Copyright 1998 Federal Information Systems Corporation
Federal News Service
DECEMBER 8, 1998, TUESDAY
SECTION: CAPITOL HILL HEARING WITH WHITE HOUSE PERSONNEL
LENGTH: 41088 words
HEADLINE: HEARING OF THE HOUSE JUDICIARY COMMITTEE TO CONSIDER ARTICLES OF IMPEACHMENT AGAINST PRESIDENT CLINTON
PANEL ONE:
"HISTORICAL PRECEDENTS AND CONSTITUTIONAL STANDARDS"
WITH INTRODUCTORY STATEMENT BY GREGORY CRAIG
ASSISTANT TO THE PRESIDENT AND SPECIAL COUNSEL
FOLLOWED BY:
NICHOLAS KATZENBACH, FORMER U.S. ATTORNEY GENERAL
PROFESSOR BRUCE ACKERMAN, YALE UNIVERSITY
PROFESSOR SEAN WILENTZ, PRINCETON UNIVERSITY
PROFESSOR EMERITUS SAMUEL BEER, HARVARD UNIVERSITY
CHAIRED BY REPRESENTATIVE HENRY HYDE (R-IL)
2141 RAYBURN HOUSE OFFICE BUI WASHINGTON, D.C.
BODY:
REP. HYDE: The committee will come to order. (Sounds gavel.) A quorum being present, and pursuant to notice, the committee will come to order for the purpose of conducting an impeachment inquiry pursuant to House Resolution 581. Ranking Member John Conyers and I will make brief opening statements. Without objection, all members' and witnesses' written statements will be included in the record.
Now, members should know what while in the past I've been liberal with the gavel, we have many witnesses; therefore, I intend to adhere strictly to the five-minute rule. That means questions and answers will end after five minutes. Members who make four-minute speeches and ask five questions in the final minute will not get their questions answered.
I now recognize myself for purposes of an opening statement.
I've made a commitment to members of this committee, to members of the House, to the president and to the people that I will do all I can to ensure that this impeachment inquiry will be concluded by the end of the year. I plan on honoring that commitment, and today's hearings move us in that direction.
Yesterday afternoon, the White House provided us with a list of 14 witnesses that it requested this committee to hear. I am pleased to accommodate the White House's request. We will hear the testimony of all 14 witnesses, as well as Special Council Greg Craig, and White House Counsel Charles Ruff. Therefore, I would like to set forth the schedule for the remaining Judiciary Committee proceedings.
At the request of the White House counsel, we have begun today at 10:00 a.m., and we will hear from three panels of witnesses today, one panel tomorrow morning, and the testimony of White House Counsel Charles Ruff tomorrow afternoon.
The first panel will be Special Counsel Greg Craig and five witnesses who wish to speak about constitutional standards for impeachment. Mr. Craig will be recognized for 15 minutes. All other panel witnesses will each have 10 minutes to make a statement. After the testimony of the witnesses, members will be allowed to ask questions for five minutes, and that will not be a liberal gavel, but a strict gavel. I ask that the members pay attention to their time and be aware that their questions should be asked and answered within their five minutes. The White House has proposed many witnesses, and we want to make sure that everyone has an opportunity to be heard. In the interest of time, there will not be questioning by committee counsels for these four panels.
After the hearing of Panel One, we will move immediately to Panel Two and then to Panel Three. We will observe the same procedures as Panel One: 10 minutes witness presentations, followed by questioning by members under the five-minute rule.
Tomorrow we will hear the fourth panel of witnesses.
I hope to start at 8:00 a.m. tomorrow morning to ensure ample time for the White House presentation.
Tomorrow afternoon the committee will receive the testimony of White House Counsel Charles Ruff. After his presentation, members will question Mr. Ruff under the five-minute rule. He will also be available for questioning by committee counsel.
Thursday morning we will have a presentation by minority chief investigative counsel Abby Lowell at 9:00 a.m. and a presentation by chief investigative counsel David Schippers at 1:00 p.m. Beginning at 4:00 p.m., we will begin consideration of a resolution containing articles of impeachment, four-hour debate and deliberation. We will hear opening statements from all members Thursday evening.
Friday we will begin consideration and debate of articles of impeachment.
I now recognize the distinguished gentleman from Michigan and ranking member of the committee, John Conyers, for his opening remarks. Immediately following the gentleman's remarks, we will hear from special counsel Greg Craig and the other witnesses of panel one.
Mr. Conyers.
REP. JOHN CONYERS JR. (D-MI): Thank you, Mr. Chairman, for providing the White House the opportunity to present their witnesses.
The independent counsel had four years to investigate the president. This committee has had four months. The White House is now getting two days.
There is no question that the president's conduct was wrong, that he misled the country and the nation. But I believe that the legal case against the president is not strong. Republicans have said that Democrats do not contest the charges. Well, we do.
There is no question that the president misled the country in his January 21 press conference. But that does amount to perjury. The president already admitted before the grand jury, to an improper sexual relationship. Now the Republicans insist that he must admit to "sexual relations" under the contorted definition provided by the Paula Jones attorneys. That's really at the heart of the perjury charge. That's the strength of its foundation. The effort to find Monica Lewinsky a job started well before there was any Paula Jones witness list.
The president never offered Lewinsky a job. That charge is frivolous. Betty Currie was not on the witness list, and thus, the president's conversations with her could not possibly have been the basis for obstruction.
It is perfectly legal for the president or anyone else to tell a civil witness, in this case Ms. Lewinsky, that an affidavit may satisfy the requirements of the court. That is not obstruction.
It was Monica Lewinsky's idea to return the gifts. The president was never concerned about the gifts, and kept giving them. And Monica Lewinsky, in the most significant, clarion statement before the grand jury, said that no one asked her to lie and no one promised her a job.
The legal case against the president is, in my judgment, a house of cards. The Judiciary Committee has heard from no factual witnesses to validate any of the charges. Instead, it is relying on un-cross- examined, often contradictory, grand jury hearsay to support an already weak case. That wouldn't satisfy any court of law, and it cannot possibly serve as the evidentiary foundation for an impeachment. And even if these shaky allegations were proven true, they would not rise to the standard of impeachment, which requires the abuse of official power.
So we're at a critical crossroads today. We can either impeach the president along a largely party-line vote and send this resolution to the Senate, where there will be a six-month or more full-blown, intensified investigation, or we can find a meaningful way of censuring the president. The public, you may know, is overwhelmingly against impeachment and is for censure. But our new Republican leadership, led by Speaker-elect Livingston and Whip Tom DeLay, are thumbing their noses at the American people and telling them that the solution the American people want most cannot even come to the floor for a vote.
Well, if the American people ever wanted strong evidence that the extremists are still in control of this process, then that is it.
It is time to give the American people a holiday gift, to end this sordid tale. But the gift that the extremists on the other side offer is six more months of this investigation, by changing the venue to the Senate. This, Mr. Chairman and colleagues, is not the way to bring this important issue to a speedy conclusion.
Thank you.
REP. HYDE: Thank you, Mr. Conyers.
Mr. Craig, Attorney General Katzenbach
REP. ROBERT SCOTT (D-VA): Mr. Chairman? Mr. Chairman?
REP. HYDE: Professor Ackerman, Professor Wilentz, and Professor Beer, would you mind standing to receive the oath?
REP. SCOTT: Mr. Chairman?
REP. HYDE: Thank you. Would you raise your right hand? Do you solemnly swear or affirm that the testimony you're about to give to this committee is the truth, the whole truth, nothing but the truth, so help you God?
WITNESSES: (In chorus.) I do.
REP. HYDE: Thank you.
REP. SCOTT: Mr. Chairman?
REP. HYDE: Mr. Scott?
REP. SCOTT: Mr. Chairman, I understood parliamentary inquiry: I understood that we would have a committee meeting prior to the receipt of testimony. Are motions at this point out of order?
REP. HYDE: I think we're going to do that tomorrow morning, Mr. Scott.
REP. SCOTT: Well, I would like the record to reflect that I had a motion that would be timely now, that might not be timely tomorrow morning. REP. HYDE: What is your motion?
REP. SCOTT: To ask for a specific scope of inquiry prior to the White House rebuttal of the undefined allegations. If we're asking them to rebut, we ought to have them notified of what the allegations and what the scope is. We only have five minutes to ask questions. We've had various different lists of what the allegations are. We'd like to use our five minutes effectively and not ask questions about allegations that we're not actually pursuing.
REP. HYDE: Well, this is a hearing, and so you are not it's not appropriate that you be recognized for the purposes of that motion. We'll proceed with the hearing.
REP. SCOTT: Thank you, Mr. Chairman.
REP. HYDE: Let the record show that the witnesses answered the question posed by the oath in the affirmative. And I will give a very brief introduction. Mr. Craig may want to make a more fulsome introduction, and I don't want to foreclose you from doing that.
Mr. Gregory Craig is assistant to the president and special counsel. The Honorable Nicholas Katzenbach is a former attorney general of the United States under President Johnson, and undersecretary of State. He is also retired as senior vice president and chief legal officer of IBM. Professor Bruce Ackerman is the Sterling Professor of Law and Political Science at Yale University, and authority of Volume II, "We the People", which includes an historical and legal analysis of the impeachment of Andrew Johnson. Professor Sean Wilentz is the Dayton Stockton Professor of History and Director of Program and American Studies at Princeton University. Professor Wilentz is an expert and teacher of American history from the American Revolution through Reconstruction. He is the author of six books and numerous articles. Professor Samuel H. Beer is the Edin (sp) Professor of the Science of Government, emeritus, at Harvard University. He has written and lectured and taught about the American system of government for over 65 years.
Mr. Craig, you are recognized for a 15-minute statement.
MR. CRAIG: Mr. Chairman, Congressman Conyers, members of the committee I will now push the button of my mike. (Laughter.) Mr. Chairman
REP. HYDE: That would help. Could you pull it a little closer to you?
MR. CRAIG: Yes, sir.
Mr. Chairman, Congressman Conyers, members of the committee, good morning. My name is Greg Craig, and I'm special counsel to the president. Let me first say that it is my honor, as well as an obligation, to appear before this committee in defense of the president. The purpose of my appearance is to describe briefly, and in general terms, how we plan to proceed with the presentation of the president's defense over the next two days.
The time has finally come for the president to make his case and to give his side of the story. Over the next two days, we will present to this committee, to the Congress, and to the country as a whole, a powerful case based on the facts already in the record, and on the law a powerful case against the impeachment of this president.
During our presentation today and tomorrow we will show, from our history and our heritage, from any fair reading of the Constitution, and from any fair sounding of our countrymen and women that nothing in this case justifies this Congress overturning a national election and removing our president from office.
As we begin this undertaking, I make only one plea to you, and I hope it is not a futile one, coming this late in the process. Open your mind. Open your heart, and focus on the record. As you sit there listening to me at this moment, you may already be determined to vote to approve some articles of impeachment against this president. That is your right and your duty, if you believe the facts and the law justify such a vote.
But there is a lot of conventional wisdom about this case that is just plain wrong. And if you are, in fact, disposed to vote for impeachment, in the name of a justice that is fair and blind and impartial, please do so only on the basis of the real record and on the real testimony, not on the basis of what someone else tells you is in the record.
By the close of tomorrow, all the world will see one simple and undeniable fact: whatever there is in the record that shows that what the president did was wrong and blameworthy, there is nothing in the record in either the law or the facts, that would justify his impeachment and removal from office.
In truth, I would not be fairly representing President Clinton if I did not convey to you his profound and powerful regret for what he has done. He has insisted and personally instructed his lawyers that no technicalities or legalities should be allowed to obscure the simple moral truth that his behavior in this matter was wrong. He misled his wife and family, his friends and colleagues and our nation about the nature of his relationship with Ms. Lewinsky. The president wants everyone to know the committee, the Congress, and the country that he is genuinely sorry for the pain and the damage that he has caused and for the wrongs that he has committed.
But as an attorney, I must caution this committee to draw a sharp distinction between immoral conduct and illegal acts.
Just as no fancy language can obscure the simple fact that what the president did was morally wrong, no amount of rhetoric can change the legal reality that there are no grounds for impeachment. As surely as we all know that what he did is sinful, we also know it is not impeachable.
Let me assure the members of this committee, the members of the House of Representatives and the American public of one thing; in the course of our presentation today and tomorrow, we will address the factual and evidentiary issues directly. We will draw this committee's attention to evidence that tends to clear the president with respect to each of the various charges; evidence that was left out of the independent counsel's referral, evidence that has not been widely reported in the press but evidence that reveals the weakness of the charges being brought against the president. And we are confident that at the end of this presentation, you will agree that impeachment is neither right nor wise nor warranted.
When it comes to constitutional standards for impeachment as conceived by the Founding Fathers, we will show that the Constitution requires proof of official misconduct and abuse of high public office for the drastic remedy of impeachment to be appropriate. When it comes to standards of proof that should apply to the evidence that is brought before this committee, we will argue that this president should be considered innocent until proven guilty and that he should be informed with particularity as to the facts and specifics of the misconduct that he is accused of, especially when it comes to the allegations of perjury. On those allegations, we will show that neither the law of perjury nor the facts of this case could sustain a criminal prosecution, much less impeachment.
Mr. Chairman, I am willing to concede that in the Jones deposition, the president's testimony was evasive, incomplete, misleading, even maddening, but it was not perjury.
On the allegation of perjury before the grand jury, which we all agree is the more serious offense, please look at the real record, not the referral's report of that record. Millions of Americans watched that testimony. They concluded, as I believe that you too will find, that in fact the president admitted to an improper, inappropriate and intimate relationship with Ms. Lewinsky.
He did not deny it; he admitted it. Fair-minded Americans heard what the president said and they knew what the president meant.
When it comes to allegations that the president, with Ms. Lewinsky, Ms. Currie and Mr. Jordan, obstructed justice, we will show that the evidence presented in the referral is misleading, incomplete and frequently inaccurate. We will show that the president did not obstruct justice with respect to gifts, the job search or the affidavit, and we will show that the president did not seek wrongfully to influence Ms. Currie's testimony.
Again, we will ask you to look at the real record, not the referral's version of the record. And the real record shows that the sworn testimony of Ms. Lewinsky, Ms. Currie and Mr. Jordan, far from incriminating the president, actually exonerates him. And yet, their testimony, although crystal clear before the grand jury, is edited, modified, qualified or ignored in the referral.
When it comes to allegations that the president abused his office, we will show that the president's assertions of executive privilege were perfectly proper and that the claims of attorney-client privilege were justified under the circumstances.
And when it comes to allegations that the president used the power of his office to mislead his aides, not, as one might think, for the purpose of protecting himself and his family, but, as alleged, to mislead the grand jury, we will show that false denials about an improper private relationship, whether those denials are made in private or before the entire world, simply do not constitute an abuse of office that justifies impeachment.
Finally, Mr. Chairman, before introducing the distinguished members of this panel, let me just point out that in the course of this impeachment inquiry, the members of this committee have learned nothing new, either about the Lewinsky matter or about any other matter warranting consideration in these proceedings except that the president has finally, if belatedly, been cleared on the charges concerning Whitewater, the file matter, and the Travel Office. There has been no new evidence and there are no new charges.
So I say to the members of the committee, if back in September when you received this referral, if back in October when you voted to conduct this inquiry, if back then you didn't think that the referral justified impeaching President Clinton, there is no reason for you to think so today.
There can be no more solemn or awesome moment in the history of this republic than when the members of the House of Representatives contemplate returning an article of impeachment against the president of the United States. There can be no more soul-searching vote in the career of a member of the House of Representatives than when he or she considers impeachment of the president of the United States. These are weighty issues and great moments of conscience and consequence. Please do not let the passion of partisan politics on either side blind your eyes to the truth of the law, the evidence, and, above all, the national interest.
This first panel of witnesses is composed of a distinguished public servant and a group of eminent scholars who will testify about the history of impeachment and constitutional standards that should govern impeachment.
The second panel of witnesses will bring the wisdom of hard-won experience, experience, Mr. Chairman, earned in this very room, serving on this very committee under the leadership of that distinguished chairman, Peter Rodino, whose portrait hangs on the wall before me. They will bring that wisdom to bear on the vital issue of what was abuse of power by a president in 1974, compared with the allegations and the evidence of abuse of power by this president in 1998.
The third panel of witnesses will discuss how we should examine and evaluate the evidence that is before us with respect to the abuse of power and the fact-finding process.
And then tomorrow we'll hear the testimony of a fourth group of witnesses, experienced lawyers in the criminal justice system, who will shed light on the prosecutorial standards for bringing criminal cases alleging perjury and obstruction of justice.
To close, tomorrow afternoon Charles Ruff, counsel to the president, will present the president's final defense to the committee and respond to questions.
On behalf of the president, I thank the committee for its time and its attention, and I now turn the microphone over to Mr. Katzenbach, the former attorney general of the United States.
REP. JAMES ROGAN (R-CA): Mr. Chairman, parliamentary inquiry, please. REP. HYDE: Please state your inquiry.
REP. ROGAN: Mr. Chairman, will the written statements of the respective witnesses be provided to the members of the committee?
REP. HYDE: That's a good question. I'm not sure.
Mr. Craig, do you have a written statement?
MR. CRAIG: This is my only written statement. I'll be happy to copy it right now, sir, and distribute it among the members right away.
REP. HYDE: Will one of our staff get Mr. Craig's we can do that, if you don't mind.
MR. CRAIG: That's fine.
REP. HYDE: (To staff.) Jim, would you a copy?
MR. CRAIG: Pay no attention to my edits.
(Off-mike cross talk.)
REP. HYDE: Will the other witnesses have written statements that we can avail ourselves of? It's helpful for the record and for our edification.
Mr. Katzenbach?
MR. KATZENBACH: I do, Mr. Chairman. But I would appreciate it if I could have the written statement until I've completed reading it. (Laughter.)
REP. HYDE: Well, that gives you a considerable advantage, but go ahead! (Laughter.)
MR. KATZENBACH: I think with this committee I need it, Mr. Chairman! (Laughter.)
REP. HYDE: (Laughs) Touche! Touche!
MR. KATZENBACH: Do you wish me to proceed?
REP. HYDE: Please.
MR. KATZENBACH: Mr. Chairman, and members of the committee, let me first say, Mr. Chairman, that I thought your introduction was very fulsome and I appreciate it.
REP. HYDE: Good.
MR. KATZENBACH: I also appreciate the opportunity to testify before this once-familiar-to-me committee on the important constitutional question of impeachment of the president of the United States which is before this committee.
A great deal has been written and spoken on the subject of impeachment by the media, by members of Congress, by witnesses testifying before this committee, by academics and others so much, in fact, that it seems to me we're in danger of losing sight and understanding the fundamentals. So in the hope of simplifying a complex issue, I'd like to begin with some fundamentals that are not, I believe, controversial.
The process of impeachment is simply to remove from office upon conviction, not to otherwise punish the person involved. The Constitution provides the legislative branch, the Congress, with this means of removing from office the president, the vice president, and all civil officers upon conviction of treason, bribery, or other high crimes and misdemeanors. The threshold problem for the committee is, of course to determine what constitutes high crimes and misdemeanors which would justify removal from office of an elected president.
The phrase "high crimes and misdemeanors" is not a familiar one in modern American jurisprudence. At common law, it constituted the category of political crimes against the state, and neither high crime nor high misdemeanor have ever been terms used in the criminal law. In the United States, one of the Founders, James Wilson, made essentially that point when he wrote that, quote, "Impeachments are confined to political characters, to political crimes and misdemeanors, to political punishments."
Or, as Justice Story observed, impeachment is, quote, "a proceeding, purely of a political nature, is not so much designed to punish an offender as to secure the state against gross political misdemeanors. It touches neither his person nor his property, but simply divests him of his political capacity." End quote.
The problem which the founders faced was how to adapt this process from a parliamentary system in which there was no separation of powers to one in which separation of powers was of great importance. In Great Britain, the impeachment process was aimed at officers appointed by the crown in circumstances historically where the king himself could not be removed from office except, perhaps, by revolution, such as Oliver Cromwell's.
As the British system has evolved and the prime minister become essentially a legislatively elected official, where he or she could be forced to a mid-term election by a parliamentary vote of no confidence, impeachment has lost its punch. But in the United States, where the president is elected for a fixed term of office different from the legislative terms, the Founders thought it essential to have some means of removing him or her before the expiration of his term if he is guilty of high crimes and misdemeanors.
Now whatever that term may be found to mean, it's clear that the Founders intended it to be a limited power. Because in their debates the Founders dealt virtually exclusively with the president civil officers, as you know, were added later in the process and because for most of the convention the impeachment clause was confined to treason and bribery, they equated other high crimes and misdemeanors with, in the debates, great offenses, when that term was added.
Now, I appreciate that this brief history doesn't resolve in any decisive fashion the threshold problem the committee is facing in determining what conduct by a president justifies impeachment. But I do think it tends to provide some parameters which should be useful and which should not, at least when phrased generally, be very controversial. It's a serious matter for the Congress to remove a president who has been elected in a democratic process for a term of four years, raising fundamental issues about the separation of powers.
If that power is not limited, as it clearly is, then any president could be removed if a sufficient number of members of the House and Senate simply disagreed with his policies, thus converting impeachment into a parliamentary vote of no confidence.
Whatever its merits, that isn't our constitutional system.
Because impeachment is a political process, it's always had a strong partisan quality element and strong partisan motivation. It still does, and in a democratic political system, probably always will. But that fact simply increases the risk of subverting the constitutional system. To appreciate those risks, you need only consider the impeachment of Andrew Johnson, the president who came close to being convicted in the process, as unfair as it was partisan, which should be an object lesson for all.
The job of this committee is to weigh the facts of President Clinton's alleged conduct against the limiting provision of the Constitution: "other high crimes and misdemeanors." The job may seemingly be made more difficult because of the application of that term to judges as well as the president and vice president. But judges are appointed during good behavior, a term which significantly does not apply to the four year to limit the four-year term of the president. By removing one of several hundred federal judges from office, it doesn't have the same constitutional significance as removing the president. Even removal of a Supreme Court justice would raise different considerations from removing the president. And the standard is far higher than for judges, as Congressman, as he was then, Gerald Ford recognized when he proposed impeachment of Justice Douglas.
To come to the same conclusions on the same facts in such different situations would make a mockery of the Constitution and the intentions of the Founding Fathers. Only if one takes the view articulated by Senator Fessenden (sp) in the Johnson impeachment that impeachment is a power, quote, "to be exercised with extreme caution in extreme cases," can the same standard apply to both presidents and judges? One simply needs to take into consideration the different roles and responsibilities of the officers involved.
The proper way to resolve these problems, which are made more difficult by unfamiliar language than they are by clear purpose, is simply to return to the reasons for the provision. If we think of it in political, not partisan political terms, impeachment is designed to provide the legislative branch with a method of removing a person from office whose conduct is so egregious as to justify reversing the process by which he was appointed or elected.
It seems to me clear that in our system of separation of powers, this cannot mean simply disagreement, however sincere, however strongly felt, with either the decisions of judges or the policies of the president. It must be some conduct, some acts which are so serious as to bring into question the capacity of the person involved to carry out his role with the confidence of the public.
If I am correct, then it seems to me the fundamental question is simply whether the president has done something which has destroyed public confidence in his ability to continue in that office. If the public doesn't believe that what he has done seriously affects his ability to perform his public duties as president, should the committee conclude that his acts have destroyed public confidence essential to that office? The only question, after all, is removal of office from an elected official. Is it proper? Is it a proper role of a partisan majority in Congress to conclude that the offenses are so serious as to warrant removal even if the public believes otherwise?
I don't find the arguments for this position persuasive. First, there's an argument that perjury and for the purposes of this analysis, I take it to be correct is always so serious, irrespective of circumstance, as to warrant removal of a president. I suggest that some perjury is more serious than others. If, for example, the president were to swear falsely that he had no knowledge of a CIA plot to assassinate the speaker
REP. HYDE: Mr. Katzenbach, could you wind up, because your 10 minutes has expired.
MR. KATZENBACH: Are you sure, Mr. President Mr. Chairman?
REP. HYDE: Yes. That big red light tells me so.
MR. KATZENBACH: Could I have one more minute?
