of the Framers but
also the will and interests of the people.
It is the citizens
of these United States who will be affected
by and stand in
judgment of this process. It is not simply
the President--but
the vote the American people rendered in schools,
church
halls and other civic centers all across the
land twenty-six
months ago--that is hanging in the balance.
Respectfully submitted.
David E. Kendall
Charles F.C. Ruff
Nicole K. Seligman
Gregory B. Craig
Emmet T. Flood
Bruce R. Lindsey
Max Stier
Cheryl D. Mills
Alicia L. Marti
Lanny A. Breuer
Williams & Connolly
Office of the White House Counsel
725 12th Street, N.W.
The White House
Washington, D.C. 20005
Washington, D.C. 20502
January 13, 1999.
____
[In the Senate of the United States Sitting as a Court of Impeachment]
In re Impeachment of President William Jefferson Clinton
REPLICATION OF THE HOUSE OF REPRESENTATIVES TO THE ANSWER OF PRESIDENT
WILLIAM JEFFERSON CLINTON
TO THE ARTICLES OF IMPEACHMENT
The House of Representatives, through
its Managers and
counsel, replies to the Answer of President
William Jefferson
Clinton to the Articles of Impeachment (``Answer''),
as
follows:
Preamble
The House of Representatives denies
each and every material
allegation in the Preamble to the Answer,
including the
sections entitled ``The Charges in the Articles
Do Not
Constitute High Crimes or Misdemeanors'' and
``The President
Did Not Commit Perjury or Obstruct Justice.''
With respect to
the allegations in the Preamble, the House
of Representatives
further states that each and every allegation
in Articles I
and II is true and that Articles I and II
properly state
impeachable offenses, are not subject to a
motion to dismiss,
and should be considered and adjudicated by
the Senate
sitting as a Court of Impeachment.
Article I
The House of Representatives denies
each and every
allegation in the Answer to Article I that
denies the acts,
knowledge, intent, or wrongful conduct charged
against
President William Jefferson Clinton. With
respect to the
allegations in the Answer to Article I, the
House of
Representatives further states that each and
every allegation
in Article I is true and that Article I properly
states an
impeachable offense, is not subject to a motion
to dismiss,
and should be considered and adjudicated by
the Senate
sitting as a Court of Impeachment.
[Page S215]
First Affirmative Defense to Article I
The House of Representatives denies
each and every material
allegation in this purported defense. The
House of
Representatives further states that Article
I properly states
an impeachable offense, is not subject to
a motion to
dismiss, and should be considered and adjudicated
by the
Senate sitting as a Court of Impeachment.
The House of
Representatives further states that the offense
stated in
Article I warrants the conviction, removal
from office, and
disqualification from holding further office
of President
William Jefferson Clinton.
Second Affirmative Defense to Article I
The House of Representatives denies
each and every material
allegation in this purported defense. The
House of
Representatives further states that Article
I properly states
an impeachable offense, is not subject to
a motion to
dismiss, and should be considered and adjudicated
by the
Senate sitting as a Court of Impeachment.
The House of
Representatives further states that Article
I is not
unconstitutionally vague, and it provides
President William
Jefferson Clinton adequate notice of the offense
charged
against him.
Third Affirmative Defense to Article I
The House of Representatives denies
each and every material
allegation in this purported defense. The
House of
Representatives further states that Article
I properly states
an impeachable offense, is not subject to
a motion to
dismiss, and should be considered and adjudicated
by the
Senate sitting as a Court of Impeachment.
The House of
Representatives further states that Article
I does not charge
multiple offenses in one article.
Article II
The House of Representatives denies
each and every
allegation in the Answer to Article II that
denies the acts,
knowledge, intent, or wrongful conduct charged
against
President William Jefferson Clinton. With
respect to the
allegations in the Answer to Article II, the
House of
Representatives further states that each and
every allegation
in Article II is true and that Article II
properly states an
impeachable offense, is not subject to a motion
to dismiss,
and should be considered and adjudicated by
the Senate
sitting as a Court of Impeachment.
First Affirmative Defense to Article II
The House of Representatives denies
each and every material
allegation in this purported defense. The
House of
Representatives further states that Article
II properly
states an impeachable offense, is not subject
to a motion to
dismiss, and should be considered and adjudicated
by the
Senate sitting as a Court of Impeachment.
The House of
Representatives further states that the offense
stated in
Article II warrants the conviction, removal
from office, and
disqualification from holding further office
of President
William Jefferson Clinton.
Second Affirmative Defense to Article II
The House of Representatives denies
each and every material
allegation in this purported defense. The
House of
Representatives further states that Article
II properly
states an impeachable offense, is not subject
to a motion to
dismiss, and should be considered and adjudicated
by the
Senate sitting as a Court of Impeachment.
The House of
Representatives further states that Article
II is not
unconstitutionally vague, and it provides
President William
Jefferson Clinton adequate notice of the offense
charged
against him.
Third Affirmative Defense to Article II
The House of Representatives denies
each and every material
allegation in this purported defense. The
House of
Representatives further states that Article
II properly
states an impeachable offense, is not subject
to a motion to
dismiss, and should be considered and adjudicated
by the
Senate sitting as a Court of Impeachment.
