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Transcript provided by FDCH

 TIME on politics Congressional Quarterly CNN/AllPolitics CNN/AllPolitics - Storypage, with TIME and Congressional Quarterly

Transcript: Statement of former Watergate task force leader Richard Davis

House Judiciary Committee hearing, December 9, 1998

RICHARD DAVIS: Thank you. I will try and summarize my longer written statement which the committee has.

There can be no doubt that the decision as to whether to prosecute a particular individual is an extraordinarily serious matter. Good prosecutors, thus, approach this decision with genuine seriousness, carefully analyzing the facts and the law, and setting aside personal feelings about the person under investigation.

In making a prosecution decision as recognized by Justice Department policy, the initial question for any prosecutor is -- Can the case be won at trial? Simply stated, no prosecutor should bring a case if he or she does not believe that, based upon the facts and the law, it is more likely than not that they will prevail at trial.

Cases that are likely to be lost cannot be brought simply to make a point or to express a sense of moral outrage, however justified such a sense of outrage might be. You have to truly believe you will win the case.

I would respectfully suggest that this same principle should guide the House of Representatives as it determines to, in effect, make the decision as to whether to commence a prosecution by impeaching the president. Indeed, if anything, the strength of the evidence should be greater to justify impeachment than to file a criminal case.

In the context of perjury prosecutions, there are some specific considerations which are present when deciding whether such a case can be won. First, it is virtually unheard of to bring a perjury prosecution based solely on the conflicting testimony of two people.

The inherent problems of bringing such a case are compounded to the extent that any credibility exists, issues exist, as to the government's sole witness. Second, questions and answers are often imprecise. Questions sometimes are vague or used to narrowly define terms and interrogators frequently ask compound or inarticulate questions and fail to follow up imprecise answers.

DAVIS: Witnesses often meander through an answer, wandering around a question, but never really answering it. In a perjury case, where the precise language of a question and answer are so relevant, this makes perjury prosecutions difficult because the prosecutor must establish that the witness understood the question; intended to give a false, not simply an evasive answer; and in fact, did so.

The problem of establishing such intentional falsity is compounded in civil cases by the reality that lawyers routinely counsel their clients to answer only the question asked, not to volunteer, and not to help out an inarticulate questioner.

Third, prosecutors often need to assess the veracity of an "I don't recall" answer. Like other answers, such a response can be true or false. But it is a heavy burden to prove that a witness truly remembered the fact at issue. The ability to do so will often depend on the nature of that fact.

Precise times of meetings, names of people one has met, and details of conversations, and sequences of events -- indeed even if those events are of a fairly recent origin -- are often difficult to remember. Forgetting a dramatic event is, however, more difficult to justify.

The ability to win a trial is not, however, the only consideration guiding the decision whether to prosecute. Other factors reflected in the Justice Department guidelines include federal law enforcement priorities, the nature and seriousness of the offense, the impact of the offense on any victim, whether there has been restitution, deterrence, and the criminal history of the accused.

Before turning to the application of these principles to the facts at hand, I should say that in my work in the Watergate special prosecutor's office, I was involved in applying these principles in extraordinarily high-profile cases. While we successfully prosecuted a number of matters, we also declined to proceed in a number of close cases. We did so even in circumstances we believed in our hearts that a witness had deliberately lied under oath or committed some other wrongful act, but simply concluded that we were not sufficiently certain that we would prevail at trial.

I will now turn to the issue of whether from the prospective of a prosecutor there exists a prosecutorial case for perjury in front of the grand jury. The answer to me is clearly no. The president acknowledged to the grand jury the existence of an improper, intimate relationship with Monica Lewinsky, but argued with the prosecutor's questioning him that his acknowledged conduct was not a sexual relationship as he understood the definition of that term being used in the Jones deposition.

Engaging in such a debate, whether wise or unwise politically, simply does not form the basis for a perjury prosecution. Indeed, in the end, the entire basis for a grand jury prosecution comes down to Monica Lewinsky's assertion that there was a reciprocal nature to the relationship, and that the president touched her private parts with the intent to arouse or gratify her, and the president's denial that he did so.

Putting aside whether this is the type of difference of testimony which should justify an impeachment of a president, I do not believe that a case involving this kind of conflict between two witnesses would be brought by a prosecutor since it would not be won at trial. A prosecutor would understand the problem created by the fact that both individuals had an incentive to lie -- the president to avoid acknowledging a false statement at his civil deposition and Ms. Lewinsky to avoid the demeaning nature of providing wholly unreciprocated sex.

