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Transcript: Closing arguments by Democratic chief counsel Abbe Lowell
House Judiciary Committee hearing, December 10, 1998(continued)
(UNKNOWN): Could you pass that, please?
Your Honor, as an introductory matter, I think this could really lead to confusion. And I think it's important that the record be clear. For example, it says, the last line, "contact means intentional touching directly or through clothing."
Just, for example, one could have a completely innocent shake of the hand, and I don't want this record to reflect -- I think we're here today for counsel for the plaintiff to ask the president what he knows about various things: what he did, what he didn't do. But I -- I have a real problem with this definition, which means all things to all people, in this particular context.
(UNKNOWN): Your Honor, I think the wording of that is extremely erroneous. What the (OFF-MIKE) should be looking at is exactly what occurred. And he can ask the witness to describe as exactly as possible what occurred.
But to use this as an antecedent to a question, it would put him in a position -- and if the president admitted shaking hands with someone, then under this (OFF-MIKE) deposition -- or definition, he could say or somehow construe that to mean that that involves some sort of sexual relations.
And I think it's very unfair. Frankly, I think it's a political trick, and I totally (OFF-MIKE) how I feel about the political character of what this lawsuit is about.
(UNKNOWN): Your honor, may I respond?
JUDGE SUSAN WEBBER WRIGHT: You may.
LOWELL: The purpose of this is to avoid everything that they have expressed concern about. It is to allow us to be discreet and to make the record crystal clear. There is absolutely no way that this could ever be construed to include a shaking of the hand.
(UNKNOWN): Well, Mr. Fisher, let me refer to you paragraph two. It says, "contact between any part of the person's body or an object and the genitals or anus of another person." What -- if the president patted me and said I had to lose 10 pounds off my bottom, you could be arguing that I had sexual relations with him.
Your Honor, if this is going to lead to confusion, why don't they ask the president what he did, what he didn't do? And then we can argue in court later about what it means.
WRIGHT: All right. Let me make a ruling on this. It appears that this really is not the definition of contact under rule 413, because rule 413 deals with nonconsensual contact. This definition would encompass contact that is consensual. And the court has ruled that consenting consensual contact is relevant in this case.
So let the record reflect that the court disagrees with counsel that this is -- about being the definition under rule 413; it's not. It is more in keeping with, however, the court's previous rule. But I certainly agree with the president's counsel that this -- the definition No. 2 is too -- is too broad, and so the definition No. 3.
Definition No. 1, it encompass intent. And so that would be -- Nos. 2 and 3 are just too broad.
(UNKNOWN): All right, Your Honor.
WRIGHT: And No. 1 is not too broad, however. So I'll let you use that definition as long as we understand that that's not rule 413. It's just a rule that would apply in this case to intentional sexual contact.
(UNKNOWN): Yes, Your Honor. And had I been allowed to develop this further, everyone would have seen that deposition Exhibit 2 is actually the definition of sexual assault or (OFF-MIKE) of sexual assault, which is the term in rule 413.
(UNKNOWN): Your Honor, I object to this record being filled with these kinds of things, which is going to -- why don't they ask -- they have got the president of the United States in this room for several hours. Why don't they ask him questions about what happened or didn't happen?
WRIGHT: I will permit him to refer to definition No. 1, which encompass consensual sexual contact for the purpose of arousing or gratifying sexual desire.
WRIGHT: I'll permit that. Go ahead.
(UNKNOWN): Mr. President, in light of the court's ruling, you may consider subparts two and three of deposition exhibit one to be stricken. And so when in my questions I use the term "sexual relations," sir, I'm talking only about part one in the definition of the body. Do you understand that, sir?
CLINTON: I do.
(UNKNOWN): I'm now handing you what has been marked deposition exhibit two. Please take whatever time you need to read deposition exhibit two.
(UNKNOWN): Your Honor, again, what I am very worried about, your honor, is first of all, this -- this -- this appears to be -- I mean what I don't want to do is (OFF-MIKE) be asked questions and then we don't -- we're all -- we're ships passing in the night. They're thinking of one thing. He's thinking another. Are talking criminal assault? Are we -- I mean, this is not what a deposition is for, your honor. He can ask the president: What did you do? He can ask him specifically in certain instances what he did. And isn't that what this deposition is for? It's not to sort of lay a trap for him.
And I'm going to object to the president answering and having to remember what's on this whole sheet of paper, and I just don't think it's fair. It's going to render conclusions.
WRIGHT: Do you agree with Mr. Bennett?
(UNKNOWN): I wanted to point (OFF-MIKE), your honor. This is almost like in a typical automobile accident, where the plaintiff's counsel wants to ask the defendant: Were you negligent? That's not factual.
WRIGHT: Mr. Fisher, do you have a response?
