TRIAL OF WILLIAM JEFFERSON CLINTON, PRESIDENT OF THE UNITED STATES
(Senate - February 12, 1999)

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[Pages S1462-S1637]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




   TRIAL OF WILLIAM JEFFERSON CLINTON, PRESIDENT OF THE UNITED STATES

  Mr. GORTON. Mr. President, the statement that I am placing in the 
record is the statement I would have given had I been permitted to 
speak longer and in open session. During our closed deliberations, I 
gave a similar, but abridged statement.
  For almost two years, the President of the United States was engaged 
in what he has come to describe as an ``inappropriate intimate'' 
relationship with a young woman who came to his attention as a White 
House intern. He then lied about their relationship, publicly, 
privately, formally, informally, to the press, to the country, and 
under oath, for a period of about a year.
  This course of conduct requires us to face four distinct questions.
  First, we must determine if the material facts alleged in the 
Articles of Impeachment have been established to our satisfaction.
  Second, do the established facts constitute either obstruction of 
justice or perjury, or both?
  Third, are obstruction of justice and perjury high Crimes and 
Misdemeanors under the Constitution?
  And, fourth, even if the acts of the president are high Crimes and 
Misdemeanors, are they of sufficient gravity to warrant his conviction 
if it allows of no alternative other than his removal from office?
  The first article of impeachment alleges that the President committed 
perjury while testifying before the Starr grand jury. Although the 
House Managers assert that his testimony is replete with false 
statements, it is clear, at the least, that his representations about 
the nature and details of his relationship with Miss Lewinsky are 
literally beyond belief.
  From November 1995, until March 1997, the President engaged in 
repeated sexual activities with Monica Lewinsky, who was first a 
volunteer at and then an employee of the White House and eventually the 
Pentagon. Though he denies directly few of her descriptions of those 
activities, he testified under oath that he did not have ``sexual 
relations'' with her. His accommodation of this paradox is based on the 
incredible claim that he did not touch Miss Lewinsky with any intent to 
arouse or gratify anyone sexually, even though she performed oral sex 
on him.
  It seems to me strange that any rational person would conclude that 
the President's description of his relationship with Miss Lewinsky did 
not constitute perjury.
  In addition, while we are not required to reach our decision on these 
charges beyond a reasonable doubt, I have no reasonable doubt that the 
President committed perjury on a second such charge when he told the 
grand jury that the purpose of the five statements he made to Mrs. 
Currie after his Jones deposition was to refresh his own memory.
  The President knew that each statement was a lie. His goal was to get 
Mrs. Currie to concur in those lies.
  The other allegations of perjury are either unproven--particularly 
those requiring a strict incorporation of the president's Jones 
deposition testimony into his grand jury testimony--or are more 
properly considered solely--with those already discussed--as elements 
of the obstruction of justice charges in Article II.
  To determine that the president perjured himself at least twice, 
however, is not to decide the ultimate question of guilt on Article I. 
That I will discuss later.
  All the material allegations of Article II seem to me to be well 
founded. Four of them, however, those regarding the president's 
encouraging Miss Lewinsky to file a false affidavit and then to give 
false testimony, those regarding the president's failure to correct his 
attorney's false statements to the Jones court, and those bearing upon 
the disposal of his gifts to her are not, in my mind, proven beyond a 
reasonable doubt. Again, I do not believe this standard to be required 
in impeachment trials, but because I believe that the other three 
factual allegations of Article II do meet that standard, I adopt it for 
the purposes of this discussion.
  (1) From the time she was transferred to the Pentagon in April, 1996, 
Miss Lewinsky had pestered the president about returning to work at the 
White House, and, other than some vague referrals, until October 1, 
1997, the President had done nothing to make this

[[Page S1463]]

happen and little to help her find another job.
  On the first of October, 1997, the president was served with 
interrogatories in the Jones case asking about his sexual relationships 
with women other than his wife, and during the rest of October the 
President and his agents stepped up their efforts to find Miss Lewinsky 
a job. Three weeks later, on October 21, the United States Ambassador 
to the United Nations, Bill Richardson, called Miss Lewinsky personally 
to schedule an interview in her apartment complex, though apparently he 
interviewed no one else. Shortly after this unusual interview, the 
Ambassador created a new position in New York and offered it to Miss 
Lewinsky.
  What is perhaps most striking about the U.N. job is not even how 
promptly it materialized, nor that the United States Ambassador was so 
personally involved in hiring a young woman with precious little job 
experience, but that Ambassador Richardson held the specially crafted 
sinecure open for two months while the former intern kept him waiting 
on her decision.
  When Miss Lewinsky decided that she preferred the private sector, the 
president enlisted the help one of his closest personal friends, one of 
the most influential men in the United States, Vernon Jordan. Miss 
Lewinsky met with Mr. Jordan in early November. Mr. Jordan, who was 
acting at the President's behest, apparently did not fully appreciate 
how important it was for him to cater to Miss Lewinsky, and took no 
action for a month.
  The President and Mr. Jordan realized, however, on December 5, 1997, 
the importance of satisfying Miss Lewinsky 's fancy when her name 
appeared on the Jones witness list. Before that date, the President 
needed Miss Lewinsky only to commit a lie of omission--simply to 
refrain from making their relationship public. Her appearance on the 
witness list now meant that she would have to lie under oath.
  Fully appreciative of the higher stakes, the President redoubled his 
efforts and those of his agents to find Miss Lewinsky a job and keep 
her in his camp. In the weeks after Miss Lewinsky's name appeared on 
the witness list, Mr. Jordan kept the President apprised of his efforts 
to find work for her in the private sector. He called his contacts at 
American Express, Young & Rubicam, and MacAndrews & Forbes (Revlon's 
parent corporation). When Miss Lewinsky was subpoenaed on December 19, 
1997, to be deposed in the Jones case, Mr. Jordan oversaw the 
preparation of the affidavit that the President had suggested she file 
in lieu of testifying. On January 7, 1997, Miss Lewinsky signed the 
affidavit, which she later admitted was false, denying that she had a 
``sexual relationship'' with the President. On January 8, she 
interviewed with MacAndrew & Forbes. When she told Mr. Jordan that she 
had done poorly, he called the Chairman of the Board, Ronald Perelman, 
to recommend Miss Lewinsky, whom he commended as ``this bright young 
girl, who I think is terrific.'' As a result of this conversation, Miss 
Lewinsky was called back for another interview with MacAndrews the 
following day and given an informal offer. On January 9, she reported 
this to Mr. Jordan, who called Mrs. Currie with the message, ``mission 
accomplished'' and then called the President himself to share his 
success.

  The President's lawyers arranged for Miss Lewinsky's affidavit to be 
filed on January 14, 1998. After this date, although Miss Lewinsky did 
not end up with a job in the private sector, neither the President nor 
Mr. Jordan, who so resolutely pursued their earlier mission, lifted a 
finger to help the ``bright * * * terrific'' young woman. Why? Because 
shortly thereafter the fiction of the president's platonic relationship 
with Lewinsky had exploded. Monica Lewinsky was the same Monica 
Lewinsky, but she now could no longer protect the President.
  It is impossible to reconcile the President's course of conduct with 
any purpose other than to preclude Miss Lewinsky's truthful testimony 
in the Jones case, or, indeed, to prevent her testifying at all. The 
case for obstruction of justice is clear. Obstruction was the 
President's only motive.
  (2) Next we have the Currie conversation--a set of statements by the 
President in the nominal form of questions, addressed by the President 
to Mrs. Currie on the Sunday evening following his Jones deposition 
when she was called to the White House at an extraordinary time and for 
apparently a single purpose. We are all familiar now with the questions 
he posed:
  ``I was never really alone with Monica, right?''
  ``You were always there when Monica was there, right?''
  ``Monica came on to me, and I never touched her, right?''
  ``You could see and hear everything, right?''
  ``She wanted to have sex with me, and I cannot do that.''
  Those five statements have a single common thread: the President knew 
each and every one of them to have been totally false.
  Had Mrs. Currie been willing to confirm the President's suggestions, 
she would have been a devastatingly effective witness for him.
  There is no reasonable explanation of this incident other than it is 
the President's clear attempt to obstruct justice, both in the Jones 
case and in the subsequent grand jury investigation.
  (3) The false self-serving statements by the President to senior 
members of his staff, to his cabinet, and to the American people just 
after his affair became public present a somewhat different face. It is 
reasonably clear that, at the time at which they were made, the 
President's goal, at least in part, was to save face with his staff and 
put a less humiliating spin on the Lewinsky matter. At the same time, 
coupled with his public statements, the President's assertions to his 
staff were designed to influence their testimony at some future time 
and place and to enlist them in disguising his conduct. In fact, they 
did obstruct the grand jury investigation. The President's manipulation 
of friendly witnesses to testify falsely, if unknowingly, extended for 
months until the DNA evidence shattered both his public and private 
positions.
  The President's attempt to derail the Independent Counsel's inquiry--
an inquiry the very purpose of which was to discover whether the 
President gave false testimony and tampered with witnesses--by lying to 
his colleagues, his cabinet, his confidantes, the media, the American 
people, and ultimately, the grand jury, is--beyond a reasonable doubt--
a wide-ranging and highly public obstruction of justice, deeply 
damaging to the judicial fabric of the United States.
  One final note: to the extent that there are unresolved questions of 
fact, almost every one of them could be resolved by truthful and 
complete testimony by the President himself. That is a course of action 
he spectacularly avoided both in his Jones deposition and before the 
Starr grand jury. Now, he refuses to answer interrogatories from 
Senator Lott and refuses to appear at this trial to testify on his own 
behalf.
  Under the circumstances, is it not appropriate to infer that to tell 
the truth would be to confirm all of the questionable charges against 
him? I have not done so for the purposes of this argument, and have 
considered only those charges proven beyond a reasonable doubt, but the 
president's silence allows the inference that every one of the factual 
charges by the House managers is true.
  With sufficient material facts alleged in the two Articles of 
Impeachment either essentially uncontested or established by 
overwhelming evidence, and with those facts clearly constituting both 
perjury and obstruction, we arrive at the third question before the 
Senate. Are perjury and obstruction of justice high Crimes and 
Misdemeanors under the impeachment clause of the Constitution?
  This is the easiest of the four questions to answer. Perjury and 
crimes less serious than obstruction of justice have always and 
properly been considered high Crimes and Misdemeanors.
  In 1986 Judge Claiborne was convicted by the Senate and removed from 
office for filing a false income tax return under penalties of perjury. 
By a vote of 90 to 7, the Senate rejected his argument that he should 
not be convicted because filing a false return was irrelevant to his 
performance as a judge. In 1989, Judge Nixon was convicted by the 
Senate and removed from office for perjury: in fact, for lying under 
oath to a grand jury. And in that same year, Judge Hastings was 
convicted of lying under oath and removed

[[Page S1464]]

by the Senate even though he had already been acquitted in a criminal 
trial. (It is generally recognized that an act need not be criminal in 
order to be impeachable.) As these examples illustrate, perjury is and 
historically has been a sufficient cause for conviction and removal. 
Although no person has been convicted and removed for obstruction of 
justice, the nature and gravity of this crime, punished more harshly 
under our laws than bribery, clearly is also a sufficient cause for 
conviction and removal.
  Most of the Senate's precedents, of course, are based on the 
impeachment trials of judges. President Clinton argues that those 
precedents should not apply; that presidents, who hold the highest 
office in the land, should benefit from a lower standard for removal 
than the judges they appoint and the military officers they command. 
This President would have presidents remain in office for acts that 
have resulted in the dismissal of military officers under his command, 
in the removal of judges, and for acts that would have resulted in the 
removal of Senators like Bob Packwood, who, like the President, are 
popularly elected for a fixed term. As House Manager Canady has pointed 
out, the 1974 report by the staff of the Nixon impeachment inquiry 
concluded that the constitutional provision stating that judges would 
hold office during ``good Behaviour,'' does not limit the relevance of 
judges' impeachments with respect to standards for presidential 
impeachments. The President's argument that he should be held to a 
lower standard than judges, military officers and Senators has no basis 
in the Constitution, in precedent, in equity, or in common sense.
  The fourth and ultimate question, nevertheless, is considerably more 
difficult to answer. For me, the proof of material facts supporting 
some of the allegations is overwhelming, the proposition that the 
established facts of the President's conduct constitute perjury and 
obstruction of justice almost impossible to deny, and the conclusion 
that perjury and obstruction of justice are high Crimes and 
Misdemeanors a given.
  But the inevitable result of a guilty verdict in this trial is the 
President's removal from office, and I believe that reasonable minds 
can differ on whether or not that consequence is appropriate. So does 
at least one of the House Managers. In answering the question of 
whether removal is too drastic a remedy for these alleged acts of 
perjury and obstruction of justice, Lindsey Graham, one of the most 
thoughtful Managers, stated that great minds may not necessarily agree 
on the question of whether, for the good of the nation, one should or 
should not remove this President for these high crimes. Removal, he 
said, is the equivalent of the political death penalty, and the death 
penalty is not imposed for every felony. Considerations such as 
repentance and the impact of removal on society should also be 
considered. (Mr. Graham's view was not , incidentally, that reasonable 
minds could differ on any of the first three questions that I have 
outlined, but only on the ultimate question of removal.)

  While removal upon conviction has not always been considered 
inevitable, I agree that Article II, Section 4 of the Constitution 
requires a mandatory sentence of removal upon conviction of high Crimes 
and Misdemeanors. Nevertheless, a number of thoughtful commentators, 
and at least a few members of this Senate, have already decided that 
removal is too drastic a sanction. These commentators and members--who 
are convinced, perhaps, that the President committed perjury and 
obstruction of justice, which, as classes of crime, are high Crimes and 
Misdemeanors--may nevertheless vote not to convict because they believe 
that removal from office is unwarranted for this perjury and this 
obstruction of justice.
  I share that conclusion with respect to Article I, but not Article 
II.
  On Article I I have decided, with some regret, that the instances of 
perjury I believe were established beyond a reasonable doubt are 
offenses insufficient for removing the President from office--based on 
the gravity of the offenses as against the drastic nature of removal. 
Equally important is the fact that these instances of perjury are also 
elements of the obstruction of justice charges in Article II. One 
conviction for the same acts of perjury is enough.
  Nevertheless, I am convinced that one other reflection must precede a 
decision based on the belief that removal is disproportionate to the 
gravity of the offenses established here, and that is: what are the 
consequences of a not guilty finding by the Senate? The consequences 
are, of course, no sanction whatsoever.
  It is precisely because the absence of any sanction is so 
objectionable to those who choke over removal that there has been such 
a spirited search for a third way. But, fellow Senators, there is no 
third way. There is no third way.
  Article I, Section 3 of the Constitution states: ``Judgment in Cases 
of Impeachment shall extend no further than to removal from Office, and 
disqualification to hold and enjoy any Office of honor, Trust, or 
Profit under the United States * * *.''
  The drafters did not intend to allow Congress to choose among a range 
of punishments analogous to those available to the judiciary, and for 
this reason they specified that the impeached party was to remain 
subject to judicial process and specifically limited to two--removal 
and disqualification--the sanctions that Congress could apply.
  We must, I believe, by reason of this harsh choice consciously forced 
on us at the Constitutional Convention in 1787, weigh seriously the 
effect on the Republic of either of our two possible courses of action. 
Will the Republic be strengthened, or will it be weakened, by 
determining that a president shall remain in its most exalted office 
after perjuring himself and obstructing the pursuit of justice both of 
a private citizen and of a federal grand jury, in a case occasioned by 
the president's sexual activities? Will the Republic be strengthened or 
weakened by removing the President from office by an impeachment 
conviction for this perjury and this obstruction?
  Early in our history an incident involving one of the authors of the 
Constitution, Alexander Hamilton, shows clearly the bright line 
between, on the one hand, a private sexual scandal, and on the other, a 
public obligation--a line the president has intentionally crossed.
  In No. 65 of the Federalist Papers, Mr. Hamilton described 
impeachable offenses as ``those offences which proceed from the 
misconduct of public men, or, in other words, from the abuse or 
violation of some public trust. They are of a nature which may with 
peculiar propriety be denominated POLITICAL, as they relate chiefly to 
injuries done immediately to the society itself.'' The president's 
defenders place great reliance on this explanation.
  Within four years of the composition of this essay, Mr. Hamilton had 
an opportunity to reflect on his own words. In the summer of 1791, 
Hamilton, then the Secretary of the Treasury, had an adulterous affair 
with a Maria Reynolds. Her husband discovered the affair and demanded a 
job in the Treasury Department. Though Secretary Hamilton turned him 
down, he did pay blackmail from his personal funds.
  A year later, three Congressmen, all politically opposed to Hamilton, 
learned of the payments, suspected that they might involve Treasury 
funds, and confronted Hamilton. Despite the tremendous political 
advantage the story, which eventually leaked, offered them, he 
immediately and without hesitation told them the truth and nothing but 
the truth.
  The author of Federalist No. 65 knew very well the distinction 
between a private scandal and the profound embarrassment arising out of 
its publication--and the violation of a public duty in an attempt to 
avoid that embarrassment. He chose not to use his Treasury position in 
a way that would justify an impeachment. The personal cost was immense 
and he assumed it without blinking.
  President Clinton could hardly have chosen a more different course of 
action. He chose to violate both his oath of office and his oath as a 
witness, using his office, his staff and his position to try to avoid 
personal embarrassment. In any event even the personal consequences for 
him have been far worse than those visited upon Alexander Hamilton. But 
it is our duty to determine whether he merits a drastic public 
sanction--or none at all.

[[Page S1465]]

  Some will say that the President can be charged with crimes related 
to this affair after his term of office is over.
  First, such charges lie outside our jurisdiction or duty.
  Second, such charges seem to me to be unlikely if we acquit the 
President, or in any event.
  But third, and most important, let us assume that President Clinton 
is charged, convicted, and sentenced in 2001. What a devastating 
judgment on the Senate of the United States that would be! We ourselves 
would be convicted, by history and forever, of having permitted a felon 
who abused his office in committing his felonies to remain in office as 
President of the United States for two long years.
  I simply cannot imagine any Senator willing to carry that burden of 
conscience.
  No, we must choose between the sanction of removal and no sanction at 
all. We know how Alexander Hamilton would vote today on our question. 
We know how James Madison, one of Hamilton's interrogators and the 
careful author of the impeachment provision, would have voted. And 
merely to call up the name of George Washington is to answer the 
question of how he would vote.
  The Republic will not be weakened if we convict. The policies of the 
presidency will not change. The Administration will not change.
  But if we acquit; if we say that some perjuries, some obstructions of 
justice, some clear and conscious violations of a formal oath are free 
from our sanction, the Republic and its institutions will be weakened. 
One exception or excuse will lead to another, the right of the most 
powerful of our leaders to act outside the law--or in violation of the 
law--will be established. Our republican institutions will be seriously 
undermined. They have been undermined already, and the damage accrues 
to all equally--Republicans, Democrats, liberals, and conservatives.
  If there is one thing this President can be relied on to do, it is to 
put his interests before those of his office and of the Republic. 
President Clinton has debased the presidency now and, if he is allowed 
to remain in office, the low level to which he has brought the 
presidency will continue, and that is not tolerable.
  I cannot will to my children and grandchildren the proposition that a 
president stands above the law and can systematically obstruct justice 
simply because both his polls and the Dow Jones index are high.
  Our duty in this case is as unpleasant as it was unsought. But our 
duty is clear. It was imposed on us, by history, without equivocation, 
212 years ago. It requires us to convict the President of Article II of 
these Articles of Impeachment. And that is how I vote, with clear 
conscience and saddened heart.
  Mr. FEINGOLD. Mr. Chief Justice, my colleagues, like many others, the 
day the President wagged his finger at the American people and 
indicated he had not been involved with Ms. Lewinsky, I had the sense 
that he wasn't telling the truth and I felt some genuine regret. The 
President and I began here in Washington in the same month, in 1993. I 
had high hopes and actually felt very close to what he was trying to 
accomplish. So all along in this process, I have had to fight an urge 
to personalize that regret in a way that would affect my ability to do 
my job in this impeachment trial. And I will tell you that taking that 
separate oath helped me get into the mindset necessary to do that task.
  But let me say that I do regret that the President's public conduct--
not his private conduct--has brought us to this day.
  But we are here, and I want to take a minute to praise my colleagues 
on the process. I think it would have been unfortunate had we not had 
any witness testimony--at least in the form of deposition testimony. I 
think it would have been an unfortunate historical precedent. I found 
the video testimony helpful. I didn't enjoy it, but I found it helpful 
in clarifying some of the things that I was thinking about. So I am 
glad, on balance, that we did not dismiss the case at the time it was 
first suggested.
  But as we get to the final stage and get immersed in the law and 
facts of this case, it is too easy to forget the most salient fact 
about this entire matter, and that is one simple fact that many others 
have mentioned: In November 1996, 47 million Americans voted to reelect 
President Clinton. The people hired him. They are the hiring authority. 
An impeachment is a radical undoing of that authority. The people hire 
and somehow, under this process, the Congress can fire. So, I caution 
against, with all due respect to the excellent arguments made, the 
attempt to analogize this to an employee-employer relationship, or a 
military situation, or even the situation of judges--those situations 
are all clearly different. Along with the choice of the Vice President, 
in no other case, do the American people choose one person, and in no 
other case can a completely different authority undo that choice.
  Having said that, the Presidential conduct in this case, in my view, 
does come perilously close to justifying that extreme remedy. There 
really have been three Presidential impeachments in our Nation's 
history. I see this one as being in the middle. The Andrew Johnson case 
is usually considered by historians to have been a relatively weak 
case. President Johnson had a different interpretation of the 
constitutionality of the statute that he believed allowed him to remove 
the Secretary of War, Mr. Stanton. He was not convicted, and 
subsequently the U.S. Supreme Court, I believe, ruled that in fact that 
was constitutional. I see that as having been a relatively weak case.
  The case of Richard Nixon, in my view, was a pretty strong case, 
involving a 1972 Presidential election and attempts to get involved 
with the aspects of that election--frankly--an attempt to cover up what 
happened during that 1972 election. I think that had more to do with 
core meaning of ``high crimes and misdemeanors.''
  This is a closer case; this is a close case. In that sense, it may be 
the most important of the three Presidential impeachments, in terms of 
the law of impeachment, as we go into the future. I agree neither with 
the House managers who say their evidence is ``overwhelming,'' nor with 
the President's counsel who says the evidence against the President is 
``nonexistent.'' The fact is, this is a hard case, and sometimes they 
say that hard cases make bad law. But we cannot afford to have this be 
bad law for the Nation's sake.
  So how do we decide? There have been a lot of helpful suggestions, 
but one thing that has been important to me is the way the House 
presented their case. That doesn't bind us, but they did suggest that 
two Federal statutes had been violated. Mr. Manager McCollum said that, 
``You must first determine if a Federal crime has occurred.'' Many 
others have said that. I will reiterate a point. If that is the 
approach you want to take, then it is clear, in my view as one Senator, 
that you must prove that beyond a reasonable doubt. Otherwise, you are 
using the power and the opprobrium of the Federal criminal law as a 
sword but refusing to let the President and the defense counsel have 
the shield of the burden of proof that is required in the criminal law.
  I do not have time to discuss the perjury count this afternoon, but 
will do so in a longer presentation for the Record. Suffice it to say I 
do not believe the managers have met their burden of proving perjury 
beyond a reasonable doubt.
  As to obstruction of justice, the President did come perilously 
close. Three quick observations make me conclude that, in fact, he did 
not commit obstruction of justice beyond a reasonable doubt. First, I 
am very concerned about the conversations between the President and 
Betty Currie concerning the specifics of his relationship with Ms. 
Lewinsky. But the critical question there is intent. Was his intent 
about avoiding discovery by his family and the political problems 
involved? Or was the core issue trying to avoid the Jones proceeding 
and the consequences of that?
  I don't think it has been shown beyond a reasonable doubt that the 
Jones proceeding was the President's concern. Perhaps Ms. Currie could 
have shed some light on this. That is why I was extremely puzzled when 
the House managers didn't call Betty Currie. Let me be the first to say 
that I don't think in this instance the House managers ``wanted to win 
too badly.'' I don't think they wanted to win badly enough to take the 
chance of calling Betty Currie, a crucial witness.

[[Page S1466]]

  I was very concerned about the false affidavit until I saw Ms. 
Lewinsky's Senate deposition testimony. I am persuaded that you cannot 
say beyond a reasonable doubt that she was urged by the President to 
make a false statement in that affidavit.
  Finally, I was very concerned about the hiding of the gifts. And 
maybe every one will disagree with me on this. But when I watched her 
testimony, I thought Ms. Lewinsky was the most indefinite about whether 
or not she had gotten that call from Ms. Currie than any other part of 
her testimony. I happen to believe that Ms. Lewinsky was the one who 
was the most concerned about the gifts. And I believe a showing beyond 
a reasonable doubt has not been made that the President masterminded 
the hiding of the gifts.
  So I cannot deny what Representative Graham said: If you call 
somebody up at 2:30 in the morning you are probably up to no good. But 
if you call somebody up at 2:30 in the morning you have not necessarily 
accomplished the crime of obstruction of justice.
  I realize there is a separate question of whether these same acts by 
the President, apart from the Federal criminal law, constitute high 
crimes and misdemeanors. I do not. I will discuss that in more detail 
in a future statement in the Record.
  But I would like to conclude by just talking a little bit about this 
impeachment issue in the modern context. When I say that the vote in 
1996 is the primary issue, I don't just mean that in terms of the 
rights of people. I mean it in terms of the goal of the Founding 
Fathers, and our goal today; that is, political stability in this 
country. We don't want a parliamentary system. And we don't want an 
overly partisan system.
  I see the 4-year term as a unifying force of our Nation. Yet, this is 
the second time in my adult lifetime that we have had serious 
impeachment proceedings, and I am only 45 years old. This only occurred 
once in the entire 200 years prior to this time. Is this a fluke? Is it 
that we just happened to have had two ``bad men'' as Presidents? I 
doubt it. How will we feel if sometime in the next 10 years a third 
impeachment proceeding occurs in this country so we will have had three 
within 40 years?
  I see a danger in this in an increasingly diverse country. I see a 
danger in this in an increasingly divided country. And I see a danger 
in this when the final argument of the House manager is that this is a 
chapter in an ongoing ``culture war'' in this Nation. That troubles me. 
I hope that is not where we are and hope that is not where we are 
heading.
  It is best not to err at all in this case. But if we must err, let us 
err on the side of avoiding these divisions, and let us err on the side 
of respecting the will of the people.
  Let me conclude by quoting James W. Grimes, one of the seven 
Republican Senators who voted not to acquit Andrew Johnson. I 
discovered this speech, and found out that the Chief Justice had 
already discovered and quoted him, and said he was one of the three of 
the ablest of the seven. Grimes said this in his opinion about why he 
wouldn't convict President Johnson:

       I cannot agree to destroy the harmonious working of the 
     Constitution for the sake of getting rid of an unacceptable 
     President. Whatever may be my opinion of the incumbent, I 
     cannot consent to trifle with the high office he holds. I can 
     do nothing which, by implication, may be construed as an 
     approval of impeachment as a part of future political 
     machinery.

  Mrs. HUTCHISON. If a university president, a minister or priest, 
general or admiral, or a corporate chief executive had engaged in a 
sexual relationship with an intern under his charge, he would lose his 
position, with scant attention paid to whether or not such a 
relationship were ``consensual.'' We place in certain individuals so 
great a measure of trust that they are seen as acting essentially in 
loco parentis.
  The question before us today is: Should the President of the United 
States be held to a lower standard?
  The answer is: No. To the contrary; we can bestow no higher honor 
than to select one individual to represent us all as President. In one 
person we endow the character of our nation, as the head of state and 
the head of government.
  It's with great disappointment, but firm resolve, that I have 
concluded the President has not lived up to this high standard and that 
he should be removed from office. The House managers have demonstrated 
beyond reasonable doubt that, in addition to indefensible behavior with 
an intern, which was not illegal, the President engaged in the 
obstruction of justice and, as an element of that obstruction, 
committed perjury before a federal grand jury, which is.
  This case began as an alleged civil rights violation of a young woman 
who came to the bar seeking justice. The Supreme Court unanimously 
decided to permit her case against the President to go forward. It was 
that case which led to the revelations regarding the President's 
relationship with Monica Lewinsky, the White House intern.
  Incredibly, an element of the President's defense is that we should 
take the long view. We are told by the President's defenders that we 
should not judge his actions toward one individual, in which he schemed 
to impede her ability to seek redress, because his overall actions on 
civil rights are so positive. We are asked not to judge his treatment 
of one woman, or two women, but to evaluate his policies that affect 
all women.
  Would the President's defenders forgive a school teacher who molests 
a student, simply because the teacher's classes are popular and his 
students all go on to college? Should we ignore the police officer who 
personally enriches himself by accepting graft, so long as his arrest 
record is high? Would we look away from the corporate executive who 
illegally profits from insider information, as long as his shareholders 
are happy with the return on their investment? We would not sustain 
civil society for long with such moral relativism as our guide.
  The President had it solely within his power to keep the country from 
the course on which it has been for the past year. First, of course, he 
could have chosen not to engage in the behavior in question. Having 
behaved as he did, though, and having been discovered, the President 
could have acknowledged his own actions and accepted the consequences. 
This could have been an honorable resignation, or an admission, 
contrition, and a firm resolve to take responsibility; with a request 
for resolution in a manner short of impeachment and trial.
  Instead, the President chose to deny the allegations, and fight them 
with a coordinated scheme of manipulation and obstruction. He lied 
outright to the American people, to his close associates, and to his 
cabinet. An enduring image of this whole tale will be his finger-
pointing lie to the American people, even after admonishing us to 
listen closely, because he didn't want to have to say it again.
  Even in view of these actions, the President missed numerous 
opportunities to right this matter and get it behind him and the 
country. At virtually every opportunity, though, he chose an action 
that further prolonged the matter and led directly to his impeachment.
  The President chose to impede the pursuit of justice by the 
Independent Counsel, who was given the authority to investigate this 
matter by the President's own Attorney General.
  The President chose to construct a cover story with Ms. Lewinsky, 
should their relationship become public.
  The President chose to direct his personal staff to retrieve items 
from Ms. Lewinsky that he knew were under subpoena in a federal 
investigation.
  The President chose to seek the assistance of friends to find a job 
for Ms. Lewinsky, and to intensify that job search when it became clear 
that Ms. Lewinsky had become a target of the civil suit against him.
  The President chose to lie to his staff about the nature of his 
relationship with Ms. Lewinsky herself, with the expectation that these 
lies would become part of the public perception.
  And, the President chose to lie before a federal grand jury about his 
actions with regard to some of the elements of obstruction of justice, 
including the concealment of the gifts that were likely to become 
evidence in the civil case against him.
  As a result of these choices by the President of the United States, 
the Senate was left with no choice other than to confront the charges 
and hear the case pursuant to the President's impeachment in the House 
of Representatives.

