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CRAIG: '77 to '81.
(BEGIN VIDEO CLIP)
DAVIS: In the context of perjury prosecutions, there are some
specific considerations which are present when deciding whether such a
case can be won.
First, it's virtually unheard of to bring a perjury prosecution
based solely on the conflicting testimony of two people. The inherent
problems of bringing such a case are compounded to the extent that any
credibility exists -- issues exist as to the government's sole
witness.
Second, questions and answers are often imprecise. Questions
sometimes are vague or use too narrowly defined terms, and
interrogators frequently ask compound or inarticulate questions and
fail to follow up imprecise answers. Witnesses often meander through
an answer, wandering around a question, but never really answering it.
CRAIG: In a perjury case, where the precise language of a
question and answer are so relevant, this makes perjury prosecutions
difficult because the prosecutor must establish that the witness
understood the question, intended to give a false -- not simply an
evasive answer, and in fact, did so.
The problem of establishing such intentional falsity is
compounded in civil cases by the reality that lawyers routinely
counsel their clients: answer only the question asked, not to
volunteer and not to help out an inarticulate questioner.
Legalistic though some of these legal defenses may be, these are
the respectable and respected, acceptable and expected defenses
available to anyone charged with this kind of a crime. So, to accuse
us of using legalisms to defend the president when he's being accused
of perjury is only to accuse us of defending the president.
CRAIG: We plead guilty to that charge, and the truth is that an
attorney who failed to raise these defenses might well be guilty of
malpractice.
But putting the legal defenses aside, it is not a legalistic
issue to point out that the president did not say much of what he is
accused of having said. It is not legalistic to point out that a
witness did not say what some rely on her testimony to establish.
And it is not too legalistic to point out that a president of the
United States should not be convicted of perjury and removed from
office over an argument -- a dispute about what is and what is not the
commonly accepted meaning of words in his testimony.
I'd like to make one additional point about the office of the
independent counsel and the Starr prosecutors. They, as you know,
have had a long and difficult relationship with the White House. It's
been intense, adverse, frequently hostile. They were the ones who
conducted the interrogation of the president before the grand jury.
CRAIG: These attorneys from the Office of Independent Counsel
were identified as being experienced and seasoned and professional.
In the referral that they sent over to the House of
Representatives, they make three allegations of grand jury perjury.
And the managers, based on may analysis of Mr. Rogan's speech, appear
to have adopted two of those allegations.
What is most remarkable is the fact that the managers make many,
many allegations of grand jury perjury that the independent counsel
declined to make that were not included in the referral. Think about
it for a moment. The lawyers working for the Office of the
Independent Counsel, they were in charge of this investigation. They
were the ones that called the president. They were the ones running
the grand jury. It was their grand jury.
CRAIG: They conducted the questioning of the president. They
picked the topics. They asked the follow-up questions.
And you should remember one additional fact: their standard for
making a referral is presumably much lower than the standard you would
expect from the managers in making a case for the removal of the
president in an article of impeachment.
The Independent Counsel Act calls upon the independent counsel to
make a referral when there is credible and substantial information of
potential impeachable offenses. They looked at the record, the same
record that the managers had, and they did make a referral, and they
did send recommendations to the House of Representatives.
But these lawyers, Mr. Starr and his fellow prosecutors, did not
see fit to allege most of the charges that we are discussing today.
It's fair for us to assume that the Office of Independent Council
considered and declined to make the very allegations of perjury that
the House managers have presented to you last week.
CRAIG: Apparently, the managers believe that Ken Starr and his
prosecutors have been simply too soft on the president. This should
cause the members of the Senate some concern and some additional
reason to give very careful scrutiny to these charges.
When you do, you will find the following: The allegations are
frequently trivial, almost always technical, often immaterial and
always insubstantial. Certainly not a good or justifiable basis for
removing any president from office.
Finally, as we go through the allegations and the evidence that I
will be discussing, please ask yourself: What witness do I want to
hear about this issue? Will live witnesses really make a difference
in the way that I think about this? Are they necessary for this case
and this article to be understood and resolved?
Subpart 1 has to do with testimony about the nature and details
of the relationship with Monica Lewinsky.
*** Elapsed Time 00:45, Eastern Time 13:49 ***
CRAIG: And once again because Article I does not identify with
any specificity what the president said to the grand jury that is
allegedly perjurious, the House managers have been free to include
whatever specific allegations they, not the House of Representatives,
have seen fit to level against the president.
And we have been left to guess. So this is my guesswork. We
have been left to guess what the specific allegations are, and we have
done so. And we have tried to identify the precise testimony at issue
based on the managers' trial brief and on Mr. Manager Rogan's
presentation.
Now, as you will see in these allegations in sub-part one, it is
the managers who resort to legalisms; who use convoluted definitions
and word games to attack the president. It is the managers who employ
technicalities and legal mumbo-jumbo; who distort the true meaning of
words and phrases in an effort to convict the president. And we are
the ones who must cry foul.
CRAIG: We are the ones who must point out what the managers are
trying to do here. They seek to convict the president and remove him
from office for perjury before a grand jury by transforming wholly
innocent statements about immaterial issues into what are alleged to
be perjurious, false and misleading testimony.
I begin with what is identified in the majority report as, quote,
"direct lies." First, the managers claim that the president perjured
himself before the grand jury; that he told a direct lie and should be
removed from office because in his prepared statement he acknowledged
having inappropriate contact with Ms. Lewinsky on, quote, "certain
occasions."
This was a direct lie, say the managers, because according to Ms.
Lewinsky, between November 15th, 1995, and December 28th, 1997, they
were alone at least 20 times and had, she says, 11 sexual encounters.
CRAIG: To use the words "on certain occasions" in this context
is, according to the managers, perjurious, false and misleading.
Now, this particular charge was not included in Mr. Starr's
referral and it was not debated by the members of the Judiciary
Committee or the House of Representatives.
The managers also say that the president lied to the grand jury
and should be removed from office because the president acknowledged
that on occasion he had telephone conversations that included sexual
banter -- this was also in the prepared statement -- when, the
managers say, the president and Ms. Lewinsky had 17 such telephone
conversations over a two-year period of time.
To use the word "on occasion" in this context is, according to
the managers, a direct lie to the grand jury for which the president
should be removed from office.
Now, this charge was not included in Mr. Starr's referral, it was
not debated by the members of the House Judiciary Committee, and it
was not debated on the floor of the House.
CRAIG: In responding to these two charges, it may make some
sense to begin with the dictionary definition of "occasional" to
satisfy ourselves that the president's statement is in fact a more
than reasonable and actually an accurate use of that word, under the
circumstances.
Now there are 774 days in the time span between November 1995 and
December 1997. I submit that it's not a distortion -- it is not
dishonest to describe their activity, which Ms. Lewinsky claims
occurred on 11 different days -- and from our examination of her
testimony, we can only local 10, but she says 11 -- as having occurred
on certain occasions.
Look at the calender. Now that phrase, "on certain occasions,"
carries no phrase of frequently or numerosity. It sort of means it
happened every now and then.
And the same can be said for the word, the use of the word " on
occasion" when they were talking about telephone conversations to
describe 17 telephone conversations that included explicit sexual
language.
