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Transcript provided by FDCH

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

Transcript: Judiciary Committee members question defense panel three

House Judiciary Committee hearing, December 9, 1998

HYDE: Thank you, Mr. Hamilton. The gentleman from Wisconsin, Mr. Sensenbrenner.

SENSENBRENNER: Thank you very much, Mr. Chairman. First of all, let me express my concern that the White House really does not want to work with this committee in a manner in which to resolve this matter in the manner in which you have just described. I was in the back room having a couple of slices of pizza before coming out here for the questions and answers.

And on CNN as we speak, Wolf Blitzer and Greta Van Susteren are talking about the 184 page response that Mr. Craig said was coming up to the committee. They've read it, they've been able to dissect it, they've been able to analyze it and we've never gotten it. And it seems to me when I was practicing law way back when, that you always gave counsel on the opposing side a copy of your pleadings before releasing it to the press. Isn't that standard law practice?

HAMILTON: Well I think it depends on who your opponent is, but I understand congressman...



HAMILTON: I think I understand congressman, that you will receive that brief in the near future -- in the very near future.

SENSENBRENNER: Well both of you have criticized Mr. Starr for leaking things prematurely so that the White House and members of the committee and the American public have learned things before they really were supposed to. Now aren't you, Mr. Hamilton saying, that there are different strokes for different folks here?

HAMILTON: Well I believe it was Mr. Ben-Veniste who criticized Mr. Starr in his opening statement for leaking, congressman. Maybe I'll let him speak to that.


BEN-VENISTE: Let me say this congressman...

SENSENBRENNER: Would you please turn the mike on, Mr. Ben- Veniste?

BEN-VENISTE: Yes sir. Let me say this, it is not my practice, nor would I have provided copies of that material to anyone else prior to its designated recipient. I don't think that's the appropriate way to do it.

SENSENBRENNER: So you're saying that the practice of the White House in releasing it, at least to CNN, before sending it up here so that members of the committee could have it, is inappropriate?

BEN-VENISTE: If that's what happened, it is not the way that I would have handled the matter. But to follow on to your question, the idea of leaking grand jury matters, I'm sure you will agree is by several steps, much more dangerous and indeed, illegal. And so we're really not talking about comparable events.

SENSENBRENNER: OK. Now, Mr. Ben-Veniste, last month when Judge Starr was here explaining the content of his referral, Mr. Kendall who is the president's personal, one of the president's personal attorneys was given an hour to cross-examine him. And one of the issues of cross-examination that Mr. Kendall raised was whether or not the independent counsel staff treated Monica Lewinsky unfairly at the time of the interview in the Ritz-Carlton Hotel about a week before all of us found out who Monica Lewinsky was.

Apparently that issue was litigated and there was a sealed decision rendered months before Judge Starr's testimony that Judge Johnson reviewed the matter and determined that there had not been prosecutorial misconduct. I assume that Mr. Kendall, as the president's lawyer, was familiar with the sealed decision. Judge Starr did not refer to it. He didn't leak it, he didn't testify before the committee. What do you think the ethics are of bringing up a sealed decision that you know has occurred in an attempt to get your, get your lawyer out on the other side to try to admit to misconduct or unethically refer to a sealed decision?

BEN-VENISTE: Well, there are two things about that, and I have not read the decision. I don't know whether it has been released publicly at this point.

SENSENBRENNER: It was in the newspaper. It was released.

BEN-VENISTE: I have not read it. But I understand that there were two aspects to it. One is whether the actual circumstances of her interrogation were unlawful. That is, whether she was free to go or not. And secondly, whether it was appropriate for the prosecutors to attempt to plea bargain with her in the absence of her attorney, whom they knew was representing her.

And I think as to the latter question, that was at least unethical and probably improper. So I think there's a distinction.

SENSENBRENNER: That was not my question was. My question was whether it was ethical for Kendall to ask those questions.

HYDE: The gentleman's time has expired. The gentleman from Michigan, Mr. Conyers.

BEN-VENISTE: Does the chairman wish me to answer that question?

CONYERS: I think I'll just let Mr. Ben-Veniste quickly conclude his response to Mr. Sensenbrenner.

BEN-VENISTE: Well, I think the area of inquiry was quite appropriate. As to the confidence of the American public in whether an independent counsel has performed in consistency with the expectations of fairness and independence I think is an appropriate area. Unfortunately, in watching that exchange, it seemed to be a combination of cross-examination and beat the clock. I've only practiced trial law for 30 years. And I've never had that kind of restriction placed on a cross-examination. It's a very difficult, difficult obligation to undertake, Mr. Sensenbrenner.

CONYERS: Mr. Ben-Veniste and Mr. Hamilton, you are two of the most seasoned lawyers that we have in the area across the years and down through time. Let me just solicit your opinions on these two considerations.

How has the Starr investigation harmed the present impeachment inquiry? Would an investigation that had not been tainted by possibly unfair and unethical tactics have brought us to a different result today? And how has this committee's process negatively impacted on the inquiry that we are charged to dispose of?

BEN-VENISTE: Well, let me take the latter question first. To the extent that there is the impression in the public's mind that this process has not been bipartisan or fair or people haven't had an adequate opportunity to either express their views or explore the subject matter or inform the public, then I think we all suffer as a result of that.

And I don't know what happens in executive session and whether there have been accommodations made. But simply in reading the newspapers, there seems to be the impression that we are in some kind of a hurry-up mode and yet there is this disconnect in proportionality between the gravity of the offenses and the speed with which you are conducting these hearings. And I think the process does suffer in the public mind in that sense.

CONYERS: Mr. Hamilton?

HAMILTON: Mr. Conyers, let me just say that I think that one reason that the Watergate committee, the Senate Watergate committee was so successful is that Senator Ervin and Senator Baker worked together to -- in a bipartisan fashion. That's not to say that there were not strong disagreements. But most of these were worked out behind the scenes, and the committee worked together to get the information and of course produce the unanimous report. And I think for that reason its conclusions have stood the test of time.

CONYERS: Well, I certainly hope that somewhere in our congressional body among the two dozen Republicans that are -- I don't know what they are doing be sides reading and praying and trying to find the fortitude to help forge this middle path so we can all get to the exit door with some shred of dignity, rather than to just push this over the cliff where we know nothing will happen.

I am hoping that somehow there will be some if necessary to help us get across this hump.

And I am hoping that your discussions with our colleagues tonight and the work we do in the next 48 hours will help something like that happen.

HAMILTON: I join in that hope.

CONYERS: Is that too optimistic?

HAMILTON: Well, Father Drinan, I think, said a good tone, and I cast my vote in that direction.

CONYERS: Thank you.

HYDE: The gentleman's time has expired. The gentleman from Florida, Mr. McCollum.

MCCOLLUM: Thank you very much, Mr. Chairman. Good to see you both here today.

I have a couple of observations about today. It seems to me that in the president's defense throughout this day we have been proceeding through some fairly carefully crafted patterns.

This panel principally seems to be designed to attack with Mr. Starr. With all due respect, that's what I think you're doing, or have done or have attempted to do, which has been a tactic of the White House defense team for some time, but diverts attention from the probative questions of whether the president did commit the felonies he has charged with or whether or not indeed there is an impeachable offense.

The previous panel spent a great deal of time in the question and answer period and in some of their testimony trying to scare folks with the believe that if we impeach that we're going to have a long protracted trial and the consequences of impeachment are going to be very dire for the nation. When in fact, based on what Mr. Craig said earlier this morning, with the admission of the White House counsel that the truthfulness is not questioned of what Betty Currie or Vernon Jordan said.

With the record fairly complete with no need to call many witnesses since we have a formal record collected for us, which all of us can examine and have been.

I would suggest that the trial in the Senate could be very short. Probably simply rendered first of all from the president's defense standpoint to a summary judgment request on the basis that these are not impeachable evidences.

And then if not, pretty much the facts are going to speak for themselves.

Certainly the president could have chosen to call some of these folks as witnesses if you wanted them cross-examined. We didn't think it is necessary. I don't today think it is. And I guess by not calling them the president doesn't either. Because the record is so complete on the facts, there are maybe some hair splitting differences.

We'll hear Mr. Ruff talk about more tomorrow on those facts.

And then of course the claim that this isn't impeachable in some ways. I would submit that the consequences of this if indeed the facts do bare us out.

And I think they do, that the president lied under oath a number of times, committed perjury in the case involving Paula Jones, committed perjury before the grand jury. Which Professor Dershowitz said if indeed he believed it were true, though he doesn't, and I think the facts show it is true, would be impeachable for which the president he said should be impeached if that's the case -- committed the crimes of obstruction of justice regarding the matters of the affidavit and the gifts. And maybe what he said to Betty Currie.

If all of those things or even a substantial number of them, or even if it's only the grand jury perjury, as Professor Dershowitz points out, are true and we believe that, then our failure to impeach the president would be a terribly dire consequence for the nation.

In fact to suggest that these don't rise to the level of impeachable offenses begs a great question.

MCCOLLUM: The Constitution says treason, bribery and other high crimes and misdemeanors. Bribing a witness and perjury are one in the same thing, essentially. They are treated the same way by the sentencing commission. Interesting enough, the sentencing commission has exactly the same level of punishment recommended for both of them. Perjury and bribery of a witness go to the basic premise that if a party to a lawsuit cannot get the truth on the record, if somebody lies or encourages somebody else to lie, or somebody as a witness hides the evidence or encourages somebody else to hide the evidence, a party of the lawsuit cannot get justice. They cannot get a judgment rendered by a court that's fair and just to them which is the traditional American way.

And so it is considered very grave. And if bribery and bribing a witness is part of the bribery laws of this nation, if bribery is specifically named in the Constitution as an impeachable offense, it seems to me so is perjury. And the consequence of not going forward with perjury in these cases would be grave. Because in that case, we're undermining the integrity of the court system, we're going to encourage more people, it seems to me to commit perjury in the future or to witness tamper or whatever. We're likely to find fewer cases where federal judges will be impeached for perjury. People will be treated differently than the president, 115 people are already imprisoned today for perjury in the federal system, this president committed. We have a double standard.

I think the consequences of not doing anything are extraordinarily dire, and I'm disappointed that the president's defense has not come forward with a more substantive process with regard to the facts. Now that may happen tomorrow. It's not happened today. And I'm looking forward to tomorrow because I want to engage that since I happen to believe, based on what I've seen, there's going to be a heavy burden to prove that the facts are not right that are in every bit of the evidence we have before us, that indeed the president committed the perjury numerous times, that he committed obstruction justice and so forth. So I'll look forward to tomorrow, I don't think today was very constructive, but thank you, Mr. Chairman.

BEN-VENISTE?: I take it there was no question in....

MCCOLLUM: There was no question, just an observation.

BEN-VENISTE?: There was no question.

MCCOLLUM: Just an observation.

BEN-VENISTE?: Because I do disagree with many of thing things, most respectfully that you've said.

(UNKNOWN): Point of order, Mr. Chairman.

HYDE: The -- I'm sorry, I was talking to Mr. Conyers and that does happen now and then.

MCCOLLUM: My time expired. I yield it back.

HYDE: It has expired.

MCCOLLUM: I have no question.

HYDE: And Mr. Frank is, yes, Mr. Frank.

FRANK: I want to begin with just an observation because one of the things we've been talking about has to do with censure. And I am convinced that we should have censure as an option. I believe that represents a majority. But I am struck by two arguments against it. And just as, it seems to me, two of the articles of grand jury perjury are articles in the alternative. That is, they contradict each other, the second and third accusations.

The major arguments against censure are being made in the alternative, and I thought I would just ask my colleagues to pick one or the other because I do think when we get to the floor, we can't act like lawyers anymore and argue to inconsistent things in the hope that one of them will stick. One argument against censure is that it is meaningless, that is trivial, that it is a slap on the wrist, that it does not sufficiently injure the president and therefore is not suitable punishment.

The other is that censure, once we begin it will be so frequently resorted to that it will cripple the presidency. Now it's a pretty fragile president who could be crippled by a slap on his wrist or it would be a pretty hefty slapper.

The arguments, one that censure is wrong because it is too little a punishment, directly contradicts the notion that censure is wrong because it would be too heavy a punishment. And I will be perfectly, I don't hold my colleagues to too high a standard. One consistent argument will do. But two inconsistent ones, it seems to me ought to be dropped. And you ought not to be arguing that censure is both too much of a punishment, and would once resorted to, become an interference of the presidency and also too little of one.

Now let me turn to our witnesses here because I do believe that the assertion that there was grand jury perjury is simply not true. And with regard to the deposition, it does seem to be clear that the president lied in one case. I do not believe that the president did not remember whether or not he and Monica Lewinsky had been alone. The question there though does go to materiality, and I will be interested tomorrow in particular to talk about materiality. But let me ask on the obstruction of justice, from your standpoint as criminal attorneys, people who have tried and prosecuted and defended. one of the arguments is, my colleague from Florida just said, witness being asked to lie, that that's like bribery. And I assume that one of the accusations, I know one of the accusations that the president bribed in effect Monica Lewinsky by offer of a job and by other inducements, the president got Monica Lewinsky not to lie.

Let me ask both of you, if you were prosecuting attorneys and you contemplated bringing such a case, and you found that in a volunteer bit of testimony to the grand jury, the person who was presumably bribed not to tell the truth said, "By the way, no one asked me to lie, and no one promised me a job for my silence."

FRANK: Would that affect your decision to prosecute that case?

And do you think a case in which the alleged subject, recipient of the bribe volunteered that she had not been made any promise or asked? Would that be a problem?

Secondarily, as a matter of lawyers' tactics, if you were the prosecutor, why would you never have asked her this, because Monica Lewinsky volunteered? At no point did the prosecutor ask her.

So one reason you couldn't cross-examine her on a question about whether she was bribed is that she was never examined on that subject.

The prosecutors quite scrupulously avoided asking her. So how would that affect your decision to bring the case? And if you were a prosecutor trying to bring such a case, would you have asked her?

Mr. Ben-Veniste.

BEN-VENISTE: Well, certainly, in my experience, bringing that kind of a case would have some kind of scatological, barnyard expletive attached to it. It's just not a case any federal prosecutor would bring in my experience.

The founders, on the other hand -- because now we are talking about impeachment -- the notion that they thought that the president of the United States of the new republic might be on the give rather than on the take in the extraordinary case was certainly beyond comprehension. The idea of bribery and treason meant that the president should be loyal to the United States, that he should not commit treason, he should not accept bribes, he should not accept emoluments that were not appropriate to his office. He should conduct himself in an honest way in the affairs of state.

That is what that was all about. This has absolutely no connection to any reality in terms of impeachment.

