Transcript: Senators question impeachment lawyers
January 22, 1999
January 23, 1999
WILLIAM REHNQUIST, CHIEF JUSTICE, UNITED STATES SUPREME COURT: The Senate will convene as a court of impeachment. The chaplain will offer a prayer.
LLOYD OGILVIE, SENATE CHAPLAIN: Spirit of the Living God, fall afresh on us. We need your strength. The wells of our own resources run dry. We need your strength to fill up our diminished reserves. Silent strength to flow into us with Artesian resourcefulness, quietly filling us with renewed power.
You alone can provide strength to think clearly and to decide decisively.
Bless the senators today as they trust you as Lord in the inner tribunal of their own hearts. You are the sovereign of this land. But you are also sovereign of the inner person inside of each senator.
May these hours of questions bring exposure of truth and resolution of uncertainties.
Oh God of righteousness and grace, guide this Senate at this decisive hour.
You are our Lord and Savior.
Senators may be seated. The sergeant at arms will make the proclamation.
SERGEANT AT ARMS: Hear ye, hear ye, hear ye, all persons are commanded to keep silence on pain of imprisonment while the Senate of the United States is sitting for the trial of the articles of impeachment exhibited by the House of Representatives against William Jefferson Clinton, president of the United States.
REHNQUIST: If there's no objection, the journal of proceedings of the trial are approved today. Pursuant to the provisions of Senate Resolution 16, the Senate has provided up to 16 hours during which senators may submit questions in writing directed to either the managers on the part of the House of Representatives or counsel for the president.
The chair recognizes the majority leader.
SEN. TRENT LOTT (R-MS), MAJORITY LEADER: Thank you, Mr. Chief Justice.
This afternoon, the Senate will begin the question and answer period for not to exceed 16 hours as provided in Senate Resolution 16. I have consulted several times about this procedure with Senator Daschle and others and we have determined that the majority will begin the questioning process with the first question and we will then alternate back and forth.
Now, as I noted yesterday, this hasn't been done in quite awhile and so, we'll just have to go forward in a way that we feel is fair and comfortable and we ask that you give the benefit of the doubt to us and how we send the questions up to the chief justice.
Senator Daschle and I will try to make sure that the time stays pretty close to even as we go through the day. And of course the chief justice, I'm sure, will make sure that the deliberations and the answers are fair. We hope the answers will be succinct and that they will respond to the question.
One question that has arisen from senators on both sides is can we direct the question to both sides, the White House counsel and the House managers simultaneously. And the answer is no, under our rules, we will direct the question to one side or the other. And our questions from either side may go to either one of the parties. But only one would answer that question.
Of course, there is the possibility for a follow up question that might be directed to one side or the other. So, we'll just deal with that as we go forward.
Now, I would expect, for the information of all senators that we would go approximately five hours today. I don't know how many questions we can get done in an hour, but I suspect by 6:00 o'clock on Friday, we would have exhausted a series of questions that would entitle us to a break at that point.
But again, we'll just have to see how we feel about it. And we wouldn't stop, obviously, in the middle of a question.
We would resume again on Saturday at 10 a.m., alternating between both sides. And the schedule at this point is undecided. We'd need to see how many questions are left that senators really feel need to be asked. And again, we'd have to see how the day progresses.
I did have senators come up and talk to me yesterday about, you know, we would need some reasonable limit on that. So I'm thinking in general terms about not going beyond four o'clock on Saturday.
But we'll converse, and we'll make those announcements after consultation as we go forward tomorrow or during the day even tomorrow.
I hope we can complete our questioning period by the close of business tomorrow, but if we go with the times I basically mentioned, you're talking about 10 hours, not 16. So we'll have to consult and determine if we want -- if that's -- if we've asked the basic questions or if we would want to continue it later or even over on Monday.
I believe, Mr. Chief Justice, that that completed the explanation that I wanted to give at this time.
I do have the first question prepared to send to the chief justice. But I thought perhaps he had some further business he might want to address before I did that.
REHNQUIST: Yes. I would like to advise counsel on both sides that the chair will operate on a rebuttable presumption that each question can be fully and fairly answered in five minutes or less.
LOTT: Mr. Chief Justice, I do send the first question to the desk.
REHNQUIST: Senators Allard, Bunning, Coverdell and Craig ask the House managers: "Is it the opinion of the House managers that the president's defense team in the presentation mischaracterized any factual or legal issue in this case?
"If so, please explain."
SEN. ED BRYANT (R), TENNESSEE: Mr. Chief Justice and distinguished colleagues and members of the Senate, there are -- first of all, let me thank you for the opportunity to respond to questions, and we hope that we can do that in a succinct manner today.
There are a number of mischaracterizations and statements that we disagree with that the president's defense team made, and I will not attempt to cover all of these. I would like to highlight just -- just a few of these, and perhaps might, in a short manner, exceed the rebuttal -- rebuttable presumption of five minutes.
Mr. Craig made argument on behalf of the president that is a lot about an oath versus oath perjury case. Article I is the perjury allegation; one word against another person's word, he said/she said.
However, we would submit that there was not discussed in their presentation the fact that there is ample corroboration which is provided for under the law as being necessary, but we believe that factually there was much corroboration, that is another person or other evidence to support the fact that the president commit perjury and in particularly, those aspects of the perjury charge that deal with the personal relationship that Ms. Lewinsky and the president had. Very clearly, White House records and phone logs along with Ms. Lewinsky's incredible recollection of particular names and events and the circumstances surrounding these particular occasions that have already been highlighted in the past and we all know about those types of telephone conversations and she was very clear in the facts the people have all corroborated her on her presence in the White House at certain times.
Number two, the Secret Service testimony that placed her inside the Oval Office on occasion alone. The fact that there have been contemporaneous statements made by Ms. Lewinsky describing the details of this relationship.
And as we all know, the law permits this contemporaneous statement, in this case, to at least eight friends and two professional counselors detailing the particular relationship while it was ongoing. The blue dress is very clearly corroboration and the DNA testing that resulted from that.
Also, the transfer of Ms. Lewinsky from the White House and the later surreptitious efforts with Mrs. Currie -- Ms. Currie to sneak her back into the White House, again an indication that efforts had been made to move her -- to relocate her away from the president to protect him from those circumstances.
Also, the president's prepared statement in the grand jury is another example that was not mentioned. And in particular I highlight the statement that he made that would lead you to believe that this relationship evolved over a period of time, and that being that he was sorry that what had started out as a friendship turned into this type of relationship where in fact Ms. Lewinsky's testimony is very clear that that relationship began immediately, the very first day that he actually spoke to her.
Mr. Ruff's statement that the managers' case was misleading is also incorrect, I believe. He used words like "fudging the facts," "a witches' brew," and "be wary of a prosecutor who feels like he must deceive the court." And this comes as somewhat of a surprise to many of us on this table who know that Mr. Ruff is familiar with the facts of this case.
"And just last month when he testified before the Judiciary Committee, he said I have no doubt that the president walked up to that line that he thought he understood. Reasonable people now, reasonable people and you maybe have reached that conclusion that he could have crossed over that line. And that what for him was truthful but misleading or non-responsive or misleading and evasive was in fact false."
Now he didn't tell you in his presentation that just a month ago he took the position that reasonable people can disagree. And yet, before this Senate and the audience that we have watching he asserts that anyone who would accuse his client of perjury is guilty of fudging the facts and brewing witch's brew and deception.
And even Mr. Craig, unfortunately borrowed many of those same words in that characterization.
It may be good theater, but it's simply not the case that these managers are engaged in that type of practice before the Senate and the American people.
White House Counsel Cheryl Mills spoke in a similar manner and tone to this house about inconvenient and stubborn facts -- "Oh, those stubborn facts." In her meticulous presentation she passed over, she completely missed the second occasion wherein President Clinton attempted to coach Ms. Currie. Did anyone hear about the second event?
As carefully as she tried to make innocent the wrongful effort of the president to tamper with a potential witness, she just as carefully skirted the entire similar episode two or three days after the first one where he again tampered with her testimony.
According -- according to Ms. Currie, he spoke with her, just recapitulating. Remember that in our presentation?
Likewise, in her review of witness tampering, she mischaracterized by the law -- the law, stating that a threat, an actual threat was required. 18 USC 1503 states that obstruction of just occurs when a person corruptly endeavors to influence the testimony of another person, and "corruptly" has been interpreted by the District Court her in D.C. to mean acting for and improper purpose. And clearly this was an improper purpose when the president was trying to get her to testify falsely.
But a threat is not a part of the law and not needed. And I will quickly, just if I might, just mention two more quick ones.
Mr. Ruff stated that the president gave the same denial to his aides that he gave to his country and family. I recall specifically him saying that he just has said, said nothing different to the American public and his family that he told the aides that we talk about: John Podesta, Sidney Blumenthal. Well, that's not right.
He told, the president told Mr. Podesta -- and this is Mr. Podesta talking -- "He told me that he never had sex with her and that he never asked, you know." He repeated the denial. But he was extremely explicit in saying he never had sex with her any way whatsoever, that they had not had oral sex.
And Blumenthal, Mr. Blumenthal, he told Mr. Blumenthal an entirely different story, that Monica Lewinsky came at me and made a sexual demand on me and that I, the president, rebuffed her. He said that I've gone down that road before and caused pain for a lot of people. I'm not going to do that again.
She threatened him. Ms. Lewinsky threatened the president. She said that she would tell other people that she had an affair, and that she was known as a "stalker" among her peers and that she hated that. And that if she had an affair with the president, she wouldn't be a stalker anymore.
That is not the story that he told the American people and that he told his family. These are embellishments that are very important because he anticipated that they would go into the grand jury and repeat those -- those mis-statements.
And finally the affidavit of Monica Lewinsky. White House defense lawyers spoke so eloquently about the procurement of this affidavit as he glided through how the president believed that Monica Lewinsky could have filed a truthful affidavit while still skirting their sexual relationship sufficiently to avoid testifying in the Paula Jones case.
And this is an important issue, as it was specifically raised in the answer before this Senate. The president's lawyers brought this statement into this Senate as part of their answer, that he could have advised her that she could have filed an affidavit that would have been truthful, while still at the same time denying a sexual relationship sufficiently that she would not be called as a witness.
That's -- I know opposing counsel makes light of the hairsplitting and the legal gymnastics that people have talked about here, but that's an incredible statement; that you could do the twister enough to go at -- go into a deposition where that's the purpose of being there is to discover this type of information.
Who he might have had an affair with and have her tell a truthful affidavit and still not be able to testify. Had she told a truthful affidavit, she would have been immediately called.
Plus, the president was given an opportunity by Ms. Lewinsky to review the affidavit. Remember the statement that he didn't need to, he'd seen 15 just like it.
You know, if he would have had that out for her where she could have told the truth and still not been able to testify, don't you think he owed it to her to cause her not to have to commit perjury in that affidavit which she did? Not to have to commit a crime, wouldn't he have shared that with her, if he had had that information at that time?
And I would suggest that he didn't and -- with those. And I have others that I'd like to talk to. But in the interest of time and fairness I will stop my presentation at this point and thank the Senate.
SEN. TOM DASCHLE (D-SD), MINORITY LEADER: Mr. Chief Justice?
REHNQUIST: Recognize the minority leader.
DASCHLE: Could I inquire as to the length of time that response took?
REHNQUIST: Approximately nine minutes.
DASCHLE: Thank you.
REHNQUIST: Senator Sarbanes asks: "Would you please comment on any of the legal of factual assertions made by the managers in their response to the previous question from Senators Allard, Bunning, Coverdale and Craig?"
CHARLES RUFF, WHITE HOUSE COUNSEL: Thank you, Mr. Chief Justice. It may be that I will need to call on some of my colleagues to be of assistance here, but let me begin and we will strive mightily to stay within the rebuttable five minutes.
Mr. Manager Bryant began by suggesting that there really is corroboration on the key issue that he focused on, which is you know is the nature of the specific details of the relationship between the president and Ms. Lewinsky. And he suggested that among the corroborating matters that he would point to where her recollection of events, which is alleged to be detailed records reflecting that she was indeed in the White House on particular days, Secret Service records, DNA testing.
None of those have anything to do with the essential issue that Congressman Bryant raised because nobody disputes the fact that Ms. Lewinsky was in the White House engaged in inappropriate conduct with the president on a particular day.
The only point that I think the manager raises that is sort of new and that needs to be addressed is this notion that contemporary consistent statements made to third parties about these events are somehow corroborative of Ms. Lewinsky's testimony in this regard.
And as all of you who've had the pain of struggling through an evidence course will know or have had the pain of trying lawsuits in which this issue arises, so-called prior consistent statements are not in fact viewed as some corroborating evidence that can be introduced by the prosecutors in this setting.
For they know -- and I'm sure those of you who suffered through these pangs know as well -- that the law rejects the notion that merely because you tell the same story many times, it is corroborative of the underlying credibility of the witness' version.
And that there are only certain, very limited areas in which prior consistent statements are in fact admissible.
Just a couple of others and then I'll turn this briefly over to Ms. Mills. Manager Bryant suggest that I've somehow gone too far in suggesting that the prosecutors here had in my words "engaged in fudging." I have never suggested that the entire presentation is so infected. I made very clear in my comments to the Senate the other day, the specific examples which I think we documented quite fully.
But beyond that, let me go back to his reference to my earlier testimony before the House Judiciary Committee, in which I did, indeed, in response to questions comment that the president may well have walked up to the line, believing he didn't cross it, but that reasonable people might conclude otherwise.
The only problem with that example as broached by Mr. Manager Bryant is that I was talking there -- and the record is very clear -- was talking about his testimony in the Jones deposition, which, as everyone in this room will fully understand, is not before you, because the House of Representatives specifically decided that the president's testimony in the Jones deposition was not a basis for impeachment.
And with that, without having used I hope all of my time, Mr. Chief Justice, I'll allow Ms. Mills if she would to come forward and respond specifically to the point raised with respect to her presentation.
CHERYL MILLS, WHITE HOUSE COUNSEL: Thank you. I just want to address briefly two issues that the House managers raised with regard to the statute on obstruction of justice.
With respect to witness tampering, the House managers focused on 1512 with respect to Ms. Currie, which does require a threat or intimidation, and indeed specifically addressed that. They wanted to focus on 1512 when they were addressing her -- the situation where the president spoke with her.
With regard to 1503, though, to the extent that the House managers suggest that the president's actions in his conversation with Ms. Lewinsky violated 1503, I think probably you all might recall from my presentation that we discussed the Aguilar case, in which it is clearly necessary that you have a nexus between the actual conduct the official proceeding that would be going forward.
And in that case, we had a judge who lied to an FBI agent, who indicated that he was going to -- that this matter might come up in a grand jury proceeding, and Mr. Chief Justice in his opinion indicated that that was insufficient to find the nexus that was necessary to violate 1503.
And if you all have my package, you can look back, and I've provided you with a specific quotation. So in this instance, we clearly wouldn't have the nexus between the president's conversation with Ms. Currie, who was not yet a witness. There was no suggestion that she was going to be a witness in the Jones case. Indeed, no one had even mentioned that fact to him, as you actually have in Aguilar.
And in addition, I think with regard to both statutes, specific intent is not fulfilled, and that's something we spoke about when I gave my presentation before.
With regard to the president's conversation with Ms. Currie which happened on the 18th and again on a subsequent day, in that instance it also happened prior to all of the -- all of the media attention and other matters that came out.
So in effect, all of the same issues apply because there was no, at that point, no indication that the independent counsel was involved in this matter and the president still was concerned about the Jones proceeding. Indeed, he was concerned that the media attention was going to be significant, and he was accurate as it began to grow and grow.
LOTT: Mr. Chief Justice, we send our next question to the desk.
REHNQUIST: Senators Enzi and Coverdell ask the House managers: "Please elaborate on whether the president's defense team failed to respond to any allegations made by the House managers."
REP. ASA HUTCHINSON (R-AR), IMPEACHMENT TRIAL MANAGER: Mr. Chief Justice, ladies and gentlemen of the Senate, as to the areas that were not covered by the president's defense team, I think that my fellow manager Bryant already mentioned one.
But I thought it was significant that in the questioning of Betty Currie or the statements made to Betty Currie after the president's deposition on January 17 where he came -- brought her into the office and he went through that series of questions: I was never alone, right? And that series of questions everybody is so familiar with.
They discussed that, primarily in the terms that she was not a witness, but during three days of presentation, they never discussed the fact that it was two days later that the same series of questions or statements or coaching were addressed to Ms. Currie.
And so, the president's defense that, well, I was just trying to refresh my recollection on the facts so I could respond to media inquiries, does not make sense in light of the fact that it was done on one day, the series of questions.
But Betty Currie testified that two days later she was called into the office, the same series of statements, declarations, coaching was made to her. And the only possible explanation for that is that the president was trying to make a very clear statement to her.
This is what I remember. This is what I want you to do. And for three days, for three days of presentation, the president's defense lawyers never, never mentioned that.
Now, I want to come back to what Ms. Mills just said because this was a big issue in the presentation of Mr. Ruff. In fact, I have the quotes here. I hope that that will be turned over to you.
That whenever Betty Currie was questioned, they said, well she wasn't a witness. There was never any clue that she was going to be a witness; that the Jones' lawyers never anticipated that she was going to be a witness. That it was never put at all on the witness list.
And that's very significant. I just want to drive this point home. This is Mr. Ruff talking about prosecutorial fudging, how about defense fudging?
Mr. Ruff: "Ms. Currie was neither an actual nor a perspective witness." That's his presentation.
In the entire history of the Jones case, Ms. Currie's name had not appeared on any witness' list, nor was there any reason to suspect that Ms. Currie would play a role in the Jones case. Discovery was down to its final days, that's Counsel Ruff.
And then finally, yet in the days, weeks following the deposition, the Jones lawyers never listed her, never contacted her, never added her to any witness list. That is the presentation of Mr. Ruff, and it was also that of Ms. Mills.
But yet if you look at the facts in the Jones case, the deposition was concluded on January 17th. There was the holiday on the 18th. And in fact on January 22nd, within five days of the deposition, she was -- a subpoena was issued for Betty Currie.
Within five days, a subpoena was issued for Betty Currie, and in fact on the 23rd, there was a supplement to the witness list by the Jones lawyers which included Betty Currie's name as 163, and this was served on Mr. Bennett and the other lawyers for the president.