REP. HYDE: Surely. But
MR. KATZENBACH: All right.
REP. HYDE: I just wanted you to know.
MR. KATZENBACH: Okay. The point is simply that all perjury may be reprehensible, but it's still not of similar import when the ultimate issue is public confidence to perform the duties of office. If the argument is made that the public's view as to what does or does not constitute a cause for impeachment is irrelevant because of the duty of the House to determine whether or not the president has committed a high crime or misdemeanor, I would agree if it were a criminal case. I would agree if the president was extremely unpopular, because I could not then separate that popularity from the acts causing the impeachment. In those circumstances, the Congress would have a particularly difficult job. But this Congress and this committee are faced with a totally new impeachment problem. Due to the existence of the independent counsel, the facts are publicly known, the areas of factual dispute relatively minor. Members of Congress have expressed concern over the evils of perjury and other alleged offenses and their serious nature. For whatever reason, the public remains unpersuaded.
Finally, I can't see any constitutional basis for impeachment.
To remove a popularly elected president requires, in my judgment, showing a great offense against the public weal sufficient to bring into the question of reasonable people whether or not he should be removed.
The threshold constitutional question, Mr. Chairman, for each member of Congress is that he must which he must decide, or her, can be simply stated: "Is the conduct of the president such that he should be removed from office because, as a consequence of that conduct, the public no longer has confidence that he can perform the duties of that high office?"
Remember, impeachment is a political process, a political remedy, to preserve confidence in that political process, not to punish a perpetrator.
Thank you, Mr. Chairman.
REP. HYDE: Thank you very much, Mr. Katzenbach.
Professor Bruce Ackerman of Yale.
REP./MR. : I think it's Mr. Wilentz.
MR. WILENTZ: I think I am going to go next.
REP. HYDE: All right. I think we have had a substitution (laughter) temporary; Professor Sean Wilentz of Princeton.
MR. WILENTZ: Thank you.
REP. HYDE: Professor Wilentz.
MR. WILENTZ: Thank you.
Can you hear me all right?
REP. HYDE: Turn the
MR. WILENTZ: The mike?
REP. HYDE: switch on.
MR. WILENTZ: I believe it is on. REP. HYDE: No. (Cross talk.)
MR. WILENTZ: Oh, there it is. Okay. Wilentz in for Ackerman.
Mr. Chairman and members of the Judiciary Committee, it is a high honor to address you today on the grave and momentous matter of presidential impeachment.
Although I appear at the invitation of the White House, I wish to make it clear from the start that I have no intention of defending the president over his confessed and alleged misdeeds. Lawyers with a far greater familiarity with the evidence than I are far better equipped to do that. Certainly, I do not think that the president is blameless in these matters, something that I have noted many times over the years in my writings.
Instead, I wish to defend the institution of the presidency, the Constitution and the rule of law from what I see as the attacks upon them that have accompanied the continuing inquiry into the president's misconduct. In time, we will learn how much these attacks have been calculated and how much they have been unwitting. Either way, they are extremely dangerous.
It is no exaggeration to say that upon this impeachment inquiry, as upon all presidential impeachment inquiries, hinges the fate of our American political institutions. It is that important.
As a historian, it is clear to me that the impeachment of President Clinton would do greater damage great damage to those institutions and to the rule of law, much greater damage than the crimes of which President Clinton has been accused.
More important, it is clear to me that any representative who votes in favor of impeachment, but who is not absolutely convinced that the president may have committed impeachable offenses not merely crimes or misdemeanors, but high crimes or misdemeanors will be fairly accused of gross dereliction of duty and earn the condemnation of history.
I'd like to address three basic points of historical relevance: the grounds for impeachment as envisaged by the framers of the Constitution and our understanding of them; the dangers of politicizing the impeachment process; and the relation between impeachment and the rule of law.
First, regarding the framers. The scholarly testimony on November 9th before the subcommittee regarding the Constitution showed alas, at mind-numbing length that there is disagreement over what constitutes grounds for presidential impeachment as envisaged by the framers. Yet the testimony also showed that there is substantial common ground. Above all, the scholars agreed that not all criminal acts are necessarily impeachable acts, only, quote, "treason, bribery, and other high crimes and misdemeanors" committed in George Mason's explicit original language, quote, "against the state," unquote, would seem to qualify, at least if we were to go by what the framers actually said and wrote. Or, according to James Wilson of Pennsylvania, impeachment is restricted to, quote, "political characters, to political crimes and misdemeanors, and to political punishments."
Now, a great deal of the disagreement among historians stems from a small but fateful decision taken by the Constitutional Convention's Committee on Style. Before the Constitution reached that committee, Mason's original wording on impeachment was changed from "against the state" to "high crimes and misdemeanors against the United States." The committee was charged with polishing the document's language, but with instructions that the meaning not be changed at all.
Yet by removing, in Article I, Section 4, the words "against the United States," the committee created a Pandora's box, which we have opened 211 years later.
The absence of the wording "against the state" or "against the United States" in the final document has persuaded some historians and constitutional scholars that the Constitution embraces all sorts of private crimes as impeachable. Yet many, if not most, American historians, including the nearly 500 who have now endorsed the widely publicized statement imploring the impeachment drive, hold to the view that Mason's wording and Wilson's observation best express the letter and the spirit of what the Framers had in mind. By that standard, the current charges against President Clinton do not, we American historians believe, rise to the level of impeachable offenses.
As further historical evidence, I would point to the fact that the only other occasions when presidential impeachment was pursued against Presidents Andrew Johnson and Richard Nixon plainly involved allegations of grievous public crimes that directly assaulted our political system.
Another pivotal piece of evidence has to do with the Nixon impeachment. In 1974 the Judiciary Committee declined to approve a bill of impeachment, an article of impeachment, connected to serious allegations that President Nixon had defrauded a federal agency, the Internal Revenue Service.
Now without question, an occasion could arise when it would be necessary to expand on the Framers' language, to cover circumstances they may have never contemplated, including truly monstrous private crimes. I would hope, for example, that any president accused of murder, even in the most private circumstances, would be impeached and removed from office. But not even the president's harshest critics, as far as I know, have claimed that the current allegations are on a par with murder.
Various representatives, scholars, and commentators have offered technically plausible though, I think, deeply mistaken and misleading arguments contending that the allegations against President Clinton rise to an impeachable standard under the definitions of crimes against the state. There has been talk of a concerted attack on one of the coordinate branches of government, of a calculated presidential abuse of power, namely, that he raised issues of executive privilege and because he lied to his aides.
But these assertions rightly sound overwrought, exaggerated and suspicious to ordinary Americans, let alone to professional historians when matched against the facts of the case.
Similar magisterial language was used in the impeachment proceedings against President Johnson and had impact in the Congress. Johnson, too, after all, had violated a federal law much more definitively than President Clinton has. Since then, though, historians have looked behind the language at the actual facts of the case as well as at the political context of the time. And in general they have concluded that the impeachment effort against Johnson was a drastic departure from what the framers intended, one that badly weakened the presidency for decades, the reason that very few of us can remember the names of all those presidents between Ulysses S. Grant and Theodore Roosevelt.
So, too, later generations of historians will judge these proceedings. I strongly believe that the weight of the evidence runs counter to impeachment. What each of you on the committee and your fellow members of the House must decide, each for him or herself, is whether the actual facts alleged against the president the actual facts and not the sonorous formal charges truly rise to the level of impeachable offenses. If you believe they do rise to that level, you will vote for impeachment and take your risk at going down in history with the zealots and the fanatics. If you understand that the charges do not rise to the level of impeachment, or if you are at all unsure, and yet you vote in favor of impeachment anyway for some other reason, history will track you down and condemn you for your cravenness. Alternatively, you could muster the courage of your convictions. The choice is yours.
Second, on impeachment and politicalization, many commentators have noted, including Attorney General Katzenbach, correctly, that presidential impeachment is, strictly speaking, a political and not a judicial matter. Yet there is all the difference in the world between a political procedure and a politicized one. A political proceeding is a deliberative, bipartisan, evenhanded effort to assess possible political offenses under the Constitution. A politicized procedure, however, overlooks constitutional standards and heeds other considerations, be they political favors, anger at the president, or pressure from party leaders. On the basis of recent press reports, I fear that these proceedings are on the brink of becoming irretrievably politicized, more so than even the notorious drive to remove Andrew Johnson from office 130 years ago.
I'd like to be able to share with you the story of that impeachment of Johnson and its relevance to our current distempers. The light has, however, turned to orange, and I don't have much time, so I'll skip over that. Perhaps we'll be able to do that in questioning.
The point that I wanted to make is that it seems to me that unlike then, when members of the House of Representatives were firmly convinced that President Johnson had committed a high misdemeanor, today it seems that other considerations are coming into play, that perhaps something else will be going on.
Indeed, compared to 1868, a perverse logic has taken hold. Some have said that we should impeach a president because we do not think the Senate will remove him, and this perverted logic turns the impeachment vote into a thoroughly politicized and a reckless move. I see the red light, Mr. Chairman, and I will wrap up.
REP. HYDE: Thank you.
MR. WILENTZ: Forget about constitutional standards and duties and do the short term political thing, sailing the ship of state into dangerous waters, uncharted in this century. Such willingness to pass the buck on so grave and indelible a matter of impeachment is a feeble evasion of responsibility and a degradation of conscience.
Finally, on the question of the rule of law, what I say in my written statement is basically that it is a greater threat to the rule of law to actually go ahead with this impeachment than not to go ahead with this impeachment. The argument that, somehow, allowing the president to get away with a suspected perjury and obstruction of justice will countenance an irreparable tear in the seamless web of American justice; that if we impeach the president, the rule of law will be vindicated if only in a symbolic way, proving forcefully that no American is above the law and that the ladder of the law has no top and no bottom. This argument, I believe, is nonsense, logically and historically, with all due respects. Rather, I believe, and we can talk about this later on, the impeachment process itself poses a far greater risk to the rule of law.
A final comment. I began by discussing President Clinton's accountability for the current impeachment mess. By equivocating before the American people and before a federal grand jury, not to mention before his family and friends, he has disgraced the presidency and badly scarred his reputation. He has apologized and asked for forgiveness. But now, as mandated by the Constitution, the matter rests with you, the members of the House of Representatives.
You may decide as a body to go through with impeachment, disregarding the letter as well as the spirit, of the Constitution, defying the deliberate judgment of the people, whom you are supposed to represent and in some cases, deciding to do so out of anger and expedience.
But if you decide to do this, you will have done far more to subvert respect for the framers, for representative government and for the rule of law than any crime that has been alleged against President Clinton. And your reputations will be darkened for as long as there are Americans who can tell the difference between the rule of law and the rule of politics.
REP. HYDE: Thank you, Professor, very much.
Now the question of the day is, is it Professor Ackerman or Professor Beer?
Professor Beer, you're next. Thank you.
MR. BEER: Thank you, Mr. Chairman, and the committee.
It's appropriate in a way I should be here for this committee, this formidable committee, since just last week I was in London advising some of my friends in the House of Commons and at a conference on the American view of the constitutional forms being proposed there; the one, and I particularly stressed, was the need for them to beef up their legislative committees. And I am sure my experience here won't change my mind on that point.
That shows you in a way what my real concern here is; mainly mainly the political and constitutional consequences of impeachment, rather than the legal and judicial aspects. The process is judicial in form, impeachment by the House being like indictment by a grand jury; and trial and conviction by the Senate, like a trial and conviction by a court.
In fact, however, the consequences of successful impeachment do not resemble the usual consequences of a judicial trial; for instance, punishment by a fine or imprisonment, as Article 1, Section 3, Paragraph 7 provides. Punishment of that kind would be invoked after the president had become a private citizen by resignation, removal or expiration of his term of office.
Removal from office and, see, I am emphasizing what my colleague Nicholas Katzenbach (inaudible) removal from office, that grand and forbidding consequence of a successful impeachment, distinguishes this process radically from the judgment of a court. It resembles rather a vote of no confidence in a legislature such as the British Parliament. By such a vote, the House of Commons can bring to an end the life of a government.
In 1841, Sir Robert Peel summed up this fundamental convention of the British Constitution when, in what became a classic formulation, he successfully moved that, "Her Majesty's ministers do not sufficiently possess the confidence of the House of Commons to enable them to carry through the House measures which they deem of essential importance to the public welfare."
Now to the relevance. Like a vote of no confidence, impeachment brings to an end a president's administration. Like a vote of no confidence, it relates not merely to some specific failure but is a judgment on his record and promise as a whole with regard to those to adapt Peel's phrases those measures which he deems of essential importance to the public welfare. Because of these broad and weighty consequences, impeachment is primarily a political, not a judicial, act.
As a political act, impeachment, like a vote of no confidence, passes judgment on and enforces responsibility on the executive power. In the British system, that responsibility runs directly to the legislature. In the American system, on the contrary, that responsibility runs to the legislature only secondarily and in special circumstances. For us, the responsibility of the president is essentially and directly to the voters. The legislature, as a separate office, separately elected, likewise is held accountable by the voters. This separation of powers is fundamental in our constitutional design and is a main point of distinction from the British system. The direct responsibility of both branches to the voters expresses the sovereignty of the people popular sovereignty, that doctrine unique with us in this time sovereignty of the people as the ultimate authority of our Constitution and of the government established under it.
Now, as the framers struggled to give expression to that principle, they ran into a problem: How were our liberties to be protected against misuse of power by the executive between quadrennial elections?
At the Philadelphia convention during the summer of 1787, they explored various possibilities an appeal to the Supreme Court, the concoction of other bodies of that kind and discarded them. The states similarly, thinking of their systems of governors and legislatures, were experimenting in theory and practice with a variety of methods of bridging the same gap.
At the last moment, the Framers incorporated a structure almost exactly in the form then being used in England in the impeachment of Warren Hastings. This device, although it had its ancient roots, had come to special prominence in the 17th and 18th centuries, when Great Britain also for a time displayed a certain separation of powers, as a still powerful and independent monarch faced off against the rising assertions of the Parliament. In those circumstances, impeachment was adopted by the parliamentarians as a means of enforcing responsibility on the monarch through action against his ministers.
When finally the monarch was eased out of politics, the old fusion of executive and legislative powers was taken over by a committee of the Parliament, the Cabinet. Now the interim method of impeachment, of holding on of getting a hold on the executive was dropped in favor of a vote of confidence, which performed more effectively in those circumstances the function of enforcing responsibility on Parliament.
At the same time that impeachment was dying out in Britain, it was picked up, taken up by Americans, who found in it a way of supplementing the principal mechanism of democratic responsibility by quadrennial elections. And this is the point: The broad scope of impeachment was embodied in a very different system. Where the ultimate sovereign is the people, the interference of one power, the legislature, in its exercise of such a dire responsibility as removal of a popularly elected president imposes severe duties on the legislators. The Congress itself, not the primary source of authority, but only a creature of the people, is acting in lieu of the people between quadrennial elections. At their best, the legislators will do what the people at their best would do, weighing the pluses and minuses of the record and the promise as a whole and I'm repeating what Nick Katzenbach said asking this central question: Does the national interest require the removal from office of this president?
It's not a little detailed question, it's a great big broad question.
In the case of President Clinton, the American people have twice answered that question by electing him to the American presidency. And if we seek further light on the present American mind, surveys of opinion continue to confirm that answer, which also in no way is disturbed by the outcome of the recent mid-term elections.
I conclude, the failure to consider the whole record of Clinton's presidency in foreign and domestic affairs could have severe long-run costs. The removal of a president, thanks to such a neglective judgment, could substantially damage our democratic system. Consider the temptations which this precedent would excite in a Congress of a different party against a future president of a different party. As a great historian, Henry Adams, said when commenting on the failed attempt of the Jeffersonians to remove Justice Chase, impeachment is not a suitable activity for party politics.
Thank you.
REP. HYDE: Thank you very much, Professor Beer.
And now, by process of elimination, we see you, Professor Ackerman.
MR. ACKERMAN: Good morning, Mr. Chairman and the distinguished members of this committee. My name is Bruce Ackerman, and I'm Sterling professor of law and political science at Yale. I request the chair's permission to revise and extend these remarks.
REP. HYDE: Do, indeed. (Laughter.)
MR. ACKERMAN: Since you have already heard so much on the subject of constitutional standards, I thought I would concentrate on two big mistakes that have characterized the discussion up to now.
The first big mistake centers on the power of this committee and the present House of Representatives to send a case to trial in the Senate. People seem to be assuming that once the present committee and the full House vote for a bill of impeachment, the stage will be set for trial in the Senate in the upcoming year. Nothing could be further from the truth. As a constitutional matter, the House of Representatives is not a continuing body. When the 105th House dies on January 3rd, all its unfinished business dies with it. To begin with, the most obvious example, a bill passed by the 105th House that is still pending in the 105th Senate on January 3rd cannot be enacted into law unless it once again is approved by the 106th House of Representatives. This is as it should be. Otherwise lame duck Congresses would have a field day in situations like the present, where the old House majority has a setbacks in the polls.
Recognizing that its political power is on the wane, the dominate party will predictably use its lame duck months to pass lots of controversial legislation onto the Senate in defiance of the judgment made by the voters.
This abuse was very common during the first 150 years of this republic. Until the 20th Amendment was passed in 1933, a newly elected Congress ordinarily waited 13 months before it began its first meeting in Washington, D.C. In the meantime, lame ducks did the nation's business for a full session, often in ways that ran against the grain of the last election. This might have been an acceptable price to pay in the 18th century when roads were terrible and it took time for former representatives to arrange their business affairs. But over the passage of centuries, the operation of lame duck congresses proved to be an intolerable violation of democratic principles, and they were basically abolished by the 20th Amendment to the Constitution of the United States in 1933.
This amendment aims to have the new Congress begin meeting as soon as possible after the elections. The text itself specifies January 3rd. In enacting this amendment into our fundamental law, Americans believed they were reducing the lame duck problem to vestigial proportions. Perhaps some grave national emergency might require decisive action, but the old Congress was expected simply to fade away as the nation enjoyed a respite from politics between Thanksgiving and New Year's Day.
Generally, speaking, lame duck congresses have proved faithful to this expectation. For example, during the 65 years since the 20th Amendment became part of our higher law, no lame duck House has ever impeached an errant federal judge, much less a sitting president of the United States. Such matters have been rightfully left to the congresses that were not full of members who had been repudiated at the polls, and who were retiring from office.
These proceedings, then, are absolutely unprecedented in the post-lame duck era. Despite this fact, I don't question the raw constitutional power of the current lame duck House to vote on a bill of impeachment, but I do respectfully submit that the Constitution treats a lame duck bill of impeachment in precisely the same way it treats any other House bill that remains pending in the Senate on January 3rd.
Like all other bills, a lame duck bill of impeachment loses its constitutional force with the death of the House that passed it.
This point was rightly ignored before the election, since everybody expected the new Congress to be more Republican than its predecessor. On this assumption, it was perfectly plausible for this distinguished committee to proceed in earnest. If the 105th House voted to impeach, there was every reason to suppose that the 106th House would quickly reaffirm its judgment and send the matter on its way to the Senate, so it was perfectly reasonable. But now that the voters have spoken, the constitutional status of lame duck impeachment deserves far more attention than it has thus far been given.
Worse yet, we can't rely much on the past for guidance. The closest precedent comes from the 1988 impeachment of federal district Judge Alcee Hastings. The 100th House had impeached Hastings, but both sides wanted to delay the Senate trial to the 101st session, and the Senate Rules Committee granted their request. The committee's perfunctory six-page report, however, does not resolve any of the key issues raised by the present case. Hastings was a judge, not a president, and he was impeached during a normal session of Congress, not by a Congress of lame ducks.
As a consequence, the Senate report does not even pause to consider the implications of the fact that the people themselves have decisively sought to limit the capacity of lame duck Congresses by solemnly enacting the 20th Amendment. If we take this amendment seriously, it means that a lame duck House should not be allowed to relieve its freshly elected successor of the most solemn obligation it could have, to pass upon an impeachment resolution.
Moreover, if the next House of Representatives seeks to duck this responsibility, the Senate will not be free to dispense with the problem of lame duck impeachment by a simple reference to the 1988 decision in Judge Hastings' case. Instead, the Constitutionality of a lame duck impeachment will be the first question confronting Chief Justice Rehnquist, the designated presiding officer at the Senate trial.
Following the precedent established by Chief Justice Chase before and during the trial of Andrew Johnson, the chief justice will rightly assert his authority to rule on all procedural issues and the first of these should undoubtedly be a motion by the president's lawyers to quash the lame duck impeachment as constitutionally invalid unless reaffirmed by the 106th House.
Now, Chief Justice Rehnquist is in fact a scholar of the impeachment process, having written an entire book on this subject. I am sure that he will be fully aware of the historical importance of his conduct of this proceeding and will quickly grasp the obvious dangers of lame-duck impeachment.
Moreover, there are many strands in the chief justice's jurisprudence, which will lead him to give great weight to the idea that it is only a truly democratic House, and not a collection of lame ducks, that has the constitutional authority to proceed against a man who has been fairly elected to the presidency by the people of the United States. Without any hint of partisanship, he would be well within his rights to quash the lame-duck impeachment and remand the matter back to the new House of Representatives.
Since the status of lame-duck impeachment has never been briefed and argued in the modern era inaugurated by the Twentieth Amendment, it's impossible to make a firm guess as to the way the chief justice will rule on this matter. Only one thing is clear; it would be far better for the country and the Constitution if the chief justice is never put to this test.
As Alexander Bickell (sp), my great predecessor in the Sterling Chair at Yale, frequently reminded us: "The health of our constitutional system is not measured by the number of hard cases that have been resolved by clear rulings. It is measured instead by the number of statesmen in our history who, seeing hard cases on the horizon, act in sensible ways so as to avoid ever precipitating a constitutional crisis." And that's what we are going into.
If this committee and the present House choose to go forward and vote in favor of a Bill of Impeachment, I respectfully urge the new speaker of the 106th Congress to do the right thing and remit the matter once again for consideration by the new House.
Suppose, however, he doesn't do so. Suppose further that if pressed, the chief justice upholds the continuing validity of the lame-duck impeachment despite the expiration of the 105th Congress, even then the new House of Representatives will not be able to escape the need to consider whether a majority of the members newly elected continue to favor the impeachment of the president.
To see why, consider that the House must elect a group of members, called impeachment managers, to present its case against the president at the Senate trial. Without the energetic prosecution of the case by the managers, the Senate trial (receiving a cue that the time has expired) I'm sorry, I'll end up here the Senate trial cannot go forward. No managers, no trial. But only the new House can appoint managers. This was done in Judge Hastings' case, and it certainly should be required in the case of a sitting president facing a lame-duck impeachment.
Thus, even if a new House leadership chooses to rely on a lame- duck impeachment and refuses to allow another vote on a fresh bill before sending the matter to the Senate, there is no way it can avoid the need to test the majority sentiment of the new House. By voting against the slate of managers, a majority of the new House will be in a position to stop the impeachment process dead in its tracks. It is a big mistake, then
REP. SENSENBRENNER: (Acting as chair.) Professor Ackerman, do you think you could wrap up?
MR. ACKERMAN: This is the last paragraph here.
It is a big mistake, then, for the distinguished members of this committee and this House to suppose that they are the final judges of this bill of impeachment. To be sure, the recommendation of this committee and the vote of the entire House deserves serious consideration by the members taking office next month. But so do the judgments of the voters as expressed at the elections in November.
I respectfully urge you to consider this point as you determine your present course. To put my point in operational terms, if you don't believe that a bill of impeachment or that the election of impeachment managers will gain the majority support of the next House, the wise thing to do is to stop the process now. While it may be embarrassing to reverse gears after so much momentum has been generated in favor of a bill of impeachment, the leadership of the next House will confront a much more embarrassing
REP. SENSENBRENNER: Professor Ackerman, I do think you are abusing the committee's time.
MR. ACKERMAN: situation if it becomes evident
REP. SENSENBRENNER: You have gone much further than
MR. ACKERMAN: that its slender pro-impeachment majority has vanished
REP. SENSENBRENNER: (Bangs gavel.) Professor Ackerman, could
MR. ACKERMAN: over the Christmas recess.