FISHER: Yes, Your Honor. What I'm trying to do is avoid having to ask the president a number of very salacious questions and to make this as discreet as possible. This definition, I think the court will find is taken directly from rule 413, which I believe President Clinton signed into law, with the exception that I have narrowed subpart one to a particular section which would be covered by rule 413.
And I have that section here to give the president so that there is no question what his intent is. This will eliminate confusion, not cause it.
(UNKNOWN): Your honor, I have no objection where the appropriate predicates are made for them to ask the president: Did you know X? Yes or no? what happened? What did you do? What didn't you do? We acknowledge that some embarrassing questions will be asked, but then we all will know what we are talking about. But I do not want my client answering questions not understanding exactly what these folks are talking about.
Now your honor, I've told you that the president has a meeting at four o'clock and we've already wasted 20 minutes, and Mr. Fisher has yet to ask his first factual questions.
WRIGHT: I'm prepared to rule, and I will not permit this definition to be understood -- quite frankly, there are several reasons. One is that the court heretofore has not proceeded using these definitions. We have used -- we've made numerous rulings, or the court has made numerous rulings in this case without specific reference to these definitions.
And so if you want to know the truth, I don't know them very well. I would find it difficult to make a ruling, and Mr. Bennett has made clear that he acknowledges that embarrassing questions will be asked. And if this is in fact an effort on the part of plaintiff's counsel to avoid using sexual terms and avoid going into great detail about what might or might not have occurred, then there is no need to worry about that. You may go into the details.
(UNKNOWN): If the predicates are met, we have no objection to the details.
WRIGHT: It's just going to make it very difficult for me to rule, if you want to know the truth. And I'm not sure Mr. Clinton knows all these definitions, anyway.
LOWELL: Mr. Chairman, I think it's worth repeating that in this, and I'm sorry for the length, 10 or 15 minutes of lawyers and judges trying to come up with the definition that has now brought us to this constitutional moment, does anybody in this room -- does anybody in the United States have a clear conception of what the definition of "sexual relations" were if those three people, and that judge in that context had to spend that much time getting to the point?
Let me end by reminding you what the judge just ended by saying. "It's just going to make it very difficult. If you want to know the truth, I'm not sure Mr. Clinton knows all these definitions anyway."
To those who would impeach the president and condemn him for not being more forthcoming in that deposition, put yourself in his position on that day. He was being set up by the Paula Jones attorneys and Linda Tripp, who met with the office of independent counsel just the day before. He knew that there was some collusion going on to embarrass him, not about sexual harassment, but about a consensual affair.
LOWELL: So his responses were an attempt to answer the questions evasively. In the 20/20 hindsight of almost a year, we know he could have, should have, acted better. But are his responses to all those questions you put to White House Counsel Ruff yesterday so hard to understand that you would impeach him for acting as anyone would in that circumstance?
In his grand jury appearance, the president explained his situation on that very day. And when you listened to what he is saying, and put it in the context of what you now know what was happening behind the scenes with Paula Jones and Linda Tripp and the attorneys, any fair-minded person would see that these were not impeachable reactions to that set-up predicament.
CLINTON: No, sir. In the face of their -- the Jones lawyers, the people that were questioning me -- in the face of their illegal leaks, their constant, unrelenting illegal leaks, in a lawsuit that I knew, and that by the time this deposition and this discovery started, they knew was a bogus suit on the law and a bogus suit on the facts, in the face of that, I knew that in the face of their illegal activity I still had to behave lawfully. But I wanted to be legal without being particularly helpful. I thought that was -- that was what I was trying to do.
And this is the -- you're the first persons who ever suggested to me that I should have been doing their lawyers' work for them, when they were perfectly free to ask follow-up questions. On one or two occasions, Mr. Bennett invited them to ask follow-up questions.
It now appears to me they didn't because they were afraid I would give them a truthful answer, and that there had been some communication between you and Ms. Tripp and them, and they were trying to set me up and trick me. And now you seem to be complaining that they didn't do a good enough job.
I did my best, sir, at this time. I did not know what I now know about this.
A lot of other things were going on in my life. Did I want this to come out? No. Was I embarrassed about it? Yes. Did I ask her to lie about it? No. Did I believe there could be a truthful affidavit? Absolutely.
Now that's all I know to say about this. I will continue to answer your questions as best I can.
(UNKNOWN): You're not going back on your earlier statement that you understood you were sworn to tell the truth, the whole truth, and nothing but the whole truth to the folks at that deposition, are you, Mr. President?
CLINTON: No, sir. But I think we might as well put this out on the table.
LOWELL: Despite this context, the majority staff has decided to include the civil deposition as a separate article for impeachment -- perhaps to add to the appearance of more wrongdoing.
