Sen. Roth's closed-door impeachment statement
Released into Congressional Record, February 12, 1999
Sen. William Roth (R-Delaware): Mr. Chief Justice, the House of Representatives presented to the Senate two Articles of Impeachment alleging that the President of the United States committed 'high crimes and misdemeanors' in the form of perjury and obstruction of justice. These are serious offenses, not unlike those which in the past have been sufficient to remove other federal officials from office.
In deciding how to vote on the Articles of Impeachment, each Senator had to undertake a two-step analysis: first, to determine the facts--the conduct in which the accused engaged; and second, to determine whether that conduct constituted 'treason, bribery, or other high crimes and misdemeanors', which, under the Constitution, require removal from office. This second step calls for the Senate to determine the facts and evaluate the effect of the conduct on the office and on the operations of government.
Having listened to the presentations made to the Senate by the House Managers and by Counsel for the President, it is my opinion that the President committed perjury and obstructed justice, and that this misconduct--based on constitutional definitions and historical precedents--meets the standard for convicting an official of an impeachable offense.
As the impeachment process is not a criminal proceeding, it is not necessary that the evidence shows that the accused is guilty of a criminal offense under the United States Code. The Framers wrote the Constitution before Congress wrote, and then amended, the criminal code. Nor is it required that relevant facts be established to the same standard as in a criminal trial, as Congress cannot punish the President, other than to remove him from office. Simply put, the Framers' objective was to provide a remedy to protect the American people and their institutions of government from an unfit officeholder. In view of this, I believe that such remedy is to be available if there is clear and convincing evidence to establish the underlying facts which demonstrate that an officeholder is unfit to serve.
In determining whether alleged conduct is a 'high crime and misdemeanor', Senators must examine each case individually. They must consider the officeholder's position in government and look at the effect of the officeholder's conduct in light of the particular position he or she holds. The fact that the Senate has convicted and removed federal judges for committing perjury does not necessarily mean that it should automatically remove a President who commits perjury. The precedents regarding federal judges are instructive, but they are not conclusive.
The 1974 House Judiciary Committee Staff Report during the Nixon Impeachment Inquiry, drawing on two centuries of precedents, explains this concept in connection with a presidential impeachment. The report states that the impeachment of the President should be 'predicated 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.' In other words, Congress must determine whether the particular misconduct in which President Clinton engaged is serious enough to warrant removal from that particular office. This is what I call the 'incompatibility' test.
The 'incompatibility' test requires Senators to exercise their expertise in, and knowledge of, government and to use their best judgment, focusing on the offenses committed and the effect of those offenses on the office and on the operation of government. It is this kind of threat to the republic which we must evaluate in applying the 'incompatibility' test. Accordingly, under this test we should focus on the unique nature of the Presidency and the offenses the President committed.
The Constitution created three separate branches of government in order to limit the powers of government and to enhance the liberty of the American people. Each branch is supreme in its own area but must respect and defer to the others, when they are operating in their assigned areas. Reduced to the simplest characterization, the legislature makes the laws, the executive executes the laws, and the judiciary interprets the laws and dispenses justice. As the head of the executive branch, the President stands alone as the official responsible for executing the laws of our country.
The duty of a branch to respect the other branches is a duty that can only be carried out by federal officeholders. It cannot be borne by private citizens. And it is fundamental to the operations of the federal government. Our government could not function if the branches did not respect one another. I believe President Clinton violated this fundamental duty to respect the judicial branch by subverting its function.
When a private citizen sued President Clinton under our civil rights statutes, the President took the position that he was unique in our system of law and could not be sued while President. When the Supreme Court ruled 9-0 that the President could be sued, the President decided to frustrate the judicial process while appearing outwardly to comply with the requirement of our constitutional plan. As a practical matter, he sought to veto this Supreme Court decision.
The evidence shows that he undertook a deliberate and multifaceted plan to thwart the Supreme Court ruling. That plan included the commission of perjury and obstruction of justice, which are very serious and fundamental wrongs. Even worse is that his conduct was conscious and calculated. It was not a mistake of the moment. Rather he deliberated and chose to commit perjury. He deliberated and chose to obstruct justice. In making these conscious and calculated choices, he placed his personal and political interests above his presidential duty to respect the judicial branch.
This is what concerns me greatly. If the President is willing to place his personal and political interests above his duties as President, he is not fit for the office he holds.
The President has, as one branch of the federal government, a duty to respect the requirements of the judicial branch and its proceedings. The President has, as the chief executive, an express duty to take care that the laws be faithfully executed. In committing perjury and in obstructing justice, he exhibited an attitude dangerous to the operation of government--an attitude where he viewed himself as more important than the rule of law, where his personal and political interests took precedence over the public interest in administering equal justice under law.
Ours is a nation ruled by law, not by men, and not by personalities. The judgment that we render here will set a precedent for the ages. If Congress concludes that the office of the Presidency should remain occupied by one who has sullied it with premeditated criminal conduct in violation of constitutional and legal duty, then it will have diminished America's right of self-defense against unfit officeholders, something that the Framers specifically provided for in the Constitution.
A President who commits perjury before a federal grand jury and obstructs justice poisons the well from which justice is administered. As far as I know, this President has the dubious distinction of being the first and only President in the history of the United States to lie directly to a federal grand jury. After taking an oath to tell the truth, the whole truth, and nothing but the truth, he deliberately violated that oath. The first Chief Justice of the United States, John Jay, accurately stated that there is no crime more extensively pernicious to society than perjury. If the President commits perjury and we conclude that nevertheless he may remain in office, by what authority does any judge ask any litigant to swear under oath?
As far as I am concerned, this is not just an empty question that has no relevance in today's society. Every day, in courtrooms and grand jury rooms across the country, witnesses are asked to hold up their right hand and take an oath to tell the truth. The judicial process in the United States depends on the sanctity of that oath. The prosecutorial function of the United States depends on the sanctity of that oath. It is the cornerstone of our system of justice. We simply cannot allow people across the country to look at the conduct of our President and raise legitimate questions about whether they need to comply with their solemn oaths.
Moreover, how can judges refer violations of perjury or obstruction of justice to the executive branch for prosecution, when the chief executive himself has committed these offenses? On prior occasions, the Senate has removed judges for perjury because it was 'incompatible' to ask litigants not to commit perjury in a courtroom presided over by someone who had himself committed perjury. A similar 'incompatibility' exists where the sanction for perjury or obstruction of justice must be applied by the executive branch presided over by someone who has likewise committed these violations.
The President must be removed before the corrosive effect of his conduct eats away at the rule of law and undermines the legal system. To imagine this President remaining in office brings to mind Alexander Pope's troubling question: 'If gold should rust, what will iron do?' If our President commits perjury and obstruction of justice, what can we expect of our citizens?
The Senate should seek to protect the legal system from that threat. And that is why I voted to convict and remove William Jefferson Clinton from office.
Friday, February 12, 1999
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