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 TIME on politics Congressional Quarterly CNN/AllPolitics CNN/AllPolitics - Resources

IN THE SENATE OF THE UNITED STATES

Sitting as a Court of Impeachment





In Re

Impeachment of

President William Jefferson Clinton



Reply of the United States House of Representatives

to the Trial Memorandum of President

William Jefferson Clinton



I. Introduction



The President's Trial Memorandum contains numerous factual inaccuracies and misstatements of the governing law and the Senate's precedents. These errors have largely been addressed in the Trial Memorandum of the House of Representatives filed with the Senate on January 11, 1999, and given the 24-hour period to file this reply, the House cannot possibly address them all here. The House of Representatives will address them further in its oral presentation to the Senate, and it reserves the right to address these matters further in the briefing of any relevant motions. However, President Clinton has raised some new issues in his Trial Memorandum, and the House of Representatives hereby replies to those issues.

II. Facts

The President's Trial Memorandum outlines what he claims are facts showing that he did not commit perjury before the grand jury and did not obstruct justice. The factual issues President Clinton raises are addressed in detail in the Trial Memorandum of the House.

A complete and impartial review of the evidence reveals that the President did in fact commit perjury before the grand jury and that he obstructed justice during the Jones litigation and the grand jury investigation as alleged in the articles of impeachment passed by the House of Representatives. The House believes a review of the complete record, including the full grand jury and deposition testimony of the key witnesses in this case, will establish that.

The evidence which President Clinton claims demonstrates that he did not commit the offenses outlined in the Articles of Impeachment are cited in Sections IV and V of his Memorandum. Regarding Article I, President Clinton maintains that his testimony before the grand jury was entirely truthful. At the outset of his argument, he states that he told the truth about the nature and details of his relationship with Ms. Lewinsky, and he insists that any false impressions that his deposition testimony might have created were remedied by his admission of "improper intimate contact" with Ms. Lewinsky. However, his subsequent testimony demonstrates that this admission is narrowly tailored to mean that Ms. Lewinsky had "sexual relations" with him, but he did not have "sexual relations" with her, as he understood the term to be defined. In other words, he admitted only what he knew could be conclusively established through scientific tests. He denied what the testimony of Ms. Lewinsky, the testimony of a number of her confidantes, and common sense proves: that while she engaged in sexual relations with him, he engaged in sexual relations with her, regardless of how President Clinton attempts to redefine the term.

Following this pattern, President Clinton discounts substantial evidence as well as common sense when he maintains that he testified truthfully in the grand jury about, among other things, his prior deposition testimony, his attorney's statements to Judge Wright during his deposition, and his intent in providing a series of false statements to his secretary after his deposition. Again, a complete review of the record and witness testimony reveals that President Clinton committed perjury numerous times in his grand jury testimony.

In regard to Article II, President Clinton extracts numerous items of evidence from the record and analyzes them in isolation in an effort to provide innocent explanations for the substantial amount of circumstantial evidence proving his guilt. Yet when the record is viewed in its entirety, including the portions of President Clinton's deposition testimony concerning Ms. Lewinsky and his grand jury testimony, it demonstrates that President Clinton took a number of actions designed to prevent Paula Jones's attorneys, the federal district court, and a federal grand jury from learning the truth. These actions are described in detail in the Trial Memorandum of the House.

To the extent that President Clinton's Trial Memorandum raises issues of credibility, those issues are best resolved by live testimony subject to cross-examination. The Senate, weighing the evidence in its entirety, will make an independent assessment of the facts as they are presented, and a detailed, point-by-point argument on these matters is best resolved on the Senate floor. The House is confident that a thorough factual analysis will not only refute President Clinton's contentions, but will prove the very serious charges contained in the articles.

III. The Articles Properly State Removable Offenses.



A. The Offenses Alleged are High Crimes and Misdemeanors.

1. The Senate Has Never Exercised Its Power to Dismiss an Article of Impeachment Except When the Official Impeached Has Resigned.



The House acknowledges that the Senate has the power to dismiss an article of impeachment on the ground that it does not state a removable offense. Beyond that, however, President Clinton completely ignores the Senate's precedents concerning the use of that power. In the fifteen cases in which the House has forwarded articles of impeachment to the Senate, the Senate has never granted a dispositive motion to preclude a trial on the articles with one exception. In the 1926 case of Judge George English, the Senate granted a motion to adjourn after Judge English resigned from office making a trial moot on the issue of removal. See Impeachment of George W. English, U.S. District Judge, Eastern District of Illinois, 68 Cong. Rec. 347-48 (1926). The Senate also granted a motion to adjourn in the 1868 trial of President Andrew Johnson, but only after a full trial and votes to acquit on three articles. III Cannon's Precedents of the House of Representatives 2443.

In addition, the Senate has never granted a motion to dismiss or strike an article of impeachment. However, in the 1936 case of Judge Halsted Ritter, the House managers themselves moved to strike two counts of a multi-count article to simplify the trial, and the motion was granted. 80 Cong. Rec. 4898-99 (April 3, 1936). However, the remainder of the article was fully considered, and Judge Ritter was convicted on that article. The House managers in the 1986 Judge Harry Claiborne case made the only motion for summary judgment in the history of impeachment. Hearings of the Senate Impeachment Trial Committee (Judge Harry Claiborne), 99th Cong., 2d Sess. 145 (1986). They did so on the basis that Judge Claiborne had already been convicted of the charges in a criminal trial. Id. The Senate postponed a decision on the motion and never ruled on it, but it ultimately convicted Judge Claiborne. In short, the Senate precedents firmly establish that the Senate has always fulfilled its responsibility to give a full and fair hearing to articles of impeachment voted by the House of Representatives.





2. The Constitutional Text Sets One Clear Standard for Removal.

a. There is Only One Impeachment Standard.

The Constitution sets one clear standard for impeachment, conviction, and removal from office: the commission of "Treason, Bribery, or other high Crimes and Misdemeanors." U.S. Const. art. II, 4. The Senate has repeatedly determined that perjury is a high crime and misdemeanor. Simple logic dictates that obstruction of justice which has the same effect as perjury and bribery of witnesses must also be a high crime and misdemeanor. Endless repetition of the claim that this standard is a high one does not change the standard.