HYDE: The gentleman from Pennsylvania...

CONYERS: Mr. Chairman...

HYDE: Oh, I'm sorry. I recognize the gentleman from Michigan.

CONYERS: I ask unanimous consent to have printed overnight the submission by the counsel of the president to the Committee on the Judiciary of the United States -- this document that just has been delivered to yourself and myself.

HYDE: Without objections, so ordered.

CONYERS: I further ask unanimous consent to have printed with Professor Dershowitz's testimony a letter that he has sent to me.

HYDE: That would be in the previous record?

CONYERS: Exactly.

HYDE: Yes. Without objection. So ordered.

CONYERS: Thank you.

HYDE: The gentleman from Pennsylvania, Mr. Gekas.

GEKAS: I thank the chair.

Mr. Hastings, I think -- no. Mr. Hamilton (OFF-MIKE).


Deja vu. You and I have the makings of a deal, I think. I have felt from the very first moment that we received a referral from Judge Starr that there were serious problems with his assertion that the assertion of executive privilege by the president by itself would constitute an abuse of power. And I am still delving into that mess in the formulation of my position, my final position.

But while I am tending to give you that, it seems that you have given me -- and we have the makings of a deal -- great concern about the president's alleged lying under oath.

You exhibit a troubled mind as to that category of what we are considering in this case.

Do you believe that given the fact that if perjury or lying under oath was committed by the president in the Jones' case, that it had the intended result of destroying the case of a fellow American citizen who lawfully, as decreed by the Supreme Court, had the chance to sue the president of the United States -- with which decision, by the way, I disagreed? I still rue that decision by the Supreme Court.

Don't you believe that this rises beyond the level of something, oh, it's just perjury and it's just about sex and it doesn't matter? Aren't you willing to yield to me that that's serious enough for this panel to apply its conscience and its collective judgment in determining whether or not it's an impeachable offense?

HAMILTON: Well, I certainly think the panel should apply its judgment and its conscience in determining whether it is an impeachable offense. My position is that assuming that he lied in the Jones' deposition or the grand jury, I think that you can look at that conduct and still say it is not impeachable, because it is not a great and dangerous offense against the state.

GEKAS: We don't have a deal.

HAMILTON: Hmm? Sorry to hear that.

GEKAS: We don't have a deal. Mr. Ben-Veniste, I want to congratulate you on the most artful bill of particulars ever drawn up against a nonparty to the investigation.

GEKAS: Your bill of particulars against Ken Starr is wonderful. It is masterful. You have an article here about the perfect president in which you criticize Starr. You have another one -- "The Case Against Ken Starr." Marvelous language and articulation of the case against Ken Starr.

This prompts me to invite you to be the first witness that I'm going to have next spring on the question of the reauthorization of independent counsel, which you seem to feel is of no value, at least the Independent Counsel Statute.

Just a moment. We'll let you get to it.

The thing that bothers me is I didn't see any articles during the Lawrence Walsh reign -- of his incumbency in independent counsel. Did you have any such articles that you wish to submit to the committee about the Walsh conduct of independent counsel competency?

BEN-VENISTE: I did not. The Walsh ...

GEKAS: Of any other independent counsel?

BEN-VENISTE: Excuse me, sir?

GEKAS: Of any other independent counsel appointed in the past?

BEN-VENISTE: Oh, yes sir. I actually defended an individual in a case brought by independent counsel McKay (ph). I'm glad you gave me the opportunity to talk about that.

GEKAS: Did you write an article about him?

BEN-VENISTE: No, but I got a jury acquittal in that case, which is better than an article.

GEKAS: That's wonderful.

BEN-VENISTE: It would not have been appropriate for me to write an article while I was representing the client. But let me say this, in all seriousness, and I'll accept your invitation to come and talk about the independent counsel statute, because I feel strongly about the importance of the individual's who hold that office. And I think there is a bifurcation here between the statute and the expectations of an individual who holds the office that that statute creates. Mr. Walsh's investigation, in my view, went on too long. There were a lot of defects with it. However, the subject matter -- the reese (ph), if you will -- of that investigation was momentous. It was important.

GEKAS: OK. But you did not ...

SENSENBRENNER: The time -- the gentleman's time ...

GEKAS: ... file any kind of discourse against Judge Walsh (OFF- MIKE)

SENSENBRENNER: ... has expired. The gentleman from California, Mr. Berman.

BERMAN: Thank you, Mr. Chairman. Mr. Hamilton and Mr. Ben- Veniste, I'd like you to, for the purposes of your answers, assume -- make two assumptions. Assumption one, the president lied under oath. And secondly, as to his grand jury testimony, those lies were not to cover up a consensual sexual relationship, but to avoid conceding that he had testified untruthfully in the civil deposition.

And the question is to deal with the contention that this conduct justifies impeachment because, coming from the president, it's so corrosive of the judicial system and it's so -- it so erodes the rule of law.

HAMILTON: Congressman Berman, clearly lying under oath before a grand jury or in a deposition is reprehensible. I think the question is: Does that rise in this circumstance, where the lying is about private consensual sexual conduct, whether it rises to the level of an impeachable offense? Is it a great and dangerous offense against the state that indicates it would be a danger to leave the president in office?

BERMAN: That's the question.

HAMILTON: My conclusion is that it's not. Now, I will go on and say, as I have said both orally and in writing on several occasions, that I think this conduct demands a sharp censure and indeed something more than censure. I think that the president should agree to some type of monetary penalty to emphasize the seriousness of his conduct.

I also think that there obviously will be a possibility after the president leaves office that if some prosecutor really deems that this is a case that he could win, that he could be prosecuted for it.

BEN-VENISTE: And clearly, Mr. Berman, the president's conduct was not, and we can all agree, lying about disloyalty, treason, matters of national security, bribery, or other things which are characterized as high crimes and misdemeanors.

Now, clearly Mr. Clinton attempted to obfuscate in his civil deposition -- something which his adversaries already knew; that is, that he had had an inappropriate physical relationship with a young intern.

BEN-VENISTE: The question is whether even in that context, the vice of perjury was accomplished. Did the president's conduct somehow skew the result in that case? Not even there I think that it had that effect.

BERMAN: I think in a way both of you are missing, I guess, the point I was hoping to hear you speak to, which is it is contended by some that the fact that it's the president, and assuming again that it's lying under oath, that those two facts rise to, make this rise to a level of impeachment because they're so corrosive of the judicial process...

BEN-VENISTE: It's clearly...

BERMAN: That's what I'd like to hear you speak about.

BEN-VENISTE: It is clearly, under any circumstances, something which is deplorable. However, what we are dealing with is the impeachment of the president of the United States, this most monumental, momentous task that this committee can consider. And under that standard, the idea that no man is above the law has to do with whether a prosecutor could prosecute the president, as the Constitution provides, after he leaves office.

But it has nothing to do with the application of the standard of high crimes and misdemeanors, in my view, and therefore does not warrant impeachment of the president.

SENSENBRENNER: The gentleman from North Carolina, Mr. Coble.

COBLE: I thank the chairman. Today, ladies and gentlemen, I've seen evidence of wringing of hands and intense anxiety expressed because the lack of bipartisanship on the Judiciary committee. And the implications seem to place most of that blame on the Republican corner of this room. I think no blame at all needs to be afforded to that corner or this corner.

If we search our consciences and vote on our sound judgments for or against impeachment, I don't know that any blame needs to be allotted or attributed. Sure, it would be fine if we could do it in a bipartisan fashion, but the nature of this beast oftentimes avoids that.

Let me talk to you gentlemen about perjury. Some say that lying about sex to a grand jury is not sufficient to warrant impeachment. I guess, arguendo, let's assume that perjury is a crime that raises itself to the threshold of impeachment. If that is, in fact, true, which I believe it is, I think the subject about which one is lying is immaterial, because I don't think there are exceptions to the perjury statute.

Now, having said that, let me ask you all this. How about one who lies to a grand jury about his obstruction of justice, or his concealing evidence, or encouraging the filing of a false affidavit, or perhaps coaching a witness, if that is in fact, has in fact been done, do you all believe that that would constitute crimes that raise themselves to the threshold of impeachment?

BEN-VENISTE: If, in fact, the obstruction of justice and the perjury had to do with the kind of weighty subject matter about which the Impeachment clause was created, that is, treason, or bribery or some like offense, then I would agree, as I did in the case of Richard Nixon, that this would in fact constitute...

COBLE: Well, let me, my time has run out. Let me hear from Mr. Hamilton on this as well.

HAMILTON: Again, I think the question is whether this, the lying amounts to a great and dangerous offense, so that it is dangerous to allow the president to remain in office. That is a judgment you have to make with every specific factual situation that you are confronted with.

COBLE: I thank the gentleman. Mr. Chairman, with your permission, I'm going to yield the balance of my time to the gentleman from Florida, Mr. Canady.

SENSENBRENNER: The gentleman from Florida.

CANADY: I thank the gentleman from North Carolina, and I just want to make a couple points. I want to thank both of you for being here today. You're both very distinguished lawyers, and we appreciate your taking the time to be here. I'll have to candidly say I don't think your testimony has added much to our deliberations, however.

I'm disappointed that we see the continued attacks on the independent counsel, and it's interesting that I still have not heard any claim of misconduct by the independent counsel which undermines the credibility or the reliability of the evidence, the sworn testimony that is before us.

CANADY: It is not there. And so I find -- if we had something like that, then that would be relevant for us to consider. But these generalized charges of misconduct by the independent counsel I think are just an attempt to divert attention once more from the facts of this case.

And it's been very disappointing today that we have had so little discussion of the actual facts of the case against the president. There has been some discussion of that, and I think that's good. But there's been very little of that, and I'm hopeful that tomorrow we're going to see a change of focus and deal with these facts. And as I'm going to discuss a little more in a minute, I think the facts are very troubling. And there are facts that we have to come to terms with.

Now, is this case equivalent to Watergate? My answer to that is no. But that doesn't resolve the matter for us. There are similarities I would also say. But I don't think anyone would responsibly contend that President Nixon somehow established the threshold there for what is impeachable. That's not right. We've got to judge this president's conduct on the evidence that's before us and make a judgment under the standards of the Constitution.

HYDE: The gentleman's time has expired. The gentleman from New York, Mr. Nadler.

NADLER: Since the gentleman from Florida followed some of his colleagues' comments about making aspersions about your testimony and not permitting you to answer them, could you take a minute to tell us about how Mr. Starr's misconduct may have affected conclusions about the president, and then let me ask my question?

BEN-VENISTE: Well, I think there are things that have not been fully investigated. I don't make the claim of misconduct. And in fact, the New York Times has its own way of putting a title on an editorial piece. That was not my title, that was the New York Times' title.

NADLER: Could you tell us -- do you think that Mr. Starr's misconduct...

BEN-VENISTE: There are...

NADLER: ... if misconduct it be, has any relevance to the fact- findings? BEN-VENISTE: I think there is -- I think to the extent that all inferences have been drawn in the referral received by this committee by Mr. Starr against the president, that there has been selectively involved.


BEN-VENISTE: That there has not been investigation of the activities of certain people who were responsible for starting this.

NADLER: It's been a one-sided investigation, in other words?

BEN-VENISTE: Well, there is more to look at than has been looked at.

NADLER: OK. Thank you. I have two quick questions. And I'll read them both so that you can answer them in the time remaining. I find startling assertions by some of our colleagues on the other side that the president's failure to call witnesses somehow proves his guilt. The gentleman from Florida, the other gentleman from Florida, said a few moments ago that a Senate trial can be whisked along in a matter of days. That they don't need to call witnesses there. That everything is clear. I had assumed that the alleged lack of a need for calling fact witnesses to prove by the prosecution, if you will, here was because of the analogy to the grand jury, we could use the hearsay testimony of Mr. Starr, that certainly you'd have to call witnesses in the Senate. Is there really no objection on the part of the accusers of the president to bring forward witnesses or direct evidence? Is it proper to rely on the Starr report to establish the facts?

NADLER: Is the president really required to prove his innocence rather than have his accusers prove his guilt? That's my first question.

My second question is for Mr. Ben-Veniste. My second question is, in your testimony, you say that it is clear Mr. Starr's purpose in forcing Mr. Clinton to testify was simply to provide additional fodder for the impeachment referral. What interest would a federal grand jury have in investigating whether one consenting adult touched another consenting adult here, there, anywhere; whether the conduct first occurred in November or January; or how many gifts they exchanged? And further you say that the two supposed grounds for obstruction of justice -- Vernon Jordan's attempt to find a job for Monica Lewinsky and the talking points -- which formed the basis for the request to the attorney general for the -- to extend the jurisdiction, were both dead letters, and Mr. Starr knew that before he called President Clinton as a grand jury witness.

Are you asserting here or do you think it proper to state that therefore Mr. Starr's calling of the president before the grand jury was simply a perjury trap, and that, in fact, there was no basis, and that this was improper, and that in some way affects how we should regard this whole thing?

BEN-VENISTE: Well, let me say that it escapes me as too what the grand jury was properly investigating at that point.

The president...

NADLER: And that makes perjury -- any alleged lying there immaterial?

BEN-VENISTE: Well, it puts into some kind of context, Mr. Nadler, that the allegations of obstruction of justice and of perjury really do not have the kind of substance that one would find if something were actually obstructed or somebody was actually harmed by a perjury. And I think it is in that context that you look at whether you -- you get to the momentousness of conduct that would warrant impeachment.

NADLER: In other words, it's hard to have obstruction if nothing is being obstructed?

BEN-VENISTE: I think so. NADLER: And it's hard to have perjury if it wasn't material to anything sought to be proven?

BEN-VENISTE: I think so.

NADLER: And the other question is -- please answer my first question about the lack of witnesses establishing guilt both here and presumably, according to Mr. McCollum, in the Senate. Is it the president's job to prove his innocence rather than the other way around?

BEN-VENISTE: Well, I would think, Congressman, that it is the job of this committee to convince itself that the president has engaged in impeachable conduct. Now, how the committee does that depends on the circumstances.

It is true that neither the committee or so far the president has called any witnesses before this committee, and both sides are going on grand jury testimony.

The majority seems to be relying basically upon Mr. Starr's analysis, and I think tomorrow the White House is going to give you their analysis of the grand jury record.

But the bottom line is this committee has an obligation to do what it thinks is necessary to ascertain the facts that would support impeachment or support not...

SENSENBRENNER: Gentleman's time has expired. The gentleman from Texas, Mr. Smith.

SMITH: Thank you, Mr. Chairman.

Mr. Hamilton, let me read for you a longer quote by George Stephanopoulos, who is a former, as you know, senior adviser to President Clinton, and ask for you to respond.

