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Transcript: Closing arguments by Democratic chief counsel Abbe Lowell
House Judiciary Committee hearing, December 10, 1998
ABBE LOWELL: (OFF-MIKE) on behalf of the minority staff, all of my colleagues who are in this room who have worked so hard over the last three months. I appreciate this chance to present our work.
Two months ago, on October 5th, you allowed us to address you on the issue of opening an impeachment inquiry. And we will be referring to parts of that presentation in order to demonstrate that this committee does not have constitutional grounds to put forward the impeachment of the president of the United States.
This week, Mr. Chairman, you brought the committee's attention to and quoted historian Arthur Schlesinger from his 1980s book which dealt with the type offenses that were in Watergate.
Rather than using his quotes about those very significant excesses of President Nixon, I think it would be better to cite what Professor Schlesinger said on November 9th, right here, about the insignificant offenses of President Clinton.
He said, "Lowering the bar for impeachment creates a novel, revolution theory of impeachment, which would send us on an adventure with ominous implications for the separation of powers that the Constitution established as the basis of our political order. It would permanently weaken the presidency."
With the time I have today, Mr. Chairman, I would like to first set out the framework for an impeachment. In other words, I'd like to address the questions of what an impeachment is, and what it is not.
Second, I will take some time taking you through what you have designated as the evidence to demonstrate that there are no clear facts on which to base such an action.
Third, I would briefly compare the facts against the constitutional requirements that an impeachment may proceed only for high crimes and misdemeanors and only on the basis of clear and convincing evidence.
And fourth, I would like to further explain how to process used in this matter should cause this committee to have second thoughts about proceeding with the third impeachment in American history.
There has been a lot of confusing talk about what an impeachment is. The minority staff has now poured over thousands of pages of constitutional history, legal articles and testimony, and we can begin this day, Mr. Chairman, explaining what impeachment is not.
Impeachment is not a means to punish the president. Impeachment is not a means to send a message to our children that the president isn't above the law. There are better ways to do that. Impeachment is not a vote of confidence for independent counsel Starr. Impeachment is not a penalty for the president not answering the 81 questions as some of you would have wished. Impeachment is not a form of rebuke or censure for the president's conduct. In fact, impeachment is not about the president's conduct; it's about Congress' conduct.
Just because the president might disgrace his office by his actions and just because the independent counsel may have shown partiality and zeal in his investigation, this House can do better. The rode to dishonor in office can end in this committee, in this room, on this very day: because what an impeachment is, of course, is the single device to remove from the office the chief executive who you decide is constitutionally disqualified to serve, and by doing so, overturn two national elections. As many of you have said, it is the political equivalent of the death penalty.
Back in October, Mr. Chairman, I think the committee was listening to one another; some have said we no longer are. News reports indicate that a majority of the committee's Republicans have already stated publicly that they will support at least one article of impeachment. I hope these reports are not true and that these debates have some purpose.
If the reports are true, however, I hope your colleagues on the House floor are still listening.
In what minority and majority staff present to you today, we wish we could ask each of you to change places so that Republicans would hear the arguments as Democrats and Democrats hear them as Republicans. Others have noted the portraits behind you of the two chairs of this committee who have had the terrible burden of presiding over impeachment inquiries. Interestingly, the portrait of Chairman Hyde hangs over the Democrats and that of Chairman Rodino hangs over the Republicans. This should be the model for today's events. We should see if we can see the issues through the eyes of the other side just this once.
With that in mind, Chairman Rodino recently had the opportunity to reminisce about that day, 24 years ago, that the gavel was in his hand. I would like you to listen to what he said:
(BEGIN VIDEO CLIP)
(UNKNOWN): And we have to be fair and we have to be perceived to be fair, so we sort of have to control ourselves.
PETER RODINO, FORMER CHAIRMAN OF THE HOUSE JUDICIARY COMMITTEE: We needed Republicans as well. The American people would not have accepted a vote that would have been purely a partisan vote voting to impeachment the president of the United States clearly on partisan grounds.