President Clinton claims that to remove him on these articles would permanently disfigure and diminish the Presidency and mangle the system of checks and balances. President's Trial Memorandum at 18. Quite the contrary, however, it is President Clinton's behavior as set forth in the articles that has had these effects. Essentially, President Clinton argues that the Presidency and the system of checks and balances can only be saved if we allow the President to commit felonies with impunity. To state that proposition is to refute it. Convicting him and thereby reaffirming that criminal behavior that strikes at heart of the justice system will result in removal will serve to strengthen the Presidency, not weaken it.

b. Impeachment and Removal are Appropriate for High Crimes and Misdemeanors Regardless of Whether They are Offenses Against the System of Government.



President Clinton argues that impeachment may only be used to redress wrongful public misconduct. The point is academic. Perjury and obstruction of justice as set forth in the articles are, by definition, public misconduct. See generally House Trial Memorandum at 107-12. Indeed, it is precisely their public nature that makes them offenses -- acts that are not crimes when committed outside the judicial realm become crimes when they enter that realm. Lying to one's spouse about an extramarital affair, although immoral, is not a crime. Telling the same lie under oath in a judicial proceeding is a crime. Hiding gifts given to a adulterous lover to conceal the affair, although immoral, is not a crime. When those gifts become potential evidence in a judicial proceeding, the same act becomes a crime. One who has committed these kinds of crimes that corrupt the judicial system simply is not fit to serve as the nation's chief law enforcement officer.

Apart from that, the notion that high crimes and misdemeanors encompass only public misconduct will not bear scrutiny. Numerous "private" crimes would obviously require the removal of a President. For example, if he killed his wife in a domestic dispute or molested a child, no one would seriously argue that he could not be removed. All of these acts violate the President's unique responsibility to take care that the laws be faithfully executed.

3. President Clinton Cites Precedents That Do Not Apply Rather Than Relying on the Senate's Own Precedents Clearly Establishing Perjury as a Removable Offense



a. President Clinton Continues to Misrepresent The Fraudulent Tax Return Allegation Against President Nixon.



In his trial memorandum, President Clinton argues that the failure in 1974 of the House Judiciary Committee to adopt an article of impeachment against President Nixon for tax fraud supports the claim that current charges against President Clinton do not rise to the level of impeachable and removable offenses. President's Trial Memorandum at 21. The President's lawyers acknowledge the charge in the article against President Nixon of "knowingly and fraudulently failed to report certain income and claimed deductions [for 1969-72] on his Federal income tax returns which were not authorized by law." Id. The President's lawyers go on to state that "[t]he President had signed his returns for those years under penalty of perjury," Id., trying to distinguish away the Claiborne impeachment and removal precedent from 1986, and by extension all the judicial impeachments from the 1980s which clearly establish perjury as an impeachable and removable offense.

President Clinton's argument that a President was not and should not be impeached for tax fraud because it does not involve official conduct or abuse of presidential powers simply is unfounded based on the 1974 impeachment proceedings against President Nixon. Moreover, the fact that the President and his lawyers make this argument in defense of the President is telling. He effectively claims that a large scale tax cheat could be a viable chief executive.

It is undisputed that the Judiciary Committee rejected the proposed tax fraud article against President Nixon by a vote of 26 to 12. A slim minority of Committee members stated the view that tax fraud would not be an impeachable offense. That minority view is illustrated by the comments of Rep. Waldie that in the tax fraud article there was "not an abuse of power sufficient to warrant impeachment . . . ." Debate on Article of Impeachment 1974: Hearings of the Comm. on the Judiciary Pursuant H. Res. 803, 93rd Cong., 2nd Sess., at 548 (1974)(Statement of Rep. Waldie). Similar views were expressed by Rep. Hogan and Rep. Mayne. Rep. Railsback took the position that there was "a serious question," id. at 524 (Statement of Rep. Railsback), whether misconduct of the President in connection with his taxes would be impeachable.

Other members who opposed the tax fraud article based their opposition on somewhat different grounds. Rep. Thornton based his opposition to the tax fraud article on the "view that these charges may be reached in due course in the regular process of law." Id. at 549 (Statement of Rep. Thornton). Rep. Butler stated his view that the tax fraud article should be rejected on prudential grounds: "Sound judgment would indicate that we not add this article to the trial burden we already have." Id. at 550 (Statement of Rep. Butler).

The record is clear, however, that the overwhelming majority of those who expressed a view in the debate in opposition to the tax fraud article based their opposition on the insufficiency of the evidence, and not on the view that tax fraud, if proven, would not be an impeachable offense.

The comments of then-Rep. Wayne Owens in the debate in 1974 directly contradict the view that Mr. Owens has expressed in recent testimony before the House Judiciary Committee. Although Mr. Owens in 1974 expressed his "belief" that President Nixon was guilty of misconduct in connection with his taxes, he clearly stated his conclusion that "on the evidence available" Mr. Nixon's offenses were not impeachable. Id. at 549 (Statement of Rep. Owens). Mr. Owens spoke of the need for "hard evidence" and discussed his unavailing efforts to obtain additional evidence that would tie "the President to the fraudulent deed" or that would otherwise "close the inferential gap that has to be closed in order to charge the President." Id. He concluded his comments in the 1974 debate by urging the members of the Committee "to reject this article ...based on that lack of evidence." Id.

In addition to Mr. Owens, eleven members of the Committee stated the view that there was not sufficient evidence of tax fraud to support the article against President Nixon. Wiggins: "fraud . . . is wholly unsupported in the evidence." Id. at 524 (Statement of Rep. Wiggins). McClory: "no substantial evidence of any tax fraud." Id. at 531 (Statement of Rep. McClory). Sandman: "There was absolutely no intent to defraud here." Id. at 532 (Statement of Rep. Sandman). Lott: "mere mistakes or negligence by the President in filing his tax returns should clearly not be grounds for impeachment." Id. at 533 (Statement of Rep. Lott). Maraziti: discussing absence of evidence of fraud. Id. at 534 (Statement of Rep. Maraziti). Dennis: "no fraud has been found." Id. at 538 (Statement of Rep. Dennis). Cohen: questioning whether "in fact there was criminal fraud involved." Id. at 548 (Statement of Rep. Cohen). Hungate: "I think there is a case here but in my judgment I am having trouble deciding if it has as yet been made." Id. at 553 (Statement of Rep. Hungate). Latta: only "bad judgment and gross negligence." Id. at 554 (Statement of Rep. Latta). Fish: "There is not to be found before us evidence that the President acted wilfully to evade his taxes." Id. at 556 (Statement of Rep. Fish). Moorhead: "there is no showing that President Nixon in any way engaged in any fraud." Id. at 557 (Statement of Rep. Moorehead).

