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 criminal
proceeding,
designed, as recognized by Justice Joseph
Story, the
Constitution's greatest nineteenth century
interpreter, ``not
. . . to punish an offender'' by threatening
deprivation of
his life or liberty, but to ``secure the state''
by
``divest[ing] him of his political capacity''.
J. Story,
Commentaries on the Constitution (R. Rotunda
& J. Nowak eds.,
1987) Sec. 803. Justice Story thus found the
analogy to an
indictment to be invalid:
``The articles . . . need not,
and indeed do not, pursue
the strict form and accuracy of an indictment.
They are
sometimes quite general in the form of the
allegations; but
always contain, or ought to contain, so much
certainty, as to
enable the party to put himself upon the proper
defense, and
also, in case of an acquittal, to avail himself
of it, as a
bar to another impeachment.''
(Id. at Sec. 806).
In explaining the impeachment
process to the citizens of
New York in Federalist No. 65, Alexander Hamilton
stated in
more general terms that impeachment ``can
never be tied down
by such strict rules, either in the delineation
of the
offense by the prosecutors or in the construction
of it by
the judges, as in common cases serve to limit
the discretion
of courts in favor of personal security.''
The Federalist No.
65, at 398 (Clinton Rossiter ed., 1961).
Can the president legitimately
argue that he is unable to
put on a proper defense? President Clinton
has committed a
great number of impeachable misdeeds. The
House Judiciary
Committee's committee report requires 20 pages
just to list
the most glaring instances of the president's
perjurious,
false, and misleading testimony before a federal
grand jury
and it requires 13 pages just to list the
most glaring
incidents in the president's course of conduct
designed to
prevent, obstruct, and impede the administration
of justice.
The House believes that President Clinton's
attorneys have
reviewed the committee report. They know exactly
what he is
being charged with, as is acknowledged in
the president's
trial memorandum. The memorandum states in
its introduction
that ``[t]ake away the elaborate trappings
of the Articles
and the high-flying rhetoric that accompanied
them, and we
see clearly that the House of Representatives
asks the Senate
to remove the President from office because
he . . .''
President's Trial Memorandum at 2. In addition,
in the House
proceedings, the President filed three documents:
a
Preliminary Memorandum, an Initial Response,
and a Submission
by Counsel. The first two documents were printed
together and
ran to 57 pages. Preliminary Memorandum of
the President of
the United States Concerning Referral of the
Office of the
Independent Counsel and Initial Response of
the President of
the United States to Referral of the Office
of the
Independent Counsel, 105th Cong., 2d Sess.,
H. Doc. No. 105-
317 (1998). The third was printed and ran
to 404 pages.
Submission by Counsel for President Clinton
to the Committee
on the Judiciary of the United States House
of
Representatives, 105th Cong., 2d Sess. (Comm.
Print Ser. No.
16 1998). He was also given 30 hours to present
his case
before the House Committee on the Judiciary,
during which he
called numerous witnesses. The Committee repeatedly
asked
President Clinton to provide it with any exculpatory
evidence, an offer which he never accepted.
Now President
Clinton's Trial Memorandum to the Senate runs
to 130 pages.
Clearly, President Clinton has not suffered
from any lack of
specificity in the articles of impeachment.
If he had, he would have availed
himself of the opportunity
to file a motion for a bill of particulars.
He had that
opportunity on January 11, 1999, and he waived
it. He should
not now be heard to claim that he does not
know what the
charges are.
Unlike the judicial impeachments
of the 1980s, President
Clinton has not committed a handful of specific
misdeeds that
can easily be listed in separate articles
of impeachment.
In order to encompass the whole melange of
misdeeds that
caused the House of Representatives to impeach
President
Clinton, the Judiciary Committee looked to
the only
analogous case--that of President Nixon. In
1974, the
Committee was also faced with drafting articles
of
impeachment of a reasonable length against
a president who
had committed a long series of improper acts
designed to
achieve an illicit end.
The first article of impeachment
against President Nixon
charged that in order to cover up an unlawful
entry into the
headquarters of the Democratic National Committee
and to
delay, impede, and obstruct the consequent
investigation (and
for certain other purposes), he engaged in
a series of acts
such as ``making or causing to be made false
or misleading
statements to lawfully authorized investigative
officers'',
``endeavoring to misuse the Central Intelligence
Agency'',
and ``endeavoring to cause prospective defendants
and
individuals duly tried and convicted, to expect
favored
treatment and consideration to return for
their silence or
false testimony.'' Impeachment of Richard
M. Nixon, President
of the United States, H. Rept. No. 93-1305,
93rd Cong., 2d
Sess. 2 (1974). The article did not list each
false or
misleading statement, did not list each misuse
of the CIA,
and did not list each prospective defendant
and what they
were promised.
In like fashion, the articles
of impeachment against
President Clinton charge him with providing
perjurious,
false, and misleading testimony concerning
four subjects,
such as an his relationship with a subordinate
government
employee, and engaging in a course of conduct
designed to
prevent, obstruct, and impede the administration
of justice,
such course including four generals acts such
as an effort to
secure job assistance for that employee. An
argument can be
made that the articles of impeachment against
President
Clinton were drafted with more specificity
than those against
President Nixon. Unless President Clinton
is arguing that the
Senate should have dismissed the first article
of impeachment
against President Nixon (had the president
not resigned), he
has little ground to complain about the articles
against
himself. In short, President Clinton knows
exactly what the
charges are, and the Senate should now require
him to account
for his behavior.
B. The Articles Do Not Improperly Charge Multiple Offenses
in One
Article.
President Clinton argues unpersuasively
that the articles
of impeachment are ``unconstitutionally flawed''
in two
respects. First, he argues that ``by charging
multiple wrongs
in one article, the House of Representatives
has made it
impossible for the Senate to comply with the
Constitutional
mandate that any conviction be by the concurrence
of two-
thirds of the members.'' President's Trial
Memorandum at 101.
Second, he argues that the articles do not
provide him ``the
most basic notice of the charges against him
required by due
process and fundamental fairness.'' Id. Both
arguments are
factually deficient, ignore Senate precedent
and procedure,
and are constitutionally flawed.
The articles of impeachment allege
that the President made
``one or more'' ``perjurious, false and misleading
statements
to the grand jury'' and committed ``one or
more'' acts in
which he obstructed justice. H. Res. 611,
105th Cong. 2nd
Sess. (1998). The articles of impeachment
are modeled after
those adopted by the House Committee on the
Judiciary against
President Nixon and were drafted with the
rules of the Senate
in mind. Senate Rules specifically contemplate
that the House
may draft articles of impeachment in this
manner and prior
rulings of the Senate have held that such
drafting is not
deficient and will not sustain a motion to
dismiss.
In 1986, the United States Senate
amended the Rules of
Procedure and Practice in the Senate When
Sitting on
Impeachment Trials. S. Res. 479, 99th Cong.,
2nd Sess.
(1986). As part of the reform, Rules XXIII,
which deals
generally with voting the final question,
was amended to
clarify the articles of impeachment are not
divisible. Rule
XXIII provides in relevant part that:
``An article of impeachment shall
not be divisible for the
purpose of voting thereon at any time during
the trial. Once
voting has commenced on an article of impeachment,
voting
shall be continued until voting has been completed
on all
articles of impeachment unless the Senate
adjourns for period
not to exceed one day or adjourns sine die.''
The Senate Committee on Rules and
Administration, after
thoroughly reviewing the impeachment rules,
prior articles of
impeachments, and prior Senate trials, decided
that articles
of impeachment should not be divisible. In
drafting the
amendment to Rule XXIII providing that articles
of
impeachment not be divided, the Senate was
aware that the
House may combine multiple counts
[Page S220]
of impeachable conduct in one article of impeachment.
The
Committee report explains the Senate's position:
``The portion of the amendment
effectively enjoining the
divisions of an article into separate specifications
is
proposed to permit the most judicious and
efficacious
handling of the final question both as a general
manner and,
in particular, with respect to the form of
the articles that
proposed the impeachment of President Richard
M. Nixon. The
latter did not follow the more familiar pattern
of embodying
an impeachable offense in an individual article
but, in
respect to the first and second of those articles,
set out
broadly based charges alleging constitutional
improprieties
followed by a recital of transactions illustrative
or
supportive of such charges. The wording of
Articles I and II
expressly provided that a conviction could
be had thereunder
if supported by ``one or more of the'' enumerated
specifications. The general review of the
Committee at that
time was expressed by Senators Byrd and Allen,
both of whom
felt that division of the articles in question
into
potentially 14 separately voted specifications
might ``be
time consuming and confusing, and a matter
which could create
great chaos and division, bitterness, and
ill will * * *.''
Accordingly, it was agreed to write into the
proposed rules
language which would allow each Senator to
vote to convict
under either the first or second articles
if he were
convinced that the person impeached was ``guilty''
or one or
more of the enumerated specifications.''
Amending the Rules of Procedure and Practice
in the Senate
When Sitting on Impeachment Trials, Report
of the Comm. on
Rules and Administration, S. Rept. 99-401,
99th Cong., 2nd
Sess., at 8 (1986) (emphasis added). Because
the Senate was
aware that multiple specifications of impeachment
conduct may
be contained in an article of impeachment,
the Senate's rules
implicitly countenance such drafting.
The issue regarding whether articles
of impeachment are
divisible is not new to the Senate. In fact,
the Senate's
Committee on Rules and Administration reviewed
the Senate's
impeachment procedures in 1974 to prepare
for a possible
trial of President Richard Nixon. The Committee
passed the
exact same language as the Committee did in
1986 prohibiting
the division of an article of impeachment.
Because President
Nixon resigned, the full Senate never considered
the
amendments.
Senator Jacob K. Javits of New
York submitted a statement
to the Committee in 1974 addressing the divisibility
issue
and advised that Rule XXIII be amended to
prohibit the
division of an article of impeachment. His
comments, as
follows, are instructive:
``Rule XXIII provides for the yeas
and nays to be taken on
each article separately but does not set any
order for a vote
when there are several articles. In the [President]
Johnson
trial, this was done by order of the Senate
and several votes
were taken on the order. This procedure, setting
a vote for
final consideration, should be stated in the
rules. Also the
rule is silent about the division of any article.
In the
Johnson trial a division was requested and
the Chief Justice
attempted to devise one, but could not, and
the article as a
whole was submitted for a vote to the Senate.
I believe
articles should not be divided because this
raises a further
question of whether a two-thirds vote is required
on each
part of an article and whether the House action
on the
construction of a particular article can be
changed without
further action by the House. Thus the rule
should provide for
no division of an article by the Senate.''
(Senate Rules and Precedents Applicable to
Impeachment
Trials, Executive Session Hearings before
the Comm. on
Standing Rules and Administration, 93rd Cong.,
2nd Sess. at
116 (August 5th and 6th, 1974) (emphasis added).)
In addition to implicitly recognizing
that articles of
impeachment may contain multiple specifications
of
impeachable offenses, the Senate has convicted
a number of
judges on such ``omnibus'' articles, including
Judges
Archbald, Ritter, and Claiborne. In the case
of Judge Nixon,
the Senate acquitted on the article, but refused
to dismiss
it.
The most recent example, that
of Judge Nixon in 1989, is
instructive. Judge Walter L. Nixon filed a
motion to dismiss
on the grounds that Article III was duplicative,
among other
things. Senator Fowler, the chairman of the
committee
appointed to take evidence in the impeachment
trial of Judge
Nixon explained the reasons for denying Nixon's
motion to
refer the motion to dismiss to the full Senate:
``To the extent that the motion
rests on the House's
inclusion of fourteen distinct allegations
of false
statements in one article, we believe that
Article III states
an intelligible and adequately discrete charge
of an
impeachable offense by alleging that Judge
Nixon concealed
information concerning several conversations
in which he had
engaged by making ``one or more'' false statements
to a grand
jury. The House has substantial discretion
in determining how
to aggregate related alleged acts of misconduct
in framing
Articles of Impeachment and has historically
frequently
chosen to aggregate multiple factual allegations
in a single
impeachment article. The House's itemization
of the fourteen
particular statements whose knowing falsity
it is alleging
serves to give Judge Nixon fair notice of
the contours of the
charge against him without reducing the intelligibility
of
the article's essential accusation that Judge
Nixon knowingly
concealed material information from the government's
law
enforcement agents. Because the Committee
believes that
evidentiary proceedings may fairly be conducted
on Article
III as it is presently drafted, Judge Nixon's
motion to refer
his motion to dismiss Article III to the Senate
at this time
is denied.''
(135 Cong. Rec. 19635-36 (September 6, 1989).)
The full Senate eventually rejected
Judge Nixon's motion to
dismiss by a vote of 34 to 63. Mr. Manager
Cardin
persuasively summed up the argument against
the motion to
dismiss as follows:
``Judge Nixon argues, in his brief,
that you must find all
14 statements to be false to vote guilty on
article III. But
that is untrue. Read the article closely.
The question posed
by article III is, did Judge Nixon conceal
information? Did
he conceal information, first by one or more
false or
misleading statements in his interview, and
then by one or
more false and misleading statements in his
grand jury
testimony?
``You need not find all 14 statements
to be false. The
House is unanimously convinced that all 14
are complete and
utter lies. We hope you will agree. But after
considering the
evidence, perhaps you will conclude that only
12 of the
statements are false. It really does not matter.
Just one
intentionally false and misleading statement
in the
interview, or one in the grand jury, should
be enough.
Because if you conclude that Judge Nixon concealed
information, whether by 1 false statement
or 14, he should be
removed from the bench. You should vote guilty
on article
III.
``And you need not necessarily
agree on which statements
are false, if you reach the conclusion that
he concealed
information. If two-thirds of the Senators
present believe
Judge Nixon lied, regardless of how each individual
Senator
reached that conclusion, he will properly
be removed from
office.
* * * * *
``This is by no means unfair to
Judge Nixon, for even if
you might differ on which particular statements
are lies, the
bottom line is that two-thirds of you will
have agreed that
he concealed information, rendering him unfit
for office.
That is what the Constitution requires.''
(Id. at 26751.)
Given the clear Senate precedent
permitting articles of
impeachment containing multiple specifications
of impeachable
offenses, the President's attack on the construction
of the
articles is an attack on Senate rules and
precedent. The
President's concerns, if assumed to be valid,
could be
addressed simply by permitting a division
of the question.
Under the standing rules of the Senate, any
Senator may have
the same divided if ``the question in debate
contains
several propositions.'' Senate Rule XV. A
question is
divisible if it contains two or more separate
and distinct
propositions. The Senate, however, has made
an affirmative
decision to dispense with the regular order
which governs
bills, resolutions, and amendments thereto,
and instead
adopted a different procedure not permitting
the division
of articles of impeachment. The Senate has
not acted
unconstitutionally in the past regarding prior
impeachments, and is not on a course to do
so in the trial
of President Clinton.
The claim that President Clinton
is not on notice regarding
the charges is ludicrous. The Lewinsky matter
is arguably the
most reported and scrutinized story of 1998
and possibly of
1999. The facts of the case are contained
in numerous
documents, statements, reports, and filings.
Specifically,
President Clinton has had the following documents,
among
others, containing the facts and specifics
of the case: (1)
Referral from Independent Counsel Kenneth
W. Starr in
Conformity with the Requirements of Title
28, United States
Code, Section 595(c), H. Doc. 105-310, 105th
Cong., 2nd Sess.
(1998); (2) Investigatory Powers of the Comm.
on the
Judiciary with Respect to its Impeachment
Inquiry, H. Rept.
105-795, 105th Cong., 2nd Sess. (October 7,
1998); (3)
Impeachment of William Jefferson Clinton,
President of the
United States, 105th Cong., 2nd Sess., H.R.
Rept. 105-830
(Dec. 16, 1998); and (4) Trial Memorandum
of the United
States House of Representatives. If all of
these reports and
the thousands of pages of documents are not
enough, President
Clinton will have the opportunity to review
the presentation
of the Managers on the Part of the House for
up to twenty-
four hours.
V. President Clinton Completely Misstates the Record
as to the
Discovery Procedures That Were Available to Him
in the House of
Representatives
President Clinton's trial memorandum
claimed to the Senate
that, should it decide ``to allow the House
managers to
expand the record in some way . . . the President
would have
an urgent need for the discovery of relevant
evidence,
because at no point in these proceedings has
been able to
subpoena documents or summon or cross-examine
witnesses.''
President's Trial Memorandum at 125 (emphasis
added). The
President also states that ``the House of
Representatives
[did not] afford the President any discovery
mechanisms to
secure evidence that might be helpful in his
defense.'' Id.
We will not address every discovery
issue here since those
issues will be resolved in the coming days;
however, the
Senate should know that these claims are absolutely
false. In
fact, the President's own brief refutes his
claims. ``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. . . .''
White House
Counsel Charles
[Page S221]
F.C. Ruff presented argument to the Committee
on behalf of
the President. . . .'' Id. at 13.
The House Committee on the Judiciary
repeatedly asked the
President's attorneys to supply any exculpatory
evidence to
the Committee, both orally and in writing.
They never did.
When, at the last minute, the President's
counsel requested
witnesses, the Committee invited to testify
every witness
they requested. Aside from this, President
Clinton nor his
attorneys never asked to ``subpoena documents''
or ``summon
or cross-examine witnesses.'' If President
Clinton's argument
is that the Committee did not provide his
staff a stack of
blank subpoenas, that is correct. However,
neither the House
of Representatives, nor the Senate, has the
ability to ``turn
over'' its constitutionally based subpoena
power to the
executive branch.
President Clinton's attorneys
never asked to do the things
they now claim they never had the ability
to do. In fact,
when minority members of the Committee publicly
asked that
Judge Starr be called as a witness, Judge
Starr was called.
In fact, President Clinton's attorney and
minority counsel
questioned Judge Starr for over two hours.
Every Member of
the Committee questioned him for at least
five minutes each.
Judge Starr was a witness, and he was cross-examined
by David
Kendall, President Clinton's private attorney.
President
Clinton's claims are just not accurate.
President Clinton's attorneys
raise the issue of fairness.
They are entitled to their own opinion about
the House's
proceedings, but they are not entitled to
rewrite history.
The truth is that the Committee's subpoena
power could have
been used to subpoena documents or witnesses
on behalf of the
President if they had so requested. They did
not. All they
requested, is that lawyers, law professors,
and historians
testify before the Committee. In short, President
Clinton's
statements about what happened in the House
completely
misstate what occurred.
VI. Conclusion
For the reasons stated herein and
in the Trial Memorandum
of the United States House of Representatives,
the House
respectfully submits that the articles properly
state
impeachable offenses, that the Senate should
proceed to a
full trial on the articles, and that after
trial, the Senate
should vote to convict President William Jefferson
Clinton,
remove him from office, and disqualify him
from holding
further office.
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.
Dated: January 14, 1999.
The CHIEF JUSTICE. I would like to inform Members of the Senate
and
the parties in this case of my need to stand on occasion to stretch
my
back. I have no intention that the proceedings should be in any way
interrupted when I do so.
The Presiding Officer notes the presence in the Senate Chamber
of the
managers on the part of the House of Representatives and counsel for
the President of the United States.
Pursuant to the provisions of Senate Resolution 16, the managers
for
the House of Representatives have 24 hours to make the presentation
of
their case. The Senate will now hear you.
The Presiding Officer recognizes Mr. Manager Hyde to begin the
presentation of the case for the House of Representatives.
Mr. Manager HYDE. Mr. Chief Justice, distinguished counsel for
the
President, and Senators.
We are brought together on this solemn and historic occasion
to
perform important duties assigned to us by the Constitution.
We want you to know how much we respect you and this institution
and
how grateful we are for your guidance and your cooperation.
With your permission, we the managers of the House are here
to set
forth the evidence in support of two articles of impeachment against
President William Jefferson Clinton. You are seated in this historic
Chamber not to embark on some great legislative debate, which these
stately walls have so often witnessed, but to listen to the evidence,
as those who must sit in judgment.
To guide you in this grave duty, you have taken an oath of
impartiality. With the simple words ``I do,'' you have pledged to put
aside personal bias and partisan interest and to do ``impartial
justice.'' Your willingness to take up this calling has once again
reminded the world of the unique brilliance of America's constitutional
system of Government. We are here, Mr. Chief Justice and distinguished
Senators, as advocates for the rule of law, for equal justice under
the
law and for the sanctity of the oath.
The oath. In many ways the case you will consider in the coming
days
is about those two words ``I do,'' pronounced at two Presidential
inaugurations by a person whose spoken words have singular importance
to our Nation and to the great globe itself.
More than 450 years ago, Sir Thomas More, former Lord Chancellor
of
England, was imprisoned in the Tower of London because he had, in the
name of conscience, defied the absolute power of the King. As the
playwright Robert Bolt tells it, More was visited by his family, who
tried to persuade him to speak the words of the oath that would save
his life, even while, in his mind and heart, he held firm to his
conviction that the King was in error. More refused. As he told his
daughter, Margaret, ``When a man takes an oath, Meg, he's holding his
own self in his hands. Like water. And if he opens his fingers then--he
needn't hope to find himself again . . .'' Sir Thomas More, the most
brilliant lawyer of his generation, a scholar with an international
reputation, the center of a warm and affectionate family life which
he
cherished, went to his death rather than take an oath in vain.
Members of the Senate, what you do over the next few weeks will
forever affect the meaning of those two words ``I do.'' You are now
stewards of the oath. Its significance in public service and our
cherished system of justice will never be the same after this.
Depending on what you decide, it will either be strengthened in its
power to achieve justice or it will go the way of so much of our moral
infrastructure and become a mere convention, full of sound and fury,
signifying nothing.
The House of Representatives has named myself and 12 other Members
as
Managers of its case. I have the honor of introducing those
distinguished Members and explaining how we will make our initial
presentation. The gentleman from Wisconsin, Representative Jim
Sensenbrenner, will begin the presentation with an overview of the
case. Representative Sensenbrenner is the ranking Republican member
of
the House Judiciary Committee, and has served for 20 years. In 1989,
Representative Sensenbrenner was a House manager in the impeachment
trial of Judge Walter L. Nixon who was convicted on two articles of
impeachment for making false and misleading statements before a federal
grand jury.
Following Representative Sensenbrenner will be a team of managers
who
will make a presentation of the relevant facts of this case. From the
very outset of this ordeal, there has been a great deal of speculation
and misinformation about the facts. That has been unfortunate for
everyone involved. We believe that a full presentation of the facts
and
the law by the House managers--will be helpful.
Representative Ed Bryant, from Tennessee was a United States
Attorney
from the Western District of Tennessee. As a captain in the Army,
Representative Bryant served in the Judge Advocate General Corps and
taught at the United States Military Academy at West Point.
Representative Bryant will explain the background of the events that
led to the illegal actions of the President. Following Representative
Bryant, Representative Asa Hutchinson from Arkansas will give
a
presentation of the factual basis for article II, obstruction of
justice. Representative Hutchinson is a former United States Attorney
for the Western District of Arkansas. Next, you will hear from
Representative Jim Rogan of California. Representative Rogan is a
former California State judge and Los Angeles County Deputy District
Attorney. Representative Rogan will give a presentation of the factual
basis for article I, grand jury perjury. This should conclude our
presentation for today.
Tomorrow, Representative Bill McCollum of Florida will tie all
of the
facts together and give a factual summation. Representative McCollum
is
[Page S222]
the Chairman of the Subcommittee on Crime, a former Naval Reserve
Commander and member of the Judge Advocate General Corps.
Following the presentation of the facts, a team of managers
will
present the law of perjury and the law of obstruction of justice and
how it applies to the articles of impeachment before you. While the
Senate has made it clear that a crime is not essential to impeachment
and removal from office, these managers will explain how egregious
and
criminal the conduct alleged in the articles of impeachment is. This
team includes Representative George Gekas of Pennsylvania,
Representative Steve Chabot of Ohio, Representative Bob Barr of
Georgia, and Representative Chris Cannon of Utah. Representative Gekas
is the Chairman of the Subcommittee on Commercial and Administrative
Law. And in 1989, Representative Gekas served as a manager of the
impeachment trial of Judge Alcee Hastings who the Senate convicted
on
eight articles for making false and misleading statements under oath
and one article of conspiracy to engage in a bribery. Representative
Gekas is a former assistant district attorney. Representative Chabot
serves on the Subcommittee on Crime and has experience as a criminal
defense lawyer. Representative Barr is a former United States Attorney
for the Northern District of Georgia, where he specialized in public
corruption. He also has experience as a criminal defense attorney.
Representative Cannon has had experience as the Deputy Associate
Solicitor General of the Department of the Interior and as a practicing
attorney. That should conclude our presentation for Friday.
On Saturday, three managers will make a presentation on
Constitutional law as it relates to this case. There has been a great
deal of argument about whether the conduct alleged in the articles
rises to the level of removable offenses. This team's analysis of the
precedents of the Senate and application of the facts of this case
will
make it clear that the Senate has established the conduct alleged in
the articles to be removable offenses. In this presentation you will
hear from Representative Charles Canady of Florida, Representative
Steve Buyer of Indiana and Representative Lindsey Graham of South
Carolina. Representative Canady is the Chairman of the Subcommittee
on
the Constitution and one of the leading voices on constitutional law
in
the House. Representative Buyer served in the United States Army as
a
member of the Judge Advocate General Corps where he was assigned as
Special Assistant to the United States Attorney in Virginia. He also
served as a deputy to the Indiana Attorney General. Representative
Graham served in the Air Force as a member of the Judge Advocate
General Corps and as a South Carolina Assistant Attorney.
Following the presentation of the facts, the law of perjury
and
obstruction of justice and constitutional law, Mr. Rogan and myself
will give you a final summation and closing to our initial
presentation.
Mr. Sensenbrenner.
The CHIEF JUSTICE. Mr. Manager Sensenbrenner is recognized.
Mr. Manager SENSENBRENNER. Mr. Chief Justice, distinguished
counsel
to the President, and Senators, in his third annual message to Congress
on December 7, 1903, President Theodore Roosevelt said:
No man is above the law and no
man is below it; nor do we
ask any man's permission when we require him
to obey it.
Obedience to the law is demanded as a right;
not asked as a
favor.
We are here today because President William Jefferson Clinton
decided
to put himself above the law, not once, not twice, but repeatedly.
He
put himself above the law when he engaged in a multifaceted scheme
to
obstruct justice during the Federal civil rights case of Paula Corbin
Jones versus William Jefferson Clinton, et. al. He put himself above
the law when he made perjurious, false and misleading statements under
oath during his grand jury testimony on August 17, 1998. In both
instances, he unlawfully attempted to prevent the judicial branch of
Government--a coequal branch--from performing its constitutional duty
to administer equal justice under law.
The United States House of Representatives has determined that
the
President's false and misleading testimony to the grand jury and his
obstruction of justice in the Jones lawsuit are high crimes and
misdemeanors within the meaning of the Constitution. Should the Senate
conduct a fair and impartial trial which allows each side to present
its best case, then the American public can be confident that justice
has been served, regardless of the outcome.
We hear much about how important the rule of law is to our Nation
and
to our system of government. Some have commented this expression is
trite. But, whether expressed by these three words, or others, the
primacy of law over the rule of individuals is what distinguishes the
United States from most other countries and why our Constitution is
as
alive today as it was 210 years ago.
The Framers of the Constitution devised an elaborate system
of checks
and balances to ensure our liberties by making sure that no person,
institution, or branch of Government became so powerful that a tyranny
could ever be established in the United States of America.
We are the trustees of that sacred legacy and whether the rule
of law
and faith in our Nation emerges stronger than ever, or are diminished
irreparably, depends upon the collective decision of the message each
Senator chooses to send forth in the days ahead.
The evidence you will hear relates solely to the President's
misconduct, which is contrary to his constitutional public
responsibility to ensure the laws be faithfully executed. It is not
about the President's affair with a subordinate employee, an affair
that was both inappropriate and immoral. Mr. Clinton has recognized
that this relationship was wrong. I give him credit for that. But he
has not owned up to the false testimony, the stonewalling and legal
hairsplitting, and obstructing the courts from finding the truth. In
doing so, he has turned his affair into a public wrong. And for these
actions, he must be held accountable through the only constitutional
means the country has available--the difficult and painful process
of
impeachment.
