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Clinton impeachment trial transcripts — January 25, 1999
The following transcript was provided to Court TV by Federal Document Clearing House:
SENATE IMPEACHMENT TRIAL OF PRESIDENT CLINTON
*** Elapsed Time 00:00, Eastern Time 01:03 ***
JANUARY 25, 1999
SPEAKERS: WILLIAM REHNQUIST, CHIEF JUSTICE, U.S. SUPREME COURT
U.S. SENATOR TRENT LOTT (R-MS), MAJORITY LEADER
REVEREND LLOYD OGILVIE, SENATE CHAPLAIN
U.S. SENATOR THOMAS DASCHLE (D-SD), MINORITY LEADER
APPEARING ON BEHALF OF THE HOUSE OF REPRESENTATIVES:
U.S. REPRESENTATIVE HENRY J. HYDE (R-IL)
U.S. REPRESENTATIVE F. JAMES SENSENBRENNER (R-WI)
U.S. REPRESENTATIVE BILL MCCOLLUM (R-FL)
U.S. REPRESENTATIVE GEORGE W. GEKAS (R-PA)
U.S. REPRESENTATIVE CHARLES T. CANADY (R-FL)
U.S. REPRESENTATIVE STEPHEN E. BUYER (R-IN)
U.S. REPRESENTATIVE ED BRYANT (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 E. ROGAN (R-CA)
U.S. REPRESENTATIVE LINDSEY O. GRAHAM (R-SC)
APPEARING ON BEHALF OF THE PRESIDENT:
CHARLES F.C. RUFF, WHITE HOUSE COUNSEL
GREGORY B. CRAIG, WHITE HOUSE COUNSEL
BRUCE R. LINDSEY, WHITE HOUSE COUNSEL
CHERYL D. MILLS, WHITE HOUSE COUNSEL
LANNY A. BREUER, WHITE HOUSE COUNSEL
DAVID E. KENDALL, ATTORNEY FOR PRESIDENT CLINTON
NICOLE K. SELIGMAN, ATTORNEY FOR PRESIDENT CLINTON
EMMET T. FLOOD, ATTORNEY FOR PRESIDENT CLINTON
MAX STIER, ATTORNEY FOR PRESIDENT CLINTON
GLEN DONATH, ATTORNEY FOR PRESIDENT CLINTON
ALICIA MARTI, ATTORNEY FOR PRESIDENT CLINTON
REHNQUIST: The Senate will convene as a court of impeachment.
The chaplain will offer a prayer.
OGILVIE: Dear God, we are moved by your accessibility to us and
our accountability to you. We hear your promise sounding in our
souls: be not afraid, I am with you. We place our trust in your
problem-solving power, your conflict-resolving presence, and your
anxiety-dissolving peace.
So we report in to you for duty. What you desire, you inspire.
What you guide, you provide. This is your nation. We are here to
serve you.
Just as Daniel Webster said that the greatest conviction of his
life was that he was accountable to you, we press on with a heightened
awareness that you are the unseen lord of this chamber, the silent
listener to every word that is spoken, the judge of our deliberations
and decisions.
OGILVIE: Bless the senators with the assurance that Your work,
done with total trust in You and respect for each other, will not lack
for Your resources. Surpass any impasse with divinely inspired
solutions. You are our Lord and Saviour. Amen.
REHNQUIST: Amen.
The sergeant-at-arms will make the -- the sergeant-at-arms will
make the proclamation.
SERGEANT-AT-ARMS: Hear ye, hear ye, hear ye. All persons are
commanded to keep silent on pain of imprisonment while the Senate of
the United States is sitting for the trial of the articles of
impeachment exhibited by the House of Representatives against William
Jefferson Clinton, president of the United States.
REHNQUIST: If there's no objection, the journal of proceedings
of the trial are approved to date. Pursuant to the provision of
Senate Resolution 16, there are six hours and 33 minutes remaining
during which senators may submit questions in writing directed to
either the managers on the part of the House of Representatives or the
counsel for the president.
The majority leader is recognized.
LOTT: Thank you, Mr. Chief Justice. As is obvious by the
absence of the managers and the counsel and a number of the senators,
the two parties are still meeting in conference at this time. I
believe we're close to reaching an agreement which would outline
today's impeachment proceedings, but we'll probably be an hour or so
before we can complete that because we need to explain it in detail to
our respective conferences and also make sure we've reduced it to
writing where we understand exactly what we're agreeing to.
LOTT: But will probably be an hour or so before we can complete
that because we need to explain it in detail to our respective
conference and conferences. And also make sure that we have reduced
it to writing where we understand exactly what we're agreeing to.
I will, in a moment, ask that the Senate stand in recess until 2
p.m. I apologize for any inconvenience to senators or the chief
justice, but I think that what we're discussing, in the long run,
would save some time and lead us to a fair procedure through the
balance of the day and how we begin even tomorrow.
Therefore, now, I ask unanimous consent, the Senate stand in
recess until 2 p.m.
REHNQUIST: Without objection...
U.S. SENATOR JUDD GREGG (R-NH): Right to object.
REHNQUIST: The senator from New Hampshire.
U.S. SENATOR PATRICK LEAHY (D-VT): Mr. Chief Justice, I have a parliamentary inquiry I'd like to submit to the chair.
REHNQUIST: It requires -- parliamentarian says it takes
unanimous consent.
GREGG: Well, I would ask unanimous consent to ask
the chair...
LEAHY: Reserving the right to object, I believe that
that is going to be made, Mr. Chief Justice, so that it does require
unanimous consent, that it would be wise if it could be done at a time
when both leaders are on the floor.
GREGG: Well, I'll withdraw my initial question.
LEAHY: The Democratic leader, I would note, is not
on the floor.
GREGG: (OFF-MIKE) my request.
REHNQUIST: Without objection and the Senate stands at recess
until 2 p.m.
(RECESS)
REHNQUIST: The Senate will be in order.
LOTT: Mr. Chief Justice.
REHNQUIST: The chair recognizes the majority leader.
LOTT: Mr. Chief Justice, it's my understanding that the
question-and-answer period is now completed. In a moment I will
propound a unanimous consent agreement that will outline the next
steps in this process.
In the meantime, I would ask unanimous consent that senators be
allowed to submit statements and introduce legislation at the desk
today. I further ask consent that when the Senate completes its
business today it stand in adjournment until 1 p.m. on Tuesday to
resume the articles of impeachment.
REHNQUIST: Without objection, it's so ordered.
MIKULSKI: I note that the Democratic leader isn't on the floor.
May I inquire, has this been cleared?
LOTT: And I just want to observe, Mr. Chief Justice, that there
are still some discussions underway. You'll note that Senator Daschle
is not here. And unless there's an objection to what I just did, I'm
prepared to move -- or observe the absence of a quorum so that we...
MIKULSKI: Point of...
LOTT: ... can have time for the senators to return to the (OFF-
MIKE) chamber.
MIKULSKI: Point of clarification to the majority leader. Did
you say that we would come in tomorrow at 1? Because there was
some...
LOTT: I did. There had been -- if I might respond, Mr. Chief
Justice -- there had been some discussion about coming in earlier, but
because of a number of conflicts that I understand from the House
managers and concerns that we would need that time to continue to have
discussions, we thought we'd go ahead and come in at 1.
But, let me add that if during the process of the day there's a
decision we'd need to change that either earlier or later, we can
revise that request. This is just to move the process forward as we
have announced each day we'd come in at 1 except on Saturday. But if
there's a need to change the time, we'll certainly be very considerate
of that request.
MIKULSKI: Mr. Chief Justice, I thank the majority leader.
LOTT: Mr. Chief Justice, I suggest the absence of a quorum.
REHNQUIST: The clerk will call the roll.
CLERK: Mr. Abraham.
Mr. Akaka.
Mr. Allard.
Mr. Ashcroft.
Mr. Baucus.
Mr. Bayh.
Mr. Bennett.
Mr. Biden.
Mr. Biden.
CLERK: Mr. Bingaman.
Mr. Bond.
Mrs. Boxer.
Mr. Breaux.
Mr. Brownback.
CLERK: Mr. Brownback.
Mr. Bryan.
Mr. Bunning.
Mr. Burns.
Mr. Byrd.
Mr. Campbell.
Mr. Chafee.
Mr. Chafee.
CLERK: Mr. Cleland.
Mr. Cochran.
Ms. Collins.
Mr. Conrad.
Mr. Coverdell.
Mr. Coverdell.
CLERK: Mr. Craig.
Mr. Crapo.
Mr. Daschle.
Mr. DeWine.
Mr. DeWine.
CLERK: Mr. Dodd.
Mr. Domenici.
Mr. Domenici.
CLERK: Mr. Dorgan.
Mr. Durbin.
Mr. Edwards.
Mr. Enzi.
Mr. Feingold.
Mrs. Feinstein.
Mr. Fitzgerald.
Mr. Frist.
Mr. Gorton.
Mr. Graham of Florida.
Mr. Gramm of Texas.
Mr. Grams of Minnesota.
Mr. Grassley.
Mr. Gregg.
Mr. Hagel.
Mr. Harkin.
Mr. Hatch.
Mr. Helms.
Mr. Hollings.
Mr. Hutchinson of Arkansas.
Mrs. Hutchison of Texas.