CRAIG: Now, as you consider the second allegation, having to do
with the telephone calls, you might also read the grand jury testimony
of Miss Lewinsky herself on August 20th, 1998, at page 1111.
There a grand jury asks -- a grand juror asks her: How much of
the time and how often, when she was on the phone with the president,
did they engage in these kinds of graphic conversations?
Miss Lewinsky answered, quote, "Not always, on a few occasions."
The managers are trying to remove the president from office.
CRAIG: When he used the word "on occasions"; when Ms. Lewinsky
described that frequency or that event precisely the same way -- there
is simply no way that the president's use of the words "on certain
occasions" or "on occasion" can be taken as an effort to mislead or
deceive the members of the grand jury, or to conceal anything.
There is simply no way that a reasonable person can look at this
testimony and conclude or agree with the managers that it is a quote
"direct lie." What message do the managers send to America and to the
rest of the world when they include these kinds of allegations as
reasons to remove this president from office?
It is hard to take the charges seriously when in each case they
boil down to arguments over semantics. Does anyone here really
believe that the members of the House of Representatives would have
voted to approve these allegations as the basis for impeaching and
removing this president, if they had been given the chance, with
specific identified perjurious testimony in a proposed article of
impeachment?
CRAIG: But here we are in the well of the Senate defending the
president of the United States against allegations that the managers
believe and have seriously argued should cause the president to be
removed from office and even prosecuted and convicted in a criminal
court.
The president is also accused of lying before the grand jury and
the managers have asked you to convict him and remove him from office
because in the prepared statement that he read to the grand jury in
August he acknowledged that he engaged in inappropriate conduct with
Ms. Lewinsky on certain occasions in early 1996 and once in 1997.
The managers call this a direct lie because the president did not
mention 1995. And in their trial memorandum they write: "Notice --
the president did not mention 1995. There was a reason. On three
occasions in 1995, Ms. Lewinsky said she engaged in sexual contact
with the president."
CRAIG: Now, this was one allegations that the office of the
independent counsel did include in its referral to the House. And
this charge was in fact discussed and debated by the members of the
Judiciary Committee when they conducted their impeachment inquiry.
Let me show you what two members of that committee, now managers
for the House in this trial, thought about this particular charge of
perjury when Congressman Barney Frank ridiculed it during the debate.
The chairman of the Judiciary Committee, Mr. Hyde -- we're
missing an exhibit here; I think it's number 10 -- said it didn't
strike -- "doesn't strike me as a terribly serious count."
Congressman Canady in his closing argument at the final stages of that
proceeding said he thought, "I freely acknowledge that reasonable
people can disagree about the weight of the evidence on certain of the
charges."
CRAIG: "For example, I think there is doubt about the
allegations that the president willfully lied concerning the date his
relationship with Ms. Lewinsky began."
This allegation involves an utterly meaningless disparity in
testimony about dates that are of absolutely no consequence
whatsoever. The most likely explanation here is that there was an
honest difference in recollection.
There is no dispute about the critical facts that Ms. Lewinsky
was young, very young, too young when she got involved with President
Clinton. But her age didn't change between November 1995 and January
1996. Her birthday is in July. She was 22 years old in November and
22 years old in January, despite the fact that every manager persists
in stating, erroneously -- not perjuriously, erroneously -- that she
was 21 years old when she first became involved with the president.
CRAIG: Nothing of any importance in the case took place between
December 1995 and January 1996.
She was an intern in the early stages of that period and she
became a government employee. So, it didn't change the relationship
that she had with the president. It modified her title.
Any dispute over this immaterial issue is silly. And it is
unreasonable to argue, as we heard from the House managers last week,
that if you believe Monica Lewinsky and disbelieve the president on
this issue, as to which date was the date that they began their
relationship and had the inappropriate contact, that you must convict
the president and remove him from office.
I confess I find myself in agreement with Congressman Hyde when
he says that this allegation is not serious -- not terribly serious
and I agree with Congressman Canady when he suggests that there's room
for doubt as to whether the president had any real reason or motive to
have lied about these dates.
CRAIG: And I truly wonder if the House of Representatives, had
it been identified as a specific statement for them to consider, would
have made and included this allegation in the articles of impeachment
aimed at removing President Clinton from office.
Is this conflict in testimony really such a serious issue that if
you find the president to be mistaken he should be removed from
office? And is it important enough to require the testimony of live
witnesses? Is it material of anything of interest to the grand jury
at the time this testimony was given? I don't think so.
Now, between the time of the vote in the House and the time that
the managers filed their trial brief, the managers came up with
another allegation of perjury and put it into the mix.
CRAIG: They argue that this element of the president's grand
jury testimony should also cause him to be removed from office. This
allegation involves the president's statement that there was some
period of friendship with Ms. Lewinsky that led to inappropriate
contact.
But it's immaterial, unimportant, and fundamentally frivolous as
an allegation. And it was not, needless to say, included in the Starr
referral. I'm sure the attorneys in the office of independent counsel
knew about the statement and chose not to include it. It was never
discussed by the members of the Judiciary Committee during the
impeachment inquiry. We never heard about it, never saw it, never had
a chance to deal with it. It was never mentioned on the floor of the
House of Representatives.
And according to my examination, which may be flawed, but my
thinking is that it made its first appearance in this matter only
after the House of Representatives had voted on the articles of
impeachment, when the managers filed their trial brief. Does anyone
really believe that the House of Representatives would have voted to
approve this allegation as a basis for convicting and removing this
president from office?
Then the managers turned to what in the majority report they call
"the heart of the perjury." That is, the president's grand jury
testimony -- that his encounters with Ms. Lewinsky did not constitute
sexual relations as defined by the Jones lawyers in the Jones
deposition.
CRAIG: Before dealing with this allegation, however, it is
important to understand that in the course of his testimony the
president was required to deploy two different definitions of sexual
relations. One was his own and the other was the definition supplied
to him by the Jones lawyers and modified by Judge Susan Webber Wright
during his deposition.
First, if you'd turn to exhibit number 11, you will find the
president's definition, his own personal definition, as reported to
the grand jury.
Next, let me direct your attention to the transcript of the
telephone conversation between Monica Lewinsky -- I'm talking here
about exhibit 12 -- Monica Lewinsky and Linda Tripp, where Ms.
Lewinsky explains her definition of sexual relations. And this
conversation occurred, incidentally, many weeks before Ms. Lewinsky
executed her affidavit for the Jones case.
Finally, look at the dictionaries and read their definitions.
That you can see at exhibit 13.
By the way, exhibit 12, which includes Ms. Lewinsky's definition,
is confirmed by other parts of the -- of the record where she talks to
other individuals -- FBI agents.
CRAIG: She refers to this understanding and definition in her
proffer. So it's not just this one telephone conversation to
establish what Monica Lewinsky says she thought at that time the
definition was.
Although some might think that the president's definition is
unduly limited and that both of them are splitting hairs, there is
some reasonable basis, and there's reputable authority to support
their view. It seems clear that Ms. Lewinsky could think, and
probably did think and reassured herself at the time she wrote and
executed her affidavit, that the affidavit she submitted in the Jones
case was in fact accurate. And thus, knowing Ms. Lewinsky's view of
that situation and sharing her definition, the president could
reasonably say absolutely yes, when Mr. Bennett asked the president if
Ms. Lewinsky's affidavit stating that she had never had sexual
relations with the president was true.