"But President Clinton turned his personal flaws into a public matter when he made the whole country complicit in his cover story. This was no impulsive act of passion; it was a coldly calculated political decision. He spoke publicly from the Roosevelt Room." That's in the White House.

"He assembled his Cabinet and staff, and assured them he was telling the truth. And he sat back silently and watched his official spokespeople, employees of the U.S. government, mislead the country again and again and again."

Mr. Hamilton, don't you think that the president's actions and statements were an effort to try to thwart the investigation that was then going on?

HAMILTON: Well, let me answer it this way. I am not sure I can put myself in the president's mind. I do think his conduct in this regard was disgraceful. SMITH: Let's use the reasonable person's standard. Don't you think a reasonable person, a reasonable American would listen to the president's statements, watch what he did, and conclude that he was making an effort to try to thwart the investigation that was then going on? Don't you agree with that?

HAMILTON: Well, Congressman, I am sure that he wanted the investigation to go away. There is no doubt about that.

The question, again -- and if I sound like...

SMITH: No, no. My question is -- it's pretty clear. And could you answer it for me?

HAMILTON: I think I did answer it. I think he clearly wanted the investigation to go away.

SMITH: OK. That wasn't an answer to my question. Do you think he was attempting to thwart the investigation that was then going on?

HAMILTON: Well, I am not sure there is a distinction. I am sure he wanted the investigation to end.

SMITH: Was he actively trying to impede the investigation?

HAMILTON: He may have been trying to impede the investigation. I guess the question is...


HAMILTON: Well, let me finish.

SMITH: I think you just answered my question. If you said he may have been trying to impede the investigation, you've answered it.

HAMILTON: The question is what he was doing improper or impeachable.

SMITH: No, no, no. Don't -- Mr. Hamilton, don't rephrase my question. I think you have answered my question, that he may have been trying to impede the investigation that was going on. That's all I was looking for.

I will have to confess to you, in part I was looking for that, because that was Barbara Jordan's definition of impeachable offense. But I think that's the important point.

SMITH: Let me read -- this is a little bit lighter subject -- some letters to you from the sixth graders at Chisholm (ph) Middle School in Round Rock, Texas. They have a way of putting it very straightforwardly, even if it's not always grammatically correct.

Here are three letters. "If the president doesn't get impeached it could be very dangerous because more people will start doing more crimes and say if the president can get away with it, I can."

Another one -- "Last year I studied the Constitution in social studies. One thing I learned was that in the Constitution stated 'all men were created equally.' If we want an equal nation, we must make sure justice is served no matter how high on the branches of government."

And then lastly, "if everybody lied under oath, our justice system would fall apart."

That's a very succinct version, I guess, of cancer -- categorical imperative, along the lines of "never engage in any action which is engaged in by everybody else," and where it in effect lead to chaos.

Wouldn't you agree that if everybody engaged in deceptive or misleading or evasive or perhaps not telling the whole truth, that could in fact undermine the entire judicial system. In effect, what's the point of having courthouses if people aren't going to tell the whole truth?

HAMILTON: Of course I agree with that.

SMITH: OK. Thank you, Mr. Chairman. I'll yield back.

HYDE: The gentleman from Virginia, Mr. Scott.

SCOTT: Thank you, Mr. Chairman. I'd like to ask the witnesses: If you assume that the president has committed impeachable offenses and in fact should be removed from office, my question is, what is a rational way to present the case?

Mr. Ben-Veniste, did Mr. Jaworski testify to help make the case before Congress?

BEN-VENISTE: No, Mr. Jaworski was very careful to avoid any sort of advocacy in connection with transmitting evidence which we had obtained through the grand jury. We had obtained very damaging White House tape recordings, and other grand jury testimony of witnesses which were transmitted without any sort of advocacy or pointing to what might be an impeachable offense. It was just the material.

And Judge Sirica who reviewed it said that the grand jury had done its job in a fair way, without making any comment or without arguing for any result in having done so.

SCOTT: Are witnesses appropriate in this case to be called to make the case, if you're not going to rely on the prosecutor?

BEN-VENISTE: One would think that if an impeachment article were voted out of this committee that the committee should hear from an individual who has first-hand knowledge of the conduct on which an impeachment is based.

SCOTT: Should you rely on a presumption of guilt if the president doesn't prove his innocence?

BEN-VENISTE: Not in this country, sir.

SCOTT: Should the specific allegations be made available to the president before he has to respond? We've heard just today that the gentleman from Arkansas notified the president that there are other allegations that he might want to bring forward. The gentleman from Florida mentioned bribery as a possibility.

The expansion and contraction of the scope of the inquiry changes daily and hourly. What about the specific allegations being available before the president has to respond?

BEN-VENISTE: Well, that is the normal way in which any sort of judicial or quasi-judicial proceeding is held. The advocate for one side, who is bringing the matter in some kind of a document, either a complaint or other document, sets forth the basis and the substance of what it is he has claimed the other side has done wrong, so that the other side can then answer.

It is, I think, a very difficult process if one does not know with some specificity what the allegation is.

SCOTT: Now is the title of the offense, we hear a lot about perjury, obstruction of justice, and other titles of offenses. Do you need more than the title of the offense in order to appropriately respond?

BEN-VENISTE: There's no question that you cannot respond to a claim of perjury unless you know what the full statement is, and then you can address whether or not a case has been made out, or at least a prima facie case.

SCOTT: Now in terms of whether or not it's an impeachable offense, we have heard the title of the offense, perjury being sometimes impeachable and sometimes not impeachable. How would measure, would you measure the title, or would you measure the effect it's had on the nation. And Mr. Hamilton, if you want to respond to that?

HAMILTON: I think you measure the effect it has on the nation. You look at whether the offense is so great that it is dangerous to allow the president to remain in office.

SCOTT: And the title of the offense is not the measurement, but the, you would measure the effect. So whether it's obstruction of justice or whatever the title is, is not the measurement, but the effect it has as far as it's a grave danger to the nation?

HAMILTON: Even in the narrow confines of what we're discussing here, I have trouble understanding who was obstructed and how was that person obstructed in the conduct we're talking about.

SENSENBRENNER: The gentleman's time has expired. Before recognizing the gentleman from California, just to make sure that the documentation that has been submitted to the White House is all printed at once, the chair would ask unanimous consent that the documentary appendix to the submission by counsel for President Clinton to the Committee on the Judiciary of the United States House of Representatives dated December 8, 1988, also be printed overnight. Is there objection?

(UNKNOWN CONGRESSMAN): Mr. Chairman, I assume you meant December 8, 1998?

SENSENBRENNER: I stand corrected. It is this document. Without objection. So ordered. And then the gentleman from California, Mr. Gallegly is recognized.

GALLEGLY: Thank you very much, Mr. Chairman. Gentlemen, thank you for being here. It's been a long day. We started off a little over eight hours ago, and for the past eight hours, we have been listening very attentively to the president's premiere defense team. Mr. Craig started off the morning by advising us. Today we would be hearing very powerful to quote him, evidence supporting the president. So far, I have not heard any new evidence, much less powerful evidence that refutes the fact that the president lied under oath.

Mr. Hamilton, do you believe that our legal system is dependent on people telling the truth?

HAMILTON: Of course.

GALLEGLY: Do you believe that perjury represents an attack on the integrity of our judicial system?

HAMILTON: Of course.

GALLEGLY: This, this morning, between this morning and this afternoon, we had testimony by two witnesses for the president, one Mr. Craig, and one Mr. Owens. Mr. Craig testified earlier that he believes the president did not lie under oath. Mr. Owens this afternoon stated that the president did lie under oath. He didn't say I believe, he says the president did lie under oath. Mr. Hamilton, do you believe the president lied under oath?

HAMILTON: I find the president's testimony very troublesome. It was clearly...

GALLEGLY: As a lawyer...

HAMILTON: It was clearly evasive and misleading. I understand that tomorrow, Mr. Craig is going to, Mr. Roth is going to make an attempt to convince us all that it was not perjury.

GALLEGLY: But at this particular point in your heart, do you believe the president lied under oath?

HAMILTON: I find his testimony extremely troubling. I'm going to withhold judgment until I hear what Mr. Craig has to say tomorrow.

GALLEGLY: Mr. Ben-Veniste, with a simple yes or no, do you believe the president lied under oath?

BEN-VENISTE: Are you talking about, what proceeding?

GALLEGLY: In the, before the federal grand jury?

BEN-VENISTE: Before the grand jury, I have trouble with that.

GALLEGLY: All right, thank you Mr. Ben...

BEN-VENISTE: I have trouble with the grand jury proceeding. GALLEGLY: Thank you very much, Mr. Ben-Veniste. You both are very capable lawyers and have a distinguished record. Mr. Hamilton, can you give me very clearly, your definition of what it means to hold up your right hand and swear to tell the truth, the whole truth and nothing but the truth so help me God.

HAMILTON: It means what you say.

GALLEGLY: And does it not mean to deceive and does not mean to minimize the truth?

HAMILTON: Of course not, very much.

GALLEGLY: Based on what you've seen and heard, you think that the president has been truly candid and totally honest with the American public to date today? Mr. Hamilton.

HAMILTON: Do I think that, you mean in the past, do I think today...

GALLEGLY: No I mean today, in view of the months of presentations he's had, civil deposition, grand jury, the August 17th, and the 31...

HAMILTON: No, he clearly has not been fully candid.

GALLEGLY: Thank you very much. You know, my colleagues, the president has had the choice of telling the truth, and the whole truth, and nothing but the truth not on one occasion, but at least on four occasions to the American public. First, his deposition, second, his grand jury testimony, third, during the address to the American people, and fourth, just a few days ago in answering 81 questions submitted by this committee.

It is clear in each of these four instances that the president has been less than honest. I'm disappointed that the president has not presented any exculpatory evidence relating to these facts. I anxiously await tomorrow's presentation. I hope the president's lawyers take seriously the need to rebut the allegations the president has lied under oath and he's lied to the American people, which I think compromises his oath of office.

And I would yield back, Mr. Chairman.

SENSENBRENNER: The gentleman's time has expired. The gentleman from North Carolina, Mr. Watt.

WATT: Thank you, Mr. Chairman. Mr. Hamilton, Mr. Ben-Veniste, if you assume everything that Mr. Gallegly just said, that the president was, in fact, less than honest, that he lied, has the president engaged in impeachable conduct, in your opinion? Is it abuse of power?

HAMILTON: In my opinion, he has not engaged in impeachable conduct. He has engaged in reprehensible conduct. He has engaged in conduct for which I believe he should receive a sharp censure. Indeed, I think he should agree to pay a substantial fine. But I don't think that he's engaged in conduct that demonstrates he is a danger to America.

WATT: Mr. Ben-Veniste.

BEN-VENISTE: I agree that the subject matter here, which we all know is about the president's unwillingness to fess up to an inappropriate relationship that he had with a young intern, is the core of everything that we are talking about. It is the core of what he walked into when his deposition was taken.

The Jones lawyers were armed with the information that Linda Tripp had surreptitiously tape recorded from Monica Lewinsky, so they knew they had something. The president didn't know they had it, and the president gave testimony as artfully as he could, I think, to try to evade answering the questions about Ms. Lewinsky. He should not have done that. That's an understatement.

The question is whether everything that springs from that, Mr. Starr criminalizing that conduct by opening an investigation which, in my view, no other federal prosecutor in this country would go after, at least no one of any reputable stature in this country, and then to try to draw from that the concept of an obstruction of justice, putting him before the grand jury, asking questions about where he touched Ms. Lewinsky, where Ms. Lewinsky touched him, on what day of the week, in what place in the White House, in what month of the year, how in the world can we be discussing removing a twice elected president of the United States on the basis of this kind of conduct?

That is the question that I raise, and that is, I think, the issue of proportionality and common sense that the American public has grappled with and has come to some conclusion, I think, expressing their great common sense. As a trial lawyer, I see people from all walks of life in a courtroom, and I have great respect for their collective common sense.

WATT: So I take it from that that, notwithstanding what Mr. Gallegly said, you don't think this is impeachable?

BEN-VENISTE: That is correct, sir.

WATT: When Mr. Starr came before this committee, he made some references to Mr. Jaworski, and suggested that he thought Mr. Jaworski would approve of the way that Mr. Starr had conducted this investigation. Would you give us your assessment of that, Mr. Ben- Veniste?

BEN-VENISTE: Well, I had the opportunity to talk with Mr. Jaworski's grandson just the other day, and Joe Jaworski, who practices law in Houston, Texas, told me he was rather appalled by the comparison.

BEN-VENISTE: I worked with Mr. Jaworski and quite frankly I was quite skeptical when he came on board and took over for Archie Cox, because after all Richard Nixon was the one who picked Mr. Jaworski. He was a conservative Texan and he said he was going to follow Mr. Cox's mode of investigating. He would be beholden to no one. He would conduct an independent investigation.

And we were all prepared to watch what he did, more than what he was saying. And by all accounts, his activity in not leaking; in conducting a fair and vigorous investigation, but not taking any cheap shots at the president; giving the president the benefit of the doubt; provides the model, I think, for all high-profile investigations that have come thereafter.

SENSENBRENNER: The gentleman's time has expired. The gentleman from Florida, Mr. Canady.

CANADY: Thank you, Mr. Chairman.

I want to go back to a point that I was making earlier; that is, that President Nixon's mis-deeds do not somehow establish a threshold level of misconduct that must be met in order for there to be an impeachable offense. Do either of you disagree with that point?

BEN-VENISTE: I do not. God help us...

CANADY: Mr. -- OK. Thank you. Mr. Hamilton?

BEN-VENISTE: ... if we see that kind of conduct again.

HAMILTON: No, I don't disagree with that.

CANADY: OK, well thank you. Let me go on to make some comments about what I think is at stake in the case that's before us. When we look at the facts concerning the president's conduct, what do we find? Now, I believe, based on my reading of the evidence, that we find a pattern of calculated wrongdoing, a sustained course of criminal acts designed to thwart the due administration of justice.

Now I know that some people believe this is all trivial, but I believe that that is what is going on. We see evidence that the president last December, and it starts in December, lied under oath in answers to interrogatories. We see evidence that in January he lied under oath repeatedly in his deposition in the Jones case, and let me add that today we have heard the president's lawyer here before this committee affirm the obvious lie that the president told then when he said that he had no specific recollection of being alone with Ms. Lewinsky. Even Mr. Frank has recognized that that was a lie.

But yet the president's counsel reaffirmed that lie before us today. And we find in the evidence that the president in August lied under oath before the grand jury to cover up and to avoid responsibility for his earlier lies. Mr. Ben-Veniste, I believe you stated that you've got a problem with what happened before the grand jury and the president's conduct.

