February 23, 1999 CONGRESSIONAL RECORD — SENATE S1775 COUNTLESS FRIENDS MOURN Reagan, Mizell was the agricultural depart- partisan nature of all the actions taken VINEGAR BEND MIZELL ment’s top lobbyist in the halls of Congress. by the House of Representatives in Mizell was known for his flat-top haircut. handling this case. Mr. HELMS. Mr. President, one His nickname came from his hometown of doesn’t lose a friend like Wilmer Mizell Vinegar Bend, Ala. In the majors, Mizell But as deeply disappointed as I am without experiencing a deep and pene- pitched for the St. Louis Cardinals from 1952 with the process, it pales in compari- trating sadness. And, by the way, Mr. until 1960 when he was traded to the Pitts- son to the disappointment I feel toward President, my reference to ‘‘Wilmer’’ burgh Pirates. He helped the Pirates win the this President. Maybe it is because I just now is one of the few times I have National League pennant that year. Mizell had such high expectations. Maybe it is ever called him that. Sure, that’s the pitched a losing game in the World Series because he holds so many dreams and that followed. name on his birth certificate; he was aspirations that I hold about our coun- He finished his career with the New York try. Maybe it is because he is my officially identified as Wilmer for the Mets in 1962. His career record was 90 wins very good reason that Wilmer is the and 88 losses, with an earned run average of friend. I have never been, nor ever ex- name given him by his parents. 3.85. pect to be, so bitterly disappointed At least 95 percent of his thousands Mizell died in Kerrville, Texas, while he again. of friends knew him as ‘‘Vinegar and his second wife, Ruth Cox Mizell, were Abraham Lincoln may have been Bend’’, or sometimes as just ‘‘Vin- visiting her family. Besides Midway, the cou- right when he said, ‘‘I would rather egar’’. And everybody who knew him ple also had a home in Alexandria, Va., have a full term in the Senate, a place David Mizell said. in which I would feel more consciously loved him. (He was born in Vinegar Funeral services will be Thursday in Mid- Bend, Alabama, 68 years ago.) way. able to discharge the duties required, Vinegar Bend died this past Sunday and where there is more chance to (Pursuant to the unanimous consent while visiting his wife’s family in make a reputation and less danger of agreement of February 12, 1999, per- Texas. He suffered a severe heart at- losing it, than 4 years of the Presi- taining to the impeachment pro- tack some weeks ago, but had bounced dency.’’ ceedings, the following statements back and was apparently feeling well Maybe it is because of my disappoint- were ordered to be printed in the until the fatal attack on Sunday. ment that I was all the more deter- Record:) Vinegar Bend Mizell served three Mr. DASCHLE. Mr. Chief Justice, my mined to help give the Senate its terms in the U.S. House of Representa- colleagues, in just a few moments, each chance to make a reputation, as Lin- tives from 1969 through 1974. His first of us will be called upon to do some- coln put it, at this time in our Nation’s wife, Nancy, was exceedingly popular thing that no one has done in Amer- history. among Members of the House and Sen- ican history. We will be voting on two The Senate has served our country ate until her death several years ago. articles of impeachment against an well these past 2 months. And I now He and his second wife, Ruth Cox elected President of the United States. have no doubt that history will so Mizell, were a devoted couple. Having listened carefully to nearly 50 record. There are clear reasons why the Mr. President, I have at hand a news- Senate has succeeded in this historic paper account regarding Vinegar of our colleagues who share my point of view, it is both difficult and unnec- challenge. Bend’s death. I ask unanimous consent First is the manner in which the that the article, published Monday in essary to attempt to reiterate the pow- erful logic and the extraordinary elo- Chief Justice has presided over these The Greensboro (N.C.) News and hearings. We owe him a big, big debt of Record, headed ‘‘Former Ballplayer; quence of many of their presentations. I share the view expressed by so gratitude. He has presented his rulings N.C. Congressman Mizell Dies at 68’’ be many that this body must be guided by with clarity and logic. He has tempered printed in the RECORD. two fundamental principles. I recognize the long hours and temporary confu- There being no objection, the article sion with a fine wit. In an exemplary was ordered to be printed in the that we are not all guided by these principles, but I and others have been fashion, he has done his constitutional RECORD, as follows: guided, first, by this question: Has the duty and has made it possible for us to [From the Greensboro (NC) News and Record, do ours. Feb. 22, 1999] prosecution provided evidence beyond a reasonable doubt; and, second, if so, do The second reason is our majority FORMER BALLPLAYER, N.C. CONGRESSMAN leader. Perhaps more than anyone in MIZELL DIES AT 68 the President’s offenses rise to the the Chamber, I can attest to his stead- (From Staff and Wire Reports) level of gravity laid out by our found- ers in the Constitution? fast commitment to a trial conducted Wilmer ‘‘Vinegar Bend’’ Mizell spent 10 with dignity and in the national inter- years in the majors and three terms in Con- After listening to both sides of these gress. arguments now for the past 5 weeks, I est. He has demonstrated that dif- ferences—honest differences—on dif- HIGH POINT.—Former congressman and believe—I believe strongly—that the Major League Baseball pitcher Wilmer ‘‘Vin- record shows that on both principles ficult issues need not be dissent, and in egar Bend’’ Mizell died Sunday while visiting the answer is no—no, the case has not that end the Senate can transcend his wife’s family in Texas. He was 68. been proven beyond a reasonable doubt, those differences and conclude a con- Mizell, whose folksy, country-boy ways and, no, even if it had been it would stitutional process that the country made him popular with voters in central not reach the impeachable level. will respect, and I do. North Carolina and with baseball fans in St. I also share the view expressed by Third is our extraordinary staff—the Louis and Pittsburgh, may have died from Chaplain, my staff in particular, Sen- lingering effects of a heart attack suffered many of my colleagues on the process last October while attending a highs school which brought us here: an investiga- ator LOTT’s staff, the floor staff, the football game, said his son, David Mizell who tion by an independent counsel which Parliamentarians, the Sergeant at is coach at High Point Andrews High School. exceeded the bounds of propriety; a de- Arms, the Secretary of the Senate. David Mizell’s team was playing North Da- cision by the Supreme Court subjecting They have served us proudly. Their vidson in Welcome, near the Midway commu- sitting Presidents to civil suits—it is professionalism and the quality that nity where Mizell has lived since the early my prediction that every future Presi- they have demonstrated each and every 1950s when he pitched for the minor league dent will be faced with legal trauma as hour ought to make us all proud. team in Winston-Salem. Mizell, after a 10-year career in the Major a result—a deeply flawed proceeding in Finally, if we have been successful, it Leagues, became a Davidson County com- the House Judiciary Committee, which has been because of each of you—your missioner and then served three terms in in an unprecedented fashion effectively diligence, your deportment, your Congress from the 5th Congressional District relinquished its obligation to independ- thoughtful arguments on either side of which included Davidson and Forsyth coun- ently weigh the case for impeachment; these complex, vexing questions. This ties. He was defeated in 1974 by Democrat the disappointing decision to deny experience and each of you—each of Stephen Neal, a year in which Republican Members of the Senate and the House you—have made me deeply proud to be candidates nationwide suffered losses in the a Member of the U.S. Senate. aftermath of the Watergate scandal. the opportunity to vote on a censure Mizell later held sub-cabinet posts in the resolution, even though I believe it Growing up in South Dakota, I Commerce and Agricultural departments would be supported by a majority in learned so much, as many of us have, under President Ford and Reagan. For both Houses; and finally, the bitterly from relatives and from the people in

VerDate Mar 15 2010 23:02 Nov 14, 2013 Jkt 081600 PO 00000 Frm 00033 Fmt 0624 Sfmt 0634 E:\1999SENATE\S23FE9.REC S23FE9 mmaher on DSKCGSP4G1 with SOCIALSECURITY S1776 CONGRESSIONAL RECORD — SENATE February 23, 1999 my hometown, and my parents espe- In short, the case I have seen is one In the end, the Senate authorized the cially. Something my father admon- that I do not believe can bear the deposition of witnesses, two of whom— ished me to do so many, many times in weight of the profound constitutional Ms. Lewinsky and Mr. Jordan—were growing up is something I still remem- consequences it is meant to carry. central to the core allegations of per- ber so vividly today. He said, ‘‘Never do Its constitutional defects began in jury and obstruction of justice. These anything that you wouldn’t put your the House. were witnesses identified by the signature on.’’ I thought of that twice Rather than initiating its own inves- House—witnesses the Managers ex- during these proceedings—once when tigation, and making its own findings, pected to help support their case. we signed the oath right here, and the House rested on the referral from This is not, however, how it turned again last night when I signed the reso- Independent Counsel Kenneth Starr. out. lution for Scott Bates. Never before has the House effec- In the final blow to the case for re- I will hear Scott Bates’ voice when I tively relinquished its obligation to moval brought by the Managers, those hear my name called this morning. My independently weigh the case for im- very witnesses provided the Senate father passed away 2 years ago. He and peachment. with clear and compelling testimony— Scott are watching now. And I believe But this time it did, relinquishing in the President’s defense. they will say that we have a right to that obligation to Mr. Starr. It cannot have escaped many of us put our signature on this work, on Mr. Starr’s 454-page referral became that the defense showed more and what we have done in these past 5 the factual record in the House. The ar- longer segments of this testimony than weeks, for with our votes today we can guments he made in that referral the Managers who sought these wit- now turn our attention to the chal- served almost exclusively as the basis nesses in the first place. lenges confronting our country tomor- for the articles prepared and voted by What did Ms. Lewinsky say about the row. And, as we do, I hope for one the House. false affidavit she filed in the Jones thing: That we will soon see a new day The House called no independent fact case? That she never discussed the con- in politics and political life, one filled witness. The only witness was Mr. tents with the President. That she with the same comity and spirit that I Starr. And it is telling that Mr. Starr’s thought she might be able to file a feel in the room today, one where good own ethics adviser, Professor Sam truthful, but limited affidavit and still governance is truly good politics, one Dash, resigned his position with the Of- avoid testifying. That she had reasons which encourages renewed participa- fice of Independent Counsel to protest completely independent from the tion in our political system. It is a the improper role played by Mr. Starr President’s for wanting to avoid testi- hope based upon a fundamental belief in the impeachment process. mony. That the President did not ask which is now 210 years old, a belief that The House proceedings set a dan- her to lie or promise her a job for her here in this country with this Republic gerous constitutional precedent, and silence. we have created something very, very the decision to follow this course has What did Ms. Lewinsky say about the special, a belief so ably articulated by reverberated throughout the trial here return of the gifts given to her by the Thomas Paine as he wrote ‘‘Common in the Senate. President? That she raised with the Sense.’’ Because Mr. Starr carried the case in President whether she should turn the The sun will never shine on a cause of the House, the House did not develop or gifts over to Ms. Currie. That she re- greater worth. This is not the affair of a city, explain its own case until the time calls that the President may have ad- a county, a province, or a kingdom, but of a came to prepare for trial in the Senate. vised her to turn them all over to the continent. This is not the concern of the day, Those explanations, when they came, Jones lawyers. That she told an FBI a year, or an age. were replete with inconsistencies—not Posterity is are virtually involved in the agent of this advice, but it somehow contest, and will be more or less affected technical or minor inconsistencies, but was omitted from the Independent even to the end of time by the proceedings rather inconsistencies that struck at Counsel’s investigative report. That six now. the heart of their position. days before her White House meeting So it is as we cast our votes today On the one hand, the Managers with the President, she had already and begin a new tomorrow. charged the President with serious made an independent decision to with- Each of us understands that the deci- crimes. Yet, they also argued that they hold gifts from her own lawyer. sion we must make is the most de- should not be required to prove ‘‘be- What did Ms. Lewinsky and Mr. Jor- manding assigned to us, as Senators, yond a reasonable doubt’’ that the dan say about the job search for Ms. by the Constitution. The Framers did President committed those crimes— Lewinsky? That it was never connected not believe it a simple matter to re- that they need not meet the standard to the preparation of her affidavit, move a President. They did not intend that applies throughout our criminal much less conditioned on her making that it occur easily. justice system. any false statements to a court. Only a certain class of offenses—trea- On the one hand, the Managers ac- What did Mr. Jordan say about any son, bribery and other high crimes and knowledged that the House rejected an pressure placed on the companies he misdemeanors—could justify the Presi- article based on President Clinton’s contacted to hire Ms. Lewinsky? That dent’s removal. Only a supermajority— deposition in the Jones case. Yet, he only recommended her. That two two-thirds of the Senate—could au- throughout their presentations, includ- companies he contacted would not hire thorize it. ing their videotaped presentation on her. That the third company, which did The Framers made as plain as they February 6, they repeatedly relied on hire her, did so on the strength of an could that each Senator must judge, on the President’s statements in that civil interview in which she made a strong all the circumstances of the case, deposition. personal impression—much like the whether the facts support this extraor- On the one hand, the Managers in- one she made to the Managers in their dinary remedy. sisted that the record received from first meeting with her. As I look at this case, I am compelled the House provided clear and irref- These witnesses—the House’s wit- to consider it from beginning to end— utable evidence of the President’s nesses—made it impossible, I believe, from the circumstances under which guilt. Yet, one Manager declared that for the Managers to sustain a case al- the House fashioned and approved the reasonable people could differ on the ready weakened by a defective House articles, to the trial here in the Senate strength of the case, and another stat- process, serious inconsistencies in their when the House pressed its arguments ed that he could not win a conviction arguments, and doubts about its merits for conviction. And I find a case trou- in court based on that record. that even some of the Managers them- bled from beginning to end—one On the one hand, the Managers origi- selves candidly expressed. marked by constitutional defects, in- nally claimed a record so clear that the Surely a case for removal of the consistencies in presentation, sur- House was not required to call a single President must be stronger. prising concessions by the Managers fact witness—other than Mr. Starr. Surely a case for conviction must be against their own position, and even Yet, in the Senate, they insisted that strong enough to unite the Senate and damage done to that position by their their case depended vitally on wit- the public behind the most momentous own witnesses. nesses. of constitutional decisions.

