Clinton impeachment trial transcripts — January 26, 1999            Full Coverage Search Clinton in Crisis The Trial Trial Guide Evidence Guide Transcripts Video Discuss the Trial The Starr Report and Rebuttals Video Index Documents Starr Investigation Jones v. Clinton Whitewater Jones v. Clinton Whitewater The following transcript was provided to Court TV by Federal Document Clearing House: SENATE IMPEACHMENT TRIAL OF PRESIDENT CLINTON -- CONTINUED *** Elapsed Time 00:00, Eastern Time 14:20 *** JANUARY 26, 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 ...David Letterman around. ROGAN: From another source, one White House aide called reporters. One White House aide called reporters to offer information about Monica Lewinsky's past: Her weight problem and what the aide said was her nickname: The stalker. Just hours after the story broke, one White House source made unsolicited calls offering that Lewinsky was the troubled product of divorced parents and the reference goes on and on. You can find the complete reference in the committee report. Now, the question is was there a mere coincidence that the president's false statements to Mr. Blumenthal about Monica Lewinsky being a stalker quickly found their way into press accounts, even though those accounts are attributed by the press to sources inside the White House? ROGAN: The answer to the question is yes, it's a coincidence, according to White House counsel. And we heard that from them just three days ago. Mr. Ruff said in his presentation, and I'm quoting, "the White House, the president, the president's agents, the president's spokespersons, no one has ever trashed, threatened, maligned or done anything else to Monica Lewinsky. No one." Mr. Blumenthal needs to be questioned now under the light of the facts as we now know them. All we have from Mr. Blumenthal are the facts as he testified before the revelations saw the light of day. And he needs to be questioned for the benefit of those who must make the determination of credibility and the determination of guilt or innocence. This is the reason we've included Mr. Blumenthal on our proposed list. ROGAN: He is just one example of several aides whose testimony is already before you in the record. But we feel it would be beneficial not only for the body to hear him, but certainly to question him in light of the revelations that occurred following his grand jury testimony. Mr. Chief Justice, with that we reserve the balance of our time. REHNQUIST: Very well. The chair recognizes Mr. Manager Kendall for the White House counsel. KENDALL: Mr. Chief Justice, ladies and gentlemen of the Senate, House managers. The purpose of the managers' motion and what I'm going to address is whether you need to add any evidence to the record before you. KENDALL: And that's all I'm going to address today. Now, I'm tempted, and it's like waving a red flag at the bull, to take on the substantive arguments that have been presented here as to why the president is guilty. I'm going to refrain from doing that, but my refraining from doing that is not because I agree with them. We've already addressed them, and I think here that the proper procedure is just to address the need for new evidence to add to the record before you. The managers' case is in no way, no way, harmed by being unable to call witnesses at this point. The independent counsel conducted a wide-ranging investigation. It was intense, it was comprehensive of every conceivable allegation against the president after the Lewinsky publicity erupted on January 21, 1998. *** Elapsed Time 00:14, Eastern Time 14:34 *** KENDALL: In the record of the publicly available materials which the Senate has asked the House managers to certify, the actual number of pages is somewhat understated because, as I've mentioned before, frequently four or six pages of transcript are reproduced on a single page of the bound volume. But in fact, there are over 10,000 pages of grand jury testimony, over 800 pages of other testimony, such as depositions, 3,400 pages of documentary evidence, 1,800 pages of audio transcripts and 800 and some pages of FBI interviews. The Office of Independent Counsel has an unlimited budget with unlimited investigative resources, ranging from the FBI to private investigators. Its agents interviewed people all over the country, used several different grand juries, conducted hundreds of interviews, even called people back from abroad. KENDALL: If the OIC could have turned up anything that was negative or prejudicial, it would be in those volumes. So you can rest assured that they did their best to find that evidence, and the Starr team has been fully supportive of the pro- impeachment forces in the House of Representatives. Indeed, so supportive that the independent counsel's ethics adviser, Professor Sam Dash, resigned to protest Mr. Starr's zealous advocacy of the impeachment of the president. Just this weekend, Mr. Starr and his staff have aggressively continued to support the House managers during these Senate proceedings. Some commentators have commented that the independent counsel is perhaps the honorary 14th House manager. KENDALL: Now I rehash this all not to cast aspersions at Mr. Starr, but to remind the Senate that after five years and $50 million, President Clinton may be the most investigated person in America. I will certainly say this for Mr. Starr, he is thorough. He is thorough. After all the work that has been done for them, by the independent counsel, there's simply no way that the House managers are prejudiced by not being able to add to this record at this point. Now, Mr. Manager McCollum repeated this morning that we are afraid of witnesses. We are not. We have reviewed, in detail, in our presentations what the evidence shows about both the perjury and the obstruction of justice allegations. We are not at all afraid of what the witnesses would say. Indeed, we know what they're going to say because it's all right there in the volumes before you. KENDALL: We think that you have everything there on the basis of which you can make a fair judgment and achieve a fair resolution. The managers' hope to call more witnesses is simply a product of their desire, their hope, their prayer that something will come to rescue their case. Let's be clear about one thing. Any delay in the process necessary for us to have fair discovery is on their heads. Our point here is, that there's simply no need to go outside this record, because what you have before you is voluminous, and it's a completely adequate basis for your decision. As I pointed out the other day in the questioning period, the only thing left out of this record evidence that might be exculpatory or helpful to the president. And if we must, we will, as conscientious lawyers, seek out that helpful additional evidence through discovery. KENDALL: And if we must, we will as conscientious lawyers seek out that helpful additional evidence through discovery. This body has been scrupulously fair in these proceedings and I'm confident it will be fair if -- concerning our need for discovery if the genie of discovery is let out of the bottle and live witnesses are deemed to be appropriate. Then we're going to need a fair period of time for our own discovery. But again, the point is today on this motion that the managers have simply identified no particularized need for witnesses, no specific areas of testimony that might contribute to what is already in the record. *** Elapsed Time 00:19, Eastern Time 14:39 *** KENDALL: And indeed, no questions, no material questions -- you can always think up questions that are unasked -- but no material questions, given the allegations in the two articles, that are not in the record before you. Just recall, in the House, the managers believed that this was an adequate record to come to you and urge removal of the president. They rested on that record in the House and they impeached an elected president on the basis of that record. They cannot now complain that it is for some reason unfair to submit this same record to you for judgment at this point. We're not afraid of or reluctant to call witnesses, but we think at the end of the day the addition of more testimony from the three witnesses you've heard about won't affect any evidentiary judgment you've got to make. KENDALL: Mr. Manager Barr declared, during his presentation a week ago, Friday, on January the 15th, that this was, in fact a relatively simple case, although we, the White House lawyers, would try to nit pick the evidence. He told you, what we have before us, senators and Mr. Chief Justice, is really not complex. Critically important, yes, but not essentially complex. The able House managers have kept insisting on their need for witnesses, but they haven't indicated what substantial material and relevant questions the witnesses would be asked which haven't already been asked or why such questions are essential or even relevant to the resolution of this proceeding. Frankly, I think this is because there just aren't that many more questions to ask of these witnesses. KENDALL: And Mr. Manager McCollum kind of let the cat out of the bag on this one when a week ago Friday he told you, "I don't know what the witnesses will say, but I assume if they're consistent they'll say the same thing that's in here." I was surprised at some of the statements the managers made during the questioning period on Friday and Saturday. Mr. Bryant said, "We would very much like to talk to some of these witnesses." And he added, "It was very critical