The group of those who found the evidence insufficient included moderate Democrats like Rep. Hungate and Rep. Owens, as well as Republicans like Rep. Fish, Rep. Cohen, and Rep. McClory, all of whom supported the impeachment of President Nixon.

In light of all these facts, it is not credible to assert that the House Judiciary Committee in 1974 determined that tax fraud by the President would not be an impeachable offense. The failure of the Committee to adopt the tax fraud article against President Nixon simply does not support the claim of President Clinton's lawyers that the offenses charged against him do not rise to the level of impeachable offenses.

In the Committee debate in 1974 a compelling case was made that tax fraud by a President -- if proven by sufficient evidence -- would be an impeachable offense. Rep. Brooks, who later served as chairman of the Committee, said:

No man in America can be above the law. It is our duty to establish now that evidence of specific statutory crimes and constitutional violations by the President of the United States will subject all Presidents now and in the future to impeachment .



* * *



No President is exempt under our U.S. Constitution and the laws of the United States from accountability for personal misdeeds any more than he is for official misdeeds. And I think that we on this Committee in our effort to fairly evaluate the President's activities must show the American people that all men are treated equally under the law.



Debate on Articles of Impeachment, 1974: Hearings of the Comm. on the Judiciary Pursuant to H. Res. 803, 93rd Cong., 2nd Sess., at 525, 554.

Professor Charles Black stated it succinctly: "A large-scale tax cheat is not a viable chief magistrate." Charles Black, Impeachment: A Handbook, (Yale University Press, 1974) at 42. What is true of tax fraud is also true of a persistent pattern of perjury by the President. An incorrigible perjurer is not a viable chief magistrate.

b. President Clinton Continues to Misrepresent The Allegations Against Alexander Hamilton.



President Clinton continues to try to persuade the American public that the House of Representatives has impeached him for having an extramarital affair. See Answer of President William Jefferson Clinton to the Articles of Impeachment at 1 ("The charges in the two Articles of Impeachment do not permit the conviction and removal from office of a duly elected President. The President has acknowledged conduct with Ms. Lewinsky that was improper.") (emphasis added). In doing so, the President's lawyers refer to an incident involving then Secretary of the Treasury Alexander Hamilton being blackmailed by the husband of a woman named Maria Reynolds with whom he was having an adulterous affair. However, the President's lawyers omit the relevant distinguishing facts even as they cast aspersions upon Alexander Hamilton: none of Hamilton's "efforts" to cover up his affair involved the violation of any laws, let alone felonies. Indeed, the fact of the matter is that Hamilton was the victim of the crime of extortion.

Never did Hamilton raise his right hand to take a sacred oath and then willfully betray that oath and the rule of law to commit perjury. Never did Alexander Hamilton obstruct justice by tampering with witnesses, urging potential witnesses to sign false affidavits, or attempt to conceal evidence from a Federal criminal grand jury.

Again, the significance of the distinctions are glaringly obvious: it is apparent from the Hamilton case that the Framers did not regard private sexual misconduct as an impeachable offense. It is also apparent that efforts to cover up such private behavior outside of a legal setting, including even paying hush money to induce someone to destroy documents, did not meet the standard. Neither Hamilton's high position, nor the fact that his payments to a securities swindler created an enormous appearance problem, were enough to implicate the standard. These wrongs were real, and they were not insubstantial, but to the Framers they were essentially private and therefore not impeachable. David Frum, "Smearing Alexander Hamilton," The Weekly Standard (Oct. 19, 1998) at 14.

But the Alexander Hamilton incident President Clinton cites actually clarifies the precise point at which personal misconduct becomes a public offense. Hamilton could keep his secret only by a betrayal of public responsibilities. Hamilton came to that point and, at immense personal cost, refused to cross the line. President Clinton came to that point and, fully understanding what he was doing, knowingly charged across the line. President Clinton's public acts of perjury and obstruction of justice transformed a personal misconduct into a public offense.

4. The Views of the Prominent Historians and Legal Scholars the President Cites Do Not Stand Up to Careful Scrutiny.



It speaks volumes that the most distinguished of the 400 historians referred to in President Clinton's trial brief is Arthur Schlesinger, Jr. Professor Schlesinger had a different view of impeachment 25 years ago. President Clinton himself asserts that "the allegations are so far removed from official wrongdoing that their assertion here threatens to weaken significantly the Presidency itself." President's Trial Memorandum at 24. However, Schlesinger has written that:

The genius of impeachment lay in the fact that it could punish the man without the punishing the office. For, in the Presidency as elsewhere, power was ambiguous: the power to do good meant also the power to do harm, the power to serve the republic also the power to demean and defile it.



Arthur Schlesinger, Jr., The Imperial Presidency, (Easton Press edit. 1973) (hereinafter "Schlesinger") at 415.

The statement of the 400 historians cited with approval in the President's trial memorandum makes the following statement: "[t]he Framers explicitly reserved that step for high crimes and misdemeanors in the exercise of executive power." Statement of Historians in Defense of the Constitution, The New York Times (Oct. 30, 1998) at A15. The 400 historians then believe that commission of a murder or rape by the President of the United States in his personal capacity is not subject to the impeachment power of Article II, Section 4.

President Clinton in his trial memorandum asserts that this case does not fit the paradigmatic case for impeachment. President's Trial Memorandum at 24. However, none of his predecessors ever faced overwhelming evidence of repeatedly lying under oath before a federal court and grand jury and otherwise seeking to obstruct justice to benefit himself -- directly contradicting his oath to "take care that the laws are faithfully executed." But as former Attorney General Griffin Bell, who served under President Carter, said before the House Judiciary Committee recently, "[a] President cannot faithfully execute the laws if he himself is breaking them." Background and History of Impeachment: Hearings Before the Subcomm. on the Constitution of the House Comm. on the Judiciary, 105th Cong., 2d Sess. at 203 (Comm. Print 1998) (Testimony of Judge Griffin B. Bell).

