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Transcript: Statement of former Watergate task force assistant chief counsel Richard Ben-Viniste
House Judiciary Committee hearing, December 9, 1998
RICHARD BEN-VENISTE: Thank you, Mr. Chairman, Mr. Ranking Member, and members of the committee.
I have served under Democratic and Republican United States attorneys, as a federal prosecutor. I have served as an assistant to -- special prosecutor in the Watergate Special Prosecutor's Office. I have prosecuted corrupt officials of both political parties, including an administrative assistant to a Democratic speaker of the House.
At the request of both Democratic and Republican members of the Senate, I have served in a pro bono or part-time capacity in various capacities as the chairman has indicated.
I have been engaged in the private practice of law since 1975, and have represented clients in a wide variety of civil and criminal matters.
I am presently a partner in the D.C. office of Weil, Gotshal & Manges and obviously the views which I express today are my own.
I am providing my observations and analysis, not as a witness to the events in question, but as one whose professional experience over the last 30 years may provide some perspective on the issues before you.
I confess that I have spent more than one sleepless night considering whether anything that I can say will help extricate us all from the terrible mess that we're in.
In my view, this process has suffered from too much partisanship, too much hypocrisy, too much sensationalism, and too little time for reflection.
I ask whether impeachment will become still another arrow in the quiver of the warrior class of ever-more-truculent partisan politicians in Washington.
If this is so, will we ever see an end to the gamesmanship of gotcha and payback that has already taken such a toll in the civility and comity within these hallowed halls?
I have been talking about proportionality and moderation for some time. Back in August, well before Mr. Starr sent his referral to this committee, in any opinion piece published in The Washington Post, I suggested that the appropriate resolution of the Lewinsky matter was for a group of respected leaders to come forward and propose a congressional resolution of reprimand to deal with Mr. Clinton's reckless and improper personal conduct.
BEN-VENISTE: I continue to believe that respect for the momentousness of the constitutional remedy of impeachment and appreciation of the commonsense application of proportionality to the offensive conduct make a resolution of censure the appropriate result.
Such a resolution, not impeachment, will give voice to the public will in retaining their twice-elected president's services, while expressing firm disapproval for his private conduct. In my view, such a resolution would be consistent with the obligations of the House of Representatives and in the best interests of the our nation.
The first Watergate special prosecutor, Archibald Cox, was fired on the orders of Richard Nixon when he refused to back down after subpoenaing Mr. Nixon's famously incriminating White House tape recordings. In response to the firestorm of public opinion following the "Saturday Night Massacre," President Nixon replaced Professor Cox with Leon Jaworski, a conservative Texan, who vowed to continue the investigation with the independence and professionalism that had marked Mr. Cox's truncated turn at the helm.
By all accounts, Leon Jaworski made good on his promise, and today his record provides the model against which all high profile investigations and prosecutions are measured. In Watergate, the serious abuses of power committed by the Nixon administration resulted in the prosecution and conviction of numerous individuals who held public office during Mr. Nixon's tenure, including two attorney generals, the White House chief of staff, the chief and deputy domestic advisers to the president, a senior adviser to the president, the counsel to the president, and many others.
Their offenses went directly to the abuse of power of the president's office, and misuse of the CIA, the FBI, the IRS, the FCC -- in violation of important rights of others. The obstruction of justice and perjury that was committed in furtherance of the Watergate coverup was designed to shield higher-ups from detection, while blaming everything on the lower level individuals who had been caught red-handed.
Upon his appointment, Mr. Jaworski immediately withdrew from his lucrative law practice and devoted himself entirely to his duties as special prosecutor. Even with President Nixon's unlawful firing of Archibald Cox, the Watergate coverup case was investigated and prosecuted within 21 months of the creation of the special prosecutor's office. The credibility of the Watergate special prosecutor's office was dependent on the public's perception that our investigation would be professional, impartial and fair. If we had leaked such explosively damaging evidence as President Nixon's taped instruction to continue the coverup or his admission regarding the promises of presidential clemency to the Watergate burglars, it would not only have been unfair, it would have violated the law. No leaks occurred.
Mr. Starr has the unhappy distinction of being the first independent counsel to come under investigation himself for unethical and possibly illegal conduct. In addition to the 24 prima facie instances of improper leaks of grand jury material identified by Chief Judge Norma Holloway Johnson, there was the spin-leak of the Starr referral itself in the days leading up to its actual transmittal to this body.
Mr. Starr's response to Representative Lofgren's question as to whether he would release any journalists from promises of confidentiality -- that it would be unwise for him to do so, he said -- may well be true, but it only serves to reinforce the basis for Judge Johnson's suspicions.