VerDate Mar 15 2010 23:02 Nov 14, 2013 Jkt 081600 PO 00000 Frm 00034 Fmt 0624 Sfmt 0634 E:\1999SENATE\S23FE9.REC S23FE9 mmaher on DSKCGSP4G1 with SOCIALSECURITY February 23, 1999 CONGRESSIONAL RECORD — SENATE S1777 Surely a case to remove the Presi- When I spoke to you in a previous because Monica Lewinsky understood dent from office must be strong enough session here, I mentioned the cover very clearly that she was to stay with to meet the high standards established story, and said that while the cover the cover story until she was told not with such care by the Constitution’s story was not impeachable—the cover to. She filed the false affidavit that he framers. story which was admitted by counsel sought. He and his counsel used it in In requiring that the Senate remove for the White House—it is a framework the deposition. only for ‘‘high’’ crimes and mis- and a context in which we judge other Why was it filed? To keep him from demeanors, the framers acted with actions. having to testify truthfully in the dep- care. As the House Judiciary Com- Objection has been made by my osition. Was he surprised by it? I do mittee stated in its Watergate report friends primarily on this side of the not believe it has one iota of credi- 25 years ago, ‘‘[I]mpeachment is a con- aisle that on occasion we have cited bility to say that after he went out and stitutional remedy addressed to serious evidence where the President may not procured that false affidavit, he didn’t offenses against the system of govern- have been truthful, and we may have know that his attorney was going to ment.’’ Its purpose is to protect our raised other arguments that go beyond use it, and he was not going to rely on constitutional form of government, not the boundaries of the articles of im- it. He got her to do the felonious deed to punish a President. peachment as grounds for impeach- of filing a false affidavit so he could It is for this reason that the framers ment. Let me hasten to add that I hope avoid the danger of having to lie him- made clear that not all offenses by a that no one would vote for a conviction self in a deposition. Chief Executive are ‘‘high’’ crimes— on anything other than the items set Mr. Clinton didn’t engage in a con- and that even a President who may forth in article I and the items set spiracy with his lawyer, Mr. Bennett. have violated the law, but not the Con- forth in article II. If there are other ac- We hear about the one-man conspiracy. stitution, remains subject to criminal tivities that may bear upon or indicate No. He foisted that on his attorney. and civil legal process after he or she a pattern of conduct, that is one thing. And Mr. Bennett, when he found out leaves office. But we must make our decision on the about the falsity of that affidavit, had Whatever legal consequences may basis of that which has been presented to do what no attorney ever wants to follow from this President’s actions, to us by the House. do—he had to write a letter to the the case made by the House Managers On the other side, we have heard judge, and say, ‘‘Disregard it. Dis- does not satisfy the exacting standard some very spirited and enthusiastic at- regard it. I was part, inadvertently, of for removal. tacks on the independent counsel and a scheme to defraud the court.’’ And For all of these reasons, I will vote to on the House managers and even on the you notice he is not in the case any acquit on both articles. Paula Jones case itself. Let me make longer. He could not be part of that. We know that Mr. Clinton enlisted This is my constitutional judgment just a few points. his loyal secretary to violate the law about whether the Senate should re- No. 1, we threw Judge ALCEE HAS- to go pick up gifts, and she and Monica move the President from office. My TINGS out of office as a judge for lying Lewinsky, once again, committed felo- personal judgment of the President’s in a grand jury proceeding where he nies to continue the story to protect actions is something altogether dif- was not convicted. The objective is not the President. And the gifts wound up ferent, reflecting my values and those to say that you can only commit per- under Betty Currie’s bed. of South Dakotans and millions of jury when a case is won or someone is Mr. Clinton went to Betty Currie on Americans. convicted. a Sunday and 2 days later and told her Like them, I am extraordinarily dis- No. 2, the independent counsel got things that he hoped she would say be- into this because the attorney general appointed, and angered, by the Presi- fore the grand jury. He told his other felt that there were grounds to pursue dent’s behavior. Since I have long con- subordinates things that he hoped they sidered the President a friend, my own the potential violations of law by the would say. He even trashed her when it sense of betrayal could not run more President in the Monica Lewinsky appeared that she might be a hostile deeply. case. And a three-judge court agreed, witness. There is no question that the Presi- and the independent counsel was as- Ladies and gentlemen of the Senate, dent’s deplorable actions should be signed to pursue this. I suggest to you that when you have condemned by the Senate. Whatever you may think about what this clear-cut evidence of a scheme car- I fervently hope that the Senate will the House did, or what the Paula Jones ried out with direct evidence, testi- do what the House would not—permit attorneys did, or what the independent mony of Monica Lewinsky and others, the people’s elected representatives to counsel did, that is not the question Betty Currie and his subordinates, an express themselves and reflect their before us. That can be addressed, as Audrain County jury would not have constituents’ views on the President’s some of my colleagues said, if there are any trouble finding him guilty of tam- conduct, for the benefit of our genera- investigations by the Department of pering with a witness or obstructing tion and those still to come. Justice on improper activities by the justice. So let us proceed now to a vote and OIC. Let that proceed in its own realm. Mr. SESSIONS. Mr. Chief Justice and resolve this constitutional task after We are here to judge on the evidence fellow Senators, I appreciate this pro- these long and arduous months. Then before us. ceeding. And I appreciate the process the time will have come to return to As I said, we have a cover story. We we have gone through. I hope my re- the urgent work of the country. have a cover story that was utilized marks will be in the spirit of delibera- When we do, I believe that all of us— regularly throughout by this President tion, and that some of what I say will members of the majority and members and by Monica Lewinsky. be of value to you. of the minority, however we choose to Objection has been made that, while If there was a mistake made in this cast our votes—will be able to agree on we have the clear testimony that Wil- case, it is that we have treated this this: liam Jefferson Clinton never said you more like a piece of legislation than a That in 1999, 100 Senators acted as should lie, he never said expressly you trial. It probably would have been bet- the Constitution required, honoring should file a false affidavit. Well, of ter to have just allowed the House to their oath to do impartial justice and course, he didn’t. Of course, he didn’t. have a week or 8 days to present evi- acting in the best interests of this He is a very sophisticated, very able dence and the other side present their country they so dearly love. lawyer. And, if you are concocting a evidence and then vote and we would Mr. BOND. Mr. Chief Justice, my col- scheme to obstruct justice, you don’t have been out of here. As it is, we have leagues, I do not intend to give a com- tell somebody who is to be part of that been involved in the managing of it. prehensive statement, nor do I intend scheme with you that you should lie And I have been impressed that to- to use all of the time allotted. But I under oath, that you should file a false gether we have somehow gotten feel it is very important to answer affidavit because those people might through it in a way that I think I can some of the points that have been just get called to testify under oath at defend. It is marginal, but I think we raised. And let me deal with just a few some point, as they were in this case. have conducted a trial that I feel we of those. But Mr. Clinton didn’t have to do that, can defend.

VerDate Mar 15 2010 23:02 Nov 14, 2013 Jkt 081600 PO 00000 Frm 00035 Fmt 0624 Sfmt 0634 E:\1999SENATE\S23FE9.REC S23FE9 mmaher on DSKCGSP4G1 with SOCIALSECURITY S1778 CONGRESSIONAL RECORD — SENATE February 23, 1999 The impeachment came from the eral employee in the last decade, that Judge Harry T. Edwards, Court of Ap- House so we have to have a trial and a would be false. He filed such a false an- peals for D.C. Circuit, wrote in a Michi- vote, in my opinion. Judging on mat- swer to a lawful interrogatory. gan law review that: ters like this is not easy, but we all Then he is at a deposition, and what Under article II, a judge is subject to im- have had to do it. Juries make deci- happens at the deposition? His attor- peachment and removal only upon convic- sions like this every day. The Presi- ney tries to keep him from being asked tion by the Senate of treason, bribery, or dent has to grant pardons and make about Monica Lewinsky. They produce other high crimes and misdemeanors. appointments and remove appoint- her affidavit and the attorney says This is because he is a civil officer. ments. Senators have to vote on nomi- that the President has seen that affi- The President, Vice President and nations and so forth. I have had the ad- davit and had the opportunity to study Judges are civil officers of the United venture of appearing before Senators it. The President testifies later in that States. There is only one standard for judging me on a previous occasion. And deposition: It is ‘‘absolutely true.’’ impeachment. now I am in this body and the other That is when it all occurred, right The Constitution is a marvelous doc- day the Chief Justice declared that we there, and talking with Monica before- ument. We respect it. To do so, we were all a court, and I thought, ‘‘My hand was critical because if she didn’t must enforce it as it is written. It says goodness, I am a Federal judge and a confirm the lie he was going to tell he that civil officers, judges are removed Senator, how much better can life get couldn’t tell it. She wanted a job and for only those offenses. There are no than that?’’ the President got it for her. If they distinctions between the President and Now, someone suggested that this is didn’t submit the Lewinsky affidavit, judges. Just because one official is a political trial. But the more we make the President was going to be asked elected and one is not elected, one’s it like a real trial, the better off we are those questions. If they talked about term is shorter, or there are more going to be and the better the people the gifts, the cat was going to be out of judges than Presidents—makes no dif- are going to like it and the more they the bag. It is just that simple. The ference—that is not what the Constitu- will respect it. Our responsibility is to wrong occurred right there. tion says. They face the same standard find the facts, apply the Constitution, Then, when he left that deposition, for impeachment. the law, and the Senate precedent to he was worried. He called Betty Currie I really believe we are making a seri- those facts. And precedent is impor- that night, right after that deposition, ous legal mistake if we suggest other- tant. We should follow it unless we the same day, because he knew he had wise. If the standard is the same, then clearly articulate a reason to change. used her name and she was either going we have a problem, because we re- Unless we do so we are failing in our to have to back him up or he was in big moved a bunch of judges for perjury. duty. If we want to change our prece- trouble. So, he coached her. That is Of course, a President gets elected, dent, we obviously have that power. what it is all about. You can talk but the President holds office subject But we don’t come at this with a blank about the facts being anything you to the Constitution. One of the limita- slate since the 1700s and Federalist 65. want to, but that is the core of this tions on your office as an elected offi- We have had a lot of impeachments case and it is plain and it is simple for cial is don’t commit a high crime or since then, and this Senate has estab- anybody to see who has eyes to see misdemeanor and if you commit a high lished some precedent during that with, in my view. So I think that is a crime or misdemeanor, you are to be time. I think the dialogue between strong case. The question is whether or removed. I don’t think there is a lot of Madison and Mason suggests a some- not, if you believe that happened, you give in this, frankly. what different view of things than Fed- want to remove him from office, and I eralist 65, in the mind of many. But I would like to share a few thoughts on With regard to precedent, precedent would just say to you we have had im- that. is important because it helps us be ob- peachment trials of Judges Claiborne, Having been a professional pros- jective, less political, less personal and Nixon and HASTINGS since then. That is ecutor for 12 years as U.S. attorney, do justice fairer. That is what the our precedent, in recent years, about and I tried a lot of cases myself, I real- Anglo-American common law is all what we believe are our laws and how ly have felt pain for Ken Starr. I had about. Judges have established prece- they should be interpreted. occasion to briefly get to know him. I dent, and judges tend to follow that I would say this about the case. Oth- knew that his reputation within the precedent unless there is a strong rea- ers may see it differently. But with re- Department of Justice as Solicitor son not to. This is important for the gard to the obstruction article, I might General was unsurpassed. He was given rule of law. have a bit of a quibble with the way a responsibility by the Attorney Gen- Perjury and its twin, obstruction of the case was presented. I think there eral of the United States and a court justice, do amount to impeachable was a lot of time and effort spent on panel to find out what the truth was. crimes and our precedent in the Judge trees and not enough on the plain for- The President lied, resisted, attacked Nixon case proves that. I believe we set est. Let me just say to you why I be- him, attacked anybody Mr. Starr dealt a good standard in that case, finding lieve the proof of obstruction of justice with, virtually, in seeking the truth. that perjury is a high crime, clearly, is so compelling, beyond a reasonable And Ken Starr gets blamed for that, and we ought to stay with this stand- doubt, to a moral certainty. And that and then 7 months later we find out ard. is, because the President received in- that the President was lying all the Some have argued that the House Ju- terrogatories, he got a subpoena to a time. He was lying all the time. And diciary Committee on the President deposition, and he knew his day was somehow this is Ken Starr’s fault that Nixon matter declared that tax evasion coming. He knew he was going to have he pursued the matter? I am sure he was not an impeachable offense be- to tell the truth or he was going to suspicioned the President was lying cause it was not directly related to one have to tell a lie, and it wasn’t going but it couldn’t be proven until the of the President’s duties. I don’t think away. dress appeared and then we finally got that is clear at all. As a matter of fact, He tried to avoid the day. He went all something like the truth. as I recall a few House Members and the way to the Supreme Court to try to Now, one of the most thunderous minority Members signed a statement stop that case from going forward, and statements made by counsel—I am sur- to that effect. But let me ask you this, the U.S. Supreme Court unanimously prised it didn’t make more news than and think about this, if a minority on ruled ‘‘No, you don’t get special privi- it did—was the representation by the House Judiciary Committee voted leges. You have to go forward with the White House counsel that judges hold on something, or Gerald Ford said case.’’ So, here he is having to do some- office on good behavior. something when he was in the House thing. If he states he did not have a Those of you who fight tenaciously about impeachment, such is not prece- sexual relationship with Monica for the independence of the judiciary, dent for the U.S. Senate. It is our Lewinsky, if he files an answer to an know that this is not the standard for precedent that counts. It is the prece- interrogatory, which he did in Decem- removal of judges. The courts have dent established by Judge HASTINGS, ber, in which he flatout stated that he gone through it in some detail. Law re- Judge Nixon, and Judge Claiborne that had never had sex with a State or Fed- views have been written about it. we ought to be concerned about.