Impeachment is one of the checks the Framers gave to Congress
to
protect the American people from a corrupt or tyrannical executive
or
judicial branch of Government. Because the procedure is cumbersome
and
because a two-thirds vote in the Senate is required to remove an
official following an impeachment trial, safeguards are there to stop
Congress from increasing its powers at the expense-of the other two
branches. The process is long. It is difficult. It is unpleasant. But,
above all, it is necessary to maintain the public's trust in the
conduct of their elected officials--elected officials, such as myself
and yourselves, who through our oaths of office have a duty to follow
the law, fulfill our constitutional responsibilities, and protect our
Republic from public wrongdoing.
The Framers of the Constitution envisioned a separate and distinct
process in the House and in the Senate. They did not expect the House
and Senate to conduct virtually identical proceedings with the only
difference being that conviction in the Senate requires a two-thirds
vote. That is why the Constitution reserves the sole power of
impeachment to the House of Representatives and the sole power to try
all impeachments to the Senate. History demonstrates different
processes were adopted to reflect very different roles.
In the case of President Andrew Johnson, no hearings were held
or
witnesses called by the House on the President's decision to remove
Secretary of War Stanton from office. The House first approved a
general article of impeachment that simply stated that President
Johnson was impeached for high crimes and misdemeanors. Five days
later, a special House committee drew up specific articles. Eleven
articles were passed by the House, all but two of which were based
upon
President Johnson's alleged violation of the Tenure of Office Act by
his actions in removing Secretary of War Stanton. The trial was then
conducted with witnesses in the Senate.
In the case of President Nixon, the House Judiciary Committee
passed
three articles of impeachment based not upon their own investigation,
but upon the evidence gathered by the Ervin Committee, the Patman
Committee, the Joint Tax Committee and
[Page S223]
material from the special prosecutor and various court proceedings.
Nine witnesses were called at the end of the impeachment inquiry, five
of them at the request of the White House, and their testimony was
not
at the center of the impeachment articles.
In the Judge Walter Nixon impeachment in 1989, a trial with
live
witnesses was held even after the Senate rejected by less than a two-
thirds vote a defense motion to dismiss one article of impeachment
on
the grounds that it did not constitute an impeachable offense.
The House managers submit witnesses are essential to give heightened
credence to whatever judgment the Senate chooses to make on each of
the
articles of impeachment against President Clinton.
The matter of how this proceeding will be conducted remains
somewhat
unsettled. Senate impeachment precedent has been to hold a trial. And,
in every impeachment case, the Senate has heard from live witnesses.
Should the President's counsel dispute the facts as laid out by the
House of Representatives, the Senate will need to hear from live
witnesses in order to reach a proper and fair judgment as to the
truthful facts of this case.
The House concluded the President made perjurious, false and
misleading statements before the grand jury, which the House believes
constitutes a high crime and misdemeanor. Our entire legal system is
based upon the courts being able to find the truth. That's why
witnesses must raise their right hand and swear to tell the truth,
the
whole truth, and nothing but the truth. That's why there are criminal
penalties for perjury and making false statements under oath. The need
for obtaining truthful testimony in court is so important that the
Federal sentencing guidelines have the same penalties for perjury as
for bribery.
The Constitution specifically names bribery as an impeachable
offense. Perjury is the twin brother of bribery. By making the penalty
for perjury the same as that for bribery, Congress has acknowledged
that both crimes are equally serious. It follows that perjury and
making false statements under oath, which is a form of perjury, be
considered among the ``high crimes and misdemeanors'' the Framers
intended to be grounds for impeachment.
The three judicial impeachments of the 1980's were all about
lies
told by a federal judge. Judge Claiborne was removed from office for
lying on his income tax returns. Judge Hastings was removed for lying
under oath during a trial, and Judge Nixon was removed for making false
statements to a grand jury. In each case, the Senate showed no leniency
to judges who lie. Their misconduct was deemed impeachable and more
than 2/3rds of the Senate voted to convict.
If the Senate is convinced that President Clinton lied under
oath and
does not remove him from office, the wrong message is given to our
courts, those who have business before them, and to the country as
a
whole. That terrible message is that we as a nation have set a lower
standard for lying under oath for Presidents than for judges. Should
not the leader of our country be held to at least as high a standard
as
the judges he appoints? Should not the President be obliged to tell
the
truth when under oath, just as every citizen must? Should not our laws
be enforced equally? Your decision in this proceeding will answer these
questions and set the standard of conduct of public officials in town
halls and courtrooms everywhere and the Oval Office for generations.
Justice is never served by the placing of any public official
above
the law. The framers rejected the British law of, ``The King can do
no
wrong'', when they wrote our basic law in 1787. Any law is only as
good
as its enforcement, and the enforcement of the law against the
President was left to Congress through the impeachment process.
A Senate conviction of the President in this matter will reaffirm
the
irrefutable fact that even the President of the United States has no
license to lie under oath. Deceiving the courts is an offense against
the public. It prevents the courts from administering justice and
citizens from receiving justice. Every American has the right to go
to
court for redress of wrongs, as well as the right to a jury trial.
The
jury finds the facts. The citizens on the jury cannot correctly find
the facts absent truthful testimony. That's why it's vital that the
Senate protect the sanctity of the oath to obtain truthful testimony,
not just during judicial proceedings but also during legislative
proceedings as well.
Witnesses before Congress, whether presidential nominees seeking
Senate confirmation to high posts in the executive or judicial
branches, federal agency heads testifying during investigative
hearings, or witnesses at legislative hearings giving their opinions
on
bills are sworn to tell the truth. Eroding the oath to tell the truth
means that Congress loses some of its ability to base its decisions
upon truthful testimony. Lowering the standard of the truthfulness
of
sworn testimony will create a cancer that will keep the legislative
branch from discharging its constitutional functions as well.
Mr. Chief Justice, we are here today because William Jefferson
Clinton decided to use all means possible--both legal and illegal--to
subvert the truth about his conduct relevant to the federal civil
rights suit brought against President Clinton by Mrs. Paula Jones.
Defendants in civil lawsuits cannot pick and choose which laws and
rules of procedure they will follow and which they will not. That's
for
the trial judge to decide, whether the defendant be President or
pauper.
In this case, a citizen claimed her civil rights were violated
when
she refused then Governor Clinton's advances and was subsequently
harassed at work, denied merit pay raises, and finally forced to quit.
The court ruled she had the right to obtain evidence showing other
women including Miss Lewinsky, got jobs, promotions, and raises after
submitting to Mr. Clinton, and whether other women suffered job
detriments after refusing similar advances.
When someone lies about an affair and tries to hide the fact,
they
violate the trust their spouse and family put in them. But when they
lie about it during a legal proceeding and obstruct the parties from
obtaining evidence, they prevent the courts from administering justice.
That is an offense against the public, made even worse when
a poor or
powerless person seeks the protections of our civil rights from the
rich or powerful.
When an American citizen claims his or her civil rights have
been
violated, we must take those claims seriously. Our civil rights laws
have remade our society for the better. The law gives the same
protections to the child denied entry to a school or college based
upon
race as to an employee claiming discrimination at work. Once a hole
is
punched in civil rights protections for some, those protections are
not
worth as much for all. Many in the Senate have spent their lives
advancing individual rights. Their successful efforts have made America
a better place. In my opinion, this is no time to abandon that
struggle--no matter the public mood or the political consequence.
Some have said that the false testimony given by the President
relating to sex should be excused, since as the argument goes,
``Everyone lies about sex.'' I would ask the Senate to stop to think
about the consequences of adopting that attitude. Our sexual harassment
laws would become unenforceable since every sexual harassment lawsuit
is about sex, and much of domestic violence litigation is at least
partly about sex. If defendants in these types of suits are allowed
to
lie about sex, justice cannot be done, and many victims, mostly women,
will be denied justice.
Mr. Chief Justice, the House has adopted two articles of impeachment
against President William Jefferson Clinton. Each meets the standard
of
``high crimes and misdemeanors'' and each is amply supported by the
evidence.
Article 1 impeaches the President for ``perjurious, false and
misleading'' testimony during his August 17, 1998, appearance before
a
grand jury of the United States in four areas.
First, the nature and details of his relationship with a subordinate
government employee.
Second, prior perjurious, false and misleading testimony he
gave in a
federal civil rights action brought against him.
Third, prior false and misleading statements he allowed his
attorney
to make to a federal judge in that federal civil rights lawsuit.
Fourth, his corrupt efforts to influence the testimony of witnesses
and to
[Page S224]
impede the discovery of evidence in that civil rights action.
The evidence will clearly show that President Clinton's false
testimony to the grand jury was not a single or isolated instance which
could be excused as a mistake, but rather a comprehensive and
calculated plan to prevent the grand jury from getting the accurate
testimony in order to do its job. Furthermore, it is important to
dispel the notion that the President's false testimony before the grand
jury simply relates to details of the relationship between President
Clinton and Miss Lewinsky. These charges only make up a small part
of
Article 1. The fact is, the evidence will show that President Clinton
made numerous perjurious, false and misleading statements regarding
his
efforts to obstruct justice.
Before describing what the evidence in support of Article 1
shows, it
is also important to clearly demonstrate that the Senate has already
decided that making false statements under oath to a federal grand
jury
is an impeachable offense.
The last impeachment decided by the Senate, that of United States
District Judge Walter L. Nixon, Jr., of the United States District
Court for the Southern District of Mississippi, involved the Judge's
making false statements under oath to a federal grand jury, precisely
the same charges contained in Article 1 against President Clinton.
Following an unanimous 417 to 0 vote in the House, the Senate conducted
a full trial and removed Judge Nixon from office on the two articles
charging false statements to a grand jury by votes of 89 to 8 and 78
to
19. The Senate was clear that the specific misconduct, that is, making
false statements to a grand jury, which was the basis for the Judge's
impeachment, warranted his removal from office and the Senate proceeded
to do just that.
These votes, a little more than nine years ago on November 3,
1989,
set a clear standard that lying to a grand jury is grounds for removal
from office. To set a different standard in this trial is to say that
the standard for judicial truthfulness during grand jury testimony
is
higher than that of presidential truthfulness.
That result would be absurd. The truth is the truth and a lie
is a
lie. There cannot be different levels of the truth for judges than
for
presidents.
The President's perjurious, false and misleading statements
regarding
his relationship with Ms. Lewinsky began early in his grand jury
testimony. These statements included parts of the prepared statement
the President read at the beginning of his testimony. He referred or
reverted to his statement at least 19 times during the course of his
testimony.
Further, the evidence will show the President made other false
statements to the grand jury regarding the nature and details of his
relationship with Ms. Lewinsky at times when he did not refer to his
prepared statement.
Second, the evidence will show that the President piled perjury
upon
perjury when he provided perjurious, false and misleading testimony
to
the grand jury concerning prior perjurious, false and misleading
testimony given in Ms. Paula Jones' case.
On two occasions, the President testified to the grand jury
that his
deposition testimony was the truth, the whole truth, and nothing but
the truth, and that he was required to give a complete answer to each
question asked of him during the deposition. That means he brought
to
the grand jury his untruthful answers to questions at the deposition.
Third, the evidence will show the President provided perjurious,
false and misleading testimony to a Federal grand jury regarding his
attorney's use of an affidavit he knew to be false during the
deposition in Ms. Paula Jones' case before Federal Judge Susan Webber
Wright.
The President denied that he even paid attention to Mr. Bennett's
use
of the affidavit. The evidence will show he made this denial because
his failure to stop his attorney from utilizing a false affidavit at
a
deposition would constitute obstruction of justice. The evidence will
also show the President did not admit that Mr. Bennett's statement
was
false because to do so would be to admit that he had perjured himself
earlier that day during the grand jury testimony, as well as at the
deposition.
Fourth, the evidence will show that the President provided
perjurious, false and misleading testimony to the grand jury concerning
his corrupt efforts to influence the testimony of witnesses and to
impede the discovery of evidence in Ms. Paula Jones' civil rights
action.
The evidence will show that these statements related to at least
four
areas:
First, his false statements relating to gifts exchanged between
the
President and Ms. Lewinsky. The subpoena served on Ms. Lewinsky in
the
Jones case required her to produce each and every gift she had received
from the President. These gifts were not turned over as required by
the
subpoena, but ended up under Ms. Betty Currie's bed in a sealed
container. The President denied under oath that he directed Ms. Currie
to get the gifts, but the evidence will show that Ms. Currie did call
Ms. Lewinsky about them and that there was no reason for her doing
so
unless directed by the President.
Second, the President made perjurious, false and misleading
statements to the grand jury regarding his knowledge that the Lewinsky
affidavit submitted at the deposition was untrue. The evidence will
show that the President testified falsely on this issue on at least
three separate occasions during his grand jury testimony. He also
provided false testimony on whether he encouraged Ms. Lewinsky to file
a false affidavit.
Third, the President made false and misleading statements to
the
grand jury by reciting a false account of the facts regarding his
interactions with Ms. Lewinsky and Ms. Currie, who was a potential
witness against him in Ms. Jones' case.
The record reflects the President tried to coach Ms. Currie to
recite
inaccurate answers to possible questions should she be called as a
witness. The evidence will show the President testified to the grand
jury that he was trying to figure out what the facts were, but in
reality the conversation with Ms. Currie consisted of a number of very
false and misleading statements.
Finally, the President made perjurious, false and misleading
statements to aides regarding his relationship with Ms. Lewinsky. In
his grand jury testimony, the President tried to have it both ways
on
this issue. He testified that his statements to aides were both true
and misleading--true and misleading.
The evidence will show that he met with four aides who would
later be
called to testify before the grand jury. They included Mr. Sidney
Blumenthal, Mr. John Podesta, Mr. Erskine Bowles, and Mr. Harold Ickes.
Each of them related to the grand jury the untruths they had been told
by the President. I have recited this long catalogue of false
statements to show that the President's false statements to the grand
jury were neither few in number nor isolated, but rather pervaded his
entire testimony.
There can be no question that the President's false statements
to the
grand jury were material to the subject of the inquiry. Grand juries
are utilized to obtain sworn testimony from witnesses to determine
whether a crime has been committed. The Attorney General and the
Special Division of the United States Court of Appeals for the District
of Columbia Circuit appointed an independent counsel pursuant to law
and added areas of inquiry because they believed there was evidence
that the President may have committed crimes. Grand jury testimony
relevant to the criminal probe is always material to the issue of
whether someone has committed a crime.
Based upon the precedent in the Judge Nixon impeachment, the
law, the
facts, and the evidence, if you find the President made perjurious,
false and misleading statements under oath to the grand jury, I
respectfully submit that your duty will be to find William Jefferson
Clinton guilty with respect to article I and to remove him from office.
Article II impeaches William Jefferson Clinton for preventing,
obstructing and impeding the administration of justice in the Jones
case by either directly or through subordinates and agents engaging
in
a scheme to delay, impede, cover up, and conceal the existence of
evidence and testimony relating to Ms. Jones' Federal civil rights
action.
[Page S225]
As in the case of article I, the President's direct and indirect
actions were not isolated mistakes, but were multifaceted actions
specifically designed to prevent Ms. Paula Jones from having her day
in
court.
While the Senate determined in the Judge Nixon trial that the
making
of false statements to a Federal grand jury warranted conviction and
removal from office, no impeachment on an obstruction of justice charge
has ever reached the Senate.
Therefore, this article is a matter of first impression. However,
the
impeachment inquiry of the House Judiciary Committee into the conduct
of President Richard Nixon, as well as the relevant Federal criminal
statutes, clearly show President Clinton's actions to be within the
definition of ``high crimes and misdemeanors'' contained in the
Constitution.
The first article of impeachment against President Nixon approved
by
the Judiciary Committee charged Mr. Nixon with ``engag(ing) personally
and through his subordinates and agents in a course of conduct or plan
designed to delay, impede and obstruct the investigation of such
unlawful entry; to cover up, conceal and protect those responsible
and
to conceal the existence and scope of other unlawful activities.''
The article charged that the implementation of the plan included
nine
separate areas of misconduct. Included among these were, one, making
or
causing to be made false and misleading statements to investigative
officers and employees of the United States; two, withholding relevant
and material evidence from such persons; three, approving, condoning,
acquiescing in and counseling witnesses with respect to the giving
of
false and misleading statements to such persons as well as in judicial
and congressional proceedings.
History shows us that President Nixon's resignation was the
only act
that prevented the Senate from voting on this article, and that the
President's conviction and removal from office were all but certain.
There are two sections of the Federal Criminal Code placing
penalties
on those who obstruct justice. Title 18, United States Code, section
1503, punishes ``(whoever * * * corruptly, or by threats or force *
* *
obstructs, or impedes or endeavors to influence, obstruct or impede
the
due administration of justice.''
The courts have held that this section relates to pending judicial
process, which can be a civil action. Ms. Jones' case fits that
definition at the time of the President's actions as alleged in article
II, as does the Office of Independent Counsel's investigation.
Title 18, United States Code, section 1512, punishes, ``Whoever
* * *
corruptly persuades another person, or attempts to do so, or engages
in
misleading conduct toward another person, with intent to * * *
influence, delay or prevent the testimony of any person in an official
proceeding * * * (or) cause or induce any person to * * * withhold
testimony, or withhold a record, document, or other object from an
official proceeding * * *.''
The evidence will show that President Clinton's actions constituted
obstruction of justice in seven specific instances as alleged in
Article II. Paragraph one alleges that on or about December 17, 1997,
the President encouraged Miss Lewinsky, who would be subpoenaed as
a
witness in Mrs. Jones' case two days later, to execute a sworn
affidavit that he knew would be perjurious, false, and misleading.
The evidence will show the President's actions violated both
federal
criminal obstruction statutes.
Second, Article II alleges that on or about that same day, the
President corruptly encouraged Miss Lewinsky to give perjurious, false,
and misleading testimony if and when called to testify personally in
that proceeding. Miss Lewinsky, on the witness list at that time, could
have been expected to be required to give live testimony in the Jones
case and in fact she was subsequently subpoenaed for a deposition in
that case.
The evidence will show the President's actions violated both
federal
criminal obstruction statutes.
Third, Article II alleges on or about December 28, 1997, the
President corruptly engaged in, encouraged, or supported a scheme to
conceal evidence which had been subpoenaed in Mrs. Jones' civil rights
case. He did so by asking Ms. Betty Currie to retrieve evidence from
Miss Lewinsky that had been subpoenaed in the case of Jones v. Clinton.
The evidence will show the President's actions violated the
second
federal criminal obstruction statute.
Fourth, Article II alleges that beginning on or about December
7,
1997, and continuing through and including January 14, 1998, the
President intensified and succeeded in an effort to secure job
assistance to Miss Lewinsky in order to corruptly prevent her truthful
testimony in the Jones case at a time when her truthful testimony would
have been harmful to him.
While Miss Lewinsky had sought employment in New York City long
before the dates in question, helping her find a suitable job was
clearly a low priority for the President and his associates until it
became obvious she would become a witness in the Jones case. The
evidence will clearly show an intensification of that effort after
her
name appeared on the witness list. This effort was ultimately
successful and the evidence will show that the President's actions
violated both federal obstruction statutes.
Fifth, Article II alleges on January 17, 1998, the President
corruptly allowed his attorney to make false and misleading statements
to Judge Wright characterizing the Lewinsky affidavit in order to
prevent questioning deemed relevant by the judge. The President's
attorney, Robert Bennett, subsequently acknowledged such false and
misleading statements in a communication to Judge Wright.
The evidence will show the President's actions clearly violate
the
second federal criminal obstruction statute.
Sixth, Article II alleges that on or about January 18, 20, and
21,
1998, the President related a false and misleading account of events
relevant to Mrs. Jones' civil rights suit to Ms. Betty Currie, a
potential witness in the proceeding, in order to corruptly influence
her testimony.
The evidence will show that President Clinton attempted to influence
the testimony of Ms. Betty Currie, his personal secretary, by coaching
her to recite inaccurate answers to possible questions that might be
asked of her if called to testify in Mrs. Paula Jones' case. The
President did this shortly after he had been deposed in the civil
action.
During the deposition, he frequently referred to Ms. Currie
and it
was logical that based upon his testimony, Ms. Currie would be called
as a witness.
The evidence will show that two hours after the completion of
the
deposition, the President called Ms. Currie to ask her to come to the
office the next day, which was a Sunday.
When Ms. Currie testified to the grand jury, she acknowledged
the
President made a series of leading statements or questions and
concluded that the President wanted her to agree with him.
The evidence will show the President's actions violated both
statutes, but most particularly section 1512.
In United States v. Rodolitz 786 F2d 77 at 82 (2nd Cir 1986)
cert.
Den. 479 US 826 (1986), the United States Court of Appeals for the
2nd
Circuit said,
The most obvious example of a sec.
1512 violation may be
the situation where a defendant tells a potential
witness a
false story as if the story were true, intending
that the
witness believes the story and testify to
it before the grand
jury.
If the President's actions do not fit this example, I'm at a
loss to
know what actions do.
Seventh, and last, Article II alleges on or about January 21,
23, and
26, 1998, the President made false and misleading statements to
potential witnesses in a federal grand jury proceeding in order to
corruptly influence this testimony of those witnesses. The articles
further alleges these false and misleading statements were repeated
by
the witnesses to the grand jury, causing the grand jury to receive
false and misleading information.
The evidence will show that these statements were made to
presidential aides Mr. Sidney Blumenthal, Mr. Erskine Bowles, Mr. John
Podesta and Mr. Harold Ickes. They all testified to the grand jury.
By
his own admission seven months later, on August 17, 1998, during his
sworn grand jury testimony, the President said that he told a number
of
aides that he did not have an affair with Ms. Lewinsky and did not
[Page S226]
have sex with her. He told one aide, Mr. Sidney Blumenthal, that Miss
Monica Lewinsky came on to him and he rebuffed her. President Clinton
also admitted that he knew these aides might be called before the grand
jury as witnesses. The evidence will show they were called; they
related the President's false statements to the grand jury; and that
by
the time the President made his admission to the grand jury, the damage
had already been done.
This is a classic violation of 18 U.S.C. Section 1512.
The seven specific, allegations of obstruction of justice contained
in Article II were designed to prevent the judicial branch of
government, a separate and coequal branch, from doing its work in Ms.
Paula Jones' lawsuit. Based upon the allegation of Article 1 against
President Nixon in 1974, as well as repeated and calculated violations
of two key criminal obstruction statutes, William Jefferson Clinton
committed an impeachable offense.
In Article II, the evidence is conclusive that President Clinton
put
himself above the law in obstructing justice, not once, not just a
few
times, but as a part of a extensive scheme to prevent Ms. Jones from
obtaining the evidence she thought she needed to prove her civil rights
claims.
Complying with the law is the duty of all parties to lawsuits
and
those who are required to give truthful testimony. A defendant in a
federal civil rights action does not have the luxury to choose what
evidence the court may consider. He must abide by the law and the rules
of procedure. William Jefferson Clinton tried to say that the law did
not apply to him during his term of office in civil cases were
concerned. He properly lost that argument in the Supreme Court in a
unanimous decision.
Even though the Supreme Court decided that the President wasn't
above
the law and that Ms. Jones' case could proceed, William Jefferson
Clinton decided--and decided alone--to act as if the Supreme Court
had
never acted and that Judge Wright's orders didn't apply to him. What
he
did was criminal time and time again. These criminal acts were in
direct conflict with the President's obligation to take care the laws
be faithfully executed.
Based upon the repeated violations of federal criminal law,
its
effect upon the courts to find the truth, and the President's duty
to
take care that the laws be faithfully executed, if you find that the
President did indeed obstruct the administration of justice through
his
acts, I respectfully submit your duty will be to find William Jefferson
Clinton guilty with respect to Article II and to remove him from
office.
It is truly sad when the leader of the greatest nation in the
world
gets caught up in a series of events where one inappropriate and
criminal act leads to another, and another and another.
Even sadder is that the President himself could have stopped
this
process simply by telling the truth and accepting the consequences
of
his prior mistakes. At least six times since December 17, 1997, William
Jefferson Clinton could have told the truth and suffered the
consequences. Instead he chose lies, perjury, and deception. He could
have told the truth when he first learned that Ms. Lewinsky would be
a
witness in the Ms. Jones' case. He could have told the truth at his
civil deposition. He could have told the truth to Betty Currie. He
could have told the truth when the news media first broke the story
of
his affair. He could have told the truth to his aides and cabinet.
He
could have told the truth to the American people. Instead, he shook
his
finger at each and every American and said, ``I want you to listen
to
me,'' and proceeded to tell a straight-faced lie to the American
people. Finally, he had one more opportunity to tell the truth. He
could have told the truth to the grand jury. Had he told the truth
last
January, there would have been no independent counsel investigation
of
this matter, no grand jury appearance, no impeachment inquiry and no
House approval of articles of impeachment. And, we would not be here
today fulfilling a painful but essential constitutional duty. Instead,
he chose lies and deception, despite warnings from friends, aides,
and
members of the House and Senate that failure to tell the truth would
have grave consequences.
When the case against him was being heard by the House Judiciary
Committee, he sent his lawyers, who did not present any new evidence
to
rebut the facts and evidence sent to the House by the Independent
Counsel. Rather, they disputed the Committee's interpretation of the
evidence by relying on tortured, convoluted, and unreasonable
interpretations of the President's words and actions.
During his presentation to the House Judiciary Committee, the
President's very able lawyer, Charles Ruff, was asked directly, ``Did
the President lie?'' during his sworn grand jury testimony.
Mr. Ruff could have answered that question directly. He did
not, and
his failure to do so speaks a thousand words.
Is there not something sacred when a witness in a judicial proceeding
raises his or her right hand and swears before God and the public to
tell the truth, the whole truth, and nothing but the truth? Do we want
to tell the country that its leader gets a pass when he is required
to
give testimony under oath? Should we not be concerned about the effect
of allowing perjurious, false, and misleading statements by the
President to go unpunished on the truthfulness of anyone's testimony
in
future judicial or legislative proceedings? What do we tell the
approximately 115 people now in federal prison for the crime of
perjury?
The answers to all these questions ought to be obvious.
As elected officials, our opinions are frequently shaped by
constituents telling us their own stories. Let me tell you one related
to me about the poisonous results of allowing false statements under
oath to go unpunished.
Last October while the Starr report was being hotly debated,
one
circuit court judge for Dodge County, Wisconsin approached me on the
street in Mayville, Wisconsin. He said that some citizens had business
in his court and suggested that one of them take the witness stand
and
be put under oath to tell the truth. The citizen then asked if he could
tell the truth, ``just like the President.''
How many people who have to come to court to testify under oath
about
matters they would like to keep to themselves think about what that
citizen asked Judge John Storck? And, how will the courts be able to
administer the, ``equal justice under law'' we all hold so dear if
we
do not enforce the sanctity of that oath even against the President
of
the United States?
When each of us is elected or chosen to serve in public office,
we
make a compact with the people of the United States of America to
conduct ourselves in an honorable manner, hopefully setting a higher
standard for ourselves than we expect of others. That should mean we
are careful to obey all the laws we make, execute and interpret.
There is more than truth in the words, ``A public office is a
public
trust.''
When someone breaks that trust, he or she must be held accountable
and suffer the consequences for the breach. If there is no
accountability, that means that a President can set himself above the
law for four years, a Senator for six, a Representative for two, and
a
judge for life. that, Mr. Chief Justice, poses a far greater threat
to
the liberties guaranteed to the American people by the Constitution
that anything imaginable.
For the past 11 months, the toughest questions I've had to answer
have come from parents who want to know what to tell their children
about what President Clinton did.
Every parent tries to teach their children to know the difference
between right and wrong, to always tell the truth, and when they make
mistakes, to take responsibility for them and to face the consequences
of their actions.
President Clinton's actions at every step since he knew Ms.
Lewinsky
would be a witness in Mrs. Jones' case have been completely opposite
to
the values parents hope to teach their children.
But being a poor example isn't grounds for impeachment. Undermining
the rule of law is. Frustrating the courts' ability to administer
justice turns private misconduct into an attack upon the ability of
one
of the three branches of our government to impartially administer
justice. This is a direct attack upon the rule of law in our country
and a very public wrong
[Page S227]
that goes to the constitutional workings of our government and its
ability to protect the civil rights of even the weakest American.
What is on trial here is the truth and the rule of law. Failure
to
bring President Clinton to account for his serial lying under oath
and
preventing the courts from administering equal justice under law will
cause a cancer to be present in our society for generations.
Those parents who have asked the questions should be able to
tell
their children that even if you are the President of the United States,
if you lie when sworn to tell the truth, the whole truth and nothing
but the truth, you will face the consequences of that action even when
you won't accept the responsibility for it.
How those parents will answer those questions is up to the United
States Senate.