BEN-VENISTE: I have a problem with characterizing it as an obstruction of justice. The president admitted in a grand jury...

CANADY: Mr. Ben-Veniste, I'm sorry -- I'm sorry, you've made that point and I've got some questions...

BEN-VENISTE: I thought you were asking me about something.

CANADY: ... if I have some time left, I'll be happy to recognize you.


CANADY: Then we find evidence along the way of various other acts in which the president attempted to corruptly influence the testimony of witnesses. And finally, I believe that we have evidence that the president just last month lied under oath to this committee in answers that he gave to questions propounded to him by the chairman of the committee.

Now, how do we respond to this? How do we respond to this substantial course of wrongdoing that was sustained over a period of a year?

Now, it's been argued essentially that we should forget about it because the underlying cause of it was sordid. I don't believe that the sordidness of the underlying conduct is a mitigating circumstance. Indeed, it is not a defense against these allegations. I think that just doesn't make sense, but that's the claim that's being made. That's the primary claim, that we should see all of this go away because the underlying conduct was sordid.

Now this was not some trivial lapse of judgment. The president wasn't blindsided. He was calculating every step along the way. Now, I believe that this is conduct that shows an utter contempt for the judicial process in this country.

CANADY: It is conduct that shows utter contempt for the dignity of the office of president, and it is conduct that, by its very nature, undermines the integrity of office. It is conduct by the chief executive that harms our country and our Constitution by undermining respect for the law. Now that's what we have before us, I believe.

And let me end by quoting, again, the first chief justice of the United States, Justice Jay who said, "Independent of the abominable insult which perjury offers to the divine being, there is no crime more extensively pernicious to society, that discolors and poisons the streams of justice and, by substituting falsehood for truth, saps the foundations of personal and public rights. Controversies of various kinds exist at all times in all communities. To decide them, courts of justice are instituted. Their decisions must be regulated by evidence. And the greater part of evidence will always consist of the testimony of witnesses. This testimony is given under the solemn obligation..."

SENSENBRENNER: The gentleman's time has expired.

CANADY: If I could just, one sentence, in the middle of a sentence, " given under the solemn obligations which an appeal to the god of truth imposes. And if oaths should cease to be held sacred, our dearest and most valuable rights would become insecure."

SENSENBRENNER: The gentle woman from California, Ms. Lofgren.

LOFGREN: Thank you, panelists, for being here today, and for your enlightening testimony. And also, I just want to take a personal moment to -- I worked in a lowly position during the 1974 inquiry. And -- but I'd like to express my thanks to you, Mr. Ben-Veniste, as someone who I looked up to and admired at that time for the service that you did to our country then at a very difficult time.

BEN-VENISTE: Thank you.

LOFGREN: And you did it skillfully and honorably.

Since you're here, and because you do have experience in the Justice Department, I want to ask you just a quick question before I get to my real question. I -- when Mr. Starr was before the committee, I asked him three questions, two of which had to do with when he found out information and the third about whether he would release reporters from their confidentiality bond.

And I recently received a letter from Mr. Bittman saying that Mr. Starr wouldn't answer any of the questions that were posed and sent to him because of Justice Department policies. Can you think of any Justice Department policy that would prevent Mr. Starr from answering the three questions I posed that he said he would answer?

BEN-VENISTE: No. Indeed, I would think that Justice Department policies would compel an answer, particularly to an oversight committee...

LOFGREN: Thank you for that.

BEN-VENISTE: ... investigating whether somehow this investigation was somehow skewed and whether there was the creation of an unwarranted appearance. Now I don't say that that occurred, but I think there's an obligation to look at that.

LOFGREN: Nor do I. I just want answer.

Let me follow up on something that you mentioned in answer to Mr. Nadler's questions earlier. You mentioned that there were other things that should maybe have been looked at by the independent counsel, other witnesses that might have been called.

You're familiar with the special prosecutor's investigation, and you've got a lot of experience as a prosecutor and investigator. Do you think there were areas that merited further investigation by his office? Were there witnesses who were not called to testify before the grand jury who should have been called that might have given a greater picture of the truth? Do you have any advice for us on that?

BEN-VENISTE: Well, there was one anomaly that I found in looking through the volumes of material that Mr. Starr produced to this committee, and that was the fact that the individual who, by Ms. Tripp's admission and her own admission, put Ms. Tripp up to tape recording was never put before the grand jury. That would be Lucianne Goldberg.

And if you look in the appendix that Mr. Starr submitted, there is an FBI 302 report that shows that Ms. Goldberg was served with a grand jury subpoena duces tecum to appear, testify and bring evidence. And yet, there is no indication anywhere that I have seen that Ms. Goldberg was, in fact, compelled to go before the grand jury.

And as we know, this grand jury was fully capable of asking its own questions.

And so, the question about what she did with the information, the tapes that she had in her possession, the information she was getting on a daily basis from Ms. Tripp and, perhaps more importantly, whether she was guiding Ms. Tripp in some way, and who she was talking to.

BEN-VENISTE: None of those questions are before us in any record because, as far as we know, Ms. Goldberg was never put before a grand jury.

There is a 302 report that shows that, seven months after she received a grand jury subpoena, she was interviewed by an FBI agent working with Mr. Starr. And in that material, there are some very interesting questions which are raised. And I have not heard those questions discussed in this committee. Maybe it has been done in executive session or maybe you have received information that I have not heard about. But it seems to me...

LOFGREN: We can't say what we do in executive session, but we can say what we don't do in exec session. That's something we've not done in exec session.

So if I can just very quickly, you've included some articles, and I'm familiar with headline writers who embarrass you, but the New York Times article you mentioned, with the headline you didn't write about Mr. Starr -- you mentioned the unseen hand possibility. Understanding that we have a high standard for offenses against the state that really is at work here, what would the unseen hand mentioned in the article have to do with any of this that's been brought to us?

BEN-VENISTE: Mr. Sensenbrenner, if I may answer.

SENSENBRENNER: A sentence or two. The gentlewoman's time has expired.

BEN-VENISTE: Surely. I think when you're considering something like removing the president of the United States, you ought to know whether somebody has set up something in motion to take him down. And that, I think, is the obligation of this committee.

And I am surprised to hear, frankly, that Mr. Starr had not responded to the follow-up questions in that area. I don't know what the committee's procedure is for enforcing that.

SENSENBRENNER: The gentlewoman's time has expired. The gentleman from South Carolina, Mr. Inglis.

INGLIS: Thank you, Mr. Chairman. Mr. Craig is not in the room, as far as I can see, but on this third panel, I want to keep score here -- no criticism of these two witnesses, they were invited here by Mr. Craig to testify. But this is now zero for three, in terms of anybody who can present any facts related to this case.

No facts being presented here, no evidence, and I would remind committee members of what Mr. Craig told us this morning.

"Let me assure the members of this committee, and the members of the House of Representatives and the American public of one thing: in the course of our presentation today and tomorrow, we will address the factual and evidentiary issues directly."

Not yet -- zero for three, three panels, no facts, no evidence.

UNKNOWN MALE COMMITTEE MEMBER: A point of parliamentary inquiry?

SENSENBRENNER: The gentleman from South Carolina has the floor, and interruptions are only allowed when the holder of the floor yields. Will the gentleman yield?

INGLIS: I don't have time to yield. I'm terribly sorry. Mr. Hamilton, on an issue, though, that I think you can testify here about, you are an officer of the court, a lawyer, is that correct?

HAMILTON: Yes, sir.

INGLIS: If you have a client on the stand who commits perjury to your knowledge, what do the canons of ethics require you to do in that case?

HAMILTON: The District of Columbia canons are a little bit different than the ABA Model Rules. Basically, a lawyer is supposed to tell his client that he should correct his testimony. If the client doesn't do that, the lawyer withdraws from the case.

INGLIS: And in that case, isn't it clear that what's happening there is that perjury is such, as Mr. Canady was just exploring, such a pernicious thing that it trumps the client's right to rely on counsel because, in that case, the lawyer must disclose this to the client, AND in many jurisdictions, disclose to the court as well, correct?

HAMILTON: In some jurisdictions, yes. To answer your question, the lawyer's obligation as an officer of the court, in that circumstance, supersedes his obligation to his client.

INGLIS: Yes, which -- the only point I would make to everyone listening here in the committee -- if it, for those of us who are officers of the court, it shows how crucial this matter of telling the truth in court is, that it trumps the attorney-client privilege. Now Mr. Ben-Veniste, I understand that there's...

HAMILTON: It doesn't trump the privilege.

HAMILTON: It -- the lawyer still has no obligation to reveal his client's perjury ...

INGLIS: Right. I understand that.

HAMILTON: ... but he does have an obligation to take some steps to disengage.

INGLIS: I understand that.

BEN-VENISTE: And obviously this occurs when the lawyer has knowledge that his client (OFF-MIKE).

INGLIS: No, no -- Mr. Ben-Veniste, let me ask you a different question. It has to do with something else.

I understand that there's a regular conference call from the White House that deals with communications efforts of the White House. Is that true, to your knowledge, that there's some regular conference call, as I understand it, at 11 o'clock, possibly on every day of the week? Is that about right, to your knowledge?

BEN-VENISTE: I have participated in -- on an irregular basis in what may be a more regular conference call.

INGLIS: So you've participated in this call.

BEN-VENISTE: From time to time ...

INGLIS: Yes. So then the evidence you can give ...

BEN-VENISTE: ... in recent weeks.

INGLIS: ... here -- actually, we've found something that you can testify about in terms of facts and evidence.

BEN-VENISTE: Oh, there's a lot I could testify about.

INGLIS: It's about the effectiveness of the spin machine at the White House, which is interesting. Have you participated in calls that sort of coordinated the attack on Ken Starr, I wonder?

BEN-VENISTE: No, there are no such calls.

INGLIS: No calls involving Ken Starr? Ken Starr -- an attack on him? BEN-VENISTE: To my knowledge -- coordinating some attack on Ken Starr?

INGLIS: Excuse me?

BEN-VENISTE: No, sir. I'm unfamiliar with a call coordinating an attack on Ken Starr.

INGLIS: So you haven't participated in any such calls?


INGLIS: Well, it's -- it is an interesting fact that you could testify about it. If we had more time, maybe we could develop what is discussed on those calls, because it is a masterful operation. Those are facts that you could testify about and I wish that Mr. Craig had let us know that ahead of time so that we could ask you about the facts that you could actually testify about.

Because neither of you -- not any criticisms of you -- but neither of you can testify about the facts in this case. And unfortunately, Mr. Chairman, once again zero for three -- third panel, no facts yet.

SENSENBRENNER: The gentleman's time has expired.

NADLER: Mr. Chairman?

SENSENBRENNER: For what purpose does the gentleman from New York ...

NADLER: Point of parliamentary inquiry.

SENSENBRENNER: State your inquiry.

NADLER: My inquiry is that the gentleman from South Carolina just again stated that there's been no factual submission and implied that Mr. Craig, who said that the factual submission today (OFF-MIKE)

UNIDENTIFIED CONGRESSMAN: Regular order, Mr. Chairman. That's not a parliamentary inquiry.

NADLER: My inquiry is ...

SENSENBRENNER: State your inquiry.

NADLER: ... my inquiry is: Was that side of the aisle not served with this material? Or was the gentleman being dishonest and misleading the television viewers by implying that there was no such submission made?



SENSENBRENNER: That is not a proper parliamentary inquiry and the gentleman from Texas, Ms. Jackson Lee is recognized.

JACKSON LEE: Let me thank both of the members of the panel for their presence, and acknowledge as well their astuteness as lawyers and having a special insight into the proceedings we know as Watergate.

Mr. Ben-Veniste, let me thank you as well for your kind words about Leon Jaworski, who I had the honor and pleasure of working for, and know full well the somberness and the high position he held his role and responsibility in Watergate.

A simple question to you before I begin -- did Mr. Jaworski ever leave his position as a prosecutorial implementator and move to the witness chair and become a fact witness?

BEN-VENISTE: No, he did not.

JACKSON LEE: To your knowledge.

BEN-VENISTE: No, of course not.

JACKSON LEE: Let me then proceed with words from Daniel Webster, known as the March 7th speech in 1850, right before the long and elongated discussions about slavery and the potential Civil War in this nation. He said simply: "I wish to speak today not as a Massachusetts man, not as a northern man, but as an American and a member of the Senate of the United States. I speak today for the preservation of the Union. Hear my cause."

We come now almost to the end of this process and I would like to thank Chairman Hyde, who is not in the room right now, for his kindness in the running of today's proceedings. I have a running objection on the time and the inability of many witnesses to answer questions, but I thank him for the way he has offered to those of us who disagree to answer or to ask our questions.

It is at this time that I call upon him as well for a manner of good faith and to heal this country, that we be allowed, as I have supported over the past couple of weeks, a censure resolution, to heal this country and to address these circumstances.

JACKSON LEE: For what troubles me is the precedent that is being set today or over these past few hearings that we've had. One in undermining the institution of the presidency and how this is played to the American people, and then the exaggeration of the gravity of these allegations such that children in American school houses are believing that those who may tell untruths will go unpunished.

And so I have some questions, both for Mr. Hamilton and his recounting of the allegations against President Nixon as it relates to abuse of power. You started out in your presentation that the allegations included unlawful wiretaps, concealing evidence of the wiretaps, secret investigative units such as the Plumbers who to my chagrin, to my appalling understanding broke into a psychiatrist's office of an American. Could you ever imagine? And then the use of the CIA and the FBI.

My question to you, as I read from allegations of our Office of Independent Counsel as he charges abuse of office, the president repeatedly and unlawfully invoked the executive privilege to conceal evidence of his personal misconduct from the grand jury. The president refused six invitations to testify to the grand jury, thereby delaying expeditious resolution of this matter and then refused to answer relevant questions. The president mislead the American people and the Congress in his public statement on August 17, 1998. And might I just simply say, they refused to acknowledge that the Paula Jones case was dismissed, that she appealed it and then she settled it. They refuse to acknowledge that Mr. Bennett questioned the lack of clarity of the question to the president.

But my question Mr. Hamilton, does this equate so that the American people will not believe that we're here covering up the Nixon case, the Clinton case. Do we have the same abuse of power?

HAMILTON: There is no comparison between the Nixon case and the Clinton situation in my judgment. The Nixon case involved serious repeated abuses against the state, violations of the constitutional rights of individuals.

SENSENBRENNER: The gentlewoman's time has expired.

JACKSON LEE: We need to heal this nation, and provide for a censure resolution.