How can you accept the argument of the House managers that the
president should be removed from office because his definition, which
is the dictionary definition, does not comport with theirs?
We're going to play the videotape. This is -- we're going to
talk about the definition that was the second definition that was
given to the president in the Jones deposition, which is also a
subject of grand jury testimony. And we're going to play 14 minutes
of that videotape at the beginning of the president's appearance or at
the time when he was first handed the definition and sits at the
table, and this may be a good time to take a break, because it would
be a 14-minute span of time.
REHNQUIST: The chair recognizes the majority leader.
LOTT: Mr. Chief Justice, I have consent that we take a 10-minute
recess at this time in the proceedings. I urge the senators to relax
a moment but come right back to the chamber, so we can proceed and
watch this video.
CRAIG: And we are going to play 14 minutes of that videotape, at
the beginning of the Jones -- of the president's appearance or at the
time when he was first handed the definition and sits at the table.
And this may be a good time to take a break, because it would be a 14-
minute span of time.
REHNQUIST: The chair recognizes the majority leader.
LOTT: Mr. Chief Justice, as consent that we take a 10-minute
recess at this time in the proceedings. I urge the senators to relax
a moment, but come right back to the chamber, so we can proceed and
watch this video.
(BREAK)
REHNQUIST: The Senate will be in order. The chair recognizes
the majority leader.
LOTT: Mr. Chief Justice, I believe we're ready to proceed with
Mr. Counsel Craig's video perhaps, or do you have some other
preference?
REHNQUIST: The chair recognizes Mr. Counsel Craig.
CRAIG: Thank you, Mr. Chief Justice. Exhibit number 14 in your
collection of exhibits is a definition that the president was handed
when he went into his deposition testimony -- to give his deposition
testimony.
Now, there's two or three things I'd like to say about this
exhibit before we go look at the videotape. The first is this: Many
of the president's critics have accused the president of himself
coming up with the tortured and convoluted definition so that he could
get away with denying having sex with Ms. Lewinsky; that he was the
one that came up with a bizarre and unreal definition that would give
him some plausible deniability and allow him to conceal his
relationship with Ms. Lewinsky from the Jones lawyers.
But in truth, this definition was not his idea; not his work
product; not his own definition. And it is unfair and inaccurate to
saddle him with inventing such a silly and truncated definition and
the events that flowed from that.
My second point is this: The mere fact that the lawyers in Jones
felt the need to use a definition for "sexual relations" is, by itself
standing alone, evidence to support the notion that at least they
recognized that the precise meaning of the term can and does differ
from person to person.
CRAIG: It is precisely then, when there is some uncertainty or
ambiguity about the meaning and common usage of words, that lawyers
turn to created definitions in an effort to have clarity, uniformity
and common understanding. And the very fact that the lawyers in Jones
seem to think that a definition was needed means that without such a
definition, there is no commonly accepted, no universally agreed upon
meaning of this phrase.
And what is or is not included with the ambit of that definition
then becomes an argument and nothing more. Certainly not perjury.
The third point to remember before we watch the president as he
first sees this piece of paper is this. To understand what was going
on in the president's mind at the time he testified about this
definition during the Jones deposition, you must look at what was
deleted as well as looking at that part of the definition that was
left behind.
CRAIG: You will see that in the third paragraph of the
definition there is a description which in fact more closely
approximates what went on between Ms. Lewinsky and the president than
does the first paragraph. And this part of the definition was deleted
by the judge.
There is an additional point. On the tape you will hear the
president's lawyer Mr. Bennett -- and Mr. Ruff referred to this
yesterday -- urging the Jones lawyers to abandon this definition, to
leave it behind, and ask direct questions of the president as to what
he did. The record would certainly have been clearer for all of us if
he had followed Mr. Bennett's advice.
And there's another voice that you hear in addition to Mr.
Bennett, Mr. Fisher, who is the Jones lawyer, the judge, Judge
Wright, and that's the voice of the lawyer for the president's co-
defendant in this case, Danny Ferguson.
Now, let me just briefly tell you what to look for. The
president first saw this definition when he entered the room and sat
down to testify, not before. You will see him as he sits there and is
handed a piece of paper with the definition typed on it.
CRAIG: Neither he nor his lawyer had ever seen that definition
before. He was then required to sit down to study it and to
understand it. And if we look at the next exhibit, this is what he
said about what he thought and did later in the grand jury. I think
this is definition -- this is exhibit number 15.
And you watch him as he does this. I might also note that when I
was given this and began to ask questions about it, I actually circled
number one. This is my circle here. I remember doing it so I could
focus only on those two lines, which is what I did. And this is the
actual deposition exhibit with his circle around number one.
And let us remember finally what his testimony is about his
intentions in this deposition. "My goal was to be truthful, but I
didn't want to help them."
Let's watch what happened.
(BEGIN VIDEO TAPE)
FISHER (ph): Good morning. My name is Jim Fisher, sir, and I'm
an attorney from Dallas, Texas and I represent the plaintiff Paula
Jones in this case.
(BEGIN VIDEO PRESENTATION)
FISHER: Do you understand who I am, and who I'm representing
today?
CLINTON: Yes.
FISHER: And do you understand, sir, that your answers to my
questions today are testimony that is being given under oath?
CLINTON: Yes.
FISHER: And your testimony is subject to the penalty of perjury.
Do you understand that, sir?
CLINTON: I do.
FISHER: Sir, I'd like to turn to what has been marked Deposition
Exhibit 1. Sir, the record is clear today in that we know that we are
communicating.
This is a definition of a term that will be used in the course of
my questioning. The term is sexual relations. And I will inform the
court that the wording of this definition is patterned after Federal
Rule of Evidence 413 (OFF-MIKE).
Would you please take whatever time you need to read this
definition because when I use the term sexual relations, this is what
I am meaning today. Is there a copy for the court? Would you pass
that, please?
BENNETT: Your Honor, as an introductory matter, I think this
could really lead to confusion, and I think it's important that the
record be clear. For example, it says, the last line, contact means
intentional touching directly or through clothing.
I mean, just for example, one could have a completely innocent
shake of the hand, and I don't want this record to reflect -- I think
we're here today for counsel for the plaintiff to ask the president
what he knows about various things, what he did, what he didn't do.
But I have a real problem with this definition, which means all things
to all people in this particular context, Your Honor.
FISHER: Your Honor, I believe the wording in that is extremely
erroneous. What the deposing attorney should be looking at is exactly
what occurred. And he can ask the witness to describe as exactly as
possible what occurred. But to use this an antecedent to his
questions, it would put him in a position if the president admitted
shaking hands with someone, then under this truncated deposition, or
definition, he could say or somehow construe that to mean that that
involved some sort of sexual relations. And I think it's very unfair.
FISHER: And I think it's very unfair. Frankly, I think it's a
political trick. And I told you before how I feel about the political
character of what this lawsuit is about.
WRIGHT: (OFF-MIKE)
(UNKNOWN): Your honor, may I respond?
WRIGHT: You may.
(UNKNOWN): The purpose of this is to avoid everything that they
have expressed concern about. It is to allow us to be discrete and to
make the record crystal clear. There is absolutely no way that this
could ever be construed to include a shaking of the hand.