In addition, I have, which I will distribute to you, the actual subpoena that was issued for Betty Currie, as I testif -- as I indicated -- excuse me -- which was issued on January 22nd, and the proof of service in which Betty Currie was served as a witness in that case on January 27th -- the proof of service.
And so the statements by Mr. Ruff that there was never any indication that the Jones people knew that she was going to be a witness is totally not within the record. In fact, it is clear that the subpoena was issued; it was served.
Whenever that deposition was over of the president, both the president left there and the Jones lawyers left there knowing immediately that the president was -- that the -- Betty Currie was going to be a witness. She had to be a witness with the president asserting "ask Betty, ask Betty, ask Betty" so many times during that.
And that is why the president came back, had to deal with Betty Currie being a witness, and the Jones lawyer went out and immediately amended the witness list, asked to do that. And then served a subpoena, which was served on Betty Currie.
That is the record. Those are the facts. And we will distribute this to you.
REHNQUIST: Senator Levin asked White House counsel: "Would you please comment on any of the legal or factual assertions made by the managers in their response to the previous question?"
RUFF: Thank you, Mr. Chief Justice. Let me respond very briefly to Manager Hutchinson's last remarks because I owe him, indeed, an explanation.
And he is correct in one respect. I did not accurately reflect the fact that after the January 21 story in The Washington Post, the Jones lawyers did in fact attempt to track the entire independent counsel investigation, and I think Mr. Hutchinson will tell you, indeed issued any -- a long list of subpoenas. And for that misleading statement I apologize and I trust we will hear equally candid assessments from the managers.
But more importantly, let me return to the substance of that issue, because it is important to note, without the chart being up there, that indeed at the moment which is the critical moment when the president was talking to Betty Currie, whether it be on the 18th or whether it be on the 20th or the 21st -- or the 20th, and the 21st, you remember, is when the story breaks, the answer is the same: he had no reason to be at that stage -- and that's the critical stage, because that's what's in his mind.
And that's what you have to ask, if you're talking about obstruction of justice or witness tampering. At that stage, he had no more reason to know that Ms. Currie was going to be a witness than he did, as we explained it, both I and Ms. Mills in our earlier presentations.
The fact that the Jones lawyers, once this story became a matter of public knowledge which it did on the 21st, thereafter, dumped a series of subpoenas and depositions notices literally in the closing days of discovery, does not bear on the question of what was in the president's mind which is the critical moment for testing his intent at the moment when he first had his conversations with Betty Currie. Thank you, Mr. Chief Justice.
REHNQUIST: Senators Grassley -- Thurmond, Grassley, Chafee and Craig direct to the House managers: "President Clinton has raised concerns about whether the articles of impeachment are overly vague and whether they charge more than one offense in the same article. How do you respond to these concerns?"
REP. CHARLES CANADY (R-FL), IMPEACHMENT TRIAL MANAGER: Mr. Chief Justice and members of the Senate, I will be pleased to do my best to address this question. The president has made two claims against the form in which the articles of impeachment have been drafted.
I would submit to you that neither of these claims has any merit. And I'll be pleased to address both claims as briefly as I can.
First the president claims that the two articles of impeachment are vague and lack specificity. And therefore, prevent him from knowing what he has been charged with.
Second, the president asserts that the articles are flawed because they charge multiple offenses in a single article.
With respect to the first claim, it is clear from the president's trial memorandum and his presentation here that President Clinton and his counsel know exactly what he is being charged with. And I would submit to you that if President Clinton had suffered from any lack of specificity in the articles, he could have filed a motion for a bill of particulars. He did not choose to do so.
Moreover, articles of impeachment have never, they have never been required to be drafted with the specificity of indictments. After all, this proceeding is not a criminal trial. If it were, then we as the prosecutors would not only be entitled to call witnesses, but would be required to call them to prove our case.
We would certainly not be put in the position of defending the appropriateness of witnesses. Now President Clinton wants all the benefits of a criminal trial, without bearing any of its burdens.
Impeachment is a political and not a criminal proceeding, and that has been clear from the institution of this proceeding in our Constitution. As recognized by Justice Joseph Storey, the Constitution's greatest interpreter during the 19th century, impeachment is designed not to punish an offender by threatening deprivation of his life, liberty or property, but to secure the state by divesting him of his political capacity.
Justice Storey thus found the analogy to indictment to be invalid. And I would quote what Justice Storey had to say, which is directly pertinent to this question. "The articles need not, and indeed do not, pursue the strict form and accuracy of an indictment. They are sometimes quite general in the form of the allegations, but always contain or ought to contain so much certainty as to enable the party to put himself upon the proper defense. And also, in case of an acquittal, to avail himself of it as a bar to another impeachment."
Now indeed, Alexander Hamilton had comment on the same point in the Federalist. We have heard many references to Federalist No. 65 in this trial to date. I will refer once again to what Alexander Hamilton said in the Federalist on this particular point.
There Hamilton stated that impeachment proceedings, and I quote, "can never be tied down by such strict rules either in the delineation of the offense by the prosecutors, or in the construction of it by the judges, as in common cases serve to limit the discretion of courts in favor of personal security." By that, he means in criminal cases.
I think that this statement from Alexander Hamilton refutes the argument of the president's counsel directly. And I would also point out that unlike the judicial impeachments of the 1980s, President Clinton has not committed a handful of specific misdeeds that can be easily listed in separate articles of impeachment. In order to encompass the whole assortment of misdeeds that caused the House of Representatives to impeach the president, the Judiciary Committee looked to the more analogous case, that of President Nixon.
In 1974, in the proceedings with respect to President Nixon, the committee also was faced with drafting articles of impeachment of a reasonable length against a president who had committed a series of improper acts designed to achieve an illicit end.
The first article of impeachment against President Nixon charged that in order to cover up an unlawful entry into the headquarters of the Democratic National Committee and to delay, impede and obstruct the consequent investigation, and for certain other purposes, he engaged in a series of acts, such as, and I quote, "making or causing to be made false or misleading statements to lawfully authorized investigative officers, endeavoring to misuse the Central Intelligence Agency, and endeavoring to cause perspective defendants and individuals, duly tried and convicted, to expect favored treatment and consideration in return for their silence or false testimony."
The article did not -- I repeat, did not list each false or misleading statement, did not list each misuse of the CIA, and did not list each perspective defendant and what they were promised. Now that is the record.
Anyone who is familiar with the Nixon case, the President Nixon case, is familiar with those facts. In like fashion, the articles of impeachment against President Clinton charge him with providing perjurious and misleading testimony concerning four subjects. Such as his relationship with a subordinate government employee, and engaging in a course of conduct designed to prevent, obstruct and impede the administration of justice. Which course included four general acts such as an effort to secure job assistance for that employee.
Now, I would submit to you that an argument can be made that the articles of impeachment against President Clinton were drafted with more specificity than the articles that were drafted against President Nixon. I will do my best to briefly address the second claim, which has been asserted by the president's lawyers against the form of the articles of impeachment.
That is, that they are invalid for charging multiple offenses in one article. Now the articles of impeachment alleged that President Clinton made one or more perjurious false and misleading statements to the grand jury. And committed one or more acts in which he obstructed justice.
Once again, these articles are modeled after the articles adopted by the House committee on the Judiciary against President Nixon and were drafted with the rules of the Senate specifically in mind.
The Senate rules explicitly contemplate that the House may draft articles of impeachment in this manner, and prior rulings of the Senate have held that such drafting is not deficient and will not support a motion to dismiss.
Rule 23 of the Rules of Procedure and Practice in the Senate when sitting on impeachment trials now states that an article of impeachment shall not be divisible for the purpose of voting thereon at anytime during the trial.
Now when the Senate Committee on Rules and Administration amended Rule 23 in 1986, it explained that. And I quote this at length, for this goes right to the heart of the matter, and this is what the Rules Committee in its report said:
It said, the portion of the amendment effectively enjoining the division of an article into separate specifications is proposed to permit the most judicious and efficacious handling of the final question, both as a general matter and in particular with respect to the form of the articles that propose the impeachment of President Richard M. Nixon.
The latter did not follow the more familiar pattern embodying an impeachable offense in an individual article. But in respect to the first and second of those articles, set out broadly- based charges alleging constitutional improprieties followed by a recital of transactions illustrative or supportive of such charges.
The wording of Articles I and II, again referring to the Nixon articles, expressly provided that a conviction could be had thereunder if supported by one or more of the enumerated specifications.
It was agreed to write into the proposed rules language which would allow each senator to vote to convict under either the first or second articles if he were convinced that the person impeached was guilty of one or more of the enumerated specifications.
The Senate rules themselves, thus, specifically contemplate that an article of impeachment may include multiple specifications of impeachable conduct as in the case of President Nixon.
The Senate itself has recognized the article -- the articles against President Nixon as an appropriate model to be followed. The House has in the articles now before the Senate simply followed that model.
Moreover, I would point out, in conclusion, the Senate has convicted a number of judges on such omnibus articles, including Judges Archibald (ph), Ritter (ph), and Claiborne.
I would submit to the members of the Senate that the articles of impeachment against President Clinton present his offenses and their consequences in an appropriately transparent and understandable manner. They are not constitutionally deficient.
REHNQUIST: The senators -- this proposal of this question is sent by Senators Dodd and Leahy.
Would you please comment on any of the legal or factual assertions made by the managers in their response to the previous questions by Senators Thurmond, Grassley, Chafee, and Craig. Particularly, what would have stopped or limited the House in specifying precisely the statements on which the articles were based?
GREGORY CRAIG, WHITE HOUSE COUNSEL: In our case, we're talking about an allegation of perjury. In the Nixon case, the 1974 Nixon case, he was not charged with perjury. And I think our argument was that perjury is a different kind of thing. You have to be very specific in what you charge, and you have to be very clear as to what the statement is when you are charging perjury, and that is a tradition of our criminal justice system and of our jurisprudence.
Now, the danger here is that if you don't and you're overly broad, as we contend Article I is, is that at any given moment, you can fill the vessel with what your meaning is. And let me just give you a little history of these allegations of grand jury perjury against the president.
The Starr referral had three allegations. Mr. Schippers -- the Starr referral was September 9th.
Mr. Schippers, when he made his presentation to the Judiciary Committee, had two allegations. One was different. He incorporated one of Starr's.
When Starr appeared and testified on November 19th in front of the Judiciary Committee, he almost spent no time on this at all, one or two sentences, but he added a new charge, which was that the president was not truthful when he testified that he had been truthful in the deposition.
And then we appeared and made our representations and our defense on behalf of the president on the basis of what Mr. Starr had written in his referral and what Mr. Schippers had presented to the Judiciary Committee and in addition to what Mr. Starr had said when he appeared.
But then when Mr. Schippers gave his closing argument the following day and we saw the new articles, we had by my count 10 allegations from Mr. Schippers. Two had to do with the definition of sexual relations, three had to do with the prepared statement, two had to do with things that were never alleged again and never surfaced again in the course of the case.
And three had to do with Mr. Bennett and his proffer of the Lewinsky affidavit. Then on November -- on December 16, we had a whole new additional collection of reports -- of allegations. And on January 11, the trial brief here set forth eight examples.
Just to highlight the danger of not being specific, of not tying yourself to a definition, let me compare, for example, the trial brief that was submitted by the House managers three days before Mr. Rogan made his presentation.
The precise statement that Mr. -- the president is accused of testifying falsely in front of the grand jury was that he was lying when he said that the reason that he was seeing Betty Currie was to quote "refresh his collection."
In the trial brief, they make that reference one, two, three, four times that the statement that's specific here in the trial brief is he lied when he said he was going to refresh his recollection. That's not even mentioned in Mr. Rogan's presentation.
He changes it and he says, he lied when he said he wanted to ascertain what the facts were, trying to ascertain what Betty's perception was.
Very different statement requiring a very different defense. And two days before, three days before we even hear the allegations on the floor of the Senate, we still don't know precisely what they are.
RUFF: Mr. Chief Justice, if I may absorb whatever rebuttable time is still available to us, may I for just a moment sir?
RUFF: Thank you.
I want to talk briefly about just two aspects of Manager Canady's presentation.
First of all, he asked why didn't we seek a bill or particulars. Well, let me all remind the senators, although I don't think any of you were here at the time of the impeachment trial of Judge Lauderback (ph), who also sought a bill of particulars, and the House of Representatives at the time made it clear that the managers do not have the authority to rewrite the articles -- though they certainly have, I suggest, attempted to do so on the fly -- but that it would have required a remand to the House of Representatives in order to have a bill of particulars to judge what they themselves meant when they passed these articles.
Second, just very briefly. I spoke to the issue of multiplicity or duplicity the other day. And the question of whether Rule 23's revision makes any difference. As I pointed out -- and I won't embarrass him any further -- one member of this body spoke at length about the importance of not loading up multiple offenses into one count, well after the revision of Rule 23. Clearly with no sense that this body had been precluded from dealing with the critical of whether a two-thirds vote can sensibly be taken on an article that contains multiple -- and particularly as my colleague Mr. Craig indicated, multiple, non-specific violations.
Thank you, Mr. Chief Justice.
REHNQUIST: Senators Thompson, Grassley, Thurmond, Allard, Frist and Inhofe direct this question to the president's counsel. If the president were a federal judge accused of committing the same acts of perjury and obstruction of justice and the Senate found sufficient evidence that the acts alleged were committed, should the Senate vote to convict?
RUFF: This will sound half-hearted, but it's not. I'm glad you asked that question. This really goes right to the heart of the managers' argument here, which is that there is no difference in the consideration of the impeachment process between allegation against a federal judge and an allegation against the president of the United States.
I will not repeat the extended discussion of this subject of a few days ago, but let me try to summarize very briefly. It is absolutely crystal clear from the history of the drafting of the impeachment clause that the concern of the framers was: Is there such actions as so subvert our government that we can no longer persist in permitting, in their case, the president of the United States to remain in office?
That question must be dramatically different when you ask it about the conduct of one of a thousand judges.
Beyond that, it is also clear that there has been extended debate in many forums and at many times in the past 210 years about indeed just what the standard is for the impeachment of judges.
And I hesitate to do this, and I do it apologetically, Mr. Chief Justice, but the chief justice himself in an earlier time and in an earlier guise, spoke to this issue and made it clear -- this is during his tenure as assistant attorney general for the office of legal counsel -- when the issue was being debated whether there was a nonconstitutional, nonimpeachment device for disposing of judges alleged to have engaged in misconduct that may not fall within the high crimes and misdemeanors provision of the impeachment clause, that indeed the good behavior standard for judges was something far broader than the standard to be applied under the high crimes and misdemeanors standard.
And indeed, that debate was resumed many years later in the context of a further effort to establish a nonconstitutional device for removing judges. That history, and just the core question, do you ask the same questions about the trauma that the nation suffers when you are removing a judge and you are removing a president? The answer must be no.
You must ask what's the nature of the perjury that's been committed? What's the nature of the offense that's been committed? What's the factual setting in which it occurs? And ultimately does it so subvert the accused ability to perform the duties of his office that you must remove him?
That question for Judge Nixon, convicted and imprisoned, has got to be different from -- different is much too mild a word -- stunningly different from the question you ask against the backdrop of our history when you ask whether the president of the United States should be removed and the will of the electorate overturned.
Thank you, Mr. Chief Justice.
REHNQUIST: Senators Dorgan and Baucus and Schumer, to the president's counsel: "In Counselor Ruff's presentation he set forth a time line that undermined the managers' theory that Judge Wright's December 11 discovery order triggered an intensification of the president's and Jordan's efforts to assist Lewinsky in finding a job. In response to Mr. Ruff's presentation, the managers handed out a press release outside the Senate chamber asserting that it was the December 5 issuance of the witness list in the Jones case and not the judge's discovery order on the 11th that triggered the intensification of the job search.
This does not appear consistent with assertions made by the House managers in their trial brief and oral presentations. Please comment.
KENDALL: It was the assertion, very clearly voiced in Mr. Manager Hutchinson's presentation and very clearly made in the trial brief of the House managers that it was indeed the December 11 order that -- I used the word "jump started" yesterday that catalyzed, that pushed forward the job search. If you look at page 21, of the House managers' brief you see them say, this sudden interest was inspired by a court order entered on December 11, 1997.
Now, their position could not have been clear until we began our presentations and then all of a sudden, it wasn't the December 11 order, it was instead the December 5 witness list.
Well, there are number of things to be said about that. One of them was that they have very clearly said that there was no urgency at all after the witness list arrived to help Ms. Lewinsky.
They've said that Mr. Jordan met with the president on December 5, but that meeting had nothing to do with Ms. Lewinsky. This was in the majority report at page 11.
They said that very clearly.
So they've now suddenly, because it's been clear that the December 11th order was entered at a time when Mr. Jordan was flying to Europe, he could not have known about it, he had met with Ms. Lewinsky earlier that day. And indeed, that December 11th meeting had sprung from actions taken by Ms. Lewinsky in a phone call with Mr. Jordan in November. They had set that -- they'd agreed that when Mr. Jordan returned to the country, they would set up a meeting. They did that on December 5th, or she tried to get in touch on December 5th.
They tried to get -- they finally succeeded in getting in touch on December 8th. And that was not at a time she knew she was on the witness list.
So the point is, these were two entirely separate chains of events going forward -- the job search and the witness list -- and nothing supports the intensification theory presented by the managers, certainly not this new, well, it wasn't the December 11th order, it was the December 5th order.
REHNQUIST: Senators Ashcroft and Hatch. Is there anyone on the floor who can't hear me?
The White House makes much -- let me see -- this is for the House managers. The White House makes much of the fact that Vernon Jordan was on a flight to Holland on December 11th, before Judge Wright ruled that afternoon that other women who may have had relationships while in President Clinton's employ were relevant to the Jones suit.
However, the president was faxed a witness list on December 5th and actually reviewed it no later than the eighth.
Thus, isn't the White House argument that the president had no incentive to assist Ms. Lewinsky's job search until December 11, just a red herring?
HUTCHINSON: Thank you, Mr. Chief Justice. And I appreciate the opportunity to respond here.