Mr. Imhofe.
Mr. Inouye.
Mr. Jeffords.
Mr. Johnson.
Mr. Kennedy.
Mr. Kerrey of Nebraska.
Mr. Kerry of Massachusetts.
Mr. Kohl.
Mr. Kyl.
Ms. Landrieu.
Mr. Lautenberg.
Mr. Leahy.
Mr. Levin.
Mr. Lieberman.
Mrs. Lincoln (ph).
Mr. Lott.
Mr. Lugar.
Mr. Mack.
Mr. McCain.
Mr. McConnell.
Ms. Mikulski.
Mr. Moynihan.
Mr. Murkowski.
Mrs. Murray.
Mr. Nickles.
Mr. Reed of Rhode Island.
Mr. Reid of Nevada.
LOTT: Mr. Chief Justice?
REHNQUIST: The chair recognizes the majority leader.
LOTT: I ask consent that the quorum call be dispensed with.
REHNQUIST: Without objection.
LOTT: Mr. Chief Justice, I had earlier asked for a couple of
unanimous consent requests, but the Democratic leader was not on the
floor and it was not officially objected to or officially ruled as not
having been objected to.
LOTT: So I'm going to assume that that was all null and void,
we're going to start over again.
REHNQUIST: The request -- what?
The requests are withdrawn.
LOTT: Now, to repeat what we had earlier discussed and make sure
that members understand it, it is our understanding and our agreement
that the question-and-answer period is now completed, and I will now
propound a unanimous consent request that would allow senators to
submit statements and introduce legislation at the desk today.
REHNQUIST: Without objection, it's so ordered.
LOTT: With regard to the time that will be involved today and
the time that we will come in on Tuesday, we will have further
discussions on that, and we'll have a consent request on that later on
in the day or at the close of business.
Now I have a unanimous consent request that would allow us to
have a clear understanding and an orderly procedure for the balance of
the day.
I have discussed this with my counterpart on the other side of
the aisle. Both conferences have had a change to talk about it. I
think it's a fair way to proceed where we would have a chance to
discuss the issues that are before us and get us to a conclusion of
this part of the impeachment proceedings in a logical way.
LOTT: First, Mr. Chief Justice, I ask unanimous consent that
following the conclusion of the arguments by the managers and the
counsel today on the motion to dismiss -- and I note that the next
order of business is two hours equally divided, one hour on each side
on a motion dismiss, when and if it is filed by any senator, and after
that it'd be in order for Senator Harkin to open all debate, pursuant
to his motion timely filed, and that the Senate proceed immediately to
the vote pursuant to the impeachment rules.
I further ask that following that vote, if defeated, it be in
order to move to close the session for deliberations on the motion to
dismiss as provided under the rule -- impeachment rules, and the
Senate proceed to an immediately vote.
I further ask that if the Senate votes to proceed to closed
session, that those deliberations must conclude by the close of
business today, notwithstanding the ten-minute rule allocated under
the impeachment rule.
(UNKNOWN): Is there objection?
REHNQUIST: Is there objection?
HARKIN: Mr. Chief Justice?
REHNQUIST: The senator from Iowa.
HARKIN: Reserving the right to object.
LOTT: Mr. Chief Justice, does he reserve the right to object or
did he object?
REHNQUIST: The parliamentarian tells me the senator does not
have the right to reserve the right to object.
HARKIN: Mr. Chief Justice, I just have modification that I would
like to discuss with the leader. It's just a brief modification of
that that would not in gender and not objection.
REHNQUIST: Is...
LOTT: Mr. Chief Justice, so that we can consider this in an
appropriate manner, I would suggest the absence of a quorum.
REHNQUIST: The clerk will call the roll.
(CLERK: QUORUM CALL)
LOTT: Mr. Chief Justice?
REHNQUIST: The chair recognizes the majority leader.
LOTT: Mr. Chief Justice, I ask that senators return to their
desks and after a great deal of conversation I would like to amend my
unanimous consent...
REHNQUIST: A quorum call is in process.
LOTT: I ask that the quorum call be dismissed (OFF-MIKE).
REHNQUIST: Without objection, it's so ordered.
LOTT: And I renew my request as previously outlined, with one
change and that is that it say in the first sentence, the unanimous
consent that following the conclusion of the arguments by the managers
and the counsel today on the motion to dismiss, that it be in order
for Senator Harkin to make a motion to open that debate, in stead of
"all," the word is "that" debate.
With that and no other changes, and I renew the request.
HARKIN: Mr. Chief Justice?
REHNQUIST: Is there objection?
HARKIN: Mr. Chief Justice.
REHNQUIST: The Senator from Iowa.
HARKIN: Mr. Chief Justice ...
(UNKNOWN): The (OFF-MIKE) gone (OFF-MIKE), Mr. Chief Justice.
REHNQUIST: OK, in the -- the Senator from Wisconsin.
FEINGOLD: Mr. Chief Justice, I object.
REHNQUIST: Objection is heard.
LOTT: Mr. Chief Justice, I would like to suggest a quorum again.
REHNQUIST: The clerk will call the roll.
(CLERK: QUORUM CALL)
LOTT: Mr. Chief Justice.
REHNQUIST: The chair recognizes the majority leader.
LOTT: Welcome to the operations of the United States Senate.
(LAUGHTER)
I observe the absence of a quorum -- of -- I ask that it be
dispensed with.
OK, I ask that it be dispensed with, Mr. Chief Justice.
REHNQUIST: There is -- without objection, it's so ordered.
LOTT: And Mr. Chief Justice, was the unanimous consent agreement
agreed to?
REHNQUIST: Not yet.
LOTT: I renew my request.
(LAUGHTER)
FEINGOLD: Mr. Chief Justice.
REHNQUIST: Objection is heard.
FEINGOLD: Chief Justice, I ask -- I and Senator Collins, the
junior senator from Maine, ask unanimous consent that when the Senate
considers the anticipated motion to dismiss that it shall vote on two
separate questions.
First, whether to dismiss Article I of the articles of
impeachment and second, whether it should dismiss Article II of the...
REHNQUIST: (OFF-MIKE) There's a pending request for unanimous
consent by the majority leader who has not surrendered the floor.
LOTT: Mr. Chief Justice, under his reservation, if the senator
would yield to me, I believe that, if we can get this agreed to, you
could make your request and then it could be ruled on.
Mr. Chief Justice, I would yield the floor, if the senator would
like to proceed in that fashion.
FEINGOLD: But simply, Mr. Chief Justice?
REHNQUIST: Yes, Mr. Feingold.
LOTT: I renew my request then for the unanimous consent to
questions outlined earlier.
REHNQUIST: Is there objection? In the absence of objection, it
is so ordered.
FEINGOLD: Mr. Chief Justice?
REHNQUIST: The senator from Wisconsin.
FEINGOLD: I simply renew my request, along with the junior
senator from Maine, a unanimous consent request that when the Senate
proceeds to vote on the anticipated motion to dismiss that the
question be divided into a separate vote on Article I of the articles
of impeachment and then a separate vote on Article II of the articles
of impeachment.
REHNQUIST: Is there objection?
An objection is heard.
LOTT: Mr. Chief Justice, now if I could outline the results of
our efforts there -- and I want to thank Senator Daschle and my
colleagues on his side of the aisle and this side of the aisle to try
to come up with a process that's fair, that would give us an
opportunity to debate today this important issue.
It's never easy to get 100 senators to agree on a method to
proceed, so I think this was a good accomplishment, and I thank one
and all.
I understand now that Senator Byrd will offer the motion to
dismiss. For the information of all the members, once that motion is
offered, there will then be two hours for debate. The House managers
will be recognized to open the debate, and then following that, the
White House arguments, the House managers will be recognized again for
closing remarks.
At that point, the consent agreement would apply. I would
anticipate taking our first break at the conclusion of the first two
hours of arguments by the managers unless there's an urgent need to do
so earlier. And, of course, the arguments by the managers and the
White House. And then we would go forward with this agreement which
would require the vote on the Harkin motion to open the debate, the
vote on the amendment to close floor debate on the motion to dismiss
and then the debate which would go on, 10-minute rule notwithstanding,
until the close of business today.
I yield the floor to Mr. Chief Justice.
REHNQUIST: The chair recognizes the senator from West Virginia.
BYRD: Mr. Chief Justice, I send a motion in writing to the
bench.
REHNQUIST: The clerk will read the motion.
CLERK: The senator from West Virginia, Mr. Byrd, moves that the
impeachment proceedings against William Jefferson Clinton, president
of the United States, be and the same are duly dismissed.
REHNQUIST: Pursuant to Rule 21 of the Senate Rules on
Impeachment, the managers on the part of the House of Representatives
and the counsel for the president each have up to one hour to argue
the motion.
The chair recognizes the House managers.
CANADY: Mr. Chief Justice, members of the Senate, on behalf of
the House of Representatives, I rise to speak in opposition to the
motion to dismiss.
CANADY: During the hour allotted to the managers, I will offer a
few introductory comments concerning why adoption of the motion would
be inconsistent with constitutional standards and harmful to the
institutions of our government.
Mr. Hutchinson, Mr. Graham and Mr. Gekas will present argument
concerning the facts in the law, then Mr. Hyde will close. At the
outset, I must urge you to consider the fact that this motion to
dismiss is without precedent.