VerDate Mar 15 2010 23:02 Nov 14, 2013 Jkt 081600 PO 00000 Frm 00036 Fmt 0624 Sfmt 0634 E:\1999SENATE\S23FE9.REC S23FE9 mmaher on DSKCGSP4G1 with SOCIALSECURITY February 23, 1999 CONGRESSIONAL RECORD — SENATE S1779 I do not believe the Constitution says the chief. The FBI was called because sides. In the end, it was Senator that the standard for removal is wheth- it is illegal to bug somebody if there is GRAMM of Texas, joined by Senator er somebody is a danger to the Repub- not a consenting person in the room. KENNEDY of Massachusetts, two oppo- lic’s future. The Constitution says if It is different with Linda Tripp. Let site sides of the political spectrum, you commit bribery, treason, or other me just explain the law. If you can re- that led us to a unanimous bipartisan high crimes or misdemeanors, you are member and testify to what you hear agreement on how to proceed. The sup- out, unless there are some mitigating in conversation, you can record that port of all 100 Senators was important circumstance somebody can find, but conversation and play it later under because it opened the door to a trial the test is not whether or not the offi- law of virtually every State in Amer- that was conducted in a professional cial is going to continue to do the ica. Maryland apparently is different. and judicious manner and without the crime in the future. What if it is a one- Here, the driver’s action would be il- discord that so many of the Wash- time bribery that is never again going legal. Anyway, the young officer fi- ington wisemen had predicted. to happen. Mr. Ruff advocated the nally, under pressure of the FBI, con- After hearing the opening arguments ‘‘danger’’ standard, and it really dis- fessed. The lawsuit hadn’t ended. The made by both sides, Senator ROBERT turbed me because it is not in the Con- civil suit was still going on. He went BYRD offered a motion to dismiss the stitution. back and changed his deposition and case against the President. If success- If we were to reject the standard we recanted. His lawyer came to me and ful, this would have been the first dis- use for judges for impeachment, I do said, ‘‘Don’t prosecute him, JEFF. He’s missal of an impeachment trial in our believe that would mean a lowering of sorry. He finally told the truth. He Nation’s history. our standards. We will not be holding went back. The case wasn’t over.’’ My vote against this dismissal mo- the President to the same standards we We prosecuted him. I felt like he had tion was premised on my sworn Con- are holding the judges in this country, disrupted the city, caused great tur- stitutional obligation to hear the facts and I don’t think the Constitution jus- moil and violated his oath as a police and evidence, and consider the law be- tifies a dual standard. officer, and that we could not just ig- fore I rendered a decision on whether As a prosecutor who has been in the nore that. The case was prosecuted. He the Articles warranted the President’s courtroom a lot, I am not as cynical as was convicted, and it was affirmed on conviction and removal from office. In- some have suggested today about the appeal. deed, this was part of the oath we law. I have been in grand juries hun- Mr. COVERDELL. Mr. Chief Justice took—to do impartial justice. The Sen- dreds of times—thousands really. I and fellow colleagues, in the Capitol’s ate would not have been able to render have tried hundreds of cases. I have Mansfield Room where our Conference a fair and correct judgment on the Ar- seen witnesses personally. I have been has met over the last few weeks, there ticles without receiving and objec- with them before they testified and is a picture of our first president— tively assessing the wealth of evidence have seen them agonize over their tes- George Washington—who celebrates a presented by the House of Representa- timony. I know people who file their birthday this Monday. I was reminded tives and the White House. In short, tax returns and pay more taxes than that, from childhood through adult- dismissal was premature and inappro- they want to, voluntarily, because they hood, George Washington carried priate. are men and women of integrity. I have around with him a copy of the Rules of Consistent with our duty to consider seen it in grand juries. I have seen peo- Civility. The rules could be seen as a all the evidence fully, I supported an ple cry because they did not want to roadmap of how one should conduct effort to allow both the House Man- tell the truth, but they told it. They himself or herself appropriately in so- agers and the White House the oppor- filed motions to object to testifying, ciety. As the Senate began its course tunity to depose a limited number of but when it came right down to it, they through uncharted waters, civility has key witnesses to resolve inconsist- told the truth. been our goal, if not our duty. We have encies in testimony. After reviewing I believe truth is a serious thing. done our best to work together, to be the depositions, I supported a bipar- Truth is real and falsehood is real. This respectful of each other’s views and to tisan motion to make all of this infor- is, in my view, a created universe and do justice according to the Constitu- mation—both the videotapes and writ- we have a moral order and when we tion. Had we not started with this goal ten transcripts—part of the permanent deny the truth we violate the moral in mind, I fear the debate would have record so that each and every Amer- order and bad things happen. Truth is quickly descended into rancor doing a ican could examine the evidence and one of the highest ideals of Western disservice to our Nation. draw their own conclusions. I also civilization commitment to it defines In the next few minutes, I want to voted to allow both the House Man- us as a people. As Senator KYL said, explain how this trial unfolded for me, agers and the White House to use the you will never have justice in a court as well as the rationale behind some of videotaped deposition testimony on the of law if people don’t tell the truth. the votes I’ve cast, including on the floor of the Senate. So this is a big deal with me. I have Articles of Impeachment. Although I did support deposing a had that lecture with a lot of people When the historians write their ac- limited number of witnesses, I did not who were about to testify. I believe we counts of the impeachment trial of support an attempt to allow Ms. ought not to dismiss this lightly. William Jefferson Clinton, I trust that, Lewinsky to testify as a live witness There was a poignant story about Dr. regardless of where one comes down on on the floor of the Senate. In my judg- Battalino and her conviction for lying the facts of the case, they will agree ment, we provided the House Managers about a one-time sex act and the losses that the Senate did it right. We con- a more than adequate opportunity to she suffered. Let me tell you this per- ducted a trial that was fair to all sides, present their case: allowing for wit- sonal story, and I will finish. correct according to the Constitution nesses to be deposed, for House Man- I was U.S. attorney. The new police and expeditious in accordance with the agers to ask any questions necessary to chief had come to Mobile. He was a wishes of the American people. We also resolve inconsistencies in testimony strong and aggressive leader from De- did our best to conduct our delibera- and to allow any portion of these tapes troit. He was an African-American. He tions on a bipartisan basis. to be used on the floor to argue the shook up the department, established We began this process by taking a case against the President. Con- community-based policing, and caused second and most solemn oath of office: sequently, I thought it inappropriate a lot of controversy. A group of police to do impartial justice. For me, as a and unnecessary for Ms. Lewinsky to officers sued him. His driver, a young Senator, I can think of no more somber testify on the Senate floor. Seventy police officer, testified in a deposition and important a constitutional duty Senators felt similarly on this issue. that the chief had asked him to bug than the one that was given us. Our The presentation with videotaped ex- other police officers illegally. Not only first task was to draft a blueprint of cerpts, rather than live witnesses, al- that, he said, ‘‘I’ve got a tape of the how we would proceed in the trial. We lowed both sides to make their argu- chief telling me to bug.’’ met in closed session in the Old Senate ments cogently. In my opinion, wit- It leaked to the newspapers, all in Chamber where the discussions were nesses questioned on the floor, under a the newspapers. They wanted to fire civil, respectful and frank on both time agreement, would have made for a

VerDate Mar 15 2010 23:02 Nov 14, 2013 Jkt 081600 PO 00000 Frm 00037 Fmt 0624 Sfmt 0634 E:\1999SENATE\S23FE9.REC S23FE9 mmaher on DSKCGSP4G1 with SOCIALSECURITY S1780 CONGRESSIONAL RECORD — SENATE February 23, 1999 more fragmented process—objections My hope is that no future Senate will The power [to try impeachments] has been by counsel would have disrupted the ever be required to consider Articles of wisely deposited with the Senate.... That flow of presentations considerably. I Impeachment against the President of of all the departments of the government, the United States. But, if they do, I ‘none will be found more suitable to exercise believe that our decision to exclude this peculiar jurisdiction than the Senate.’ live witness testimony was appro- have every confidence that we have left . . . Precluded from ever becoming accusers priate, fair and improved the nature of behind an appropriate roadmap for themselves, it is their duty not to lend them- closing arguments. them to fulfill their constitutional re- selves to the animosities of party, or the It is the same sense of obligation and sponsibilities. I am proud of the Senate prejudices against individuals, which may a desire to maintain decorum that and its Members. The Senate should be sometimes unconsciously induce’’ the other guided me in my vote to uphold the proud of the way it has conducted body. In serving as the tribunal for impeach- itself: we have done our jobs right by ments, we must strive to attain and dem- Senate’s time-tested tradition of delib- onstrate impartiality, integrity, intelligence erating impeachment trials in private. being fair to all parties, correct accord- and independence. If we fail to do so, the Opening the doors of the Senate during ing to the Constitution and expeditious trial and our judgment will be flawed.—Jo- these final deliberations would have in accordance with the wishes of the seph Story, Commentaries on the Constitu- been a tragic mistake that would ig- American people. tion of the United States, Section 386. nore years of precedent on this issue. In conclusion, I would like to thank In short, impeachment trials require For 2,600 years, since the ancient Athe- the leaders on both sides. In particular, Senators to act, wherever possible, nian lawgiver Solon, trials have been I would like to single out Senator LOTT with principled political neutrality. open and jury deliberations have been for his leadership—this has clearly One question I have repeatedly asked private. Throughout our own history in been one of his finest hours as our Ma- myself during this scandal—when faced every courthouse in America, we have jority Leader. with questions concerning the interpre- open trials, we have public evidence, I yield the floor. tation of the relevant law, the process, Mr. HATCH. Mr. Chief Justice and we have public witnesses, but when the the calls for resignation, or forgive- distinguished Senators, Daniel Webster jury deliberates, it meets in private. ness—has been whether I would have once observed that a ‘‘sense of duty Jury deliberations are held in private taken the same position were this a pursues us ever. It is omnipresent like for the protection of all parties, and to Republican President. I have done this the Deity. If we take to ourselves the ensure for a frank and open discussion throughout the past year I and expect wings of morning, and dwell in the ut- many of my colleagues have done the of the evidence. termost parts of the sea, duty per- Private jury deliberations have also same. formed or duty violated is still with been part of the Senate rules for 130 In 1993, the Supreme Court ruled in us. . . .’’ The duty which has faced years. Some argue that these rules are the case of United States versus Nixon each United States Senator is the obli- outdated and need to be revised. How- that the process by which the Senate gation to do impartial justice in a mat- ever, in 1974 and 1986, when the Senate tries impeachments was nonjusticiable. ter of significant historical import had an opportunity to vote on changes As a result of the Nixon decision, the with lasting consequences for our con- to these rules, it chose to leave intact Senate has a heightened constitutional stitutional order—the consideration of obligation in impeachment cases. As the precedent that the deliberations the impeachment articles against should remain closed. constitutional scholar Michael President William Jefferson Clinton. Gerhardt notes in his 1996 book, The Our private deliberations have pro- Our duty calls on us to answer a seri- moted civil discussion on this grave Federal Impeachment process, ‘‘Con- ous question—whether the President’s gress may make constitutional law— matter of impeachment. Some of the actions warrant his removal from of- most profound and thoughtful state- that is, make judgments about the fice. Fundamentally, in arriving at our scope and meaning of its constitu- ments I’ve heard have come during individual decisions, we must consider these private meetings—where the ab- tionally authorized impeachment func- what is in the best interests of the tion—subject to change only if Con- sence of cameras has had the effect of American people. The President en- gress later changes its mind or by con- turning politicians into statesmen. gaged in conduct, that even his defend- stitutional amendment. Thus, Nixon These private deliberations set a tone ers recognize, was reprehensible and raised an issue about Congress’s abil- of civility and allowed the healing wrong. A bipartisan majority of the ity, in the absence of judicial review, process to begin. House also found that he committed se- to make reasonably principled con- After hearing all evidence and delib- rious, impeachable crimes. stitutional decisions.’’ erations, at the end, I voted for both So, the test for the Senate must be to I believe the Senate has conducted impeachment articles. Setting all the do what’s in the best interest of our na- this trial in a fair manner and that we legal contortions aside, as vote against tion. It is not a matter of what is easi- have made principled constitutional the Articles, or to acquit, would be to est or cleanest. It is a matter of what decisions. I want to commend my col- ratify that there are two sets of law in is in the immediate and long term na- leagues on both sides of the aisle—in our country—one set for our citizens, tional interest. This has been, and it particular the Majority Leader, TRENT and another for the President of the will continue to be, a subjective and LOTT—for the impartial and proficient United States. This is a conclusion I difficult standard and one which I will manner in which we have conducted could not reach or support. Therefore, discuss in greater detail later in my re- our constitutional obligation. my vote on both Articles says in the marks. At the core of our deliberations was simplest terms that no American is First, however, I wish to speak on the the tension between, on the one hand, above the law and there must be one Senate’s procedural responsibility our shared interest in putting this law that applies to us all. when sitting as a Court of Impeach- matter behind us and getting on with Today’s outcome should be a surprise ment, the constitutional law con- the Nation’s business, and, on the other to no one. From the beginning, our two cerning impeachable offenses, and the hand, our interest in affording the parties approached this issue in fun- Articles of Impeachment at issue in the President, and the weighty matter of damentally different ways. While present case; finally, I will conclude impeachment, that process which is Democrats and Republicans agree that with a discussion of whether—assum- due and fair. While there are decisions President Clinton committed very seri- ing the facts alleged have been prov- the Senate reached with which I dif- ous offenses, the disagreement is over en—the best interests of the country fered, I want to make clear my view whether or not these issues rise to the would be served by removing President that the Senate has ably balanced level that he should be removed from Clinton from office. these competing interests. A fair and office. To some extent, the die had been I. THE SENATE’S ROLE full trial that we were once told would cast when the Democrat Party decided Let me begin by explaining what the take one year has been completed in to rally around the President. Like role of the Senate is in the impeach- less than six weeks. The credit for this President Nixon’s fate was sealed when ment process. process rests with every Member of the his party fell against him, President Simply put, the Senate’s role in the Senate, with the House Managers, Clinton’s presidency was secured by his impeachment process is to try all im- counsel for the President, and the Chief party’s allegiance. peachments. As Joseph Story wrote: Justice.