And just let me say by way of preface that we're like lawyers, we're trying to do three things at once. You usually have an opening statement where you outline where you want to go in a case, then you have a presentation of the evidence and then you have a closing argument and we're trying to do it all at the same time. And for that reason, as I said at my very beginning of my presentation, that you need to pay attention to the record and to the facts -- that's what you depend upon -- and I get carried away in my argument.
I'm arguing, just as they're arguing their theory of the case.
We're both arguing a point of view here, and it's up to you to make the determination.
I have great respect for these counselors, they're admirable, they're doing a great job for their client, and they're presenting their theory of the case. We're arguing our point of view. And it's the facts that make the determination.
Now, let me go back to -- and you have it in front of you -- my presentation exhibit C, which I guess is the third exhibit, which is really the White House exhibit that Mr. Ruff had up here for a number of days because they were really trying to hammer home the statement that I made in my presentation. I hope that you all have that. Well I'll tell it to you then. Thank you.
Exhibit C, which I hope that you'll have, we asked them to distribute that, is a statement that Mr. Ruff portrayed for me, which in my presentation I said the judge, the witness list, came in, the judge's order came in, that triggered the president into action, and the president triggered Vernon Jordan into action.
Now, there's two things that I'm pointing to as the trigger mechanisms for the job search intensification.
One of them the witness list that comes in on December 5, the president knows about at the latest on December 6.
The other thing that intensified that effort was the judge's order on December 11. Now they went through this long circumstance of Mr. Jordan being in Holland at the time of the phone call of the judge, and all of that. Showing that the judge's order of December 11 could not have triggered any action on the 11th. There is no question about that. That is obvious from the facts, as it was obvious when I made my presentation.
The meetings on the 11th with Vernon Jordan and Monica Lewinsky were triggered by the witness list coming on the 5th that the president knew about on the 6th, that he discussed with Vernon Jordan, as well.
Now, we say that the judge's order of the 11th, which was filed that day, the only thing that was filed on the 12th was their memorandum of that telephone conversation. That triggered additional action down the road.
The job search was not over. The activity continued into January and so that all put pressure on the ultimate fact in January when the job was retained the false affidavit was filed.
Now, let me just point to a couple of other things along that line. We need to look at this because they basically make the point that there's not any connection between the false affidavit -- and that's my characterization -- that was filed and the job search.
But if you look at the testimony of Vernon Jordan, and that is Exhibit -- I think they're getting them out now -- F, that I'm presenting to you, the sworn testimony of Vernon Jordan which was on March 3 of 1998, he testifies and answers to a question.
Counselor, the lady comes to me with a subpoena in the Paula Jones case that I know. And as I've testified here today was about sexual harassment. You didn't have to be an Einstein to know that that was a question that had to be asked by me at that particular time because heretofore this discussion was about a job.
And then he says, the subpoena changed the circumstances. And I think this is important. That Mr. Jordan, who's filled with common sense, he says, you don't have to be an Einstein, you don't have to be learned like Mr. Ruff or any of the other White House counsel to apply common sense. Common sense tells you what whenever he knew about the subpoena, it escalated to a new arena. And obviously the witness list would have the same impact.
And so Mr. Jordan himself makes the connection. The job search was one thing, but whenever she became a witness in the Jones case, that changed everything. That changed the circumstances.
And let me tell you, that's a friend of the president who is making that statement.
And so we have to take this picture that they were related, as they were going two tracks, they became interconnected and became one track.
The final point -- and this was raised in the job search issue that the call by Mr. Jordan to Mr. Perelmam, the CEO of the parent company of Revlon, really had no impact on Monica Lewinsky getting a job, because there's a misinterpretation as to how well she did on the interview.
But if you look back to the testimony -- the grand jury testimony, there was a connection, because Mr. Jordan calls Mr. Perelman, and as he characterized it, make it happen if it can happen. Mr. Perelman then calls Mr. Durnam (ph) and then Mr. Durnam calls Ms. Seidman (ph), who is actually doing the interview the next day with Monica Lewinsky.
And so the person who is going to make the decision whether to hire Monica Lewinsky got the word down through the channel before that interview took place and before the decision was made. And of course the important thing is what's the intent, not the result, but the intent. And I think that you can see that there was an intent to make sure that Monica Lewinsky was taken care of, again, she was on board, part of the team, before she actually would have to give testimony or the president would have to give testimony.
REHNQUIST: This question is from Senator Boxer and it's to counsel for the president. "In light of the confession of Manager Hutchinson that Judge Wright's order had no bearing on the intensity of the job search, can you comment on the balance of his claim on the previous question?"
HUTCHINSON: My Chief Justice, could I object to the form of the question? That was not proper characterizing of what I just stated.
REHNQUIST: I don't -- I don't think the manager -- I'm not sure whether the managers -- can the managers object to a question?
HUTCHINSON: I withdraw my objection.
REHNQUIST: OK, very well. I think the parliamentarian says they can only object to an answer and not to a question, which is kind of an unusual thing.
RUFF: Mr. Chief Justice, I was going to remark that they can if they have the courage.
RUFF: I want to link up my response to manager Hutchinson's most recent comments with the previous discussion about vagueness. If there was a moving target, we've just seen it in motion. While it really wasn't December 11th, because now we know it didn't happen on December 11th, so let's go to December 19th or maybe January 8th and somewhere in there we're going to find the right answer.
I suggest to you that that is reflective of both the difficulty we have had in coming to grips with these charges and candidly the difficulty that the House might have had in figuring out what those charges really were.
Let me just respond briefly to Mr. Manager Hutchinson's argument and let me focus first on another portion of his presentation in which he states -- and there he's referring now to Ms. Lewinsky.
She's referring to a December 6 meeting with the president, in which as you'll recall, she has testified that there was a brief discussion about her efforts to get a job through Mr. Jordan and the president sort of vaguely said, yes, I'll do something about that.
And this is Mr. Manager Hutchinson's characterization of that moment. And December 6, you'll recall, is the day after the witness list comes out and the day on which he learns of it.
So, you can see from that that it was not a high priority for the president either. It was, sure I'll get to that, I will do that. But then the president's attitude suddenly changed.
What started out as a favor for Betty Currie dramatically changed after Ms. Lewinsky became a witness and the judge's order was issued again on December 11. But to the extent that the managers now seek to drag the intensification process back into the December 5 or 6 period, which is when Ms. Lewinsky went onto the witness list, you must look at what did they say?
Page 11, majority brief. Mr. Jordan met President Clinton the next day, December 7th, but they didn't discuss the job at all. Now it's absolutely clear that the president knew that Ms. Lewinsky was on the witness list when he met with Mr. Jordan on December 7th. And yet the issue of Monica Lewinsky didn't even surface.
I'm getting some help here. The first -- the first -- their words, page 11, majority brief, majority report -- the first activity calculated to help Ms. Lewinsky actually get a job took place on December 11th. There was no urgency.
Now, it's possible, of course, as their trial brief reflects, to bob and weave and dodge around the facts here.
But their trial brief says there was obvious -- and referring to the period after she appears on the witness list -- there was obviously still no urgency to help Ms. Lewinsky, and even they acknowledge that the December 7th meeting with Mr. Jordan was unrelated to Ms. Lewinsky.
But let me point, because I think this really goes to the heart of it, to what the managers ask you to think about in this context in which now, whether we can call it a confession or simply an acknowledgement, what they asked you to do when you heard the recitation about the December 11th events.
We now know Mr. Jordan is flying over the Atlantic at the critical moment. And here is what Mr. Manager Hutchinson asks you to do with Vernon Jordan, distinguished citizen, distinguished lawyer. Now, if we had Mr. Jordan on the witness stand, which I hope to be able to call Mr. Jordan, you would need to probe where his loyalties lie, listen to the tone of his voice, look into his eyes, and determine the truthfulness of his statements.
You must decide whether he's telling the truth or withholding information. There's only one message there: Vernon Jordan must have been lying, or at least there's enough question about his credibility and his honesty and his decency to explore whether he was lying.
If you predicate that question on the, shall we say, erroneous recitation of events on December 11, you need to know nothing more about what the time line and the chronology and the managers' theory of this case is all about. Thank you, Mr. Chief Justice.
REHNQUIST: This question is from Senators Sessions, Gramm of Texas, Smith of New Hampshire, Imhofe, Allard, Roberts. It's directed to the House managers.
In defense of the president, Ms. Mills has repeatedly stated and has just reiterated that the crime of witness tampering requires some element of threat, intimidation or pressure. Isn't true that Section 1512b criminalizes anyone who corruptly persuades or engages in misleading conduct with the intent to influence the testimony of any person in an official proceeding? Please explain.
REP. BOB BARR (R-GA), IMPEACHMENT TRIAL MANAGER: Mr. Chief Justice, we appreciate the question from the Senator since it bares on a number of different questions and a great deal of the evidence that you all have heard in this case.
One can talk around the law. One can talk about the law. One can ignore the law. And as we've seen, one can break the law. But one has to deal with the law in court and in these proceedings. And that is why throughout these proceedings the senators have heard us as the House managers on behalf of the House of Representatives and as the presenters of this case against the president, refer repeatedly and explicitly to the actual language of the statutes which form the basis for the articles of impeachment against President William Jefferson Clinton.
Counsel Mills has in fact misrepresented the law of tampering with witnesses as set forth very explicitly in Section 1512 of Title XVIII of the United States Code.
In her arguments, two days ago, Ms. Mills quite expressly stated that one of the elements that a prosecutor must charge and that must be found here, if indeed Article II, which is obstruction of justice should lie as the basis for a conviction thereon, one must find that tampering under 1512 requires threats or coercion.
Nothing could be further from the truth. Now, if in fact Ms. Mills had stated to this body that one of the basis, one of several bases on which a prosecutor or we as House managers cold indeed show this body that tampering with a witness would lie includes, as an alternative, as an option, threats or coercion, she would have, instead of being misleading, been absolutely correct. That was not her position.
Section 1512 of the United States code expressly does not require threats of force, intimidation or coercion. It may be based on the person corruptly persuading another person or engaging in misleading conduct toward another person, both of which are terms the definition for which are not found in the ether but are found, yet further reading, in Title XVIII. Neither of them requires threats, intimidation or coercion.
Moreover, in considering whether or not Section 1512 or indeed its companion section, 1503, also obstruction of justice under the U.S. criminal code, which also does not require for a conviction to lie thereon threats of force, intimidation or coercion, but also may be and is based on corruptly influencing, those terms are expressly defined and dealt with, not only in the definitional provisions of Title 18, and including specifically definitions that apply to these provisions, these sections, but also in the case law.
And we would respectfully direct the attention of the senators in reviewing the law of obstruction of justice and the law of tampering with witnesses to some of the very cases cited by the attorneys for the president in their effort to deflect attention away from these particular provisions of the law as they apply to the conduct of the president.
For example, in her presentation, Presidential Counsel Mills relied on the Supreme Court case of U.S. v. Aguilar (ph) in her statements. In that case, the court held that a lie told to a criminal investigator was insufficient to prove witness tampering.
What Ms. Mills failed to disclose, however, was that the court's decision in that case, in that Aguilar (ph) case, was based on a specific finding not applicable to the facts of this case. The evidence was insufficient to prove that the defendant could have even thought that the investigator was a potential witness at the time that he lied to him.
The overwhelming body of evidence in this case, as we have heard yet this morning, most recently in response to questions, is that not only could the president -- and the president did in fact -- reasonably presume, indeed almost invite, the lawyers in the Jones case to subpoena Ms. Currie as a witness, but we have found contrary to the prior misleading statements of Counsel Ruff, she was in fact subpoenaed and called as a witness.
Therefore, we believe that on both arguments raised by counsel for the president, seeking to deflect attention away from and render inapplicable both obstruction provisions, 1503 and 1512, because they, one, require, as we have shown they do not, but they would argue they require coercion, threats, intimidation or force.
Or two, because the president -- they are inapplicable because the president could not have reasonably believed or did not know that Ms. Currie was a witness, could reasonably be expected to be a witness, at the time of the coercion that took place.
I would yield for one minute to House Manager Graham.
REHNQUIST: I think the time has expired.
BARR: I will not yield one minute to House Manager Graham.
REHNQUIST: Senator Byrd to the president's counsel. Alexander Hamilton, in Federalist SA 65, states that the subjects of impeachment are those offenses which proceed from the misconduct of public men. Or in other words, from the abuse of violation of some public trust.
RUFF: Mr. Chief Justice, this too goes to the very heart of the deliberations in which you must engage at the end of these proceedings.
As I've tried to make clear in my earlier arguments, it is not enough simply I think to ask, does a particular generic form of misconduct, however serious it may be, lead inexorably (ph) to the conclusion that the president of the United States has committed an impeachable offense.
As the framers made clear, and I think the history that lay behind their deliberations and the history that was followed made clear, when we speak of the political encaps (ph), which is what it was, in Federal of '65 offenses against the man in his public role, we speak of offenses which this body must ultimately judge as being so violative of his public responsibilities that our system cannot abide his continuing in office.
Let us assume for a moment -- and we will disagree with each and every element of the accusation -- but let us assume for the moment that this body were to conclude that the president lied in the grand jury about his relationship with Ms. Lewinsky. That in and of itself does not lead to the judgment, and in our view must not lead to the judgment, that he is to be removed from office.
It must give you pause, you must think carefully about it. But ultimately you must ask, despite our rejection of any such conduct, whether it be a judge or a president or any other civil officer: have the framers instructed us to remove from his office and to overturn the will of the electorate a president who admittedly, if you conclude that he did violate the law in the this regard, has violated a public trust in the broadest sense, as each of us does who serves the public if we do anything other than that which are our proper and assigned responsibilities and do them with the utmost of integrity? Each of us violates that trust if we don't meet that standard.
But the one thing we can be certain of is that the framers understood the frailties that they were dealing with. They understood the nature of the offense that had been a background of impeachment proceedings in England.
And certainly, the framers in their debate made it clear that it has to be at the highest level of public trust -- the breach of the public trust, that embodied in the words treason, bribery, selling your office and similar other high crimes and misdemeanors.
And so, all I ask the senators in this regard is not to simply leap, as the managers would have you do it, from the definition of the offense or the statute governing the conduct, but to ask the constitutional question, as I know you will, the framers' question.
If we haven't convinced you on the facts, I hope we'll convince you that the framers would have asked: Is our system so in danger that we must not only turn the president over to the same rule of law that any other citizen would be put under after he leaves office, but must we cut short his term and overturn the will of the nation? And in our view, in the worst-case scenario, you can find the answer to that question must still be "no."
Thank you, Mr. Chief Justice.
REHNQUIST: Senator Lott asks the House managers: Do the managers wish to respond to the answer just given by the president's counsel?
CANADY: Mr. Chief Justice, members of the Senate, we would briefly respond to the response just given by counsel for the president.
We believe that the response and the position taken by the counsel for the president here really involves two great errors. One error is in establishing a standard of conduct for the presidency that is too low. The other error is in attempting to minimize the significance of the offenses that this president has been charged. And which, we submit to you, the evidence supports the charges.
Now, we do not submit that any president -- this president, who ever it may be -- should be impeached and removed from office for trivial or insubstantial offenses.
We believe that an essential part of the focus of your inquiry must be on whether there was a serious corrupt intent involved in the underlying conduct.
A president should not be impeached and removed from office for a mistake of judgment. He should not be impeached and removed for a momentary lapse.
Instead, he should be impeached and removed if he engages in a conscious and deliberate and settled choice to do wrong, a conscious and deliberate and settled choice to violate the laws of this land.
And we submit that he must be impeached and removed if he does that, because in doing so he has violated his oath of office, in doing so he has turned away from the unique role which he has under our Constitution as the chief executive charged with ensuring that the laws be faithfully executed. He steps aside from that role and takes on the role of one who attacks the rule of law.
And it is for that reason that we believe that this president should be removed.
And we would further submit that the attempt to minimize the significance of the conduct of this president does a disservice to the laws of this land. The attempt to minimize this course of conduct which started out as an effort to deprive a plaintiff in a civil rights case of her just day in court is a serious course of conduct -- a course of conduct which brings disrespect on the office of the presidency and indeed undermines the integrity of the office of the presidency, the integrity of the judicial system.
And it is for all of those reasons that we would submit to you that the president's counsel's efforts to persuade you that this course of conduct is not impeachable are not persuasive and should not be accepted by the Senate in this case.
REHNQUIST: Senators Torricelli and Rockefeller ask to the president's counsel, the House managers have made the overly broad argument that nothing in the text, structure, or history of the Constitution suggests that officials are subject to impeachment only for official conduct. Can this unbending argument be reconciled with the following statement from Justice James Wilson, "Our president is amenable to the laws and his private character as a citizen and in his public character by impeachment and with the standard adopted by a bi- partisan majority in the Watergate proceedings?"
RUFF: Mr. Chief Justice, Senators, I could probably simply say, no given the articulate framing of that question.
And I would have said as much as needed to be said.
I think the managers have in their straw man building role tried to suggests that our position somehow is so distant from constitutional realities and the realities of the operations of our government, that we could not conceive of a situation in which private conduct, no matter how egregious would lead to removal. And of course, that's not the case.
None of us could contemplate a setting in which even personal conduct, if -- and I need not go through any examples, was so egregious that the people simply could not contemplate the notion of the president remaining in office.
But other than that, if there is one message that comes out not only of Judge Wilson but of the entire debate of 1787 and all of the commentary since then, is that indeed the focus of attention must be -- and this goes back in large measure to Senator Byrd's question -- must be on the public character of the man, the political, in the broadest sense, character of the man and of his acts.
And if you look back at the 1974 writings of the House Judiciary Committee, both majority and minority -- so this is not a partisan view -- it makes it absolutely, they make it absolutely clear that the House then believed something which they must either not believe today or have ignored as they engaged in their discussions, which is that the test to be applied is whether the president in this case has so abused a public trust, so abused the powers of his office, that he goes to the very heart of what the framers had in mind in 1787 when the carefully defined and carefully limited the range of activity that could lead to contemplation of removal. And that is not a range of activity that with all due respect touches anywhere near the conduct that you have before you today.
REHNQUIST: Senator Nickles asks the House managers.
The president's counsel stated the president did not commit perjury. Please respond.
REP. JAMES ROGAN (R-CA), IMPEACHMENT TRIAL MANAGER: Mr. Chief Justice, I trust that the presumption of five minutes is a rebuttal one, correct?