that you talk to the witness before having that witness testify." Mr. Jus -- Mr. Manager McCollum stated, "As a matter of fact, we think we would have been incompetent and derelict as presenters of the evidence if we hadn't talked to them first." Just this Sunday, Mr. Manager Hyde on "Meet the Press" observed that the purpose of the court-ordered Office of Independent Counsel chaperoned interview of Ms. Lewinsky last Sunday was to get a sense of what kind of a witness she'd make. *** Elapsed Time 00:22, Eastern Time 14:42 *** KENDALL: I say this respectfully. But I am duty bound to observe that it is in fact a dereliction of duty to have come this far in the process, to have made this serious a set of charges as have been made against the president, to seek his removal and not to have talked to the witnesses on whom they purport to rely. How can they have come this far and now tell you oh, yes, we now need to meet face to face with the witnesses. We don't know what they sound like, we don't how credible they'll be. We've rested our judgment on this. We need to see them personally. This procedure, I submit to you, is just backwards. First they file the charges, which have been spoon-fed by Mr. Starr. They don't bother to check these out. KENDALL: They take them at face value. Now, they finally want to talk to the witnesses and they again use Mr. Starr to threaten Ms. Lewinsky with imprisonment unless she cooperates with them. Now, it's no answer to say that the witnesses didn't want to talk to us. There was a way to talk to them in the House of Representatives and that was through the subpoena power that the House could have used, if they had wanted to talk to their witnesses; if they had fulfilled the obligation they had before they proffered these charges to you. This has been a partisan process on the part of the House managers. In the House, they had the votes. They didn't think they needed to talk to witnesses. When you have the votes and the independent counsel on your side, you don't need to independently develop the evidence. Indeed, Sunday on CNN, Mr. Manager Cannon provided some insight into that... HUTCHINSON: Mr. Chief Justice? REHNQUIST: Yes, the chair recognizes the senator from Arkansas. HUTCHINSON: I would object to the White House counsel's continual reference to comments made on television programs outside of the record that is before the Senate. REHNQUIST: This on a motion to call additional witnesses and the argument has been very free form and kind of far ranging. I think this is permissible comment and so I overrule the objection. KENDALL: Thank you, Mr. Chief Justice. I think Mr. Manager Cannon's comments did provide some insight into the need for witnesses for the justification for witnesses here. He noted that the Republicans had lost five seats in the November election and he went on to say accordingly the Republicans felt a need to speedily complete impeachment in the lame duck session before the 106th began its session. *** Elapsed Time 00:26, Eastern Time 14:46 *** KENDALL: He said that the Republicans on the Judiciary Committee were committed to be done by the time we got done and that's where we got on that track with no witnesses. Now they're trying to take a different track. And I think it comes from desperation. You've had the case analyzed before you, you've had the case -- the evidence in the case assessed, and I think it's been demolished in an adversary proceeding. The House managers are like the character in "David Copperfield," Mr. Macauber (ph), who was always hoping that something would turn up. They continue to hope that something will turn up for them. They don't know what it is, but they believe they'll know it when they see it and they hope for the first time in these proceedings they actually talk to the witnesses on whom they've relied they'll find something to persuade you to overcome the evidence in the record. KENDALL: Now, the managers have said, well, we told the White House that it could have called witnesses. They could have called witnesses in the House if they want to, and they chose not to do so, so it's really their fault. I respectfully submit to you, however, that only in the world of Franz Kafka do you have to present evidence of your own innocence before you even hear the charges or the allegations against you. It was the burden of the House to establish by an adequate evidentiary basis a case for impeaching the president. They failed to do that, I submit, and they're a little like a blackjack player who sees 20 on the table and has 19 and is going to try to draw that two, hoping against the odds. Here, they're simply gambling, and gambling may have its place as a recreation. I think it has no place in the impeachment trial here when the fate of the president is at stake. KENDALL: Now, I don't want to be uncharitable ... (LAUGHTER) ... to the House managers, and they are able. But I think it is perhaps appropriate to remind you, as my partner Ms. Seligman did in her argument yesterday, that in their own chamber -- in their own chamber -- the House managers sang a very different song about the need for witnesses. And to be fair, this was not just one manager. They sang as kind of a barbershop chorus. Most of them are on the record to this effect, and I think the very best witnesses you have about the need for witnesses are the House managers themselves. KENDALL: Let's listen to some of the comments of the managers on whether live witnesses needed to be heard to supplement the evidence in the many volumes already gathered by the independent counsel. For example, on November the 5th, Mr. Manager Hyde said: "We believe the most relevant witnesses have already testified at length about the matters in issue and in the interest of finishing our expeditious inquiry we will not require most of them to come before us to repeat their testimony." He added that "Monica Lewinsky and Linda Tripp have already testified under oath, we have their testimony. We don't need to reinvent the wheel." The very next day, on November the 6th, Mr. Manager Gekas testified -- or stated: "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." *** Elapsed Time 00:30, Eastern Time 14:50 *** KENDALL: On December the first during a hearing before the House Judiciary Committee at which the committee received testimony concerning the consequences of perjury and related crimes, Mr. Manager Chabot stated, "We could call more and more and more witnesses. We are trying to get this wrapped up as expeditiously as possible. I think both sides want to do that. If we call more witnesses and drag this on into next year, then they are going to scream because they say we are on a fishing expedition. We have already got enough evidence." At that same hearing, Mr. Manager Canady said of the need for witnesses, "Now, we do have a responsibility to make certain we act on a solid basis." KENDALL: "We should not move forward with articles of impeachment on the basis of insubstantial evidence. I think all of us agree on that. The fact of the matter is that we have a mountain of sworn testimony." On December the 9th, Congressman Coble who was a member of the House Judiciary Committee told us during our presentation on behalf of the White House: "Mr. Ruff, I want to address a couple of myths, and one myth is that we have no evidence because there have been no fact witnesses called. Five volumes sit alongside me, and these are the same five volumes that are at our table -- that contain sworn testimony before a criminal grand jury, FBI interviews, depositions and other materials." KENDALL: Mr. Manager Hyde made two statements on the floor of the House of Representatives during the debate over the articles of impeachment which I think bear quotation here. On December the 18th, Mr. Manager Hyde stated: "We had the facts and we had them under oath. We had Ms. Lewinsky's heavily corroborated testimony under a grant of immunity that would be revoked if she lied. We accepted that." And then the next day, on Saturday, December the 19th, Mr. Manager Hyde stated: KENDALL: "No fact witnesses. I've heard that repeated again and again. Look, 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. We chose to believe it and accept it. Why reinterview Betty Currie to take another statement when we already had her statement? Why interview Monica Lewinsky when we had her statement under oath and with a grant of impunity that if she lied, she would forfeit?" Why interview Monica Lewinsky when we had her statement under oath and with a grant of immunity that if she lied, she would forfeit? Now, after the House voted its two articles of impeachment, the House managers still saw no need for live witnesses. On December 29th, Mr. Manager Gekas stated: *** Elapsed Time 00:34, Eastern Time 14:54 *** KENDALL: "We're going to have to make the case that there is already enough testimony under oath in grand jury testimony and affidavits." And then again, a week later Mr. Manager Gekas stated: "In my judgment, there might not be any real rationale for calling Linda Tripp or Betty Currie or Vernon Jordan if the testimony of Monica Lewinsky is accepted as being what she offered on grand jury terms." "Roll Call" reported on January the 7th that Mr. Manager Cannon stated regarding calling Ms. Currie as a witness in the Senate trial: "I am reluctant to call Ms. Currie because it's a rotten, nasty thing to do to a public servant." When confronted with this inconsistency, the managers, who are talented attorneys and successful congressmen, have