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

Sen. Abraham's closed-door impeachment statement

Released into Congressional Record, February 12, 1999

Sen. Spencer Abraham (R-Michigan): In light of our time constraints, I would like to focus my remarks today primarily on the one issue--more than any other--that has arisen during our deliberations: namely, whether the President should be convicted if we find he committed the acts alleged in the Articles.

I believe this issue is not only central to the case at hand, it is also central to all future evaluations and applications of what we do here.

In arguing for the President, White House lawyers have asserted that the threshold for Presidential removal must be very high--and I agree. At the same time, however, we must remember that there is an inverse relationship between the level at which we set the removal bar and the degree of Presidential misconduct we will accept.

So, then, where do we set the bar?

As we know, the Constitution says: The President, Vice President, and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Now it has been suggested by some that a "high Crime" must be a truly heinous crime. But that interpretation is obviously wrong. Treason is certainly among the most heinous crimes. But bribery is not.

Taking a bribe, like treason, is however, a uniquely serious act of misconduct by a public official. That suggests a different meaning for "high Crime," one that is linked somehow to the fact that the person committing it holds public office.

Alexander Hamilton's comment about the impeachment power, quoted by so many of us here, provides the clue. In Federalist 65, Hamilton says: "The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the violation of some public trust."

The President's lawyers invoked this line, but in my view they misread it. They argued that what it means is that a President's conduct must involve misuse of official power if he is to be removed from office.

But that is not what the Constitution demands, or what Hamilton's comment, fairly read, suggests. Otherwise, as has been noted, we would have to leave in office a President or a federal judge who committed murder, so long as they did not use any powers of their office in doing so.

Rather, as Hamilton's language connotes, and our own precedents in the judicial impeachment cases confirm, the connection the Constitution requires between an official's actions and functions is a more practical one: the official's conduct must demonstrate that he or she cannot be trusted with the powers of the office in question.

This rule certainly encompasses official acts demonstrating unfitness for the office in question--but it also reaches beyond such acts.

In my view, we need not determine the outer limits of this principle to decide the question before us today: whether the President's actions, as alleged in these Articles, constitute a violation of a "public trust" as Hamilton uses the term.

The answer to that question is plain when we consider the President's conduct in relation to his responsibilities.

The President's role and status in our system of government are unique. The Constitution vests the executive power in the President, and in the President alone. That means he is the officer chiefly charged with carrying out our laws. Therefore, far more than any federal judge, he holds the scales of justice in his own hands.

In the wrong hands, that power can easily be transformed from the power to carry out the laws, into the power to bend them to one's own ends.

The very nature of the Presidency guarantees that its occupant will face daily temptations to twist the laws for personal gain, for party benefit or for the advantage of friends.

To combat these temptations, the Constitution spells out--in no uncertain terms--that the President shall "take care that the laws be faithfully executed," and the President's oath of office requires him to swear that he will do so.

If he obstructed justice and tampered with witnesses in the Jones case, a federal civil rights case in which he was the defendant, the President violated his oath and failed to perform the bedrock duty of his office. He did not faithfully execute the laws.

A President who commits these acts thereby makes clear that he cannot be trusted to exercise the executive power lawfully in the future, to handle impartially such specific Presidential responsibilities as serving as the final arbiter on bringing federal civil or criminal cases or determining the content of federal regulations--especially if, as will often be the case, he has a personal or a political interest in the outcome.

Surely retaining a President in office under these circumstances constitutes exactly the type of threat to our government and its institutions so many have said must exist for conviction.

That brings the President's alleged conduct squarely within the purview of our impeachment power, whose purpose, as described by Hamilton, is to deal with "the violation of some public trust."

Furthermore, if the Articles' allegations are true, how can we leave the executive power in the hands of a President who, through his false grand jury testimony, even attempted to obstruct and subvert the impeachment process itself?

For this particular grand jury before which the President testified was not only conducting a criminal investigation; it was also charged, under Congressional statute, with advising the House of Representatives as to whether it had received any substantial and credible information that might constitute grounds for impeachment.

The framers placed the impeachment power in our Constitution as the ultimate safeguard to address misuse of the executive power.

A President who commits perjury, intending to thwart an investigation that might otherwise lead to his impeachment, has, I believe, committed a quintessential "high Crime."

Such conduct of necessity impedes, and could even preclude, Congress from fulfilling its constitutional duty to prevent the President from usurping power and engaging in unlawful conduct.

To permit such behavior would set an unacceptable precedent, because it could, in the future, allow nullification of the impeachment process itself, rendering it meaningless.