REP. SENSENBRENNER: you please wrap it up. The red light's been on for about three minutes now.
MR. ACKERMAN: Thank you very much.
REP. SENSENBRENNER: And everybody else has been a little bit better in terms of watching the red light.
MR. ACKERMAN: Thank you very much.
REP. SENSENBRENNER: Are you done?
MR. ACKERMAN: Yes, I am.
REP. ASA HUTCHINSON (R-AR): Mr. Chairman?
REP. SENSENBRENNER: Yes?
REP. HUTCHINSON: I have a unanimous consent request.
REP. SENSENBRENNER: Will the gentleman from Arkansas please state the unanimous consent request.
REP. HUTCHINSON: It appears that this would be an appropriate time for a unanimous consent request. I have a Congressional Research Service memorandum discussing that impeachment proceedings may be continued from one Congress to the next. And I ask unanimous consent that this be entered into the record as a part of this proceeding and distributed to the members.
REP. SENSENBRENNER: Without objection.
REP. GEKAS (?): Mr. Chairman, could a copy be given to the witness so that he can respond to it?
REP. SENSENBRENNER: The first copy out of the Xerox machine will be given to Professor Ackerman.
MR. ACKERMAN: I have I've read it, sir.
REP. THOMAS BARRETT (D-WI): Mr. Chairman? Mr. Chairman?
REP. SENSENBRENNER: Is there any objection to the request of the gentleman from Arkansas?
REP. BARRETT: Mr. Chairman, reserving the right to object, I just I want to make sure that those that that CRS report comes to us before we get to questioning, so that if those can be distributed I realize the witness should have the first copy, but I think it's important for us to have that.
REP. SENSENBRENNER: We will see how fast the Xerox machine can make copies.
REP. BARRETT: Thank you very much.
REP. SENSENBRENNER: Is there
REP. : Parliamentary inquiry, Mr. Chairman
REP. SENSENBRENNER: Well, there is anybody reserving the right to object to the
REP. MAXINE WATERS (D-CA): I reserve the right to object.
REP. SENSENBRENNER: The gentlewoman from California, on a reservation.
REP. WATERS: Mr. Chairman, I reserve the right to object because I think we have hit upon an extremely important point that's being made by Professor Ackerman. And if the gentleman would like to if he has different information, if he is in receipt of information that suggests otherwise, I think it deserves discussion in this committee, rather than simply the submission of the information to us.
REP. SENSENBRENNER: If the chair may interrupt, the request is that the CRS report referred to by the gentleman from Arkansas, in his unanimous consent request, become a part of the record. Once it becomes a part of the record, then anybody can discuss it as they would like. But it seems to me we've been very liberal in putting statements and materials in the record since the beginning of this inquiry. And the gentleman from Arkansas has something that he thinks is relevant.
Is there objection to including the CRS report referred to by the gentleman from Arkansas in the record? (Pause.) Hearing none, so ordered.
REP. STEVE CHABOT (R-OH): Mr. Chairman, parliamentary inquiry.
REP. SENSENBRENNER: The gentleman from Ohio will state his parliamentary inquiry.
REP. CHABOT: Is it not the practice of this committee that when witnesses testify here, we should have the statements of the witnesses in writing prior to their testifying, so we can follow it as they're going through their
REP. SENSENBRENNER: That is in the rules of the committee, yes.
REP. CHABOT: Could we ask that any other witnesses that come today or tomorrow that we could get their statements ahead of time, so that we can follow that?
REP. SENSENBRENNER: That is in the rules, and that is certainly a legitimate request, and I will direct that request to Counsel Craig, who is responsible for orchestrating the witnesses in defense of the president.
REP. CHABOT: I thank the chairman.
REP. GEORGE GEKAS (R-PA): Mr. Chairman?
REP. SENSENBRENNER: The gentleman from Pennsylvania.
REP. GEKAS: In response partially to the gentleman from Ohio, I believe that we had decided in advance, or someone did, to which we acceded, that because of the late start, as it were, for the witnesses to appear before this committee that we, in effect, waived the necessity of their providing statements before the hearing. So I would let the I would allow the record to show, as far as my statement is concerned, that I believe that that was waived with respect to this panel.
REP. SENSENBRENNER: Mr. Craig, do you think that it would be possible to give committee members advance statements for future witnesses today and tomorrow?
MR. CRAIG: We'll do our very best to do that, Mr. Chairman.
REP. SENSENBRENNER: Okay, thank you.
Mr. Hyde will be out of the room for a bit, and we will begin the questioning. I will begin with myself. And again, I will reiterate Mr. Hyde's admonition that the questions will be limited to five minutes, and when the red light goes on for each questioner we will state that the time has expired and go on to the next questioner. So I yield myself five minutes.
Mr. Craig, in your opening statement you asked members of the committee to open their hearts and open their minds and to look at the record. And I think since the 9th of September, committee members have spent a lot of time looking at the record, first in executive session and then in the public meetings that this committee has had pursuant to the resolution that the House of Representatives directed us to conduct an impeachment inquiry.
We've heard an awful lot of academic discourse and discourse and discussion on what constitutes an impeachable offense, what constitutes perjury, but we've heard nothing from the president contradicting the fact witnesses and the grand jury testimony that Judge Starr sent over to us in 18 boxes worth of evidence. I'm disappointed that there are no fact witnesses rebutting any of the evidence that was contained in the 18 boxes and your presentation today and tomorrow. Are you disputing any of the facts? And if so, why are you not bringing forth witnesses that can provide direct-fact testimony, rather than opinion or argument disputing the facts?
MR. CRAIG: Congressman, let me respond to that this way.
We have submitted in writing, three different responses to the referral that was presented to the House of Representatives by Mr. Starr and the Office of Independent Counsel. And in those responses, we take issue with many of the facts laid out by Mr. Starr in that referral.
We do dispute representations and characterizations that the independent counsel has made, and we do dispute some of the testimony that has been presented in the grand jury. And we in particular urged the committee not necessarily to take at face value the characterizations of that testimony, or the president's testimony, that are to be found in the referral by Mr. Starr.
We find that frequently he mischaracterizes that testimony, or the Office of Independent Counsel in the referral has mischaracterized the testimony of the president, in order to construct a perjury allegation.
REP. SENSENBRENNER: Well, let me get to the heart of this case: Did Monica Lewinsky provide false testimony to the grand jury, in your opinion?
MR. CRAIG: We think in some areas she provided erroneous testimony that is in disagreement with the president's testimony, and particularly in specific areas having to do with the grand jury.
Now you are going to have to make a determination as to how important the divergence, the disagreement or the disagreement on the testimony is. We are not
REP. SENSENBRENNER: Well, there have been complaints by the president's counsel and by the minority Democrats on this committee, that grand jury testimony is not subject to cross-examination and that Ms. Lewinsky and the other witnesses that came before the grand jury were not cross-examined. How come you are not bringing any of these people before this committee to provide the cross-examination that the grand jury procedure denied you?
MR. CRAIG: We have found, Mr. Chairman, many inconsistent statements in the grand jury testimony itself that we believe we can use to support our case.
We believe that the president should be given a presumption of innocence, and that the burden should be on the committee to call fact witnesses and determine whether the credibility of the fact witnesses is such that (inaudible word) can draw the conclusion
REP. SENSENBRENNER: Well, the investigation was done pursuant to the independent counsel statute, and I would just observe, Mr. Craig, that if the president had told the truth in January, there would have been no independent counsel investigation of this whole matter, and we wouldn't be sitting here today.
My time has expired. The gentleman from Michigan, Mr. Conyers.
REP. CONYERS: Well, let me begin by reminding my acting chairman that it wouldn't have affected whether there would have been an independent counsel appointed at all.
One of the well, let me put all three of these together, Mr. Craig. Mr. Starr alleged that the president lied about sexual relations before the Paula Jones deposition and in grand jury. He it is also alleged that the president obstructed justice by assisting Miss Lewinsky with a job search, and that he further obstructed justice in conversations with Betty Currie after his January 17 deposition. Could you put those in context for us, please?
MR. CRAIG: Let me talk first about the president's testimony in the civil deposition. He denied, in the civil deposition, in accordance with the definition that he had been provided as to what a sexual relationship was, he denied having a sexual relationship as defined in the deposition by the Jones judge. There may be disagreement as to whether his testimony fell within or without that definition, but there is no disagreement that the president himself and, in fact, Monica Lewinsky, as she wrote her affidavit and testified in the grand jury, believed that what he was testifying was within the definition as given to him in front of the court.
The point I'm trying to make here is that there was an effort by the president to testify accurately but not to disclose information about his relationship. That may be blameworthy, it may be wrong, you may judge that he crossed the line, but in fact, there is no testimony, or no proof, that President Clinton knew he was wrong when he looked at that definition and intentionally lied.
I would say when it comes to the job search, Mr. Chairman, that there's a good deal of information. And this is why I so strongly argued that the committee should look at the record.
There's lot of information about the job search that is simply not included in the referral: the fact that Ms. Lewinsky's desire to leave Washington arose in July, long before her involvement in the Jones case; the fact that the president provided Ms. Lewinsky with only modest assistance, if any at all; the fact that the job assistance that was provided by friends and associates of the president was in no way unusual for Ms. Lewinsky as opposed to other people who were also receiving that kind of job assistance; the fact that there was absolutely no pressure applied to obtain Ms. Lewinsky a job; the fact that there was no timetable for Ms. Lewinsky's job search, let alone any timetable linked to her involvement in the Jones case; and the fact that all the people that participated in that job search testified that there was nothing linked to any testimony or affidavit. It is the testimony of Vernon Jordan, it is the testimony of Ms. Lewinsky, and it's the testimony of the president that there was no obstruction of justice involved in that job search.
Now, when it comes to the questions relating to Ms. Currie, Ms. Currie at the time she had this conversation with the president, was not a witness in any proceeding. Her name had not appeared on the Jones witness list. She had not been named as a witness in the Jones case. And the discovery period was down to its very final days. There was no reason to suspect that she would play any role in the Jones case as a witness. And the president did not know that the OIC at that point had embarked on an investigation of him.
To obstruct a proceeding or to tamper with a witness, Mr. Conyers, there must be both a proceeding and a witness. Here, as far as the president knew, there was neither.
And there's a second important point that is also deleted or left out or ignored in the presentation of the referral. Ms. Currie testified about this conversation with the president on numerous occasions and repeatedly testified that she felt absolutely no pressure to agree with the questions that the president asked her. Let me just cite one excerpt from the transcript of Ms. Currie's testimony. I'll be
REP. SENSENBRENNER: The gentleman's time has expired.
Somebody else can bring that up if we're to keep on time.
REP. CONYERS: Mr. Chairman, might he finish the sentence? Could he finish the sentence?
MR. CRAIG: It's very quick
REP. SENSENBRENNER: Finish the sentence.
MR. CRAIG: it's very quick, Mr. Sensenbrenner. She was asked, "Did you feel pressure when he told you those statements?" She said, "None whatsoever." She was asked, "Did you feel any pressure to agree with your boss?" She said, "None."
REP. SENSENBRENNER: Okay.
REP. CONYERS: Thank you very much, Mr. Craig.
REP. SENSENBRENNER: Thank you.
The gentleman from Florida, Mr. McCollum.
REP. BILL MCCOLLUM (R-FL): Thank you very much, Mr. Chairman.
Mr. Craig, I'm glad we're getting into facts. I think it's very important that we do that. And although I too am disappointed there are no fact witnesses, I think the discussion is important.
With respect to Betty Currie, the record I've read indicates that indeed the president numerous times in his deposition said, "You'll have to ask Betty about that," referred to her a lot of times in his deposition in the Jones case. And surely he would have expected that somebody would have called her as a witness, whether she was on a witness list at the time he had these conversations with her or not, and that therefore, it seems to me, it's immaterial whether she was on a witness list or she wasn't. But that's the type of thing we should be discussing. And again, it's long overdue.
I also would like to point out that as we look through these things, there are a lot of things in the record that you are obligated to tell us where we're wrong about, because or where the record may be different. And I'm looking forward to that.
The record I see with regard to the grand jury testimony indicates that the president swore that he did not know that his personal friend Vernon Jordan had met with Monica Lewinsky and had talked about the case. And I'd say the evidence indicates that he lied about that when he made that swearing.
The president in that deposition swore that he could not recall being alone with Monica Lewinsky. The evidence that I've read so far indicates he lied about that.
The president swore he could not recall ever being in the Oval hallway Oval Office hallway with Ms. Lewinsky, except perhaps when she was delivering a pizza. The evidence indicates he lied about that.
The president swore he couldn't recall gifts exchanged between Monica Lewinsky and himself. The evidence indicates he lied about that.
The president swore that he was not sure whether he had ever talked to Monica Lewinsky about the possibility that she might be asked to testify in the Jones case. The evidence indicates he lied about that.
The president swore he did not know whether Monica Lewinsky had been served a subpoena to testify in the Jones case the last time he saw her in December 1997. The evidence I've read indicates he lied about that.
The president swore that the last time he spoke to Monica Lewinsky was when she stopped was stopped by before Christmas 1997 to see Betty Currie at a Christmas party.
The evidence I have read indicates he lied about that.
The president swore the contents of an affidavit executed by Monica Lewinsky in the Jones case, in which she denied they had sexual relationships, were absolutely true. The evidence I have read indicates he lied about that.
And before the grand jury as well as in the deposition, the president swore that he did not have sexual relations with Monica Lewinsky. The evidence indicates that he lied even according to his own interpretation of the Jone(s) court definition of the term "sexual relations," because if you believe Monica Lewinsky, you have to conclude that indeed the president lied with respect to this, because she explicitly said they had certain relationships described in that definition.
And the president initiated an agreement with Monica Lewinsky in which she would lie in a sworn affidavit to be filed in the Jones case and in which each would lie under oath if called to testify in the case brought against the president. That's what I read the evidence as indicating.
I am curious to know if you find anything in any of the testimony, Mr. Craig, that we have before us from Vernon Jordan where Mr. Jordan lied? Is there anything in the record
MR. CRAIG: Not that I am aware of. And this is a problem that we have run in throughout this proceeding is to identify precisely what kind of testimony you are talking about before we can have an accurate or a prepared response. I am not
REP. MCCOLLUM: Well, I am curious about anything. You know, I have read the
MR. CRAIG: Congressman, could I respond to your allegations about the civil deposition and about the grand jury, that you strung together?
REP. MCCOLLUM: Well, I strung those together only to give you illustrations with respect to where I see the evidence being.
MR. CRAIG: But I'd like just to make one point, if I could.
REP. MCCOLLUM: Let me ask you one other question as to the Vernon Jordan one is there anything in the record that you have seen where Betty Currie lied in the record before us?
REP. CONYERS: Mr. Chairman?
REP. FRANK (?): Mr. Chairman, regular order?
REP. CONYERS: The regular order.
REP. SENSENBRENNER: Could the witness be
REP./MR. : The gentleman answers the question.
REP. CONYERS: Mr. Chairman?
REP. MCCOLLUM: I have asked the question about whether with all due respect, it was my time. I asked him whether there was anything in the record about Vernon Jordan lying. He said no. And I asked him a question of whether or not there was anything in the record about Betty Currie lying. And I would like an answer if I could
REP. : Mr. Chairman, if I may, regular order.
REP. SENSENBRENNER: The gentleman from Florida has got the time. I would ask members of the committee not to interrupt other members of the committee during their own time.
The gentleman from Florida is recognized.
REP. MCCOLLUM: I would just like to know if there is anything you have seen in the record that would indicate that you believe Betty Currie lied in the testimony she gave that we have on the record?
MR. CRAIG: Congressman, the answer is that I am aware of nothing inside that testimony that Ms.
REP. MCCOLLUM: Currie.
MR. CRAIG: Ms. Currie or Vernon Jordan lied.
REP. MCCOLLUM: Thank you.
REP. SENSENBRENNER: The gentleman's time has expired.
REP. : Parliamentary inquiry, Mr. Chairman.
REP. BARNEY FRANK (D-MA): Mr. Chairman no, it's my time. And I would now ask Mr. Craig if he would
REP. SENSENBRENNER: No, it's not your time until I recognize you. The gentleman from Massachusetts, Mr. Frank.
REP. FRANK: Oh, thank you, Mr. Chairman. That was very important. (Laughter.)
Mr. Craig, I wonder if you might like to answer the accusations. Because I must say with Mr. McCollum I had trouble because it seemed to me there was a mixture of grand jury and deposition and it wasn't clear which was which. And while Mr. McCollum obviously did not want you to respond to that, understandably, I would like you to respond.
MR. CRAIG: I will try to be very quick, Congressman Frank
REP. FRANK: Why? He wasn't. (Chuckles.)
MR. CRAIG: and thank you.
First let me say, Congressman McCollum, that we are going to file with the committee today a written response that I think will address every single one of those allegations that you just went through. You can find them consolidated on pages 18 and 19 of Mr. Starr's presentation before this committee.
And there are two things that I think are very important to get straight. One is that the characterization of the president's testimony in each one of those incidents is inaccurate. And the second thing is that you've mixed up grand jury testimony with civil deposition testimony in very dangerous and misleading ways.
And I hope I heard you answer questions over the weekend, and I was very pleased with your response, on the issue of separating allegations of perjury on the civil deposition from allegations of perjury on the having to do with the grand jury. And I hope we can have further conversation about that. REP. FRANK: Thank you, Mr. Craig, because I think it is important to separate them out. There were some allegations of grand jury perjury which clearly went beyond anything Kenneth Starr charged the president with. And the notion that Kenneth Starr was too soft on the president is a new one to me, even this late in the proceedings.
Before I get to that, I would like to say two procedural points. People have criticized you for not calling witnesses. Well the majority had the ability to call witnesses. And I must say, I take exception, I must tell my friend from Florida, to the suggestion that Vernon Jordan might have been lying. I think Mr. Jordan is a man of great integrity. His testimony, of course, completely supports the president's position and refutes the accusations. And if you think Vernon Jordan was lying I don't think so but have the courage to call him up here and let him defend himself. I think that kind of imputation, raising the issue about Vernon Jordan's integrity without calling him forward is a great error.
I understand why you don't want to call him forward, because I think he would make mincemeat of that accusation.
Now let me just say, Mr. Craig, with regard to grand jury perjury, as I understand it there were three accusations of grand jury perjury in Mr. Starr. One was am I correct? Ms. Lewinsky said that the sexual activity began in November of 1995, and the president said February of 1996? Is that correct, that that was one of the accusations of grand jury perjury?
MR. CRAIG: That's correct.
REP. FRANK: I wonder if anybody here, as a lawyer, would think that a charge would be brought this is more than two years after that has happened, and nothing turned on that. In other words, Ms. Lewinsky did not reach a certain age in the interim that would have made it more or less legal; is that correct?
MR. CRAIG: That's correct, yes.
REP. FRANK: The second question, the second charge of perjury is one that I had trouble understanding. Am I correct that it was and I think we ought to differentiate, because Mr. McCollum listed a number of things which he said were perjurious; Mr. Starr only had three. The second one was that when the president told the grand jury that he believed, in the deposition, that the definition excluded certain kinds of sexual activity, that he was lying, that he didn't really believe it. In other words, the accusation is that when he said in August that he believed in January that the definition excluded certain kinds of sex, that that was a lie. Is that correct, that that's the second one? (No audible response.)
Well, I ask that because people have said, "Where are the president's witnesses?" Well, what witness could he bring to show that the sexual activity began in February rather than November? He admitted trying to conceal it. What witness could he bring to show that he really believed this in January? Do people think there was a secret witness that he said, "Hey, I'm really kidding, I don't really believe this"? (Laughter.) I mean, the fact is that there were no witnesses you could have believed.
Last question, with regard to the obstruction. Is it the case that everybody who was supposedly involved in the obstruction Mr. Jordan, Ms. Currie, Ms. Lewinsky and the president all denied that any obstruction happened, and if you were, in fact, to prosecute this case, who would you bring as a witness to say there was an obstruction?
MR. CRAIG: That is the case. I wouldn't know how to prosecute this case.
May I make one comment, Mr. Frank, since I've still got time?
REP. FRANK: Yeah, you've got till the light goes off.
MR. CRAIG: I would urge the committee to remember that Mr. Ruff is coming. I'm perfectly happy to deal with the committee's questions, but the purpose of this panel, in addition just to my introductory comments, the purpose of this panel was to discuss some of the new ideas, I think, that these witnesses
REP. FRANK: Mr. Craig, you have to finish your sentence without any dependent clauses, under the rules. (Laughter.) You have to finish your sentence. No clauses.
MR. CRAIG: I'm done.
REP. SENSENBRENNER: The gentleman from Massachusetts' time has expired.
The gentleman from Pennsylvania, Mr. Gekas.
REP. GEORGE W. GEKAS (R-PA): Mr. Chairman, I yield 10 seconds, I hope, to the gentleman from Florida. (Laughter.)
REP. MCCOLLUM: Thank you very much for yielding.
I just wanted to make a point. I was not impugning Vernon Jordan's integrity. In fact, I was trying to corroborate the fact he's been telling the truth that's, I think, damaging to the president.
REP. FRANK: Will the gentleman from Pennsylvania yield to me for five second?
REP. GEKAS: No, I cannot. I cannot, Barney.
REP. FRANK: You could if you wanted to.
REP. GEKAS: I cannot. I really cannot. (Laughter.)
REP. SENSENBRENNER: The gentleman from Pennsylvania.
REP. GEKAS: Professor Wilentz, your testimony has really astounded me. And I want to question you on one phase of it.
MR. WILENTZ: Sure.
REP. GEKAS: You seem to indicate that if any one of us, any member of Congress should vote for impeachment, there will always be the question in your mind as to whether we did it out of cravenness or under a resolution and study and analysis and conscience. And I hope that after this is over that you take a roll call of those who voted and then analyze for us it'll take you a hundred years to determine whether we did it out of cravenness or not. I think that's a despicable way to characterize in advance a possible vote on some serious note as this. That's number one.
General Katzenbach, you seem to have placed a great deal of emphasis on the difference between a criminal offense and a political offense that is couched in impeachment. And I agree with you that it is substantially if not totally a political process. If the President of the United States refused to grant requests to the Congress time and time again and the Congress felt that it should judge the president in contempt of Congress, you would consider that a political, not a criminal, offense, would you not?
MR. KATZENBACH: If it was an offense at all, it would be political, yes.
REP. GEKAS: Pardon me?
MR. KATZENBACH: If it was an offense at all, it would be political, not
REP. GEKAS: Yes. Yes. And so the Congress, if it felt on a series of contempt instances that it would proceed, you would not automatically discount that as an impeachable offense, would you?
Would this not be a refutation or a knock in the eye to another branch of government that the president was indulging in?
MR. KATZENBACH: It might be that, sir, but I don't think that the Constitution provides, under "high crimes and misdemeanors", for refusal of the president to do what the Congress wants it to do. There are other ways in which the Congress deals with that problem and, frankly, sir, this is simply not one of them. No, I would not regard that as grounds for impeachment.
REP. GEKAS: So that you have no idea, as you are testifying here, what high crimes and misdemeanors might be?
MR. KATZENBACH: Oh, I have a good idea what they might be, yes, sir.
REP. GEKAS: And you're saying that perjury, which would be a direct affront to the judicial process, could not be considered fairly by any of us as being an impeachable offense. If indeed giving false statements under oath in a judicial proceeding can be fairly characterized by many of us who are analyzing this as an affront to the other branch of government, meaning the judiciary, the judicial branch of government, you think that the commission of a statutory crime, common law crime of false statements under oath, or just obstructing justice by giving false statements under oath would not arise to an impeachable offense; is that what you're saying to us?
MR. KATZENBACH: No, sir, that's not what I am saying. I am saying that all of those could be impeachable offenses if the effect of that was to destroy public confidence in the ability of the president to play his role in the government.
REP. GEKAS: And you say that the fact that he confronts the judiciary and attacks the judiciary by virtue of a perjury would not be an attack on the constitutional system, is what I hear you saying.
MR. KATZENBACH: That's not what I'm saying; it may be what you hear, but it is not what I am saying.
REP. GEKAS: Yeah, I'm not hearing right.