President Clinton goes on to state that to make the offenses alleged against him impeachable and removable conduct "would forever lower the bar in a way inimical to the Presidency and to our government of separated powers. These articles allege (1) sexual misbehavior, (2) statements about sexual misbehavior and (3) attempts to conceal the fact of sexual misbehavior." President's Trial Memorandum at 26. While President Clinton and his able counsel would like to define the case this way, what is at issue in the articles of impeachment before the Senate is clear: perjury and obstruction of justice committed by the President of the United States in order to thwart a duly instituted civil rights sexual harassment lawsuit against him as well as a subsequent grand jury investigation. While the President may think such allegations would forever lower the bar in terms of the conduct we expect from our public officials, we must square his opinion and that of his lawyers with the fact that his Justice Department puts people in prison for similar conduct. While the President's brief again quotes Arthur Schlesinger, Jr. for the proposition that we must not "lower the bar," President's Trial Memorandum at 26, Schlesinger held a different view during the impeachment of President Nixon:

If the Nixon White House escaped the legal consequences of its illegal behavior, why would future Presidents and their associates not suppose themselves entitled to do what the Nixon White House had done? Only condign punishment would restore popular faith in the Presidency and deter future Presidents from illegal conduct.



Schlesinger at 418.

5. The President and Federal Judges are Impeached, Convicted, and Removed from Office Under the Same Standard.



President Clinton's argument that Presidents are held to a lower standard of behavior than federal judges completely misreads the Constitution and the Senate's precedents. See generally House Trial Brief at 101-06. The Constitution provides one standard for the impeachment, conviction, and removal from office of "[t]he President, the Vice President, and all civil officers of the United States." U.S.Const. art II, 4. It is the commission of "Treason, Bribery, or other high Crimes and Misdemeanors." Id. The Senate has already determined that perjury is a high crime and misdemeanor in the cases of Judge Nixon, Judge Hastings, and Judge Claiborne.

President Clinton argues that the standard differs because judges have life tenure whereas Presidents are accountable to the voters at elections. That argument fails on several grounds. The differing tenures are set forth in the Constitution, and there is simply no textual support for the idea that they affect the impeachment standard at all. If electoral accountability were a sufficient means of remedying presidential misconduct, the framers would not have explicitly included the President in the impeachment clause. Finally, even if this argument were otherwise valid, it does not apply to President Clinton because he will never face the voters again. U.S. Const. amend. XXII. Indeed, all of the conduct charged in the Articles occurred after the 1996 election.

Then President Clinton rejects the Senate's own precedents showing that perjury is a high crime and misdemeanor in the three judicial impeachments of the 1980s arguing that all of the lying involved there concerned the judges' official duties. That is true with respect to Judge Hastings, but completely false with respect to Judge Claiborne and Judge Nixon. Judge Claiborne was impeached and convicted for lying on his income tax returns, an entirely personal matter. President Clinton tries to explain this away by saying: "Once convicted, [Judge Claiborne] simply could not perform his official functions because his personal probity had been impaired such that he could not longer be an arbiter of others' oaths." President's Trial Memorandum at 29. The same is true of President Clinton. He ultimately directs the Department of Justice which must decide whether people are prosecuted for lying. If he has committed perjury and obstructed justice, how can he be the arbiter of other's oaths? As Professor Jonathan Turley put it:

As Chief Executive the President stands as the ultimate authority over the Justice Department and the Administration's enforcement policies. It is unclear how prosecutors can legitimately threaten, let alone prosecute, citizens who have committed perjury or obstruction of justice under circumstances nearly identical to the President's. Such inherent conflict will be even greater in the military cases and the President's role as Commander-in-Chief.



Background and History of Impeachment: Hearings Before the Subcomm. on the Constitution of the House Comm. on the Judiciary, 105th Cong., 2d Sess. at 274 (Comm. Print 1998) (Testimony of Professor Jonathan Turley).

In the same vein, President Clinton claims that Judge Nixon "employ[ed] the power and prestige of his office to obtain advantage for a party." President's Trial Brief at 29. In fact, Judge Nixon intervened in a state criminal case in which he had no official role. His ability to persuade the prosecutor to drop the case rested on his friendship with the state prosecutor -- not his official position. President Clinton argues that it was Judge Nixon's intervention in a judicial proceeding that ties it to his official position. The same is true of President Clinton. He intervened in two judicial proceedings and his actions had the same effect as Judge Nixon's - to defeat a just result.

As the person who ultimately directs the Justice Department - the federal government's prosecutorial authority - the President must follow his constitutional duty to take care that the laws are faithfully executed. U.S. Const. art. II, 3. His special constitutional duty is at least as high, if not higher, than the judge's. Indeed, President Clinton acknowledged as much early in his Administration when controversy arose about the nomination of Zoe Baird and the potential nomination of Judge Kimba Wood to be Attorney General. Questions were raised about whether they had properly complied with laws relating to their hiring of household help. At that time, President Clinton said the Attorney General "should be held to a higher standard than other Cabinet members on matters of this kind [i.e. strictly complying with the law]." Remarks of President Clinton with Reporters Prior to a Meeting with Economic Advisers, February 8, 1993, 29 Weekly Compilation of Presidential Documents 160. If the Attorney General is held to a higher standard of compliance with the law, then her superior, President Clinton, must be also.

B. The Individual Consciences of Senators Determines the Burden of Proof in Impeachment Trials.



The Constitution does not discuss the standard of proof for impeachment trials. It simply states that "the Senate shall have the Power to try all Impeachments." U.S. Const., Art I, Sec. 3, clause 5. Because the Constitution is silent on the matter, it is appropriate to look at the past practice of the Senate. Historically, the Senate has never set a standard of proof for impeachment trials. "In the final analysis the question is one which historically has been answered by individual Senators guided by their own consciences." Congressional Research Service Report for Congress, Standard of Proof in Senate Impeachment Proceedings, Thomas B. Ripy, Legislative Attorney, American Law Division (January 7, 1999).

