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Sen. Lautenberg's closed-door impeachment statement

Released into Congressional Record, February 12, 1999

Sen. Frank Lautenberg (D-New Jersey): Mr. Chief Justice, the Senate must now fulfill a weighty and solemn duty. For only the second time in the more than two hundred years since our founding fathers established the Constitution, we must vote on Articles of Impeachment against a President.

When considering this issue, which goes to our core constitutional responsibilities as Senators, each of us must come to a conclusion based on his or her conscience. Guided by the Constitution, we must bring all of our moral beliefs, our education, our careers, and our experiences as public servants to the question. And we must try to reach a decision that will serve the best interests of the nation for generations to come.

As I reflect on the impeachment proceedings, I think first of the range of emotions I have felt. From the moment I realized that the President had engaged in this shameful relationship, I have struggled with my thoughts.

I was angry, of course. I was ashamed for the President, a talented man--someone I consider a friend. How could he risk so much with his disgraceful behavior?

And I was saddened. I do not know how the President will reconcile himself to his family. I could imagine the embarrassment and the humiliation of the First Lady and his daughter Chelsea. I pitied them as they felt the searing glow of the public spotlight.

I am sure that colleagues, on both sides of the aisle, have empathized with similar emotions.

But now we must put those feelings aside. We have a very specific charge under the Constitution. That hallowed document delineates our duty. Under Article II, Section 4, we must determine whether the President has committed 'high Crimes or Misdemeanors' requiring his removal from office.

In my view, our founding fathers meant to set a very high standard for impeachment. Clearly, the phrase 'high Crimes or Misdemeanors' does not include all crimes. But what are the crimes that meet that standard? I find the words of George Mason to be compelling. He understood the phrase to mean 'great and dangerous offenses' or 'attempts to subvert the Constitution.'

When applying this standard, we must also consider the national interest. The founding fathers vested the impeachment power in the Senate, and not the judiciary, precisely because this body would be accountable to the people.

In the words of Alexander Hamilton, only the Senate would 'possess the degree of credit and authority' required to act on the weighty issue of whether to remove a federal official. In my view, this means that we must look not just at the facts and the law, but we must also try to determine what is in the best interests of the nation.

But we should not read the polls, or some other temporary gauge of the public temperament. Instead, we must look back through history, and toward the future, to reach a decision that will reflect well on the Senate and the nation for generations to come.

In my view, this case does not involve efforts to subvert the Constitution, and the national interest will not be served by removing the President from office.

Before turning to the evidence, I want to express my concern with the way in which the Articles of Impeachment are written.

They do not specify which statements and actions by the President are unlawful. Instead, they make general allegations. With this approach, we cannot fulfill our duty to the American people. The American people must know specifically what Presidential conduct justifies overturning an election.

While the Articles could have been more clearly written, there is a more fundamental problem. There is simply insufficient evidence for a vote to convict. Whether you apply the standard of beyond a reasonable doubt, or even the lower standard of clear and convincing evidence, the House Managers have not proved their case.

With regard to Article I, the evidence does not support a charge of perjury. The President may have been uncooperative and evasive. He certainly was misleading. But he never committed perjury as that term is defined in the law. Consequently, the President should be acquitted on Article I.

There is also insufficient evidence to convict the President on Article II, which charges him with obstruction of justice. The main problem with this Article is that testimony from the principal witnesses do not support the allegations. Monica Lewinsky, Betty Currie, and Vernon Jordan testified that the President did not tamper with witnesses, conceal evidence, or take any other actions that would constitute obstruction of justice. All of the witnesses support the President's version of events.

I realize that some of you may view the evidence differently. But I think we must still consider whether this is an appropriate case for the Senate to use the awesome power of impeachment to overturn a national election.

I further ask you to consider the precedent we would set with a conviction of this President. We risk making the impeachment power another political weapon to be wielded in partisan battles.

Our founding fathers warned against this. In the Federalist Papers, Number 65, Alexander Hamilton noted that the prosecution of impeachable offenses would 'connect itself with the pre-existing factions.' And that this would create 'the greatest danger, that the decision will be regulated more by the comparitive strength of parties than by the real demonstrations of innocence or guilt.'