The Senate has never, not once in the more than 200-year history
of our Constitution, dismissed a proceeding against an official who
remained in office after impeachment by the House of Representatives.
I humbly urge you not to depart from the Senate's well-
established practice of fully considering cases of impeachment and
rendering a judgment of either conviction or acquittal.
In the midst of the great differences between the president's
counsel and the House managers, there actually is at least a little
common ground.
CANADY: Both sides agree that the impeachment and removal power
is designed to protect the well being of the institutions of our
government. But there's a critical difference that divides us, as is
obvious from the argument that has gone before.
The managers have argued that this power, the power of
impeachment and removal, is a positive power granted by the
Constitution to maintain the integrity of government, a power to
preserve, protect and strengthen our constitutional system against the
misconduct of officials that would subvert, undermine or weaken the
institutions of our government.
The president's lawyers, on the other hand, advance a much
narrower view of the role of the impeachment power in protecting our
institutions. Their case works (ph) on the argument that is a power
to be used only in response to conduct threatening devastating harm to
the system of government, at least when it is used against a
president.
But I would submit to you that Alexander Hamilton did not
contemplate that the impeachment process would be so restricted when
he spoke of it as a method of national inquest into the conduct of
public men.
And James Aradell (ph) did not have such a narrow view in mind
when he spoke of the accountability through impeachment of anyone who
willfully abuses his trust.
CANADY: Aradell (ph) did not have such a limited view when he
spoke of the impeachment of a president who, as he said, acted from
some corrupt motive or other.
Now under the standards urged by the president's lawyers, the
misdeeds of Richard Nixon would not meet the threshold for impeachment
and removal. What he did was corrupt. The legal rights of citizens
were treated with contempt. President Nixon showed an egregious lack
of respect for the law. But all these misdeeds did not threaten the
sort of ruinous harm to the system of government that the president's
lawyers argue would be required to justify conviction and removal.
After all, the court charges against President Nixon related to the
cover-up of a third-rate burglary.
Members of the Senate, as you consider the motion to dismiss, I
ask you to pause and to reflect on the consequences of the standard
advocated by the president's lawyers. Consider the consequences for
the system of justice of allowing the president's dangerous example of
lawlessness to stand. Consider the consequences for the presidency
itself.
I respectfully submit to you the standard advocated by President
Clinton's lawyers will debase and degrade the institution of the
presidency.
CANADY: I know that is not the intention of the president's
lawyers. But it is the necessary consequence of their position.
Only 42 men have held the office of president of the United
States. Some of them have been ordinary men of limited talent. A
handful of our presidents have been great men. Most have been capable
men who brought special skills to the office.
No matter what our individual judgments may be concerning
President Clinton, it is clear that he is one of the most
intellectually gifted and politically skilled men to hold the office
of president.
He was raised to this great eminence, the most powerful office in
the greatest nation in the history of the world, an unparalleled
opportunity, honor and privilege. And in this position of eminence
and honor, and in this position of trust, what did he do? He made a
series of choices that has brought us to this day.
He made the choice to violate the law. And he made that choice
repeatedly. He knew what he was doing. He reflected on it. Perhaps
he struggled with his conscience. But when the time came to decide,
he deliberately and willfully chose to violate the laws of this land.
CANADY: He chose to turn his back on the very law he was sworn
to uphold. He chose to turn his back on his solemn oath of office.
He chose to turn his back on his constitutional duty.
As you deliberate on this motion, I ask you to consider what
William Jefferson Clinton has done to the integrity of the great
office he holds as a trust. I ask you to consider the harm he has
caused, the indignity he has brought to the institution of the
presidency.
Some have ask of us: where is the compassion, where is the spirit
of forgiveness? Now, let me say that I for one believe in
forgiveness. Without forgiveness, what hope would there be for any of
us. But forgiveness requires repentance. It requires contrition.
And so I must ask: where is the repentance? Where is the contrition?
It is true the president has expressed regret for his personal
misconduct, but he has never, he has never accepted responsibility for
breaking the law. He has never taken that essential step, as he
argument advanced so vigorously by his counsel makes clear, he has
refused to accept responsibility for breaking the law. He has
stubbornly resisted any effort to be held accountable for his
violation of the law, for his violation of his constitutional oath,
and his violation of his duty as president.
CANADY: To this day, he remains adamantly unrepentant.
And of course, under our system of justice, even sincere
repentance, which is so lacking here, does not eliminate all
accountability. Now, in the discussion thus far, the debate has
brought the concept of proportionality to the fore from time to time.
You have been urged to reject your own precedents -- the clear
precedents establishing that crimes such as lying under oath justify
conviction and removal.
The principle of proportionality, it has been urged, requires
that the rule you have applied to federal judges not be applied to the
president of the United States. I will be the first to concede that
removing a president of the United States is without doubt a more
momentous decision than removing one of the hundreds of federal judges
that hold office in this country. When the chief executive is
removed, the gravity of the matter undeniably reaches a higher level.
But it is also true and it must not be forgotten that when the
president engages in a calculated and sustained course of conduct
involving obstruction of justice and perjury, the gravity of the
consequences for the nation also reaches a far higher level.
*** Eastern Time 15:00 ***
CANADY: Such lawless conduct by the president does immeasurably
more to subvert public respect for the law than does the misconduct of
any federal judge or any other federal official.
As has been pointed out more than once, the Constitution contains
a single standard for impeachment and removal of all civil officers.
There is not one standard for the president and another standard for
everyone else.
There is nothing in the Constitution that requires you or allows
you to set a lower standard of integrity for the president than the
standard you have set for other officials who have been convicted and
removed by your solemn action.
Now, although, the -- they can point to nothing in the
Constitution. The president's lawyers assert that the president is
simply different because he is elected. To that, let me say this:
The Senate itself has established a standard of integrity for its own
elected members that President Clinton could not meet.
As recently as 1995, an elected senator resigned under imminent
threat of expulsion for offenses that included acts similar to the
acts of obstruction of justice committed by President Clinton.
CANADY: Senator Robert Packwood was elected, yet he was on his
way to certain expulsion. Listen to what the committee, the Senate
Select Committee on Ethics had to say about Senator Packwood's
conduct: "He was guilty," the committee found, "of withholding,
altering and destroying relevant evidence -- conduct which is
expressly prohibited by 18 United States Code section 1505.
"Senator Packwood's illegal acts," they said, "constitute a
violation of his duty of trust to the Senate and an abuse of his
position as a United States senator, reflecting discredit upon the
United States Senate."
The statute referred to by the committee in the Packwood case is
closely analogous to the obstruction of justice statute the president
has violated. Senator Packwood unlawfully sought to impede the
discovery of evidence. President Clinton has done the same thing.
For his violation of the law, Senator Packwood, an elected
senator, was judged worthy of expulsion from the Senate. But the
president's lawyers argue the president should be held to a lower
standard of integrity than the standard you have set for yourselves as
members of this Senate.
According to them, the Constitution establishes a lower standard
of integrity for the president than the standard for senators, a lower
standard than the standard for federal judges, and a lower standard
than the standard for members of the armed forces of the United
States.
CANADY: Ladies and gentlemen of the Senate, I submit to you that
the president's lawyers, honorable as they are, are simply wrong.
They advocate an arbitrary standard that would insulate the president
from the proper accountability for his misconduct under our
Constitution. Our Constitution does not establish a lower standard of
integrity for the president of the United States.
The Senate, I respectfully submit to you, should follow the well
established precedent of the Senate. The Senate should reject the
motion to dismiss.
Mr. Hutchinson.
REHNQUIST: The chair recognizes Mr. Hutchinson.
HUTCHINSON: Mr. Chief Justice, how much time has expired?
(UNKNOWN): Twelve minutes.
REHNQUIST: Twelve minutes.
HUTCHINSON: Mr. Chief Justice, ladies and gentlemen of the
Senate, in my former life, when I tried cases, the defense counsel
would routinely offer a motion to dismiss.
HUTCHINSON: And my clients would get excited and ask how they
argue to dismiss a case before he's had a chance to present evidence.
I would always explain that there's more than sufficient evidence to
get this case to a jury, and you don't have to worry.
We all know that granting a motion to dismiss is a weapon that is
rarely used in court. It is severe remedy that cuts off an
individual's right to seek justice in court. For that reason, a
motion to dismiss must fail if there's any substantial evidence to
support the case.
In addition, as you evaluate evidence, under a motion to dismiss,
the facts are to be considered in a way that's most favorable to the
respondents -- in that case, the House managers.
For example, if there's a dispute between the testimony of Ms.
Lewinsky and the president, in consideration of this, I would urge you
and believe that under proper rules that you should consider that in
the favor of the theory of the articles of impeachment.
Now, it has been explained to me many times that standard
courtroom rules do not apply in the United States Senate. But still,
granting a motion to dismiss by the Senate has the same effect to cut
short the trial and avoid the development of the facts as it would in
any state court case.
And in this case of impeachment, the House of Representatives
found that there was substantial evidence to support these articles.
HUTCHINSON: And the Senate should not summarily dismiss the
charges. And I might add that despite Mr. Ruff's references, that the
House standard for the articles of impeachment was not simply probable
cause. My colleagues on the Judiciary Committee looked at it in a
much higher standard of clear and convincing evidence.