Indeed this incentive existed when Ms. Lewinsky described the relationship to confidantes described in the independent counsel's referral.

Equally as important, however, Mr. Starr has himself questioned the veracity of his one witness -- Ms. Lewinsky -- by questioning her testimony that his office suggested she tape record Ms. Currie, Mr. Jordan, and potentially the president. And at any trial, the independent counsel would also be arguing that other key points in Ms. Lewinsky's testimony are false, including when she explicitly rejects the notion that she was asked to lie and that assistance in her job search was an inducement for her to do so.

It also is extraordinarily unlikely in ordinary circumstances that a prosecutor would bring a prosecution for perjury in the president's civil deposition in the Jones case. First, while one can always find isolated contrary examples, under the prosecution principles discussed above, perjury prosecutions involving civil cases are rarer, and it would be even more unusual to see such a prosecution, where the case had been dismissed on unrelated grounds and then settled -- particularly when the settlement occurred after the disclosure of the purported false testimony.

Second, perjury charges on peripheral issues are also uncommon. Perjury prosecutions are generally filed where the false statement goes to the core of the matter under inquiry. Indeed, in order to prevail in a perjury prosecution, the prosecutor must establish not only that the testimony was false, but that the purported false testimony was material.

Here, the Jones case was about whether then Governor Clinton sought unwanted sexual favors from a state employee in Arkansas. Monica Lewinsky herself had nothing to do with the actual facts at issue in that suit.

This deposition was about the Jones case. It was not part of a genuine investigation into the Monica Lewinsky affair.

DAVIS: And that's important on the materiality issue.

Given the lack of connection between these two events, under the applicable rules of evidence, her purely consensual relationship with the president, half a decade later, would I believe not have even been admissible at any ultimate trial of the Jones' case.

While the court allowed questioning in the civil deposition about this matter, the judge did so under the very broad standard used in civil discovery. Indeed, while not dealing with the admissibility issue, had there been no independent counsel inquiry, after the controversy about the president's relationship with Ms. Lewinsky arose, the court considered this testimony sufficiently immaterial so as to preclude testimony about it at the trial.

Finally, the ability to prove the intentional making of false statements in the civil deposition is compounded by inexact questions, evasive and inconsistent answers, insufficient follow-up by the questioner, and reliance by the examiner on a definition of sexual relations rather than asking about specific acts.

But whatever the ability can meet the standard of proof on this issue as to any particular question, it simply is not a perjury case that would be brought. It involves difficult proof issues as to at best peripheral issues where complete and truthful testimony would be of doubtful admissibility in a settled civil case which had already been dismissed. This simply is not the stuff of criminal prosecution.

Turning to the issues of obstruction of justice involving the Paula Jones' case, a prosecutor analyzing the case would be affected by many of the same weaknesses that are discussed above.

These weaknesses, as well as additional problems with such a case, are discussed in my written statement, and I will not comment on them orally in the interest of time.

Before concluding, I would like to make two closing observations, and will be, with your permission, just a minute or so.

In August 1974, prior to the pardon, the Watergate special prosecution force commenced the extraordinarily difficult process of whether -- determining whether to indict then former President Nixon.

In my 1974 memorandum analyzing the relevant factors which should ultimately affect such a decision, and proceeding in that memorandum on the belief not present here that adequate evidence clearly existed to support the bringing of such criminal charges, I articulated two primary and competing considerations which I believed it appropriate for us then as prosecutors to consider.

The first factor was to avoid a sense of a double standard by declining to prosecute a plainly guilty person because he had been present. The second was the prosecutor should not proceed with even provable charges if they conclude that important and valid societal benefits would sacrificed by doing so.

In the Nixon case, as articulated in my memorandum, such a benefit was the desirability of putting the turmoil of the past two years behind us so as to better be able to proceed with the country's business. I believe today, 25 years later, that it is still appropriate for those deciding whether to bring charges to consider these factors.

Finally, prosecutors often feel a sense of frustration if they can't express their sense that a wrong has been committed by bringing charges. But not every wrong is a crime, and wrongful, noncriminal conduct sometimes can be addressed without the commencing of any proceeding.

Apart from issues of censure, we live in a democracy, and one sanction that can be imposed is by the voters acting through the exercise of their right to vote. President Clinton lied to the American people, and if they believed it appropriate, they were free to voice their disapproval by voting against his party in 1998 and remain free to do so in 2000 as occurred in 1974 when the Democrats secured major gains.

The answer to every wrongful act is not the invocation of punitive legal processes.

Thank you.

HYDE: Thank you, Mr. Davis.


Investigating the President

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Wednesday, December 9, 1998

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