While how today's parents answer those questions is important,
equally important is what parents tell their children in the
generations to come about the history of our country and what has set
our government in the United States of America apart from the rest
of
the world.
Above the President's dais in this Senate chamber appears our
national motto. ``E pluribus unum''--``out of many, one.'' When that
motto was adopted more than two hundred years ago, the First Congress
referred to how thirteen separate colonies turned themselves into one,
united nation.
As the decades have gone by, that motto has taken an additional
meaning. People of all nationalities, faiths, creeds, and values have
come to our shores, shed their allegiances to their old countries and
achieved their dreams to become Americans.
They came here to flee religious persecution, to escape corrupt,
tyrannical and oppressive governments, and to leave behind the economic
stagnation and endless wars of their homelands.
They came here to be able to practice their faiths as they saw
fit--
free of government dictates and to be able to provide better lives
for
themselves and their families by the sweat of their own brows and the
use of their own intellect.
But they also came here because they knew America has a system
of
government where the Constitution and laws protect individual liberties
and human rights. Everyone--yes, everyone--can argue that this country
has been a beacon for individual citizen's ability to be what he or
she
can be.
They fled countries where the rulers ruled at the expense of
the
people, to America, where the leaders are expected to govern for the
benefit of the people.
And, throughout the years, America's leaders have tried to earn
the
trust of the American people, not by their words, but by their actions.
America is a place where government exists by the consent of
the
governed. And, that means our Nation's leaders must earn and re-earn
the trust of the people with every thing they do.
Whenever an elected official stumbles, that trust is eroded
and
public cynicism goes up. The more cynicism that exists about
government, its institutions, and those chosen to serve in them, the
more difficult the job is for those who are serving.
That's why it is important, yes vital, that when a cancer exists
in
the body politic, our job--our duty--is to excise it. If we fail in
our
duty, I fear the difficult and dedicated work done by thousands of
honorable men and women elected to serve not just here in Washington,
but in our State capitals, city halls, courthouses and school board
rooms will be swept away in a sea of public cynicism. We must not allow
the beacon of America to grow dim, or the American dream to disappear
with each waking morning.
In 1974, the Congress did its painful public duty when the President
of the United States broke the public trust.
During the last decade, both Houses impeached and removed three
Federal judges who broke their trust with the people.
During the last 10 years, the House of Representatives disciplined
two Speakers for breaking the rules and their trust with the public.
And, less than 6 years ago, this honorable Senate did the same
to a
senior Senator whose accomplishments were widely praised.
In each case, Congress did the right thing to help restore the
vital
trust upon which our Government depends. It wasn't easy, nor was it
always popular, but Congress did the right thing. Now, this honorable
Senate must do the right thing. It must listen to the evidence; it
must
determine whether William Jefferson Clinton repeatedly broke our
criminal laws and thus broke his trust with the people--a trust
contained in the Presidential oath put into the Constitution by the
Framers--an oath that no other Federal official must take--an oath
to
insure that the laws be faithfully executed.
How the Senate decides the issues to be presented in this trial
will
determine the legacy we pass to future generations of Americans.
The Senate can follow the legacy of those who have made America
what
it is.
The Senate can follow the legacy of those who put their ``lives,
fortunes and Sacred Honor'' on the line when they signed the
Declaration of Independence.
The Senate can follow the legacy of the Framers of the Constitution
whose preamble states that one of its purposes is, ``to establish
justice.''
The Senate can follow the legacy of James Madison and the Members
of
the First Congress who wrote and passed a Bill of Rights to protect
and
preserve the liberties of the American people.
The Senate can follow the legacy of those who achieved equal
rights
for all Americans during the 1960s in Congress, in the courts, and
on
the streets and in the buses and at the lunch counters.
The Senate can follow the legacy of those who brought President
Nixon
to justice during Watergate in the belief that no President can place
himself above the law.
The Senate can follow the legacy of Theodore Roosevelt who lived
and
governed by the principle that no man is above the law.
Within the walls of the Capitol and throughout this great country
there rages an impassioned and divisive debate over the future of this
presidency. This Senate now finds itself in the midst of the tempest.
An already immense and agonizing duty is made even more so because
the
whims of public opinion polls, the popularity and unpopularity of
individuals, even questions over the strength of our economy, risk
subsuming the true nature of this grave and unwelcome task.
We have all anguished over the sequence of events that have
led us to
this, the conclusive stage in the process. We have all identified in
our own minds where it could have, and should have stopped. But we
have
ended up here, before the Senate of the United States, where you, the
Senators, will have to render judgment based upon the facts.
A scientist in search of the basic nature of a substance begins
by
boiling away what is not of the essence. Similarly, the Senate will
sift through the layers of debris that shroud the truth. The residue
of
this painful and divisive process is bitter, even poisonous at times.
But beneath it lies the answer. The evidence will show that at its
core, the question over the President's guilt and the need for his
conviction will be clear. Because at its core, the issues involved
are
basic questions of right versus wrong--deceptive, criminal behavior
versus honesty, integrity and respect for the law.
The President engaged in a conspiracy of crimes to prevent justice
from being served. These are impeachable offenses for which the
President should be convicted. Over the course of the days and weeks
to
come, we, the House managers, will endeavor to make this case.
May these proceedings be fair and thorough. May they embody
our
highest capacity for truth and mutual respect. With these principles
as
our guides, we can begin with the full knowledge our democracy will
prevail and that our Nation will emerge a stronger, better place.
Our legacy now must be not to lose the trust the people should
have
in our Nation's leaders.
Our legacy now must be not to cheapen the legacies left by our
forebearers.
Our legacy must be to do the right thing based upon the evidence.
For the sake of our country, the Senate must not fail. Thank
you.
The CHIEF JUSTICE. The Chair recognizes Mr. Manager Bryant.
[Page S228]
Mr. Manager BRYANT. Mr. Chief Justice, Members of the Senate,
and my
distinguished colleagues from the bar, I am Ed Bryant, the
Representative from the Seventh District of Tennessee. During this
portion of the case, I, along with Representative Asa Hutchinson of
Arkansas, Representative James Rogan of California, and Representative
Bill McCollum of Florida, will present the factual elements of this
case. Our presentation is a very broad roadmap with which first I will
provide the history and background of the parties, followed by Mr.
Hutchinson and Mr. Rogan, who will review the articles of impeachment.
Mr. McCollum will close with a summation of these facts and evidence.
It is our intent to proceed in a chronological fashion, although
by
necessity, there will be some overlap of the facts and circumstances
arising from what I have called ``the four-way intersection collision''
of President William Jefferson Clinton, Ms. Paula Corbin Jones, Monica
Lewinsky, and the U.S. Constitution.
As a further preface to my remarks, permit me to say that none
of us
present here today in these hallowed Chambers relishes doing this job
before us. But we did not choose to be involved in that reckless
misconduct, nor did we make those reasoned and calculated decisions
to
cover up that misconduct which underlies this proceeding. However,
this
collision at the intersection, if you will, of the President, Ms.
Jones, and Ms. Lewinsky, is not in and of itself enough to bring us
together today. No. Had truth been a witness at this collision, and
prevailed, we would not be here. But when it was not present, even
under an oath to tell the truth, the whole truth and nothing but the
truth in a judicial matter, the impact of our Constitution must be
felt. Hence, we are together today--to do our respective duties.
By voting these articles of impeachment, the House is not attempting
to raise the standard of conduct to perfection for our political
leadership. Such a person does not walk the world today. Everyone falls
short of this mark everyday.
But political life is not so much about how an individual fails,
but
rather how the person reacts to that failure. For example, a person
campaigning for a political office admits wrongdoing in his past and
says he will not do that again. Most people accept that commitment.
He
is elected. Thereafter, he repeats this wrongdoing and is confronted
again. What does he do? He takes steps to cover up this wrongdoing
by
using his workers and his friends. He lies under oath in a lawsuit
which is very important to the person he is alleged to have harmed.
He
then takes a political poll as to whether he should tell the truth
under oath. The poll indicates the voters would not forgive him for
lying under oath. So he then denies the truth in a Federal grand jury.
If this person is the President of the United States, the House of
Representatives would consider articles of impeachment. It did and
voted to impeach this President.
But do not let it be argued in these chambers that ``We are
not
electing Saints, we are electing Presidents.'' Rather, let it be said
that we are electing people who are imperfect and who have made
mistakes in life, but who are willing to so respect this country and
the Office of the President that he or she will now lay aside their
own
personal shortcomings and have the inner strength to discipline
themselves sufficiently that they do not break the law which they
themselves are sworn to uphold.
Every trial must have a beginning and this trial begins on a
cold day
in January 1993.
[Video presentation.]
Mr. Manager Bryant. I had expected a video portion, but all
of you
heard the audio portion. As you can hear from the audio portion--
perhaps some of you can see--William Jefferson Clinton, placed his
left
hand on the Bible in front of his wife, the Chief Justice and every
American watching that day and affirmatively acknowledged his oath
of
office. On that every day and again in January of 1997, the President
joined a privileged few. He became only the 42nd person in our Nation
to make the commitment to ``faithfully execute'' the office of the
President and to ``preserve, protect and defend the Constitution.''
He
has the complete executive power of the Nation vested in him by virtue
of this Constitution.
As we progress throughout the day, I would ask that you be reminded
of the importance of this oath. Before you is a copy of it and
certainly available as anyone would like to look at it on breaks.
William Jefferson Clinton is a man of great distinction. He
is well-
educated with degrees from Georgetown University and Yale Law School.
He has taught law school courses to aspiring young lawyers. He served
as Governor and Attorney General for the State of Arkansas, enforcing
the laws of that state. The President now directs our great Nation.
He
sets our agenda and creates national policy in a very public way--he
is
in fact a role model for many.
President Clinton also serves as the Nation's chief law enforcement
officer.
It is primarily in this capacity that the President appoints
Federal
judges. Within the executive branch, he selected Attorney General Janet
Reno and appointed each of the 93 United States Attorneys who are
charged with enforcing all Federal, civil and criminal law in Federal
courthouses from Anchorage, Alaska to Miami, Florida and from San
Diego, California to Bangor, Maine.
Before you we have another chart which shows the schematics
of the
Department of Justice and how it is under the direct control of the
President through his Cabinet, Attorney General and then down to such
functions as the Federal Bureau of Investigation, the Drug Enforcement
Administration, Immigration, U.S. Marshals Office, Bureau of Prisons
and so many other very important legal functions this Federal
Government performs.
As protectors of our Constitution, the U.S. Attorneys and their
assistants prosecute more than 50,000 cases per year.
Through these appointments and his administration's policies,
the
President establishes the climate in this country for law and order.
Each and every one of these 50,000 cases handled by his United States
Attorneys is dependent upon the parties and witnesses telling the truth
under oath. Equally as important in these proceedings is that justice
not be obstructed by tampering with witnesses nor hiding evidence.
Quoting from the November 9, 1998 Constitution Subcommittee
testimony
of attorney Charles J. Cooper, a Washington, DC attorney, he states:
The crimes of perjury and obstruction
of justice, like the
crimes of treason and bribery, are quintessentially
offenses
against our system of government, visiting
injury immediately
upon society itself, whether or not committed
in connection
with the exercise of official government powers.
Before the
framing of our Constitution and since, our
law has
consistently recognized that perjury primarily
and directly
injures the body politic, for it subverts
the judicial
process and this strikes at the heart of the
rule of law
itself.
Professor Gary McDowell, the Director at the Institute for United
States Studies at the University of London, also testified in the same
hearing in reference to the influential writer William Paley, and this
is also in chart form for those who would like review it later. Paley
saw the issue of oaths and perjury as one of morality as well as law.
Because a witness swears that he will speak the truth, the whole truth
and nothing but the truth, a person under oath cannot cleverly lie
and
not commit perjury. If the witness conceals any truth, Paley writes,
that relates to the matter in adjudication, that is as much a violation
of the oath, as to testify a positive falsehood. Shame or embarrassment
cannot justify his concealment of truth, linguistic contortions with
the words used cannot legitimately conceal a lie, or if under oath,
perjury.
Professor McDowell concludes with a quote from Paley which accurately
provides, I believe the essence of a lie or perjurious statement. ``It
is willful deceit that makes the lie; and we willfully deceive, where
our expressions are not true in the sense in which we believe the
hearer apprehends them.''
Neither has this United States Senate been silent on the issue
of
perjury. You have rightfully recognized through previous impeachment
proceedings the unacceptable nature of a high government official lying
under oath, even in matters initially arising from what some would
argue here are merely personal. In 1989, many of you present
[Page S229]
today, using the very same standard which is section 4 of the
Constitution, which is set forth there, for impeaching a federal judge
or the President, many of you actually voted in support of a conviction
and the removal of a U.S. District judge under oath.
Indeed, truth-telling is the single most important judicial
precept
underpinning this great system of justice we have, a system which
permits the courthouse doors to be open to all people, from the most
powerful man in America to a young woman from Arkansas.
On May 6, 1994, Paula Corbin Jones attempted to open that courthouse
door when she filed a Federal sexual harassment lawsuit against
President Clinton. The case arose from a 1991 incident when she was
a
State employee and he was the Governor. Further details of the
underlying allegations are not important to us today, but Ms. Jones'
pursuit for the truth is worth a careful study.
The parties first litigated the question of whether Ms. Jones'
lawsuit would have to be deferred until after the President left
office. The Supreme Court unanimously rejected the President's
contention and allowed the case to proceed without further delay.
Ms. Jones sought and, appropriately, won ``her day in court.''
Incumbent with this victory, however, was the reasonable expectation
that President Clinton would tell the truth.
After all, this was the most important case in the whole world
to
Paula Corbin Jones.
Notwithstanding this, that fact didn't happen, that the President
told the truth. Even after the President was ordered to stand trial,
pursuing the truth for Ms. Jones remained an elusive task. The evidence
will indicate that President Clinton committed perjury and orchestrated
a variety of efforts to obstruct justice, all of which--all of which--
had the effect of preventing the discovery of truth in the Paula Jones
case.
During the discovery phase, Judge Susan Webber Wright of the
U.S.
District Court for the Eastern District Court of Arkansas ordered the
President to answer certain historical questions about his sexual
relations with either State or Federal employees.
In part, Judge Wright said:
The Court finds, therefore, that
the plaintiff is entitled
to information regarding any individuals with
whom the
President had sexual relations or proposed
or sought to have
sexual relations and who were during the relevant
time frame
state or federal employees.
Judge Wright validated Ms. Jones' right to use this accepted
line of
questioning in sexual harassment litigation. More often than not, these
cases involve situations where ``he said/she said,'' and they produce
issues of credibility and are often done in private. Because of this,
they are really difficult for a victim to prove.
Such standard questions are essential in establishing whether
the
defendant has committed the same kind of acts before or since--in other
words, a pattern or practice of harassing conduct. The existence of
such corroborative evidence, or the lack thereof, is likely to be
critical in these types of cases. Both the Equal Employment Opportunity
Commission guidelines and the Federal Rules of Evidence permit this
type of evidence. In short, a defendant's sexual history, at least
with
respect to other employees, is ordinarily discoverable in a sexual
harassment lawsuit.
To not expect a defendant in this type of litigation to speak
the
truth creates, in its worst case, a very real danger to the entire
area
of sexual harassment law which would be irreparably damaged and, in
its
best case, sends out a very wrong message. As such, the will and intent
of Congress with regard to providing protection against sexual
harassment in the workplace would be effectively undermined.
The ``pattern and practice'' witnesses whom Paula Corbin Jones
was
entitled to discover should have included the name of Monica Lewinsky.
But before I discuss the Ms. Lewinsky matter, I want to offer three
matters of cause to each of you as jurors in this very important
matter.
No. 1, I do not intend to discuss the specific details of the
President's encounters with Ms. Lewinsky. However, I do not want to
give the Senate the impression that those encounters are irrelevant
or
lack serious legal implications. In fact, every day in the courtrooms
all across America, victims of sexual harassment, of rape, assault,
and
abuse must testify, in many public cases, in order to vindicate their
personal rights and society's right to be free of these intolerable
acts.
The President's lies about his conduct in the Oval Office with
Ms.
Lewinsky also make these unseemly details highly relevant. If you are
to accept the President's version about the relationship, you must
in
effect say to Ms. Lewinsky that she is the one who is disregarding
the
truth. But beyond this, his denials also directly contradict Ms.
Lewinsky's testimony, not only directly contradict Ms. Lewinsky's
testimony, but also contradict eight of her friends and the statements
by two professional counselors with whom she contemporaneously shared
details of her relationship. By law, their testimony may serve as
proper and admissible evidence to corroborate her side of this
important story.
No. 2, the evidence and testimony in this proceeding must be
viewed
as a whole; it cannot be compartmentalized. Please do not be misled
into considering each event in isolation and then treating it
separately. Remember, events and words that may seem innocent or even
exculpatory in a vacuum may well take on a sinister or even criminal
connotation when observed in the context of the whole plot.
For example, we all agree that Ms. Lewinsky testified, ``No
one ever
told me to lie . . .'' When considered alone, this statement would
seem
exculpatory. In the context of other evidence, however, we see that
this one statement gives a misleading inference. Of course no one said,
``Now, Monica, you go down there and lie.'' They didn't have to. Based
upon their previous spoken and even unspoken words, Ms. Lewinsky knew
what was expected of her. Surely, if the President were to come on
to
the Senate floor and give testimony during this proceeding, he would
not tell you that he honestly expected her to tell the truth about
their personal relationship. After all, the purpose of her filing the
false affidavit was to avoid testifying in the Jones case and
discussing the nature of their relationship. If she had told the truth
in that affidavit, instead of lying, she would have been invited to
testify immediately, if not sooner.
No. 3, throughout our presentation of the facts, especially
as it
relates to the various illegal acts, I ask you to pay particular
attention to what I call the big picture. Look at the results of those
various acts as well as who benefited. Please make a mental note now,
if you can, and ask yourself always, as you look at each one of these
illegal acts that are presented to you: A, What was the result of that
illegal act? and, B, Who benefited from that illegal act?
I believe you will find that the evidence will show that while
the
President's ``fingerprints'' may not be directly on the evidence
proving these illegal acts, the result of the acts usually inures to
the benefit of the President, and the President alone. Subordinates
and
friends alike are drawn into this web of deceit. The President is
insulated. Crimes are committed. Justice is denied. The rule of law
is
suspended. And this President is the beneficiary.
Some examples:
No. 1, subpoenaed evidence disappears from Ms. Lewinsky's apartment
and reappears under Ms. Currie's bed. What was the result of that?
Who
had the benefit of that?
No. 2, Ms. Lewinsky files a false affidavit in the Jones case.
What
is the result of filing that false affidavit and who benefited from
that?
No. 3, the President's attorney files the Lewinsky affidavit,
not
knowing it was false, representing to the Court that ``there is
absolutely no sex of any kind in any manner, shape, or form,'' while
the President sits in the deposition and does not object to that--very
silently sits in the deposition. What was the result of that? And who
benefited from that filing of the affidavit?
No. 4, and finally, Ms. Lewinsky, after months of job searching
in
New York City, is offered a job with a Fortune 500 company in New York
City within 48 hours of her signing this false affidavit. Who shared
the results of that with Ms. Lewinsky? And who obtained the benefit
of
that?
Another example occurred in a meeting between the President
and Ms.
[Page S230]
Lewinsky in July--on July 4, 1997, to be specific--when, as a part of
their conversation, she mentioned she heard someone from Newsweek was
working on a story about Kathleen Willey. The President has Ms.
Lewinsky back for a visit on July 14, some 10 days later, following
his
return from an overseas trip. She was questioned about the Willey
story, and specifically if Linda Tripp had been her source.
Important to this point--important to this point--the President
then
asked Ms. Lewinsky to try to persuade Ms. Tripp to call White House
Legal Counsel Bruce Lindsey. The President told her to notify Ms.
Currie the following day, ``without getting into the details with her,
even mentioning names with her,'' whether Ms. Lewinsky had ``mission
accomplished'' with Linda. And as you will learn from Mr. Hutchinson,
who will follow me with his presentation, this is very similar to the
method of operation with another job the President requested be done,
which in that case succeeded with a ``mission accomplished.'' I ask
you
to watch for that in Mr. Hutchinson's presentation.
I want to now rewind the clock back to November of 1995. We
are here
in Washington where Ms. Lewinsky has been working at the White House
since July of 1995.
As you continue to listen to the evidence, from this point on
November 15 forward, remember that Ms. Lewinsky and the President were
alone in the Oval Office workplace area at least 21 times. And I have
a
list of these, in chart form, beginning in November of 1995, and going
through 1996 and into the early part of 1997, continuing through the
year. During that time, they had at least 11 of the so-called salacious
encounters there in the workplace at various times during the day and
night: Three in 1995, five in 1996, and three in 1997.
They also had in excess of 50 telephone conversations, most
of which
appear to have been telephone calls to and from Ms. Lewinsky's home.
And I have a schedule of all these telephone calls to show you, the
50-
plus telephone calls. Also, they exchanged some 64 gifts, with the
President receiving 40 of these gives and Ms. Lewinsky receiving 24
of
these gifts. And again we have charts that reflect the receipt of both
sets of gifts. And again these charts will be here in the front, always
available for your inspection.
We also note that their affair began on November 15th. Interestingly,
there is even a conflict here with the President. According to Ms.
Lewinsky, they had never spoken to each other up to that point. Yet,
he
asked an unknown intern into the Oval Office and kissed her and then
invited her back to return later that day, when the two engaged in
the
first of the 11 acts of misconduct.
The contradiction is in the statement that the President relied
upon
in his grand jury testimony that has been referenced earlier--very
carefully worded--and that statement, the President gave in testimony
before the grand jury about meeting in this relationship. And he says,
``I regret that what began as a friendship came to include this conduct
. . .'' Almost as if it had evolved over a period of time. So there
is
very clearly a conflict there.
As Ms. Lewinsky's internship was ending that year, she did apply
and
receive a paying job with the White House Office of Legislative
Affairs. This position allowed her even more access to the Oval Office
area. She remained a White House employee until April 1996 when she
was
reassigned to the Pentagon. The proof will show that Ms. Evelyn
Lieberman, Deputy Chief of Staff at the time, believed that the
transfer was necessary because Ms. Lewinsky was so persistent in her
efforts to be near the President. Although Ms. Lieberman could not
recall hearing any rumors linking her and the President, she
acknowledged the President was vulnerable to these kinds of rumors.
While Ms. Lewinsky tried to return to work in the White House, her
absence was appreciated by those on the President's staff who wanted
to
protect him.
After she began her job at the Pentagon in April, there was
no
further physical contact with the President through the 1996 election
and the remainder of that year. The two communicated by telephone and
on occasion saw each other at public events. Their only attempt at
a
private visit in the Oval Office was thwarted because Ms. Lieberman
was
nearby. On December 17, she attended a holiday celebration at the White
House and had a photograph made shaking hands with the President.
However, the evidence establishes that in 1997, Ms. Lewinsky
was more
successful in arranging visits to the White House. This was because
she
used the discreet assistance of Ms. Currie, the President's secretary,
to avoid the likes of Ms. Lieberman. Ms. Currie indicated she did not
want to know the details of this relationship. Ms. Currie testified
on
one occasion when Ms. Lewinksy told her, ``As long as no one saw us--
and no one did--then nothing happened.'' Ms. Currie responded, ``Don't
want to hear it. Don't say any more. I don't want to hear any more.''
Early on during their secret liaisons, the two concocted a cover
story to use if discovered. Ms. Lewinksy was to say she was bringing
papers to the President. The evidence will show that statement to be
false. The only papers that she ever brought were personal messages
having nothing to do with her duties or the President's. The cover
story plays an important role in the later perjuries and the
obstruction of justice.
Ms. Lewinksy stated that the President did not expressly instruct
her
to lie. He did, however, suggest, indeed, the ``misleading'' cover
story. When she assured him that she planned to lie about the
relationship, he responded approvingly. On the frequent occasions that
she promised that she would ``always deny'' the relationship and
``always protect him,'' for example, the President responded, in her
recollection, ``That's good,'' or something affirmative. Not ``Don't
deny it.''
The evidence will establish further that the two of them had,
in her
words, ``a mutual understanding'' that they would ``keep this private,
so that meant deny it and . . . take whatever appropriate steps needed
to be taken.'' When she and the President both were subpoenaed in the
Jones case, Ms. Lewinksy anticipated that ``as we had on every other
occasion and every other instance of this relationship, we would deny
it.''
In his grand jury testimony, President Clinton acknowledged
that he
and Ms. Lewinsky ``might have talked about what to do in a nonlegal
context'' to hide their relationship and that he ``might well have
said'' that Ms. Lewinsky should tell people she was bringing letters
to
him or coming to visit Ms. Currie. He always stated that ``I never
asked Ms. Lewinsky to lie.''
But neither did the President ever say that they must now tell
the
truth under oath; to the contrary, as Ms. Lewinsky stated: ``It wasn't
as if the President called me and said, `You know, Monica, you're on
the witness list, this is going to be really hard for us, we're going
to have to tell the truth and be humiliated in front of the entire
world about what we've done,' which I would have fought him on
probably,'' she said. ``That was different. By not calling me and
saying that, you know, I knew what that meant,'' according to Monica
Lewinsky.
In a related but later incident that Mr. Hutchinson may refer
to,
Monica Lewinsky testified that President Clinton telephoned her at
home
around 2 o'clock or 3 o'clock one morning on December 17, 1997--2:00
or
2:30 a.m. He told her that her name was on the list of possible
witnesses to be called in the Paula Jones lawsuit. When asked what
to
do if she was subpoenaed, the President suggested that she could sign
an affidavit. Ms. Lewinsky indicated that she was 100 percent sure
that
he had suggested that she might want to sign an affidavit. She
understood his advice to mean that she might be able to execute an
affidavit that would not disclose the true nature of their
relationship.
When Ms. Lewinsky agreed to that false affidavit, she told the
President by telephone that she would be signing it and asked if he
wanted to see it before she signed it. According to Ms. Lewinsky, the
President responded that he did not, as he had already seen about 15
others.
Concurrent with these events I just described, the evidence
will
further demonstrate that as Ms. Lewinsky attempted to return to work
at
the White House after the 1996 elections, she
[Page S231]
spoke with the President. According to Betty Currie, the President
instructed Betty Currie and Marsha Scott, Deputy Director of Personnel,
to assist in her return to the White House. In the spring of 1997,
she
met with Ms. Scott. She complained in subsequent notes to Ms. Scott
and
the President about no progress being made with her getting back to
the
White House. On July 3rd of that year, she dispatched a more formal
letter to the President--in fact, using the salutation, ``Dear Sir,''--
and raising a possible threat that she might have to tell her parents
about why she no longer had a job at the White House if they don't
get
her another job. She also indicated a possible interest in a job in
New
York at the United Nations. The President and Ms. Lewinsky met the
next
day in what Ms. Lewinsky characterized as a ``very emotional'' visit,
including the President scolding her that it was illegal to threaten
the President of the United States. Their conversation eventually moved
on to other topics, though primarily her complaining about his failure
to get her a job at the White House.
Continuing with Ms. Lewinsky's effort to return to work near
the
President, there was a July 16th meeting and September 3rd telephone
call with Ms. Scott. On the evening of September 30, the President
advised Ms. Lewinsky that he would have Chief of Staff Erskine Bowles
help with a job search, and Bowles later passed this on to John
Podesta, although each recalled their involvement occurring earlier
in
the year.
A few days later, however, her hopes of a job at the White House
quickly ended. On October 6, she had a conversation with Linda Tripp
who told her that she would never return to the White House, according
to a friend of hers on the staff. Learning this ``secondhand'' was,
according to Ms. Lewinsky, the ``straw that broke the camel's back.''
She decided to ask the President for a job in New York with the United
Nations and sent him a letter to that effect on October 7.
During an October 11 meeting with the President, he suggested
that
she give him a list of New York companies which interested her. She
asked if Vernon Jordan might also help. Five days later, she provided
the President with her ``wish list'' and indicated that she was no
longer interested in the U.N. position, although she did receive an
offer on November 24th and declined it on January 5, 1998.
After this meeting with the President, arrangements were made
through
the President and Ms. Currie for Ms. Lewinsky to meet with Mr. Jordan.
On the morning of November 5, 1997, Mr. Jordan spoke by telephone with
the President about 5 minutes and later met with Ms. Lewinsky for the
first time for about 20 minutes. According to Ms. Lewinsky, Mr. Jordan
told her he had spoken with the President, that she came highly
recommended and that ``We're in business.''