But coming back to the Senate, to dismiss the case would be
unprecedented from a historical standpoint because it's never been
done before. It would be damaging to the Constitution because the
Senate would fail to try the case. It would be harmful to the body
politic because there is no resolution of the issues of the case. But
most importantly, it would show willful blindness to the evidentiary
record that has thus far been presented.
Now, an appropriate question that you might ask is: How should
you decide whether this motion should be granted? I would contend
that you should decide this issue based upon the facts that you have
before you in the record and not on any other criteria. A motion to
dismiss should not be granted because you do not think there are
presently enough votes for conviction.
Now, let me assure you that I want this over. As Bruce Lindsey
sitting over here will probably attest, this is bad for me
politically.
HUTCHINSON: I am from Arkansas, the state Bill Clinton dominated
politically for years and certainly our most influential politician.
But we do have our responsibilities, and I happen to believe that we
should follow the process which is dictated by the Constitution and
the facts.
I know I'm making legal arguments to this court of impeachment,
which I understand you make your own rules, and I respect that. But
as opposing counsel has pointed out on many occasions, there are
reasons for these rules of procedure, and they have relevance to your
deliberation today.
Again, your decision should be based upon the facts, and so
let's discuss the facts. Does the record support the charges of
obstruction of justice and perjury?
To look at this from a different angle, because we've talked
about it at length, let's examine how the president responded to
critical developments in the federal civil rights case in which he was
a defendant. First, how did he handle those people he knew to be
witnesses?
The president did not want them to testify, and if they did
testify, he did not want them to testify truthfully.
Two of those witnesses were Monica Lewinsky and Betty Currie.
Clearly, he did not want them to testify in the federal civil rights
case, and likewise, his lawyers today do not want those witnesses to
testify before this body.
HUTCHINSON: Now, let's look at what happened when the president
learned that Monica Lewinsky was on the witness list. Very quickly.
It was December 5 that the witness list came in. He learned about it
probably the next day, December 6. Monica Lewinsky visited with him,
said Vernon Jordan was not doing very much on the job front. The
president response is: OK, I'll talk to him, I'll get on it.
Now, Ms. Lewinsky assumed that was a brush-off, but he was
serious about it because he later learned that day that -- at the
latest he learned later that day that Monica was on the witness list
when he met with the lawyers.
After that, the next day he meets with Vernon Jordan at the White
House. And even though Mr. Jordan says he thinks it was unlikely that
the job situation was discussed, Mr. Jordan makes it clear that he
ultimately went to work to get Ms. Lewinsky a job at the direction of
the president.
According to Mr. Jordan's grand jury testimony in June 9, he
testified: "The president asked me to get Monica Lewinsky a job."
That is undisputed. He testified in the same grand jury: "He" --
referring to the president -- "is the source of it coming to my
attention in the first place."
And so as the result of the president's request, Vernon Jordan
got to work, met with Ms. Lewinsky, assisted her in securing key job
interviews, and kept the president informed.
HUTCHINSON: The job search became critical when she was put on
the witness list on December 5, and the December 11 order of Judge
Wright served to reinforce the urgency of the matter.
Now, all of this was happening when the president knew she was a
witness in the civil rights case. But the individuals affected by the
president's unlawful scheme of obstruction may not have been privy to
his plans.
He kept Ms. Lensly (ph) -- Ms. Lewinsky in the dark about her
being a witness until he had the job search well underway. And Mr.
Jordan indicates that he was simply trying to get Ms. Lewinsky a job
at the direction of the president without any clue that she was
witness until she got the subpoena on December 19.
Now, the president kept this information about Ms. Lewinsky on
the list away from her until he called her at 2 a.m. in the morning on
December 17 and to let her know the news.
So, how does the president handle witnesses in the judicial
system that are a danger to him? He wanted to make sure that they
were taken care and cooperative in concealing the truth from the
courts.
The next critical step for the president to assure that Ms.
Lewinsky sticks with her predesigned cover story was that she would
not deviate from that even though they were now in the court system.
HUTCHINSON: Vernon Jordan testified in the grand jury that it
didn't take an Einstein to know that when she was under subpoena, the
circumstances changed. And of course, that is clear.
When Ms. Lewinsky was placed on the witness list, the truth
became a threat to the president. He tried to avoid the truth at all
cost and was willing to obstruct the legal processes of the judicial
system in order to protect himself. The obstruction started with the
job favors and then continued through the December 17th conversation
with the president, when the president encouraged her to keep using
the cover stories, even though she would be under oath as a witness;
encouraged her to sign a false affidavit.
And then on December 28th, according to the testimony of Ms.
Lewinsky, the president sent Betty Currie to retrieve items of
evidence for the purpose of concealment and with the obvious effect of
obstructing the truth.
Despite the concerted effort of the president in keeping Monica
Lewinsky from being a truthful witness, the president was not yet home
free. He still had to go through the hurdle of his own deposition on
January 17th. And even though he knew that there were going to be
questions about Monica Lewinsky, he was hopeful that the false
affidavit, the representations of his attorney Robert Bennett, and the
president's own affirmation of the false affidavit would be sufficient
to prevent questioning about Ms. Lewinsky.
*** Eastern Time 15:13 ***
HUTCHINSON: But it didn't work. Despite this effort, the
federal District Court judge ordered the president to respond to the
questions.
At that point he had a choice: He could tell the truth under
oath or he could provide false statements. He chose the latter, and
that decision forced a continued pattern of obstruction.
During the deposition, he asserted the name of Betty Currie at
least six times. And by doing so, he dared the plaintiff's lawyers to
question Ms. Currie as a witness. They knew it, and he knew it.
When the Jones lawyers returned from the deposition, they
immediately set about issuing a subpoena for Betty Currie. And what
did the president do? He immediately set about attempting to assure
that Betty Currie would not state the truth when called as a witness.
They defended this that, well, she wasn't a witness. She wasn't
a prospective witness. But yet we produced a subpoena that she was a
prospective witness and they wanted her to testify, and everyone knew
it. The president called her at home, arranged for her to come in the
next day, put her through the questioning -- he was never alone with
Monica. Trying to establish that, that Monica was the aggressor and
that the president did nothing wrong.
HUTCHINSON: That was what he was trying to accomplish through
his questioning of Betty Currie.
Can you imagine how uncomfortable Betty Currie was, must have
felt, on that occasion, being called in to see her boss, then having
the president recreate a fictional account in order to prevent the
truth from coming out in a court of law.
But once was not enough, and two days later Ms. Betty Currie was
brought in for the same series of questions. The message was clear:
you've got to cover for the president, even though the purpose was
unlawful.
And so we see a pattern develop. When it comes to a witness,
whether it's Monica Lewinsky or Betty Currie, the choice is made, the
president encouraged the witness to lie and the president chose to
impede the administration of justice rather than assuring that the
laws be faithfully executed.
But the president had one final choice, and that was in his grand
jury testimony in August. At this point the embarrassment of the
relationship was public and that could no longer serve as an excuse
not to tell the truth. But once again the president chose not to
abide by his oath, but to evade the truth and to provide false
statements -- not to protect his family, not to preserve the dignity
of the presidency, but to prevent the grand jury from knowing the
truth in their investigation and to continue the cover-up began during
the truth-seeking process in the civil rights case.
HUTCHINSON: I do not have time to cover all the facts, but they
are more than substantial. They are compelling and they are
convicting.
Let me leave you with some questions. First of all, who asked
Vernon Jordan to get Monica Lewinsky a job? The answer: It was the
president. Secondly, who suggested that Monica Lewinsky sign an
affidavit to avoid testifying in the civil rights case, which by its
nature had to be false? The answer: It was the president. Who
obstructed the truth when Monica Lewinsky was subpoenaed as the
witness? It was the president.
Who impeded the gathering of evidence when the federal court
subpoena called for the production of gifts? The answer: It was the
president. Who tampered with the testimony of Betty Currie when it
was clear she was a witness in the case? It was the president. Who
took an oath and failed to tell the truth before the courts of our
land? It was the president.
I state these facts with sadness, but these facts are true. The
motion should be defeated. I thank the Senate. On behalf of the
managers, Mr. Chief Justice, I reserve the balance of the time.
REHNQUIST: Very well. The chair recognizes counsel for the
president.
SELIGMAN: Mr. Chief Justice, ladies and gentlemen of the Senate,
distinguished House managers, good afternoon. My name is Nicole
Seligman. I'm a member of the law firm of Williams & Connolly here in
Washington, D.C. I've been privileged to represent President Clinton
as personal counsel since 1994.
I am honored to stand before you today to argue in support of the
motion to dismiss the impeachment proceedings that has been offered by
the senior senator from West Virginia, Senator Byrd.
The Constitution repossesses in this body and nowhere else the
sole authority to try impeachments. It has placed in your hands alone
the decision whether to dismiss now or to go forward.
SELIGMAN: There is no judicial review. There is no judicial
guidance, other than that which each of you in your wisdom may choose
to apply by analogy from judicial experience.
There are no particular rules of civil or criminal procedure that
you must follow. The Constitution has freed you from that. It has
wisely placed in your hands alone the ability to make a sound judgment
in the manner you think best, for the reasons you think best, based on
your wisdom and experience as to what is best for this nation at this
moment in the proceedings.