[[Page S1467]]

  In so doing, the Senate conducted a fair and expeditious trial. We 
rejected the idea of an early test vote that would have truncated the 
process. We rejected the motion for an early dismissal. The Senate is 
fulfilling its Constitutional responsibility to hold a trial with a 
complete evidentiary record and a final vote on each article of 
impeachment sent to the Senate by the House of Representatives.
  Through skillful use of the written record compiled by the 
Independent Counsel, videotaped depositions, and hard evidence, the 
House managers presented a compelling case. The case for perjury was 
difficult. The President's testimony before the Grand Jury was guarded. 
He was fully aware of the evidence the prosecutors had with respect to 
this case. He chose his words carefully. He admitted his relationship 
with Ms. Lewinsky before the Grand Jury, but did so only after 
confronted with clinical evidence of its existence.
  But he lied to the Grand Jury to deny other key facts. He perjured 
himself as an element of a broader attempt to obstruct justice. There 
are two false statements that are the most persuasive. First, when 
asked if he directed Betty Currie to retrieve gifts from Ms. Lewinsky, 
he stated unequivocally, ``No sir, I did not do that.''
  The facts are contrary to that allegation. Ms. Lewinsky testified 
that Betty Currie called her to suggest that Ms. Lewinsky give her the 
gifts. We have cellular telephone records that indicate a call from Ms. 
Currie to Ms. Lewinsky at about the time the gifts were picked up. It 
was clear that Ms. Currie initiated a retrieval of the gifts at the 
direction of the President, for this was the only source of information 
she had that there were gifts. The evidence is overwhelming that the 
President directed Betty Currie to retrieve these gifts. Thus, his 
statement is false. Not only is this perjury, it is obstruction of 
justice.
  The President also lied before the Grand Jury about his conversations 
with White House aides regarding Ms. Lewinsky. He testified that ``I 
said to them things that were true about this relationship.'' We know 
this to be completely false from the testimony of Sidney Blumenthal, 
who stated directly and unequivocally that the President had lied to 
him about the nature of his relationship with Ms. Lewinsky.
  The legal standard for perjury is high. Under Section 18 U.S.C. 
1623(a), a person is guilty of perjury if he or she knowingly makes a 
false, material statement under oath in a federal court or Grand Jury. 
I believe these statements were false, intentional and material in that 
they attempt to put a false impression on key events in a series of 
attempts to obstruct justice. In effect, the President knew his 
relationship with Ms. Lewinsky was shameful, but not necessarily 
illegal. But he knew his obstruction of justice was illegal--so he lied 
about it to a Grand Jury.
  In many ways, obstruction of justice is even more corrosive than 
perjury to the machinery of our legal system. As the target of a grand 
jury and an independent prosecutor, the President has defended himself 
against charges of perjury by claiming he was caught off guard, was 
misinterpreted, was attempting to mislead but not lie.
  Obstruction of justice, though, is a quite different matter. It is an 
affirmative act that occurs at the person's own initiative; in this 
case, the President. It involves actions taken that were not instigated 
by anyone else.
  It has been said in his defense that the President did not initiate 
his perjury in that he was led to it by the prosecutor. But there is no 
similar argument regarding Article II, the Obstruction of Justice. 
Without the affirmative actions of the President, there would have been 
no Article II.
  The President sought out Mr. Blumenthal to tell his misleading story 
about the nature of his relationship and the character of Ms. Lewinsky.
  Separately, the President enlisted his personal secretary to further 
his obstruction of justice. He asked Ms. Currie to retrieve the gifts. 
He summoned her to coach her testimony under the guise of ``trying to 
figure out what the facts were.'' He did so within hours after coming 
back to the White House on January 17th from his deposition in the 
civil sexual harassment lawsuit. He required a face-to-face meeting 
with her the next day, a Sunday. It couldn't be done over the phone, 
and it couldn't wait until Monday. It was clear he needed her to 
reaffirm his false testimony. This is obstruction of justice.
  The edifice of American jurisprudence rests on the foundation of the 
due process of law. The mortar in that foundation is the oath. Those 
who seek to obstruct justice weaken that foundation, and those who 
violate the oath would tear the whole structure down.
  Every day, thousands of citizens in thousands of courtrooms across 
America are sworn in as jurors, as grand jurors, as witnesses, as 
defendants. On those oaths rest the due process of law upon which all 
of our other rights are based.
  The oath is how we defend ourselves against those who would subvert 
our system by breaking our laws. There are Americans in jail today 
because they violated that oath. Others have prevailed at the bar of 
justice because of that oath.
  What would we be telling Americans--and those worldwide who see in 
America what they can only hope for in their own countries--if the 
Senate of the United States were to conclude: The President lied under 
oath as an element of a scheme to obstruct the due process of law, but 
we chose to look the other way?
  I cannot make that choice. I cannot look away. I vote ``Guilty'' on 
Article I, Perjury. I vote ``Guilty'' on Article II, Obstruction of 
Justice.
  I ask unanimous consent an analysis of the Articles of Impeachment be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                Analysis of the Articles of Impeachment

                   (By Senator Kay Bailey Hutchison)

       ``Do you solemnly swear that in all things appertaining to 
     the trial of the impeachment of William Jefferson Clinton, 
     president of the United States, now pending, you will do 
     impartial justice according to the Constitution and laws: So 
     help you God?''
       When the Chief Justice of the United States administered 
     this oath and I signed my name to it on January 7, 1999, as 
     one of one hundred triers of fact and law in the Court of 
     Impeachment of the President of the United States, I did so 
     with a heavy heart, but with a clear mind.
       That solemn occasion in the well of this Senate, and the 
     weight of the burden imposed on us as ``jurors'' in only the 
     second such proceeding in the history of our Nation, reminded 
     me with vivid clarity that our Constitution belongs to all of 
     us.
       I was reminded as well, however, that the laws of our 
     Country are applicable to us all, including the President, 
     and they must be obeyed. The concept of equal justice under 
     law and the importance of absolute truth in legal proceedings 
     is the foundation of our justice system in the courts.
       In this proceeding, I have drawn conclusions about the 
     facts as I see them, and I have applied the law to those 
     facts as I understand that law to be.


              underlying facts leading to this proceeding

       The details of an intimate personal relationship that 
     occurred during the years 1995, 1996, and 1997 between the 
     President of the United States and a 22 year-old female White 
     House Intern who was directly under his command and control 
     have been chronicled throughout the world and are described 
     in thousands of pages of evidence and materials filed with 
     both the House and the Senate in this case and in bookstores 
     across America. They involved intimate sexual relations 
     within the White House, personal gifts, jobs within and 
     outside of government, and ``missions accomplished.'' The 
     underlying details will not be repeated by me here.
       While some facts about that relationship and the timing of 
     some events were disputed at the trial in the Senate, their 
     essence has been publicly admitted by the President, by his 
     Counsel, and by the Intern in written or verbal form, 
     including sworn testimony in various forms.
       However inappropriate the behavior of the President was, 
     the legal issues in the impeachment trial do not deal with 
     this relationship. All accusations against the President here 
     relate instead to alleged attempts to prevent the disclosure 
     of this relationship in a pending civil rights lawsuit 
     against the President in an Arkansas Federal court and to the 
     public. That is the critical factor that has brought us to 
     this extraordinary moment in our Nation's history when we are 
     considering whether or not to remove from office the 
     President of the United States.


           core facts leading to the articles of impeachment

       In May, 1994, a female citizen and employee of the State of 
     Arkansas filed a lawsuit in an Arkansas Federal District 
     Court, alleging, in summary, that, in 1991 while President 
     Clinton was Governor of Arkansas, the Governor committed the 
     civil offense of sexual harassment against her by insisting 
     that she perform sexual acts identical or similar to those 
     later performed by the Intern.

[[Page S1468]]

       In the course of preparing for the trial of the Arkansas 
     case, the plaintiff, with the consent of the presiding 
     Federal Judge, attempted to develop evidence that defendant 
     Clinton had, before and afterward, engaged in patterns of 
     conduct that were similar to the allegations of the plaintiff 
     in the case.
       In December, 1997, the Arkansas Judge ordered defendant 
     Clinton to answer a written interrogatory naming every state 
     and federal employee with whom he had had sexual relations 
     since 1986. President Clinton answered: ``none.''
       In an alleged attempt to avoid giving a personal deposition 
     in the case pursuant to a December, 1997, subpoena, the White 
     House Intern, who had since become employed at the Pentagon, 
     on January 7, 1998, signed an affidavit denying any sexual 
     relationship with President Clinton. Six days later, on 
     January 13, the Intern accepted a job offer at a major 
     corporation in New York City. A friend called the President 
     shortly thereafter with the message: ``Mission 
     accomplished.''
       While the President was giving his own deposition in the 
     Arkansas case, his counsel tendered this affidavit to the 
     Arkansas Federal Court, referred to it, and vouched for its 
     accuracy in the presence of the President. The President, 
     knowing the affidavit to be false, sat by and said nothing. 
     The President's counsel subsequently advised the Court that 
     this affidavit was not reliable and should be ignored.
       Defendant Clinton was subpoenaed to give the above-
     mentioned deposition in the case and did so on January 17, 
     1998. In a rare event, the Arkansas Judge attended for the 
     purpose of supervising the deposition of the President in a 
     Washington lawyer's offices. While there, the Judge and 
     participating counsel for the parties, either knowingly or 
     unknowingly, formulated a definition of the meaning of the 
     words ``sexual relations'' to exclude certain forms of human 
     contact that in their commonly accepted meaning would be 
     included. But, allegedly upon the basis of this definition, 
     President Clinton denied, under oath, among other things, 
     that he had sexual relations with the Intern.
       On January 21, 1998, the existence of an alleged 
     inappropriate relationship between the President and the 
     White House Intern blazed across the Nation from a story 
     first published in the Washington Post carrying the headline: 
     ``Clinton Accused of Urging Aid to Lie; Starr Probes Whether 
     President Told Woman to Deny Alleged Affair to (plaintiff's) 
     Lawyers.''
       Evidence introduced and debated by the House Managers and 
     the President's Counsel in the Senate painted a picture of 
     frantic activities within and without the White House 
     throughout the month before and during the week following 
     this public disclosure, by the President, by his friends, by 
     White House staff and employees, and others. It was alleged, 
     among other things, that the President coached, manipulated, 
     and influenced false testimony of witnesses, including the 
     Intern, engineered the hiding of gifts and evidence that was 
     subject to subpoena, lied to his staff and friends about the 
     facts in order to assure that they would give false testimony 
     in public and legal proceedings, manipulated the Intern into 
     signing the false affidavit in the Arkansas Federal Court, 
     and, after failures to obtain employment for her elsewhere, 
     rewarded the Intern by obtaining for her an out-of-town job 
     in return for her cooperative falsehoods or silence. The 
     sequence and importance of such activities, much of which is 
     not disputed in the evidence, were debated aggressively by 
     the House Mangers and the President's Counsel in the Senate, 
     but the essence of those activities was not seriously denied.
       After numerous public denials immediately after the public 
     disclosure, and after several days of alleged ``damage 
     control'' designed to synchronize false stories to be 
     provided by various parties in response to all inquiries, and 
     event of major, historic, and future national importance 
     occurred.
       On January 26, 1998, the President addressed the Nation 
     about this issue at a press conference in Washington, since 
     replayed in television broadcasts thousands of times. On that 
     occasion, the President looked sternly into the camera and 
     pointed his finger directly at the American people and 
     stated:
       ``I want to say one thing to the American people. I want 
     you to listen to me. I'm going to say this again: I did not 
     have sexual relations with that woman, (naming the Intern). I 
     never told anybody to lie, not a single time. Never. These 
     allegations are false.''
       During the following months, the gist of this 
     representation filled the news media around the World and in 
     every conceivable form, provided by every conceivable 
     spokesman for the President, including government employees, 
     Cabinet officials, lawyers, public relations specialists, 
     political advisors, friends, Members of Congress, and others.
       After an immunity agreement was reached between the 
     Independent Counsel (discussed below) and the Intern on July 
     28, 1998, the Intern delivered a dress to the Independent 
     Counsel that, according to her testimony, had been worn by 
     her on February 28, 1997, during a sexual encounter with the 
     President in the White House. The dress was tested for the 
     President's DNA. The test was positive.
       The President of the United States had lied directly to the 
     American people.


            The President's Appearance Before the Grand Jury

       After months of negotiation for an appearance by the 
     President, on July 17, 1998, the President was subpoenaed to 
     appear before a Federal grand jury in Washington by the 
     Independent Counsel assigned to investigate multiple issues 
     concerning the President, including issues involving 
     potential perjury by both the President and the Intern in the 
     Arkansas sexual harassment case, issues relating to the 
     President's relationship with the Intern, and issues relating 
     to alleged actions taken to influence the testimony of 
     witnesses in the Arkansas case and before the grand jury, 
     attempts to discredit the Intern by describing her as a 
     ``stalker,'' as ``ignorant,'' and as ``stupid,'' all done in 
     an alleged effort to cover up and conceal the underlying 
     relationship between the President and the Intern, to 
     obstruct the right of the Arkansas plaintiff to pursue her 
     sexual harassment claims in the Arkansas Federal Court, and 
     to obstruct the proceedings of the grand jury itself.
       After various losing motions and court proceedings 
     asserting various executive privileges against a Presidential 
     appearance before the grand jury, the President, on August 
     17, 1998, gave testimony voluntarily to the grand jury by 
     deposition given in the White House and piped live to the 
     grand jury. The prior subpoena was withdrawn by the 
     Independent Counsel.
       During and since this appearance, the president has 
     repeatedly acknowledged publicly that he had an inappropriate 
     relationship with the White House Intern but has insisted 
     that he was misleading but truthful in his depositions in the 
     Arkansas case and before the Federal grand jury and did not 
     commit any act that would constitute an obstruction of any 
     legal proceeding or the rights of any party associated with 
     any portion of this historic tale.


                      Impeachment of the President

       The Ethics in Government Act, 28 U.S.C. Section 
     Sec. 595(c), directs any Independent Counsel appointed under 
     that law to advise the House of Representatives of any 
     substantial and credible information received during the 
     course of an investigation that may constitute grounds for 
     the impeachment of the President of the United States.
       On September 9, 1998, the Office of Independent Counsel 
     submitted its referral to the House of Representatives 
     consisting of thousands of pages of sworn testimony from 
     many parties, recorded telephone conversations, video 
     tapes, interviews, reports, legal briefs, and arguments, 
     including the following partial introduction:
       ``This Referral presents substantial and credible 
     information that President Clinton criminally obstructed the 
     judicial process, first in a sexual harassment lawsuit in 
     which he was a defendant and then in a grand jury 
     investigation.''
       The Judiciary Committee of the House, in its report to the 
     full House of Representatives, recommended four Articles of 
     Impeachment of the President. On December 19, 1998, the House 
     of Representatives declined to approve two of the proposed 
     Articles, but did approve the following two Articles, and 
     delivered H. Res. 611 to the Senate for trial in accordance 
     with the provisions of Section 3 of Article I of the 
     Constitution of the United States:
       Impeachment Article I, the ``perjury'' article, accuses the 
     President of violating his constitutional duty to take care 
     that the laws are faithfully executed, of willfully 
     corrupting and manipulating the judicial process, and of 
     impeding the administration of justice for personal gain and 
     exoneration, in that:
       While under oath before the Federal grand jury, the 
     President gave perjurious testimony before the grand jury 
     concerning one or more of the following: (i) the nature and 
     details of his relationship with the Intern; (ii) prior 
     perjurious, false, and misleading testimony he gave in the 
     Arkansas case; (iii) prior false and misleading statements he 
     allowed his attorney to make about the Intern's affidavit in 
     the Arkansas case; and (iv) his corrupt efforts to influence 
     the testimony of witnesses and to impede the discovery of 
     evidence in the Arkansas case.
       Impleachment Article II, the ``obstruction of justice'' and 
     ``witness tampering'' article, accuses the President of 
     violating his constitutional duty to take care that the laws 
     are faithfully executed, of preventing, obstructing, and 
     impeding the administration of justice, and, to that end, of 
     engaging personally and through his subordinates and agents 
     in a course of conduct or scheme designed to delay, impede, 
     cover up, and conceal the existence of evidence and testimony 
     related to the Arkansas Federal sexual harassment case.
       In support of the accusation, Article II accuses the 
     President of seven specific acts of obstruction: (i) 
     corruptly encouraging the Intern to execute false affidavit 
     in the Arkansas case, (ii) corruptly encouraging the Intern 
     to give false testimony in the Arkansas case if and when she 
     was called to testify personally in that case, (iii) 
     corruptly engaging in, encouraging, or supporting a scheme to 
     conceal evidence that had been subpoenaed in the Arkansas 
     case, (iv) obtaining a job for the Intern in order to 
     corruptly prevent her truthful testimony in the Arkansas 
     case, (v) corruptly allowing his attorney in the Arkansas 
     case to make false statements to the Federal Judge 
     characterizing the Intern's affidavit in order to prevent 
     questioning deemed relevant by the Judge, (vi) corruptly 
     influencing his personal secretary to give false testimony in 
     the Arkansas case, and (vii) making false and misleading 
     statements to witnesses in the Federal grand jury 
     proceeding, confirmed by the witnesses, in order to 
     corruptly influence the testimony of those witnesses.

[[Page S1469]]

                        the trial in the senate

       H. Res. 611 was received in the Senate on December 19, 
     1998. The trial commenced on January 7, 1999. During the 
     trial, we have listened to hours of arguments from the House 
     Managers and Counsel for the President, and have engaged in 
     hours of internal Senate debate, both public and private. We 
     have been provided with access to thousands of pages and 
     other forms of evidence relating to the accusations contained 
     in the two Articles of Impeachment.
       Under the Constitution, the power to impeach (or 
     ``accuse'') a President of an impeachable offense is vested 
     solely in the House of Representatives. As Senators and 
     triers of both the facts and the law, we cannot ``accuse,'' 
     ``venture outside the record,'' or ``create and assert new 
     allegations.'' We are bound to cast our votes of ``guilty'' 
     or ``not guilty'' solely on the two Article of Impeachment as 
     presented by the House.
       I do not hold to the view of our Constitution that there 
     must be an actual, indictable crime in order for an act of a 
     public officer to be impeachable. It is clear to this Senator 
     that there are, indeed, circumstances, short of a felony 
     criminal offense that would justify the removal of a public 
     officer from office, including the President of the United 
     States. Manifest injury to the Office of the President, to 
     our Nation, and to the American people, and gross abuses of 
     trust and of public office clearly can reach the level of 
     intensity that would justify the impeachment and removal of a 
     leader. One of the Articles of Impeachment presented by the 
     House Judiciary Committee to the full House of 
     Representatives in this case charged the President with 
     precisely such an offense. The House of Representatives did 
     not approve that Article, and such a charge is, therefore, 
     not before us in this proceeding.
       The two Articles of Impeachment before the Senate in this 
     proceeding do in fact accuse the President of committing 
     three actual crimes, ``perjury before the grand jury,'' 
     `'obstruction of justice,'' and ``witness tampering,'' that 
     meet the requirements for conviction of an indicted defendant 
     in a criminal case brought under Federal law. The House 
     Managers and Counsel for the President reviewed those laws 
     extensively. Thus, in order to find the President ``guilty'' 
     under either Article, this Senator must conclude that all of 
     the statutory prerequisites to conviction are present that 
     would be required to convict the President of one or more of 
     those crimes, if this proceeding were, instead, the 
     prosecution of felony criminal indictments in a United States 
     District Court under Federal law.
       The President's Counsel did not significantly challenge the 
     underlying facts in the case, but insisted throughout (i) 
     that no crimes have been committed, and (ii) that, even if 
     crimes have been committed, they ``do not rise to the level 
     of the high crimes and misdemeanors'' contemplated by the 
     Constitution that would permit a conviction in this 
     proceeding, since a finding of ``guilty'' by 67 Senators 
     under either Article would, under the Constitution, 
     automatically result in the removal of the President from 
     office and prohibit him forever from holding another 
     office of profit or trust under the United States.


 perjury, obstruction of justice, and witness tampering as impeachable 
                                offenses

       Section 4 of Article II of our Constitution provides:
       ``The President . . . shall be removed from Office on 
     Impeachment for, and Conviction of, Treason, Bribery, or 
     other high Crimes and Misdemeanors.''
       Because of the uniqueness of this Constitutional process in 
     which ``guilt'' and ``punishment'' are combined, each 
     Senator, as a trier of both fact and law, before voting as to 
     the guilt or innocence of the President under either of the 
     Articles must answer the basic question: Do the crimes of 
     perjury, witness tampering, and obstruction of justice as 
     alleged in this proceeding rise to the level of the ``high 
     crimes and misdemeanors'' included in our Constitution that 
     would justify the automatic removal from office of the 
     President of the United States?
       The Supreme Court of the United States has observed that 
     there is an occasional misunderstanding to the effect that 
     the crime of ``perjury'' is somehow distinct from 
     ``obstruction of justice.'' United States v. Norris, 300 U.S. 
     564, 574 (1937). They are not. While different elements make 
     up each crime, each is calculated to prevent a court and the 
     public from discovering the truth and achieving justice in 
     our judicial system. Moreover, it is obvious that ``witness 
     tampering'' is simply another means employed to obstruct 
     justice.
       This Senate on numerous occasions has convicted impeached 
     Federal Judges on allegations of perjury. Moreover, the 
     historical fact is that ``high crimes and misdemeanors,'' as 
     used and applied in English law on which portions of our 
     Constitution were founded, included the crimes of 
     ``obstructing the execution of the lawful process'' and of 
     ``willful and corrupt perjury.'' Blackstone, Commentaries on 
     the Laws of England, a treatise described by James Madison as 
     ``a book which is in every man's hand.'' See article entitled 
     ``The True History of High Crimes and Misdemeanors,'' by Gary 
     L. McDowell, Director of the Institute of United States 
     Studies at the University of London, appearing in the Wall 
     Street Journal, January 25, 1999.
       Some argue that the precedents of the Senate in cases 
     involving Federal Judges are not applicable because Federal 
     Judges are not elected by the people and the President is. 
     This is a shocking analysis to this Senator. That the 
     President is elected should call for a ``higher'' standard of 
     conduct, not a lower one. The fact is that the standards are 
     set by the Constitution for all officers of the Federal 
     government. They are precisely the same, and we are obligated 
     to apply them evenly.
       It is argued by others that this test leaves Presidents at 
     risk of being impeached and convicted for trivial offenses. 
     The two-thirds vote requirement for conviction imposed by the 
     Constitution, itself, is designed to protect public officers 
     from precisely such a result.
       The President's Counsel and a number of Senators advance a 
     ``felony-plus'' interpretation of the Constitutional terms 
     ``high crimes and misdemeanors.'' They seem to agree that the 
     crimes of perjury and obstruction of justice are ``high 
     crimes'' under the Constitution, but they argue that, even if 
     guilt is admitted, nevertheless, a Senator should vote ``not 
     guilty,'' on any article of impeachment of a President, if 
     the ``economy is good,'' if the underlying facts in the case 
     are ``just about sex,'' or if the Senator simply feels for 
     whatever personal reason that the President ought to stay in 
     office despite having committed felonies while holding it.
       To this Senator, this astounding application of the plain 
     language of our Constitution strikes at the very heart of the 
     rule of law in America. It replaces the stability guaranteed 
     by the Constitution with the chaos of uncertainty. Not only 
     does it obliterate the noble ideal that our highest public 
     officer should set high moral standards for our Nation, it 
     says that the officer is free to commit felonies while doing 
     it if the economy is good, if the crime is just about sex, or 
     if, except for the crime, ``things are going pretty well 
     right now,'' or simply that ``they can indict and try the 
     President for the crime after leaving office in a couple of 
     years.''
       I will not demean our Constitution or the office of the 
     Presidency of the United States by endorsing the felony-plus 
     standard.


              Elements Required for Conviction of Perjury

       Lying is a moral wrong. Perjury is a lie told under oath 
     that is legally wrong. To be illegal, the lie must be 
     willfully told, must be believed to be untrue, and must 
     relate to a material matter. Title 18, Section 1621 and 1623, 
     U.S. Code.
       If President Washington, as a child, had cut down a cherry 
     tree and lied about it, he would be guilty of ``lying,'' but 
     would not be guilty of ``perjury.''
       If, on the other hand, President Washington, as an adult, 
     had been warned not to cut down a cherry tree, but he cut it 
     down anyway, with the tree falling on a man and severely 
     injuring or killing him, with President Washington stating 
     later under oath that it was not he who cut down the tree, 
     that would be ``perjury.'' Because it was a material fact in 
     determining the circumstances of the man's injury or death.
       Some would argue that the President in the second example 
     should not be impeached because the whole thing is about a 
     cherry tree, and lies about cherry trees, even under oath, 
     though despicable, do not rise to the level of impeachable 
     offenses under the Constitution. I disagree.
       The perjury committed in the second example was an attempt 
     to impede, frustrate, and obstruct the judicial system in 
     determining how the man was injured or killed, when, and by 
     whose hand, in order to escape personal responsibility under 
     the law, either civil or criminal. Such would be an 
     impeachable offense. To say otherwise would be to severely 
     lower the moral and legal standards of accountability that 
     are imposed on ordinary citizens every day. The same standard 
     should be imposed on our leaders.
       Nearly every child in America believes that President 
     Washington, as a child himself, did in fact cut down the 
     cherry tree and admitted to his father that he did it, saying 
     simply: ``I cannot tell a lie.''
       I will not compromise this simple but high moral principle 
     in order to avoid serious consequences to a successor 
     President who may choose to ignore it.


 elements required for conviction of witness tampering and obstruction 
                               of justice

       Whoever knowingly uses intimidation or physical force, 
     threatens, or corruptly persuades another person, or attempts 
     to do so, or engaged in misleading conduct toward another 
     person, with intent to--
       (i) influence, delay, or prevent the testimony of any 
     person in an official proceeding;
       (ii) cause or induce any person to (A) withhold testimony 
     or evidence from an official proceeding, (B) alter or destroy 
     evidence in an official proceeding; (C) evade legal process 
     summoning that person as a witness or produce evidence in an 
     official proceeding to which the person has been summoned;
       (iii) harass another person and thereby hinder, delay, 
     prevent, or dissuade any person from attending or testifying 
     in an official proceeding; or
       (iv) corruptly influence, obstruct, or impede, or endeavor 
     to influence, obstruct, or impede, the due administration of 
     justice;

     is guilty of witness tampering and/or obstruction of justice. 
     Title 18, Sections 1512 and 1503, U.S. Code.
       The elements of these crimes are evident from the laws 
     themselves and do not need amplification here.

[[Page S1470]]

                my votes on the articles of impeachment

       Based upon my analysis of the facts of this case and my own 
     conclusions of law, I have concluded:
       (i) The President of the United States willfully, and with 
     intent to deceive, gave false and misleading testimony under 
     oath with respect to material matters that were pending 
     before the Federal grand jury on August 17, 1998, as alleged 
     in Article I presented to the Senate. I, therefore, vote 
     ``Guilty'' on Article I of the Articles of Impeachment of the 
     President in this Proceeding.
       (ii) The President of the United States engaged in a 
     pattern of conduct, performed acts of willful deception, and 
     told and disseminated massive falsehoods, including lies told 
     directly to the American people, that were designed and 
     corruptly calculated to impede, obstruct, and prevent the 
     plaintiff in the Arkansas Federal sexual harassment case from 
     seeking and obtaining justice in the Federal court system of 
     the United States, and to further prevent the Federal grand 
     jury from performing its functions and responsibilities under 
     law, I, therefore, vote ``Guilty'' on Article II of the 
     Articles of Impeachment of the President in this proceeding.


                article I, Perjury--Explanation of Vote

       This Article accuses the President, while giving sworn 
     testimony on August 17, 1998, before the Federal grand jury 
     in Washington, D.C., of willfully corrupting and impeding the 
     judicial process and the administration of justice by giving 
     false and perjurious testimony about his relationship with 
     the White House Intern, about his January 17, 1998, 
     deposition testimony in the Arkansas sexual harrassment case, 
     about his role in developing and tendering to the Federal 
     Judge in the Arkansas case an affidavit that was knowingly 
     false while giving his deposition in the Arkansas case, and 
     about his attempts to influence the testimony of White House 
     employees and other witnesses in the Arkanksas case who were 
     at the time also subject to the jurisdiction of the grand 
     jury.
       In reaching my decision with respect to this Article, I 
     have concluded beyond a reasonable doubt that the President 
     gave false and misleading testimony in the Arkansas sexual 
     harrassment case and in his appearance before the Federal 
     grand jury.
       At the trial in the Senate, the President's Counsel argued 
     that, even if it were to be admitted that the testimony in 
     both instances were false and misleading, the testimony 
     would, nevertheless, not amount to perjury because it does 
     not reach the level of ``materiality'' that is required for a 
     lie to rise to the level of a crime under Federal law.
       They attempt to trivialize the issues raised by Article I 
     by reference to such questions as ``Who touched whom, and 
     where,'' and to answers to questions by the President such as 
     ``It depends on what the meaning of `is' is.''
       The false testimony complained of in Article I of the 
     Articles of Impeachment relates to testimony before the grand 
     jury, and only indirectly to the testimony in the Arkansas 
     case. The Federal grand jury was investigating broad issues 
     and many persons at the time the President gave false and 
     misleading testimony before it.
       Willful, corrupt, and false sworn testimony before a 
     Federal grand jury is a separate and distinct crime under 
     applicable law and is material and perjurious if it is 
     ``capable'' of influencing the grand jury in any matter 
     before it, including any collateral matters that it may 
     consider. See, Title 18, Section 1623, U.S. Code, and Federal 
     court cases interpreting that Section.
       The President's testimony before the Federal grand jury was 
     fully capable of influencing the grand jury's investigation 
     and was clearly perjurious.


        article ii, obstruction of justice--explanation of vote

       When, on January 26, 1998, the President of the United 
     States pointed his finger at the American people and 
     represented to them that he was the victim of lies and not 
     their perpetrator, he lied to America. The evidence is 
     overwhelming that he did so because all of his ``ducks were 
     in a row.''
       The White House Intern had executed a false affidavit; 
     subpoenaed gifts had been hidden; his own false deposition 
     had been given; other witnesses had testified falsely based 
     upon his own false representations to them; retribution 
     against the White House Intern had been programmed should she 
     abandon loyalty; and loyalty had been confirmed by the 
     Intern's acceptance of a special new job in New York, that 
     represented, according to a friend of the President, 
     ``Mission accomplished.''
       Then came the dress, the tapes, and the Federal grand jury. 
     The attempt to obstruct and cover-up grew, expanded, and 
     developed a life of its own. It overpowered the underlying 
     offense itself. A new strategy was required, fast: The 
     President was advised: ``Admit the sex, but never the lies.'' 
     Shift the blame; change the subject. Blame it on the 
     plaintiff in the Arkansas case. Blame it on her lawyers. 
     Blame it on the Independent Counsel. Blame it on 
     partisanship. Blame it on the majority members of the House 
     Judiciary Committee. Blame it on the process.
       The blame belongs to the President of the United States. 
     This juror has concluded that the President is guilty of 
     obstructing justice beyond a reasonable doubt, as alleged in 
     Article II of the Articles of Impeachment in this proceeding.


                          concluding statement

       This has been a case about civil rights. It has been about 
     the right of the weakest and the strongest among us to have 
     equal access to our system of justice in order to pursue 
     legal and Constitutional rights and to fix responsibility for 
     alleged legal wrongs.
       During the last half of this passing century, we have 
     managed to maintain the proposition established over 200 
     years ago that every American is entitled to equal justice 
     under the law.
       In the middle of the century, our Country and our courts 
     began to recognize the inherent evil of discrimination based 
     on race and national origin. In the last two decades, we have 
     begun to address issues of gender. We have enacted sexual 
     harassment laws that have become the symbols of the high 
     moral standards of our Country. They permit half of our 
     citizens to work freely among us without fear of harm and 
     sexual abuse.
       It has been said by many, in attempts to demean this 
     proceeding, that this case is, simply, ``all about sex.'' In 
     some ways, it is. It is about the right of an employed female 
     American living in the State of Arkansas to hold a job 
     without being forced to engage in it by the Governor of that 
     State. That is not the question before us, and I express no 
     opinion on that subject. But I do know that the President of 
     the United States willfully and unlawfully obstructed her 
     efforts in the Federal courts of our Land to pursue her 
     cause. We are forced to leave it to history to determine 
     whether her cause was factually just, and to define the 
     message that the conduct of our Country's highest public 
     officer sends into the next century.
       If only the President had followed the simple, high moral 
     principle handed to us by our Nation's first leader as a 
     child and had said early in this episode ``I cannot tell a 
     lie,'' we would not be here today. We would not be sitting in 
     judgment of a President. We would not be invoking those 
     provisions of the Constitution that have only been applied 
     once before in our Nation's history.
       But we should all be thankful that our Constitution is 
     there, and we should take pride in our right and duty to 
     enforce it. A hundred years from now, when history looks back 
     to this moment, we can hope for a conclusion that our 
     Constitution has been applied fairly and survives, that we 
     have come to principled judgments about matters of national 
     importance, and that the rule of law in American has been 
     sustained.

  Mr. CONRAD. Mr. Chief Justice, I have served twelve years in the 
United States Senate.
  I respect this institution and all of you as colleagues. I especially 
respect the job our leaders have done in this trial. They have 
performed in the highest tradition of the United States Senate. Most of 
all, I respect our oath of office: to ``preserve, protect, and defend 
the Constitution of the United States.'' I know all of us take that 
oath seriously.
  At the end of this proceeding, however, we may reach different 
conclusions about what the Constitution compels us to do. The simple 
truth is that this case is not black and white. As Mr. Manager Graham 
said, reasonable people may come to different conclusions.
  There is one thing on which we all agree: The President's conduct was 
wrong. In fact, it was very wrong. But the question before us is not 
whether the President's conduct was wrong. The question is whether that 
conduct meets the Constitutional standard for removing a President from 
office.
  That requires us to make a profound judgment on whether we should 
overturn the results of a national election. 67 members in this chamber 
can nullify the votes of the 47 million Americans who voted for 
President Clinton. That is an awesome power. It must be used with great 
restraint.
  There are three questions we must answer in the affirmative to remove 
a President: First, did the President commit the crimes he is charged 
with? Second, are these crimes properly addressed by impeachment, or 
would they be better left to the criminal justice system? Third, do the 
charges rise to the level of high crimes and misdemeanors and justify 
the removal of the President of the United States?


                    the sufficiency of the evidence

  Let me start with the first question. The charges against the 
President are perjury and obstruction of justice.
  Five experienced Federal prosecutors representing both Republican and 
Democratic Administrations concluded that no responsible Federal 
prosecutor would bring perjury charges based on the facts in this case.
  The President in his grand jury testimony acknowledged an intimate 
and inappropriate relationship with Monica Lewinsky. The details of 
that relationship are in conflict. But I do not believe relatively 
minor differences in the details of that relationship would result in a 
perjury conviction.
  On the obstruction charges, again the federal prosecutors told us 
they would not bring charges based on the facts in this case.