I will do my best not to have to go beyond the time. I thank the senator for the question.
First, just a predicate. Obviously in five minutes, I could not do a comprehensive review on the perjury aspects of this case. So, let me just start with a preliminary issue and we can move on with different questions and revisit the issue at another time.
If anybody wants a lesson in legal schizophrenia, please read the president's trial brief on this very subject. They skirt the issue by saying nowhere in the president's grand jury deposition did he ever affirm the truth of his civil deposition testimony.
But they won't come out and say he lied. They won't come out and say he perjured himself. And they tried to ignore the actual fact of when the president was asked questions about his oath that he took during the grand jury. I read there from -- question to the president. "You understand the oath requires you to give the whole truth, that is a complete answer to each question, sir? Answer: I will answer each question as accurately and fully as I can. Question to the president: Now, you took the same oath to tell the truth, the whole truth, and nothing but the truth on January 17, 1998 in a deposition in the Paula Jones litigation, is that correct, sir? Answer: I did take an oath there. Question: Did the oath you took on that occasion mean the same to you then as it does today? Answer: I believed then that I had to answer the questions truthfully, that's correct."
The colloquy goes on. It is in your materials. They attempt to say that that somehow inoculates the president from having to admit that he perjured himself during the Paula Jones deposition. But let's take a quick look at some of the answers he gave during the Paula Jones deposition, that he affirmed in his grand jury testimony that we now know is false.
Question to the president: If she, Monica Lewinsky, told someone she had a sexual affair with you beginning in November, 1995, would that be a lie?
Answer: It's certainly not the truth. It would not be the truth.
Question: I think I used the term "sexual affair" and so the record is completely clear, have you ever had sexual relations with Monica Lewinsky as that term is defined in deposition exhibit number one?
Answer: I have never had sexual relations with Monica Lewinsky. I've never had an affair with her.
And then they go on to ask him: Is it true that when Monica Lewinsky worked at the White House, she met with you several times?
"Answer: I don't know about several times. There was a period when the Republican Congress shut the government down. The whole White House staff was being run by interns. She was assigned to work back in the chief of staff's office. We were all working there.
"I saw her on two or three occasions then. And then when she worked at the White House, I think there were one or two times when she brought some documents down to me.
"Question: At any time were you and Monica Lewinsky in the hallway between the Oval Office and the kitchen area?
"Answer: I don't believe so, unless we were walking back to the dining room with pizzas. I just don't remember. I don't believe we were in the hallway, no."
This colloquy goes on and on. I invite the Senate to review the president's deposition testimony. He clearly was giving answers that were false. They were not a part of the record. He wasn't doing it to protect himself from embarrassment, he was doing it to defeat Paula Jones's sexual harassment case.
And when the president testified in August before the grand jury, he never denied the truth of those testimonies.
He refused to admit that he lied during the deposition. He reiterated the truth of those because he knew he would be subject to perjury, so the question for the president's council is simply this -- and it is a simple question and it doesn't need to be parched -- did the president lie, under oath, on January 17th when he was asked questions about the nature of his relationship with Monica Lewinsky?
Did he lie when the United States Supreme Court had said that she -- Paula Jones had a right to proceed in a sexual harassment case? Did he lie when Judge Susan Webber-Wright ordered him to answer those basic questions under oath?
And if the answer to that question is yes, then we have an incredible admission. If the answer is no, I invite them to point to the record where that is demonstrated.
REHNQUIST: To the president's council from Senators Conrad and Torricelli.
"The House of Representatives rejected two proposed articles of impeachment, including an article alleging perjury in the Jones deposition. Do you believe that the Senate may, consistent with its constitutional role, convict and remove the president based on the allegations underlying the rejected articles, including the allegations of perjury?"
CRAIG: Mr. Chief Justice, Article II was defeated. But more importantly, Article I specifically incorporates by reference or tries to incorporate by reference all the elements of Article II. And the House of Representatives when they voted to reject Article II, I think voted also to eliminate these issues that you've just heard about.
KENDALL: Now, we predicted, and our prediction has come true,that the managers would like to argue this case. If you look at -- final point, if you look at the majority report that has come -- that comes out before the vote occurs on all four articles, and you go to Article I and you try to find out where in Article I they define those perjurious statements that compose subpart two, which is the civil deposition, you will see in that majority report they say go look Article II, which is the argument about the civil deposition.
And the House of Representatives specifically voted to take out all those accusations and allegations of misconduct with respect to the civil deposition. Now, I've testified, as has Mr. Ruff before the Judiciary Committee, on this issue. And I have said that the president's responses in the Jones deposition were surely evasive.
That they surely were incomplete. That they surely were intended to mislead. And it was wrong for him to do all that. But they were not perjurious. And if you want to try a perjury case, about all the things and the statements that the House of Representatives did not want to accuse him of, that would be inconsistent, I think, with your duty as members of this court.
You cannot impeach the president on the issues that are included in Article II. He was not impeached and you cannot remove. Thank you.
LOTT: Mr. Chief Justice, I believe we've had an equal number of questions although the time may not be exactly equal. But I would ask unanimous consent that we take a 15 minute recess at this point.
REHNQUIST: In the absence of objection, it is so ordered.
REHNQUIST: Chair recognizes the majority leader.
LOTT: Mr. Chief Justice, I believe we're ready to resume the questions, and I believe this would be question number 16. We send question to the chief justice.
REHNQUIST: This is a question from Senators Santorum, Smith of Oregon, and Thomas to the House managers. "Please respond to the presentation made by the counsel to the president, including the argument made by Mr. Craig to the effect that the rejection of Article II had the effect of eliminating that portion of Article I. Did the House conclude that lying in a civil deposition is not impeachable but that lying to the grand jury about whether the witness lied in a civil deposition is impeachable?"
ROGAN: Mr. Chief Justice, I thank the senators for the question and for the opportunity to rebut the presentation a few minutes ago by Counsel for the President Mr. Craig. ~
In his response, he asks the Senate to do specifically what none of the attorneys can do in their presentations, and that is go beyond the record. Specifically, Mr. Craig is asking the Senate to make assumptions as to why the House of Representatives defeated what was then known as Article II, a stand-alone article of impeachment that the president lied during the civil deposition.
And he goes so far in his presentation to say, because the House of Representatives defeated what was then Article II, the Senate should not consider any of the language relating to the president's perjury during the civil deposition. ~
First, I ask the Senate not to make those assumptions because if there was any reasonable inference to be drawn, it would be that it was cumulative. Why is it cumulative? Why did the House not want this to be a stand-alone article? ~
It is cumulative, because if Mr. Craig would read Article I, he would see that one of the allegations of perjury is that the president committed perjury in the grand jury when he referenced his civil deposition answers and reiterated those to the grand jury. ~
And so, the House made a decision not to use a separate, stand- alone article, but I would respectfully submit this body that that is the only inference that can be drawn. The other thing that I want to mention briefly about Mr. Craig's presentation on that issue is what I found to be a startling admission on his part.
Assuming, of course, that the Senate is going to look at Article I as it was drafted and passed by the House and as presented to you dealing with civil deposition perjury, Mr. Craig said that the president's testimony in the Jones case was evasive and incomplete.
He goes even further in their trial brief to the Senate -- withdraw that, actually -- in his testimony or his statement to the Senate a couple of days ago. And I'm quoting -- he said, "the president's testimony in the Jones case, the president was evasive, misleading, incomplete in his answers." ~
That begs the question. What kind of oath did the president take in the civil deposition? Did he take an oath -- did he raise his hand and swear to tell the truth, the evasive truth, and nothing but the evasive truth? Did he take an oath to tell the truth, the misleading truth, and nothing but the misleading truth? Did he take an oath to tell the truth, the incomplete truth, and nothing but the incomplete truth?
Because if he did, if those -- if that was the language that the president used when he took his oath and testified, then perhaps Mr. Craig's position is well-taken. But a brief review of the oath that the president took clearly states that he took an oath and was obliged under the law to tell the truth, the whole truth, and nothing but the truth -- not the incomplete or misleading truth -- the truth, the whole truth, and nothing but the truth.
And so this body has to make a determination. When they review that testimony, both given during the civil deposition and reiterated during the grand jury, whether the president fulfilled his legal obligation in a sexual harassment lawsuit.
And if he did, then clearly that should be stricken, and you should not consider that. But if he did not, if you find that in fact he testified, as Mr. Craig said he testified, incompletely, evasively and misleadingly, then I believe this body has an obligation to cast a vote accordingly.
REHNQUIST: Senator Reed of Rhode Island asks the White House counsel, would you please comment on any of the legal or factual assertions made by the managers in their response to the previous question?
RUFF: Thank you, Mr. Chief Justice. You know, Mr. Manager Rogan asked you not to make assumptions about what the actions of the House mean, and then proceeded to make a series of assumptions about what the House might have meant.
The problem with Mr. Manager Rogan's analysis is twofold. One, he and his colleagues in the House on the Judiciary Committee drafted these four articles. They believed, at least 20 of the majority believed, that it should be an impeachable offense, as he now puts it, did he fulfill, did the president fulfill his obligation in the Jones deposition. ~
You don't need to make a lot of assumptions to understand merely on the face of the action that was taken that the full House said no, it is not, even if we were to conclude, as the man -- as the House Judiciary majority wishes us to conclude, an impeachable offense. And so the managers have had to find a way to drag back into Article I all of the problems that they see in the president's testimony in the Jones deposition. ~
The problem is that -- and you can listen to it in the language that Mr. Manager Rogan has used, not only today, but earlier, and that is used in the brief filed by the House managers -- that the president, in his words, referred and reiter -- referenced and rated his testimony in the Jones case.
Senators, that is not so. Now, they tried to hook onto a statement, as best we're able to tell in searching their position and their writings on this subject, the managers hook into a statement in which the president said, I tried to walk through the mine field of the Jones deposition without violating the law and think I did. ~
And on that real hook, which is clearly a statement of the president's state of mind about whether he succeeded or didn't succeed in testifying without violating the law in the Jones case, on that hook they hang every single item -- didn't tell us what they were -- but they hang every single item that the House rejected out of hand in Article II. ~
Now, wholly apart from the inadequacy of the predicate that they lay, if there was ever an example of a situation that Mr. Craig talked about earlier and that I talked about on Tuesday, in which I challenge anybody in this room to tell me how you would have known coming into this chamber what it was that the managers were alleging with respect to the Jones deposition, this is it.
If you looked at the trial brief; if you listened to Manager Rogan's presentation of the other day; if you listened to his presentation today, where amongst all that do we pick and choose to find the statements, even if you agree with Mr. Manager Canady that it's all right just to sort of generally charge, as a constitutional proposition, and I firmly disagree with that, I don't care on what level you're operating. ~
The lowest trial court in the country -- nobody would ever say: Now, Mr. Defendant, I want you to understand that you're being charged with what you'll find at page whatever it is of the majority report, where we refer you over to this list of other things that was rejected by let's say the grand jury, and somewhere in there you're going to find the charges to which we ask you to respond. ~
The bottom line is: You can go down that list; some of them you'll never hear mentioned in this chamber; haven't heard them mentioned yet. I defy anybody in this chamber, including the managers, to justify asking the president of the United States to defend against a reference from one page of a brief to another in order to tell the charges that he's been accused.
If you read his grand jury testimony, you see he addressed a number of issues that he addressed in the Jones deposition. He clarified. He elaborated. He told the truth in the grand jury. Not once was he ever asked by the independent counsel and all his lawyers there, who had been pursuing this investigation for seven months when they had him in the grand jury, not once did they ask him this simple question: Is everything you testified to in the Jones deposition true? ~
Or, go down the list and say, is what you testified to on page 6 or page 8 or page 87 true? And when they got through with that deposition, four hours, professional prosecutors, and they went back and spent from August the 18th to September the 9th when they sent their referral up, looking back using a fine-tooth comb on that transcript, and they went back and said, where are the violations? Even they don't say that there is some sort of wholesale importation of the Jones deposition into the grand jury.
And yet, not the House, but the Judiciary Committee majority report and the managers, with that big, vacant, empty spot in the middle, the rejection of Article II by the House of Representatives would have you believe that indeed what the independent counsel's office didn't believe happened and didn't force to make happen did happen. And they're asking you to remove the president from office on that kind of logic.
Thank you, Mr. Chief Justice.
REHNQUIST: This is from Senators Shelby and Snowe to the House managers. "There has been much debate regarding the nature of the offenses that fit within the definition of high crimes and misdemeanors. When employing this phrase in the Constitution, the framers relied on precedents supplied by colonial and English common law to provide context and meaning.
Please explain whether or not the offenses charged in the two articles fit within the types of impeachable offenses contemplated by the framers as they interpreted colonial and English common law precedent.
CANADY: Mr. Chief Justice and members of the Senate, I'll be happy to respond to this question because it is a question that goes to the heart of the matter that is before us.
On Saturday, I made a presentation which focused on the history of the impeachment process in Great Britain and the way in which that serves as a backdrop for the work of the framers.
And I would like to refer you, again, to a document to which I made reference during the course of the proceedings on Saturday. This is a document which has also been referred to repeatedly by counsel for the president.
It is the report prepared by the staff of the impeachment inquiry in the case of President Nixon, entitled "Constitutional Grounds for Presidential Impeachment."
And I believe that in that report they grapple with the very issue that you have now raised. In characterizing the background of impeachment. In characterizing the things that the framers focused on, both in the course of the constitutional convention and in the ratification debates.
And also, goes a little beyond your question -- the course of impeachment proceedings over the last 200 years here in the House of Representatives and in the Senate, they came to this conclusion. And this is what they said. They said the emphasis has been on the significant affects of the conduct. Undermining the integrity of office, disregards of constitutional duties and oath of office, irrigation of power, abuse of the governmental process, adverse impact on the system of government.
They went on to say impeachment was evolved by parliament to cope with both the inadequacy of criminal standards. And one of the issues that they were concerned with was whether there had to be a criminal violation in order for there to be a high crime or misdemeanor. And they concluded, I believe rightly, that there need not be a criminal offense.
But they said impeachment was evolved by parliament to cope with both the inadequacy of criminal standards and the impotence of courts to deal with the conduct of great public figures.
They concluded then by saying, "Because impeachment of a president is a grave step for the nation," which all of us in this chamber concede, "it is to 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."
Now that is the standard which they set forth, which I believe encapsulates the whole history of the experience of the English parliament as well as the discussions in the Constitutional Convention and the ratification debates as well as anything I have seen.
And let me point out that this was a product of the staff of the Rodino committee. This is not something that the House managers here today have come up with to support our case. It is there as part of the record.
Let me, let me refer to another part of that particular report which I think gets to the essence of the matter here.
They said each of the 13 American impeachments -- of course there have been more impeachments since the time this was written -- involved charges of misconduct incompatible with the official position of the officeholder.
This conduct falls into three broad categories, and I think that this is a very sensible division of the types of conduct that may fall -- the types of conduct that constitute high crimes and misdemeanors: one, exceeding the constitutional bounds of the powers of the office in derogation of the powers of another branch of government; two, behaving in a manner grossly incompatible with the proper function and purpose of the office; and three, employing the power of the office for an improper purpose or for personal gain.
Now I would submit to you in conclusion that what we have before the Senate in this case is conduct that clearly falls within the scope of category two, which I just read, which I will repeat: behaving in a manner grossly incompatible with the proper function and purpose of the office -- for the very reasons I explained a few moments ago.
When the president of the United States, who has taken an oath of office to support and defend the Constitution, who has a constitutional duty to take care that the laws be faithfully executed, engages in a calculated course of criminal conduct.
He has in the most direct, immediate and culpable manner violated his oath of office, breached his duty under the Constitution. And for that reason has behaved in a way that is grossly incompatible with the proper function and role of the high office to which he has been entrusted -- which has been entrusted to him by the people of the United States.
REHNQUIST: This question is from Senator Bingaman to White House counsel. "Would you please comment on any of the legal or factual assertions made by the managers in their response to the previous question."
RUFF: Mr. Chief Justice, Senators, let me make a couple of points if I may.
The question that was put to the managers started by asking what we can learn from looking back into the English roots of impeachment and how that might bear on the decisions that you face in the coming days.
I will not, in any sense, hold myself out as a scholar, or at least enough of a one, to be able to answer the question with any specificity. But I do know enough about the parliamentary form of government and its experience with impeachment to know that a couple of lessons can be drawn from it.
First, that impeachment was a developing tool over the course of the 14th, 15th, 16th and 17th centuries as weapon in the battle between the parliament and the crown. And it was one of the ways, indeed one of the few ways, that parliament could reach out and remove the king's ministers or the queen's ministers. And that was really where the battle ground was.
But even in that setting when it was an avowed political tool, the history I think will tell us that parliament did ask itself, was the conduct of the minister at issue, whoever that minister might be, so subversive of constitutional form of government that removal of the minister, or in some cases even more severe sanctions was necessary.
If you transport that into the experience of the framers, it does two things, I believe. One, it tells you what the framers knew of the seriousness of the offenses that had to be addressed through impeachment. And what the need for impeachment was as the ultimate solution to the ultimate problem.
But it also tells you very clearly that the framers did not want to bring that English experience in wholesale. Because, they recognized it for what it was, which was indeed, a weapon in the battle between the parliament and the crown.
And in the government that they had created, neatly balanced between the legislature and the executive and the judicial branch, a kind of -- the use of impeachment as it was reflected over the four or five centuries that had been developed -- was not consistent with what these framers were creating.
And so, they very carefully chose and the debates reflect that, to limit the scope of impeachment. And to use it as they viewed it, only as a matter of constitutional last resort.
And in doing so, they foretold, I think, the positions staked out both by the majority and the minority at the time of Watergate. And let me pause here just for a moment to say that I will not go into detail respecting the conduct engaged in by former President Nixon. Except to say, I suggest to you, that it is so far distant from anything that has been charged here that it doesn't belong in the same sentence, paragraph, or certainly article.
But if you look at what came out of the House Judiciary Committee in 1974, I agree (ph) entirely with the theme of the majority staff report at the time, as did the minority. And their theme was the theme that I hope I've sounded probably too often over the last few days.