BENNETT: Mr. Fisher, let me refer you to paragraph two. It says
contact between any part of the person's body or an object and the
genitals or anus of another person. (OFF-MIKE) if the president
patted me and said I had to lose ten pounds off my bottom, I -- you
could be arguing that I had sexual relations with him.
Your honor, this is going to lead to confusion. Why don't they
ask the president what he did, what he didn't do, and then we can
argue in court later about what it means.
WRIGHT: (OFF-MIKE) let me make a ruling on this. It appears
that this really is not the definition of contact under Rule 413.
WRIGHT: Because Rule 413 deals with non-consensual contact, this
definition would encompass contact that is consensual. And of course
the court has ruled that consensual contact is relevant in this case.
And so it -- let the record reflect that the court disagrees with
counsel that this is not the -- this is -- about it being the
definition under Rule 413. It's not.
It is more in keeping with, however, the court's previous rule,
but I certainly agree with the president's counsel that this -- that
definition number two is too broad, and so is definition number three.
Definition number one is -- encompasses intent. And so that would be
-- but numbers two and three are just too broad.
(UNKNOWN): All right, your honor.
WRIGHT: And number one is not too broad, however -- so I'll let
you use that definition as long as we understand that that's not Rule
413. It's just (OFF-MIKE) would apply in this case to intentional
sexual contact.
*** Elapsed Time 01:01, Eastern Time 14:05 ***
FISHER: Yes, Your Honor, and had I been allowed to develop this
further, everyone would have seen that deposition exhibit 2 is
actually the definition of sexual assault or offense of sexual
assault, which is the term in Rule 413.
BENNETT: Your Honor, I object to this record being filled with
these kinds of things. This is going to leak. Why don't they have --
here you've got the president of the United States in this room for
several hours. Why don't they ask him questions about what happened
or didn't happen?
WRIGHT: I will permit him to refer to definition number one,
which encompasses knowing and intentional sexual contact for the
purpose of arousing or gratifying sexual desire. I'll permit that.
Go ahead.
FISHER: Mr. President, in light of the court's ruling, you may
consider subparts two and three of definition (ph) exhibit one to be
stricken. And so when in my questions I use the term "sexual
relations" there I'm talking only about part one in the definition at
the bottom. Do you understand that, sir?
CLINTON: I do.
FISHER: I'm now handing you what has been marked deposition
exhibit 2.
FISHER: Please take whatever time you need to read deposition
exhibit 2.
BENNETT: Your Honor, again, what I am very worried about, Your
Honor, is first of all, this appears to be a -- I mean, what I don't
want to do is have (OFF-MIKE) asked questions and then we don't --
we're all ships passing in the night. They are thinking of one thing,
he's thinking of another.
Are we talking criminal assault? Are we -- I mean, this is not
what a deposition is for, Your Honor. He can ask the president, what
did you do? He can ask him specifically, in certain instances, what
he did. And isn't that what this deposition is for? It's not to sort
of lay a trap for him.
And I'm here to object to the president answering and having to
remember what's on this whole sheet of paper. And, Your Honor, I just
don't think it's fair. It's going to lend to confusion.
WRIGHT: All right. Do you agree with Mr. Bennett?
(UNKNOWN): I had one other point (OFF-MIKE).
WRIGHT: All right.
(UNKNOWN): This is almost like in a typical automobile accident
where the plaintiff's counsel wants to ask the defendant "were you
negligent?" That's not factual...
WRIGHT: (OFF-MIKE) Mr. Fisher give a response?
FISHER: Yes, your honor. What I'm trying to do is avoid having
to ask the president a number of very salacious questions and to make
this as discrete as possible. This definition, I think the court will
find, is taken directly from Rule 413, which I believe President
Clinton signed into law, with the exception that I have narrowed
subpart one to a particular section which would be covered by Rule
413. And I have that section here to give the president so that there
is no question what is intended (OFF-MIKE). This will eliminate
confusion, not cause it.
BENNETT: Your honor, I have no objection where the appropriate
predicates are made for them to ask the president: Did you know X,
yes or no? What happened? What did you do? What didn't you do? We
are -- we acknowledge that some (OFF-MIKE) questions will be asked.
But then we all will know what we're talking about. But I do not want
my client answering questions not understanding exactly what these
folks are talking about.
Now, your honor, I told you that the president has a meeting a
4:00, and we've already wasted 20 minutes and Mr. Fisher has yet to
ask his first factual question.
WRIGHT: Yeah, well, I'm prepared to rule.
WRIGHT: And I will not permit this definition to be understood
-- quite frankly, there are several reasons. One is that the court
heretofore has not proceeded using these definitions. We have used --
we think numerous rulings, or the court has made numerous rulings in
this case without specific reference to these definitions.
And so if you want to know the truth, I don't know them very
well. I would find it difficult to make rulings, and Mr. Bennett has
made clear that he acknowledges that embarrassing questions will be
asked, and if this is in fact an effort on the part of plaintiff's
counsel to avoid using sexual terms and avoid going into great detail
about what might or might not have occurred, when there's no need to
worry about that. You may go into the detail.
(UNKNOWN): If the (OFF-MIKE), we have no objection to the
details, your honor.
WRIGHT: It's just that it will make it very difficult for me to
rule, if you want to know the truth, and I'm not sure Mr. Clinton
knows all these definitions anyway.
(END VIDEO PRESENTATION)
CRAIG: Did you hear that last statement from the judge? "I'm
not sure Mr. Clinton knows all these definitions anyway."
Now before the grand jury, the president discussed at some length
and in great detail his interpretation of the definition that he was
asked to apply during that deposition, the definition that he was
asked to apply. And he gave lengthy and sustained answers, and when
you read the grand jury testimony as I urged you to do, you will see
that they're consistent and they're logical and there is reason behind
his conclusion that his activities with Ms. Lewinsky simply did not
fall within that definition.
There's no mystery, no deception, no lying, no effort to conceal
his view. His view is there for all to see. It's also reported from
these limited excerpts from the grand jury testimony.
It's a plain statement of his understanding. And to argue that
the president when he conveyed his understanding of that definition
doesn't really believe his argument, and to contend that he was
committing perjury when he told the grand jury that he genuinely
believed his interpretation of the definition, that's just speculation
about what is in his mind. And it's not the stuff or fuel of a
perjury prosecution.
CRAIG: Now, I'd like to return, very briefly, to the group of
experienced prosecutors who gave their opinion about the president's
testimony before the grand jury on this issue.
They said that the president's interpretation was a reasonable
one under the circumstances. But the managers claim that the
president's explanation of the Jones' definition, his interpretation,
his understanding, and his argument with the lawyers from the Office
of Independent Counsel are the heart of the perjury.
Let's hear what the prosecutors said about this and read the
transcript of their testimony when they testified before the House
Judiciary Committee. And first we'll listen to Tom Sullivan.
SULLIVAN: Thank you very much, Mr. Hyde. It's clear to me that
the president's interpretation is a reasonable one, especially because
the words which seem to describe directly oral sex, were the words
which seemed to describe directly oral sex were stricken from the
definition by the judge.