[[Page S1471]]

  Ms. Lewinsky has testified that no one ever asked her to lie or 
promised her a job for her silence. Ms. Lewinsky further testified she 
never discussed the contents of her testimony with the President, ever. 
Finally, she also testified that she believed she could file a truthful 
affidavit.
  But there are two elements of the obstruction of justice charges that 
do trouble me.
  One is the transfer of gifts from Ms. Lewinsky to Betty Currie. That 
could constitute concealment of evidence. But Betty Currie has 
testified five times that Ms. Lewinsky called her to arrange for the 
transfer of gifts. And both the President and Betty Currie have denied 
that the President initiated the transfer.
  The second troubling charge is the questioning of Betty Currie by the 
President after his deposition in the Jones case. I find it hard to 
believe the President was just refreshing his memory when on two 
occasions he put the same set of questions to Ms. Currie. That could 
constitute witness tampering.
  But at the time of these conversations, Betty Currie was not a 
witness in any judicial proceeding. And she has testified that she did 
not feel pressured to agree with the President.
  Although I am not certain that there was no wrongdoing, I do conclude 
that the charges have not been proven beyond a reasonable doubt.


                           impeachable crimes

  That leads me to the second question: even if these charges were 
proven, is this a matter for impeachment, or should it be left to the 
ordinary course of judicial proceeding?
  For me, it is a question best answered by the rule of law that 
governs us all: the Constitution of the United States.
  James Madison kept a journal of the Constitutional Convention. In it, 
he said many of the Founders opposed impeachment altogether. Others 
believed impeachment was needed to protect against treason, bribery, or 
other ``attempts to subvert the Constitution.'' So a carefully crafted, 
very narrow compromise was adopted.
  Article II, section 4 originally read: ``The President . . . shall be 
removed from office on impeachment for, and conviction of, Treason, 
Bribery or other high crimes and misdemeanors against the United 
States.''
  James Wilson, a nineteenth century constitutional scholar has written 
that impeachment was designed for ``great and publick [sic] offences by 
which the Commonwealth was brought into danger.''
  These charges against the President just do not measure up to that 
standard. Hiding presents under a bed. Asking a secretary leading 
questions. These can hardly be the great and public offenses that our 
Founding Fathers had in mind. These charges, and the facts behind them, 
simply do not bring our commonwealth into danger.
  So is the President above the law? Most emphatically, no.
  William Rawles, a contemporary of the Founders and a distinguished 
commentator on the Constitution wrote: ``In general, those offenses 
which may be committed equally by a private person as a public officer, 
are not the subject of impeachment . . . [A]ll offenses not immediately 
connected with office, except the two expressly mentioned, are left to 
the ordinary course of judicial proceeding.''
  I do not argue that no private wrongs can rise to the level of 
impeachable offense, but they must be heinous crimes.
  Article I, section 3, of the Constitution says: ``Judgment in Cases 
of Impeachment shall not extend further than to removal from Office . . 
. but the party convicted shall nevertheless be liable and subject to 
Indictment, trial, judgment and punishment according to law.''
  The President is not above the law. He can be prosecuted, indicted, 
convicted, and sentenced for alleged wrongful acts, just like any other 
American.
  We have our Founding Fathers' own words, distinguishing between 
public crimes and those that involve the President's conduct as a 
private individual. We have their deeds to guide us as well. When Vice 
President Aaron Burr killed Alexander Hamilton in a duel and was 
indicted for murder, impeachment was not even considered.
  Almost two hundred years later, the House Judiciary Committee 
dismissed a tax evasion charge against President Nixon when an 
overwhelming majority of the Committee concluded, in the words of 
Congressman Ray Thornton, ``these charges may be reached in due course 
in the regular process of law.''
  In the case before us today, the underlying offense is that the 
President had an extra-marital affair. He is alleged to have lied about 
that under oath, and to have obstructed justice. These are serious 
allegations, and we have considered them seriously.
  Offensive as they were, the President's actions have nothing to do 
with his official duties, nor do they constitute the most serious of 
private crimes. In my judgment, these are matters best left to the 
criminal justice system.


                          REMOVAL FROM OFFICE

  That brings me to the third and final question: do the charges so 
fundamentally threaten our democratic system of government that they 
constitute high crimes and misdemeanors and justify removal of the 
President from office?
  Our Founding Fathers told us two things about impeachment. First, the 
matter at hand had better be a very significant crime--a ``high crime'' 
that threatens our fundamental freedoms. These alleged crimes do not 
meet that standard. Second, they told us that it better not be 
partisan. That's why they required a \2/3\ vote in the Senate to remove 
a President.
  They feared the passions of what they called a ``faction.'' This is a 
classic case of just that. This proceeding was partisan in the House. 
It has become partisan here. I'm not casting aspersions here. I am 
stating a fact.
  Impeachment will fail. And it should. It lacks the fundamental 
legitimacy only a bipartisan consensus can provide.
  My colleagues, the Republic still stands. Our safety as a Nation is 
not in jeopardy. Our Constitution has not been shaken.
  Voting to impeach the President under these circumstances would 
undermine the core principle that lies at the heart of our system of 
government: the separation of powers. Our Founding Fathers made it 
difficult to remove a sitting President by design. They were convinced 
of the wisdom of having three co-equal branches of government. They did 
not want the President serving at the pleasure--or being removed at the 
displeasure--of the legislative branch.
  Our Founding Fathers were right. Removing a popularly elected 
President from office would have implications not only for this 
President, but for every President to follow, and ultimately for the 
very system of government who hold so dear. Thomas Jefferson once said, 
``I know of no safe depository of the ultimate powers of the society 
but the people themselves.''
  My colleagues, we are a democracy. In a government ``of the people, 
by the people, and for the people,'' we cannot ignore the will of the 
people. Removing the President under these circumstances would be the 
most fundamental violation of the rule of law. It would overturn the 
rule of the people as expressed in a free election. It would adopt 
minority rule, overturning the clear wishes of a majority of the 
American people.
  Our freedom and liberty are not threatened by the wrongful acts of 
this President. But our freedom and liberty might be threatened if a 
minority can overturn the will of the majority.
  There may yet come a time when we have no choice but to substitute 
our judgment for the will of the people. I pray I never see that time. 
I know it has not come in this case.
  My colleagues, I will vote against the articles of impeachment in the 
case of William Jefferson Clinton.
  Mr. HUTCHINSON. We are nearing one of the most important votes most 
of us will ever cast.
  As an Arkansan, the impeachment process has been long and difficult. 
President Clinton is a dominating political influence in Arkansas and 
still immensely popular in my home state, so I am acutely aware of the 
political implications of this vote for me.
  As an Arkansan, I share pride in one of our own having achieved so 
much and having attained the highest elective office in the land. 
Arkansas has produced more than its share of political leaders--the 
Joe. T. Robinsons, the

[[Page S1472]]

Hattie Caraways, the John McClellans, and J.W. Fulbrights. But never 
before has an Arkansan reached the Presidency. I, with all of Arkansas, 
was proud. We knew William Jefferson Clinton's intellect, his grasp of 
policy issues. We knew his personality, his charisma. We had seen for 
years his remarkable political skills, his uncanny ability to connect 
with people. I believe I'm like most Arkansans--deeply conflicted--
pride mixed with embarrassment, and most of all pain.
  This trial is not about private conduct. It is not about the 
President's personal behavior. We are all sinners. We are all flawed 
human beings. The President's personal life is his personal life. It's 
his business, not mine. The facts that are relevant are those relating 
to law.
  This trial is not about process. It seems to me that throughout this 
long drama, many have sought to put Ken Starr on trial or the House 
managers on trial. Was Ken Starr on a vendetta or was he just doing an 
unpleasant job? Whichever, we have to deal with the facts and the 
evidence. Did the House managers, as we have heard from the President's 
counsel so often, ``want to win too much?'' Frankly, both sides wanted 
to win, both sides were fervent in their presentations, and I'm glad we 
didn't hear half-hearted arguments. A vigorous prosecution and defense 
is the basis of a successful adversarial system. What we are doing is 
important. I'm glad they believe in what they are doing, but in the end 
it's the facts, the evidence, with which we must grapple. The process 
with all its flaws is secondary. The reality is, we are faced with a 
body of evidence.
  This trial is not about punishment. It's not about getting our pound 
of flesh from the Democrats. It's not about getting our retribution on 
the President. It's not political vengeance. It's not about polls. If 
polls had prevailed, Andrew Johnson would have been removed, and that 
would have been wrong. To argue that a popular President should not be 
removed regardless of his actions, merely because he is popular, is to 
lower our Constitutional Republic to a meaningless level.
  To say popularity should be a factor in our decision is to say that 
bad poll numbers and unpopularity is an argument for removal of a 
President. How contrary to our constitutional system. The popularity of 
this President should never been mentioned, in my opinion. Nor should 
political consequences of our votes be the basis for our decision of 
whether to remove this President.
  What I had to weigh was the evidence. Voting to remove a President--
the very thought sobers and humbles me. But the facts are so 
inescapable, the evidence so powerful.
  I am convinced beyond a reasonable doubt that when the President 
testified before the federal grand jury and said that he had been 
truthful to his aides in what he had said about his relationship with 
Ms. Lewinsky--that he committed perjury and obstructed justice. When he 
told Sidney Blumenthal that Ms. Lewinsky was a stalker and he was a 
victim, he was not being truthful. He was trying to destroy her 
reputation and he would have, had it not been for the dress. He lied, 
and he lied about his lie to the grand jury.
  I am convinced beyond a reasonable doubt that when the President led 
Betty Currie through a false rendition of his relationship with Ms. 
Lewinsky that he was tampering with a witness and obstructing justice. 
He did this not once, but twice. His explanation that he was refreshing 
his memory offends all common sense. When he denied this coaching 
before the grand jury, he obstructed justice and committed perjury. Of 
course, there is much more to this case, but how much do we need?
  If this trial was only about one man's actions, it might be easier. 
But this trial is about so much more--the office of the Presidency, the 
precedent of lowering the bar on the importance of our nation's rule of 
law. It's about the oath Bill Clinton took when he was sworn in as our 
President, to uphold our nation's laws. And it's about the oath the 
President took when he swore to tell the truth, the whole truth and 
nothing but the truth before the grand jury. The sanctity of the oath 
is the basis of our judicial system. To lessen the significance of 
violating the oath is in fact an attack on our legal system and the 
rule of law.
  There are men and women across America who languish behind bars today 
because they committed the crime of perjury, lying under oath. How can 
we tell America that our President, the highest government official in 
the land, is treated differently?
  While I was growing up in Gravette, Arkansas, life seemed much more 
simple than it is today. It was a simpler time. But then and now, the 
bedrock of our society is still truth and justice. This hasn't changed. 
On August 25, 1825, Daniel Webster said, ``Whatever government is not a 
government of laws, is a despotism, let it be called what it may.''
  Today is a somber day for our country. This trial has been a sad 
chapter of American history, and I have a heavy heart. As difficult as 
these votes will be, I know that I could not serve the people of 
Arkansas with a clear conscience unless I do what I believe is right 
and uphold the law. I will vote guilty on both articles of impeachment.
  Mrs. MURRAY. Mr. Chief Justice, this past year certainly has been a 
difficult time for America. I have to say, as a citizen, as a woman, 
and as a parent, I cannot begin to describe how deeply disappointed and 
angry I am with the President.
  I came to Washington, D.C. in 1992. Over the last 6 years I have 
worked with Bill Clinton. I trusted him. I thought I knew him. I 
refused to believe he would demean the presidency in the way that he 
has. His behavior was appalling and has hurt us all.
  But as a Senator, I have an obligation under the Constitution that 
transcends any sense of personal betrayal I might have. I am sworn to 
render my judgment based on the evidence presented and the larger 
question of what the framers of the Constitution meant when they wrote 
the impeachment clause.
  I have listened carefully throughout this debate. I have read and 
listened to every available article and argument. Like all of you, I 
have spent more hours on this case that I ever wanted to and have felt 
the tremendous weight of this decision.
  I believe that perjury and obstruction of justice can be considered 
high crimes. The question is whether the facts in this case support the 
allegations that the President committed these crimes.
  The Republican House managers presented a theory. But after listening 
carefully to both sides and, most importantly, reviewing the words of 
the witnesses themselves, they did not prove their theory of perjury 
and obstruction of justice beyond a reasonable doubt to me. If we are 
to remove a President for the first time in our Nation's history, none 
of us should have any doubts.
  We must also ask ourselves how it would affect the country to remove 
this President after such a partisan process. A conversation I had with 
a constituent not long ago really struck a chord with me. He said to 
me,

       I am old enough to remember President Nixon's resignation. 
     I know how deeply it affected the psyche of an entire 
     generation. I know it made many of us cynical of politics for 
     a long, long time. Please don't put us all through that 
     turmoil again. This country would be punished and hurt by a 
     presidential removal. This country doesn't deserve to be 
     punished for this President's behavior.

  So despite my personal disgust with the President's actions, I intend 
to vote ``not guilty'' on both articles of impeachment.
  Our founders were wise. They knew the President would be imperfect. 
They knew he would stumble and fall. While it would be wrong to suggest 
they approved of such behavior, they were not interested in the 
individual and his flaws. They sought to protect the nation.
  They set a very high standard for the legislative body to meet before 
overturning the results of an election--the very basis of our 
democracy. They declared it would only be for the crimes most 
threatening to our nation. They did not establish the impeachment 
process to punish a wrongdoer; they established it to protect America.
  This President's behavior was reprehensible, but it does not threaten 
our nation. In the past year, despite the scandal that ran on the front 
page nearly every day, our country has prospered. Our economy is 
growing. Our waters and air are cleaner. Our communities are safer. Our 
education system is stronger. America is not poised on the brink of 
disaster. Our democracy is safe.

[[Page S1473]]

  But what of our legacy in this process? What will I tell my daughter, 
or tell a classroom of young students? Well, it doesn't take a lawyer 
or a constitutional scholar to tell them that no matter how difficult 
it is, tell the truth. The lie will hurt you much, much more. It can 
consume you, your friends, your family, your nation. It can destroy 
those you love and diminish you forever in their eyes.
  This President now knows that. His legacy will be tainted with the 
anguish he inflicted on the people and country he loves because of his 
selfish and disgraceful behavior. It is a weight that he alone will 
bear for the rest of his life.
  We have heard a lot of emotions and strong feelings on this floor 
from both sides. I respect the deep convictions of everyone in this 
room. I am saddened it has appeared partisan. But it is my hope that we 
can now turn the page on this sad part of America's history and put an 
end to the recriminations.
  Mr. Chief Justice, point of personal privilege.
  It is hard to stand before you without Scott Bates behind me. I knew 
him as all of you did as a loyal, excellent Senate employee. But I also 
knew him as a Dad. We stood together as parents on a soccer field 
cheering on our daughters in victory and hugging them in defeat. He 
will be missed.
  But his absence should serve as a reminder that although we have been 
totally engrossed in this issue for far too long, there is life outside 
of these doors. There are friends to be hugged, kids to be educated, 
parents to take care of.
  I hope when this day is over, we will set aside our differences and 
remember there are a lot more important things each of us needs to be 
concentrating on, both professionally and personally. It's time to move 
on.
  Mr. McCAIN. Mr. Chief Justice, I intend to vote to convict the 
President of the United States on both articles of impeachment. To say 
I do so with regret will sound trite to some, but I mean it sincerely. 
I deeply regret that this day has come to pass.
  I bear no animosity for the President. I take no partisan 
satisfaction from this matter. I don't lightly dismiss the public's 
clear opposition to conviction. And I am genuinely concerned that the 
institution of the Presidency not be harmed, either by the President's 
conduct, or by Congress' reaction to his conduct.
  Indeed, I take no satisfaction at all from this vote, with one 
exception--and an important exception it is--that by voting to convict 
I have been spared reproach by my conscience for shirking my duty.
  The Senate faces an awful choice, to be sure. But, to my mind, it is 
a clear choice. I am persuaded that the President has violated his oath 
of office by committing perjury and by obstructing justice, and that by 
so doing he has forfeited his office.
  As my colleagues across the aisle have so often reminded me, the 
country does not want the President removed. And, they ask, are we not, 
first and foremost, servants of the public will? Even if we believe the 
President to be guilty of the offenses charged, and even if we believe 
those offenses rise to the level of impeachment, should we risk the 
national trauma of forcing his removal against the clearly expressed 
desire of the vast majority of Americans that he should not be removed 
even if he is guilty of perjury and obstruction of justice?
  I considered that question very carefully, and I arrived at an answer 
by reversing the proposition. If a clear majority of the American 
people were to demand the conviction of the President, should I vote 
for his conviction even if I believed the President to be innocent of 
the offenses he is charged with? Of course not. Neither, then, should I 
let public opinion restrain me from voting to convict if I determine 
the President is guilty.
  But are these articles of impeachment of sufficient gravity to 
warrant removal or can we seek their redress by some other means short 
of removing the President from office? Some of those who argue for a 
lesser sanction, including the President's able counsel, contend that 
irrespective of the President's guilt or innocence, neither of the 
articles charge him with high crimes and misdemeanors. Nothing less 
than an assault on the integrity of our constitutional government rises 
to that level. The President's offenses were committed to cover up 
private not public misconduct. Therefore, if he thwarted justice he did 
so for the perfectly understandable and forgivable purpose of keeping 
hidden an embarrassing personal shortcoming that, were it discovered, 
would harm only his family and his reputation, but would not impair our 
system of government.
  This, too, is an appealing rationalization for acquittal. But it is 
just that, a rationalization. Nowhere in the Constitution or in the 
expressed views of our founders are crimes intended to conceal the 
President's character flaws distinguished from crimes intended to 
subvert democracy. The President thwarted justice. No matter how unfair 
he or we may view a process that forces a President to disclose his own 
failings, we should not excuse or fail to punish in the 
constitutionally prescribed manner evidence that the President has 
deliberately thwarted the course of justice.
  I do not desire to sit in judgement of the President's private 
misconduct. It is truly a matter for him and his family to resolve. I 
sincerely wish circumstances had allowed the President to keep his 
personal life private. I have done things in my private life that I am 
not proud of. I suspect many of us have. But we are not asked to judge 
the President's character flaws. We are asked to judge whether the 
President, who swore an oath to faithfully execute his office, 
deliberately subverted--for whatever purpose--the rule of law.
  All of my life, I have been instructed never to swear an oath to my 
country in vain. In my former profession, those who violated their 
sworn oath were punished severely and considered outcasts from our 
society. I do not hold the President to the same standard that I hold 
military officers to. I hold him to a higher standard. Although I may 
admit to failures in my private life, I have at all times, and to the 
best of my ability, kept faith with every oath I have ever sworn to 
this country. I have known some men who kept that faith at the cost of 
their lives.
  I cannot--not in deference to public opinion, or for political 
considerations, or for the sake of comity and friendship--I cannot 
agree to expect less from the President.
  Most officers of my acquaintance would have resigned their commission 
had they been discovered violating their oath. The President did not 
choose that course of action. He has left it to the Senate to determine 
his fate. And the Senate, as we all know, is going to acquit the 
President. As much as I would like to, I cannot join in his acquittal.
  The House managers have made, and I believe some of my colleagues on 
the other side of the aisle would agree, a persuasive case that the 
President is guilty of perjury and obstruction. The circumstances that 
led to these offenses may be tawdry, trivial to some, and usually of a 
very private nature. But the President broke the law. Not a tawdry law, 
not a trivial law, not a private law.
  The tortured explanations with which the President's attorneys have 
tried to defend him against both articles fail to raise reasonable 
doubts about his guilt. It seems clear to me, and to most Americans, 
that the President deliberately lied under oath, and that he tried to 
encourage others to lie under oath on his behalf. Presidents may not be 
excused from such an abuse no matter how intrusive, how unfair, how 
distasteful are the judicial proceedings they attempt to subvert.
  The President's defenders want to know how can I be certain that the 
offenses, even if true, warrant removal from office. They are not 
expressly mentioned in the Constitution as impeachable offenses. Nor 
did the founders identify perjury or obstruction as high crimes or high 
misdemeanors. Were an ordinary citizen accused of perjury in a civil 
proceeding he or she would in all likelihood not be prosecuted or 
forced out of political necessity into a perjury trap.
  No, an ordinary citizen would not be treated as the President has 
been treated. But ordinary citizens don't enforce the laws for the rest 
of us. Ordinary citizens don't have the world's mightiest armed forces 
at their command. Ordinary citizens do not usually have the opportunity 
to be figures of historical importance.

[[Page S1474]]

  Presidents are not ordinary citizens. They are extraordinary, in that 
they are vested with so much more authority and power than the rest of 
us. We have a right; indeed, we have an obligation, to hold them 
strictly accountable to the rule of law.
  Are perjury and obstruction of justice expressly listed as high 
crimes and misdemeanors? No. Why? Because they are self-evidently so. 
Just as the President is self-evidently the nation's chief law 
enforcement officer, despite his attorneys' quibbling to the contrary. 
It is self-evident to us all, I hope, that we cannot overlook, dismiss 
or diminish the obstruction of justice by the very person we charge 
with taking care that the laws are faithfully executed. It is self-
evident to me. And accordingly, regretfully, I must vote to convict the 
President, and urge my colleagues to do the same.''
  Mr. JOHNSON. Mr. Chief Justice, the great question now before the 
Senate is not whether the rule of law will prevail--it surely will--
both by the actions of this body and by possible proceedings within the 
judicial system.
  The question before the Senate is whether we should take action 
against the President beyond that allowed for in our nation's courts. 
We are, I believe, confronted by two threshold questions which must 
first be resolved before consideration can or need be given to weighing 
the evidence presented by the House Managers. First, is whether the 
Articles of Impeachment have been adequately drawn to allow the accused 
to know with precision the wrong-doing to which he is accused, and to 
require that a \2/3\ majority vote of the Senate be secured upon a 
single act of wrong-doing in order to convict. As a second threshold 
matter, if the Articles are at least adequately drawn, do they, if 
true, allege wrong-doing of sufficient import to justify for the very 
first time in our nation's long history, the over-turning of the 
people's will as expressed in a free, fair and democratic national 
election? I am troubled by the adequacy of the articles, but even 
accepting them, the second threshold question of impeachability is 
simply not met.
  Only if these threshold questions are adequately met in the mind of 
an individual Senator, can that Senator proceed to determine whether 
the weight of the evidence is sufficient to convict. And even if both 
threshold questions are ignored, it is impossible for me to say that 
the circumstantial evidence presented reaches a ``beyond a reasonable 
doubt'' standard on either article. Reasonable doubt means that if 
there are multiple reasonable theories as to what occurred--if one of 
the reasonable theories is consistent with innocence, then an acquittal 
must follow. Especially relative to article two--I can understand the 
belief of some that a plausible scenario of obstruction was 
established. Some may even believe that the President was more likely 
than not obstructing justice. But the evidence is clearly not so 
powerful as to lead anyone to believe that no reasonable and innocent 
scenario remains.
  I am both profoundly honored and humbled to have this historic 
responsibility to participate with my Senate colleagues, Republican and 
Democrat, in perhaps the most grave proceeding envisioned by the 
authors of our national Constitution. I have listened carefully to both 
sides of this dispute, and I have also carefully reviewed the thoughts 
of many of our nation's leading scholars of history and constitutional 
law. It is clear to me that the results of this trial have 
ramifications which go far beyond the fortunes of William Jefferson 
Clinton.
  The decision made by the Senate this week will have an utterly 
profound impact on the relationship between the executive and 
legislative branches of our government for the rest of time. 
Accordingly, it is essential that the decisions made in this proceeding 
not be driven by transitory passions of partisan politics, but rather, 
with an eye toward the long-term stability and integrity of our 
democracy.
  My humble reading of history leads me to believe that the never-
failing bipartisan honoring of national presidential elections over 
these past two centuries has been one of the greatest sources of our 
national success. While holding a president accountable to all the same 
civil and criminal laws that apply to the general citizenry is 
absolutely essential, the writers of our Constitution properly intended 
for the reversal of fair elections at the hands of Congress to be 
exceedingly rare and difficult.
  The learned opinions of our nation's leading scholars overwhelmingly 
support the understanding that presidents should not be removed from 
office by Congress short of some horrific personal misconduct or 
misconduct which arises from executive authority and threatens the 
nation--such as treason or bribery. By requiring a \2/3\ vote for the 
over-turning of presidential elections, the founders of our nation also 
made it crystal clear that such an extraordinary step should not and 
cannot be taken unless there is an overwhelming bipartisan outcry 
against the President's actions.

  The American public and most Members of Congress, including myself, 
have criticized President Clinton's personal conduct in harsh terms. 
But the American public also seems to understand that at stake is not 
simply Bill Clinton's future, but the integrity of our election system 
and the long-term freedom of the executive branch from partisan 
congressional attack--this understanding about the need for stability, 
for proportionality, for continuity, is a natural and a deeply 
conservative inclination on the part of our citizenry.
  The writers of our Constitution wanted some degree of proportionality 
between a president's conduct and the penalties applied--otherwise they 
would have made impeachment applicable to all crimes and misdemeanors. 
It is certainly conceivable that the will of the people expressed in an 
election may someday be rightly overturned by Congress. But it is also 
certain to me that while this president's personal conduct (involving 
immaterial testimony to a lawsuit dismissed by a federal court as 
having no merit) is deserving of public condemnation, and even possible 
prosecution within the judicial system, it simply does not rise to the 
level of extraordinary danger to the nation that justifies removal from 
office.
  Some will no doubt say that I have set a high standard for 
overturning presidential elections. I would very much agree. 
Particularly as a recently former member of the House of 
Representatives, I have witnessed first hand the depth and the 
intensity of partisan anger that can occur from time to time in 
Congress and among portions of the national public. It is a reaction to 
that open partisanship demonstrated by the House and the Independent 
Counsel that surely is at the foundation of the American public's 
overwhelming contempt for this proceeding and the view that this 
process is politics as usual, an exercise in raw political power and 
beneath what should be the dignity of Congress.
  I have no certain solutions for that sad and angry state of affairs, 
other than to attempt to conduct my own political life in as thoughtful 
and moderate a manner as I am capable, but I believe the Constitution 
provided our nation with a strong bulwark against negative and hateful 
partisanship by creating an executive branch which is largely shielded 
from congressional partisanship and which is instead disciplined by law 
and by the electoral will of the people.
  I greatly fear that any lesser standard would result, even without an 
independent counsel law, in a situation whereby civil actions against 
standing presidents will be routinely brought as yet another 
destructive partisan political tactic. These multiple and nefarious 
actions will then be followed by never-ending legal discovery 
proceedings, and they in turn followed by impeachment articles or the 
threat of impeachment each time the House is controlled by a different 
political party than the Presidency. I fear the wrong decision here 
will lead our nation into an ever downward spiral where impeachment 
proceedings will be routine.
  It is critically important, in my view, for this United States Senate 
to say, Stop!'' Enough!'' We must send an unmistakable message to the 
House, the nation and the world, that we will not permit the stability 
and independence of the executive branch of our government to be 
jeopardized by anything less than heinous crimes or gross threats to 
the nation.
  This leaves, of course, other avenues for Congress and the public to 
express great displeasure with the President's dishonorable conduct. If 
illegal activity did in fact take place, that activity

[[Page S1475]]

would be subject to discipline in the courts. While there are divided 
opinions on its wisdom, it is possible that some sort of collective 
censure may be agreed upon by the Senate, and certainly individual 
Senators are free to place their condemnations of the President's 
personal behavior in the Congressional Record. The House impeachment of 
the President, the public humiliation of Bill Clinton and his family, 
as well as the great private fortune this dispute will have consumed 
will also serve as punishment enough. But, I think it is also important 
for this Senate to understand that the writers of our Constitution did 
not create an impeachment process as one more form of punishment, but 
exclusively to protect the viability of our nation.

  Given my sacred oaths as a United States Senator and as a participant 
in this impeachment trial, and given my abiding commitment to the 
Constitution and the well-being of our nation, I have no choice but to 
vote against both Articles of Impeachment. I do not know nor do I care 
what the political consequences might be of the decision I make here--I 
am a Democrat elected six consecutive times state-wide from my largely 
Republican state, and I have long been proud of the bipartisan support 
extended to me by the good people of South Dakota. In turn, I have long 
recognized that neither political party has a monopoly on good ideas or 
bad, good people or bad. But I know this--the issue before me is too 
grave for politics. At the end of the day, when my service in this body 
is done, I want my children, my family and myself to view my decisions 
here as honorable, as an exercise in responsible judgement, and in a 
small way, as efforts that strengthened the bulwark of democracy that 
our Constitution represents.
  The President dishonorably lied to the American people, however, the 
two Articles before the Senate fail, first because they do not allege 
offenses that give rise to removal from office, and secondly, because 
it cannot be said that the evidence proves guilt of perjury or 
obstruction of justice beyond all reasonable doubt (to such a degree 
that no innocent and reasonable explanation exists).
  I will vote not guilty on both Article one and Article two.
  Mr. LUGAR. Mr. Chief Justice, for the first time in 120 years, and 
only for the second time in U.S. history, the Senate is about to 
conclude a Presidential impeachment trial. Our Founding Fathers viewed 
the power to remove a President as a necessary constitutional 
safeguard, but they wanted to make certain that the process was 
sufficiently difficult that the will of the voters would be overturned 
only for the gravest of reasons. They wrote the words ``high crimes and 
misdemeanors'' as a threshold, but left it to us to determine what 
transgressions met this standard. All of us have endeavored to fulfill 
this enormous responsibility.
  From the beginning of the consideration of impeachment last year, 
many Members of Congress in both parties have made public statements 
expressing their opinions that the President lied to a federal grand 
jury and that he obstructed justice on numerous occasions. These 
judgments are apparently shared by large majorities of the American 
people as illustrated in frequent public opinion polls. The same polls 
have consistently found that a large majority of Americans do not want 
the President to suffer the Constitutional consequence of these 
breaches of law, namely, removal from office.
  Since the House voted for impeachment, almost all 45 Democrats and 
some Republicans in the Senate have voiced their skepticism about 
voting to remove President Clinton from office. Early in the trial, 44 
Democrats voted to dismiss the impeachment proceedings outright. Thus, 
a two-thirds majority vote needed for a guilty verdict has never been a 
likely outcome of the trial.
  In the background, most Senate Democrats and several Republicans have 
worked on a motion to censure President Clinton. Our distinguished 
colleague, Senator Feinstein, drafted a censure resolution that 
attracted substantial bipartisan support and was published in the New 
York Times of February 6, 1999. It stated:

       Whereas William Jefferson Clinton, President of the United 
     States, engaged in an inappropriate relationship with a 
     subordinate employee in the White House, which was shameless, 
     reckless and indefensible;
       Whereas William Jefferson Clinton, President of the United 
     States, deliberately misled and deceived the American people 
     and officials in all branches of the United States 
     Government;
       Whereas William Jefferson Clinton, President of the United 
     States, gave false or misleading testimony and impeded 
     discovery of evidence in judicial proceedings;
       Whereas William Jefferson Clinton's conduct in this matter 
     is unacceptable for a President of the United States, does 
     demean the Office of the President as well as the President 
     himself, and creates disrespect for the laws of the land;
       Whereas President Clinton fully deserves censure for 
     engaging in such behavior;
       Whereas future generations of Americans must know that such 
     behavior is not only unacceptable but also bears grave 
     consequences, including loss of integrity, trust and respect;
       Whereas William Jefferson Clinton remains subject to 
     criminal and civil actions;
       Whereas William Jefferson Clinton's conduct in this matter 
     has brought shame and dishonor to himself and to the Office 
     of the President; and
       Whereas William Jefferson Clinton, through his conduct in 
     this matter, has violated the trust of the American people: 
     Now, therefore, be it
       Resolved, That the United States Senate does hereby censure 
     William Jefferson Clinton, President of the United States, 
     and condemns his conduct in the strongest terms.

  Citizens might ask how a Senator could vote for a resolution stating 
that President Clinton ``deliberately misled and deceived the American 
people and officials in all branches of the United States Government'' 
and ``gave false or misleading testimony and impeded discovery of 
evidence in judicial proceedings'' and yet fail to vote ``guilty'' on 
articles of impeachment that specifically mention perjury and 
obstruction of justice. The answer to that question is at the heart of 
understanding the Senate trial.