VerDate Mar 15 2010 23:02 Nov 14, 2013 Jkt 081600 PO 00000 Frm 00038 Fmt 0624 Sfmt 0634 E:\1999SENATE\S23FE9.REC S23FE9 mmaher on DSKCGSP4G1 with SOCIALSECURITY February 23, 1999 CONGRESSIONAL RECORD — SENATE S1781 II. THE IMPEACHMENT STANDARD Many learned scholars oppose this ers looked to English precedent to de- Of great concern to me is what the view. Looking at the debates in the fine ‘‘high crimes and misdemeanors.’’ standard should be for impeachment in Constitutional Convention in Philadel- There is a wealth of evidence that a be- this and future trials. The President’s phia in 1787, they note that the Conven- trayal of public trust or reckless con- Counsel has argued that the President tion originally chose treason and brib- duct that places a high office in disre- can only be removed for constituting, ery as the sole standard for impeach- pute constitutes ‘‘high misdemeanors.’’ what Oliver Wendell Holmes termed in ment. George Mason argued that this The modifier ‘‘high’’ refers to acts free speech cases, a ‘‘clear and present standard was too stringent and advo- against the state or commonwealth. In danger.’’ It was contended that a Presi- cated that ‘‘maladministration’’ be the eighteenth century, the term ‘‘po- dent can only be removed if he is a dan- added to the list. James Madison ob- litical’’ also encompassed our modern ger to the Constitution. As such, ac- jected, believing that no coherent defi- term of ‘‘social.’’ So conduct that cording to the President’s Counsel, re- nition of ‘‘maladministration’’ existed harmed society as a whole, or deni- movable conduct must relate to egre- and that such a lenient standard would grated the public respect and con- gious conduct related to performance make the President a pawn of the Sen- fidence in governmental institutions, in office. Even if the House’s allega- ate. The Convention, as a result, set- constituted ‘‘high crimes and mis- tion—that President Clinton com- tled on the phrase ‘‘treason, bribery or demeanors.’’ mitted acts of perjury and obstruction other high crime or misdemeanor.’’ It As such, both English and American of justice is proven true—it was ar- is clear that the phrase ‘‘high crimes officials have been impeached for gued—than such behavior does not rise and misdemeanors’’ was considered by drunkenness, for frequenting pros- to impeachable offenses because it was the Framers to have a more narrow titutes, even for insanity, in other private, not public, conduct. In this and specific meaning and, indeed, it is words private conduct that is unrelated case an inappropriate sexual relation a term taken from English precedent. to official acts. Such behavior is seen with a subordinate employee—was the Accordingly, many scholars, includ- as defaming the office that the accused predicate of the charged offenses. ing Raoul Berger, the dean of impeach- held and diminishing the people’s faith But such a standard establishes an ment scholars (Impeachment: the Con- in government. Impeachment is thus impossibly high bar as to render impo- stitutional Problems (1973)), contend seen by many scholars as a means of tent the impeachment clauses of the that the phrase ‘‘high crimes and mis- removing unqualified office holders. Constitution. I hope that no matter the demeanors’’ is a common law term of Thus, impeachment and removal does outcome of this trial, President Clin- art that reaches both private and pub- not have to be predicated upon com- ton’s view of what constitutes an im- lic behavior. Treason and bribery are mission of a crime. Consequently, im- peachable offense does not become acts that harm society in that they peachment and removal is not in essen- precedent. If it does, I fear the moral constitute a corruption on the body tially a criminal punishment, a conclu- framework of our Republic will be politic. Consequently, ‘‘other high sion that is also textually dem- frayed. If it does, the legitimacy of our crimes and misdemeanors’’ encom- onstrated by the fact that the Framers institutions may very well become tat- passes similar acts of corruption or be- expressly provided for later indictment tered. It would create the paradox of trayals of trust, and need not con- and criminal conviction of an im- being able to convict and jail an offi- stitute formal crimes. Indeed, Alex- peached and removed President. cial for committing, let’s say, homi- ander Hamilton in The Federalist No. A high crime and misdeameanor—ac- cide, but not to be able to remove that 65 makes clear that impeachment is po- cording to this view—does not have to official from holding positions of public litical, not criminal, in nature and amount to a crime or be related to offi- trust. Committing crimes of moral tur- reaches conduct that goes to reputa- cial conduct. Even if President Clin- pitude, such as perjury and obstruction tion and character. In the Seventeenth ton’s acts of perjury were predicated of justice, go to the very heart of quali- and Eighteenth Centuries the term upon lying about a private sexual rela- fication for public office. ‘‘misdemeanor’’ refers not to a petty tion, they still must be considered high The overwhelming consensus of both crime, but to bad demeanor. crimes and misdemeanors. The fact legal and historical scholars is that the History thus demonstrates that acts that the underlying behavior was pri- Constitution mandates the removal of or conduct that demeans the integrity vate in its genesis is irrelevant. Such the ‘‘President, Vice President, and all of the office, or harms an individual’s private acts demean the Office of the civil Officers of the United States’’— reputation in such a way as to engen- President, and betray public trust. which includes federal judges—‘‘upon der a lack of public confidence in the Those acts therefore are impeachable. impeachment by the House and convic- office holder or the political system is But I must emphasize that even if tion by the Senate of ‘‘treason, bribery an impeachable offense. Justice Joseph the President’s Counsel is correct in or other high crimes and mis- Story, in his celebrated Commentaries that private acts unrelated to perform- demeanors.’’ (U.S. Const. Art. II. Sec. on the Constitution of the United ance in office are not impeachable of- 4). The precise meaning of this latter States § 762 (1835), made this abun- fenses, I believe the gravamen of what clause is critical to the outcome of the dantly clear when he wrote that im- President Clinton committed are pub- impeachment trial. peachment lies for private behavior lic, not private, acts that are unambig- The President’s advocates agree with that harms the society or demeans its uous breaches of public trust. Perjury their critics that this standard is the institutions: and particularly obstruction of justice sole standard for presidential impeach- In the first place, the nature of the func- are conduct that attack the very verac- ment, but contend that the ‘‘or other’’ tions to be performed: The offences, to which ity of our justice system. (Further- phrase indicates that grounds for im- the power of impeachment has been, and is more, I vehemently disagree that the peachment must be criminal in nature ordinarily applied, as a remedy, are of a po- underlying conduct was a purely pri- because treason and bribery are crimes litical character. Not but that crimes of a vate concern because the conduct in- or acts committed against the state. strictly legal character fall within the scope volved a federal employee in a work en- Such crimes or acts must be heinous, of the power, (for, as we shall presently see, vironment). they contend, because the term treason, bribery, and other high crimes and Lying under oath, hiding evidence, misdemeanors are expressly within it;) but ‘‘crimes and misdemeanors’’ is pre- that it has a more enlarged operation, and and tampering with witnesses destroy ceded by the descriptive adjective reaches, what are aptly termed, political of- the truth-finding function of our inves- ‘‘high’’ in the impeachment clause. fenses, growing out of personal misconduct, tigatory and trial system. Perjury and These advocates also claim that there or gross neglect, or usurpation, or habitual obstruction of justice are particularly exists no proof of criminal wrongdoing, disregard of the public interests, in the dis- pernicious if committed by a President that we have evidence of only a private charge of the duties of political office. of the United States, who has sworn affair unrelated to performance in pub- Even though the Framers rejected pursuant to the oath of office to pro- lic office, and that abuse of power re- the English model of impeachment as a tect the Constitution and laws of the lated to official conduct—not present form of punishment and promulgated United States. Whether perjury and ob- here—is a prerequisite for impeach- removal as the remedy for conviction, struction of justice can be considered ment. most scholars contend that the Fram- private or public acts is of no moment.

VerDate Mar 15 2010 23:02 Nov 14, 2013 Jkt 081600 PO 00000 Frm 00039 Fmt 0624 Sfmt 0634 E:\1999SENATE\S23FE9.REC S23FE9 mmaher on DSKCGSP4G1 with SOCIALSECURITY S1782 CONGRESSIONAL RECORD — SENATE February 23, 1999 They are twin ‘‘high crimes’’ harming William Jefferson Clinton willfully could hear’’ and that he was ‘‘trying to the political order and requiring im- provided perjurious, false and mis- get as much information as quickly as peachment and removal from office. leading testimony to the grand jury. I could * * * [a]nd I was trying to fig- A related argument made by the I. STATEMENTS BEFORE THE GRAND JURY THAT ure [it] out * * * in a hurry because I President’s Counsel is that a President CONSTITUTE PERJURY knew something was up.’’ See WJC 8/17/ should be held to a less stringent OVERVIEW 98 at 56. Immediately following exten- standard than federal judges in im- ‘‘Whoever under oath . . . in any pro- sive questioning on this issue, a dif- peachment trials. Because many judges ceeding before or ancillary to any ferent prosecutor from the Office of have been removed for conduct unre- court or grand jury knowingly makes Independent Counsel asked the Presi- lated to performance in office, such as any false material declaration . . . dent that ‘‘[i]f I understand your cur- Judges Clairborne and Nixon, who were shall be fined under this title or im- rent line of testimony, you are saying convicted and removed for perjurious prisoned not more than five years, or that your only interest in speaking statements unrelated to their perform- both.’’ See 18 U.S.C. § 1623(a). In a pros- with Ms. Currie in the days after your ance in office, the President is almost ecution for perjury under 18 U.S.C. deposition was to refresh your own compelled to make this argument. § 1623(a), the prosecution must prove recollection.’’ (Emphasis added.) See In essence, The President’s Counsel the following elements: (1) the declar- WJC 8/17/98 GJ at 141–142. President contend that Article III’s requirement ant was under oath, (ii) the testimony Clinton answered: ‘‘Yes.’’ Id. that judges hold office for ‘‘good behav- was given in a proceeding before a President Clinton’s testimony that ior’’ is not simply a description of the court of the United States, (iii) the he was ‘‘only’’ trying to ‘‘refresh [his] term of office, but a grounds for im- witness knowingly made, (iv) a false memory about what the facts were’’ is peachment if violated. Presidents—and statement, and (v) the testimony was perjury because a person cannot ‘‘re- other civil officers—are subject to the material. United States v. Whimpy, 531 fresh’’ his memory with statements more stringent high crimes and mis- F.2d 768 (1976). The first two elements and questions that he knows are false. demeanor standard. are not at issue here because it is un- Each of President Clinton’s five state- Most scholars reject this view. For disputed that President Clinton testi- ments to Currie is either an outright instance, Michael J. Gerhardt (The fied under oath before a Grand Jury of lie or extremely misleading. President Federal Impeachment Process (1996)) the United States. As the discussion Clinton knew the facts of his relation- testified in the House Constitutional below reveals, the House Managers ship with Ms. Lewinsky, and he knew Subcommittee of the Judiciary Com- proved the remaining elements of per- his statements to Betty Currie were mittee in November that the impeach- jury beyond a reasonable doubt for key false. By definition, these false ques- ment standard of high crimes and mis- aspects of President Clinton’s Grand tions and statements could not have demeanors applies to all civil officers, Jury testimony. helped President Clinton accurately re- including judges as well as the Presi- fresh his memory. dent. This is the sole constitutional A. STATEMENTS TO BETTY CURRIE ON JANUARY 18, 1998 ground for impeachment. Article III’s In addition, Betty Currie could not good behavior provision for judges sim- President Clinton committed perjury possibly have known the answers to ply sets the duration for judicial office before the Grand Jury when he testi- some of these questions. For example, (lifetime unless impeached). There are fied falsely concerning his motivation how could Betty Currie have known simply no differing standards for for making five statement to Betty whether the President ever ‘‘touched’’ judges and the President. Currie. Hours after his deposition in Ms. Lewinsky or whether Ms. Currie the Jones case, President Clinton was ‘‘always there when [Ms. III. ARTICLE ONE—PERJURY Let me now turn to the facts of this called his secretary Betty Currie and Lewinsky] was there?’’ Common sense case. The House alleges in Article I asked her to come to the White House defies the President’ explanation: if that the President should be removed the next day, January 18. See Currie 1/ one is trying to refresh his memory or because he committed acts of perjury. 27/98 GJ at 65–66. On that Sunday after- gather information quickly, he does The House alleges in Article II that the noon, the President made the following not ask questions of a person to which President should be removed because five statements to Ms. Currie about the person could not know the answers. he obstructed and interfered with the Monica Lewinsky: (1) ‘‘You were al- The fact that Betty Currie could not mechanisms and duly constituted proc- ways there when she was there, have known the answers to these ques- esses of the justice system. right?’’; (2) ‘‘We were never really tions further undermines President To demonstrate why I believe it is so, alone.’’; (3) ‘‘Monica came on to me, Clinton’s testimony that he was trying it is necessary to discuss both the legal and I never touched her, right?’’; (4) to refresh his memory or gather infor- standards and how the facts meet the ‘‘You can see and hear everything, mation quickly. requirements of those standards. I will right?’’; and (5) ‘‘She wanted to have If the President was merely trying to first discuss perjury, and, next, turn to sex with me, and I cannot do that.’’ Id. refresh his recollection or gather infor- obstruction of justice. at 71–74. President Clinton repeated mation quickly why did he repeat these these same questions and statements ARTICLE I OF THE IMPEACHMENT OF WILLIAM questions and statements to Currie a JEFFERSON CLINTON to Betty Currie a few days later. See few days later? As the House Managers In his conduct while President of the BC 1/27/98 GJ at 80–81. When he dis- noted during the trial, instead of ask- United States, William Jefferson Clin- cussed his deposition testimony regard- ing a series of specific leading ques- ton, in violation of his constitutional ing Ms. Lewinsky with Betty Currie on tions, why didn’t President Clinton ask oath faithfully to execute the office of these two occasions, President Clinton Currie a general question about what President of the United States and, to violated Judge Wright’s strict order she recalled about Ms. Lewinsky’s ac- the best of his ability, preserve, pro- prohibiting any discussion of the Jones tivity at the White House? Moreover, tect, and defend the Constitution of the deposition. President Clinton’s blatant violation of United States, and in violation of his FALSITY Judge Wright’s order prohibiting any constitutional duty to take care that President Clinton lied to the Grand discussion of the Jones deposition casts the laws be faithfully executed, has Jury when he testified about his moti- further doubt on his testimony on this willfully corrupted and manipulated vation for making these statements. issue. The President’s testimony re- the judicial process of the United When asked before the Grand Jury garding his motivation for these state- States for his personal gain and exon- about these statements to Betty ments is false. He did not make these eration, impeding the administration Currie, the President testified that he statements to refresh his recollection. of justice, in that: asked these ‘‘series of questions’’ in Rather, as the following section ex- On August 17, 1998, William Jefferson order to ‘‘refresh [his] memory about plains, the President made these state- Clinton swore to tell the truth, the what the facts were.’’ See WJC 8/17/98 ments to Ms. Currie in order to influ- whole truth, and nothing but the truth GJ at 131. He further testified that he ence her potential testimony in the before a Federal Grand Jury of the wanted to ‘‘know what Betty’s memory Jones suit and to influence her possible United States. Contrary to that oath, was about what she heard, what she responses to the media.