However, the evidence reflects that Mr. Jordan took no steps
to help
Ms. Lewinsky until early December of that year after she appeared on
the witness list in the Jones case. Actually, Mr. Jordan testified
in
his grand jury testimony that he had no recollection of even having
met
Ms. Lewinsky on November 5.
When he was shown documentary evidence demonstrating that his
first
meeting with Ms. Lewinsky occurred in early November, he acknowledged
that such meeting ``was entirely possible.'' You can see that was not
to be a high priority for Mr. Jordan at that time, until December.
For many months, Ms. Lewinsky had not been able to find a job
to her
satisfaction--even without the perceived ``help'' of various people.
Then in December of 1997, something happened which caused those
interested in finding Ms. Lewinsky a job in New York to intensify their
search. Within 48 hours of her signing this false affidavit in the
Paula Jones case, Ms. Lewinsky had landed a job with a prestigious
Fortune 500 Company.
It is anticipated that attorneys for the President will present
arguments which will contest much of the relationship with Monica
Lewinsky. The President has maintained throughout the last several
months that while there was no sexual relationship or sexual affair,
in
fact, there was some type of inappropriate, intimate contact with her.
What has now been dubbed as ``legal gymnastics'' on the part of the
President has made its appearance.
Other examples followed. Within his definition of the word ``alone,''
he denies being alone with Ms. Lewinsky at any time in the Oval Office.
He also questions the definition of the word ``is.'' ``It depends on
what the word `is' means in how you answer a particular question.''
Further, we would expect the President to continue to disavow knowledge
of why evidence detrimental to his defense in the Jones case was
removed from Ms. Lewinsky's apartment and hidden beneath Ms. Currie's
bed or knowledge of how Ms. Lewinsky found herself with an employment
offer in New York virtually at the same time she finally executed an
affidavit in the Jones case.
Unfortunately, for your search for the truth in these proceedings,
the President continues today to parse his words and use ``legal
hairsplitting'' in his defense. I cite for your consideration his
Answer filed with this body just days ago. For instance:
1. Responding in part to the impeachment article I, the President
persists in a wrongheaded fashion with his legal hairsplitting of the
term ``sexual relations,'' which permits him to define that term in
such a way that in the particular salacious act we are talking about
here, one person has sex and the other person does not. As a graduate
of one of the finest law schools in America and as a former law
professor and attorney general for the State of Arkansas, the President
knows better. I have this statement here extracted out of the
President's Answer to this proceeding.
2. Responding to both articles of impeachment, the President
now
would have you believe that he ``was not focusing'' when his attorney,
Bob Bennett, was objecting during the deposition and attempting to
cut
off a very important line of questioning of the President by
representing to Judge Wright that Ms. Lewinsky's affidavit proved that
there is no need to go into this testimony about the President's life.
He said that this affidavit proves that ``there is absolutely no sex
of
any kind, in any manner, shape or form.'' Remember that this is the
same President who now pleads that he lost his focus during this very
important part of this deposition. This is the very same President
who
is renowned for his intelligence and his ability ``to
compartmentalize,'' to concentrate and focus on whatever matter is
at
hand. And now he comes before this Senate, to each one of you, in his
Answer, by and through his attorneys, and pleads that he simply wasn't
paying attention at this very important point during his own
deposition. In Tennessee, we have a saying for situations like that:
``That dog won't hunt.''
3. In his further response to article I, the President effectively
admits guilt to obstruction. As I read this, his pleadings refer to
the
President himself, and he states that he, the President, ``truthfully
explained to the grand jury his efforts to answer the questions in
the
Jones deposition without disclosing his relationship with Ms.
Lewinsky.'' So he said he did answer the questions in the Jones
deposition in a way so as not to disclose his relationship with Ms.
Lewinsky. At the bottom of the same page, he denies that he attempted
``to impede the discovery of evidence in the Jones case.'' Think about
this with me for a minute. Basically, the purpose of the Jones
deposition of the President was to secure truthful testimony about
these kinds of ``pattern and practice'' witnesses, and therein discover
the likes of Monica Lewinsky. That is the purpose of being there. The
President admitted in his Answer that he purposely answered questions
so as not to disclose his relationship with Ms. Lewinsky. Said another
way, he intentionally answered questions to avoid the discovery of
one
of these female employees with whom he was sexually involved. That
is
precisely, folks, what impeding the discovery of evidence is.
I ask you, if you get an opportunity, to look at this very closely.
4. In his answer to article II, the President ``denies that
he
encouraged Monica Lewinsky to execute a false affidavit in the Jones
case.'' When everything is said and done, Ms. Lewinsky had no
motivation, no reason whatsoever to want to commit a crime by willfully
submitting a false affidavit with a court of law. She really did not
[Page S232]
need to do this at that point in her life, but this 20-something-year-
old young lady was listening to the most powerful man in the United
States, whom she greatly admired, hearing him effectively instruct
her
to file a false affidavit to avoid having to testify about their
relationship. And in order to do that, she had to lie about the
physical aspects of their relationship. According to her, the President
didn't even want to see that actual affidavit because he had seen 15
more just like it and as such he knew what it would be.
5. In an additional response to article II, the President answers
and
asserts that ``he believed that Ms. Lewinsky could have filed a limited
and truthful affidavit that might have enabled her to avoid having
to
testify in the Jones case.'' That is an incredible statement. That
is
an incredible statement given the fact that the President knew
firsthand of the extent of their sexual relationship, and he also knew
that the Jones discovery efforts were specifically after that type
of
conduct. Even with the best of the legal hairsplitting, it is still
difficult to envision a truthful affidavit from Ms. Lewinsky that could
have skirted this issue enough to avoid testifying.
And if you really think the President had this belief, don't
you
think he would have accepted Ms. Lewinsky's offer to review her
affidavit and perhaps share this bit of wisdom he had with her before
she signed it and lied? After all, in this answer he just filed, he
says he had an out for her, a way for her to have the best of both
worlds--not to have to lie and still avoid testifying in the Jones
case. Why didn't he share that with her when she gave him the
opportunity if he in fact had such an idea? I suggest that perhaps
that
is a recent idea.
Even if, for some reason, you don't believe Ms. Lewinsky offered
to
share that affidavit with him, don't you think it still would have
been
in the President's best interest to give Ms. Lewinsky his thoughts
before she violated the law with a completely false affidavit?
Now, indeed, is the time to stop the legal gymnastics and
hairsplitting and deal with these charges and facts appropriately.
As a House manager, I believe I can speak for all of us out
of a
sense of fairness, and again request that we and the President be
permitted to call witnesses. I submit that the state of the evidence
is
such that unless and until the President has the opportunity to
confront and cross-examine witnesses like Ms. Lewinsky, and himself,
to
testify if he desires, there could not be any doubt of his guilt on
the
facts. A reasonable and impartial review of the record as it presently
exists demands nothing less than a guilty verdict.
While it has been the consistent defense of the White House
to be
inconsistent, it still comes as something of a surprise that the
President has not made a stronger case for the calling of witnesses.
Before now, he has aggressively sought the opportunity to challenge
the
truth and veracity of witnesses in these impeachment proceedings.
During the hearings in the House, which many believe are analogous
to a
grand jury proceeding, the President's defenders and his attorneys
consistently complained of the failure to call witnesses and the lack
of fairness and due process. Almost every day, there were partisan
attacks from the White House and its emissaries who were dispatched
throughout the media talk shows with the same complaints of no
witnesses.
And always, our measured response was a calm assurance that
there
would be witnesses called during the trial phase in the Senate. Is
there any doubt that our forefathers intended a two-step impeachment
proceeding?
The House would function as the Grand Jury and determine whether
to
charge--to impeach. Then you, as the trier of fact, would function
as
the jury to try the case and weigh the testimony of the fact witnesses.
In recent days, some have publically asserted that the House is
hypocritical because it didn't call some of the fact witnesses it now
asks to call in the Senate. For the record, it must be noted that the
House Judiciary Committee, out of an abundance of fairness, did allow
the President's defense team 30 hours in which to present any witnesses
that they could have chosen and they could have examined.
But any allegation of hypocrisy certainly appears to miss the
point
that the writers of our Constitution never contemplated two separate
trials for an impeachment proceeding. But now we would respectfully
suggest is the time for witnesses.
All Americans, including the President, are entitled to enjoy
a
private family life, free from public or governmental scrutiny. But
the
privacy concerns raised in this case are subject to limits, three of
which I will briefly discuss here.
First. The first limit was imposed when the President was sued
in
federal court for alleged sexual harassment. The evidence in such
litigation is often personal. At times, that evidence is highly
embarrassing for both plaintiff and defendant. As Judge Wright noted
at
the President's January 1998 deposition, ``I have never had a sexual
harassment case where there was not some embarrassment.'' Nevertheless,
Congress and the Supreme Court have concluded that embarrassment-
related concerns must give way to the greater interest in allowing
aggrieved parties to pursue their claims. Courts have long recognized
the difficulties of proving sexual harassment in the work place,
inasmuch as improper or unlawful behavior often takes place in private.
To excuse a party who lied or concealed evidence on the ground that
the
evidence covered only ``personal'' or ``private'' behavior would
frustrate the goals that Congress and the courts have sought to achieve
in enacting and interpreting the Nations's sexual harassment laws.
That
is particularly true when the conduct that is being concealed--sexual
relations in the workplace between a high official and a young
subordinate employee--itself conflicts with those goals.
Second. The second limit was imposed when Judge Wright required
disclosure of the precise information that is in part the subject of
this hearing today. A federal judge specifically ordered the President,
on more than one occasion, to provide the requested information about
relationships with other women, including Ms. Lewinsky. The fact that
Judge Wright later determined that the evidence would not be admissible
at trial, and still later granted judgment in the President's favor,
does not change the President's legal duty at the time he testified.
Like every litigant, the President was entitled to object to the
discovery questions, and to seek guidance from the court if he thought
those questions were improper. But having failed to convince the court
that his objections were well founded, the President was duty bound
to
testify truthfully and fully. Perjury and attempts to obstruct the
gathering of evidence can never be an acceptable response to a court
order, regardless of the eventual course or outcome of the litigation.
The Supreme Court has spoken forcefully about perjury and other
forms
of obstruction of justice: ``In this constitutional process of securing
a witness' testimony, perjury simply has no place whatever. Perjured
testimony is an obvious and flagrant affront to the basic concepts
of
judicial proceedings. Effective restraints against this type of
egregious offense are therefore imperative.''
The insidious effects of perjury occur whether the case is civil
or
criminal. Only a few years ago, the Supreme Court considered a false
statement made in a civil administrative proceeding: ``False testimony
in a formal proceeding is intolerable. We must neither reward nor
condone such a `flagrant affront' to truth-seeking function of
adversary proceedings * * * Perjury should be severely sanctioned in
appropriate cases.'' Stated more simply, ``perjury is an obstruction
of
justice.''
Third. The third limit is unique to the President. ``The Presidency
is more than an executive responsibility. It is the inspiring symbol
of
all that is highest in American purpose and ideals.'' As the head of
the Executive Branch, the President has the constitutional duty to
``take Care that the Laws be faithfully executed.'' The President gave
his testimony in the Jones case under oath and in the presence of a
federal judge, a member of a co-equal branch of government; he then
testified before a federal grand jury, a body of citizens who had
themselves taken an oath to seek the truth. In view of the enormous
trust and responsibility attendant to his high Office, the President
has a manifest duty to ensure that
[Page S233]
his conduct at all times complies with the law of the land.
In sum, perjury and acts that obstruct justice by any citizen--
whether in a criminal case, a grand jury investigation, a congressional
hearing, a civil trial or civil discovery--are profoundly serious
matters. When such acts are committed by the President of the United
States, those acts are grounds for conviction and removal from his
Office.
Mr. LOTT addressed the Chair.
The CHIEF JUSTICE. The Chair recognizes the majority leader.
Mr. LOTT. Mr. Chief Justice, I ask unanimous consent that there
now
be a recess of the proceedings for 15 minutes.
The CHIEF JUSTICE. Is there objection?
Mr. Manager BRYANT. Mr. Chief Justice, I have just about 1 minute,
and I will conclude.
Mr. LOTT. I withhold my request.
The CHIEF JUSTICE. Very well.
Mr. Manager BRYANT. Thank you.
As I reach the conclusion of my presentation, the time line
is now in
December of 1997. Following her November 5th meeting with Mr. Jordan,
Ms. Lewinsky had no communication with him or the President for a
month. Then in early December, the parties in the Jones case exchanged
witness lists and Ms. Lewinsky was scheduled as a potential witness
by
the Jones' attorneys. On or about that same day, Ms. Lewinsky attempted
to make an uninvited visit to the White House and later that day, was
allowed in by the President. But it was during this time, in December
of 1997, that some of the seams began to unravel for the President.
I will conclude my remarks at this point and thank the Chief
Justice
and the Members of the Senate for their careful attention. My colleague
from Arkansas, Mr. Hutchinson will follow me now or at the end of any
recess as may be necessary.
RECESS
Mr. LOTT. Mr. Chief Justice, my apologies to the manager for
the
interruption at the end of his remarks.
I renew my request of unanimous consent to take a 15-minute
recess.
The CHIEF JUSTICE. In the absence of an objection, it is so
ordered.
(Thereupon, the Senate, sitting as a Court of Impeachment, at
3:07
p.m., recessed until 3:30 p.m.)
The CHIEF JUSTICE. The majority leader is recognized.
Mr. LOTT. I believe, Mr. Chief Justice, we are prepared now
to go
forward with the next manager's presentation.
The CHIEF JUSTICE. Very well, the Chair recognizes Manager
Hutchinson.
Mr. Manager HUTCHINSON. Mr. Chief Justice, Senators, I am Asa
Hutchinson, a Member of Congress from the Third Congressional District
of Arkansas. I am grateful for this opportunity, although it comes
with
deep regret, to be before you. I do want to tell you in advance that
we
have presented to you, on your tables, a selection of charts that I
will be referring to here so everyone will have the advantage of being
able to see at least in some fashion the charts to which I will be
referring. And we will have the charts here as well.
This is certainly a humbling experience for a smalltown lawyer.
I
learned to love and to respect the law trying cases in the courtrooms
of rural Arkansas. The scene is different in this setting, in this
historic Chamber with the Chief Justice presiding and Senators sitting
as jurors. But what is at stake remains the same.
In every case heard in every courtroom across this great country,
it
is the truth, it is justice, it is the law that are at stake. In this
journey on Earth, there is nothing of greater consequence for us to
devote our energies than to search for the truth, to pursue equal
justice and to uphold the law. It is for those reasons that I serve
as
a manager. And as you, I hope that I can help in some way to bring
this
matter to a conclusion for our country. This afternoon I will be
discussing the evidence and the testimony from witnesses that we do
hope to call, and during my presentation I will be focusing on the
evidence that demonstrates obstruction of justice under article II.
You might wonder, well, why are we going to article II before
we have
covered article I on perjury? And the answer is that in a chronological
flow, article II, the obstruction facts, precede much of the perjury
allegations. And so, following my presentation, Manager Rogan will
present article I on perjury.
The presentation I make will be based upon the record, the evidence,
the facts that have been accumulated, and I want you to know that I
am
going to be presenting those facts, and from time to time I will argue
those facts. I believe they are well supported in the record, but I
urge each of you, if you ever find anything that you question, to
search the record and verify the facts, because I do not intend to
misrepresent anything to this body. In fact, we will be submitting
to
each of your offices my presentation with annotations to the record,
to
the grand jury transcripts which will tie in the facts that I present
to you. Again, I believe and trust that you will find that they are
well supported.
So let's start with obstruction of justice. Later on, there
will be a
full discussion of the law on obstruction of justice, but for our
purposes, it is simply any corrupt act or attempt to influence or
impede the proper functioning of our system of justice. It is a
criminal offense, a felony, and it has historically been an impeachable
offense.
Let me first say, it is not a crime nor an impeachable offense
to
engage in inappropriate personal conduct. Nor is it a crime to obstruct
or conceal personal embarrassing facts or relationships. It might be
offensive, but there are no constitutional consequences. But as we
go
through the facts of the case, the evidence will show in this case
that
there was a scheme that was developed to obstruct the administration
of
justice, and that is illegal. And the obstruction of justice is of
great consequence and significance to the integrity of our Nation when
committed by anyone, but particularly by the Chief Executive of our
land, the President of the United States.
Mr. Bryant took us factually up to a certain point pertaining
to the
job search. This is chart No. 1 that you have before you. This puts
it
in perspective a little bit, and just for a brief review. You go back
in the calendar, back into October. That is when Ms. Lewinsky sends
the
President her wish list for a list of jobs. And then shortly after
that, Ms. Currie faxes Lewinsky the resume to Ambassador Richardson,
and Ambassador Richardson gets involved in the job search.
October 30, the President promised to arrange a meeting between
Lewinsky and Jordan. This was set up in November. It was actually
November 5. But preceding that, there was a job offer at the United
Nations extended to Ms. Lewinsky. Ms. Lewinsky decided that she was
not
interested in a job at the United Nations, she wanted to go into the
private sector. And so that was the purpose on November 5 of the
meeting between Jordan and Lewinsky. That is when Mr. Jordan says,
``We're in business.'' But the facts will show that there was nothing
really done in November, and that is when I will get in a little bit
more to my presentation, and then I will get into December when some
things happened there that picked up speed on this issue.
The obstruction, for our purposes, started on December 5, 1997,
and
that is when the witness list from the Paula Jones case was faxed to
the President's lawyers. At that point, the wheels of obstruction
started rolling, and they did not stop until the President successfully
blocked the truth from coming out in the civil rights case.
These acts of obstruction included attempts to improperly influence
a
witness in a civil rights case--that is Monica Lewinsky--the
procurement and filing of a false affidavit in the case; unlawful
attempts to influence the testimony of a key witness, Betty Currie;
the
willful concealment of evidence under subpoena in that case, which
are
the gifts of December 28; and illegally influencing the testimony of
witnesses--that is the aides who testified before the grand jury--
before the grand jury of the United States. Each of these areas of
obstruction will be covered in my presentation today.
As I said, it began on Friday, December 5, when the witness
list came
from the Paula Jones case. Shortly thereafter, the President learned
that the list included Monica Lewinsky. This had to be startling news
to the President, because if the truth about his relationship with
a
subordinate employee
[Page S234]
was known, the civil rights case against him would be strengthened and
it might have totally changed the outcome.
But to compound the problem, less than a week later, Judge Wright,
Federal district judge in Arkansas, on December 11, issued an order,
and that order directed that the President had to answer questions
concerning other relationships that he might have had during a
particular timeframe with any State or Federal employee. And when I
say
``relationships,'' I am speaking of sexual relationships. So Judge
Wright entered the order that is not in your stack, but I have it here.
It was filed on December 11 in the district court in Arkansas and
directs the President that he has to answer those questions within
a
timeframe, as Mr. Bryant said, which is typical in a civil rights case
of this nature.
The White House knew that Monica was on the witness list. The
President knew that it was likely that she would be subpoenaed as a
witness and that her truthful testimony would hurt his case.
What did the President do? What he had to do was he made sure
that
Monica Lewinsky was on his team and under control. And then on December
17, the President finally called Ms. Lewinsky to let her know she was
on the list. This was a call between 2 a.m. and 2:30 a.m. in the
morning.
Now, what happened in the time between the President learning
Monica
Lewinsky was on the list and when he notified her of that fact on
December 17 is very important. The President, during that timeframe,
talked to his friend, his confidante and his problem-solver, Vernon
Jordan. Mr. Jordan had come to the President's rescue on previous
occasions. He was instrumental in securing consulting contracts for
Mr.
Webb Hubbell while Mr. Hubbell was under investigation by the
independent counsel.
Let me parenthetically go to that point, right before Mr. Hubbell
announced his resignation from the Justice Department.
During that timeframe, there was a meeting at the White House
in
which the President, the First Lady and others were present. After
that
meeting, Vernon Jordan agreed to help obtain financial assistance for
Mr. Hubbell. Mr. Jordan then introduced Mr. Hubbell to the ``right
people.'' The introduction was successful, and Mr. Hubbell obtained
a
$100,000 contract. The ``right people'' that Mr. Jordan contacted
happened to be the same right people for both Mr. Hubbell and
ultimately for Monica Lewinsky, which is the parent company of Revlon.
So the President was aware that Mr. Jordan had the contacts and the
track record to be of assistance to the President in delicate matters.
Now let's go back a little. Monica Lewinsky had been looking
for a
good-paying and high-profile job in New York, since the previous July,
as I pointed out.
She had been offered a job at the United Nations, but she wanted
to
work in the private sector. She was not having much success, and then
in early November it was Betty Currie who arranged a meeting with
Vernon Jordan, which was ultimately on November 5. At this meeting,
Ms.
Lewinsky met with Mr. Jordan for about 20 minutes.
Now, let's refer to Mr. Vernon Jordan's grand jury testimony
on that
meeting that occurred on November 5. And you have that, and it should
be your chart No. 2, or exhibit 2.
As Mr. Jordan testified before the Federal grand jury on March
3,
1998, in reference to the November 5 meeting, he testifies:
I have no recollection of an early
November meeting with
Ms. Monica Lewinsky. I have absolutely no
recollection of it
and I have no record of it.
He goes on to testify, at page 76 of the grand jury testimony.
Question:
Is it fair to say that back in
November getting Monica
Lewinsky a job on any fast pace was not any
priority of
yours?
His answer:
I think that's fair to say.
Now, let's stop there for a moment. What happened as a result
of this
meeting? No action followed whatsoever. No job interviews were arranged
and there were no further contacts with Mr. Jordan. Mr. Jordan made
no
effort to find a job for Ms. Lewinsky for over a month. Indeed, it
was
so unimportant to him that he ``had no recollection of an early
November meeting,'' and, in fact, he testified finding her a job was
not a priority. And then you will see that during this timeframe the
President's attitude was exactly the same.
And so look at the same exhibit 2, the last item on that chart,
where
it refers to Monica Lewinsky's grand jury testimony. And there she
is
referring to a December 6 meeting with the President.
I think I said that . . . I was
supposed to get in touch
with Mr. Jordan the previous week and that
things did not
work out and that nothing had really happened
yet [on the job
front].
And the question was:
Did the President say what he was going to do?
The answer:
I think he said he would--you know,
this was sort of
typical of him, to sort of say, ``Oh I'll
talk to him. I'll
get on it.''
So you can see from that that it was not a high priority for
the
President, either. It was: Sure, I'll get to that. I will do that.
It was clear from Monica Lewinsky that nothing was happening.
But then the President's attitude suddenly changed. What started
out
as a favor for Betty Currie dramatically changed after Ms. Lewinsky
became a witness, and the judge's order was issued, again, on December
11. And at that time, the President talked personally--personally--to
Mr. Jordan and requested his help in getting Ms. Lewinsky a job. And
that would be, again, back on exhibit 2 on that chart, the third item
of testimony there; back to Mr. Jordan, his grand jury testimony, May
5, 1998.
The question is:
But what is also clear is that
as of this date, December
11th, you are clear that at that point you
had made a
decision that you would try to make some calls
to help get
her a job.
His answer:
There is no question about that.
And so what triggered--let's look at the chain of events. The
witness
list came in. The judge's order came in. That triggered the President
to action. And the President triggered Vernon Jordan into action. That
chain reaction here is what moved the job search along.
Now, if we had Mr. Jordan on the witness stand--which I hope
to be
able to call Mr. Jordan--you would need to probe where his loyalties
lie, listen to the tone of his voice, look into his eyes and determine
the truthfulness of his statements. You must decide whether he is
telling the truth or withholding information.
And so let's go to exhibit 3 in your booklet. Again, recalling
Mr.
Jordan, he testifies about that meeting. He testifies, in his March
3,
1998, grand jury testimony:
I am certain after the 11th that
I had a conversation with
the President and as a part of that conversation
I said to
him that Betty Currie had called me about
Monica Lewinsky.
And the conversation was that he knew about
her situation
which was that she was pushed out of the White
House, that
she wanted to go to New York and he thanked
me for helping
her.
Remember what else happened on that day, again, the same day
that
Judge Wright ruled that the questions about other relationships could
be asked by the Jones' attorneys.
Now, let's go back again to Mr. Jordan's testimony. What does
he say
about the involvement of the President of the United States in regard
to these jobs? You look at exhibit 4. That is in your booklet. This
is,
again, Vernon Jordan's grand jury transcript of June 9, 1998.
Now, the question is on a different issue. The question is about
why
did he tell the White House that Frank Carter--Frank Carter was the
attorney for Monica Lewinsky that Vernon Jordan arranged and introduced
to Monica Lewinsky. He was hired. And at whatever point he was
terminated, then Vernon Jordan notified the President. So the question
relates to that:
Why are you trying to tell someone
at the White House that
this has happened, [Carter had been fired]?
Answer:
Thought they had a right to know.
Question:
Why?
And here is the answer that is critical for my point:
The President asked me to get Monica
Lewinsky a job. I got
her a lawyer. The Drudge Report is out and
she has new
counsel. I thought that was information that
they ought to
have. . . .
[Page S235]
``The President asked me to get Monica Lewinsky a job.'' Clear,
straightforward testimony; no doubt about it.
Then go on down to page 58 of his grand jury testimony of June
9.
The question:
Why did you think the President
needed to know that Frank
Carter had been replaced?
Answer:
Information. He knew that I had
gotten her a job, he knew
that I had gotten her a lawyer. Information.
He was
interested in this matter. He is the source
of it coming to
my attention in the first place.
``He is the source of it coming to my attention in the first
place.''
Remember he had already met with Betty Currie. Nothing was happening
in
the November timeframe. Nothing was happening. Vernon Jordan--it was
not a priority. Then the President of the United States called him,
and
it became a priority. And that is who he was acting for in trying to
get Monica Lewinsky a job.
At this point we do not know all that the President was telling
Vernon Jordan, but we do know that there were numerous calls back and
forth between Mr. Jordan and the President. There were numerous calls
being made by Mr. Jordan on behalf of Monica Lewinsky searching for
a
job, and that despite the fact that Monica Lewinsky did not know that
she was witnessed--she did not know she was a witness--the President
knew that she was a witness during his intensified efforts to get her
a
job.
Now, the President's counselors have made a defense that the
job
search started before Monica Lewinsky was a witness and there was
nothing wrong with that. My response to that is, it is true there is
nothing wrong with a public official, under the right circumstances,
helping someone get a job. And what might have started out being
innocent, if you accept that argument, crossed the line--crossed the
line--whenever it was tied and interconnected with the President's
desire to get a false affidavit from Monica Lewinsky, and whenever
the
job is out there and preparing the false affidavit, you will see that
they are totally interconnected, intertwined, interrelated; and that
is
where the line has crossed into obstruction.
For example, when the President was waiting on Ms. Lewinsky
to sign
the false affidavit in the Jones case during the critical time in
January a problem developed. The job interviews were unproductive,
despite the numerous calls by Mr. Jordan. On one particular day, Monica
called Mr. Jordan and said the interview with Revlon did not go well.
Mr. Jordan, what did he do? He picked up the phone to the CEO of--the
president of the company, Mr. Perlman, to, as Vernon Jordan testified,
``make things happen--if they could happen.'' That is the request from
Mr. Jordan to the CEO of a company, after a job interview with Monica
Lewinsky did not go well.
What happened? Things happened. He did, he made things happen.
Monica
Lewinsky got a job. The affidavit was signed and the President was
informed by Mr. Jordan, through Betty Currie, that the mission was
accomplished.
The question here is not why did the President do a favor for
an ex-
intern, but why did he use the influence of his office to make sure
it
happened? The answer is that he was willing to obstruct, impede justice
by improperly influencing a witness in order to protect himself in
a
civil rights case.
The next step in the obstruction is the false affidavit. This
is
directly related to the job mission. The President needed the signature
of Monica Lewinsky on the false affidavit, and that was assured by
the
efforts to secure her a job. Again, the President brought Ms. Lewinsky
into the loop on December 17. Over 10 days after the witness list was
received by the President, the President was ready to tell Monica the
news.
That timeframe is important. He gets the witness list. He could
have
called Monica Lewinsky immediately, but he needed 7 days because he
needed to make sure the job situation was in gear. And in fact, the
day
after, if you look back on exhibit 1, you will see that the day after
the December 17 timeframe that she was informed that she was on the
witness list, the next day she already had lined up job interviews
for
her. So she felt confident. But she was notified on December 17.
Between 2 and 2:30 a.m., her phone rang. It was the President of the
United States. The President said that he had seen the witness list
in
the case and her name was on it. Ms. Lewinsky asked what she should
do
if subpoenaed, and the President responded, ``Well, maybe you can sign
an affidavit.''