We submit to you that the moment has arrived where the best
interests of the nation, the wise prescription of the framers, and the
failure of the managers' proof all point to dismissal.
You have listened, you have heard -- the case cannot be made.
SELIGMAN: It is time to end it. Without presuming to infringe
on the constitutional authority that is yours alone, and without
repeating at undue length the arguments that you've heard over the
past few weeks, I do want to set out briefly the reasons that we
believe an early and fair disposition of this difficult matter on
which they might rest.
There are at least four such grounds. Each one stands by itself
as sufficient reason to vote for the motion of Senator Byrd.
The first ground is the core constitutional issue before you --
the failure of the articles to charge impeachable offenses. They do
not do so. They do not allege conduct that if proven violated the
public trust in the manner the framers intended when they wrote the
words "treason, bribery, or other high crimes and misdemeanors."
For absent an element of immediate danger to the state, a danger
of such magnitude that it cannot await resolution by the electorate in
the normal cycle, the framers intended restraint. There is no such
danger to the state here.
SELIGMAN: No one has made that claim or could or would. A vote
for the motion is a vote for constitutional stability.
Impeachment was never meant to be just another weapon in the
arsenal of partisanship. By definition, a partisan split like that
which accompanied these articles from the House of Representatives
creates doubt that makes plain the constitutional error of the course
that we are on.
As Senator William Pitt Fesendon (ph) wrote 130 years ago, on a
great and decisive historical occasion, the impeachment trial of
Andrew Johnson, "conviction upon impeachment should be free from the
taint of party and leave no ground for suspicion upon the motives of
those who inflict the penalty."
His words echoed those of Alexander Hamilton, who in the much-
quoted Federalist 65 had warned, in his words, of the greatest danger
that the decision, that is, the decision by the Senate, will be
regulated more by the comparative strength of the parties than by the
real demonstrations of innocence or guilt.
Now, Mr. Manager Graham has candidly acknowledged that reasonable
people could disagree about the propriety of removal. He said they
absolutely could. We suggest to you that there can be no removal when
even the prosecutor agrees that such reasonable doubts exist.
SELIGMAN: If reasonable people can disagree, we suggest to you
that reasonable senators should dismiss. The constitutional standard
for impeachment is not met here.
The second and third grounds we offer to you relate to the deeply
flawed drafting of the articles by the House of Representatives. They
have left the House managers free to fill what Mr. Ruff described as
an empty vessel to define for the House of Representatives what it
really had in mind when it impeached the president.
But that is not a role that the Constitution allows to be
delegated to the House managers. It is not a role that the
Constitution allows them to fill. It is a role that is explicitly and
uniquely reserved to the full House of Representatives, which under
our Constitution has the sole power to impeach.
SELIGMAN: The articles also are unconstitutionally defective for
yet another reason, because each article combines a menu of charges
and the managers invite the members of this body to convict on one or
more of the charges they list. The result is the deeply troubling
prospect that the president might be convicted and removed from office
without two-thirds of the Senate agreeing on what the president
actually did.
Such a result would be in conflict with the requirement that the
president cannot be convicted unless two-thirds of this body concurs.
The requirements of a two-thirds super-majority is at the core of the
constitutional protection afforded the president and the American
people. The founding fathers were wise to guarantee that protection,
and it has protected the presidency for more than two centuries. The
House must not be allowed to erode that protection today. The
articles as drafted as unconstitutional.
The fourth ground for the motion is based on the facts. Mr.
Manager McCollum has twice asserted that this body must first
determine whether the president committed crimes, and then move on to
the question of removal from office.
*** Eastern Time 15:25 ***
SELIGMAN: Recognizing that each senator is free to choose the
standard of proof that his or her conscience dictates, we submit that,
if the question is, as the managers would have it, whether the
president has committed a crime, that standard should be proof beyond
a reasonable doubt. And it is clear that such a standard, that is
proof to the level of certainty necessary to make the most significant
decisions you face in life, cannot possibly be met here.
The presentations last week demonstrated that the record is full
of exculpatory facts and deeply ambiguous circumstantial evidence that
will make it impossible for the managers to meet this standard or in
fact any standard that you might in good conscience choose to apply
here.
Now, the managers have with great ingenuity spun out theories of
wrongdoing that they have advanced repeatedly, persistently,
passionately. But mere repetition, no matter how dogged, cannot
create a reality where there is none.
SELIGMAN: The factual record is before you. We submit that it
does not approach the kind of case that you would need to justify the
conviction and removal of the president from office.
And calling witnesses is not the answer. All the evidence you
need to make your decision is before you, documented in thousands of
pages of testimony, given under oath or to the FBI agents, and Mr.
Starr's prosecutors, under penalty of law.
These, then, are the four grounds for the motion to dismiss. I
know many of these arguments are not new to you, and I will try to be
brief as I review them.
The question before this body requires solemnity on all of our
parts. It inevitably creates no small measure of apprehension. In
our nation's political history, in our legal history, it is fair to
say that few decisions of such overwhelming magnitude have been
confronted by this body.
There could be no matter more clearly placed in your hands alone
by the Constitution, and on its resolution rests more than the
political fate of William Clinton. There rests the course of our
democracy in the coming years of the new century, and for untold years
thereafter.
SELIGMAN: Constitutional history confirms that the decision --
decision before you was meant to be significant and difficult to make.
It demonstrates that only the most extraordinary of charges warrant
the most extraordinary of outcomes.
Any question, any doubt must be resolved in favor of the
electoral will, for it is the will of the people -- the people who
have all sovereignty in our law -- that in the end is the foundation
of our democracy.
And we submit that the doubt here is pervasive -- doubt about
whether the charged conduct, efforts to conceal a private personal
embarrassment, could reasonably be deemed a violation against the
state at all, let alone a violation so severe as to compel removal;
doubt about the constitutionality of the articles as drafted; doubt
about the sufficiency of the managers' case. And that doubt upon
doubt upon doubt makes a vote to dismiss the only fair choice.
SELIGMAN: Let me turn then to the fundamental constitutional
argument. The impeachment power was meant to remove the president of
the United States from office only for the most serious abuses of
official power or for misbehavior of such magnitude that the
collective wisdom of the people would compel immediately discharge.
One of America's leading professors of constitutional law,
Professor Akhil Amar (ph) of the Yale Law School, has framed the
problem poignantly and concisely, stating: "The question to ask is
whether President Clinton's misconduct is so serious and malignant as
to justify undoing a national election and canceling the votes of
millions."
We know the answer. It was provided by Charles Black (ph) in his
classic book on impeachment when he wrote that, and I quote,
"Impeachment and removal should be reserved only for offenses that so
seriously threaten the order of political society as to make pestilent
and dangerous the continuance in power of their perpetrator."
*** Eastern Time 15:30 ***
SELIGMAN: James Madison made much the same point two centuries
earlier, stating that an impeachment provision of some kind was
indispensable, because a president's loss of capacity or corruption
might be fatal to the republic.
The statements and writings of the framers of our Constitution
and centuries of scholarship on the meaning of that brief but so
significant phrase, "high crimes and misdemeanors," enable us to
establish, with solid assurance, that the conduct charged against the
president does not amount to an impeachable offense.
Our argument today is a simple one: Ordinary civil and criminal
wrongs may be addressed through ordinary civil and criminal processes.
And ordinary political wrongs may be addressed at the ballot box
or by public opinion. Only the most serious public misconduct,
aggravated abuses of executive power, are meant to be addressed
through exercise of the presidential impeachment power.
The conduct here arises out of a private lawsuit. Let me talk,
for a moment, about that lawsuit that is the backdrop for these
proceedings.
The Jones case arose out of an alleged incident that predated the
president's first term as president. The charges at issue here arise
out of the president's conduct in that lawsuit.
SELIGMAN: No charge relates to his official conduct as
president.
Indeed, as we know, the Supreme Court told President Clinton that
he could not delay defending the Jones lawsuit until he was out of
office.
And when it ruled that way, the court emphasized just this very point.
It made clear that he might have been able to delay or avoid the
lawsuit if it had related to his official conduct, because the law
provides various immunities for such lawsuits. But precisely because
it related to his private actions, it would be allowed to go forward.
In drawing that conclusion, interestingly, the Supreme Court
actually looked to the wisdom of James Wilson (ph), a framer, a
Supreme Court justice and a constitutional commentator, and cited the
distinction he drew between a president's acts performed in his public
character, for which he might be impeached according to Justice
Wilson, and acts performed in his private character, to which the
president is answerable as any other citizen in court.
SELIGMAN: Now we agree that there might be extreme cases where
private conduct would so paralyze the president's ability to govern
that the impeachment power must be exercised, where the certainty of
guilt and the gravity of the charge would leave no choice.
But charges arising out of the president's efforts to keep an
admittedly wrongful relationship secret are by no analysis of that
caliber.
Now, some have suggested that making this argument is the same as
arguing that the president is above the law. That simply is not so.
The often-repeated statement that no man, or woman, I should add,
is above the law, is of course true. Once he leaves office, the
president is as amenable to the law as any citizen, including for
private conduct during his term of office.
As my colleagues, Mr. Ruff and Mr. Craig argued to you last week,
if a grand jury should choose to consider charges against this
president, his status as a former president will not prevent that
consideration.