all argued: Well, the forum has changed. KENDALL: As if it's no big deal for the House to impeach a president without witnesses, but it would be unconscionable for the Senate to acquit the president without first doing some rotten, nasty things, in Mr. Manager Cannon's phrase, to some witnesses. How can you have a trial, they protest, without witnesses? One might ask: How can you have a hearing without witnesses? But the House did. How can you impeach a president without witnesses? Well, the House showed us. Finally, it's instructive to note that when the managers were presenting their case in the House, when the Judiciary Committee did, they did not declare that they would insist on witnesses when they got to the Senate. KENDALL: They did not tell their colleagues "we won't need witnesses in the House because we'll have them in the Senate." Nope, they rushed this through the House because they had the votes. And now they want to delay in the Senate because they're afraid they don't have the votes. There is no reason, we respectfully submit, to delay in this chamber; to drag out these proceedings and defer doing the business of the American people. Now, I'd like to discuss each of the five categories, and I'll call them categories. There are three witnesses, and then there is the -- the two affidavits and then there are the telephone records. There are really six. I'd like to discuss these in terms of whether they add anything, or whether the managers have made a proffer that they add anything to the record which is now before you, because I think that's the question you've got to determine. KENDALL: On this motion, you're not voting whether substantively to convict the president, you're simply determining is the record adequate. Let's first take Ms. Lewinsky. On Sunday, the House managers, with the gentle assistance of the independent counsel prosecutors, were able to interview Ms. Lewinsky after schlepping her across the country from California. They did so despite the fact that the Senate had established by a 100 to zero vote a procedure for the orderly calling of witnesses after discussion and debate. They did so after declining to interview Ms. Lewinsky at any time during the House proceedings when they could have compelled her appearance by the House subpoena power. And they did so without providing us here any reliable record for what that talkfest on Sunday may have produced. KENDALL: Now, newspaper reports indicate that the managers did not take notes. You will recall, of course, that during the questioning period on Saturday, they explicitly rejected a request they received during the question period that they provide either an unedited transcript or a videotape of that interview to be sure that the interview would be open to scrutiny for fairness, and ascertain whether Ms. Lewinsky in that interview really did add anything to the record. They declined to do that, but when they emerged from the Mayflower Hotel on Sunday afternoon for their sidewalk press conference, we heard from them general statements generally commending Ms. Lewinsky. Mr. Manager Bryant called her an impressive person. Mr. Manager Hutchinson praised her intelligence and poise. And I thought to myself: Where have we heard that before about Ms. Lewinsky? KENDALL: And it was deja vu all over again. Of course, we heard it from Mr. Jordan, from Ambassador Richardson, and from the people who interviewed Ms. Lewinsky for a job in New York. It's helpful that the House managers have now at least confirmed those observations in the record. At their press conference, we heard the managers make some abstract pronouncements about what Ms. Lewinsky was going to add, that she'd be a valuable witness, she'd be a helpful witness, and it was a productive meeting of benefit to our case. That was what we heard. But Ms. Lewinsky's lawyer, Mr. Plato Cacheris, threw, if I may say, some cold water on those happy and optimistic pronouncements. It could have not been clearer in his comments that, not surprisingly, nothing new whatsoever had emerged from that session. *** Eastern Time 14:49 *** KENDALL: You really didn't hear that. I think the House managers were quite honest about the session, because you heard nothing about what had emerged from that today. Mr. Cacheris told the press conference, and some of you may have seen it, Ms. Lewinsky answered all their questions. There was nothing new. She added nothing to the record that is already sitting before the Senate. She shouldn't be called to the Senate to testify. The New York Times reported yesterday that after the interview, Ms. Lewinsky told a friend, it went really well, I feel positive about it, but I didn't have anything new to say. Now, according to The Washington Post, the managers were focused on making sure Ms. Lewinsky had no intention of changing her testimony. The Washington Post went on to confirm that she did not indicate any desire to change her testimony in any way. And the Post article continues that in fact Lewinsky reaffirmed her grand jury statement that no one ever asked her to lie or offered her a job in exchange for a false affidavit in the Jones case. KENDALL: Now, as you are well aware, Ms. Lewinsky was interviewed extensively by the office of independent counsel. She testified twice before the grand jury. She gave a lengthy deposition to the prosecutors. She was extensively interviewed by the agents. There are over 20 interview reports. I should also add that a great deal of this comes after the president was examined in the grand jury on August the 17th. Ms. Lewinsky has given detailed and explicit testimony, particularly in her August 26th deposition, as to her account of the physical relationship she had with the president. Nothing at all will be added by further interrogation of her. Nothing could be gained by repetition in a Senate deposition or in the well of this body by that -- a repetition of that testimony. KENDALL: I confess I don't fully understand, I seem to hear Mr. Manager Bryant and Mr. Manager McCollum say slightly different things about what they intended to present in the way of Ms. Lewinsky's testimony. The record on that is what it is. But whenever I hear somebody tell me, as Mr., the very able Mr. Manager Bryant did, "You know, they don't need to cross-examine really," I'm reminded of what Senator Bumpers said, and he got it from H.L. Mencken (ph), who probably got it from somebody else, the more they say you don't have to cross-examine, the more need I feel to cross-examine. (LAUGHTER) I don't know what they intend to do there, but in the grand jury the president plainly acknowledged an improper relationship with Ms. Lewinsky. He declined to answer further questions about that. KENDALL: The Office of Independent Counsel did not seek either to compel him, or it didn't seek to issue a new grand jury subpoena which would cause the president to come back and go through those explicit details. The testimony is what it is, and I don't think anything further from Ms. Lewinsky is going to in any material way affect it or even add to it. With regard to some of the conflicts that are there, I think we've addressed those in the question period. I'm not going to go over them again in full. Did the improper relationship begin in November, or did it begin six or seven weeks later? That conflict is utterly immaterial, I respectfully submit, in view of what the parties have acknowledged. Mr. Manager Hyde indeed stated in a House Judiciary Committee hearing on December the first that that particular point did not strike him as a terribly serious count, and I agree with that. *** Eastern Time 14:53 *** KENDALL: The managers have claimed, and Mr. Manager Hutchinson claimed this morning, that there is a contradiction in the president -- in the testimony of the president and Ms. Lewinsky with regard to cover stories. This is not true. We've gone over that again and again. There's nothing that links this testimony to any deposition in the Jones case. These were discussed, the record shows, in a non- legal context. I don't think that there is anything further to be gained from Ms. Lewinsky's testimony that is not already there in the record. KENDALL: Now, Mr. Vernon Jordan. Let's take him. Mr. Manager Hutchinson was kind enough to leave up here his copies of Mr. Vernon Jordan's five appearances before the grand jury. He held them up on a chart. And it's I think proper to point out that Mr. Jordan's testimony runs to over 900 pages. On March 3rd, the transcript is 196 pages. Two days later on March 5th with the transcript running to 212 pages, Mr. Jordan emerged from the grand jury and he made the following statement, which I'd like to play for you. (BEGIN VIDEOTAPE) VERNON JORDAN: First of all, it is a fact that I helped Monica Lewinsky find private employment in New York. JORDAN: Secondly, it is a fact that I took Monica Lewinsky to a very competent lawyer, Frank Carter, here in Washington, D.C.. And thirdly, is the fact that I kept the president of the United States informed about my activities. I want to say two further things. One is I did not in any way tell her, encourage her to lie. And secondly, that my efforts to find her a job were not a quid pro quo for the affidavit that she signed. (END VIDEO TAPE PRESENTATION) KENDALL: Mr. Jordan testified a third time before the grand jury on May 5th, and that transcript runs to 285 pages. KENDALL: Finally, he testified two more times, on May the 28th for 128 pages, and he observed as he exited the grand room. If we could have the