Transcript: House manager Graham's statement on constitutional law
January 16, 1999
January 16, 1999
REP. LINDSEY GRAHAM (R-South Carolina): Thank you, Mr. Chief Justice. I think I broke the code there. When I hear stomachs growling I know it will be time to wrap this up.
This is an unbelievable occasion for all of us. I'm Lindsey Graham from South Carolina. And we'll talk a lot about civil rights. I'm a child of the South and I will give you my views on civil rights and how we've progressed in this country.
But I'm going to talk to you a bit about some decisions this body has made regarding the crime of perjury and obstruction of justice and the impeachment clause in the Constitution as it applies to federal judges. And I'm not so presumptuous to tell you I know more about what you did than you did. I'm going to try to highlight some of the things that you did I think have served this country well in this area.
But before we get there, a couple of observations. As I was walking over through the rotunda today, there were a group of Japanese tourists there. And I stopped and talked.
And my dad who's now deceased was a World War II veteran. And it struck me 50 years plus how resilient this world is. My dad's generation, I don't think, would have ever envisioned 50 years ago that his son -- one would be a Congressman which is a great thing about this country, would be stopping and talking to Japanese tourists in the capital of the United States.
So when we talk about the consequences of this case, no matter what you decide, in my opinion this country will survive. If you acquit the president, we will survive. If you convict him, it will be traumatic. And if you remove him, it will be traumatic, but we will survive.
And this has been billed as a constitutional drama by some of the pundits that's called a snoozer, and I can understand that a little bit. I'm the twelfth lawyer you've had to listen to, and I think my colleagues have done a very good job.
But it's a very long tedious process in many ways, and it's hard to sit here and listen to 12 lawyers talk to you but you've done a wonderful job I think. I'm very proud of the United States Senate. You've paid great attention.
But the fact that people call this boring is not a bad thing to me. I think it shows the confidence we've achieved in 200 years as a republic that people can go on about their business -- and they're upset -- I know my phone rings a lot and your phones ring a lot about what to do, but there's a calmness in this country in the midst of something so important like this, that tells me we've done it right for a long time.
How many countries would love the chance to be bored when their government is in action? How many countries fear that the government won't work for them, that to get it right, you got to pick up a gun?
That happens everyday throughout this world and the fact that we can come together and talk about something so important and the country can go on and people not be anxious about their personal lives and their freedoms and their properties and their jobs, is a compliment to every generations who has ever served this republic.
And Tom Brokaw's got a book out called "The Greatest Generation," and I recommend it to you to read because we will be talking about values in a moment. But let's talk about some of this country's imperfections.
Mr. Buyer talked about very eloquently the rule of law and how it makes us so different, and how it's something that people literally do die for and have died for.
But let me tell you as a lawyer it is not a perfect legal system. If you're a poor person and you're charged with a crime, you're likely to get a public defender right out of law school, and hopefully that public defender will do the best he can or she can. But it's not a perfect system. Don't ever think it is.
Civil rights have been advanced a lot in my lifetime, but we've got a long way to go in South Carolina.
I think we got a long way to go in this nation.
In my lifetime, I started school with no black person in my class. By the sixth grade, I think it was the sixth grade, integration hit in my area. And I can remember my mom and dad being scared to death about what it would do and what it would mean. But we made it, and we're better off as a country.
So we're here to judge our president. We're here to say whether or not he's guilty, to begin with, of some serious offenses that are colored by sex. And there's absolutely no way to get around that. And I know it's uncomfortable to listen to.
My father and mother owned a restaurant, a beer joint I guess is what we'd say in South Carolina. I can remember that if you were black you came and you had to buy the beer and you had to go because you couldn't drink it there. That's just the way it was, is what my dad said.
I always never quite understood that. But my dad and mom were good people. But that's just the way it was.
Well that's not the way it is now and we're better off for that.
In sexual harassment cases, it's always uncomfortable to listen to. That's just the way it is.
It used to be in this country not long ago, there was really no recourse if you were sexually harassed. We've changed things for the better.
The reason we're here today is not because somebody wanted to look into the personal life of the president for no good reason. We're here today because somebody accused him when he was governor, of picking them out of a crowd, asking her to come to a hotel room, and if you believe her, did something very crude and rude that you wouldn't want to happen to anybody in your family.
Now only God knows what happened there. That case has been settled. The parties know and God knows.
We'll never know.
But let me just say this. I'm proud of my country where you as a low level employee can sue the governor of your state. And if that governor becomes president, you can still sue. The Supreme Court said 9-to-0, a shut out legally, Mr. President, you will stand subject to this suit.