  With few exceptions, Senators recognize that the Constitution gives 
only one outcome to a verdict of ``guilty,'' namely, removal from 
office. At the same time, many Senators are shocked by conduct which 
they call ``shameless, reckless, and indefensible,'' and they want 
their constituents to know that they have not been fooled or 
overwhelmed by Presidential charm. They have taken the initiative to 
explicitly denounce the bizarre conduct and the extraordinary 
corruption of this President. Members of both parties have deplored the 
fact that the President conducted an illicit sustained physical sexual 
relationship in spaces close to the Oval Office and publicly denied 
this to his family, his staff, and in televised statements to the world 
only to see all of the elaborate cover-up collapse after DNA tests on 
the dress of a young woman.
  But the impeachment trial of President Clinton is not about adultery. 
The impeachment trial involves the President's illegal efforts to deny 
a fair result in the suit brought by Ms. Paula Jones. I have no doubt 
that the President worked deliberately to deny justice in this suit. In 
doing so, he lied to a federal grand jury and worked to induce others 
to give false testimony, thus obstructing justice.
  Ms. Jones has often been described as a small person in our judicial 
system. In contrast, the President, who at the time of his inaugural 
takes a solemn oath to preserve and protect equal justice under the law 
for even the most humble of Americans, is a giant figure. As Senators 
who also take a solemn oath, we must ask ourselves the fundamental 
question: ``Is any man or woman above the law?''
  The legal defense team for the President does not admit that there is 
adequate proof of either perjury or obstruction of justice. They 
contend that Senators must embrace a theory of ``immaculate 
obstruction'' in which jobs are found, gifts are concealed, false 
affidavits are filed, and the character of a witness is publicly 
impugned, all without the knowledge or direction of the President, who 
is the sole beneficiary of these actions. The President's lawyers 
further contend that such crimes are, in any event, insufficient to 
remove the President. The drafters of the Constitution would have 
rejected these rationalizations for the indefensible Presidential 
misconduct at issue. They were political men with a profound reverence 
for the sanctity of the oath and our entire system of justice. They did 
not suggest that Senators park their common sense and

[[Page S1476]]

their stewardship for the security of our country at the Senate door as 
they entered into an impeachment trial.
  In fact, we have discovered in this trial that the founding fathers 
wanted the Senate to act as ``triers'' of fact and in the roles of both 
trial court and jury. Most importantly, they wanted us to act as 
guardians of the Constitution and thus the liberty and the rights under 
law of each individual American. Liberty itself is directly threatened 
when a President subverts the very judicial system that secures those 
rights.
  During this trial, I have concluded that the prosecutors made their 
case. I will vote to remove President Clinton from office not only 
because he is guilty of both articles of impeachment, but also because 
I believe the crimes committed here demonstrate that he is capable of 
lying routinely whenever it is convenient. He is not trustworthy. 
Simply to be near him in the White House has meant not only tragic 
heartache for his wife and his daughter but enormous legal bills for 
staff members and friends who admired him and yearned for his success 
but who have been caught up in his incessant ``war room'' strategies to 
maintain him in office. Senator Feinstein begins her censure resolution 
with the appropriate word ``shameless.'' The President should have 
simply resigned and spared his country the ordeal of this impeachment 
trial and its aftermath.
  We have been fortunate that this damaged presidency has occurred 
during a time of relative peace and prosperity. In times of war or 
national emergency it is often necessary for the President to call upon 
the nation to make great economic and personal sacrifices. In these 
occasions, our President had best be trustworthy--a truth teller whose 
life of principled leadership and integrity we can count upon. Some 
commentators have suggested that with the President having less than 
two years left in his term of office, the easiest approach is to let 
the clock expire while hoping that he is sufficiently careful, if not 
contrite, to avoid reckless and indefensible conduct. But as Senators, 
we know that the dangers of the world constantly threaten us. Rarely do 
two years pass without the need for strong Presidential leadership and 
the exercise of substantial moral authority from the White House.
  Of particular concern are the implications of the President's 
behavior for our national security. As Commander-in-Chief, President 
Clinton fully understood the risks that he was imposing on the 
country's security with his secret affair in the White House. Even in 
this post-Cold War era, foreign intelligence agents constantly look for 
opportunities for deception, propaganda, and blackmail. No higher 
targets exist than the President and the White House. The President 
even acknowledged in a phone call with Ms. Lewinsky that foreign agents 
could be monitoring their conversations. Yet this knowledge did not 
dissuade the President from continuing his affair. With premeditation, 
he chose his own gratification above the security of his country and 
the success of his presidency. Then he chose to compound the damage by 
systematically lying about it over the span of many months.
  I believe that our country will be stronger and better prepared to 
meet our challenges with a cleansing of the Presidency. The President 
of the United States is the most powerful person in the world because 
we are the strongest country economically and militarily, and in the 
appeal of our idealism for liberty and freedom of conscience. Our 
President must be strong because a President personifies the rule of 
law that he is sworn to uphold and protect. We must believe him and 
trust him if we are to follow him. His influence on domestic and 
foreign policies comes from that trust, which a lifetime of words, 
deeds, and achievements has built.
  President Clinton has betrayed that trust. His leadership has been 
diminished because most Americans have come to the cynical conclusion 
that they must read between the lines of his statements and try to 
catch a glimmer of truth amidst the spin. His subordinates have 
demeaned public life by contending that ``everybody does it'' as a 
defense of why the President has erred so grievously. But every 
President does not lie to a federal grand jury. Every President does 
not obstruct justice. The last President to do so was President Nixon, 
and he had sufficient reverence for the office to resign before the 
House even voted articles of impeachment.
  The impeachment trial must come to an end. The Presidency will be 
strengthened and our ability as Americans to meet important challenges 
will be strengthened if we begin to restore our faith in the truth and 
justice that our government must exemplify and preserve. It will not be 
enough simply to condemn the tragic misdeeds of President Clinton. He 
must be removed from office as the Constitution prescribes, and we must 
celebrate the strength of that same Constitution which also provides a 
path for a new beginning.
  Thank you, Mr. Chief Justice. I yield the floor.
  Mr. BIDEN. Let me begin by stating what I believe the American people 
view as the obvious. There are no good guys in this sordid affair. 
Rightly or wrongly, the public has concluded that the President is an 
adulterer and liar; that Ken Starr has abused his authority by unfair 
tactics born out of vindictiveness; that the House Managers have acted 
in a narrowly partisan way and are now desperately attempting to 
justify their actions for their own political reputation. Finally, they 
have concluded that Monica Lewinsky was both used and a user, while 
Linda Tripp, Lucianne Goldberg, Paula Jones and her official and 
unofficial legal team are part of a larger political plot to ``get the 
President''.
  All of that is beyond our ability to effect. Our job is not to 
dissect the motives or even the tactics of Ken Starr, the trial 
lawyers, Linda Tripp, and others. Our only job is to determine whether 
the President of the United States by his conduct committed the 
specific acts alleged in the two Articles of Impeachment. Not 
generally, but specifically: Did he do what is alleged? And if he did, 
do these actions rise to the level of high crimes and misdemeanors 
necessary to justify the most obviously anti-democratic act the Senate 
can engage in--overturning an election by convicting the President.
  It is very important--both for history's sake and for fairness' 
sake--that we keep our eye on the ball. When I tried cases, I learned 
from a man named Sid Balick--he used to say at the outset to the jury:

       Keep your eye on the ball. The issue is not whether my 
     client is a man you would want your daughter to date--a man 
     you would invite home to dinner. The issue is did my client 
     kill Cock Robbin--period.

  But if we listen to the oft-times confusing presentation of the House 
Managers--they would have us think that it is sufficient for us to 
conclude that we would not trust him with our daughters and not invite 
him home for dinner in order to convict.
  Much more is required. The House set the standard we must repair to 
in the Articles--did he commit a criminal offense? That is what they 
allege; that is what they must prove.
  The Managers keep saying that this case is about what standards we 
want our President to meet. We hear Flanders Fields intoned--the honor 
of our most decorated heroes. How incredibly self-serving and 
autocratic such a plea is.
  The American people are fully capable--without our guidance or 
advice--to determine what standards they want our President to meet. 
That is an appropriate question to ask ourselves when we enter the 
voting booth to vote--it is not when we rise on this floor to vote.
  Spare me from those who would tell the American people what standard 
they must apply when voting for President. Ours is an Impeachment 
standard and our oath to do justice under that standard.
  Impeachment is about what standard to use in deciding whether or not 
to remove a President duly elected by the people.
  These are two very different questions and we must not, we cannot, 
get them confused. You and I and the American people can apply any 
standard we want our President to meet when we go to the polls on 
election day.
  Only the Constitution can supply the standards to use in deciding 
whether or not to remove the President--and--in my view, this case does 
not meet that standard, for two reasons.

[[Page S1477]]

  First, the facts do not sustain the House Managers' case. According 
to the House's own theory, we must find that the President has violated 
federal criminal statutes--not just that he did bad things. In all good 
conscience, I just cannot believe that any jury would convict the 
President of any of the criminal charges on these facts. I also believe 
that it is our constitutional duty to give the President the benefit of 
the doubt on the facts. To me, the allegations that the President 
violated Title 18 were left in a shambles on this floor.
  But I do not have time to dwell on the facts. So let me turn to the 
second reason: the President's actions do not rise to the level 
required by the Constitution for the removal of a sitting President.
  We have heard it argued repeatedly that the Constitution does not 
create different standards for Judges and the President. But that 
argument fails to comprehend the organizing principle of our 
constitutional system--the separation of powers. The framers divided 
the power of the federal government into three branches in order to 
safeguard liberty. This innovation--the envy of every nation on earth--
can only serve its fundamental purpose if each branch remains strong 
and independent of the others.
  We needed a President who was independent enough to spearhead and 
sign the Civil Rights Act. We needed a President who was independent 
enough to lead the nation and the world in the Persian Gulf War. We 
still need an independent President.
  The constitutional scholarship overwhelmingly recognizes that the 
fundamental structural commitment to separation of powers requires us 
to view the President as different than a federal judge. Consider our 
power to discipline and even expel an individual Senator. In such a 
case, we do not remove the head of a separate branch and so do not 
threaten the constitutional balance of powers. To remove a President is 
to decapitate another branch and to undermine the independence 
necessary for it to fulfill its constitutional role.
  Only a President is chosen by the people in a national election. No 
Senator, no Representative can make this claim. To remove a duly 
elected President clashes with democratic principles in a way that 
simply has no constitutional parallel. By contrast, there is nothing 
anti-democratic in the Senate removing a judge, who was appointed and 
not elected by the people.
  Another contention we continue to hear is that the Framers clearly 
thought that obstruction of justice of any kind by a President was a 
high crime and misdemeanor. For this they cite the colloquy between 
Colonel George Mason and James Madison, who argued that a President who 
abused his pardon power could be impeached. That colloquy illustrates 
that it is not any obstruction that would satisfy the Constitution--
rather, that the framers were immediately concerned about abuses of 
official power, such as the pardon power.
  The House Managers have relied repeatedly on Alexander Hamilton's 
explanation of impeachment found in Federalist No. 65. But careful 
reading demonstrates that these articles of impeachment are a 
constitutionally insufficient ground for removing the President from 
office. Federalist No. 65 states:

       The subjects of [the impeachment court's] jurisdiction are 
     those offenses which proceed from the misconduct of public 
     men, or, in other words, from the abuse or violation of some 
     public trust. They are of a nature which may with peculiar 
     propriety be denominated POLITICAL, as they relate chiefly to 
     injuries done immediately to the society itself.

  Hamilton had the word ``political'' typed in all capital letters to 
emphasize that this is the central, defining element of any impeachable 
offense. Having emphasized its meaning, he did not leave its definition 
to chance. While all crimes by definition harm society, impeachable 
offenses involve a specific category of offenses. Using Hamilton's 
terms, these are offenses committed when ``public men'' who ``violat[e] 
some public trust'' cause ``injuries done immediately to the society 
itself.'' The public trust that resides in, to use Hamilton's hoary 
phrase, ``public men'' is what we would call today official power.
  What other construction can be given these words? Hamilton did not 
define an impeachable offense to be any offense committed by public 
men. He did not define an impeachable offense to be any reprehensible 
act committed by a bad man. Only those acts that abuse public office 
and so harm the public directly and politically are impeachable.
  While I would like to take credit for this insight into Hamilton's 
meaning, I actually stand in a line of interpretation that stretches 
back to the founding era. William Rawle wrote the first distinguished 
commentary on the Constitution, ``A View of the Constitution of the 
United States of America.'' In this treatise, he came to precisely the 
same interpretation I have described. He said, ``The causes of 
impeachment can only have reference to public character and official 
duty. . . . In general those which may be committed equally by a 
private person as a public officer are not the subject of 
impeachment.''
  Joseph Story was not only a long-serving and important Justice of the 
Supreme Court of the United States, he was a preeminent constitutional 
scholar and author of a treatise that remains an important source for 
understanding the Constitution's meaning. He too emphasized that ``it 
is not every offense that by the constitution is . . . impeachable.'' 
Which offenses did he regard to be impeachable? ``Such kinds of 
misdeeds . . . as peculiarly injure the commonwealth by the abuse of 
high offices of trust.'' Justice Story tied the definition of 
impeachable offenses to the purpose that underlies the separation of 
powers--safeguarding the liberty of the people against abusive exercise 
of governmental power. He observed that impeachment ``is not so much 
designed to punish an offender as to secure the state against gross 
official misdemeanors.''
  There is no question that the Constitution sets the bar for 
impeachment very high--especially where the President is involved. 
Federalist 65 bears this out, as do numerous other commentaries.
  But Federalist 65 also sounds a warning--again, it is a warning that 
has been invoked over and over again--that impeachments inevitably risk 
being hijacked by partisan political forces.
  Federalist 65 worried that the ``animosities, partialities, 
influence, and interest on one side or the other'' would enable 
partisans to find a way to interpret words such as high crimes and 
misdemeanors to match the outcome they otherwise wished to reach--not 
necessarily out of any malevolence, but simply because of the great 
capacity that we all have to rationalize.
  Here the rationalization is pretty easy--the President is a disgrace 
to the office, I honor and revere the office of the Presidency, so 
there must be some way to get this man out of that office. Therefore, 
his actions must rise to the level of high crimes and misdemeanors.
  It is tempting to go down that road --but this is precisely the 
temptation that the Framers urged us to avoid.
  In Federalist 65, Hamilton defended the United States Senate as the 
only body that could possibly hear a presidential impeachment. ``Where 
else than in the Senate could have been found a tribunal sufficiently 
dignified, or sufficiently independent? What other body would be likely 
to feel confidence enough in its own situation to preserve, unawed and 
uninfluenced the necessary impartiality between an individual accused 
and . . . his accusers?''
  Hamilton was placing the responsibility to be impartial squarely upon 
us--a responsibility that has become embodied in the oath we took when 
the trial began.
  Charles Black, the renowned constitutional law professor from Yale, 
boiled down the attitude that we as Senators must adopt in order to 
achieve an impartiality and independence sufficient to the 
responsibilities of impeachment. He said we must act with a 
``principled political neutrality.''
  That is a tough standard to meet. In the Johnson impeachment, for 
example, James Blaine originally voted for the impeachment of the 
President in the House. Years later he admitted his mistake, saying 
that `the sober reflection of after years has persuaded many who 
favored Impeachment that it was not justifiable on the charges made,

[[Page S1478]]

and that its success would have resulted in greater injury to free 
institutions than Andrew Johnson in his utmost endeavor was able to 
inflict.''
  And in our contemporary situation, former President Ford and our 
distinguished colleague and former majority leader, Robert Dole, have 
both urged us not to go down the road to impeachment, but to seek other 
means to express our displeasure.
  Charles Black knew that principled political neutrality was hard to 
achieve, so he suggested one approach. He suggested that prior to 
voting, a Senator should ask:

       Would I have answered the same question the same way if it 
     came up with respect to a President towards whom I felt 
     oppositely from the way I feel toward the President 
     threatened with removal?

  In reaching a final decision, the question I wish to pose to my 
colleagues is this: Can you legitimately conclude that you would vote 
to remove a sitting President if he were a person towards whom you felt 
oppositely than you do toward Bill Clinton?
  Given the essentially anti-democratic nature of impeachment and the 
great dangers inherent in the too ready exercise of that power, 
impeachment has no place in our system of constitutional democracy 
except as an extreme measure--reserved for breaches of the public trust 
by a President who so violates his official duties, misuses his 
official powers or places our system of government at such risk that 
our constitutional government is put in immediate danger by his 
continuing to serve out the term to which the people of the United 
States elected him.
  In my judgment, trying to assume a perspective of principled 
political neutrality, the case before us falls far, far short on the 
facts and on the law.
  I ask unanimous consent that the text of a more comprehensive 
statement be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

   Senator Joseph R. Biden's Comprehensive Statement On Impeachment 
                             Deliberations

       There are no good guys in this sordid affair. Rightly or 
     wrongly, the public has concluded that the President is an 
     adulterer and liar. Ken Starr has abused his authority by 
     unfair tactics born out of vindictiveness. The House Managers 
     have acted in a narrowly partisan way and are now desperately 
     attempting to justify their actions for their own political 
     reputation and that Monica Lewinsky was both used and a user, 
     while Linda Tripp, Lucianne Goldberg, Paula Jones and her 
     official and unofficial legal team are part of a larger 
     political plot to ``get the President''.
       At this point, all that occurred before this is beyond my 
     ability to affect. My job as a United States Senator hearing 
     an impeachment trial is not to dissect the motives or even 
     the tactics of Ken Starr, the trial lawyers, Linda Tripp and 
     others. My only job is to determine whether the President of 
     the United States, by his conduct committed the acts alleged 
     in the two Articles of Impeachment before us. Not generally, 
     but specifically, did he do what is alleged--and if he did, 
     do these actions rise to the level of high crimes and 
     misdemeanors necessary to justify the most obviously anti-
     democratic act the Senate can engage in overturning an 
     election.


                      The Articles of Impeachment

       When the Framers designed our elected branches of 
     government, they established a system of separate but equal 
     branches. The independence of the President from the 
     Congress, and vice versa, is constitutionally anchored in the 
     fact that each answers directly to the people through the 
     ballot box. The people determine who will serve in either 
     branch.
       As I said in a speech last September at Syracuse Law School 
     and in another on the floor of the United State Senate, the 
     independence of the President from the Congress was no minor 
     detail in the constitutional design. The single major goal 
     and idea that best explains how the Framers constructed the 
     office of the Presidency was to make the presidency as 
     politically independent of the Congress as they could. They 
     believed his independence vital to the protection of our 
     liberties.
       It takes a strong and independent President to sign the 
     Emancipation Proclamation in the face of congressional 
     opposition, as Abraham Lincoln did. It takes a strong and 
     independent President to sign the executive order integrating 
     the Armed Services in the face of congressional resistance, 
     as Harry Truman did. It takes a strong and independent 
     president to veto legislation in the face of strong 
     majorities, as Ronald Reagan, George Bush and all of our 
     Presidents have done.
       We can, and we do, disagree about the wisdom of any 
     particular presidential decision, but none of us can doubt 
     that the institution of a strong and independent presidency 
     has enhanced our freedoms and made us a stronger nation.
       For us to remove a duly elected president will unavoidably 
     harm our constitutional structure.
       Accordingly, for this Senator, the starting point in my 
     thinking about the articles of impeachment must begin with 
     giving the President the benefit of the doubt, and to err on 
     the side of sustaining the independence of that office so 
     vital to the Framers and to the constitutional system they 
     designed. Impeachment must be used against a President only 
     as an extreme measure, when the President has so breached the 
     public trust that our system of government is put in danger 
     by his continuing to serve out the term to which the people 
     of the United States elected him.
       Have the House Managers presented a case of sufficient 
     severity, and have they proved it with sufficient clarity, to 
     justify the drastic and awesome, step of convicting a duly 
     elected President?
       On January 12, when the House Managers walked across the 
     rotunda to the Senate and presented their case against the 
     President, the country moved from the realm of sound bites 
     and political attacks to a serious and sober consideration of 
     the precise nature of the House's allegations against the 
     President, and of the full extent of the record evidence 
     against him.
       The House Managers have told us that in their judgment two 
     dangers to our system of government justify taking this 
     unprecedented and awesome step.
       First, they said that failing to remove the President will 
     undermine the rule of law and the administration of justice. 
     Permitting a serial perjurer and obstructor of justice to 
     escape punishment will bring disgrace on the oath ``to tell 
     the truth.'' It will mean that we can no longer with good 
     conscience punish other people who have committed perjury or 
     obstructed justice. The ultimate effects would be felt 
     throughout the judicial system. Like a pebble dropped into a 
     pond, they said, it will send out ripples to all corners of 
     our judicial system.
       Second, they said that failing to remove the President will 
     also condone his plot or scheme to deny a specific civil 
     rights plaintiff--Paula Jones--of a full opportunity to 
     litigate her civil rights claims against the President. 
     Regardless of the ripple effects of his actions, the acts 
     themselves were violations of law that amounted to a failure 
     of the President to ``take care that the laws be faithfully 
     executed,'' in violation of his oath of office.


           Multiple Violations of the Criminal Law Necessary

       As I have said in earlier speeches on the impeachment 
     power, not all crimes are impeachable, and an impeachable 
     offense does not have to be a crime.
       In this case, however, the House Managers have made it 
     quite clear that their case against the President depends 
     entirely on proving that he has committed crimes, and not 
     just a few crimes, but an elaborate scheme that included 
     ``lots and lots of perjury'' and ``many obstructions of 
     justice,'' to quote Mr. McCollum. The dangers the President 
     supposedly poses flow not from the President's reprehensible 
     conduct, or from the fact that he misled his family, his 
     aides, his cabinet and the nation about that conduct. This 
     impeachment is not about sex, they have insisted.
       I asked Mr. Barr about this during the trial, and he said 
     ``What brings us here . . . is the belief by the House of 
     Representatives in lawful public vote that this President 
     violated, in numerous respects, his oath of office and the 
     Criminal Code of the United States of America--in particular, 
     that he committed perjury and obstruction of justice.'' Mr. 
     McCollum made the same point in his opening presentation, 
     when he said, ``The first thing you have to determine is 
     whether or not the president committed crimes. It's only if 
     you determine he committed the crimes of perjury, obstruction 
     of justice and witness tampering, that you ever move on to 
     the question of whether he is removed from office. . . . None 
     of us would argue to you that the president should be removed 
     from office unless you conclude he committed the crimes that 
     he is alleged to have committed.''


           The Burden of Proof in Assessing the House's Case

       So the question before the Senate is whether the President 
     is a serial perjurer and a massive obstructor of justice.
       What standard of proof should a Senator apply in deciding 
     whether the record supports the accusations contained in the 
     articles of impeachment--the accusations that the President 
     violated the federal criminal law? The House Managers quite 
     correctly pointed out that the Senate has never sought to 
     determine for the entire body what the burden of proof should 
     be in an impeachment. In effect, we have left it to the good 
     judgment of each Senator to decide whether or not they are 
     convinced by the evidence presented to us.
       For this Senator, fundamental fairness as well as the 
     nature of the House's case dictate that I ought to be 
     convinced beyond a reasonable doubt that the President 
     violated the laws that the House alleges. Proof beyond a 
     reasonable doubt is the same standard applied in criminal 
     cases--it is the standard that would apply if the President 
     were

[[Page S1479]]

     tried in a criminal court for perjury or obstruction of 
     justice.
       It seems to me that fundamental fairness counsels that I 
     apply the same standard as a criminal court precisely because 
     the House asserts that what makes his actions impeachable is 
     that he has violated federal criminal statutes regarding 
     perjury and obstruction of justice. It strikes me as absurd 
     that the Senate would have the arrogance to throw out a duly 
     elected President on these grounds unless it was convinced 
     that he would be convicted of those charges. Otherwise, we 
     would be saying in effect that even though the President 
     would not be convicted on these crimes, we are nevertheless 
     throwing him out of office because he committed those crimes. 
     That would clearly be giving the President less protection 
     than we provide any other citizen when charged with a crime.
       Someone else can try to explain the logic of that decision, 
     but not me.
       In addition, the standard of proof beyond a reasonable 
     doubt seems to me compelled by the fact that in the House's 
     explanation of the harm to our system of government if the 
     President is not thrown out, their entire explanation rises 
     and falls depending upon whether or not the President would 
     be convicted in a court of law for the crimes alleged. If he 
     could not be convicted in a court of law, then the Senate is 
     not ``condoning'' perjury or obstruction of justice any more 
     than a criminal court is condoning those crimes when someone 
     is acquitted on such charges. But if the Senate is not 
     condoning those crimes, there is no conceivable basis for 
     concluding that the public will be harmed by the President's 
     remaining in office.
       Furthermore, in applying the standard of proof beyond a 
     reasonable doubt, the Senate simply must pay attention to the 
     precise legal definitions of the crimes. What the pundits 
     have condemned as legal hair splitting, and what the public 
     rightly condemns in the president's penchant for evasive 
     answers when responding to questions in a public setting, 
     must now necessarily occupy our attention with regard to the 
     President's answers under oath, such as a deposition or a 
     grand jury proceeding because the claim made by the House is 
     that the President violated specific criminal laws. If your 
     aim is to respect the rule of law, you must also respect the 
     rules of law--the precise legal definitions of the crimes, as 
     found in 18 U.S.C. Sec.  1623, the federal perjury statute, 
     and in 18 U.S.C. Sec. Sec.  1503 and 1512, the applicable 
     federal obstruction of justice statutes.
       I have now studied the record sent to us by the House, 
     listened to the presentations and arguments of the House 
     Managers and the President's counsel, reviewed the videotape 
     testimony of Monica Lewinsky, Vernon Jordan and Sidney 
     Blumenthal, and listened to the views of my colleagues.
       On that basis, I have reached the conclusion that the House 
     has not presented evidence that could persuade a criminal 
     jury beyond a reasonable doubt that the President has 
     violated the applicable federal criminal statutes. There are 
     too many holes, too many conclusions reached only by drawing 
     negative inferences against the President, and too much 
     evidence that apparently contradicts or is inconsistent with 
     the House's case.
       Now, let me be frank with you. I do not know for sure what 
     actually occurred. Notwithstanding that, I am forced to make 
     a judgment. In order to preserve the constitutional 
     separation of powers, the independence of the presidency and 
     the sovereignty of democratic elections, the President 
     deserves the benefit of the doubt. This record falls well 
     short of the certainty required to remove a President from 
     office.


           the constitutional balance the senate must strike

       While I believe that I must apply a standard of proof 
     beyond a reasonable doubt because of the nature of the 
     charges that the House has brought to us, it is also quite 
     true--and I have said as much on prior occasions--that the 
     Senate does not sit as a court of law when it tries an 
     impeachment. As Alexander Hamilton stated in Federalist 65, 
     impeachment is a political process.
       ``Political'' in Hamilton's usage had two meanings as it 
     relates to impeachments. The first I have mentioned already, 
     and I have spoken about in this chamber before: impeachable 
     offenses are offenses against the body politic. In the words 
     of James Wilson, ``in the United States . . . impeachments 
     are confined to political characters, to political crimes and 
     misdemeanors, and to political punishments.''
       The Senate's judgment in an impeachment trial is ultimately 
     political in a second sense, too. It is political in the 
     sense that the Senate has the responsibility to weigh the all 
     the consequences to the body politic in making its decision--
     the consequences that might flow from removing the President 
     as well as the consequences that might flow from failing to 
     remove him.
       That is what I mean, and what Hamilton meant, by the 
     ultimate judgment being a political one. As Senator Bumpers 
     reminded us, the consequences of the decision we make will 
     live on long after Bill Clinton has left office and long 
     after each of us has left office. We must hand our 
     constitutional structure on to our children and to future 
     generations with its foundation as solid as it was when it 
     was handed to us. It is our responsibility as Senators to 
     make a judgment as to how best to accomplish that objective.
       The obligation to evaluate the competing costs of retention 
     and removal, incidentally, is what clearly distinguishes 
     judicial impeachments and presidential impeachments--very 
     different institutional and long term consequences weigh in 
     the balance in these two cases.
       Removing the President from office without compelling 
     evidence would be historically anti-democratic. Never in our 
     history has the Senate overturned the results of an election 
     and removed a President from office. History could not more 
     plainly demonstrate what a dramatic step removing an elected 
     President would be. The founding of our republic was the most 
     dramatic assertion of the sovereignty of the people that the 
     world had ever known. Abraham Lincoln dedicated the 
     battlefield at Gettysburg to this proposition recalling that 
     our union stands for ``government of the people, for the 
     people, and by the people.''
       The sovereignty of the people is exercised through national 
     elections. All citizens, but particularly those of us who 
     have had the honor to stand for election, have an instinctive 
     respect for the will of the people as expressed through 
     national elections. Thomas Jefferson, in his first inaugural 
     address, aptly called this democratic instinct a ``sacred 
     principle.'' Reversing the people's sovereign decision would 
     be in radical conflict with the principle on which our nation 
     is founded as understood and applied throughout our history.
       For one branch to remove the head of a co-equal branch 
     unavoidably harms our constitutional structure. The framers 
     intentionally chose not to create a parliamentary system of 
     government. They meant for the President and Congress to be 
     independent of and co-equal with one another. Maintaining 
     each of those branches as strong and independent is 
     fundamental to the Constitution's very structure--a structure 
     they designed to safeguard the liberty of the governed 
     against abuses of power by those who govern.
       It is true that impeachment is part of this structure. 
     Removing a president from office for sufficient reasons and 
     upon sufficient proof is therefore consistent with that 
     structure. At the same time, the great dangers inherent in 
     the too ready exercise of that power mean that impeachment 
     should be seen as an extreme measure.
       The framers were accomplished, practical statesmen. They 
     recognized that impeachment could be misapplied to undermine 
     the primary structural guarantee of liberty--the separation 
     of powers. They worried that Congress would be tempted to use 
     the impeachment power to make the President ``less equal.'' 
     As Charles Pinckney warned his colleagues at the Philadelphia 
     Convention, Congress could hold impeachment ``as a rod over 
     the Executive and by that means effectively destroy his 
     independence.''
       How are we to keep the impeachment power within its 
     constitutional boundaries, so that it stands ready to be used 
     appropriately but does not become a ``rod'' in the hands of a 
     partisan Congress, threatening the independence of the 
     Presidency, as Charles Pinckney worried during the 
     Constitutional convention?
       The solution to this problem must lie in approaching the 
     Senate's ultimate decision from as much of a position of 
     bipartisanship as we can possibly achieve. This is the only 
     way in which we can possibly focus primarily on the 
     institutional consequences of our actions to see them in 
     terms of their long term consequences instead of their short 
     term partisan ones.
       Nonpartisan faithfulness to the Constitution's structure, 
     which protects the liberty of the governed must determine our 
     action today.
       This was my view of our role in 1974, when I rose on the 
     floor of the United States Senate and made a ``plea . . . for 
     restraint on the part of all parties involved in the 
     affair.'' That was in the case of the possible impeachment of 
     Richard Nixon. And it was my view last year, when I urged 
     restraint and bipartisanship as the attitude I hoped my 
     colleagues would adopt. And it remains my view.
       Viewed from that perspective, it is hard for me to see how 
     the harms flowing from keeping Bill Clinton in office 
     outweigh the harms to our constitutional democracy that would 
     result from removing him.


                   harmful consequences reconsidered

       I have listened attentively to the House Managers' case. In 
     all honesty, I can sympathize with their sense of outrage at 
     the President's actions and his unwillingness to be fully 
     accountable for those actions for so many months. 
     Notwithstanding that, from the vantage point of a restrained 
     view, and as nonpartisan a view as I can muster, the dangers 
     they see from keeping President Clinton in office seem less 
     dire than they claim. At the same time the harms to our 
     system of government from removing him seem to me to be quite 
     serious.
       The House Managers warn that failure to remove the 
     President would destroy or undermine the sound administration 
     of justice and threaten the rule of law. If true, that would 
     be a big deal.
       But we need to step back a moment and cool down the 
     rhetoric. Manager Graham suggested as much when he reminded 
     us all of the resiliency of the American system of 
     government. ``So when we talk about the consequences of this 
     case,'' he said, ``no matter what you decide, in my opinion, 
     this country will survive. If you acquit the President, we 
     will survive. If you convict him, it will be traumatic, and 
     if you remove him, it will be traumatic, but we will 
     survive.''