video again. (BEGIN VIDEOTAPE) JORDAN: For the fourth time I have answered every question over and over and over again. I suspect that I will have to answer the same questions over and over and over again. KENDALL: And guess what? Mr. Jordan was clairvoyant, because he was called back to the grand jury for a fifth time on June 9, and he said as he exited: (BEGIN VIDEOTAPE) JORDAN: When I came here on March -- early March, I said that I helped Ms. Lewinsky get a lawyer. *** Eastern Time 14:57 *** JORDAN: I helped her get a job. I had assurances that there was no sexual relationship, and I did not tell her to lie. That was the truth then, and that is the truth today, and I have testified five times over and over again to those truths. (END TAPE) KENDALL: One of the justifications Mr. Manager Hutchinson offered for calling Mr. Jordan was to explore an alleged conflict between Mr. Jordan and Ms. Lewinsky over whether Mr. Jordan had told her to go home and make sure that notes she had been keeping were not there. KENDALL: Here I think Mr. Manager Hutchinson is referencing a statement that Ms. Lewinsky made in her proffer to the office of independent counsel describing her recollection of a breakfast she believed she had with Mr. Jordan. It's in the appendix volume at page 716. Now, the thing to note, ladies and gentlemen, about this statement is its date. Ms. Lewinsky said this on February 1st, 1998. She'd written then that she'd expressed concern about Ms. Tripp to Mr. Jordan, and that Ms. Tripp may have seen notes when she was in Ms. Lewinsky's house. According to the proffer, Mr. Jordan asked if the notes were from the president. Ms. Lewinsky said that they were notes to the president. Mr. Jordan suggested to Ms. Lewinsky, the proffer says, that she check to make sure they were not there, or something to that effect -- close quote -- for Ms. Lewinsky. KENDALL: Now, contrary to this supposed conflict, Mr. Jordan was never asked in the grand jury on any of the five occasions he was there, all of which, I remind you, were after this February 1 proffer, about this matter. He wasn't asked about it. It doesn't concern the president in any event. And I think most importantly it's nowhere alleged. If you look in the actual articles, if you look at Article II, nowhere is this conversation alleged in any way as a basis for impeachment, a basis for charging the president with obstruction. I think in fact it is a gratuitous smear of Mr. Jordan and it certainly does not provide a basis for extending this proceeding to ask him questions about it. *** Eastern Time 15:00 *** KENDALL: Now, Mr. Manager Hutchinson also claimed that there is a conflict between the testimony of Ms. Lewinsky and Mr. Jordan on the issue of whether they discussed specific changes that were subsequently made in her affidavit. He said to you that he thought that was a basis for calling them as witnesses. However, the record is clear. It could not be clearer that the idea of certain deletions in the affidavit came from Ms. Lewinsky's lawyer, Mr. Frank Carter. As I mentioned in my presentation on Thursday, Ms. Lewinsky discussed that she had talked to Mr. Jordan about some affidavit changes, and he told her, go talk to your lawyer. KENDALL: In any event, Ms. Lewinsky's lawyer, Mr. Frank Carter, testified unequivocally to the grand jury, "I don't recall Vernon ever asking me the substance of what Monica told me or tried to talk about what the substance of what Monica told me. He clearly never told me how I should proceed or what I should do." Mr. Carter further testified that paragraph 6 of the affidavit in its draft form as the last part of a sentence has certain words about a private meeting. That paragraph, Mr. Carter, Ms. Lewinsky's lawyer testified, was modified when we sat down in my office on January 7th. He further testified that it was his idea before that meeting to take it out because he didn't want to give Ms. Jones' lawyers any hint of a one-on-one meeting. There is simply no basis to call Mr. Vernon Jordan once again to have him go through the things he's testified about a great many times already. KENDALL: Now, we come to Sidney Blumenthal. Mr. Manager Rogan very ably argued that there was a need to call Mr. Blumenthal because of Mr. Blumenthal's testimony as to what the president had told him, Sidney Blumenthal, in the aftermath of the explosion of publicity over the Lewinsky matter in January a year ago. Well first of all, there is no conflict here that is material because the president has never disputed Mr. Blumenthal or his aides' accounts of this conversation. The -- any dispute is wholly immaterial as to the two counts -- two articles of impeachment. The president was examined extensively about this subject in his own grand jury testimony. And he testified as to what he tried to say, but he also added that in this period, things were a blur. It's a term he used one time. A "blizzard" was a term he used another time. KENDALL: That he'd had discussions with a number of his aides, including Mr. Blumenthal, he tried to be careful in what he said, he thought he was technically accurate, but he would not dispute and did not dispute their characterizations of what they recalled of the conversations with him. Again, Mr. Blumenthal, Mr. Rogan pointed this out, testified three times before the grand jury. His recollection of his conversations with the president has been analyzed in detail. And a further round of deposition would add nothing of substance to that testimony. Indeed, in the president's speech to the nation the day of his grand jury speech -- his grand jury testimony -- when he spoke to the nation the evening of August 17, also represented an acknowledgment by the president that he had misled his aides such as Sidney Blumenthal. *** Eastern Time 15:04 *** KENDALL: As I indicated last Thursday, however, any statements to the White House staff could have had no impact whatsoever on the Paula Jones case, as Article II alleges each of the seven grounds has, because Mr. Blumenthal had no firsthand knowledge of the president's relation with Ms. Lewinsky. He could only report to the grand jury what the president had told him, however misleading those statements of the president may been at the time. There is no dispute here; there's no material reason to call Mr. Blumenthal except to try to embarrass the president by the presentation of testimony from a member of his senior staff. Now, the next two things that the managers would seek to add to the record are not -- they tell you live witness testimony, but don't let that fool you. KENDALL: They want to put in two sworn -- two sworn declarations. It's like an affidavit -- from two people. One of them is a Mr. Wesley Holmes (ph), a lawyer for Ms. Paula Jones. And the other is Mr. Barry Ward (ph). Now, I don't have the pleasure of knowing Mr. Wesley Holmes, but I do know Mr. Barry Ward. He is a very intelligent, very hardworking and knowledgeable young lawyer in Little Rock, Arkansas who works as a law clerk for Chief Judge Wright. He's got an encyclopedic knowledge of Razorback athletic lore. He has a lot of fine characteristics. He's very helpful as a law clerk. He gets information to you and back very efficiently. But there is one thing Mr. Ward is not, and I'm sure he would agree with that. He's not a mind reader. He's not a mind reader. KENDALL: There were a number of people in the room at the deposition. None of them were mind readers. They can all give their testimony about what they thought was going through the president's mind. The president has addressed that a number of times. You've seen the videotape. Now, the second witness is exceedingly interesting, and that is Mr. Holmes. And Mr. Holmes would give a sworn declaration to, among other things, say what he had in mind when he issued the witness subpoena to Betty Currie, which was several days -- was days after the president's conversation with her on December the 18th. Well, this would be -- he would be a very interesting witness to depose, let me tell you. This is one of Paula Jones' lawyers talking about offering a declaration about his litigation strategy, and I think that the opportunity to depose him would provide a great deal of information about what really motivated the events of January 1998. KENDALL: I think we could show that there were a number of connections between the independent counsel, Linda Tripp, and the Paula Jones lawyers. But I don't think you need to get into that briar patch because Mr. Holmes (ph) is not a mind reader any more than Mr. Ward (ph) is. You simply don't need that testimony to illuminate the record. Now, the last category -- and let me -- let me just before I leave that make the point that while the managers would like very much to throw in a couple of sworn declarations, you be assured of our need to take discovery and in Mr. Holmes' (ph) case take comprehensive discovery. *** Eastern Time 15:08 *** KENDALL: I don't think anything in S. Res. 16 -- I don't know that you've gotten to this -- but I don't read the resolution as authorizing simple hearsay evidence. We would need to depose the Paula Jones lawyers in some detail, and I think they've now waived significant legal protections that would make that possible. Finally, there was a category of telephone records. It's a little hard to address that category. Those are just documents. I don't think the record need be expanded by their addition, and I'll tell you why. Telephone records, as I said the other day, really tell you nothing, unless there