The House of
Representatives further states that Article
II does not
charge multiple offenses in one article.
Conclusion of the House of Representatives
The House of Representatives further
states that it denies
each and every material allegation of the
Answer not
specifically admitted in this Replication.
By providing this
Replication to the Answer, the House of Representatives
waives none of its rights in this proceeding.
Wherefore, the
House of Representatives states that both
of the Articles of
Impeachment warrant the conviction, removal
from office, and
disqualification from holding further office
of President
William Jefferson Clinton. Both of the Articles
should be
considered and adjudicated by the Senate.
Respectfully submitted,
The United States House of Representatives.
Henry J. Hyde,
F. James Sensenbrenner, Jr.,
Bill McCollum,
George W. Gekas,
Charles T. Canady,
Stephen E. Buyer,
Ed Bryant,
Steve Chabot,
Bob Barr,
Asa Hutchinson,
Chris Cannon,
James E. Rogan,
Lindsey O. Graham,
Managers on the Part of the House.
Thomas E. Mooney,
General Counsel.
David P. Schippers,
Chief Investigative Counsel.
____
[In the Senate of the United States Sitting as a Court of Impeachment]
In re Impeachment of President William Jefferson Clinton
REPLY OF THE UNITED STATES HOUSE OF REPRESENTATIVES TO
THE TRIAL
MEMORANDUM
OF PRESIDENT WILLIAM JEFFERSON CLINTON
I. Introduction
The President's Trial Memorandum
contains numerous factual
inaccuracies and misstatements of the governing
law and the
Senate's precedents. These errors have largely
been addressed
in the Trial Memorandum of the House of Representatives
filed
with the Senate on January 11, 1999, and given
the 24-hour
period to file this reply, the House cannot
possibly address
them all here. The House of Representatives
will address them
further in its oral presentation to the Senate,
and it
reserves the right to address these matters
further in the
briefing of any relevant motions. However,
President Clinton
has raised some new issues in his Trial Memorandum,
and the
House of Representatives hereby replies to
those issues.
II. Facts
The President's Trial Memorandum
outlines what he claims
are facts showing that he did not commit perjury
before the
grand jury and did not obstruct justice. The
factual issues
President Clinton raises are addressed in
detail in the Trial
Memorandum of the House.
A complete and impartial review
of the evidence reveals
that the President did in fact commit perjury
before the
grand jury and that he obstructed justice
during the Jones
litigation and the grand jury investigation
as alleged in the
articles of impeachment passed by the House
of
Representatives. The House believes a review
of the complete
record, including the full grand jury and
deposition
testimony of the key witnesses in this case,
will establish
that.
The evidence which President Clinton
claims demonstrates
that he did not commit the offenses outlined
in the Articles
of Impeachment are cited in Sections IV and
V of his
Memorandum. Regarding Article I, President
Clinton maintains
that his testimony before the grand jury was
entirely
truthful. At the outset of his argument, he
states that he
told the truth about the nature and details
of his
relationship with Ms. Lewinsky, and he insists
that any false
impressions that his deposition testimony
might have created
were remedied by his admission of ``improper
intimate
contact'' with Ms. Lewinsky. However, his
subsequent
testimony demonstrates that this admission
is narrowly
tailored to mean that Ms. Lewinsky had ``sexual
relations''
with him, but he did not have ``sexual relations''
with her,
as he understood the term to be defined. In
other words, he
admitted only what he knew could be conclusively
established
through scientific tests. He denied what the
testimony of Ms.
Lewinsky, the testimony of a number of her
confidantes, and
common sense proves: that while she engaged
in sexual
relations with him, he engaged in sexual relations
with her,
regardless of how President Clinton attempts
to redefine the
term.
Following this pattern, President
Clinton discounts
substantial evidence as well as common sense
when he
maintains that he testified truthfully in
the grand jury
about, among other things, his prior deposition
testimony,
his attorney's statements to Judge Wright
during his
deposition, and his intent in providing a
series of false
statements to his secretary after his deposition.
Again, a
complete review of the record and witness
testimony reveals
that President Clinton committed perjury numerous
times in
his grand jury testimony.
In regard to Article II, President
Clinton extracts
numerous items of evidence from the record
and analyzes them
in isolation in an effort to provide innocent
explanations
for the substantial amount of circumstantial
evidence proving
his guilt. Yet when the record is viewed in
its entirely,
including the portions of President Clinton's
deposition
testimony concerning Ms. Lewinsky and his
grant jury
testimony, it demonstrates that President
Clinton took a
number of actions designed to prevent Paula
Jones's
attorneys, the federal district court, and
a federal grand
jury from learning the truth. These actions
are described in
detail in the Trial Memorandum of the House.
To the extent that President Clinton's
Trial Memorandum
raises issues of credibility, those issues
are best resolved
by live testimony subject to cross-examination.
The Senate,
weighing the evidence in its entirety, will
make an
independent assessment of the facts as they
are presented,
and a detailed, point-by-point argument of
these matters is
best resolved on the Senate floor. The House
is confident
that a thorough factual analysis will not
only refute
President Clinton's contentions, but will
prove the very
serious charges contained in the articles.