Well, how would this work? Both parties knew that the affidavit
would
need to be false and misleading in order to accomplish the desired
result. Clearly, truthful testimony by Monica Lewinsky would make her
a
witness, would not keep her away from testifying. Only a false
affidavit would avoid the deposition.
So look at what I have marked as exhibit 4.1, which is just
a review
of the key dates on this job search. Again, November 5 was the first
meeting between Jordan and Ms. Lewinsky. In November nothing happened.
According to Jordan, ``not a high priority.'' December 5, the President
receives the witness list. The 11th, things intensify with Judge
Wright's order. The 11th, the President talks to Mr. Jordan about the
job for Monica. He gets into action. On the 17th, they are ready to
tell Monica that she is on the witness list. And then, on the 19th,
she
is actually served with a subpoena. Again, remember, after she was
finally notified, it was the next day that she had the job interviews.
Now, still we will spend some time on the December 17 conversation,
the day that Monica Lewinsky was notified that she was on the witness
list. During that conversation, the President had a very pointed
suggestion for Ms. Lewinsky in a suggestion that left no doubt about
his purpose and the intended consequences. He did not say specifically,
``Go in and lie.'' This is something that you will hear, and Monica
Lewinsky testified in her grand jury testimony: ``The President never
told me to lie.''
How do you tell people to lie? You can tell them the facts that
they
can use that would, in substance, be a false statement; or you can
say,
``Go in and lie and make up your own false testimony.'' The President
chose to give her the ideas as to what she could testify to that would
be false, but he never said the words, ``You need to go in and lie.''
So what he did say to her was, ``You know, you can always say you were
coming to see Betty or that you were bringing me letters.''
That, ladies and gentlemen of the Senate, is a false representation,
is a false statement that he is telling Ms. Lewinsky to utter.
Remember, at this point the President knows she is a witness, and what
does he do? As evidenced by the testimony of Monica Lewinsky, he
encourages her to lie, to say, ``You can always say you were coming
to
see Betty or that you were bringing me letters.''
It should also be remembered that the President, when questioned
about encouraging Monica Lewinsky to lie, has denied these allegations,
and therefore there is certainly a conflict in the testimony. It is
our
belief that Ms. Lewinsky's testimony is credible and she has the motive
to tell the truth because of her immunity agreement with the
independent counsel, where she gets in trouble only if she lies;
whereas the President has the motive to cover up and to testify
falsely.
In order to understand the significance of this statement made
by the
President, it is necessary to recall the cover stories that the
President and Ms. Lewinsky had previously concocted in order to deceive
those people who might inquire. It was to deceive those people that
they worked with. The difference in the initial cover stories, though,
to protect the President and Monica from an embarrassing personal
relationship, from friends and coworkers and the media, now it is in
a
different arena, with the pending civil rights case and Ms. Lewinsky
being on the witness list.
Despite the legal responsibilities, the President made the decision
to continue the pattern of lying which ultimately became an obstruction
of the administration of justice. We are still on December 17, when
the
President called Monica at 2 a.m. on that particular day to tell her
she was on the witness list, to remind her of the cover stories. Monica
Lewinsky testified, when the President brought up the cover story,
she
understood that the
[Page S236]
two of them would continue their preexisting pattern of deception and
it became clear that the President had no intention of making his
relationship with a subordinate Federal employee an issue in that civil
rights case, no matter what the Federal courts told him he needed to
answer. And he used lies, deceit, and deception to carry out that
purpose.
It is interesting to note that the President, when he was asked
by
the grand jury whether he remembered calling Monica Lewinsky at 2 a.m.
on that December 17th day, responded, ``No, sir, I don't, but it is
quite possible that that happened.'' When he was asked whether he
encouraged Monica Lewinsky to continue the cover stories of coming
to
see Betty or bringing letters, he answered, ``I don't remember exactly
what I told her that night.''
This is not a denial, and therefore I believe you should accept
the
testimony of Monica Lewinsky. If you say in your mind, well, I'm not
going to believe her, then you should first give us the opportunity
to
present this witness so that you as jurors can fairly and honestly
determine her credibility.
As expected, 2 days later, on December 19, Ms. Lewinsky received
a
subpoena to testify in the Jones case. This sets about an immediate
flurry of activity. There are a series of telephone calls between Ms.
Lewinsky, Vernon Jordan, the President, and his staff. You will see
this pattern of telephone calls repeated and generated at any point
in
time when it appears that the truth may be told in the civil rights
case.
Now, let's look at exhibit 5, which is the activity on Friday,
December 19. This is the day that Monica Lewinsky is served with a
subpoena. Now, after Mr. Jordan is notified that Monica Lewinsky is
served with a subpoena, what does he do? In the 3:51-3:52 notation,
Jordan telephones the President and talks to Debra Schiff, his
assistant. The subpoena is issued. Monica calls Jordan and Jordan
immediately calls the President. ``Lewinsky meets with Jordan and
requests that Jordan notify the President about her subpoena''--this
is
at 4:47 p.m.
Presumably in the middle of that meeting, at 5:01 p.m., the
President
of the United States telephones Mr. Jordan and Jordan notifies the
President about Ms. Lewinsky's subpoena.
Then that is whenever he arranged for Ms. Lewinsky's attorney--
``Jordan telephones attorney Carter''--for representation, and that
night, Vernon Jordan goes to the White House to meet privately with
the
President on these particular issues.
Now, in that meeting--and I am speaking of the meeting that
happened
late that night at the White House--Mr. Jordan told the President again
that Ms. Lewinsky had been subpoenaed and related to the President
the
substance and details of his meeting with Ms. Lewinsky. It wasn't a
casual consideration; the details were discussed, including her
fascination with the President and other such issues.
This led Mr. Jordan to ask the President about his relationship
with
Ms. Lewinsky, and the response by the President of the United States
was the first of many denials to his friends and aides. The President
stated in his deposition that he does not recall that meeting. But
you
should remind yourselves of the testimony and the description provided
by Vernon Jordan when he said, ``The President has an extraordinary
memory.'' In fact, we all know that he is world famous for that memory.
Now, the subpoena had been delivered, but the testimony of Monica
Lewinsky was not scheduled until January 23, and the President's
deposition, which was even more critical, was not scheduled until
January 17. So the President and his team had some time to work. The
work was not the business of the Nation, it was the distraction and
self-preservation in the civil rights case.
Under the plan, Mr. Jordan would be the buffer; he would obtain
an
attorney--Mr. Carter--and that attorney would keep Mr. Jordan informed
on the progress of the representation, including reviewing any copy
of
the affidavit, knowing about the motion to quash, and the general
progress of the representation. All along the way, when Mr. Jordan
gets
information, what does he do with that? Mr. Jordan keeps the President
informed both about the affidavit and the prospects of the job in New
York, for which Ms. Lewinsky was totally dependent on the help of her
friends in high places.
Let me go back again. There is nothing wrong with helping somebody
get a job. But we all know there is one thing forbidden in public
office: We must avoid quid pro quo, which is: This is for that. But
Vernon Jordan testified he kept the President informed on the status
of
the false affidavit, the job search, and the status of Ms. Lewinsky's
representation. Why? Is this just idle chatter with the President of
the United States, or are these matters the President is vitally
interested in and, in fact, coordinated? Mr. Jordan answers this
question himself on page 25 of his grand jury testimony, where he
testified, ``I knew the President was concerned about the affidavit
and
whether or not it was signed. He was obviously.'' That was his March
5,
1998, grand jury testimony. The President was concerned not just about
the affidavit but specifically about whether it was signed.
The President knew that Monica Lewinsky was going to make a
false
affidavit. He was so certain of the contents that when Monica Lewinsky
asked if he wanted to see it, he told her no, that he had seen 15 of
them. Besides, the President had suggested the affidavit himself, and
he trusted Mr. Jordan to be certain to keep things under control. In
fact, that was one of the main purposes of Mr. Jordan's continued
communication with Monica Lewinsky's attorney, Frank Carter.
Even though Mr. Jordan testifies at one point he never had any
substantive discussions on the representation with Mr. Carter, he
contradicts himself in his March 3 grand jury testimony where he
states: ``Mr. Carter at some point told me--this is after January--that
she had signed the affidavit, that he had filed a motion to quash her
subpoena and that--I mean, there was no reason for accountability,
but
he reassured me that he had things under control.''
Mr. Jordan was aware of the substance of the drafting of the
affidavit, the representation, the motion to quash, and even had a
part
in the redrafting. This was clearly important to Mr. Jordan and clearly
important to the President.
Now, let's go to the time when the false affidavit was actually
signed, January 5, 1998. These will be exhibits 7, 8, and 9 in front
of
you. Let's go to January 5. This is sort of a summary of what happened
on that day. Ms. Lewinsky meets with her attorney, Mr. Carter, for
an
hour. Carter drafts the affidavit for Ms. Lewinsky on the deposition.
In the second paragraph, Ms. Lewinsky telephones Betty Currie, stating
that she needs to speak to the President, that this is about an
important matter; specifically, that she was anxious about something
she needed to sign--an affidavit. Frank Carter drafts the affidavit
she
is concerned about. She calls the President. The President returns
Ms.
Lewinsky's call.
Big question: Should the President return Ms. Lewinsky's call?
He
does, that day, quickly. Ms. Lewinsky mentions the affidavit she is
signing and offers to show it to the President. That is where he says
no, he had seen 15 others.
Let's go to the next day. The next exhibit is January 6. On
this
particular day, Ms. Lewinsky picks up the draft affidavit. At 2:08
to
2:10 p.m., she delivers that affidavit. To whom? Mr. Jordan. That is
after she got it. She delivers it to Jordan. And then, at 3:26 p.m.,
Mr. Jordan telephones Mr. Carter. At 3:38, Mr. Jordan telephones Nancy
Hernreich of the White House. At 3:48, he telephones Ms. Lewinsky about
the draft affidavit, and, at 3:49, you will see in red that both agree
to delete a portion of the affidavit that created some implication
that
maybe she had been alone with the President.
So Mr. Jordan was very involved in drafting the affidavit and
the
contents of that.
And then at 4:19, presumably in response to some of the calls
by
Jordan earlier in the day, the President telephones Mr. Jordan and
they
have a discussion. And then Mr. Jordan telephones Carter and the
conversations go back and forth. At the end of the day, Mr. Jordan
telephones the White House. So the affidavit is still in the drafting
process.
Let's go to the next day, exhibit 9. Monica signs the affidavit
here.
At 10
[Page S237]
a.m., Ms. Lewinsky signs a false affidavit in Mr. Carter's office. Then
she delivers the signed affidavit to Mr. Jordan. And then what does
he
do? The usual. At 11:58, Mr. Jordan telephones the White House. At
5:46, Mr. Jordan telephones the White House. At 6:50, Mr. Jordan
telephones the White House and tells the President that Ms. Lewinsky
signed the affidavit.
Is this important information for the President, to know he
was
vitally interested in it?
The next day, exhibit 10, January 8. After it is signed, what
is
important the next day? It was the other part of the arrangement, that
she has the job interview with MacAndrews in New York. She had that
job
interview. The only problem was that it went poorly, very poorly. So
at
4:48 p.m. on this particular day, Ms. Lewinsky telephones Jordan and
advises that the New York interview went ``very poorly.''
What does Mr. Jordan do? He telephones Ron Perelman, the CEO
of
Revlon, the subsidiary of MFH, to make things happen if they could
happen. What does he do next? Jordan telephones Ms. Lewinsky, saying,
``I'm doing the best I can to help you out.'' And they set up another
interview for the next day. Jordan telephones the White House Counsel's
Office, and, in the evening, Revlon in New York telephones Ms. Lewinsky
to set up a follow-up interview. They said the first interview didn't
go well, but because Mr. Jordan intercedes--and why? Because the false
affidavit has been signed and he wants to make sure this is carried
out. At 9:02 p.m., Ms. Lewinsky telephones Jordan about the Revlon
interview in New York, and presumably it went better on that particular
day.
Then on January 9--exhibit 11--Monica is confirmed that she
has the
job. Lewinsky is offered the Revlon job in New York, and accepts.
Lewinsky telephones Jordan. And then, at 4:14, Jordan notifies
Currie, calls Betty Currie, and says ``Mission accomplished,'' and
requests that she tell the President. Jordan notifies the President
of
Lewinsky's job offer, and says, ``Thank you, very much, Mr.
President.'' And then, that evening, the President telephones Currie,
and so on. But the President is notified that the job has been secured,
``mission accomplished.''
Let me ask you a question, after I have gone through these exhibits.
Would Mr. Jordan have pushed for a second interview without cooperation
on the affidavit? Would Monica Lewinsky have received the support and
secured the job if she had said ``I don't want to sign an affidavit;
I
am just going to go in there and tell the truth; whatever they ask
me,
I am going to answer; I am going to tell the truth?'' Does anyone in
this room believe that she would have been granted the job--if Mr.
Jordan had made that call to get that second interview--that she would
ever have had the help from her friend in high places? Now the
affidavit has been signed. The job is secure. Monica Lewinsky is on
the
team, and the President of the United States is armed for the
deposition.
So let's move there.
Just how important was Monica Lewinsky's false affidavit to
the
President's deposition? Let's look. What did the President's attorney,
Robert Bennett, say about that affidavit to the Federal judge during
the deposition? That false affidavit allowed Mr. Bennett, the attorney
for Mr. Clinton, when talking about the question of whether the
relationship between the President and Ms. Lewinsky--it allowed him
to
assert that `` . . . there is absolutely no sex of any kind in any
manner, shape or form with President Clinton * * *.''
That is a statement of Robert Bennett--his representation to
the
court about that relationship. It is a representation that he had to
later, probably based upon his own professional embarrassment,
withdraw, and to correct that inaccurate part of the record.
When questioned by his own attorney in the deposition, the President
stated specifically the key paragraph of Ms. Lewinsky's affidavit was
``absolutely true.''
Paragraph 8 of her affidavit states:
I have never had a sexual relationship
with the President.
. . .
If it enters your mind at this point as to what was meant by
``sexual
relationship,'' please remember that this affidavit was drafted upon
a
common understanding of that phrase at that point, and not based upon
any definition used in the deposition of the President.
I am sure it was the President's hope and belief that the false
affidavit used in the deposition to bolster his own testimony would
be
the end of the matter. But that was not the case. We know in life that
one lie leads to another. And so it is when we attempt to thwart the
administration of justice--one obstruction leads to another.
Now we move to another key witness, Betty Currie.
By the time the President concluded his deposition, he knew
there
were too many details out about his relationship with Ms. Lewinsky.
He
knew that the only person who would probably be talking was Ms.
Lewinsky herself. He knew the cover story that he had carefully created
and that was converted into false statements in the affidavit was now
in jeopardy and had to be backed at this point by the key witnesses,
Monica Lewinsky and Betty Currie. After the deposition, the President
needed to do two things: He had to contact Ms. Lewinsky to see if she
was still on the team, but he also had to make sure that his secretary,
Betty Currie was lying to protect him. So let's look at how the concern
became a frenzied and concerted effort to keep the holes plugged in
the
dike.
Let's look at exhibits 12 and 13.
What happened on the day the deposition--really the night of
the
deposition--on January 17. The President finishes testifying in the
deposition around 4 p.m. At 5:38 p.m., the President telephones Mr.
Jordan at home. And then, at 7:13, the President telephones Ms. Currie
at home. At 7:02, the President places a call to Mr. Jordan's office.
And then, at 7:13, he gets Ms. Currie at home finally, and asks her
to
meet with him on Sunday. It is vitally important that he meet with
Ms.
Currie at this point because he knows his whole operation is coming
unglued.
So the next day, on January 18, which is exhibit 13, there is
a whole
flurry of activity here.
I am not going to go through all of them. You can see the frantic
pace at the White House because at 6:11 in the morning, the President
had some more bad news. The Drudge Report was released. And that
created a greater flurry. Then between 11:49 and 2:55 p.m., two phone
calls were made between Mr. Jordan and the President.
Then, at 5 p.m., we see the meetings. That is on the second
page. At
5 p.m., Ms. Currie meets with the President. And the President then
tells Ms. Currie to find Monica Lewinsky. The telephone calls were
generated, and there was no success in that.
Then, that evening the President calls Ms. Currie at home to
try once
again to see if she had found Monica.
But it was on that day that there was that critical meeting
on that
Sunday in the Oval Office between Betty Currie and the President of
the
United States.
For that reason, we need next to hear from Betty Currie, the
President's personal secretary, as to what occurred during that most
unusual meeting on Sunday following the deposition.
Betty Currie testified in the grand jury that the President
said that
he had just been deposed and that the attorneys had asked several
questions about Monica Lewinsky. This is a violation of the judge's
gag
order. And the President, you know, made some comments that were not
in
line. But he had some choices to make, and he made the wrong choices.
But let's look at exhibit 14, which covers the series of statements
made to Ms. Currie. At this point there is the testimony of Betty
Currie. She is reciting to the grand jury each of the statements the
President made to her after his grand jury testimony.
The first: ``I was never really alone with Monica, right?''
Second: ``You were always there when Monica was there, right?''
``Monica came on to me, and I never touched her, right?''
I am not going to read each one of those. You can read them.
You have
heard those as well.
But the President is making those simple declaratory statements
to
her.
There are three areas that are covered.
First of all, the President makes a case that he was never alone
with
Monica Lewinsky.
Second, he is making a point to her that ``she was the aggressor,
not
me.''
[Page S238]
The third point he is making, ``I did nothing wrong.''
Those are the basic three points of those five statements that
the
President made to Betty Currie.
During Betty Currie's grand jury testimony she was asked whether
she
believed that the President wished her to agree to the statements.
Let's look at Betty Currie for a second. She is the classical
reluctant witness. Where are her loyalties? How would you examine her
testimony? Where is she uncomfortable in her testimony when she is
asked the question? How does she shift in the chair? Those are the
kind
of ways you have to evaluate the truthfulness of the testimony, where
their loyalties lie, and their demeanor.
During the questioning she was clearly reluctant.
She was asked a series of questions, and she finally acknowledges
that the President was intending for her to agree with the statements
that were made. She says, ``That is correct.'' And that is page 74
of
Betty Currie's grand jury testimony.
When the President testified in the August 17 grand jury, he
was
questioned about his intentions when he made those five statements
to
Ms. Currie in his office on that Sunday. And the President's
explanation is as follows to the grand jury:
The President:
. . . I thought we were going to
be deluged by the press
comments. And I was trying to refresh my memory
about what
the facts were.
Then he goes on to testify:
So, I was not trying to get Betty
Currie to say something
that was untruthful. I was trying to get as
much information
as quickly as I could.
Ladies and gentlemen of the Senate, you have to determine what
the
purpose of those five statements to Betty Currie were. Were they to
get
information, or were they to get her to falsely testify when she was
called as a witness? Logic tells us that the President's argument was
that he was just trying to refresh his memory. Well, so much of a novel
legal defense argument.
First, consider the President's options after he left the deposition.
He could have abided by the judge's gag order and not say anything.
Second, he could have called Betty Currie in and asked her an
open-
ended question: Ms. Currie, or Betty, what do you remember happened?
The third option was to call her in and to make these declaratory
statements, violate the judge's order, and tamper with the anticipated
testimony of Betty Currie.
That is the course that the President chose. He made sure it
was a
face-to-face meeting, not a telephone call. He made sure that no one
else was present. He made sure that the meeting was on his territory
and in his office where he could feel comfortable and he could utilize
the power and prestige of his office to have the greatest influence
on
her future testimony.
After Ms. Currie was in the President's office, he made short,
clear,
understandable, declarative statements telling Ms. Currie what the
story was. He was not interested in what she knew. Why? Because he
knew
the truth, but he did not want Ms. Currie to tell the truth. The only
way to ensure that was by telling her what to say, not asking her what
she remembered. You do not refresh someone's memory by telling that
person what he or she remembers, and you certainly do not make the
declarative statements to someone regarding factual scenarios of which
the listener was unaware.
The statements that were made to her, Betty Currie could not
have any
possible knowledge about as to whether they were ever alone, as to
whether she came on to him. No. This was not any attempt for the
President to refresh his recollection. It was witness tampering, pure
and simple.
Understanding the seriousness of the President's attempting
to
influence the testimony of Ms. Currie, his attorneys have tried to
argue that those statements could not constitute obstruction of justice
because she had not been subpoenaed and the President did not know
that
she was a potential witness at this time. Well, the argument is refuted
by both the law and the facts.
The law is clear that a person may be convicted of obstructing
justice if he corruptly influenced the testimony of a prospective
witness. The witness does not actually have to give testimony. The
witness does not have to be under any subpoena. The witness does not
have to be on any witness list. And so the law is clear.
Secondly, let's examine the defense in light of the facts. The
President himself brought Ms. Currie into the civil rights case as
a
corroborating witness when he repeatedly used her name in the
deposition, and just as significantly the President had to be concerned
about a looming perjury charge against him in light of his false
testimony in the deposition. At least six times in that deposition
the
President challenged the plaintiff's attorneys to question Ms. Currie
about the particular issue.
You don't have it in front of you, but you will see it when
we
distribute the copies of my remarks. I will go through those six times.
At page 58 of the deposition, the President, when asked whether
he
was alone with Ms. Lewinsky said that he was not alone with her or
that
Betty Currie was there with Monica.
At page 70, when asked about the last time the President saw
Ms.
Lewinsky, he falsely testified he only recalled that she was there
to
see Betty.
At page 64, he told the Jones lawyers to ``ask Betty'' whether
Lewinsky was alone with him in the White House or not or with Betty
in
the White House between the late hours.
At page 65 of the deposition, the President was asked whether
Ms.
Lewinsky sent packages to him, and he stated that Betty handled the
packages.
At page 72, the President was asked whether he may have assisted
in
any way with a job search. He said he thought Betty suggested Vernon
Jordan talk to her.
At page 74, he said Monica asked Betty to ask someone to talk
to
Ambassador Richardson. He asserted Betty as a corroborating witness
at
least six times in the deposition.
There is no question that Ms. Currie was a prospective witness,
and
the President clearly wanted her to be deposed as a witness as his
``ask Betty'' testimony demonstrates.
But there is another fact that, thus far, has been overlooked,
and
let me draw your attention to this.
Two days before the President's deposition, Betty Currie receives
a
call from Michael Isikoff, a reporter with Newsweek magazine, inquiring
about the records, the courier records of gifts going from Ms. Lewinsky
to the President.
You've got a news reporter for a national publication two days
before
the President's deposition talking to the President's secretary,
saying, ``I need to see the courier records at the White House.'' What
does Betty Currie do? She testified that she probably told the
President this. Then she tells Bruce Lindsey, but she also goes to
see
Vernon Jordan. Why? Why would the secretary go see Vernon Jordan
because she had a press inquiry? The reason is, as we see later on,
remember, this is January 15th. What happened on December 28th that
we
will get to a little bit later? December 28th Betty Currie went and
put
those gifts under her bed. Why is she nervous? Because Mike Isikoff
is
calling about the gifts that are presently under her bed, and she is
nervous. I would be nervous. And so she goes to see Bruce Lindsey.
She
goes to see Vernon Jordan. ``I need help. What do I do?'' And she
probably told the President.
It is all breaking loose, the house of cards is falling down,
and she
is either going to report to Mr. Jordan or to seek advice from him.
Either way, she knows it is serious, and it all has legal consequences.
And she is a witness to it all.
And not only does Betty Currie's testimony talk about this call
from
Michael Isikoff and going to see Vernon Jordan, but Vernon Jordan's
testimony confirms the visit as well.
The President claims he called Ms. Currie in to work on that
Sunday
night only to find out what she knew, but the President knew the truth
about the relationship, and if he told the truth in deposition the
day
before, he would have had no reason to be refreshed by Betty Currie.
More importantly, the President's demeanor, Ms. Currie's reaction
and
the suggested lies clearly prove that the President was not merely
interviewing Ms. Currie. Rather, he was
[Page S239]
looking for corroboration for his false coverup, and that is why he
coached her. He needed a witness for him, not against him.
Now, let's go to exhibit 5, Betty Currie's testimony--excuse
me,
exhibit 15.
This is Betty Currie's testimony before the grand jury on January
27,
1998. And Betty Currie is asked about this. Now, remember, it was on
a
Sunday that Betty Currie was first called into the White House to go
through these five statements, this coaching by the President. And
then
she testified to the grand jury:
Question: Did there come a time
after that that you had
another conversation with the President about
some other news
about what was going on? That would have been
Tuesday or
Wednesday--when he called you into the Oval
Office?
Betty Currie's answer:
It was Tuesday or Wednesday. I
don't remember which one
this was, either. But the best I remember,
when he called me
in the Oval Office, it was sort of a recapitulation
of what
we had talked about on Sunday--you know, ``I
was never alone
with her''--that sort of thing.
Question: Did he pretty much list
the same----
Answer: To my recollection, sir,
yes.
Question: And did he say it in
sort of the same tone and
demeanor that he used the first time he told
you on Sunday?
Answer: The best I remember, yes,
sir.
And this needs to be emphasized. Not only was that witness coaching
taking place on Sunday, but it took place a couple days later. It was
twice repeated by the President to Betty Currie. He needed to have
her
good and in line.
This is more than witness tampering. It is witness compulsion
of
false testimony by an employer to a subordinate employee. This has
nothing to do with facts, nothing to do with media inquiries. It has
to
do with keeping his team on board, keeping the ship from sinking, and
hiding the facts that are important. At this point we are not talking
about hiding personal facts from inquiring minds but an effort to
impede the legitimate and necessary functioning of our court system.
And now let's go to the Martin Luther King holiday, almost exactly
a
year ago, Monday, January 19. Again, you will see the example of the
frantic search for Monica Lewinsky did continue.
Exhibit 16. I am not going to go through all of this, but I
just want
to briefly show the frantic activity on this particular day.
First of all, you will see Betty Currie is trying to fulfill
her
responsibility to get ahold of Ms. Lewinsky. She uses the pager system,
and she says, ``Please call Kay at home.'' Now ``Kay'' is the code
name
that is used for Betty Currie. That is the agreed upon signal. And
she
uses three messages: ``Please call Kay. Please call Kay. Please call
Kay.''
Then she starts using different techniques to get her attention.
``It's a social call.'' And then she later uses it's a ``family
emergency.'' Then she later uses it's ``good news.'' She is using every
means possible to get the attention of Monica Lewinsky. And then at
8:50 a.m. the President telephones Currie at home. At 8:56 a.m. the
President telephones Jordan at home.
Go on down to 10:56 a.m. ``The President telephones Jordan at
his
office.'' And so what is going on here? They are nervous; they are
afraid; it is all breaking loose. They are trying to get ahold of
Monica Lewinsky to find out what is going on, who she is talking to.
Later that day things continued to destabilize for the President.
At
4:54 p.m. Mr. Jordan learned from the attorney, Frank Carter, that
he
no longer represented Ms. Lewinsky, and so Mr. Jordan's link had been
cut off. Mr. Jordan continued to attempt to reach the President or
someone at the White House. Between 4:58 and 5:22 p.m., he made six
calls trying to get ahold of someone at the White House, the President.
When Mr. Jordan was asked about why he was urgently trying to
get
ahold of the White House, he responded, ``Because the President asked
me to get Monica Lewinsky a job'' and he thought it was ``information
they ought to have.'' Jordan finally reaches the President about 6
p.m.
and tells him that [Mr.] Carter had been fired.
Why this flurry of activity? It shows how important it was for
the
President of the United States to find Ms. Lewinsky. Betty Currie was
in charge of contacting Monica, and it could not happen, it did not
happen. Ms. Lewinsky was a co-conspirator in hiding this relationship
from the Federal court and he was losing control over her. In fact,
she
ultimately agreed to testify truthfully, under penalty of perjury,
in
this matter. This was trouble for the President.
And, so, now let's continue; let's continue exploring the web
of
obstruction. But to do this, we have to backtrack to what I have
already referred to, and that was the incident on December 28, the
episode with the gifts.
On December 28, another brick in the wall of obstruction was
laid. It
was the concealment of evidence. Ms. Lewinsky testified that she
discussed with the President the fact that she had been subpoenaed
and
that the subpoena called for her to produce gifts. And this is what
Ms.
Lewinsky was telling the President at the meeting with him on December
28. She testified before the grand jury that she recalled telling the
President that the subpoena in question had requested a hatpin and
other items, and this concerned her--the specificity of it. And the
President responded it ``bothered'' him, too.