But here's the point. Impeachment is not meant to punish an
individual. It is a protection for the people. In Alexander
Hamilton's words, "a remedy for great injuries done to the society
itself."
*** Eastern Time 15:34 ***
SELIGMAN: But here's the point. Impeachment is not meant to
punish an individual. It is a protection for the people. In
Alexander Hamilton's words, "A remedy for great injuries done to the
society itself."
It is as your 19th century predecessor Senator Garrett Davis (ph)
pointed out in the Andrew Johnson proceedings, the extreme remedy
intended for the worst political disorders of the executive
department.
Now, the House managers appear to argue that the president must
be removed nonetheless, because to do otherwise places him above the
law. But there is one thing that can be said with certainty about the
impeachment power. Although it may have that result, it is not meant
to punish the man, to set an example, or to provide a cleansing of the
political process. It is meant to protect the states.
If it is punishment the House managers seek, they are in the
wrong place, in the wrong job, at the wrong time, and for the wrong
reasons.
Now, a question has arisen whether as a general matter any
violation of law demands removal because is would be a violation of
the president's duty to take care that the laws to faithfully executed
or a breach of the public trust.
SELIGMAN: But again, the history of the clause makes clear that
the framers intentionally chose not to make all crimes or even all
felonies impeachable. I suggest we would all agree that in the
broadest possible sense, a proven violation of criminal law is a
violation of a public trust. But the framers consciously elected not
to make impeachment the remedy for all crimes and misdemeanors.
When the framers wished to address all crimes, they knew how to
do it, and they did it. In Article Four, section two of the
Constitution, the Constitution states that, and I quote, "a person
charged in any state with treason, felony, or other crime is
susceptible to extradition" -- "or other crime." The framers knew how
to say it, but they didn't say it about impeachment because that is
not what they meant.
Some also have argued that the experience of judicial impeachment
in this body undermines this argument.
SELIGMAN: They claim the judges have been removed for purely
private conduct and that a president should be treated no differently.
This argument completely misses the mark as well. By constitutional
design, judges are very different from the president.
Presidents are elected for a fixed term, while federal judges
serve with life tenure.
Presidents are elected by the people in one of the great periodic
exercises of national will and their tenure is blessed as the choice
of the people. Judges, on the other hand, are appointed and confirmed
by the representatives of the people, but their selection does not
represent a direct expression of the will of the people.
Judges' tenure is conditioned on good behavior, while that of a
president is not. And there is an obvious reason for this
distinction. Life tenure, which was designed to assure judicial
independence, plainly becomes a problem in the event of a judge who is
not fit to serve. A president may be voted out by the people. A
judge may not. Hence, the good behavior requirement and the duty upon
the Congress to enforce it in those exceptional cases where it must be
enforced.
It is possible to debate forever whether the good behavior clause
represents an independent basis for impeachment or whether in the case
of judges it is a factor to be weighed when this body exercises its
sound judgment to decide what constitutes a high crime or misdemeanor.
SELIGMAN: But there's no need to resolve that dispute here.
Either way, it is clear, as the Watergate impeachment inquiry report
established, that the term "high crimes and misdemeanors" is given
content by the context of the charge and the office at issue. Because
of issues of legitimacy, accountability, and tenure, the framers
decided that federal judges needed the additional check of the good
behavior clause -- language they left out of the articles creating
Congress and the presidency.
And the presidency is, of course, different. Alexander Hamilton
said in Federalist 79 that a judge could be impeached for mal-conduct.
But in the words of the Watergate impeachment inquiry report -- a
report I remind you that Mr. Manager Canady has commended to your
consideration -- presidential impeachment is distinctive.
*** Eastern Time 15:40 ***
SELIGMAN: The report stated, and I quote, because it's an
important quote, "because impeachment of a president is a grave step
for the nation, it is to be predicated only upon conduct seriously
incompatible with either the constitutional form and principles of our
government or the proper performance of the constitutional duties of
the presidential office."
"The facts must be considered as a whole in the context of the
office," the report concludes. The office matters.
For judges the good behavior standard comes in one way or the
other. For the president, the standard is different.
And as I mentioned, Mr. Manager Graham candidly acknowledged last
Saturday that reasonable people could disagree as to whether this
president should be removed from office. Even if they believe he
acted as charged, reasonable people could disagree.
In this connection, consider, if you will, the words of Senator
William Pitt Fesendon (ph), written 130 years ago. Senator Fesendon
(ph) was one of the seven brave Republicans who crossed party lines to
vote against conviction of President Johnson in his 1868 impeachment
trial.
SELIGMAN: He wrote, and I quote "the offense for which a chief
magistrate is removed from office should be of such a character as to
comment itself at once to the minds of all right-thinking men as
beyond all question an adequate cause." Think about that phrase,
"beyond all question." Where there is room for reasonable
disagreement, there is no place for conviction.
If many in this chamber and in this nation believe that these
charges do not meet the bar of high crimes and misdemeanors, then the
question must be asked: Why prolong this process?
I'd like to turn briefly now to two grounds for dismissal based
on the manner in which the House drafted these articles. The first is
that each article -- each of the articles contains several quite
different charges. The House compounded its charges. It is tempting
to ask, I know, how in a matter of such importance, we can urge what
might appear to be a procedural, highly technical argument like this
one.
There are several answers to that.
SELIGMAN: The first is that is neither procedural nor highly
technical. It goes to the very heart of our constitutional
protections and raises concerns about fairness and the appearance of
fairness in this proceeding, as so many senators have so eloquently
noted in the past when the issue has arisen.
As Senator Kohl stated in the Judge Nixon impeachment matter, in
which a similar omnibus article was defeated, and I quote, "the House
is telling us it's OK to convict Judge Nixon on Article III, even if
we have different visions of what he did wrong. But that's not fair
to Judge Nixon, to the Senate, or to the American people.
"Let's say we do convict on Article III. The American people, to
say nothing of history, would never know exactly which of Judge
Nixon's statements we regarded as untrue. They'd have to guess.
What's more, this ambiguity would prevent us from being totally
accountable to the voters for our decision."
As the senator said, that's an unacceptable outcome, one that
was, quote, "not fair to Judge Nixon, to the Senate, or to the
American people."
Judge Nixon was acquitted on this article. We suggest to you
that the House is now asking this Senate to convict President Clinton
on just such articles, and that's not fair, either, to President
Clinton, to this Senate or to the American people.
The second response is that even if this troubling problem were
procedural, fair constitutional procedures go to the heart of the rule
of law.
SELIGMAN: As the Supreme Court has stated, the history of
liberty has largely been the history of observance of procedural
safeguards. It would indeed be ironic if in the course of this
proceeding, in which the vindication of the rule of law has so often
been invoked, this body were to ignore an important procedural flaw.
The legal basis for this argument is by now well know. Article
I, section 3 of the Constitution provides that on articles of
impeachment no person shall be convicted without the concurrence of
two-thirds of the members present.
This requirement is plain: there must be, in the language of the
Constitution, concurrence, which is to safe genuine, reliably
manifested agreement among those voting to convict. Without clarify
on exactly what the president would be convicted for, there can be no
concurrence. These requirements of concurrence and a two-thirds vote
are the twin safeguards of the framers' plain intent to assure that
conviction not come easily.
And let there be no doubt, these articles present textbook
examples of a prosecutorial grab bag.
SELIGMAN: Look at Article II, which by its terms charges
obstruction of the Jones litigation. It presents six topics related
to the Jones litigation, and one related to the very separate issue of
grand jury obstruction. The first six acts alleged are unrelated in
time or alleged intent to the seventh. Under no conceivable theory
are they part of the same scheme, and no one every has claimed them to
be.
But as it is drafted and as it must be voted on by this body
under the Senate rules, the article would allow certain senators to
convict on obstruction of the Jones case, and others on grand jury
obstruction. That is not concurrent in a vote on an article, as the
Constitution demands it.
An indictment against any American drafted like these articles
could not go near the jury. It would be dismissed and no lesser
standard should apply here.
A second fatal flaw in the drafting is their complete lack of
specificity, which makes it impossible to know precisely what the
president is alleged to have done wrong.
*** Eastern Time 15:47 ***
SELIGMAN: This defect is most troublesome in the Article I
perjury charges, which never simply state what the president said that
was allegedly perjurious. The defect is as plain and obvious a
constitutional one.
The House of Representatives has unconstitutionally neglected its
sole power to impeach and delegated to the House managers that which
cannot constitutionally delegated: The power to decide what the House
meant. The result has been what can charitably be described as a
fluid approach to the identification of charges against the president.
The House majority and its managers have sought to add, delete,
amend, expand and con contract the list as this matter has proceeded
from Mr. Starr to the committee to the full House to this body.
They also mystifyingly have insisted on couching their charges as
examples. How on Earth can an accused defend against examples? Where
is the notice? Where is the due process? And no sooner was this very
concern raised here by Mr. Ruff than they did it again.
This was quite extraordinary. In response to Mr. Ruff's
challenge, the managers put out a press release on January 19,
purporting to list the allegedly perjurious statements on which you
are to vote.
SELIGMAN: And what did they say? They offered more examples.
They said in response, 001, and I quote, "Here are four examples of
perjurious statements made to the grand jury."