And we're going to talk about is this private or public conduct. Does this go to the heart of being president, or is this just some private matter he could be prosecuted after he gets out of office. Is this really a big deal about being president.
I would contend to you, ladies and gentlemen of the Senate, it became a big deal about being president when he raised the defense you can't sue me now because I'm the president. I'm a busy man. I've got a lot going on. He used his office -- or tried to -- to avoid the day in court. But the Supreme Court said, no sir, you will stand subject to suit under some reasonable accommodations.
And we're here today. If I had been on the Supreme Court, I don't know if I would have ruled that way. There's not much chance of that happening any time soon if you're worried about that.
I don't think that's going to be in my future, but...
I may not have ruled that way. And we in Congress, if we don't like the way all this has come out, we can change that law, we can change that ruling by law. But it's the law of the land because the chief justice and his colleagues said so.
What did our president do? He tried to say, you can't sue me because I'm president. Well, he participated in that lawsuit because he was told to. And I would argue, ladies and gentlemen, that we all assumed he would play fair. Now, isn't there a lot of doubt about that?
Ladies and gentlemen of the Senate, what if he had not shown up? What he had refused to answer any court order? What if he had said, "I'm not going to play, that's it; I'm not going to listen to you, judicial branch"? You know the remedy we have to resolve problems like that, when presidential conduct gets out of bounds? You know where that remedy lies? It lies with us, the United States Congress.
When a president gets out of bounds, and doesn't do as he or she should do, constitutionally -- and I would argue that every president and every citizen has a constitutional duty not to cheat another citizen, especially the president -- and they get out of bounds, it is up to us to put them back in bounds or declare it illegal.
And how do we do that? How do we regulate presidential misconduct when it's done in a presidential fashion? Through the laws and powers of impeachment. That is why we're here today.
It's going to take teamwork on our part to get this right, because I will argue to you in a moment that the president of the United States through his conduct flouted judicial authority and decision-making over him.
When he chose to lie, when he chose to manipulate the evidence, the witnesses against him and get his friends to go lie for him, he, in fact, I think, vetoed that decision.
That's worse than if he hadn't shown up at all. Is that out of bounds? That's what we're going to be talking about today.
And we've got some guidance as to what really is in or out of bounds for high government officials.
What's a high crime? How about if an important person hurts somebody of low means? It's not very scholarly. But I think it's the truth. I think that's what they meant by high crimes. Doesn't even have to be a crime.
It's just when you start using your office and you're acting in a way that hurts people, you have committed a high crime.
When you decide that a course of conduct meets the high crimes standard, under our Constitution, by the president, what are we doing to the presidency?
I think we're putting a burden on the presidency and you should consider it that way.
That if you determine that the conduct and the crimes in this case are high crimes, you need to do so knowing that you're placing a burden on every future occupant of that office and the office itself. So do so cautiously because one branch of the government should never put a burden on another branch of the government that is not fair and they can't bear.
Ladies and gentlemen of the Senate, if you decided from the conduct of this president that henceforth any office holder who occupies the office of president will have this burden to bear, let me tell you what it is. Don't lie under oath to a federal grand jury when many in the country are begging you not to. Can the occupant bear that burden?
I voted against Article II in the House which was the deposition perjury allegations against the president standing alone. I think many of us may have thought that he didn't know about the tapes, that he and Ms. Lewinsky thought they had a story that was going to work.
And he got caught off guard and he started telling a bunch of lies that maybe I would have lied about. Maybe you would have lied about. Because it is personal to have to talk about intimate things. And our human nature is to protect ourselves, our family, that's just human nature.
But, ladies and gentlemen, what he stands charged of in this Senate happened eight months later. After some members of this body said, Mr. President, square yourself with the law. Mr. President, if you go into that federal grand jury and you lie again, you're risking your presidency. People in this body said that. Legal commentators said that.
Professor Dershowitz and I probably don't agree on a lot. I think he would probably agree with that statement. That's be one thing we'd agree on. He said -- and he's a very smart, passionate man, and I like passionate people even if I don't agree with them -- even he said that if you go to a grand jury and you lie as president that ought to be a high crime.
So the context in which you're going to decide this case has to understand human failings, because if you don't do that, you're not being fair. And I know you want to be fair.
Human failings exist in all of us. Only when it gets to be so premeditated, so calculated, so much my interest over anybody else or the public be damned, should you really, really start getting serious about what to do. That happened in August, in my opinion, ladies and gentlemen.