SENSENBRENNER: Gentleman from Virginia, Mr. Goodlatte. JACKSON LEE: And stop the farce and the theatrics of what's going on in this room.

GOODLATTE: Thank you, Mr. Chairman.

SENSENBRENNER: The clock runs at the same rate for every one of the members of the committee.

JACKSON LEE: Thank the chairman.

SENSENBRENNER: I would hope that the members would be respective of the time. The gentleman from Virginia, Mr. Goodlatte.

GOODLATTE: Thank you, Mr. Chairman. Along those lines, I'd like to thank both these gentleman for their participation in the process today, and for your answers to Mr. Canady's question which you indicated earlier that the standards in the Nixon impeachment, the Watergate proceedings are not a standard to be followed for impeachment. Is that correct, Mr. Ben-Veniste?

BEN-VENISTE: They're not a threshold.

GOODLATTE: All right, that's what I'm looking for. And I take it you agree with that, Mr. Hamilton?

HAMILTON: I don't think they set the bottom position of the bar. But I do think they are indicative of the type of conduct we should look at when we are considering impeachment.

BEN-VENISTE: I agree with that.

GOODLATTE: Certainly, certainly. But you see, I think that the whole purpose of the White House's presentation today has been to try to raise the bar to that standard. And I think that that plus this effort to suggest that somehow the motives of the majority of this committee are somehow wrong are the efforts of the White House today.

And Mr. Ben-Veniste, you actually set this story straight a long time ago, long before you ever heard of Paula Jones or Monica Lewinsky, long before Bill Clinton was ever on the national scene. You wrote a book back in 1977 called "Stonewall: The Real Story of the Watergate Prosecution" by Richard Ben-Veniste and George Frampton, Jr. And in that, in the closing you wrote, about the Watergate proceeding. Did the system work? True the nationally-televised debate, and vote on articles of impeachment was a shining hour for the House Judiciary Committee.

But all in all, the total course of the committee's investigation exposed the extreme political nature of impeachment. This is about the Watergate proceeding, the cumbersomeness of the process, its politicization and the unwillingness of so many in Congress to recognize objectively the stark facts of criminal wrongdoing that were put in front of them, make the Nixon impeachment case an unpromising precedent.

GOODLATTE: Here's where I think you were so far sided -- more far sided than anybody who has been before the committee today -- next time might it not be a potent defense for a president charged with wrongdoing to argue that his conduct, however improper, fell short of the spectacularly wide-spread abuse of the Nixon administration.

If Watergate or more is what it takes to galvanize the impeachment mechanism, can we really rely on it to protect us in the future against gross executive wrongdoing?

Now, let me ask you about the title of the book, Mr. Ben-Veniste, stonewalling, that is an effort to obstruct justice, to keep the process from moving forward from discovering the truth. Is that not an accurate definition of that?

BEN-VENISTE: The title of the book came from Mr. Nixon's injunction to his subordinates to stonewall, to deny everything, to blame everything on the lower level individuals so that the higher-ups would not be detected.

GOODLATTE: Let me ask you this, do you believe that President Clinton has engaged in stonewalling in this matter?

BEN-VENISTE: I believe that President Clinton had tried to obfuscate at the very beginning a very inappropriate relationship of a private nature about which he was, I'm sure, and should be ashamed.

GOODLATTE: Well, let me ask you, does exercising executive privilege over personal matters and not public matters, is inventing new forms of executive privilege, is coaching witnesses about what may have previously transpired, is engaging in efforts to suborn perjury and to get your cabinet officials and other members to go out and repeat falsehoods, are all of those stonewalling devices?

BEN-VENISTE: No, I do not believe those are stonewalling devices.

GOODLATTE: You don't think those are comparable?

BEN-VENISTE: The stonewalling devices that were involved in -- in Watergate involved individuals denying such things as the misuse of the FBI, the misuse of the CIA, the misuse of the Internal Revenue Service to inflict pain and embarrassment upon enemies of the president of the United States. SENSENBRENNER: Thank you. The gentleman's time has expired. The gentlewoman from California, Ms. Waters.

WATERS: Thank you very much. Mr. Chairman and members, the last time I spoke, I talked about Mr. Hyde's discussion of lying back in 1987. And I want to continue on that because I find these discussions about lying and perjury intriguing and troublesome.

Intriguing because we discuss it in very interesting ways. We discuss lying as if it is foreign to us and as if there are no gradations of lying that we understand and deal with on a daily basis.

Judge Higginbotham when he was here talked about different gradations of lying and we pretended not to know what he was talking about.

It appears we are reticent to discuss our knowledge and experiences with lying because we want to send a message about our own honesty and credibility.

I humbly submit to this committee that it does not make us less than honest human beings to recognize that there are lies and there are lies.

The court recognizes and that is why there is a legal definition for perjury.

I believe that we make these distinctions every day with our children, our families, our friends, our colleagues.

Most of us would like to be as strong and truthful as we can be. And many of us try to work at trying to correct our faults and our weaknesses.

These hearings -- in these hearings, we're attempting to hold the president to a standard that needs to be seen in context.

Clearly, the president's indiscretions are not impeachable. As members of Congress, we take an oath and we swear to uphold the Constitution.

The public does not believe politicians are as honest as we should be.

WATERS: They believe we are far too often guilty of extramarital affairs, violation of FEC laws, misuse of government resources, misrepresentations, promises not kept. The people do not necessarily demand expulsion of us for our poor judgments and less than candid actions. The public will know the difference between these actions and actions that defile our oath of office.

We are often criticized because of the ways we deal with situations. Why are we trying to send a message about our honesty or lack of honesty by attempting to communicate our belief in zero tolerance? Nobody believes us. And we further damage our credibility by attempting to make this president's indiscretions impeachable.

The public does understand inconsistency and lack of candor. Let me just put on the record the questions that I wanted to ask, and I will continue to ask of our chairman. Mr. Chairman, did you lead the defense of the Reagan administration during the Iran-Contra hearings in 1987, when President Reagan and his top national security advisers were accused of lying to Congress and the public about their secret arms sales to a terrorist state?

Did you argue forcibly for a more nuanced views of lies and deception? Did you, in fact, say lying is wrong but context counts? Mr. Chairman, did you say "while Reagan aides may have lied, they did so for the larger purpose of fighting communists, Communism in Central America?"

In 1987, Mr. Chairman, did you say, "It just seems to me, it seems to me too simplistic to condemn all lying," and I further quote, "In the murkier grayness of the real world, choices must often be made."

Mr. Chairman, do you agree with Charles Teifer (ph), a deputy counsel to the Democratic members of the special Iran-Contra investigating committee, who said "Henry Hyde of 1987 listened to Oliver North confess to an incredible career of lying to Congress, and he excused it."

Mr. Chairman, do you agree with Mr. Teifer (ph), who said we are dealing with hard core obstruction of justice, where documents were destroyed and phony chronologies were concocted at meetings in which all conspirators agreed the goal was to lie, and...

SENSENBRENNER: The gentlewoman's time has expired. WATERS: ... and Mr. Henry Hyde condoned that?

SENSENBRENNER: The gentlewoman's time has expired...

WATERS: I've got more the next time around.

SENSENBRENNER: I would ask unanimous consent that the other questions of Mr. Hyde be placed in the record if that's what the gentlewoman from California wishes.

WATERS: No, I've got to keep telling them to you.


SENSENBRENNER: OK, well, I hope those questions were not directed to the present occupant of the chair. The gentleman from Indiana, Mr. Buyer.

BUYER: You would note there that the gentlelady from California wants to propound detailed questions of the chairman, but she has no questions to ask of the president, nor of his conduct.

You know, that's part of the operations, I suppose, of the minority in their defense of the president, acting like criminal defense lawyers, and that's what's unfortunate sitting on the Judiciary committee. So as I've heard some of the witnesses even testify today on how unfortunate it has been for the committee to be so partisan, as if partisan is only defined by Republicans doing something, and not, perhaps, even what the Democrats are here doing.

So it is an uncomfortableness, and I mentioned it earlier, you participate in these phone conversations where's there's tremendous coordination in this town, not only between you, and you, Mr. Ben- Veniste, you go out on MSNBC, you're one of the talking heads out there.

BEN-VENISTE: No Gong shows.

BUYER: ... saying one of, particular points or defenses of the president, and the coordination not only to my colleagues here in the minority. I have a specific question for Mr. Hamilton. I noted in your testimony you are endorsing a concurrent resolution of censure. And my question is what would be the actual purpose, what would be the actual purpose of a censure? What would be the objective purpose of the censure? And what would be the effect of the censure?

HAMILTON: Well, the purpose of the censure would be to condemn the president's conduct. The effect, I think, would be insignificant. We all have read how the president values his place in history. I think if a concurrent resolution was enacted by the Congress, with heavy participation by the Democrats, as I believe would happen, that it would have a pronounced effect on the president.

BUYER: Now, when I asked -- the question was actual purpose and what would be the objective purpose? If you have to draft a censure resolution that condemns his conduct, are you then suggesting that, within a censure, in order to do that, there is some pronouncement, perhaps of guilt on the president on what he had done?

HAMILTON: I think the Congress has discretion to put in that censure resolution what it wants to put in there. And I would assume that there would be some pronouncement of guilt. I do not have a draft in my pocket to show you, but I would assume there would be.

BUYER: Mr. Ben-Veniste, let me ask you the very same question, about actual purpose, objective purpose, and the effect of a censure.

BEN-VENISTE: A censure has been so infrequently used in our country to bring forward a strong and clear disapproval of conduct that it is my view that this is not a slap on the wrist, but this is a device which is proportionate and appropriate to the misconduct involved by the president. Whereas I have been asked about my statement 25 years ago about Watergate -- there is a gulf between the crimes of Richard Nixon, what is an impeachable offense, and what we have here before us.

BUYER: Let me reclaim my time. Let me reclaim my time because I don't want to get back into Richard Nixon. The reason I asked this question, gentleman, is because of case law. In order for a legislative measure to survive a bill of attainder prohibition, it must pass the three-prong test. The test requires that the actual purpose, the objective purpose, and the effect are non-punitive.

Courts are directed to examine the legislative intent of the measure to see if the intent was to punish. If the objective purpose was solely remedial, the measure may not qualify as punitive. Similarly, if the intent of the measure is to deter future acts of the same nature, it's likely not punitive.

So the problem we have here is a bill of attainder that pronounces the guilt of a party without any forms or the safeguards of a trial. So if you do a censure, and then the president may face indictment when he leaves office, we have now prejudiced his case. So ...

SENSENBRENNER: The gentleman's time has expired.

HAMILTON: Mr. Chairman, may I respond to that?

SENSENBRENNER: A sentence or two.

HAMILTON: A resolution -- a concurrent resolution of censure would not be a bill of attainder because it would not be legislation signed by the president. It would be a measure adopted by the two Houses. It would not be an unconstitutional bill of attainder.

SENSENBRENNER: The gentleman's time has expired. The gentleman from Massachusetts, Mr. Meehan.

MEEHAN: Thank you, Mr. Chairman. Mr. Ben-Veniste, as a former U.S. attorney, you surely have extensive experience in bringing cases before grand juries and securing indictments. Indeed, you were deeply involved in the bringing of indictments in the Watergate cases before a grand jury in a nearby federal district court.

So I think you know what a grand jury does. You know what the level of scrutiny it employs and what purposes it serves.

For that reason, I would like to hear your views on an analogy that it seems we're hearing more and more about as we approach this vote on impeaching the president of the United States, which will likely take place Saturday, probably about four o'clock, just before the network news and in time to make the Sunday morning papers, I would guess -- not that I would think that that would be a political question.

But this analogy draws a parallel between the work that this committee and the House must do with respect to the Lewinsky matter, and the work of an ordinary criminal grand jury. And under this perspective, we on the House side of the Hill apparently exist for little other reason than to serve as a ready conduit for scandal between the Office of Independent Counsel and the United States Senate. And we simply flow this referral through us and give sort of a stamp of approval and send it over to the Senate for trial.

Now, personally, I think that this analogy is a mistake. It's a grave mistake for our country. But I think that it is put forth by those who wish to send the following message to Republican House members who are still struggling in good conscience with the impeachment issue.

MEEHAN: That is vote for impeachment. It doesn't mean that you want the president to be removed from office. It doesn't make you responsible for whatever happens over in the Senate when they have a long trial and it breaks down. It's politically safe. All you're saying is -- Hey, look, there's enough here. Why don't you guys over in the Senate handle it.

What do you think of this attempt to draw the analogy between us, this committee and the House, and an ordinary criminal grand jury?

BEN-VENISTE: I think that your responsibility, because it is constitutional in nature, is so far beyond the responsibility of a grand jury when you consider articles of impeachment. That man, whose portrait is here in this room, I can tell you was so emotional about the burden which the question of impeachment of a president of the United States had put on his shoulders that it showed through to every American who saw those proceedings.

Peter Rodino cared deeply about what his committee would do and how it would affect America, and what the responsibilities were to be fair and complete, and to be as unbiased and impartial and bipartisan as possible because he was speaking directly to the American public, which then had to determine whether this cataclysm of impeachment was warranted.

MEEHAN: I want to get to the grand jury testimony on August 17th of this year by the president. And I'd like to ask you a couple of short questions.

It's interesting why and how the president was called before the grand jury. But I'm interested. At the time, the president was called before the grand jury, do you believe that Ken Starr had any thought of seeking an imminent indictment of the president for civil deposition perjury?

BEN-VENISTE: I have no idea what Mr. Starr thinks about.

MEEHAN: Well, let's assume he wasn't intending to seek an imminent indictment of the president in the civil deposition for perjury. Did he -- would he summon the president before a grand jury at that time for indictment purposes? Or could it be perhaps -- he have waited until closer to the day in which he would be seeking an indictment or willing to seek an indictment? BEN-VENISTE: Well, the latter would be true, but the practice in the United States in federal prosecutors' offices is not to summon the target of an investigation before a grand jury.

SENSENBRENNER: The gentleman's time has expired. The gentleman from Tennessee, Mr. Bryant.

BRYANT: Thank you, Mr. Chairman. Let me be clear and remind everyone once again as to what's going on today.

We have the final two members of today's panels -- a number of -- witnesses number eight and nine today who are in here on behalf of the president testifying favorably for the president as a part of the 30 hours of testimony that -- our time the president has to make his case.

Both of you gentleman are very experienced in trial law and know that, oftentimes, people who testify are independent and don't have any dog in that hunt, so to speak. And sometimes they have biases and prejudices. And you both have made something of a disclosure before you testified.