[Page S216]
III. The
Articles Properly State Removal Offenses
A. The Offenses Alleged Are High Crimes And Misdemeanors
1. The Senate Has Never Exercised Its Power
To Dismiss an
Article of Impeachment
Except When the Official Impeached
Has Resigned
The House acknowledges that the
Senate has the power to
dismiss an article of impeachment on the ground
that it does
not state a removable offense. Beyond that,
however,
President Clinton completely ignores the Senate's
precedents
concerning the use of that power. In the fifteen
cases in
which the House has forwarded articles of
impeachment to
the Senate, the Senate has never granted a
dispositive
motion to preclude a trial on the articles
with one
exception. In the 1926 case of Judge George
English, the
Senate granted a motion to adjourn after Judge
English
resigned from office making a trial moot on
the issue of
removal. See Impeachment of George W. English,
U.S.
District Judge, Eastern District of Illinois,
68 Cong.
Rec. 347-48 (1926). The Senate also granted
a motion to
adjourn in the 1868 trial of President Andrew
Johnson, but
only after a full trial and votes to acquit
on three
articles. III Cannon's Precedents of the House
of
Representatives Sec. 2443.
In addition, the Senate has never
granted a motion to
dismiss or strike an article of impeachment.
However, in the
1936 case of Judge Halsted Ritter, the House
managers
themselves moved to strike two counts of a
multi-count
article to simplify the trial, and the motion
was granted. 80
Cong. Rec. 4898-99 (April 3, 1936). However,
the remainder of
the article was fully considered, and Judge
Ritter was
convicted on that article. The House managers
in the 1986
Judge Harry Claiborne case made the only motion
for summary
judgment in the history of impeachment. Hearings
of the
Senate Impeachment Trial Committee (Judge
Harry Claiborne),
99th Cong., 2d Sess. 145 (1986). They did
so on the basis
that Judge Claiborne had already been convicted
of the
charges in a criminal trial. Id. The Senate
postponed a
decision on the motion and never ruled on
it, but it
ultimately convicted Judge Claiborne. In short,
the Senate
precedents firmly establish that the Senate
has always
fulfilled its responsibility to give a full
and fair hearing
to articles of impeachment voted by the House
of
Representatives.
2. The Constitutional Text Sets One Clear
Standard for
Removal
a. There is Only One Impeachment
Standard
The Constitution sets one clear
standard for impeachment,
conviction, and removal from office: the commission
of
``Treason, Bribery, or other high Crimes and
Misdemeanors.''
U.S. Const. art. II, Sec. 4. The Senate has
repeatedly
determined that perjury is a high crime and
misdemeanor.
Simple logic dictates that obstruction of
justice which has
the same effect as perjury and bribery of
witnesses must also
be a high crime and misdemeanor. Endless repetition
of the
claim that this standard is a high one does
not change the
standard.
President Clinton claims that
to remove him on these
articles would permanently disfigure and diminish
the
Presidency and mangle the system of checks
and balances.
President's Trial Memorandum at 18. Quite
the contrary,
however, it is President Clinton's behavior
as set forth in
the articles that has had these effects. Essentially,
President Clinton argues that the Presidency
and the system
of checks and balances can only be saved if
we allow the
President to commit felonies with impunity.
To state that
proposition is to refute it. Convicting him
and thereby
reaffirming that criminal behavior that strikes
at the heart
of the justice system will result in removal
will serve to
strengthen the Presidency, not weaken it.
b. Impeachment and Removal Are
Appropriate for High Crimes
and Misdemeanors
Regardless of Whether They Are
Offenses
Against the System of Government
President Clinton argues that
impeachment may only be used
to redress wrongful public misconduct. The
point is academic.
Perjury and obstruction of justice as set
forth in the
articles are, by definition, public misconduct.
See generally
House Trial Memorandum at 107-12. Indeed,
it is precisely
their public nature that makes them offenses--acts
that are
not crimes when committed outside the judicial
realm become
crimes when they enter that realm. Lying to
one's spouse
about an extramarital affair, although immoral,
is not a
crime. Telling the same lie under oath in
a judicial
proceeding is a crime. Hiding gifts given
to an adulterous
lover to conceal the affair, although immoral,
is not a
crime. When those gifts become potential evidence
in a
judicial proceeding, the same act becomes
a crime. One who
has committed these kinds of crimes that corrupt
the judicial
system simply is not fit to serve as the nation's
chief law
enforcement officer.
Apart from that, the notion that
high crimes and
misdemeanors encompass only public misconduct
will not bear
scrutiny. Numerous ``private'' crimes would
obviously require
the removal of a President. For example, if
he killed his
wife in a domestic dispute or molested a child,
no one would
seriously argue that he could not be removed.
All of these
acts violate the President's unique responsibility
to take
care that the laws be faithfully executed.