Well, let's look at the testimony of Ms. Lewinsky, which is
exhibit
17. This is Lewinsky testifying about the meeting.
And then at some point I said to
him [the President],
``Well, you know, should I--maybe I should
put the gifts away
outside my house somewhere or give them to
someone, maybe
Betty.'' And he sort of said--I think he responded,
``I don't
know,'' or, ``Let me think about that,'' and
left that topic.
Not exactly the response you would hope for or expect from the
President. But the answer led to action. Later that day Ms. Lewinsky
got a call from Ms. Currie, who said, ``I understand you have something
to give to me,'' or, according to Ms. Lewinsky, ``The President said
you have something to give me.'' She wasn't exactly sure of the phrase
but it was either, ``I understand you have something to give me,''
what
Betty Currie said, or Betty Currie said, ``The President said you have
something to give to me.''
And so, ladies and gentlemen, if you accept the testimony of
Monica
Lewinsky on that point, you must conclude that the directive to
retrieve the gifts came from the President. I will concede that there
is a conflict in the testimony on this point with the testimony of
Betty Currie. Ms. Currie, in her grand jury testimony, had a fuzzy
memory, a little different recollection. She testified that, ``the
best
she can remember,'' Ms. Lewinsky called her. But whenever she was asked
further, she said that maybe Ms. Lewinsky's memory is better than hers
on that issue. But there is helpful evidence to clear up this
discrepancy, or this inconsistency. Monica, you will recall, in her
deposition said she thought that Betty had called her and she thought
that the call came from her cell phone number.
Well, it was not known at the time of the questioning of Monica
Lewinsky, but since then the cell phone record was retrieved. And you
don't have it in front of you, but it will be available. The cell phone
record was retrieved that showed, on Betty Currie's cell phone calls,
that a call was made at 3:32, from Betty Currie to Monica Lewinsky.
And
this confirms the testimony of Monica Lewinsky that the followup to
get
the gifts came from Betty Currie. The only way she would know about
it
is if the President directed her to go retrieve the gifts, as was
discussed with Monica earlier.
Now, the President will argue that Monica's timeline does not
fit
with the time of the cell phone call. But remember, the cell phone
record was retrieved subsequent to both the testimony of Monica
Lewinsky and Betty Currie before the grand jury, and therefore the
record was not available to refresh the recollection or to make inquiry
with him about that. Monica Lewinsky's time estimates as to when Betty
Currie arrived to pick up the gifts was based upon her memory without
the benefit of records.
The questions raised by the President on this issue are legitimate
and demonstrate the need to call the key witnesses to a trial of this
case and to assess which version of the events is believable and
substantiated by the corroborating evidence. This is certainly an area
of testimony where the juror needs to hear from Betty Currie and Monica
Lewinsky and to examine all of
[Page S240]
the circumstantial evidence and documentary evidence to determine the
truth. It is my belief, based upon common sense and based upon the
documentary evidence, that the testimony of Monica Lewinsky is
supported in the record and it leads to the conclusion that it was
the
President who initiated this retrieval of the gifts and the concealment
of the evidence.
Now, there are many lawyers here in this room, and you know
that in
Federal cases all across this country judges instruct juries on
circumstantial evidence. We have presented to you a great amount of
direct evidence, grand jury testimony, eyewitness testimony,
documentary evidence. But juries can use circumstantial evidence as
well. And a typical line from the instruction that is given in Federal
courts to Federal juries all across the land:
The law makes absolutely no distinction
between the weight
or value to be given either to direct or circumstantial
evidence. Nor is a greater degree of certainty
required of
circumstantial evidence than of direct evidence.
So I think it is incumbent upon you to evaluate the circumstances
very carefully in addition to the testimony.
Now, let's examine the key question for a moment. Why did Betty
Currie pick up the gifts from Monica Lewinsky? Monica Lewinsky states
that she did not request this and the retrieval was initiated by the
call from Betty Currie. This was after the meeting with the President.
Monica Lewinsky's version is corroborated by the cell phone record
and
the pattern of conduct on the part of Betty Currie. What do I mean
by
that? As a loyal secretary to the President, it is inconceivable that
she would go to retrieve gifts that she knows the President is very
concerned about and could bring down the whole house. Betty Currie,
a
subordinate employee, would not engage in such activity on such a
sensitive matter without the approval and direction of the President
himself.
In addition, let's look further to the actions of Betty Currie.
It
becomes clear that she understands the significance of these gifts,
their evidentiary value in a civil rights case, and the fact that they
are under subpoena. She retrieves these items, and where does she place
them? She hides them under her bed--significantly, a place of
concealment.
Now, let's look at the President's defense. The President stated
in
his response to questions 24 and 25, that were submitted from the House
to the President, he said he was not concerned about the gifts. In
fact, he recalled telling Monica that if the Jones lawyers request
the
gifts, she should just turn them over to them. The President testified
he is ``not sure'' if he knew the subpoena asked for gifts.
Now, why in the world would Monica and the President discuss
turning
over gifts to the Jones lawyer if Ms. Lewinsky had not told him that
the subpoena asked for gifts? On the other hand, if he knew the
subpoena requested gifts, why would he give Monica more gifts on
December 28? This seems odd. But Ms. Lewinsky's testimony reveals the
answer. She said that she never questioned ``that we were ever going
to
do anything but keep this private,'' and that means to take ``whatever
appropriate steps need to be taken.'' That is from Monica's grand jury
testimony of August 6.
Why would the President even meet with Monica Lewinsky on December
28
when their relationship was in question and he had a deposition coming
up? Certainly he knew he would be questioned about it. Certainly if
Monica became a witness she would be questioned about the relationship,
that she would be asked when was the last time you met with the
President, and now they have to say December 28, if they were going
to
tell the truth.
The answer is, the President knew that he had to keep Monica
Lewinsky
on the team and he was willing to take more risks so that she would
continue to be a part of the conspiracy to obstruct the legitimate
functions of the Federal court in a civil rights case.
It should be remembered that the President has denied each and
every
allegation of the two articles of impeachment, he has denied each
element of the obstruction of justice charges, including this
allegation that he encouraged a scheme to conceal evidence in a civil
rights case. This straightforward denial illustrates the dispute in
the
evidence and testimony. It sets the credibility of Monica Lewinsky,
the
credibility of Betty Currie, the credibility of Vernon Jordan, and
others against the credibility of the President of the United States.
How can you, as jurors, determine who is telling the truth?
I have
pointed to the corroborating evidence, the circumstantial evidence,
as
well as common sense supporting the testimony of Monica Lewinsky. But
let me ask you two questions: Can you convict the President of the
United States without hearing personally the testimony of one of the
key witnesses? The second question is: Can you dismiss the charges
under this strong set of facts and circumstances without hearing and
evaluating the credibility of key witnesses?
Let me take this a step further and evaluate the credibility
of the
President. Let's first look back at his testimony on the December 28
meeting that he gave in his deposition. In that case, he seriously
misrepresented the nature of his meeting with Ms. Lewinsky, and that
was the gift exchange. First he was asked:
Question: Did she tell you that
she had been served with a
subpoena in this case?
The President answered flatly, ``No. I don't know if she had
been.''
Again, this is his testimony in the deposition. He was also
asked in
the deposition if he ``ever talked to Monica Lewinsky about the
possibility of her testifying.'' His answer: ``I'm not sure * * *,''
he
said. He then added that he may have joked that the Jones lawyers might
subpoena every woman he has ever spoken to, and that ``I don't think
we
ever had more of a conversation than that about it * * *.''
Not only does Monica Lewinsky directly contradict his testimony,
but
the President later had to answer questions in the grand jury about
these same set of circumstances and the President directly contradicted
himself. Speaking of this December 28 meeting, he said that he ``knew
by then, of course, that she had gotten a subpoena'' and they had a
``conversation about the possibility of her testifying.''
I submit to this body that the inconsistencies of the President's
own
testimony, as well as common sense, seriously diminish his credibility
on this issue.
Now let's go forward, once again, to the time period in which
the
President gave his deposition in the Paula Jones case. The President
testified under oath on January 17, and immediately thereafter,
remember, he brought Betty Currie in to present a set of false facts
to
her, seeking her agreement and coaching her.
But the President is fully convinced that he can get by with
his
false denials because no one will be able to prove what did or did
not
happen in the Oval Office. There were no witnesses, and it boils down
to a ``he said, she said'' scenario, and as long as that is the case,
he believes he can win. If the President can simply destroy Monica
Lewinsky's credibility in public and before the grand jury, then he
will escape the consequences for his false statements under oath and
obstruction in the civil rights case. Now, remember, this viewpoint,
though, is all before the DNA tests were performed on the blue dress,
forcing the President to acknowledge certain items.
In order to carry out this coverup and obstruction, the President
needed to go further. He needed not only Betty Currie to repeat his
false statements, but also other witnesses who would assuredly be
called before the Federal grand jury and who would be questioned by
the
news media in public forums. And this brings us to the false statements
that the President made to his White House staff and Presidential
aides.
Let's call Sydney Blumenthal and John Podesta to the witness
stand. I
concede they would be adverse witnesses. This is referred to in exhibit
18 that you have in front of you.
First, the testimony of Sydney Blumenthal. Mr. Blumenthal, to
put
this in perspective, is testifying about his conversations when the
President called him in to go through these facts of what happened.
So
Mr. Blumenthal testified that ``it was at that point that he''--
referring to the President--``gave his account as to what happened
to
me and he said that Monica--and it came
[Page S241]
very fast. He said, `Monica Lewinsky came at me and made a sexual
demand on me.' He rebuffed her. He said, `I've gone down that road
before, I've caused pain for a lot of people and I'm not going to do
that again.' ''
Look at this next line. ``She threatened him. She said that
she would
tell people they'd had an affair, that she was known as the stalker
among her peers, and that she hated it and if she had an affair or
said
she had an affair then she wouldn't be the stalker any more.''
He talks about this character in a novel, and I haven't read
that
book. But the last line: ``And I said to him, I said, ``When this
happened with Monica Lewinsky, were you alone?' He said, `Well, I was
within eyesight or earshot of someone.' ''
Let's go to John Podesta's testimony where he was called in the
same
fashion. The President talked to him about what is happening:
Question: Okay. Share that with
us.
Answer: Well, I think he said--he
said that--there was some
spate of, you know, what sex acts were counted,
and he said
that he had never had sex with her in any
way whatsoever.
Question: Okay.
Answer: --that they had not had
oral sex.
Very briefly, Dick Morris. You have heard this. I will refer
to the
last line: `` `They're just not ready for it,' meaning the voters.
And
he [The President] said, `Well, we just have to win, then.' ''
As the President testified before the grand jury, he knew these
witnesses would be called before the grand jury. At page 106 of the
President's testimony before the grand jury--I just want to confirm
this point because it is important--he testified--the question was:
``You know that they''--and this is referring to John Podesta, Sydney
Blumenthal and his aides-- ``that they might be witnesses, you knew
they might be called into the grand jury, didn't you?''
His answer: ``That's right.''
So there is no question these were witnesses going to testify
before
the grand jury. He was giving them false information, and he did not
limit it to that. The false statements to them constitute witness
tampering and obstruction of justice.
I think there are two significant points in the statements the
President made to his aides.
First of all, the President who wants to do away with the politics
of
personal destruction indicates a willingness to destroy the credibility
and reputation of a young person who worked in his office for what
reason? In order to preserve not only his Presidency but, more
significantly, to defeat the civil rights case against him. It is not
a
matter of saying he didn't do it, because he could have simply uttered
a denial, but he engaged in character assassination that he knew would
be repeated to the Federal grand jury and throughout the public--she
was a stalker, she threatened me, she came on to me, and it was--it
was
repeated.
Secondly, he makes it clear in his statements to John Podesta
that he
denies any sexual relations with Monica Lewinsky, including oral sex.
There is no quibbling about definitions in this statement. It clearly
reflects an attempt to deceive, lie and obstruct our system of justice.
In this case, at every turn, he used whatever means available
to
evade the truth, destroy evidence, tamper with witnesses and took any
other action required to prevent evidence from coming forward in a
civil rights case that would prove a truth contrary to the President's
interest. He had obstructed the administration of justice before the
U.S. district court in a civil rights case and before the Federal grand
jury. But as we move toward a conclusion, let's not focus just on the
supporting cast we talked about, but we need to look at the direct
and
personal actions of the President.
I want to look at exhibit 20. This just summarizes the seven
pillars
of obstruction. What did the President do that constitutes evidence
of
obstruction?
No. 1, he personally encouraged a witness, Monica Lewinsky,
to
provide false testimony.
No. 2, the President had direct involvement in assuring a job
for a
witness--underlining direct involvement. He made the calls, Vernon
Jordan did, and it is connected with the filing of the false affidavit
by that witness.
No. 3, the President personally, with corrupt intentions, tampered
with the testimony of a prospective witness, Betty Currie.
No. 4, the President personally provided false statements under
oath
before a Federal grand jury.
No. 5, by direct and circumstantial evidence the President personally
directed the concealment of evidence under subpoena in a judicial
proceeding.
No. 6, the President personally allowed false representations
to be
made by his attorney, Robert Bennett, to a Federal district judge on
January 17.
No. 7, the President intentionally provided false information
to
witnesses before a Federal grand jury knowing that those statements
would be repeated with the intent to obstruct the proceedings before
that grand jury and that is the statements that he made to the aides.
The seven pillars of this obstruction case were personally
constructed by the President of the United States. It was done with
the
intent that the truth and evidence would be suppressed in a civil
rights case pending against him. The goal was to win, and he was not
going to let the judicial system stand in his way.
At the beginning of my presentation, I tried to put this case
into
perspective for myself by saying that this proceeding is the same as
to
what takes place in every courtroom in America--the pursuit of truth,
seeking equal justice, and upholding the law. All of that is true.
But
we know there is even more at stake in this trial. What happens here
affects the workings of our Constitution, it will affect the Presidency
in future decades, and it will have an impact on a whole generation
of
Americans. What is at stake is our Constitution and the principle of
equal justice for all.
I have faith in the Constitution of the United States, but the
checks
and balances of the Constitution are carried out by individuals--
individuals who are entrusted under oath with upholding the trust given
to us by the people of this great land. If I believe in the
Constitution, that it will work, then I must believe in you.
Ladies and gentlemen of the Senate, I trust the Constitution
of the
United States. But today it is most important that I believe in you.
I
have faith in the U.S. Senate. You have earned the trust of the
American people, and I trust each of you to make the right decision
for
our country.
Thank you, Mr. Chief Justice.
The CHIEF JUSTICE. The Chair recognizes the majority leader.
Recess
Mr. LOTT. Mr. Chief Justice, I ask unanimous consent that we
take
another 15-minute break in the proceedings. And I urge the Senators
to
return promptly to the Chamber so we can begin after the 15-minute
break.
There being no objection, at 4:51 p.m., the Senate recessed
until
5:10 p.m.; whereupon, the Senate reassembled when called to order by
the Chief Justice.
The CHIEF JUSTICE. The Chair recognizes the majority leader.
Mr. LOTT. Mr. Chief Justice, I believe we are ready to resume
final
presentation of the afternoon. Several Senators have inquired what
will
happen the balance of the day. I believe the presentation by
Congressman Rogan will be the last of the day. It is anticipated we
will complete today's presentation around 6:30 or 6:45.
I yield the floor.
The CHIEF JUSTICE. The Chair recognizes Mr. Rogan.
Mr. Manager ROGAN. Mr. Chief Justice, counsel for the President,
Members of the United States Senate, my name is Congressman James E.
Rogan. I represent the 27th District of California.
May I say at the outset that some of the facts and evidence
you will
hear in my presentation may sound familiar in light of the last
presentation. Although at times the facts may appear to be a crossover,
the relevance will be presented in a different light.
Mr. Manager Hutchinson's presentation offered the evidence as
it
relates to the obstruction of justice charge against the President
in
article II. I will be inviting this body to view the evidence within
the framework of article I, perjury before the grand jury.
On behalf of the House of Representatives and in the name of
the
people of the United States, I will be presenting
[Page S242]
to the Senate evidence against the President to demonstrate he
committed perjury before a Federal grand jury as set forth in article
I
of the articles of impeachment.
Article I of the impeachment resolution against President Clinton
alleges that he committed perjury before the grand jury.
On August 17, 1998, President Clinton swore to tell the truth,
the
whole truth, and nothing but the truth. The evidence shows that
contrary to that oath, the President willfully provided perjurious,
false, and misleading statements to the grand jury in four general
areas:
First, he perjured himself when he gave a false accounting to
the
grand jury about the nature and details of his relationship with a
21-
year-old intern, Ms. Monica Lewinsky, who was a subordinate Federal
Government employee.
Second, he perjured himself before the grand jury when he repeated
previous perjured answers he gave under oath in a sexual harassment
suit, which was a Federal civil rights action brought against him by
Paula Jones.
Third, he perjured himself before the grand jury when he repeated
previous perjured answers to justify his attorney's false
representations to a Federal judge in the Paula Jones sexual harassment
lawsuit against him.
Finally, he perjured himself before the grand jury when he testified
falsely about his attempts to get other potential grand jury witnesses
to tell false stories to the grand jury, and to prevent the discovery
of evidence in Paula Jones' sexual harassment lawsuit against him.
In a judicial proceeding, a witness has a very solemn obligation
to
tell the truth, the whole truth and nothing but the truth. Perjury
is a
serious crime because our judicial system can only succeed if citizens
are required to tell the truth in court proceedings. If witnesses may
lie with impunity for personal or political reasons, ``justice'' is
no
longer the product of the court system, and we descend into chaos.
That
is why the U.S. Supreme Court has placed a premium on truthful
testimony and shows no tolerance for perjury.
More than 20 years ago, the Supreme Court addressed this very
concept
of perjury and its dangerous effect on our system of law. Listen to
the
words of the U.S. Supreme Court:
In this constitutional process
of securing a witness'
testimony, perjury simply has no place whatever.
Perjured
testimony is an obvious and flagrant affront
to the basic
concepts of judicial proceedings. . . . Congress
has made the
giving of false answers a criminal act punishable
by severe
penalties; in no other way can criminal conduct
be flushed
into the open where the law can deal with
it.
That is the framework under which the House of Representatives
acted
in impeaching the President of the United States, and now respectfully
urges this body to call the President to constitutional accountability.
The key to understanding the facts of this case is to understand
why
the President was asked, under oath, questions about his private life
in the first place.
Despite the popular spin, it wasn't because Members of Congress
or
lawyers from the Office of the Independent Counsel, or a gaggle of
reporters suddenly decided to invade the President's privacy. No. This
all came about because of a claim against the President from when he
was the Governor of Arkansas.
During the discovery phase of the Paula Jones sexual harassment
case
against the President, Federal Judge Susan Webber Wright ordered him
to
answer questions under oath relating to any sexual relationship he
may
have had while Governor and President with subordinate female
Government employees. These orders are common in similar cases, and
the
questions posed to President Clinton are questions routinely posed
to
defendants in civil rights sexual harassment cases every single day
in
courthouses throughout the land.
During the President's deposition in the Paula Jones case, he
was
asked questions about his relationship with Monica Lewinsky. The judge
allowed these questions because they possibly could lead Mrs. Jones
to
discover if there was any pattern of conduct to help prove her case.
The President repeatedly denied that he had a sexual relationship with
Monica Lewinsky.
A few days later, the story about his relationship with Ms.
Lewinsky
broke in the press. A criminal investigation began to determine whether
the President perjured himself in the Paula Jones sexual harassment
case and obstructed justice by trying to defeat her claim against him
by corrupt means.
On the afternoon of August 17, 1998, President Clinton raised
his
right hand and took an oath before the grand jury in their criminal
investigation.
(Text of Videotape presentation:)
William Jefferson Clinton, Do you
solemnly swear that the
testimony you are about to give in this matter
will be the
truth, the whole truth, and nothing but the
truth, so help
you God?
Note the incredibly solemn obligation of the oath the President took:
Do you solemnly swear that the
testimony you are about to
give in this matter will be the truth, the
whole truth, and
nothing but the truth?
When the President made that solemn pledge, he was not obliging
himself to tell the grand jury the partial truth, he was not obliging
himself to tell the ``I didn't want to be particularly helpful'' truth;
he was not obliging himself to tell the ``this is embarrassing so I
think I'll fudge on it a little bit'' truth. He was required to tell
the truth, the whole truth, and nothing but the truth, and he made
that
pledge in the name of God.
The attorneys for the Office of the Independent Counsel showed
great
deference to the President when they questioned him that day. The
President's attorneys were allowed to be there with him during the
entire proceeding so that he could confer with them at his leisure
if
he was unsure of how to respond to a question. As a matter of fact,
the
attorney who questioned the President encouraged him to confer with
his
lawyers if there arose in the President's mind any reason to hesitate
before answering a question.
The following exchange occurred at the beginning of the President's
testimony. The President was told:
Normally, grand jury witnesses,
while not allowed to have
attorneys in the grand jury room with them,
can stop and
consult with their attorneys. Under our arrangement
today,
your attorneys are here and present for consultation
and you
can break to consult them as necessary. .
. . Do you
understand that, sir?
The President responded: ``I do understand that.''
As a practical matter, the President had three options as he
appeared
before the grand jury to testify.
First, the President could tell the truth about his true relationship
with Miss Lewinsky.
However, the evidence will clearly show that the president rejected
the option of telling the truth.
Second, the President knew he could invoke his Fifth Amendment
privilege against self-incrimination.
The independent counsel's attorney explicitly reminded the President
about his right to refuse to answer any question that might tend to
incriminate him.
The President was asked:
You have a privilege against self-incrimination.
If a
truthful answer to any question would tend
to incriminate
you, you can invoke the privilege and that
invocation will
not be used against you. Do you understand
that?
The President's response was: ``I do.''
The President knew he had the right to refuse to answer any
incriminating questions and that no legal harm would have come to him
for doing so.
But he rejected this option, just as he rejected the option
of
telling the truth, the whole truth, and nothing but the truth.
Instead, he selected a third path.
He continued to lie about corrupt efforts to destroy Paula Jones'
civil rights lawsuit against him.
If a trial is permitted before this body where live witnesses
can be
called, and where their credibility can be scrutinized, the evidence
will show this distinguished body that the course the President charted
was a course of perjury.
Despite the president's unique level of judicial sophistication
and
expertise, the attorneys at the grand jury were careful to make sure
the president understood his responsibilities to tell the truth, the
whole truth, and nothing but the truth.
They did this at the outset of his testimony, before any questions
were asked that might tempt the president to lie under oath.
[Page S243]
And they specifically warned him that if he were to lie or
intentionally mislead the grand jury, he could face perjury and
obstruction of justice charges, both of which are felonies under
federal law.
This exchange occurred before the President's testimony:
Q: Mr. President, you understand
that your testimony here
today is under oath?
A: I do.
Q: And you understand that because
you have sworn to tell
the truth, the whole truth, and nothing but
the truth, that
if you were to lie or intentionally mislead
the grand jury,
you could be prosecuted for perjury and/or
obstruction of
justice?
A: I believe that's correct.
Q: Is there anything that . .
. I've stated to you
regarding your rights and responsibilities
that you would
like me to clarify or that you don't understand?
A: No, sir.
Despite this ominous warning, the prosecutors continued emphasizing
the need for the President to resist lying to the grand jury.
Still intent on making sure the President understood his obligations,
the attorneys further advised him:
Q: Mr. President, I would like
to read for you a portion of
Federal Rule of Evidence 603, which discusses
the important
function the oath has in our judicial system.
It says that the purpose of the
oath is . . . calculated to
awaken the witness' conscience and impress
the witness' mind
with the duty to tell the truth.
Could you please tell the grand
jury what that oath means
to you for today's testimony?
A: I have sworn an oath to tell
the grand jury the truth,
and that's what I intend to do.
When the President said in that very last answer I just read
that he
swore an oath to tell the grand jury ``the truth,'' the prosecutor
immediately followed up with this question. Here is what he was told.
Question to the President:
Q: You understand that [the oath]
requires you to give the
whole truth, that is, a complete answer to
each question,
sir?
A: I will answer each question
as accurately and fully as I
can.
One would think these repetitive explanations would be enough
to warn
even the most legally unsophisticated witness about the need to treat
a
grand jury criminal investigation seriously, and the need to tell the
whole truth at any cost.
No reasonable person could believe at this point that the President
did not understand his obligations.
Yet, just to be sure, the attorneys again impressed on the President
his solemn duty to tell the truth:
Question to the President:
Q: Now, you took the same oath
to tell the truth, the whole
truth, and nothing but the truth on January
17th, 1998, in a
deposition in the Paula Jones litigation;
is that correct,
sir?
A: I did take an oath then.
Q: Did the oath you took on that
occasion mean the same to
you then as it does today?
A: I believed then that I had
to answer the questions
truthfully. That is correct. . . .
Q: And it meant the same to you
then as it does today?
A: Well, no one read me a definition
then and we didn't go
through this exercise then.
I swore an oath to tell the truth,
and I believed I was
bound to be truthful and I tried to be.
Having just received his ``refresher course'' on either ``taking
the
Fifth'' and remaining silent, or telling the whole truth and nothing
but the truth, the president acknowledged he was required to tell the
truth when he gave answers to questions 8 months earlier in the Paula
Jones sexual harassment civil rights lawsuit.
Question to the President:
Q: At the Paula Jones deposition,
you were represented by
Mr. Robert Bennett, your counsel, is that
correct?
A: That is correct.
Q: He was authorized by you to
be your representative
there, your attorney, is that correct?
A: That is correct.
Q: Your counsel, Mr. Bennett,
indicated . . . and I'm
quoting, ``The President intends to give full
and complete
answers as Ms. Jones is entitled to have.''
My question to you is, do you
agree with your counsel that
a plaintiff in a sexual harassment case is,
to use his words,
entitled to have the truth?
A: I believe that I was bound
to give truthful answers,
yes, sir.
Q: But the question is, sir, do
you agree with your counsel
that a plaintiff in a sexual harassment case
is entitled to
have the truth?
A. I believe when a witness is
under oath in a civil case,
or otherwise under oath, the witness should
do everything
possible to answer the questions truthfully.
Thus, the groundwork was laid for the President to testify under
oath.
He knew how the rules worked respecting testimony before the
grand
jury.
If a question was vague or ambiguous, the President could ask
for a
clarification.
If he was unsure how to answer, or indeed whether to answer
a
question, he could stop the questioning, take a break, and consult
privately with his attorneys who were present with him.
If giving an answer would tend to incriminate him, he could
refuse to
answer the question by claiming his Fifth Amendment rights.
But if, after all of this, he decided to give an answer, the
answer
he gave was required to be the truth, the whole truth, and nothing
but
the truth. And it was no different than the obligation when he
testified in the Paula Jones deposition--the same oath, the same
obligation.
Let's look at how the President chose to meet his obligation.
As noted in my opening remarks, the President's grand jury perjury
is
the basis for article I of the impeachment resolution. The evidence
shows, and live witnesses clearly will demonstrate, that the President
repeatedly committed perjury before the grand jury when he testified
as
a defendant in a sexual harassment civil rights lawsuit against him.
He intentionally failed in his lawful obligation to tell the
truth in
four general areas. First, the President committed perjury before the
grand jury when he testified about the nature of his relationship with
Monica Lewinsky, a 21-year-old White House intern who, by definition,
was a subordinate Government employee.
On December 5, 1995, Monica Lewinsky's name appeared on the
Paula
Jones witness list. Later, the President was ordered by Federal Judge
Susan Webber Wright to answer questions about Monica Lewinsky because
the President was a defendant in a sexual harassment case.
At his deposition in the Paula Jones case, the President was
shown a
definition approved by Judge Wright of what constitutes sexual
relations. I am going to read the definition that was presented to
the
President.
And let me say at the outset that I am going to slightly sanitize
it.
You have in your materials, Members of this body, a copy of the actual
definition that was given to you, so you will be able to understand
precisely what was put before the President.
Definition of sexual relations: ``For the purposes of this
deposition, a person engages in sexual relations when the person
knowingly engages in or causes contact with the [certain enumerated
body parts] of any person with an intent to arouse or gratify the
sexual desire of any person.''
Members of the Senate, just for clarification, I did not feel
the
need to actually relate to this body what those enumerated body parts
are.
After reviewing the deposition, the President then denied that
he
ever had a sexual relationship with Monica Lewinsky. As we have already
seen, from the day in January when the President testified in the Jones
deposition until the day he appeared in August for his grand jury
testimony, he vehemently denied ever having a sexual relationship with
Monica Lewinsky.