But in the interest of further and fuller disclosure, quite frankly, Mr. Ben-Veniste, you have -- you had the opportunity to -- Mr. Craig has been here as the president's lawyer today. You had the opportunity to serve in that capacity at one time, but declined that opportunity, declined that job, did you not?

BEN-VENISTE: Well, let me say...

BRYANT: It was offered to you, was it not?

BEN-VENISTE: Let me say that my feeling about this matter...

BRYANT: (OFF-MIKE), I understand, I understand. I'm just trying to in the interest of...

BEN-VENISTE: The subject, the subject would...

BRYANT: ... full disclosure. I am not making any allegations. I just want to know -- Were you offered his job and you turned it down?

BEN-VENISTE: I think that would be an allegation. I think any individual who's a lawyer in the United States...

BRYANT: You, yourself mention this, preliminarily to your testimony, you mentioned some things I thought were fair disclosure. I'm trying to make sure that everybody understands you. Also...

BEN-VENISTE: Well, I think it's been reported in the newspaper, sir -- if I may -- that the concept was discussed with me as to whether I would come on board in some way. My view about that was that the issues of impeachment of the president are so far beyond the question of the defense of this particular president, that I would prefer and did prefer and did decide, although it would be a great honor for any lawyer to be selected as counsel in some way to the president of the United States...

BRYANT: OK, thank you. You've answered that fully.

BEN-VENISTE: ... to talk in a broader way.

BRYANT: I don't -- honestly, thank you.

WATERS (?): Let him answer his question.

BRYANT: Mr. Hamilton? No, he answered it for me, I think.

WATERS: He didn't answer.

BRYANT: I have five minutes, and I don't have time for a filibuster. Mr. Hamilton, you too have...

BEN-VENISTE: I hope I wasn't trying to filibuster....

BRYANT: ... worked in the -- as the counsel for the president for the Clinton-Gore transition team for nomination and confirmations. You were the lawyer in 1992 and 1993?


BRYANT: OK. And you also mentioned voluntarily that you defended the case somehow or you were involved against Mr. Starr in the case of Vince Foster -- you argued that case, I believe.

HAMILTON: Well, nine days before Vince Foster died, he came to see me to -- about legal representation.


HAMILTON: And I took some notes. And Mr. Starr wanted those notes. I thought those notes were protected both by the attorney- client privilege and the work product privilege.

BRYANT: I understand. People are familiar with that case, and I just simply wanted to know -- Did you, in fact, represent Mr. Foster's estate?


BRYANT: Thank you, you did.

I'm listening to my colleagues, as time goes by, talk about how we want the facts and how we've been disappointed that these nine witnesses have made essentially no presentation as to the facts and that we should wait on this 184-page document.

And as a part of that, I have quickly looked at about a third of it. And in that it says that -- somewhere along here, it says we're not going to be attacking Kenneth Starr anymore, and we're going to -- our submission to the committee is going to talk about the facts.

But just quickly in the first 50 pages or so, I counted -- we talked about sex earlier in his report -- but I counted Mr. Starr's name or the OIC or the independent counsel 42 times just in a quick glance at the first 50-something pages. I hope -- and this I guess is a message to Mr. Craig as the president's lawyer -- I hope that balance of the 130 pages are more fruitful in terms of giving us, once and for all, some defense of the president based on facts and not attacks of Kenneth Starr. I yield back the balance of my time.

SENSENBRENNER: The gentleman's time has expired. The gentleman from Massachusetts, Mr. Delahunt.

DELAHUNT: Yes, thank you, Mr. Chairman.

I think it's important to note that, in fact, we have received 184 pages of a submission from counsel for the president related to facts, related to evidence. I think it's also time to put out here as a matter of public information that members of the minority have heard that there are draft articles of impeachment that have been written by staff counsel to the majority.

And I would respectfully suggest that tonight that those draft articles be produced for the president and for minority. And if that is not the case, I stand corrected. But at least that's what has appeared in the paper, Mr. Chairman. And I am making that request a formal request.

I also want to pick up on something that Mr. Inglis has alluded to during the course of his questioning. He talks about facts, and he talks about evidence, and he suggests that, after three panels, we haven't heard from any fact witnesses. And he's correct.

And during the entire course of this committee's work, we have not heard from a single fact witness. Those panels that have been produced here by the committee chair have been very informative, but none of them have contained a single fact witness.

So we are now on the verge of making a decision of extreme gravity without having heard from one fact witness, either produced by counsel for the president or produced by the committee. And again, I want to read something in the record drafted by -- it's part of the committee report -- and it's drafted by Mr. Schippers, the chief majority investigative counsel.

And this is his language. "Monica Lewinsky's credibility may be subject to some skepticism. At an appropriate stage of the proceedings, that credibility will, of necessity, be assessed, together with the credibility of all witness in the light of all the other evidence."

Well, I wonder what stage Mr. Schippers was referring to because, as it has been stated here today, we're ready to take a vote at the end of this week. Maybe he was referring to a trial in the Senate. But since this is a House document, I presume that Mr. Schippers was referring to House proceedings.

Now having said all of that, I -- I think what I'm hearing and it is a point -- it's a legitimate point from members of the majority side -- that in their -- or in some of the individual members' opinion, they perceive grave damage to be done to the judicial system by what they suggest is perjury and obstruction of justice, despite the fact that we have not heard from any fact witnesses.


DELAHUNT: At the same time, I think it's important for the American people to understand that those school children down in Texas that Mr. Smith referred to when he read their letters, should be reassured that the president of the United States, if he has violated the criminal code, is still in legal jeopardy. He can be prosecuted if a prosecutor makes that decision. And depending on the verdict, if it should get to a jury, can be incarcerated.

The president of the United States is like every other American citizen.

You know, when we talked about Mr. Starr as a witness, he is certainly not a fact witness. And in fact, I thought it was interesting when Mr. Starr acknowledged to this committee that not only had he not participated during -- in FBI interviews, nor had he attended grand jury hearings, but he had never met Monica Lewinsky.

SENSENBRENNER: The gentleman's time has expired. The gentleman from Ohio, Mr. Chabot.

CHABOT: I thank the chairman. We just received a little while ago this 184 pages that is the submission by the president's attorney, and this is supposed to be their answer to the facts, even though none of the witnesses here essentially have really addressed the facts. It's been brought up a number of times. But this is supposed to talk about the facts and clear up everything.

On page 77, and I haven't had a chance, and I doubt whether any other member has had a chance to read the whole thing, but on page 77 in the president's attempt to clear up this whether he was alone with Ms. Lewinsky, and he of course had indicated that he couldn't remember; he wasn't alone with her. Their explanation of clearing up why he -- the president's submission in here indicates -- this is their statement: "The term 'alone' is vague unless a particular geographic space is identified."

That's supposed to clear up the definition of "alone." Let me read that again: "The term 'alone' is vague unless a particular geographic space is identified."

Mr. Ben-Veniste, let me ask you. Can our system of justice work at all if witnesses parse words like this? When the common sense meaning like "alone" ought to be pretty clear? BEN-VENISTE: I agree that there has been too much hair-splitting and too much parsing of language in all of this. But can I say that surely the question of whether the president said he was alone or not alone on a particular day with a particular individual with whom he was having a consensual relationship, cannot in the wildest expansion of the concept of high crimes and misdemeanors justify the impeachment of the president and I...

CHABOT: And I would agree with you if it was just that...

BEN-VENISTE: I agree with you in connection with your frustration over this parsing of language.

CHABOT: And I would agree with you if it was only that one lie about whether or not he was alone with her. But there's a whole series of lies. I've only got five minutes, so let me get on.

Mr. Hamilton, in your opening, you claim that the president's conduct should not be impeachable and I quote "because other presidents have not been candid." Isn't this an argument for impeachment? Don't we want our presidents to be honest, rather than giving them the opportunity, for example, to lie before a grand jury or lie to federal judges?

HAMILTON: Congressman, I think I said that I don't find the president's conduct impeachable for a variety of reasons, principally because it's not a great and dangerous offense against the state. But surely we don't want our presidents to lie; our congressmen to lie; our senators to lie. But sometimes they do, and I think the question is: When we find that they have, do we want to initiate impeachment proceedings?

I think there's some judgment that comes in here, some proportionality.

CHABOT: Certainly, there does have to be judgment. And you indicate -- let me quote, the full quote that you had in here, you said that "...lying to the public and to his Cabinet and aides is disgraceful, but if we would impeach all officials who lie about personal or official matters, I fear that the halls of government would be seriously depleted. Other presidents, for example Lyndon Johnson as to Vietnam, have not been candid in their public and private statements."

Now, the president said, for example, that he'd pull the troops out of Bosnia in a year. That was three years ago. They're still there. I don't think that's impeachable. But he was not testifying before a grand jury. He hadn't raised his hand and sworn to tell the truth, the whole truth, and nothing but the truth. And that's the whole point here -- is that this president apparently lied under oath and committed perjury. And that's why many of us are seriously considering whether or not this president should be impeached and removed from office.

I yield back the balance of my time.

SENSENBRENNER: The gentleman's time has expired. The gentleman from Florida, Mr. Wexler.

WEXLER: Thank you, Mr. Chairman. If we accomplished one thing today, I think we've accomplished something important. And that is, that many instances today, the majority members have talked about the fact that the president has not presented any exculpatory facts.

Well, it's been referred to earlier, but here it is, 184 pages. And if I'm getting a sense of it, from page 54 on, the great bulk of the testimony of the president's counsel relates to specific rebuttal, specific factual rebuttal, of the claims against the president -- that the president did not commit perjury, that the president did not obstruct justice, that the president did not tamper with witnesses.

And in analyzing some of the president's counsel's response, I would like to address the issue of perjury because that's the issue that seems to have captured the imagination of most of the Republicans in the House.

And let's talk about what that perjury, alleged perjury, is at the grand jury. The president admitted to an inappropriate, intimate relationship with Miss Lewinsky at the grand jury that was physical in nature. He acknowledged that his conduct was wrong.

What the president denied at the grand jury was having sexual relations with Miss Lewinsky only as that term was defined by the Jones lawyers and substantially restricted by Judge Wright.

The president failed to go into the details of his encounters with Miss Lewinsky. And he did testify that he did not have sexual intercourse or sexual relations as defined by the Jones deposition. Mr. Schippers, the Republican counsel for the committee, in his presentation to this committee, analyzed that the disdiscrepancy between the testimony of President Clinton and Miss Lewinsky over the precise nature of the physical contact involved in their relationship -- that was the basis for an allegation that President Clinton perjured himself before the grand jury.

I would respectfully summit that the American people understand full well what an affair entails. They understand it's not going out for coffee. And what the American people need to understand and what I'd like Mr. Ben-Veniste for you to address to the American people and to those so-called moderate Republicans that have yet to make up their mind -- What is this perjury before the grand jury about?

Do I have it right? Is it about the discrepancy of the great detail of Miss Lewinsky as opposed to the admission by President Clinton that it was wrong, that it was a physical relationship, that it was intimate, but he didn't tell us all the precise details? Is that what the perjury is all about?

BEN-VENISTE: It seems to be. It seems to be what the perjury is all about -- what the claim of perjury is all about. And I have to say that, if that's what it is, then simply using the word "perjury" does not convey the discrepancy between what remedy you were you are talking about. That is to disenfranchise all of the United States in its elected president, taking away their vote, nullifying it, and saying -- He cannot be president anymore because he did not testify to these details in the grand jury. To me, that is mind boggling.

WEXLER: Thank you very much.

SENSENBRENNER: The gentleman from Georgia, Mr. Barr.

BARR: Thank you. Indeed, that might be mind-boggling, but that's not the situation we're faced with, Mr. Ben-Veniste. You know very well that essentially what we're faced with here is not simply a statement about an improper sexual conduct in an argument over the plain meaning of language regarding a court definition, but whether or not it's appropriate for a president to make statements in court for the purpose of either establishing or not establishing a pattern of activity that is deemed relevant to a lawsuit involving the civil rights, the constitutional rights of a citizen.

So, you may, along with your colleagues on the other side of the aisle keep simply saying that this is about a particular statement, but it really isn't. Mr. Hamilton, I find, similar to other statements that we've heard here, rather disturbing, you say in your statement that the president lied, that he unlawfully invoked executive privilege repeatedly, abused power and so forth, yet these don't rise to the level of an impeachable offense. and I'm sure that we could engage in a discussion for the entire remainder of my five minutes, and I'm not going to convince you otherwise.

It just strikes me as odd that learned attorneys, who have extensive experience in representing parties, including the United States in court, believe that it's appropriate for a president, not just an average citizen, but the president of the United States of America, in your opinion, lies under oath, unlawfully invokes executive privilege, commits abuse of power, yet should remain in office. That just...

HAMILTON: Congressman Barr, I did not say it was appropriate for the president to lie under oath. You're mischaracterizing my statement.

BARR: Oh, really? Well, then, how, the only way we have under the Constitution, Mr. Hamilton, unless you can pull out your copy of the Constitution and show me otherwise, to remove a president is impeachment. And you're arguing that we should not impeach the president. Therefore, you are denying to us, you're saying the one method that we have of removing a president for these things which you agree he committed should not be available, then yes, by implication, you are saying that that president should remain in office.

We don't have any other way of removing a president from office for these sorts of abuses of office. Censure, even if we censure the president in the most horrendous language possible, called him all sorts of names, would not remove him from office. Even if we reprimanded the president in the most horrendous terms, it would not remove him from office.

I would certainly presume that you would agree that the only method in our Constitution, the only method available to us, because we can't control whether a president resigns or not, to remove a president for whatever the behavior is that we believe is impeachable is impeachment. Is there some other way...

HAMILTON: Short of disability.

BARR: ... of removing a president in our constitutional form of government?

HAMILTON: Well, you have a way if he's disabled.

BARR: Pardon?

HAMILTON: If the president is disabled, there's a way.

BARR: Well, we're certainly not contemplating disabling the president.


BARR: I mean, maybe you have some...

HAMILTON: You asked me a question, whether it was the only way, and my answer is that if the president is disabled, there's another way.

BARR: Well, that's sort of silly. I mean, there are provisions in our Constitution that address a president who is disabled. That is not a method of removing a president from office that's available to us. I certainly would never contemplate that anyway.

But what I'm saying is it really does strike me as very, very odd for you all, and you're not alone, I mean, I know there have been many defenders of the president that have sat in those chairs today, and in the prior hearings that we had, and I'm sure we'll have more tomorrow that will sit in those same chairs and admit that the president lied under oath, that he abused office.

I commend you for at least recognizing that he has unlawfully abused the privileges available to him, such as executive privilege. Many of your colleagues won't even admit that, but yet then say that this president should remain in office. And particularly, with somebody with a distinguished career, who has represented the United States of America, both of you, that really does strike me as odd. And I think that sends a very, very bad message to the country.