MR. KATZENBACH: That's correct, sir. Because if I can
REP. GEKAS: Would you agree that we have a difference of opinion and that we would not be craven if we decided that perjury committed by the president of the United States, if so concluded, in a judicial proceeding involving the rights of a fellow American citizen would amount to an impeachable offense?
MR. KATZENBACH: If the red light is on, Mr. Chairman. How can I answer it?
REP. SENSENBRENNER: Oh. A quick answer.
MR. KATZENBACH: A quick yes? My answer is no.
REP. SENSENBRENNER: "A quick answer."
MR. KATZENBACH: Oh. It would be an impeachable offense, sir, only if the effect of that was regarded by the members of Congress as so serious that it destroyed public confidence in the ability of the president to play his role in government.
REP. JACKSON LEE: Mr. Chairman, I do have a parliamentary inquiry.
REP. SENSENBRENNER: The gentleman's time has expired.
State your parliamentary inquiry.
REP. JACKSON LEE: The inquiry, Mr. Chairman, is this is the only time that the president has the opportunity to present his case to the American people and to this committee. I noticed that Mr. Gekas asked the question or made a comment of Professor Wilentz. I do think it is important that we allow witnesses to respond to either comments or questions made to them.
REP. SENSENBRENNER: Well, that is not a proper parliamentary inquiry. And how the five minutes would be allocated and enforced was stated by Mr. Hyde when he was in the chair at the beginning of the meeting.
REP. JACKSON LEE: I appreciate that, Mr. Chairman. Is there any way for the professor to answer the question?
REP. SENSENBRENNER: Nobody objected at that point in time. A subsequent questioner, if they feel that it is important that a witness give an answer to a question that there was no time to answer, can decide in his or her best judgment whether to reiterate that question. That's what Mr. Frank did in response to some of the statements that Mr. McCollum made. I think that that's the way we will be able to allow the president to spend more time presenting witnesses, rather than responding to parliamentary inquiries.
REP. STEVE ROTHMAN (D-NJ): Mr. Chairman, parliamentary Mr. Chairman, a parliamentary inquiry.
REP. SENSENBRENNER: The gentleman from New York, Mr. Schumer.
REP. JACKSON LEE: Let me maintain a continuing objection, Mr. Chairman.
REP. ROTHMAN: Mr. Chairman, parliamentary inquiry.
REP. SENSENBRENNER: The gentleman from New Jersey.
REP. ROTHMAN: Thank you, Mr. Chairman. I want to point out inquire of the chair whether the procedures adopted by the chairman, Mr. Hyde, when he was sitting where you are, with regards to the panel called predominantly by the Republican majority will prevail in this panel, when the president's counsel has called this panel. In particular, Mr. Chairman Hyde chose, when the Democrats were asking questions of Republican experts and Democratic experts on the last panel, to allow each member of the panel to respond to our questions even when we didn't specifically ask them questions. And I wonder why today the present chair is changing that procedure and not allowing the panelists to respond.
REP. SENSENBRENNER: That is not a proper parliamentary inquiry. The chair will state that he is merely
REP. ROTHMAN: It is an inquiry of fairness, Mr. Chairman.
REP. SENSENBRENNER: that he is merely enforcing the rules that were outlined by Mr. Hyde at the beginning of the hearing, which no one objected to.
The chair now recognizes the gentleman from New York, Mr. Schumer.
REP. CHARLES SCHUMER (D-NY): Thank you, Mr. Chairman. And you know, as we come close to finishing these proceedings and going to a vote, I guess most people seem to regard it as an assured conclusion on the floor of the House, I am sort of befuddled by the direction in which we go and I'd like to direct some questions at all of the panelists in this regard.
We're ready, in this committee and maybe in the full House, for the second time in our history to pass articles of impeachment to the Senate. And there are maybe 20 or 30 people who haven't really committed; whose minds aren't made up. They tend to be the so-called "moderate Republicans." And, at least, to read from the newspaper statements of those moderate Republicans, what has pushed them in more of a direction to do the unthinkable, or what was unthinkable a few weeks ago and is still probably unthinkable to most of the American public, are two things: one, that the president didn't apologize in a fulsome way enough. I mean, one one of the swing votes is saying, please, Mr. President, apologize fully and then I won't have to vote for impeachment. The other is that the answers to the 81 questions submitted by this committee weren't direct enough.
And so what I worry about, I would say to this panel and to all of my colleagues in the full House, since I think this committee is already sort of, what we're doing is we're going through motions but it seems minds are made up but I say to my colleagues that we may, the American people may, wake up next week and find out that the Congress impeached the president for not being contrite enough to certain members of Congress.
I just don't get that, because it seems to me that the standard of what the president did and whether what he did reaches high crimes and misdemeanors should be totally irrelevant to a level of contrition. You may judge the president as what kind of man he is by the level of contrition, but not whether he should be impeached. Or by whether the president answered a series of questions here directly enough, unless someone wants to allege that in the answers to the questions perjury was committed, as well, and I haven't heard anybody allege that.
So I would like to ask each of the panelists and particularly the constitutional experts, the professors, but all of the panelists in your legal opinion, even in your political opinion, does the contrition of the president go to whether the president should be impeached?
Does the level of apology, the fulsomeness of apology, the sincerity of apology, should that be entering into one's mind as to whether the president should be impeached? And similarly, should the president's answers to a list of questions, assuming that no perjurious statements were made in answer to those questions and I guess I don't know if they're technically sworn under oath amid a standard to perjury. But just assuming that, should that go to whether we should impeach the president as well? So maybe Professor Wilentz or Ackerman or Beer first.
MR. WILENTZ: I can maybe reply to your question, too, Mr. Gekas, your comments
REP. SCHUMER: Well, do that on his time, please.
MR. WILENTZ: Yes, I will. Okay.
REP. SCHUMER: Okay.
MR. WILENTZ: The answer is no, it should not. There is no constitutional standard for lack of contrition. The ways in which in my comments about cravenness, et cetera, were directed toward that process of getting those moderates, perhaps to get in line, if any standard other than the constitutional standard of high crimes and misdemeanors becomes the reason for a vote for impeachment, that vote is, to my mind, a dereliction of constitutional duty.
REP. SCHUMER: So level of contrition would not go to whether someone committed a high crime or misdemeanor by any stretch of the imagination.
MR. WILENTZ: Absolutely not. Absolutely not.
REP. SCHUMER: Do you agree with that, Professor Ackerman?
MR. ACKERMAN: Yes. Yes. The operational question is whether the conduct alleged represents a clear and present danger to the foundations of the republic. And contrition, it seems to me, does not enter into that
REP. SCHUMER: Nor would the answer to these 81 questions
MR. ACKERMAN: That's correct. That's correct.
REP. SCHUMER: which don't deal with the acts of the president for which we're examining impeachment.
MR. ACKERMAN: That's correct.
REP. SCHUMER: Do you agree with that, Professor Beer?
MR. BEER: Yes, I agree. They seem to be asking him to come and confess things which he didn't do and does not think he did. I wouldn't call that contrition, I would call that subservience.
REP. SCHUMER: Do you have any comments on this, Mr. Craig?
MR. CRAIG: I agree with you, Mr. Schumer. (Laughter.) You will not be surprised to know that I agree with you, congressman.
REP. SCHUMER: No. I mean, just, since there's a minute left, it seems to me people are looking to avoid the direct, bald, naked confrontation with whether we should impeach or not when they've coming up with these kinds of answers. You better be convinced in your own head that these actions either imperil the republic or at least meet a standard of high crimes and misdemeanors and not look for an excuse like the president didn't apologize enough, or he didn't answer someone's question directly enough. It's almost trivializing what ought to be a very sacred process.
REP. SENSENBRENNER: The gentleman's time has expired.
The gentleman from North Carolina Mr. Coble.
REP. HOWARD COBLE (R-NC): I thank the chairman.
Gentlemen, good to have you all with us.
President Clinton, then Candidate Clinton, assured us I think it was in '92 that he would bring to us an administration that was very ethical. In fact, he may have said the "most ethical administration in history." Well, the president has developed a pattern of being evasive and being deceptive, which has caused those words not to be prophetic.
Now, having said all that, Mr. Craig, let me put a question to you. And I am doing this from memory, so if my memory is faulted, don't be reluctant to correct me.
But after the deposition for the Paula Jones case, I recall having read, among my many notes here, that the president contacted Dick Morris, the political consultant, to get his spin on it. This has turned into a spin operation. And it appears that Mr. Morris, in response to that question, said, "Mr. President, the American public will tolerate adultery, but they will not tolerate perjury." Well at that point, the cow was out of the barn because he had already been deposed.
Now having said all that, Mr. Craig, Ms. Lewinsky strike that the president denied having involved himself with any intimate touching, under oath. Ms. Lewinsky consequently admits very forthrightly that there was in fact intimate touching. Now both these statements were given under sworn oath.
Do you have any opinion, Mr. Craig, as to who is lying? because it seems inevitably one of those parties is lying. And you may not have an opinion to that.
MR. CRAIG: Congressman, I represent the president of the United States, and the president of the United States has said and testified about that kind of activity. And I accept his word about that.
The problem for those of you who are here in a fact-finding capacity, is precisely that problem; there is no other way to determine or corroborate the testimony. It's an oath-on-oath "he says, she says" situation.
This is hardly, I think, the kind of issue that the House of Representatives should send to the Senate for a trial before the American people, to determine whether or not the president of the United States should be removed from office.
Let me just make one comment, if I might, Congressman.
REP. COBLE: Sure.
MR. CRAIG: We intend today to file a very, very complete brief dealing with the law and the facts, in greater detail and in greater systematic way than we have ever done before. And then you are going to have Mr. Ruff to go through these facts
REP. COBLE: Right.
MR. CRAIG: when he is here all afternoon tomorrow.
REP. COBLE: And I thank you for that, Mr. Craig.
And of course the Senate will be the ultimate fact-finders in this operation, assuming it passes that far.
Gentlemen, put on your alternative hats. I want to talk about censure. And I'll excuse Mr. Craig. I'll let one of you other four, if you will, come forward. Not that you're not capable, Mr. Craig, but I've already given you time.
There's a balloon being floated on this Hill labeled censure, and some are suggesting that attached to that would be a financial forfeiture or penalty. Now, my constitutional anxiety becomes activated at this point; I think that would be vulnerable, I think it would probably amount to a bill of attainder. Can you all confirm or reject my anxiety process?
MR. ACKERMAN: Congressman, I think you're completely correct. Any financial sanction against a named individual by this Congress is a bill of attainder, and it doesn't matter whether it's Bruce Ackerman or Bill Clinton.
REP. COBLE: Yeah, and I thank you for that.
And, Mr. Chairman, I want you to know it can be done before the red light illuminates, and I would yield back the balance of my time.
REP. SENSENBRENNER: That is appreciated.
The gentleman from California, Mr. Berman.
REP. HOWARD BERMAN (D-CA): Well thank you very much, Mr. Chairman.
Mr. Craig represents the president. I'd like you to put aside his points and the points made before with respect to the factual allegations, and I'd like you to assume that the narrative in the Starr report is true, and for this purpose, take the conclusions he draws from that narrative. And then each of you have touched on it in your testimony, but I'd like you just very concisely to tell us why you don't think the sum total of those conclusions he draws from his narrative are not impeachable. I realize, again, you've talked about this, but I'd like you to do it particularly in the context of the argument that is frequently made by those who have come to the conclusion that the president should be impeached, that particularly lying under oath has repercussions and consequences that do deal with our constitutional system of government and respect for the judicial process and these kinds of issues. However you want to do it.
MR. KATZENBACH: Let me be brief, Congressman. I am perfectly willing to take everything that Mr. Starr says and still conclude that that does not reach the level of high crimes and misdemeanors in this situation. I reach that because the purpose is to remove the president. The reason you have high crimes and misdemeanors as grounds for removing the president is that there's no confidence left by the public in his ability to conduct that office, and I do not believe if you came to that conclusion, you would have to explain why it is that the public seems to still have confidence in the president.
MR. ACKERMAN: This committee does not sit as a grand jury of the District of Columbia. There is probably no person in the United States today who runs a greater risk in the year 2000 of an indictment for perjury than William Jefferson Clinton. The question for you, as you are the grand inquest of the nation and the question is whether the conduct alleged represents an assault on the fundamental principles of government.
If this conduct represents that, our history over the last two centuries would be littered with bills of impeachment. Congress has taken its taken this quest in a very restrained way. The most important fact is that over two centuries, only twice has serious conduct gone up to this level. And so I think that this is simply, on the state of the evidence, just not nearly the kind of conduct that you, as opposed to the grand jury sitting in the District of Columbia, should consider.
MR. WILENTZ: Yes. I do not think that unless these this misconduct raises (sic) to the level of an assault on our fundamental political system that they're impeachable, even if every one of them is true. I think, however, that the argument that we must impeach the president for symbolic reasons, that somehow this misconduct represents a breach in the seamless web of justice is, too, nonsense.
What it does is to confuse the process of impeachment with what our law legal system is for, our system of courts. We try crimes in courts. We do not impeach people over mere crimes. That is a fundamental constitutional principle. It has been lost amidst all of this talk of symbolism.
MR. BEER: I couldn't improve on what my colleagues have said, but I will say it again: The thing to focus on is that word "impeach" means "remove from office." It tends to float around and be
REP. BERMAN: Professor Beer, could you please turn the mike on so the court reporter can catch your words?
MR. BEER: Oh. Right. I couldn't improve on what my colleagues have said; I will repeat it and say that the thing to do is to focus on the meaning of the word "impeach," which means "remove from office." It tends it's said so much, it tends to lose its power. But when you say, "Did these things even" as Nick Katzenbach has said, even the charge Starr charges are true, they don't begin to outweigh the enormous damage of removing a president.
REP. SENSENBRENNER: The gentleman's time has expired.
The gentleman from Texas, Mr. Smith.
REP. LAMAR SMITH (R-TX): Thank you, Mr. Chairman. Mr. Chairman, under this process of ours, we inevitably have, I think, two sides, and each side feels strongly about representing their client. In this case, we have individuals who feel strongly that the president did not commit an impeachable offense. We have other individuals that feel just as strongly that his wrongful actions did reach that level. If the system is functional and I believe that it is what we all hope is that the truth is going to shake out.
Mr. Craig, my first question is this: that you've admitted in your statement that the president did make you called them, I think, "evasive and misleading statements." Have you ever counseled the president to go before the American people and tell the whole truth and nothing but the truth, which is to say, "Forget about the polls" in fact, it's likely that the White House conducted a poll to find out generally what you ought to say today but "forget the polls, forget the partisan politics, and no matter how much it hurts, level with the American people and tell the whole truth"?
MR. CRAIG: Well, Congressman, let me just say that he has acknowledged the wrongdoing. He has himself acknowledged that he was evasive, that he misled people, and that he went out of his way to conceal.
And on the issue
REP. SMITH: Right. And let me follow up
MR. CRAIG: Could I just finish this?
REP. SMITH: let me follow up by asking you this question, then. Does the president intend to specifically correct any of those evasive and misleading statements that you have acknowledged that he has made?
MR. CRAIG: Well, I think he has gone a long way, congressman, when he gave that statement on August 17th in which he made the painful admission and acknowledgement that he did, in fact, have a
REP. SMITH: Right. And, Mr. Craig, he also said he regretted it. It's very easy to say you've regretted something after you've been caught, but my question was specifically is he going to go back and correct the record and correct any of those misleading and evasive statements?
MR. CRAIG: Congressman, I think he has, in fact, corrected the most central element of what he testified evasively about.
REP. SMITH: Okay, Mr. Craig, let's
MR. CRAIG: And that had to do with the relationship that he denied
REP. SMITH: I appreciate your answer
MR. CRAIG: and that he has now acknowledged and he's told everybody that he was wrong in denying it
REP. SMITH: Right. Mr. Craig, I understand all of that. But you have answered my question, and that is I gather there are no plans to go back and correct those false and misleading statements.
Mr. Katzenbach, may I address my next question to you. I'd like to read a statement by Leon Jaworski, who was the special prosecutor during the Nixon proceeding. And he wrote this:
"The president, a lawyer, coached Haldeman on how to testify untruthfully and yet not commit perjury. It amounted to subordination of perjury. For the number one law enforcement officer of the country, it was, in my opinion, as demeaning an act as could be imagined."
Wouldn't you agree with that statement, at least as it pertained to the situation in 1974?
MR. KATZENBACH: I'm not sure, congressman, that I heard everything that you said. I'm inclined to think that I would agree with what Mr. Jaworski said because I think he was saying you can have an impeachable offense whether or not it amounts to perjury.
REP. SMITH: Right. Let me read a couple of more statements. This is a quotation from the Lewinsky proffer:
"At some point in the relationship between Ms. Lewinsky and the president, the president told Ms. Lewinsky to deny a relationship if ever asked. He said something to the effect of 'If the two people who are involved said it didn't happen, it didn't happen.'"
And in this as well, Ms. Lewinsky has testified that on December 17th, 1997, when she and the president discussed her possible appearance in the Jones case, the president told her, quote, "You know you can always say you were coming to see Betty or that you were bringing me letters."
In your judgment, didn't the president's actions amount to coaching a witness to testify falsely?
MR. KATZENBACH: As you've quoted them, Congressman, I wouldn't think so. But I'm not trying to trivialize that. If that is true, that was the wrong thing
REP. SMITH: My time is up. Let me just
MR. KATZENBACH: that was the wrong thing to say, but it does not amount to grounds for impeachment.
REP. SMITH: I heard your answer is no. But let me say to you that I think 90 percent of the American people would consider this to be tampering with a witness, which is a serious felony and might well be an impeachable offense.
REP. SENSENBRENNER: The gentleman's time has expired.
The gentleman from Virginia, Mr. Boucher.
REP. RICK BOUCHER (D-VA): Thank you very much, Chairman. I share the view that this morning was very eloquently expressed by General Katzenbach, that the impeachment power was not intended for the punishment of an individual for his conduct. He can be punished, even if he's president, in the same manner as any other citizen, in our criminal courts. The impeachment power is designed to advance the national interest and to remove from office an official whose conduct is so severe that he threatens the nation.
This committee, in its 1974 report in the Watergate inquiry, on a broad bipartisan basis concluded that the impeachment power can only be used for conduct that is seriously incompatible with our constitutional form of government or the performance of the constitutional duties of the office of the president. Any other use of the impeachment power falls short of that high standard.
I am concerned that some members of the House may view the application of a lesser standard as appropriate; that they may think that the House should simply send to the Senate for trial any charges for which there may be probable cause that an offense may have been committed, and then leave to the Senate, as the trier of fact, the resolution of the matter.
I would like to ask for your opinions of that view of the impeachment standard, and I would also welcome your thoughts on the gravity of the act of the House alone approving articles of impeachment. In considering whether to apply a higher or a lower standard of what conduct is impeachable, should the members of the House consider the harm to the nation that House approval of Articles of Impeachment will cause?
Should members consider the divisiveness and the polarization that will occur pending a Senate trial and during the trial in the Senate? Should they consider the fact that for months, the Congress and the president will be diverted from the real business of this nation?
So there are three questions that I would pose to you:
First, should the House view its standard as probable cause or something higher?
Second, what harms will occur to the nation based on the House approval alone of the Articles of Impeachment?
And third, should those harms be considered by the members of the House in deciding the proper course on approving Articles of Impeachment, given that the protection of the nation is the ultimate test?
And I would like to begin with Professor Ackerman.
MR. ACKERMAN: I think that the standard, so far as the evidence is concerned, should be clear and convincing evidence.
This is not a normal grand jury indictment. You are indeed correct, Congressman Boucher, that what you are doing is deciding whether the nation's political attention will be diverted for a year. A normal grand jury, there is no great public interest in preventing an indictment; here there is a great public interest against diverting attention.
So you are absolutely right that the standard has to be high. The evidentiary standard should be clear and convincing. And it's, therefore, very difficult to evaluate little snippets of testimony without understanding the much larger context.
The second crucial point is that a vote of impeachment is itself a terrible political precedent for the next generation or two. If this dramatic lowering of the standard from the historic examples is tolerated, every time we have one party let's call them the Democrats in control of Congress and a Republican president in the year 2001 there is going to be an overwhelming political temptation to exploit a moment of political vulnerability for the president to, once again, use a low standard for "high crimes and misdemeanors."
REP. BOUCHER: Professor Wilentz, let me just ask you, if I might in the time remaining, would you care to comment on the harm to the nation that the mere act of the House passing Articles of Impeachment might cause?
MR. WILENTZ: I have little really to add. I mean, it's true that it will open up the possibility for future presidents to be subject to harassment by a Congress's caprices, if it so desires.
But also, I should add, that as representatives of the people you should be well aware that the public has shown again and again and again that it has no stomach to watch this nauseating spectacle continue. And to ignore that, I think, is something that no Congressman ought to do.
Thank you, Mr. Chairman.
REP. SENSENBRUNNER: The gentleman's time is expired. The gentleman from California, Mr. Gallegly.
REP. ELTON GALLEGLY (R-CA): Thank you very much, Mr. Chairman. Mr. Craig and other members on the witness panel today, thank you for being here.
Mr. Craig, do you believe our legal system is dependent on telling the truth?
MR. CRAIG: Absolutely. I think it's very important.
REP. GALLEGLY: Thank you, Mr. Craig. Do you believe that perjury represents an attack on the integrity of our judicial system?
MR. CRAIG: It certainly is not consistent with the highest standards of the judicial system.
REP. GALLEGLY: Thank you, Mr. Craig. Mr. Craig, on Meet the Press on Sunday, November the 22nd of this year, just a couple of weeks ago, Tim Russert asked you, do you believe the president, President Clinton, ever lied under oath? And your statement was no. Do you stand by that?
MR. CRAIG: Yes, sir.
REP. GALLEGLY: Mr. Craig, you concede that the president's testimony in the Jones case was evasive, incomplete, misleading and even maddening. How could this testimony be those things and without being a lie?
MR. CRAIG: There is one element that's absolutely central to the perjury elements of an offense, and that is an absolute intent and knowledge that what you
REP. GALLEGLY: Pardon, Mr. Craig. Are you saying that all lies are perjurious, then? MR. CRAIG: No, I'm not. I'm talking about the elements of the
MR. CRAIG: Well, we're dealing with lying and now you're bringing in the issue of perjury, so
MR. CRAIG: It's specific intent. He did not intend to help, he did not intend to volunteer. He tried, I think, to answer accurately in a very narrow way. You may conclude, Congressman, that he did not succeed. I can understand what he was trying to do and how he read that definition. He may not have been successful. I think we could defend that in any court in this country.
REP. GALLEGLY: Mr. Craig, I appreciate your assessment as a very capable lawyer and as someone who has studied the law, I imagine, the majority of your life. Could you please give me, in as succinct manner as humanly possible, your definition of what it means when you hold up your right hand and you swear to tell the truth, the whole truth, and nothing but the truth, so help you God?
MR. CRAIG: It means what the words of the oath are clearly intended to mean the truth, the whole truth, and nothing but the truth.
REP. GALLEGLY: Do at this point, do you believe that the president has told the truth, the whole truth, and nothing but the truth, so help him God, to the American people?
MR. CRAIG: I do not think he violated the oath knowingly when he testified in front of the Jones deposition.
REP. GALLEGLY: Do you think he's violated his oath to the American people in telling the truth, the whole truth, and nothing but the truth?
MR. CRAIG: I'd disagree with your sense that he did. He did not violate his oath.
REP. GALLEGLY: Thank you very much, Mr. Craig.
I think probably one of the problems that we're dealing with the president's defense today is that any reasonable analysis shows that the president lied on several occasions, in both the deposition and the grand jury testimony. For example, in the deposition of January 17th, the president was asked, "Have you ever given any gifts to Monica Lewinsky?" He answered, "I don't recall." Yet just two and a half weeks before the deposition, President Clinton had given Miss Lewinsky six gifts: a marble bear's head, a Rockettes' blanket, a black dog stuffed animal, a small box of chocolate, a pair of joke sunglasses, and a pin of the New York skyline. The question was important because it goes directly to the issue of a cover-up by the president and possibly his attempt to influence the testimony of a witness.