Ladies and gentlemen, almost 40 years ago, the Supreme Court made
clear that this kind of charging is unacceptable. When an indictment
leaves so much to the imagination of individuals other than the
constitutionally designated charging body, it must be dismissed.
Again, no lesser standard should apply here.
Our fourth ground for dismissal is based on the facts. The
evidence in the tens of thousands of pages before you establishes that
the case against the president cannot be proven with any acceptable
degree of certainty. The record is filled with too much that is
exculpatory, too much that is ambiguous, too much from the managers
that requires unfounded speculation.
A very brief look at the articles and the facts makes clear that
in light of the uncontested exculpatory facts, such as the direct
denials from Ms. Currie, from Mr. Jordan, and from Ms. Lewinsky of
various alleged misconduct, the managers cannot possibly meet their
burden of proof here.
*** Eastern Time 15:50 ***
SELIGMAN: The managers cannot possibly meet their burden of
proof here. Look briefly at Article I. Much of it challenges the
president's assertions of his own state of mind; his understanding of
a definition given to him; his understanding of the meaning of a word;
his legal opinion of his Jones testimony; his mindset during the
statements of his lawyer, Robert Bennett.
The managers offer speculation and theories about these matters,
but you are not here to try speculation and theories. You are here to
try facts and the facts do not support their theories.
Other claims in Article I are so insubstantial as to be frivolous
and unworthy of the time and attention of this historic body. Certain
answers about the particulars of the admitted intimate relationship
between the president and Ms. Lewinsky -- whether their admitted
inappropriate encounters were properly characterized as occurring on
certain occasions is but one example -- could not possibly have had
any bearing on the Starr investigation. These answers were even
irrelevant, immaterial to Mr. Starr.
SELIGMAN: Remember, in the grand jury the president admitted to
the relationship, admitted it was improper, admitted it occurred over
time, admitted that he had sought to hide it, admitted he misled his
wife, his staff, his friends, the country.
But how it began, exactly when it began, how many intimate
encounters there were, whether there were 11 or 17 or some other
number, and with what frequency? These are details irrelevant to the
Starr investigation, and, I must say, irrelevant to your decision
whether he should -- whether to remove the freely elected president of
the United States.
There's been much discussion about the Jones deposition here and
whether it too is a part of Article I. The point is a simple one: the
House of Representatives exercised its constitutional authority and in
a bipartisan vote defeated an article of impeachment based on the
answers in the Jones deposition.
Those answers are not before you. And the managers' sleight of
hand cannot now put them back into Article I. The article charges
only the statements made in the grand jury about that deposition.
SELIGMAN: The managers ask you to look at one at one response,
the president's lawyerly assertion that the Jones deposition was not
legally perjurious, however frustrating or misleading, and to read
that as an affirmation of every answer he gave.
But the grand jury testimony must be read as a whole. What did
the president convey during that testimony? Certainly not that he was
standing behind every word in the Jones deposition as the whole truth.
He spent four hours in the grand jury explaining that testimony,
adding to it, clarifying it, discussing the confusing deposition
questions and answers, and pointing out his efforts to be literally
truthful, if not forthcoming.
Explaining what he had tried to do, the line he had tried to
walk, however successfully or unsuccessfully, he laid it all out.
He was not asked by Mr. Starr to reaffirm or adopt the earlier
testimony, and he did not reaffirm or adopt it.
This brings us to the last issue in Article I, the so-called
touching issue. My colleague, Mr. Craig, has talked at length about
the legal and practical obstacles to a case based on an oath against
an oath.
Whether compelled by law or practice, the rule reflects the
common sense proposition that there will always be a reasonable doubt
as to the truth when a case rests merely on an oath against an oath.
SELIGMAN: Whether compelled by law or practice, the rule
reflects the common sense proposition that there will always be a
reasonable doubt as to the truth when a case rests merely on an oath
against an oath.
That's why seasoned prosecutors said in the House of
Representatives that they would never bring such a case. That's why
you need no more information to conclude that conviction on that basis
will not be possible.
The evidence also undermines the allegations of Article II. My
colleagues Ms. Mills and Mr. Kendall made a detailed review of the
allegations in each of the seven sub-parts of Article II. They went
over the evidence in great detail and I'm certainly not going to
repeat that here.
They pointed to the significant amount of direct evidence in the
record that controverts the claims made in this article, most notably
the consistent statements by Ms. Lewinsky that no one ever asked,
suggested, or encouraged her to lie, and that no one ever promised her
a job for her silence.
They demonstrated that with regard the transfer of gifts, the
testimony of Ms. Lewinsky and Ms. Currie has consistently been
inconsistent, but that even Ms. Lewinsky has acknowledged it was she
who was concerned about the gifts and who raised the issue with the
president.
*** Eastern Time 15:55 ***
SELIGMAN: And the fact that the president gave Ms. Lewinsky more
gifts on December 28 simply cannot be reconciled with any theory of
the managers' case.
Ms. Mills reviewed the evidence concerning the president's
conversation with Ms. Currie on the Sunday after the Paula Jones
deposition. However ill-advised that conversation might have been
under the circumstances, it was not criminal.
The president was motivated by his own anxieties and by a desire
to find out what Ms. Currie knew in anticipation of the media storm he
feared would break, as it surely did.
Contrary to the suggestion of Mr. Manager Hutchinson, Ms. Currie
had not yet been subpoenaed at the time of that conversation. Ms.
Currie was not on any Jones case witness list at the time of the
conversation.
She testified that she felt absolutely no pressure to change her
account during that conversation. She never testified that she felt
uncomfortable, again, contrary to the suggestion of Mr. Manager
Hutchinson.
SELIGMAN: She was not a witness. There was no pressure.
There's a completely reasonable explanation.
Let me be clear here. There is no evidence that the president
ever asked Ms. Lewinsky to file a false affidavit or told her to give
false testimony if she appeared as a witness. Both believed Ms.
Lewinsky could file a limited but true affidavit that might -- might
-- avoid a deposition in the Jones case.
While the two had discussed covered stories to explain Ms.
Lewinsky's visits, Ms. Lewinsky never testified that they discussed
the cover stories in the context of the possibility of her testifying
personally, as Article II alleges.
Now, you have heard in detail from Mr. Craig and Mr. Kendall
about the fleeting moment in the Jones deposition when Mr. Bennett
tried unsuccessfully to prevent the president being questioned about
Ms. Lewinsky by citing her affidavit. The judge immediately overruled
the objection. It did not obstruct in any way the Jones lawyers'
ability to question the president.
The statement had no effect.
SELIGMAN: And the tape of the president cannot disprove the
president's testimony that he wasn't paying attention. He doesn't
comment, concur, or even nod. With a weak case at hand, the managers
have tried to turn a blank stare into a high crime.
The last sub-part of Article II is flawed in many respects. The
article alleges obstruction of the Jones case, but the president's
misleading statements to his White House aides about Ms. Lewinsky had
no effect on that case at all. And in any event, the effect of the
president's statements on his aides was no different than on the
millions of Americans who had heard and seen the president make
similar denials on television.
And finally, the sub-part claims obstruction of the grand jury,
whereas the whole point of Article II is alleged obstruction of the
Jones case. As I asked before, what is it doing here?
As to Ms. Lewinsky's job search, all the managers have presented
is a theory, a hypothesis in search of factual support. The direct
evidence is clear and uncontradicted. Ms. Lewinsky, Mr. Jordan, the
president, people at the New York City companies Ms. Lewinsky
contacted -- all testified that there was no relation of any of the
job search activity to the Jones case. None -- not a single witness
supports the managers' theory.
SELIGMAN: As we demonstrated, their core theory -- that the job
assistance intensified after the court's December 11th order -- was
based on plain and simple error. And without that support, the theory
collapsed.
No doubt, the manager's response will be, that is why witnesses
are needed to help the managers make their case. But witnesses will
not fill the void in the evidence. First, because the audience as we
have shown is overwhelmingly uncontested; if there is no dispute, why
do witnesses have to be questioned at all.
House majority counsel Schippers, himself, made this point when
speaking of the very same transcripts and FBI interviews that you all
have before you stated to the Judiciary Committee, quote, "as it
stands, all of the factual witnesses are uncontradicted and amply
corroborated."
Second, because the actual disagreement: For example, what was
in the president's mind in his deposition, or about conclusions that
must be drawn from the undisputed evidence, not disputes in the
evidence itself. More evidence will not inform a judgment on the
president's state of mind.
*** Eastern Time 16:00 ***
SELIGMAN: And third, because those witnesses with testimony
pertinent to the charges have already repeated their testimony again
and again and again, in some instances five or ten times over and over
and over to FBI agents, to prosecutors, to grand jurors.
Experienced career prosecutors trying to make their best case
against the president questioned scores of witnesses. They compiled
tens of thousands of pages of evidence. They questioned Ms. Lewinsky
on at least 22 separate occasions. They questioned Mr. Jordan on at
least five occasions. They questioned Ms. Currie on at least eight
occasions.
On one day alone, July 22nd, 1998, prosecutors asked Ms. Currie
more than 850 questions, and that was only one of her five appearances
before the grand jury or FBI agents.
And they did in fact, contrary to the suggestion of the managers,
question witnesses, including Ms. Lewinsky, after the president's
testimony to the grand jury.