After being begged not to lie to a grand jury and end this matter, he chose to lie.
That's the burden you'd be placing on the next president. Don't do that. Don't lie under oath when you're a defendant in a lawsuit against an average citizen. Have the courage to apply the law in a fair manner to yourself.
Mr. Buyer talked about values and courage. Let me say something about President Clinton that I believe. I believe he does embrace civil rights for our citizens.
I believe he's been an articulate spokesman for civil rights for our citizens. I believe that maybe one of the hallmarks of his presidency, and I'm not here to tell you that he doesn't. I'm here to tell you that when it was it his case, when those rights had to applied to him, he failed miserably.
As always easy to talk about what other people ought to do. The test of character is the way you judge people you disagree with.
Don't cheat in a lawsuit by manipulating the testimony of others. Don't sent public officials and friends to tell your lies before a federal grand jury to avoid your legal responsibilities. Don't put your legal and political interests ahead of the rule of law and common decency.
If you find that these are high crimes, that is the burden you're placing on the next office holder. If they can't meet that burden, this country has a serious problem.
I don't want my country to be the country of great equivocators and compartmentalizers for the next century.
And that's what this case is about -- equivocation and compartmentalizing. What I have described to you as the conduct that the president being in a high crime I think is just his job description. We're asking no more of him than to be the chief law enforcement officer of the land. Follow your job description.
A determination that this conduct is a high crime is no burden that can't be beared in a reasonable fashion by future occupants. Now what did I talk about constitutional team work.
I am a child of the South. The civil rights litigation in matters that came about in the '60s were threefold. There was legislation passed in Congress. There were judicial decisions that were rendered, and the executive branch came in to help out.
Remember when Governor Wallace was standing in the doors of the University of Alabama? Remember how he was told to get aside? What when on?
It was a constitutional dance of magnificent proportions. You had litigation that was resolved for the individual citizen so they could go in and acquire the rights and full benefits of a citizen of that state. You had legislation coming out of this body. And you had defiance against the federal government from the state level. And you had the president and the executive branch federalizing the National Guard and Governor Wallace stepped aside.
When it was nine to nothing that Bill Clinton had to be a participant in a lawsuit and he chose to cheat in every manner you can cheat in a lawsuit, his conduct needs to be regulated and it needs to be brought to bear under the Constitution. And if you put him in jail after his office, that would not solve the constitutional problem he created.
The constitutional conduct exhibited by the executive when he was told by the judicial branch, You've got to participate in a lawsuit, was so far afield of what's fair, what's decent, that it became a high crime.
And it happened to be against a lower person.
The Senate has spoken before about perjury and obstruction of justice and how it applies to high government officials and those government official were judges.
Before we start this analysis, it's important to know and some of you know this better than I will ever hope to know, the history of this Senate, the history of this body, and how it works and why it works. That when a judge is impeached in the United States of America, the same legal standard -- treason, bribery or other high crimes and misdemeanors -- is applied to that judge's conduct as it is to any high official just like the president.
So, we're comparing apples to apples.
Now, in Judge Claiborne's trial, they seized upon the language "judges shall hold their office during good behavior." And the defense was trying to say, unlike the president and other government officials -- high government officials -- the impeachment standard for judges is good behavior. That's the term; it's a different impeachment standard.
You know these cases better than I know these cases, and you said, wrong. The good behavior standard doesn't apply to why you will be removed, it's a just a reference to how long you will have your job.
Our president is two terms. A judge is for life, conditioned on good behavior. What gets you out of oPfice is whether or not you violate the constitutional standard for impeachment, which is treason, bribery or other crimes or misdemeanors.
So as I talk to you about these cases -- and what you as a body did -- understand we're using the same legal standard, not because I said so, but because you said so.
Judge Claiborne, convicted and removed from office by the Senate 90-to-7, for what? Filing a false income tax return under penalties of perjury. One thing they said in that case was, well, I'm a judge, and filing false income tax returns has nothing to do with me being a judge. And I ought not to lose my job unless you can show me or prove that I did something wrong as a judge.
They were saying cheating on your taxes has nothing to do with being a judge. You know what the Senate said? It has everything to do with being a judge. And the reason you said that is because you didn't buy into this idea that the only way you can lose your job as a high government official under the Constitution is to engage in some type of public conduct directly related to what you do every day.
You took a little broader view.
Next chart please.
You took a little broader view, and I'm certainly glad you did, because this is not a country of high officials who are technicians, this is a country based on character, this is a country based on having to set a standard that others will follow willingly.