VerDate Mar 15 2010 23:02 Nov 14, 2013 Jkt 081600 PO 00000 Frm 00040 Fmt 0624 Sfmt 0634 E:\1999SENATE\S23FE9.REC S23FE9 mmaher on DSKCGSP4G1 with SOCIALSECURITY February 23, 1999 CONGRESSIONAL RECORD — SENATE S1783 KNOWINGLY was critical for the Grand Jury to as- Lewinsky engaged in sexual activity on In a perjury case under 18 U.S.C. certain whether President Clinton at- at least ten occasions over the course § 1623, the prosecution must prove that tempted to influence the testimony of of 16 months. President Clinton’s testi- the defendant ‘‘knowingly’’ made the Currie, a potential witness in that mony to the Grand Jury that he never false statement. Under this statute, case. President Clinton’s statements to touched Ms. Lewinsky in certain areas ‘‘knowingly’’ means merely that the Currie the day after his deposition with the intent to arouse is simply not defendant made the false statement strongly indicate that he was seeking believable given the nature and extent ‘‘voluntarily and intentionally, and not to influence her testimony. The Presi- of their contact. because of mistake or accident or other dent’s false statements about his moti- In addition, Ms. Lewinsky’s testi- innocent reason.’’ United States v. vation for making these statements to mony directly contradicts the Presi- Fawley, 137 F.3d 458, 469 (7th Cir. 1998); Currie had the ‘‘natural effect or tend- dent. She testified in detail repeatedly United States v. Watson, 623 F.2d 1198, ency’’ to ‘‘impede or dissuade the before the grand jury about each of (7th Cir. 1980). Grand Jury from pursuing its inves- their sexual encounters. According to The President knowingly made these tigation’’ of obstruction of justice in Ms. Lewinsky’s testimony, she and false statements about his motivation the Jones case. President Clinton engaged in conduct for speaking to Betty Currie after his THE PRESIDENT’S DEFENSE that constituted ‘‘sexual relations’’ deposition. He did not make these In his trial brief, the President offers even under the President’s purported statements by ‘‘mistake or accident or only a brief defense to this perjury al- understanding of the term during 10 en- other innocent reason.’’ Rather, Presi- legation. First, the President argues counters. It is important to note that dent Clinton lied about his motivation that ‘‘Ms. Currie’s testimony supports Ms. Lewinsky’s testimonty about the to conceal his true purpose in making extent of their sexual conduct occurred the President’s assertion that he was these statements to Currie. In reality, before the President’s Grand Jury tes- looking for information as a result of President Clinton was attempting to timony made these precise sexual de- his deposition’’ when he made these corroborate his deceitful testimony in tails important. Moreover, Ms. statements to Currie. See President’s the Jones deposition with a prospective Lewinsky’s friends, family members, Trial Brief at 53. As discussed earlier, witness. When he made these state- and medical therapists corroborated however, this is implausible. A person ments to Currie, the President knew her account by testifying to the Grand cannot accurately gather information that she was a likely witness in the Jury that Lewinsky made near-con- by making false or misleading state- Jones case because he repeatedly re- temporaneous statements to them that ments to another person. ferred to Currie when asked about Ms. President Clinton fondled her in a vari- Second, in his brief, the President re- Lewinsky by the Jones lawyers. See ety of ways during their encounters. fers to Currie’s Grand Jury testimony Clinton 1/17/98 Dep. at 58. President Finally, the fact that President Clin- in which she testified that she felt no Clinton actually told the Jones lawyers ton lied to the American people about pressure to agree with the President to ‘‘ask Betty’’ in response to one ques- this tawdry affair badly undermines his when he made these questions and tion in the deposition. Id. at 64–66. In implausible testimony on this issue. statements. See President’s Trial Brief fact, Betty Currie was subpoenaed by KNOWINGLY at 51–53. However, the fact that Ms. the Jones lawyers only days after the As mentioned earlier, in a perjury Currie testified that she did not feel President’s deposition. case under 18 U.S.C. § 1623, the prosecu- Moreover, in addition to influencing pressured is completely irrelevant to tion must prove that the defendant a prospective witness in the Jones suit, whether the President committed per- ‘‘knowingly’’ made the false statement. the President had another motivation jury concerning these statements. Under this statute, ‘‘knowingly’’ for coaching Ms. Currie: She was a President Clinton’s state of mind—not means merely that the defendant made probable target of press inquiries about Ms. Currie’s—is at issue here because the false statement ‘‘voluntarily and this controversy. In fact, a prominent he is the one accused of perjury. intentionally, and not because of mis- reporter from Newsweek had already In sum, the House Managers proved take or accident or other innocent rea- called Currie on January 15, 1998 and beyond a reasonable doubt that Presi- son.’’ United States v. Fawley, 137 F.3d asked her about Ms. Lewinsky. See dent Clinton (1) knowingly (2) lied 458, 469 (7th Cir. 1998), United States v. Currie 5/6/98 GJ at 120–121. The Presi- about his motivation for making these Watson, 623 F.2d 1198 (7th Cir. 1980). dent had a motive to influence infor- deceitful statements to Betty Currie (3) President Clinton knowingly made mation Currie might give to the concerning a material matter under in- these false statements about the na- media—in addition to testimony she vestigation by the Grand Jury (4) while ture and extent of his sexual relation- might give as a witness in Jones versus under oath before a federal Grand Jury. ship. He did not make these statements Clinton. The President knowingly B. THE NATURE AND EXTENT OF THE PHYSICAL by ‘‘mistake or accident or other inno- made these statements to Ms. Currie in RELATIONSHIP WITH LEWINSKY cent reason.’’ Instead, the President order to influence both her potential Another example of perjury before had a strong motive to lie about the testimony and her possible responses the Grand Jury concerns President extent of the sexual contact in order to to the media. Clinton’s testimony that he did not en- avoid being accused of perjury in the MATERIALITY gage in ‘‘sexual relations’’ with Ms. Jones deposition. After Ms. Lewinsky’s ‘‘Because the Grand Jury’s function Lewinsky even under his alleged under- dress was discovered, President Clinton is investigative, materiality in that standing of the definition used in the could no longer deny a sexual affair. context is broadly construed.’’ United Jones case. Even under his purported However, because he repeatedly denied States v. Gribbon, 984 F.2d 471 (2d Cir. interpretation of the term, however, having ‘‘sexual relations’’ with Ms. 1993). Courts have consistently held Clinton admitted to the Grand Jury Lewinsky in the Jones deposition, the that in a Grand Jury, ‘‘a false declara- that if the person being deposed President was trapped. As mentioned tion is ‘material’ within the meaning touched certain enumerated body parts earlier, the President was forced to of [18 U.S.C.] § 1623 when it has a nat- of another person, then that would con- admit that fondling Ms. Lewinsky in ural effect or tendency to influence, stitute ‘‘sexual relations.’’ See WJC 8/ certain ways would constitute ‘‘sexual impede or dissuade the Grand Jury 17/98 at 95–96. When asked if he denied relations’’ even under his purported in- from pursuing its investigation.’’ engaging in such specific conduct, Clin- terpretation of the term. Consequently, United States v. Kross, 14 F.3d 751 (2d ton answered ‘‘[t]hat’s correct.’’ Id. President Clinton had to deny such Cir. 1994). FALSITY fondling before the Grand Jury to pre- President Clinton’s false statements President Clinton lied to the Grand vent an admission that he committed to the Grand Jury regarding his Janu- Jury when he testified concerning the perjury in his civil deposition, despite ary conversations with Betty Currie nature and extent of the sexual rela- how implausible this denial is. In sum- are material to the Grand Jury’s inves- tionship. First, human nature and com- mary, President Clinton committed tigation of obstruction of Justice. To mon sense strongly undermine Presi- perjury before the Grand jury by insist- determine whether the President ob- dent Clinton’s testimony. It is undis- ing that his testimony in the Jones structed justice in the Jones case, it puted that President Clinton and Ms. deposition on this key matter was true.

VerDate Mar 15 2010 23:02 Nov 14, 2013 Jkt 081600 PO 00000 Frm 00041 Fmt 0624 Sfmt 0634 E:\1999SENATE\S23FE9.REC S23FE9 mmaher on DSKCGSP4G1 with SOCIALSECURITY S1784 CONGRESSIONAL RECORD — SENATE February 23, 1999 Perhaps due to fear of being charged Ms. Lewinsky (3) concerning a material President might not be convicted in a with perjury in the Jones deposition, matter under investigation by the court of law for perjury concerning his President Clinton committed the more Grand Jury (4) while under oath before testimony on this issue. I am con- serious offense of perjury before a a federal Grand Jury. vinced, however, that President Clin- Grand Jury. OTHER LIES BEFORE THE GRAND JURY ton lied to the Grand Jury about this MATERIALITY In addition, I have concluded that matter. While this testimony might As mentioned earlier, ‘‘because the President Clinton lied in other in- not generate a conviction in a court of Grand Jury’s function is investigative, stances before the Grand Jury. While law, it was clearly contrived and is pro- materiality in that context is broadly these lies might not sustain a convic- foundly troubling. construed.’’ United States v. Gribbon, 984 tion for perjury in a court of law, they IV. ARTICLE TWO—OBSTRUCTION OF JUSTICE F.2d 471 (2d Cir. 1993). Courts have con- are profoundly troubling nonetheless. Let me now turn to the facts of the sistently held that in a Grand Jury, ‘‘a For instance, it strongly appears that second article of impeachment alleging false declaration is ‘material’ within President Clinton lied to the Grand obstruction of justice. Article Two al- the meaning of [18 U.S.C.] § 1623 when it Jury when he testified that he did not leges that: has a natural effect or tendency to in- believe certain acts that he and Ms. In his conduct while President of the fluence, impede or dissuade the Grand Lewinsky engaged in were covered by United States, William Jefferson Clinton, in Jury from pursuing its investigation.’’ any of the terms and definitions used violation of his oath faithfully to execute the office of President of the United States United States v. Kross, 14 F.3d 751 (2d in the Jones suite. The following defi- Cir. 1994). and, to the best of his ability, preserve, pro- nition of ‘‘Sexual Relations’’ was used tect, and defend the Constitution of the The President’s false statements at the Jones deposition: United States, and in violation of his con- about the extent of his sexual conduct For the purposes of this deposition, a per- stitutional duty to take care that the laws with Ms. Lewinsky are material to the son engages in ‘sexual relations’ when the be faithfully executed, has prevented, ob- Grand Jury’s investigation of whether person knowingly engages in or causes con- structed, and impeded the administration of the President committed perjury in the tact with . . . [certain enumerated body justice, and has to that end engaged person- Jones deposition. In an effort to deter- parts] of any person with the intent to arouse ally, and through his subordinates and mine whether President Clinton testi- . . .’’ (Emphasis added.) agents, in a course of conduct or scheme de- fied truthfully in his deposition, the Amazingly, President Clinton testified signed to delay, impede, cover up, and con- to the Grand Jury that he does not be- ceal the existence of evidence and testimony Office of Independent Counsel ques- related to a Federal civil rights action tioned the President at length before lieve and did not believe at the Jones brought against him in a duly instituted ju- the Grand Jury about the nature and deposition that this definition includes dicial proceeding. extent of his sexual relationship with certain acts which I will not specify. In order to determine whether the Ms. Lewinsky. The President’s tor- Without addressing these lurid details, President has engaged in the type of tured definition of sexual relations Clinton interprets ‘‘any person’’ to acts charged, it is important that the makes these details material to wheth- mean ‘‘any other person’’ under the law be first addressed in order to guide er he committed perjury in the Jones definition. There is no legal basis for us in understanding how the facts re- deposition. Simply put, if the President him to interpret the definition in this late to the violations alleged. touched Ms. Lewinsky in certain ways, manner. A. The Law of Obstruction of Justice: he is guilty of perjury in the Jones dep- I do not believe that President Clin- 1. 18 U.S.C. § 1503: osition. Obviously, President Clinton’s ton can reasonably claim this interpre- The Federal obstruction of justice false statements on this matter had tation. First, under the President’s in- statute punishes ‘‘[w]hoever . . . cor- the ‘‘natural effect or tendency to in- terpretation, one person can engage in ruptly . . . influences, obstructs, or im- fluence, impede or dissuade the Grand sexual relations, while his or her part- pedes, or endeavors to influence, ob- Jury from pursuing its investigation’’ ner in the same activity is not engaged struct, or impede, the due administra- of perjury in the Jones deposition. in sexual relations. Obviously, this is tion of justice.’’ 18 U.S.C.A. § 1503(a). THE PRESIDENT’S DEFENSE an implausible and absurd conclusion. Known as the ‘‘omnibus clause,’’ In President Clinton’s trial brief, the Second, no reasonable person would § 1503(a) ‘‘clearly forbids all corrupt en- only rebuttal to his allegation of per- have understood the definition in the deavors to obstruct or impede the due jury is that ‘‘[t]his claim comes down Jones suit not to encompass the par- administration of justice,’’ United to an oath against an oath about im- ticular activity that President Clinton States v. Williams, 874 F.2d 968, 976 (5th material details concerning an ac- and Ms. Lewinsky engaged in. It is im- Cir. 1989), which is defined as ‘‘the per- knowledged wrongful relationship.’’ portant to remember that the under- formance of acts required by law in the See Clinton Trial Brief at 44. Even this lying allegation in the Jones suit con- discharge of duties such as appearing one pithy sentence, however, is inac- cerned the same particular acts in- as a witness and giving truthful testi- curate. First, as the earlier discussion volved in the Lewinsky affair. Why mony when subpoenaed.’’ United States reveals, there is more evidence than an would the Jones’ lawyers use a defini- v. Partin, 552 F.2d 621, 641 (5th Cir. 1977). oath against an oath. Human nature tion that did not include the very con- The statute has alternatively been in- and common sense badly undermine duct alleged by their client? Given this terpreted as forbidding ‘‘interferences the President’s testimony. In addition, context, the President’s testimony with . . . judicial procedure’’ and aim- Ms. Lewinsky testified in detail repeat- that he did not believe the definition ing ‘‘to prevent a miscarriage of jus- edly before the Grand Jury about the included certain conduct is not believ- tice.’’ United States v. Silverman, 745 extent of the sexual relationship, while able. F.2d 1386, 1398 (11th Cir. 1984). the President reverted to his prepared Finally, the President had a clear ‘‘There are three core elements that statement 19 times to avoid answering motive to lie about his understanding the government must establish to specific sexual questions. Moreover, of the definition of sexual relations. prove a violation of the omnibus clause the testimony of Ms. Lewinsky’s fam- After Ms. Lewinsky’s dress was discov- of section 1503: (1) there must be a ily, friends, and medical therapists pro- ered, the President could no longer pending judicial proceeding; (2) the de- vide additional evidence of the Presi- deny his sexual affair. However, the fendant must have knowledge or notice dent’s perjury. Finally, the fact that President repeatedly denied having of the pending proceeding; and (3) the President Clinton lied to the entire na- ‘‘sexual relations’’ with Ms. Lewinsky defendant must have acted corruptly tion about this sordid affair—and only in the Jones deposition. President Clin- with the specific intent to obstruct or acknowledged the affair when con- ton’s absurd interpretation of the defi- impede the proceeding in its due ad- fronted with evidence of Ms. nition of sexual relations allowed him ministration of justice.’’ United States Lewinsky’s dress—devastates his credi- to admit to a sexual relationship— v. Williams, 874 F2d 968, 976 (5th Cir. bility on this issue. which he had to do given the dress— 1989). Accord United States v. Grubb, 11 In sum, the House Managers provide without simultaneously admitting to F.3d 426, 437 (4th Cir. 1993) (adding the beyond a reasonable doubt that Presi- perjury in the Jones deposition. Be- word ‘‘influence’’ to the terms ‘‘ob- dent Clinton (1) knowing (2) lied about cause perjury is such a difficult crime struct or impede’’ in the intent ele- the extent of his sexual activity with to prove, I have concluded that the ment).