(END VIDEO CLIP)
LOWELL: Mr. Chairman, you echoed the same thoughts before the heat of the lights and the rhetoric in this room were turned on. In a January interview, you said that you were reluctant to begin hearings because committee Democrats were not for it. And you also said -- quote -- "At the end of the day, the Democrats have to agree. I would be loathe to start something that I didn't think we could finish, and right now, I doubt that Democratic support would be present."
We are all served to listen to what you and Chairman Rodino were saying.
And we're also well served to listen to the country.
During our November 19th hearing, Congressman Graham accurately stated, and I quote, "Without public outrage, impeachment is a very difficult thing. And I think it is an essential component of impeachment. I think that is something that the founding fathers probably envisioned." End quote.
The public has been telling us for months and in every way they possibly can that they do not want to see a trial in the Senate where the issues will be about sex, and that they want there to be a censure or other alternatives to impeachment as the means to demonstrate that the president is not above the law.
So before this week is out, I hope we listen to the wisdom of the nation as well.
As we have participated in every hearing and listened to all the statements, it appears that many in the majority seem to be going out of their way to find reasons to impeach when our history tells us it should be the other way around.
To this end, the committee has been too willing to dilute the constitutional standard of what makes up a high crime and misdemeanor by equating a violation of a statute -- even a criminal statute -- to a violation of Article II, Section 4. It has been too willing to lower the burden of proof, to suggest that the House is nothing more than a grand jury seeking to find probable cause. It has been too willing to reverse the presumption of innocence so that you ask why the president has not called fact witnesses when that is the obligation of the committee.
It has been too willing to water down these proceedings to compare an impeachment of our only elected president to those where one of a 1,000 appointed federal judges is involved.
And as Judge Higginbotham said, it has been too willing to liken impeachment of a president to the perjury conviction by a basketball coach.
The lowering of the bar as, Professor Schlesinger has described it, must not continue.
One of the constitutional scholars from whom you hear, Professor Jack Rakove, defined it well when he said, quote, "Impeachment is a remedy to be deployed only in unequivocal cases where the insult to the constitutional system is grave." And in the most important part of what he said he added, "It would have to be a high degree of consensus on both sides of the aisle in Congress, and in both houses to proceed."
Mr. Chairman, some have asked whether the role of the minority staff is the same as the president's counsel. It is not. We are not here to defend the president. He, better than anyone, has said that his conduct was not defensible and he has apologized for it.
We are here, however, to strenuously defend the requirements the Constitution poses on all of us before we would even consider the word impeachment. Our obligation is to leave Article II, Section 4 the way we found it on November 9th.
For the minority staff, resort to the impeachment process is like resort to that fire extinguisher behind the glass door with a big sign that reads "break only in case of emergency." We are asking you not to break the glass unless there is literally no other choice.
From listening to our constitutional scholars, we learned that debates about impeachment are like the wall protecting the fort of the Constitution's separation of powers. The crack you put in the wall today becomes the gash tomorrow, which ultimately leads to the wall crumbling down. It is that serious.
It is so serious that the wall was never even approached when President Lincoln suspended the writ of habeas corpus, nor when President Roosevelt misled the public about the involvement in the Lend-Lease Program, nor when President Reagan misled the country and Congress about involvement with Iran-Contra.
So members of the committee, before you stop listening to each other, consider that a House vote for impeachment, as Majority Leader Trent Lott said last week, requires the Senate to begin a trial, Unlike your proceedings, all senators would be involved to have to hear the real testimony of all the real witnesses, not a summary from a prosecutor.
This would have to occur -- no matter how long it took -- on the floor of the Senate, with the chief judge presiding.
Are the issues of the president's conduct in the case so grave that you would doom the country to additional months of this ordeal and government paralysis? On the slimmest of votes on the House floor? And no likely conviction in the Senate?
When Mr. Starr testified two weeks ago, I began to review his evidence with him, but I ran out of time.
I would like to do that now.
The majority would break that glass and vote for articles of impeachment -- one based on the president's perjury in the grand jury; the second on perjury in the civil deposition; the third on obstruction of justice; and the fourth called abuse of power.