[[Page S1480]]

       That same calmer judgment ought to apply to the 
     administration of justice and the rule of law. The House 
     Managers presented no evidence whatsoever of the dire 
     consequences they predict. And there is no evidence of such 
     dire consequences that they could present--because their 
     evaluation of the consequences is nothing but speculation.
       I would submit to you that the consequences of failing to 
     remove the President will most likely be very different from 
     those described by the House. This is one pebble whose 
     ripples will in all likelihood simply wash up harmlessly on 
     the shores and be forgotten forever. I, frankly, do not see 
     how failing to remove the President will alter the conduct of 
     the next prosecutor having to decide whether to bring a 
     perjury indictment, nor do I think that juries will be 
     persuaded by a lawyer's argument that because the President 
     ``got away with it'' the jury should acquit his client. The 
     fact of the matter is, lots of perjury trials result in 
     acquittals without impacting the ability of the criminal 
     justice system to bring such charges where appropriate.
       The House Managers' cry of alarm ignores the fact that we 
     are in an impeachment trial. This is not a criminal 
     proceeding and thus the manner in which the Senate deals with 
     the question has no implications at all for how a court of 
     law would deal with it.
       The Constitution is very clear about this. In Article I, 
     Sec. 3, cl. 7, the Constitution provides that whether or not 
     a person is removed from office through impeachment that 
     party ``shall nevertheless be liable and subject to 
     Indictment, Trial, Judgment and Punishment, according to 
     Law.'' If the evidence is as overwhelming as the Managers 
     say, the President can be prosecuted for perjury and 
     obstruction after he leaves office.
       The American people have a very robust understanding that 
     impeachment is a political process--and a particularly clear 
     understanding that this impeachment has been thoroughly 
     politicized until it got to the Senate--I don't think anyone 
     is confusing it with a legal process. No one, therefore, will 
     take any solace from the President's acquittal in terms of 
     their ability to commit perjury or obstruct justice and 
     thereby avoid criminal charges.
       Now don't misunderstand me--I am not suggesting that 
     letting a guilty person off from a crime he or she has 
     committed is OK. I am saying, first, that the President has 
     not been charged with a crime in a criminal court, so that 
     failing to acquit him is not at all letting him off from a 
     crime, and second, that our decision will not have the kind 
     of ``sky is falling'' consequences described by the House in 
     any event. In my judgment, the rule of law and the sound 
     administration of justice in this country will be unaffected 
     by the action we take in the Senate, one way or the other.
       The House Managers have also warned that failing to remove 
     the President will also condone his plot or scheme to deny a 
     specific civil rights plaintiff--Paula Jones--her day in 
     court, by withholding from her, through acts of perjury and 
     obstruction, full information about the ``nature and 
     details'' of his relationship with Monica Lewinsky. Just how 
     accurate and complete a description is this one? In order to 
     answer that question, we need a fuller picture of the 
     ``nature and details'' of the Jones litigation itself.
       If you listened just to the House Managers, you would think 
     that the Jones lawsuit was just a run-of-the-mine typical 
     sexual harassment civil rights case.
       It was not. From the very beginning, that lawsuit had been 
     politically motivated. All the facts we know about this case, 
     even taking Paula Jones at her word that the incident in the 
     Excelsior Hotel actually occurred, demonstrate that the 
     lawsuit was also without merit. She had never been harmed in 
     any way in her job, and the President had never repeated 
     anything remotely resembling an unwanted sexual advance on 
     her again. She had received merit pay raises in her state 
     employment and she had received good job performance reviews. 
     She was unable to prove that she had been damaged in any way 
     by the President's actions.
       Actually, what damages she did assert--what caused her to 
     file the lawsuit, according to her testimony--was the result 
     of the publication of a hatchet-job article against President 
     Clinton run in the American Spectator. The article was one 
     salvo in an on going right wing probe into Clinton's life in 
     Arkansas, aimed simply at digging up anything that could be 
     politically damaging to the President. When the American 
     Spectator ran a story making an unflattering reference to a 
     ``Paula,'' Jones found a lawyer to file suit in order to 
     ``reclaim her good name.''
       The lawyers Paula Jones eventually found were also 
     underwritten by right wing conservative Republican money. In 
     fact, investigative reporters as recently as this past Sunday 
     continue to reveal more and more details of the tightly knit 
     web of conservative lawyers and conservative financial 
     backers who have hounded this President relentlessly since 
     the day he took the office.
       Now the President knew that the lawsuit was without merit--
     he might have behaved obnoxiously with Paula Jones, but he 
     did not commit sexual harassment. He also knew that the real 
     motivation of the lawsuit, the motivation that funded it and 
     kept it going, was a political assault on him, not a legal 
     assault. The law suit and its powers of discovery were being 
     used to engage in a fishing expedition throughout Arkansas in 
     search of political dirt. Leaks from that discovery appeared 
     regularly in the Washington press.
       The President knew something else, as well. He knew that 
     his illicit relationship with Monica Lewinsky had nothing to 
     do with the merits of the Jones litigation. On this matter, 
     you do not have to rely on the President's assessment or 
     mine, because the court independently concluded the same 
     thing. In the order denying the plaintiff's discovery into 
     the Lewinsky facts, Judge Wright said that the Lewinsky 
     facts, even if the allegations concerning them were true, had 
     nothing to do with the essential or core elements of Paula 
     Jones lawsuit.
       So keeping Lewinsky out of the politically motivated Jones 
     case did not jeopardize Paula Jones' chances of prevailing, 
     which were non-existent in any event. What it did do was to 
     prevent the president's political enemies from using the 
     Jones discovery procedures to pry open that secret 
     relationship and expose it, all to the political damage of 
     the President.
       In this context, it is understandable that the President 
     wanted to frustrate the Jones litigation. What is more, the 
     President can hardly be said to have prevented Paula Jones 
     from presenting a case, because there was no meritorious case 
     to present.
       That doesn't justify perjury or obstruction, of course, but 
     it does provide an accurate context for appraising the House 
     Managers' second claim. If they are permitted to convert a 
     meritless and politically motivated lawsuit into a 
     presidential conviction for impeachable offenses, the Senate 
     will be rewarding behavior that we ought to condemn. We need 
     to think more than once about rewarding this kind of 
     political witch hunt.
       All of what I have just said informs this Senator's 
     judgment concerning the harms to the country that would be 
     caused by failing to convict a President who had committed 
     the acts alleged by the House.
       In fact, if the rule of law and the fair administration of 
     justice will not be destroyed--contrary to the House 
     Managers' assertions--and if the American people understand 
     that the President's actions were in the context of a 
     politically-motivated lawsuit and involved concealing an 
     embarrassing improper relationship that was irrelevant to 
     that lawsuit--then it is very hard for this Senator to see 
     how the President's continuing in office poses the sort of 
     grave danger to our system of government that the Framers had 
     in mind when they gave the Congress the awesome power to 
     impeach and remove an elected President.
       In weighing the competing consequences of removal and 
     retention in office, we must honor the constitutional 
     obligation we undertook when we swore to do ``impartial 
     justice.''
       To that end, I think we all could benefit from the wisdom 
     on several participants in the impeachment of Andrew Johnson, 
     131 years ago.
       Two of them--Chief Justice Salmon Chase and Congressman 
     James G. Blaine--both of whom historians record as being 
     highly critical of Johnson and initially favoring his 
     removal--were nevertheless able to step back from the 
     partisanship of that moment and weigh the competing harms in 
     the way I have suggested is proper.
       Chief Justice Salmon Chase, who himself had political 
     presidential ambitions, wrote to a friend on the day the 
     trial ended, saying, ``What possible harm can result in the 
     country from continuance of Andrew Johnson months longer in 
     the presidential chair, compared with that which must arise 
     if impeachment becomes a mere mode of getting rid of an 
     obnoxious President?''
       And years later, James G. Blaine, who had voted for 
     impeachment in the House, said, ``The sober reflection of 
     after years has persuaded many who favored Impeachment that 
     it was not justifiable on the charges made, and that its 
     success would have resulted in greater injury to free 
     institutions that Andrew Johnson in his utmost endeavor was 
     able to inflict.''
       And in our contemporary situation, former President Ford 
     and our distinguished colleague and former majority leader, 
     Robert Dole, have both urged us not to go down the road to 
     impeachment, but to seek other means to express our 
     displeasure.
       We ought to follow these lessons, and to be attentive to 
     the damage that removing a duly elected President on these 
     charges will inflict on our system of government.
       A decision to remove Bill Clinton will not destroy our 
     system of government. But it will stand as a precedent--the 
     very first time the United States Senate has removed any 
     president from office. If we vote to convict and remove the 
     President after a highly partisan impeachment for conduct 
     that appears to be private and non-official, we will create 
     an opportunity for impeachments to become a tool of partisan 
     politics by other means.


                               conclusion

       Engaging in the balance that the Constitution requires, I 
     cannot vote to convict the President. The evidence of proof 
     beyond a reasonable doubt that the President violated federal 
     criminal statutes has not been presented. Even were the 
     evidence stronger, the Constitution demands that we weigh the 
     competing considerations in a nonpartisan manner.
       The President deserves our condemnation. He has brought 
     shame to himself.
       But we have not reached this point due to his failings 
     alone. It has taken the volatile combination of his 
     blameworthiness and the unalloyed animosity of others toward 
     him that have brought us to the brink of a profound 
     constitutional moment.

[[Page S1481]]

       Given the essentially anti-democratic nature of impeachment 
     and the great dangers inherent in the too ready exercise of 
     that power, impeachment has no place in our system of 
     constitutional democracy except as an extreme measure--
     reserved for breaches of the public trust by a President who 
     so violates his official duties, misuses his official powers 
     or places our system of government at such risk that our 
     constitutional government is put in immediate danger by his 
     continuing to serve out the term to which the people of the 
     United States elected him.
       I urge my colleagues to remain faithful to the 
     constitutional design and to our obligation to do impartial 
     justice.
       Below are significant issues of constitutional law, 
     positive law, or Senate procedure that have arisen during the 
     impeachment trial of President Clinton. As the impeachment 
     process moved forward in the House to the point where its 
     arriving in the Senate appeared likely, I began an intensive 
     study of the Constitution, the Framers' understanding, and 
     our historical constitutional practices in the Senate to 
     prepare for a possible impeachment trial, which I continued 
     once the Senate assumed jurisdiction over the matter. Over 
     the past several months, I have shared some of my conclusions 
     with my colleagues and the public in speeches and memoranda, 
     portions of which are below. (Bracketed comments are 
     additions to the original text, inserted to assist in 
     comprehension.)


                             Bipartisanship

       Mr. President, during the past twenty-six years as a United 
     States Senator, I have been confronted with some of the most 
     significant issues facing our nation. Issues ranging from who 
     sits on the highest court in the land to whether we should go 
     to war. These are weighty issues. But none of these decisions 
     has been more awesome, more daunting, more compelling, than 
     the issue confronting us at the present time.
       The issue of whether to impeach a sitting President is a 
     monumental responsibility. A responsibility that no Senator 
     will take lightly.
       And as imposing as this undertaking is, I am sad to say 
     that I have had to contemplate this issue twice during my 
     service in the Senate; once during President Nixon's term and 
     now.
       And while the circumstances surrounding these two events 
     are starkly different, the consequences are starkly the same. 
     The gravity of removing a sitting President from office is 
     the same today as it was twenty-five years ago. Listen to 
     what I said on the floor of the United States Senate on April 
     10, 1974 during the Watergate crisis:
       ``In the case of an impeachment trial, the emotions of the 
     American people would be strummed, as a guitar, with every 
     newscast and each edition of the daily paper in communities 
     throughout the country. The incessant demand for news or 
     rumors of news--whatever its basis of legitimacy--would be 
     overwhelming. The consequential impact on the federal 
     institutions of government would be intense--and not 
     necessarily beneficial. This is why my plea today is for 
     restraint on the part of all parties involved in the 
     affair.''
       I could have said these same words today. It is uncanny how 
     much things stay the same.
       Furthermore, in 1974 I urged my colleagues in the United 
     States Senate to learn from the story of Alice in Wonderland. 
     Then I cautioned that we remember Alice's plight when the 
     Queen declared ``sentence first, verdict afterwards.''
       But the need for restraint is even greater today than it 
     was in 1974. In 1974, the impeachment question was not as 
     politically charged as it is today. In 1974 we were willing 
     to hear all the evidence before making a decision. Today, I 
     hope, for our nation's sake, that we do not follow the 
     Queen's directive in Alice in Wonderland and that we will 
     make a wise judgment after deliberate consideration.
       My legal training combined with more than a quarter century 
     of experience in the United States Senate has taught me 
     several important lessons. Two of these lessons are 
     appropriate now.
       First, an ordered society must first care about justice.
       Second, all that is constitutionally permissible may not be 
     just or wise.
       And it is with these two very important lessons guiding me, 
     that I embark upon a very important decision regarding our 
     country, our Constitution, and our President.
       The power to overturn and undo a popular election of the 
     people, for the first time in our nation's history, must be 
     exercised with great care and sober deliberation.
       We should not forget that 47.4 million Americans voted for 
     our President in 1996, 8.2 million more than voted for the 
     President's opponent.--[Speech, 10/2/98]

                           *   *   *   *   *

       Let me now stand back from the issues of substance and 
     procedure, and look at the impeachment mechanism as it has 
     actually functioned in our country's history. The proof of 
     the framers' design, after all, will be in how the mechanism 
     has worked in practice.
       As we have seen, the framers worried that impeaching a 
     sitting president would most likely be highly charged with 
     partisan politics and pre-existing factions, enlisting all 
     the ``animosities, partialities, and influence and interest'' 
     that inevitably swirl around a sitting president. History 
     shows that they had a right to be worried.
       Prior to the case of President Nixon, presidential 
     impeachment had only been used for partisan reasons.
       History tells us that John Tyler was an enormously 
     unpopular president, facing a hostile Congress dominated by 
     his arch political enemy, Henry Clay. After several years of 
     continual clashes, numerous presidential vetoes and divisive 
     conflicts with the senate over appointments, a select 
     committee of the House issued a report recommending a formal 
     impeachment inquiry.
       President Tyler reached out to his political enemies: he 
     signed an important bill raising tariffs which he had 
     formerly opposed--and he found other means of cooperating 
     with the Congress. In the end, even Henry Clay, speaking from 
     the Senate, urged a slowdown in the impeachment proceedings, 
     suggesting instead the lesser action of a ``want of 
     confidence'' vote rather than formal impeachment proceedings. 
     In early 1843, the resolution to proceed with an impeachment 
     inquiry was defeated on the House floor, 127 to 83.
       In 1868, Andrew Johnson came much closer to conviction on 
     charges of serious misconduct. Although Johnson's impeachment 
     proceedings ostensibly focused on his disregarding the tenure 
     in office act, historians uniformly agree that the true 
     sources of opposition to president Johnson were policy 
     disagreements and personal animosity. [Text note: The 
     conflict this time was between Johnson's moderate post Civil 
     War policies toward the Southern states and the overwhelming 
     Radical Republican majorities in both chambers. One 
     especially volatile division was over whether Southern 
     Senators and Representatives ought to be admitted to Congress 
     prior to the enactment of Constitutional amendments expressly 
     denying the right of state succession. The Republicans feared 
     dilution of their voting strength if the southerners were 
     seated, especially since on effect of President Lincoln's 
     Emancipation Proclamation would be to increase House 
     representation for the Southern states, by virtue of the fact 
     that each freed slave would count as a whole person, instead 
     of the abandoned constitutional formula of three-fifths.
       The Tenure in Office Act had been enacted over his veto to 
     restrict his ability to remove the Secretary of War --who was 
     allied with the Radical Republicans--from that office without 
     the Senate's consent. Johnson fired Edwin M. Stanton anyway, 
     claiming that the restriction on his removal authority was 
     unconstitutional.]
       The conflict this time was between Johnson's moderate post-
     Civil War policies toward the southern states and the 
     overwhelming Republican majorities in both chambers. The 
     Republicans feared dilution of their voting strength if the 
     southerners were seated.
       Johnson's defenders in the Senate were eventually able to 
     hold on to barely enough votes to prevent his conviction. In 
     professor Raoul Berger's view, ``Johnson's trial serves as a 
     frightening reminder that in the hands of a passion-driven 
     congress, the process may bring down the very pillars of our 
     constitutional system.''
       Yet, if the cases of Tyler and Johnson substantiate the 
     framers' fears, the Nixon situation vindicates the utility of 
     the impeachment procedures. Notice how different the Nixon 
     proceedings were from Tyler's and Johnson's. As the Nixon 
     impeachment process unfolded, there was broad bipartisan 
     consensus each step of the way.
       While it would be foolish to believe that Members of 
     Congress did not worry about the partisan political 
     repercussions of their actions, such factional considerations 
     did not dominate decision making.
       Political friends and foes of the president agreed that the 
     charges against the president were serious, that they 
     warranted further inquiry and, once there was definitive 
     evidence of serious complicity and wrongdoing, a consensus 
     emerged that impeachment should be invoked. The president 
     resigned after the House Judiciary Committee voted out 
     articles of impeachment by a 28-10 vote.
       For me, several lessons stand out from our constitutional 
     understanding of the impeachment process and our historical 
     experience with it. Furthermore, I believe that a consensus 
     has developed on several important points.
       While the founders included impeachment powers in the 
     Constitution, they were concerned by the potential partisan 
     abuse. We should be no less aware of the dangers of 
     partisanship. As we have seen, the process functions best 
     when there is a broad bipartisan consensus behind moving 
     ahead. The country is not well served when either policy 
     disagreements or personal animosities drive the process.
       Many scholars who have studied the Constitution have 
     concluded that it should be reserved for offenses that are 
     abuses of the public trust or abuses that relate to the 
     public nature of the President's duties. Remember, what is 
     impeachable is not necessarily criminal and what is criminal 
     is not necessarily impeachable.--[Speech, 10/2/98]

                           *   *   *   *   *

       I am here today to call for bipartisanship in the 
     impeachment process. It is a concept many will say they agree 
     with. But actions speak louder than words.
       The framers of the Constitution knew that the greatest 
     danger associated with impeachment was the presence of 
     partisan factions that could dictate the outcome.
       It is clear from the debates and from the commentaries on 
     the Constitutional Convention that the framers were concerned 
     that

[[Page S1482]]

     anything less than bipartisanship could, and would, do great 
     damage to our form of government. They knew that to 
     contemplate an action as profound as undoing a popular 
     election requires at a minimum that members of both parties 
     find that the alleged wrong is grave enough to overturn 
     the will of the majority of the American people.
       The framers also understood the sentiment expressed nearly 
     200 years later by Congresswoman Barbara Jordan during the 
     impeachment proceedings of Richard Nixon.
       She said, ``it is reason, and not passion, which must guide 
     our deliberations, guide our debate, and guide our 
     decision.''
       But the current debate is guided by faction, not reason. 
     One example: The House Judiciary Committee this month heard a 
     battery of witnesses address the question of what is an 
     impeachable offense. Democrats called legal experts who 
     testified that the President's acts are not impeachable 
     offenses, and Republicans called witnesses who were just as 
     certain they were. By the end of the hearing, anyone 
     listening would have the overwhelming impression that there 
     was no consensus in the legal community on the issue, that it 
     was an open question.
       Yet the vast majority of historians and legal scholars have 
     concluded--and stated publicly--that nothing that President 
     Clinton has been accused of rises to the level of an 
     impeachable offense. The hearing was a political charade. We 
     are told that ultimately, this is a political process. 
     Ultimately, it is. The question is whether it is going to be 
     a fair process. I argue that it can, and must be fair.
       In his marvelous book on the impeachment process, published 
     while the country was in the throes of President Nixon's 
     Watergate troubles, Professor Charles Black alerted us to the 
     danger of partisanship.
       Because the constitution and its history provide us with 
     more questions about impeachment than answers, he said, ``it 
     is always tempting to resolve such questions in favor of the 
     immediate political result that is palatable to us, for one 
     can never definitely be proved wrong, and so one is free to 
     allow one's prejudices to assume the guise of reason.''
       Black was echoing Alexander Hamilton, who warned in 
     Federalist 65 that impeachments:
       ``will seldom fail to agitate the passions of the whole 
     community, and to divide it into parties, more or less 
     friendly or inimical, to the accused. In many cases, it will 
     connect itself with the pre-existing factions, and will 
     enlist all their animosities, partialities, influence and 
     interest on the one side, or on the other; and in such cases 
     there will always be the greatest danger, that the decision 
     will be regulated more by the comparative strength of parties 
     than by the real demonstrations of guilt or innocence.''
       I don't think I am being partisan myself in warning about 
     the risks of partisan excess. As a 32 year-old Senator, I 
     expressed this same concern about the fate of a Republican 
     President. On April 10, 1974, I rose on the floor of the 
     United States Senate and said:
       ``In the case of an impeachment trial, the emotions of the 
     American people would be strummed, as a guitar, with every 
     newscast and each edition of the daily paper in communities 
     throughout the country.
       The incessant demand for news or rumors of news--whatever 
     its basis of legitimacy--would be overwhelming. The 
     consequential impact on the federal institutions of 
     government would be intense--and not necessarily beneficial. 
     This is why my plea today is for restraint on the part of all 
     parties involved in the affair.''
       I make the same plea for restraint today. And while the 
     circumstances surrounding these two events are starkly 
     different, the consequences for our Nation are the same. The 
     gravity of removing a sitting president from office is the 
     same today as it was twenty-four years ago.
       The American people understand that the consequences of 
     impeaching a sitting President are grave and, thus far, they 
     have shown a remarkable restraint--more than some of the 
     pundits and experts. But I believe they have reached two 
     clear conclusions: Congress should resolve the matter 
     expeditiously and resolve the matter in a fair and non-
     partisan manner.
       These conclusions have great significance to the 
     impeachment process. I believe the American people will 
     ultimately make their judgment about the proceedings and the 
     outcome based in part, on whether the House Judiciary 
     Committee votes along strict party lines and whether the 
     House of Representatives acts in a similar manner.
       That may not be fair, but I believe that is how they will 
     judge it. Therefore, it seems clear to me that for history's 
     sake, and with the Committee's legacy in mind, Chairman Hyde 
     and the Republican majority in the House must bend over 
     backwards to demonstrate that they have conducted this 
     proceeding based on principle, not politics.
       There is yet another issue where public opinion comes into 
     play. That is the question of whether the President's 
     transgressions warrant impeachment. We know from survey after 
     survey that the American people believe the President's 
     actions do not justify impeaching him.
       Should that have any bearing on the outcome? Many of my 
     colleagues say they will ignore public opinion. In most 
     cases, this is a sound position for a member of Congress to 
     take. When we are elected to the House and the Senate, we are 
     sent here to exercise judgment, not simply to be weathervanes 
     that shift with the political winds. The fact that this is an 
     impeachment proceeding doesn't change that--it makes it even 
     more important that we exercise our best judgment.
       But I believe it is a serious mistake to take the position 
     that public opinion should have no bearing on how we act and 
     what we do. Let me explain. Many people--and many legal 
     scholars--have said that impeachment should be reserved for 
     grave breaches of the public trust. Surely, if we are trying 
     to decide whether an offense is a breach of the public trust, 
     it is important to know what the public thinks. If the 
     American people think the President's actions do not warrant 
     impeachment, we should listen to their views, and take them 
     seriously.
       It would be a serious mistake to ignore public opinion for 
     another, more fundamental reason. This is their President we 
     are talking about. The President of the United States doesn't 
     serve at the pleasure of the legislature, as a prime minister 
     does in a parliamentary system. He is elected directly by the 
     people of the United States.
       The election of a President is the only nationwide vote 
     that the American people ever cast. That is a big deal. If 
     the American people don't think they have made a mistake in 
     electing Bill Clinton, we in the Congress had better be very 
     careful before we upset their decision.
       This was brought home to me several weeks before the 
     elections at a filling station in Wilmington. The woman 
     working the cash register looked up at me with something of a 
     scowl on her face. I assumed--incorrectly, it turned out--
     that she had voted against me the last time I ran. She said, 
     ``You're Joe Biden, aren't you?'' I nodded. She said, ``What 
     are you going to do to President Clinton on this Lewinsky 
     thing?'' I started to give her a noncommital answer about the 
     process needing to go forward, but she brought me up short. 
     ``Don't you or anyone else take my vote away, Joe. He's my 
     President! If you remove him, I will never vote again.''
       This woman--and the American people--understand the genius 
     of the American system in their bones. They know that the 
     Congress and the President are separate branches of 
     government. They understand that each branch is responsible 
     to them, not to the other branch of government. Just as they 
     know that the Senators from their state are theirs, and the 
     Representative from their district is theirs, they know that 
     the President is theirs, too.
       Anyone who wants to impeach Bill Clinton needs to keep in 
     mind what the American people think about it, because he is 
     their President.
       Let me be absolutely clear. This does not mean just doing 
     what the opinion polls say. It means proceeding in a manner 
     that the American people understand to be fair. In the case 
     of an impeachment, fair means bipartisan. It means putting 
     aside the disagreements that stem from partisan factions. The 
     time for partisan factions to play a role is in the process 
     of elections, where candidates advance competing policies and 
     platforms and the people vote. Once the election is held, our 
     leaders hold office until the next election. It is simply 
     antithetical to our constitutional democracy to use 
     impeachment to overturn an election on partisan grounds. It 
     violates the independence of the Presidency and it usurps the 
     people's voice.
       The Framers saw this danger when they wrote the impeachment 
     power into the Constitution. Hamilton warned that an 
     impeachment would ``connect itself with pre-existing 
     factions,'' just as Black much later saw that impeachment was 
     an occasion for ``prejudices to assume the guise of reason.''
       So those who wish to proceed with impeachment in the face 
     of the public's contrary opinion bear a special obligation 
     and confront a special risk. The obligation they face is that 
     they must proceed in a bipartisan manner, so that we can 
     defend the Congress's actions as fair and consistent with the 
     constitutional framework--so that if impeachment goes 
     forward, those who support it can look my constituent, or 
     their constituent, straight in the eyes and defend the 
     process as fair and just.
       Should they fail to do this, the risk they face is the 
     chance that they will inflict more damage on our system of 
     government and induce more cynicism and disgust with politics 
     than anything the President has done so far.
       So we must be prudent. Otherwise we will succumb to the 
     danger the Framers warned against. We will subject the 
     President to what amounts to a vote of no confidence. If you 
     disapprove of his presidency and its policies, or if you do 
     not like the man, vote to impeach. If, on the other hand, you 
     support his presidency and his policies, or if you do like 
     the man, vote to acquit. But that is not our system of 
     government.
       When Benjamin Netanyahu returned home after signing the Wye 
     accords, he faced a vote of no confidence. If he had lost, he 
     would have been out of office and another government would 
     have to be formed.
       That is simply not our system of government. Ours is not a 
     parliamentary system. That is not how impeachment is supposed 
     to operate.
       Reflect for just a moment on how different our government 
     is. Here, the President and the Congress are separate 
     branches of government. Each is elected directly by the 
     people. The President and Vice President are the only 
     officials elected by ALL the people. Through the electoral 
     process, they answer to all the people. In such a system, a 
     vote of no confidence, as a means of removing the

[[Page S1483]]

     head of government when the Congress disapproves of his 
     leadership, contradicts the theory of separated powers. It 
     would trample on the choice made by the people through the 
     electoral process.
       This is no small matter. It goes to the heart of the 
     constitutional design. As Jack Rakove, the Stanford 
     historian, noted during the recently held House hearings on 
     the standard for impeachment, the prevailing principle that 
     guided the Framers in shaping the institution of the 
     Presidency during the Philadelphia Convention, the one major 
     goal and idea that best explains how that office took shape 
     over the summer of 1787, was their intention on ``making the 
     presidency as politically independent of the Congress as they 
     could.''
       The Framers saw the system of separated powers and checks 
     and balances as a bulwark in support of individual liberty 
     and against government tyranny. The separation of powers 
     prevents government power from being concentrated in any 
     single branch of government. Permit one branch of government 
     to subjugate another to its partisan wishes, and you permit 
     the kind of concentration of power that can lead to tyranny.
       So the system the Framers established is utterly 
     incompatible with the idea that sharp partisan divisions 
     could be sufficient to impeach. Preserving our system, with 
     its checks and balances and separation of powers, ought to be 
     part of our consideration as we attempt to resolve the 
     current controversy.
       How do we ensure that impeachments do not become the 
     partisan showdowns that the Framer's warned about? The answer 
     is both simple and elusive. The only thing that prevents the 
     impeachment power from being abused is the good faith of 
     Members of Congress.
       Professor Black proposed a simple test. He said that for 
     the purposes of impeachment, members take off their party's 
     hat--shed their partisan identity--and then try to take on 
     the identity of a member of the other party. In other words, 
     Republicans who favor Clinton's impeachment should try to 
     pretend they are Democrats, and see if they still hold that 
     same conclusion. Democrats who scoff at impeachment in the 
     present instance should try to see it from the Republican's 
     point of view.
       It is very difficult to perform this test, especially in 
     the highly charged partisan atmosphere in which we live, but 
     you get the point. Before we undertake such a solemn act as 
     impeachment, we should examine our reasoning very carefully 
     to be sure we are not simply following partisan instincts.
       Impeachment can be legitimate if and only if it emanates 
     from a bipartisan conviction that the president has committed 
     high crimes and misdemeanors--when people of opposing 
     viewpoints can come together in agreement over the 
     seriousness of the offense and the appropriateness of the 
     sanction.
       Partisanship need not disappear entirely--that would be 
     impossible. It simply must be held in check for a time--a few 
     weeks, perhaps a month--and by a relatively small number of 
     people, so that a bipartisan consensus can take shape.
       Look back at the Nixon impeachment. It took on legitimacy 
     when a core of Republicans on the House Judiciary Committee 
     were moved by the nature of President Nixon's offenses to 
     break party ranks and vote for articles of impeachment. In 
     the Senate, it was the stark reality of eroding Republican 
     support that prompted President Nixon to resign. There was 
     bipartisan consensus that what Nixon did was impeachable.
       Partisanship did not evaporate entirely during the 
     impeachment trial of Andrew Johnson. In fact, the entire 
     episode was riddled with partisanship, and overall it stands 
     as an excellent example of how not to conduct an impeachment.
       Still, seven Republican Senators did vote with the 
     Democrats for acquittal, shedding their partisan preferences, 
     to prevent that impeachment from succeeding. It took only 
     that amount of bipartisanship to save the country from an 
     impeachment that most people--in retrospect--have concluded 
     would have been a terrible mistake. The fact that a 
     conviction in the Senate requires a two-thirds majority 
     guarantees a measure of necessary bipartisanship except in 
     all but the most lopsided Senates.
       But bipartisanship should not wait until the matter reaches 
     the Senate chamber. In previous impeachments the votes in 
     both the House and the Senate have been by overwhelming 
     majorities. In the past, except for the Johnson impeachment, 
     the only times articles of impeachment reached the floor were 
     in cases of tremendous bipartisan consensus that the offenses 
     satisfy the constitutional standard and that the officer 
     ought to be removed.
       As for the Johnson impeachment itself, according to James 
     Blaine, one of the Republican House members who voted for 
     impeachment, he and others came in time to regret the effort. 
     In private correspondence, Blaine wrote that, ``the sober 
     reflection of after years has persuaded many who favored 
     impeachment that it was not justifiable on the charges made, 
     and that its success would have resulted in greater injury to 
     free institutions than Andrew Johnson in his utmost endeavor 
     was able to inflict.''
       The conclusion I reach is this. The burden is, as it always 
     has been, on those who seek to impeach and convict a 
     President. To overturn a popular election, they must convince 
     the American people and at least some in the President's 
     party that the President's actions meet the high standard for 
     impeachment settled upon by our founders in the Constitution.
       This is what I mean by bipartisanship.
       The standard is ``principled political neutrality.''
       And one measure of whether a member has met that principle 
     is to ask in Professor Black's words: ``Would they have 
     answered the same question the same way if it came up with 
     respect to a president towards whom [they] felt oppositely 
     from the way [they] feel toward the President threatened with 
     removal.''
       The American people will know whether each member met that 
     test. They will not demand unanimity, but they will demand 
     consensus.
       Thus far, the House Judiciary Committee has proceeded 
     without dignity, causing the American people to lose respect 
     for the Committee.
       As a result, the burden of demonstrating that they are 
     proceeding with a standard of ``principled political 
     neutrality'' will be politically difficult to meet.
       Ken Starr will make his case, the President should be 
     allowed to make his. Then let them decide if the President's 
     conduct meets the test of what the framers had in mind by 
     ``high crimes and misdemeanors.''
       The choice is not whether the President's self-evidently 
     shameful and possibly criminal conduct must be punished by 
     impeachment or be condoned. The choice is whether the process 
     for dealing with his conduct is removal from office or some 
     other means--censure, or perhaps even a criminal trial after 
     he has left office.
       To those who say that failure to bring articles of 
     impeachment against the President would amount to condoning 
     his immoral behavior or overlooking a criminal act, 
     notwithstanding the fact it does not meet the test of an 
     impeachable offense, I say they do not understand our system 
     of government. For the Constitution contemplates and the law 
     provides for such a circumstance--it is called a criminal 
     trial after his term is served. It is a way to punish the 
     President without doing damage to the system of separated 
     powers or overruling the judgment of the American people.
       Failure to impeach, even failure to proceed with a criminal 
     action, does not mean that the President has not paid for his 
     immoral behavior--he has already been sentenced to a hundred 
     years of shame in the history books, which is not an 
     insignificant penalty.
       So I say to my colleagues in the House, do your duty. 
     Proceed with principled political neutrality. For if you do, 
     history will judge you kindly. And if you do not, it will 
     judge you harshly.
       And for those of us who hold high public office and the 
     public trust, history is a judge.--[Speech, 11/18/98]