I'm going to read to you again, and I apologize for this, something I read to you earlier, which is the minority view on the meaning of impeachment: "It is our judgment based upon this constitutional history that the framers of the United States Constitution intended that the president should be removable by the legislative branch only for serious misconduct dangerous to the system of government established by this Constitution. Absent the element of danger to the state, we believe the delegates to the federal convention of 1787" -- I'm going to skip over a little language here -- "struck the balance in favor of stability in the executive branch."
Thank you, Mr. Chief Justice.
REHNQUIST: Senators Grassley, Smith of New Hampshire, Bunning and Craig ask the House managers: "In your presentation, you made the case that the Senate should call witnesses. In light of the White House's response to this argument, do you still hold this position? Please elaborate."
MCCOLLUM: Mr. Chief Justice and Senators, the House definitely holds to the position that we should call witnesses. But I think the issue here is what has been related to us in anything we've heard in the past few days by the White House counsel that would say we don't need them. Or I think just the contrary, what have we heard that says we're more likely to need them or you're more likely to need them?
First of all, I would like to point out to you that the White House counsel is trying to have it both ways.
They have been arguing to you on a lot of technicalities of the law, the criminal law, for the last few days. And that's understandable.
As I said to you a few days ago, I think this is a two-stage process and we or the managers do. You have to determine if the president committed crimes, and then if he did, should he be removed from office. Two separate questions.
They've argued to you that you should use the standard beyond the reasonable doubt, which is a criminal standard. And I might add that that standard is only for facts, it's not for whether you remove. It isn't to determine law. You wear the hat of finders of fact as well as the judges, the finders of the law, and so forth.
But if you choose to use that standard, you need to know (a) that it doesn't mean it excludes any doubt. You probably need to hear a jury instruction, which we can provide at some reasonable point for you about how a federal court would charge a jury about that.
But the point I'm making is that they've claimed that, then they've claimed there is a lack of specificity in the charges. We're not in court in the sense of a real trial here. We don't have to be specific like that. The whole history of the articles of impeachment that have come over here in the past on judges and so forth have never gotten down into the technical specificity of a courtroom and been thrown out because they weren't exactly right.
But my point again is that they've gone and built up a whole case about -- that we ought to follow these rules and have a criminal proceeding and judge the crimes on that basis, and yet they've said, you wouldn't have witnesses or we shouldn't call witnesses.
In any criminal trial, you're going to call witnesses. You need to judge their credibility. I want to walk through what else they said with you in the last couple of days that make point very clear with regard to testimony, with regard to judging who you believe or who you don't believe and how important that is.
First of all, let's just take a few glimpses, but as we do this, remember the big picture. It is the scheme the president is engaged in and the whole basis for our discussion here today and each of these two articles of impeachment involve the questions of the president's trying to thwart the Jones court will, trying to hide evidence from the court, and planning not to tell the truth in that deposition in January. Whether that's over here on a perjury count or not is irrelevant -- it's critical to this case for both obstruction of justice and perjury that you accept and understand as I think clearly you do, from listening to all of this, that the president lied many times in that deposition in the Jones case because he didn't want them to get the facts -- the true facts of his relationship with Monica Lewinsky.
Well, in that process of looking at that, he needed Monica, if you will recall, to file a false affidavit. He needed to obscure the fact there were gifts there. He needed to obscure the trail that led to him in any detail relationship with her.
So, let's take for example the gift exchange discussion counsel had out here a couple of days ago with us. They were pointing out to you, the White House counsel, that on December 28, that Monica Lewinsky in her grand jury testimony testified that the president said to her with respect to the -- what she should do about those gifts. And she raised giving them maybe to Betty Currie. I don't know or let me think about that.
The counsel said, well let's go back and look at ten different times she said things about that subject, all kinds of different ways. Well, I would submit to you that her grand jury testimony after she got the immunity to testify is clearly the most credible. We presented that to you. And that's what the president said. It is significant what he said because that's part of your chain you've got to lead down the road to figure out whether or not he had the requisite intent to go and influence the outcome of what was done with the gifts.
But the reality of this is that when you look at it, you have to question her testimony. You have to question her believability. You ought to bring her out here. She should be brought out here. If they're going to challenge her like this and give her an opportunity for us to examine her on both sides. And determine what is her best testimony about that, if that's important to you.
And apparently, it is to White House counsel. The same thing is true of the questions with regards to Ms. Currie and the phone call dealing with the question of coming over to get the gifts.
There White House counsel is saying in essence Ms. Lewinsky's not telling the truth, Ms. Currie is. If you don't have them here to listen to, who you going to believe? I would suspect if Ms. Lewinsky came out here the one-minute phone conversation, which was not part of the Starr referral, we discovered that subsequent to that, would be something that she could comment on and explain, and maybe Ms. Currie could, too. But we haven't had that, you won't have that, and they made a big to do over that in the last couple of days.
And last but not least, what I put up on the chart here is dealing with this affidavit. Now, the affidavit is very important, it is a central part of the obstruction of justice, it is the very first obstruction of justice, and the question of truthfulness and who you believe in this pattern is very, very important.
The White House counsel has been arguing the last few days that indeed, with regard to the cover stories, that there was no discussion of cover stories in a timely way during the December 17 phone conversation when the president suggested Monica Lewinsky file an affidavit and that the cover story idea somehow, you know, isn't tied into the issue of putting into her head that she should tell a lie.
Well, I'd call you attention to what I read to you the other day, it's up here on this board, and I refer it back to you on the chart, this was one of the charts, where she testified before the grand jury, Monica Lewinsky did. At some point in the conversation -- and I don't know if it was before or after the subject of the affidavit came up -- I don't know if it was before or after -- but it was during that conversation on December 17 when the affidavit did come up, he sort of said, quote, "You know, you can always say you were coming to see Betty or that you were bringing me letters, which I understood was really a reminder of things which we had discussed before."
And went on to say, the famous quote, "and I knew exactly what he meant by this." And if you remember, I read that to you the other day. And she also said it was a -- the pattern of the relationship to sort of conceal it. I'm not going to put the other board up here, but in the same context, they've been saying with respect to this affidavit issue, again, "no one asked me to lie." Remember that? It was repeated over and over and over again. I pointed out and again point out to you, but you need to bring her in here, I think, based on what they're saying and arguing, to find out for yourself if she's going to corroborate this.
She said in the grand jury testimony, "for me, the best way to explain how I feel what happened was, you know, no one asked or encouraged me to lie, but no one discouraged me either." And she went on to say: "And by him not calling me and saying that" -- that she shouldn't lie; I didn't read the whole paragraph -- "I knew what he meant." "Did you understand that all along he would deny the relationship also?" She says: "Mmm, yes." And question: "And when you say you understood what it meant, he didn't say 'oh, you know, you must tell the truth' -- what did you understand that to mean?"
She says, "that as we had on every other occasion and in every other instance of this relationship, we would deny it."
If you don't -- if you believe her, then the president's not telling the truth. The affidavit clearly is something he was trying to get her to file falsely. It makes sense that he would bocause he relied on it in the deposition. He patterned it after the cover stories in the affidavit, what he had to say, the lies he told about the relationship.
It makes common sense to me.
REHNQUIST: Mr. McCollum?
MCCOLLUM: But that... Mr. Chief Justice?
REHNQUIST: Answer the question.
MCCOLLUM: Thank you very much. My point is, you ought to bring the witnesses.
REHNQUIST: This is a question from Senator Bryan to the White House counsel. Would you please comment on any of the legal or factual assertions made by the managers in their response to the previous question, focusing on the need for witness and the time likely required to prepare for and conduct discovery.
KENDALL: Mr. Chief Justice. The first question to ask about the need to call witnesses is what would the witnesses add?
That hasn't been described. What you've heard are vague expressions of credibility and hope. You haven't heard specifically what these witnesses would add and the answer to that is they would add nothing to what is not already there.
Yesterday I held up the five volumes of testimony. Thousands and thousands of pages, you have it before you. Now those five volumes represent eight or nine months of activity by the Independent Counsel. The Independent Counsel called many, many, many witnesses many, many, many times. They proceeded with no limitation on their budget, on their resources. They turned things upside down. And they repeatedly, I think abusively, but they repeatedly called witnesses like Ms. Currie, Ms. Jordan, Ms. Lewinsky back to the grand jury for repeated interviews.
It's all right there and the managers have really told you nothing that could be added to this record. Second, they haven't made a representation about what the witnesses would really say that is different and the reason they haven't is that they themselves don't know. They themselves have done no investigation.
They don't know what these witnesses would say. They're hoping that maybe something will turn up.
Now, what they've done, they've taken those five volumes and more from the independent counsel. And I'm reminded of the old bureau that many newspapers had -- it's called rewrite. That was not a bureau which did independent reporting. When an editor read something that was incomprehensible, he or she would say get me rewrite.
So, what the House has done is gotten rewrite to write up its own report. They can't tell you -- they tell you what they hope, but they can't make a representation or a proffer to you about what any witnesses would say.
Now, their third and really their only argument is the credibility argument -- got to see these witnesses. Well, in point of fact, in the real world, when you have witnesses, their stories often differ in some ways. They differ not because anybody is lying. And they differ only because people don't always have precisely the same recollections of things.
Now, that doesn't mean that looking at them will add anything other than getting for you the sixth, seventh, eighth, ninth, tenth account of what some witness has said.
For example in our trial brief, we quote -- and Mr. McCollum referred to this -- at pages 66 to 67, eleven accounts that Ms. Lewinsky has given on the gifts exchange. Now, I don't think you're going to learn anything from a 12th account.
And by the way, with respect to the question of well, she might have testified differently after she got immunity, nine out of 11 of these accounts were given, as you'll see from the dates and the testimony, after she got immunity.
Calling witnesses will add nothing to the record now before you. All the major witnesses have testified and their testimony is right there. Now, with response to the question of how long it will take. I must tell you, we have never had a chance to call witnesses ourselves, to examine them, to cross examine them, to subpoena documentary evidence at no point in this process.
It would be malpractice for any lawyer to try even a small civil case, let alone represent the president of the United States when the issue is his removal from office without an adequate opportunity for discovery.
And I think if they are going to begin calling witnesses and going outside the record which we have -- right now I think the record is complete and we are dealing with it as best we can without having had an ability ourselves to subpoena people and cross- examine them and depose them. But I think you are looking realistically at a process of many months to have a fair discovery process.
REHNQUIST: This question is from Senator Chafee. It's to the House managers. "The White House defense team makes a lot out of Monica Lewinsky's statement that she delivered the presents to Betty Currie around 2:00 or 2:30 and about the fact that the phone call came from Betty Currie at 3:32. Isn't it reasonable to assume that Ms. Lewinsko meant that she delivered the presents to Mrs. Currie in the afternoon? If the president was unconcerned about the presents, as he said in his grand jury testimony, why didn't he simply tell Ms. Lewinsky not to worry about it?"
HUTCHINSON: Thank you, Mr. Chief Justice. Let me just broadly review the whole gift issue and the discrepancy in the testimony.
First of all, I want to go back to Mr. Ruff's presentation during the last three days. And he argued that I'd unfairly characterized Betty Currie as having a fuzzy memory whenever she was clear. And she was clear that it was her memory that Monica Lewinsky called to initiate the retrieval of the gifts. And of course, that is in conflict with the testimony of Monica Lewinsky.
Further, they argue that Monica Lewinsky's time sequence as to when she went to pick up the gifts -- when Betty Currie went to pick up the gifts -- destroys her credibility. Her time sequence does not fit. And let's just look at their testimony on this particular point.
This is what Betty Currie has testified to, and this is exhibit H(a) (ph) in your folder on my presentation, exhibit A. These are statements of Betty Currie in her deposition testimony about when she picked up the gifts.
Now, the first one is her testimony on January 27th '98. And she was asked when she picked up the gifts, and she said, sometime in the last six months.
Now in May she was asked when she picked up the gifts, and she said a couple of weeks after the December 28 meeting. In the May 6th testimony, it was after the 28th meeting, and then in her last testimony, July 22, in the fall, maybe. Now that's Betty Currie's testimony. And you contrast that to that of Monica Lewinsky, and this her recollection as to when Betty Currie came to pick out the gifts.
Now you'll see that she's testified in her proffer of February 1 later that afternoon, July 27, she said Currie called several hours after leaving the White House, about 2 o'clock later on, later in the day, came by about 2 o'clock. And then August 6th, called several hours after Lewinsky left the White House. And she goes on.
She's been very consistent. Her memory is fairly good about this.
Now the question is, well, she had -- the phone, the cell phone call, which really corroborates what Monica Lewinsky said, that it was Betty Currie who called to retrieve the gifts, and said, the president said you have something for me or something to that effect.
That came about 3:30 and the cell phone record was retrieved after Monica Lewinsky's testimony. Now, does this destroy her credibility, particularly in contrast to that of Betty Currie? I think it reflects that you're trying to remember. You remember that it was a call specifically from Betty Currie to retrieve the gifts. The time, she said it was in the afternoon. I think it corroborates her, but she has never had the opportunity to look at the cell phone record, neither has Betty Currie to refresh her recollection and trigger it and to see what that produces.
Now, that's on the gift issue. And I think that they say, well what would it add to call witnesses? How are you going to determine the truthfulness of this issue? Juries across the country do it by calling witnesses. Now, in this particular case, it should be noted that all of their testimony -- of Betty Currie, I think her last one was about July 27th for the grand jury -- all of them preceded the testimony of William Jefferson Clinton which was on August before the grand jury.
The point is because the rush, the push, the Independent Counsel didn't call anybody back to the grand jury to requestion them after the information received from William Jefferson Clinton. So there's a lot of unanswered questions perhaps that were generated by his testimony.
But looking again at the gift issue, the one-minute call was raised, that how in the world could this be expressed in one minute, the conversation that Betty Currie called to retrieve the gifts.
And if you look at Monica Lewinsky's description of that call, this is -- excuse me, I have that in front of me, you do not have that in front of you. Let me read from her grand jury transcript. She was asked about the call and her answer was, "What I was reminded of then a little bit was jumping all the way back to the July 14 incident where I was supposed to call Betty the next day, but not really get into details with her, that this was maybe along those same lines." And then it goes on down.
Question to Monica Lewinsky: "Did you feel any need to explain to her what was going to happen?" He answer is "no." In other words, this was sort of -- it was a cell phone call, it was a cryptic call, it was about retrieving gifts that were under subpoena. It was a short conversation. It doesn't take a minute to say "the president indicated you had something for me." Monica knows what she's talking about. Come over. And that's the end of the conversation. Certainly would not take one minute. And so all of the evidence is consistent with Monica's testimony.
But let's look at the big picture here on the gifts.
The evidence was concealed under the bed. It was evidence that was concealed in a civil rights case.
Secondly, it was under subpoena. Thirdly, the president knew that it was under subpoena. And fourthly, Monica Lewinsky's testimony indicates that it was the call from Betty Currie at the direction of the president, and I'm arguing there a little bit, please understand that, which initiated the retrieval of the evidence that was under subpoena.
That's the big picture on this. I believe that we've made our case on that and I believe it is strong. And I think it also justifies the hearing of the testimony to resolve the remaining conflict.
REHNQUIST: This is to the president's counsel from Senators Leahy, Schumer, and Wyden. Notwithstanding the previous response by the House manager, does not the evidence show (A) Ms. Lewinsky's testimony, that it was her idea to give the gifts to Betty Currie?; (B) the president's testimony that he never told Betty Currie to retrieve the gifts from Ms. Lewinsky?; (C) Betty Currie's testimony that it was Ms. Lewinsky, not the president, who asked her to pick up the gifts?
And indeed the fact that the president gave Ms. Lewinsky additional gifts on the very morning that he is alleged to have asked them back.
RUFF: Mr. Chief Justice, I'm not sure I managed to capture all four subparts of that question, but I'll do my best.
It's interesting that the managers now suggest that the great discovery of the 3:32 phone call, that was so much the heart and soul of Mr. Schippers presentation and ultimately of theirs, is really just a slight glitch in the time table.
Yes, it's perfectly possible I suppose that Ms. Lewinsky could have just missed it by an hour and a half, but she did say three times -- once under oath and two to the FBI which is almost the same -- that it was 2 o'clock not 3:30.
So, if you're going to ask consistency, good memory as Ms. Lewinsky is supposed to have on this matter, she was consistent, but you got to ask if it really happened at 2 o'clock as she recalled, what's the meaning of the 3:32 call?
But moving aside, putting aside that dispute, the question itself reflects the essence of our position on this.
First of all, there are only two people present at the moment at which theoretically, the managers would have it, that the president urged Betty Currie to go off and pick up these gifts: the president of the United States and Betty Currie. They've both testified flatly that such a conversation did not occur.
Do the managers really anticipate that if Ms. Currie were brought into the well of the Senate and looked straight in the eye by one of the prosecutors on this team, she would say, you got me. I had it wrong. The president really did tell me to do something that I have testified straightforwardly and honestly he didn't say. As my colleague, Mr. Kendall, indicated, that's wish and hope, and it has no basis in reality.
And of course the managers have thought up a good excuse for why it is that the president is giving Ms. Lewinsky more gifts on the very day when he's conspiring with her to hide them, that somehow it's a gesture, a message being sent that because of these gifts, she is still, she is someone who is being roped into a conspiracy of silence.
Well, aside from the fact that there is not one single, not one single iota of evidence to support that wishful thinking, is it really likely -- even given the managers perception of this matter, that by giving Ms. Lewinsky the bear that my brief but important colleague, Senator Bumpers, referred to yesterday.
And a pin of the New York skyline, and a couple of other things. And a Radio City Music Hall scarf. I may have missed a couple of others. That some great message was being sent to Ms. Lewinsky that this collection of valuable items was the message to keep the faith, stay inside the conspiracy. I don't think so. Thank you, Mr. Chief Justice.
LOTT: Mr. Chief Justice, could I inquire about the time that has been used on each side?
REHNQUIST: I'll ask the parliamentarian.
LOTT: Go ahead with that.
Go ahead and get the question up there.
REHNQUIST: The counsel for the White House has consumed 57 minutes. The counsel for the managers have consumed 54 minutes.
LOTT: I believe we have a question at the desk.
REHNQUIST: The chair doesn't believe there is a question at the desk. No, I have one now.
This question is proposed, it's directed to the House managers, it's proposed by Senators Snowe, Ashcroft, Enzi, Burns, Smith of New Hampshire and Craig.