is -- it's very important to time, to date, a particular call. They really are inscrutable. You've got to have the witness to testify about they mean. I don't see anything in there that would justify opening the record to add certain telephone records. KENDALL: Finally, I want to be candid with you. I don't want to be alarmist. I want to be honest, though, about what opening the door to discovery will mean for this process. I said before that the Senate had been fair in these proceedings, and it has been fair. I think the identification of a specific record which the parties could agree on, have in the sunlight, talk about, argue about was the fair thing to do and the right thing to do. I think if discovery is inevitable, we will anticipate and believe that you will be fair in allowing us the discovery we're going to need. Now, I would ask you if you would to read our trial memorandum, because at pages 124 to 130, we've set forth there our need for discovery. It's not a new invention. Should the Senate decide to authorize the House managers to call additional witnesses, live in this proceeding or have their depositions taken, we will be faced with a critical need for the discovery of evidence useful to our defense. KENDALL: I made the point that the discovery of evidence in the Office of Independent Counsel proceeding was, not to put too find a point on it, not aimed at getting us exculpatory or helpful evidence. We need to be able to do that. We've never had the kind of compulsory process, the kind of ability to subpoena documents and witnesses that you would have in an garden variety civil case. We have not had access to a great deal -- many thousands of pages -- of evidence which is first of all in the hands of the House managers that they got from the Office of Independent Counsel, but did not put into the public record; did not print up. We also need discovery of those other documents, witness testimony transcripts, interview notes -- other materials which may be helpful or exculpatory that are in the hands of the independent counsel. KENDALL: Our dilemma is this: we do not know what we do not know. That's what discovery means, you've got to get discovery so you can find out what is available. It may not necessarily prolong a trial, but it makes you available to defend your client in the way you've got to be able to do as a lawyer. It doesn't turn on the number of witnesses. The calling of these witnesses, you know, produces a need in us to be ready to examine them, to cross-examine them. It initiates a process that leaves us unprepared and exposed unless we have adequate discovery. This is a proceeding -- I need not remind you; I know everyone recognizes its gravity. KENDALL: To remove the president of the United States you have got to give us -- and I believe you will -- the discovery that will enable us to represent the president adequately, competently and effectively. Now, the sequence of discovery is also important. I want to be clear about that. It's all very well, and I recognize how it happens for one side to say, well, we're going to put on three witnesses and they can put on three witnesses. Well, ladies and gentlemen of the Senate, we don't know right now how to make a reasoned choice because we haven't had the discovery you would normally have to do that. We would first need to obtain and review the relevant documents. And I've indicated where those are. We then need -- we would then need to be able to depose relevant witnesses. We'd need to know whether the witness depositions that the House managers had taken would need to lead to other depositions there. Only at that point, when we've had discovery of our witnesses, will we be able to identify the witnesses we might want to call. This is a logical procedure, and I think those of you who have tried cases will recognize it as such. It's simply impossible from where we now are to see how a witness designated by the House managers can be fairly rebutted, without ourselves having access to all the available evidence. KENDALL: Given what is at stake, I think fundamental fairness requires fair discovery. We will be expeditious, but in the event the genie is out of the bottle, we need time; we need access to defend the president in the way any client ought to be defended. Now, I think the Senate has wisely elected to proceed on a voluminous record, a record that is available for public scrutiny that was assembled by people not favorable to the president. I think you have enough evidence to make your decision on the basis of that record. KENDALL: But in the event you decide to expand it, affording us adequate discovery is essential if we're going to really practice the rule of law as I believe the Senate would intend for that rule of law to be practiced in its proceedings. But let me conclude by saying that I don't think, and I respectfully submit to you, that there is a need to prolong this process. We hope that you will render your decision in a manner that is speedy, and we're confident that you'll decide, you'll make that decision in a manner that is fair. And this body will, as so often it's done in past times of crisis, be able to bring to the country both the closure and reconciliation that the country wants so very much. Thank you. REHNQUIST: Does counsel for the president have any more presentation? KENDALL: (OFF-MIKE), Mr. Chief Justice, I would reserve the remainder of my time. REHNQUIST: No, you can't reserve it. It's open respond and rebuttal. KENDALL: I will then quick (ph) claim the rest of my time. REHNQUIST: Very well. (LAUGHTER) BRYANT: Mr. Chief Justice, may I inquire as to how much rebuttal time we have remaining? REHNQUIST: Thirty minutes. BRYANT: Thank you, Mr. Chief Justice. I will be brief and ask other managers to come up to follow me. I have four quick points to make. And before I get into that I want to thank my distinguished colleague from D.C. Mr. Kendall. Over my practice of law for several years I've received a number of jabs before in the courtroom but never so gentle and never so eloquently. And I thank you. BRYANT: I think his presentation was very good but probably makes the best illustration of why witnesses are needed, in that he has chosen to use selective quotes. He likes to use those quotes and point to the managers over there, where we were quoted, without a real context there. And certainly, that is what this hearing has been about so far -- both sides picking and choosing among quotes that best illustrate the point we want to make at the time, but really what we need is the big picture, the entire complete picture of witnesses that only witnesses can provide in this case. But let me go back to a couple of the selective quotes, and that is the quotes that we made back in the House when we were involved in the proceedings, which I would remind each one of you, involved these very same stacks of books here, the record, that they have so shown you in the past in a very, I guess, very often forum that -- This is the record here. Why do we need to go outside the record? Well, that very same record was in the House, and it was at that time that Mr. Lowell, the minority counsel, was representing the president's interests, but also Mr. Kendall was there, and in fact, both examined Mr. Starr. BRYANT: That was when they were making the request for the witnesses based on this very same record, notwithstanding that, we need witnesses. I simply point that out to you to show you that Mr. Kendall and his very talented staff do not have a monopoly on consistency. Another example of selective quoting has to do with quotes made about our occasion to visit Ms. Lewinsky, to talk to her. This is the one witness we've not been able to talk to, and he pulled those quotes out as if we need to talk to all the witnesses. We don't need to talk to all the witnesses, but we needed to sit down and talk with her. And I might tell you that she was very ably represented by three attorneys. She had as many lawyers there as we did and perhaps more, so she was not imposed upon. And I think, in terms of my statement about discovery, I think perhaps was misunderstood, but I certainly conceded that the White House might want to discover, depose Ms. Lewinsky, but I still have a hard time determining why they would need to discover what Ms. Currie might want to say, who sits right outside the president's office every day, or what Mr. Jordan might say, who plays golf with Mr. Clinton practically every day, or Mr. Podesta, his former chief of staff. *** Eastern Time 15:19 *** BRYANT: I'm just trying to save this Senate some time and question why we would need to go through discovery of those types of people. And my last point I'd like to make before I bring Mr. Hutchinson in, Mr. Kendall mentioned a point, and I'm not sure where was going in terms of perhaps trying to worst-case the situation in terms of it taking forever and a day to conclude discovery of all kinds of witnesses, and alluded to needing to take all the lawyers for Paula Jones and questioning her motivation. I would suggest to you that a real clue to her motivation for this lawsuit was the -- we can say the 850,000 reasons motivation that she received the other day. But let me end with that note and bring up Mr. Hutchinson who will continue this process. Thank you. REHNQUIST: The chair recognizes Mr. Hutchinson. HUTCHINSON: Thank you, Mr. Chief Justice. I'll just take a moment. Mr. Kendall did an outstanding job, as he always does, in making his case for not calling witnesses. I thought the