VerDate Mar 15 2010 23:02 Nov 14, 2013 Jkt 081600 PO 00000 Frm 00042 Fmt 0624 Sfmt 0634 E:\1999SENATE\S23FE9.REC S23FE9 mmaher on DSKCGSP4G1 with SOCIALSECURITY February 23, 1999 CONGRESSIONAL RECORD — SENATE S1785 The purpose of the statute, according witness a false story as if the story It should be recalled that the pres- to the Supreme Court is not directed at were true, intending that the witness ence of Ms. Lewinsky’s name on the the success of the corruptive effort, believe the story and testify to it be- Jones witness list first came to the at- ‘‘but at the ‘endeavor’ to do so.’’ United fore the grand jury. United States v. tention of the President no later than States v. Russell, 255 U.S. 138, 143 (1921) Rodolitz, 786 F.2d 77, 81–82 (2d Cir. 1986). December 17, 1997. See WJC 8/17/98 at (opining that the word ‘‘endeavor’’ was Some courts have interpreted con- 83–84. He was certainly aware of the used instead of ‘‘attempt’’ in order to duct that was not misleading to the true nature of their relationship, and it avoid the technical distinctions be- person at whom it was directed, even if can be inferred that he knew that tween attempts, which are punishable, it was intended to misled the govern- knowledge of the existence of that re- and preparation for attempts, which ment, as outside the scope of § 1512. See lationship would be detrimental to his are not). See also United States v. e.g. United States v. King, 762 F.2d 232, case. It is also known that a cover Aguilar 515 U.S. 593, 599 (1995) (holding 237–238 (2d Cir. 1985). However, the story had been developed earlier to that while the endeavor must have the Rodolitz court distinguished the facts hide the relationship from others that ‘natural and probable effect’ of inter- in King, where there was insufficient included the false representation that fering with the due administration of evidence that the witness was actually Ms. Lewinsky’s visits to the oval office justice, the defendant’s actions need misled, from the situation where the were for the purpose of bringing the not be successful, citing Russell). declarant makes false statements to a President papers or to visit Ms. Currie. 2. 18 U.S.C. § 1512. witness who is ignorant of their falsity. See WJC 8/17/98 at 83–84. The statute criminalizing witness See Rodolitz, 786 F2d at 81–82 (‘‘In giv- Ms. Lewinsky testified that in the tampering prohibits, inter alia, the use ing the statutory language its fair same 2:30 a.m. conversation in which or attempted use of corrupt persuasion meaning, the court must find that he informed her of the presence of her or misleading conduct with the intent making false statements to convince name on the witness list, the President of influencing delaying, or preventing another to lie falls squarely within the told her that she could always say she testimony in an official proceeding, definition of ‘engaging in misleading was bringing him papers or visiting Ms. causing a person to withhold testimony conduct toward another person’ under Currie, consistent with their previous or documentary evidence, alter or de- section 1512.’’). cover series. See ML 2/1/99 at CONG. stroy physical evidence, evade legal The witness tampering statute ex- REC. S1219. Ms. Lewinsky and the at- process, or be absent from an official plicitly states that ‘‘an official pro- torneys for the President have argued proceeding to which such person has ceeding need not be pending or about that since Ms. Lewinsky did in fact been legally summoned. 18 U.S.C. to be instituted at the time of the of- ‘‘see’’ Ms. Currie on those visits to the § 1512(b). ‘‘To sustain its burden of fense.’’ 18 U.S.C. § 1512(e)(1). However, President and since she was ‘‘carrying’’ proof for the crime of tampering with a courts have implied some state of mind papers, that story was not untruthful witness . . . the Government must element. E.g. United States v. Kelly, 36 and therefore could not have been de- prove . . . that the [d]efendant know- F.3d 1118, 1128 (D.C.Cir. 1994) (‘‘It there- signed to obstruct justice. However, ingly, corruptly persuaded or at- fore follows that § 1512 does not require that rationale defies logic and common tempted to corruptly persuade . . . a explicit proof of [defendant’s] knowl- sense. witness; and second, that the edge . . . that such proceedings were In the first place, the purpose of the [d]efendant . . . did so intending to in- pending or were about to be insti- visits was not to see Ms. Currie. Sec- fluence the testimony of [that witness] tuted.... The statute only requires ondly, the papers she carried were just at the [g]rand [j]ury proceeding.’’ that the jury be able reasonably to props, not to be handed over to the United States v. Thompson, 76 F.3d 442, infer from the circumstances that [de- President, but to falsely characterized 452–453 (2d Cir. 1996). fendant], fearing that a grand jury pro- as papers for the President if ques- The witness tampering statute’s pro- ceeding had been or might be insti- tioned. Therefore, were she to testify hibition of corruptly persuading some- tuted, corruptly persuaded persons in a deposition that the purpose of her one with intent to ‘‘influence, delay, or with the intent to influcence their pos- trips to the Oval Office to visit the prevent the testimony of any person in sible testimony in such a proceeding.’’) President were actually to deliver pa- an official proceeding,’’ has been inter- B. The Facts Related to Obstruction pers or visit Ms. Currie, those would be preted to mean exhorting a person to of Justice. false representations. The creation of a violate his legal duty to testify truth- 1. Subparts (1) and (2) of Article II: cover story followed by actions con- fully in court. United States v. Morrison, In Subpart (1) of Article II, it is sistent with that cover story do not 98 F.3d 619, 630 (D.C. Cir. 1996) (rejecting averred that: make the story any more truthful. defendant’s argument that a simple re- On or about December 17, 1997, Wil- Therefore, the President’s instruction quest to testify falsely was outside the liam Jefferson Clinton corruptly en- to her to rely on the cover story is in scope of § 1512(b)), cert. denied, 117 S.Ct. couraged a witness in a federal civil ac- fact an instruction to her to lie. 1279 (1997). As the Second Circuit ex- tion brought against him to execute a Other evidence supports this conclu- plained: ‘‘Section 1512(b) does not pro- sworn affidavit in that proceeding that sion, not the least of which is the affi- hibit all persuasion but only that he knew to be perjurious, false and davit filed by Ms. Lewinsky in the case which is ‘corrupt.’ The inclusion of the misleading. after those discussions with the Presi- qualifying term ‘corrupt’ means that Subpart (2) alleges that: dent took place, an affidavit she her- the government must prove that the On or about December 17, 1997, Wil- self later testified as being false. How defendant’s attempts to persuade were liam Jefferson Clinton corruptly en- else could she have characterized it? In motivated by an improper purpose to couraged a witness in a Federal civil that affidavit, Ms. Lewinsky stated .... A prohibition against corrupt rights action brought against him to that she ‘‘never had a sexual relation- acts ‘is clearly limited to . . . constitu- give perjurious, false and misleading ship with the President.’’ This was tionally unprotected and purportedly testimony if and when called to testify false. She swore that ‘‘[t]he occasions I illicit activity.’ United States v. Thomp- personally in that proceeding. saw the President after I left my em- son 76 F.3d 442, 452 (2d Cir. 1996) Subparts (1) and (2) are flip sides of ployment at the White House in April, (quoting United States v. Jeter, 775 F2d the same coin. In essence, the two sub- 1996, were official receiptions, formal 670, 679 (6th Cir. 1985)). parts charge that the President’s 2:30 functions or events related to the U.S. Apart from corrupt persuasion with a.m. phone call to Ms. Lewinsky on De- Department of Defense, where I was intent to influence a person’s testi- cember 17, 1997, informing her of her working at the time. There were other mony, § 1512(b) proscribes engaging in presence on a witness list in the Jones people present on those occasions.’’ misleading conduct with intent to in- case was designed to encourage her to This statement too was false. She also fluence such testimony. 18 U.S.C. provide a false affidavit in the case to averred that ‘‘I do not possess any in- § 1512(b)(1). As one court described it, avoid testifying, or failing that, that formation that could possibly be rel- ‘‘[t]he most obvious example of a sec- she give false testimony hiding the evant to the allegations made by Paula tion 1512 violation may be the situa- true nature of their relationship. What Jones or lead to admissible evidence in tion where a defendant tells a potential does the evidence show? this case.’’ Once again, this statement

VerDate Mar 15 2010 23:02 Nov 14, 2013 Jkt 081600 PO 00000 Frm 00043 Fmt 0624 Sfmt 0634 E:\1999SENATE\S23FE9.REC S23FE9 mmaher on DSKCGSP4G1 with SOCIALSECURITY S1786 CONGRESSIONAL RECORD — SENATE February 23, 1999 was false, as the President was aware, said you have something for me. Ms. It is uncontroverted that Vernon Jor- since he knew of the gifts he had given Lewinsky immediately understood that dan did not actively seek to find a job to Ms. Lewinsky. See WJC 8/17/98 at 32– statement by Ms. Currie to refer to the for Ms. Lewinsky until she was on the 35. gifts from the President she had dis- witness list in the Jones case. Once she The President repeatedly said that he cussed with him earlier in the day. See was on the witness list, she engaged in thought that Ms. Lewinsky ‘‘could,’’ ML 2/1/99 at CONG. REC. S1225. She then a high level job search under the guid- and he emphasizes the word ‘‘could,’’ proceeded to gather up all those gifts. ance of the President and reported his have been able to draft a narrow truth- However, according to Ms. Lewinsky, progress in that regard directly to the ful affidavit. See WJC 8/17/98 at 69, 116– she unilaterally withheld some of those President. See VJ 2/2/99 at CONG. REC. 17. The problem is that although she gifts from Ms. Currie which were of S1231–36. Moreover, he knew at the ‘‘could’’ have been able to draft such an sentimental value to her. time of his job search that Ms. affidavit, the end product was not a The President’s first defense to this Lewinsky was a potential witness in truthful affidavit. Thus the President’s allegation is based upon a minor dis- the Jones case and, according to Ms. intentional failure to prevent his attor- crepancy in Ms. Lewinsky’s testimony Lewinsky, was apprised by her of the ney from using that false affidavit at concerning the time that the gifts were sexual nature of her relationship with his deposition provides further evi- retrieved by Ms. Currie. The argument the President. See ML 8/6/98 GJ at 138– dence of his corrupt intention during is that if Ms. Lewinsky was mistaken 39. And of course, in that very same the December 17, 1997, phone call to Ms. by one and one half hours in her recol- time frame, he procured for her an at- Lewinsky. lection of when the gifts were retrieved torney to help her file a false affidavit Given these facts, the House has by Ms. Currie, then her recollection of freeing her from testifying in the case proven beyond a reasonable doubt that who initiated the retrieval is also sus- and to prepare that false affidavit in the President endeavored to corruptly pect. See Statement of Cheryl Mills 1/ time for it to be used in the President’s influence the affidavit and potential 20/99 at CONG. REC. S826–27. deposition in the Jones case. See VJ 2/ testimony of Ms. Lewinsky in his De- This is a red herring. The timing 2/99 at CONG. REC. S1240–41. cember 17, 1997, 2:30 a.m. call to her. itself is unimportant. What is impor- One could speculate that the Presi- 2. Subpart (3) of Article II: tant is the fact that the call came from dent’s use of one of the most powerful In Subpart (3), it is alleged that: Ms. Currie. See ML 2/1/99 at CONG. REC. attorneys in Washington, and a close On or about December 28, 1997, Wil- S1225. Ms. Currie’s cell phone records friend of the President, to find a lowly liam Jefferson Clinton corruptly en- tend to support the notion that Ms. Defense Department employee and gaged in, encouraged, or supported a Lewinsky’s memory is accurate as to former intern a lucrative and pres- scheme to conceal evidence that had who called whom about the gifts. After tigious job by contacting some of the been subpoenaed in a Federal civil all, the only way that Ms. Currie would most powerful executives in the coun- rights action brought against him. have known about the gifts and made try was just an act of kindness unre- This allegation relates to the ob- the call is if the other party to those lated to her pending testimony in the struction of justice by Ms. Lewinsky discussions, the President, apprised her Jones case. One could conclude that and Ms. Currie in hiding gifts provided of that conversation and asked her to the numerous calls made by Mr. Jordan to Ms. Lewinsky by the President pick up the gifts. to the President and Ms. Currie, the under the bed of Ms. Currie. The only The fall-back defense of the Presi- calls made by the President to Mr. Jor- question that needs to be answered dent is based upon the fact that he had dan, and the calls made by Mr. Carter here in whether the President partici- given her more gifts that same day, the to Mr. Jordan, calls which coincided pated in that effort. idea being that his giving other gifts to with the effort to get Ms. Lewinsky to What does the evidence show? By De- Ms. Lewinsky is inconsistent with a file a false affidavit and secure her a cember 28, 1997, Ms. Lewinsky had been plan to hide those gifts. See Statement job, were simply coincidental. subpoenaed to appear as a witness in of Cheryl Mills 1/20/99 at CONG. REC. One could surmise that Mr. Jordan’s the Jones case. In addition to demand- S827. This, however, is belied by the call to Ronald Perelman after Ms. ing her appearance to testify, the sub- fact that the President provided her Lewinsky felt she had a bad interview, poena also required that Ms. Lewinsky with those gifts before the issue of the which call led to a second successful turn over any gifts given to her by the gifts being subpoenaed came up in their interview, was unrelated to her co- President. See ML 2/1/99 at CONG. REC. conversation that day. See ML 2/1/99 at operation in signing the affidavit only S1221. Under the pretense of meeting CONG. REC. S1224. It is reasonable to a day earlier. One could believe that with Ms. Currie, Ms. Lewinsky went to infer that the President’s under- Mr. Jordan had a great interest in as- the White House on Sunday, December standing of the gift pickup was unre- sisting Ms. Lewinsky to find a job prior 28, 1997, to discuss her subpoena with stricted. He expected Ms. Lewinsky to to her name showing up on the witness the President. Now at the time of that give all the gifts to Ms. Currie for safe- list in the Jones case and only failed to visit, there is no indication that the keeping, even the ones she had received do so because he had no time, but was President was aware that particular that day. The fact that Ms. Lewinsky somehow able to find and devote sub- items had been subpoenaed by the kept some of the gifts does not change stantial time to that effort, coinciden- Jones lawyers from Ms. Lewinsky. the nature of the intended scheme. tally, after her name showed up on the Without the benefit of that informa- The evidence adduced as to Subpart witness list. One could undertake such tion, the President freely gave Ms. (3) shows beyond a reasonable doubt speculation. But that would defy com- Lewinsky a number of additional gifts. that the President corruptly engaged mon sense and reason. See ML 2/1/99 at CONG. REC. S1224. So in, encouraged or supported a scheme The President became personally en- when Ms. Lewinsky informed the Presi- to conceal evidence in the Jones case. gaged in the effort to find Ms. dent of that fact, one can infer that he 3. Subpart (4) of Article II: Lewinsky a job only after her name ap- must have been at the very least, sur- Subpart (4) makes the accusation peared on the Jones witness list. He prised, and probably, somewhat trou- that: then used his powerful friend to find bled. When asked by Ms. Lewinsky at Beginning on or about December 7, Ms. Lewinsky a job because he believed that meeting whether she should hide 1997, and continuing through and in- out of gratitude for his help in obtain- the gifts or give them to someone else cluding January 14, 1998, William Jef- ing a job, she would continue to hide like Ms. Currie for safekeeping, the ferson Clinton intensified and suc- their relationship. He kept in constant President either failed to respond or ceeded in an effort to secure job assist- direct contact with Mr. Jordan up until said he needed to think about it. See ance to a witness in a Federal civil the time that the affidavit was com- ML 2/1/99 at CONG. REC. S1224. rights action brought against him in pleted and she had received and accept- Ms. Lewinsky testified that she left order to corruptly prevent the truthful ed a job offer from Revlon. Indeed, the the White House and later received a testimony of that witness in that pro- President actually spoke to Mr. Jordan phone call from Ms. Currie stating that ceeding at a time when the truthful during a meeting between her and Mr. she understood Ms. Lewinsky had testimony of that witness would have Jordan on December 19, 1997. See ML 8/ something for her, or, the President been harmful to him. 6/98 GJ at 131. Mr. Jordan immediately

