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 Procedural and Factual Insufficiencies In The The Impeachment of William Jefferson ClintonAnalysis By Senator Patrick Leahy Ranking Member, Senate Judiciary CommitteeContents:
On the first day of this Congress, the Vice President of the United States administered the oath of office to the most recently elected Members of the Senate. I was honored by the people of Vermont to be among those Members and to take the oath of office to serve here as a representative of Vermont. With this oath I have again sworn to protect and defend the Constitution of the United States. We were reminded by the Majority Leader at the beginning of the last Congress that the oath we take was formulated in 1868 to help bring the country back together. As Senator Lott has noted, following the Civil War, some urged continued use of an ironclad test oath that barred those who had served the Confederacy from serving in the Federal Government. It took "nearly a quarter of a century of confusion and acrimony" for the Senate to settle upon the oath that we take today. The same year in which our oath was developed, our country experienced its first, and until now, its only presidential impeachment trial. History has judged harshly the "Radical Republicans" who pursued that impeachment against President Andrew Johnson. A notable exception is William Maxwell Evarts, a Vermonter who was criticized by many Republican party leaders for defending a President of the opposite political party. I have been proud of another Vermonter, Gregory Craig, who has played a critical role in the defense of President Clinton. This Senate is the last of the 20th Century. We began this first session of the 106th Congress facing a challenge that no other Senate in over 100 years has been called upon to address. To deal with that challenge, we all took another oath, an oath to do "impartial justice according to the Constitution and laws." That is the oath administered to Senators who must determine whether to override the election of the President of the United States and remove him from office. That oath calls upon Senators to rise above partisan politics and our personal feelings about President Clinton. I focus first on the oaths we take to be Members of the Senate and to serve in this impeachment trial since the House Managers opened and closed their presentation to the Senate pointing to the oaths the President swore to uphold when he assumed on two occasions the office of the President. The Managers have emphasized that the President’s inaugural oath of office imposes a constitutional duty to "take Care that the Laws be faithfully executed." Their argument is that the presidential oath spelled out in Article II, section 1 of the Constitution establishes a special standard of conduct for the President, and when the President violates a law which he has sworn faithfully to execute, he should be removed. Frustrated by the restrictions placed on Congress’s impeachment power, which limits the grounds for removal to "Treason, Bribery or other high Crimes and Misdemeanors," the Managers seek to find alternative constitutional footing to remove this President. But, the Constitution simply does not say that a President shall be removed for "Treason, Bribery, or other conduct inconsistent with his presidential oath and duties." Nor does it say that a President shall be removed for "Treason, Felony, or other Crime," which is the formulation used in the Constitution’s Extradition Clause. The Framers purposely restrained the Congress and carefully circumscribed our power to remove the head of the co-equal Executive Branch of the Federal Government. As Professor Laurence Tribe pointed out last November, during a House subcommittee hearing on the history of impeachment, the presidential oath and Take Care clause cannot properly be invoked so as to make the President of the United States more vulnerable to impeachment and removal from office than other federal officials. "[I]t simply cannot be the case under our Constitution that removing a sitting president should be easier, not harder, than removing a vice president, a cabinet officer, or a sitting federal judge." The Managers have invited the Senate to lower the bar for impeachment and removal of a President by distorting the constitutional text and using the presidential oath in a manner never contemplated by the Framers. I cast my vote mindful of the dangers this seductive invitation poses not only for this President but, more importantly, for the future of the presidency and our constitutional framework. As my oaths demand, I will work to protect and defend the Constitution. I will continue to defend our constitutional democracy against encroachments from all sides. Over the last few years, we have seen scores of constitutional amendments introduced each Congress and several voted upon each year. I have spoken about the assault by amendment being made against the Constitution and defended the Constitution against these "bumper sticker" proposals for constitutional edits. The impeachment of the President is a matter of similar importance. What we do, in terms of the standards we apply and the judgments we make, will either follow the Constitution or alter the intent of the Framers and lower those standards for all time. I have heard more than one Senator acknowledge that in this sense it is not just the President but also the Senate on trial in this matter. In considering what to do we cannot and must not ignore how we arrived at this point lest our actions countenance repetition in the future. We are now in a position to write the lessons we want heeded by future Members who have the privilege to serve America in Congresses into the next century and millennium. When former Senator Dale Bumpers spoke to the Senate about the task before us, he posed a question that many Senators have asked themselves over the course of these impeachment proceedings. He asked, "How do we come to be here?" I raised virtually the same question in an opinion editorial published on December 13, 1998, in the Los Angeles Times. I noted Barbara Tuchman’s gripping account in The Guns of August of how the world teetered into the catastrophe of World War I. She recalled a former German chancellor’s question to his successor: "How did it all happen?" "Ah, if only we knew," was the reply. Future generations may ask the same question of us as they ponder not only how but also why this sorry episode of admitted presidential misconduct led this great country to the brink of paralysis over the possibility of removing a popular President, whose leadership has given this country not just a balanced budget but a surplus two years running, the lowest unemployment in decades and the strongest economy in the world. Our economy is in the best shape in a generation in no small part because of the President’s economic policies. We should be working with the President to make the hard choices and develop the bipartisan cooperation that are needed to move the country forward into the 21st Century with a secure Social Security, strong Medicare and needed investments in education. Instead, we find ourselves facing the first impeachment trial of a duly-elected President and only the second impeachment trial of a sitting President in the history of this country. We find ourselves in this situation due to the poor judgment of the President, whose personal conduct was inexcusable; the antics of a Special Prosecutor run amok; and the political posturing of partisan House Republican leaders, who misconstrued the constitutional role of the House and advanced a take-it-or-leave it strategy of impeachment or nothing. Each step of this unfortunate process has notably lacked one important element: the exercise of sound judgment. That is why the country has looked to the Senate to restore political sanity to this process. The demand on us is not simply to uphold the "rule of law," about which the Managers have repeatedly lectured us. Our oath requires far more than the ministerial act of applying the law to the facts or accepting blindly the facts and conclusions presented by either side in this trial. We are required to evaluate the facts, not in isolation, but in the context of our precedent and the history of impeachments, and with our focus always on what is good for the country. In short, we are required to do what has been missing up to now: exercise judgment, and do so in an impartial fashion. The beginning point in this process must start with the President. We can all agree that the President’s conduct with a young woman who was working in the White House was wrong. It was also deeply disappointing, especially to those who know the President and who support the many good things he has done for this country and the world. His conduct in trying to keep his inexcusable relationship secret from his wife and family, his friends and associates, and from the public glare of a politically-charged lawsuit, though understandable on a human level, has had terrible consequences for him personally and for the legacy of his presidency. For me, one of the President’s most regrettable actions was his nationally-televised statement to the American people in which he shook his finger and defiantly told us that the allegations were untrue. Although not charged in the Articles of Impeachment, that statement was intended to mislead the American people with respect to the nature of his relationship with Ms. Lewinsky. While I understand the pressures that he was under at the time, that statement was wrong. Although the President later apologized for his actions, I feel very strongly that no President should intentionally deceive the American people and I condemn him for having done so. Senator Bumpers reminded us of the human costs that have been paid by this President and his family. The President has admitted before a Federal grand jury terribly embarrassing personal conduct and has seen a videotape of that grand jury testimony broadcast to the entire nation, with excerpts replayed over and over again. This modern day version of the public stockade has been difficult to witness for those who know this man and his family. His punishment has also taken its financial toll. The underlying lawsuit has now been settled and $850,000 paid on a case that initially sought only $75,000 in compensatory damages -- a case that the District Court judge had dismissed for failing to state a claim. His presidency has been permanently tarnished by impeachment. The Senate trial has provided a forum to replay the embarrassing and humiliating facts of the President’s improper relationship. No one can say this President or his presidency has emerged unscathed. But the President’s indiscretions and conduct did not alone bring us to this point. Raising this matter to the level of a constitutional impeachment only began with an investigation and referral from Special Prosecutor Kenneth Starr. Justice Robert Jackson, when he was Attorney General in 1940, observed that the most dangerous power of the prosecutor is the power to "pick people that he thinks he should get, rather than cases that need to be prosecuted." When this happens, he said, "it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then . . . putting investigators to work, to pin some offense on him." "It is here," he concluded, "that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself." In the case of President Clinton, things became personal a long time ago. When Whitewater failed to produce, the President’s detractors began searching for a scandal. "Travelgate" went nowhere. "Filegate" was another dead