most compelling example as to why we need witnesses was the fact that he called a live witness, Vernon Jordan. Mr. Jordan testified here in this chamber. Why did they not present a transcript? Why did he want to bring a live witness? Because it was real, it was alive, it was more meaningful than a transcript, he told the story in short, concise ways that I have not been able to do during my presentation during the last week. We would like to have the same opportunity, not through video, but to present a live witness so that he could cross-examine, so that we could question. I think that is a fair proceeding. Now, Mr. Kendall raised the point that the statements about the notes that Ms. Lewinsky testified she discussed with Mr. Jordan were referenced in her February '98 proffer. HUTCHINSON: When I was making my point, I was referencing her August grand jury testimony, not the February proffer, because my recollection is that that February proffer that was submitted by Mr. Ginsburg had subsequently become a subject of litigation because they were not able to reach an immunity agreement, and so perhaps that was the reason that that subject was not inquired into with -- by the independent counsel. For whatever reason, my review of the transcripts is that that subject was never broached with Mr. Jordan. I don't profess perfect knowledge of it, but that is my understanding of it. And then, finally, I want to also look at the discovery that Mr. Bryant referenced. There was a gambling illustration that Mr. Kendall used, about blackjack. Well, another part of poker is bluffs, and I don't know whether they're bluffing. HUTCHINSON: I don't know whether they're serious about all the discovery that they need to have. But I know that lawyers do that sometimes to intimidate, to scare you away. But I think even more importantly is that the House managers have submitted to the rules of the Senate. We weren't particularly happy about all of them, but we recognized it was important to have legitimacy of this process. We accept that. We move on. I would hope that whatever rules on discovery; whatever limitations you wish to put; whatever timeframes you wish to put, that the White House counsel will be as amenable to the desire of this Senate and this nation to conclude this as we have been in adapting what our desires are to your schedule. I yield to Mr. McCollum. REHNQUIST: The chair recognizes Mr. Manager McCollum. MCCOLLUM: Mr. Chief Justice, thank you very much. MCCOLLUM: I want to make a couple of observations and one of them seems pretty apparent. Mr. Kendall says they're not afraid and that I was wrong in characterizing them as being afraid, the White House counsel, of calling witnesses. But I'm going to tell you, I can't rationalize any other way why he'd be out here making the pitch as hard as he is against witnesses, especially the sort of threat that this is going to go on and on and on if you open the door and we call three witnesses. You know, we're down from thinking we ought to have ten, 12, maybe 15 witnesses to three: Monica Lewinsky, Vernon Jordan, and Sidney Blumenthal. And we've introduced three or propose to introduce three very simple pieces of new evidence. That can't take a lot of discovery, the need to go further than that. You know, if he wants to produce witnesses that's fine, but I just can't imagine why that opens that door. Mr. Holmes (ph) he talks about, the attorney. What's the significance of that declaration or affidavit, that sworn declaration that we'd like you to take in that he says, well, we've got to depose Mr. Holmes about? MCCOLLUM: That was put in very simply because the counsel on the other side, I don't accuse them of doing it intentionally, but the other day they misled us, I think unintentionally misled you, on the idea that the president at the time that he left the deposition in the Jones case and went over to talk to Betty Currie the next day, didn't and couldn't have had any idea that -- that she was going to be called as a witness. In fact, I think they said there -- she never was on a witness list and she never was subpoenaed. What Mr. Holmes' declaration does, as I said earlier, is bring into the record the subpoena that in fact was issued within a day or so of that time of when Betty Currie was talked to. Remember, he talked to her twice; the notice about it and her name being put on the witness list. That's what that's all about, and a general explanation of why they chose, as attorneys, to make that case; why they chose to put her name out there and subpoena her so that it's clear on the record. MCCOLLUM: Very simple. If you look at it, and I'm sure you'll have it before you to consider, his declaration is very short. It's like three paragraphs, and it goes straight to the point, and it encloses these accompanying documents. So, I don't think you should for one minute think that opens the door to some great big, gigantic, long new discovery period. That is simply an idle threat to intimidate, in my judgment, with a proper intimidation effort, proper tactic -- I don't accuse them of anything improper -- you, to try to discourage you from letting us have these three witnesses. Second, I want to point out that with respect to some of the things that I said, and one thing I did say earlier is I don't know what all the witnesses would say if we call them. And I don't know what they all will say, certainly. But I would expect them all to be consistent with what they've already said in their sworn testimony. And there's nothing inconsistent with my expecting them to be consistent on the facts we already know, since that sworn testimony in the case of Monica Lewinsky, she has immunity that, if she deviates and goes off of it, she could get herself in trouble. *** Eastern Time 15:25 *** MCCOLLUM: But does by no means my expectation that the testimony you already have will remain true mean that I don't think there are new things to be brought out, or that you shouldn't have live witnesses here. And I thought it interesting that Mr. Kendall totally ignored the one thing was most significant in my mind. And that is the whole idea that there is a need for witnesses out here to determine their credibility, to check their demeanor, to see how they respond to questioning, to do all of those things that I described earlier that any reasonable attorney in any court room setting in this country in a criminal case -- and you do have to decide whether the crimes are committed or not -- would expect to do, so you can, as my colleagues have said, look 'em in the eye and make that determination yourself. He didn't even address that. MCCOLLUM: And I think that that alone is sufficiently good reason to have a live witness here, as I said before to you. So with that in mind I will yield to Mr. Rogan. REHNQUIST: The chair recognizes Mr. Rogan. ROGAN: Mr. Chief Justice. Members of the Senate, Mr. Kendall made a very able and strong presentation. It was particularly effective when he brought up a series of quotations from House members and House managers talking about the need for witnesses or the lack thereof. It would be more effective if it were presented in context, but it could not be, because the context of every single one of those quotations was in reference to the distinction between the House's function as the accusatory body versus the Senate's constitutional function of being the body where an impeachment case is tried. There he blurs the distinctions. That's why in the Constitution a president is impeached solely on a majority vote but removal requires at the trial a two-thirds vote. *** Eastern Time 15:29 *** ROGAN: Now Mr. Kendall's presentation begs the question, did the founders get it wrong when they designed this process? Did the founders simply intend for us to waste our resources rather than conserve them, and simply do the very same thing, first in one body and then in the other, with the sole distinction that the only difference would be the ultimate vote. That was not their intent. That was not the procedure established by the Constitution, and it is not the procedure recognized throughout the country in court proceedings. There is a reason why courts of inferior jurisdiction will be able to hold a defendant in a criminal case to answer for trial at a preliminary hearing based on hearsay testimony, based on transcripts, based solely on police reports. But that defendant at a trial has a constitutional right to come forward, and the right to confront and cross-examine witnesses is supreme and guaranteed in the Constitution because the framers understood the difference, even if White House counsel refuses to acknowledge the difference. ROGAN: Now the argument they have really isn't with the House managers. Their argument is with the precedents of the House. Their argument in fact is with people like the venerable Barbara Jordan, our late distinguished former colleague. She understood the difference between the House's function in an impeachment role versus the Senate's function. She said during the Rodino hearings: "In establishing the division between the two branches of the legislature, the House and the Senate, assigning the right to accuse and to the other the right to judge. The framers of the Constitution were very astute. They did not make the accusers and the judges the same person." Now, in the words of Yogi Berra, I feel that we're going through deja vu all over again with Mr. Kendall's able proceeding. ROGAN: Because what he has accentuated in this presentation has been