Prior to the present case, the House of Representatives had seriously considered Articles of Impeachment against only two Presidents--Andrew Johnson and Richard Nixon. In the more than two hundred years since the Constitution was established, the House set the impeachment machinery in motion in only two occasions.

Today, no one doubts that the serious abuses of our constitutional system by the Nixon Administration warranted impeachment proceedings. And the bipartisan approach of Congress solidified President Nixon's decision to resign.

But history has not been kind to those who pushed the impeachment of President Johnson upon the nation. Scholars agree that the charges were baseless--a purely partisan campaign. Indeed, Chief Justice Rehnquist, who has presided so effectively in this case, wrote in his book on impeachment that if the Senate had convicted President Johnson 'a long shadow would have been cast over the independence' of the presidency.

So for most of our history, the fears of our founding fathers have not been realized. Congress has not resorted to impeachment even when previous administrations faced far-ranging scandals--the Whiskey Ring scandal during the tenure of President Grant; the Teapot Dome scandal in the Harding administration.

And more recently allegations that Presidents Reagan and Bush were not truthful regarding the Iran-Contra scandal.

Historically, Congress has held its hand when circumstances might have warranted a pull of the impeachment lever. But contrast that history with the circumstances surrounding this case.

President Clinton was a defendant in a civil lawsuit. In determining whether that lawsuit should be allowed to go forward while the President was in office, the Supreme Court of the United States noted that the case involved 'unofficial conduct.' That case was eventually dismissed, and the plaintiff reached a settlement with the President.

But with that lawsuit in place, the plaintiff's attorneys had license to probe into the President's personal life. The private lives of many people were paraded through the press.

And then the Independent Counsel joined the hunt. Although he was originally appointed to investigate a real estate transaction in Arkansas, and even though he eventually cleared the President of any wrongdoing in that matter and other reckless accusations, the Independent Counsel turned his attention to a private affair.

I think this background cautions against the use of the awesome and irrevocable power of impeachment. Think for a minute about how future partisans might proceed. We have a readily accessible legal system. Anyone with the filing fee can bring a lawsuit. And our laws provide great leeway in the discovery process.

If we take the wrong path now, we can expect to see future Presidents hauled into court. They will be questioned repeatedly, and it will not be hard for skilled attorneys to hurl charges of perjury and obstruction of justice. We cannot allow the Presidency to be weakened in this way.

Once again, we find the wisdom of our founding fathers providing guidance.

James Wilson, who participated in the Philadelphia Convention at which the Constitution was drafted, observed that the President is 'amenable to [the law] in his private character as a citizen, and in his public character by impeachment.'

In other words, the legal system, our civil and criminal laws provide the proper venue for a President who has failed in his private character.

And in this case, the legal system can and will continue to address the President's personal transgressions.

The Paula Jones lawsuit has been settled. When he leaves office, the President could be subject to further prosecution. But there is simply no injury to our constitutional system, no aspect of what James Wilson called the President's public character, which must be remedied through a Senate conviction under the impeachment power. Of course, I understand the great pain inflicted by the President's private character. As I said earlier, his behavior was reprehensible. He has shamed himself, his family, and the nation.

And I understand the desire to punish the President for his conduct. But we must remember the many ways in which the President has already been punished. He has suffered enormous embarrassment and humiliation. Beyond that personal pain, he has also been subject to public condemnation. Every Member of Congress is on the record rebuking his behavior.

Of course, this may not satisfy some. They may want more punishment. But please remember--the purpose of the impeachment power is not to punish. Instead, impeachment serves to protect the nation from corrupt officials.

So, to render a proper verdict, we must put aside the powerful desire to punish. And I submit that to impeach the President in this case would be a terrible use of the impeachment power, lacking proportionality and perspective.

Now, we must step back from the partisan precipice. We must not weaken the Presidency for future generations. We must reject these Articles of Impeachment and help restore the balance of power between the branches of the government.

Let us put this matter behind, heal the wounds inflicted by partisanship, and rededicate ourselves to the challenges facing our nation.

[Page: S1507]

Investigating the President

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Friday, February 12, 1999

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