end. Vincent Foster’s tragic death was a suicide. Last summer, it was reported that the Special Prosecutor had his investigators scouring the countryside looking for women who may have been intimate with Bill Clinton at some point over the last several years. I spoke out then, noting my concern and trying to sound a cautionary note that the permanent investigation of the President was taking yet another wrong turn. Finally, after four years of fruitless investigations, Special Prosecutor Starr renewed his acquaintance with Linda Tripp and began the Monica Lewinsky phase of his investigation. According to Mr. Starr, that contact with Linda Tripp began on January 8, 1998, days before Ms. Lewinsky had filed her affidavit in the Jones case and before the President’s deposition in that matter. As an officer of the court, he could have immediately referred Ms. Tripp’s information to others with authority over such matters. But he did not. Most law enforcement authorities strive to prevent crimes from occurring. Not so with Special Prosecutor Starr. He engaged all the influence, power and authority he could muster to get the President. He adopted Ms. Tripp as his agent, arranged to provide her with immunity from prosecution, and had her wear a wire and lunch with Monica Lewinsky while surreptitiously recording her. He then tried over an extended period of many hours to convince Ms. Lewinsky to agree likewise surreptitiously to record conversations and help him make a case against the President. Does anyone recall after the past year of upheaval the crimes the Special Prosecutor was seeking to find last January? Recall that the "talking points" given to Ms. Tripp by Ms. Lewinsky were supposed to be the "smoking gun" showing that the President was involved in a vast conspiracy and cover-up to suborn perjury from Ms. Tripp. No one now doubts Ms. Lewinsky’s account that she, and she alone, wrote the talking points based on her discussions with Ms. Tripp. Moreover, no one now doubts that Ms. Lewinsky never even discussed those talking points with the President, the President’s attorneys, the President’s friend Vernon Jordan, or anyone associated with the White House. Also recall that Mr. Starr justified his pursuit of this investigation based on Vernon Jordan helping Ms. Lewinsky find a job in New York. His theory, as described in his referral, was that Ms. Lewinsky was influenced to lie about her relationship with the President through the assistance of Mr. Jordan in finding her a job. Yet it was not the President but Linda Tripp who, in early October 1997, first suggested that Ms. Lewinsky move to New York and first discussed with Ms. Lewinsky that she enlist Mr. Jordan’s help with her New York job search. Indeed, Linda Tripp’s role in this scandal is a pivotal one. Fresh from conferring with Mr. Starr’s investigators, armed with promises of immunity from prosecution, Linda Tripp met with the Jones lawyers on the eve of the President’s deposition and briefed them on the President’s relationship with Ms. Lewinsky. Even Mr. Starr eventually admitted that his office could -- and should -- have kept "better control" of Ms. Tripp. A number of concerns have been raised about how this investigation was initiated and conducted by the Special Prosecutor, including whether Mr. Starr withheld material information from the Attorney General when seeking to extend his jurisdiction over the Lewinsky matter, whether he concealed his prior consultations with the attorneys in the Jones case, threatened a potential witness with the loss of the custody of her child, and subpoenaed a minor at school. I have also expressed my concern over the aggressiveness and lack of prosecutorial discretion of his investigation in requiring the testimony of mother against daughter, attorney against client, and Secret Service protectors against protectee -- the latter raising serious security issues that could jeopardize the future safety of presidents -- and requiring bookstores to disclose their customers’ choice of reading material. Finally, the persistent and politically damaging leaks of secret grand jury proceedings have tarnished Mr. Starr’s investigation and fueled concern over his partisanship. Indeed, soon after he had been appointed as special prosecutor, leaks from "law enforcement sources" about the Whitewater investigation under his supervision prompted Mr. Starr to confirm publicly his understanding of the grand jury secrecy rules. He issued a press release on October 20, 1994, pledging that the Office of Independent Counsel ("OIC") would "abide by all of the obligations imposed upon us to protect the integrity of the grand jury process and our ethical obligations as professionals, including those requiring the secrecy of our proceedings." Despite this pledge by Mr. Starr, a federal judge determined in June 1998 that the evidence established a prima facie case that Mr. Starr’s office had violated federal secrecy rules prohibiting attorneys for the government from disclosing confidential grand jury material. A final adjudication of the matter has not been made. Then we come to the matter of the referral from Mr. Starr’s office. The Independent Counsel statute authorizes an independent counsel to "advise the House of Representatives of any substantial and credible information . . . that may constitute grounds for an impeachment." This provision should not be construed to make an independent counsel the House’s Grand Inquisitor, nor to require an independent counsel to become an advocate for impeachment. Rather, a simple, straightforward delivery of the facts collected by the independent counsel, unadorned by surmise, conjecture and conspiracy theories is all that is authorized. Nevertheless, Mr. Starr used this statutory authorization as a springboard to advocate impeachment. His conduct stands in stark contrast to that of the Special Prosecutor in Watergate. As Georgetown University Law Professor Robert Drinan, who served with distinction on the House Judiciary Committee, observed last November in testimony before the House Judiciary Subcommittee on the Constitution: "It is noteworthy that in 1974, the Special Prosecutor gave information and facts to the House Judiciary Committee. He did not, however, recommend impeachment. He knew that the power to recommend impeachment was committed solely to the House of Representatives by the Constitution itself." I am not alone in questioning Mr. Starr’s conduct and his misinterpretation of his role. His own ethics advisor felt compelled to resign his position after Mr. Starr appeared before the House Judiciary Committee as the chief cheerleader for impeachment. Thereafter, Mr. Starr went from chief cheerleader to chief "talking head," making a lengthy television appearance on the news show 20/20. This was only days after he told the House Judiciary Committee, "We [the OIC] go to court and not on the talk-show circuit." In this regard, it bears mention that Mr. Starr’s public relations advisor and his highly touted "career prosecutors" have also appeared on countless talk shows over the past year. Even during the Senate impeachment trial, Mr. Starr has overstepped his proper role and intruded into the Senate’s prerogatives on how these proceedings should be conducted. In effect, he became the chief prosecutor for impeachment. In contravention of a unanimously adopted consent resolution on how the trial would proceed, the Managers enlisted Mr. Starr’s help to force Monica Lewinsky to meet with them as part of her immunity agreement. If she did not say the right things, she subjected herself and her mother and father to prosecution. Press accounts make clear that while Mr. Starr’s representatives were allowed to attend the interview of Ms. Lewinsky on January 24, 1999, neither the Senate nor the President’s counsel were extended such courtesy. This collusive move between the Managers and Mr. Starr was unfair to the President’s counsel and contemptuous of the Senate, which had resolved to defer the issue of witnesses until later in the trial. Mr. Starr’s continued meddling during the Senate impeachment trial has been roundly criticized by both Democrats and Republicans. With his appetite whetted by one weekend’s interference with the Senate impeachment trial, the very next weekend, on Sunday, January 31, 1999, Mr. Starr’s office leaked word to the New York Times that he had determined he could indict a sitting President. Even the House Managers balked at this interference, saying Mr. Starr’s latest leak was "not helpful at all." C. The House Judiciary Committee The next protagonist in this constitutional saga was the House Judiciary Committee. In addition to the serious substantive concerns raised by the way the Committee drafted the Articles of Impeachment -- which I will discuss later -- the Committee also made at least four critical procedural errors. First, the Republicans on the House Judiciary Committee used the muscle of the majority to force its partisan will. History tells us that, to be successful, impeachments must be handled in a bipartisan manner. Chairman Henry Hyde himself has observed on more than one occasion that bipartisanship is crucial to any impeachment proceeding because a political, partisan impeachment will not be trusted. The Framers anticipated that impeachments might be driven by partisanship rather than real demonstrations of guilt. The distinguished historian Arthur M. Schlessinger, Jr., stressed the need for bipartisanship in impeachment proceedings in his testimony before the House Judiciary Subcommittee on the Constitution on November 9, 1998, stating: "The Framers further believed that, if the impeachment process is to acquire popular legitimacy, the bill of particulars must be seen as impeachable by broad sections of the electorate. The charges must be so grave and the evidence for them so weighty that they persuade members of both parties that removal must be considered. The Framers were deeply fearful of partisan manipulation of the impeachment process. . . . The domination of the impeachment process by ‘faction’ would in the view of the Framers deny the process legitimacy." In the 24 years that I have had the honor of serving as a United States Senator, there have been three impeachments, all of Federal judges. Questions have been raised about how our actions as a body and as individual Members in those prior judicial impeachments should serve as precedent for this impeachment trial. I will address the significant and dispositive factual differences between these trials later, but want to stress another significant difference: Those three judicial impeachments were, from beginning to end, handled in a bipartisan fashion. In each case, the House of Representatives was unanimous, or nearly so, in voting to impeach and there was strong bipartisan support in the Senate to convict. Unfortunately, this was not the model followed in the impeachment proceedings against President Clinton. Second, the Committee skirted the important threshold question whether, as a matter of constitutional interpretation, the accusations set out in Mr. Starr’s referral stated a sufficient basis to justify the President’s impeachment and removal. Despite the concurrence of over 800 historians and constitutional scholars that no impeachable offenses had been alleged, the majority on the House Judiciary Committee never questioned Mr. Starr’s initial judgment that the President had committed impeachable offenses. Had the Committee addressed itself to this issue at the start, a factual inquiry may have been unnecessary. Third, having avoided this threshold issue, the Committee then failed to conduct an independent