                            Burden of Proof

       What is the standard of proof? The Constitution does not 
     set forth an express standard of proof that the evidence must 
     meet in order to allow the Senate to convict the president. 
     Practice has left to each Senator to determine for him or 
     herself what standard to apply.
       From the judicial setting there are three major standards 
     from which to choose. Most civil trials require a plaintiff 
     to prove his or her case by a preponderance of the evidence. 
     This means that the plaintiff must prove that it is more 
     likely than not that the plaintiff's assertions are true. 
     Criminal trials require the most exacting degree of proof. 
     The prosecution must prove the defendant's guilt beyond a 
     reasonable doubt. A third, middle course is applied in some 
     cases. This standard, clear and convincing evidence, requires 
     proof that substantially exceeds a mere preponderance but 
     that does not eliminate all reasonable doubt. There must be a 
     very high degree of probability that the evidence proves what 
     the plaintiff asserts, but the proof may fall short of 
     certainty.
       Many Senators, analogizing to a criminal trial, have 
     expressed that they would require the House Managers to prove 
     their case ``beyond a reasonable doubt.'' In anticipation of 
     an impeachment trial of President Richard Nixon, Senators Sam 
     Ervin, Strom Thurmond, and John Stennis all declared that 
     they would apply the beyond a reasonable doubt standard. But 
     it is clear that individual Senators may opt for a civil 
     standard.
       This issue may not have more than rhetorical significance 
     for the impeachment trial of President Clinton. These 
     standards are meant to guide juries in their fact-finding 
     capacity. Insofar as the trial focuses on the question 
     whether the President's conduct justifies conviction and 
     removal from office, the proceedings will call on the Senate 
     in its judicial character. Resolving that question requires 
     the Senate to exercise its legal and political judgment in 
     order to determine whether the constitutional punishment fits 
     the misconduct. It does not call upon the Senate to make a 
     factual determination about what conduct actually occurred.--
     [Memorandum, 12/28/98]

                           *   *   *   *   *



           The Burden of Proof in Assessing the House's Case

       But can the President rightly be charged with having 
     committed the massive number of crimes that the House 
     Managers allege? As Mr. McCollum said, if we cannot conclude 
     that the President has violated the law, even the House 
     Managers would agree that he should not be removed from 
     office. Even if

[[Page S1484]]

     you accept their recitation of the dire consequences of 
     President Clinton remaining in office, if the President 
     cannot be shown to have been a serial perjurer and a massive 
     obstructor of justice, the Senate should acquit.
       What standard of proof should a Senator apply in deciding 
     whether the record supports these charges? Both the House 
     Managers and the President's counsel addressed this 
     significant issue. The House Managers quite correctly pointed 
     out that the Senate has never sought to determine for the 
     entire body what that burden of proof should be in an 
     impeachment. In effect, we have left it to the good judgment 
     of each Senator to decide whether or not they are convinced 
     by the evidence presented to us.
       For this Senator, fundamental fairness as well as the 
     nature of the House's case indicate that I ought to be 
     convinced beyond a reasonable doubt that the President 
     violated the laws that the House alleges. Proof beyond a 
     reasonable doubt is the same standard applied in criminal 
     cases--it is the standard that would apply if the President 
     were tried in a criminal court for perjury or obstruction of 
     justice.
       It seems to me that fundamental fairness counsels that I 
     apply the same standard a criminal court would apply 
     precisely because the House asserts that what makes his 
     actions impeachable is that he has violated the criminal 
     statutes regarding perjury and obstruction of justice. It 
     strikes me as absurd that the Senate would have the arrogance 
     to throw out a duly elected President on these grounds unless 
     it was convinced that he would be convicted of those charges. 
     Otherwise, we would be saying in effect that even though the 
     President would not be convicted on these crimes, we are 
     nevertheless throwing him out of office because he committed 
     those crimes. Someone else can try to explain the logic of 
     that decision to the voters, but not me.
       In addition, the standard of proof beyond a reasonable 
     doubt seems to me compelled by the fact that in the House's 
     explanation of the harm to our system of government if the 
     President is not thrown out, their entire argument rises and 
     falls depending upon whether or not the President would be 
     convicted in a court of law for the crimes alleged. If he 
     could not be convicted in a court of law, then the Senate is 
     not ``condoning'' perjury or obstruction of justice any more 
     than a criminal court is condoning those crimes when someone 
     is acquitted on such charges. The Senate, like a court, is 
     simply saying, ``not proven.'' But if the Senate is not 
     condoning those crimes, there is no conceivable basis for 
     concluding that the public will be harmed by the President's 
     remaining in office.
       [There is another way to look at this: In any impeachment, 
     a Senator must simply be convinced to his or her satisfaction 
     that the defendant committed the acts alleged. That standard 
     never changes. However, when the articles of impeachment 
     allege that offenses rise to an impeachable level because 
     these actions violate the law and have harmful consequences 
     to the country because the defendant has violated the law and 
     would not be punished, in that case a Senator must be 
     convinced that a defendant would in fact be punished by a 
     criminal court. In other words, the Senator must simply be 
     convinced that a court would find that there is proof beyond 
     a reasonable doubt.
       In contrast, if the charges were that the president had 
     lied to the American people, the Congress or foreign leaders, 
     and that the harmful consequences flowed from being unable to 
     rely upon his word, then a Senator must simply be convinced 
     that the President lied, relying upon whatever level of proof 
     is sufficient to convince him or her of that fact.]--
     [Memorandum, 1/21/98]


                                Censure

       In recent days, some have suggested that because the Starr 
     report provides prima facie evidence of what are arguably 
     impeachable offenses, the House and the Senate have a 
     constitutional responsibility to see the impeachment process 
     through to its conclusion. In my view, the constitutional 
     history that I have sketched here this evening shows this 
     position to be entirely mistaken. Indeed, if anything, 
     history shows a thoroughly understandable reluctance to have 
     the procedure invoked.
       Stopping short of impeachment would not be reaching a 
     solution ``outside the Constitution,'' as some suggest--it 
     would be entirely compatible and consistent with the 
     Constitution.
       The 28th Congress [which contemplated but then terminated 
     impeachment proceedings against President Tyler] hardly 
     violated its constitutional duty when the House decided that, 
     all things considered, terminating impeachment proceedings 
     after cooperation between the Congress and the President 
     improved was a better course of action than proceeding with 
     impeachment based on his past actions, even though it 
     apparently did so for reasons no more laudable than those 
     that initiated the process.
       Impeachment was and remains an inherently political 
     process, with all the pitfalls and promises that are thus put 
     into play. Nothing in the document precludes the Congress 
     from seeking means to resolve this or any other putative 
     breach of duty short of removing him from office. In fact, 
     the risky and potentially divisive nature of the impeachment 
     process may counsel in favor of utilizing it only as a last 
     resort.
       Of course, impeachment ought to be used if the breach of 
     duty is serious enough--what the Congress was prepared to do 
     in the case of Richard Nixon was the correct course of 
     action. However, nothing in the Constitution precludes the 
     congress from resolving this conflict in a manner short of 
     impeachment.
       The crucial question--the question with which the country 
     is currently struggling--is whether the President's breaches 
     of conduct--which are now well-known and which have been 
     universally condemned--warrant the ultimate political 
     sanction. Are they serious enough to warrant removal?
       In answering that, we need to ask ourselves, what is in the 
     best interest for the country?
       And while I have not decided what ultimately should happen, 
     I do want to suggest that it is certainly constitutionally 
     permissible to consider a middle ground as a resolution of 
     this matter. Such an approach might bring together those of 
     the President's detractors who believe there needs to be some 
     sanction, but are willing to stop short of impeachment, as 
     well as those of the President's supporters who reject 
     impeachment, but are willing to concede that some sanction 
     ought to be implemented.
       As a country, we have not often faced decisions as stark 
     and potentially momentous as the impeachment of a president. 
     On the other hand, we would be wise not to overstate such 
     claims--surely we have faced some moments just as stark and 
     serious as this one. We have survived those moments, and we 
     will survive this one.
       Whatever the outcome of the present situation, I am 
     confident that our form of government and the strength of our 
     country present us not with any constitutional crisis, but 
     rather with the constitutional framework and flexibility to 
     deal responsibly with the decisions we face in the coming 
     months.--[Speech, 10/2/98]


                     Crimes and Misdemeanors, High

       Let me say at the outset, that what President Clinton did 
     was reprehensible. It was a horrible lapse in judgment and it 
     has brought shame to him personally and to the office of the 
     president. His actions have hurt his family, his friends, his 
     supporters and the country as a whole. President Clinton has 
     said this himself.
       Let me also say that I have not made any decision as to 
     what I think should happen. I have not come to any conclusion 
     as to what consequences the President should face for his 
     shameful behavior. I believe the oath I have taken precludes 
     me and other Senators from prejudging, as I may be required 
     to serve as a judge and juror in the trial of the century.
       I can only make an assessment after hearing all of the 
     evidence: evidence against the President, and evidence in 
     support of the President.
       No one knows how this will turn out. However, I have given 
     the topic some thought and would like to explore some of the 
     issues that surely will confront responsible Members of 
     Congress and all Americans as we enter this difficult period 
     in our history.
       The framers of the Constitution who met in Philadelphia in 
     the summer 1787 considered offering the country a 
     constitution that did not include the power to impeach the 
     president. After all, any wrongs against the public could be 
     dealt with by turning the president out in the next election.
       One delegate to the constitutional convention, Charles 
     Pinckney of South Carolina, worried that the threat of 
     impeachment would place the president under the thumb of a 
     hostile congress, thereby weakening the independence of the 
     office and threatening the separation of powers. According to 
     James Madison's notes, Pinckney called impeachment a ``rod'' 
     that congress would hold over the president.
       In being reluctant to include an impeachment power, the 
     framers were not trying to create an imperial presidency. In 
     fact, what they were worried about was protecting all 
     American citizens against the tyranny of a select group.
       In their view, the separation of powers constituted one of 
     the most powerful means for protecting individual liberty, 
     because it prevented government power from being concentrated 
     in any single branch of government. To make the separation of 
     powers work properly, each branch must be sufficiently strong 
     and independent from the others.
       The framers were concerned that any process whereby the 
     legislative branch could sit in judgment of the president 
     would be vulnerable to abuse by partisan factions. Federalist 
     No. 65 begins its defense of the impeachment process by 
     warning of the dangers of abuse. It argues that impeachments:
       ``Will seldom fail to agitate the passions of the whole 
     community, and to divide them into parties, more or less 
     friendly or inimical, to the accused. In many cases, it will 
     connect itself with the pre-existing factions, and will 
     enlist all their animosities, partialities, influence and 
     interest on one side, or on the other; and in such cases 
     there will always be the greatest danger, that the decision 
     will be regulated more by the comparative strength of the 
     parties than by the real demonstration of guilt or 
     innocence.''
       So the framers were fully aware that impeachment 
     proceedings could become partisan attacks on the president--
     charged with animosities generated by all manner of prior 
     struggles and disagreements, over executive branch decisions, 
     over policy disputes, over resentment at losing the prior 
     election. Federalist No. 65 expresses the view that the use 
     of impeachment to vindicate these animosities would actually 
     be an abuse of that power.
       This sentiment is as true today as it was when the 
     constitution was being written. It

[[Page S1485]]

     was also true when Richard Nixon faced impeachment in 1974. 
     In fact, it would have been wrong for Richard Nixon to have 
     been removed from office based upon a purely partisan vote. 
     No president should be removed from office merely because one 
     party enjoys a commanding lead in either house of the 
     congress.
       Yet while the framers knew that impeachment proceedings 
     could become partisan, they needed to deal with strong anti-
     federalist factions.
       The anti-federalists strenuously argued that the federal 
     government would quickly get out of step with the sentiments 
     of the people and become vulnerable to corruption and 
     intrigue, arrogance and tyranny. This charge proved close to 
     fatal as the ratifying conventions in the states took up the 
     proposed constitution.
       The framers of the Constitution knew that the Constitution 
     would have been even more vulnerable to charges of 
     establishing a government remote from the people if the 
     president were not subject to removal except at the time of 
     re-election.
       James Madison's notes of the Philadelphia constitutional 
     convention record his observations of the debate. He:
       ``Thought it indispensable that some provision should be 
     made for defending the community against the incapacity, 
     negligence or perfidy of the chief magistrate [that is, the 
     president]. The limitation of the period of his service was 
     not a sufficient security. He might lose his capacity after 
     his appointment. He might pervert his administration into a 
     scheme of speculation or oppression. He might betray his 
     trust to foreign powers.''
       So in the end, the framers of the Constitution risked the 
     abuse of power by the congress to gain the advantages of 
     impeachment.
       Once the decision to include the power of impeachment had 
     been made, the remainder of debate on the impeachment clauses 
     focused on two issues:
       1. What was to constitute an impeachable offense or what 
     were the standards to be?
       2. How was impeachment to work or what were the procedures 
     to be?
       As we shall see, the framers proved unable to separate 
     these two issues entirely. Understanding how they are 
     intertwined, however, helps us to understand the full 
     implications of the power.
       The Constitution provides that ``the House of 
     Representatives shall. . . have the power of impeachment.'' 
     (Article I, Section 2, Clause 5).
       The framers decision that the House of Representatives 
     would initiate the charges of impeachment follows the pattern 
     of the English Parliament--where the House of Commons 
     initiates charges of impeachment. Beyond this, the choice 
     must have seemed fairly compelled by two related 
     considerations.
       The first, already mentioned, was the need to provide the 
     people as a whole with assurances that the government they 
     were being asked to create would be responsive to the 
     interests and concerns of the people themselves.
       The second was the framer's substantive understanding of 
     the impeachment power. It was a power to hold accountable 
     government officers who had, in Hamilton's terms, committed 
     ``an abuse or violation of some public trust'' thereby 
     committing an injury ``done immediately to the society 
     itself.''
       If the gravamen of an impeachment is the breach of the 
     public's trust, no branch of the federal government could 
     have seemed more appropriate to initiate such a proceeding 
     than the House, which was conceived and defended as the 
     chamber most in tune with the people's sympathies and hence 
     most appropriate to reflect the people's views.
       The Constitution further provides that the president shall 
     be ``removed from office on impeachment for, and conviction 
     of, treason, bribery, or other high crimes and 
     misdemeanors.'' (Article II, Section 4).
       This language went through several changes during that 
     summer of 1787. In initial drafts, the grounds for 
     impeachment were restricted to treason and bribery alone. 
     When the matter was brought up on September 8, 1787, George 
     Mason of Virginia inquired as to why the grounds should be 
     restricted to these two provisions.
       He argued that ``attempts to subvert the constitution may 
     not be treason as above defined.'' Accordingly, he moved to 
     add ``maladministration'' as a third ground.
       James Madison objected to Mason's motion, contending that 
     to add ``so vague a term will be equivalent to a tenure 
     during the pleasure of the senate.'' Here again, we see the 
     worry that impeachment would be misused by the congress to 
     reduce the independence of the president, allowing partisan 
     factions to interfere at the expense of the larger public 
     good.
       The objection apparently proved effective because mason 
     subsequently withdrew the motion and substituted the phrase 
     ``or other high crimes and misdemeanors.''
       What does the phrase mean? It is clear the framers thought 
     it to be limited in scope. But beyond this, constitutional 
     scholars have been debating the meaning of this phrase from 
     the very early days of the republic.
       Yet despite this on-going dialogue, I believe there are two 
     important points of agreement as to the original 
     understanding of the phrase, and a third issue where the 
     weight of history suggests a settled practice.
       First, as we have already seen, the framers did not intend 
     that the president could be impeached for 
     ``maladministration" alone.
       Second, a great deal of evidence from outside the 
     convention shows that both the framers and ratifiers saw 
     ``high crimes and misdemeanors'' as pointing to offenses that 
     are serious, not petty, and offenses that are public or 
     political, not private or personal.
       In 1829, William Rawle authored one of the early 
     commentaries on the Constitution of the United States. In it, 
     Rawle states that ``the legitimate causes of impeachment. . . 
     can only have reference to public character and official 
     duty.''
       He went on to say, ``in general, those offences which may 
     be committed equally by a private person as a public officer 
     are not the subjects of impeachment.''
       In addition, more than one hundred fifty years ago, Joseph 
     Story, in his influential Commentaries on the Constitution, 
     stated that impeachment is:
       ``Ordinarily'' a remedy for offenses ``of a political 
     character,'' ``growing out of personal misconduct, or gross 
     neglect, or usurpation, or habitual disregard of the public 
     interests, in the discharge of the duties of political 
     office.''
       The public character of the impeachment offense is further 
     reinforced by the limited nature of the remedy for the 
     offense. In the English tradition, impeachments were 
     punishable by fines, imprisonment and even death. In 
     contrast, the American constitution completely separates the 
     issue of criminal sanctions from the issue of removal from 
     office.
       The Constitution states that ``judgment in cases of 
     impeachment shall not extend further than to removal from 
     office, and disqualification to hold and enjoy any office of 
     honor, trust or profit under the United States.'' (Article I, 
     Section 3, Clause 7).
       The remedy for violations of the public's trust in the 
     performance of one's official duties, in other words, is 
     limited to removal from that office and disqualification from 
     holding future offices. Remedies that I might add, correspond 
     nicely to the public nature of the offenses in the first 
     instance.
       Additional support comes from yet another commentator, 
     James Wilson, a delegate to the convention from Pennsylvania. 
     In his lectures on the Constitution, Wilson wrote that ``in 
     the United States and Pennsylvania, impeachments are confined 
     to political characters, to political crimes and 
     misdemeanors, and to political punishments.''
       All in all, the evidence is quite strong that impeachment 
     was understood as a remedy for abuse of official power, 
     breaches of public trust, or other derelictions of the duties 
     of office.
       The third point to make about the scope of the impeachment 
     power is this: to be impeachable, an offense does not have to 
     be a breach of the criminal law.
       The renowned constitutional scholar and personal friend and 
     advisor, the late Phillip Kurland, wrote that ``at both the 
     convention that framed the constitution and at the 
     conventions that ratified it, the essence of an impeachable 
     offense was thought to be breach of trust and not violation 
     of the criminal law. And this was in keeping with the primary 
     function of impeachment, removal from office.''
       If you put the notion that an impeachable offense must be a 
     serious breach of an official trust or duty, together with 
     the point that it does not have to be a criminal violation, 
     you reach the conclusion that not all crimes are impeachable, 
     and not every impeachable offense is a crime. [Speech, 10/2/
     98]

                           *   *   *   *   *

       Reference has been made to an exchange between George Mason 
     and James Madison at the Virginia Ratifying Convention. Mason 
     is reported to have worried that a president might ``stop 
     [an] inquiry'' into wrongdoing involving the president. 
     Madison is reported to have replied that this concern was not 
     substantial because the House of Representatives could 
     impeach the president if he did so. The exchange, it has been 
     argued, proves that the Framers viewed obstruction of justice 
     as clearly an impeachable offense.
       A more extended look at the colloquy shows that Mason's 
     precise concern was that the President would use his pardon 
     power to pardon people whose investigations might reveal 
     presidential involvement in criminal activities. Mason used 
     this concern as the basis for arguing that the pardon power 
     should be placed in the House, and not with the President. To 
     this concern, Madison replied that if the President so abused 
     the pardon power, he could be impeached. So it was an action 
     that abused an official power of the President that Madison 
     thought was impeachable.
       Here is a condensed version of the exchange as reported in 
     Eliot's Debates.
       Mr. GEORGE MASON, animadverting on the magnitude of the 
     powers of the President, was alarmed . . . Now, I conceive 
     that the President ought not to have the power of pardoning, 
     because he may frequently pardon crimes which were advised by 
     himself. It may happen, at some future day, that he will 
     establish a monarchy, and destroy the republic. If he has the 
     power of granting pardons before indictment, or conviction, 
     may he not stop inquiry and prevent detection?
       Mr. MADISON, adverting to Mr. Mason's objection to the 
     President's power of pardoning, said it would be extremely 
     improper to vest it in the House of Representatives, and not 
     much less so to place it in the Senate. . . . There is one 
     security in this case to which gentlemen may not have 
     adverted: if the President be connected, in any suspicious 
     manner, with any person, and there

[[Page S1486]]

     be grounds to believe he will shelter him, the House of 
     Representatives can impeach him. . . . This is a great 
     security.'' [Memorandum, 2/9/99]

                           *   *   *   *   *



     ii. the meaning of ``high crimes and misdemeanors'' under the 
                              constitution

       The Constitution establishes that the President ``shall be 
     removed from Office on Impeachment for and Conviction of 
     Treason, Bribery, or other high Crimes and Misdemeanors.'' 
     That instrument, by design, does not contain an express 
     definition of the phrase ``other high Crimes and 
     Misdemeanors.'' The framers intended the Constitution to 
     endure for centuries and recognized that they could not 
     provide a more specific definition that would justly serve 
     the nation's interest into an unknowable future. Instead, 
     they wisely entrusted the construction and adaptation of that 
     phrase to the judgment and conscience of the people's chosen 
     representatives in Congress. Thus, the Senate is left to 
     exercise what Alexander Hamilton termed our ``awful 
     discretion'' to judge whether the President's conduct 
     warrants removing him from office.
       While the Constitution calls upon each Senator to bring his 
     or her good faith political judgment to bear on the meaning 
     of the constitutional standard of ``other high Crimes and 
     Misdemeanors,'' it does not abandon us to an ad hoc or 
     partisan exercise of our discretion. Indeed, the framers 
     strongly urged in both the Philadelphia convention and the 
     state ratifying conventions that the constitutional standard 
     is not properly understood to allow impeachment to be used as 
     a tool of partisan punishment. The Constitution itself, the 
     history of its framing and ratification, and the construction 
     given through faithful interpretation and practice since its 
     ratification converge to provide powerful guidance for 
     determining what offenses justify impeachment and conviction. 
     These touchstones of constitutional interpretation reveal 
     that high crimes and misdemeanors are great offenses 
     characterized by two elements: (1) grave harm to the 
     constitutional system of government that (2) results from 
     official misconduct.


                     a. the history of impeachment

       The framers met in Philadelphia in 1787 because the 
     government under the Articles of Confederation was so 
     ineffectual as to have brought the fledgling union to ``the 
     last stage of national humiliation.'' They intended to 
     establish a government through which the people could 
     effectively define and pursue the general welfare. To do so, 
     the framers understood that the government whose charter they 
     were about to write would have to be entrusted with broad 
     coercive powers to act directly upon American citizens. At 
     the same time, the framers were practical statesmen who 
     understood that the powers necessary to make a government 
     effective could be misused make it potentially an instrument 
     of oppression. Madison explained the dilemma:
       ``If men were angels, no government would be necessary. If 
     angels were to govern men, neither external nor internal 
     controls on government would be necessary. In framing a 
     government which is administered by men over men, the great 
     difficulty lies in this: you must first enable the government 
     to control the governed; and in the next place oblige it to 
     control itself.''
       To meet this potential threat to liberty, the framers 
     divided the federal government into three co-equal branches 
     and further divided the legislative branch into two houses in 
     order to require the concurrence of the branches before the 
     government's coercive power could be brought to bear on the 
     people. Thus, while Article 1, Section 1 of the Constitution 
     vests the legislative power in Congress, this power is 
     subject to presidential veto and judicial review for 
     constitutionality. Executive action generally requires a 
     legislative basis or appropriations or other legislative 
     support and is subject to judicial review.
       Finally, the establishment and jurisdiction of the federal 
     courts generally depends upon legislative authorization, 
     subject again to presidential veto. Within this structure 
     each branch is to be independent and is ``armed'' to defend 
     itself against encroachments by the others. As Justice Robert 
     Jackson observed, ``the Constitution diffuses power the 
     better to secure liberty . . . . It enjoins upon its branches 
     separateness but interdependence, autonomy but reciprocity.''
       Maintaining the independence of the three branches of 
     government dominated the debates regarding impeachment at the 
     Constitutional Convention. Initially, the framers considered 
     offering the country a constitution that did not include the 
     power to impeach the president. After all, any wrongs against 
     the public could be dealt with by turning the president out 
     in the next election. One delegate to the constitutional 
     convention, Charles Pinckney of South Carolina, worried that 
     the threat of impeachment would place the president under the 
     thumb of a hostile congress, thereby weakening the 
     independence of the office and threatening the separation of 
     powers. According to James Madison's notes, Pinckney called 
     impeachment a ``rod'' that congress would hold over the 
     president.
       In being reluctant to include an impeachment power, the 
     framers were not trying to create an imperial presidency; 
     they were concerned about protecting all American citizens 
     and the nation as a whole. In their view, the separation of 
     powers constituted one of the most powerful means for 
     protecting individual liberty, because it prevented 
     government power from being concentrated in any single branch 
     of government. To make the separation of powers work 
     properly, each branch must be sufficiently strong and 
     independent from the others.
       The framers' worry was largely animated by the concern that 
     any process whereby the legislative branch could sit in 
     judgment over the president would be vulnerable to abuse by 
     partisan factions. Federalist No. 65 begins its defense of 
     the impeachment process by warning of its potential for 
     abuse. It argues that impeachments:
       ``Will seldom fail to agitate the passions of the whole 
     community, and to divide them into parties, more or less 
     friendly or inimical, to the accused. In many cases, it will 
     connect itself with the pre-existing factions, and will 
     enlist all their animosities, partialities, influence and 
     interest on one side, or on the other; and in such cases 
     there will always be the greatest danger, that the decision 
     will be regulated more by the comparative strength of the 
     parties than by the real demonstration of guilt or 
     innocence.''
       The framers were fully aware that impeachment proceedings 
     could become partisan attacks on the president charged with 
     animosities generated by all manner of prior struggles and 
     disagreements over executive branch decisions, over policy 
     disputes, over resentment at losing the prior election. 
     Federalist No. 65 expresses the view that the use of 
     impeachment to vindicate these animosities would actually be 
     an abuse of that power.
       Although the framers were concerned about impeachment 
     proceedings becoming partisan, they needed to deal with 
     strong anti-federalist factions. They were very aware that 
     the anti-federalists strenuously urged that the federal 
     government would quickly get out of step with the sentiments 
     of the people and would become vulnerable to corruption and 
     intrigue, arrogance and tyranny. This charge proved close to 
     fatal as the ratifying conventions in the states took up the 
     proposed constitution. The framers of the constitution knew 
     that the constitution would have been even more vulnerable 
     to charges of establishing a government remote from the 
     people if the president were not subject to removal at all 
     except at the time of re-election.
       James Madison's notes of the Philadelphia Constitutional 
     Convention record his observations of the debate where he:
       ``Thought it indispensable that some provision should be 
     made for defending the community against the incapacity, 
     negligence or perfidy of the chief magistrate. The limitation 
     of the period of his service was not a sufficient security. 
     He might lose his capacity after his appointment. He might 
     pervert his administration into a scheme of speculation or 
     oppression. He might betray his trust to foreign powers.''
       So in the end, the framers of the constitution risked the 
     abuse of power by the Congress to gain the advantages of 
     impeachment.


                B. The Constitution's Text and Structure

       The Constitution does not define impeachable offenses, yet 
     its text and structure provide clear manifestation that these 
     words refer to official misconduct causing grave harm to our 
     constitutional system of government. The starting point for 
     any analysis of the Constitution's meaning must be its text, 
     which in relevant part reads, ``the President . . . shall be 
     removed from Office on Impeachment for and Conviction of 
     Treason, Bribery, or other high Crimes and Misdemeanors.''
       Here, the text sets forth a list that begins with terms 
     that have definite meaning (treason, which is defined in the 
     Constitution itself, and bribery, whose definition was fixed 
     at common law) and proceeds to relatively indefinite terms, 
     high crimes and misdemeanors. In this setting, two rules of 
     construction, ejusdem generis and noscitur a sociis, instruct 
     that the meaning of the indefinite terms are to be understood 
     as similar in kind to the definite terms. Application of 
     these canons of construction is bolstered here by the text 
     itself. The indefinite element, ``high Crimes and 
     Misdemeanors,'' is introduced by the term ``other.'' This 
     specifically refers the reader back to the preceding definite 
     terms, treason and bribery, as supplying the context and 
     parameters for the meaning of the indefinite phrase, ``high 
     Crimes and Misdemeanors.''
       Every criminal offense, including such trivial infractions 
     as parking offenses, involves public or societal harm. It is 
     for this reason that criminal cases are titled, ``The State 
     versus . . .'' or ``The Government versus. . . .'' Each of 
     the definite impeachable offenses, treason and bribery, are 
     distinct in that they cause grave harm to the public not in 
     some undifferentiated sense but in a way that strikes 
     directly at our system of constitutional government. The 
     Constitution defines treason as ``levying War against [the 
     United States] or in adhering to their Enemies, giving them 
     Aid and Comfort,'' which plainly involves the most serious 
     offense against our system of government. Similarly, bribery 
     inescapably involves a serious subversion of the processes of 
     government. In describing the common characteristics of 
     treason and bribery, Professor Charles Black of Yale Law 
     School explained that each offense ``so seriously threaten[s] 
     the order of political society as to make pestilent and 
     dangerous the continuance in power of their perpetrator.''
       Furthermore, Professor Edwin Corwin quoted with approval 
     the statement of Justice Benjamin Curtis who said in defense 
     of

[[Page S1487]]

     President Andrew Johnson that ``treason and bribery . . . 
     these are offenses which strike at the existence of [the] 
     government. `Other high crimes and misdemeanors.' Noscitur a 
     sociis. High crimes and misdemeanors; so high that they 
     belong in this company with treason and bribery.''
       In this constitutional setting, the terms treason and 
     bribery take on a second distinctive aspect. As used in 
     Article II, Section 4, each term involves official 
     misconduct. Bribery, by definition, occurs only where a 
     public official undertakes an official act in return for 
     payment or some other corrupt consideration. Likewise, 
     treason necessarily involves official misconduct in the 
     impeachment context. To be sure, it is possible for a private 
     citizen to commit treason by giving aid and comfort to the 
     enemies of the United States. It must be remembered that 
     impeachment proceedings may be pursued only against civil 
     officers of the United States. By limiting impeachable 
     treason to civil officers, the Constitution expressly 
     contemplates that treason will provide a grounds for 
     impeachment and conviction only where a civil office is used 
     to adhere to or aid the enemies of the United States.
       The textual construction expressed above--that high crimes 
     and misdemeanors refer to grave harms to our constitutional 
     system of government that result from official misconduct--
     comports with and draws significant support from the 
     Constitution's structure. First, the structure reflects the 
     framers' conscious decision not to adopt a parliamentary 
     system of government, in which the executive power is 
     subordinate to and controlled by the legislature. The 
     structure also reflects the framers' judgment that the 
     executive branch not be accorded primacy; their experience 
     with the tyranny of the British monarchy was too recent to 
     have permitted them to accept executive supremacy. Instead, 
     the Constitution establishes three branches that are 
     independent, strong, and co-equal. Construing the category of 
     high crimes and misdemeanors too broadly would threaten the 
     independence of the executive and judicial branches. This 
     specific concern animated James Madison in the Philadelphia 
     Convention and moved him to object to vague and potentially 
     expansive formulations of the grounds upon which the 
     President could be impeached and removed from office.
       The formulation of high crimes and misdemeanors must be 
     understood as consistent with the Constitution's overall 
     structure. In as much as the Constitution's structure 
     specifically rejects the parliamentary form, the power of 
     impeachment and removal must be construed and exercised in a 
     way that respects this fundamental constitutional judgment. 
     Understanding the grounds for impeachment to be limited to 
     cases of official misconduct that cause serious harm to our 
     system of government allows the Congress to protect the 
     public against oppressive official action without undermining 
     the necessary independence of the President or the judiciary.
       The Constitution's structure also supports limiting the 
     category of impeachable offenses to those involving official 
     misconduct. The constitutional separation of powers is 
     designed to safeguard liberty against tyrannical or 
     oppressive exercise of the government's power. In advocating 
     the specific governmental structure erected in the 
     Constitution, Madison repeatedly described the motivating 
     concern to be establishing internal mechanisms, specifically 
     the system of checks and balances, to control the federal 
     government's power and minimize threat to the liberty of the 
     people. This supports limiting the scope of impeachable 
     offenses to official misconduct; that is, to conduct in which 
     the civil officer misuses his or her official power. Other 
     sorts of misbehavior by civil officers are simply beyond the 
     concern of the separation of powers, of which the impeachment 
     powers are a significant component. Indeed, the Constitution 
     specifically provides that civil officers, including the 
     President, remain subject to criminal prosecution and 
     punishment for wrongdoing that does not involve official 
     conduct.


