Sen. Kyl's closed-door impeachment statement
Released into Congressional Record, February 12, 1999
Sen. Jon Kyl (R-Arizona): This case is about the rule of law--specifically, whether actions and statements of President Clinton in federal court proceedings have done such harm to the rule of law that he should be removed from office. I conclude in the affirmative, and reluctantly vote to convict on both Articles of Impeachment.
Chairman Henry Hyde observed that the House of Representatives had come to the Senate 'as advocates for the rule of law, for equal justice under law, and for the sanctity of the oath.' (145 Cong. Rec. S221 (January 14, 1999).)
These are not just grand words.
The rule of law refers to our judicial process, which is governed by uniform standards and procedures that we say will always be guaranteed and applied fairly and equally. We are willing to submit ourselves to this process because we have worked hard for 210 years to ensure that it produces impartial justice for all.
Equal justice means that each of us, including the least among us, has rights that the state is bound to protect; and it surely includes the requirement that those who make the laws (including the President) must live under them like anybody else.
And oaths are essential to the rule of law because the judicial process is about seeking the truth; and that requires that we be able to trust what is said. The oath formalizes the commitment to tell the truth, and the whole truth--a commitment so important that its violation is itself a crime.
I believe there are two questions to be answered.
The first is whether the President impermissibly took the law into his own hands in a federal civil rights case and seven months later before a federal grand jury in order to suppress the truth. The second question is whether, if the President did engage in the impeachable conduct, it is a breach serious enough to warrant removal from office.
The Constitution permits only one vote: to acquit or convict. This leaves some in the anomalous position of determining guilt on an impeachable offense, but having to vote to acquit because they deem the offense insufficiently serious to warrant removal. While the fact that the offense is impeachable should itself resolve the issue of 'proportionality,' I would not consider it impermissible to reach a contrary conclusion, as some will do in this case.
For my part, I answer both questions in the affirmative. The President 'wilfully provided perjurious, false, and misleading testimony' under oath to a grand jury and he 'prevented, obstructed, and impeded the administration of justice.' (H. Res. 611).
While the House of Representatives asserted that the President's actions were criminal, violations of specific criminal statutes are not essential for wrongful conduct to constitute the 'high crimes and misdemeanors' that demonstrate unfitness to continue as Chief Executive. Most authorities agree a President cannot be prosecuted while in office for crimes allegedly committed during his term. So, for example, whether a lie under oath would necessarily later result in a criminal perjury conviction cannot be known with certainty, and an impeachment trial is not an effective forum for establishing criminal guilt. It is conduct, not a proven crime, that is the basis for impeachment.
This is one of the reasons why it is clear that each Senator may apply his or her standard of proof--it need not be the criminal standard 'beyond a reasonable doubt.' (See Senate Proceedings in the Impeachment Trial of Judge Claiborne, S. Doc. No. 99-48, at 150.) Moreover, because the Senate constrained the House of Representatives as it did--by limiting the number of witnesses that could be deposed, by effectively foreclosing other discovery, and by precluding 'live' testimony--it would be unfair to impose a 'beyond reasonable doubt' standard.
The President's counsel argued that the Senate should not consider Article I because the House of Representatives defeated a perjury count relating to the
Jones civil action. But Article I also included allegations of 'perjurious, false, and misleading' statements in the Jones case; so the argument is meritless. Moreover, the President's falsehoods in the Jones civil suit also formed part of his strategy to obstruct justice.
What is striking about this case is the President's persistent, sustained, carefully calculated, deliberate, and callous manipulation of the judicial process for over a year.
Without attempting to summarize all of the evidence, I conclude that the President lied before the federal grand jury about (1) the nature of details of his relationship with Ms. Lewinsky; (2) his assertion that he told the truth in the Jones deposition; (3) the false and misleading statements that he allowed his lawyer to make to a federal judge in the Paula Jones civil case; and (4) his corrupt efforts to influence the testimony of his aides who were potential grand jury witnesses.