3. President Clinton Cites Precedents That
Do Not Apply
Rather Than Relying
on the Senate's Own Precedents
Clearly Establishing
Perjury as a Removable Offense
a. President Clinton Continues
To Misrepresent the
Fraudulent
Tax Return Allegation Against President
Nixon
In his trial memorandum, President
Clinton argues that the
failure in 1974 of the House Judiciary Committee
to adopt an
article of impeachment against President Nixon
for tax fraud
supports the claim that current charges against
President
Clinton do not rise to the level of impeachable
and removable
offenses. President's Trial Memorandum at
21. The President's
lawyers acknowledge the charge in the article
against
President Nixon of ``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.'' Id. The President's lawyers go on to
state that
``[t]he President had signed his returns for
those years
under penalty of perjury,'' Id., trying to
distinguish
away the Claiborne impeachment and removal
precedent from
1986, and by extension all the judicial impeachments
from
the 1980s which clearly establish perjury
as an
impeachable and removable offense.
President Clinton's argument that
a President was not and
should not be impeached for tax fraud because
it does not
involve official conduct or abuse of presidential
powers
simply is unfounded based on the 1974 impeachment
proceedings
against President Nixon. Moreover, the fact
that the
President and his lawyers make this argument
in defense of
the President is telling. He effectively claims
that a large
scale tax cheat could be a viable chief executive.
It is undisputed that the Judiciary
Committee rejected the
proposed tax fraud article against President
Nixon by a vote
of 26 to 12. A slim minority of Committee
members stated the
view that tax fraud would not be an impeachable
offense. That
minority view is illustrated by the comments
of Rep. Waldie
that in the tax fraud article there was ``not
an abuse of
power sufficient to warrant impeachment. .
. .'' Debate on
Article of Impeachment 1974: Hearings of the
Comm. on the
Judiciary Pursuant H. Res. 803, 93rd Cong.,
2nd Sess., at 548
(1974) (Statement of Rep. Waldie). Similar
views were
expressed by Rep. Hogan and Rep. Mayne. Rep.
Railsback took
the position that there was ``a serious question,''
id. at
524 (Statement of Rep. Railsback), whether
misconduct of the
President in connection with his taxes would
be impeachable.
Other members who opposed the
tax fraud article based their
opposition on somewhat different grounds.
Rep. Thornton based
his opposition to the tax fraud article on
the ``view that
these charges may be reached in due course
in the regular
process of law.'' Id. at 549 (Statement of
Rep. Thornton).
Rep. Butler stated his view that the tax fraud
article should
be rejected on prudential grounds: ``Sound
judgment would
indicate that we not add this article to the
trial burden we
already have.'' Id. at 550 (Statement of Rep.
Butler).
The record is clear, however,
that the overwhelming
majority of those who expressed a view in
the debate in
opposition to the tax fraud article based
their opposition on
the insufficiency of the evidence, and not
on the view that
tax fraud, if proven, would not be an impeachable
offense.
The comments of then-Rep. Wayne
Owens in the debate in 1974
directly contradict the view that Mr. Owens
has expressed in
recent testimony before the House Judiciary
Committee.
Although Mr. Owens in 1974 expressed his ``belief''
that
President Nixon was guilty of misconduct in
connection with
his taxes, he clearly stated his conclusion
that ``on the
evidence available'' Mr. Nixon's offenses
were not
impeachable. Id. at 549 (Statement of Rep.
Owens). Mr. Owens
spoke of the need for ``hard evidence'' and
discussed his
unavailing efforts to obtain additional evidence
that would
tie ``the President to the fraudulent deed''
or that would
otherwise ``close the inferential gap that
has to be closed
in order to charge the President.'' Id. He
concluded his
comments in the 1974 debate by urging the
members of the
Committee ``to reject this article . . . based
on that lack
of evidence.'' Id.
In addition to Mr. Owens, eleven
members of the Committee
stated the view that there was not sufficient
evidence of tax
fraud to support the article against President
Nixon.
Wiggins: ``fraud . . . is wholly unsupported
in the
evidence.'' Id. at 524 (Statement of Rep.
Wiggins). McClory:
``no substantial evidence of any tax fraud.''
Id. at 531
(Statement of Rep. McClory). Sandman: ``There
was absolutely
no intent to defraud here.'' Id. at 532 (Statement
of Rep.
Sandman). Lott: ``mere mistakes or negligence
by the
President in filing his tax returns should
clearly not be
grounds for impeachment.'' Id. at 533 (Statement
of Rep.
Lott). Maraziti: discussing absence of evidence
of fraud.
Id. at 534 (Statement of Rep. Maraziti). Dennis:
``no
fraud has been found.'' Id. at 538 (Statement
of Rep.
Dennis). Cohen: questioning whether ``in fact
there was
criminal fraud involved.'' Id. at 548 (Statement
of Rep.
Cohen). Hungate: ``I think there is a case
here but in my
judgment I am having trouble deciding if it
has as yet
been made.'' Id. at 553 (statement of Rep.
Hungate).
Latta: only ``bad judgment and gross negligence.''
Id. at
554 (Statement of Rep. Latta). Fish: ``There
is not to be
found before us evidence that the President
acted wilfully
to evade his taxes.'' Id. at 556 (Statement
of Rep. Fish).
Moorhead: ``there is no
[Page S217]
showing that President Nixon in any way engaged
in any
fraud.'' Id. at 557 (Statement of Rep. Moorhead).
The group of those who found the
evidence insufficient
included moderate Democrats like Rep. Hungate
and Rep. Owens,
as well as Republicans like Rep. Fish, Rep.
