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Clinton impeachment trial
transcripts — January 22, 1999
The following transcript was provided to Court TV by Federal Document Clearing
House:
SENATE IMPEACHMENT TRIAL OF PRESIDENT CLINTON
JANUARY 22, 1999
*** Elapsed Time 00:00, Eastern Time 15:17 ***
SPEAKERS: WILLIAM H. REHNQUIST, CHIEF JUSTICE, U.S. SUPREME COURT
LLOYD OGILVIE, SENATE CHAPLAIN
U.S. SENATOR TRENT LOTT, MAJORITY LEADER
U.S. SENATOR THOMAS DASCHLE (D-SD)
U.S. REPRESENTATIVE HENRY HYDE (R-IL)
U.S. REPRESENTATIVE F. JAMES SENSENBRENNER (R-WI)
U.S. REPRESENTATIVE BILL MCCOLLUM (R-FL)
U.S. REPRESENTATIVE GEORGE GEKAS (R-PA)
U.S. REPRESENTATIVE CHARLES CANADY (R-FL)
U.S. REPRESENTATIVE STEPHEN BUYER (R-IN)
U.S. REPRESENTATIVE ED BRYENT (R-TN)
U.S. REPRESENTATIVE STEVE CHABOT (R-OH)
U.S. REPRESENTATIVE BOB BARR (R-GA)
U.S. REPRESENTATIVE ASA HUTCHINSON (R-AR)
U.S. REPRESENTATIVE CHRIS CANNON (R-UT)
U.S. REPRESENTATIVE JAMES ROGAN (R-CA)
U.S. REPRESENTATIVE LINDSEY GRAHAM (R-SC)
DAVID KENDALL, ATTORNEY FOR PRESIDENT CLINTON
CHARLES F.C. RUFF, OFFICE OF THE WHITE
HOUSE COUNCIL
GREGORY B. CRAIG, OFFICE OF THE WHITE
HOUSE COUNCIL
CHERYL D. MILLS, OFFICE OF THE WHITE
HOUSE COUNCIL
...of the officeholder.
CANADY: 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.
CANADY: 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.
RUFF: 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.
RUFF: 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.
RUFF: 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."
RUFF: 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.
MCCOLLUM: 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.
MCCOLLUM: 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.
MCCOLLUM: 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.
MCCOLLUM: 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."
MCCOLLUM: 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?"
MCCOLLUM: 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 because 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?
KENDALL: 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.
KENDALL: 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.
KENDALL: 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.
KENDALL: 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.
Lewinsky 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.
HUTCHINSON: 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.
HUTCHINSON: 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.
HUTCHINSON: 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.
HUTCHINSON: 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?
REHNQUIST: 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?
RUFF: 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.
RUFF: 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.
REHNQUIST: 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.
(LAUGHTER)
REHNQUIST: It's not retroactive.
(LAUGHTER)
ROGAN: Thank you.
(LAUGHTER)
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.
ROGAN: 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.
ROGAN: 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.
REHNQUIST: Yes.
HUTCHINSON: Thank you, Mr. Chief Justice.
HUTCHINSON: 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.
RUFF: 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.
RUFF: 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.
RUFF: 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.
Thank you.
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.
RUFF: 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.
RUFF: 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?
REHNQUIST: 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.
BUYER: 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."
BUYER: "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.
REHNQUIST: 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.
(LAUGHTER)
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.
RUFF: 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.
RUFF: 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.
*** Eastern Time 16:14***
GRAMM: 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.
GRAHAM: 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.
Thank you.
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.
(RECESS)
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.
*** Eastern Time 16:43 ***
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.
BRYANT: 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.
BRYANT: 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.
KENDALL: 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.
KENDALL: 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.
*** Eastern Time 16:50***
HYDE: 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.
HYDE: 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.
HYDE: 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.
HYDE: 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.
Thank you.
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.
RUFF: 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.
*** Eastern Time 16:58 ***
RUFF: 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.
REHNQUIST: 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.
ROGAN: 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."
*** Eastern Time 17:02 ***
ROGAN: 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.
ROGAN: 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.
*** Eastern Time 17:05 ***
ROGAN: 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.
CRAIG: 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.
CRAIG: 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.
CRAIG: 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?
(LAUGHTER)
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.
*** Eastern Time 17:10 ***
ROGAN: 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.
ROGAN: 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.
ROGAN: 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?"
(LAUGHTER)
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.
RUFF: 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.
*** Eastern Time 17:16 ***
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.
CANADY: 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.
RUFF: 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.
RUFF: 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.
*** Eastern Time 17:23 ***
HYDE: 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.
MCCOLLUM: 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.
Thank you.
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.
REHNQUIST: 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.
HYDE: 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.
RUFF: 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.
MCCOLLUM: 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.
MCCOLLUM: 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.
MILLS: 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.
MILLS: 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?
RUFF: 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.
RUFF: 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.
END
Testimony
index
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