But without this committee demeaning the impeachment process by exalting one answer like "We were not alone" and then try to figure out whether it was all right to mean alone in the Oval Office or alone in the pantry or alone in the hallway, the context material we have just presented to the committee and to the public should put that attempt to rest and dispose of this article once and for all.
This would leave as the core of the perjury allegations the charge that the president lied under oath at his August 17 grand jury appearance. These are vaguely described in Article I.
Mr. Chairman, how did we get to perjury, which is what Article I suggests? Independent Counsel Starr's referral goes out of its way not to make a perjury charge, because that offense, as many of you on the committee who have been lawyers in the courtroom know, is one of the hardest to prove.
On October 15th, majority counsel chopped and diced Mr. Starr's grounds into four others, but he, too, did not include one calling perjury. While the majority convened a perjury hearing a few weeks ago, many of the witnesses were, in fact, talking about other crimes, and as all of the federal prosecutors who testify here said, this would never be a real case in a real court.
So if lawyers can conclude that this would not be charged as a crime, how do you as lawmakers allow it to be charged as a high crime?
On October 5th, minority staff also suggested that the committee did not have to delve into the he said/she said salacious facts about this charge.
LOWELL: Then, as now, the better approach would be to take the independent counsel at its charge. If it was President Clinton's lying about Ms. Lewinksy in the Paula Jones case that creates all of these impeachable offenses, then the committee and the House can resolve this issue by deciding the importance or impact of that statement in that specific case.
I see in Article II the majority put has put in the phrase "deemed relevant" when talking about the president's statements, and I certainly understand why they would want to have that phrase in the article. But they are obviously wrong.
When Judge Webber Wright -- if you look in your books to tab two, and I'll put up the chart -- ruled on January 29th that evidence about Ms. Lewinsky was -- quote -- "not essential to the core issues of the case" -- end quote -- and "might even be inadmissible" -- end quote -- and when she made that same ruling on March 9th, 1998, and when she ruled on April 1st that no matter what President Clinton did with Ms. Lewinksy, Paula Jones herself had not proven that she had been harmed, she gave this committee the ability to determine that the president's statements, whether truthful or not, were not of the grave constitutional significance to support an impeachment.
In any courtroom in America, so certainly in the halls of Congress, the president's misstatements about a consensual relationship made during a case alleging nonconsensual harassment was not material then and are not grounds for impeachment now.
But if reviewing the testimony in its proper context is not enough for the committee, and if it wants instead to go ahead with this article of impeachment, let us make sure that the committee, House members who will be voting on this on the floor and the American people understand what will be the subject of a Senate trial.
Again, putting aside the majority's attempt to list as perjury clauses that it makes in other places, there were three allegations of grand jury lies that I have to guess fit into the article's phrase about -- quote -- "the nature and details of the relationship." They are, first, as they were in the Starr referral, the date when the relationship began; second, whether the president really believed that the term "sexual relations" did not include one type of sex; and third, whether the president touched Monica Lewinsky.
As to the date when the relationship began, the actual charge is that Monica Lewinsky testified that the affair began in November 1995, but the president said it started in February 1996.
How can you in good faith ask this nation to endure a Senate trial to determine the difference between three months? How much more trivial can an impeachment charge and a trial, let alone one paralyzing the Senate and the Supreme Court, possibly be?
Mr. Chairman you said during the perjury hearing that this article, this charge -- quote -- "did not strike you as a serious count" -- end quote, and yet that is exactly what the independent counsel has charged and that which majority counsel has now hidden in the vagueness of Article I.
The second allegation is that the president lied when he said his belief was that the phrase "sexual relations" as used in the Paula Jones deposition did not include oral sex. When many in the majority how we can condone perjury in our society, this is the lie about which they are talking.
How would you have a trial in the Senate to conclude about whether the president was right about what he thought the phrase "sexual relations" meant? You heard and saw the gyrations that it took three lawyers and a judge to deal with this silly expression. So who would you call to determine that the president did not believe in his interpretation?
The answer is that you don't have to call anyone. You have enough information right now to include that such a trial is unnecessary. The video you saw proved that the term "sexual relations" was defined by Paula Jones' attorneys for Paula Jones' case. With that in mind, let me read what one of Ms. Jones' attorneys have said about that phrase when he appeared on MSNBC and was asked.
Paul Cammarata said -- quote -- "It is out of my definition of sexual relationships on a personal basis, and I think you have to understand the definition he was operating on when questioned" -- end quote.
If Mr. Cammarata, one of her lawyers, could understand that the phrase "sexual relations" can exclude certain types of sex, how can this committee in good faith base an article of impeachment on the president interpreting that in the exact same way?
Thursday, December 10, 1998
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