fact-finding inquiry, as it was instructed to do by House Resolution 581. This resolution, adopted on October 8, 1998, directed the Committee "to investigate fully and completely whether sufficient grounds exist for the House of Representatives" to impeach the President. For making such investigation, the resolution authorized the Committee to issue subpoenas for the attendance and testimony of any person, to take depositions of potential witnesses, to require the production of documents and other things, and to issue interrogatories. House Resolution 581 was patterned from the resolution adopted by the House in February 1974, directing the Judiciary Committee to investigate President Nixon. That Committee spent almost five months gathering its own evidence and hearing testimony from multiple witnesses before debating and voting to adopt articles of impeachment. By contrast, the House Judiciary Committee in 1998 relied entirely on the referral of Special Prosecutor Starr. The Committee called not a single witness with first-hand knowledge of the facts to testify about the matters contained in Mr. Starr’s referral. The Committee instead relied on the one-sided testimony procured by Mr. Starr’s lieutenants in the grand jury. Though this testimony was under oath, it certainly was not tested by cross-examination nor was the Special Prosecutor’s office interested in any information that might have been exculpatory to the President. The most probative testimony by Ms. Lewinsky before the grand jury, for example, about no one asking her to lie or promising her a job, was elicited by a diligent grand juror. Yet another startling omission of exculpatory information from Mr. Starr’s referral was only discovered during the Senate deposition of Ms. Lewinsky. She testified in response to Manager Bryant’s inquiry about whether the President told her she should turn the gifts over to the Jones lawyers that she had previously told Mr. Starr’s agents that the President saying, "Well, you have to turn over whatever you have," sounded familiar to her. Nevertheless, the House Judiciary Committee gave a standing ovation to this Special Prosecutor, who misconstrued his statutory role on advising the House and who failed the most basic of a prosecutor’s duties to be fair and to disclose exculpatory information in his possession. Fourth and finally, the House Judiciary Committee minimized the constitutional role of the House in the impeachment process. The Committee erroneously relegated the House to the role of mere "accuser", leaving to the Senate the heavier responsibility of determining whether the conduct at issue warranted removal of the President. Chairman Hyde said, on September 11, 1998, at the beginning of the House impeachment process, "We are acting as a grand jury . . . we are operating as a grand jury." This view persisted during the House floor debate on the Articles of Impeachment against President Clinton. Manager Buyer told his colleagues that the House served "the grand jury function." Yet another House Member said, "the role of the House and our duty to the American people is to act simply as a grand jury in reference to the impeachment charges presented." This erroneous view of the role of the House of Representatives in the impeachment process has persisted even in this trial, with one Manager telling us that the House of Representatives "operates much more like a grand jury than a petit jury." Having incorrectly analogized its role to that of a grand jury, the House then applied a grand jury "probable cause" standard in reviewing the evidence. Manager Barr confirmed this mistake, stating, "the House performed admirably in essentially reaching the conclusion that there is probable cause to convict the President of perjury and obstruction of justice." Manager Hyde likewise described the House as having "a lower threshold . . . which is to seek a trial in the Senate." Harvard Law Professor Laurence Tribe warned House Republicans against misinterpreting and minimizing their constitutional impeachment role. He testified before the House Judiciary Subcommittee on the Constitution that, "the fallacy is that this is not, despite the loose analogies that some invoke, not like a grand jury." His warning went unheeded. Minimizing the House’s role has had serious consequences. It explains why the majority in the House Judiciary Committee forfeited the opportunity and shirked its responsibility to conduct any independent examination of the facts. The House’s constitutional responsibility for charging the President should not be misinterpreted to justify applying only a grand jury’s "probable cause" standard of proof. It also amounted to giving the House a "free vote" since they could duck any responsibility for actually removing the President. On the contrary, House Members who vote to impeach should also be convinced this President has so abused the public trust and so threatens the public that he should be removed. Sending impeachment articles to the Senate means exactly what the articles say: That based on the evidence reviewed by the House, the President has committed acts warranting his conviction and removal. Even some Republican Members of the House who voted for impeachment admitted, belatedly, in a letter to the Senate Majority Leader that they did not mean it. They said they actually did not want this President removed and urged the Senate to consider censure. In spite of what the House Managers believe, the impeachment process is not a "cause." It should not be about partisan political pique or about sending a message. Rather, along with the power to declare war, it is one of the gravest constitutional responsibility of the Congress. This impeachment asks the question whether the conduct charged in the Articles of Impeachment passed by the House require the Senate to override the judgment of the American people and remove from office the person they elected to serve as President. That is what the impeachment process is all about -- removal from office. It is the Constitution’s fail-safe device. It is not to be undertaken lightly or without justification for it has serious consequences. We suffered a lengthy Senate impeachment trial because House Republicans misinterpreted their constitutional role. House Republican leaders mistakenly relegated the House to a limited role, depreciated the function of impeachment and expressly left to the Senate responsibility for reviewing the charges and determining whether the charges warrant the President’s removal from office. Articles of Impeachment are simply not an appropriate vehicle for the expression of political disapproval to be punted by a partisan vote in the House to the Senate for some face-saving compromise verdict. Not surprisingly, given their misinterpretation of their own role, the first ruling that the Chief Justice was called upon to make in this trial was to correct the Managers’ mischaracterization of the role of the Senate. The Chief Justice sustained Senator Harkin’s objection and corrected the Managers, stating, "the Senate is not simply a jury; it is a court in this case. Therefore counsel should refrain from referring to the Senators as jurors." D. Vote by the House of Representatives Proceedings in the full House were themselves a sorry spectacle. On December 19, 1998, a lame duck session of the House of Representatives approved two Articles of Impeachment against President Clinton on the slimmest of partisan margins. The two Articles of Impeachment now before the Senate were decided by the votes of a handful of Members who were defeated in the November election or are no longer serving. Article I passed with an 11-vote margin, which is the number of House Republicans replaced by Democrats in the new Congress due to election defeats and retirements. Article III (now Article II in the Senate) passed with only a 5-vote margin, which is the number of House Republicans who lost their reelections in November and were replaced by Democrats. There is no record of any prior impeachment reaching the Senate on so slim a margin. The House Republican leadership pressed an extreme, all-or-nothing action through a lame duck House without allowing an opportunity to vote on a censure or other alternative. Those who claim that censure is unconstitutional are just plain wrong. There is ample historical precedent for censure. Both the House and the Senate have adopted resolutions expressing disapproval of various individuals, including sitting Presidents. The Senate censured Andrew Jackson in 1834; the House censured James Buchanan in 1860. As early as 1800, with "Founding Fathers" then serving in Congress, the House debated a resolution to censure John Adams, though this resolution was ultimately rejected. Perhaps it should not be surprising that the final votes in the divisive speakership of Newt Gingrich set the Congress and the nation on this course. Mr. Starr’s investigation has dragged on for five years, with no end in sight. The entire House impeachment inquiry lasted a short three months. Why the sudden push to bring this matter to the floor? There were at least five good reasons -- the five seats that the Republicans had lost in the election -- which might have altered the outcome on at least one Article of Impeachment. The sixth reason is also clear: Speaker Gingrich had said he was resigning from the House, and his seat would be vacant when the new House convened. An impeachment resolution supported by only one political party against a twice-elected incumbent of the opposing party is divisive and damaging for the country. During Watergate, constitutional scholar Charles L. Black, Jr., wrote that a close vote along party lines "would go to the Senate tainted, or at least suspicious, and would be unlikely to satisfy the country, because party motives would be suspected." The impeachment of a President must be bipartisan. A partisan impeachment cannot command the respect of the American people. It is no more valid than a stolen election. House Republicans have permanently marked this President as impeached, but I do not believe that history will judge them kindly either. Instead, the manner in which these impeachment proceedings were conducted in the House Committee on the Judiciary and in the full House of Representatives will serve as a model of mistakes that should be avoided in the future. In the end, the House did not approve the 11 articles recommended by Special Prosecutor Starr or the 15 articles of impeachment recommended by the Republican Committee staff. The House rejected outright two of the four articles reported along party lines by the House Judiciary Committee, and authorized Managers to exhibit only two Articles of Impeachment in the Senate. In considering these two Articles, the Senate has been forced to sort through what is left of the allegations against the President in light of the matters rejected by the House. Before the vote, press reports indicated that wavering House Members were escorted by Republican House Judiciary Members to review certain "secret evidence" that the President’s counsel had never been allowed to review or given an opportunity to rebut. That action was fundamentally unfair. A bedrock principle of our system of justice is that the prosecutor, not the accused, has the burden of proof. The accused is presumed innocent unless and until adequate proof of guilt is presented. Such proof may take many forms -- direct or circumstantial, testamentary or physical. But whatever form it takes, it must be introduced, admitted into evidence, and subject to examination and inspection before it may be considered by the fact finders. I note