accentuated by White House counsel ever since they first rose to address this body at the lectern. And that is the complaint that no witnesses were called before the House Judiciary Committee, and how wrong it is for members of the House managers now to assert the need and the right to have witnesses before this body, when in fact no witnesses were called before the Judiciary Committee. Once again, he mistakes the function of the two houses. But I would invite the members of this body, if that is an issue concerning them, to go back and review the voluminous transcripts during the Judiciary Committee, where Chairman Hyde did everything but get on his knees and beg the members of the president's defense team, beg our colleagues on the other side of the aisle, to identify for us which witnesses they wished to dispute; what facts they wanted to challenge. Let us know who the witnesses are, where there is a contention in the evidence. *** Eastern Time 15:32 *** ROGAN: sand despite their complaining and despite their griping and despite their anger over a supposedly unfair process, they never once identified in the factual record whose testimony they wished to challenge. What we heard repeatedly, day after day, in the hearing and outside before the cameras, was an attack upon the process rather than an identification of the issues where there are factual disputes. In fact, they refuse to identify, despite the repeated pleas of Chairman Hyde, who those witnesses are that they felt were appropriately, because the chairman said: tell us who they are, we will call them. They champion the cause of witnesses in word, but they do not champion the cause of witnesses in deed, at least not in the House, because the same people who were complaining of the unfairness in the House for not having witnesses suddenly have an allergic reaction to the concept of witnesses being called before this where it counts the most, where the ultimate decision is to be made, where the triers of fact have to make the constitutional decision whether the case is sufficient for removal of the president. ROGAN: And Mr. Kendall's repeated hints and statements that somehow they were denied some form of due process in the House by not being able to call witnesses is patently unfair and does not withstand the test of the record. Chairman Hyde alluded to it a couple of days ago and, based upon Mr. Kendall's presentation, I feel it is worth a minute or two of this body's time. Mr. Kendall has stated in these proceedings, and I am quoting, "We have never had the chance to call witnesses ourselves, to examine them, to cross-examine them, to subpoena documentary evidence at no point in this process." The record is to the contrary. On October 5th, the House passed a procedure by voice vote, which included the right to call witnesses. ROGAN: On October 21st, the House Judiciary Committee staff met with Mr. Ruff, Kendall, and Craig. At that time, Judiciary Committee staff asked the White House to provide any exculpatory information and provide a list of any witnesses the president wished to call. On November 9th, the House Judiciary Committee staff wrote to Mssrs. Ruff, Kendall, and Craig and again informed them of the president's right to call witnesses. On November 19th, Independent Counsel Starr testified before the House Judiciary Committee. The president's counsel was given the opportunity to question the independent counsel. The president's counsel did not ask a question relating to the facts of the independent counsel's report and allegations against the president. On November 25th, Chairman Hyde wrote a letter to the president asking the president, among other things, to provide any exculpatory information and inform the committee of any witnesses he wished to call. On December 4th, two working days before the presentation of the president to the Judiciary Committee, counsel for the president requested to put on 15 witnesses. The White House was allowed to present all 15 witnesses and not a single one of the 15 witnesses that they wished to call, that they asked to call, were factual witnesses. And so the complaints of unfairness are unfair. ROGAN: One other point I want to make, because again I see a reversal in roles, is that Mr. Kendall can't seem to decide what type of ogre role he wants to portray us. Because he said in his presentation, just a few minutes ago, that we were somehow, at least he alluded to the fact that we were somehow tools of Judge Starr and the Office of Independent Counsel. And I was a little surprised to hear him suggest that Judge Starr spoon fed us the charges. And that Judge Starr spoon fed them to us to the point where he didn't know whether Judge Starr should be deemed an honorary member of the House management team. Well, that's an interesting proposition, because it seemed to me just a day or two ago, the same lawyers who are now making this allegation were claiming constitutional unfairness before this body and asking that this body dismiss the articles of impeachment. Why? Because the House Judiciary Committee and the managers didn't present the exact same charges that the independent counsel suggested. You can't have it both ways. You can't fashion the argument depending on what the result is being sought, and yet that is exactly what the White House counsel are attempting to do. Yesterday we were renegades who didn't follow the strict rules of Judge Starr, and didn't give them proper notice. Now, of course, he is the marionette and we are the puppets doing his will. ROGAN: Members of this body, it is the job of the House of Representatives, it is the constitutional obligation of the House of Representatives, to act as the accusatory body in an impeachment proceeding. The Constitution gives the authority to this body the right to try that case. This is the place for trial. This is the place to determine guilt. This is the place to determine credibility. This is the place for witnesses. Mr. Chief Justice, I yield the balance of our time to our distinguished chairman of the House Judiciary Committee. REHNQUIST: The chair recognizes Mr. Manager Hyde. REHNQUIST: (OFF-MIKE) Mr. Hyde. HYDE: Thank you, Mr. Chief Justice, I won't use the entire nine minutes. Mr. Chief Justice, distinguished counsel and senators, I'll be very brief. Just that Mr. Rogan and my colleagues have handled this very well, but just a couple of things I want to talk about. It is disturbing, it's annoying, it's irritating when I hear that the counsel for the president had been cut off from information and data; we've sequestered things on them. I pleaded with them to produce witnesses, made the subpoenas available to them. They have a positive allergy to fact witnesses. Oh, they'll come up with academics. We saw a parade of professors. You know what an intellectual is? It's someone who's educated beyond their intelligence. (LAUGHTER) And I certainly don't mean that if some of those Harvard professors that they paraded out, even though we disagreed with them, but you would get eye strain looking for a fact witness. HYDE: And it is remarkable the flexibility they have. They complained that we called no witnesses in the House. Now they're complaining that we're calling witnesses in the Senate, as though they don't understand the difference in the threshold. There we had to prove we had enough to submit to the Senate for a trial, but not try it over there. And a majority vote prevails over there. Here, you have an extraordinary mountain to climb, a two-thirds vote, and the trial is here. And that's the difference. And witnesses help you. They won't help me. I know the record. I'm satisfied a compelling case is here for removal of the president. But they will help you, and we aren't dragging this out. We have been as swift as decency will let us be throughout this entire situation. *** Eastern Time 15:39 *** HYDE: Their defense has never been on the facts. If they can come up with a good fact witness that has something to say, we will see a reenactment of the Indian rope trick, it seems to me. We will see professors, though, if past is prologue. I don't know. But the threat of -- the threat of prolonged hearings, I supposed is supposed to make you tremble. It doesn't to me, but then different things -- different strokes, I guess, for different folks. But their defense has been to demonize Mr. Starr to a fare-thee-well, and to yell about the process. That has been their defense. And I'll be frank with you, I'm not sure I could stand a lot more of that, but that's what they will do. HYDE: As far as the information not available to them, maybe not. Maybe some of the stuff we got from the independent counsel was held in executive session. But it was available to Mr. Conyers. It was available to Abbe Lowell. It was available to every Democrat on the Judiciary Committee. And they went through it. I wrote with Mr. Conyers to Mr. Starr a letter saying: Show us what you didn't send us, let's look at what you've got over there, there might be some exculpatory material. And Mr. Conyers sent his people over and they looked and they looked and they looked. And I would assume they were in touch with you folks, I would assume they were. If they weren't they should have been. That's a breakdown in communication. Now, we can -- we have a good case, we have an excellent case without the witnesses, but the witnesses help you. We have narrowed it down to three, a pitiful three. HYDE: And I should think you would want to proceed with that minimum testimony, and Mr. Kendall can try his