Cohen, and Rep.
McClory, all of whom supported the impeachment
of President
Nixon.
In light of all these facts, it
is not credible to assert
that the House Judiciary Committee in 1974
determined that
tax fraud by the President would not be an
impeachable
offense. The failure of the Committee to adopt
the tax fraud
article against President Nixon simply does
not support the
claim of President Clinton's lawyers that
the offenses
charged against him do not rise to the level
of impeachable
offenses.
In the Committee debate in 1974
a compelling case was made
that tax fraud by a President--if proven by
sufficient
evidence--would be an impeachable offense.
Rep. Brooks, who
later served as chairman of the Committee,
said:
``No man in America can be above
the law. It is our duty to
establish now that evidence of specific statutory
crimes and
constitutional violations by the President
of the United
States will subject all Presidents now and
in the future to
impeachment.
* * * * *
``No President is exempt under
our U.S. Constitution and
the laws of the United States from accountability
for
personal misdeeds any more than he is for
official misdeeds.
And I think that we on this Committee in our
effort to fairly
evaluate the President's activities must show
the American
people that all men are treated equally under
the law.''
(Debate on Articles of Impeachment, 1974: Hearings
of the
Comm. on the Judiciary Pursuant to H. Res.
803, 93rd Cong.,
2nd Sess., at 525, 554.)
Professor Charles Black stated
it succinctly: ``A large-
scale tax cheat is not a viable chief magistrate.''
Charles
Black, Impeachment: A Handbook, (Yale University
Press, 1974)
at 42. What is true of tax fraud is also true
of a persistent
pattern of perjury by the President. An incorrigible
perjurer
is not a viable chief magistrate.
b. President Clinton Continues
to Misrepresent The
Allegations
Against Alexander Hamilton.
President Clinton continues to
try to persuade the American
public that the House of Representatives has
impeached him
for having an extramarital affair. See Answer
of President
William Jefferson Clinton to the Articles
of Impeachment at 1
(``The charges in the two Articles of Impeachment
do not
permit the conviction and removal from office
of a duly
elected President. The President has acknowledged
conduct
with Ms. Lewinsky that was improper.'') (emphasis
added). In
doing so, the President's lawyers refer to
an incident
involving then Secretary of the Treasury Alexander
Hamilton
being blackmailed by the husband of a woman
named Maria
Reynolds with whom he was having an adulterous
affair.
However, the President's lawyers omit the
relevant
distinguishing facts even as they cast aspersions
upon
Alexander Hamilton: none of Hamilton's ``efforts''
to cover
up his affair involved the violation of any
laws, let alone
felonies. Indeed, the fact of the matter is
that Hamilton was
the victim of the crime of extortion.
Never did Hamilton raise his right
hand to take a sacred
oath and then willfully betray that oath and
the rule of law
to commit perjury. Never did Alexander Hamilton
obstruct
justice by tampering with witnesses, urging
potential
witnesses to sign false affidavits, or attempt
to conceal
evidence from a Federal criminal grand jury.
Again, the significance of the
distinctions are glaringly
obvious: it is apparent from the Hamilton
case that the
Framers did not regard private sexual misconduct
as an
impeachable offense. It is also apparent that
efforts to
cover up such private behavior outside of
a legal setting,
including even paying hush money to induce
someone to destroy
documents, did not meet the standard. Neither
Hamilton's high
position, nor the fact that his payments to
a securities
swindler created an enormous appearance problem,
were enough
to implicate the standard. These wrongs were
real, and they
were not insubstantial, but to the Framers
they were
essentially private and therefore not impeachable.
David
Frum, ``Smearing Alexander Hamilton,'' The
Weekly Standard
(Oct. 19, 1998) at 14.
But the Alexander Hamilton incident
President Clinton cites
actually clarifies the precise point at which
personal
misconduct becomes a public offense. Hamilton
could keep his
secret only by a betrayal of public responsibilities.
Hamilton came to that point and, at immense
personal cost,
refused to cross the line. President Clinton
came to that
point and, fully understanding what he was
doing, knowingly
charged across the line. President Clinton's
public acts of
perjury and obstruction of justice transformed
a personal
misconduct into a public offense.
4. The Views of the Prominent Historians and
Legal Scholars
the President Cites
Do Not Stand Up to Careful Scrutiny.
It speaks volumes that the most
distinguished of the 400
historians referred to in President Clinton's
trial brief is
Arthur Schlesinger, Jr. Professor Schlesinger
had a different
view of impeachment 25 years ago. President
Clinton himself
asserts that ``the allegations are so far
removed from
official wrongdoing that their assertion here
threatens to
weaken significantly the Presidency itself.''
President's
Trial Memorandum at 24. However, Schlesinger
has written
that:
``The genius of impeachment lay
in the fact that it could
punish the man without the punishing the office.
For, in the
Presidency as elsewhere, power was ambiguous:
the power to go
good meant also the power to do harm, the
power to serve the
republic also the power to demand and defile
it.''
(Arthur Schlesinger, Jr., The Imperial Presidency,
(Easton
Press edit. 1973) (hereinafter ``Schlesinger'')
at 415.)