This is Manager Fish (ph). "Judge Claiborne's actions raise fundamental questions about public confidence in and the public's perception of the federal court system. They serve to undermine the confidence of the American people in our judicial system. Judge Claiborne is more than a mere embarrassment, he is a disgrace, an affront to the judicial office and to the judicial branch he was appointed to serve." That's very strong language.
Apparently you agreed with that concept because 90 of you voted to throw him out. And what did he do? Cheated on his taxes by making false statements under oath.
And we'll talk more about public versus private.
Senator Mathias (ph), about this idea of public versus private. It is my opinion that the impeachment power is not as narrow as Judge Claiborne suggests. There is neither historical nor a logical reason to believe that the framers of the Constitution sought to prohibit the House from impeaching an officer of the United States who had committed treason or bribery or any other high crime or misdemeanor which is a serious offense against the United States and which indicates that the official is unfit to exercise public responsibility, but which is an offense which is technically unrelated to the officer's particular job responsibilities.
This hits it head on. Impeachable conduct does not have to occur in the course of the performance of the officer's official duties. Evidence of misconduct, misbehavior, high crimes and misdemeanors can be justified upon one's private dealings as well as one's exercise of public office.
That, of course, is the situation in this case. Next chart.
It would be absurd to conclude that a judge who committed murder, mayhem, rape or perhaps espionage in his private life, could not be removed from office by the U.S. Senate.
The point you made so well was that we're not buying this. If you're a federal judge and you cheat on your taxes and you lie under oath, it's true that it had nothing to do with your courtroom in a technical sense. But you're going to be judging others and they're going to come before you with their fate in their hands and we don't want somebody like you running our courtroom, because people won't trust the results.
Let's go to Judge Nixon. Try to get you out so we can all have some lunch here. Judge Nixon.
Judge Walter Nixon, convicted and removed from office, for what? Perjury before a grand jury. What was that about? He tried to fix a case for a business partner's son in state court. He went to the prosecutor, who was in state court, and tried to fix the case.
When they investigated the matter, he lied about meeting with the prosecutor. He lied about doing anything related to trying to manipulate the results. He was convicted and he was thrown out of office by the United States Senate.
I guess you could you say, what's that got to do with being a federal judge, it wasn't even in his court? It has got everything to do with being a high public official. Because if he stays in office, what signal are you sending anybody else that you send to his courtroom or anybody else's courtroom?
The question becomes, if a federal judge can be thrown out of office for lying and trying to fix a friend's son's case, can the president of the United States be removed from office for trying to fix his case?
That's not a scholarly word, but that's what happened. He tried to fix his case. He turned the judicial system upside down, every way but loose. He sent his friends to lie for him. He lied for himself. As (ph) any time any relevant question come up, instead of take honorable way out, he just lied and he dug hole, and we're all here today because of that.
And I'm not going over the facts again because you have been bombarded with the facts. But if you believe he committed perjury and you believe he obstructed justice, the reason he did it was to fix his case.
And you've got some records which you can rely upon to see what you ought to do with somebody like that -- Judge Hastings. This federal judge was convicted and removed from office by the United States Senate. But you know what's interesting about this case to me? He was acquitted before he got here.
He was accused of conspiring with another person to take money to fix results in his own court. He gave testimony on his own behalf. The conspirator was convicted, but he was acquitted. And you know what the United States Senate and the House said? We believe your conduct is out of bounds, and we're not bound by that acquittal. We want to get to the truth, and we don't want federal judges that we have a strong suspicion or reasonable belief about that are trying to fix cases in their court.
So, the point I'm trying to make is you don't even have to be convicted of a crime to lose your job in this constitutional republic if this body determines that your conduct as a public official is clearly out of bounds in your role.
Thank God you did that.
Because impeachment is not about punishment. Impeachment is about cleansing the office. Impeachment is about restoring honor and integrity to the office. The remedy of prosecuting William Jefferson Clinton has no affect on the problem you are facing here today in my opinion.
Now every case was tried before it got here with different results. Two of them were convicted; one of them was acquitted. You had a factual record to go upon.
I urge you ladies and gentlemen of the United States Senate that that cannot happen in this case unless we have a trial in its true sense of the word.
The evidence is compelling and overwhelming, but it's only been half told. The learned counsel for the president will have their chance, and they are excellent lawyers. If this is a football game, we're almost to halftime. Please, please wait, because I have sat where they have sat, dying to say something. I know there are things they want to tell you about what we've said that may put this in a different light, and that's coming, and it ought to come.