"At the end of the Jones deposition, Judge Wright admonished the parties that 'this case is subject to a protective order regarding all discovery and all parties present, including the witness, are not to say anything whatsoever about the questions they were asked, the substance of the deposition, any details.
And this extremely important to this court" end of quote. Within hours of Judge Wrights admonition to all parties not to discuss details of the deposition, didn't the president telephone Betty Currie to ask her to make a rare Sunday visit to the Oval Office?
ROGAN: Mr. Chief Justice?
REHNQUIST: The chair wishes to make a correction in response to the inquiry from the majority leader. The time used by the House managers is 64 minutes rather than 54 minutes.
ROGAN: I trust that doesn't mean I have to sit down, Mr. Chief Justice.
REHNQUIST: It's not retroactive.
ROGAN: Thank you.
Maybe I should quit while I'm ahead. I thank the senators for their question. That is absolutely true and we know that because Betty Currie testified to that. She said it was very rare to receive a phone call from the president to ask her to come down to the White House on a Sunday.
A day after the president testified in the deposition, when he was specifically admonished by the judge that he was not to discuss the deposition, he was not to detail it with anybody, he was not to go into any of those factors, the president called Betty Currie down to the White House. And he made some specific statements to her.
He said to her, "I was never really alone with Monica, right? You were always there when Monica was there, right? Monica came on to me, and I never touched her, right? She wanted to have sex with me, and I cannot do that."
When the president was asked eight months later, why did you call Betty Currie down to the White House and pose, not questions, but statements to her? Why did you call Betty Currie down to the White House and say that to her? This is how the president responded. He said, "I was trying to figure out what the facts were. I was trying to remember." That is patently false. Because in August when the president testified, embarrassment was no longer on the table. The president was admitting that he had, as he called it, an improper relationship with Betty Currie [sic]. Why did he call her down there? He called her down there that day after the deposition in violation of the judge's order because throughout his deposition, he kept referring to Betty Currie as the fount of information.
If you read the deposition testimony, you see the president reiterating over and over "Monica came to see Betty; you'd have to ask Betty." He made innumerable references to Betty Currie. That was his invitation to the Jones lawyers to depose Betty Currie, and we know from Mr. Manager Hutchinson's presentation earlier that that's exactly what happened.
Betty Currie ended up with a subpoena from the Jones lawyers. And the president couldn't waste any time. He had to make sure with discovery closing that he got to Betty Currie right away, to make sure that the story was straight. How could he possibly say that he was posing these statements to Betty Currie to remember, when the president knew that in fact he was alone with Monica; that Betty wasn't always there with him when Monica was in the Oval Office with him; she wouldn't be able to tell him that Monica came on to him and not the other way around.
This is patently ludicrous. There is no -- there is no reasonable explanation. And Mr. Chief Justice, if I have a minute left, I'd like to yield to Mr. Manager Hutchinson.
HUTCHINSON: Thank you, Mr. Chief Justice.
Just a quick point on that because there was a question raised that the testimony of Betty Currie in that circumstance was that she -- believed it was, did not feel pressure and the president's counselors make a big issue of that as if this is a fatal defect. And it's not a fatal defect, in fact, it's really irrelevant because the issue is witness tampering, it's obstruction of justice and the question is the president's intent, not how Betty Currie felt under that circumstance. And she characterize the way she wishes
And to me it's an example like if you, as a lawmaker, are presented a bribe, $100,000 to cast your vote in a particular way, you might not be tempted in the slightest. You might say, go your own way, but it is still attempted bribery. It is still attempted obstruction justice. And so that's the critical question and this one element of obstruction of justice that each element has been met, the proof is clear, without any question of a doubt as well as the rest of them.
Thank you, Mr. Chief Justice.
REHNQUIST: The question for White House counsel from Senator Kennedy. Would you please comment on any of the legal or factual assertions made by the managers and their response to the previous question?
RUFF: Thank you, Mr. Chief Justice.
Let me start by actually responding briefly to the question that was asked of Mr. Hutchinson, which is whether in fact the president violated the gag order. I think it's important that we be very direct and candid on this so that the record is clear.
There is no question that the gag order was issued, that it applied, had been in existence for some three months, it applied to the parties and the lawyers. It's important, I think, to understand the purpose for which it was entered, which is that the months of litigation in the Jones case had seen a veritable flood of leakage out of the depositions, all of which was adverse to the president. And the judge made very clear that he concerns were revelations to the press.
I think it's fair to say that even if one might argue that the president talking to his secretary on the day after a deposition was somehow talking to a person that he should not after his deposition, I suggest that any person covered by a -- certainly a party covered by a gag order, particularly the president of the United States, is free to speak with those for whom -- from whom he needs assistance in the preparation of his defense.
And that of course, is at least in part what the president has said here.
But to the extent -- let me be very clear, to the extent that the president overstepped his bounds, in terms of this gag order, that is a matter of concern that the judge could take up or the parties could take up.
And as far as I know, probably because their sense of shame would not permit it, the parties on the other side of the Jones' case, have never suggested that this was a problem. Indeed, it was not a problem until we heard about it recently in this chamber.
More specifically, with respect to the substance of Mr. Manager Rogan's response and Manager Hutchinson's response, my colleague Ms. Mills, told you what the essential human dynamic was that was going on between the president, who had just gone through a deposition in which his worst fears were being realized. His life was beginning -- in terms of his relations with his family, was beginning to unravel.
He could see it coming. He could see the press coming at him. They were already on the Internet. There was no question in his mind that his worst fears of public disclosure were about to be realized.
Put yourselves in a comparably traumatic human situation and ask whether you wouldn't reach out to have this kind of conversation with the one person you knew who was most familiar with the fact that Monica Lewinsky had indeed been in and out of the White House, exchanged gifts and done all the other things that Betty knew about, even though she didn't know about the improper nature of their relationship.
But as yourself also whether in fact under any circumstances either on the 18th of January when the first conversation occurred, or on the 20th of January when we believe that the second conversation occurred, there's really any reason to believe that the president had somehow invited the Jones lawyers to make Ms. Currie a witness, because my colleague Ms. Mills put it most sharply and most clearly, the last thing in the world the president of the United States wanted to do was to invite anybody to depose or have testify the one woman who knew that indeed there had been gifts exchanged and visits and letters and so forth.
It simply doesn't make sense.
And lastly, let me I suppose just ask, as the question has been put to you on a couple of occasions, what is it that would come from calling witnesses in this case? Ms. Currie has testified not just once, but on multiple occasions about these very events. No new facts would come out and the only thing that you would hear, I trust, would be a repetition of her bottom line assessment: I could have said wrong when he said right; I was under no pressure whatsoever.
REHNQUIST: This is from Senators Gramm of Texas and Smith of New Hampshire to the White House counsel. If you said that our oath to do impartial justice required us to allow the president to have a handful of witnesses to defend himself, don't you believe that all hundred senators would say yes? How can we do impartial justice by turning around and denying the House that same right?
RUFF: Thank you, Mr. Chief Justice.
Senators, the answers to that question, I think, is really very straightforward and very easy. And the fog of some of the discussion that's been had on this subject over the last days and weeks ought not to get in the way of it.
The House of Representatives, at least as they are described by the managers they sent to you -- I don't know how to put this gently -- violated their constitutional responsibility in the handling of this matter. They characterized themselves as nothing more than a grand jury, nothing more than a screening device between the allegations transported to them by the independent counsel and the ultimate vote a month and three days ago.
They felt, as they reiterated constantly during that process, that they knew everything they needed to know not to make the judgment that it was, you know, worth sending on to the Senate for them to think about, but they knew everything they needed to know, as you've heard them say so eloquently and so forcefully here, to remove the president of the United States from office. And now they're saying to you, well, maybe not.
There really isn't enough here to make that important critical judgment. And so having abandoned -- not to put it too sharply -- what I view and I think most of would view, as there obligation to do the right Constitutional thing a month ago. They turned to us and say, well, protect the managers rights to just sort of add a little bit and see if we can make it and then we'll turn to you and see if you want to call witnesses in response.
Senators, I really think they should have done it right the first time and they've told you, not back then, but they've told you now, that they have done it right, because otherwise they wouldn't as a matter of their responsibility be able to stand in the well of this Senate and urge you to remove the president of the United States.
How could they make that recommendation if they had any uncertainty, if they didn't believe that what's in those five volumes was sufficient unto today? They couldn't, they couldn't.
Our rights are these for the president of the United States. He is entitled to ask you whether when the House of Representatives voted to impeach him, they had enough evidence to make one of the most serious constitutional judgments, that is entrusted to them.
And it can't be that because they didn't do it right then, that you and we are now asked to extend this process. Just so that maybe if they would go to the right person and ask the right question, or find the right document, something will emerge that translates those five volumes into something that really is a constitutional basis for removing the president.
REHNQUIST: This is from Senator Feingold to the House managers. In light of the allegations in the articles of impeachment that the president is guilty of providing perjurious statements to a grand jury, and has obstructed the administration of justice, is the appropriate burden of proof for these particular articles beyond a reasonable doubt as it would be in an ordinary criminal proceeding?
Should a senator vote to convict the president based on his allegedly committing these federal statutory crimes if each of the elements of the crimes has not been proven beyond a reasonable doubt?
BUYER: Thank you, Mr. Chief Justice. And I would say to Mr. Ruff, I violated no oath nor the Constitution, and I think the House managers in fact followed the Constitution when we served the articles of impeachment. And I'd also note for a historical note as well, Mr. Ruff, you know that in the impeachment trial of Andrew Johnson, the House didn't even hold a single hearing.
So I just want to be very up front and fair here.
With regard to the question that was asked by the gentlelady, the Constitution does not discuss the standard of proof for impeachment trials. It simply states that the Senate shall have the power to try all impeachments. Because the Constitution is silent on the matter, it is appropriate to look past the practice of the Senate.
Historically, the Senate has never set a standard of proof for impeachment trials. In the final analysis to the question, one which historically has been answered by individual senators guided by your individual conscience.
Now, you'll note that earlier one of the White House counsels stood up and they like to talk to you about the criminal statutes and cite that it requires the proof beyond a reasonable doubt. That is not so.
This argument has been rejected by the Senate historically. For instance in the impeachment trial of Judge Harry Claiborne, at that time, the counsel for Judge Claiborne moved to designate beyond a reasonable doubt as the standard of proof for conviction.
The Senate overwhelmingly rejected the motion by a vote of 17 to 75. You rejected that as a standard of proof. In the floor debate on the motion, the House manager emphasized that the Senate has historically allowed each member to exercise his personal judgment in these cases.
And during the impeachment of Judge Hastings, Senator Rudman (ph) in response to question about the historical practice regarding the standard of proof, that there has been no specific standard, quote "You are not going to find it."
"It is what is in the mind of every senator. And I think it is what everybody decides for themselves."
The criminal standard of proof, again, is inappropriate for impeachment trials. The result of conviction in an impeachment trial is removal from office, not punishment. As the House argued in the trial of Judge Claiborne, the reasonable doubt standard was designed to protect criminal defendants who risk forfeitures of life, liberty and property. This standard is inappropriate here because the Constitution limits the consequence of a Senate impeachment trial to removal from office and disqualification from holding office in the future, explicitly preserving in the Constitution the option for a subsequent trial in the courts.
In addition, the House argued in the Claiborne trial, the criminal standard is inappropriate because impeachment is by its nature a proceeding where the public interest weighs more heavily than the interests of the individual. Again, the criminal standard of proof -- i.e. beyond a reasonable doubt -- is inappropriate in an impeachment trial, and, senators, you are to be guided by your own conscience in your decision.
REHNQUIST: The president's counsel are asked by Senators Thompson, Snowe, Enzi, Frist, Craig, DeWine and Hatch.
Four days after the president's Paula Jones testimony, wherein he testified under oath about Ms. Lewinsky, why would Dick Morris conduct a poll on whether the American people would forgive the president for committing perjury and obstruction of justice?
RUFF: I couldn't find any volunteers.
You know, I think the honest answer has two pieces to it. I don't have a clue. And it ultimately, although I know it rings all sorts of bells and the use of that name conjures up all sorts of images. And that's why I'm sure it finds its way into this process from the managers' side.
But if you look at the record, other than the value that may come to the managers of making reference to that conversation -- and I have no idea whether the conversation ever occurred or not. It seems to me of absolutely no relevance whatsoever.
Because as far as I am able to represent to you and if the conversation occurred, there is nothing in this record that suggests that it had any impact on the conduct of the president or any other person. We know that he did wrong. We know that he misled the American people when he said that he had not had relations with Ms. Lewinsky.
I'm not sure what a conversation with Mr. Morris -- if it occurred or a poll, if it was asked for, or the motivation behind that poll, means once you come to grips with the fact that the president of the United States was deceiving his family, his children, his wife, his colleagues and the American people in that period in January.
Beyond that, the puzzlement about relevance other than to surmise that there must be some dark linkage between the poll and some legal issue before you -- and I haven't seen it.
I'm really otherwise unable to answer your question.
REHNQUIST: Senator Lieberman asks the House managers, the House managers argue that the president should be removed from office because of the inconsistency between his actions and the president's duty to faithfully execute the laws. Given that any criminal act would arguably be at odds with the president's duty to execute the laws, is it your position that the president may be impeached and removed for committing any criminal act, regardless of the type of crime it is? If the president were convicted of driving while intoxicated, would that be grounds for removal? What if he were convicted of assault?
GRAHAM: Thank you, Mr. Chief Justice. Excellent question. The answer is no. I would not want my president removed for any criminal wrongdoing. I would want my president removed only when there was a clear case that points to this -- the right decision for the future of the country.
Just remember this. Our past is America's future, in terms of law. I would not want my president removed for trivial offenses and that is the heart of the matter here. I think I know why he took a poll. I think I know very well what he was up to: that his political and legal interest are so paramount in his mind, the law be dammed and anybody that got in his way, be dammed. Those are strong statements, but I think they're borne out by the facts in this case.
And that's what I would look for. I would look for a violation of the law that's the dark side of politics. I would look for something like what Richard Nixon did. Richard Nixon lost faith with the American electoral process. He believed his enemies justified being cheated. That when his people broke into the other sides office, when confronted with that wrong doing, he legitimized it. He didn't trust the American people to get it right and he went out in shame. My belief is that this president did not trust the American legal system to vindicate his interest without cheating.
My belief is that when he went back to his secretary it is not reasonable that he was trying to refresh his memory and get his thoughts together. My belief is that he tried to set up a scenario that was going to make a young lady pay a price if she ever decided to cooperate with the other side.
I believe he did not need to refresh his memory whether or not Monica Lewinsky wanted to have sex with him and he couldn't. I don't believe he was refreshing his memory when he asked his secretary "I never touched her, did I?"
I believe that you should only remove a president who has in a calculated fashion puts the legal and political interest of himself over the good of the nation in a selfish way, that you only should remove a president who after being begged by everybody in the country "don't go into a grand jury and lie," and he in fact lied.
Nothing trivial should remove my president. We need to try this case, ladies and gentlemen, because you need to know who your president is.
LOTT: Mr. Chief Justice?
REHNQUIST: Chair recognizes the majority leader.
LOTT: I would like to note that in the response to the previous question, question probably number 28, that it was not filed by the managers, it was filed by a group of senators. And with that I would ask unanimous consent that we take another brief recess of 15 minutes.
REHNQUIST: Without objection, it's so ordered.
REHNQUIST: The Senate will be in order. The chair recognizes the majority leader.
LOTT: Thank you, Mr. Chief Justice.
Mr. Chief Justice, I had indicated that we would probably go five hours today, which would take us to approximately 6:00, but I think we will certainly go for at least another hour or so, perhaps not quite all the way until 6:00. But we'll talk to each other and look for a signal from the chief justice about exactly when we would end the day's proceedings.
At that -- at this point, Mr. Chief Justice, I believe that we are ready for the next question. I believe the previous question came from Senator Lieberman. And therefore I send the next question to the desk.
REHNQUIST: This question is from Senators Thompson and Snowe to the House managers. "Do the managers wish to respond to the answer given by the president's counsel with regard to the poll taken by Dick Morris?"
BRYANT: Thank you, Mr. Chief Justice.
Just before we recessed, there was a question directed to the president's defense attorney's regarding the Dick Morris poll. And one of the responses to it was that it was basically irrelevant.
I think it's one of the more important things that has occurred in this case because -- and I think it's very important.
BRYANT: Because we get a look inside that window that's blocked, for the most part, throughout these proceedings. We really get an eye into the minds that are working here. Not only does it say volumes about a person who has to take a poll to decide whether or not to tell the truth, it also provides a great deal of information toward the actual state of mind -- the actual willfulness, the actual intent of the actor -- in this case who has had the poll taken.
Let me just read briefly from the referral regarding this incident and it talks about how Mr. Morris tells the president that this country has a great capacity for forgiveness and we should consider tapping into it and the president responds, well what about that legal thing, you know, the legal thing, you know Starr and the perjury and all -- and they go on to have a discussion and decide to take a poll that night. Now this is January 21st and in all fairness to the president, it's not clear, from the record that I have that he had a conversation with Sidney Blumenthal and John Podesta that day -- before this effort, the poll was taken and the results reported that same day, late that evening.
BRYANT: Or whether the conversation with Mr. Podesta and Mr. Blumenthal occurred afterwards. And those were the ones in essence where he questioned what went on, and also with Mr. Blumenthal, fairly well attempted to discredit Ms. Lewinsky.
And you'll see how that may or may not tie in, again depending on the chronology, but certainly all those events happened the same day.
Mr. Morris takes the poll and reports later that day, later that evening, same evening the 21st, the results of that. And it basically says the voters were willing to forgive the president for adultery, but not for the perjury or the obstruction of justice. And then according to Mr. Morris, the president answers "well, we'll just have to win then."
And later, the next day, the president has a follow up conversation with Mr. Morris in the evening, and says that he is considering holding a press conference to blast Monica Lewinsky out of the water. But Mr. Morris urges caution. He says "be careful." According to Mr. Morris, the president warned him, the president warned him -- he warned the president not to be too hard on Ms. Lewinsky because there's some slight chance that she may not be cooperating with Starr, and "we don't want to alienate her by anything we're going to put out."
That -- that is chilling.