Mr. Scott has pointed out time and time again that this process has been something of a moving target -- first, with Mr. Starr proposing 11 grounds; then with majority counsel dicing those charges into 15; and now with the majority putting forwardy; article two, the same offenses for the civil deposition; article three, obstruction of justice; and article four, abuse of power.
If you look, as we did last night, we cannot find in these articles what statements the majority contends were lies. Instead of precision, there is the phrase in article one that the president gave misleading testimony concerning -- quote -- "the nature and details of his relationship." Article two reads no better.
Mr. Chairman, I know you and the staff are trying to be fair, but how is it fair to make these kinds of unspecified charges in these halls in the people's house on something as grave as impeachment? We should be doing better than filing charges that would be thrown out for vagueness in every courtroom in the land.
The decision to make these vague charges and to have me speak first leaves me no choice but to assume -- and I hope my assumption is correct -- that the phrases in the proposed articles match the original allegations made by Mr. Starr. However, I have to say it would have been better if the articles had just said so.
On October 5th, I described the process by which prosecutors pile on charges to make their cases more serious. With that in mind, Mr. Chairman, I asked how it makes things clearer for the committee and the House for majority staff to have taken various charges and to have repeated them over and over again.
For example, majority counsel has adopted the independent counsel's allegation that the president tried to influence Ms. Lewinsky to file a false affidavit, and they listed in proposed article three, clause one, as an obstruction of justice.
Yet, I see that they have also included the exact same event, renaming it as perjury in Article I, Clause IV, by listing it as something the president lied about in his testimony. Surely the committee can see through this tactic.
For a week or more, the majority has stated that the president or the minority did not call fact witnesses. Mr. Inglis repeated that charge to White House counsel Ruff yesterday. But in America, it should not have been our burden to do so.
However, if it's fact witnesses you need, then it will be fact witnesses you get. Mr. Chairman, on behalf of the minority, I now call to the stand Monica Lewinsky, Betty Currie, Vernon Jordan, Linda Tripp and the president of the United States.
You see their sworn testimony contained in the same boxes on which majority counsel is relying to put forth articles of impeachment actually proves the president's case. And this is what the witnesses have to say.
With respect to the charge that the president lied about his relationship, even members of the majority, such as Mr. Graham, have stated that the president's answers to surprise questions in his deposition consisting of gobbledy-gook definitions of the phrase sexual relations should not be grounds for impeachment.
Yet there apparently was a change of mind. The proposed articles of impeachment include two separate articles for the president's statements.
So if you truly want to go forward on impeachment, based on what the president has admitted was strained and evasive answers to questions at the civil deposition, I thought you and the public should hear how this all first started.
Even though majority counsel has told us that they want parts of President Clinton's deposition in that case released, I thought you should have the whole picture, and hear the amazing exchange between three lawyers and a judge that went into the contorted definition of sexual relations at the Paula Jones deposition that has gotten us all here today. Please pay attention to how long all this takes and listen to how all of them, and especially Judge Webber Wright, accurately predicted that the twisted definition would create havoc and confusion.
But as you watch and listen, remember this: On January 17th, when the deposition was taken, the Paula Jones attorneys in the room already had Linda Tripp and her tapes. They knew they were setting up the president. They knew that they were trying to create havoc and confusion.
But the president, his counsel, the lawyer for Trooper Danny Ferguson and Federal Judge Webber Wright had no idea what they and Linda Tripp were planning. And so when Judge Webber Wright concludes in the portion you are about to hear -- quote -- "If you want to know the truth, I'm not sure Mr. Clinton knows all these definitions," she could have not known how correct she was.
(UNKNOWN): I'd like to hand you what has been marked deposition Exhibit 1 so that the record is clear today, and that we know we are communicating. This is a definition of a term that will be used in the course of my questioning. The term is sexual relations. I will inform the court that the wording of this definition is patterned after federal rule of evidence 413.
Would you please take whatever time you need to read this definition, because when I use the term "sexual relations," this is what I am meaning today.
Is there a copy for the court?
Thursday, December 10, 1998
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LaHood selected to run House impeachment debate
Second videotape of Clinton about to debut
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Republican John Ensign concedes loss in Nevada Senate race