that in 1974, the House Judiciary Committee made available to President Nixon and his counsel all the documents and other material considered by the Committee, whether in executive or open session. In short, during the House Judiciary Committee’s investigation of Watergate, there was no secret evidence and President Nixon and his counsel were allowed to see -- fully and completely -- every item of evidence in the possession of the House Judiciary Committee. As both a judge and juror in the Senate, I take seriously my responsibility to ensure that the Senate’s consideration of these Articles of Impeachment is fair. Part of that fairness requires that the only evidence we consider relates to the Articles actually approved by the House -- not what the House refused to charge and not matters that are not charged by the Articles of Impeachment. During the depositions authorized by the majority in the Senate, I and the other Presiding Officers from both parties stood firm on this principle and insisted that the Managers’ questions remain focused on the subject matters already in the Senate record and on the Articles before us. Certain House Republicans suggested before this trial began that Senators should review the "secret evidence" as part of their deliberative processes. This suggestion was first advanced at about the time that the "secret evidence" began leaking to the press. From what I have read about it, it seems as flimsy as it is inflammatory, and completely irrelevant to any issue now before the Senate. Clearly, Senators should not allow themselves to be influenced by shady accusations and innuendo that would be excluded from any judicial proceeding in the land. Consideration of the Articles must be based on only one record -- the trial record -- and evidence that is not admitted at trial must play no part in our deliberations. I should note that the House Managers have selectively tried to keep secret certain unfavorable evidence elicited during the Senate trial. For example, they argued strenuously and successfully to subpoena witnesses for depositions and for permission to introduce parts of those depositions into evidence. The parts they introduced do not, as the Legal Times pointed out "tell the whole story." As one of the Presiding Officers at those depositions, I am well aware of the parts of those depositions intentionally omitted by the Managers. In fact, following their presentation of the evidence obtained from the depositions, I asked unanimous consent that the record be made complete and include Vernon Jordan’s brief remarks at the end of his deposition, "defending his own integrity." There is no question but that the Managers attacked and impugned Mr. Jordan’s word and his integrity. Senator Boxer echoed this unanimous consent request at the conclusion of the Managers’ rebuttal presentation. Due to Republican objections, however, neither request was accepted and, unfortunately, the Senate trial record does not contain that moving and important part of Mr. Jordan’s deposition. IV. THE ARTICLES ARE UNFAIRLY DRAFTED Close examination of the Articles exhibited by the Managers reflects the underlying unfairness in the impeachment proceedings in the House. A. Article I is Defectively Vague Article I is drafted with such vague accusations, a significant question arises whether Senators can responsibly and constitutionally pass judgment on it. The notion that William Jefferson Clinton committed perjury before the Starr grand jury has been a legal conclusion in search of a basis for some time. In his referral to the House of Representatives, Special Prosecutor Starr urged only three allegations of possible perjury before the grand jury as grounds for seeking to remove the President. Article I merges those three allegations into one generalized allegation that President Clinton gave false testimony "as to the nature and details of his relationship with Ms. Lewinsky." In addition, the House Judiciary Committee has joined three additional categories of allegedly false testimony, without specifying the allegedly perjurious statements. Those additional categories cover statements that the President made or allowed his attorney to make during the Jones case, in spite of the fact that a majority of the House of Representatives rejected such statements as a basis for a separate article of impeachment. Since the outset of the Senate trial, the charges of grand jury perjury have continued to be a moving target. In their initial Trial Brief, the Managers alluded to 26 instances of grand jury perjury. Manager Rogan spoke of 34 instances. In their Reply Brief, the Managers tallied up 48 instances of grand jury perjury. Yet, Article I does not identify a single statement before the grand jury that the House of Representatives alleges to have been perjurious, false and misleading. All the Senate is told in Article I is that the allegedly perjurious statements fall into "one or more" of four broad categories. This is wholly inconsistent with criminal law and Senate standards for identifying perjury. First, requiring the President to defend himself against such an unspecified charge is fundamentally unfair. Vague, generalized charges of perjury, such as the charge now before the Senate, would never hold up in a court of law. Under federal law, a perjury indictment must set forth the precise falsehood alleged and the factual basis of its falsity with sufficient clarity to permit a jury to determine its veracity. The Justice Department’s manual for Federal prosecutors acknowledges this basic principle of law. This is not just a technical matter of proper, lawyerly pleading. It is a matter of fundamental fairness and due process. As the respondent in this proceeding, the President has been denied the basic fairness of having clear notice of the specific charges against him and of knowing in advance of the trial precisely what the House of Representatives accuses him of having done that merits removing him from the office to which the people of the United States have twice elected him. Providing specificity in perjury articles has been the practice in past impeachments. Two prior impeachments before the Senate, both of Federal judges, involved perjury charges. In both instances, the House of Representatives identified each alleged falsehood in a separate Article of Impeachment. In the case of Judge Alcee Hastings, 14 of the Articles alleged that he had committed perjury with respect to a different specific statement. In the case of Judge Walter Nixon, two of the Articles alleged perjury, again, each with respect to a single discrete statement. This time, however, the House of Representatives chose to be unacceptably vague. Republicans on the House Judiciary Committee flatly refused to pin themselves down to specific statements in the resolution they drafted or in their Committee debate. In fact, the only change the House Judiciary Committee made to Article I had the effect of making it even more ambiguous and obscure: They amended it to allege that the President testified falsely as to "one or more" of the four categories, rather than all of them. By so doing, they have undermined the basic fairness of these proceedings. Second, the lack of specificity in Article I makes it impossible to know whether the requisite majority of the House of Representatives agreed that any specific statement was perjurious. To impeach President Clinton under Article I, House Members had only to find that he made one or more of an unspecified number of unspecified false statements, broadly categorized. Accordingly, it is impossible to know whether the House properly exercised its exclusive, constitutional power of impeachment. If there are 3, 4, 7, 34 or possibly 48 allegations of perjury, but only one vote by the House, how can the Senate be sure, how can the President be sure, and, most importantly, how can the American people be sure that a majority of the House agreed on any single allegation of perjury? Only a narrow majority of 228 members of the prior House of Representatives voted in favor of Article I. If as few as 11 members of that slim majority did not agree on which of the 3 to 48 perjury allegations were to be forwarded to the Senate, that Article did not have the support of a majority of the House and should not be considered by the Senate. Third, the lack of specificity makes any Senate vote for conviction on Article I similarly constitutionally suspect. If, as the Managers’ Reply Brief indicates, there are 48 separate allegations of perjurious statements by the President before the grand jury, then as few as two Senators could believe any particular allegation of perjury had been established and the Senate as a whole could nonetheless convict and remove the President -- so long as enough other pairs of Senators thought alternative allegations were established. This falls far short of the two-thirds of the Senate required to concur before a President is removed from office. The Managers ignore the grave constitutional questions raised by the vagueness of Article I presented to the House and now to the Senate for a vote. Instead they defend the fairness of this Article by asserting that if President Clinton had suffered from any lack of specificity, he could have filed a motion in the Senate for a bill of particulars. Just as the Managers had to be corrected by the Chief Justice about the role of the Senate, they also overestimate their power to detail the particulars of the conduct underlying Article I. The Constitution vests the sole power of impeachment in the House of Representatives, not in a handful of managers appointed by that body. Just as prosecutors may not save a defective indictment without usurping the constitutional role of the grand jury, these Managers may not save a defective bill of impeachment without usurping the constitutional role of the full House. Put another way, 13 Members may not take it upon themselves to guess what was in the minds of over 200 Members of the 105th Congress when they voted to impeach the President. The full House must pass on any amendments to the Articles. That is how it has always been done. In 1933, for example, impeached judge Harold Louderback moved the Senate to require the House to make one of its articles "more definite and certain." In that instance, the Managers wisely consented to the motion. An amendment to the articles was then approved by the full House and presented to the Senate. Similarly, in the case of Judge Nixon, it was the House of Representatives that amended its articles in light of evidence presented during the Senate proceedings. That amendment was made to correct the text of one of the statements that the House alleged to be false. The Managers do not have the power to make the Article more specific, nor have they tried. Instead, they have exploited the vagueness in Article I by continuing to add to the litany of alleged falsehoods by the President. Any advantage gained by the House Managers by purposely crafting Article I in this vague fashion diminishes the fairness of the entire proceeding. B. Both Articles Charge Multiple Offenses Both of the Articles before us allege that the President committed "one or more" of a laundry list of misdeeds. In fact, as I already mentioned, Article I was specifically amended in Committee to use this "one or more" formulation. Manager Rogan tried to spin this as "a technical amendment only," but it was obviously much more. With this amendment, Article I not only fails to identify a single allegedly perjurious statement, it fails even to identify a single broad category of statements. It lists four broad categories that could