BEN-VENISTE: In addition, the aggressive and disproportionate tactics employed by Mr. Starr's office -- sometimes in violation of Department of Justice guidelines -- have left the public with a justifiable perception that Mr. Starr has conducted more of a crusade than an investigation with the political objective of driving President Clinton from office, rather than uncovering criminal activity.
Leon Jaworski took extraordinary care not to intrude beyond the proper boundaries of his office. Mr. Jaworski would be the last person to suggest that an attempt to pierce the attorney-client privilege of the president or to interfere with the time-honored protective function of the Secret Service could be justified as an appropriate exercise of prosecutorial discretion, no matter what a court might ultimately rule.
Even 25 years ago, it was the practice of federal prosecutors not to subpoena the target of a grand jury investigation. On the other hand, it was considered unfair to deprive a target of an investigation the opportunity to testify if he so desired. Accordingly, Mr. Jaworksi extended an invitation to President Nixon to testify before the grand jury. When Mr. Nixon declined, Mr. Jaworski did not publicize the exchange, but -- because to do so would have been unfair to comment on Mr. Nixon's decision not to testify. And again, there was no leak.
By comparison, Mr. Starr has aggressively pursued every opportunity to push the limits of legal boundaries. Mr. Jaworski recognized that he had a responsibility to transmit to Congress important evidence bearing on the House Judiciary Committee's impeachment inquiry. At the same time, he was careful not to encroach on Congress's constitutional function of evaluating evidence and determining whether impeachment was warranted. Because the evidence was obtained through grand jury subpoenas, Mr. Jaworski first sought the grand jury's approval and then sought permission from Chief Judge John Sirica to transmit the material as an exception to Rule 6(e)...
HYDE: Can you...
BEN-VENISTE: ... and otherwise prohibit its dissemination.
HYDE: Can you wind up?
BEN-VENISTE: I would like to -- Yes, Mr. Chairman. Unfortunately, yesterday I was told I'd have 20 minutes and I've tried to boil it down as best I can.
HYDE: Well, I don't want to foreclose you because we're down to just two witnesses, but...
BEN-VENISTE: May I have an additional five minutes, sir?
HYDE: It is Christmas week, but you're setting a terrible precedent with my -- my Republicans. But go ahead, take five.
BEN-VENISTE: Thank you, Mr. Chairman. Judge Sirica reviewed the transmittal which we had sent up to him through the grand jury. He found that the transmittal rendered no moral or social judgments. He found that the grand jury had taken care to assure that the report had no objectionable features and that the grand jury had respected its own limitations and the rights of others and then he passed it along to the Judiciary Committee.
At the same time, Mr. Jaworski did not inform the House that the grand jury had voted to authorize him to name Richard Nixon as an unindicted co-conspirator in the upcoming Watergate coverup trial. While the grand jury's action provided insight into its views of the evidence, the grand jury's decision was not itself evidence. And again, it would have been prejudicial at that point to make that information public. And again, this explosive information was never leaked.
BEN-VENISTE: Mr. Starr, as we know, did not submit his report in any way to the grand jury for its approval or consideration. And thus, no one, the chief judge or not even the three-member court which gave him carte blanche authority ever reviewed the aggressively accusatory and gratuitously salacious referral before it was transmitted to this committee.
Mr. Starr's ethics adviser resigned when he agreed to act as chief advocate for impeachment as a witness before this committee.
I believe, Chairman Hyde, that you stated at the outset that in substance -- and I'm not quoting, but this is my own recollection -- that unless the public perceived this exercise before your committee as a bipartisan effort that it would not have the kind of credibility necessary to bring an article of impeachment to the floor of the House.
In my view...
HYDE: If I could just interpret. What I really said was that the impeachment would not succeed without bipartisan support. But I was adverting to the two-thirds requirement in the Senate.
BEN-VENISTE: You mean conviction?
BEN-VENISTE: Rather than...
HYDE: I was talking about that. And my hope was that as this process moved along, the public would get more and more educated as to its details. But I never really expected a lot of bipartisanship here, although I hoped for it.
BEN-VENISTE: In my view, Mr. Chairman, the inability to find a bipartisan consensus in this committee is not a function of the individual characteristics of the members, but it is more rooted in the wide gulf between the president's conduct -- even assuming that the factual allegations against him are true and were proved -- to the grave consequences of a vote of impeachment.
I do not condone the president's conduct in his relationship with Miss Lewinsky or his conduct in the Paula Jones deposition. Indeed, I was personally let down and disappointed by his conduct. But it is clear to me that attempting to criminalize that conduct, much less make it the basis of an article of impeachment, would do a disservice to the Constitution and any notion of proportionality, moderation and common sense.
And I thank you for extending the time, Mr. Chairman.
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