And it seems clear to me that the President obstructed justice--that he corruptly: (1) encouraged Ms. Lewinsky to execute a false affidavit; (2) encouraged Ms. Lewinsky to lie if called as a witness; (3) encouraged Ms. Lewinsky to conceal gifts; (4) encouraged cooperation of Ms. Lewinsky through job assistance; (5) allowed his attorney to make false and misleading statements about the affidavit; (6) attempted to influence the testimony of his secretary, Ms. Currie; and (7) attempted to influence the testimony of other aides.
The final question is whether the President should be removed for his actions.
As a preliminary matter, there can be no doubt that perjurious, false, and misleading statements made under oath in federal court proceedings are indeed impeachable offenses. The fact that the House of Representatives reached this conclusion, of course, establishes the precedent as to the kind of conduct in this case. But, it is also confirmed by the impeachment and conviction of federal judges--of Judge Harry Claiborne, removed in 1986 for filing a false income tax return under penalty of perjury, of Judge Walter Nixon, removed in 1989 for perjury before a grand jury, and of Judge Alcee Hastings, removed in 1989 for perjury related to financial misconduct. I cannot agree with those colleagues who assert that there is a different standard for a President--that it would require a more egregious kind of perjury to remove a President than a judge. Nothing in the Constitution suggests such a double standard.
John Jay, the first Chief Justice of the United States, said 'there is no crime more extensively pernicious to society' than perjury, precisely because it 'discolors and poisons the streams of justice.' (Grand Jury Charge (C.C.D.N.Y. (Apr. 5, 1792)) (Jay, C.J.), in 2 The Documentary History of the Supreme Court of the United States, 1789-1800: The Justices on Circuit: 1790-1794, at 253, 255 (Maeva Marcus ed., 1988).)
As to obstruction of justice, on which there is no other direct precedent, Chief Justice Rehnquist, our presiding officer, in his history of impeachment, Grand Inquests, wrote that 'the counts relating to the obstruction of justice and to the unlawful use of executive power [by President Nixon] were of the kind that would surely have justified removal from office.'
The House mangers pointed out, accurately, that even though perjury and obstruction of justice are not specifically listed as impeachable offenses in the Constitution, the Federal Sentencing Guidelines treat these offenses more seriously than they do the crime of bribery--one of two specifically enumerated impeachable offenses. Significantly, where bribery is committed in connection with a judicial proceeding (such as bribing a witness in a case), its seriousness under the Guidelines rises to that of perjury and obstruction. When misdeeds, in other words, take place in connection with a judicial process, to try to affect or control that process, they get extra attention in our legal system. They are not simply brushed aside. Far from it. Perjury and obstruction are like bribery; they are 'other high crimes' by any reasonable construction.
The President's counsel argued that the President's conduct could not be
impeachable because he did not abuse the power of his office in conducting 'matters of state,' and did not violate the public trust. But impeachable offenses are not limited to the President's conduct of 'matters of state.' If this were so, Richard Nixon could never have been impeached. If this were so, a twenty dollar bribe for a Senator to vote for a bill would be impeachable, while a million dollar bribe to cover up political dirty tricks would not be.
It simply cannot be, as some have argued, that the only impeachable offenses are those that can only be committed by the President. If a President commits murder, can he not be removed? Must we wait until his term is over to deal with his crime? It is clear that seriously wrongful official conduct is impeachable. But it is just as clear that impeachment cannot be limited to that.
It is not only the exercise of presidential power but also the violation of a public duty that can constitute impeachable conduct. As the head of the Executive Branch, the President has the duty under Article II of the Constitution to 'take Care that the Laws be faithfully executed.' The 1974 House Judiciary report on the 'Constitutional Grounds for Presidential Impeachment' summarized that impeachment of a President can 'be predicted only upon conduct seriously incompatible with either the constitutional form and principles of our government or the proper performance of constitutional duties of the presidential office.' (Staff of House Comm. on the Judiciary, 93rd Cong., 2d Sess. (Comm. Print 1974), Constitutional Grounds for Presidential Impeachment, at 24.) Surely the violation of constitutional obligations can constitute high crimes or misdemeanors for which the President may be impeached. And surely, such violation would constitute an abuse of trust by the Chief Executive.