Hence, a President who acts to subvert what the Framers viewed as the ultimate Constitutional check on abuse of executive power, most certainly violates the public trust as

defined by Hamilton.

Throughout this discussion I have analyzed this case as though one or more of the underlying counts in each impeachment Article were established. I recognize that not everyone has reached this conclusion--and I confess that I have spent countless hours attempting to make this determination of guilt or innocence on each Article.

However, after listening to and studying the evidence, I have concluded beyond any reasonable doubt that the President committed one or more of the acts alleged under each Article. Time does not permit me to fully explain the basis for my conclusions. But, in my view, that is where the evidence inescapably points.

In my opinion, there is no way that the President could have testified as he did in his Jones deposition concerning his relationship with Monica Lewinsky, unless he believed Ms. Lewinsky would validate his false statements if called as a witness.

The President may not have explicitly told her to lie, but when he called her on December 17, he did say "You can always say you were coming to see Betty or that you were bringing me letters."

To whom did he intend her to say this? They'd already agreed on the use of these cover stories in non-legal contexts. The only new audience was, clearly, the Jones court, and the President's comments that night were surely aimed at influencing Ms. Lewinsky's potential testimony before that court, if she were to be subpoenaed.

That this was the President's intent, is confirmed by his own testimony in the Jones case. What did he say when asked if Ms. Lewinsky had come to see him? He said that Ms. Lewinsky had come to visit Betty Currie and perhaps deliver him papers.

In my opinion, there is also no way you can refresh your memory by making assertions you know to be false to another person--as the President twice did to Betty Currie after that deposition. No, the purpose of those statements was to cause her to validate the false testimony he had just given, if she were to be subpoenaed.

And finally, if you believe that was the President's intention, then you must conclude he committed material perjury later, in his grand jury testimony, when in response to the question: "You are saying that your only interest in speaking with Ms. Currie in the days after your deposition was to refresh your own recollection?" he answered with one word: "Yes."

And there is more.

Fellow Senators, none of us asked for this task, but we must live with the consequences of our actions, not just on this administration, but on our nation for generations to come.

That responsibility cannot be shirked. It has led me to a difficult but inexorable decision.

I deeply regret that it is necessary for me to conclude that President William Jefferson Clinton committed obstruction of justice and grand jury perjury as charged in the Articles of Impeachment brought by the House, that these are "High Crimes and Misdemeanors" under our Constitution, and that therefore I must vote to convict him on these charges.

OPINION

The President has been impeached on the grounds that he obstructed justice and tampered with witnesses in connection with a federal civil rights suit in which he was the defendant, and that he committed perjury before a grand jury charged with investigating whether his previous conduct warranted prosecution or possible impeachment. It is our duty to determine whether the President did what the Articles of impeachment charge and, if so, whether his actions were "high Crimes and Misdemeanors" that under our Constitution should bar him from further service in his office.

In considering these questions, I have done my best to imagine that I was deciding them, not about a President of the opposing political party, with whom I disagree on many issues, but about a President of my own party. I have tried to imagine what I would do if confronted with the same evidence concerning a popular Republican President whose policies I strongly supported. I have tried to decide the case before me just as I would the case of such a President.

Let me start with the facts.

After a great deal of listening, research and contemplation, I am compelled by the evidence to conclude that the President did engage in the conduct charged in both Articles. In reaching this conclusion, I rely exclusively on those elements of the case that I believe have been proven beyond a reasonable doubt. Because I believe these dictate my conclusion, I do not decide whether in an impeachment trial, the Constitution requires application of this highest of evidentiary standards, which governs in ordinary criminal cases, or whether it would also be proper for me to rely on any of the other conduct charged by the House, much of which I might well find proven under either of the lower civil law standards.

Let me briefly outline the basis for my conclusions. I will start with the second Article, because the conduct giving rise to it actually occurred first.

In my view the evidence shows beyond a reasonable doubt that, for over eleven months, from December 6, 1997 to November 13, 1998, when the President agreed to pay Paula Jones $850,000 to withdraw her sexual harassment lawsuit, the President engaged in a systematic course of obstructing justice and tampering with witnesses in Ms. Jones's case. There is no room for reasonable doubt that as part of this course of conduct the President made statements to Ms. Monica Lewinsky and Ms. Betty Currie that were intended to cause them to validate, through testimony he thought they could well be called upon to give, the false story he was planning to tell or had already told in his own deposition. These statements to Ms. Lewinsky and Ms. Currie constitute the second and sixth Acts of obstruction and witness tampering charged by the House. There is also no room for reasonable doubt that the President supported efforts to conceal gifts he had given to Ms. Lewinsky after those gifts had been subpoenaed as evidence in that case. That constitutes the third act of obstruction charged by the House.