But there's another thing that you'll have to decide: Has the factual record been developed enough that I can acquit with good conscience, that I can convict and remove with good conscience? In these judge cases there was a full blown trial before it ever got here.
Because we can't prosecute the president criminally, because we can't do the things that happened in the judges' cases, we don't have that record. So I would just commit that to you for your wisdom.
None of this matters unless you believe he committed the offense, and I'm not going to go over that again. You know the facts pretty well, and if there's any doubt, call witnesses, and let's develop them fully, and let's leave no doubt on the table. And let's make sure that history will judge us well, and everybody -- the House and the president -- had a fair shot at proving their case that these things occurred, they're high crimes.
And the hard question now because I don't believe, ladies and gentlemen, that when you look at the totality of what the president did, the prior precedents of the Senate, the fact that he was told by the Supreme Court to go into this litigation matter and he cheated so badly that you would consider these not to be high crimes because you're not placing a burden on this office that the office can't bear. I think that will be resolved, I hope and pray, in a bipartisan fashion.
If we can do nothing else for this country, let us say clearly this conduct is unacceptable by any president. These are in fact high crimes. They go to the core of why we're all here as a nation, the rule of law. And he was told to abide by the rules of litigation, and he cheated, and you've got to put him back in bounds.
Remove him. Determining that it's a high crime puts it back in bounds.
This is a hard question. I am not going to tell you it is not. I do not to be where you're sitting.
I think the evidence will be persuasive that he's guilty. The logic of your past rulings and just fundamental fairness and decency in helping the Supreme Court enforce their rulings, if nothing else, will lead you to a high crime determination.
But we're asking you to remove a popular president.
I don't know why all this occurred and we have a popular president. I know this: That the American people are fundamentally fair. And they have an impression about this case from just tons and tons and tons and tons of talk; tons and tons and tons of spin.
And that one in five they tell me are paying close attention to this. The question you must ask if every American were required to what I have done, is sit silently, listen to the evidence, would it be different?
You are their representatives. They will trust you. This is a cynical age, but I'm an optimist, that no matter what you do, this country will get up and go to work the next day, and they will feel good no matter what it is.
To set aside an election is a very scary thought in a democracy. I do not agree with this president on most major policy initiatives. I did not vote for this president. But he won.
He won twice. To undo that election is tough.
Let me give you some of my thoughts. How many times have you had to go a child, a grandchild, somebody that works for you and give them a lecture that goes along the lines "don't do as I do, do as I say?"
Isn't that a miserable experience?
The problem with keeping this president in office, in my opinion, is that these crimes can't be ignored by anybody who looks at the evidence. They can be explained away and they cn be excused, but they have far reaching consequences, far reaching consequences for the law. And in his role of chief law enforcement officer of the land, how can we say to our fellow citizens that this will not be 20 months of "do as I do" -- "don't do as I do, do as I say"?
What effect will that have? I think it will be devastating. This case is the butt of a thousand jokes. This case is requiring parents and teachers to sit down and explain what lying's all about. This case has created confusion. This case is hitting America far harder than America knows it's been hit.
And it is tempting to let the clock tick. And I would suggest to you, ladies and gentlemen of the Senate, that if you believe he's a perjurer, and did obstruct the justice in a civil rights law suit, the question is not should he stay -- what if he stays?
If you believe this president committed perjury before a grand jury when he was begged not to, and people in this body telling him don't do it because your political career's at stake. If you believe he obstructed justice in a civil rights lawsuit, don't move the bar any more. We have moved the bar for this case a thousand times.
Remember how you felt when you knew you had a perjurer as a judge? When you knew you had somebody who had fundamentally ran over the law that he was forced to uphold, or or responsible for upholding?
Remember how you felt when you knew that judge had gotten so out of bounds that you couldn't put him back in court even though it was unrelated to his court because you'd be doing a disservice to the citizens that would come before him?
A judge has a duty to take care of the individuals fairly that come before their court. The president, ladies and gentlemen of the Senate, has a duty to see that the law applies to everyone fairly. A higher duty. A higher duty in the Constitution.
You couldn't live with yourself knowing that you were going to leave a perjuring judge on the bench. Ladies and gentlemen, as hard as it may be for the same reasons, cleanse this office. The vice president will be waiting outside the doors of this chamber. Our constitutional system is simple and it's genius all at the same time.
If that vice president is asked to come in to assume the mantle of chief executive officer of the land, chief law enforcement officer of the land, it will be tough, it will be painful, but we will survive and we will better for it.
Saturday January 16, 1999
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