That, I think, Mr. Ben-Veniste, is what does damage to our country's reputation and the ability of our president to conduct foreign affairs, not the fact that we might remove him for those sorts of behaviors.

BEN-VENISTE: Well, if you have some actual, empirical evidence of that, that would be contrary to what I hear when I talk to foreign nationals about what is going on in this country.

BARR: Well, my empirical evidence is the same as...

BEN-VENISTE: And indeed...

BARR: ... is the same as yours.

SENSENBRENNER: The gentleman's time has expired. The gentleman from New Jersey, Mr. Rothman.

ROTHMAN: Thank you, Mr. Chairman. I'd like to get back, if I may, to what I believe these hearings are all about. We've heard a great deal of conversation from my friends on the other side of the aisle that what these offenses are all about and what we should do about them has to do with whether we're going to enforce the rule of law in America or not and whether we're going to send the right messages to our children and to others involved in the justice system as litigants or defendants.

I agree that the rule of law is important, critically important to our system of justice and our way of life in a civil society. That is why there are penalties -- civil and criminal penalties. I dare say to my friends on the other side of the aisle who trivialize what President Clinton is going through and think that he might be a model to those who would avoid telling the truth the following.

The president of the United States has just agreed to pay Paula Jones and her lawyers $850,000 for his misconduct during the Paula Jones matter. Is that a -- is that an incentive for people to lie in a civil litigation or not to tell the truth in civil litigation? The president didn't get away with anything there, did he?

The fact that President Clinton is still subject, when he leaves office, to being criminally charged for any of the charges raised by Mr. Starr and could go to prison for his misconduct, his alleged misconduct. Is that an incentive for people not to tell the truth, the whole truth and nothing but the truth under oath? Of course not.

So all of the incentives to uphold the rule of law are there already. We're not talking about whether we want our kids to respect the truth. It's there already and will be applied against the president. What we're talking about is what we're responsible for -- upholding the Constitution. And the Constitution says how the president gets hired, elected and gets fired.

Treason, bribery and other high crimes and misdemeanors, and we have to decide whether the president's conduct -- not to be punished because it has already been punished and may very well be punished criminally in the future. We're deciding whether, as a nation, we must remove the president.

So I dare say that the arguments about upholding the rule of law, we've already taken care of that discussion. One could argue that the penalty of impeachment and removal far exceeds the crime and that censure is a better approach.

I have not yet made up my mind up on the charges raised made by Mr. Starr. The hearing has not been concluded. But I will say to you this: That in my judgment a clear and convincing standard of proof must be met about those who would seek the president's impeachment and removal and that it, of necessity, requires fact witnesses when the testimony relied on by Mr. Starr, by Judge Starr, is equivocal, is ambiguous, is contradictory and is qualified, as the president's counsel has addressed.

So we have the one prosecutor, Mr. -- Judge Starr say the witnesses say this, and it means this. You have the president's counsel say the witness said this and mean this. And we're left to decide in the middle.

Let me say that we are founded by a nation of those who were loathe to take the word of government officials only, and they gave our people -- put the burden of proving guilt on the accuser and did not require the accused to prove his or her innocence. To put the burden of proof on the accused -- in this case, President Clinton -- is not only to subvert the Congress's impeachment power, but 200 years of American justice.

I yield back, Mr. Chairman.

SENSENBRENNER: The gentleman's time has expired. The gentleman from Tennessee, Mr. Jenkins.

JENKINS: Thank you Mr. Chairman. And gentlemen, thank both of you for being here. It has been a long day. We've had -- you're now the third panel who's been here. Two very good lawyers testifying, not representing, testifying for the president of the United States here today.

JENKINS: And as I understand your testimony, both of you think that the president has engaged in wrongful conduct, is that correct?



JENKINS: Both of you think that the president has violated the law?


JENKINS: Perhaps?

HAMILTON: Certainly his testimony is most troubling.

JENKINS: And perhaps, and testimony is most troubling. Both of you, in any event, believe that some remedy for this situation is appropriate?



JENKINS: Both of you believe that. And you have talked about censure, fines, and reprimands, and perhaps one or two other possible remedies. Now, to follow up on what Mr. Barr was asking, and I'll try to leave time for you to respond to this, but I am concerned, in reading the Constitution, that the Constitution says that in the event there is a violation, that the remedy for that is removal from office.

Now some people don't like to call it a remedy. Some don't like to call it punishment, but whatever you call it, the Constitution provides that removal from office is the appropriate action to take. Now I'm not directing this at you, but this entire day has reminded me of that lawyer's strategy that's used across this land, whereby if the law is against you, you argue the facts. If the facts are against you, you argue the law. If the law and the facts are both against you, then you attack the prosecutor, and certainly, the special counsel has been attacked time and again in this room.

And now, the very resourceful Washington lawyers have added a new dimension to that, and in addition to attacking the prosecutor, they have said well, tell how bad Watergate was. So, if I ever get back to practicing law, I may use this down in Tennessee.

But my question to you is do you not have any concern, either of you, for what the Constitution says insofar -- and we don't know what's going to happen, it may never get to the point where there is a remedy employed, and that will resolve that question. But in the event that this proceeding gets to the point where there must be some remedial action taken, then do neither of you have any concern for the words of the Constitution that say that removal from office, and that additional option of not ever holding public office again, do you not have any concern for that?

HAMILTON: Mr. Congressman, clearly that is a remedy that is set forth in the Constitution. That doesn't mean that there are not other remedies. The House is governed by a rules manual. If you look in the first pages of that manual, there is something that is called Jefferson's manual, that was written by Thomas Jefferson when he was the vice president and was, therefore, the president of the Senate.

And in Jefferson's manual, he says that a resolution is a way that a House can express its opinions, its purposes, and its principles. And if you look in the footnote that's written by the parliamentarian of the House, the parliamentarian says in modern practice a concurrent resolution is the means by which the Senate and the House express their opinions...

JENKINS: Well, certainly, the House can pass...

HAMILTON: ... and their purposes and their principles. So there is a legitimate way to do it. It has been recognized since the time that Thomas Jefferson was vice president, which was before 1800.

SENSENBRENNER: The gentleman's time has expired.

JENKINS: Thank you, Mr. Chairman.

SENSENBRENNER: The chair is aware of two members that wish to make requests to include material into the record. The gentleman from Georgia, Mr. Barr.

BARR: Mr. Chairman, I move to include a letter I'd given to the chairman at the same point as the letter from Mr. Conyers.

SENSENBRENNER: Without objection. The gentleman from Virginia.

GOODLATTE: Thank you, Mr. Chairman. I'd like to introduce a newspaper article from Sunday's Washington Times.

SENSENBRENNER: Without objection. Are there any further requests to include material in the record?

(UNKNOWN CONGRESSMAN): Mr. Chairman, I would ask that the Wall Street Journal article of today's date by Henry Ruth (ph) be included in the record.

SENSENBRENNER: Without objection. Further requests for material in the record? The gentlewoman from Texas.

JACKSON LEE: Thank you, Mr. Chairman. I have two articles that I'd like to have submitted -- one dated November 26, 1998, "House Panel Reportedly Draws Up Clinton Impeachment Charges," and one dated November 28 1998, "Impeachment Articles Being Drafted." And Mr. Chairman, I would like to summit...

SENSENBRENNER: Without objection, they're included.

JACKSON LEE: Thank you very much, Mr. Chairman. I'd like...

SENSENBRENNER: From California, Mrs. Waters.

JACKSON LEE: I have one other document. I'm sorry, Mr. Chairman. I'd like to summit in its entirety the Constitution of the United States of America, which does not denote any prohibition on censure.

SENSENBRENNER: I believe the committee has already printed that, but...


SENSENBRENNER: Objection is heard. Gentlewoman from California have a request?

WATERS: Yes, Mr. Chairman, I'd like to take you up on your offer to place my questions to the chairman in the record about his past comments on (OFF-MIKE).

SENSENBRENNER: Now, you're talking about the real chairman, not the acting chairman.


WATERS: The real chairman. The real chairman. I haven't found any on you yet.

SENSENBRENNER: The chair will put the question without objection.


For what purpose does the gentlewoman from California...

LOFGREN: Unanimous consent to summit to the record my two letters to Mr. Starr and my letter to the attorney general relative to the three questions and my seeking of answers to those.

SENSENBRENNER: Without objection. Anybody else? Going once, going twice. The gentlewoman from California.

WATERS: Yes, I'd like to submit the L.A. Times article that I referenced by Mr. Savidge (ph) relative to 1987 and the comments by our chairman, the real chairman.

SENSENBRENNER: Without objection. And the gentleman from Wisconsin has been very patient and is recognized...

JACKSON LEE: Mr. Chairman, I seek a clarification. It was noted that the Constitution is already cited in the record of these proceedings. Is that accurate, Mr. Chairman?

SENSENBRENNER: I said the committee has already published the Constitution elsewhere.

JACKSON LEE: All right. Well, then I will get review on this and raise the question again tomorrow. Thank you, Mr. Chairman.

SENSENBRENNER: OK. Then that request is with drawn without objection. And now, the gentleman from Wisconsin, Mr. Barrett.

BARRETT: Thank you. Thank you, Mr. Chairman. Several of my colleagues on the other side of the aisle have been keeping score tonight and have said that this is the third panel where we haven't had a material fact witness on behalf of the president, and they're absolutely correct.

Now, at the end of three months -- if you're keeping score, as they have -- there have been zero material witnesses to push this investigation and zero material witnesses, fact witnesses, against it. The score remains zero to zero, which sort of highlights the bizarre nature of this proceeding that we have heard hours and hours of testimony, talked to ourselves for hours and hours and still have not heard from a single individual who was supposedly involved in this.

That points to some of the problems with the impeachment. I just want to take a minute or two to talk about my perception as to why we're having problems here. I think there are three reasons why the American people are opposed -- at least the majority of the American people are opposed to impeachment.

I am going to advance first the one that I hear most often from my Republican colleagues, and that's that the economy is doing well. The stock market is doing well. People are working. And that might be true. I must say I never thought that I would hear my Republican colleagues in Congress being frustrated by a good economy. But certainly, I think that's part of the reason, that the economy is doing well. Inflation is low. Unemployment is low. And darn it, it was that Democratic president who was in office when that happened.

The second reason, and the one that I hear least often from my colleagues here, is that the American people think there's something wrong here. There's something going on. It can be characterized as attacks on Ken Starr. I frankly prefer to center my attention on Linda Tripp because I think that she is the one that, in many aspects, is the focal point here.

And I don't think it's necessary to hold Ken Starr's office culpable for the mistakes. But when you have a situation where the cooperating witness for the independent counsel is also working very, very closely with the attorneys for Paula Jones, there's something wrong here.

And when we are doing something as grave as talking about setting aside the only national election in this country, and there are questions about her role and the role that has been played by the political enemies of the president, in some respects, I think that that's a greater danger to democracy than anything we're talking about here tonight.

The third reason I think is that many Americans think that these are not impeachable offenses. And I was at home over the weekend, and I wanted to buy some hot ham on Sunday, and the grocer said to me, "I'll tell you, the president screwed up," and his language was much more colorful than that.

BARRETT: But he said the president screwed up. But the question is: Was it Bill Clinton the president or Bill Clinton the man? And he said: I think it was Bill Clinton the man who screwed up, and we should deal with it. It wasn't Bill Clinton the president.

And as you analyze what should be an impeachable offense, I think you can take a piece of paper and draw a line right down the middle. And on one side, you can put offenses against the body politic; offenses against our democracy -- those that we talked about in terms of Watergate. And I think that most of us would agree that those are offenses that are impeachable.

On the other side of the ledger, you have offenses that are committed by a person, and I've heard individuals talk about murder. I would think that murder would be an impeachable offense even though it is not an offense against the state. That's sort of at the high end there, even though it's committed by the person. At the low end would be jaywalking, and (OFF-MIKE) talk about that.

But in the middle you have perjury, and you've got perjury for things like murder, but then you have people who say that their odometer was wrong on their -- when they got a speeding ticket. If that were the case, we'd have a lot more malpractice -- we'd have a lot more product liability suits against odometer makers than we have. But people are lying there, and I think there's a gray area.

So what it comes down to is what's the best thing to do for this country? And there's not a single person that I have yet to talk to who thinks the president's going to be removed from office. So then it comes down to -- We're going to slap him in the face. We're either going to slap him in the face with censure or impeachment. Impeachment drags this matter out for several months, divides the country. Censure, also a slap in the face, both have only been done once in this nation's history, so in both instances we're either going to censure the president for the second time in this country's history, or we're going to impeach the president for the second time in this country's history.

I opt for censure, which I think is the least divisive or the less divisive of the two. And I would yield back the balance of my time.

SENSENBRENNER: The time of the gentleman has expired. The gentleman from Arkansas, Mr. Hutchinson. HUTCHINSON: Thank you, Mr. Chairman. I want to first make reference to my friend from Virginia Bobby Scott. He has mentioned twice today a question and a statement that I had made to Mr. Craig, the White House counsel, the president's counsel. I was providing with specificity at his request, really, what the concerns I had on perjury. So the whole idea was not to bring up a new area. It was to be very specific and respond to his request.

There's been some questions asked about the evidentiary record in this case. And I want to make it clear in my own judgment, I believe it's clear that this committee has the burden of proof. There's not any question about that -- that if the House goes forward, the president has no burden of proof. It's this body that has the burden of proof, and it's not in my judgment "by preponderance." It should be a high standard because we're talking about impeachment of the president of the United States.

And so as I look at these facts, the burden of proof is on those who wish to go forward with articles of impeachment. And we should make that perfectly clear and it should be a high standard.

Now, the evidentiary record on perjury -- I don't know that there's a whole lot in dispute here. It appears to me that there's a growing consensus that the president lied under oath. Now, there's a debate as to whether this is legally perjury or whether it's simple lying under oath, and the consequences of that. But I think the facts, there's a growing consensus on. We don't need to have a whole lot of witnesses on that, if any witnesses. The record is clear.

Obstruction is a little bit more difficult. You have to look at a lot of common sense. You have to apply other evidence to support the particular witnesses in the case. And you have to analyze that more.

But let me go to the questions about perjury. I think this is an extraordinarily serious area. And the questions have been raised about Mr. Starr, about Linda Tripp, about other questions about the inquiry. And to me, it comes down to: Whenever the president testified in front of the judge in the civil deposition, the federal proceeding, he had a choice to make -- either to tell the truth or not to tell the truth.