It truly is chilling that our chief law enforcement officer, the person who sends our soldiers off as commander in chief to possibly die, the person who appoints federal judges, the Supreme Court justice, nominates Supreme Court justices, appoints U.S. attorneys around the country who try 50,000 cases a year has that mentality.
And it goes to the state of mind here. And the willfulness and the intentions from that point forward certainly are reflected in the perjury and the efforts to continue the obstruction. The pattern, the overall pattern, not just one little incident.
And I urge you, senators, as you consider this, to consider it carefully, and as I said in my opening remarks, don't isolate little facts here and there and take the spins, but in every, every alleged act, ask yourself the two questions, whether it's the hiding of the gifts, the filing of the false affidavit, letting Bob Bennett use that false affidavit while sitting still, talking to Sidney Blumenthal and John Podesta about what did not really happen, the job search -- ask on every one of those, what was the result? What was the result of those actions? And I think in every case you'll see that something occurs to block the Paula Jones case, the discovery of evidence, the receipt of truthful testimony.
And ask yourself the second question: who benefits from that? And I'll guarantee you every time, in every one of those instances, it's the president that benefits, that derives the effect of that. And is either the most luckiest man in the world because of this in having people willing to commit crimes for him or he is somewhere in the background orchestrating this.
REHNQUIST: This is from Senators Leahy, Harkin, Dorgan and Reid of Nevada to the president's counsel. "In its opening remarks to the Senate, Manager McCollum stated, 'I don't know what the witnesses will say, but I assume if they are consistent they'll say the same thing that's in here,' referring to the 60,000-page record currently before the Senate. 'I see no reason to call witnesses to provide redundant testimony.' Could you comment on Mr. McCollum's statement and clarify also the timetable which might have to be considered for discovery if witnesses are called."
KENDALL: Mr. Chief Justice, I think, as I said in an earlier question, that the answers the witnesses would provide are already contained in the five volumes of testimony.
As I'm sure you're aware, when I say five volumes, it's not really five volumes, because on many of the pages the grand jury transcripts are shrunk -- it's called mini-script -- so you get six pages of testimony per page. Your eyesight may fail you before you get through. The witness testimony is there, I don't think calling the witnesses again will add anything to that.
In terms of a discovery schedule, it's hard to say, because we have had no opportunity to shape the record. We don't know what we'll need. We would need documents, we would need testimony, one deposition could lead to another -- I think we are talking a matter of a few months to finally get through it.
But I think the real question is: What questions are there that have not been asked? I think if you ask that question -- what questions are that haven't been asked -- you'll find there are no questions. In fact, the questions have been asked a number of times.
Now, Mr. Manager Hutchinson told you that, well, the Independent Counsel didn't have a chance to ask questions after the president's testimony. Indeed, he did. You'll see that Ms. Lewinsky's was examined after president testified, both in the grand jury and in FBI interviews.
I don't think that witness interviews or further evidentiary proceedings will add in any measurable way to the record before you.
REHNQUIST: This question is directed to the House managers by Senators Hatch, Thompson, DeWine and Warner. The unanimous consent agreement pending before the Senate permits the filing of a motion to dismiss next week. What legal standards should the Senate apply? In applying that standard to this case, what specific acts of presidential misconduct would a Senator deem unworthy of impeachment by voting for a motion to dismiss?
HYDE: Mr. Chief Justice, members of the Senate, the president wants all of the protections of a criminal trial -- beyond a reasonable doubt, standard of proof, strict pleadings -- but yet deny us the right call any witnesses.
You know, in the House we did not call witnesses and there's a reason -- there are several reasons for that. First of all, we were operating under time constraints which were self-imposed, but I promised my colleagues to finish it before the end of the year. I didn't want it to drag out. We had an election intervene. We had Christmas. But we did, because we had 60,000 pages of sworn testimony, transcripts, depositions, grand jury testimony.
And we had a lower threshold. The threshold in the House was for impeachment, which is to seek a trial in the Senate. We could not try the case in the House. The Constitution gives the Senate the exclusive right to try the case. All we could do was present evidence sufficient to convince our colleagues that there ought to be a trial over here in the Senate.
And we did that. But now that we're over here, and by the way we were roundly criticized for not producing any witnesses, and I might add Mr. Kendall has said repeatedly they did not have a fair discovery process. They couldn't -- they didn't have any witnesses and weren't permitted to cross-examine.
I want to tell you repeatedly -- repeatedly -- I invited the president's lawyers, the staff of the Democrats on the House Judiciary Committee, any witnesses you want. Call them. Give me their names and we'll bring them in. And you can cross-examine them to your heart's content. No, they never did. Finally they brought in some professors, and Mr. Ruff testified, Mr. Craig testified. But they didn't want any fact witnesses. That's the last thing they wanted. They had full opportunity to call them, and I really, really bristle when they say you were unfair.
We wanted to be fair. We tried to be fair because we understand, you need a two-thirds vote to remove the president. We needed Democratic support. So far we have none. That's OK. Let the process play itself out. But we were fair.
And when Mr. Kendall says they had no opportunity, he means they didn't avail themselves of an abundant opportunity to call witnesses.
Now, a motion in lieu of a trial should provide that all inferences, all fact questions be resolved in favor of the respondent, the House managers. I don't think that's going to happen.
I think by dismissing the articles of impeachment before you have a complete trial, you are sending a terrible message to the people of the country. You're saying, I guess, perjury is OK if it's about sex, obstruction is OK even though it is an effort to deny a citizen her right to a fair trial. You're going to say that even when judges have been impeached for perjury.
And by the way, the differing standards between judges and the president, this country can survive with a few bad judges, a few corrupt judges, we can make it. But a corrupt president? Survival is a little tougher there.
So there is a difference, and the standard ought to be better, more sensitive for the president, because the president is such an important person.
Look, the consequences of cavalier treatment of auricles of impeachment, your articles of impeachment, you throw out the window the fact that the president's lies and stonewalling have cost millions of dollars that could have been obviated. The damage to sexual harassment laws.
You think they're not going to be damaged? They are seriously -- making it more difficult to prosecute people in the military or elsewhere for perjury who lie under oath. Those are serious consequences.
I know, oh do I know, what an annoyance we are in the bosom of this great body. But we're a constitutional annoyance and I remind you of that fact.
REHNQUIST: This question is from Senator Durbin to counsel for the president. Can you comment on Manager Hyde's contention that the president was free to call witnesses before the House -- excuse me -- but that the House did not have the time to do so, or to call any witnesses?
RUFF: Mr. Chief Justice, I think it's important to understand the reality of what was going on in the House. Most of you know something of it by simply virtue of press coverage.
RUFF: But let me tell you what it was like from the perspective of the president.
On the very -- from the very first moment in which we began to speak with representatives of the Judiciary Committee, whether senior staff or the chairman, who was always gracious to us, the one thing we said was, please tell us what we're charged with. Please. And we went from Mr. Schippers' extensive opening discussion of 15 possible violations of law to an ever-shifting body.
And it wasn't until I was within literally a few minutes of completing my testimony on December 9th that we were ever honored with anything that looked like a description of the violations that the president was charged with, and those came in the form of draft articles of impeachment.
Indeed, if you'll all remember back, if any of you were watching that day, I was actually given a draft copy of those articles just as I was completing my testimony, and then they were snatched back, because it was premature for the president's counsel at 4:30 in the afternoon on December 9th to know what the president was charged with.
Now, one thing you generally like to know as a litigator, in any forum before you start thinking about producing exculpatory evidence as we were asked to do or thinking about calling witnesses, is to sort of know what you have to defend against. In any forum, whether it's criminal or civil or legislative, the accused generally has that right.
Beyond that, as you all know and indeed as Mr. Manager Hyde has indicated, we were operating on a very fast track. We asked for example, when the issue arose as to whether or not the staff of the Committee would take depositions, whether we would be entitled to be present, because we knew that none of them were on the calendar to be called in any open hearing and we were denied that opportunity, theoretically because under the policies of the Committee it was not appropriate for the president's counsel to be present at the only opportunity that certain witnesses would ever have to testify under oath.
It seems odd to me, when you come right down to it, that we should be accused of failing in our duty with the burden on the House Judiciary Committee to make its case and our right to respond meaningfully, that the House having determined never to call a witness who knew anything firsthand, we should somehow be charged with having fit in to this discovery process.
Discovery is very different, as all of you understand, from calling a witness, whoever it may be, in public, before the full Judiciary Committee, and having the opportunity to examine them. We were excluded from whatever true discovery process might have been involved and left only with this notion that in the absence of any specific charges we were to call witnesses to defend ourselves.
I suggest to you that in any setting that we are used to, whether those of you who are litigators or those of you who are simple observers of the justice system, that's a very odd process indeed.
REHNQUIST: This question is from Senator Nickles to the House managers.
Which of the president's statements not already discussed today do you believe to be of particular importance to the perjury charge?
ROGAN: Mr. Chief Justice, I thank the senators for the question. I will keep one eye on the clock and stay within the five minute rule, so obviously I won't be able to give, again, a comprehensive list of that which we submit to the Senate as perjurious. But within the next few minutes, let me try to get through at least one or two of them.
One example that I would invite the Senate's attention to are the answers the president gave in his grand jury about his attorney using Monica Lewinsky's false affidavit. Now, bear in mind again the predicate facts for this.
Judge Susan Webber Wright in the deposition had ordered the president to answer questions relating to whether he ever had a sexual relationship with subordinate female employees in the workplace as governor or as president, because that is fair game in any sexual harassment suit. Victims of harassment in the workplace are entitled to discover that information.
The president was able to get Monica Lewinsky to file a false affidavit in the Jones deposition.
And when that affidavit was in hand and filed, as soon as the attorney for Paula Jones asked the first question about Monica Lewinsky, the president's attorney, Mr. Bennett, put forth that affidavit and objected to the attorneys even asking the question. He said there is no good faith belief that this question should be asked because of the affidavit.
And the president did absolutely nothing to correct the record. When this came up in the grand jury, the president was asked about the affidavit and about the statement that Mr. Bennett made to Judge Wright that there was no sex of any kind in any manner, shape or form.
And the attorney, Mr. Bittman, at the grand jury, referred to that and said to the president, "That statement is a completely false statement," and asked the president to explain.
And this was the president's answer. He said, "It depends on what the meaning of the word 'is' is. If the -- if he -- if 'is' means 'is, and never has been,' that is not -- that is one thing. If it means 'there is none,' that was a completely true statement."
However, then the president went on to say, "I was not paying a great deal of attention to this exchange. I was focusing on my own testimony."
Now rather than simply give a truthful and complete answer to the grand jury in their criminal investigation, the president gave a bifurcated answer that essentially invited the grand jury to accept one of two explanations:
Explanation number one. I wasn't paying attention to my attorney when he said that. I was busy thinking of other things.
Or, if you don't like that explanation, I was paying such specific attention to what my attorney was saying that I focused on the tense of what the word "is" meant. As if to suggest when Mr. Bennett said there is no sex of any kind, he meant there was no sex that day, because he was there being deposed before Judge Wright.
Under either scenario, the president absolutely failed in his obligation to provide the grand jury conducting a criminal investigation into possible obstruction in the Paula Jones case, he failed in his obligation to tell the truth, the whole truth and nothing but the truth.
And you've seen the evidence, just from the initial presentations.
Number one. When the president said he wasn't paying attention, that was negated by watching the videotape. The president was paying very close attention. And why was he paying such close attention? Because the fate of his presidency hung on the answer to that question. This is the most important question in the president's political life. Is he going to have to disclose information that he thought would help destroy his presidency?
You don't even have to accept the representation from the videotape to know the president testified falsely because Mr. Bennett did us the favor of not asking us simply to rely on watching the president pay attention to the testimony. Mr. Bennett then read the president the portion of Ms. Lewinsky's affidavit in which she denied having a sexual relationship with the president, and he asked the president if Ms. Lewinsky's statement was true and accurate and here's what the president said, "That is absolutely true."
Now, on August 6th, Monica Lewinsky incidentally testified before the grand jury and she didn't play these games with the grand jury -- it all depends what "is" means or I wasn't paying attention -- she was asked a straight forward question just as the president was.
The question to Monica Lewinsky was, paragraph 8 of the affidavit says, I have never had a sexual relationship with the president, is that true?
Answer by Monica Lewinsky: No.
Mr. Chief Justice, I see my time has expired. I would be happy to invite additional questions relating to additional specific examples.
REHNQUIST: This is to the president's counsel from Senators Schumer and Kerrey of Nebraska. Isn't it true that the alleged perjurious statements have changed in number and substance since the OIC first delivered its referral to the House and that the referral, Mr. Schippers' presentation before the House, the majority report, the trial brief and the managers' statements before this body contain different allegations of what constitutes the alleged perjurious statements?
CRAIG: Mr. Chief Justice, the answer to that question is yes, and they were changing right up until the time we met the very first day of this trial and Mr. Manager Rogan made his presentation.
What he said when he described perjurious statements alleged against the president was different from what was appearing in the trial brief before.
And that was the end of a long period of time where every time we heard what the allegations were, at least when it came to the issue of perjury, they changed. There were allegations added, there were allegations subtracted. Two of the allegations that Mr. Schippers presented when he made his statement to the Judiciary Committee were withdrawn.
So it was a process that we never had a chance to sit down as you should in a very serious and fair and evenhanded exercise, focus on what precisely it was that the president said in the grand jury that was perjurious.
Now, as to the specifics of the allegation that we've been discussing just now, when Mr. Rogan -- when I first opened this discussion, I said it's very important to look at the record. Do not allow anyone to misrepresent the record because you're setting up the president's statement and saying that's perjurious when the president's statement may well be something very different in the record.
Now, Mr. Rogan, when he first made his argument on this issue, misrepresented the record as to what the president said on this case. I tried to correct him about what the president actually said.
He never claimed that at the moment these questions were being asked back and forth that he thought about the current tense. And even as I was speaking, Mr. Rogan was out talking to the television cameras saying precisely the same thing.
Now we have the same misrepresentation the third time. I'll say it one more time. He answered the question. He wasn't focusing on it. He answered that four times the same way. It was not a bifurcated answer. It was one answer. He was not paying attention at that particular moment. It moved very quickly. The moment was passed and they were into the judge talking and debating with the lawyers. That was his answer. There was no other answer.
Then at the grand jury some seven months later, he was read that statement by the special prosecutor, and his answer was, the question was: "And this statement was false. Isn't that true?"
And the answer that the president gave was, well in fact it depends on the meaning of the word "is." What is the meaning of "is"? And he didn't claim that that was what he was thinking at the time in the Jones deposition. He said very clearly: "I never even focused on that issue until I read it in this transcript in preparation for this testimony." It's on page 512, Mr. Rogan. "I never even focused on that until I read it in this transcript in preparation for this testimony."
There was not a bifurcated answer. He answered directly he wasn't focusing on it.
Now, that is a problem we have had throughout this case when it comes to the perjury allegations. It was a problem we had with the earlier one. If you don't have the specific statement quoted it's impossible to defend it. It's unfair.
Thank you very much.
REHNQUIST: This question is from Senator Lott to the House managers: Do you wish to respond to the answer just given by the president's counsel?
ROGAN: Mr. Chief Justice, I'm not sure if it's I wish to respond, or I feel the need to respond, but in either event I will take advantage of the opportunity, and I thank the senator for posing the question.
Try as they might, the facts are clear. The president, in his August deposition attempted to justify away -- attempted to explain away -- his perjurious conduct on January the 17th when he was deposed. And I'm not going to stand and quibble with Mr. Craig over this beyond what we've already noted.
What I prefer to respond to is the bigger question that the White House attorneys have raised on a number of occasions.
The idea that the president has been treated unfairly because he hasn't had sufficient notice as to what the allegations are against him. Contemplate that for just one moment.
Because for that to be true, the president of the United States would have to be not a human, he would have to be an ostrich, with his neck so far down in the sand that every that that which every school child now in America knows, that which every person in America with a television or a radio or Internet access knows, and is obvious to everybody, the claim is not obvious to the president.
When the president of the United States testified the deposition and before the grand jury, that brought us into late August of 1998. About a month after that, the Office of Independent Counsel filed a report. The binder was about 445 pages; the written document is a little more than 200 pages. But within the four corners of that report are all of the allegations, are all of the facts and all of the circumstances that were forwarded to House of Representatives for review.
The House Judiciary Committee specifically, at the request of the White House and at the request of our Democrat colleagues, did not go beyond the four corners of Judge Starr's report. Not only did the president have the benefit of Judge Starr's report, he also had the benefit of the written report from the House Judiciary Committee -- same facts, same circumstances, nothing changed.
And by the time we came here to the Senate to try this case, the president had the benefit of the resolution passed by this body that said in the initial presentations, we will not go beyond the record already established -- the record that was established in the Office of Independent Counsel report, in the Committee's report and in our hearings.
And for a party to be so aggrieved as the White House counsel suggests, to have been given no notice, it's amazing to me how within minutes of Judge Starr's report being filed, they had already filed a response and I believe there were two supplemental responses within 48 or 72 hours.
They have always beaten us to the punch on the response. They have an army of lawyers here able to stand up on a moment's notice and respond.
And I just don't understand how they can make the case fairly that this is all now a product of surprise, that they have not been given a proper opportunity to review the facts. They have seen these facts since Judge Starr submitted his report to Congress some five months ago. The facts haven't changed, the circumstances haven't changed, the quotations haven't changed, the transcripts haven't changed, nothing has changed except their attempt to wiggle out from under the truth.
REHNQUIST: This question is from Senators Box, Schumer and Kohl to the president's counsel. "To the best of your knowledge, has the United States Department of Justice ever brought a perjury prosecution where the alleged perjury was inferred from the direction in which the defendant was looking?"
RUFF: Mr. Chief Justice, the answer is not to my knowledge. I won't go farther than that because somebody in the army of people on the other side might dredge one up, but I doubt it very much.
I think, if I may impose on the kindness of the authors of that last question, I'll take just a moment to comment briefly on Mr. Manager Rogan's rejoinder to our response to whatever. I truly -- particularly because Mr. Manager Rogan has been a judge and prosecutor and others have as well, it does seem mildly odd to me that the answer to the question "your charges aren't known or are vague" is: Look at that pie, you'll find him right in there. Or: Golly, you guys did a good job of responding to what you could, so you must be perfectly well prepared to defend against whatever charges we bring.