President Clinton argues that the impeachment trial is similar to a criminal trial and that the appropriate standard should therefore be "beyond a reasonable doubt." That argument is not new: it has been made in the past, and the Senate has rejected it, as, indeed, President Clinton acknowledges. He asserts, however, that the impeachment trial of a President should proceed under special procedures that do not apply to the trial of other civil officers. His arguments are unpersuasive.

1. The Senate has Never Adopted the Criminal Standard of "Beyond a Reasonable Doubt" or Any Other Standard of Proof for Impeachment Trials.



The Senate has never adopted the standard of "beyond a reasonable doubt" in any impeachment trial in U.S. history. In fact, the Senate has chosen not to impose a standard at all, preferring to leave to the conscience of each senator the decision of how best to judge the facts presented.

In the impeachment trial of Judge Harry Claiborne, counsel for the respondent moved to designate "beyond a reasonable doubt" as the standard of proof for conviction. Gray & Reams, The Congressional Impeachment Process and the Judiciary: Documents and Materials on the Removal of Federal District Judge Harry E. Claiborne, Volume 5, Document 41, X (1987). The Senate overwhelmingly rejected the motion by a vote of 17-75. In the floor debate on the motion, House Manager Kastenmeier emphasized that the Senate has historically allowed each member to exercise his personal judgment in these cases. 132 Cong. Rec. S15489 - S15490 (daily ed. October 7, 1986).

The question of the appropriate standard of proof was also raised in the trial of Judge Alcee Hastings. In the Senate Impeachment Trial Committee, Senator Rudman said in response to a question about the historical practice regarding the standard of proof that there has been no specific standard, "you are not going to find it. It is what is in the mind of every Senator. . . . I think it is what everybody decides for themselves." Report of the Senate Impeachment Trial Committee on the Articles Against Judge Alcee Hastings: Hearings before the Senate Impeachment Trial Committee (Part 1) 101st Cong., 1st Sess. 73-75, (discussion involving Senator Lieberman and Senator Rudman).

2. The Criminal Standard of Proof is Inappropriate for Impeachment Trials.

President Clinton argues that an impeachment trial is akin to a criminal trial and that, therefore, the criminal standard should apply. That assertion is, of course, at direct odds with his apparent opposition to the presentation of evidence through witnesses, another normal criminal trial procedure. The Senate Rules Committee rejected this analogy in 1974, stating, "an impeachment trial is not a criminal trial," and advocating a clear and convincing evidence standard. Executive Session Hearings, U.S. Senate Committee on Rules and Administration, "Senate Rules and Precedents Applicable to Impeachment Trials" 93rd Cong., 2d Sess. (August 5-6, 1974). Indeed, it is undisputed that impeachable offenses need not be criminal offenses. See Submission by Counsel for President Clinton to the Committee on the Judiciary of the United States House of Representatives, 105th Cong., 2d Sess. at 14 (Comm. Print Ser. No. 16 1998) ("Impeachable acts need not be criminal acts.")

Moreover, the result of conviction in an impeachment trial is removal from office, not punishment. As the House argued in the Claiborne trial, the reasonable doubt standard was designed to protect criminal defendants who risked "forfeitures of life, liberty and property"(quoting Brinegar v. United States, 338 U.S. 160, 174 (1949)). This standard is inappropriate here because the Constitution limits the consequences of a Senate impeachment trial to removal from office and disqualification from holding office in the future, explicitly preserving the option for a subsequent criminal trial in the courts. U.S. Const. art. II, 3, cl. 6.

In addition, as the House argued in the Claiborne trial, the criminal standard is inappropriate because impeachment is, by its nature, a proceeding where the public interest weighs more heavily than the interest of the individual defendant. Gray & Reams, The Congressional Impeachment Process and the Judiciary: Documents and Materials on the Removal of Federal District Judge Harry E. Claiborne, Volume 5, Document 41, X (1987). During the course of the floor debate on this motion in the Claiborne trial, Representative Kastenmeier argued for the House that the use of the criminal standard was inappropriate where the public interest in removing corrupt officials was a significant factor. 132 Cong. Rec. S15489 - S15490 (daily ed. October 7, 1986).

3. A President Who is Impeached Should Not Receive Special Procedural Benefits That Do Not Apply in the Impeachment Trials of Other Civil Officers.



President Clinton argues that he should be exempted from the weight of historical practice and precedent and be given a special rule on the standard of proof. This argument is based on fallacious assertions, the first of which is that different constitutional standards apply to the impeachment of judges and presidents. See above at 14-16 and House Trial Memorandum at 101-06.

President Clinton also employs inflammatory rhetoric to suggest that a presidential impeachment trial ought to be treated differently, explaining that the criminal standard is needed because "the Presidency itself is at stake" and because conviction would "overturn the results of an election." President's Trial Memorandum at 32-33. The presidency is, of course, not at stake, though the tenure of its current office holder may be. The 25th Amendment to the Constitution ensures that impeachment and removal of a President would not overturn an election because it is the elected Vice President who would replace the President not the losing presidential candidate.

Finally, President Clinton argues that the evidence should be tested by the most stringent standard because "there is no suggestion of corruption or misuse of office - or any other conduct that places our system of government at risk in the two remaining years of the President's term." President's Trial Memorandum at 33. While the President might be expected to argue that he did not act corruptly, he cannot credibly assert that "there is no suggestion of corruption," because "corrupt" conduct is precisely what he is charged with in the articles of impeachment. Though not persuasive as an argument, this statement is significant in what it concedes - that corruption is among the "conduct that places our system of government at risk." President's Trial Memorandum at 33. Having acknowledged this, President Clinton cannot be heard to complain that the House has failed to charge him with conduct which rises to the level of an impeachable offense.





IV. The Structure of the Articles is Proper and Sufficient.

A. The Articles are Not Unconstitutionally Vague.

President Clinton's trial memorandum argues that the two articles of impeachment are unfairly complex. To the contrary, the articles present the misdeeds of President Clinton and their consequences in as transparent and understandable a manner as possible.

The first article of impeachment charges that President Clinton violated his enumerated constitutional responsibilities by willfully corrupting and manipulating the judicial process. He did this by providing perjurious, false and misleading testimony to a grand jury in regard to one or more of four matters. The deleterious consequences his actions had for the people of the United States are then described. The second article charges that President Clinton violated his enumerated constitutional responsibilities by a course of conduct that prevented, obstructed, and impeded the administration of justice. One or more of seven listed acts constitute the particulars of President Clinton's course of conduct. As in the first article, the deleterious consequences his actions had for the people of the United States are then described.