VerDate Mar 15 2010 23:02 Nov 14, 2013 Jkt 081600 PO 00000 Frm 00044 Fmt 0624 Sfmt 0634 E:\1999SENATE\S23FE9.REC S23FE9 mmaher on DSKCGSP4G1 with SOCIALSECURITY February 23, 1999 CONGRESSIONAL RECORD — SENATE S1787 called the President to report his fears Federal judge characterizing an affi- tion, is not worthy of a detailed refuta- the moment he thought Ms. Lewinsky davit, in order to prevent questioning tion or response. may have turned government witness deemed relevant by the judge. Such The evidence demonstrates that the when he learned Mr. Carter had been false and misleading statements were President allowed his attorney to make relieved of his representation by her. subsequently acknowledged by his at- false and misleading statements to a See VJ 6/9/98 GJ at 45–46. torney in a communication to that Federal judge characterizing an affi- One need only look at the contrary judge. davit, in order to prevent questioning actions by the President once he be- There is no question that during the deemed relevant by the judge, thus ob- lieved Ms. Lewinsky may have decided deposition of the President by the structing the administration of justice. to cooperate with the Independent Jones attorneys, the President’s attor- 5. Subpart (6) of Article II: Counsel investigation. Once he believed ney, Mr. Bennett, made the following In Subpart (6), the House makes the that she may have been cooperating statement. contention that: with the Office of the Independent . . . Counsel is fully aware that Ms. On or about January 18, 1998, and Counsel, he began to disparage her to Lewinsky has filed, has an affidavit which January 20–21, 1998, William Jefferson aides like Sidney Blumenthal. See SB they are in possession of saying that there is Clinton related a false and misleading 2/3/99 at CONG. REC. S1248. After that absolutely no sex of any kind, in any man- account of events relevant to a Federal date, the President discussed the wis- ner, shape or form, with President Clinton civil rights action brought against him dom of destroying her credibility and ... to a potential witness in that pro- reputation with Dick Morris. See DM 8/ Mr. BENNETT made this statement ceeding, in order to corruptly influence 18/98 GJ at 35. Can anyone doubt that in an effort to cut off any questioning the testimony of that witness. her favorable testimony was tied into of the President about his relationship This allegation relates to the state- the President’s efforts to conceal his with Ms. Lewinsky. That statement ments made to Ms. Currie by the Presi- relationship with her and that the in- was false, as was later admitted by Mr. dent in his unusual Sunday meeting tensified job search was the President’s Bennett, even given the contorted with her after the Jones deposition, endeavor to keep her from telling the reading of the definition of sexual rela- and in his repetition of those state- truth? Put another way, does anyone tions as purportedly understood by the ments the following Tuesday or believe that the President would have President. It is equally clear that the Wednesday after the Starr investiga- used Vernon Jordan to help get her a President did not correct this assertion tion had become public. The President job after she agreed to tell the truth to by his attorney. has not contested the fact that the the Jones attorneys or to the Inde- The President’s primary defense to statements made to Ms. Currie were pendent Counsel? Of course not. It was this allegation is that he wasn’t paying false and misleading. Nor has he pro- not in the President’s interest to re- attention to what was said by his at- vided any answer as to why the state- ward her for the truth—she was only torney. This statement can not be be- ments, if designed to help refresh his rewarded for her failure to tell the lieved. The videotape of that deposi- recollection, were false and had to be truth. Her reward for telling the truth tion clearly shows the eyes of the repeated to her again several days was to be smeared by the President and President shifting from person to per- later. After being confronted with the his spin machine. son as each spoke or argued their per- subpoena issued to Ms. Currie by the The President’s attorneys repeat the spective on the issue. As each spoke, Jones attorneys in the days after his mantra that Ms. Lewinsky believes the President focused on the speaker. deposition, and the revised witness list that she was not promised a job for her It is ludicrous to assert that when the containing her name, the President’s false testimony in the Jones case. But name Monica Lewinsky was brought attorneys have now backed off the no- that really isn’t the issue. The law re- up, the President was not keenly aware tion that no one could have thought quires an endeavor to corruptly influ- of the significance of that line of ques- Ms. Currie would be a witness at the ence her testimony. Regardless of how tioning. time of these statements. Despite this, Ms. Lewinsky perceived or misper- The President’s primary defense to the President still asserts that those ceived the reasons for the high level as- this allegation is that he wasn’t paying false and misleading statements were sistance she received, there was no attention to what was said by his at- designed to refresh his recollection and such misconception on the part of the torney. This statement can not be be- that he personally did not believe that President and Mr. Jordan. The corrupt lieved. The videotape of that deposi- she would become a witness. Once endeavor by the President was con- tion clearly shows the eyes of the again, this defense defies credulity. firmed by two powerful and compelling President shifting from person to per- When these statements were made, words that cannot be parsed or stripped son as each spoke or argued their per- the President was defying a court order of meaning. Those two words summed spective on the issue. As each spoke, not to discuss his testimony. See WJC up the month long effort to protect the the President focused on the speaker. 1/17/98 DT at 212–13. He knew it was es- President: ‘‘Mission Accomplished.’’ It is ludicrous to assert that when the sential to do so regardless of that order There can be no other meaning of those name Monica Lewinsky was brought because he had blatantly inserted Ms. words in the context used by Mr. Jor- up. the President was not keenly aware Currie into the case as a fact witness. dan other than the completion of a cru- of the significance of that line of ques- He mentioned her name during his dep- cial and time sensitive task by him on tioning. osition no less than six times, on one behalf of the President. He knew the work that had been done occasion even stating that the Jones The proof as to subpart (4) is sus- to get her affidavit completed before attorneys would have to ‘‘ask Betty.’’ tained beyond a reasonable doubt that the deposition. He understood the dis- See generally WJC 1/17/98 DT. Clearly, the President intensified and succeeded closure of that relationship could do ir- the Jones attorneys got the message; in an effort to secure job assistance to reparable damage to his case and to his they added Ms. Currie to the witness a witness in a Federal civil rights ac- Presidency. There is nothing to indi- list and subpoenaed her the following tion brought against him in order to cate he was anything less than com- week. So did the President. Having corruptly prevent the truthful testi- pletely aware of what was said and of ‘‘brought’’ her into the case, the Presi- mony of that witness in that pro- his failure to correct that record to his dent realized the absolute need to ceeding at a time when the truthful detriment. I choose to believe my own make sure her testimony would dove- testimony of that witness would have eyes and common sense, not the im- tail with his assertions that he had no been harmful to him. plausible explanation put forward by improper relationship with Ms. 4. Subpart (5) of Article II: the attorneys for the President. Lewinsky. Subpart (5) alleges that: The secondary defense offered by the It is apparent that the Sunday meet- On January 17, 1998, at his deposition President, that Mr. Bennett’s use of ing was designed to corruptly mislead in a Federal civil rights action brought the word ‘‘is’’ precluded the necessity Ms. Currie when she would be called as against him, William Jefferson Clinton to reveal any sexual relationship with a witness in the Jones case. What was corruptly allowed his attorney to make Ms. Lewinsky not occurring, essen- left unanswered by the President, but false and misleading statements to a tially, in that room during the deposi- for which there can be but one answer,

VerDate Mar 15 2010 23:02 Nov 14, 2013 Jkt 081600 PO 00000 Frm 00045 Fmt 0624 Sfmt 0634 E:\1999SENATE\S23FE9.REC S23FE9 mmaher on DSKCGSP4G1 with SOCIALSECURITY S1788 CONGRESSIONAL RECORD — SENATE February 23, 1999 was why the President repeated the by the fact such information was pro- impeached official. As such, the House false statements to Ms. Currie on Tues- vided to his communications aide, to of Representatives was delegated the day or Wednesday. publicly disparage her character. authority to impeach and the Senate The answer lies in the record. By The second defense offered is that the the power to try, convict, and remove. Tuesday, the president had learned President’s attempts to keep his aides The Senate was chosen as the reposi- that Judge Starr was investigating the our of the grand jury show he was not tory of this awesome power because it case. See VJ 6/9/98 GJ at 55–74. He knew trying to corruptly influence that was considered the more mature cham- that the evidence in the Jones case body. However, this argument loses ber of Congress. Serving six year terms would lead Judge Starr to Ms. Currie, force in light of the fact that only spe- instead of the two years for the House, just as surely as he knew it would lead cious arguments were made to prevent the Senate was seen as a bulwark the Jones attorneys to her. So he had their testimony. Knowing they would against the shifting tides of public to reinforce the false statements he fail, they were arguably designed to opinion. had told Ms. Currie the previous Sun- serve his private interest in delaying The age qualification differences—30 day because the stakes had just risen the investigation and creating an im- for the Senate and 25 for the House— substantially. The President needed to pression of Judge Starr as overreaching demonstrates that maturity in the be sure he was covered by Ms. Currie and out of control. Moreover, the Senate would dominate over youthful for both the Jones case and for the President had months to correct his passion. And most important, while the Independent Counsel investigation to misstatements to Mr. Blumenthal prior House was prone to passionate fac- come. to his grand jury testimony, but failed tional rifts, because Representatives Once again the evidence shows that to do so even when he knew he would are elected from small sometimes sin- the President related a false and mis- be called before the grand jury to re- gle-issue districts, Senators are elected leading account of events relevant to a peat the earlier lies told to him by the state-wide where, it was hoped, fac- Federal civil rights action brought President. See SB 2/3/99 at CONG. REC. tions would counteract factions. Thus, against him to a potential witness in S1249. the Senate was designed to be more at- that proceeding, in order to corruptly In effect, the President killed two tuned to the public interest than to the influence the testimony of that wit- birds with one stone. His chimeric fight special interest. ness. to prevent his aides from testifying Consequently, when the Senate sits 6. Subpart (7) of Article II: was used effectively in a public rela- as a court of impeachment, it does not The House asserts in Subpart (7) tions campaign to impugn the Inde- have to rubber-stamp the House’s view that: pendent Counsel investigation. And as to what is an impeachable offense. On or about January 21, 23 and 26, when he lost the ‘‘battle’’ that he knew As recognized by the Supreme Court in 1998, William Jefferson Clinton made would inevitably fail, he was aware the the Nixon case, the Senate was vested false and misleading statements to po- false and slanderous testimony pre- by the Framers with the sole power to tential witnesses in a Federal grand ordained to be given by his aides would try impeachments. The Senate is thus jury proceeding in order to corruptly be of assistance to him in misleading vested with independent judgment as influence the testimony of those wit- the grand jury. to what process to employ in the trial. nesses. The false and misleading state- There is substantial proof as to Sub- It also follows that the Senate was ments made by William Jefferson Clin- part (7) that the President made false granted the discretion to determine ton were repeated by the witnesses to and misleading statements to potential whether the factual allegations made the grand jury, causing the grand jury witnesses in a Federal grand jury pro- by the House are true and whether such to receive false and misleading infor- ceeding in order to corruptly influence findings by the Senate rise to the level mation. the testimony of those witnesses. of high crimes and misdemeanors. Fur- This subpart relates to the Presi- For the reasons I have just outlined, thermore, the Senate, as the Upper dent’s discussions with Erskine Bowles, the evidence proves beyond a reason- Chamber insulated against popular pas- John Podesta and Sidney Blumenthal able doubt, that the President is guilty sions and the factions of special inter- concerning the nature of his relation- of Article II. ests, could make a subjective deter- ship with Ms. Lewinsky. Now the V. WHY REMOVAL? mination of the public good in defining President does not deny the testimony This impeachment trial is of momen- high crimes and misdemeanors and in of Mr. Podesta where he related that tous constitutional consequence. A re- removing an official. the President said that he had no sex- moval of the President—a coequal In the words of my esteemed col- ual relationship with Ms. Lewinsky, in- branch of government—must not be league, ROBERT BYRD, the answer of cluding oral sex. Nor does he deny the taken lightly. But that—now that we whether a person is fit to remain in of- testimony of Sidney Blumenthal that have decided to end the trial by a final fice requires both detached objectivity he characterized Ms. Lewinsky as a vote—does not negate the duty that and subjective judgment rising above stalker who had threatened him, and each Senator has, as individual con- temporary popular passions of whether whose seduction he had declined. The science dictates, to vote to acquit or continuation in office ‘‘brings the po- President also admits that he knew it convict based upon the evidence. Pos- litical (or judicial) system into disre- was likely they would be grand jury terity demands that each of us justify pute and undermines the people’s trust witnesses when he made those state- the votes Senators render in the im- and confidence in government.’’ ments to them. peachment trial of the President. Supportive of this discretionary au- Their client having conceded the Future generations of Americans will thority to remove officials—an author- basic facts of this allegation, the Presi- look to what we do as precedents for ity that must be divorced from the dent’s attorneys first try to make the impeachments. This is particularly fleeting and flaming emotions of the argument that the President could not true since our Nation has faced only times—is the constitutional super- have been intending to influence the one impeachment trial of a President— majority safeguard of a 2⁄3 vote of the grand jury since he did not tell his that of Andrew Johnson in 1868. But it Senate needed to remove officials. This aides anything different than he had is also true for judges and other federal requirement is a further guarantee told any other person publicly. How- officials as well. Let me thus explain in against the tide of popular passion and ever, the evidence is unrefuted that his some detail why I shall vote for convic- tilts the impeachment process towards denials to his aides were fundamentally tion. acquittal. different from his public pronuncia- The Constitution vests great discre- Accordingly, a Senator in impeach- tions in that they departed from even tion in the Senate in determining ment trials must consider two factors: his tortured definition of sexual rela- whether to remove an impeached offi- (1) whether the allegations are true; tions. Moreover, he created a false im- cial. The Framers intentionally fol- and (2) whether the facts proven rise to pression of Ms. Lewinsky in order to lowed the English model where the the level of high crimes and mis- besmirch her character and credibility House of Commons possessed the power demeanors—impeachable offenses. In in a blatant attempt to both misguide to impeach or indict officials and the determining the second prong—wheth- the grand jurors, and it can be inferred House of Lords the authority to try the er the facts proven rise to the level of

