Sen. Durbin's closed-door impeachment statement
Released into Congressional Record, February 12, 1999
Sen. Richard Durbin (D-Illinois): From the opening statement to the closing argument, Chairman Henry Hyde and the House managers stated repeatedly that what is at stake in this trial is the rule of law.
In a compelling reference to the life of Sir Thomas More, Mr. Hyde quoted from 'A Man for All Seasons' by Robert Bolt to remind us that More was prepared to die rather than swear a false oath of loyalty to the King and his church.
But Mr. Hyde did not read my favorite passage from that work. Let me share it with you and tell you why I think it is important to us in this deliberation.
MORE. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal.
ROPER. Then you set Man's law above God's!
MORE. No far below; but let me draw your attention to a fact--I'm not God. The currents and eddies of right and wrong, which you find such plain-sailing, I can't navigate, I'm no voyager. But in the thickets of the law, oh there I'm a forester. I doubt if there's a man alive who could follow me there, thank God.
ALICE. While you talk, he's gone!
MORE. And go he should if he was the devil himself until he broke the law!
ROPER. So now you'd give the Devil benefit of law!
MORE. Yes. What would you do? Cut a great road through the law to get after the Devil?
ROPER. I'd cut down every law in England to do that!
MORE. Oh? And when the last law was down, and the Devil turned round on you--where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast--Man's laws, not God's--and if you cut them down--and you're just the man to do it--d'you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake.
Sir Thomas More's words remind us the law must be followed not only by the accused but also by the accusers.
And every day in America many who are accused of crimes are released because this government has violated their constitutional rights--denied them due process--forsaken the rule of law.
How American of us--we are prepared to release an accused because the accuser has not played by the rules * * * the rules of law.
The House managers built their case on one key question: Did the President respect the rule of law?
But the same managers who exalted the rule of law from their opening words would have us ignore the process which brought us to this moment:
An independent counsel in name only whose conduct before the House Judiciary Committee led Sam Dash, former Watergate counsel and Mr. Starr's ethics advisor, to resign in protest.
Listen to Dash's words to Kenneth Starr in his letter of resignation concerning Starr's appearance and testimony:
In doing this you have violated your obligation under the Independent Counsel Statute and have unlawfully intruded on the power of impeachment, which the Constitution gives solely to the House. . .. By your willingness to serve in this improper role (advocating for impeachment) you have seriously harmed the public confidence in the independence and objectivity of your office.
Much has been made about the so-called pep rally which some House Democrats held for President Clinton at the White House after the impeachment vote. If you wonder how those members could act in such an apparently partisan manner after the historic vote on December 19, 1998, I hope you will recall that the Republican members of the House Judiciary Committee gave Mr. Starr nothing less than a standing ovation when he completed testimony which Mr. Dash characterized as 'unlawful' and 'improper'.
Is it any wonder why the American people think this whole impeachment process reeks of partisanship and the excesses of the Independent Counsel have created a bipartisan sentiment to amend if not abolish that statute?
Did Mr. Starr respect the rule of law?
And the House Judiciary Committee--so anxious to complete its work in a lame-duck session that it would vote for impeachment without calling a single material witness. Then those same managers came to the Senate and argued justice cannot be served without live witnesses on the Senate floor.
When I listen to Paul Sarbanes recount the painstaking efforts to avoid partisanship during the impeachment hearing on President Nixon, it is a stark contrast to the committee process which voted these articles of impeachment against President Clinton.
Did the House Judiciary Committee respect the rule of law?
And the House of Representatives, an institution which I was proud to serve in for 14 years, was so hellbent on impeachment that it bent the rules, denied the regular order of business and refused the House a vote to censure this President so the Majority would have a better chance to visit the disgrace of impeachment on his record.
Did the House of Representatives respect the rule of law?
But it would be too facile to dismiss this case simply because the process which brought us
to this point is so suspect--too easy to discard the fruit of this poisoned tree.
Justice and history will not give us this easy exit. We must ignore the birthing of this impeachment and judge it on its merits.
First, let me stipulate the obvious. The personal conduct of this President has been disgraceful and dishonorable. He has brought shame on himself and his Presidency. No one--not any Senator in this Chamber nor any person in this country--will look at this President in the same way again.
I have known Bill Clinton for 35 years. I remember him as a popular student when we both attended Georgetown. And I know despite all of the talk about 'compartmentalization' that this man has suffered the greatest humiliation of any President in our history. I hope his marriage and his family can survive it.
But our job is not to judge Bill Clinton as a person, a husband, a father. Our responsibility under the Constitution is to judge Bill Clinton as a President, not whether he should be an object of scorn but whether he should be removed from office.
Did William Jefferson Clinton commit perjury or obstruct justice, and for these acts should he be removed from office?
When this trial began I believed that President Clinton's only refuge was in a strict reading of 'high crimes and misdemeanors'--that James Madison, George Mason and Alexander Hamilton would have to serve as his defense team and save this President from removal.
The managers' case was compelling, but as the defense team rebutted their evidence I saw the charges of perjury crack, obstruction of justice crumble and impeachment collapse.