To do as President Clinton requests would require separating out into a unique article of impeachment each possible combination of a) a particular violation of his duties, b) a particular wrongful act, and c) a particular consequence of his actions. This would require 48 different articles in the case of the first article and 84 in the case of the second. Such a multiplicity of articles is not required and would assist no one. Of course, if the president had violated fewer presidential duties, committed fewer misdeeds, and been responsible for fewer harmful consequences to the American people, the articles could have been drafted more simply.

The trial memorandum then makes the contention that the two articles of impeachment are impermissibly vague and lacking in specificity in that they do not meet the standards of a criminal indictment. This contention clearly misses the mark. Impeachment is a political and not a criminal proceeding, designed, as recognized by Justice Joseph Story, the Constitution's greatest nineteenth century interpreter, "not . . . to punish an offender" by threatening deprivation of his life or liberty, but to "secure the state" by "divest[ing] him of his political capacity". J. Story, Commentaries on the Constitution (R. Rotunda & J. Nowak eds., 1987) 803. Justice Story thus found the analogy to an indictment to be invalid:

The articles . . . need not, and indeed do not, pursue the strict form and accuracy of an indictment. They are sometimes quite general in the form of the allegations; but always contain, or ought to contain, so much certainty, as to enable the party to put himself upon the proper defense, and also, in case of an acquittal, to avail himself of it, as a bar to another impeachment.



Id. at 806.



In explaining the impeachment process to the citizens of New York in Federalist No. 65, Alexander Hamilton stated in more general terms that impeachment "can never be tied down by such strict rules, either in the delineation of the offense by the prosecutors or in the construction of it by the judges, as in common cases serve to limit the discretion of courts in favor of personal security." The Federalist No. 65, at 398 (Clinton Rossiter ed., 1961).

Can the president legitimately argue that he is unable to put on a proper defense? President Clinton has committed a great number of impeachable misdeeds. The House Judiciary Committee's committee report requires 20 pages just to list the most glaring instances of the president's perjurious, false, and misleading testimony before a federal grand jury and it requires 13 pages just to list the most glaring incidents in the president's course of conduct designed to prevent, obstruct, and impede the administration of justice. The House believes that President Clinton's attorneys have reviewed the committee report. They know exactly what he is being charged with, as is acknowledged in the president's trial memorandum. The memorandum states in its introduction that "[t]ake away the elaborate trappings of the Articles and the high-flying rhetoric that accompanied them, and we see clearly that the House of Representatives asks the Senate to remove the President from office because he . . . ." President's Trial Memorandum at 2. In addition, in the House proceedings, the President filed three documents: a Preliminary Memorandum, an Initial Response, and a Submission by Counsel. The first two documents were printed together and ran to 57 pages. Preliminary Memorandum of the President of the United States Concerning Referral of the Office of the Independent Counsel and Initial Response of the President of the United States to Referral of the Office of the Independent Counsel, 105th Cong., 2d Sess., H. Doc. No. 105-317 (1998). The third was printed and ran to 404 pages. Submission by Counsel for President Clinton to the Committee on the Judiciary of the United States House of Representatives, 105th Cong., 2d Sess. (Comm. Print Ser. No. 16 1998). He was also given 30 hours to present his case before the House Committee on the Judiciary, during which he called numerous witnesses. The Committee repeatedly asked President Clinton to provide it with any exculpatory evidence, an offer which he never accepted. Now President Clinton's Trial Memorandum to the Senate runs to 130 pages. Clearly, President Clinton has not suffered from any lack of specificity in the articles of impeachment.

If he had, he would have availed himself of the opportunity to file a motion for a bill of particulars. He had that opportunity on January 11, 1999, and he waived it. He should not now be heard to claim that he does not know what the charges are.

Unlike the judicial impeachments of the 1980s, President Clinton has not committed a handful of specific misdeeds that can easily be listed in separate articles of impeachment. In order to encompass the whole melange of misdeeds that caused the House of Representatives to impeach President Clinton, the Judiciary Committee looked to the only analogous case -- that of President Nixon. In 1974, the Committee was also faced with drafting articles of impeachment of a reasonable length against a president who had committed a long series of improper acts designed to achieve an illicit end.

The first article of impeachment against President Nixon charged that in order to cover up an unlawful entry into the headquarters of the Democratic National Committee and to delay, impede, and obstruct the consequent investigation (and for certain other purposes), he engaged in a series of acts such as "making or causing to be made false or misleading statements to lawfully authorized investigative officers", "endeavoring to misuse the Central Intelligence Agency", and "endeavoring to cause prospective defendants and individuals duly tried and convicted, to expect favored treatment and consideration in return for their silence or false testimony." Impeachment of Richard M. Nixon, President of the United States, H.Rept. No. 93-1305, 93rd Cong., 2d Sess. 2 (1974). The article did not list each false or misleading statement, did not list each misuse of the CIA, and did not list each prospective defendant and what they were promised.

In like fashion, the articles of impeachment against President Clinton charge him with providing perjurious, false, and misleading testimony concerning four subjects, such as his relationship with a subordinate government employee, and engaging in a course of conduct designed to prevent, obstruct, and impede the administration of justice, such course including four general acts such as an effort to secure job assistance for that employee. An argument can be made that the articles of impeachment against President Clinton were drafted with more specificity than those against President Nixon. Unless President Clinton is arguing that the Senate should have dismissed the first article of impeachment against President Nixon (had the president not resigned), he has little ground to complain about the articles against himself. In short, President Clinton knows exactly what the charges are, and the Senate should now require him to account for his behavior.

B. The Articles Do Not Improperly Charge Multiple Offenses in One Article.

President Clinton argues unpersuasively that the articles of impeachment are "unconstitutionally flawed" in two respects. First, he argues that "by charging multiple wrongs in one article, the House of Representatives has made it impossible for the Senate to comply with the Constitutional mandate that any conviction be by the concurrence of two-thirds of the members." President's Trial Memorandum at 101. Second, he argues that the articles do not provide him "the most basic notice of the charges against him required by due process and fundamental fairness." Id. Both arguments are factually deficient, ignore Senate precedent and procedure, and are constitutionally flawed.