allude to virtually every word the President said before the grand jury and says, in effect, take your pick. If you think he said something, anything, that was not true, then vote to convict. Article II, which lumps together seven alleged acts of obstruction, does the same. Manager McCollum treated the decision Senators must make on Article I like a choice diners would make from a Chinese take-out menu: chose some from column A and, if you like, some from column B. He explained that Senators could vote to remove the President if "you conclude he committed the crimes that he is alleged to have committed -- not every one of them necessarily, but certainly a good quantity, and there are a whole bunch of them that have been charged." The Senate has made clear that it expects precision in articles of impeachment. In the last two impeachments, of Judges Hastings and Nixon, the House tacked on an omnibus or "catchall" charge that included all the others. I and other Senators expressed concern with this blunderbuss approach. During the Hastings proceedings, I specifically asked whether the catchall Article could be interpreted as requiring a finding of guilt as to all the allegations in order to convict. By asking the question, I hoped to avoid the constitutional problem that I just described, of conviction based on less than a two-thirds vote. The Presiding Officer ruled that a Senator would be within his right to interpret the Article as I proposed, but expressed the view that a Senator could vote guilty based on any one of the alleged acts of misconduct. Ultimately, the Senate rejected the omnibus Articles against Judges Hastings and Nixon, while convicting them of more specific charges of perjury. Articles of impeachment that contain multiple allegations are troubling in several respects. First, they make it virtually impossible for the impeached person to prepare an adequate defense. Second, they permit the House to impeach, and the Senate to convict, based on less than the majority or super majority vote required by the Constitution. Third, they allow individual Members to avoid accountability to the American people, who may never know exactly which charges their representatives regarded as proven and warranting removal from office. President Kennedy, in Profiles in Courage, described the omnibus Article against President Andrew Johnson as a "deliberately obscure conglomeration of all the charges in the preceding Articles, which had been designed . . . to furnish a common ground for those who favored conviction but were unwilling to identify themselves on the basic issues." The House Managers in the Johnson case called for the first vote to be on that deliberately obscure Article because it was thought to be the easiest way to get a conviction. Today’s Managers are hoping that this tactic works better in 1999 than it did in 1868, when President Johnson was acquitted. But impeachment is not a shell game. Deliberate obfuscation trivializes what should be a grave and solemn process. In 1989, after the Senate rejected the omnibus Article against Judge Nixon, then Minority Leader Bob Dole and others urged the House to stop bunching up its allegations and, from there on out, to charge each act of wrongdoing in a separate article. The House has unfortunately chosen to ignore this plea in this matter of historic importance, contrary to fundamental notions of fairness, proper notice, and justice. The Senate does not sit as an impeachment court in a vacuum. The fairness of the process by which the Articles reached the Senate, and the specificity and care with which the Articles are drafted to identify the charges fairly to the respondent, are significant considerations in deciding whether to vote for conviction or acquittal. Senators are not merely serving as petit jurors who will be instructed on the law by a judge and are asked to find facts. Senators have a greater role and a greater responsibility in this trial. The Senate is the court in this case, as the Chief Justice properly observed. Our job is to do justice and be fair in this matter and to protect the Constitution. In casting our final votes on the Articles the Senate should be clear about the questions that our votes answer and equally clear about the questions not before us. The question is not whether Bill Clinton has suffered, for surely he has as a result of his conduct, nor whether he has suffered enough. The question is not even whether Bill Clinton should be punished and sent to jail on a criminal charge, for the Constitution does not confer that authority on this court of impeachment. This vote only and necessarily requires addressing the following questions: has the conduct charged in each Article been proven to my satisfaction; and, if so, does the charged conduct amount to a high crime or high misdemeanor warranting the President’s conviction and removal from the office to which he was elected by the American people in 1996. I will address each of these questions in turn. In this impeachment trial, the President starts out with fewer rights than any criminal defendant in any court in this country. He starts out with no clear rules of evidence, conviction based on a mere two-thirds vote, rather than a unanimous verdict required for any criminal conviction, and no higher court of appeal. This makes the obligation imposed by our oath to make this process fair and impartial that much more important. Fulfilling our duty in the impeachment trial involves evaluating the evidence presented by the Managers and the President to determine whether the allegations have been proven. Juries in legal cases are asked to evaluate evidence presented according to a specific "standard of proof." The Constitution is silent on the standard of proof to be applied in impeachment trials, and the Senate has refused to bind itself to a single standard for all impeachments. As a result, each Senator may follow the burden of proof he or she believes is appropriate to determine whether the House’s charges have been adequately proven. The fact that each Senator may evaluate the evidence under any standard of proof of their choice presents a remarkable challenge to the Managers and to the President’s counsel. One commentator has noted that, "this practice can often work . . . to the disadvantage of all the participants in an impeachment trial by precluding them from knowing in advance what standard the Senate will actually apply." The standard of proof in criminal proceedings is "beyond a reasonable doubt" and in civil proceedings is generally "a preponderance of the evidence." An impeachment trial is neither a civil or criminal proceeding, leading some commentators to suggest that "a hybrid of the criminal and civil burdens of proof may be desirable. . . . Too lenient a proof standard would allow the Senate to impose the serious punishments for impeachment ‘even though substantial doubt of guilt remained.’ Too rigid a standard might allow an official to remain in office even though the entire Senate was convinced he or she had committed an impeachable offense." The fact that the Senate has adopted no uniform standard of proof for each Member to follow is not for lack of attention. The Senate considered the standard of proof question when impeachment proceedings against President Nixon were contemplated, but adopted none. Thereafter, a member of the Watergate impeachment inquiry staff, now a professor of law, concluded that the standard of proof in impeachment trials will vary with the seriousness of the charges: "If a president were charged with conduct amounting to treason, for example, it seems highly unlikely that a senator would insist on proof of treason beyond a reasonable doubt before he would vote for the president’s removal from office. . . . On the other hand, a greater quantum of proof might be required for less flagrant wrongdoing." More recently, in 1986, Judge Harry Claiborne moved to establish "beyond a reasonable doubt" as the standard of proof at his impeachment trial. The Senate rejected that motion by a 17 to 75 vote. I joined those Members voting against adoption of a uniform standard of proof because I believe, as the Presiding Officer made clear at the time, that in fulfilling his or her oath each Senator is free to apply any standard of proof, including reasonable doubt. The charges here stem from alleged efforts by the President to conceal a personal inappropriate relationship. While the relationship itself may be fair game for public rebuke and censure, only when questions were raised about whether his conduct crossed the line into criminal activity did this matter become the subject of an impeachment inquiry. Indeed, Manager McCollum argued that the President must not be convicted and removed from office except upon a finding that he committed a crime. Fairness dictates that we use the exacting standard of proof that is used -- and that is constitutionally mandated -- in criminal trials. I note that Majority Leader Trent Lott reached the same conclusion 25 years ago, as a young Member of the House Judiciary Committee considering articles of impeachment against President Nixon. He joined other Republican Members in writing: "Because of the fundamental similarity between an impeachment trial and an ordinary criminal trial . . . the standard of proof beyond a reasonable doubt is appropriate in both proceedings. Moreover, the gravity of an impeachment trial and its potentially drastic consequences are additional reasons for requiring a rigorous standard of proof. This is especially true in the case of a presidential impeachment. . . . The removal of a President by impeachment in mid-term . . . should not be too easy of accomplishment, for it contravenes the will of the electorate. In providing for a fixed four-year term, not subject to interim votes of No Confidence, the Framers indicated their preference for stability in the executive. That stability should not be jeopardized except on the strongest possible proof of presidential wrongdoing." Were the President accused of treason or serious public corruption, the best interests of the Nation might well demand a somewhat lower standard. He is not, however, accused of such crimes. We hundred Senators are stand-ins for over a quarter billion Americans. President Clinton has been twice elected to his office, and we should only undo that choice based on the charges before us on proof tested against the highest standard. Under the circumstances, in evaluating the evidence that could result in the impeachment and removal of the President of the United States, I will use the highest standard of proof used in any court of law in this country, that is, proof beyond a reasonable doubt. B. The Charges Have Not Been Proven I do not believe that the Managers proved their case beyond a reasonable doubt. To reach their conclusions, they had to tease inculpatory inferences from exculpatory evidence and generally view the record in the most sinister light possible. Having taken an oath to do impartial justice, my vote must be based on the evidence in the record, not on speculation and surmise. The record does not come close to supporting the allegations in Article I. Perjury is a complex charge, requiring more than just lying or even lying under oath. To constitute perjury, a lie must be both material and willful. Lying under oath about trivial or inconsequential matters, even if willful, is not a crime. Lying under oath as a result of confusion, mistake or faulty memory, even if about material matters, is also not a crime. In addition, there is no crime of perjury where a witness’s answers are literally true, even if unresponsive, misleading