Sen. Kohl's closed-door impeachment statement
Released into Congressional Record, February 12, 1999
Sen. Herb Kohl (D-Wisconsin): Mr. Chief Justice, throughout this process my colleagues from both sides of the aisle have conducted themselves with decency and dignity, exactly the qualities President Clinton's conduct lacked. But we risk opening the floodgates to more party-line impeachments if we oust a President from office for behavior that--while truly deplorable--isn't truly removable. Lowering the standard would do as great a disservice to the Constitution as the President's behavior has done to the Oval Office. So I am voting to acquit on both articles.
I state these conclusions with a certainty I do not feel. We have heard many say these votes are the most difficult they will ever cast, and I agree. This case is made up of many small questions, matters of opinion and fact: Did the President lie? Did he commit perjury? Did he obstruct justice? Did he weaken the judicial system? Did he undermine the Constitution? Are these 'high' crimes? Is this what the Founders envisioned when they talked about removal of a President?
Most of us have answers for each of these questions. Most of us will lay them out in well-worded, well-argued statements. But the sum of the answers is not the sum of this case. The sum of our opinions, our findings of fact, and our legal briefs cannot sum up the deep disquiet I feel about the failings, lies, and weakness displayed by the President. Under the cold body of evidence before us runs the bad blood of bad character, and that deeply disturbs me.
The evidence does not prove high crimes, but it does prove low character in our highest office--and that matters, it is relevant, it is material. This nation is not defined merely by demographics, boundaries, geological features, and government regulations; it is also about families and individuals who struggle to be larger, braver, and stronger than their circumstances. It is a nation that has a history of putting lives, faith, and hope in causes bigger than any one person: justice, democracy, freedom. Similarly, the office of the Presidency is not just a set of protocols, formalities, and policies. It is the human face we put on our country, and that face ought to be as honest, just, strong and brave as we all aspire to be--and as our history demands that we be.
That's why character matters. I cannot find a way to fit my concern for that spirit into these very formal, legal proceedings, but I also cannot, in good conscience, let go of my deep concern for the harm and the loss this President has caused. I will not vote for either article of impeachment, but I also will not let go of my firm belief that this President has done real damage to the Office of the Presidency. And I will not let go of a commitment to do everything I can to restore and protect the idea that good character is essential in those who ask to serve and represent this country.
Let me explain in more detail why I am voting against both articles. First, removing a President is a drastic measure, called for in only the most extraordinary circumstances. And our Founding Fathers clearly wanted it to be used sparingly: that's why they limited impeachment to only 'high crimes and misdemeanors' involving abuse of power, incapacity to hold office, or a serious threat to our Constitution or system of government.
But the President's conduct, however reprehensible, related to purely personal matters. He lied to the American people. He lied to his family, his friends and his staff. He lied under oath and evidence suggests that he may have obstructed justice. Simply put, his conduct was disgraceful and, possibly, illegal.
However, his actions did not relate to abuse of power. They had nothing to do with his official acts or his capacity to hold office. They did not threaten our Constitution or system of government. Though serious offenses to our American values and decency, they do not rise to the level of constitutional 'high" crimes.
Some of my colleagues have a different view, and I respect their position. But even the House prosecutors respect mine. In response to one of my questions, House Manager Graham acknowledged that 'reasonable people can disagree' about whether the President should be removed. In fact, he went on to say:
'[I]f I was sitting where you're at, I would probably get down on my knees before I made that decision, because the impact on society is going to be real either way. And if you find the President guilty in your mind from the facts, that's he a perjurer and he obstructed justice, you've got to somehow reconcile continued service in light of that event. And I think it's important for this body not to have a disposition plan that doesn't take in consideration the good of this nation. . . . [Y]ou've got to consider what's best for this nation.'
Representative Graham deserves credit for putting candor above partisanship, and inviting us to decide 'what's best for this nation.' To do that, it makes sense to consider the views of the American people. Most of them know what this case is about and most of them oppose this impeachment. Nothing we've heard clearly justifies rejecting the overwhelming weight of their opinion and removing a twice-elected President.
Indeed, if 'reasonable people can disagree,' as the House prosecutors concede, have we really met the high threshold established for removal?
To ask that question is to answer it.
It is true, of course, that we have removed judges for lying under oath; for example, ten years ago the Senate removed Judge Nixon on that basis. But impeaching the President, our highest elected official, is far different. Judge Nixon was appointed. He held office during 'good Behaviour.' At the time of his Senate trial, he was already convicted and sitting in jail. He lied about bribery, not sex. And most importantly, the only way a judge can be removed is by impeachment. A President, on the other hand, can be removed every four years through an election, and is automatically removed after eight years by the 22nd Amendment.
Second, in addition to the constitutional problems, the prosecution has not proved its allegations by clear and convincing evidence. This is especially true on the 'obstruction of justice' charge, which is by far the more serious allegation. The House Managers argue that more witnesses would have made a difference in bolstering their case, and they may be right. But why then did the House choose not to call witnesses in its own proceedings, even though it had called 'fact' witnesses in nearly every other impeachment?
Third, as many of us told the House in the Judge Nixon impeachment trial, lumping together a series of charges in each article--at least four perjury charges and seven obstruction of justice charges here--isn't fair or responsible. Alarmingly, the President could be found guilty without a two-thirds majority believing any single charge. For example, in theory, even if each obstruction charge were rejected by a 90 to 10 margin, the President could be convicted--because ten different Senators convicting on each of seven separate charges adds up to 70--more than a two-thirds majority.
Mr. Chief Justice, this kind of 'one from column A and two from column B' approach may work for a Chinese restaurant, but not for removing a President--or a judge. And this lack of specificity shortchanges the American people, who may never understand which charges were believed and which ones weren't.
Still, President Clinton is not 'above the law.' His conduct should not be excused, nor will it. The President can be criminally prosecuted, especially once he leaves office. In other words, his acts may not be 'removable' wrongs, but they could be 'convictable' crimes. Moreover, the House vote of impeachment--and the President's misconduct with Monica Lewinsky--will forever scar this President's legacy. Finally, the Senate can and should censure the President, and we ought make our condemnation of his conduct as strong as possible.
In sum, Mr. Chief Justice, President Clinton's conduct was wrong, reckless and indefensible. Under the Constitution it does not justify removal. But for those who love this country, it demands outrage and disappointment. It demands a commitment from this President and future Presidents, this Congress and future Congresses--not now, and not ever again, to let personal weakness and personal failing stain or shake our democracy. Thank you.
Friday, February 12, 1999
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