We've all heard that the president has extraordinary memory. However, at the same time we're expected to believe that he does not remember giving six gifts to Miss Lewinsky just two and a half weeks earlier and oh, by the way, the president knew who knew was on the witness list for the Jones sexual harassment case. Quite frankly, this is an insult to our intelligence and frankly indicates that the president is still not telling the truth.
Mr. Chairman, I yield back.
REP. SENSENBRENNER: The gentleman's time has expired.
The gentleman from New York, Mr. Nadler.
REP. JERROLD NADLER (D-NY): Thank you, Mr. Chairman.
My question is for Professors Wilentz and Ackerman. Gentlemen, I want to follow up sort of on what my colleague Mr. Boucher asked about standards of proof. We've heard quotes that "we just have to see if there's credible evidence, send it over to the Senate, see if let them be the tryer of facts." In my view, that simply transforms the role of the House into a rubber stamp for the special prosecutor, just a transmission belt, and is incorrect.
We've also heard other comments. Special Prosecutor Smaltz, after Mr. Espy was acquitted, said that indictment by itself is a deterrent to corruption, as if you seek to punish someone by indictment.
And a member of this committee was quoted as saying that "Impeachment itself, even if not followed by a conviction, even if you know that there's no real possibility of a conviction, is a punishment for misconduct, a scarlet letter." Now, we even if the Senate acquits and even if you know there's no possibility the Senate will, in fact, convict.
Now, we know that the canons of legal ethics to say that it is unethical for a prosecutor to seek an indictment if the prosecutor does not believe that he can get a jury to convict the defendant. Could you comment on the view that it's proper to seek an impeachment as a punishment for improper conduct, even if you know or think that the evidence will not produce a conviction by the Senate?
MR. WILENTZ: Let me start comments, Congressman Nadler, by quoting Oliver North's attorney Brendan Sullivan, or paraphrase him, rather, to say that Congress is not, or rather, the House of Representatives is not a potted plant. You're not just sitting here passing things along to the Senate. To see that as your role I think is a violation of your oath of office, in fact. It certainly goes towards that your oath to uphold the Constitution. That is what you're here for. And if you are derelict in that, if you back off from that out of fear, out of desire just to get it over with
REP. NADLER: It's not like a grand jury if there's any probable cause.
MR. WILENTZ: No. This is no more like a grand jury than impeachment is like a normal jury trial. It's not. They're two different species.
REP. NADLER: Could you comment to the second half of the question
MR. WILENTZ: Could you remind me of that half, please?
REP. NADLER: The second half of the question is the propriety of voting for impeachment if you think as a punishment in and of itself, and if you think that the Senate will probably not convict on the evidence
MR. WILENTZ: Historically that just runs against the entire tenor of what impeachment has been about. There has never been a case where a House of Representatives has decided to move on an impeachment proceeding with the idea that the Senate would not convict. The entire reason I think Elliot Richardson said this very eloquently the other day a vote to impeach is, in effect, a vote to remove.
REP. NADLER: And briefly, Professor Ackerman and Attorney General Katzenbach, on the second half of that question?
MR. ACKERMAN: It's especially inappropriate when you know that the 106th House is going to have to vote on it again. And if there's no reason to believe that the 106th House would be willing to vote an impeachment, this is to trivialize the impeachment process completely.
REP. NADLER: So you think it's improper to vote for impeachment if you don't think the Senate would likely convict?
MR. ACKERMAN: Or if the next House won't
REP. MCCOLLUM: Attorney general?
MR. ACKERMAN: won't confirm you.
REP. NADLER: Attorney General?
MR. KATZENBACH: It seems to me that nothing could be more improper than to use the impeachment process as a punishment, and that is what you are suggesting. It is absolutely clear constitutionally that, however bad the acts, impeachment is not a punishment; it is to remove somebody from office, the president or a judge or somebody else who
REP. NADLER: So do you think it would be proper or improper to vote for impeachment, even if you thought the president should be removed from office, if you thought the likelihood the Senate would would remove from office was nil?
MR. KATZENBACH: If you met the standards if the House met the standards of impeachment as a high crime and misdemeanor; if those were met and sincerely met, then I would think simply to consider what the Senate would do might be a factor in the voting but not necessarily from a matter of principle.
REP. NADLER: Anybody else want to comment on that?
REP. SENSENBRENNER: The gentleman's time has expired.
MR. BEER: Again, I'd say this points to the political and constitutional consequences; I mean, this is not just something that is happening now. This goes on down and into the future history of the relationship of Congress and the president. It's a further attack on the separation of powers, this kind of precedent. I entirely agree with what my colleague said.
REP. NADLER: Thank you very much.
REP. SENSENBRENNER: The gentleman from Florida, Mr. Canady.
REP. CHARLES T. CANADY (R-FL): Thank you, Mr. Chairman.
I want to thank the members of this panel for being here today.
I will candidly state that, with the exception of Professor Ackerman's argument concerning the procedural status of a Resolution of Impeachment passed by this House, I didn't find any new arguments advanced with respect to the grounds for impeachment or the proper circumstances for impeachment but I appreciate your being here and I'd want to say something about that issue.
But before I do that, I want to also thank Mr. Craig for indicating that we will soon be receiving an exhaustive defense, in writing, of the president's conduct that is set forth in the record. And I am not going to dwell on that, but I do want to ask one question, which just stands out to me, of Mr. Craig.
Mr. Craig, in the president's deposition last January, he was asked this question: "At any time were you and Monica Lewinsky alone together in the Oval Office?"
He answered, "I don't recall." He gave kind of an extended discussion there about working on the weekends, in which he indicated, "It seems to me she brought things to me once or twice on the weekends."
There was then a follow-up question: "So I understand your testimony is that it was possible, then, that you were alone with her but that you have no specific recollection of that ever happening." Answer from the president: "Yes, that's correct."
Now Mr. Craig, is it your position here today on behalf of the president that when the president gave those answers in the deposition, he was telling the truth?
MR. CRAIG: That's correct, Congressman. He answered the question that it was possible that he was alone with her. This is in the civil deposition, so all the description that I gave to that civil deposition is accurate. It was evasive, it was misleading, he tried to be narrowly accurate, but Congressman, he did not violate his oath.
REP. CANADY: Well, Mr. Craig, let me just say this. I read it. It's here in writing. I believe this is an accurate transcription of what took place. This is in the public domain. And it seems to me that the president unequivocally denied that he had any specific recollection of being alone with Ms. Lewinsky. And for you to contend today that that's truthful, I think, is not credible. Now, that's just an observation, and there are other questions about other parts of the record that I'm sure we will focus on as we move forward with this, but I must candidly state that I don't see how anyone in this country could believe that that was a truthful answer in light of all of the evidence that is before us.
Let me address the issue about the standards for impeachment. And I think it's important that all of us acknowledge that not all criminal acts are impeachable. No one here contends that. We also understand that impeachment should not be for trivial matters. Impeachment, we all understand, is a grave step to take. And yes, I believe, and I believe most of the members of the committee understand, that we need more than probable cause to move forward with an impeachment. We need convincing evidence. But I believe that on the record before us, we have convincing evidence of a pattern of lying under oath and obstruction of justice.
I can't detail that here, but I believe that's in the record and we will discuss that. And I think we need to look at the effect of such conduct on the system of government.
I refer back to the report of the committee in the Nixon inquiry. It said, "The emphasis has been on the significant effects of the conduct; undermining the integrity of office, disregard of constitutional duties and oath of office, arrogation of power, abuse of governmental process, adverse impact on the system of government."
I believe that there's a convincing case here of such an adverse impact.
Let me quote, finally, Chief Justice Jay, who delivered the following charge to a grand jury. He said, "Independent of the abominable insult which perjury offers to the Divine Being, there is no crime more extensively pernicious to society. It discolors and poisons the streams of justice, and by substituting falsehood for truth, saps the foundations of personal and public rights." He goes on to say
REP. SENSENBRENNER: The gentleman's time has expired.
REP. CANADY: Thank you.
REP. SENSENBRENNER: The gentleman from Virginia, Mr. Scott.
REP. ROBERT SCOTT (D-VA): Thank you, Mr. Chairman. Mr. Chairman, earlier this morning I mentioned a motion that I'd like to introduce. The motion would have been, had it been in order, that: "I move that the committee establish a specific scope of inquiry prior to the White House's rebuttal of still undefined allegations. If it shall be necessary to expand the scope of inquiry, then such expansion shall be permitted by majority vote of the committee. In addition, once specific allegations of inquiry have been designated, the committee shall hear from witnesses with direct knowledge of these allegations before it considers any articles of impeachment." When that is in order, Mr. Chairman, I would like to introduce that.
But in the meanwhile, I'd like to ask Mr. Craig whether or not he's been given a list of allegations, noting that Mr. Starr's original report had 11 allegations; he came back with 10. Mr. Schippers, the Republican counsel, came up with 15, our Democratic counsel came up with three. Kathleen Willey has been mentioned as a possible scope. Campaign finance reform was in one day and out the next. Insult, by the virtue of the response to the 81 questions, has been mentioned as an impeachable offense, or lack of candor.
Do you have a list of the allegations that you're responding to?
MR. CRAIG: We do not, Congressman. And may I just say one thing about that problem, which I think has been highlighted by what Congressman Canady just did. Particularly when allegations are being made about perjury, it is very important to particularize what the statement or what the alleged testimony is that is perjurious.
And if this committee is going to be considering those kinds of articles, it would be of benefit to the world as well as to this individual trying to serve a purpose of a defense lawyer, to know precisely what it is the president said in the grand jury that is supposed to be perjurious. This is the way, in fact, it's the common pleading way, that you deal with indictments for perjury or allegations of false testimony.
REP. SCOTT: Okay, now, much has been said about the 17 boxes of material. It's my understanding that you've been given access to about a third of that material, is that right?
MR. CRAIG: I think we've been given some access, yes.
REP. SCOTT: But not a lot?
MR. CRAIG: We're not allowed to take notes or to make copies.
REP. SCOTT: Okay. Mr. Ackerman, you indicated, I think you acknowledged in your testimony, that there is precedence for carrying over impeachments from one Congress to the next. Is there any question about the need to appoint managers by the House in the new Congress? Is there any question about that aspect of it?
MR. ACKERMAN: There is only one case of carrying over, since in the last 65 years. That's Judge Hastings' case. The previous carryovers are the trial of Pickering in 1804, which is the high point of no due process throughout the entire this was the worst possible precedent in the history of the United States. And then there was a Judge Louderback (sp), I think it was, in 1933, which was just before there was this sort of the final revenge of the lame duck Congress. So there's only one case
REP. SCOTT: The question is, is there any question that the new House would have to appoint managers?
MR. ACKERMAN: Absolutely, and in that case, the new House appointed managers. So there is absolutely no precedent for holding over the managers appointed by one House to the other House.
REP. SCOTT: The other question I have is, I'd like to ask, I guess, Professor Wilentz. The title of the offense has been mentioned as the impeachable offense. Can you comment on why the title of the offense should not be used as the measure of whether it's an impeachable offense, but the underlying behavior?
MR. WILENTZ: What do you mean by
REP. SCOTT: Is perjury an impeachable offense? Usually it's perjury because you lied about bribes and things like that, that we ought to be looking
MR. WILENTZ: Under some circumstances, perjury is plainly an impeachable offense.
REP. SCOTT: And how do you measure rather than the title, what do you look to, to determine whether it's an impeachable offense?
MR. WILENTZ: When it goes to a fundamental assault on our political institutions, when it goes to as Mason said, in the Constitutional Convention, when it's a crime against the state. That is the spirit of the Constitution as well as the letter.
REP. SCOTT: And without that, it's not an impeachable offense?
REP. SENSENBRENNER: The gentleman's time has expired.
The gentleman from South Carolina, Mr. Inglis.
REP. BOB INGLIS (R-SC): Thank you, Mr. Chairman.
Mr. Craig, you said in your testimony that you would address the factual and evidence evidentiary issues directly today and tomorrow. You haven't done that yet. I hope we've got more to come.
I understand that what you're talking about here today, in this panel, is the standards of impeachment. But as some of my colleagues have pointed out, there's nothing new here nothing new at all, except possibly Mr. Professor Ackerman's statements. So we've heard all the rest of this before.
Now I think you've raised a level of expectation, and now I'm counting on you to meet that over the next today and tomorrow. You need to meet that expectation. Very unusual for the White House spin operation to go out there and set up expectations that it can't fulfill. Usually they do it the opposite. So you've now established a very high expectation that I'm going to count on you to meet.
Now you also said in your testimony that the president, if we you you're asking us to believe this: that the president has insisted and personally instructed his lawyers that no legalities or technicalities should be allowed to obscure the simple moral truth that his behavior in this matter was wrong.
Mr. Craig, did the president lie about never being alone in the Oval Office with Monica Lewinsky?
MR. CRAIG: Congressman, I've made a distinction between what was morally wrong and what was
REP. INGLIS: No, no, no, no. Mr. Craig, answer that question. This is what let me let me give a little bit of a further background now.
MR. CRAIG: Yeah.
REP. INGLIS: This is a question put to the president in the deposition. Now I understand you're drawing distinction, a technicality, a nicety, as you said, between grand jury and deposition. So let me be absolutely clear; we're talking here deposition. Paula Jones' lawyer asks the question, "At any time were you and Monica Lewinsky alone together in the Oval Office?" The president's answer: "I don't recall." And then he goes on.
Now, corroborating evidence of Ms. Lewinsky's testimony indicates that there were eight occasions when the president and Monica Lewinsky had sex in the Oval Office. I ask you again now, did the president lie when he said, "I don't recall"?
MR. CRAIG: Congressman, he goes on in that same passage to testify that it was possible, in fact, that he was alone. So the characterization of the testimony that he never was alone or he didn't recall is not accurate. The characterization that you just gave to it and that Mr. Starr gave to it and the referral gave to it is not an accurate characterization of the president's testimony
REP. INGLIS: You know, I'm reading the whole thing, and I don't see what you're talking about. It seems to me that you are relying on these technicalities.
Now Mr. Craig, did he lie to the American people when he said: I never had sex with that woman? Did he lie?
MR. CRAIG: He certainly misled and deceived
REP. INGLIS: Well, wait a minute, now. Did he lie?
MR. CRAIG: the American people. He misled them and did not tell the truth at that moment.
REP. INGLIS: Okay, so you're not you're not going to rely the president has personally insisted you, I understand, instructed you, has insisted and personally instructed YOU, I suppose, that no legalities or technicalities should be allowed to obscure the simple moral truth. Did he lie to the American people when he said: I never had sex with that woman?
MR. CRAIG: You know, he doesn't believe he did. And because of the
REP. INGLIS: He doesn't
MR. CRAIG: May I explain, Congressman? He
REP. INGLIS: He doesn't believe that he lied?
MR. CRAIG: No, he does not believe that he lied, because his notion of what sex is is what the dictionary definition is. It is in fact something you may not agree with, but in his own mind, his definition was not
REP. INGLIS: Okay, I understand that argument.
MR. CRAIG: Okay.
REP. INGLIS: This is an amazing thing, that you now sit before us and you're taking back all of his all of his apologies. You're taking them all back, aren't you?
MR. CRAIG: No, I'm not.
REP. INGLIS: Because now you're back to the argument there are many arguments you can make here. One of them is he didn't have sex with her; it was oral sex, it wasn't real sex. Now, is that what you're here to say to us today, that he did not have sex with Monica Lewinsky?
MR. CRAIG: What he said was, to the American people, that he did not have sexual relations. And I understand you're not going to like this, Congressman, because you will see it as a technical defense or a hair-splitting, evasive answer, but sexual relations is defined in every dictionary in a certain way, and he did not have that kind of sexual contact with Monica Lewinsky. So
REP. SENSENBRENNER: The gentleman's time has expired.
MR. CRAIG: Let me just finish. So, did he deceive the American people? Yes. Was it wrong? Yes. Was it blameworthy? Yes.
REP. SENSENBRENNER: The gentleman's time has again expired.
The gentleman from North Carolina, Mr. Watt.
REP. MELVIN WATT (D-NC): Thank you, Mr. Chairman. My colleagues, or last three Republicans on the committee Mr. Gallegly, Mr. Canady and Mr. Inglis have asked a series of questions about whether the president lied or misled or didn't lie or mislead. What I'd like to find out from Mr. Katzenbach, Professor Ackerman, Professor Wilentz, and Professor Beer is even if you assume that everything that they said was correct, that the president did in fact lie on those occasions, would it be an impeachable offense?
MR. KATZENBACH: Congressman, my answer would be that it clearly would not because of the nature of that lie. And that seems to me to be the view that the American people take, and it's the view that I would take.
REP. WATT: Okay. Professor Ackerman?
MR. ACKERMAN: Impeachment is the ultimate weapon of the people's representatives against an executive out of control. I do not believe that this evidence is evidence of an executive out of control, assaulting our basic liberties.
REP. WATT: Professor Wilentz?
MR. WILENTZ: We've answered this question on various occasions; I'm happy to answer it again. Even if President Clinton did all of the things that have been alleged, the worst of them, they do not rise to the level of impeachment. They may rise to the crime to the level of crimes, for which our court system is set aside to prosecute. This procedure has other meanings, other purposes, and to confuse the two is to violate, I believe, the spirit of the Constitution.
REP. WATT: Professor Beer?
MR. BEER: That was my point also. I think the legal case is terribly weak. But even if it were true, it would have to be taken in consideration in the context. I think that is what we've tried to call attention to, that impeachment means "remove", it means eliminate this administration, it means holding the record and the promise of this presidency at naught. And I think that in that context, if you balance the pluses and the minuses there, overwhelmingly there's no reason to remove this president from office.
That's the point to keep and to do so would be a severely damage the democratic process.
REP. WATT: Professor Beer, I think you have hit on something in your testimony that is not very exciting in the public context to talk about but I think is extremely important, and that is the difference between a parliamentary form of government and a democratic form of government, which we have, or a constitutional government, which we have. I wonder if you could elaborate on that distinction and the implications that that distinction has in this context.
MR. BEER: I am so glad you asked me that, because it does need to be said.
The crucial thing in the separation of powers is that each of the offices the legislature and the executive is directly responsible to the voters. That's the point. In a parliamentary system there's an intermediate body, namely the parliament. And that makes it quite different. I mean, therefore, when the legislature acts against the executive in our system, it is, so to speak, taking the place of the basic relationship, which is one directly between the president and the people. And it has to, therefore, act with a special caution and look at the whole record and put itself in the place of the people and try to judge as they would judge.
REP. WATT: Thank you, Mr. Chairman. I yield back the balance of my time.
REP. HYDE: I thank the gentleman.
The gentleman from Virginia, Mr. Goodlatte.
REP. ROBERT W. GOODLATTE (R-VA): Thank you, Mr. Chairman.
Professor Wilentz, last week Harvard professor Alan Dershowitz testified under questioning before this committee that perjury before a federal grand jury, if proven, would be an impeachable offense. Do you agree with Professor Dershowitz that perjury before a federal grand jury, if proven, would be an impeachable offense?
MR. WILENTZ: I'm not sure that I would, actually.
REP. GOODLATTE: Let me ask you this. I think the prevailing opinion is MR. WILENTZ: May I add, though, I'm not sure that it wouldn't be, either. It depends on the character of the offense, et cetera.
REP. GOODLATTE: All right, all right. Let's accept that. What about perjury that would, if the president were subject to prosecution and imprisonment while president, result in his imprisonment?
MR. WILENTZ: You mean on well, any offense might involve imprisonment. So I think it's
REP. GOODLATTE: If the President of the United States like an ordinary citizen could be prosecuted and, if convicted, incarcerated, would you then think it appropriate for the Congress to remove the president from office while he's in prison, to use the impeachment power for that purpose?
MR. WILENTZ: I think it would be an improper use of the impeachment power.
REP. GOODLATTE: You would leave him in prison as president of the United States?
MR. WILENTZ: The president of the United States would be tried for by my understanding would be tried for that crime after he left office. That's the point of that.
REP. GOODLATTE: Now, there is also
MR. WILENTZ: (Inaudible.)
REP. GOODLATTE: a prevailing opinion that the president of the United States can exercise the power of pardon on himself. Now
MR. WILENTZ: I would defer to a lawyer on that one.
REP. GOODLATTE: All right. Well, if the president can indeed exercise that power and I think the language in the Constitution would support that argument because, with regard to pardons, Article II says, "have the power to grant reprieve and pardon for offenses against the United States, except in cases of impeachment."
Therefore, if the president has the power to pardon himself and the prevailing opinion is that he cannot be prosecuted until after he leaves office your position regarding the responsibility of this committee with regard to use of the impeachment power when the president commits a serious offense that could result in his incarceration if he could be incarcerated, is to say that the president of the United States is above the law?
MR. WILENTZ: No. There has to be a distinction, which I have been trying to get across to the committee and to everyone else, between impeachment and crimes and being tried for crimes. They are two distinct processes.
REP. GOODLATTE: Certainly, they are. But the Constitution contemplates that with the power of pardoning, that obviously the president could be removed for crimes, because it says that you can't exercise that power in cases of impeachment.
MR. WILENTZ: Well, I am going to defer to my lawyer friend over here, who
REP. GOODLATTE: Well, with regard to Mr. Ackerman, let me just say to you, sir, that you have made this novel argument that the Senate cannot continue with this action unless the 106th Congress votes out additional Articles of Impeachment; that while I appreciate your making the argument and while you have acknowledged that it is a moot argument because this committee can act, and we don't know what action the 106th Congress will take or what the Senate take; that your statement is based on absolutely no historical precedent because every single precedent available to this committee is exactly to the contrary, both not only in the 19th century, but you cite as a basis for changing that precedent, the 20th Amendment to the Constitution.
I have the 20th Amendment here before me, and there is absolutely nothing in the 20th Amendment which indicates that the precedents of the 19th century will be changed. And in fact, after that amendment was adopted, the Congress, in the late 1980s, in the Alcee Hastings case; the Senate, receiving the articles of impeachment in one Congress, conducted the trial in the next Congress, without the House of Representatives enacting or adopting or sending to the Senate new articles of impeachment.
So there's absolutely no constitutional foundation for your argument.
MR. ACKERMAN: My I answer that question, Mr.
REP. GOODLATTE: Yes, please.
MR. ACKERMAN: In the last 65 years, since the passage of the 20th Amendment, there have been no lame duck impeachments.
REP. GOODLATTE: There have been
MR. ACKERMAN: So of course there are no precedents, because Congress has acted with restraint for the last 65 years
REP. GOODLATTE: Reclaiming my time, that is absolutely incorrect with regard to the Judge Hastings impeachment, because the articles of impeachment were passed in one Congress and tried in the second Congress.
MR. ACKERMAN: Hastings by a normal Congress. Hastings was impeached by a normal Congress, not in a in the month, I think, of August or something of this kind not after an election. This is the first time since the 20th Amendment
REP. GOODLATTE: It was still a new Congress, Mr. Ackerman, that could have
REP. HYDE: The gentleman's time
REP. GOODLATTE: overturned the results of the previous Congress.
REP. HYDE: The gentleman's time has expired. The gentlelady from California, Ms. Lofgren.
REP. ZOE LOFGREN (D-CA): I appreciate the panel's report today and I'm mindful once again of the severe gravity of this matter. And although some of the questions today have been about details of sex that I think we all find embarrassing, underlying that kind of embarrassing discussion is the very real prospect, I would say the likelihood, this committee may vote for articles of impeachment and that the House of Representatives may also vote articles of impeachment, and I think many in the country are not aware of that.
I just came in from California last night, and people at home, many of them, were asking me, well, when is this going to be wound up? They think it was over they thought it was over, and people are busy getting ready for the holidays. So I think this hearing today is very important in terms of informing not just the committee and the House, but the American public that something is actually happening.
Now, I think your report, that I think matches what the Founding Fathers had in mind what Mason and Madison meant that, really, impeachment is a remedy for the nation, for the well-being of the nation is, in fact, what we need to be considering. And I'm mindful that these trials take a long time. The trial of Andrew Johnson took three months, and that was before TV. (Laughter.) It would take longer, today. And the chief justice has to preside, and I've been thinking, if we do this trial, does that mean the Supreme Court doesn't get to hear any cases for a period of six months or more? Is all of government gridlocked?