Listen to the President addressing the American people on the
subject
of his credibility. The date is January 26, 1998, 5 days after the
Lewinsky story broke in the press.
(Text of videotape presentation:)
``But I want to say one thing to
the American people. I
want you to listen to me. I'm going to say
this again.''
``I did not have sexual relations
with that woman--Miss
Lewinsky.''
``I never told anybody to lie--not
a single time. Never.
These allegations are false. And I need to
go back to work
for the American people.''
``Thank you.''
Beginning in January 1998, the President went on an 8-month campaign,
both under oath and in the press, denying any sexual relationship with
Monica Lewinsky in any way, shape, or form. But 8 months after his
deposition testimony and these passionate denials, the tide had turned
against his story. By August, Monica Lewinsky was now cooperating with
the office of the independent counsel. If she was telling the truth
in
her sworn testimony, then the President's January denial in the Paula
Jones case would
[Page S244]
have been a clear case of him committing perjury and obstructing
justice.
Why? Because she was describing, in very graphic detail, conduct
occurring between her and the President that clearly fit the definition
of ``sexual relations'' as used in the Paula Jones deposition--conduct
that he repeatedly denied under oath.
So by the time the President sat down for his grand jury testimony
to
answer these questions under oath, he had put himself in a huge box.
He
could not continue the outright lie because Ms. Lewinsky had turned
over her blue dress for DNA testing, and at the time of his grand jury
testimony he didn't know what the results were of that FBI test. Under
such circumstances, continuing the lie was too risky of a strategy
even
for the most accomplished of gamblers. But if he told the truth, his
earlier perjury and obstruction of justice would have ended his
Presidency. He was sure he would have been driven from office.
Remember that the President had actually authorized that a poll
be
taken for him by Dick Morris, and the poll wasn't just taken on whether
the American people would forgive him for adultery; the President asked
Dick Morris to poll in two other areas. He asked Dick Morris to poll
whether the American people would forgive him for perjury and
obstruction of justice. When he got the poll results back, he learned
that the American people would forgive him for the adultery but they
would not forgive him for perjury or for obstruction of justice.
Once he got the bad news from Dick Morris that his political
career
was over if he perjured himself, he told Dick Morris, ``We'll just
have
to win.'' So at his grand jury testimony, once the first question was
asked about his relationship with Monica Lewinsky, the President
produced a prepared statement and read from it. This prepared statement
he read to the grand jury on August 17, 1998, was the linchpin in his
plan to ``win.''
(Text of videotape presentation:)
Q. Mr. President, were you physically
intimate with Monica
Lewinsky?
A. Mr. Bittman, I think maybe
I can save you and the grand
jurors a lot of time if I read a statement,
which I think
will make it clear what the nature of my relationship
with
Ms. Lewinsky was and how it related to the
testimony I gave,
what I was trying to do in that testimony.
And I think it
will perhaps make it possible for you to ask
even more
relevant questions from your point of view.
And, with your
permission, I'd like to read that statement.
Q. Absolutely. Please, Mr. President.
A. When I was alone with Ms. Lewinsky
on certain occasions
in early 1996 and once in early 1997, I engaged
in conduct
that was wrong. These encounters did not consist
of sexual
intercourse. They did not constitute sexual
relations as I
understood that term to be defined at my January
17th, 1998
deposition. But they did involve inappropriate
intimate
contact.
These inappropriate encounters
ended, at my insistence, in
early 1997. I also had occasional telephone
conversations
with Ms. Lewinsky that included inappropriate
sexual banter.
I regret that what began as a
friendship came to include
this conduct. I take full responsibility for
my actions.
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.
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 of
sexual relations, as I understood it to be
defined at my
January 17th, 1998, deposition, and questions
concerning
alleged subordination of perjury, obstruction
of justice and
intimidation of witnesses.
That . . . is my statement.
Beyond that statement, the President generally refused to answer
specific questions about his relationship with Monica Lewinsky. The
President used that prepared statement as a substitute answer for
specific questions about his conduct with Ms. Lewinsky 19 separate
times during his testimony before the grand jury. The purpose of the
prepared statement was to avoid answering the types of specific
harassment lawsuit questions for which the U.S. Supreme Court and Judge
Susan Webber Wright had earlier cleared the way. The evidence shows
the
President used this prepared statement in order to justify the
perjurious answers he gave at his deposition which were intended to
affect the outcome of the Paula Jones case. The fact that this
statement was prepared in advance shows his intent to mislead the grand
jury in this very area. Ironically, this prepared statement was
supposed to inoculate the President from perjury. Instead, it opened
him up to 19 more examples of giving perjurious, false, and misleading
answers under oath.
For example, in that prepared statement, the President said his
sexual contact with Ms. Lewinsky began in 1996, and not in 1995, as
Ms.
Lewinsky had testified. This was not a mere slip of memory over a
meaningless timeframe; there is a discrepancy in the dates for a
reason. You see, under the President's version, in 1996 Monica Lewinsky
was a paid White House employee. Under the facts as testified to by
Ms.
Lewinsky, when the relationship really began in 1995, she was not a
paid employee at the White House, she was a young, 21-year-old White
House intern.
The concept of a President having a sexual relationship in the
White
House with a young intern less than half his age was a public relations
disaster for the President, as everyone vividly remembers. It is clear
that the President somehow viewed the concept as less combustible if
he
could take the ``young intern'' phrase out of the public lexicon. Yet,
in his deposition testimony, the President admitted he met her and
saw
her when she was an intern working in the White House in November 1995,
during the Government shutdown. Monica Lewinsky confirmed this. In
fact, she testified that the first time she ever spoke to the President
was on November 15, 1995, during the Government shutdown. And she also
said that the very first time that she ever spoke to the President
was
the same day he invited her back to the Oval Office and began a sexual
relationship with her.
It is obvious that the reference in the President's prepared
statement to the grand jury that this relationship began in 1996 was
intentionally false.
The President's statement was intentionally misleading when
he
described being alone with Ms. Lewinsky only on certain occasions.
Actually, they were alone in the White House at least 20 times and
had
at least 11 sexual encounters at the White House. The President
attempted to use language that subtly minimized the number of times
they were alone.
The President's statement was intentionally misleading when
he
described his telephone conversations with Monica Lewinsky as
``occasional.'' In fact, there are at least 55 documented telephone
conversations between the President of the United States and the young
intern. And, without going into further graphic detail, the evidence
shows that, at least on 17 of those occasions, those conversations
included much more than mere sexual banter, as the President described
it.
The most unsettling part of that statement was uttered near
the
close. Listen to what the President said: ``I regret that what began
as
a friendship came to include this conduct.'' ``Friendship.'' The very
day the President met and spoke with a young White House intern for
the
first time was the day he invited her back to the Oval Office to
perform sex acts on him.
In fact, Monica Lewinsky said that after their sexual relationship
was over a month old, she didn't even think the President knew her
name. The President's statement about his relationship with Monica
Lewinsky beginning as a friendship is a callous and deceptive
mischaracterization of how his relationship with this young woman
really began.
Thus, the President began his deposition testimony by reading
a false
and misleading statement to the grand jury. He then used that statement
as an excuse not to answer specific questions that were directly
relevant to allowing the grand jury to complete its criminal
investigation. Had he given specific answers to specific questions
about the true nature of his relationship, the grand jury would have
been able to learn the whole truth about whether the President perjured
himself and obstructed justice in the Paula Jones sexual harassment
civil rights lawsuit.
Paula Jones had a legal and constitutional right to learn if
the
President, while as President or Governor, used his position of power
and influence to get sexual favors from subordinate female employees
in
the workplace or to reward subordinate female employees
[Page S245]
for granting such favors to him. Instead, the President intentionally
provided on 19 separate occasions a misleading statement instead of
giving a true characterization of his conduct, as required by his oath.
He had no legal or constitutional right to refuse to answer
such
questions without claiming a fifth amendment privilege and then
allowing Judge Wright to make a determination as to whether the
privilege applied. The President's preliminary statement delivered
19
times was an initial shot across the perjury bow offered by the
President throughout his grand jury testimony. It showed a premeditated
effort to thwart the grand jury's criminal investigation, to justify
his prior wrongdoing, and to deny Paula Jones her constitutional right
to bring forward her claim in a court of law.
The President gave further perjurious, false, and misleading
testimony regarding the nature and details of his relationship with
Monica Lewinsky. One of the ways the President tried to justify his
perjurious answers in the Jones deposition about his relationship was
to deconstruct the English language. Remember, the President was shown
a copy of the definition of ``sexual relations'' that Judge Wright
approved in his January deposition. This definition was directed by
Judge Wright to be used as the guide under which the President was
to
answer questions about his relationship with Monica Lewinsky. After
carefully reviewing that definition, the President said under oath
that
it did not apply to his relationship with her.
It is important to remember that at the time the President testified
that he never had sexual relations with Monica Lewinsky, this was not
a
risky perjury strategy. After all, he had successfully used Vernon
Jordan to get Monica Lewinsky a good job in New York, despite her
questionable qualifications. She had filed a false affidavit in the
Jones case denying a sexual relationship with the President. She and
the President had previously agreed to comprehensive cover stories
to
deny the truth of their relationship if anyone ever confronted them
about it. And the bevy of gifts the President had given to Monica were
now nestled safely under Betty Currie's bed so that they would never
be
produced to or discovered by Mrs. Jones' attorneys in compliance with
their subpoena to have those gifts produced.
The perjury strategy was a safe bet in January at his deposition,
but
it soon turned upside-down for the President. By the time of his grand
jury testimony in August, the President knew things had changed
drastically, but not in his favor. In light of Ms. Lewinsky's
cooperation with the independent counsel, the impending FBI report
on
the DNA testing on the blue dress, and the President's decision not
to
confess to his crime, the President needed to come up with some excuse.
Here is how the President, at his August grand jury appearance, tried
to explain away his January deposition denial of engaging in sexual
relations with Monica Lewinsky.
(Text of video tape presentation:)
Q. Did you understand the words
in the first portion of the
[Jones deposition] exhibit, Mr. President,
that is, ``For the
purposes of this deposition, a person engages
in `sexual
relations' when the person knowingly engages
in or causes . .
.''?
Did you understand, do you understand
the words there in
that phrase?
A. Yes . . . I can tell you what
my understanding of the
definition is, if you want . . . My understanding
of this
definition is it covers contact by the person
being deposed
with the enumerated areas, if the contact
is done with an
intent to arouse or gratify. That's my understanding
of the
definition.
Q. What did you believe the definition
to include and
exclude? What kinds of activities?
A. I thought the definition included
any activity by the
person being deposed, where the person was
the actor and came
into contact with those parts of the bodies
with the purpose
or intent of gratification, and excluded any
other activity.
For example, kissing's not covered by that,
I don't think.
Q. Did you understand the definition
to be limited to
sexual activity?
A. Yes, I understood the definition
to be limited to
physical contact with those areas of the body
with the
specific intent to arouse or gratify. That's
what I
understood it to be.
Q. What specific acts did the
definition include, as you
understood the definition on January 17th,
1998?
A. Any contact with the areas
that are mentioned, sir. If
you contacted those parts of the body with
an intent to
arouse or gratify, that is covered.
Q. What did you understand . .
.
A. The person being deposed. If
the person being deposed
contacted those parts of another person's
body with an intent
to arouse or gratify, that was covered.
If that answer sounds confusing to you, there is a reason for
that.
It was meant to be.
What the President now was saying to the grand jury is that
during
their intimate relationship in the Oval Office, Monica Lewinsky had
sexual relations with him; he didn't have sexual relations with her.
Consider that for a minute.
The President is asking everyone to believe that between the
years
1995 and 1997, while Monica Lewinsky was engaged in a pattern of
explicit availability for him as she described in her testimony, the
President carefully avoided having any intimate contact with her as
described in Judge Wright's very detailed definition.
And, according to the President, since he never intimately touched
her as described in the definition--she only touched him--then he was
under no obligation to answer questions in the harassment suit about
Monica Lewinsky as Federal Judge Susan Webber Wright ordered him to
do
under oath.
Not only does the President's claim strain all boundaries of
common
sense, it is directly in conflict with Monica Lewinsky's detailed and
corroborated accounts of their relationship.
As if this ridiculous expansion of Judge Wright's definition
of what
constituted sexual relations wasn't enough, the President then decided
to take his interpretation of the judge's definition one step further.
He added a new element as to why he claimed the definition didn't apply
to him.
When asked again, at his grand jury testimony, what he thought
the
definition of sexual relations meant, here is the new twist that the
President came up with.
(Text of videotape presentation:)
A. As I remember from the previous
discussion this was some
kind of definition that had something to do
with sexual
harassment. So, that implies it's forcing
to me. And I--there
was never any issue of forcing in the case
involving--well,
any of these questions they were asking me.
They made it
clear in this discussion I just reviewed that
what they were
referring to was intentional sexual conduct,
not some sort of
forcible abusive behavior.
So I basically--I don't think
I paid any attention to it
because it appeared to me that that was something
that had no
reference to the facts that they admitted
they were asking me
about.
The President now took the position that the definition didn't
apply
to him because it would only have applied if he forced himself on
Monica Lewinsky. Remember the definition. And I will read it again:
For the purposes of this deposition,
a person engages in
sexual relations when the person knowingly
engages in or
causes--
(1) contact with the [certain
enumerated body parts] of any
person with an intent to arouse or gratify
the sexual desire
of any person[.]
As you can see, this straightforward definition did not include
the
subject of force or harassment.
Yet when the independent counsel's attorney tried to clarify
the
President's newfound position, the President gave no ground. He simply
plowed ahead with his new interpretation.
(Text of videotape presentation:)
Q. I'm just trying to understand,
Mr. President. You
indicated that you put the definition in the
context of a
sexual harassment case . . .
A. No, no, I think it was not
in the context of sexual
harassment. I just re-read those four pages,
which obviously
the grand jury doesn't have. But there was
some reference to
the fact that this definition apparently bore
some--had some
connection to some definition in another context
and that
this was being used not in that context, not
necessarily in
the context of sexual harassment.
So I would think that this causes
would be--means to force
someone to do something. That's what I read
it. That's the
only point I'm trying to make. Therefore,
I did not believe
that any one had ever suggested that I had
forced anyone to
do anything and I did not do that. And so,
that could not
have had any bearing on any questions relating
to Ms.
Lewinsky.
The evidence clearly shows from Monica Lewinsky's sworn testimony
that the President deconstructed the English language to deny Paula
Jones the opportunity to find out if other witnesses were out there
who
would help bolster her case against the President, and she was legally
entitled to do that under our sexual harassment laws.
No reasonable interpretation of the President's testimony could
be
made
[Page S246]
that he fulfilled his legal obligation to testify to the truth, the
whole truth and nothing but the truth.
His statements were perjurious. They were designed to defeat
Paula
Jones' right to pursue her sexual harassment civil rights lawsuit
against this President.
And by the way, in his testimony, the President conceded that
if
Monica Lewinsky's recitation of the facts was true, he would have
perjured himself both in his deposition testimony and in repeating
his
denials before the grand jury. Listen to this.
(Text of videotape presentation:)
Q. And you testified that you didn't
have sexual relations
with Monica Lewinsky in the Jones deposition
under that
definition, correct?
A. That's correct, sir.
Q. If the person being deposed
touched the genitalia of
another person, would that be in--with the
intent to arouse
the sexual desire, arouse or gratify, as defined
in
definition one, would that be, under your
understanding, then
and now, sexual relations?
A. Yes, sir.
Q. Yes, it would?
A. Yes, it would if you had a
direct contact with any of
these places in the body, if you had direct
contact with
intent to arouse or gratify, that would fall
within the
definition.
Q. So you didn't do any of those
three things with Monica
Lewinsky?
A. You are free to infer that
my testimony is that I did
not have sexual relations as I understood
this term to be
defined.
So, who is telling the truth? The only way to really know is
to bring
forth the witnesses, put them under oath and give each juror, each
Member of this body the opportunity to make that determination of
credibility, because the record shows that Monica Lewinsky delivered
consistent and detailed testimony under oath regarding many specific
encounters with the President that clearly fell within the definition
of sexual relations from the Jones deposition.
Monica Lewinsky's memory and accounts of these incidents are
amazingly corroborated by her recollection of dates, places and phone
calls which correspond with the official White House entrance logs
and
phone records.
Monica Lewinsky's testimony is further corroborated through
DNA
testing and the testimony of her friends and family members, to whom
she made near contemporaneous statements about the relationship.
Most importantly, Monica Lewinsky had every reason to tell the
truth
to the grand jury. She was under a threat of prosecution for perjury,
not only for her grand jury testimony, but also for the false affidavit
she filed on behalf of the President in the Jones case.
She knew then and she knows today that her immunity agreement
could
be revoked at any time if she lies under oath or if she lied under
oath
in the past. Truthful testimony was and remains a condition for her
immunity from prosecution.
By way of contrast, the President was under obligation to give
complete answers. Instead, he offered false answers that violated his
oath to tell the truth, the whole truth and nothing but the truth.
And
incidentally, during his grand jury testimony, the President actually
suggested that he had a right to give less than complete answers. Why?
Because he questioned the motives of Ms. Jones in bringing her lawsuit.
If this standard is acceptable, what does that do to the search
for
the truth when an oath is administered in a courtroom to one who claims
to question the ``motives'' of their opponent in a trial? This
suggestion has no basis in law. And it is destructive to the truth-
seeking function of the courts.
The President's perjurious legal hairsplitting used to bypass
the
requirement of telling the complete truth denied Paula Jones her
constitutional right to have her day in court and an orderly
disposition of her claim in the sexual harassment case against the
President.
To dismiss this conduct with a shrug because it is ``just about
sex''
is to say that the sexual harassment laws protecting women in the
workplace do not apply to powerful employers or others in high places
of privilege. As one wag recently noted, if this case is ``just about
sex,'' then robbery is just a disagreement over money.
Next, the President perjured himself before the grand jury when
he
repeated previous perjured answers he gave in the deposition of the
Paula Jones case. In his grand jury testimony in August, the President
admitted he had to tell the truth, the whole truth, and nothing but
the
truth when he testified in the Paula Jones deposition.
The question to the President:
Now, you took the same oath to
tell the truth, the whole
truth, and nothing but the truth on January
17th, 1998, in a
deposition in the Paula Jones litigation;
is that correct,
sir?
Answer:
I did take an oath then.
Question:
Did the oath you took on that occasion
mean the same to you
then as it does today?
Answer:
I believe then that I had to answer
the questions
truthfully; that is correct.
When the President testified in his January deposition, he knew
full
well that Monica Lewinsky's affidavit she filed in the case stating
that they never had sexual relations was false. Yet, when this
affidavit was shown to him at the deposition, he testified that her
false claim was, in his words, ``absolutely true.''
He knew that the definition of ``sexual relations'' used in
the
earlier Jones deposition was meant to cover the same activity that
was
mentioned in Monica Lewinsky's false affidavit. Rather than tell the
complete truth, the President lied about the relationship, the cover
stories, the affidavit, the subpoena for gifts, and the search for
a
job for Ms. Lewinsky.
Later he denied to the grand jury in August that he committed
any
perjury during his January deposition. This assertion before the grand
jury that he testified truthfully in the Jones case is in and of itself
perjurious testimony because the record is clear he did not testify
truthfully in January in the Paula Jones case. He perjured himself.
Thus, when the President testified before the grand jury in
August,
he knew he had given perjurious answers in the January deposition.
If
the President really thought, as he testified, that he had told the
truth in his January deposition testimony, he would not have related
a
false account of events to his secretary, Betty Currie, whom he knew,
by his own admission, might be called as a witness in the Jones case;
he would not have repeatedly denied he was unable to recall being alone
with Monica Lewinsky; and he would not have told false accounts to
his
aides whom he knew, by his own admission, were potential witnesses
in
later proceedings.
The evidence of perjury and obstruction of justice is overwhelming
in
this case. He continued to use illegal means to defeat Ms. Jones'
constitutional right to bring her harassment case against him.
Next, the President committed perjury before the grand jury
when he
testified that he did not allow his attorney to make false
representations while referring to Monica Lewinsky's affidavit before
the judge in the Jones case, an affidavit that he knew was false.
Remember, at the Jones deposition in January 1998, Monica Lewinsky
previously had filed a false affidavit that said, ``I have never had
a
sexual relationship with the President'' and that she had no relevant
information to provide on the subject to Ms. Jones.
When Ms. Jones' attorneys attempted to question the President
about
his relationship with Ms. Lewinsky, the President's attorney, Mr.
Bennett, objected to him even being questioned about the relationship.
Mr. Bennett claimed that in light of Monica Lewinsky's affidavit
saying that there was no sexual relationship between the two, and there
never had been, that Paula Jones' lawyer had no good faith belief even
to question the President about a relationship with Monica Lewinsky.
Listen to what Mr. Bennett told Judge Wright in the deposition.
(Text of videotape presentation:)
Mr. Bennett. Your Honor, excuse
me, Mr. President, I need
some guidance from the Court at this point.
I'm going to
object to the innuendo. I'm afraid, as I say,
that this will
leak. I don't question the predicates here.
I question the
good faith of counsel, the innuendo in the
question. Counsel
is fully aware that Ms. Jane Doe 6 [Monica
Lewinsky] has
filed, has an affidavit which they are in
possession of
saying that there is absolutely no sex of
any kind in any
manner, shape or form, with President Clinton,
and yet
listening to the innuendo in the questions----
Judge Wright. No, just a minute,
let me make my ruling. I
do not know whether
[Page S247]
counsel is basing this question on any affidavit,
but I will
direct Mr. Bennett not to comment on other
evidence that
might be pertinent and could be arguably coaching
the witness
at this juncture. Now, Mr. Fisher is an officer
of this
court, and I have to assume that he has a
good faith basis
for asking the question. If in fact he has
no good faith
basis for asking this question, he could later
be sanctioned.
If you would like, I will be happy to review
in camera any
good faith basis he might have.
Mr. Bennett. Well, Your Honor,
with all due respect, I
would like to know the proffer. I'm not coaching
the witness.
In preparation of the witness for this deposition,
the
witness is fully aware of Ms. Jane Doe 6's
(Monica
Lewinsky's) affidavit, so I have not told
him a single thing
he doesn't know, but I think when he asks
questions like this
where he's sitting on an affidavit from the
witness, he
should at least have a good faith proffer.
Judge Wright. Now, I agree with
you that he needs to have a
good faith basis for asking the question.
Mr. Bennett. May we ask what it
is, Your Honor?
Judge Wright. And I'm assuming
that he does, and I will be
willing to review this in camera if he does
not want to
reveal it to counsel.
Mr. Bennett. Fine.
Mr. Fisher. I would welcome an
opportunity to explain to
the Court what our good faith basis is in
an in camera
hearing.
Judge Wright. All right.
Mr. Fisher. I would prefer that
we not take the time to do
that now, but I can tell the Court I am very
confident there
is substantial basis.
Judge Wright. All right, I'm going
to permit the question.
He's an officer of the Court, and as you know,
Mr. Bennett,
this Court has ruled on prior occasions that
a good faith
basis can exist notwithstanding the testimony
of the witness,
of the deponent, and the other party.
May I say as an aside that by presenting that, I am in no way
questioning the quality or the integrity of the President's attorney,
Mr. Bennett, on that day. Mr. Bennett was doing his job as the
President's lawyer. He had an affidavit from Monica Lewinsky that said
none of this ever happened. And so I hope that none of you will assume
that by my showing this deposition tape today that I am trying to draw
any unfair inference against the President's attorney on that date.
But
you can tell from what you have just observed that Mr. Bennett was
using Monica Lewinsky's false affidavit in an attempt to stop
questioning of the President about Ms. Lewinsky.
What did the President do during that exchange? He sat mute.
He did
not say anything to correct Mr. Bennett, even though the President
knew
that the affidavit upon which Mr. Bennett was relying was utterly
false.
Judge Wright overruled Mr. Bennett's objection and allowed the
questioning about Monica Lewinsky to proceed.
Later in the deposition, Mr. Bennett read to the President the
portion of Ms. Lewinsky's affidavit in which she denied having a sexual
relationship with the President. Mr. Bennett then asked the President,
who was under oath, if Ms. Lewinsky's statement that they never had
a
sexual relationship was true and accurate.
Listen to the President as he responds.
(Text of videotape presentation:)
Q: In paragraph eight of her affidavit,
she says this, ``I
have never had a sexual relationship with
the President, he
did not propose that we have a sexual relationship,
he did
not offer me employment or other benefits
in exchange for a
sexual relationship, he did not deny me employment
or other
benefits for reflecting a sexual relationship.''
Is this a true and accurate statement
as far as you know
it?
A: That is absolutely true.
The President's answer: ``That is absolutely true.''
When President Clinton was asked during his grand jury testimony
8
months later how he could have sat silently at his earlier deposition
while his attorney made the false statement that ``there is no sex
of
any kind,'' in any manner, shape, or form, to Judge Wright, the
President first said that he was not paying ``a great deal of
attention'' to Mr. Bennett's comments.
(Text of videotape presentation:)
Q. Mr. President, I want to--before
I go into a new subject
area, briefly go over something you were talking
about with
Mr. Bittman. The statement of your attorney,
Mr. Bennett, at
the Paula Jones deposition--counsel is fully
aware--it's page
54, line 5. ``Counsel is fully aware that
Ms. Lewinsky is
filing, has an affidavit, which they were
in possession of,
saying that there was absolutely no sex of
any kind in any
manner, shape or form with President Clinton.''
That
statement was made by your attorney in front
of Judge Susan
Webber Wright.
A. That's correct.
Q. Your--that statement is a completely
false statement.
Whether or not Mr. Bennett knew of your relationship
with Ms.
Lewinsky, the statement that there was ``no
sex of any kind
in any manner, shape or form with President
Clinton'' was an
utterly false statement. Is that correct?
A. It depends upon what the meaning
of the word ``is''
means. If ``is'' means is, and never has been,
that's one
thing. If it means, there is none, that was
a completely true
statement. But as I have testified--I'd like
to testify
again--this is --it is somewhat unusual for
a client to be
asked about his lawyer's statements instead
of the other way
around. I was not paying a great deal of attention
to this
exchange. I was focusing on my own testimony.
The President added to this explanation he was giving to the
attorney
questioning him. This is what the President said: ``And I'm not sure
.
. . as I sit here today that I sat there and followed all these
interchanges between the lawyers. I'm quite sure that I didn't follow
all the interchanges between the lawyers all that carefully. And I
don't really believe, therefore, that I can say Mr. Bennett's testimony
or statement is testimony and is imputable to me. I didn't--I don't
know that I was really paying attention, paying that much attention
to
him.''
This denial of the President while his attorney was proffering
a
false statement to Judge Wright in an effort to keep the Paula Jones
lawyers from even questioning the President about his relationship
with
Monica Lewinsky simply does not withstand the test of truth. The
videotape of the President's January deposition shows the President
paying very close attention to Mr. Bennett when Mr. Bennett was making
the statement about ``no sex of any kind.''
View again the video clip of the President during Mr. Bennett's
argument that the Jones lawyers have no right to ask questions about
Monica Lewinsky, only this time watch the President as he focuses on
his lawyer speaking about one of the most important subjects he has
ever faced in his entire life--the survival of his Presidency.
(Text of videotape presentation:)
Mr. Bennett. Your Honor, excuse
me, Mr. President, I need
some guidance from the Court at this point.
I'm going to
object to the innuendo. I'm afraid, as I say,
that this will
leak. I don't question the predicates here.
I question the
good faith of counsel, the innuendo in the
question. Counsel
is fully aware that Ms. Jane Doe 6 [Monica
Lewinsky] has
filed, has an affidavit which they are in
possession of
saying that there is absolutely no sex of
any kind in any
manner, shape or form, with President Clinton,
and yet
listening to the innuendo in the questions----
Judge Wright. No, just a minute,
let me make my ruling. I
do not know whether counsel is basing this
question an any
affidavit, but I will direct Mr. Bennett not
to comment on
other evidence that might be pertinent and
could be arguably
coaching the witness at this juncture. Now,
I Mr. Fisher is
as officer of this court, and I have to assume
that he has a
good faith basis for asking the question.
If in fact he has
no good faith basis for asking this question,
he could later
be sanctioned. If you would like, I will be
happy to review
in camera any good faith basis he might have.
Mr. Bennett. Well, Your Honor,
with all due respect, I
would like to know the proffer. I'm not coaching
the witness.