SULLIVAN: In a perjury prosecution, the government must prove
beyond a reasonable doubt that the defendant knew when he gave the
testimony he was telling a falsehood. The lie must be knowing and
deliberate. It is not perjury for a witness to evade, obfuscate, or
answer nonresponsively.
The evidence simply does not support the conclusion that the
president knowingly committed perjury, and the case is so doubtful and
weak that a responsible prosecutor would not present it to the grand
jury.
(END VIDEO PRESENTATION)
CRAIG: And we have one more excerpt from his testimony.
(BEGIN VIDEO PRESENTATION)
SULLIVAN: In perjury cases, you must prove that the person who
made the statement made a knowingly false statement. Now where I
think the defect in this prosecution is, among others -- and I don't
think it would be brought because it's ancillary to a civil deposition
-- is to establish that the president knew what he said was false.
When he testified in his grand jury testimony, he explained what
his mental process was in the Jones deposition. And he said the two
definitions that would describe oral sex had been deleted by the trial
judge from the definition of "sexual relations."
SULLIVAN: And I understood the definition to mean sleeping with
somebody. I don't want to get too particular here.
(UNKNOWN): Thank you.
SULLIVAN: But that is where this case, in my opinion, wouldn't
go forward even if you found an errant prosecutor who would want to
prosecute somebody for being a peripheral witness in a civil case that
had been settled.
And that's my answer to that.
(END VIDEO PRESENTATION)
CRAIG: The managers place great emphasis and weight on the
conflict in the testimony between President Clinton and Ms. Lewinsky
over some specific intimate details relating to their activity.
There's a variance between the president's testimony and Ms.
Lewinsky's testimony about the details of what they did.
What do they disagree about? Not about whether the president and
Ms. Lewinsky had a wrongful relationship. The president admitted that
before the grand jury. Not about whether the president and Ms.
Lewinsky were alone together. The president admitted that before the
grand jury. Not about whether, when they were alone together, their
relationship included inappropriate intimate contact.
CRAIG: The president admitted that before the grand jury. Not
about whether they engaged in telephone conversations that included
sexual banter. The president admitted that before the grand jury.
Not about whether the president and Miss Lewinsky wanted to keep their
wrongful relationship a secret. The president admitted that before
the grand jury.
The difference in their testimony about their relationship is
limited to some very specific, very intimate details. And this is the
heart of the entire matter, this disparity in their testimony. The
true nub of the managers' allegation that the president committed
perjury is that he described some of the contact one way, and she
described it another. Not surprisingly, the managers choose to
believe Ms. Lewinsky's description of these events.
And so, even in the absence of any evidence to the contrary,
other than Ms. Lewinsky's own recollection of these events, the
managers have concluded that the president lied under oath about the
details of his sexual activity, that he somehow shortchanged the grand
jury and should be removed from office.
*** Elapsed Time 01:43, Eastern Time 14:47 ***
CRAIG: The possibility that the question of whether the
president of the United States should be removed from his office, the
fact that that might hinge on whether you believe him or her on this
issue, is a staggering thought.
Ordinarily when dealing with disparity in testimony such as this,
prosecutors will have nothing to do with it. Only two people were
there. And in truth, the real importance of the disparity in their
testimony is questionable.
Not all disparities or discrepancies in testimony are necessarily
appropriate subjects for perjury prosecutions. According to those
experienced prosecutors who testified before the Judiciary Committee,
there are two more points to be made about this.
First, this is a classic oath on oath, he-says-she-says swearing
match, that under ordinary custom and practice at the Department of
Justice never would be prosecuted without substantial corroborative
proof.
Such proof, say these experienced prosecutors, does not consist
of the testimony of friends and associates of Miss Lewinsky, who tell
the FBI that Ms. Lewinsky contemporaneously told them about the
activity at the time it was going on.
CRAIG: But the managers claim that these contemporaneous
statements corroborate Ms. Lewinsky's testimony. That claim is
specious. Statements that Ms. Lewinsky makes to other people are not
viewed as independent corroborative evidence. They come from the same
source -- they come from Ms. Lewinsky as the source that gave that
testimony to the grand jury. And no court and no prosecutor would
accept the notion that such statements standing alone satisfy the
requirement of substantial corroborative proof when there is a
swearing bash.
Now, let's see what the experienced prosecutors have to say about
this issue and that claim.
(BEGIN VIDEO PRESENTATION)
(UNKNOWN): What is the false statement? Now, if you -- it could
be one of two. It could be when he denied having sexual relations.
And I've already addressed that, because he said, "I was defining the
term as the judge told me to define it and as I understood it," which
I think is a reasonable explanation.
The other is whether or not he touched her -- touched her breast
or some other part of her body not through her clothing, but directly.
(UNKNOWN): And he says "I didn't" and she said "I did." So it's
"who shot John?"
It's, you know, it's a one-on-one. The corroborative evidence
that the prosecutor would have to have there, which is required in a
perjury case. You can't do it one-on-one. And no good prosecutor
would bring a case with, you know, "I say black, you say white," --
would be the fact that they were together alone and she performed oral
sex on him.
I think that is not sufficient under the circumstances of this
case to demonstrate that there was any other touching by the president
and therefore he committed this, you know, he violated this --
committed perjury.
(END VIDEO PRESENTATION)
CRAIG: And now the testimony from Richard Davis on this same
point, and then we'll move to subpart two.
(BEGIN VIDEO PRESENTATION)
DAVIS: I will now turn to the issue of whether from the
perspective of a prosecutor, there exists a prosecutable case for
perjury in front of the grand jury. The answer to me is clearly no.
CRAIG: The president acknowledged to the grand jury the
existence of an improper intimate relationship with Monica Lewinsky
but argued with the prosecutor's questioning him that his acknowledged
conduct was not a sexual relationship as he understood the definition
of that term being used in the Jones deposition.
Engaging in such a debate, whether wise or wise politically,
simply does not form the basis for a perjury prosecution. Indeed, in
the end, the entire basis for a grand jury perjury prosecution comes
down to Monica Lewinsky's assertion that there was a reciprocal nature
to their relationship and that the president touched her private parts
with the intent to arouse or gratify her, and the president's denial
that he did so.
Putting aside whether this is the type of difference of testimony
which should justify an impeachment of a president, I do not believe
that a case involving this kind of conflict between two witnesses
would be brought by a prosecutor, since it would not be won at trial.
A prosecutor would understand the problem created by the fact that
both individuals had an incentive to lie: The president to avoid
acknowledging a false statement in his civil deposition, and Miss
Lewinsky to avoid the demeaning nature of providing wholly
unreciprocated sex.
Indeed, this existed when Miss Lewinsky described the
relationship to the confidants described in the independent counsel's
referral.
Equally as important, however, Mr. Starr has himself questioned
veracity of his one witness, Miss Lewinsky, by questioning her
testimony that his office suggested she tape record Miss Currie, Mr.
Jordan and potentially, the president.
CRAIG: And in any trial, the independent counsel would also be
arguing that other key points of Miss Lewinsky's testimony are false,
including where she explicitly rejects the notion that she was asked
to lie and that assistance in her job search was an inducement for her
to do so.
The conclusion is clear. To make this case in any courtroom
would be very difficult for a prosecutor -- who point out that it is
difficult, if not impossible, to put on a successful prosecution if
the chief witness is deemed by the prosecutors to be unreliable on
some issues, but presented as totally truthful on others.