And so as we measure the threat of this alleged conduct to the country and whether it meets that standard, is it appropriate to also measure the impact of a trial on the well-being of our nation?
Now, I have a question for Mr. Katzenbach, not in terms of your distinguished public career, but I'm from Silicon Valley, and the venture capitalists who spoke to me last week, when they found out this was going on, were extremely concerned and alarmed about the potential severe economic impact, in their view.
You were the senior vice president for IBM, I think their senior legal adviser for many years. I've got the IBM research lab in my district and the disk drive division. Can you give us your insight into what the implications for a trial might be for the economy? And I'm especially, obviously, concerned about high tech, but not just that.
MR. KATZENBACH: Let me say two things, Congresswoman. I think your point about
REP. HYDE: Would you move the microphone over?
MR. KATZENBACH: Sorry, Mr. Chairman.
I think your point about what kind of agony and disruption that you put the country through if there's an impeachment process simply underlines what I think members of this panel have been saying with respect to the importance of the definition, not whether or not the president had sex or lied about it, but what it does as far as the government is concerned.
On your second question, people involved in business and the stock markets, and so forth, want certainty, and I can think of nothing much worse than pushing them into an uncertainty that would go on for some period of time while we rehearsed what has been rehearsed a dozen times already. And I would think that that would be a consideration, as the first points were that you made, in terms of how serious, in terms of the public weal is the conduct of the president? Is it so serious that he must be removed from office and we go through the long process of a potential conviction, a trial and a conviction, in those circumstances? It was set up that way because of the importance that was attached to the idea in our system of removing the president.
REP. LOFGREN: If I may, would you then say it's not inappropriate to weigh that the stock market may have an implication our economy, especially high tech, is oriented towards exports; that that might fall apart in the balancing of whether to move forward?
REP. HYDE: The gentlelady's time has expired.
REP. LOFGREN: Can he just say yes or no?
REP. HYDE: The gentleman from Indiana, Mr. Buyer.
REP. STEVE BUYER (R-IN): Thank you, Mr. Chairman. I have several questions. Let me ask each of the witnesses, how much notice did you have that you would be here testifying today?
MR. ACKERMAN (?): I had about 48 hours, something of that kind.
MR. WILENTZ (?): Saturday morning.
MR. KATZENBACH (?): Saturday.
REP. BUYER: Saturday?
MR. BEER: Monday, I think. Yesterday.
REP. BUYER: Yesterday you received notice that you would be a defense witness of the president?
MR. BEER: Yes, sir.
REP. BUYER: And who contacted each of you?
MR. ACKERMAN (?): I was contacted by the gentleman on my right.
MR. WILENTZ (?): Mr. Craig.
MR. KATZENBACH (?): Mr. Craig.
MR. BEER: I'm sorry, it was Sunday afternoon, but I was at such a huge cocktail party that I had (laughter) that I had to call Mr. Craig back Monday morning to find out what it was about. (Laughter.)
REP. BUYER: Were you invited to the cocktail party?
MR. BEER: I would have loved to have you there.
MR. : He gave the party. (Laughs.)
REP. BUYER: Let me all of you are here, it appears, hastily called to defend the president.
When the president spoke to the American people on August 17th, some of the president's comments in his attacks of Judge Starr were not taken very well by the American people. And I suppose now I'm sitting here as one who is very uncomfortable, Mr. Craig, that you would call a witness as part of the president's defense. So I view these witnesses as if the president were here speaking. This is his position. This is his defense in this case. And one of them has come here and said that if there are members of the 105th Congress who, based upon the reading of the law and the facts this is my summation of it believe that the president's conduct rises to the level of impeachment, then we are zealots, fanatics and cowards. Now, that type of name-calling by the president's defense is disappointing and demeaning to this proceeding. So I just wanted to make that comment to you, Mr. Craig.
Earlier you also, Mr. Craig, had mentioned about the witness tampering. And you said that at the time there was some questioning by Mr. McCollum with regard to Betty Currie. And you said, "Well, there was she was not on a witness list, nor was there a proceeding at the time."
I have Title 18, Section 1512 here, and I'm sure that you also have read it. This criminal statute very clearly says that for the purpose of this section, an official proceeding need not be pending or even about to be instituted at the time of an offense very clear. So I would just disagree with your reading of the law here.
I would also note and then I'd like for you to comment on this I believe that in my reading of the facts here, Mr. Craig, that the president endeavored to influence testimony of subordinates whom he knew to be potential witnesses in a federal criminal investigation, systematically lying to them, with the intent that they would relay these falsehoods to the federal grand jury.
Number one was John Podesta testified before the grand jury that on January 23rd, the president volunteered information to him concerning Miss Lewinsky, even though he had not asked for that information. Specifically, the president told them that he had not had a sexual sex with Miss Lewinsky. Mr. Podesta also said that the president told him when Miss Lewinsky came to the White House after she left her employment there, she came to see Miss Currie, that Miss Currie had always been present or nearby. Mr. Podesta testified that he believed the president.
Mr. Podesta testified also to the grand jury that he was present in the Oval Office on January 21st, together with Erskine Bowles and Sylvia Matthews, when the president told the three of them, quote, "I want you to know that I did not have sexual relationships with this woman, Monica Lewinsky. I did not ask anybody to lie. And when the truth comes out, you'll understand," end quote.
Mr. Bowles testified to the grand jury the president made these statements and that he believed the president.
Sidney Blumenthal testified before the grand jury that on January 21st the president relayed a conversation that Mr. Clinton had with Dick Morris, in which Mr. Morris speculated that President Nixon could have survived if he'd
REP. HYDE: The gentleman's time has expired.
The gentlelady from Texas, Ms. Jackson Lee.
REP. JACKSON LEE: Welcome back, Mr. Chairman. Thank you very much. And let me set on the record that I am sure my time will expire before I've had the opportunity to fully address the panel and to determine information that I think is vital.
However, might I just simply say and raise my continuing objection to the limited time that the president has had to present his case, and say as well to the panel that I appreciate I think it might have been the esteemed Mr. Katzenbach or Mr. Ackerman who have noted that this is a process of completeness. This is a process in which we have the ultimate act, the removal of a president. So there is a, in quotes, "prosecutorial process" of which we in the House sit, and there is then the trial process. So it is as a whole, and you cannot bifurcate and separate one process from the other.
Let me just note that under the Rodino committee, there were 17 days of hearings, some in executive session; that Mr. St. Clair had two days for an opening statement, two days for a closing; and likewise, let me also note that he was able to examine and cross- examine the witnesses. As Professor Beer has indicated, I hope that we do not fall to the idea that impeachment is a suitable activity for party politics.
With that, let me ask a series of questions that I will apologize for their brevity, asking you to be brief, because of the nature of the time.
It is important for me, Mr. Craig and I realize that I will have an opportunity to query Mr. Ruff. If you just give me a yes or no answer, I would appreciate it simply because I realize that I will be more pointed with Mr. Ruff.
First of all, I think we can acknowledge that the president has miss misled, rather, the American people. He said it, it has been said, and it has been noted. Do you so note today?
MR. CRAIG: Yes. Yes, ma'am.
REP. JACKSON LEE: Do you also note as well that you have an understanding, when we talk about fact witnesses and let me also say that as we sit as a prosecutorial body, as the Rodino committee sat, they called witnesses in essence to present their case. Since the movers in that instance were Democrats who moved for the impeachment of the president, they presented fact witnesses. In this instance, I would assume the movers of this action, the Republicans, would have likewise presented fact witnesses; and tragically, they are redundant in their accusations of who has called fact witnesses, but yet they have called none, and I don't understand that.
But I will ask you the question, do you have knowledge that Ms. Lewinsky had a diary?
MR. CRAIG: I understand that she did.
REP. JACKSON LEE: Do you have any knowledge of whether the president maintained a personal diary with his reflections, impressions and comments?
MR. CRAIG: I'm unaware of any such document. REP. JACKSON LEE: Is it your understanding that a diary that Ms. Lewinsky had may have had her reflections, impressions and comments?
MR. CRAIG: I would suppose it likely.
REP. JACKSON LEE: In the grand jury proceedings, as I understand, Ms. Lewinsky had such documents. And the American people, who have not viewed the grand jury proceedings as they are now viewing this, really have never been inside of a grand jury proceedings. It is interesting that the grand jurors to date have been silenced on any indictments, but as we know the information, there was questioning and determination of credibility of the witnesses. It is also my understanding that in that instance, Ms. Lewinsky could refer to her impressions and announcements and characterizations in that particular proceeding. You can just simply answer, in the grand jury I assume a witness can refer to documents that they might have.
MR. CRAIG: I think she testified twice in front of the grand jury and was interviewed by agents of the Office of Independent Counsel many, many times, 19 times.
REP. JACKSON LEE: And may have had the opportunity to refer to her documents.
With that in mind, Mr. Chairman, I would simply say you have here a question of the ability to determine credibility of witnesses, where one has been able to refer to written line-by-line definitions and characterizations, where another witness, such as the president, may have had to rely upon his mere recollection, which is that of a mere human being. Again, we go to the point of the whole question of credibility of witnesses.
Ms. Tripp are you familiar with a Linda Tripp, Mr. Craig? (Chuckles.)
MR. CRAIG: Yes, Congresswoman. (Chuckles.)
REP. JACKSON LEE: Do you have any knowledge of a personal vendetta by the White House against a Ms. Linda Tripp that might have caused any actions on that individual's part to protect herself?
MR. CRAIG: I know of no
REP. JACKSON LEE: Can I hear you more loudly, sir?
MR. CRAIG: I know of no such vendetta, Congresswoman.
REP. JACKSON LEE: Let me
REP. HYDE: The gentle lady's time has expired.
REP. JACKSON LEE: As I noted and I hope that one day
REP. HYDE: The gentleman from Tennessee
REP. JACKSON LEE: we will be able to hear the whole case.
REP. HYDE: Mr. Bryant.
REP. JACKSON LEE: Thank you, Mr. Chairman.
REP. ED BRYANT (R-TN): Thank you, Mr. Chairman.
As a reminder to all who might be watching this, that we have had a number of other professors from the history area, as well as law professors, who have disagreed with you gentlemen and your opinions, that this is this type of conduct is impeachable offenses. As a matter of fact, Mr. Dershowitz last week said that lying before a grand jury, in his opinion, was an impeachable offense.
I might also bring up this 400-signature letter that has been alluded to earlier. And in fact, one of you, gentlemen, had written the introduction to that, saying this was about historians speaking as historians.
Well, one of your colleagues in fact, two of your colleagues have the opposite view of that. And they say that this 400-signature statement is nothing of that kind. Rather it's an imposter: "It places a stamp of professional scholarship on what is at best a purely partisan political track." The only interesting question it raises is whether those responsible should be merely censured or impeached and removed from their professional chairs.
One of you mentioned that were we "to" quote "lower the standard" for impeachment, to such minor things as obstruction of justice and perjury, that the landscape would be littered over the last two centuries, with impeached presidents. But I don't recall any president ever being charged with or perjury, lying under oath to a grand jury. I don't recall any president ever being charged with obstruction of justice, tampering with witnesses and these kind of things, such as this president has.
And in reference to the two professors I mentioned a moment ago, they make, I think, a very strong statement that's contrary to the fact that we seem to be lowering the standards for impeachment, according to some of your opinions. They say that the precedent that we would set that we would establish is that presidents who commit these crimes let's talk about the president now against the system of law that they are sworn to faithfully execute will not be permitted to continue in office. If we don't impeach, in other words, do we really want to be at the mercy of future presidents who believe otherwise? So I think there's definitely a two-sided coin here.
And I want to also mention or ask Mr. Craig a couple of questions, I guess, while I've got some time. You are an attorney? You represent the president?
MR. CRAIG: Yes. Yes, sir.
REP. BRYANT: And as an attorney, you're bound by the applicable codes of professional ethics, and as an officer of the court, you would be called on to preserve the court's integrity, would you not?
MR. CRAIG: That's correct, Your Honor.
REP. BRYANT: With that in mind, I want to ask you, what do you believe is the difference between willful lying to a federal judge or grand jury, and willfully misleading a judge or federal grand jury?
MR. CRAIG: I think the criminal justice system is special. I think a grand jury investigation there is a gravity
REP. BRYANT: Okay, can you get specific, though? I've got a limit on my time.
MR. CRAIG: Well you asked me about the difference between a civil deposition, where a federal judge is presiding over a civil deposition I may not understand the question, Congressman, but I thought you asked me the difference between
REP. BRYANT: Well, my question is, what's the difference between willfully lying and willfully misleading? You seem to make a distinction there.
MR. CRAIG: Well, I'm making a distinction between the grand jury as opposed to the civil case. Is that not the question that you're asking? REP. BRYANT: No. All right. Let me be as simple as I can. I'm asking you what is your difference between willfully lying which I understand to be perjury and willfully misleading?
MR. CRAIG: I think that perjury is a word of art. It has definitions in the statute, it has elements of an offense that must be proven before a crime has been established. It includes a specific intent knowingly to
REP. BRYANT: You notice I used the word "willfully" the adjective "willfully" -- the adverb, I guess, "willfully" in front of each of those; so the intent is there. I understood the president intended to mislead, evade and give incomplete answers. He has said that; he wasn't going to volunteer information in that deposition because he felt her case was wrong.
MR. CRAIG: Congressman, let me just there is just one let me just give you one example of a distinction. A perjury defense is complete if you can show that the answer was specifically accurate and even narrowly accurate.
And absolute accuracy even if you disagree with the interpretation, if the question is ambiguous and there's a possible answer that can be accepted as truthful, that's a complete defense to a perjury prosecution.
REP. ROTHMAN: Okay, now let me ask you, do you
REP. HYDE: The gentleman's
MR. CRAIG: Let me tell you that you can be
REP. HYDE: The gentleman's time
MR. CRAIG: I'm sorry.
REP. HYDE: The gentleman's time has expired. The gentlelady from California, Ms. Waters.
REP. WATERS: Thank you so much, Mr. Chairman
REP. ROTHMAN: Mr. Chairman? Mr. Chairman, a parliamentary inquiry?
REP. HYDE: Yes, sir?
REP. ROTHMAN: I seem to recall when the chair last presided over the previous panel and a question was asked of a witness
REP. HYDE: You are absolutely right. I was much more liberal and I made the announcement today because, frankly, people at your end of the table and at this end of the table never get to ask questions, and we have it consumes over three hours for under the strict five-minute rule to move to get the members' questioning. Now, we have a large panel. Considering the entire day, I would like members to get a chance to ask questions.
REP. ROTHMAN: But Mr. Chairman
REP. HYDE: So therefore, I
REP. ROTHMAN: Not to let the witness finish his answer, I think, especially, coincidentally when it's the president's counsel bringing its defense, strikes me as inherently unfair, since this process started months ago, and this is a new practice for the chair. May I respectfully request that the chair adopt MS. WATERS: Will the gentleman yield?
REP. ROTHMAN: its previous practice, when the Republican majority called witnesses, to let the experts finish their answers
MS. WATERS: Will the gentleman yield?
REP. HYDE: Well, Mr. Rothman Mr. Rothman, that's unfair. I was as liberal for witnesses, Republican or Democrat
REP. ROTHMAN: Yes, you were, but why not today, sir?
REP. HYDE: Because we have a plethora, a swarm of witnesses. We have a lot of members who would like the opportunity to ask questions. And that's my way of doing it. Everyone treated alike, you, Ms. Jackson-Lee, Mr. Bryant, Mr. Barr I'm trying to get through the day without going into past midnight. So, I would appreciate the gentleman's cooperation.
REP. ROTHMAN: I'm speaking of fairness to the witnesses, Mr. Chairman, not the panel. Not our members.
REP. HYDE: Who who is making a yes, Mr. Scott?
REP. SCOTT: Mr. Chairman, will the witnesses, at the end of the questions, be given an opportunity to give the answers they would have
REP. HYDE: Yes, I try to use my judgment; I thought I was following
REP. SCOTT: Well, Mr. Chairman let me finish the question.
REP. HYDE: Please, please let me respond to your remark.
REP. SCOTT: I haven't made the remark.
REP. HYDE: Okay, Mr. who is next?
REP. SCOTT: Mr. Chairman, could I make the remark?
REP. HYDE: Well, if you have a remark to make, yes.
REP. SCOTT: Just very brief. At the end of all of the questioning, could they have an opportunity to answer some of the questions they might answers that they might not have given to because of strict way that it's being handled, so that they get two or three minutes to go through all the questions, answers that they might have given, after everyone has had an opportunity?
REP. HYDE: I thank the gentleman. Ms. Waters?
MS. WATERS: Are you going to start my time over?
REP. HYDE: Yes, we'll start your time over.
REP. WATERS: Thank you.
Mr. Hyde, you're not going to like this, but since there's so much talk about lying, I'm going to read what you said about it in 1987, when President Reagan and his top national security advisers were accused of lying to Congress and the public about their secret arms sales to a terrorist state. "It was Hyde who argued forcefully for a more nuanced view of lies and deception. 'Lying is wrong,' he said, 'but context counts.'"
REP. HYDE: Right.
REP. WATERS: So I agree with Mr. Hyde on that.
Let me just say that I think the most important thing that will come out of this hearing today is the time that this Congress is going to be tied up in dealing with this impeachment. I've long since decided that the pettiness that we're dealing with does not deserve this kind of attention. It doesn't many a difference whether or not it was a little bit shaded when the president talked about being alone or the hatpin or the T-shirt. I think this Congress needs to get on with the business of this country.
Mr. Hyde and members of the Republican Party told the nation they were going to speed this thing up, they were going to do it quickly, they were going to hand the nation, in essence, a Christmas present and get it behind us. November 3rd elections even today the polls show the American people are saying they do not want to impeach the president.
I think the most important point that's been made here today by Professor Ackerman is, first of all, this should not spill over into the 106th Congress and that the president probably, if it does, can have a motion to squash. I'm thinking about all of the new members who will be coming on to this committee and thank God some of the members of this committee will be gone -- (soft laughter) it seems to me they will have a cause of action themselves, because it's not just a matter of what's on the floor, it's a matter of starting all over again. Everything in the 105th Congress will be dead. The members who will serve on the Judiciary Committee who have not been involved in these hearings have a right to be involved and to have their say. And new members should certainly make an issue of that.
So if we envision going back again in the 106th Congress through the committee process, back to the floor, even to try and get to the Senate, with a different makeup of Congress, where some members even on the other side of the aisle will not be so inclined, what are we talking about in terms of a time frame? Even if it goes on to the Senate and they hold a trial, and the Supreme Court will have to stop in the middle of that on a motion to squash, and there will be motions, perhaps, by the members, what are we talking about? And what do we do, God forbid, if in fact we have to take an action against Saddam Hussein, if, in fact, we have to take actions against nations who are poised to use nuclear power?
Mr. Ackerman, let's talk about this time frame.
Can we be tied up for another year in this mess?
MR. ACKERMAN: Definitely. What the Constitution but it's for a reason. What the Constitution the reason is that this is a tremendously important thing. It's very rare. It's only when things are really serious that impeachment is justified. And if a lame-duck Congress wants to impeach, it cannot expect that its judgment will simply be accepted by the chief justice of the United States or the next House of Representatives, who have
REP. WATERS: Possibly even before they would sit in action on the Senate, you would have a Supreme Court matter that would have to be dealt with on a motion to squash. Mr. Craig, do you think that that's reasonable, that the president may want to challenge that if, in fact, this continues? Maybe that's an unfair question, but I'm trying to get the American public to understand, this quick, down and dirty hearing that we're supposed to be doing, these articles of impeachment, are not going to be so quick.
MR. CRAIG: Congresswoman, I would only point out that the argument has meaning only in the context of the 105th voting articles of impeachment out. And I would just hope that wisdom would prevail and such articles of impeachment would not be voted out of the House of Representatives.
REP. HYDE: Mr. Chabot of Ohio.
REP. STEVE CHABOT (R-OH): Thank you, Mr. Chairman.
Professor Wilentz, I want to quote from your opening statement. You stated that any representative who votes in favor of impeachment but who is not absolutely convinced that the president may have committed impeachable offenses not merely crimes or misdemeanors, but high crimes and misdemeanors will be fairly accused of gross dereliction of duty and earn the condemnation of history. You stated that.
MR. WILENTZ: I did.
REP. CHABOT: And I agree with you. Wouldn't it be fair, however, to also include that any representative who votes against impeachment but who is convinced that the president may have committed impeachable offenses not merely crimes and misdemeanors, but high crimes and misdemeanors will be fairly accused of gross dereliction of duty and also earn the condemnation of history? MR. WILENTZ: Absolutely.
REP. CHABOT: Thank you.
Over the last several weeks, we've heard from many witnesses discussing what constitutes an impeachable offense. The one thing that they all seem to agree on is that reasonable people can reach different conclusions.
So the testimony before us today does not represent all thought on this important issue; it represents merely the thought of this particular panel.
For example, I strongly believe that perjury is a crime against the state and can constitute an impeachable offense. In fact, we know that perjury was directly described as a high misdemeanor at its inception. This has been supported by many constitutional scholars that have testified before this very committee.
Now, because most of the witnesses before us today cannot address the facts of this case, I'll turn my questions at this time to Mr. Craig.
Mr. Craig, you've stated that you do not dispute the testimony of Mrs. Currie; is that correct?
MR. CRAIG: That's correct.
REP. CHABOT: Now, the president has admitted that following his deposition in the Jones case, he contacted Betty Currie and asked to meet with her the following morning. According to Mrs. Currie's grand jury testimony, the president wanted her to agree with a series of statements that he made during the meeting. Currie said that they were more like statements than questions. According to Mrs. Currie, the president made statements like, "You were always there when she was there" meaning Monica Lewinsky "right?" "We were never really alone." And, "You could see and hear everything, right?"
Now, Mr. Craig, isn't it true that the president was trying to influence the testimony of Betty Currie, because he knew that she might be called to give testimony in a federal judicial proceeding? Isn't that correct?
MR. CRAIG: Congressman, I've actually, I think, responded to this question earlier before, and I disagree, respectfully, with your interpretation of those events. Let me just say that I hope you will read the document that we're going to be submitting to you today and
REP. CHABOT: Well, I certainly will read that. But don't you think that the president, by his statement to Ms. Currie, was trying to influence her testimony, and wasn't that illegal?
MR. CRAIG: I do not. I do not believe that he was trying to influence her testimony. She was not going to testify
REP. CHABOT: You do not believe that that constituted witness tampering?
MR. CRAIG: There was no witness tampering that was going on there, Congressman. There was no proceeding that could contemplate that she was going to be called. There was no reason for him to believe that either the OIC or the Jones people would be calling her as a witness. And
REP. CHABOT: It was a very don't you think it would have been relevant whether or not she and Lewinsky were or the president and Lewinsky were together, whether they were alone; wouldn't that be relevant to the ongoing testimony and investigation?
MR. CRAIG: Yes. But the question is whether he was tampering with the witness, Congressman. I would urge you to raise this again when Mr.
REP. CHABOT: Let me just ask you one final question, because my time is running out.
MR. CRAIG: Can I finish my I'd like to finish.
REP. HYDE: Mr. Chabot, let him answer.
REP. CHABOT: Yeah, I did, Mr. Chairman.
MR. CRAIG: I'm trying to be constructive and I'm trying to be helpful, and I'm trying, in fact, to deal with the facts.
I would urge you to raise this, Congressman, with Mr. Ruff, again after you've had a chance to see all the evidence that we present to you, that we try to explain what happened, how it happened, and how it fits into the law. I think you might well agree
REP. CHABOT: We'll all be looking at that with great interest.
MR. CRAIG: I think you might well be convinced that there could not have been any tampering of a witness here with respect to Betty Currie.
REP. CHABOT: We'll look at that with great interest.
MR. CRAIG: Thank you.
REP. CHABOT: And I appreciate your testimony here this morning.
Yield back.
REP. HYDE: I thank the gentleman.
The distinguished gentleman from Massachusetts, Mr. Meehan.
REP. MARTIN MEEHAN (D-MA): Thank you, Mr. Chairman.