The statement of the 400 historians
cited with approval in
the President's trial memorandum makes the
following
statement: ``[t]he Framers explicitly reserved
that step for
high crimes and misdemeanors in the exercise
of executive
power.'' Statement of Historians in Defense
of the
Constitution, The New York Times (Oct. 30,
1998) at A15. The
400 historians then believe that commission
of a murder or
rape by the President of the United States
in his personal
capacity is not subject to the impeachment
power of Article
II, Section 4.
President Clinton in his trial
memorandum asserts that this
case does not fit the paradigmatic case for
impeachment.
President's Trial Memorandum at 24. However,
none of his
predecessors ever faced overwhelming evidence
of repeatedly
lying under oath before a federal court and
grand jury and
otherwise seeking to obstruct justice to benefit
himself--
directly contradicting his oath to ``take
care that the laws
are faithfully executed.'' But as former Attorney
General
Griffin Bell, who served under President Carter,
said before
the House Judiciary Committee recently, ``[a]
President
cannot faithfully execute the laws if he himself
is breaking
them.'' Background and History of Impeachment:
Hearings
Before the Subcomm. on the Constitution of
the House Comm. on
the Judiciary, 105th Cong., 2d Sess. at 203
(Comm. Print
1998) (Testimony of Judge Griffin B. Bell).
President Clinton goes on to state
that to make the
offenses alleged against him impeachable and
removable
conduct ``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.'' President's Trial
Memorandum at 26.
While President Clinton and his able counsel
would like to
define the case this way, what is at issue
in the articles of
impeachment before the Senate is clear: perjury
and
obstruction of justice committed by the President
of the
United States in order to thwart a duly instituted
civil
rights sexual harassment lawsuit against him
as well as a
subsequent grand jury investigation. While
the President may
think such allegations would forever lower
the bar in terms
of the conduct we expect from our public officials,
we must
square his opinion and that of his lawyers
with the fact that
his Justice Department puts people in prison
for similar
conduct. While the President's brief again
quotes Arthur
Schlesinger, Jr. for the proposition that
we must not ``lower
the bar,'' President's Trial Memorandum at
26, Schlesinger
held a different view during the impeachment
of President
Nixon:
``If the Nixon White House escaped
the legal consequences
of its illegal behavior, why would future
Presidents and
their associates not suppose themselves entitled
to do what
the Nixon White House had done? Only condign
punishment would
restore popular faith in the Presidency and
deter future
Presidents from illegal conduct.''
(Schlesinger at 418.)
5. The President and Federal Judges are Impeached,
Convicted,
and Removed From Office
Under the Same Standard
President Clinton's argument that
Presidents are held to a
lower standard of behavior than federal judges
completely
misreads the Constitution and the Senate's
precedents. See
generally House Trial Brief at 101-06. The
Constitution
provides one standard for the impeachment,
conviction, and
removal from office of ``[t]the President,
the Vice
President, and all civil officers of the United
States.''
U.S. Const. art II, Sec. 4. It is the commission
of
``Treason, Bribery, or other high Crimes and
Misdemeanors.''
Id. The Senate has already determined
that perjury is a high
crime and misdemeanor in the cases of Judge
Nixon, Judge
Hastings, and Judge Claiborne.
President Clinton argues that
the standard differs because
judges have life tenure whereas Presidents
are accountable to
the voters at elections. That argument fails
on several
grounds. The differing tenures are set forth
in the
Constitution, and there is simply no textual
support for the
idea that they affect the impeachment standard
at all. If
electoral accountability were a sufficient
means of remedying
presidential misconduct, the framers would
not have
explicitly included the President in the impeachment
clause.
Finally, even if this argument were otherwise
valid, it does
not apply to President Clinton because he
will never face the
voters again. U.S. Const. amend. XXII. Indeed,
all of the
conduct charged in the Articles occurred after
the 1996
election.
Then President Clinton rejects
the Senate's own precedents
showing that perjury is a high crime and misdemeanor
in the
three judicial impeachments of the 1980s arguing
that all of
the lying involved there concerned the judges'
official
duties. That is true with respect to Judge
Hastings, but
completely false with respect to Judge Claiborne
and Judge
Nixon. Judge Claiborne was
[Page S218]
impeached and convicted for lying on his income
tax returns,
an entirely personal matter. President Clinton
tries to
explain this away by saying: ``Once convicted,
[Judge
Claiborne] 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.''
President's Trial Memorandum at 29. The same
is true of
President Clinton. He ultimately directs the
Department of
Justice which must decide whether people are
prosecuted for
lying. If he has committed perjury and obstructed
justice,
how can he be the arbiter of other's oaths?
As Professor
Jonathan Turley put it:
``As Chief Executive the President
stands as the ultimate
authority over the Justice Department and
the
Administration's enforcement policies. It
is unclear how
prosecutors can legitimately threaten, let
alone prosecute,
citizens who have committed perjury or obstruction
of justice
under circumstances nearly identical to the
President's. Such
inherent conflict will be even greater in
the military cases
and the President's role as Commander-in-Chief.''
(Background and History of Impeachment: Hearings
Before the
Subcomm. on the Constitution of the House
Comm. on the
Judiciary, 105th Cong., 2d Sess. at 274 (Comm.