Now, let's move to subpart 2, and it's exhibit number 18. The
allegations of perjury here have to do with testimony that he gave in
the grand jury about his deposition in the Jones case.
And I begin by repeating a point that I made a little earlier,
that the House of Representatives did not devote -- did not vote to
approve the article that alleged that President Clinton committed
perjury during his deposition in the Jones deposition.
CRAIG: And as I said before, there was good reason for that.
What are the reasons? The president's -- there are many reasons. The
president's testimony in the Jones deposition involved his
relationship with a witness who was ancillary to the core issues of
the Jones case. She was a witness in the case. She wasn't the
plaintiff in the case.
And she was ancillary to the core issues in the case -- someone
whose testimony was thereafter held to be unnecessary and perhaps
inadmissible by Judge Susan Webber Wright; someone whose truthful
testimony would have been in any event of marginal relevance since her
relationship with the president was entirely consensual.
And as you know, this was a case that ultimately was found to
have no legal or factual merit, and it was dismissed by the judge and
it has now been settled by the parties.
Moreover, the president was caught by surprise in that deposition
and asked questions about matters that the Jones lawyers already knew
the answers to. As you heard yesterday, the Jones lawyers had been
briefed the night before by Linda Tripp.
CRAIG: So they were asking questions of President Clinton in the
course of this deposition about the relationship to which they already
had the answers.
That kind of ambush is profoundly unfair and it is one reason
that Congressman Graham said that he voted against this article in
committee, the surprise. He was the only Republican to do so. He was
the only Republican to vote against article. And the decision of the
House to follow Congressman Graham's leadership and to reject this
article showed great wisdom and judgment.
But apparently that is not to be the answer when it comes -- the
end of the matter when it comes to allegations of perjury in the Jones
deposition. In sub-part 2 of Article I, the managers seek to
reintroduce the issue of the president's testimony in the case by
alleging that when the president testified before the grand jury he
testified falsely when he said that he tried to testify truthfully in
the Jones deposition.
Congressman Rogan, Mr. Manager Rogan, has claimed that the
president's answers ratified and reaffirmed and put in issue all of
his answers in the Jones deposition when he testified that he believed
he did not violate the law in the Jones deposition.
CRAIG: "This is perjurious testimony," said Manager Rogan,
"because the record is clear" -- and I'm quoting -- "that he did not
testify truthfully in the deposition." And by that bootstrapping
mechanism, we're now in a litigation about whether every single
statement that the president made in the Jones deposition was or was
not truthful to determine whether or not the president's testimony
that he was truthful is or is not truthful.
But, in fact, President Clinton did not ratify, he did not
reaffirm his Jones testimony when he testified before the grand jury,
and you will see that when you read the transcript of his testimony.
Quite the contrary is true.
If you look at that transcript carefully, you'll find that
without admitting wrongdoing, the president elaborated, he modified,
he amended and he clarified his testimony in Jones.
And when Mr. Schippers made his closing argument to the House
Judiciary Committee, I think he used the truthfulness on one occasion
of the president's testimony before the grand jury to support his
argument that the president lied in Jones. But actually, the specific
wording of subpart 2 gives us no specific information and is not
illuminating, and we turn to the managers' trial brief to ascertain
precisely what their argument is.
CRAIG: There, the managers allege that the president falsely
testified that he answered questions truthfully at his deposition
concerning among other things whether he had been alone with Ms.
Lewinsky.
I begin by saying again this allegation was not included in the
Starr referral. Why? Because it is based on a total misconception of
the president's grand jury testimony. As I referred to earlier, this
is exhibit number seven, I believe, and it shows you some evidence --
this is not the complete evidence of his testimony about being alone
-- but the question -- the prosecutors asked the question of the
president, many questions about being alone with Ms. Lewinsky. But
they never asked him about the Jones testimony. They asked him about
whether he was alone.
He never was asked about the Jones testimony.
"When I was alone with Ms. Lewinsky on certain occasions" -- it
says right there -- "when I was alone." "Let me ask you, Mr.
President, you indicate in your statement that you were alone with Ms.
Lewinsky. Is that right?" "Yes, sir." "How many times were you
alone with Ms. Lewinsky." "Let me begin with the correct answer.
CRAIG: I don't know for sure, but if you'd like me to give an
educated guess I will do that, and you will see over two or three
pages of testimony, he tries to recall times and incidents when he was
alone with Miss Lewinsky.
And so, the prosecutor says, so if I could summarize your
testimony, approximately five times you saw her before she left the
White House, approximately nine times after she left the employment?
I know there were several times in '97, the president said. I
would think that would sound about right. This is not a man denying
that he was alone with Miss Lewinsky.
But he was not asked about his testimony on that topic when he
testified in the Jones' case. Now, the managers further allege that
the president's testimony before the grand jury that he testified
truthfully at his deposition was a lie.
In fact, his testimony that they quote as being false was this
one. My goal in the deposition was to be truthful, but not
particularly helpful. My goal in this deposition to be truthful, they
say is false.
I was determined to walk through the mine field of this
deposition without violating the law and I believe I did. His
statement that I believe I did, they say means that everything that he
said in the Jones' deposition was true.
The president's statement that he set a goal and believes --
believes he's met it is, according to the managers, perjurious for
which he should be removed from office.
CRAIG: And it is through this device that the managers seek to
achieve by indirection what they were specifically forbidden to do by
the direct vote of the House of Representatives.
By claiming that the president's assertions in the grand jury
were false when he described his state of mind -- I believed, I tried,
I was determined, my goal was, that he believed -- the managers seek
to put out all of the president's evasive and misleading testimony in
the Jones deposition in issue. That effort, I submit, should be
rejected.
Let me cite on rather painful example in support of the
president's testimony that he in fact tried to answer accurately when
he testified in the grand jury. He was asked whether he ever had
sexual relations with Gennifer Flowers and he answered yes, that he
had, under the definition of sexual relations being used in the Jones
case.
He later said that he would rather have taken a whipping in
public than to acknowledge that relation, because he knew it would be
leaked to the public, which it was.
CRAIG: Now, if he didn't care about telling the truth in that
deposition, if he went into that deposition with the intention of
denying anything and everything that was embarrassing, if he really
had decided, in his own mind, that whatever the Jones lawyers asked
him, he wasn't going to be truthful about it, he never would have
testified the way he did about Gennifer Flowers.
Now, ladies and gentlemen of the Senate, the president does
claim, and he never was asked in front of the grand jury, and he never
inserts in front of the grand jury, that all his testimony in the
Jones deposition was truthful. His statement was that he tried to be
accurate; that his goal was to be truthful. But that statement is not
a broad reaffirmation of the accuracy of all his testimony, despite
the House managers' desire to character size it as such.
Those were accurate descriptions of the president's state of mind
at the time he testified.
The real issue here is not the truth of the underlying statements
made by the president in the Jones deposition but the president's
explanation of those statements. Whether his description of his
efforts to walk this fine line that he gave to the grand jury was
accurate.