cross-examination skills on them, and that I want to watch. Thank you. (LAUGHTER) REHNQUIST: The time of both sides has now expired. The chair recognizes the majority leader. LOTT: Mr. Chief Justice, in view of the time that we've been in without a break, the next pending business is that we would -- it would be in order to have a motion by Senator Harkin or Senator Wellstone. But before we do that, I would suggest that, without objection, we take a 15-minute break. REHNQUIST: In the absence of objection, it's so ordered. LOTT: Would the senators please stand and wait until the chief justice leaves the chamber. (BREAK) LOTT: Mr. Chief Justice, I ask unanimous consent that during each day that Senate sits as a court of impeachment, it be in order for senators to submit to the desk statements and introduce legislation. REHNQUIST: In the absence of objection, it's so ordered. LOTT: Now, Mr. Chief Justice, I believe at this point it would be in order for a motion to be made that we go into open debate, if any, and then when that is dispensed with, we would go to the move to close and would deal with that issue. And then we would begin the closed session. And so I believe we're ready for a motion to be offered, if any, at this time. REHNQUIST: The chair recognizes the senator from Iowa, Mr. Harkin. HARKIN: Mr. Chief Justice, in according with rule -- accordance with rule five of the Senate standing rules, I filed a motion of intent to move to suspend the rules, to open debate on this motion to subpoena witnesses. The motion is at the desk and it's numbered number five, I believe. REHNQUIST: The clerk will report the motion. CLERK: The senator from Iowa, Mr. Harkin, for himself and Mr. Wellstone moves to suspend the following portions of the rules of procedure and practice in the Senate when sitting on impeachment trials in regard to debate by senators on a motion to subpoena witnesses during the trial of President William Jefferson Clinton. CLERK: The senator from Iowa, Mr. Harkin, for himself and Mr. Wellstone, moves to suspend the -- to suspend the following portions of the rules of procedure and practice in the Senate when sitting on impeachment trials in regard to debate by senators on a motion to subpoena witnesses during the trial of President William Jefferson Clinton. One, the phrase "without debate" in rule 7. Two, the following portion of rule 20: "Unless the Senate shall direct the doors to be closed while deliberating upon its decision, a motion to close the doors may be acted upon without objection or if objection is heard the motion shall be voted on without debate and by yeas and nays, which shall be entered on the record." And three, in rule 24, the phrases "without debate except when the doors shall be closed for deliberation and in that that case" and "to be had without debate." REHNQUIST: The senator from Iowa. HARKIN: I ask for the yeas and nays. REHNQUIST: Is there sufficient second? There is. The clerk will call the role. CLERK: Mr. Abraham. ABRAHAM: (OFF-MIKE) CLERK: Mr. Abraham, no. Mr. Akaka. AKAKA: Aye. CLERK: Mr. Akaka, aye. Mr. Allard. ALLARD: No. CLERK: Mr. Allard, no. Mr. Ashcroft. ASHCROFT: No. CLERK: Mr. Ashcroft, no. Mr. Baucus. BAUCUS: (OFF-MIKE) CLERK: Mr. Baucus, no. CLERK: Mr. Bayh. BAYH: Aye. CLERK: Mr. Bayh, aye. Mr. Bennett. BENNETT: No. CLERK: Mr. Bennett, no. Mr. Biden. BIDEN: Aye. CLERK: Mr. Biden, aye. Mr. Bingaman. BINGAMAN: Aye. CLERK: Mr. Bingaman, aye. Mr. Bond. CLERK: Mr. Bond, no. Mrs. Boxer. BOXER: Aye. CLERK: Mrs. Boxer, aye. Mr. Breaux. BREAUX: Aye. CLERK: Mr. Breaux, aye. Mr. Brownback. BROWNBACK: No. CLERK: Mr. Brownback, no. Mr. Bryan. BRYAN: Aye. CLERK: Mr. Bryan, aye. Mr. Bunning. BUNNING: No. CLERK: Mr. Bunning, no. Mr. Burns. BURNS: No. CLERK: Mr. Burns, no. Mr. Byrd. Mr. Campbell. CAMPBELL: (OFF-MIKE) CLERK: Mr. Campbell, no. Mr. Chafee. CHAFEE: No. CLERK: Mr. Chafee, no. Mr. Cleland. CLELAND: Aye. CLERK: Mr. Cleland, aye. Mr. Cochran. COCHRAN: No. CLERK: Mr. Cochran, no. Ms. Collins. COLLINS: Aye. CLERK: Ms. Collins, aye. Mr. Conrad. CONRAD: Aye. CLERK: Mr. Conrad, aye. Mr. Coverdell. COVERDELL: No. CLERK: Mr. Coverdell, no. Mr. Craig CRAIG: No. CLERK: Mr. Craig, no. Mr. Crapo. CRAPO: No. CLERK: Mr. Crapo, no. Mr. Daschle. DASCHLE: Aye. CLERK: Mr. Daschle, aye. Mr. DeWine. DEWINE: No. CLERK: Mr. DeWine, no. Mr. Dodd. DODD: Aye. CLERK: Mr. Dodd, aye. Mr. Domenici. DOMENICI: No. CLERK: Mr. Domenici, no. Mr. Dorgan. DORGAN: Aye. CLERK: Mr. Dorgan, aye. Mr. Durbin. DURBIN: Aye. CLERK: Mr. Durbin, aye. Mr. Edwards. EDWARDS: Aye. CLERK: Mr. Edwards, aye. Mr. Enzi. ENZI: No. CLERK: Mr. Enzi, no. Mr. Feingold. FEINGOLD: Aye. CLERK: Mr. Feingold, aye. Mrs. Feinstein. FEINSTEIN: Aye. CLERK: Mrs. Feinstein, aye. Mr. Fitzgerald. FITZGERALD: No. CLERK: Mr. Fitzgerald, no. Mr. Frist. FRIST: No. CLERK: Mr. Frist, no. Mr. Gorton. GORTON: No. CLERK: Mr. Gorton, no. Mr. Graham of Florida. GRAHAM: Aye. CLERK: Mr. Graham of Florida, aye. Mr. Gramm of Texas. Mr. Grams of Minnesota. GRAMS: No. CLERK: Mr. Grams of Minnesota, no. Mr. Grassley GRASSLEY: No. CLERK: Mr. Grassley, no. Mr. Gregg. GREGG: No. CLERK: Mr. Gregg, no. Mr. Hagel. HAGEL: No. CLERK: Mr. Hagel, no. Mr. Harkin. HARKIN: Aye. CLERK: Mr. Harkin, aye. Mr. Hatch. HATCH: No. CLERK: Mr. Hatch, no. Mr. Helms. Mr. Hollings. HOLLINGS: Aye. CLERK: Mr. Hollings, aye. Mr. Hutchinson of Arkansas. HUTCHINSON: No. CLERK: Mr. Hutchinson of Arkansas, no. Mrs. Hutchison of Texas. HUTCHISON: Aye. CLERK: Mrs. Hutchison of Texas, aye. Mr. Inhofe. INHOFE: No. CLERK: Mr. Inhofe, no. Mr. Inouye. INOUYE: Aye. CLERK: Mr. Inouye, aye. Mr. Jeffords. JEFFORDS: No. CLERK: Mr. Jeffords, no. Mr. Johnson. JOHNSON: Aye. CLERK: Mr. Johnson, aye. Mr. Kennedy. KENNEDY: Aye. CLERK: Mr. Kennedy, aye. Mr. Kerrey of Nebraska. KERREY: Aye. CLERK: Mr. Kerrey of Nebraska, aye. Mr. Kerry of Massachusetts. Mr. Kohl. KOHL: Aye. CLERK: Mr. Kohl, aye. Mr. Kyl. KYL: (OFF-MIKE) Mr. Kyl, no. Ms. Landrieu. LANDRIEU: No. CLERK: Ms. Landrieu, no. Mr. Lautenberg. LAUTENBERG: Aye. CLERK: Mr. Lautenberg, aye. Mr. Leahy. LEAHY: Aye. CLERK: Mr. Leahy, aye. Mr. Levin. LEVIN: Aye. CLERK: Mr. Levin, aye. Mr. Lieberman. LIEBERMAN: Aye. CLERK: Mr. Lieberman, aye. Mrs. Lincoln. LINCOLN: No. CLERK: Mrs. Lincoln, no. Mr. Lott. LOTT: No. CLERK: Mr. Lott, no. Mr. Lugar. LUGAR: No. CLERK: Mr. Lugar, no. Mr. Mack. MACK: (OFF-MIKE) CLERK: Mr. Mack, no. Mr. McCain. MCCAIN: No. CLERK: Mr. McCain, no. Mr. McConnell. MCCONNELL: No. CLERK: Mr. McConnell, no. Ms. Mikulski. Mr. Moynihan. MOYNIHAN: Aye. CLERK: Mr. Moynihan, aye. Mr. Murkowski. MURKOWSKI: No. CLERK: Mr. Murkowski, no. Mrs. Murray. MURRAY: Aye. CLERK: Mrs. Murray, aye. Mr. Nickles. NICKLES: No. CLERK: Mr. Nickles, no. Mr. Reed of Rhode Island. REED: Aye. CLERK: Mr. Reed of Rhode Island, aye. Mr. Reid of Nevada. REID: Aye. CLERK: Mr. Reid of Nevada, aye. Mr. Robb. ROBB: Aye. CLERK: Mr. Robb, aye. Mr. Roberts. ROBERTS: No. CLERK: Mr. Roberts, no. Mr. Rockefeller. ROCKEFELLER: No. CLERK: Mr. Rockefeller, no. Mr. Roth. ROTH: (OFF-MIKE) CLERK: Mr. Roth, no. Mr. Santorum. SANTORUM: No. CLERK: Mr. Santorum, no. Mr. Sarbanes. SARBANES: Aye. CLERK: Mr. Sarbanes, aye. Mr. Schumer. SCHUMER: Aye. CLERK: Mr. Schumer, aye. Mr. Sessions. SESSIONS: No. CLERK: Mr. Sessions, no. Mr. Shelby. SHELBY: No. CLERK: Mr. Shelby, no. Mr. Smith of New Hampshire. B. SMITH: No. CLERK: Mr. Smith of New Hampshire, no. Mr. Smith of Oregon. G. SMITH: No. CLERK: Mr. Smith of Oregon, no. Ms. Snowe. SNOWE: No. CLERK: Ms. Snowe, no. Mr. Specter. SPECTER: Aye. CLERK: Mr. Specter, aye. Mr. Stevens. STEVENS: No. CLERK: Mr. Stevens, no. Mr. Thomas. THOMAS: No. CLERK: Mr. Thomas, no. Mr. Thompson. THOMPSON: No. CLERK: Mr. Thompson, no. Mr. Thurmond. THURMOND: No. CLERK: Mr. Thurmond, no. Mr. Torricelli. TORRICELLI: Aye. CLERK: Mr. Torricelli, aye. Mr. Voinovich. VOINOVICH: No. CLERK: Mr. Voinovich, no. Mr. Warner. WARNER: No. CLERK: Mr. Warner, no. Mr. Wellstone. WELLSTONE: Aye. CLERK: Mr. Wellstone, aye. Mr. Wyden. WYDEN: Aye. CLERK: Mr. Wyden, aye. Mr. Helms. HELMS: No. CLERK: Mr. Helms, no. Mr. Byrd. BYRD: (OFF-MIKE) CLERK: Mr. Byrd, no. Mr. Gramm of Texas. GRAMM: No. CLERK: Mr. Gramm of Texas, no. REHNQUIST: The chair recognizes the senator from Massachusetts. CLERK: Mr. Kerry of Massachusetts. Mr. Kerry of Massachusetts, no. CLERK: On this vote, the yea's are 51, the nay's are 58. Two- thirds of those senators voting, a quorum being present, not having voted in the affirmative, the motion is not agreed to. *** Eastern Time 16:15 *** REHNQUIST: The chair recognizes the majority leader. LOTT: Mr. Chief Justice, that motion being defeated, I believe it's now in order to move to close the session so that we can have debate on the question of the motion to subpoena witnesses. REHNQUIST: The majority leader is correct. LOTT: I so move, Mr. Chief Justice. REHNQUIST: The question is on the motion. All in favor say "aye." SENATORS IN UNISON: Aye. REHNQUIST: Those opposed, "no." SENATORS IN UNISON: No. REHNQUIST: The motion carries. LOTT: Mr. Chief Justice, I'd like to ask that the senators remain at their place, but I will put in a request for a quorum just momentarily so the appropriate arrangements can be made for the closed session. And Mr. Chief Justice, I would suggest the absence of a quorum. REHNQUIST: The clerk will call the roll. CLERK: (QUORUM CALL) END Testimony index COPYRIGHT 1999 BY FEDERAL DOCUMENT CLEARING HOUSE, INC. NO PORTION OF THIS TRANSCRIPTION MAY BE COPIED, SOLD OR RETRANSMITTED WITHOUT THE EXPRESS WRITTEN AUTHORITY OF FEDERAL DOCUMENT CLEARING HOUSE, INC.