Print 1998)
(Testimony of Professor Jonathan Turley).)
In the same vein, President Clinton
claims that Judge Nixon
``employ[ed] the power and prestige of his
office to obtain
advantage for a party.'' President's Trial
Brief at 29. In
fact, Judge Nixon intervened in a state criminal
case in
which he had no official role. His ability
to persuade the
prosecutor to drop the case rested on his
friendship with the
state prosecutor--not his official position.
President
Clinton argues that it was Judge Nixon's intervention
in a
judicial proceeding that ties it to his official
position.
The same is true of President Clinton. He
intervened in two
judicial proceedings and his actions had the
same effect as
Judge Nixon's--to defeat a just result.
As the person who ultimately directs
the Justice
Department--the federal government's prosecutorial
authority--the President must follow his constitutional
duty
to take care that the laws are faithfully
executed. U.S.
Const. art II, Sec. 3. His special constitutional
duty is at
least as high, if not higher, than the judge's.
Indeed,
President Clinton acknowledged as much early
in his
Administration when controversy arose about
the nomination of
Zoe Baird and the potential nomination of
Judge Kimba Wood to
be Attorney General. Questions were raised
about whether they
had properly complied with laws relating to
their hiring of
household help. At that time, President Clinton
said the
Attorney General ``should be held to a higher
standard than
other Cabinet members on matters of this kind
[i.e. strictly
complying with the law].'' Remarks of President
Clinton with
Reporters Prior to a Meeting with Economic
Advisers, February
8, 1993, 29 Weekly Compilation of Presidential
Documents 160.
If the Attorney General is held to a higher
standard of
compliance with the law, then her superior,
President
Clinton, must be also.
B. The Individual Consciences of Senators Determines the Burden
of
Proof in Impeachment Trials.
The Constitution does not discuss
the standard of proof for
impeachment trials. It simply states that
``the Senate shall
have the Power to try all Impeachments.''
U.S. Const., Art I,
Sec. 3, clause 5. Because the Constitution
is silent on the
matter, it is appropriate to look at the past
practice of the
Senate. Historically, the Senate has never
set a standard of
proof for impeachment trials. ``In the final
analysis the
question is one which historically has been
answered by
individual Senators guided by their own consciences.''
Congressional Research Service Report for
Congress, Standard
of Proof in Senate Impeachment Proceedings,
Thomas B. Ripy,
Legislative Attorney, American Law Division
(January 7,
1999).
President Clinton argues that
the impeachment trial is
similar to a criminal trial and that the appropriate
standard
should therefore be ``beyond a reasonable
doubt.'' That
argument is not new: it has been made in the
past, and the
Senate has rejected it, as indeed, President
Clinton
acknowledges. He asserts, however, that the
impeachment trial
of a President should proceed under special
procedures that
do not apply to the trial of other civil officers.
His
arguments are unpersuasive.
1. The Senate has Never Adopted the Criminal
Standard of
``Beyond a Reasonable
Doubt'' or Any Other Standard of
Proof for Impeachment
Trials.
The Senate has never adopted the
standard of ``beyond a
reasonable doubt'' in any impeachment trial
in U.S. history.
In fact, the Senate has chosen not to impose
a standard at
all, preferring to leave to the conscience
of each senator
the decision of how best to judge the facts
presented.
In the impeachment trial of Judge
Harry Claiborne, counsel
for the respondent moved to designate ``beyond
a reasonable
doubt'' as the standard of proof for conviction.
Gray &
Reams, The Congressional Impeachment Process
and the
Judiciary: Documents and Materials on the
Removal of Federal
District Judge Harry E. Claiborne, Volume
5, Document 41, X
(1987). The Senate overwhelmingly rejected
the motion by a
vote of 17-75. In the floor debate on the
motion, House
Manager Kastenmeier emphasized that the Senate
has
historically allowed each member to exercise
his personal
judgment in these cases. 132 Cong. Rec. S15489-S15490
(daily ed. October 7, 1986).
The question of the appropriate
standard of proof was also
raised in the trial of Judge Alcee Hastings.
In the Senate
Impeachment Trial Committee, Senator Rudman
said in response
to a question about the historical practice
regarding the
standard of proof that there has been no specific
standard,
``you are not going to find it. It is what
is in the mind of
every Senator. . . . I think it is what everybody
decides for
themselves.'' Report of the Senate Impeachment
Trial
Committee on the Articles Against Judge Alcee
Hastings:
Hearings before the Senate Impeachment Trial
Committee (Part
1) 101st Cong., 1st Sess. 73-75, (discussion
involving
Senator Lieberman and Senator Rudman).
2. The Criminal Standard of Proof is Inappropriate
for
Impeachment Trials.
President Clinton argues that
an impeachment trial is akin
to a criminal trial and that, therefore, the
criminal
standard should apply. That assertion is,
of course, at
direct odds with his apparent opposition to
the presentation
of evidence through witnesses, another normal
criminal trial
procedure. The Senate Rules Committee rejected
this analogy
in 1974, stating, ``an impeachment trial is
not a criminal
trial,'' and advocating a clear and convincing
evidence
standard. Executive Session Hearings, U.S.