or false by negative implication. The American people saw President Clinton’s grand jury testimony when the videotape was made public by the House Judiciary Committee. We saw him admit that: C he had engaged in wrongful conduct; C he had been alone with Ms. Lewinsky on numerous occasions; C his inappropriate relationship with Ms. Lewinsky lasted over a two-year period; C many of their encounters involved inappropriate intimate contact; and C he had given her a number of gifts. Given these admissions, the Managers had a heavy burden to prove that the President testified falsely about any material matter. Perhaps for this reason, the Managers repackaged the three alleged falsehoods identified by the Special Prosecutor in their Senate presentation. In their Reply Brief, the Managers claimed that the President perjured himself no less than 48 times during his grand jury appearance. They hoped that the sheer number of allegations would overcome the essential triviality of each individual charge. It does not. In this regard, the most remarkable charge leveled by the Managers is that the President’s prepared statement, in which he made his many admissions, was itself perjurious. The President said that his relationship with Ms. Lewinsky "began as a friendship"; Ms. Lewinsky disagreed, although she allowed for the possibility that the President had a different perception of how the relationship had evolved. The President said that the inappropriate intimate contacts occurred in early 1996 and 1997; Ms. Lewinsky claimed the contacts began on November 15, 1995. The President described being alone with Ms. Lewinsky only on "certain occasions," and described their telephone conversations as "occasional"; there is nothing in the record to the contrary. Indeed, Ms. Lewinsky used the same term to describe these events, since a few dozen meetings or telephone conversations over a two-year period may appropriately be described as "occasional". Such allegations trivialize the serious business in which we are now engaged. Can anyone really believe that the President should be removed from office because of a six-week discrepancy as to when his admittedly inappropriate affair began? Or because of general statements that are allegedly contrary to specific numbers? Or because he did not inform the grand jury that the relationship began with a crude sexual overture by Ms. Lewinsky, as she herself was compelled to describe in humiliating detail, at the whim of the Special Prosecutor’s inquisitors and for no legitimate investigatory purpose? Another set of statements that the Managers consider perjurious relate to the President’s state of mind. The Managers claim, without support, that the President did not genuinely believe, for example, that Ms. Lewinsky could file a truthful affidavit that might relieve her of having to testify in the Jones case. Such unsupported speculation about what was in the President’s mind is not, as the President’s counsel stated, "the stuff or fuel of a perjury prosecution." Asked to identify which of the President’s statements were of particular importance to the perjury charge, Manager Rogan pointed to the President’s explanations for his attorney Robert Bennett’s statement, during the Jones deposition, that Ms. Lewinsky’s affidavit showed there "is" no sex of any kind. Never mind that, in general, a person cannot be held criminally liable for false statements or representations by the person’s counsel to a judge or magistrate. Manager Rogan first took issue with the President’s argument that the statement at issue was technically accurate because his intimate contact with Ms. Lewinsky had been over for many months. While the President has been derided for legal hairsplitting over "what the meaning of ‘is’ is," no amount of derision can transform this sort of argumentative testimony into a perjurious statement. The President also testified that he had not paid much attention to what his attorney was saying and, indeed, did not focus on it until months after the deposition, when he read the transcript in preparation for his grand jury appearance. The Managers assert that the President was paying attention, and they base this on the President’s blank stare at the time in question. How can we possibly know, from that, what was going on in his mind? Appreciating the weakness of their assertion, the Managers obtained an affidavit from Barry W. Ward, law clerk to the presiding judge in the Jones suit, and submitted it with their motion to expand the record. Mr. Ward’s affidavit states that when he attended the deposition of President Clinton in that case, he "observed President Clinton looking directly at Mr. Bennett while this statement was being made." The Managers used this statement to argue in their motion brief, at p. 21, that "Mr. Ward’s declaration proves that Mr. Ward saw President Clinton listening attentively while the exchange between Mr. Bennett and the presiding Judge occurred." According to a Legal Times report on February 1, 1999, Mr. Ward "vigorously disputes that interpretation." Contrary to the Managers’ assertion, Mr. Ward stated in a subsequent interview that, "I have no idea if he was paying attention. He could have been thinking about policy initiatives, for all I know." The only explanation for the misleading characterization of Mr. Ward’s affidavit in the Managers’ motion brief is the same one offered by Senator Bumpers to explain yet another unsupported inference asserted by the Managers. He said, "I am a trial lawyer and I will tell you what it is: it is wanting to win too badly." As a former prosecutor, one of the questions I have asked myself is whether, based on these facts, criminal charges of perjury or obstruction of justice would have been brought against any person other than the President of the United States. If William Jefferson Clinton were Billy Blythe or Bill Jones, would any prosecutor in the country have successfully brought such charges? Experienced prosecutors, Republican and Democratic, testified before the House Judiciary Committee that no prosecutor would have proceeded based on the record compiled by Mr. Starr. I agree and note that during the course of these Senate proceedings, the case has only gotten weaker. The same is true of Article II, which charges the President with obstruction of justice. The Managers repeatedly urged Senators to look at "the big picture," view the evidence as a whole, and not to get "hung up" on the details. This is lawyer-speak for, "my case does withstand scrutiny." To begin with, the principal witnesses to the President’s alleged scheme to obstruct justice testified that there was no such scheme. Monica Lewinsky has clearly and consistently maintained that no one ever asked or encouraged her to lie, and that she was never promised a job for her silence. Betty Currie, the President’s secretary, and Vernon Jordan, a distinguished attorney, also exonerated the President of any wrongdoing or any conspiracy with them to obstruct justice. For example, Ms. Currie testified that the President did not ask her on December 28, 1997, or at any time, to obtain and hide gifts he had given Ms. Lewinsky, and Mr. Jordan testified that his involvement in Ms. Lewinsky’s job search was unrelated to any participation by Ms. Lewinsky in the now-settled Jones case. The Managers argue that such exculpatory testimony "may well take on a sinister, or even criminal connotation when observed in the context of the whole plot," but I fail to see why exculpatory testimony cannot be viewed for what it is: exculpatory. The Managers do their best to transmogrify other exculpatory testimony into evidence of criminality. For example, Ms. Lewinsky testified that the President declined to review her affidavit before she signed it and did not discuss the content of the affidavit with her "at all, ever." Manager Rogan cited this as evidence of obstruction on the theory that the President would have reviewed the affidavit if he really believed it could be truthful. In case we rejected this theory, Manager McCollum speculated that the President had reviewed 15 prior drafts of the affidavit -- speculation at odds with Ms. Lewinsky’s testimony that she did not show the President her affidavit in final or draft form. But neither Mr. Rogan’s theory nor Mr. McCollum’s speculation can overcome or obscure the fundamentally exculpatory nature of Ms. Lewinsky’s testimony on this point. Indeed, if the President had reviewed or discussed Ms. Lewinsky’s affidavit, the Managers would doubtless have trumpeted the incident as proof positive of obstruction. Unable to conjure inculpatory evidence out of the President’s refusal to review Ms. Lewinsky’s affidavit, the Managers invited the Senate to infer guilt from the "fact" that it was the President, not Ms. Lewinsky, who benefitted from the filing of her affidavit. Manager Bryant went further, arguing that Ms. Lewinsky "had no motivation, no reason whatsoever" to want to avoid testifying in the Jones case. But when Manager Bryant questioned Ms. Lewinsky on this point, she corrected him: "Q. [Y]ou didn’t file the affidavit for your best interest, did you? A. Uh, actually, I did. Q. To avoid testifying. A. Yes." This testimony should have come as no surprise, since most people would want to avoid the time, expense, and embarrassment of being dragged into a civil lawsuit to testify about their private affairs. Moreover, Ms. Lewinsky had already made clear that she had sought to conceal her relationship with the President in a vain attempt to avoid being "humiliated in front of the entire world." On her own initiative, she devised code names for use when communicating with the President’s secretary; deleted correspondence from her computer and urged Linda Tripp to do the same; and composed false and misleading "talking points" for Ms. Tripp to use in the Jones case. In fact, Ms. Lewinsky was admittedly "so desperate" for Linda Tripp not to reveal anything about the relationship that she "used anything and anybody that [she] could think of as leverage with her." Equally unavailing was the Managers’ insistence that the President must have known Ms. Lewinsky’s affidavit would be false because no truthful affidavit could have saved her from having to testify. Both the President and Ms. Lewinsky testified that, in their view, it was possible to craft a truthful affidavit that might have accomplished this objective. The Managers have never explained why we should not credit this unrebutted testimony. The Managers have stretched the facts in other ways as well, most notably with respect to the timing of Ms. Lewinsky’s job search. In their Trial Brief, in their opening presentations, and in their charts, the Managers posited that Mr. Jordan intensified his efforts to find Ms. Lewinsky a job on December 11, 1997, only after, and because, the judge in the Jones case ordered the President to answer far-ranging questions about other women. The same theory appeared at page 11 of the Majority Report prepared for the House of Representatives. The President’s counsel, in their opening presentations to the Senate, made clear beyond any doubt that Mr. Jordan met with Ms. Lewinsky before the judge issued her ruling, and that the meeting had been scheduled several days before that. Without acknowledging their error, the Managers retreated to the argument that Mr. Jordan’s assistance on December 11 was triggered not by Judge Wright’s order, but rather by the appearance of Ms. Lewinsky’s name on the witness list six days earlier. But the Managers themselves refuted this argument in their Trial Brief, which states that there was "still no urgency to help Ms. Lewinsky" after