And I would like to thank each member for coming before the committee and providing your testimony. I can imagine that given your perspective on this matter, that it can be frustrating to testify before this committee because it is a forgone conclusion that the majority of the members of this committee, on Saturday, will take the incredibly historic step of voting Articles of Impeachment to impeach this president. And there is not a constitutional case that any of you can provide before this committee that would change that; there isn't a historical precedent that any member of this distinguished body testifying before the committee that could change that.
Mr. Craig, I don't think that there's a fact that's in other parts of the testimony before the grand jury that you could present to this committee that would change that fact. In fact, there's nothing that any of you witnesses here today could say to this committee that would prevent the majority of this committee from voting to impeach the president of the United States on Saturday afternoon.
But your testimony is important. It's important that the American public understand the gravity of what we face. It's important that the 20 to 30 Republican members of Congress who truly have an open mind and are weighing the gravity of what's before our country, that they watch your testimony and see your testimony, because the will of the American people is about to be ignored in the hope that the people won't care enough to say anything about it.
Now, Attorney General Katzenbach, you've spoken about the will of the American people. As of today, 65 to 70 percent of the American people oppose impeachment. So it's hardly surprising that the members of Congress who are going to vote to impeach on Saturday have been telling us that public opinion and public consensus indeed, the public interest play no part whatsoever in this critically important impeachment process. Do you agree with this perspective on the role of public consensus in the impeachment process?
MR. KATZENBACH: No, I do not, Congressman. In fact, it seems to me unusual and very important that the American people feel the way they feel about the office of the presidency. It's a vital fact, and it would seem to those who wish to ignore might remember a quote from Bertolt Brecht, which I'll paraphrase, saying maybe we should elect a new public. (Scattered laughter.)
REP. MEEHAN: Well, I would hope that and one of the reasons why I think your testimony is important is because I don't think as my colleague from California mentioned, I don't think Americans have been focused on this. They think the election ended all of this, and they think we're just going through the motions to finish this up by the end of the year and then we'll go on with governing the country in January. But that isn't the case at all.
MR. KATZENBACH: As indeed it should happen.
REP. MEEHAN: And it should happen. But the reality is, this committee will vote to impeach the president on Saturday.
Now I'm struck not so much by the cases where the committee this committee or the House as a whole decided to impeach that is, Watergate and the Andrew Johnson case but also I'm struck by the cases where we failed to even commence an impeachment inquiry. Now I'm talking about such examples as the Iran-contra scandal or, to put it in a bipartisan perspective, President Johnson's deception about the Gulf of Tonkin incident in 1964, both of which went to the very core of the exercise of presidential power and at least threatened serious consequences for the country.
Now what does the failure to impeach in those instances tell us about whether we should impeach this president, Professor Ackerman?
MR. ACKERMAN: Well, this is a central concern, because if you your committee goes forward and impeaches President Clinton, the next time the political wheel turns, and we have a Democratic Congress and a Republican president, will the Democratic Congress show the kind of restraint that it showed in the case of Iran-contra? Well, I myself will be here saying you should. (Chuckles.) But will they? Will they?
This cycle of incivility, once it begins, will very, very quickly run out of control. That's why this is a tremendously important precedent.
And Congressman Meehan, what you were saying before is another way of saying this is a lame-duck Congress out of touch with popular opinion. And if there is a reasonable disagreement which I agree, of course as to the standards for impeachment, all the more reason that a lame-duck Congress should not be making this decision.
REP. HYDE: The gentleman's time has expired.
The gentleman from Georgia, Mr. Barr. Mr. Barr, would you be generous enough to yield me 30 seconds?
REP. BOB BARR (R-GA): Certainly.
REP. HYDE: I would just like to comment to Mr. Katzenbach, your great line from Bertolt Brecht about maybe we need to elect a better public or a new public I was reminded by counsel of Lester Maddox' statement about what's wrong with the prisons; we need a better class of prisoners. (Laughter.) Anyway, thank you.
Thank you, Mr. Barr, for letting me indulge myself.
REP. BARR: Yes, sir.
Mr. Craig, one of the faults of the White House, I think, is that they have a tendency maybe this president personally, perhaps to break out the champagne or light up the victory cigar a little bit early sometimes. And I was hoping that that wouldn't be the case, but your remarks today in one particular area among, perhaps, others leads me to believe that y'all still need to be a little bit careful. You keep saying and you said it in your remarks today, and others who are defending the president keep saying that Mr. Starr has cleared the president on Whitewater. That is not the case. And if you will read his testimony before the Congress, I think you will readily see that that is not the case. He says very clearly with regard to his exposition on Whitewater and his remarks before this committee and in particular regarding Mr. Hubbell that that case remains open, that there remain very troubling questions about it.
So I understand that in your zeal to defend the president, you would like it to become the reality that Whitewater has gone away, but it really hasn't. That remains an open case. When you have talked several times today, both in your remarks as well as in responses to questions by members of the panel today, you kept using the words "evasive" and "misleading." Somewhere in the recesses of my memory as a prosecutor, those rang a bell, and I went back to the criminal code, and indeed I found why those rang a bell. They are the words that are used in both Section 1512 of Title 18, the criminal code, and that is tampering with witnesses, that my colleague from Ohio was talking about, as well as in the definitions that relate to prosecutions under Title 18, Section 1512.
And they talk specifically in terms of misleading conduct, and I think if you will, in the same way that you urged Mr. Chabot to read the material that you're going to present later, I would urge you to go back and read material that is already there and that is Title XVIII of the United States code.
I believe, in fact, the president very clearly has met both the definitional standard for misleading conduct as well as the other elements of tampering with witnesses, and we don't need to go into those over and over again, at least we don't here today we will in the articles of impeachment, I suspect. But it may be satisfactory to your defense of the president in your mind that evasive and misleading answers regarding possible tampering with witnesses, tampering with evidence, and so forth, exonerates the president perhaps in the same way that you think that he's been exonerated on Whitewater but the law is quite different. The law is very specific and misleading conduct, which includes misleading statements and so forth, are very much contrary to the law, and, I believe, would provide a proper basis for an article of impeachment.
I'd like to read to you on another matter, or refer you to, grand jury testimony or grand jury statements when Mr. Blumenthal, Sidney Blumenthal, testified before the federal grand jury the final time on June 25th of this year. The foreperson of the grand jury took the very unusual step of chastising Mr. Blumenthal because after an earlier appearance before that same grand jury, he deliberately misrepresented what had gone on in that grand jury. And then when he was subsequently called back before the grand jury, he was chastised directly, on page 69 of that grand jury transcript, by the foreperson of the grand jury.
We all know, because it was also testified to under oath that Mr. Blumenthal was hired by the president. Has the president fired Sidney Blumenthal, and why hasn't he, particularly in light of the fact that he has deliberately misrepresented the work of the grand jury?
MR. CRAIG: Congressman, I came here to testify about issues involving
REP. BARR: Has Mr. Blumenthal been fired, or is he still on the public payroll?
MR. CRAIG: Of course he has not. Of course he has not. I understand that Mr. Blumenthal and his lawyer have disagreed with the interpretation and the statements of the forelady as to REP. BARR: Apparently, you and the president do not.
MR. CRAIG: This is a matter, I think, that should be resolved between Mr. Blumenthal and his attorney and those who speak
REP. BARR: Well, it might be nice in your mind
MR. CRAIG: I'd like to finish. May I?
REP. BARR: to compartmentalize these things, but I think it also indicates that you are not here today to provide complete and truthful without any sort of trivialization context answers today.
REP. HYDE: The gentleman's time has expired.
The gentleman from Massachusetts, Mr. Delahunt.
REP. WILLIAM DELAHUNT (D-MA): Yes, thank you, Mr. Chairman.
You know, earlier my friend and colleague from North Carolina, Mr. Coble, raised the issue of censure, and the response I think he framed it in terms of a censure, rebuke, reprimand, condemnation, whatever, plus a fine. And I don't want to leave that particular issue in terms of I know or I think it's well known that myself and other members of this committee, Democrats, intend to raise that issue during the markup. And I would just simply and I'm going to direct this question to everyone but Mr. Craig, and maybe one of you will take it.
There is historical precedent for censure, and I suggest it would not be meaningless. I suggest it would be constitutional. I suggest that we did have a hearing on this matter; it was raised during a subcommittee chaired by the gentleman from Florida, Mr. Canady. I want you to know that I surveyed those 19 scholars by way of a questionnaire. The majority of those scholars indicated that it was constitutional and would be appropriate for this committee to consider. I would like to hear any disagreement or agreement from any member of the panel, as to those statements I just made.
MR. WILENTZ: I agree that censure there's no constitutional problem about censure. Censure is not a meaningless thing. For example, the Senate's censure of Senator McCarthy in the 1950s was a very significant act that crystallized the moral sentiment of the nation. I do believe, however, that a fine is a bill of attainder.
REP. DELAHUNT: Fine. Professor?
MR. ACKERMAN: I'm not crazy about censuring a president, as opposed to a senator; I'm not crazy about it for the reasons that Andrew Jackson stated in 1834, that it raises the possibility of a kind of danger to the separation of powers. However, that's a principle above and beyond the Constitution.
There is no constitutional bar to censure. Anyone who proposes that has simply not read the Constitution clearly enough, because there's simply no bar to it anywhere there. You may censure by resolution anyone you care to, just as you can pass a resolution on virtually anything under the sun.
REP. DELAHUNT: Mmm-hmm. You know, there has been I'm going to direct this to Mr. Craig there's been, in response to the question by the gentleman from South Carolina, Mr. Inglis and he was suggesting that when the American when the president appeared on TV and spoke to the American people, that he misled and in fact he did lie to the American people, let me just state that we have had previous American presidents I think my colleague to my right referred to Lyndon Johnson, in terms of the Gulf of Tonkin resolution during the course of our history we've seen President Eisenhower lie to the American people about the U-2 incident. President Franklin Roosevelt lied regarding Lend-Lease. It's been suggested very strongly that both Presidents Reagan and Bush have lied to the American people regarding Iran-contra.
I would suggest and I can understand, in legal proceedings such as civil depositions or grand jury hearings proceedings, that legalisms and legalistic language are absolutely important when one feels that they are being unfairly treated or improperly prosecuted. At the same time, Mr. Craig, I would suggest that the American people do believe that the president of the United States on that occasion lied to them. And I would suggest that he should be censured for that particular occasion and that I would urge you to go and discuss that matter with the president.
REP. HYDE: I thank the gentleman. The gentleman's time has expired.
The gentleman from Tennessee, Mr. Jenkins.
REP. BILL JENKINS (R-TN): Thank you, Mr. Chairman.
Professor Wilentz, I have listened to the entire panel, listened carefully to your testimony. Now not one panelist, save perhaps the president's counsel, has refuted any facts that are before this committee in this case. And in your case and in your testimony, you did not refute one fact about the allegations of perjury that are before us, about the allegations of obstruction of justice that are for us before us, or about the allegation of the abuse of power.
So we need to we need to remember, at least here this morning, that what we are dealing in and what you came armed with is a bunch of opinions. and like they say back in Tennessee, everybody's got those. But you will agree with all those statements, will you not?
MR. WILENTZ: Except for the last one. There is a difference between opinion and scholarship. Anybody can have an opinion. What I reported here has to do with scholarship, which
REP. JENKINS: Well, if there are learned opinions to the contrary, then they would balance one another out as far as this committee is concerned. Is that correct?
MR. WILENTZ: Oh, I should hope not. I don't think they balance themselves out at all. I think that the opinions expressed here by a far larger number of historians for example than any that have come up to stand up for the opposite view is absolutely clear. There is not an equal division among historians about whether these charges are raised to an impeachable offense. It's absolutely clear the majority of American historians believe that they do not on the grounds of their understanding of the Constitution.
REP. JENKINS: Well, at any rate, you
MR. WILENTZ: There are disagreements. The question
REP. JENKINS: But at any rate, you voiced your opinions here this morning.
MR. WILENTZ: I voiced my scholarly
REP. JENKINS: And you also voiced an opinion that anybody who voted for impeachment was going to be guilty of gross dereliction of duty
MR. WILENTZ: I did not.
REP. JENKINS: and condemned by history.
MR. WILENTZ: I said nothing of the kind.
REP. JENKINS: You did not?
MR. WILENTZ: I said nothing of the kind. REP. JENKINS: What did you say in that regard?
MR. WILENTZ: I did say that anyone who voted for impeachment who was not absolutely clear in his or her mind that the president may have committed an impeachaense that would be gross dereliction of duty
REP. JENKINS: All right, so if one holds that sincere belief, then he would not be guilty of
MR. WILENTZ: Absolutely. Absolutely. I
REP. JENKINS: But anybody who votes
MR. WILENTZ: sincerely believe as I take many of the members of this committee who sincerely believe that the president has committed an impeachable offenses and you have you would be derelict if you did not vote for impeachment.
REP. JENKINS: And I believe you told Mr. Chabot that anybody who voted no who held those sincere beliefs would be similarly guilty of gross dereliction.
MR. WILENTZ: Anybody who believes the president has committed an impeachable offense and votes against impeachment is similarly derelict absolutely.
REP. JENKINS: Now, you testified that at least some perjury can be an impeachable offense is that correct?
MR. WILENTZ: I did.
REP. JENKINS: And you made some effort to distinguish those types of perjury, and distinguish one type of perjury from another.
MR. WILENTZ: Mmm-hmm. (In acknowledgement.)
REP. JENKINS: Now, my question is where can you show us in the statutes where can you show us in the law of this land that there are degrees or classes of perjury? Where can you show us from the statutes?
MR. WILENTZ: I am not an expert. I am not a lawyer. So I cannot point to the statutes with the clarity that you can.
REP. JENKINS: Well, you had an opinion
MR. WILENTZ: Oh, sure
REP. JENKINS: that there are different classes of perjury.
MR. WILENTZ: Sure, yes, yes, absolutely, but it has nothing to do with the character of the statutes. It has to do with an understanding of how the Framers of the Constitution understood what were impeachable offenses or not. Under those under that under the Constitution it's fairly clear that there are crimes that are impeachable offenses and those that aren't, and perjury in every instance is not. Only those examples of perjury which actually attack the vitals of the state, the vitals of our political system, to me, is an impeachable offense, and I base that on my reading of the Constitutional Conventional of 1787, the writings of the Framers, and the Constitution itself. That's the point.
REP. JENKINS: Can you provide
MR. WILENTZ: Not the question
REP. JENKINS: Can you provide this committee with those distinctions made in that Constitutional Convention?
MR. WILENTZ: Sure. George Mason made it very clear when he proposed high crimes and misdemeanors, following bribery and treason. He proposed the wording was "crimes against the state"
REP. JENKINS: Well, I'm asking about perjury.
REP. HYDE: The gentleman's time has expired.
REP. JENKINS: All right.
REP. HYDE: The gentleman
REP. JENKINS: Mr. Chairman
REP. HYDE: The gentleman from Florida, Mr. Wexler.
REP. WEXLER: Thank you, Mr. Chairman. I am struck by each committee hearing that we have how more and more this committee becomes out of touch with the American people and with what the American people care about, and even with what the American people see as the offense by the president in regard to this whole national trauma.
And I think the questions today that best illustrate how out of touch this committee is with the American people are the two kinds of questions that are often put and have been put to Mr. Craig today. And that is why, Mr. Craig, as the president's lawyer, haven't you put forth evidence, put forth testimony as to why the president didn't perjure himself regarding his testimony with respect to Monica Lewinsky? And a corollary issue. And that is why, Mr. Craig, or do you, Mr. Craig, believe the president, or do you believe Monica Lewinsky when they both said the characteristics of their relationship? And I believe Mr. Craig's answers today basically said, respectfully, I believe the president. But I think what the American people are saying, which I think is much more pertinent to this hearing, is, Who cares? Who cares where the president did or did not touch Ms. Lewinsky? Not because they don't care about lying, but they understand that an impeachment inquiry should not be determined by whether or not Ms. Lewinsky lied or the president lied or whether they both lied about where the president may or may not have touched her.
So in that regard I think Congressman Meehan's comments couldn't be more pertinent. This committee's conclusion is a forgone conclusion. This committee will vote out at least one count of impeachment. That's a done deal.
But for those Republicans, if there are some, and I hope and believe and pray that there are, that still have an open mind, would Professor Wilentz or Professor Ackerman talk to them? Talk to them about what a Senate trial is going to look like. I have this vision of Senator Hatch asking Monica Lewinsky, or our esteemed chairman asking Monica Lewinsky about the specifics of their relationship or her relationship with the president, and that being determinative of a perjury count! Would you speak to the American people about what that Senate trial is going to look like please?
MR. ACKERMAN: You want me to?
REP. WEXLER: Either one, either gentleman.
MR. ACKERMAN: Well, one should first know that at the trial of Andrew Johnson no senator asked any questions. All questions were asked by the managers of the House, and the Senate was mute mum in a very solemn situation here which I would expect would go on for many, many months. One of the more interesting phenomenon would be to see how the senators manage this burden of silence. (Laughter.) But this is nothing like we have ever seen. I must tell you that it's only my someone had asked me before whether when I was asked to testify. The answer is Saturday. But I've been studying impeachments for many, many years. And I literally tell the American people you have no idea of what the Senate trial is going to look like. It will disrupt the nation's business I would expect for a year.
REP. WEXLER: Disrupt the nation's business for a year?
MR. ACKERMAN: Yes.
REP. WEXLER: Would you agree with that, Professor Wilentz?
MR. WILENTZ: I would. And also look around. I mean, in 1868 there weren't the photographers and the film crews and the TV cameras and the media circus that surrounds that's been surrounding this proceeding from the beginning. It's gone beyond the question of simply what's going to happen in the room. It is what goes on throughout the country. And that to me is almost as dangerous as what is going on here in this chamber. And that's a vast difference in 1868. If 1868 was like a pebble in the pond, this is going to be like a boulder thrown into the pond.
REP. WEXLER: Thank you.
REP. HYDE: The gentleman from Arkansas, Mr. Hutchinson.
REP. HUTCHINSON: Thank you, Mr. Chairman.
First of all, Mr. Craig, you mentioned the concern about specificity in regard to the perjury charges. I just wanted to let you know what's in my mind in regard to the perjury allegations. Most of those are all set forth in the Starr referral in the allegations of perjury that are contained in there, both the grand jury and the civil deposition. But in addition I wanted to alert you to an area that I do not believe is mentioned in the Starr referral, and that is in the deposition testimony of the president in the Paula Jones case. And I can't give you the page citation, but the statement is by the president, "Because, Mr. Bennett, in my life time I have never sexually harassed a woman." And I just wanted to alert you and put you on notice that that statement is of concern to me in terms of the perjury allegation, and that's something that might should be addressed.
MR. CRAIG: Could I make just one comment? A helpful comment, I hope. I would hope, Congressman, that when you bring forward these questions tomorrow afternoon that you don't rely on the characterizations in the Starr referral for the president's testimony, that you've got some specificity as to what the president actually testified.
REP. HUTCHINSON: I've done my own independent review. I have my concerns. And I wanted to alert you that this is a new area that was not mentioned in the Starr referral, and I wanted to give you the courtesy of that notice.
MR. CRAIG: Thank you, Congressman.
REP. HUTCHINSON: In another area, in response to questions by Mr. Chabot, you indicated the president had no reason to believe that the OIC or the Jones attorney would call Betty Currie as a witness. Therefore, she was not in a position to be tampered with. But I just wanted to alert you to the deposition testimony of the president in which the name Betty Currie was mentioned roughly over 20 times. And, in fact, there was a statement by the president at that time, in reference to Betty Currie, that "Those are questions you'd have to ask her."
And so was not the gauntlet sort of set down by the president that Betty Currie is a relevant witness? He even said, "You need to question her." And then, subsequent to that, he goes back to Betty Currie and goes through that series of questions that every lawyer and every lay person would have some concern that's not tampering, coaching, particularly when you're talking about a president of the United States with a subordinate employee. And so that's a concern of mine. And I think that there is a notice there, would you agree, that the president fully was aware that she would likely be a witness to the OIC lawyers?
MR. CRAIG: Well, I disagree with the premise that she was likely to be a witness. In the president's mind, he had no idea that the OIC at that point was conducting an investigation that might include Betty Currie as a witness. And so if you're talking
REP. HUTCHINSON: Certainly a relevant
MR. CRAIG: Congressman, if you're talking about his state of mind, which is an important element in the category of crime that you're talking about, that element was certainly not there at that time. And I would hope you would raise this issue after you've had a chance to take a look at our presentation.
REP. HUTCHINSON: That is of great concern to me. A third area that I wanted to ask you about is the response of the president to the Starr referral. And in that response, in conclusion number eight, at the very beginning of the executive summary, it states, "The president has admitted he had an improper sexual relationship with Ms. Lewinsky." Can you point to any testimony of the president under oath in which he admitted to an improper sexual relationship with Ms. Lewinsky?
MR. CRAIG: I think it's clear his testimony in front of the grand jury, Congressman, is tantamount to admitting that he had an inappropriate intimate sexual relationship with Ms. Lewinsky.
REP. HUTCHINSON: The language that he used to the grand jury was that he had an inappropriate intimate relationship with Ms. Lewinsky. Is that the correct language that the president used?
MR. CRAIG: I think it's clear what he was testifying about, and certainly the American people
REP. HUTCHINSON: Well, just a moment. Don't give me word games.
MR. CRAIG: That is the language. The record speaks for itself.
REP. HUTCHINSON: Is that not the precise language that was used? The president was very careful in his words that it was an inappropriate intimate relationship.
MR. CRAIG: Which yes, you're right, Congressman.
REP. HUTCHINSON: He was careful to stay away from "sexual relationship," because if he said "sexual relationship," it would have been totally inconsistent with his previous testimony. And yet the lawyers come out and say the president has admitted he had an improper sexual relationship with Ms. Lewinsky, and there's no proof in the record to support what the lawyers are saying. Correct?
REP. HYDE: The gentleman's time has expired. The distinguished gentleman from New Jersey, Mr. Rothman.
REP. STEVE ROTHMAN (D-NJ): Thank you, Mr. Chairman. I'd like to make two brief comments and then ask a question. With regards to the rule of law, which we all care about, isn't it a fact that if the president, President Clinton, has violated the law, that not even he, the president, can get away with it?
President Clinton can be sued civilly and criminally for any conduct at issue. He is not above the rule of law. We can hold him to the law. Therefore, no matter what decision this committee or this Congress makes about impeaching President Clinton, the world will know and our children will know that the rule of law does exist and does apply in America to every American, even the president, because the president can always be sued civilly and criminally for his conduct.
But what we're talking about here is whether additionally, as another punishment, if you will, the president should be impeached and removed from office. And on that, the Constitution provides us the standard of treason, bribery or other high crimes and misdemeanors. And we'll be faced with impeaching the president for only the second time in our history and removing a president for the first time in our more than 200-year history.
I want to address the business about the 81 questions and about contrition, because everyone says how evasive the answers to the 81 questions were. Let me read you, because not all my constituents had a chance to read the president's answers, a little bit of what he said. Here's what the president said. "The fact that there is a legal defense to the various allegations cannot obscure the hard truth. As I" the president says "As I have said repeatedly, my conduct was wrong. It was also wrong to mislead people about what happened. And I deeply regret it."
That's what President Clinton said in his answers to the 81 questions. He used the word and admitted misleading four times. He apologized in the 81 answers three times. He said he regretted what he had done once more in the 81 answers. So if you're looking for contrition in the 81 answers, my friends, it was there if you only look for it.
Now, here's my question, the question for Professor Ackerman. If, in fact, despite your belief as to what should happen, the lame- duck Congress's actions are accepted by the new Congress, can the speaker of the new House alone, without a vote of the Congress, appoint the impeachment managers?
MR. ACKERMAN: No.
REP. ROTHMAN: And why do you say that?
MR. ACKERMAN: This is a most solemn decision by the House to proceed with this inquiry. It would be an extraordinary abuse of the House for a single person to take upon himself this responsibility, especially when, if he did it by himself, this would indicate that he didn't have a majority vote, because obviously anyone who did have a majority vote would put this matter up to the House.
REP. ROTHMAN: Do you or any other member of the panel have any precedent or constitutional basis for that answer?