CRAIG: Whether you agree or disagree with the president's view
that he was or was not successful in his undertaking not to break the
law and to be lawful, that argument is an argument. It's hardly --
and it's not a secret argument, he has that out there open for
everybody to see. That argument is hardly a proper subject for a
perjury claim. And his simple restatement of his legal position to
the members of the grand jury is hardly the stuff of a perjury
prosecution.
Actually, if you look at the president's grand jury testimony,
you will see that he provided much more complete and much more
accurate, much more reliable testimony about many of the topics
covered in Jones. And the notion that he reaffirmed, confirmed or
ratified his Jones testimony is just unsupported by the evidence.
It would be astonishing to think that the Senate would conclude
that the president should be removed from office because in the grand
jury he gave voice to a legal opinion and stated his own personal
belief that his testimony in the Jones deposition did not break the
law. I submit to you that if that was the case, the Office of the
Independent Counsel would have included that in the referral, and they
did not.
CRAIG: In fact, let me just say right now: None of the rest of
the allegations that we're going to be discussing in the Article that
we're talking about today are included in the Starr referral. The
rest are entirely the product of the managers.
Sub-part three, which is exhibit number 19 -- this has to do with
the president's testimony about statements he allowed his attorney to
make (OFF-MIKE) a federal judge in the Jones case, and you saw the
tape of that testimony last week.
According to the trial memorandum, the president remained silent
during the Jones deposition at a time when his counsel, Mr. Bennett,
made false and misleading representations to the court about Ms.
Lewinsky's affidavit. Pointing to the Lewinsky affidavit, Bennett
stated that Ms. Lewinsky had filed an affidavit saying that there is
absolutely, quote "no sex of any kind in any manner, shape or form
with President Clinton."
And when asked by the independent counsel about this moment
before the grand jury, the president testified that he hadn't paid
much attention; that he was thinking about his testimony.
*** Elapsed Time 02:02, Eastern Time 15:06 ***
CRAIG: And he says this four or five times. This is not just
once. He says this four or five times. He's emphatic that he didn't
pay attention and the words went by him.
Now, in support of their claim that the president lied whether he
said he wasn't paying attention, the House managers point to the
videotape record of the president's testimony, which shows, they
argue, that the president was looking directly at Mr. Bennett and
paying close attention to his argument to Judge Wright.
This allegation, not included in the Starr referral, is even more
curious than the previous one, because it's based on a novel legal
theory, which is -- jeopardizes all lawyers in the building -- which
is that a client has an enforceable obligation to correct his
attorney's alleged misstatements, and if he doesn't make those
corrections, he, the client, will be held liable to charges of perjury
and obstruction of justice.
The charge is that the president misled the grand jury when he
said that he wasn't paying attention. While the videotape shows that
the president was looking in Bennett's direction, there is nothing
that can be read in his face or in his body language to show that he
is listening to, understanding or affirming Mr. Bennett's statement,
no nod of the head, no movement at all, no comment, nothing.
CRAIG: What happens is this: Mr. Bennett makes his comment and
is interrupted by the judge. She says no, just a minute, let me make
-- let me make my ruling, before Mr. Bennett has a chance to complete
his argument.
And after interrupting Mr. Bennett, the judge makes a lengthy
observation followed by intense exchange between all counselors and
the judge. The moment is fleeting. It goes by very, very quickly.
The moment occurs not at the beginning of the deposition, but well
into it, after President Clinton has in fact been subjected to
questions about Monica Lewinsky.
Mr. Clinton, as you know, has been surprised by the direction the
case has taken and the fact that the exclusive focus of these
questions is on Lewinsky. He did not know this was coming. He did
not expect it. As he put it in his grand jury testimony, quote "I had
no way of knowing that they would ask me all these detailed questions.
I did the best I could to answer them" unquote.
At that moment, because the questions had focused on Ms. Lewinsky
to the exclusion of everything and everybody else, including the Jones
case, questions about the Jones case didn't occur until much, much
later and near the end of the deposition.
CRAIG: The president must have realized that the Jones attorneys
probably knew about his relationship with Monica Lewinsky. He
obviously had not taken any steps to prepare to answer questions about
that relationship and he was clearly caught off guard.
It is not farfetched to think that that moment his mind was
flooded with thoughts about how to get through the deposition. It is
not implausible to think that at that moment the president was
preoccupied watching his lawyer do his job and not listening carefully
and not tracking word by word the substance of the exchange.
Those of you who have practiced law and who have represented
individuals under stress in depositions know that this can happen.
And is it really reasonable to think that you can tell beyond a
reasonable doubt what is going on in the president's mind by looking
at the video tape.
And if you can and you are convinced he has heard, does he have
any obligation to say something? And if he doesn't, then this case,
this allegation, amounts to nothing.
CRAIG: It is hard to believe that the House mangers -- if it
did, I think the Starr people would have brought it. It is hard to
believe that the House managers believe that the Senate should
conclude that the president committed perjury and should be removed
from his office on the basis of his silence, his failure to speak.
Now there's a second allegation associated with this incident,
one that Congressman Rogan asserted in his presentation but is not
discussed in the trial memorandum. This has to do with the
president's now famous testimony about Mr. Bennett's statement about
Ms. Lewinsky's affidavit. It depends upon what the meaning of "is"
is.
Let's talk about that just a minute. While raising questions
about the good faith of the Jones attorney in asking questions about
Ms. Lewinsky -- this is in the grand jury. I'm sorry. I'm wrong.
This is in the Jones deposition. While raising questions about the
good faith of the Jones attorneys in asking questions about Ms.
Lewinsky, and not knowing that these same lawyers actually know the
answers to the questions, Mr. Bennett said, referring to the Jones
lawyers, quote, "counsel is fully aware that Ms. Lewinsky has filed an
affidavit saying that there is absolutely no sex. There is absolutely
no sex of any kind in any manner, shape or form with President
Clinton.
CRAIG: Now, during his grand during testimony, the independent
counsel reads that statement to the president. He gets President
Clinton to agree that the statement was made by the president's
attorney in front of Judge Wright. And here is what the independent
counsel says to President Clinton in the grand jury after reading Mr.
Bennett's words.
"That statement is a completely false statement. Whether or not
Mr. Bennett knew of your relationship with Ms. Lewinsky, the statement
that there is no sex of any kind, manner, shape or form with President
Clinton was an utterly false statement." And he asks the president,
"Is that correct?"
And at that point, pausing just a moment for reflection,
President Clinton gives his opinion and explains that opinion. To
understand the president's argument, you must know first that there
has been no inappropriate contact with Ms. Lewinsky at the time of
that deposition for, according to his recollection, almost a year;
according to hers, ten months.
And so it's not in dispute at that moment in time and for
previous months there has been and there is no sexual relationship
currently, even though there had been one in '95, '96, and in the
early part of '97, some months back.
CRAIG: Now, the president makes a political mistake here, and
gives in to his instinct to play his own lawyer; to be his own
advocate. You may find it frustrating. You may find it irritating
when you watched him do this, but he is not committing perjury. He is
committing the offense of nitpicking and arguing with the prosecutors.
He's arguing a point.
And so he says that whether Mr. Bennett's statement is false
depends upon what the meaning of "is" is. Mr. Bennett's statement is
true if "is" means an ongoing relationship. But Mr. Bennett's
statement is false if "is" means at any time ever in time.