And regardless of what has happened in the investigation; the Paula Jones lawyers -- when it went to the grand jury, Alan Dershowitz and everyone else was writing him -- Whatever you do, tell the truth to the grand jury; it could very well cost you your presidency.

He had a choice to make and blame it now on Starr or blame it on Linda Tripp really is not helpful to it. And I think that you all would agree as lawyers that he cannot excuse a decision he made, if he made a decision not to tell the truth, on anything else but his own decision. Is that fair?

BEN-VENISTE: The question all the way up to the grand jury -- there are two things. One, he had ...

HUTCHINSON: You better answer it quick.

BEN-VENISTE: ... he had another choice, and that was not to respond in the civil deposition ...


BEN-VENISTE: ... and to take an appeal and to take that up. In connection with the grand jury, I again question the materiality and indeed the entire basis for claiming that perjury was committed because maybe I'm missing something ...

HUTCHINSON: I agree. That's a legal question there that we can debate. That's not conceded. Materiality -- all those issues on perjury -- you can debate.


HUTCHINSON: But the truthfulness, the decision to lie or not is the president's decision -- either answer or don't answer; tell the truth or don't.

BEN-VENISTE: That's true.

HUTCHINSON: And would you agree Mr. Hamilton?


HUTCHINSON: Now, I'm going to run out of time here in just a few minutes, but I want to thank you gentlemen for testifying. Quite frankly, I've wanted to hear you because I have high regard for both of you. But you're put in an awkward situation to help us make a decision and you have no information that will help us make that decision.

But it's -- I respectfully receive it.

HUTCHINSON: And we're getting down to the lick-log in this case, as they say on the farm in Arkansas. And we've got to make a decision. It's not an easy one. And I thank you all for testifying.

I wanted to end with the 1974 -- since we spent so much time on that -- quotation from a member of Congress whenever he said in his remarks to this committee. "But I'm to say tonight that most of the people in my own state of Arkansas are law abiding citizens who believe strongly in the rule of law of this country, and that all of the people of this country have an obligation to live by that standard of law. And that the leaders of this country have an obligation not merely to obey the law, but to set an example of justice, an adherence to justice upon which our free government must be based. There can be no national interest greater than the requirement that the public servants must be bound by the laws that they make an administer." That statement was made by representative Ray Thornton of Arkansas who's now on the Supreme Court of Arkansas.

And I reflected on that last night. I think that's still the attitude of the people of Arkansas. I just wanted to bring that to everyone's attention.

SENSENBRENNER: Gentleman's time has expired. The gentleman from Indiana, Mr. Pease.

PEASE: Thank you, Mr. Chairman. Mr. Ben-Veniste, you discussed early in your prepared remarks your suggestion that it would be appropriate and constitutional for the Congress to reprimand the president for his personal conduct. Without getting into the parsing of words again, what do you mean when you say, it would be appropriate for us to reprimand the president for his personal conduct?

BEN-VENISTE: By which I mean to make the distinction between the meaning of high crimes and misdemeanors in the category of treason and bribery, versus the conduct with which you are now struggling. And it seems to be entirely proportionate, reasonable and in the greatest interest of this country to apply a common sense and moderate approach to the conduct in question and the kind of remedy with which you will deal with that conduct. And in my view, a reprimand -- be it a censure, be it a rebuke, but a formal declaration of disproval of the conduct -- is the appropriate remedy.

PEASE: I understand that. My question still is when you say, well let me back up. I'm not interested in us addressing in a reprimand, a censure, an impeachment, the president's personal contact whatever it may have been, with Ms. Lewinsky. I do think it is appropriate for us to address the question of his behavior before judicial proceedings in their various forms. That's the distinction that I was getting at.

BEN-VENISTE: All of that, all of that conduct, if I may, flows from his personal conduct. He appeared in his personal capacity and before the lawyers and the judge in the deposition in the civil matter. He appeared in his personal capacity before a grand jury. And I think that's the distinction. Were he to have lied about the misuse of power, say he had someone on this committee, Mr. Barr for example, audited by the IRS, or had his phone bugged by a plumber's unit or broke into a psychiatrist's office for the purpose of obtaining records...

PEASE: I think I understand, I understand your distinction.

BEN-VENISTE: All of those things would indeed rise to a level of scrutiny. Thank you.

PEASE: Thank you sir. Mr. Hamilton, can you in your prepared materials, you discussed the issue of abuse of power and you I don't recall that you got into the question of executive privilege. But can you explain for us briefly your understanding of that concept?

HAMILTON: Well I did get into it, in my prepared statement. There are several types of executive privilege. But one type is what they, what is called the deliberative privilege. When the president speaks with his aides to obtain their advice, that conversation is presumptively privileged. That by the way, is what the District Court found that those conversations were presumptively privileged.

HAMILTON: Now the court went on and found that the needs of the criminal justice system outweighed the president's presumptive privilege, and so the court ordered the conversations and the information to be turned over.

This is essentially what happened, by the way, in the Watergate situation. The Supreme Court found that President Nixon's tapes were presumptively privileged, but the needs of the criminal justice system, in this case, the need in a trial, outweighed that.

PEASE: Thank you. Can you help me understand how on the one hand it can be argued that the president's behavior, his conduct was purely personal, but yet he asserts executive privilege about behavior that he also contends is purely personal?

HAMILTON: Well, I was not obviously in the conversations, and some of this information was in a sealed transcript. But I understand that certain of these matters, the Lewinsky matter and all, was discussed in the White House in determining what official actions the president was going to take. It had some ramification. And I can't give you any details on that. Maybe that's a good question you can ask Mr. Craig tomorrow.

SENSENBRENNER: The gentleman's time has expired. The gentleman from Utah, Mr. Cannon.

CANNON: Thank you, Mr. Chairman. I'm going to begin by agreeing with my friend, Mr. Barrett, that we actually have a good economy with a Democratic president. And I'd like to point out that that fact, the fact that the economy is going well, in spite of a Democratic president, is maybe the best case, the best case for not exaggerating the threat of impeachment proceedings to the country.

Now Mr. Ben-Veniste, I -- did you know that Sam Dash was going to resign before that, from the office of independent counsel, before that became public?


CANNON: You did not. Now one of the really nice things about being at the end of the panel besides being, going through a long process is that you get to sort of put things together as we go. And frankly, I'd like to speak to a couple of points made by my good friend, Mr. Rothman, who pointed out first of all that the president is going to be punished to some degree with $850,000 in the, and humiliation -- $850,000 penalty in the Jones case. And that should teach children that perjury is not appropriate.

May I just point out that I don't think this is about punishment. Secondly, in the case of the $850,000, the president may have decided to do that because of the box he's in publicly, but I think that went to settling the base case with Ms. Jones.

Mr. Rothman then talked at some length, and I agree with much of this, about the rule of law. But let me suggest here that the question is not the rule of law, or not having the rule of law, but rather, the kind of weight that we give here to perjury.

There's been a great deal of comment today that we've heard about what happened in the Watergate circumstance, situation, and that has established what I would call a very high bar for impeachment. And I might say that this bar seems to be a lot more clear today after 24 years after having come to a national consensus that what went on was wrong. I recall distinctly during the time how vicious and partisan that all was.

On the other hand, we have a great deal of talk also about an alternative, and that alternative would be some kind of censure. The bar with censure is actually quite low. Now you may raise that bar a little bit by talking about a penalty, but of course, it can't, you can't penalize the president unless he agrees.

And you may also have him come and stand in the well of the House and debase himself before the House, something that I think would do great damage to the office of the president and not be appropriate. I find myself at this time really searching for where we ought to go, and I think that most Americans who care about these proceedings are also looking at some of these same questions.

Interestingly, the facts are not really in question. We talked about zero for zero with fact witnesses, but we do have a prima facie case. We have a case that's been made, and many people have acknowledged that. Essentially, Father Drinan said even if true, these actions wouldn't be impeachable.

Both of our current panelists have talked about or acknowledged wrongdoing on the part of the president. Mr. Owens earlier admitted that the president, or said that he thought the president had lied to the grand jury and had lied in the civil action by Paula Jones. He also said earlier from that that the facts are pretty clear, by which I think he meant that the president had actually committed perjury.

Those people who support the president have variously called his behavior deplorable, I think is the term Ms. Jackson-Lee has used, reprehensible is the term that Wayne Owens used, sinful is the term that Mr. Craig used, obscene has been used, morally wrong, indefensible, inappropriate and improper.

CANNON: All these pejoratives from the supporters of the president imply sex rather than perjury, I might say, and I think there's an attempt when we use those kinds of terms to avoid the real issue here, which is I believe perjury.

Frankly, in trying to tie these issues up, Mr. Owens looked at the Republicans and sort of blamed us for people becoming aware of some of the president's most lurid actions, when it was in fact the vast majority of all of Congress who voted for the release of the documents that made those actions by the president public.

Professor Drinan pointed out that one of the major differences between this hearing and that of 1974 is that Republicans are in the majority. I would suggest that the fact that Republicans joined Democrats in 1974 says more about Republicans then and Democrats now than it does about the difference between crimes of President Nixon and the ...

SENSENBRENNER: The gentleman's time has expired. The gentleman from South Carolina, Mr. Lindsey Graham.

GRAHAM: Thank you. Where did Mr. Rogan go? OK.

SENSENBRENNER: Mr. Rogan is ill and went home.

GRAHAM: OK, I'm sorry. I'm sorry. I apologize.

(OFF-MIKE), you made some statements that really, Mr. Ben-Veniste -- is that right?

BEN-VENISTE: Yes, it is.

GRAHAM: ... that I think I understand what you're saying about the type of things you'd want to impeach a president for, and the type of abuse of office that becomes threatening to the public.

If a president focused on a political enemy or someone that could affect the president adversely and started using the power of the presidency or the power of the government against that small individual, that would trouble you, right? Watergate-stuff -- is that correct?


GRAHAM: If he wiretapped an individual ...


GRAHAM: ... somebody that was a potential threat to his political interest, personal interest, monetary interest. Let's just say political interest. Or they got the IRS to kind of audit that person -- then that really bothers you, doesn't it?

BEN-VENISTE: I think that's an abuse of power. Yes, sir.

GRAHAM: If I can show ...


GRAHAM: ... if I can show -- if I can show a reasonable fact pattern that suggests such an event occurred with Bill Clinton, would you have a different opinion about this is being a little more than about sex?

BEN-VENISTE: I'm certainly willing to listen to your argument.

GRAHAM: OK. Well, you just need to tune in tomorrow.


GRAHAM: Let me ask you this. About his perjury -- about the body parts being contacted, I think most of us really believe if that's all there is to this, let's just let it go. Count me in that category. Count me in that category. We'll do something to him other than impeach him.

When the president, according to Ms. Currie, came to her after his deposition testimony and made these statements, do either one of you know what he was trying to do? Here's what she claims he said. "You were always there when she was there, right? We never really -- we were never really alone. You could see and hear everything." This is really important -- "Monica came on to me and I never touched her, right? She wanted to have sex with me and I couldn't do that."

What do you believe the president was trying to do when he made those statements?

BEN-VENISTE: I don't know.

GRAHAM: OK. Thank you. I yield back the balance of my time. We'll talk about this tomorrow.

HYDE: And finally, last and certainly not least, the gentlewoman from California, Ms. Bono.

BONO: Thank you, Mr. Chairman. I always get the same introduction every time.

Mr. Ben-Veniste, I want to address this to you, actually.

BEN-VENISTE: It's hard to see you. BONO: I know. I'm -- can the court reporter slide back just -- I'm sorry. Thank you.

BEN-VENISTE: How are you this evening?

BONO: Fine. It's nice to -- we were on a panel together. You were in New York. I was here in Washington. We didn't get to complete our dialogue, so I'd like to do that now, if I may, without Larry King present, unfortunately.

But I am curious which tape you saw first between the Paula Jones deposition or the videotape of the grand jury testimony.

BEN-VENISTE: I don't think I've seen any tape of the Paula Jones deposition.

BONO: All right, so you just read the transcript?

BEN-VENISTE: No, I have not. I'm not sure that I read the entire transcript.

BONO: But you read parts?

BEN-VENISTE: No, I did not.

BONO: You've read parts of the transcript in the Paula Jones...

BEN-VENISTE: I've reads parts that were reproduced in the Starr report.

BONO: You know, my question is not going to be legal. Obviously, these brilliant minds -- I leave that up to them to do that argument. By the time it gets to me, Mr. Graham and I have questions and questions that are great and written, and we lose them. And by the end of, you know, 37 people, I'm stuck with what's left in my gut.

BONO: My question for you is, you have read parts of the transcript. I don't know that many Americans have read even that much of the transcript of the Paula Jones testimony. But I'm wondering, if you believe that if the American people saw the testimony of the deposition before the Paula Jones case, if they might feel differently about the perjury case, if they would when they saw the president lie, if they juxtaposed the two -- Paula Jones-grand jury -- how would they feel then?

Would they be more inclined -- would the poll numbers be different than they are?

BEN-VENISTE: Well, when I saw the president's testimony before the grand jury on videotape and I listened to what people were saying, I think they understood that the president was reacting as a human being, who had done something about which he was ashamed and which was a very human reaction.

I think the idea of not disclosing a personal relationship with an individual with whom he should not have been having that relationship was troubling to him and I think it's quite clear that he did not want to tell anybody about it in connection with that very highly politicized Paula Jones case. Whatever that was, dismissed by the court now, the tangential matter of Ms. Lewinsky, which the court ruled was not central to Ms. Jones' allegations against the president was something that the president really wanted to evade talking about.

And I don't think he did it the right way. And I don't think it is appropriate to lie in depositions. But it happens every day -- every time there is a civil case in which one party says X and the other party says Y, one says black, one says white. Usually, after all of that happens, the matter goes to a trial if it's not settled before that, and then a jury decides -- was it black, was it white, was it X, was it Y.

And then the loser loses, the winner wins, and no one gets prosecuted for perjury.

BONO: All right. Can I just jump back into my original question? I think it's a good one. I really do.

If the American people saw both testimony -- the president in both situations -- would they feel differently? Would the polling numbers that are so important to the Democrat side of this aisle -- would those numbers be different if they actually saw the president lying to them? BEN-VENISTE: I don't think I can answer your question, as much as you've worked on it. It has a lot of parts to it. And I think we'll just have to see. And I am thankful that you are the last person to question us this evening.

BONO: Thank you very much. We all appreciate your time.

BEN-VENISTE: Thank you.

BONO: And thank you, Mr. Chairman.

SENSENBRENNER: The gentlewoman yields back the balance of her time.

The chair is about ready to make the most controversial statement of the day. The committee stands recessed until 8 a.m. tomorrow.


Investigating the President


Wednesday, December 9, 1998

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