As to the first Article: I am convinced that the House has shown beyond a reasonable doubt that the President perjured himself before the grand jury in two instances. First, he stated that his only purpose in talking to Ms. Currie in the days following his Jones deposition was to refresh his own recollection, thereby falsely claiming to the grand jury that he did not intend to tamper with her potential testimony if she were called as a witness in the Jones case.

Second, he reaffirmed the veracity of his Jones deposition denial of "sexual relations" with Ms. Lewinsky, under the definition of that term approved by the court in that case. This was not merely a "lie about sex" to protect his family. By the time of his grand jury appearance, the President had already acknowledged to his family his improper relationship with Ms. Lewinsky. Before the grand jury, the President falsely asserted the truth of his earlier sworn statements for the sole purpose of protecting himself from possible prosecution or impeachment.

In light of these conclusions, the final overriding issue is whether the President's actions constitute "high Crimes and Misdemeanors" requiring his removal from office under Article II, section 4 of the Constitution. As has been acknowledge on both sides, reasonable people can differ on this question. And indeed it is only on this issue, whether the President must be removed, that Americans are consequentially divided. A decided majority of Americans agree that the President committed the crimes alleged in at least one of the Articles. And in their hearts I believe a significant majority of my colleagues do as well.

The public, like us, is in disagreement over what the consequences should be. A clear majority oppose removal, but for a variety of reasons--ranging from a feeling that the President does not deserve to be removed, to a concern not to endanger current economic conditions, to a preference for the President over the Vice President, to the belief that, because the President has less than two years remaining in this term, removing his is not worth the disruption it would cause.

These considerations would legitimately play a role in our decision if we were functioning as a legislative body in a parliamentary system deciding whether to retain the current government. But that is not our role here. The Constitution requires the Senate to sit not in an ordinary legislative capacity on this matter, but as a court of impeachment. That is why, at the beginning of a trial on Articles of Impeachment, Article I, section 3 of the Constitution states that Senators must take a special oath to do impartial justice. Accordingly, it is my view that our decision cannot be based on other considerations, but instead must be based on what the Constitution dictates, and taken with a view toward the precedent we will establish regarding what is acceptable Presidential behavior.

In arguing for the President, White House lawyers have asserted that the threshold for Presidential removal must be very high--and I agree. At the same time, however, we must remember that there is an inverse relationship between the level at which we set the removal bar and the degree of Presidential misconduct we will accept.

So, then, where do we set the bar? What does the Constitution dictate? What precedent should we set for the ages?

Let us start with the text of the Constitution, which states simply: "The President, Vice President and all civil Officers of the United States shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."

The first interpretation that has been suggested is that a "high Crime" must be a truly heinous crime. But that is obviously wrong. Treason is certainly among the most heinous crimes. But bribery is not.

Taking a bribe, like treason, is however uniquely serious misconduct by a public official. That suggests a different meaning for "high Crime," one that is linked somehow to

the fact that the person committing it holds public office.

A comment by Alexander Hamilton in Federalist 65 provides the clue.

In Federalist 65, speaking of impeachment, Hamilton says: "The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the violation of some public trust."

The President's lawyers invoke this line, but they misread it. They argue that what it means is that to require removal, a President's conduct must involve misuse of official power.

But that is not what the Constitution demands, or what Hamilton's comment fairly read suggests. Otherwise we would have to leave in office a President or a federal judge who committed murder, so long as they did not use any powers of their office in doing so. Rather, as Hamilton's language connotes, and our own precedents confirm, the connection the Constitution requires between the official's actions and functions is a more practical one: the official's conduct must demonstrate that he or she cannot be trusted with the powers of the office in question. This rule encompasses official acts demonstrating unfitness for the office in question, but it also reaches beyond such acts.

We need not determine the outer limits of its principle to decide the question before us today: whether the President's actions here constitute a violation of a "public trust" as Hamilton uses the term. The answers to that question is plain when we consider his conduct in relation to his responsibilities.

The President's role and status in our system of government are unique. The Constitution vests the executive power in the President, and in the President alone. That means he is the officer chiefly charged with carrying out our laws. Therefore, far more than any federal judge, he holds the scales of justice in his own hands.

In the wrong hands, that power can easily be transformed from the power to carry out the laws into the power to bend them to one's own ends. The very nature of the Presidency guarantees that its occupant will face daily temptations to twist the laws for personal gain, for party benefit or for the advantage of friends in or out of power. To combat these temptations, the Constitution spells out in no uncertain terms that the President shall "take care that the laws be faithfully executed," and his oath of office requires him to swear that he will do so.