The managers failed in Article I on perjury to meet the most basic requirement of the law: specificity. In the Andrew Johnson impeachment trial, Senator William Fessenden of Maine pointed out the unfairness of failing to name specific charges:
It would be contrary to every principle of justice to the clearest dictates of right, to try and condemn any man, however guilty he may be thought, for an offense not charged, of which no notice has been given to him, and against which he has had no opportunity to defend himself.
Senator Fessenden understood the rule of law.
And by what standard should the President be judged?
When the House managers discussed the gravity of the case for impeachment, they said repeatedly: 'These are crimes.' But when asked why they failed to meet the most basic criminal procedural requirements of pleading and proof, Mr. Canady said: 'This proceeding is not a criminal trial.'
And what is the difference between charging a crime and proving something less than a crime? The difference is known as the rule of law--a rule which requires fair notice and due process whether the accused is President or penniless.
How many times have we seen the House managers run into the brick wall of sworn testimony contradicting their charges. On gifts--Monica Lewinsky said hiding them was Betty Currie's idea--Betty Currie claimed it was Lewinsky's idea--neither of them claimed it was the President's idea. On the affidavit issue--the House Managers could not produce one witness--not Lewinsky, not Jordan and not the President to support their charge of obstruction.
Time and again the House managers failed to prove their case--failed to produce testimony or evidence and at best played to a draw. I don't need to remind my colleagues in the Senate that playing to a draw on this field comes down in favor of the President.
The House managers failed to meet their burden of proof.
And let me say a word about witnesses.
We have spent a lot of time on this issue. I do not know who came up with the limitation of three witnesses for the managers. But is there anyone in this chamber who believes that Sidney Blumenthal was a more valuable witness to this case than Betty Currie?
Surely my colleagues in the Senate remember that the House managers spent three solid days building their obstruction of justice case on concealing gifts and tampering with witnesses. And Betty Currie was critical to the most credible charges against the President.
Then when the House managers were given a chance to call this key witness, they refused.
And what can we conclude from this tactical decision? Let me read Rule 14.15 from Instructions for Federal Criminal Cases.
If it is peculiarly within the power of either the government or the defense to produce a witness who could give relevant testimony on an issue in the case, failure to call that witness may give rise to an inference that this testimony would have been unfavorable to that party. No such conclusion should be drawn by you, however, with regard to a witness who is equally available to both parties or where the testimony of that witness would be merely cumulative.
The jury must always bear in mind that the law never imposes on a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence.
Betty Currie was no help to the House managers in her deposition and they clearly concluded she was more likely to hurt than help their case if called as a witness. The key witness in the obstruction of justice charge never materialized and neither did the proof the House managers needed.
How will history judge this chapter in our history?
The House managers and many of my colleagues believe an acquittal will violate the basic American principle of equal justice under the law--they argue that acquitting the President will cheapen the Presidency--and imperil our nation and its values.
I have heard my colleagues stand in disbelief that the American people could still want a man they find so lacking in character to continue as their President. William Bennett and his pharisaical followers have profited from books and lectures decrying the lack of moral outrage in our nation
against Bill Clinton.
I hope my colleagues will pause and reflect on this conclusion that the American people have somehow lost their moral compass--that the polls demonstrate our people have lost their soul--and that we, their elected leaders, have to impeach this President to remind the American people of the values--the integrity--the honor which is so important to our nation.
May I respectfully suggest that those who appoint themselves as the guardians of moral order in America risk the vices of pride and arrogance themselves. Before we don the armor and choose our side in what Manager Hyde calls a 'cultural war,' let us not give up on the wisdom and judgement of the people we represent.
Like Abraham Lincoln, I am a firm believer in the American people. If given the truth they can be depended upon to meet any national crisis.
And the American people have this right. The President's personal conduct was clearly wrong. He has endured embarrassment and will spend the rest of his natural life and forever in the annals of history branded by this experience. The American people clearly believe that the process which brings him before us in this trial was too partisan, too unfair, too suspect.
What has occurred here is a personal and family tragedy--it is not a national tragedy which should result in the removal of this President from office.
In 1798, Thomas Jefferson wrote to James Madison: 'History shows that in England, impeachment has been an engine more of passion than justice.'
Jefferson feared that even our process for impeachment could be a formidable partisan weapon. He feared that a determined faction in Congress would use it '. . .for getting rid of any man whom they consider as dangerous to their views, and I do not know that we could count on one-third in an emergency.'
In 1868, with the suffering and death of our Civil War still fresh in everyone's mind, this Senate came within one vote of impeaching a President who was viewed as too sympathetic to the vanquished South.
In 1999, after six years and millions of tax dollars spent in investigation of this President, I believe the Senate will once again cool the political passions, preserve the Presidency, protect the Constitution, and prove to Thomas Jefferson that his trust in this body and that great document was not misplaced.
I will vote to acquit William Jefferson Clinton on both Articles of Impeachment and support a strong resolution of censure to bring this sad chapter in American politics to a close.
Friday, February 12, 1999
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