     C. History of the Debates and Ratification of the Constitution

       Moving beyond the text and structure of the Constitution 
     itself, the debates at the Philadelphia Convention of 1787, 
     where the Constitution was drafted, and those in the 
     subsequent state ratifying conventions provide important 
     insight into the meaning of ``high Crimes and Misdemeanors.'' 
     Close examination of these proceedings demonstrates that the 
     framers gave careful consideration to Congress's impeachment 
     powers. This consideration led them to understand the 
     Constitution as setting forth a very narrow category of 
     impeachable offenses.
       Through most of the convention, the drafts of the 
     Constitution denominated treason and bribery as the exclusive 
     grounds for impeachment and removal of civil officers. In 
     September 1787, as the convention was drawing to a close, 
     Colonel George Mason and James Madison undertook colloquy 
     that gave this provision its ultimate formulation. Because 
     treason was expressly and narrowly defined in the 
     Constitution itself, Mason was concerned that the impeachment 
     power would not reach ``great and dangerous offenses'' and 
     that ``attempts to subvert the Constitution may not be 
     treason'' as defined in Article III of the Constitution. 
     Mason moved to add ``maladministration'' as a catchall 
     category. Significantly, this offense, which had been an 
     accepted ground for impeachment in British practice, 
     comprises exclusively official misconduct.
       Madison objected to this addition, not because it was too 
     restrictive, but because it was too vague and so potentially 
     too expansive. He feared that ``so vague a term will be 
     equivalent to a tenure during the pleasure of the Senate.'' 
     Here again it is clear that the framers were concerned that 
     impeachment would be misused by the Congress to reduce the 
     independence of the President. In response Mason withdrew his 
     own original motion and moved to add ``or other high Crimes 
     and Misdemeanors.'' His motion was quickly approved.
       The purpose of Mason's motions was to include all offenses 
     that pose a threat to our system of constitutional government 
     similarly to that posed by treason. Madison expressed the 
     important concern that the expansion not be left so far open 
     as to erode the essential independence of the other branches, 
     and particularly of the President. In responding to Madison's 
     concern, Mason must be understood to have intended to narrow 
     a definition that already applied solely to official 
     misconduct. The colloquy between Mason and Madison, then, 
     strongly supports construing the phrase high crimes and 
     misdemeanors to cover only official misconduct that threatens 
     grievous harm to our governmental system.
       Madison was not alone in his concern that Congress might 
     use impeachment as a tool for encroachments upon the 
     executive branch. This concern was raised in various state 
     ratifying conventions as well. For example, in supporting the 
     Constitution at the Pennsylvania Convention, James Wilson 
     repeatedly assured the delegates that only ``great injuries'' 
     could serve as a basis for invoking impeachment. In his 
     lectures on the Constitution, Wilson went on to say that ``in 
     the United States and Pennsylvania, impeachments are confined 
     to political characters, to political crimes and 
     misdemeanors, and to political punishments.'' In the North 
     Carolina Convention, several defenders of the Constitution, 
     including James Iredell who was a delegate to the 
     Philadelphia Convention and later became a Justice of the 
     Supreme Court, argued that impeachment would ``arise from 
     acts of great injury to the community.'' The debates 
     surrounding ratification in New York produced the Federalist 
     Papers. Alexander Hamilton explained that,
       ``[t]he subjects of [the Senate's impeachment] jurisdiction 
     are those offenses which proceed from the misconduct of 
     public men, or, in other words, from the abuse or 
     violation of some public trust. They are of a nature which 
     with peculiar propriety may be denominated POLITICAL, as 
     they relate chiefly to injuries done to the society 
     itself.''
       Like Hamilton, the founding generation understood 
     impeachment to be a political remedy for political offenses. 
     It is important to bear in mind what they meant by 
     ``political.'' They meant that which relates to government 
     and the pursuit of the general welfare; that which involves 
     the system of government or ``society in its political 
     character.'' They specifically did not mean political in the 
     sense of partisan which the framers affirmatively feared. 
     Charles Pinckney, James Wilson, and Alexander Hamilton, for 
     example, each decried construing the impeachment powers in 
     ways that would allow these powers to be put to partisan 
     ends. They lodged the power to try impeachments in the Senate 
     precisely because they thought the Senate would have the 
     necessary independence, stature, and impartiality to prevent 
     the impeachment powers from becoming a tool of factionalism 
     and partisanship. The framers expected that the Senate was, 
     among government institutions, uniquely capable of fidelity 
     to the constitutional limits partisanship that the framers 
     understood to be implicit in the phrase high crimes and 
     misdemeanors.
       Leading constitutional scholarship of the founding era 
     reflects the same view of the intended narrow scope of high 
     crimes and misdemeanors. Justice Joseph Story, in his 
     pathbreaking Commentaries on the Constitution, looked to 
     British practice to understand the scope of impeachment in 
     the United States Constitution. Recognizing that the U.S. 
     Constitution intended to confine impeachment to a narrower 
     set of offenses than those permitted under British law, he 
     observed that even in Great Britain, ``such kinds of misdeeds 
     . . . as peculiarly injure the commonwealth by the abuse of 
     high offices of trust are the most proper and have been the 
     most usual ground for this kind of prosecution in 
     parliament.'' Story went on to say that impeachment is a 
     remedy for offenses ``of a political character,'' ``growing 
     out of personal misconduct, or gross neglect, or usurpation, 
     or habitual disregard of the public interests, in the 
     discharge of the duties of political office.''
       The public character of the impeachment offense is further 
     reinforced by the limited nature of the remedy for the 
     offense. In the English tradition, impeachments were 
     punishable by fines, imprisonment and even death. In 
     contrast, the American Constitution completely separates the 
     issue of criminal sanctions from the issue of removal from 
     office. The Constitution states that ``judgment in cases of 
     impeachment shall not extend further than to removal from 
     office, and disqualification to hold and enjoy any office of 
     honor, trust or profit under the United States.'' The remedy 
     for violations of the public's trust in the performance of 
     one's official duties, in other words, is limited to removal 
     from that office and disqualification from holding future 
     offices.

[[Page S1488]]

       Therefore, the Constitution contemplates both an 
     impeachment and a criminal action as consequences for 
     Presidents who commit impeachable offenses. This differs from 
     the English model which only provides for criminal 
     punishments after an impeachment conviction. If, however, a 
     President engages in egregious but non-impeachable activity, 
     the Constitution subjects the President to criminal 
     liability. Impeachment therefore, is viewed not as a 
     mechanism to punish a President, but rather a device to 
     protect the populace. As Story said, impeachment proceedings 
     are ``not so much designed to punish an offender as to secure 
     the state against gross official misdemeanors.''
       Impeachment, therefore, is intended to preserve the 
     constitutional form of government by removing from office an 
     official who subverts the Constitution and is not intended to 
     be a remedy for someone who breaks the law in connection with 
     a private matter.
       At least one important early treatise writer, William 
     Rawle, concluded that only official misconduct could provide 
     a basis for impeachment. He contended that ``the causes of 
     impeachment can only have reference to public character and 
     official duty. . . . In general those which may be committed 
     equally by a private person as a public officer are not the 
     subject of impeachment.'' Additional support for this 
     proposition comes from the renowned constitutional scholar, 
     Phillip Kurland who wrote that ``at both the convention that 
     framed the Constitution and at the conventions that ratified 
     it, the essence of an impeachable offense was thought to be 
     breach of trust and not violation of the criminal law. And 
     this was in keeping with the primary function of impeachment, 
     removal from office.'' Finally, additional support for this 
     proposition comes from the United States Department of 
     Justice. As a legal memorandum produced by the Justice 
     Department's Office of Legal Counsel during impeachment 
     proceedings against President Nixon observed, ``[t]he 
     underlying purpose of impeachment is not to punish the 
     individual, but is to protect the public against gross abuse 
     of power.''


                d. constitutional practice and precedent

       Another important guide to the meaning of the Constitution 
     is the construction applied throughout our history by those 
     who have been charged with applying its provisions. The 
     significance of constitutional practice is heightened in the 
     absence of applicable judicial interpretation. As Justice 
     Frankfurter stated:
       ``The Constitution is a framework for government. Therefore 
     the way the framework has consistently operated fairly 
     establishes that it has operated according to its true 
     nature. Deeply embedded traditional ways of conducting 
     government cannot supplant the Constitution or legislation, 
     but they give meaning to the words of a text or supply them. 
     It is an inadmissibly narrow conception of American 
     constitutional law to confine it to the words of the 
     Constitution and to disregard the gloss which life has 
     written upon them.''
       In the history of the United States, the Senate has never 
     convicted any President of an impeachable offense. This fact 
     stands out as the sum total of the Senate's practical 
     construction of the Constitution's impeachment provisions as 
     they relate to the President of the United States. It must 
     serve as a chilling call to self-restraint in construing 
     those provisions.
       The Senate has convicted other civil officers of 
     impeachable offenses, including high crimes and misdemeanors. 
     There is reason to doubt whether these cases, mostly 
     involving federal judges, provide directly analogous 
     precedent for cases involving the President. First, the 
     Madison-Mason colloquy and the debates in the state ratifying 
     conventions demonstrate the framers' primary concern was with 
     the use of impeachment as a vehicle for encroachments on the 
     President's structurally necessary independence from the 
     legislature. Second, federal judges serve life terms and are 
     not elected. The automatic removal of the President upon 
     conviction of high crimes and misdemeanors has the widely 
     remarked upon consequence of artificially altering the 
     expected result of an election and thus is regarded as in 
     tension with democratic principles. Moreover, because the 
     President serves a limited term of four years, the need for 
     an artificial removal mechanism is less urgent than it is in 
     the case of judges who would otherwise serve an illimitable 
     term.
       These caveats aside, an examination of congressional 
     practice in the case of the fifteen officers who have been 
     impeached by the House strongly supports construing high 
     crimes and misdemeanors as aimed primarily at official 
     misconduct that results in grave harm to our constitutional 
     system of government. In every case, the misconduct cited as 
     impeachable involved the misuse of office or the power of 
     office. No case involved impeachment for conduct that did not 
     involve the exercise of the impeached person's office or 
     official power. The closest the Congress has come to 
     impeaching and convicting an officer for conduct not 
     involving abuse of office was the case of Judge Harry 
     Claiborne. Judge Claiborne was impeached, convicted, and 
     removed from office for committing tax evasion. 
     Superficially, this conduct did not itself involve his 
     judicial office in any direct way. The income he was 
     convicted of withholding, however, allegedly came from 
     improper payments to him, which were made because of his 
     judicial office. In their essence, then, the charges against 
     him were charges of serious abuse of office involving what 
     amounted to bribery, though the articles of impeachment did 
     not formally recount the source of the income at the heart of 
     the tax evasion case against Judge Claiborne. [Memorandum, 
     12/22/98]


                           evidence, rules of

       Are the Federal Rules of Evidence Applicable? Neither the 
     Senate nor its presiding officer, the Chief Justice, is 
     required to follow the Federal Rules of Evidence in ruling on 
     evidentiary objections during an impeachment trial. As a 
     matter of practice these decision makers have relied upon the 
     Federal Rules in considering evidentiary objections, but have 
     not always excluded evidence that the Federal Rules would 
     exclude or admitted evidence that the Federal Rules would 
     allow. The Senate's approach has been to receive all evidence 
     except where doing so would be unfair to one of the parties. 
     In determining what is fair, the Senate has placed great 
     weight on the Federal Rules.
       The refusal to adopt the Federal Rules of Evidence is 
     apparently based on the judgment that the Senate is highly 
     sophisticated as a jury examining political crimes and 
     weighing political remedies. Consequently, the Senate does 
     not need the sort of protections that juries commonly 
     require. The concern raised by not adopting the Federal Rules 
     is that, where the only limit on the discretion of individual 
     Senators is their sense of fairness, party-line voting may 
     emerge and the impeachment process could come to be viewed as 
     lacking the necessary impartiality.
       While the Senate has never accepted that it is bound by the 
     Federal Rules, it may vote to require their application in a 
     given case. In fact, the Senate did just that on at least one 
     occasion. During the Rule XI committee deliberations in the 
     impeachment trial of Judge Harry Claiborne, Senator Orrin 
     Hatch argued that the committee should accept the Federal 
     Rules as binding. Then-Senator Albert Gore argued against 
     accepting the Federal Rules.
       Is the Starr Report Admissible? Either or both parties may 
     seek to introduce the referral and supporting documentation 
     that independent counsel Kenneth Starr submitted to the House 
     Judiciary Committee. Much of this material would not be 
     admissible in a judicial proceeding. The referral itself is 
     not evidence, but a summation of evidence contained in the 
     attachments. The attachments include grand jury testimony 
     where witnesses were not subject to cross-examination and 
     other material could represent hearsay.
       There is some precedent for admitting the record and 
     proceedings from a judicial proceeding as substantive 
     evidence in an impeachment trial. In the impeachment trial of 
     Judge Harry Claiborne, one of the House Managers, then-
     Representative Michael DeWine, argued that the Rule XI 
     committee should accept the record of the criminal trial in 
     which Judge Claiborne was convicted of tax evasion charges. 
     Specifically, Manager DeWine argued that accepting the 
     evidence would establish an important precedent in favor of 
     economy and efficiency in impeachment proceedings. The 
     committee accepted DeWine's argument and received the trial 
     record as substantive evidence.
       In Judge Claiborne's case, the committee agreed to receive 
     evidence that had been subject to cross-examination by Judge 
     Claiborne's attorneys. If the President's counsel objects to 
     the Senate receiving the Starr report and supporting 
     materials, he could distinguish the Claiborne precedent on 
     the ground that the President's lawyers had no opportunity to 
     cross examine grand jury witnesses.
       Is Evidence of Prosecutorial Misconduct Admissible? The 
     President's counsel may seek to introduce evidence of 
     prosecutorial misconduct. The House Managers or Senators may 
     object on the grounds that such evidence is irrelevant. 
     Either the President committed high crimes or misdemeanors, 
     or he did not; evidence relating to what the independent 
     counsel may have done to investigate the President is beside 
     the point.
       The President, however, would have a powerful contrary 
     argument, particularly if the Starr report and supporting 
     documents are admitted as substantive evidence. The report 
     itself represents the conclusions drawn by the independent 
     counsel. The supporting documents represent evidence and 
     testimony collected by the independent counsel without 
     opportunity for supplementation, challenge or cross-
     examination by the President. Understanding the independent 
     counsel's bias or impartiality is crucial to assessing the 
     weight and credibility of this type of evidence. For example, 
     the independent counsel's office will have chosen to pursue 
     certain lines of questioning with witnesses before the grand 
     jury. If the independent counsel acted from bias, there is a 
     reasonable inference that the roads the prosecutor chose not 
     to follow would have revealed evidence favorable to the 
     President. If, on the other hand, the independent counsel is 
     impartial, one may reasonably infer that he sought to uncover 
     all relevant information whether favorable or unfavorable to 
     the President.
       In addition, if officials in the Office of the Independent 
     Counsel threatened witnesses, that fact is relevant to 
     assessing the credibility of the testimony and evidence given 
     by those witnesses.
       In one previous case, the Rule XI committee voted to allow 
     the defense to present evidence of prosecutorial misconduct, 
     although

[[Page S1489]]

     it did not allow the defense to pursue elements of its theory 
     that were purely speculative and highly dubious.--
     [Memorandum, 12/28/98]


                            Findings of Fact

       Various proposals to have the Senate vote on ``findings of 
     fact'' prior to a final vote on the articles of impeachment 
     are circulating. The most onerous of these would ask the 
     Senate to ``find'' that the President had violated federal 
     laws against perjury and obstruction of justice.
       Under one presumed scenario, the findings of fact would 
     pass, while the subsequent vote on the articles would fail. 
     Thus, while the President would remain in office, his legacy 
     would be besmirched by an impeachment trial's finding that he 
     was guilty of crimes.
       There are several constitutional arguments against this 
     procedure, each based on the fact that it is either 
     equivalent to, or tantamount to, separating a vote on guilt 
     or innocence from a vote on removal.
       Very early in the Senate's history, the Senate did in fact 
     separate these two votes, notably in the case of Judge John 
     Pickering. Pickering was charged with drunkenness, among 
     other things, but not with any crimes. The Senate voted 
     separately on whether he was guilty under the articles and 
     then on whether or not he should be removed from office. 
     (They voted to convict and to remove.)
       This procedure might signal that the Senate believed that 
     in an impeachment trial a person could be found guilty by the 
     Senate of offenses that did not rise to the level of 
     ``treason, bribery, or other high crimes and misdemeanors.'' 
     Under that interpretation, the second vote would be necessary 
     to establish whether or not the offenses justified removal 
     from office.
       However, this possible interpretation of the trial 
     procedure was repudiated in the 1936 impeachment trial of 
     Judge Halstead Ritter, when the chair ruled that removal 
     followed automatically from a finding of guilty, so that a 
     separate vote on removal was not in order. The ruling was 
     based on the text of Article II, Section 4, of the 
     Constitution which provides that ``The President [and other 
     civil officers] shall be removed from Office on Impeachment 
     for, and Conviction of, treason, bribery, or other high 
     Crimes and Misdemeanors.''
       The dominant view of constitutional scholars is that the 
     chair's ruling in the Ritter case was correct. Notice that 
     there are two significant components of the Ritter 
     interpretation: (1) the president, vice president or other 
     civil officers can only be impeached for ``treason, bribery, 
     or other high crimes and misdemeanors,'' and (2) removal then 
     follows by operation of Constitutional law upon conviction.
       Against this background, the proposed findings of fact 
     could produce substantial constitutional mischief. Suppose 
     they received a \2/3\'s vote. If the offenses outlined in the 
     findings of fact are high crimes and misdemeanors, the 
     President would have been removed from office by operation of 
     Constitutional law.
       Suppose, further, that the Senate then took the final vote 
     on the articles and on that vote the yeas were less than \2/
     3\'s. Looking strictly at this vote, the President has been 
     acquitted, and remains in office.
       Who, then, is the President of the United States after 
     these two votes have been cast--Bill Clinton or Al Gore? In 
     other words, who decides whether the first vote convicted the 
     President of high crimes and misdemeanors?
       Senators might well argue that the very fact that the 
     Senate took the second vote proves that the first vote was 
     not on offenses that justified removal. That would be an 
     ironic position for many Republican Senators to be in, 
     however, as many of them are on record defending the 
     proposition that perjury and obstruction of justice are 
     clearly impeachable offenses.
       One argument against the proposed findings of fact, then, 
     is that it could create enormous uncertainty about who 
     occupies the office of President. The impact of that 
     uncertainty on foreign and domestic policy would potentially 
     be quite great, infecting every official action the President 
     might undertake. (Perhaps Bill Clinton and Al Gore could do 
     everything in tandem--co-sign all official documents, co-
     attend all foreign negotiations, etc. --thereby eliminating 
     the legal ambiguities by creating a true co-presidency.)
       The uncertainty would, in all likelihood, result in 
     litigation. Suit could be brought by someone adversely 
     affected by a law ``signed'' by Bill Clinton that would 
     otherwise have been pocket vetoed due to the adjournment of 
     Congress, claiming that the bill never became law. Or it 
     could be brought by someone seeking the benefits of a law 
     that Bill Clinton had ``vetoed,'' claiming that the veto had 
     no effect because Bill Clinton was not President.
       Even if such litigation would eventually lead to a 
     resolution of the uncertainty, the country would suffer 
     during the interim.
       There is a real possibility, however, that the Supreme 
     Court would find the question of what constitutes a ``high 
     crime and misdemeanor'' to be nonjusticiable. In United 
     States v. Nixon, the Court held that nearly all questions 
     regarding the Senate's power to try impeachments are 
     nonjusticiable, and it might well so find in this instance, 
     as well.
       Even if the findings of fact did not garner \2/3\'s 
     support, a second argument against the findings of fact can 
     be based on the two-part Ritter interpretation of the 
     impeachment power (i.e., impeachment available only for high 
     crimes and misdemeanors; removal follows automatically from 
     conviction). The contemplated bifurcated vote provides a 
     mechanism for doing exactly what the Ritter interpretation 
     and the prevailing view among scholars say the constitution 
     does not permit: impeaching and convicting a person of lesser 
     offenses than high crimes and misdemeanors.
       The consequences of sanctioning impeachment for ``low'' 
     crimes and misdemeanors in this way are spelled out nicely in 
     a draft op-ed by Jed Rubenfeld. He argues that if the Senate 
     proceeds with the proposed findings of fact,

       ``[t]he Senate would then have taken another big step 
     toward transforming impeachment into a tool of partisan 
     politics.
       ``The Clinton Impeachment would then establish the 
     proposition that it is a legitimate senatorial function in an 
     impeachment proceeding to ``find'' that the President 
     committed crimes or serious misconduct (but not high crimes). 
     In that case, why shouldn't a majority of the House impeach 
     every President who has engaged in conduct worthy of censure? 
     It would no longer matter whether this conduct rose to the 
     level of high crimes and misdemeanors, for after all, one of 
     the Senate's legitimate and proper functions would be to find 
     that the President had committed ``low'' or ``medium'' crimes 
     or other serious misconduct not requiring removal from 
     office.
       ``If the Senate wants to censure the President, let it. But 
     impeachment is not about finding criminal guilt or innocence, 
     and it is not about censure. It is about removal from office. 
     The Senate must vote, up or down, on conviction and removal. 
     Anything less or in-between is more partisan mud.''

       The idea that the House could routinely start up the Senate 
     impeachment trial apparatus on the basis of offenses 
     insufficient to constitute high crimes and misdemeanors 
     because the bifurcated vote procedure supplied the Senate 
     with a way to cope with such charges would probably have been 
     anathema to the Framers, who thought that impeachment ought 
     to be rarely used and reserved for the most serious breaches 
     of public trust.
       Judge Bork agrees that the bifurcated approach poses 
     serious separation of powers problems. He wrote in the 
     February 1, edition of the Wall Street Journal:

       ``That course would also create an unconstitutional 
     political weapon in the permanent struggle between the 
     legislative and executive branches. Had the Isenbergh-Kmiec 
     proposition been accepted during Iran-Contra, is there any 
     doubt that the Democratic House and Senate would have 
     impeached Ronald Reagan and, unable to convict him by a two-
     thirds vote, adopted findings of fact by a majority vote that 
     effectively condemned him as the perpetrator of high crimes 
     and misdemeanors? This is precisely what the separation of 
     powers does not allow and what anyone who thinks ahead should 
     disavow.''

       (The Isenbergh-Kmiec proposition mentioned by Judge Bork 
     refers to a law review article by Professor Isenbergh of 
     Chicago Law School arguing that the Ritter interpretation is 
     wrong--that in fact people can be impeached under the 
     Constitution for offenses less than high crimes and 
     misdemeanors, in which case lesser sanctions than removal are 
     also available to the Senate.)
       These are powerful arguments. There are responses to them, 
     however, which I believe make the ultimate judgment as to 
     whether or not the bifurcated procedure passes constitutional 
     muster open to reasonable disagreement.
       As to the complaint that the procedure unconstitutionally 
     bifurcates a unitary vote, the complaint just misconceives 
     what the findings of fact motion is. It is not a vote on 
     guilt or innocence of impeachable offenses at all because it 
     doesn't by its terms convict the President of anything. It is 
     antecedent to any question of conviction for impeachable 
     offenses or of remedy. It leaves Senators free to vote any 
     way they wish on guilt or innocence and thus does not split 
     up the conviction/remedy questions. If necessary, this could 
     be made crystal clear through careful drafting, such as by 
     phrasing the motion as, ``Without prejudice to the final 
     question of guilt or innocence on any of the articles of 
     impeachment, the Senate finds . . .''
       This interpretation also responds to the complaint urged by 
     Rubenfeld and echoed by Bork. Because the findings of fact 
     are toothless as regards guilt or innocence, passing such a 
     motion is not equivalent to convicting the President of low 
     crimes and misdemeanors. The Rubenfeld-Bork objection would 
     lie if and only if the Senate purported to convict the 
     President of such offenses, and then sought to avoid removing 
     him by rejecting the articles. But it is not doing that when 
     it makes findings of fact. Because such findings lack any 
     conceivable juridical effect, they are no more offensive to 
     the Constitution than a censure resolution.
       One could even imagine a findings of fact motion serving a 
     purpose that would be beneficial to the impeachment process. 
     Findings of fact could help provide a clear historical record 
     as to what this United States Senate believed did not rise to 
     the level of impeachable offenses (or did rise to that level, 
     depending upon the outcome of the vote on conviction). 
     Historically, the Senate has left to each individual Senator 
     the responsibility to make an overall unitary determination 
     as to the facts that have been proven, the requisite burden 
     of proof as to those facts, and

[[Page S1490]]

     the ultimate consequences that flow from those facts, taking 
     into account both the costs of retaining the civil officer in 
     office as well as the costs of removing him or her. It could 
     be argued that our constitutional practices would be just as 
     well served if the basis for the final judgment was expressed 
     in more discrete and articulated collective judgments, first 
     as to the facts proven, and then as to their consequences.
       This last point runs counter to the Senate's current rules 
     and practices, of course. Rule XXIII of the rules of 
     impeachment provides that ``an article of impeachment shall 
     not be divisible for the purpose of voting thereon at any 
     time during the trial.'' This provision was adopted in 1986. 
     Some of its legislative history is pertinent:
       ``The portion of the amendment effectively enjoining the 
     division of an individual article into separate 
     specifications is proposed to permit the most judicious and 
     efficacious handling of the final question both as a general 
     matter and, in particular, with respect to the form of the 
     articles that proposed the impeachment of President Richard 
     Nixon. The latter did not follow the more familiar pattern of 
     embodying an impeachable offense in an individual article 
     but, in respect to the first and second of those articles, 
     set out broadly based charges alleging constitutional 
     improprieties followed by a recital of transactions 
     illustrative or supportive of such charges. The wording of 
     Articles I and II expressly provided that a conviction could 
     be had thereunder if supported by `one or more of the' 
     enumerated specifications. The general view of the Committee 
     at that time was expressed by Senators Byrd and Allen, both 
     of whom felt that division of the articles in question into 
     potentially 14 separately voted specifications might `be time 
     consuming and confusing, and a matter which could create 
     great chaos and division, bitterness, and ill will . . . .' 
     ''
       The rule and its history suggests that the Senate currently 
     operates under a norm of maximum individual Senatorial 
     autonomy in reaching an overall unitary judgment as to guilt 
     or innocence, without the interposition of potentially 
     divisive antecedent motions seeking to clarify exactly what 
     acts the Senate as a body has found the accused to have 
     committed.
       It is possible to object to the proposed findings of fact 
     as being inconsistent with Rule XXIII. The rejoinder to that 
     objection, of course, is a version of what has already been 
     stated: the findings need not be construed as ``dividing'' 
     any article of impeachment, but rather as a motion antecedent 
     to an eventual vote on the articles. Still, the findings do 
     seem inconsistent with the spirit of Rule XXIII and with its 
     evident intention to avoid divisive preliminary votes of this 
     kind.
       Putting aside constitutional or rule-based objections to 
     the proposed findings of fact, Rubenfeld-Bork make a very 
     powerful practical argument that this bifurcation will have 
     pernicious consequences. We are currently living through 
     proof of how all-consuming an impeachment and trial of a 
     President can be. The country loses time and attention that 
     could be devoted to constructive matters of public interest, 
     trust in the ability of elected officials to work together by 
     placing the nation's business first is eroded, and the 
     Presidency is placed under a cloud of uncertainty during the 
     pendency of the proceedings. Lowering the impeachment bar 
     through the use of this bifurcated procedure would be unwise 
     and, as suggested earlier, would most likely be viewed with 
     alarm by the Framers who drafted the impeachment power into 
     the Constitution.
       There is, finally, an argument that such findings would 
     amount to an unconstitutional Bill of Attainder. The risk 
     that such findings would be found to be an unconstitutional 
     ``trial by legislature'' is enhanced (a) by the fact that 
     under some of the proposals, the finding would be that the 
     President had violated the law; (b) by the fact that the 
     findings would occur in the context of a Senate trial.
       Such Senate action could well have an adverse effect on 
     President Clinton's bar membership. Bar rules disqualify 
     individuals who have been convicted of perjury or obstructed 
     justice. If those consequences followed from the Senate 
     action, they could be construed as punishment, thus bringing 
     the findings of fact within the constitutional prohibition on 
     bills of attainder.--[Memorandum, 2/2/99]


                     Impeachment Rules, Changes to

       The existing Senate Rules establish the basic contours of 
     how an impeachment trial will proceed. Many questions remain 
     open, however--just as in civil cases, the federal rules of 
     civil procedure provide the basic contours, but the actual 
     route traveled by any trial depends upon the particular facts 
     and law of each case, the motions that parties choose to 
     bring, and, in general, the manner in which the parties 
     choose to litigate the matter.
       This section highlights the major questions that deserve 
     examination before the trial begins. It also discusses the 
     available mechanisms for resolving outstanding procedural 
     issues.
       Should any of the existing rules be modified? The existing 
     Rules were last amended in 1986. Should the Senate wish to 
     revise any of them, motions to do so would be in order on the 
     first day and would be fully debatable. Once actual the trial 
     begins motions are not debatable, and a motion to suspend, 
     modify, or amend the rules would require unanimous consent. 
     Before the trial begins (the period between the exhibition of 
     the articles of impeachment and the presentation of opening 
     statements by the parties), Senate precedent supports 
     allowing debate on preliminary motions that relate to how the 
     Senate will organize itself to conduct the trial. It appears 
     that such motions are subject to the Standing Rules of the 
     Senate, and not the limitations on debate contained in the 
     impeachment Rules. Thus, they could be filibustered during 
     the pre-trial stage. As a motion to suspend, modify, or amend 
     the rules, any such motion would be subject to a heightened 
     cloture requirement. Standing Rule XXII requires a two-thirds 
     vote to invoke cloture and end debate on a motion to suspend, 
     modify, or amend the rules.
       The impeachment rules provide for the proceedings to be 
     ``double-tracked'' (with legislative business conducted in 
     the morning session and the impeachment trial conducted in 
     the afternoon). Even after the trial has commenced, then, a 
     motion to suspend, modify, or amend could be made in a 
     morning legislative session, but would be subject to 
     filibuster with a two-thirds cloture requirement.--
     [Memorandum, 12/28/98]


                         Obstruction of Justice

       The House relies on two different federal obstruction of 
     justice statutes. The first, 18 U.S.C. Sec. 1503, is the 
     general obstruction of justice statute. The second, 18 U.S.C. 
     Sec. 1512(b), addresses witness tampering.
       A. Elements of the General Obstruction of Justice Statute
       To establish a violation of the general obstruction of 
     justice statute (Sec.  1503), the government must prove each 
     of the following:
       (1) that there was a pending judicial proceeding;
       (2) that the defendant knew this proceeding was pending; 
     and
       (3) that the defendant corruptly influenced, obstructed, or 
     impeded the due administration of justice or endeavored to 
     corruptly influence, obstruct, or impede the due 
     administration of justice.
       The first two elements are straightforward. The third 
     element is more complex. In general:
       ``Corruptly'' means to engage in an act voluntarily and 
     deliberately for the purpose of improperly influencing, 
     obstructing, or interfering with the administration of 
     justice.
       ``Endeavor'' means that the defendant also knowingly and 
     deliberately acted or made an effort which had a reasonable 
     tendency to bring about the desired result of interfering 
     with the administration of justice.
       The defendant must engage in misconduct that has the 
     ``natural and probable effect'' of interfering with the due 
     administration of justice. He need only ``endeavor'' to 
     obstruct justice; he need not succeed.
       B. Elements of the Witness Tampering Statute
       To establish a violation of the witness tampering statute 
     (Sec.  1512(b)), the government must establish that the 
     defendant:
       (1) knowingly
       (2) corruptly persuaded another person or attempted to do 
     so, or engaged in misleading conduct toward another person
       (3) with the intent
       to influence, delay, or prevent a witness's testimony from 
     being presented at official federal proceedings,
       to cause or induce any person to withhold testimony or 
     physical evidence from an official federal proceeding; or
       to prevent a witness from reporting evidence of a crime to 
     federal authorities.
       Unlike the general obstruction of justice statute, the 
     witness tampering statute does not require that the 
     defendant's misconduct be committed during the pendency of 
     federal proceedings. Thus, the defendant need not be aware of 
     any pending or contemplated federal proceedings or 
     investigations at the time he engages in his obstructive 
     conduct. Nonetheless, it must be proved that the defendant 
     intended by his prohibited conduct to obstruct a federal 
     proceeding or the reporting of a federal crime.
       There is no judicial consensus as to the meaning of 
     ``corrupt persuasion,'' but several courts have defined the 
     term to mean that the defendant's attempts to persuade ``were 
     motivated by an improper purpose.''
       The term ``misleading conduct'' is defined in 18 U.S.C. 
     Sec.  1515 to include (A) knowingly making a false statement; 
     (B) intentionally omitting information from a statement and 
     thereby causing a portion of such statement to be misleading, 
     or intentionally concealing a material fact, and thereby 
     creating a false impression by such statement; (C) with 
     intent to mislead, knowingly submitting or inviting reliance 
     on a writing or recording that is false, forged, altered, or 
     otherwise lacking in authenticity.
       At least one court has held that a defendant violates the 
     witness tampering statute when he tells a potential witness a 
     false story as if the story were true, intending that the 
     witness believe the story and testify to it before the grand 
     jury.--[Memorandum, 1/15/99]


                                Perjury

       Under federal law, a witness commits grand jury perjury if 
     shown, when under oath before a federal grand jury, to have 
     made a: knowingly false declaration that is of a material 
     matter that the grand jury has the power to investigate. 
     Proof only of an intent to mislead is not sufficient for a 
     perjury conviction.
       ``Knowingly false declarations'' can be proved by evidence 
     that the individual did not believe a declaration to be true 
     at the time it was made.