Senate Committee
on Rules and Administration, ``Senate Rules
and Precedents
Applicable to Impeachment Trials'' 93rd Cong.,
2d Sess.
(August 5-6, 1974). Indeed, it is undisputed
that impeachable
offenses need not be criminal offenses. See
Submission by
Counsel for President Clinton to the Committee
on the
Judiciary of the United States House of Representatives,
105th Cong., 2d Sess. at 14 (Comm. Print Ser.
No. 16 1998)
(``Impeachable acts need not be criminal acts.'')
Moreover, the result of conviction
in an impeachment trial
is removal from office, not punishment. As
the House argued
in the Claiborne trial, the reasonable standard
was designed
to protect criminal defendants who risked
``forfeitures of
life, liberty and property'' (quoting Brinegar
v. United
States, 338 U.S. 160, 174 (1949)). This standard
is
inappropriate here because the Constitution
limits the
consequences of a Senate impeachment trial
to removal from
office and disqualification from holding office
in the
future, explicitly preserving the option for
a subsequent
criminal trial in the courts. U.S. Const.
art. II, Sec. 3,
cl. 6.
In addition, as the House argued
in the Claiborne trial,
the criminal standard is inappropriate because
impeachment
is, by its nature, a proceeding where the
public interest
weighs more heavily than the interest of the
individual
defendant. Gray & Reams, The Congressional
Impeachment
Process and the Judiciary: Documents and Materials
on the
Removal of Federal District Judge Harry E.
Claiborne, Volume
5, Document 41, X (1987). During the course
of the floor
debate on this motion in the Claiborne trial,
Representative
Kastenmeier argued for the House that the
use of the criminal
standard was inappropriate where the public
interest in
removing corrupt officials was a significant
factor. 132
Cong. Rec. S15489-S15490 (daily ed. October
7, 1986).
3. A President Who Is Impeached Should Not
Receive Special
Procedural Benefits
That Do Not Apply in the Impeachment
Trials of Other Civil
Officers.
President Clinton argues that
he should be exempted from
the weight of historical practice and precedent
and be given
a special rule on the standard of proof. This
argument is
based on fallacious assertions, the first
of which is that
different constitutional standards apply to
the impeachment
of judges and presidents. See above at 14-16
and House Trial
Memorandum at 101-06.
President Clinton also employs
inflammatory rhetoric to
suggest that a presidential impeachment trial
ought to be
treated differently, explaining that the criminal
standard is
needed because ``the Presidency itself is
at stake'' and
because conviction would ``overturn the results
of an
election.'' President's Trial Memorandum at
32-33. The
presidency is, of course, not at stake, though
the tenure of
its current office holder may be. The 25th
Amendment to the
Constitution ensures that impeachment and
removal of a
President would not overturn an election because
it is the
elected Vice President who would replace the
President not
the losing presidential candidate.
Finally, President Clinton argues
that the evidence should
be tested by the most stringent standard because
``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.''
President's
Trial Memorandum at 33. While the President
might be expected
to argue that he did not act corruptly, he
cannot credibly
assert that ``there is no suggestion of corruption,''
because
``corrupt'' conduct is precisely what he is
charged with in
the articles of impeachment. Though not persuasive
as an
argument, this statement is significant in
what it concedes--
that corruption is among the ``conduct that
places our system
of government at risk.'' President's Trial
Memorandum at 33.
Having acknowledged this, President Clinton
cannot be heard
to complain that the House has failed to charge
him with
conduct which rises to the level of an impeachable
offense.
[Page S219]
IV. The Structure of the Articles
is Proper and Sufficient
a. the articles are not unconstitutionally vague
President Clinton's trial memorandum
argues that the two
articles of impeachment are unfairly complex.
To the
contrary, the articles present the misdeeds
of President
Clinton and their consequences in as transparent
and
understandable a manner as possible.
The first article of impeachment
charges that President
Clinton violated his enumerated constitutional
responsibilities by willfully corrupting and
manipulating the
judicial process. He did this by providing
perjurious, false
and misleading testimony to a grand jury in
regard to one or
more of four matters. The deleterious consequences
his
actions had for the people of the United States
are then
described. The second article charges that
President Clinton
violated his enumerated constitutional responsibilities
by a
course of conduct that prevented, obstructed,
and impeded the
administration of justice. One or more of
seven listed acts
constitute the particulars of President Clinton's
course of
conduct. As in the first article, the deleterious
consequences his actions had for the people
of the United
States are then described.
To do as President Clinton requests
would require
separating out into a unique article of impeachment
each
possible combination of (a) a particular violation
of his
duties, (b) a particular wrongful act, and
(c) a particular
consequence of his actions. This would require
48 different
articles in the case of the first article
and 84 in the case
of the second. Such a multiplicity of articles
is not
required and would assist no one. Of course,
if the president
had violated fewer presidential duties, committed
fewer
misdeeds, and been responsible for fewer harmful
consequences
to the American people, the articles could
have been drafted
more simply.
The trial memorandum then makes
the contention that the two
articles of impeachment are impermissibly
vague and lacking
in specificity in that they do not meet the
standards of a
criminal indictment. This contention clearly
misses the mark.
Impeachment is a political and not a cr