The articles of impeachment allege that the President made "one or more" "perjurious, false and misleading statements to the grand jury" and committed "one or more" acts in which he obstructed justice. H. Res. 611, 105th Cong. 2nd Sess. (1998). The articles of impeachment are modeled after those adopted by the House Committee on the Judiciary against President Nixon and were drafted with the rules of the Senate in mind. Senate Rules specifically contemplate that the House may draft articles of impeachment in this manner and prior rulings of the Senate have held that such drafting is not deficient and will not sustain a motion to dismiss.

In 1986, the United States Senate amended the Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials. S. Res. 479, 99th Cong., 2nd Sess. (1986). As part of the reform, Rule XXIII, which deals generally with voting the final question, was amended to clarify that articles of impeachment are not divisible. Rule XXIII provides in relevant part that:

An article of impeachment shall not be divisible for the purpose of voting thereon at any time during the trial. Once voting has commenced on an article of impeachment, voting shall be continued until voting has been completed on all articles of impeachment unless the Senate adjourns for period not to exceed one day or adjourns sine die.



The Senate Committee on Rules and Administration, after thoroughly reviewing the impeachment rules, prior articles of impeachments, and prior Senate trials, decided that articles of impeachment should not be divisible. In drafting the amendment to Rule XXIII providing that articles of impeachment not be divided, the Senate was aware that the House may combine multiple counts of impeachable conduct in one article of impeachment. The Committee report explains the Senate's position:

The portion of the amendment effectively enjoining the division of an article into separate specifications is proposed to permit the most judicious and efficacious handling of the final question both as a general manner and, in particular, with respect to the form of the articles that proposed the impeachment of President Richard M. Nixon. The latter did not follow the more familiar pattern of embodying an impeachable offense in an individual article but, in respect to the first and second of those articles, set out broadly based charges alleging constitutional improprieties followed by a recital of transactions illustrative or supportive of such charges. The wording of Articles I and II expressly provided that a conviction could be had thereunder if supported by "one or more of the" enumerated specifications. The general view of the Committee at that time was expressed by Senators Byrd and Allen, both of whom felt that division of the articles in question into potentially 14 separately voted specifications might "be time consuming and confusing, and a matter which could create great chaos and division, bitterness, and ill will * * *." Accordingly, it was agreed to write into the proposed rules language which would allow each Senator to vote to convict under either the first or second articles if he were convinced that the person impeached was "guilty" of one or more of the enumerated specifications."



Amending the Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials, Report of the Comm. on Rules and Administration, S. Rept. 99-401, 99th Cong., 2nd Sess., at 8 (1986) (emphasis added). Because the Senate was aware that multiple specifications of impeachable conduct may be contained in an article of impeachment, the Senate's rules implicitly countenance such drafting.

The issue regarding whether articles of impeachment are divisible is not new to the Senate. In fact, the Senate's Committee on Rules and Administration reviewed the Senate's impeachment procedures in 1974 to prepare for a possible trial of President Richard Nixon. The Committee passed the exact same language as the Committee did in 1986 prohibiting the division of an article of impeachment. Because President Nixon resigned, the full Senate never considered the amendments.

Senator Jacob K. Javits of New York submitted a statement to the Committee in 1974 addressing the divisibility issue and advised that Rule XXIII be amended to prohibit the division of an article of impeachment. His comments, as follows, are instructive:

Rule XXIII provides for the yeas and nays to be taken on each article separately but does not set any order for a vote when there are several articles. In the [President] Johnson trial, this was done by order of the Senate and several votes were taken on the order. This procedure, setting a vote for final consideration, should be stated in the rules. Also the rule is silent about the division of any article. In the Johnson trial a division was requested and the Chief Justice attempted to devise one, but could not, and the article as a whole was submitted for a vote to the Senate. I believe articles should not be divided because this raises a further question of whether a two-thirds vote is required on each part of an article and whether the House action on the construction of a particular article can be changed without further action by the House. Thus the rule should provide for no division of an article by the Senate.

Senate Rules and Precedents Applicable to Impeachment Trials, Executive Session Hearings before the Comm. on Standing Rules and Administration, 93rd Cong., 2nd Sess. at 116 (August 5th and 6th, 1974) (emphasis added).

In addition to implicitly recognizing that articles of impeachment may contain multiple specifications of impeachable offenses, the Senate has convicted a number of judges on such "omnibus" articles, including Judges Archbald, Ritter, and Claiborne. In the case of Judge Nixon, the Senate acquitted on the article, but refused to dismiss it.

The most recent example, that of Judge Nixon in 1989, is instructive. Judge Walter L. Nixon filed a motion to dismiss on the grounds that Article III was duplicative, among other things. Senator Fowler, the chairman of the committee appointed to take evidence in the impeachment trial of Judge Nixon explained the reasons for denying Nixon's motion to refer the motion to dismiss to the full Senate:

To the extent that the motion rests on the House's inclusion of fourteen distinct allegations of false statements in one article, we believe that Article III states an intelligible and adequately discrete charge of an impeachable offense by alleging that Judge Nixon concealed information concerning several conversations in which he had engaged by making "one or more" false statements to a grand jury. The House has substantial discretion in determining how to aggregate related alleged acts of misconduct in framing Articles of Impeachment and has historically frequently chosen to aggregate multiple factual allegations in a single impeachment article. The House's itemization of the fourteen particular statements whose knowing falsity it is alleging serves to give Judge Nixon fair notice of the contours of the charge against him without reducing the intelligibility of the article's essential accusation that Judge Nixon knowingly concealed material information from the government's law enforcement agents. Because the Committee believes that evidentiary proceedings may fairly be conducted on Article III as it is presently drafted, Judge Nixon's motion to refer his motion to dismiss Article III to the Senate at this time is denied.

135 Cong. Rec.19635-36 (September 6, 1989).

The full Senate eventually rejected Judge Nixon's motion to dismiss by a vote of 34 to 63. Mr. Manager Cardin persuasively summed up the argument against the motion to dismiss as follows:

Judge Nixon argues, in his brief, that you must find all 14 statements to be false to vote guilty on article III. But that is untrue. Read the article closely. The question posed by article III is, did Judge Nixon conceal information? Did he conceal information, first by one or more false or misleading statements in his interview, and then by one or more false and misleading statements in his grand jury testimony?