I don't think there's a judge anywhere in the United States, highest court or lowest court, who would accept either explanation from a prosecutor.
REHNQUIST: This question is directed to the House managers by Senators Hatch and Burns. The president's lawyers cite in their brief Professor Michael Gerhardt for the proposition that for an act to be impeachable, there must be a nexus between the misconduct of an impeachable official and the latter's official duties.
But isn't it true that Professor Gerhardt also stated that impeachment may lie for conduct unrelated to official duties if such conduct is outrageous and harms the reputation of the office? And there's citation to the testimony of Mr. Gerhardt. Would the House managers care to respond to this?
CANADY: Mr. Chief Justice and members of the Senate, I do appreciate the opportunity to respond to this point. I think this is a very important point. I have a great deal of respect for Professor Gerhardt, and he has said a number of different things on this subject. But the point in the question is directly on point.
I would also like to quote something else that Professor Gerhardt has said that I made reference to, without specifically naming him, as its source in the statement which I gave to the Senate on Saturday.
He said in a law review article which he wrote a few years back, "There are certain statutory crimes that if committed by public officials reflect such lapses of judgment, such disregard for the welfare of the state, and such lack of respect for the law and the office held that the occupants may be impeached and removed for lacking the minimal level of integrity and judgment sufficient to discharge the responsibilities of office."
Now, I believe that what Professor Gerhardt (ph) makes reference to there is exactly what we have before the Senate in this case. What we have before the Senate in this case is a case where the president of the United States has engaged in a course of conduct involving violations of the criminal law. By doing so, he has evidenced a lack of respect for the law that demonstrates a lack of the minimal level of integrity that we are entitled to expect of the chief executive of the United States, of the person who under our system is given the preeminent responsibility to take care that the laws be faithfully executed.
REHNQUIST: This question is from Senator Dodd to the counsel for the president. Given the election of a president of the United States is the most important and solemn political act in which we as citizens engage, how much weight should the Senate give to the fact that conviction and removal by the Senate of the president would undo that decision?
RUFF: That question, of course, goes right to the heart of what the framers were thinking and the standards that I suggest every sensible analyst of this problem has arrived at, whether they were -- might be called supporters or opponents of the president. There is one critical issue that everyone has to address, which is that removal means undoing the will of the people.
Mr. Manager Graham acknowledged that that's what we were all about here, whether we should undo an election.
But, if you go back to the very basic debates of the framers in 1787, you will recall both Mr. Manager Canaday and I talked about the moment in time in which it was suggested by Mr. Mason that, perhaps, the scope of the standard of impeachment could be broadened. And the response made then, and clearly, the principle underlying everything that those framers spoke about in 1787, was we cure almost all our problems with an elected official through the electoral process.
And even if you look at what President Ford had to say 29 years ago on this subject, which I also cited to you, as he spoke about the difference between judges and presidents. He said, "For the Senate to remove -- House to impeach and the Senate to remove a president, or the vice president, as opposed to a judge, in mid-term would require proof of the most serious offenses.
And we know that those most serious offenses, the only ones that the framers contemplated as a basis for overturning the will of the people, were those that, as the minority said in 1974 in its report on this subject, that we're a danger to the state.
A danger to the state -- that's all that can justify overturning the voice of the people.
REHNQUIST: This question is from Senator Lott. It's addressed to the House managers. Didn't the framers of the Constitution understand in 1787 that the conviction and removal from office of a president would under the system devised reverse the result of a national election by elevating not a president's vice presidential running mate, as we would do today, but the person who would receive the second highest number of electoral votes?
HYDE: Mr. Chief justice, the statement has been made with some fervor that if the president were removed, upon a finding of conviction of the articles or an article of impeachment, that it would reverse a national election. I just respectfully say that's not true.
The election is provided for in the Constitution, and so is impeachment. They are processes of equal constitutional validity, and should the Senate remove the president, Bob Dole will not become president, Jack Kemp will not become vice president, but Mr. Gore will move up to be president, and the same party, the same programs, I daresay will continue.
It will not reverse an election. It will fulfill a constitutional process that our founding fathers were wise enough to provide for.
REHNQUIST: Senator Edwards asks the House managers: "Are there any statements contained in the exhibits used during the managers presentations or omissions from those exhibits that you believe in the interest of fairness or justice should be corrected at this time? If so, please do so now."
(UNKNOWN): Mr. Chief Justice, with regard to our own exhibits?
REHNQUIST: Perhaps I should ask Senator Edwards.
EDWARDS: Yes, Mr. Chief Justice, with regard to their exhibits.
(UNKNOWN): Mr. Chief Justice, I'd be happy to take advantage of the five minutes, but I've talked to the other managers and we're not aware of any corrections that need to be made on any of our exhibits that we've offered to the Senate.
KERRY: Mr. Chief Justice?
REHNQUIST: Yes, the chair recognizes the senator from Massachusetts?
KERRY: I would simply ask whether or not that answer was in fact fully responsive to the question. I believe the question also asked whether or not there were any omissions.
REHNQUIST: The parliamentarian advises me this is a non- debatable period and that the inquiry is out of order. And I so rule.
This is from Senator Roberts. It's directed to the House managers. Given the fact that the White House characterizes the assistance that Monica Lewinsky received was routine, does the record reflect that any other White House interns, other than Monica Lewinsky, received the same level of job assistance from Vernon Jordan, John Podesta, Betty Currie, and then-Ambassador Richardson?
MCCOLLUM: Mr. Chief Justice, if I might. As far as we know as House managers and the record, the only comments about assisting anybody else other than Monica Lewinsky of any nature were made in testimony by Vernon Jordan. He did assist other people, but I don't believe there is anything in -- to the best of our knowledge or recollection, of course we've got a lot of paperwork here -- that he referred to assisting another intern or anyone in a like position.
And certainly there was no indication that the kind of intensity of that assistance occurred, with the kind of manner in which the proceedings did with developing her job opportunities -- that is, somebody in this direct an involvement with the president, or certainly nobody with a close relationship and interest on the part of the president.
There certainly was nothing in the record to show that. And that is, of course, central to this entire case as far as the job search part of this obstruction of justice issue is concerned.
ROBERTS: Mr. Chief Justice?
REHNQUIST: The chair recognizes the Senator from Kansas.
ROBERTS: I had directed that question, sir, to the White House counsel. It was my intent to direct it to the White House counsel. I do not know what the proper procedure would be at this time.
(UNKNOWN): Is there objection to the White House counsel asking a question at this time.
REHNQUIST: Answering a question.
Is there any objection to the White House counsel answering the question at this time? If -- without objection, the White House counsel may answer. I mean the -- yes, White House counsel.
RUFF: Thank you, Mr. Chief Justice.
This may be a moment worth noting in these proceedings, because in essence, I think, we are in agreement with Mr. Manager McCollum.
I (OFF-MIKE) I would perhaps only do this, and that is to note with some greater emphasis Mr. Jordan's testimony, which we'll be glad to highlight if we have another opportunity here, that indeed he has regularly and frequently assisted young people and not so young people in finding jobs.
Again, I couldn't tell you whether any of them had been an intern at any time. I would only note that of course Ms. Lewinsky was not an intern at the time Mr. Jordan was helping her, but rather was an employee of the Pentagon.
But beyond that and with perhaps somewhat greater emphasis on Mr. Jordan's efforts on behalf of young people in this city, I'm in essentially in agreement with the Manager McCollum.
REHNQUIST: This a question from Senators Dodd and Levin to the House managers.
On page 11 of House Committee report, accepting House resolution 611 -- accompanying House resolution 611 -- the report states that Judge Susan Webber Wright issued her order on the morning of December 11th. Will the managers now acknowledge that the report was factually incorrect -- yes, or no?
HUTCHINSON: Thank you, Mr. Chief Justice. If I look back at the facts of this, of course, I've explained earlier today that the action on the 11th was initiated, or triggered by, the witness list that came in on December 5th that the president knew about, at the latest, on December 6th. On the 11th Judge Wright entered an order in that case, which allowed the Jones lawyers the opportunity to ask questions about prior relationships with other federal employees or state employees.
REHNQUIST: The chair recognizes the senator from Connecticut.
DODD: I was one of the authors of the question. A yes or no answer was requested, and I object to the answer.
REHNQUIST: The chair has not tried to police the responsiveness of the answers to the questions. So, I'm going to overrule that objection.
HUTCHINSON: I'm not trying evasive at all to the Senator, but I did want to lay the groundwork for this, and, also to get my thoughts so that I would be as accurate as possible.
The order that the Judge Wright entered was on December 11th. I do not know the precise time, I believe it was in the afternoon that it was entered and it was followed by the telephone call with the participants. So, I believe that it was entered in the afternoon of the 11th, and not in the morning of the 11th.
And, of course, that was not in my presentation.
HUTCHINSON: My presentation referred to the order being entered on December 11th and that the action on the 11th, of course, was triggered by the witness list on December 5th.
I think that completely answers that question. There's some other -- I'd be happy to respond to anything more specific on that issue.
REHNQUIST: This question is direct to the House managers from Senators Domenici, Frist, McCain and Warner. What is the historical significance and legal import of taking an oath for performance in public office? What is the historical significance and legal import of taking an oath to tell the truth in a legal proceeding? Please discuss whether oath-taking in such circumstances is a public matter.
HYDE: Mr. Chief Justice, members of the Senate. The taking of an oath is a formalization, a solemnization of truth. You call upon God to witness to the truth of what you're saying. In the long march of civilization, the oath has taken the place of trial by fire, trial by combat, trial by ordeal. It says in the most sober way, you can trust me. You can believe in me. It's verbal honesty. And our legal system depends on it. Our justice system depends on it.
Our justice system depends on it. The oath underscores our humanity, the oath is an aspect of our sacred honor.
REHNQUIST: This is from Senator Kerry of Massachusetts to the counsel for the president. Is it fair to say that the articles and manager presentations stress the Jones perjury allegations rejected by the House because they can not credibly on the law satisfy the elements and argue perjury in the grand jury investigation?
RUFF: Mr. Chief Justice, I'm a little troubled at answering that question. Not because I don't feel strongly about what the answer is, but I do not want to suggest in any way that the motivation of the managers is less than professional and appropriate. But I do think that indeed, they know as they think through the proof that they have, or even might ever contemplate, that the president of the United States, when he began his grand jury testimony by making the most painful admission any human being could ever make, and thereafter did his best albeit in the face of tough and probing and repetitive questioning for four hours -- did his best to tell the truth.
That they had a very difficult, indeed virtually impossible task, to persuade any dispassionate trier of fact and law that he had intentionally given false testimony. And you can see that evidenced I think most clearly if you look at some of the first allegations made as to what constitutes perjury -- things like the use of the words "on certain occasions" or "occasionally" to describe a battle over whether 11 or 20 or 17 does or does not fit within that description.
It does seem to me fair to say that they would not be fighting those battles in this chamber if they had any real confidence in their cause on Article I and thus they do seek, for whatever tactical or other purpose, to try to bring in those things which so many of their colleagues rejected out of hand in the House of Representatives.
REHNQUIST: This question is directed to the House managers from Senators Hatch, Thompson and DeWine. In her presentation to the Senate, Ms. Mills emphasized that Ms. Lewinsky testified on 10 different times about the subject of gifts. Did she ever testify that the president told her that she must turn over the gifts because that is what the law requires?
MCCOLLUM: Mr. Chief Justice, in response to that question, the answer is no, she did not.
As a matter of fact, that was and is the central point in part of the gift question. At no time, she says, did the president instruct her to turn those gifts over.
I think that is a telling point. In fact, that's a telling point throughout the entire process of the scheme and all the things that happened and why you have to follow, in my judgment, Senators, the issue of this whole process through the scheme that was devised at the beginning all the way to the end.
The president was going to ultimately lie to conceal from that case, that court in the Jones case the truth of his relationship with Monica Lewinsky and therefore he had to set it up for the affidavit, the gifts, etc.
At no point in time, she says in her testimony, did he ever ask her to come clean. At the time the affidavit was discussed, on the night of December the 17th, he never suggested she tell the truth there. If you remember, we put that up here several times to you.
Even though he may have directly told her to lie, he certainly gave her every indication, she said, from the standpoint of the background that they'd had before and what he said that night about the cover stories.
And with regard to the gifts, same thing is true. She gave him an opportunity on the day of December 28. And whether there are ten statements or however there might be -- and they say there are ten, I trust the judgment of the White House counsel there were ten different statement, the most significant of which, of course, is the grand jury testimony she gave on the subject of what happened that day when she discussed the gifts with the president, because that's when her recollection had been best refreshed, she'd been over it a lot of times, she had much preparation for that.
And I would submit to you that barring bringing her in here, which we'd of course suggest you do, and let us ask her to confirm all of this again, that you must assume, the logical thing to do is to assume that the grand jury testimony, the most perfected testimony you have, is the most accurate and most reliable.
And in that occasion particularly, she emphasizes the fact that with regard to the gifts, there certainly was no request by the president that she reveal those gifts. Now, of course, he says he did. He says he did later. But that is absolutely contracted by her testimony.
REHNQUIST: Senator Reid I believe of Nevada sends this question to the White House counsel. Would you please comment on any of the legal or factual assertions made by the managers in their response to the previous question?
MILLS: There is obviously a conflict in the testimony between the president who said he directed Ms. Lewinsky to turn over whatever she had, and Ms. Lewinsky's statements.
I would just like to read to you, given the House managers' reference that we must credit her grand jury testimony, the version of her grand jury testimony which you all will have no doubt remember it as one of the ones I read to you that was never presented by the House managers; and that is, on August 20th, 1998, after the president had testified it was December 28th.
I was there to get my Christmas gifts from him and we spent about five minutes or so -- not very long, talking about the case. And I said well do you think? And at one point I said well do you think I should -- and I don't think I said "get rid of" -- but do you think I should put away or give to Betty or give to someone, the gifts. And he -- I don't remember his response. I think it was something like "I don't know" or "hmmm" or there was really no response.
On that same day, when she was asked that same question, if it was her grand jury testimony that is to be addressed, she also said -- a juror: Now did you bring up Betty's name or did the president bring up Betty's name? The witness: I think I brought it up. The president wouldn't have brought up Betty's name because he didn't -- he didn't really discuss it.
All of those are in her grand jury testimony, so her grand jury testimony is the testimony that states he might not have given any response. And so to the extent the House managers' theory is that "let me think about it" leads to obstruction of justice, her grand jury testimony does not state that.
REHNQUIST: Senators Helms, Abraham, Ashcroft and Stevens direct this question to the president's conspector -- direct this question to the president's counsel. President Clinton testified before the grand jury that he was merely trying to refresh memory when he made these statements to Betty Currie. How can someone refresh their recollection by making statements they know are false?
MILLS: I think as one of the things I tried to address in addressing what the president's testimony was with respect to his conversation with Ms. Currie was obviously he was understandably concerned about the media attention that he knew was impending.
And, in particular, as he walked through the questions, he was thinking about his own thoughts, and seeking, as I think I talked about, concurrence, or input, or some type of reaction from Ms. Currie. I think, in making those statements, he was asking statements to see what her understanding was based on some of the questions that had been posed to him by the Jones lawyers, because some of them were so off-base.
And so, he was asking from Ms. Currie, essentially, what her perception was, what her thoughts were. And I think as you walk through each one of those questions, he was expressing what his own thoughts and feelings were with regard to this, and was seeking concurrence or affirmation from her. I think he was agitated, I think he was concerned. he knew what was going to happen, and I think that is why he posed the questions in the way that he did.
REHNQUIST: Question from Senator Bayh to counsel for the president: Can you comment on the importance of proportionality to the rule of law?
RUFF: How much time do we have?
Thank you, Senator. I think proportionality in all its many guises is an issue that has given us some pause going well back into the investigative phase of this matter. And I think many who have watched and who've made their lives and their careers as professional prosecutors, and indeed many who have been criminal defense lawyers or just plain sensible citizens watching have asked whether the resources and the energy and the time devoted to this matter and the manner in which it's been treated at every stage before it ever got to the House of Representatives does in fact reflect an appropriate assessment of the conduct being investigated and the seriousness of the conduct, which is not ever to suggest that we condone perjury or obstruction of justice.
We all recognize that if those offenses have been committed, they are worth pursuing. But one only need look at the testimony of the professional prosecutors who testified before the Judiciary Committee to get a sense of what the world of professional prosecutors would do faced with these kinds of allegations in this kind of setting.
And that really is the key, how many prosecutors would ever reach into the middle of an ongoing civil litigation and bring these kinds of charges.
The proportionality obviously has other implications and certainly goes right to the heart of the role played by this body. That is, what is the proportional response to whatever you think of the president as a man, whatever you think of his conduct, even if you should conclude, although we do not believe you should, that he violated the law in some respect, what is the constitutionally proportional response to your judgment.
And there you go right back to the essence of what the framers were talking about, which is responding with the ultimate sanction only when the ultimate problem is posed to you.
And I suggest, as I have on too many occasions, I fear, that if that's the proportionality question you're asking, and all must at some point ask that question, the answer has to be clear, that no one ever thought in 1787 and I suggest to you in the intervening 212 years, that it would be a proportional response to the conduct alleged here to remove a president.
REHNQUIST: The chair recognizes the majority leader.
LOTT: Mr. Chief Justice, I believe that that reaches a point were we would take a break. I think we've have responses to approximately 50 questions today and I think now we'll have a chance to assess on all sides of what additional questions might be needed to be asked tomorrow.
I remind my colleagues that we are scheduled to resume at 10:00 a.m. on Saturday and if there's nothing further, I move that we adjourn under the previous order of Mr. Chief Justice.
REHNQUIST: In the absence of objection, it is so ordered.
Friday, January 22, 1999
Sens. Byrd and Hatch offer plans to end trial early
Poll: Most Americans want impeachment trial to end soon
Checking the facts of the opening statements
The senators' trial questions
Transcript: Senators question impeachment lawyers
Clinton proposes anti-terrorism plan
Conservative presidential hopefuls slam Gov. Bush
Draft proposal on Medicare changes unveiled
Rehnquist at impeachment trial more easygoing than usual
DeLay says Republicans to benefit from impeachment
Hastert: HMO bills will move this year
Prosecutors accuse Democratic fund-raiser Trie of passport scam