the witness list arrived on December 5. Moreover, although Manager Hutchinson later insinuated that Mr. Jordan and the President discussed Ms. Lewinsky’s job search during their meeting on December 7, the Managers’ Trial Brief acknowledges that the December 7 meeting was "unrelated" to Ms. Lewinsky. More generally, the Managers failed to show any connection between Ms. Lewinsky’s status as an affiant and possible deponent in the Jones case and her New York job search. Every witness to testify on this point, including the President, Ms. Lewinsky, and Mr. Jordan, agreed that those events were unrelated. Beyond this, the record is clear that Ms. Lewinsky first mentioned the possibility of moving to New York in early July 1997; that people other than Mr. Jordan tried to help Ms. Lewinsky get a job at the United Nations in early October 1997; and that Ms. Lewinsky notified her employer that she would be leaving her job and moving to New York in November 1997 -- all well before her name surfaced on the Jones witness list. The Managers have also stretched and distorted the evidence regarding the box of gifts that Ms. Currie retrieved from Ms. Lewinsky on or about December 28, 1997. The Managers have argued that the Senate "may reasonably presume" that Ms. Currie retrieved the gifts, which had been subpoenaed by the Jones attorneys, at the behest of the President. In making this argument, the Managers ask us to disregard Ms. Lewinsky’s testimony that it was her idea to give the gifts to Ms. Currie; the President’s testimony that he never told Ms. Currie to retrieve the gifts; Ms. Currie’s testimony that it was Ms. Lewinsky, not the President, who asked her to retrieve the gifts; and the fact that the President gave Ms. Lewinsky additional gifts on the very morning that he is alleged to have asked for them back. They also ask us to ignore Ms. Lewinsky’s testimony that she decided on her own to protect her own privacy by turning over only "innocuous" gifts to the Jones lawyers. Finally, they ask us to ignore exculpatory information concealed by Mr. Starr and revealed to the Senate for the first time in Ms. Lewinsky’s deposition that the President’s statement, "Well, you have to turn over whatever you have," sounded familiar to her. The Managers have made much of a conversation between Ms. Lewinsky and Mr. Jordan on December 31, 1997, that touched upon certain notes, or possibly drafts of notes, Ms. Lewinsky wrote to the President. According to Ms. Lewinsky, Mr. Jordan suggested "something th[e] effect" of, "check to make sure they are not there," which Ms. Lewinsky interpreted to mean, "get rid of whatever is there." Mr. Jordan recalled having discussed the notes with Ms. Lewinsky, but denied having told her to destroy them. Did Ms. Lewinsky misunderstand Mr. Jordan, or is one witness lying? The Senate need not decide, since by either account, the President was not a party to any conversation about notes and, indeed, neither the notes nor the December 31 conversation between Ms. Lewinsky and Mr. Jordan are mentioned in the two Articles of Impeachment approved by the House. Perhaps the longest stretch by the Managers is their theory regarding presidential aides Sidney Blumenthal, John Podesta, and Bruce Lindsey. It simply cannot be that the target of a grand jury investigation obstructs justice by making false or misleading denials of wrongdoing in personal conversations with friends and colleagues, even if he knows that they may be compelled to testify about those conversations. Indeed, until recently, most federal courts held that false denials of wrongdoing -- even when made under oath or to a federal agent -- could not be a basis for criminal liability. The Managers have focused particular attention on the President’s conversation with Sidney Blumenthal on January 21, 1998, the day the Lewinsky scandal erupted. According to Mr. Blumenthal, the President said that Ms. Lewinsky had told him that she was called "the stalker" by her peers, and that she would claim they had an affair because then she would not be known as "the stalker" any more. Curiously, Ms. Lewinsky herself, in the now-famous "talking points" she prepared before her relationship with the President became public, encouraged Ms. Tripp to defuse questions about Ms. Lewinsky by saying, "[S]he turned out to be this huge liar. I found out she left the W[hite] H[ouse] because she was stalking the P[resident] or something like that." Ms. Lewinsky acknowledged in her original proffer to Mr. Starr that she was well aware of her reputation at the White House and sought a detail from the Pentagon "so people could see Ms. L[ewinsky]’s good work and stop referring to her as ‘The Stalker.’" Regardless, we can all agree that if the President tried to conceal his own misconduct by maligning Ms. Lewinsky, he acted shamefully. But this is a far cry from acting criminally. The Managers asked us to look at the "big picture". The "big picture" with respect to Ms. Lewinsky is that she had no intention of revealing her relationship with the President, regardless of whether he helped her find a new job; she acted independently and in her own best interests in filing her affidavit in the Jones case; she originated and carried out her plan to hide evidence from the Jones lawyers; and Linda Tripp rather than Bill Clinton was her principal advisor and ultimate betrayer. In fact, the only crimes shown to have possibly occurred are not high crimes but those for which Ms. Lewinsky and Ms. Tripp have received immunity from prosecution from Mr. Starr. What remains when you sweep aside the cobwebs of unsupported speculation and conspiracy theory? To my mind, the case on obstruction boils down to the charge that the President, in the wake of his deposition in the Jones case, "coached" his secretary about what to say if asked about Ms. Lewinsky. The President has argued that Ms. Currie was not then a witness in the Jones case and was not likely to be one given the approaching deadline for completing discovery. Moreover, he did not know that Mr. Starr had initiated an investigation. In fact, once he learned that Mr. Starr was investigating and that Ms. Currie might be a witness, the President told Ms. Currie, "Don’t worry about me. Just relax, go in there and tell the truth." I was seriously troubled by the President’s counsel’s initial suggestion that Ms. Currie was never subpoenaed in the Jones case. Still, Mr. Ruff’s candid correction and apology to the Senate stands in stark contrast to the Managers’ refusal to correct their own misleading representations. In the end, reasonable minds may differ over why the President spoke to Ms. Currie as he did in mid-January 1998. His explanation -- that he was "trying to think of the best defense we could construct in the face of what I thought was going to be a media onslaught" -- is not implausible. Using a trusted employee as a sounding board to test responses that might later be made public is also not implausible nor criminal. The President also had a legitimate interest in determining whether Ms. Currie was the source of the Jones lawyers’ apparent knowledge regarding Ms. Lewinsky. In the end, in light of the plausible and innocent explanations for these conversations, I do not accept as proven beyond a reasonable doubt the Managers’ conclusion that they were criminal "coaching" sessions. I cannot vote to overturn a national election based on the ambiguous record of this discrete episode. Back on March 8th of last year, one of my Republican colleagues on the Judiciary Committee stated his view that no impeachment proceeding should be brought unless there was "an open-and-shut case" because "Americans cannot stand the trauma of an impeachment matter unless it is cut-and-dried." Even more clearly, the country cannot tolerate a President’s being removed from office based on the shifting patchwork of circumstantial evidence and surmise that the Managers have concocted. C. There Was No Need to Call Witnesses Witnesses would not fill the holes in the Managers’ case. The Managers only became interested in hearing from witnesses once they faced trouble obtaining a conviction in the Senate. They had an opportunity to interview witnesses when this matter was still before the House. But the House Judiciary Committee called no fact witnesses. The House of Representatives called no witnesses at all. Rather, the House Republicans voted out these Articles based on what they were told by Special Prosecutor Starr. They took the position that witnesses were not necessary. For example, in November 1998, Manager Gekas stated that "[b]ringing in witnesses to rehash testimony that’s already concretely in the record would be a waste of time and serve no purpose at all." Similarly, on December 19, 1998, during the floor debate on the articles, Manager Hyde stated: "No fact witnesses, I have 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 immunity that if she lied she would forfeit?" Having chosen to proceed in the House without witnesses, the Managers were in no position to demand that the Senate hear witnesses. A Senate impeachment trial is not a make-up exam for an incomplete inquiry by the House. In attempting to explain his inconsistent positions on witnesses, Manager Hyde said, "we were operating under time constraints which were self-imposed but I promised my colleagues to finish it before the end of the year. I didn’t want it to drag out." But self-imposed time constraints do not begin to explain why Mr. Hyde’s Committee declined to call a single fact witness. The Committee did hold two day-long hearings. It heard from a panel of convicted felons who testified, to nobody’s surprise, that perjury is a crime. And it heard from the prosecutor, Kenneth Starr, who had no first-hand knowledge of any facts in the case, and had not even spoken with anyone who had. Those two days could have been spent hearing fact witnesses and surely they would have been, if the Committee majority thought for one moment that fact witnesses would have any new and incriminating evidence to share. Mr. Hyde’s second justification for failing to call witnesses in the House was grounded in his mistaken view of that body’s role in the impeachment process. According to Mr. Hyde, "[t]he threshold in the House was for impeachment, which is to seek a trial in the Senate. . . . All we could do was present evidence sufficient to convince our colleagues that there ought to be a trial over here in the Senate." I have already explained the fallacy of this position. When these Articles of Impeachment fail, as I believe they must, I hope it will send a clear message to the House of Representatives not to do a slapdash, partisan job on something as momentous and wrenching for the nation as a presidential impeachment. Contrary to the suggestions of some Managers, there is no authority for the notion that the Senate must hear witnesses. It is true, as one Manager noted, that the Senate heard witnesses during the impeachment trial of President Johnson, notwithstanding the House’s failure to do so. As most historians agree, however, the Johnson impeachment was an illegitimate attempt by the Reconstruction Republicans to unseat a President whose policies they disliked. It was hardly a model of procedural correctness. More recently, in the 1980's, the Senate removed three impeached federal judges without hearing any witnesses on the Senate floor. Indeed, in the impeachment trial of Judge Claiborne in 1986, a majority of the Senate approved a motion by then-Majority Leader Dole not to hear any live testimony. Instead, in each case, the Senate reviewed a written record of testimony prepared by a special