By his oath of office and Article II responsibilities, President Clinton is supposed to see that the sexual discrimination laws are faithfully executed. But he thought the Jones case was illegitimate, so he took the law into his own hands. His conduct in this case clearly violated his public duties, his oath, and the public trust. And it interfered with the proper functioning of another branch of the government.
The same is true for his deliberate efforts to impede legitimate discovery efforts in federal court proceedings. Such action 'is incompatible with . . . the constitutional form and principles of our government,' as the 1974 House Judiciary report said. It simply cannot be that a President who wrongfully interferes with the proper functioning of another branch of our government by attempting to subvert justice in federal court proceedings cannot be impeached because he did not do it as President, but, rather, as a citizen.
That the underlying conduct covered up is sexual, is, if anything, an
aggravating not a mitigating factor. In sex-discrimination litigation, where there is frequently no corroboration for the plaintiff, a defendant who lies can easily subvert justice. Had the blue dress not been found, with its incontrovertible tangible evidence, I doubt Paula Jones would have gotten a dime in settlement.
Judgements about the severity of the impeachable conduct in this case will lead different Senators to reach different conclusions. That is why some of us are willing to say reasonable people can differ. For those who fear the long-term consequences to the rule of law, however, I believe there can be only one result. Anyone who so willfully, callously, and persistently connived to deny the federal court and grand jury the truth, and who used and abused the highest office in the land to advance his personal cover-up is not only no longer worthy of trust--which all agree is essential to the conduct of his office--but also must be removed to avoid the perpetuation of a legal double standard. If federal judges (such as Judges Clairborne, Nixon, and Hastings) are removed for similar conduct; if average Americans are imprisoned for it, can the rule of law long survive 'special exceptions' for powerful people we like, or who are doing a good job, or who hold elective office? None of these rationalizations are defenses to illegal or impeachable conduct.
As I said, sexual harassment cases are precisely the kind of judicial proceedings that demand the maximum cooperation of and truth-telling by the defendant, because of the lack of third-party witnesses or corroborating evidence. In these cases, justice is denied if obstruction, witness tampering, or perjury prevent the truth from coming out. Can anyone say this is not serious? To what standard of seriousness does it not rise? How many plaintiffs will have to lose their sexual harassment, domestic violence, or sexual assault cases because defendants lie and obstruct justice (and there is no blue dress to keep them honest) before it becomes serious?
An acquittal in this case will make it harder to deal properly with similar conduct in the future. We will be hard pressed to perpetuate a double standard, so the lowest common denominator of conduct will be established as the permissible norm. And this cannot help but weaken the ability of courts to enforce truth-telling and prevent obstruction of justice.
The precedent set by this case may not change the law overnight, but this unforgettable episode is now part of the institutional life of our country. The chief magistrate perverted justice and remained in power. The lesson is corrosive. Like water dripping on a rock, it eventually makes a deep hollow in the American justice system.
It is true the President could be sent to jail later. How does that validate his right to appoint judges and be head of U.S. law enforcement now? How does that square with his leadership of the armed forces right now, as our Commander-in-Chief? Should the standard for the President not be at least as high as for those he appoints and leads?
In the end, my colleagues who would censure rather than convict the President are right about one thing: the President's conduct is 'unacceptable.' But, if conduct is unacceptable, we cannot accept it--meaning, we have to do something about it that does not leave it stand. And under our Constitution that means removal of the President through conviction on the Articles of Impeachment.
Henry Hyde closed the House case by warning that public cynicism is the greatest threat we face. Our failure to remove the President will only fuel the cynicism of Americans such as Louie Valenzuela of Glendale, Arizona. He was quoted recently in a man-on-the-street interview about this case. 'They talk about justice,' he told the Arizona Republic. 'They talk about doing the right thing,' said Mr. Valenzuela. 'But they always look the other way when someone rich, famous or powerful does something wrong. Look at O.J. Simpson. Clinton will be next. Asi es. (That's just the way it is.)'
That is not the way it has to be. But how it is, is up to us.
Friday, February 12, 1999
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