You need not find all 14 statements to be false. The House is unanimously convinced that all 14 are complete and utter lies. We hope you will agree. But after considering the evidence, perhaps you will conclude that only 12 of the statements are false. It really does not matter. Just one intentionally false and misleading statement in the interview, or one in the grand jury, should be enough. Because if you conclude that Judge Nixon concealed information, whether by 1 false statement or 14, he should be removed from the bench. You should vote guilty on article III.



And you need not necessarily agree on which statements are false, if you reach the conclusion that he concealed information. If two-thirds of the Senators present believe Judge Nixon lied, regardless of how each individual Senator reached that conclusion, he will properly be removed from office.



* * *



This is by no means unfair to Judge Nixon, for even if you might differ on which particular statements are lies, the bottom line is that two-thirds of you will have agreed that he concealed information, rendering him unfit for office. That is what the Constitution requires.



Id. at 26751.

Given the clear Senate precedent permitting articles of impeachment containing multiple specifications of impeachable offenses, the President's attack on the construction of the articles is an attack on Senate rules and precedent. The President's concerns, if assumed to be valid, could be addressed simply by permitting a division of the question. Under the standing rules of the Senate, any Senator may have the same divided if "the question in debate contains several propositions." Senate Rule XV. A question is divisible if it contains two or more separate and distinct propositions. The Senate, however, has made an affirmative decision to dispense with the regular order which governs bills, resolutions, and amendments thereto, and instead adopted a different procedure not permitting the division of articles of impeachment. The Senate has not acted unconstitutionally in the past regarding prior impeachments, and is not on a course to do so in the trial of President Clinton.

The claim that President Clinton is not on notice regarding the charges is ludicrous. The Lewinsky matter is arguably the most reported and scrutinized story of 1998 and possibly of 1999. The facts of the case are contained in numerous documents, statements, reports, and filings Specifically, President Clinton has had the following documents, among others, containing the facts and specifics of the case: 1) Referral from Independent Counsel Kenneth W. Starr in Conformity with the Requirements of Title 28, United States Code, Section 595(c), H. Doc. 105-310, 105th Cong., 2nd Sess. (1998); 2) Investigatory Powers of the Comm. on the Judiciary with Respect to its Impeachment Inquiry, H. Rept. 105-795, 105th Cong., 2nd Sess. (October 7, 1998); 3) Impeachment of William Jefferson Clinton, President of the United States, 105th Cong., 2nd Sess., H.R. Rept. 105-830 (Dec. 16, 1998); and 4) Trial Memorandum of the United States House of Representatives. If all of these reports and the thousands of pages of documents are not enough, President Clinton will have the opportunity to review the presentation of the Managers on the Part of the House for up to twenty-four hours.

V. President Clinton Completely Misstates the Record as to the Discovery Procedures that Were Available to Him in the House of Representatives.



President Clinton's trial memorandum claimed to the Senate that, should it decide "to allow the House managers to expand the record in some way . . . the President would have an urgent need for the discovery of relevant evidence, because at no point in these proceedings has he been able to subpoena documents or summon or cross-examine witnesses." President's Trial Memorandum at 125 (emphasis added). The President also states that "the House of Representatives [did not] afford the President any discovery mechanisms to secure evidence that might be helpful in his defense." Id.

We will not address every discovery issue here since those issues will be resolved in the coming days; however, the Senate should know that these claims are absolutely false. In fact, the President's own brief refutes his claims. "The Committee allowed the President's lawyers two days in which to present a defense. The White House presented four panels of distinguished expert witnesses . . . ." White House Counsel Charles F.C. Ruff presented argument to the Committee on behalf of the President . . . ." Id. at 13.

The House Committee on the Judiciary repeatedly asked the President's attorneys to supply any exculpatory evidence to the Committee, both orally and in writing. They never did. When, at the last minute, the President's counsel requested witnesses, the Committee invited to testify every witness they requested. Aside from this, President Clinton nor his attorneys never asked to "subpoena documents" or "summon or cross-examine witnesses." If President Clinton's argument is that the Committee did not provide his staff a stack of blank subpoenas, that is correct. However, neither the House of Representatives, nor the Senate, has the ability to "turn over" its constitutionally based subpoena power to the executive branch.

President Clinton's attorneys never asked to do the things they now claim they never had the ability to do. In fact, when minority members of the Committee publicly asked that Judge Starr be called as a witness, Judge Starr was called. In fact, President Clinton's attorney and minority counsel questioned Judge Starr for over two hours. Every Member of the Committee questioned him for at least five minutes each. Judge Starr was a witness, and he was cross-examined by David Kendall, President Clinton's private attorney. President Clinton's claims are just not accurate.

President Clinton's attorneys raise the issue of fairness. They are entitled to their own opinion about the House's proceedings, but they are not entitled to rewrite history. The truth is that the Committee's subpoena power could have been used to subpoena documents or witnesses on behalf of the President if they had so requested. They did not. All they requested, is that lawyers, law professors, and historians testify before the Committee. In short, President Clinton's statements about what happened in the House completely misstate what occurred.

VI. Conclusion

For the reasons stated herein and in the Trial Memorandum of the United States House of Representatives, the House respectfully submits that the articles properly state impeachable offenses, that the Senate should proceed to a full trial on the articles, and that after trial, the Senate should vote to convict President William Jefferson Clinton, remove him from office, and disqualify him from holding further office.

Respectfully submitted,





The United States

House of Representatives







______________________

HENRY J. HYDE

F. JAMES SENSENBRENNER, JR.

BILL McCOLLUM

GEORGE W. GEKAS

CHARLES T. CANADY

STEPHEN E. BUYER

ED BRYANT

STEVE CHABOT

BOB BARR

ASA HUTCHINSON

CHRIS CANNON

JAMES E. ROGAN

LINDSEY O. GRAHAM



Managers on the Part of the House





THOMAS E. MOONEY

General Counsel



DAVID P. SCHIPPERS

Chief Investigative Counsel



DATED: January 14, 1999









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