VerDate Mar 15 2010 23:02 Nov 14, 2013 Jkt 081600 PO 00000 Frm 00046 Fmt 0624 Sfmt 0634 E:\1999SENATE\S23FE9.REC S23FE9 mmaher on DSKCGSP4G1 with SOCIALSECURITY February 23, 1999 CONGRESSIONAL RECORD — SENATE S1789 high crimes and misdemeanors—the Not to remove here is to diminish the I have diligently strived to extend subjective intent of Senators of what is rule of law. As Manager ROGAN warned my deepest respect to the President— in the public interest is a factor to con- in his closing argument, ‘‘[u]p until indeed, to the Presidency—throughout sider. I have already discussed the facts now, the idea that no person is above this process. I wanted to be able to sup- and the standard for impeachable of- the law has been unquestioned. And yet port President Clinton. I believe that I fenses. Now I will discuss whether the this standard is not our inheritance have been more than fair. I have tried public interest—in other words what is automatically. Each generation of not to rush to judgment. best for the country—requires that the Americans ultimately has to make the All of my life I’ve been taught to for- acts committed by President Clinton choice for themselves. Once again, it is give and forget. I’ve always tried to rise to the level of high crimes and time for choosing. How will we re- live up to that belief. As a leader in my misdemeanors requiring his removal. spond?’’ We should respond by safe- church, I have dealt with a great num- I believe that it has. Some of my col- guarding the rule of law by voting to ber of human frailties, people with a leagues, particularly those on the remove the President. wide variety of problems, and I’ve al- other side of the aisle, contend that it Whether President Clinton has done ways believed that good people can re- is not in the public interest to remove a ‘‘good job’’ is a matter of partisan de- pent of their sins and be forgiven. President Clinton, because the econ- bate. In fact, adopting a ‘‘god job’’ ex- Indeed, to the dismay of some, I had omy is doing well, or because of his for- ception—a term that is so flexible and expressed a hope and a desire early on eign policy successes, or because he is vague as to be meaningless as a con- in this constitutional drama that the extremely popular in the polls. But stitutional standard—merely exas- President would acknowledge his un- these factors—no matter how impor- perates the partisan tensions ever truthful statements. He chose to do tant—do not justify ignoring the con- present in impeachment trials. otherwise and perpetuated his untruth- stitutional mandate of removal upon The same analysis applies for the fulness. Although some believe this is proving that impeachable acts were ‘‘good economy means no removal’’ solely a private matter, I feel this is committed. theory. It is intuitive that economic really about the President’s fidelity to Polls should not be a factor in this growth can never justify crime or acts the oath of office and the rule of law. trial. Our system of government is not rising to the level of high crimes and I have always been prepared to vote a pollocracy. It is a representative re- misdemeanors warranting removal. If my conscience. Indeed, my concerns re- public where the people, as a constitu- President Clinton is removed, our econ- garding the bad precedent a likely ac- tional matter, speak only through elec- omy will not suffer. The world will still quittal would set have been somewhat tions of their representatives. America spin on its axis. Our Constitution pro- calmed by something the great con- is thus a constitutional republic, and vides for orderly succession and stable stitutional scholar, Joseph Story, once will remain so ‘‘if’’—in the words of government. Removal will not over- wrote about acquittal in impeachment turn an election, as some have argued. Benjamin Franklin—‘‘you can keep it.’’ cases. Mr. Story noted that in cases in The constitutional impeachment pro- The only way to ‘‘keep it’’ is to respect which two-thirds of the Senate is not cedures were designed simply to re- the processes established by the Con- satisfied that a conviction is war- move unqualified or corrupt officials. stitution itself. ranted, ‘‘it would be far more con- Simply put, the Constitution man- Vice President GORE, pursuant to the sonant to the notions of justice in a re- dates the conviction and removal of Constitution, will become President public, that a guilty person should es- civil officers, including the President, and life will go on. cape than that an innocent person upon proving ‘‘treason, bribery, and Let me emphasize that by requiring should become the victim of injustice other high crimes and misdemeanors.’’ removal upon proving the commission from popular odium * * * ’’ I believe that the House Managers have of impeachable offenses, the Framers Nonetheless, I am reminded of a proved beyond a reasonable doubt that believed that it is in the public good to quote by President Theodore Roo- President Clinton has committed acts remove the official. sevelt, a statement that applies to the of perjury and obstruction of justice. I President Clinton is guilty of high matter before the Senate: believe that Senators should come to crimes and misdemeanors and his poll the same subjective determination, as I numbers, no matter how lofty, cannot Honesty is not so much a credit as an abso- insulate him from the dictates of the lute prerequisite to efficient service to the have, that these acts of perjury and ob- public. Unless a man is honest, we have no struction of justice so erodes our civil Constitution. The President believes right to keep him in public life; it matters and criminal justice system as to con- that a rule of polls should govern the not how brilliant his capacity * * *. clude that the public good is served by Senate’s decision. But as Manager ‘Liar’ is just as ugly a word as ‘thief,’ be- removal. ROGAN correctly observed, ‘‘the per- cause it implies the presence of just as ugly A President of the United States is sonal popularity of any President pales a sin in one case as in the other. If a man lies not simply a political leader. A Presi- when weighed against the fundamental under oath or procures the lie of another dent is a head of state and a role model concept that forever distinguishes us under oath, if he perjures himself or suborns from every nation on the planet. No perjury, he is guilty under the statute law. for Americans, particularly our chil- Under the higher law, under the great law of dren. What kind of message will we person is above the law. There is no es- morality and righteousness, he is precisely send to our posterity if President Clin- caping the Senate’s duty enshrined in as guilty if, instead of lying in a court, he ton’s conduct is not considered worthy the impeachment oath that we do ‘‘im- lies in a newspaper or on the stump; and in of removal? What amount of cynicism partial justice’’ and remove the Presi- all probability the evil effects of his conduct and disrespect for our governmental in- dent if we believe that his actions are infinitely more widespread and more per- stitutions will we engender if we im- amounted to high crimes and mis- nicious. pose one set of rules for the common demeanors. President Theodore Roosevelt’s man—imprisonment for acts of perjury VI. CONCLUSION words cannot be ignored—nor can the and obstruction of justice—and another I do not take pleasure or gain any Constitution. After weighing all of the for the President of the United sense of gratification for the decision I evidence, listening to witnesses, and States—who receives a pass from re- must make today. For literally asking questions, I have concluded that moval because he is powerful or has months, night and day, I have an- President Clinton’s actions warrant re- done a ‘‘good job’’ in some eyes? guished over the serious accusations moval from office. Our children are extremely vulner- against President Clinton and what Committing crimes of moral turpi- able to the growing cynicism sur- they mean for our country, our society, tude such as perjury and obstruction of rounding this trial. We have all heard and our children. justice go to the heart of qualification stories that some children justify their I know none of us enjoys sitting in for public office. These offenses were deceits by claiming that the President judgment of the President, our fellow committed by the chief executive of of the United States lied as well. Many human-being, but that is our job and our country, the individual who swore wise philosophers have exclaimed that we cannot ignore our responsibility. I to faithfully execute the laws of the a republic can survive only if its citi- believe most of us will do a sincere job United States. zens are moral. I am afraid that our of trying to fulfill our oath to do im- This great nation can tolerate a children may not learn that lesson. partial justice. President who makes mistakes. But it

VerDate Mar 15 2010 23:02 Nov 14, 2013 Jkt 081600 PO 00000 Frm 00047 Fmt 0624 Sfmt 0634 E:\1999SENATE\S23FE9.REC S23FE9 mmaher on DSKCGSP4G1 with SOCIALSECURITY S1790 CONGRESSIONAL RECORD — SENATE February 23, 1999 cannot tolerate one who makes a mis- critical role in setting the stage for the Bill of Rights. Roger Sherman was also the take and then breaks the law to cover historic bipartisan agreement reached author of the Connecticut Compromise it up. Any other citizen would be pros- at the outset of the trial, and for the which created this Senate in which we now serve. ecuted for these crimes. spirit of civility that prevailed So by institutional lineage, I feel a special But, President Clinton did more than throughout this ordeal. I commend connection with the Senate. But, on a per- just break the law. He broke his oath Senator DODD’s statement to all citi- sonal level, I am also very much a product of of office and broke faith with the zens who in the future may wish to the Senate. Forty years ago this week, I was American people. Americans should be learn something of how the Senate was a very proud 14 year old watching from the able to rely on him to honor those val- inspired to conduct the impeachment family gallery as my father took the same ues that have built and sustained our trial of President Clinton in a noble oath I took on Wednesday. I also remember country, the values we try to teach our and dignified manner. that day meeting another new Senator, Rob- ert C. Byrd of West Virginia. children—honesty, integrity, being I am beginning my 25th year in the I only mention these facts because I am forthright. Senate. After Senator DODD spoke I overwhelmed by a profound sense of history For 13 miserable months, we have told him his speech was one of the fin- as we embark on this perilous journey over struggled with the question of what to est I had heard in those years. the coming weeks. I want my institutional do about President Clinton’s actions. No Senator ever spoke more di- forebearer, Roger Sherman, and my father to The struggle has divided the nation. rectly—or more persuasively—to other judge that on my watch, as a temporary cus- To those of us who have ourselves Senators about the duty we all have to todian of this Senate seat, I did my best. taken an oath to uphold the Constitu- the Constitution and the Senate. I am I want to express a special thanks to Trent tion—which represents the rule of law Lott for having the wisdom of choosing this proud to serve with him. most historical room for our joint caucus. and not of men—it should not matter I ask unanimous consent that the Trent could have chosen any number of how brilliant or popular we feel the text of Senator DODD’s statement be other venues, larger more accommodating President is. The Constitution is why printed in the RECORD. rooms around the Capitol for this meeting. we goven based on the principle of REMARKS BY SENATOR CHRISTOPHER J. DODD, But either by divine inspiration or simple equality and not emotion. The Con- OLD SENATE CHAMBER, JANUARY 8, 1999 choice he decided to bring us—Democrats and Republicans—together here. stitution is what guides us as a nation Mr. DODD. Let me begin by thanking our It is one hundred and forty years ago this of laws and not personalities. The Con- two leaders. While none of us can say with week—January 4, 1859—that our Senate pred- any certainty how this matter will be con- stitution is what enables us to live in ecessors moved from this room to the cham- cluded, if we, like every other institution freedom. ber we now occupy. I will vote for conviction on both ar- that has brushed up against this lurid tale, While in use, this room was the stage of ticles of impeachment—not because I end up in a raucous partisan brawl, it will some of the Senate’s most worthy and mem- want to—but because I must. Uphold- not be because of the example set by Tom orable moments. Daschle and Trent Lott. The graces have The Missouri Compromise was brokered ing our Constitution—a sacred docu- once again blessed this extraordinary body ment that Americans have fought and here. So was the Compromise of 1850. And by delivering two noble and decent men to the famous Webster-Hayne debate took place died for—is more important than any lead us. here in 1830. The spirits of Henry Clay, John one person, including the President of I want to express a special thanks to you, Calhoun and Daniel Webster—great states- the United States. Tom, for asking me to share my thoughts men, great compromisers, giants of our Sen- When all is said and done, I must ful- this morning on the issue before us. ate—are here with us today. And maybe one fill my oath and do my duty. I will vote On a light note, it was in this very room day, those who come after us will add this ‘‘Guilty’’ on both Article One and Arti- four years ago that I lost the Democratic joint meeting to the list of those other great leader’s post to Tom Daschle. Of the forty- cle Two. moments in the history of the United States seven members of the Democratic Caucus, Senate. f forty-six were here that morning to vote. But this chamber also witnessed one of the SENATOR DODD’S HISTORIC When the ballots were counted, Tom and I Senate’s most regrettable moments—the had each received 23 votes- a dead heat. The caning in 1856 of Senator Charles Sumner by SPEECH IN THE OLD SENATE absent Democratic colleague who voted for CHAMBER Representative Preston Brooks. Tom with a proxy ballot was Ben Nighthorse Congressman Brooks walked right through Mr. LEAHY. Mr. President, I would Campbell. Several weeks later I received a this center door and proceeded to beat Sen- like to submit a statement delivered very late night call from Ben in which he ator Sumner. shared with me his decision to change polit- by our colleague Senator DODD on Jan- That tragic incident was precipitated by a ical parties. Ben and I have been good friends strong anti-slavery speech from Senator uary 8th at the commencement of the for some time, and I told him he ought to do impeachment trial of President Clin- Sumner in which Representative Brooks felt what he felt was right. The next morning I Sumner had accused his colleague and ton. decided to have some fun with our Demo- Brook’s cousin, Senator Andrew Butler of This statement, like the others deliv- cratic leader, Tom Daschle, by sending him a South Carolina, of having an illicit sexual ered that day, is remarkable in several note asking that in light of Ben’s decision to relationship with a young woman who was a respects. become a Republican, did Tom think a re- slave. First, it captures the rich history count of the leader’s race might be in order? Far from being a momentary bitter, per- that has transpired over the years in Considering the wonderful job our leader sonal dispute, the Sumner caning, according the Old Senate Chamber—a history Tom has done, particularly over these last to many historians, effectively ended the several weeks, I’m glad he did not even con- marked often by greatness, but occa- thin shred of comity and compromise that sider the offer. existed in the Senate. Forty-eight months sionally by shame. Allow me further to note a point of per- later our great Civil War began. Second, it wonderfully expresses Sen- sonal privilege. I am deeply proud to share We are now gathered in this revered room ator Dodd’s own personal sense of the the representation of my state in the Senate in the face of a great Constitutional ques- history of the Senate. His reflections with Joe Lieberman. Over these past couple tion. Which of the spirits that inhabit this on past Senators—from Roger Sher- of weeks Joe and Slade Gorton have once chamber will prevail as we begin this proc- man, the Founding Father whose seat again demonstrated the value of their pres- ess? Can we find the common ground of Clay, ence in the Senate. While many of us, from Senator DODD occupies, to his own fa- Calhoun and Webster? Or will we assault time to time, have claimed to speak for the ther, former Senator Thomas Dodd—re- each other by resorting to a rhetorical Senate—few rarely do. On that day in Sep- caning? mind us that the Senate is an institu- tember, Joe, your remarks delivered on the I would urge our two leaders to try once tion made up of individuals, and that Senate floor about the President’s behavior more before the scheduled vote of 1pm to the totality of their actions shapes the were, I believe, the sentiments of the entire find a solution to the issue of witness testi- destiny not just of the Senate itself but Senate. We thank you. mony. indeed of the entire country. Joe and I represent the Constitution State. It has been argued that there is little or no Third, and most importantly, Sen- Joe sits in the seat once held by Oliver Ells- difference between the two proposals, and, worth, the second Chief Justice of the Su- while they may seem slight, I believe our ator DODD’s statement stands as a pow- preme Court. I sit in the seat of Roger Sher- failure to make the right choice puts the erful plea for cooperation and biparti- man, the only founding father to sign all conduct of this process and the public con- sanship in the discharge of the Senate’s four of our cornerstone documents : The Dec- fidence in the Senate at grave risk. profound responsibility in this trial. laration of Independence, The Articles of The President’s conduct was deplorable; Senator DODD’s statement played a Confederation, The Constitution and The the conduct of the Office of Independent

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