committee of Senators. The Senate did this over the objections of the judges being removed. If the President is willing to forego the opportunity to cross-examine the witnesses being relied upon by the Managers, that eliminates the most pressing need for further discovery in this matter. After all, Ms. Lewinsky, Ms. Currie and other witness were interviewed multiple times by the Special Prosecutor’s lawyers and investigators and then testified repeatedly before the grand jury. That is about as one sided as it gets--no cross examination, no opportunity to compare early statements with the way things are reconfigured and re-expressed after numerous preparation sessions with Mr. Starr’s office. These witnesses testified under threat of prosecution by Mr. Starr. Ms. Lewinsky is still under a very clear threat of prosecution, even though she has a limited grant of immunity. This Special Prosecutor has shown every willingness to threaten and prosecute even those who have played minor, tangential roles in his investigations of the President, such as Julie Hiatt Steele, and those who have already been relentlessly pursued in serial prosecutions, such as Webster Hubbell and Susan McDougal. Thus, if the President has not initiated efforts to obtain more discovery and witnesses and is willing to have the matter decided on the current Senate record, the Managers carried a heavy burden to justify extending these proceedings further and requiring the reexamination of people who have already testified. During his opening remarks, Manager McCollum said, "I don’t know what the witnesses will say, but I assume if they are consistent, they’ll say the same that’s in here," referring to the voluminous record before the Senate. Nevertheless, the majority in the Senate acceded to the Managers’ request to conduct depositions, which only confirmed that subjecting the witnesses to further examination would not provide any new revelations. In fact, during the deposition of Ms. Lewinsky, Manager Bryant conceded, "Obviously, you testified extensively in the grand jury, so you’re going to obviously repeat things today. We’re doing the depositions for the Senators to view." Likewise, during Mr. Jordan’s deposition, Manager Hutchinson acknowledged the witness’s five prior grand jury appearances and conceded, "I know that probably about every question that could be asked has been asked, but there are a number of reasons I want to go over additional questions with you, and some of them will be repetitious of what’s been asked before." There was no reason to protract this process further merely to hear more redundant testimony live on the floor of the Senate, in light of the President’s agreement to forfeit this opportunity to examine the witnesses. The question each Senator must address is whether the conduct charged in the Articles meets the constitutional standard of high crime and misdemeanor warranting conviction and removal. The Managers, the President’s counsel and, in particular, former Senator Dale Bumpers have provided us with erudite history lessons on the misconduct the Framers meant to cover by this standard. We have heard debate whether this standard covers only conduct performed in the President’s public capacity or also covers private conduct. A strong case can be made that the Framers never intended that a President be subject to impeachment and removal for private conduct -- no matter how egregious. Instead, they purposely limited the ground for impeachment to offenses against the state or grave abuses of official power. But this argument presents the proverbial "slippery slope." Does this mean that a President may not be removed for murder? The Framers may very well have responded "no." In fact, during the impeachment trial of Chief Justice Samuel Chase, the presiding officer was then Vice-President Aaron Burr, who at the same time was under indictment in both New Jersey and New York for the murder of Alexander Hamilton in a duel in 1804. As Chief Justice Rehnquist notes in Grand Inquests, "This fact caused one contemporary wag to remark that whereas in most courts the murderer was arraigned before the judge, in this court the judge was arraigned before the murderer!" Nonetheless, Burr was not the subject of the impeachment trial, Chief Justice Chase was. No matter how the Framers would treat serious private misconduct, I do not hesitate to conclude that heinous crimes, such as murder, would warrant the remedy of removal. As Professor Charles Black explained: "Many common crimes -- willful murder, for example -- though not subversive of government or political order, might be so serious as to make a president simply unviable as a national leader; I cannot think that a president who had committed murder could not be removed by impeachment. But the underlying reason remains much the same; such crimes would so stain a president as to make his continuance in office dangerous to public order." The House Judiciary Committee in 1974 summed up the thorny issue of how to evaluate the constitutional standard for impeachable and removable conduct as follows: "Not all presidential misconduct is sufficient to constitute grounds for impeachment. There is a further requirement -- substantiality." Professor Black also addressed the "substantiality" of the misconduct necessary to meet the constitutional standard for impeachment and removal, with the following illustration: "Suppose a president transported a woman across a state line or even (so the Mann Act reads) from one point to another within the District of Columbia, for what is quaintly called an ‘immoral purpose.’ Or suppose a president did not immediately report to the nearest policeman that he had discovered that one of his aides was a practicing homosexual -- thereby committing ‘misprision of a felony.’ Or suppose the president actively assisted a young White House intern in concealing the latter’s possession of three ounces of marijuana -- thus himself becoming guilty of ‘obstruction of justice.’ . . . Would it not be preposterous to think that any of this is what the Framers meant when they referred to ‘Treason, Bribery, and other high Crimes and Misdemeanors,’ or that any sensible constitutional plan would make a president removable on such grounds?" In my view, the charges that the President committed perjury and obstructed justice to conceal an illicit relationship with Monica Lewinsky not only fail as a matter of proof, but to the extent they raise legitimate questions about his conduct they fail the test of substantiality. As one Vermonter recently wrote to the editor of the Burlington Free Press, "If there ever was a situation in which the phrase making a mountain out of a mole hill is apt, it is the impeachment trial to date." The Managers tried to address the criticism that the conduct underlying the Articles is so insubstantial as to leave the American public scratching their heads. Manager Canady conceded that no President "should be impeached and removed from office for trivial or insubstantial offenses. . . . A President should not be impeached and removed from office for a mistake or judgement. He should not be impeached and removed from office for a momentary lapse." Similarly, Manager Graham acknowledged "absolutely" that reasonable people could disagree about whether the President should be removed, even were the charges proven. Manager Graham further opined during questioning by Senators that: "I would not want my President removed for any criminal wrongdoing. I would want my President removed only when there was a clear case that points to the right decision for the future of the country. . . I would not want my President removed for trivial offenses, and that is the heart of the matter here." My decision on this matter should not be misinterpreted to mean that I countenance perjury or obstruction of justice, or that I do not appreciate the need for enforcement of our laws prohibiting such conduct for the functioning of our judicial system. If committed, these are serious crimes. Nevertheless, as Manager Graham recognized, reasonable people can and do disagree on the ultimate questions in this trial. I do not agree with the Managers that they have proven these crimes were committed or that the conduct at issue here is sufficiently heinous to warrant impeachment and removal of the President. Chairman Henry Hyde recognized that "one hardly exhausts moral imagination by labeling every untruth and every deception an outrage." The American people understand this point instinctively. In my home State of Vermont, for instance, the majority of people are overwhelmingly opposed to the removal of this President from office. They were against it in August 1998, when the House posted Mr. Starr’s salacious referral on the Internet. They were against it in November 1998, when Mr. Starr appeared before the House Judiciary Committee to try to breath some life back into his case for impeachment. They were against it in December 1998, when the House Republicans made even shriller pitches for impeachment to the American people. And judging from the calls and mail I have received, Vermonters are more certain than ever that they want Bill Clinton to serve out his term. Of course, we must not be led by the polls. The Framers wanted impeachments to be tried in the Senate, not in the court of public opinion. This is not a referendum. Still, whether the evidence is sufficient to warrant the President’s removal turns at least in part on whether it makes him unfit to govern, and on that question, the voice of the governed should be heard. The Managers have eloquently expressed their concern about the "kind of message" it would send to America should the Senate refuse to convict and remove the President on the Articles. Chairman Hyde expressed his view that the message would be that "charges of perjury, obstruction of justice are summarily dismissed -- disregarded, ignored, brushed off" and that there is a double standard for the President. With all due respect for the Managers’ belief on this score, I disagree. First, our assessment of whether the President’s personal misconduct meets the constitutional standard for impeachment, conviction and removal should not be misconstrued to reflect our views on the seriousness of perjury or obstruction of justice. Professor Tribe, in his testimony last November before a House Judiciary subcommittee confronted this issue directly, stating: "It is always possible to argue, when confronted by serious crime, that the system would crumble if everyone followed the wrongdoer’s example. If everyone took President Richard Nixon’s allegedly false filing of tax returns under oath, including backdating documents, as a model to emulate, the nation’s tax system, and thus its defenses, would crumble. Yet there was no realistic basis to suppose that the Nixon example would start any such stampede, and the simple proposition that, if all did as Nixon had done, the consequences would be catastrophic did not mislead the House Judiciary Committee into treating the President’s alleged tax evasion as an impeachable offense: By a vote of 26-12, the Committee soundly declined to treat it as such." Second, the Managers are also wrong that Senate acquittal of the President would essentially set-up a "double-standard" and put the President above the law. The Managers ignore the fact that the Constitution itself establishes a purposely high and difficult standard for the Senate to remove a duly elected head of a co-equal branch of government. In a court of law, not a Senate court of impeachment, the President, in his personal capacity, stands subject to the same standard as any American. |