In preparation of the witness for this deposition,
the
witness is fully aware of Ms. Jane Doe 6's
(Monica
Lewinsky's) affidavit, so I have not told
him a single thing
he doesn't know, but I think when he asks
questions like this
where he's sitting on an affidavit from the
witness, he
should at least have a good faith proffer.
Judge Wright. Now, I agree with
you that he needs to have a
good faith basis for asking the question.
Mr. Bennett. May we ask what it
is, Your Honor?
Judge Wright. And I'm assuming
that he does, and I will be
willing to review this in camera if he does
not want to
reveal it to counsel.
Mr. Bennett. Fine.
Mr. Fisher. I would welcome an
opportunity to explain to
the Court what our good faith basis is in
an in camera
hearing.
Judge Wright. All right.
Mr. Fisher. I would prefer that
we not take the time to do
that now, but I can tell the Court I am very
confident there
is substantial basis.
Judge Wright. All right, I'm going
to permit the question.
He's an officer of the Court, and as you know,
Mr. Bennett,
this Court has ruled on prior occasions that
a good faith
basis can exist notwithstanding the testimony
of the witness,
of the deponent, and the other party.
By the way, lest there be any doubt in the minds of any Member
of
this body as to whom the President was
[Page S248]
looking at and focusing at, we are fully prepared to bring in a witness
for you who was present at the deposition and who will draw a map for
every Member of this body and show the location of the President and
every other person around the table.
Just in case the President's ``I wasn't paying any attention''
excuse
didn't fly, the President, in his grand jury testimony, decided to
try
another argument on for size. He suggested that when Mr. Bennett made
his statement about ``there is no sex of any kind,'' the President
was
focusing on the meaning of the word ``is.''
He then said that when Mr. Bennett made the assertion that ``there
is
no sex of any kind,'' Mr. Bennett was speaking only in the present
tense, as if the President understood that to mean ``there is no sex''
because there was no sex occurring at the time Mr. Bennett's remark
was
made.
The President stated, ``It depends on what the meaning of the
word
`is' is.''
And that if it means there is none, that was a completely true
statement. Listen and watch again to the same video clip from the
President's grand jury testimony that we saw a few moments ago. Only
this time, pay close attention to the President's excuse as to why
he
did not have to comply with the truth, because in his mind there is
some question as to what the meaning of the word ``is'' is.
(Text of videotape presentation:)
Q. Mr. President, I want to, before
I go into a new subject
area, briefly go over something you were talking
about with
Mr. Bittman. The statement of your attorney,
Mr. Bennett, at
the Paula Jones deposition ``counsel is fully
aware''--it's
page 54 line 5.--``counsel is fully aware
that Ms. Lewinsky
has filed, has an affidavit which they were
in possession of
saying that there is no sex of any kind in
any manner, shape
or form, with President Clinton?'' That statement
is made by
your attorney in front of Judge Susan Webber
Wright, correct?
A. That's correct.
Q. That statement is a completely
false statement. Whether
or not Mr. Bennett knew of your relationship
with Ms.
Lewinsky, the statement that there was ``no
sex of any kind
in any manner, shape or form, with President
Clinton,'' was
an utterly false statement. Is that correct?
A. It depends on what the meaning
of the word ``is'' is. If
``is'' means is, and never has been, that
is one thing. If it
means there is none, that was a completely
true statement.
But, as I have testified, and I'd like to
testify again, this
is--it is somewhat unusual for a client to
be asked about his
lawyer's statements, instead of the other
way around. I was
not paying a great deal of attention to this
exchange. I was
focusing on my own testimony.
In essence, here is what the President says in his own defense:
I
wasn't paying any attention to what my lawyer was saying when he
offered the false affidavit on my behalf to the judge. However, if
I
was paying attention, I was focusing on the very narrow definition
of
what the word ``is'' is and the tense in which that was presented.
Now, I am a former prosecutor, and that is like the murderer
who
says: I have an ironclad alibi. I wasn't at the crime scene, I was
home
with my mother eating apple pie. But if I was there, it is a clear
case
of self-defense.
The President now asks this body of lawmakers to give acceptance
to
these ludicrous definitions of ordinary words and phrases. He asks
you
to believe this is what he really thought when he was asked if he ever
had sexual relations with Monica Lewinsky, and when he was asked about
her false affidavit.
By the way, as to the President's ``tense'' argument that he
presented about what the meaning of the word ``is'' is, this fails
to
take into account another important fact. The false affidavit of Monica
Lewinsky that Mr. Bennett was waiving that day before the judge made
no
such distinction. Her affidavit never said in the present tense, ``I
am
not now having a sexual relationship with the President.'' Her
affidavit said, ``I have never had a sexual relationship with the
President.''
The President perjured himself when he said that Mr. Bennett's
statement that there was no sex of any kind was ``absolutely true,''
depending on what the meaning of the word ``is'' is.
The President did not admit to the grand jury that Mr. Bennett's
statement was false, because to do so would have been to admit that
the
term ``sexual relations'' as used in Ms. Lewinsky's affidavit meant
``no sex of any kind.'' Admitting that would be to admit that he
perjured himself previously in his grand jury testimony and in his
deposition.
Now, interestingly, Ms. Lewinsky doesn't bother attempting to
match
the President's linguistic deconstructions of the English language.
After she was granted immunity, Monica Lewinsky testified under oath
that the part of her affidavit denying a sexual relationship with the
President was a lie.
I read from page 204 of Ms. Lewinsky's testimony:
Question: Let me ask you a straightforward
question.
Paragraph 8--
Referring to her affidavit--
at the start says, ``I have never had a sexual
relationship
with the President.'' Is that true?
Answer: No.
Thus, the President engaged in an evolving series of lies during
his
sworn testimony in order to cover previous lies he told in sworn
testimony, and to conceal his conduct that obstructed justice in the
Paula Jones sexual harassment suit against him. He did this to deny
Paula Jones her constitutional right to bring a case of sexual
harassment against him, and to sidetrack the investigation of the
Office of Independent Counsel into his misconduct.
Finally, the President committed perjury before the grand jury
when
he testified falsely about his blatant attempts to influence the
testimony of potential witnesses and his involvement in a plan to hide
evidence that had lawfully been subpoenaed in the civil rights action
brought against him.
This perjurious testimony breaks down into four categories:
First, he made false and misleading statements to the grand
jury
concerning his knowledge of Monica Lewinsky's false affidavit.
Second, he made false and misleading statements to the grand
jury
when he related a false account of his interaction with his secretary,
Betty Currie, when he reasonably knew she might later be called before
the grand jury to testify.
Third, he made perjurious and misleading statements to the grand
jury
when he denied engaging in a plan to hide evidence that had been
subpoenaed in the Jones civil rights case against him.
Finally, he made perjurious and misleading statements to the
grand
jury concerning statements he made to his aides about Monica Lewinsky
when he reasonably knew these aides might be called later to testify.
Let's look briefly at the first area.
The President made false and misleading statements before the
grand
jury regarding his knowledge of the contents of Monica Lewinsky's
affidavit.
As we now know conclusively, Monica Lewinsky filed an affidavit
in
the Jones case in which she denied ever having a sexual relationship
with the President, and that was a lie when it was filed.
Remember--during his deposition in the Jones case, the President
said
that Ms. Lewinsky's denial of ever having a sexual relationship was
``absolutely true.''
Monica Lewinsky later testified that she is ``100 percent sure''
that
the President suggested she might want to sign an affidavit to avoid
testifying in the case of Jones versus Clinton. In fact, the President
gave the following testimony before the grand jury:
And did I hope she'd be able to
get out of testifying on an
affidavit? Absolutely. Did I want her to execute
a false
affidavit? No, I did not.
This testimony is false because it could not be possible that
Monica
Lewinsky could have filed a truthful affidavit in the Jones case, an
affidavit acknowledging a sexual relationship with the President, that
would have helped her to avoid having to appear as a witness in the
Paula Jones case.
The attorneys for Paula Jones were seeking evidence of sexual
relationships with the President, and ones that the President might
have had with other State or Federal employees.
This information was legally obliged to be produced by the President
to Paula Jones in her sexual harassment lawsuit against him to help
prove her claim.
Judge Susan Webber Wright had already ruled that Paula Jones
was
entitled to this information from the President for purposes of
discovery.
If Monica Lewinsky had filed a truthful affidavit that acknowledged
a
sexual relationship with the President,
[Page S249]
then she certainly could not have avoided having to testify in a
deposition.
The President knew this.
His grand jury testimony on this subject is perjury.
Next, the President provided false testimony concerning his
conversations with his personal secretary Betty Currie about Monica
after he testified in the Jones deposition.
Recall Mr. Manager Hutchinson's presentation a short time ago.
The
President had just testified on January 17, 1998, in the Paula Jones
deposition. He said he could not recall being alone with Monica
Lewinsky and that he did not have a sexual relationship with her.
After his testimony, on the very next day and in a separate
conversation with her a few days later, President Clinton made
statements to Ms. Currie that he knew were false.
He made them to coach Ms. Currie and to influence her potential
future testimony.
He coached her by reciting inaccurate answers to possible questions
that she might be asked if she were called to testify in the Paula
Jones case.
By the way: the President discussed his deposition testimony
with Ms.
Currie in direct violation of Judge Wright's order that he not discuss
his testimony with anyone. Judge Wright warned the President at the
deposition:
Before he leaves, I want to remind
him, as the witness in
this matter, . . . that this case is subject
to a Protective
Order regarding all discovery, . . . [A]ll
parties present,
including . . . the witness are not to say
anything
whatsoever about the questions they were asked,
the substance
of the deposition, . . ., any details . .
.
After he coached her, the President wanted Betty Currie to be
a
witness.
During his deposition testimony, the President did everything
he
could to suggest to the Jones lawyers they needed to depose Betty
Currie. He did this by referring to her over and over again as the
one
with the information they need for information about him and Monica
Lewinsky.
He stated to the Jones lawyer in his deposition, for example,
that:
. . . the last time he had seen Ms. Lewinsky
was when she had
come to the White House to see Ms. Currie;
that Ms. Currie
was present when the President had made a
joking reference
about the Jones case to Ms. Lewinsky; that
Ms. Currie was his
source of information about Vernon Jordan's
assistance to Ms.
Lewinsky; and that Ms. Currie had helped set
up the meetings
between Ms. Lewinsky and Mr. Jordan regarding
her move to New
York.
Because the President referred so often to Ms. Currie, it is
obvious
he wanted her to become a witness in the Jones matter, particularly
if
specific allegations of the President's relationship with Ms. Lewinsky
came to light.
According to Ms. Currie, President Clinton even told her at
some
point that she might be asked about Monica Lewinsky.
Two and a half hours after he returned from the Paula Jones
deposition, President Clinton called Ms. Currie at home and asked her
to come to the White House the next day, a Sunday.
Ms. Currie testified that it was rare for the President to ask
her to
come in on a Sunday.
At about 5:00 p.m. on Sunday, January 18, Ms. Currie went to
meet
with President Clinton at the White House.
Listen to what Betty Currie told the grand jury:
He said that he had had his deposition
yesterday, and they
had asked several questions about Monica Lewinsky.
And I was
a little shocked by that or--(shrugging).
And he said--I
don't know if he said--I think he may have
said, ``There are
several things you may want to know,'' or
``There are
things--'' He asked me some questions.
According to Ms. Currie, the President then said to her in rapid
succession:
You were always there when she
was there, right? We were
never really alone.
You could see and hear everything.
Monica came on to me, and I never
touched her, right?
She wanted to have sex with me,
and I can't do that.
Ms. Currie indicated that these remarks were ``more like statements
than questions.''
Ms. Currie concluded that the President wanted her to agree
with him.
Ms. Currie also said that she felt the President made these
remarks
to see her reaction.
Ms. Currie said that she indicated her agreement with each of
the
President's statements, although she knew that the President and Ms.
Lewinsky had in fact been alone in the Oval Office and in the
President's study.
Ms. Currie also knew that she could not, and did not hear or
see the
President and Ms. Lewinsky while they were alone.
Ms. Currie testified that two or three days after her conversation
with the President at the White House, he again called her into the
Oval Office to discuss this.
She described their conversation as, quote, ``sort of a
recapitulation of what we had talked about on Sunday--you know, I was
never alone with her''--that sort of thing.''
Q: [To Ms. Currie] Did he pretty
much list the same?
A. To my recollection, sir, yes.
In his grand jury testimony, the president was asked why he might
have said to Ms. Currie in their meeting on that Sunday ``we were never
alone together, right?'' and ``you could see and hear everything.''
Here is how the President testified:
[W]hat I was trying to determine
was whether my
recollection was right and that she was always
in the office
complex when Monica was there, and whether
she thought she
could hear any conversations we had, or did
she hear any--I
was trying to--I knew . . . to a reasonable
certainty that I
was going to be asked more questions about
this. I didn't
really expect you to be in the Jones case
at the time. I
thought what would happen is that it would
break in the
press, and I was trying to get the facts down.
I was trying
to understand what the facts were.
The President told the grand jury that he was putting those questions
to Betty Currie on that Sunday to refresh his recollection and trying
to pin down what the facts were.
Later, the President stated that he was referring to a larger
area
than simply the room where he and Ms. Lewinsky were located. He also
testified that his statements to Ms. Currie were intended to cover
a
limited range of dates.
Listen to the President's answer.
A. [W]hen I said, we were never
alone, right, I think I
also asked her a number of other questions,
because there
were several times, as I'm sure she would
acknowledge, when I
either asked her to be around. I remember
once in particular
when I was talking with Ms. Lewinsky when
I asked Betty to be
in the, actually, in the next room in the
dining room, and,
as I testified earlier, once in her own office.
But I meant
that she was always in the Oval Office complex,
in that
complex, while Monica was there. And I believe
that this was
part of a series of questions I asked her
to try to quickly
refresh my memory. So, I wasn't trying to
get her to say
something that wasn't so. And, in fact, I
think she would
recall that I told her to just relax, go in
the grand jury
and tell the truth when she had been called
as a witness.
Now the President was treating the grand jury to his construction
of
what the word ``alone'' means to him.
When asked he answered:
it depends on how you define alone,
and ``there were a lot
of times when we were alone, but I never really
thought we
were.
The President also was asked about his specific statement to
Betty
Currie that ``you could see and hear everything.'' He testified that
he
was uncertain what he intended by that comment:
Question to the President:
Q: When you said to Mrs. Currie,
you could see and hear
everything, that wasn't true either, was it,
as far as you
knew. . . .
A. My memory of that was that,
that she had the ability to
hear what was going on if she came in the
Oval Office from
her office. And a lot of times, you know,
when I was in the
Oval Office, she just had the door open to
her office. Then
there was--the door was never completely closed
to the hall.
So I think there was--I'm not entirely sure
what I meant by
that, but I could have meant that she generally
would be able
to hear conversations, even if she couldn't
see them. And I
think that's what I meant.
The President also was asked about his comment to Ms. Currie
that Ms.
Lewinsky had ``come on'' to him, but that he had ``never touched her.''
Question to the President:
Q: [I]f [Ms. Currie] testified
that you told her, Monica
came on to me and I never touched her, you
did, in fact, of
course, touch Ms. Lewinsky, isn't that right,
in a physically
intimate way?
A. Now, I've testified about that.
And that's one of those
questions that I believe is answered by the
statement that I
made.
Q: What was your purpose in making
these statements to
Mrs. Currie, if it weren't for the purpose
to try to
suggest to her what she should say if ever
asked?
[Page S250]
A. Now, Mr. Bittman, I told you,
the only thing I remember
is when all this stuff blew up, I was trying
to figure out
what the facts were. I was trying to remember.
I was trying
to remember every time I had seen Ms. Lewinsky.
. . . I knew
this was all going to come out. . . . I did
not know [at the
time] that the Office of Independent Counsel
was involved.
And I was trying to get the facts and try
to think of the
best defense we could construct in the face
of what I thought
was going to be a media onslaught.
Finally, the President was asked why he would have called Ms.
Currie
into his office a few days after the Sunday meeting and repeated the
statements about Ms. Lewinsky to her.
The President testified that although he would not dispute Ms.
Currie's testimony to the contrary, he did not remember having a second
conversation with her along these lines.
Thus, the president referred to Ms. Currie many times in his
deposition when describing his relationship with Ms. Lewinsky.
He himself admitted that a large number of questions about Ms.
Lewinsky were likely to be asked in the very near future.
The President reasonably could foresee that Ms. Currie either
might
be deposed or questioned, or might need to prepare an affidavit.
When he testified he was only making statements to Ms. Currie
to
``ascertain what the facts were, trying to ascertain what Betty's
perception was,'' this statement was false, and it was perjurious.
We know it was perjury, because the President called Ms. Currie
into
the White House the day after his deposition to tell her--not ask her,
to tell her--that
he was never alone with Ms. Lewinsky;
to tell her that Ms. Currie could
always hear or see them
and to tell her that he never
touched Ms. Lewinsky.
These were false statements, and he knew that the statements
were
false at the time he made them to Betty Currie.
The President's suggestion that he was simply trying to refresh
his
memory when talking to Betty Currie is nonsense.
What if Ms. Currie had confirmed these statements--statements
the
president knew were false? It could not in any way remind the President
of what really happened in the Oval Office with Monica Lewinsky because
the President already knew he was alone with Monica Lewinsky. The
President already knew that obviously Ms. Currie could not always see
him back in the Oval Office area with Monica Lewinsky. And the
President already knew that he had an intimate sexual relationship
with
Monica Lewinsky.
There is no logical way to justify his claim that he made these
statements to Ms. Currie to refresh his recollection.
The only reasonable inference from the President's conduct is
that he
tried to enlist a potential witness to back up his perjury from the
day
before at the deposition.
The circumstances surrounding the president's statements clearly
show, clearly show that he improperly sought to influence Ms. Currie's
potential future testimony.
His actions were an obstruction of justice, and a blatant attempt
to
illegally influence the truthful testimony of a potential witness.
And his later denials about it under oath were perjurious.
Next, the President gave perjurious, false and misleading testimony
before the grand jury when he denied he was engaged in a plot to hide
evidence that had been subpoenaed in the Paula Jones case.
On December 19, 1997, Monica Lewinsky was served with a subpoena
in
the Paula Jones case.
The subpoena required her to testify at a deposition in January,
and
the subpoena required her to produce each and every gift President
Clinton had given her.
Nine days after she received this subpoena, Ms. Lewinsky met
with the
President for about 45 minutes in the Oval Office.
By this time, President Clinton knew that she had been subpoenaed
in
the case.
At this meeting they discussed the fact that the gifts that
he had
given Monica Lewinsky had been subpoenaed, including a hat pin--the
first gift the president had ever given Ms. Lewinsky.
Monica Lewinsky testified that at some point in this meeting
she said
to the President,
Well, you know, I--maybe I should
put the gifts away
outside my house somewhere or give them to
someone, maybe
Betty.
And he sort of said--I think he
responded, ``I don't know''
or ``Let me think about that.'' And left that
topic.
President Clinton provided the following explanation to the grand
jury and to the House Judiciary Committee regarding this conversation:
Ms. Lewinsky said something to
me like, ``what if they ask
me about the gifts you've given me,'' but
I do not know
whether that conversation occurred on December
28, 1997, or
earlier.
Whenever this conversation occurred,
I testified, I told
her ``that if they [the Jones Lawyers] asked
her for gifts,
she'd have to give them whatever she had.
. . .''
I simply was not concerned about
the fact that I had given
her gifts. Indeed, I gave her additional gifts
on December
28, 1997.
The President's statement that he told Ms. Lewinsky that if the
attorneys for Paula Jones asked for the gifts, then she had to provide
them, is perjurious.
It strains all logic to believe the President would encourage
Monica
Lewinsky to turn over the gifts. To do so would have raised questions
about their relationship and would go against all of their other
efforts to conceal the relationship, including filing a false affidavit
about their relationship. The fact that the President gave Monica
Lewinsky additional gifts on December 28, 1998, doesn't exonerate the
President. It demonstrates that the President never believed that
Monica Lewinsky in light of all of their relationship, all of the cover
stories, all of the plans that they had put forward, her willingness
to
subject herself to a perjury prosecution by filing a false affidavit,
all of that was because he knew that Monica Lewinsky would never turn
those gifts over pursuant to the subpoena. And as Ms. Lewinsky
testified, she never questioned, as she said, ``that we were ever going
to do anything but keep this quiet.''
This meant that they would take, in her words, ``whatever steps
needed to be taken'' to keep it quiet.
By giving more gifts to Monica Lewinsky after she received a
subpoena
to appear in the Jones case, the President believed that Monica
Lewinsky would never testify truthfully about their relationship.
Additionally, Ms. Lewinsky said she could not answer why the
President would give her more gifts on the 28th when he knew she had
to
produce gifts in response to the subpoena. She did testify, however,
that----
To me it was never a question in
my mind and I--from
everything he said to me, I never questioned
him, that we
were never going to do anything but keep this
private, so
that meant deny it and that meant do--take
whatever
appropriate steps needed to be taken, you
know, for that to
happen. . . . So by turning over these gifts,
it would at
least prompt [the Jones attorneys] to question
me about what
kind of friendship I had with the President.
. . .
After this meeting on the morning of December 28, Betty Currie
called
Monica Lewinsky and made arrangements to pick up gifts the President
had given to Ms. Lewinsky.
Monica Lewinsky testified under oath before the grand jury that
a few
hours after meeting with the President on December 28, 1997, where
they
discussed what to do about the gifts he gave to her, Betty Currie
called Monica Lewinsky.
Monica Lewinsky explained it to the grand jury as follows:
Question: What did [Betty Currie]
say?
Answer: She said, ``I understand
you have something to give
me.'' Or, ``The President said you have something
to give
me.'' Along those lines. . . .
Question: When she said something
along the lines of ``I
understand you have something to give me,''
or ``The
President says you have something for me,''
what did you
understand her to mean?
Answer: The gifts.
Later in the day on December 28, Ms. Currie drove to Monica
Lewinsky's home.
Ms. Lewinsky gave Ms. Currie a sealed box that contained several
gifts Ms. Lewinsky had received from the President, including the hat
pin that was specifically named in the Jones subpoena.
As further corroboration, Monica Lewinsky had told the FBI earlier
that when Betty Currie called her about these gifts, it sounded like
Betty Currie was calling on her cell phone.
[Page S251]
Ms. Lewinsky gave her best guess on the time of day the call came
on
December 28.
Although Ms. Lewinsky's guess on the hour the call came was
a bit
off, phone records were later produced revealing that Betty Currie
in
fact called Monica Lewinsky on her cell phone, just as Ms. Lewinsky
had
described it. The only logical conclusion is that Betty Currie called
Monica Lewinsky about retrieving the President's gifts. There would
have been no reason for Betty Currie, out of the blue, to return gifts
unless instructed to do so by the President. Betty Currie didn't know
about the gift issue ahead of time. Only the President and Monica
Lewinsky had discussed it. There is no other way Ms. Currie could have
known to call Monica Lewinsky about the gifts unless the President
told
her to do it.
President Clinton perjured himself when he testified before
the grand
jury on this issue and reiterated to the House Judiciary Committee
that
he did not recall any conversation with Ms. Currie around December
28.
He also perjured himself when he testified before the grand jury that
he did not tell Betty Currie to take possession of the gifts that he
had given Ms. Lewinsky.
Question to the President:
After you gave her the gifts on
December 28th, did you
speak with your secretary, Ms. Currie, and
ask her to pick up
a box of gifts that were some compilation
of gifts that Ms.
Lewinsky would have----
Answer: No, sir, I didn't do that.
Question: --to give to Ms. Currie?
Answer: I did not do that.
The President had a motive to conceal the gifts because both
he and
Ms. Lewinsky were concerned that the gifts might raise questions about
their relationship. By confirming that the gifts would not be produced,
the President ensured that these questions would never arise. The
concealment of these gifts from Paula Jones' attorneys allowed the
President to provide perjurious statements about the gifts at his
deposition in the Jones case.
Finally, the President gave perjurious testimony to the grand
jury
concerning statements he gave to his top aides regarding his
relationship with Monica Lewinsky. Here is a portion of his grand jury
transcript, when the President testified about his conversation with
key aides, once the Monica Lewinsky story became public.
Question to the President:
Question: Did you deny to them
or not, Mr. President?
Answer: . . . I did not want to
mislead my friends, but I
want to define language where I can say that.
I also,
frankly, do not want to turn any of them into
witnesses
because I--and sure enough, they all became
witnesses.
Question: Well, you knew they
might be witnesses, didn't
you?
Answer: And so I said to them
things that were true about
this relationship. That I used--in the language
I used, I
said, there is nothing go[ing] on between
us. That was true.
I said, I have not had sex with her as I defined
it. That was
true. And did I hope that I would never have
to be here on
this day giving this testimony? Of course.
But I also didn't
want to do anything to complicate this matter
further. So, I
said things that were true. They may have
been misleading,
and if they were, I have to take responsibility
for it, and
I'm sorry.
The President's testimony that day that he said things that were
true
to his aides is clearly perjurious. Just as the President predicted,
several of the President's top aides were later called to testify
before the grand jury as to what the President told them. And when
they
testified before the grand jury they passed along the President's false
account, just as the President intended them to do.
I will not belabor the point any further with the Members of
this
body because I think Mr. Manager Hutchinson ably presented that
testimony.
But we know from the evidence that Erskine Bowles, John Podesta,
Sidney Blumenthal, all came before the grand jury. They all provided
testimony to the grand jury establishing that the President's comments
to them were the truth. The President had them go in. The President
gave them that information so false information would be shared with
the grand jury so that the grand jury would never be armed with the
truth. And when witnesses are called to come before this body, you
will
have an opportunity to make that determination.
Mr. Chief Justice and Members of the United States Senate, posterity
looks to this body to defend in a courageous way the public trust and
take care that the basis of our Government is not undermined. On
January 17, 1998, President Clinton, while a defendant in a civil
rights sexual harassment lawsuit, gave sworn testimony in a deposition
presided over by a Federal judge. In this deposition he raised his
hand
and he swore to tell the truth, the whole truth and nothing but the
truth.
On August 17th, President Clinton testified before a Federal
grand
jury in a criminal investigation. At this appearance he raised his
hand
and he swore to tell the truth, the whole truth, and nothing but the
truth. The evidence conclusively shows that the President rejected
his
obligations under oath on both occasions. He engaged in a serial
pattern of perjury and obstruction of justice. These corrupt acts were
done so he could deny a U.S. citizen, Mrs. Paula Jones, her
constitutional right to bring her claim against him in a court of law.
In so doing, he intentionally violated his oath of office, his
constitutional duty to take care that the laws be faithfully executed,
and his solemn obligation to respect Mrs. Jones' rights by providing
truthful testimony under oath.
The evidence reviewed by the House of Representatives and relied
upon
by our body in bringing articles of impeachment against the President
was not political. It was overwhelming. He has denied all allegations
set forth in these articles. Who is telling the truth? There is only
one way to find out.
On behalf of the House of Representatives, we urge this body
to bring
forth the witnesses and place them all under oath. If the witnesses
can
make the case against the President, if the witnesses that make the
case against the President who, incidentally, are his employees, his
top aides, his former interns, and his close friends--if all of these
people in the President's universe are lying, then the President has
been done a grave disservice. He deserves not just an acquittal, he
deserves the most profound of apologies.
But, if they are not lying, if the evidence is true, if the
Chief
Executive Officer of our Nation used his power and his influence to
corruptly destroy a lone woman's right to bring forth her case in a
court of law, then there must be constitutional accountability, and
by
that I mean the kind of accountability the framers of the Constitution
intended for such conduct and not the type of accountability that
satisfies the temporary mood of the moment.
Our Founders bequeathed to us a Nation of laws, not of polls,
not of
focus groups, and not of talk show habitues. America is strong enough
to absorb the truth about their leaders when those leaders act in a
manner destructive to their oath of office. God help our country's
future if we ever decide otherwise.
The CHIEF JUSTICE. The Chair recognizes the majority leader.
Adjournment
Mr. LOTT. Mr. Chief Justice, I ask unanimous consent that the
court
stand in adjournment until 1 p.m. tomorrow, and that all Members remain
standing at their desks as the Chief Justice departs the Chamber. I
further ask that after the court adjourns in a moment, the Senate will,
while in legislative session, stand in recess subject to the call of
the Chair.
The CHIEF JUSTICE. Without objection, it is so ordered.
Thereupon, at 6:59 p.m., the Senate, sitting as a Court of
Impeachment, adjourned.
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