Now, the president's answer to Mr. Bennett's question and the
statements that follow it amount to an annoying argument over the
interpretation of what Mr. Bennett said, focused on the tense of the
verb. And the president is being his own lawyer here.
The grounds in his argument are fully stated, fully explained.
There's no mystery. He's not concealing anything. And making this
argument is not perjury.
CRAIG: But there's one final point to make about this incident,
because, again, I think there was a mischaracterization of what the
president actually said in the grand jury.
He didn't say that at the time Mr. Bennett made that statement in
the Jones deposition, he caught the word "is" and recognized, aha!
I've got an exit that makes it accurate.
Quite to the contrary, he is clear in front of the grand jury
when he says that he didn't even notice this issue until he was
reviewing the transcript in preparation for his grand jury testimony.
He's clear in pointing out the argument that he is making is one
that he just discovered. Let me quote from that portion of his
testimony, which appears on pages 512 and 513, which makes it clear
that he wasn't ever claiming that he spotted that verb tense at the
time in the Jones deposition, and his silence or his answer was based
on spotting the verb tense then. This was something he discovered,
noticed, and as a lawyer, argued in the grand jury.
Quote: "I never even focused on that," meaning that issue of the
verb tense, "until I read it in this transcript in preparation for
this testimony. I wasn't trying to give you a cute answer that I was
obviously not involved in anything improper during the deposition.
CRAIG: "I was trying to tell that, generally speaking in the
present tense, if someone said that, that would be true, but I don't
know what Mr. Bennett had in mind. I don't know."
Now, the president was open and honest and obvious in what he was
arguing, and that is precisely what he was doing on this occasion. He
was arguing a point that, as a technical matter, Bennett's statement
could be read as being accurate.
I point out, again, that this particular allegation was not
included in Mr. Starr's referral, an argument that's identified as an
argument, the grounds of which are clear to all are not the basis for
a perjury prosecution.
Subpart four of this article has to do with false and misleading
testimony about the president's efforts, allegedly, to influence
witnesses and to impede discovery in Jones.
Now, as I said before, at the beginning of my presentation, the
fourth category of allegedly perjurious, false and misleading grand
jury testimony, overlaps with Article II's allegations of obstruction
of justice, and I will say it right now that Cheryl Mills will be
appearing here when I am completed and David Kendall tomorrow, to
present the arguments why Article II -- why the president should not
be found guilty and is not guilty of the allegations of obstruction of
justice in Article II.
CRAIG: But according to the manager's trial brief, making this
argument that he also perjured himself about these matters, they claim
these lies are the most troubling, as the president used them in an
attempt to conceal his criminal actions.
One begins with the self-evident proposition, at least to us,
that the president did not obstruct justice, and we hope you agree
with us by the end of the day tomorrow, when we explain the evidence.
But as explanations, if that is so, of what he did or didn't do, to
the grand jury were always truthful.
Put another way, if the president didn't obstruct justice, he
also didn't commit perjury when he denied it.
According to the managers, the general language of this provision
of subpart four is supposed to include a wide range of allegations, so
we have got some sub parts of the subpart. But none of these
allegations, let me say, ladies and gentlemen of the Senate, none of
these were included or thought to be sufficiently credible to be
included in the OIC referral.
CRAIG: Nor were these allegations included in Mr. Schippers'
initial presentation to the Judiciary Committee.
They're nothing more than an effort to inflate the number of
perjury allegations by converting every answer that the president gave
to the grand jury about the subject matter of Article II into a new
count of perjury. It's the double -- it's the double billing if you
would.
All of these allegations are more properly part of our defense to
the obstruction of justice allegations, but I will try to respond
briefly to the allegations of perjury.
His testimony about Monica Lewinsky's false affidavit -- this
grows out of the president's conversation with Ms. Lewinsky allegedly
on December 17th in which he is said to have corruptly encouraged Ms.
Lewinsky to execute a sworn affidavit that he knew to be perjurious,
false and misleading.
In that famous late-night telephone conversation, Ms. Lewinsky
asked the president what she should do if she were subpoenaed in the
Jones case. According to Ms. Lewinsky, the president responded:
"Well, maybe you can sign an affidavit."
CRAIG: That is what Ms. Lewinsky's recollection is.
Now, in the grand jury the president was repeatedly questioned
about this conversation, and he repeated answered, emphatically. And
this is another example where it's not once, it's not twice, it's
three or four times. He truly thought he said that she could have
sworn out an honest affidavit. The managers claim that when he said
that that he thought that she could swear out an honest affidavit that
the president perjured himself.
Now, the president's testimony in the grand jury on this point is
not in any way cautious or qualified. He makes similar statements on
four different occasions during that testimony, concluding with this
statement.
"I've already told you that I felt strongly that she could issue
-- that she could execute an affidavit that would be factually
truthful, that might get her out of having to testify. And did I hope
she'd be able to get out of testifying on an affidavit? Absolutely.
Did I want her to execute a false affidavit? No, I did not."
Now, the heart of the managers' argument is that there was no way
that an honest affidavit could achieve what the president and Ms.
Lewinsky both wanted to have achieved, which was to avoid her having
to testify.
CRAIG: And so the managers claimed the president's statement
that he thought that she could make out an honest affidavit and avoid
testifying in the Jones case about her relationship with the president
is perjury.
Once again, the president's [sic] claim that the president is
guilty of perjury because he is testifying falsely about his state of
mind. It wasn't true, they argue that he really thought that she
could make out and sign and execute an honest affidavit. He couldn't
have thought that. He wanted and expected her to lie in that
affidavit, and that's why he suggested: Well, you could always file
an affidavit.
Now, Miss Lewinsky's inappropriate contact with the president was
consensual. In an affidavit being sought in a case involving
allegations of sexual harassment that says there was no harassment, no
effort to impose unwanted sexual overtures would have been an
affidavit that Ms. Lewinsky could honestly execute; an affidavit
stating that she had never been on the receiving end of any unwanted
sexual overtures from the president, and that she had never been
harassed.
Second, both Ms. Lewinsky and the president had a definition of
sexual relations that would have allowed Ms. Lewinsky in her own mind,
honestly and accurately in their view, to swear an affidavit that she
had never had sexual relations, meaning what she meant in the exhibits
we distributed with the president.
CRAIG: She would have thought that was a factual -- an accurate
affidavit and so would the president at that time.
Third, it is clear that Ms. Lewinsky understood that it was not
necessary to volunteer information in an affidavit, but on the
contrary she could try to give only that small, but true portion of
the whole story. She talks about this at some length in her telephone
conversations with Linda Tripp. In her words, the goal of an
affidavit is to be as benign as possible; to avoid being deposed.
She's her own operator here. She knows what she's doing. Please
recognize what the managers are trying to do here. In Article II,
they accuse the president of obstructing justice by suggesting that
Ms. Lewinsky should file an affidavit, knowing full well that the
affidavit would have to be false. And when the president under oath
in the grand jury denies that he believed that the affidavit would
have to be false, they accuse him of perjury.
The two allegations are inextricably intermingled, and if you
conclude, as you should, that there's no evidence to support the
underlying allegation -- that the underlying offense is based on
nothing but pure conjecture, you will conclude that the perjury charge
is nothing more than an attempt to get two bites at the same apple.
Testimony, cont.
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