By obstructing justice and tampering with witnesses in the Jones case, a federal civil rights case in which he was the defendant, the President violated his oath and failed to perform the bedrock duty of his office. He did not faithfully execute the laws. He thereby made clear that he cannot be trusted to exercise the executive power lawfully in the future, to handle impartially such specific Presidential responsibilities as serving as the final arbiter on bringing federal civil or criminal cases or determining the content of federal regulations--especially if, as will often be the case, he has a personal or political interest in the outcome.

Surely retaining a President in office under these circumstances constitutes the type of threat to our government and its institutions so many have said must exist for conviction. That brings his conduct squarely within the purview of our impeachment power, whose purpose, as described by Hamilton, is to deal with "the violation of some public trust."

Obstruction of justice, witness tampering, and grand jury perjury are serious federal crimes. How do we explain to others who commit them, many out of motives surely as understandable as the President's, that while the President stays in the White House, his Department of Justice is trying to send them to prison? How can we expect ordinary citizens

to accept that the President can remain in office after lying repeatedly under oath in court proceedings, but that it is still their duty to tell the truth?

Finally, how can we leave the executive power in the hands of a President who, through his false grand jury testimony, has even attempted to obstruct and subvert the impeachment process itself? For the particular grand jury before which the President testified falsely was not only conducting a criminal investigation; it was also charged, under Congressional statute, with advising the House of Representatives whether it had received any substantial and credible information that might constitute grounds for impeachment.

The framers placed the impeachment power in our Constitution as the ultimate safeguard to address misuse of the executive power. A President who commits perjury, intending to thwart an investigation that might otherwise lead to his impeachment, has committed a quintessential "high Crime." This crime impeded, and could have even precluded, Congress from fulfilling its duty to prevent the President from usurping power and engaging in unlawful conduct. To permit such behavior could, in effect, allow nullification of the impeachment process itself, rendering it meaningless. Hence, a President who acts to subvert what the Framers viewed as the ultimate Constitutional check on abuse of executive power, most certainly violates the public trust as defined by Hamilton.

To allow a President to continue in office after committing these acts would place the Presidency above the law and grant the President powers close to those of a monarch. This, in turn, presents a clear and present danger to the rule of law, the birthright of all Americans. Indeed, we Americans take the rule of law so thoroughly for granted that while it has been much invoked in these proceedings, there has been little discussion of what it means or why it matters. Simply put, the rule of law is the guarantee our system makes to all of us that our rights and those of our countrymen will be determined according to rules established in advance. It is the guarantee that there will be no special rules, treatment, and outcomes for some, but that the same rules will be applied, in the same way, to everyone.

If America's most powerful citizen may bend the law in his own favor with impunity, we have come dangerously close to trading in the rule of law for the rule of men. That in turn jeopardizes the freedoms we hold dear, for our equality before the law is central to their protection.

We are a great nation because, in America, no man--no man--is above the law. Americans broke from Great Britain because the mother country claimed it had a right to rule its colonies without restraint, as it saw fit. Our tradition of chartered rights--rights laid down in laws, which no king, Parliament or other official could breach--culminated in our Constitution. That Constitution, which is itself only a higher law, protects us from tyranny. Once the law becomes an object of convenience rather than awe, that Constitution becomes a dead letter, and with it our freedoms and our way of life.

Mr. Chief Justice, my grandparents did not come to this country seeking merely a more convenient, profitable life. They came here seeking the freedoms that were given birth on Bunker Hill and in the Convention at Philadelphia.

I know some people mock as self-righteous or feckless the piety many Americans have toward their heritage and toward the Constitution that guards their freedom. But I will never forget that it is not the powerful or those favored by the powerful who need the law's protection.

If we set a precedent that allows the President--the chief magistrate and the most powerful man in the world--to render the judicial process subordinate to his own interests, we tell ordinary citizens, like my grandparents, that Americans are no longer really equal in the eyes of the law. We tell them that they may be denied justice. And we thereby forfeit our own heritage of constitutional freedoms.

None of us asked for this task, but we must live with the consequences of our actions, not just on this administration, but on our nation for generations to come. That responsibility cannot be shirked. It has led me to a difficult but inexorable decision. I deeply regret that it is necessary for me to conclude that President William Jefferson Clinton committed obstruction of justice and grand jury perjury as charged in the Articles of Impeachment brought by the House, that these are "high Crimes and Misdemeanors" under our Constitution, and that therefore I must vote to convict him on these charges.


Investigating the President

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Friday, February 12, 1999

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