MR. ACKERMAN: Yes.
REP. ROTHMAN: Please provide it. MR. ACKERMAN: That is to say that in the impeachment of Andrew Johnson, the managers were selected by the House.
REP. ROTHMAN: By a vote of the House of Representatives?
MR. ACKERMAN: Yes, yes.
REP. ROTHMAN: Thank you. I'll yield back.
REP. HYDE: I thank the gentleman. The gentleman from Indiana, Mr. Pease.
REP. ED PEASE (R-IN): Thank you, Mr. Chairman. I have a couple of questions and a brief thought. Professor Ackerman, when presentation was made this morning on standards for impeachment and there was some discussion about whether perjury or related crimes of truthfulness under oath were considered that even if we accept if we accepted that standard as a standard for impeachment, that the history of the last 60 years, since the adoption of the 20th Amendment, would be "littered with bills of impeachment" your words. Can you, either today or at some point, provide us those examples of presidents or judges or vice presidents who lied under oath and were not subject to consideration for articles of impeachment?
MR. ACKERMAN: One should remember that lying under oath is not the only high crime and misdemeanor. There are many other activities of presidents of the United States. For example, to choose a very striking example, Franklin Roosevelt's abuse of his authority in the lend-lease matter
REP. PEASE: I understand the point. My question, Professor Ackerman
MR. ACKERMAN: but which also would be a high crime and misdemeanor. So what I meant was, when I said it would be littered with impeachments, if we have a relatively low standard of impeachment, there are many questionable things that people in good faith would think rise to the level of high crime and misdemeanor. And it's that which would be this engine of continuing
REP. PEASE: I appreciate your clarification, because I understood you to say that if lying under oath was the standard, that our history would be littered. And that was not your intention.
MR. ACKERMAN: Thank you.
REP. PEASE: Thank you. Mr. Katzenbach, you discussed, particularly with regard to the Andrew Johnson impeachment, your understanding that high crimes and misdemeanors were at least in part determined by the public's understanding that the official was no longer able to continue effectively in office. Did I understand you correctly in that?
MR. KATZENBACH: Let me rephrase it
REP. PEASE: Please.
MR. KATZENBACH: so that we are at least on the same wavelength. I believe that when you have an unpopular president, there is a question when the public believes that he ought to be impeached, as well as the House believes he ought to be impeached, that it is very difficult to separate out the conduct for which he is being impeached from the fact that he's very unpopular.
What you have in this situation today is an absolutely unprecedented thing, as far as I know. And any historian can correct me. But here you have a president acknowledged by the public of all of the facts that you've been raising, most of which I think are totally irrelevant, and the question as to whether or not those amount to a high crime and misdemeanor. And the public is saying, "No, it doesn't. We have confidence in this man as president."
I think that's an absolutely unique situation. You can take a different view, sir. But if you do, you should have a reason for it. You should have a reason, evidence that says the public has lost confidence in this man, despite what they say, despite the elections, despite the polls.
REP. PEASE: I understand. And I appreciate your clarification as well. Just one closing thought, Mr. Chairman. Last week, one of the witnesses impugned both the perceived collective motive of the House and of individual members. Today another witness did the same in his accusations of a cavalier attitude among members on this difficult subject or a disregard for the letter and spirit of the Constitution and more.
There are members of this committee and of this House who have been scrupulously careful, often at the expense of attack from across the political spectrum, to reserve judgment in this matter, to listen carefully and respectfully, to avoid partisan attacks and to do their duty as they see it. I still believe there are members, despite the attacks, who will try to do the right thing in an atmosphere of civility and respect. And words like those heard today make it more difficult for us to do so.
REP. HYDE: I thank the gentleman. The gentleman from Wisconsin, Mr. Barrett.
REP. THOMAS BARRETT (D-WI): Thank you, Mr. Chairman. First, I would like to associate myself with Mr. Pease's final comments. I think that we would all be well-advised if we could stick with the issues here. Obviously there are very explosive issues at play here, and I think that, to the extent that we can have civility here, I think that's important.
The president's actions were wrong. Everybody knows that. The question is how he should be held accountable. And I believe that censuring the president is an appropriate sanction because I think it reflects the gravity of what he did. And at the same time, it does not, I think, divide this country in a way that it need not be divided.
I long ago gave up any notion that this chapter of our history would have a happy ending. I long ago gave up any notion that people would be pleased by my actions or our collective actions. And I long ago gave up any hope that people would look at the process in this committee and view it in a favorable light.
So what do we have left? All we have left and all we can really salvage out of this is what's the best thing for this country. And it is not good for this country to go through a trial where we will call Monica Lewinsky and have her talk about her intimate relationship with the president of the United States. It is not good for this country to call Linda Tripp forward. It simply will not do anything positive, in my mind, for this country. It will further divide this country and make people more suspicious of government. And if that's what people want, that's what they're going to get.
Now, today we've had a fine panel here, and I would agree with Mr. Canady that we don't have a lot of new news other than frankly Mr. Ackerman's statement, which I consider somewhat of a blockbuster in terms of where we're going to go, because I see now for the first time the possibility that the House of Representatives could pass articles of impeachment and three weeks later refuse to name to reappoint managers to prosecute that case. And the question was whether there's precedent for that. And in both the Judge Lauderbach (sp) case and in the Judge Hastings case, Congress, not by the action of the speaker of the House but by action of the full House, reappointed those managers.
Mr. Ackerman, my question for you is, from a constitutional standpoint, if on December 17th or 18th we pass an article or articles of impeachment and on January 3rd, 1999, this House refuses to reappoint those managers, what's our procedural setting at that point?
MR. ACKERMAN: Well, I'm afraid it will be a terrible precedent for the impeachment process, because one day there will be a president who deserves to be impeached. And a public demonstration, unique in our history, of toing and froing, rushing to judgment in a lame-duck session, and then refusing to go forward, will or may I hope not discredit the weapon when it may be needed.
REP. BARRETT: But we have a situation now, and all of us in this room understand it. The claims were prior to the election that the Democrats wanted to have this done by the end of the year because we thought we were going to lose seats. The Republicans the claims were that the Republicans wanted to drag it out beyond the beginning of the next Congress because they would gain seats. Obviously reality dealt a severe blow to both of those theories, and now they're turned on their head.
But we do have the real possibility that we could have this Congress impeach this president, and three weeks later the case completely fall apart. And I would argue to you and my fellow members on the committee that that would be even more of a disservice to this country and that we should move toward censure. We should resolve this in this committee and we should get back to doing the people's business, because that's what the people want.
MR. ACKERMAN: I am not here as a witness for the president. My teacher, Alex Bickle (sp), once said, "A scholar is like a bus. He goes from place to place and people get on and get off whenever they want to." I my mission here was to alert you to real and serious constitutional questions. I would hope that if the shoe is on the other foot
REP. BARRETT: Very quickly, because I don't mean to interrupt you, could the Senate because obviously we would have to reauthorize payment for this could the Senate pay for the House managers to act, or could the Senate pay for the House to proceed? If the House refuses to pay, as was the case for the two judges, where the House also authorized
REP. HYDE: The gentleman's time has expired. We will have to hold that in dire suspense.
REP. BARRETT: Mr. Chairman, if I could make one unanimous request. I have a document that I'm going to present to the committee that writes to the CRS and asks them to clarify this issue of what would happen if the managers were not reappointed. And I would ask unanimous consent that that be made part of the record.
REP. HYDE: Without objection, so ordered. The gentleman from Utah, Mr. Cannon.
REP. CHRIS CANNON (R-UT): Thank you, Mr. Chairman. First of all, I'd like to associate myself with the comments by Mr. Pease and with Mr. Barrett, to the degree that he was dealing with the issue of demeanor. And let me say, Mr. Craig, staff has informed me that they thought you come across very well on television. And I frankly appreciate that. I think that the tone with which we approach this problem, which is a very important problem, is more than just a little bit significant, especially because some of the issues are frankly quite difficult.
For instance, Mr. Craig, you said today that the president did not violate his oath by which I think you were saying he did not commit perjury because he did not intend to lie in either the grand jury or the Paula Jones case. Of course, no one, personally or through counsel, ever admits to felonious activity outside of the context of plea-bargaining. So we, as the Judiciary Committee, are sort of left to figure out what the truth is here. And we're looking for corroborating evidence or evidence that undermines this problem of what the president intended. Ultimately that's a criminal standard, I agree. But in informing our consciences, I think it's important that we have corroborating evidence.
And Mr. Coble referred to the intimate touching, and you characterized this as a "he said, she said" sort of back-and-forth conflict. But you today have also characterized the president's position as having acknowledged an intimate relationship. You used a lot of other words in your testimony "sinful," "wrong." You used the term "wrongs" in a different case; "inappropriate," "improper." And you went on to say that the president has misled family, friends, colleagues and the nation, et cetera.
It seems to me that as we have to struggle with this rather sordid question of whether or not what the president's activities, what his actions were in the context of what he said, that that statement of intimacy, the statement about wrongness, has to lead me to believe that he is not telling the truth about these very fine distinctions that he's making, that in fact he committed perjury.
Would you speak to that? And in particular, does the president believe, or has he said to you and I recognize the problem of being his counsel, and you should speak from your own knowledge either that she touched the president intimately, or that he touched her intimately, in the sense of the definition of sex in the Paula Jones case?
MR. CRAIG: I think the issue that was identified in Mr. Schippers' report, which takes one of the three allegations from the Starr referral, and identifies that as the key question in the grand jury testimony, has to do with whether or not the president, when he was having contact with Monica Lewinsky, the president engaged in certain intimate touching, with clothing or without clothing.
REP. CANNON: Right.
MR. CRAIG: And at that point, I think I say, and I think I say correctly, Congressman, that she said he did, and he says he did not with respect to that one aspect of their activity. That is key to the perjury issue, which I think would be tried on the floor of the United States Senate, if this were referred over.
REP. CANNON: Mr. Craig, someone testified before this committee, particularly Professor Salzburg last week, that the proper method of dealing with any particular untruth by the president in the Jones lawsuit, is to leave that issue for Judge Wright. Do you agree with that?
MR. CRAIG: I'm sorry. I didn't I didn't understand everything you said.
REP. CANNON: A lot of background noise here. (Laughs.)
MR. CRAIG: It's
REP. CANNON: You recall that some have testified, particularly Professor Salzburg last week MR. CRAIG: Yes.
REP. CANNON: that the proper method of dealing with any particularly lying by the president in the Jones lawsuit, is to leave that issue to Judge Wright. Do you concur with that?
MR. CRAIG: That is traditionally the way allegations of lying in civil depositions have been taken care of. In fact, the practice in the U.S. Attorney's office, much to my regret, because I've been a civil practitioner where I thought I'd been, you know, on the other side, the other side had false testimony, I've referred cases to the U.S. Attorney's office. And in routine matters they don't take them up and prosecute them. It's left up to the civil judge to handle.
REP. CANNON: Thank you, Mr. Chairman.
REP. HYDE: Thank you, sir. The gentleman from California, Mr. Rogan.
REP. JAMES ROGAN (R-CA): Thank you, Mr. Chairman. And I thank all of the witnesses for their patient and able presentations this morning.
First I want to note the comments of my dear friend from New Jersey, Mr. Rothman, a few minutes ago, where he made the very correct point that a president is not above the law, because he can be sued in civil court. And that's exactly what this whole case is about.
Let me dispel the myth that is out there among some people, that a bunch of lawyers just showed up one day, and began to inquire into the president's personal life. That was not the case. The president of the United States was a defendant in a federal civil sexual harassment lawsuit, filed by Paula Jones. And despite his objections to answering questions about potential conduct he may have engaged in with female subordinate employees, the judge ordered him to answer certain questions under oath, because the judge found that showed a pattern of conduct, if the answers were in the affirmative. And the judge found that Paula Jones was entitled to that information, in pursuing a sexual harassment lawsuit.
Now, Mr. Craig, you're in a somewhat unenviable position, because I understand you have to be the president's representative, and I promise not to shoot the messenger. But I want to know: within that framework, does the president of the United States support federal sexual harassment laws that are on the books today?
MR. CRAIG: Of course he does.
REP. ROGAN: Does the president believe those laws should be vigorously enforced?
MR. CRAIG: Yes, he does, I think. REP. ROGAN: Does he also believe that these laws properly rise to the level of a civil rights action in federal court?
MR. CRAIG: Well, I have to tell you, at this point, I'm moving beyond the area of conversations I've had with the president. So I can't tell you with any authority, what his views are on that. You know, I would just be speculating, Congressman, at this point.
REP. ROGAN: Do you think the president believes that the law is correct in allowing women who have been victimized in the workplace, to obtain discovery about patterns of conduct from employers who are victimizing women?
MR. CRAIG: I think he would have no dispute with that proposition.
REP. ROGAN: And I'm assuming the president also believes that women in the workplace ought to be able fully to prosecute their claims against harassing employers.
MR. CRAIG: I think he would take that position as well. Let me explain one thing that happened, that I'm sure you're familiar with. When he walked into that deposition, he was handed a three- part definition of sexual relations that then got debated between counsel, and then got changed by the court and the judge, and then got applied by the president, as he was asked questions.
REP. ROGAN: And I'm aware of the president's contention in that regard. General Katzenbach, let me turn to you for a moment. You are the distinguished former attorney-general of the United States, who has prosecuted a number of cases on behalf of the country. What do you think the impact is to women who have been victimized in the workplace, if Congress accepts the notion that lies in court are acceptable if the lie is about sex in a civil rights action, because somebody might be embarrassed by telling the truth? Does that have a negative impact, or a positive impact on women in the workplace?
MR. KATZENBACH: If you are talking in the context of impeachment, I don't think it has any relevancy at all, or any impact at all.
REP. ROGAN: Well, let's just talk about it in terms of
MR. KATZENBACH: something else that I don't
REP. ROGAN: the rule of law.
MR. KATZENBACH: What?
REP. ROGAN: Let's just talk about it in terms of the rule of law. What impact do you think that has?
MR. KATZENBACH: If all we were talking about, was the rule of law, if we were talking about cases in civil or even criminal courts, then I think it would have a very negative impact if this committee, in that context, were to ignore the actions by anybody in the government, including the president.
REP. ROGAN: Thank you.
MR. KATZENBACH: If you're talking in an impeachment proceeding, it's totally irrelevant.
REP. ROGAN: All right. I have to interrupt, I'm sorry, because my time is very limited.
MR. KATZENBACH: Well, it's my time, too.
REP. ROGAN: Well, actually, it's my time, and I'm sharing it with you.
MR. KATZENBACH: Your time and
REP. ROGAN: I don't want to spend the rest of my time debating whose time it is.
REP. HYDE: Sounds like a theme song.
REP. ROGAN: General Katzenbach, under the law, if somebody says in court to a material and relevant question, "I don't remember," and they give that answer under oath, and in fact they do remember, that would be lying under oath or perjury, wouldn't it?
MR. KATZENBACH: I would think if in fact they did remember, and it was a material matter, then that would be lying, would be perjury.
REP. ROGAN: So when the president was asked the question, "So I understand your testimony it was possible that you were alone with her, but you have no specific recollection of that happening," Answer, "Yes, that's correct," if a court found that to be material and relevant, that would be perjury.
MR. KATZENBACH: That would be perjury, which
REP. HYDE: The gentleman's time has
MR. KATZENBACH: I can't imagine anybody ever prosecuting, but it has nothing to do with impeachment.
REP. HYDE: The gentleman's time has expired.
REP. ROGAN: Thank you, Mr. Chairman.
REP. HYDE: The gentleman from South Carolina, Mr. Graham.
REP. LINDSEY GRAHAM (R-SC): Thank you, Mr. Chairman. My understanding is that Mr. Ruff is going to handle most of the factual disputes?
MR. RUFF: I've tried to handle those questions that have asked of me, Congressman, but yes, you're correct.
REP. GRAHAM: Well, we've had a conversation before, and I want to say as a lawyer, I think you're a fine lawyer, and the president's lawyers have done a very good job. And the comment about being a "potted plant Congress," I don't think that any of us here have taken this too lightly. I don't know about the other folks, but I think I've aged a little bit.
I'm not a "potted plant." I've looked at the president's deposition testimony. I've read his grand jury testimony. I guess I looked at him testify before the Paula Jones deposition, because it was videotaped. I've read all the relevant witnesses' testimony at least once or twice. And to be honest with you, I think if you had an open-minded potted plant, I could convince him that he's committed perjury. But that's just where I'm at on this thing.
Now, having said that, one thing that bothers me the most about what we're doing here, is that there's people listening that may get confused about what they should do. And if we can't agree on anything else as Republicans and Democrats, let's agree on this.
If you're ever called in to testify, and you promise to tell "the truth, the whole truth and nothing but the truth," don't do what the president did, because some people may not understand what you're trying to do. Don't ever get yourself in this position. It's just simply not worth it. Because some people may believe that there's really no difference between willful misleading and just flat-out lying. And you're going to get yourself and the law in trouble.
And that's what worries me the most, that we're sending a terrible message to young people and anybody else that's going to associate themselves with the law. Let me ask one question, Mr. Craig.
When the president left his deposition on January 17th, I believe, he did mention "you need to ask Betty," at least once. And I believe he knew that Betty Currie was likely to be a witness, because he suggested that she be asked questions, at least by the Paula Jones lawyers. She tells us a series of statements made by the president.
One of them was, supposedly, according to her testimony this is the president to Betty Currie: "She wanted to have sex with me, and I couldn't do that."
What did he mean there?
MR. CRAIG: I can't really answer that question.
REP. GRAHAM: Would you go ask him? Because that's important to me, and I'm going to tell everybody here at the end of this hearing, what I think was going to happen without that blue dress and stain on it to this young lady. And it was not going to be pretty. I yield back the balance of my time.
REP. HYDE: The gentlelady from California, Ms. Bono.
REP. MARY BONO (R-CA): Thank you, Mr. Chairman. You know, I first of all, thank the panelists for their patience. It seems I always have to thank everybody, being the last person here. But I have to tell you, that as you know, I'm one of the few non-lawyers on this committee. And what my colleagues enjoy about me, is that I am a non-lawyer, and I sit there and I've watched the tapes with them, and they actually watch my reactions to it.
And as I watched the president's videotaped deposition in the Paula Jones case, which I saw after watching his testimony before the grand jury, it hit me very, very hard. And I know that no Americans have seen that tape, except for a very select few.
Whether I reacted perhaps to perjury, or just watching my president lie to me personally, I didn't know at that point. And over time, I've come to the conclusion that it was perjury, and it bothered me a great deal. I won't be labelled a "zealot" because I do believe it was perjury, I do believe it was wrong. And I won't have a problem supporting that article of impeachment.
But my question really is for Mr. Craig. And it's as the last person here, I have to sit here and listen to 36 other members, or 35, and come up with a question that nobody else has asked, which is very difficult. So it's a very simple one, yet I think it's very complex, and it's one that most of America is asking. That is Mr. Craig, do you have small children at home?
MR. CRAIG: I do.
REP. BONO: What do you tell them? How do you explain to them that your president has lied, and it's okay?
MR. CRAIG: Oh, it's not okay to lie, Congresswoman. I say that it's the most important thing in the world to tell the truth all the time.
REP. BONO: The whole truth, and nothing but the truth.
MR. CRAIG: The whole truth. And I tell them that one of the reasons that the president is in such trouble, is that he did not. He misled the American people, he misled his family, he misled his colleagues. And that was wrong. And the president should have admitted that it was wrong earlier. He should have made full disclosure earlier, and he did not, and that was wrong. And that's a very important lesson to the children of this country, I think.
REP. BONO: All right. Let me jump in here, if you will. I don't understand it. There's also a difference perhaps between that, and then again, under oath, before a court. Did he mislead the court?
MR. CRAIG: If he did mislead a court under oath, that would be wrong. It would be unlawful. That is for a court of law, a criminal court of law to resolve with all the protections that a court provides to a defendant. And most people that are working with the president in the defense, believe that is a very likely possibility in the future.
REP. BONO: Thank you. I understand that you know, I think this is the hardest thing for me, for any parent, that we have looked at, we have seen. And I thank you for your honest answer, and I yield back the balance of my time with that.
REP. HYDE: I thank the gentlelady. And we have reached the end of the questioning. And before I dismiss the panel, I will indulge myself, because I have not availed myself of the opportunity. And if I might, in the vast literature of impeachment, to which many of you have made a significant contribution, occasionally, you run into something that strikes you as particularly salient, a "gem," so to speak. And I'd like to read from a gem that I discovered in the literature of impeachment.
"What is unique in the history of the presidency about this scandal is the long list of potential criminal charges it involves. Even before the various investigations were concluded, it appeared likely that the president and his allies had engaged in a multitude of indictable activities, among others, in perjury and subornation of perjury, in obstruction of justice, in destruction of evidence, in tampering with witnesses, in misprision of a felony, and in conspiracy to involve government agencies in a subsequent cover-up, all of which now proved beyond doubt means that the president himself has conspired against the basic processes of democracy."
Here's the interesting part. That was interesting, this is really interesting. "Such transgressions must not be forgiven and forgotten for the sake of the presidency, but rather exposed and punished for the sake of the presidency. Excessive respect for the office should not deter us from pursuing justice this way. I would argue that what the country needs today is a little serious disrespect for the office, nor should we be satisfied with watered- down, slap- on-the-wrist alternatives. Censuring the president for the crimes in question is not enough, since the continuation of a lawbreaker as Chief Magistrate will be a strange way to exemplify law and order at home, or to demonstrate American probity abroad. No. In the end, only the decisive engine of impeachment is appropriate."
Those words have a resonance for me, especially since they were written by Arthur Schlesinger, Jr., in 1973, in his book "The Imperial Presidency," discussing the man who had the unfortunate characteristic of being a Republican. But nonetheless, I thought that was very interesting, and I would share it with you, because he's one of those 400 eminent historians whose view today has modulated somewhat.
In any event, we are all in your debt. Thank you very much.
MR. KATZENBACH: He is not a lawyer, Mr. Chairman.
REP. HYDE: Pardon?
MR. KATZENBACH: But he is not a lawyer.
REP. HYDE: But he's a historian, and that's better, isn't it, Mr. Katzenbach? (Laughter.) (Applause.)
MR. KATZENBACH: Only in some people's views. I don't share that view myself.
REP. HYDE: I don't either, but that's all right.
MR. KATZENBACH: Now, watch it, watch it.
REP. HYDE: Thank you. Thank you very much.
REP. JACKSON LEE: Mr. Chairman? Mr. Chairman.
REP. HYDE: Yes, ma'am. Oh, the gentlelady asked me if I would mention to the viewing audience, if not in the room, that occasionally, because we're going straight through lunch, and we're going straight through dinner, members find it incumbent to leave the room for one of several reasons (laughter) and that they are watching the proceedings on closed-circuit television, so not missing a beat. So, please don't think the worst if a chair is vacant for a little period of time.
REP. JACKSON LEE: Thank you, Mr. Chairman. I also have an inquiry about questions that remained unanswered for this panel, actually. I'm wondering if the same rules are in play, that these individuals might provide answers to questions in writing for a period of time.
REP. HYDE: I would say it's up to the panel. If you write them, I'm sure they would be happy enough to answer them.
REP. JACKSON LEE: Would those answer be able to be submitted into the record?
REP. HYDE: Well, if the record is still open, and we get them in time, yes. And if not, we'll find some way to put them in the Congressional Record.
REP. JACKSON LEE: I thank you, Mr. Chairman. Thank the panel.
REP. HYDE: Thank the panel for a great contribution, all of you. Thank you.
REP. : Mr. Chairman, I have a unanimous consent request.
REP. HYDE: Yes, sir.
REP. : I ask unanimous consent to place in the record a statement by Professor Walter Burns (ph), Professor Harvey Mansfield ()ph), and Professor Doug Kemett (ph) concerning the subject of testimony today.
REP. HYDE: Without objection, so ordered.
REP. BARR: Mr. Chairman?
REP. HYDE: The gentleman from Georgia.
REP. BARR: I ask unanimous consent to submit a letter to the record sent to me by Judge Griffin Bell.
REP. HYDE: Without objection, so ordered.
(End panel I.)
ENDLOAD-DATE: December 9, 1998