And these witnesses, whom I've mentioned who were questioned
repeatedly, are not alone. They cannot possibly add to their
testimony or amend it in any significant way that could alter the
judgment you could make today.
SELIGMAN: Yet it is the hope that these witnesses will be forced
to change their testimony to provide evidence where there now is none
that drives the current desire to question them.
Let me make a few final points about this witness issue.
Bringing in witnesses to rehash testimony that's already
concretely in the record would be a waste of time and serve no purpose
at all. That's our argument, but those are not my words. They are
the words of Mr. Manager Gekas spoken just last fall talking about the
same factual record you have before you.
And Mr. Manager Gekas was correct. We had 60,000 pages of
testimony from the grand jury, from depositions, from statements under
oath. That is testimony that we can believe and accept.
Why reinterview Betty Currie to take another statement when we
already had her statement?
SELIGMAN: Why interview Monica Lewinsky when we had her
statement under oath and with a grant of immunity that if she lied she
would forfeit?
Again, that's our argument, but again those are not my words.
Those are the words of Chairman Hyde, and he too was correct. Those
words apply with equal force today. The witnesses are on the record.
Their testimony is known. There is no need to put them through the
ordeal of testimony again.
The House managers no doubt will answer that that was then, this
is now. But that's not good enough. The House had a constitutional
duty to gather and assess evidence and testimony, and come to a
judgment as to whether it believed the president should be removed
from office -- not to casually and passively serve as a conveyor belt
between Ken Starr and the United States Senate; not to ask this body
to do the work the House failed to do.
The actual power to remove the president resides here, of course,
but the power to take that first step rests with the House. And the
House exercised it. The articles explicitly find that certain conduct
occurred and that that conduct warrants removal from office and
disqualification to hold and enjoy any office of honor, trust or
profit under the United States.
*** Elapsed Time 16:05, Eastern Time 17:08 ***
SELIGMAN: If there was any doubt about the testimony on which
they base their judgment in reaching that conclusion, such doubts
should have been resolved before any member rose to say "aye" to an
article of impeachment calling, for the first time in 130 years, for
the Senate to decide on the removal of the president.
The president did not obstruct justice. The president did not
commit perjury. The president must not be removed. The facts do not
permit it.
Now, ladies and gentlemen of the Senate, I hope I have outlined
clearly for you some of the many valid grounds on which you might base
a decision to vote for the motion offered by Senator Byrd.
On constitutional grounds, the matters simply don't meet the test
of high crimes and misdemeanors, as specified by the framers or
interpreted by hundreds of historians.
SELIGMAN: As a matter of law, these articles are defective. In
a court they would be dismissed in a heartbeat for vagueness, and for
being prosecutorial grab bags.
The evidence itself, after being gathered this what may be one of
the largest criminal investigations in this country's history, fails
to offer a compelling case and is based largely on weak inferences
from circumstantial evidence.
Each of these is reason enough to end this trial now without
further proceedings.
As Senator Bumpers said more personally and eloquently that I
could hope to, the president has been punished. He is being punished
still -- as a man, as a husband, as a father, as a public figure.
Beyond his family, you have been remained that the criminal law will
still have jurisdiction over Bill Clinton the day he leaves office.
And while I am confident the case would have no merit in a court
of law, that is the venue in which justice may be sought against an
individual.
So the sole question you are faced with is the most important
one.
SELIGMAN: Do you for the first time in 210 years of our freedom
set aside the ultimate expression of a free people and exercise your
power to remove the one national leader selected by all of us?
If you don't believe this body should remove the president, or if
you believe that no amount of requestioning witnesses or torturing
facts will change enough minds to garner the two-thirds majority
necessary to remove the president, or if you simply have heard enough
to make up your mind, then the time to end this is now.
The president has expressed many times how very sorry he is for
what he did and for what he said. He knows full well that his
failings have landed us in this place. And he is doing all he can to
set right what he has done wrong.
But an entire nation, indeed the world, is now looking to this
body, to this chamber, to this floor, for sound judgment, and we are
asking you not to answer a serious personal wrong with a grievous
constitutional wrong.
When we ask you to vote for Senator Byrd's motion to dismiss, we
do not mean that nothing ever happened, that this is no big deal.
SELIGMAN: And that's where we lawyers have done a disservice to
the language, because this is a big deal, a very big deal.
Punishment will be found elsewhere. Judgment will be found
elsewhere. Legacies will be written elsewhere. None of that will be
dismissed. None of that can ever be dismissed.
We ask you to end this case now so that a sense of
proportionality can be put back into a process that seems long ago to
have lost all sense of proportionality. We also ask you to end the
case now so those family members and others who did no wrong can be
spared further public embarrassment.
And we also ask you to end this case now so that the poisonous
arrows of partisanship can be buried and the will of the people can be
done, allowing of you to spend your full days on the most pressing
issues of the country.
SELIGMAN: You have heard the charges in full. Heard the
defense. Now is the time to define how the national interest can best
be served: By extending this matter indefinitely, or ending it now.
We submit that it is truly in the best interests of this nation
to end this ordeal in this chamber, at this time and in this way.
Thank you.
LOTT: Mr. Chief Justice?
REHNQUIST: The chair recognizes the majority leader.
LOTT: Could I inquire, is there further presentation from the
White House counsel? Or will the balance of the time used for the
concluding remarks by the House managers?
REHNQUIST: The White House counsel have six minutes remaining
and the managers reserved 36 minutes.
UNIDENTIFIED WHITE HOUSE COUNSEL: There be no further
presentation, Mr. Chief Justice.
LOTT: In view of that, Mr. Chief Justice, I understand that the
White House counsel would have no further presentation make, so that
what's left would be the concluding remarks by the House managers.
And I'd like for us when that is concluded to go right into the votes.
In view of that, I think it would be a good idea to take a 15-
minute break at this point, and I ask for that.
REHNQUIST: In the absence of objection, it's so ordered.
(RECESS)
REHNQUIST: The Senate will be in order. The chair recognizes the
majority leader.
LOTT: Mr. Chief Justice, I believe we are ready now for the
closing part of the argument by the House managers on the motion to
dismiss.
REHNQUIST: The chair recognizes the House mangers. Mr
Hutchinson.
HUTCHINSON: Thank you, Mr Chief Justice.
Senators, my fellow manager Graham has extended me for a few
minutes before he comes up here just to allow me to respond to a
couple of factual assertions by the White House counsel during the
recent presentation.
I know that there was a reference made to the impeachment
proceedings of former President Nixon, and there are various articles
that were considered. But one of them that I don't believe was talked
about was obstruction of justice. And I believe that the senators in
this chamber would agree that obstruction of justice has historically
been a basis for impeachment of public official, because of the impact
that it has on the administration of justice, and that was
historically true during the time of the impeachment of President
Nixon.
It was an issue during that time, and it should be no less of,
and concern this year, in 1999.
Now, when I listen to a defense attorney make a presentation,
oftentimes I listen to what they didn't cover as much as what they did
cover. And you always have to go back to that, because many times
that points to a big gap of something they just can't explain.
HUTCHINSON: (OFF-MIKE) I listen to the presentation, of course
they address the assertion that Ms. Currie, Ms. Betty Currie, was in
fact not a witness at the time the president called her in and went
through the questioning of her after his deposition on January 17.
But yet it's been clearly established that she was a known witness at
the time.
Now, they hoped, they prayed, they wished, they counted for the
fact that that subpoena would never be uncovered. But the subpoena
was uncovered, the fact was established that she was put on the
witness list and that she was a known witness at the time.
But the fact is, it does not matter. She was a prospective
witness, and that was what the president did when he came back and
talked to her.
But what has never been addressed, has never been addressed, is
why in the world did the president believe he needed to talk to her a
second time. It was one time that questioning, but two days later she
was brought in and taken through the same paces. The answer was,
well, he explained it.
Well, he tried to explain why he did it the first time, he was
trying to get information. There can be no explanation for the second
instance of when she was called in and questioned. She was a witness,
she was a known witness, and she had to be talked to, and it was done
twice.
HUTCHINSON: Another thing that I do not recall ever being
mentioned. They argue that, well, there is no evidence of favors on a
job search, and I believe that is not supported by the record. How
many times has the president's attorneys discussed the description and
the report by Mr. Vernon Jordan to the president "mission
accomplished."
I do not believe they ever discussed that particular terminology.
I do not believe they've ever discussed the terminology -- the call
from Mr. Vernon Jordan to Mr. Perelman saying "make it happen if it
can happen."
And so I think that there are some gaps in their defenses and
clearly you understand that the facts have supported each of the
allegations of obstruction that we have set forth.
They argue that, well, there was no evidence of any false
affidavit; where there's evidence that an affidavit was encouraged by
the president of the United States. He suggested the affidavit. And
as of a necessity, it would have to be false. It was going to be
accomplishing the intended purpose.
They're asking you in this motion to dismiss to ignore the
evidence that we have presented; to ignore the testimony, the
documentary evidence; to ignore the common sense; and simply to accept
the denials of the president of the United States. That's not what a
motion to dismiss is about.
HUTCHINSON: We ask that we move forward to consider the full
development of these facts. I yield to Mr. Graham.
Testimony, cont.
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