[[Page S1491]]

       Only unambiguous questions can form the basis of perjury 
     convictions. If a question can reasonably be interpreted in 
     multiple ways, perjury can not be based only on the 
     questioner's intended meaning and there must be evidence of 
     what the person answering understood when responding.
       Grand jury perjury can not be based on an answer that was 
     literally true even if misleading and nonresponsive to the 
     question asked. The burden is on the questioner to identify 
     evasive answers and press for clarity at the time rather than 
     let it pass and charge perjury later.
       Grand jury perjury convictions can be based on the 
     testimony of a single uncorroborated witness. And, even if no 
     single statement can be shown to be knowingly false, perjury 
     can be shown if the individual knowingly made multiple 
     material declarations under oath that are ``inconsistent to 
     the degree that one of them is necessarily false.''
       A ``material matter'' for perjury convictions under federal 
     law must have had some bearing on the substantive elements of 
     the issues that the grand jury was convened to investigate 
     and would have some bearing on influencing or impeding that 
     investigation, regardless of whether the statement actually 
     was misleading on a particular point.
       The Minority Views in the House Report argue that because 
     the judge in the Jones sexual harassment case ruled in 
     January 1998 that evidence relating to Monica Lewinsky was 
     not ``essential to the core issues in that case,'' Jones' 
     lawyers could not have introduced evidence about her 
     relationship with the President in order to attack his 
     credibility in that suit, so that his statements on the 
     subject are not material under perjury law.--[Memorandum, 12/
     30/98]


                        President, Indictment of

       The New York Times recently reported that Ken Starr and his 
     staff have recently concluded that the Constitution does not 
     prohibit them from indicting and prosecuting President 
     Clinton while he is still in office. The independent counsel 
     has a legitimate reason for seeking an indictment before the 
     end of President Clinton's term. The grand jury that is 
     currently impaneled and that has heard all the evidence 
     will expire by August. If the Independent Counsel waits 
     until the President leaves office, he will have to impanel 
     a new grand jury and present evidence all over again.
       This memorandum reviews the constitutional issues that 
     would be raised if a prosecutor were to attempt to indict and 
     prosecute a sitting President. It concludes that the 
     Constitution permits a prosecutor to indict a sitting 
     President, but does not allow the prosecutor to proceed to 
     prosecute the indictment until the President's term has 
     expired. Although the Constitution does not forbid indictment 
     of a sitting President, there are significant prudential 
     arguments counseling against such a move. Moreover, there may 
     be a statutory impediment to indicting the President.


                                I. Text

       Until recently, numerous commentators interpreted the 
     Constitution's text to prohibit criminal prosecution of any 
     officer before the officer was impeached and removed. The 
     only provision on point states, ``Judgment in cases of 
     impeachment shall not extend further than to removal from 
     office and disqualification to hold and enjoy any office of 
     honor, trust, or profit under the United States; but the 
     party convicted shall nevertheless be liable and subject to 
     indictment, trial, judgment and punishment, according to 
     law.'' Article I, section 3. This interpretation reads the 
     phrase ``the party convicted shall nevertheless . . .'' to 
     mean that only parties who have been convicted are subject to 
     judicial process. In other words, impeachment and conviction 
     is a prerequisite to judicial process.
       The better reading has always been that the Constitution's 
     text is ambiguous. It can just as easily be understood to 
     mean that impeachment and conviction, if that should occur 
     first, are not a bar to judicial process. This interpretation 
     has been vindicated by recent practice. The three judges 
     impeached and convicted in the late 1980s were all indicted 
     and prosecuted criminally first. In addition, Vice President 
     Spiro Agnew was indicted while in office, as was sitting Vice 
     President Aaron Burr in 1804. The provision cited does not 
     distinguish between the President and other officers subject 
     to impeachment. Thus, if the President is to be treated 
     differently than other impeachable officers, it must be on 
     some basis other than the Constitution's text.


                             II. Structure

       Even the most originalist minded cosntitutional scholars do 
     not limit their arguments to those based on language alone. 
     They also argue based on the structure of the document taken 
     as a whole. Shifting the focus from text to structure, there 
     is strong reason to conclude that the Constitution does not 
     forbid indictment of a sitting President but that it does 
     prohibit taking the further step of prosecuting him 
     criminally.
       The Constitution structures the federal government by 
     dividing it into three branches. In order to safeguard 
     liberty, each of these branches must be fully functioning at 
     all times. Anything that significantly impairs the 
     President's ability to act as a check on the other branches 
     may violate the Constitution's structural safeguards. By 
     contrast, there are hundreds of district court judges. A 
     criminal proceeding against one of them has only remote 
     ramifications for the constitutional role of the judiciary as 
     an collective institution.
       The constitutional status of the President is unique, and 
     materially distinguishable from that of other impeachable 
     officers, such as district court judges or even the Vice 
     President. First, the President, of course, is the head of 
     one of the three constitutional branches of government. The 
     other branches have collective heads. The legislative branch 
     is headed by the entire Congress, while the judiciary is 
     headed by the Supreme Court. To indict and prosecute the 
     President is in this sense the constitutional equivalent of 
     indicting and prosecuting the entire Congress or the entire 
     Supreme Court.
       Second, the presidency is a uniquely consuming office. Its 
     occupant is perpetually on duty. Nearly every President from 
     George Washington through George Bush has expressed just how 
     consuming the office is. For example, Lyndon Johnson related 
     that ``Of the 1,885 nights I was President there were not 
     many when I got to sleep before 1 or 2 a.m. and there were 
     few mornings when I didn't wake up by 6 or 6:30.'' The 
     Twenty-Fifth Amendment to the Constitution, which provides 
     for presidential succession in the case of disability, 
     recognizes not only how consuming the office is, but how 
     critical it is that the office be filled at all times.
       Third, the President acts as the embodiment of the nation 
     on the international stage and even in domestic matters. As 
     Justice Robert Jackson reminded us, the presidential office 
     locates the executive power ``in a single head in whose 
     choice the whole nation has a part, making him the focus of 
     public hopes and expectations. In drama, magnitude and 
     finality his decisions so far overshadow any others that 
     almost alone he fills the public eye and ear.''
       Against this structural argument stand rule of law 
     considerations. The continuing vitality of the rule of law as 
     a fundamental principle requires that the President be 
     subject to law as are all citizens. This commitment is voiced 
     in the President's constitutional duty to ``take care that 
     the laws be faithfully executed.'' The primary purpose of 
     this provision is to make it clear that the President, unlike 
     the King of England, has no ``dispensing power,'' that is, no 
     power to declare a law inapplicable to himself or anyone 
     else. Similarly, the courts have placed great weight on the 
     integrity of the criminal justice system. In a variety of 
     executive privilege cases, the courts have placed a great 
     premium on according prosecutors access to evidence and on 
     preserving evidence.
       Determining whether the Constitution permits either 
     indictment or prosecution of a sitting President requires 
     balancing these considerations.


      Punishments upon Conviction of High Crimes and Misdemeanors

       If the Senate convicts the President of high crimes and 
     misdemeanors, the Constitution requires that he be removed 
     from office. ``The President--shall be removed from office 
     upon impeachment for and conviction of--high crimes and 
     misdemeanors.'' The Constitution allows the Senate to impose 
     an additional punishment upon convicting the President; it 
     may disqualify the President from holding any office of 
     honor, trust or profit. Odd as it sounds, this 
     disqualification probably does not apply to membership in the 
     House of Representatives of the Senate. This is because the 
     text of the Constitution, in several clauses, makes it clear 
     that members of Congress are not ``officers.'' The very first 
     impeachment trial proceeded against Senator Blount. Senator 
     Blount was acquitted and many Senators refused to convict on 
     the basis of their constitutional interpretation that a 
     senator is not an officer and so is not subject to 
     impeachment.--[Memorandum, 12/28/98]

                           *   *   *   *   *

       Very early in the Senate's history, the Senate did in fact 
     separate these two votes, notably in the case of Judge John 
     Pickering. Pickering was charged with drunkenness, among 
     other things, but not with any crimes. The Senate voted 
     separately on whether he was guilty under the articles and 
     then on whether or not he should be removed from office. 
     (They voted to convict and to remove.)
       This procedure might signal that the Senate believed that 
     in an impeachment trial a person could be found guilty by the 
     Senate of offenses that did not rise to the level of 
     ``treason, bribery, or other high crimes and misdemeanors.'' 
     Under that interpretation, the second vote would be necessary 
     to establish whether or not the offenses justified removal 
     from office. However, this possible interpretation of the 
     trial procedure was repudiated in the 1936 impeachment trial 
     of Judge Halstead Ritter, when the chair ruled that removal 
     followed automatically from a finding of guilty, so that a 
     separate vote on removal was not in order. The ruling was 
     based on the text of Article II, Section 4, of the 
     Constitution which provides that ``The President [and other 
     civil officers] shall be removed from Office on Impeachment 
     for, and Conviction of, treason, bribery, or other high 
     Crimes and Misdemeanors.''
       The dominant view of constitutional scholars is that the 
     chair's ruling in the Ritter case was correct. Notice that 
     there are two significant components of the Ritter 
     interpretation: (1) the president, vice president or other 
     civil officers can only be impeached for ``treason, bribery, 
     or other high crimes and misdemeanors,'' and (2) removal then 
     follows by operation of Constitutional law upon conviction.--
     [Memorandum, 2/2/99]

[[Page S1492]]

                         Role of Chief Justice

       The Chief Justice of the United States is the Presiding 
     Officer over the Senate's deliberations when the President 
     has been impeached. His role is loosely analogous to that of 
     a trial judge, but with less ultimate authority. He directs 
     preparations for the trial, as well as the trial proceedings 
     themselves. Under the precedent of the Johnson trial, the 
     Chief Justice can make rulings on all evidentiary and 
     procedural motions and objections, although he can also refer 
     them directly to the Senate for its determination (this was 
     in fact Chief Justice Chase's practice on evidentiary motions 
     made during the Johnson trial). His rulings can be overruled 
     by majority vote of the Senators present and voting.
       The Constitution dictates that the Chief Justice acts as 
     the presiding officer during an impeachment trial of the 
     President. The extent and content of his role is subject to 
     determination by the Senate. There could be sentiment to 
     expand his powers, such as by making him the chair of a Rule 
     XI committee, on the theory that the Chief Justice will be 
     non-partisan and impartial. Other powers that might be 
     granted to the Chief could include authority to conduct pre-
     trial proceedings or to oversee settlement negotiations. If 
     the Chief Justice is perceived as impartial, his rulings on 
     evidence and other motions will carry great weight and place 
     a heavy burden on anyone seeking to overrule them. On the 
     other hand, a determined majority can substantially minimize 
     the effect of the Chief Justice on the proceedings by 
     reversing his rulings and refusing to grant him powers beyond 
     the inherent powers of the presiding officer.--[Memorandum, 
     12/28/98]


                         Role of House Managers

       The House of Representatives appoints a delegation of its 
     own members to serve as prosecutors of the impeachment. These 
     managers exhibit the articles of impeachment and perform all 
     functions normally performed by a prosecutor. They make an 
     opening and closing statement on the case, decide what 
     evidence to present and what witnesses to call, subject to 
     the Senate's decision to issue a subpoena to compel 
     attendance of involuntary witnesses. The managers lead 
     examination of witnesses they offer and cross-examine 
     witnesses called by the President's counsel. They may also 
     make procedural, evidentiary, and other motions.--
     [Memorandum, 12/28/98]


                      Role of President's Counsel

       The President may choose an attorney or agent to present 
     his defense. These attorneys perform the same functions in 
     defense of the President as the house Managers perform in 
     behalf of the impeachment. Neither the President's Counsel 
     nor the House Managers may appeal a ruling of the Chief 
     Justice. Only a member of the Senate may do that.--
     [Memorandum, 12/28/98]


                           Role of the Senate

       [The constitutional text, the Framer's understanding, and 
     our constitutional practices] Provide important anchors for 
     any impeachment inquiry, but they do not resolve all 
     questions of scope that may arise. Much remains to be worked 
     out--and only to be worked out--in the context of particular 
     circumstances and allegations.
       As Hamilton explained in the Federalist No.65, impeachment 
     ``can never be tied down by . . . strict rules, either in the 
     delineation of the offence by the prosecutors, or in the 
     construction of it by the judges. . .''
       After all of the legal research, we are still left with the 
     realization that the power to convict for impeachment 
     constitutes an ``awful discretion.''
       This brings us directly to the Senate's role. To state it 
     bluntly: I believe the role of the Senate is to resolve all 
     the remaining questions. Let me elaborate.
       The Senate's role as final interpreter of impeachments was 
     recognized from the beginning of the republic. For example, 
     to refer again to Joseph Story, after he devoted almost fifty 
     sections of his commentaries to various disputed questions 
     about the impeachment power, he concluded that the final 
     decision on the unresolved issues ``may be reasonably left to 
     the high tribunal, constituting the court of impeachment.''
       The court of impeachment he refers to is the United States 
     Senate. Similarly, the Federalist papers refer to Senators as 
     the judges of impeachment.
       Speaking of the Senate as the jury in impeachment trials is 
     perhaps a more common analogy these days, but the judge 
     analogy is more accurate.
       In impeachment trials, the Senate certainly does sit as a 
     finder of fact, as would a jury. But it also sits as a 
     definer of the applicable standards, as would a judge.
       The Senate, in other words, determines not only whether the 
     accused has performed the acts that form the basis for the 
     House's Articles of Impeachment, but also whether those 
     actions justify removal from office.
       Once again we find support for this view from the country's 
     history. In 2 of the first 3 impeachments brought forward 
     from the House to the Senate, the Senate acquitted the 
     accused.
       In each of the two acquittals, however, the Senate did not 
     disagree with the House on the facts. One case involved a 
     senator, William Blount, the other an Associate Justice of 
     the Supreme Court, Samuel Chase. In neither one was there any 
     question that the individuals had done the deeds that formed 
     the basis of the House's Articles of Impeachment.
       In each case, however, the Senate concluded that the deeds 
     were not sufficient to constitute valid grounds for 
     impeachment and so they acquitted.
       Eventually, then, if the current impeachment proceeds, it 
     will fall to the Senate to decide not only the facts, but the 
     law, and to evaluate whether or not the specific actions of 
     the president are sufficiently serious to warrant 
     impeachment.
       The framers intended that the senate have as its objective 
     doing that what was best for the country, taking context and 
     circumstance fully into account.
       I should try to be as clear as I can be about this point, 
     because the media discussion has come close to missing it. It 
     seems to be widely assumed that if the President committed 
     perjury, then he must be impeached and convicted.
       Conversely, you may think that unless it can be proven that 
     the President committed perjury or violated other laws, 
     impeachment cannot occur.
       Both statements are wrong. Not all crimes are impeachable, 
     and not every impeachable offense is a crime.
       The Senate could decline to convict even if the President 
     has committed perjury, if it concluded that under the 
     circumstances, this perjury did not constitute a sufficiently 
     serious breach of duty to warrant removal of this President. 
     On the other hand, the Senate could convict the President of 
     an impeachable offense even if it were not a violation of the 
     criminal law. For instance, if the Senate concluded that the 
     President had committed abuses of power sufficiently grave, 
     it need not find any action to amount to a violation of some 
     criminal statute.--[Speech, 10/2/98]

                           *   *   *   *   *

       The Senators have a multifaceted role that defies a simple 
     label. They act in part as a jury, which considers evidence 
     and makes the ultimate determination of whether to convict or 
     acquit the President. This role explains the limitations that 
     the rules impose on the ability of Senators to debate or 
     discuss motions and evidence in open session.
       Senators also act as judges, with authority to decide 
     whether a ruling by the Chief Justice should stand. This law 
     interpreting role is also a component of the ultimate 
     decision on conviction or acquittal. Senators must determine 
     not only whether the factual allegations against the 
     President are true, they must also determine whether the 
     facts alleged, if true, represent a high crime and 
     misdemeanor.
       Senators may also take actions that resemble those 
     typically undertaken by counsel for the parties. They may 
     propound questions (though only in writing) of witnesses or 
     of counsel; they may make objections to questions by counsel 
     or to evidence sought to be introduced; and they make any 
     motion that a party may make.
       The Senate has the power to compel the attendance of 
     witnesses by instructing the Chief Justice to issue subpoenas 
     and to enforce obedience to its orders. The Senate also has 
     authority to punish summarily contempts of and disobedience 
     to its orders, although the rules of impeachment do not 
     specify the penalties it may impose. Under the Standing Rules 
     of the Senate, the Senate can also refer a contempt citation 
     to the United States Attorney for the District of Columbia 
     for prosecution pursuant to 2 U.S.C. Sec. Sec.  191-194 for 
     criminal prosecution.--[Memorandum, 12/28/98]


                            Trial, Nature of

       The Constitution assigns the Senate the sole power to try 
     all impeachments. This power imposes upon the Senate a duty 
     to adjudicate every case in which the House of 
     Representatives impeaches a civil officer of the United 
     States. The framers were deeply concerned that impeachment 
     could become a partisan tool used to gain control and 
     influence over civil officers, and the President in 
     particular. They entrusted to the Senate the role of 
     adjudicating impeachments because the Senate's structurally 
     conferred capacity for deliberation, independence, and 
     impartiality would allow it to act as a check against 
     partisanship. The Constitution fortifies the Senate in this 
     role by providing that conviction requires a vote of two-
     thirds of the members present.
       The Constitution, however, does not define the Senate's 
     power to ``try'' impeachments and appears to leave broad 
     discretion for the Senate to interpret it as allowing 
     whatever method of inquiry and examination is best suited to 
     a given case. Justice White declared emphatically that ``the 
     Senate has very wide discretion in specifying impeachment 
     trial procedures . . . .'' The constitutional power, and 
     corresponding duty, to try impeachments does not absolutely 
     require the full Senate or a committee to take live witness 
     testimony subject to cross examination. The Senate has 
     routinely entertained and voted on motions for summary 
     adjudication. Indeed, it is difficult to imagine that the 
     Senate would be constitutionally required to hold live 
     evidentiary proceedings in every conceivable impeachment 
     case. If, for example, the House were to impeach an official 
     who is not a civil officer, it would be absurd to construe 
     the Constitution to require the Senate to go forward with an 
     evidentiary proceeding. Similarly, if the House were to 
     impeach a civil officer on the grounds of misconduct that is 
     not properly considered a high crime or misdemeanor, no 
     constitutional purpose is served by an evidentiary hearing.
       Even if an impeachment meets all of the constitutional 
     criteria to invoke a Senate

[[Page S1493]]

     trial, evidentiary proceedings may be unnecessary. It is 
     well-established that the House managers charged with 
     prosecuting the impeachment may introduce the record of other 
     proceedings as substantive evidence in the Senate trial. The 
     House managers have independent discretion over their 
     prosecution of the case, and may decide to rest their case on 
     the documentary record. In addition, the impeached defendant 
     may choose to present no affirmative evidence in his defense. 
     Where the parties have decided that the documentary record is 
     sufficiently encompassing to allow adjudication, the 
     Constitution does not require the Senate to ferret out 
     additional evidence.
       Strong support for summary adjudication as a faithful 
     discharge of the Senate's constitutional duty to try 
     impeachments can also be found in the operation of the 
     federal judiciary. The constitution guarantees ``the right of 
     trial by jury'' in ``suits at common law.'' There is a 
     tension between the right to trial by jury and summary 
     adjudication by the court. Where a federal court grants 
     summary judgment or dismisses a lawsuit, for example because 
     it fails to state a claim, there is no trial at all, let 
     alone a trial by jury. Nevertheless, the Supreme Court has 
     upheld the authority of the federal courts to grant motions 
     to dismiss and motions for summary judgment. There would seem 
     to be even less concern regarding summary adjudication in the 
     context of a Senate impeachment trial. This is because the 
     Senate acts as both judge (finder of law) and juror (finder 
     of fact) so there is no concern about the proper allocation 
     of the adjudicative function between judge and jury.
       The Constitution imposes upon the Senate a duty to try 
     impeachments so that the Senate can act as a check against 
     partisan abuse of the impeachment process. Fidelity to the 
     Constitution requires the Senate carefully to interpret the 
     law of impeachment as set forth in the Constitution and to 
     apply that law to the facts and circumstances of every 
     impeachment approved by the House of Representatives. As with 
     the federal judiciary, this adjudicative duty, however, does 
     not require the Senate to discover new evidence or to hold 
     evidentiary proceedings where the record does not warrant.--
     [Memorandum, 12/22/98]

                           *   *   *   *   *



           I. The History of Presidential Impeachment Trials

       We have had exactly one impeachment trial of a President, 
     Andrew Johnson, in 1868. This resulted in his acquittal by a 
     single vote. In 1974, the House Judiciary Committee voted to 
     send articles of impeachment with respect to President 
     Richard Nixon to the House floor, but President Nixon 
     resigned shortly thereafter, and the articles were never 
     voted on by the full House.
       However, fourteen other impeachment trials have been held 
     in the Senate over the country's history. In preparation for 
     these trials, almost all of which involved federal judges, 
     the Senate has developed a set of standing Rules of Procedure 
     and Practice for such trials, as well as a body of precedent 
     concerning questions of procedure that have arisen and been 
     answered in previous trials. These rules and precedent 
     provide a good basic outline to how the trial of President 
     Clinton will proceed in the Senate, unless they are altered 
     or amended prior to the beginning of President Clinton's 
     trial.


           II. Current Senate Rules of Procedure and Practice

       Senate procedures while hearing an impeachment are 
     strikingly different from those that operate during normal 
     legislative and executive business. Senators are combinations 
     of judges and jurors. Senators take an oath to do ``impartial 
     justice.'' They cannot debate or discuss matters in open 
     session. They are expected to commit questions to writing and 
     send them to the Presiding Officer. The Senate when sitting 
     to consider impeachment is a very different body than the 
     Senate we are used to seeing on C-SPAN.
       Major points to bear in mind:
       The trial and its rules take precedence over normal 
     business. Once the trial begins, the rules set forth a 
     schedule for continuing the trial until conclusion. The 
     fundamental provisions are Rule III, stating that the Senate 
     shall continue in session from day to day (Sundays excepted) 
     until the trial is concluded, and Rule XIII, stating that the 
     trial proceedings shall begin at 12 noon each day, unless 
     otherwise provided by the Senate.
       Majority rules. Motions and objections during the 
     proceedings are governed by majority vote.
       There are few opportunities to filibuster. Unlike the 
     normal Senate, almost all trial motions, decisions, and 
     orders are resolved under strict time limits--although these 
     time limits would not prevent a determined effort to prolong 
     the trial through repeated motions, whether by counsel or by 
     a group of Senators. In fact, during the trial itself, 
     motions, objections or challenges to rulings by the chair 
     raised by Senators (which must be submitted in writing to the 
     Presiding Officer) are voted on without debate at all, unless 
     the Senate elects to go into closed session. In that case, 
     each Senator is entitled to speak once for no more than 10 
     minutes.
       Where the impeachment Rules are silent, the Standing Rules 
     of the Senate apply.  Precedents extending back at least to 
     the Johnson impeachment support this.


      iii. how might the matter be resolved without a formal trial?

       A. The Senate's duty to try the impeachment. The 
     Constitution provides that ``the Senate shall have sole power 
     to try all impeachments.'' Some consider this provision to 
     impose a duty upon the Senate to try or adjudicate all 
     impeachments. Even if the Constitution imposes such a duty, 
     the Senate has not understood this duty to adjudicate as 
     necessarily requiring a formal trial. There is precedent for 
     the Senate considering dispositive motions that would allow 
     the Senate to render a judgment without holding a trial. (In 
     the impeachment proceedings against Judges Ritter, Claiborne, 
     and Nixon, the Senate entertained motions to strike articles 
     of impeachment or to summarily adjudicate the matter.) 
     Although such a motion is not specifically discussed in the 
     impeachment rules, the Senate has not viewed dispositive 
     motions as seeking to suspend, modify, or amend the rules. As 
     a result, dispositive motions are ordinary trial motions 
     subject to the limits on debate set forth in the impeachment 
     rules and governed by simple majority vote.
       An additional method available to resolve the matter is 
     adjournment sine die. In the case of Andrew Johnson, the 
     Senate voted on three articles of impeachment, acquitting on 
     each. Rather than vote on the remaining eight articles, the 
     Senate simply adjourned the impeachment proceedings sine die. 
     The impeachment rules allow for a vote to adjourn sine die. 
     Adjournment sine die does not specifically pass judgment on 
     the articles of impeachment and so may not be satisfactory to 
     those who consider the Senate duty-bound to try the 
     impeachment.
       B. Different motions to adjudicate the matter without an 
     evidentiary trial. Several different motions would seem 
     possible, some drawing on analogies to judicial proceedings.
       1. A motion to dismiss would assert that the articles of 
     impeachment fail as a matter of law to state actions upon 
     which a conviction may constitutionally be based. Such an 
     assertion could be based upon the claim that the articles do 
     not state ``high crimes and misdemeanors.'' Because the 
     articles accuse President Clinton of committing perjury 
     before a grand jury and of obstructing justice (among other 
     things), a ``motion to dismiss'' would assert that such 
     actions can never support conviction for high crimes or 
     misdemeanors. Additionally, a ``motion to dismiss'' could be 
     a vehicle for the President to raise the contention that the 
     articles of impeachment lapsed when the 105th Congress 
     adjourned sine die.
       While there are no Senate rules governing the timing of 
     motions, analogy to the Federal Rules of Civil Procedure 
     would require a motion to dismiss to be made before the 
     President submits his answer to the summons, or along with 
     his answer to the summons.
       2. In contrast to the motion to dismiss, a motion for 
     summary judgment asserts (1) that the parties agree on all 
     material facts and (2) that those facts compel judgment for 
     the moving party. A party submitting a motion for summary 
     judgment is agreeing to have the dispute finally adjudicated 
     on the basis of the facts asserted in his moving papers. The 
     opposing party has the option of filing a cross motion for 
     summary judgment or of objecting that the parties are not in 
     agreement as to all material facts and that a trial is 
     required on the disputed facts. If the opposing party chooses 
     the first course of action (and this could be done by prior 
     agreement between the parties), then the Senate could enter 
     judgment in the case without holding any evidentiary trial.
       On a motion for summary judgment, the Senate by majority 
     vote could issue a judgment for the President if it concluded 
     that the undisputed facts fail to establish the existence of 
     a high crime or misdemeanor warranting the President's 
     removal from office. Because this motion rests on a view of 
     the undisputed facts in the specific case, granting the 
     President's motion for summary judgment would mean only that 
     the specific perjury and obstructions charged in these 
     articles of impeachment do not warrant conviction and removal 
     from office (or that the facts failed to establish that these 
     offenses had actually been committed). It would not imply 
     that perjury or obstruction of justice could never serve as 
     grounds adequate to impeach, convict, and remove a President 
     from office.
       3. The trial might also be ended by a motion for a directed 
     verdict. Such a motion in civil litigation is brought after 
     the plaintiff has concluded his case, and before the 
     defendant mounts a defense. The motion asserts that the 
     plaintiff's evidence is insufficient to sustain the claim, 
     and that no reasonable fact finder would disagree. Were the 
     House Managers to decide to submit the impeachment to the 
     Senate based solely on evidence already gathered by Starr, 
     the President could bring a ``motion for a directed verdict'' 
     prior to an evidentiary trial involving any live witness 
     testimony.
       4. Finally, the Senate's own precedents supply the 
     possibility of a fourth option, a motion for summary 
     disposition. Such a motion might be entertained as an 
     alternative to any of the motions just discussed, in order to 
     avoid contending with the technicalities of such motions.
       In the impeachment trial of Judge Harry Claiborne, for 
     example, the House Managers introduced a motion for summary 
     disposition. Both sides argued this motion without invoking 
     the federal rules of civil procedure or judicial opinions 
     relating to summary dispositions. The parties disputed only 
     whether

[[Page S1494]]

     the facts warranted further evidentiary proceedings in the 
     Senate or if the matter could be decided solely on the basis 
     of Judge Claiborne's conviction for tax evasion. The Senate 
     considered the motion without reference to judicial 
     standards.
       This approach is consistent with the Senate's position that 
     it is not bound by the federal rules of civil procedure. 
     Removing the motion from the technical categories and 
     requirements under those rules allows each Senator the 
     discretion to consider whether additional evidentiary 
     proceedings, including live testimony, will serve the public 
     interest.
       C. Should the Senate appoint a committee? If the matter is 
     not resolved on a summary basis, Rule XI provides that the 
     Senate can appoint a committee to ``receive evidence and take 
     testimony'' rather than having the Senate as a whole do so. 
     This procedure has been employed in the case of trials of 
     federal judges, and has been sustained by the Supreme Court. 
     Such a committee would not and could not decide the case, but 
     it could assemble the evidence submitted, prepare a 
     transcript of all testimony and submit it to the Senate. The 
     committee meetings could be televised so that noncommittee 
     Senators would be able to watch them as they occurred, and 
     videotapes could also be prepared for subsequent review. A 
     number of the early proponents of what is now Senate Rule XI 
     option are on record stating their view that such a committee 
     should not be used for a presidential trial.
       Composition of a Rule XI committee would be very important. 
     Traditionally, these committees have been composed of twelve 
     members, six from each party with the committee chair chosen 
     from the committee members in the majority party. The Chair 
     exercises the same role within the committee that the Chief 
     Justice fulfills in the full Senate. This is significant 
     because the decisions of the chair may be reversed only by a 
     majority vote. If the votes in committee are on straight 
     party lines, the ruling of the chair will be upheld in every 
     instance. A complicating factor in a presidential impeachment 
     is the requirement that the Chief Justice preside. This may 
     require that the Chief Justice serve as the chair of a rule 
     XI committee if one is appointed. In this event, the rulings 
     of the Chief Justice would be upheld on any party-line 
     vote.--[Memorandum, 12/28/98]

                           *   *   *   *   *

       House Managers have asserted repeatedly that live witness 
     testimony will resolve discrepancies between the testimony of 
     witnesses, and therefore they ought to be called. There are 
     several points to be made against this point of view.
       Demeanor evidence is notoriously unreliable. Recall, for 
     example, Alger Hiss/Whittaker Chambers. Some people were 
     convinced by one side, some people by the other.
       Demeanor evidence is not necessarily dispositive, in any 
     event. Both witnesses can come across as reliable, honest and 
     trustworthy. Witnesses often give credible performances while 
     dissembling.
       The House Managers are poorly situated to claim the 
     necessity of hearing from live witnesses in order to resolve 
     credibility issues. The House Judiciary Committee heard from 
     no live witnesses, except Ken Starr, and yet the managers 
     have had no difficulty in deciding all credibility disputes 
     against the President or anyone giving testimony favorable to 
     his story.
       Any gains from live witnesses need to be assessed against 
     the costs. The costs will come when the Senate chamber 
     descends into the facts of the case with the specificity that 
     will come from live testimony.
       For example, one prominent disagreement that the House 
     Managers have cited is that between President Clinton and Ms. 
     Lewinsky regarding whether the President ever touched Ms. 
     Lewinsky's breasts or genitalia. If both witnesses are called 
     and reiterate their prior testimony, the Senate will 
     certainly get the opportunity to observe their demeanor. This 
     might shed some additional light on the question, but it 
     probably won't. The possibility of securing the additional 
     credibility data must be weighed against the serious negative 
     ramifications such proceedings would likely have.


                             a. indictment

       The Supreme Court engaged in a similar balancing exercise 
     in deciding Clinton v. Jones. In that case, the court held 
     that requiring the President to submit to judicial process in 
     a civil case and go through an entire civil trial would not 
     so damage the presidency as to justify interfering with the 
     ordinary judicial process that vindicates the rule of law. 
     Considering only indictment, as distinct from prosecution of 
     a criminal trial, seems to impose less of a burden on the 
     President. Indictment alone imposes no demands on the 
     President's time.
       An attempt to distinguish indictment could proceed on two 
     bases. First, the President is apt to be more concerned about 
     being criminally convicted than found civilly liable. Thus, 
     an indictment could be a greater distraction from the 
     President's duties than is a civil suit. Second, criminal 
     indictment, unlike filing a civil complaint, stigmatizes the 
     President.
       Each of these distinctions is subject to dispute. As the 
     Paula Jones suit itself demonstrates, a civil case can be ex 
     tremely distracting. If a criminal indictment is more 
     distract ing, it seems doubtful that it is so much more 
     distracting as to be constitutionally significant. A 
     distinction based on stigma seems particularly weak in this 
     case.
       President Clinton has been impeached. Correctly or not, the 
     House of Representatives has construed this impeachment as 
     analogous to a grand jury indictment. It is thus not obvious 
     that an actual criminal indictment would add materially to 
     the stigma the President has already suffered.
       Even accepting these grounds of distinction, the 
     independent counsel may seek a sealed indictment. A sealed 
     indictment would not be made known either publically or to 
     the President. If an indictment remains sealed until the 
     President leaves office, it is difficult to see how it could 
     either distract the President or stigmatize him.


                             b. prosecution

       Prosecution presents a different matter. Unlike an 
     indictment with nothing more, proceeding to an actual 
     prosecution would place significant physical and temporal 
     burdens on the President. Preparing for trial and then 
     actually presenting a defense would consume the President's 
     time and attention over a lengthy period. During the pendency 
     of criminal proceedings, the President would repeatedly face 
     a choice between spending the time necessary to mount a 
     meaningful defense and devoting time to fulfilling his 
     constitutional and statutory duties. Even if the President 
     were to choose to spend no time on his defense, it is 
     difficult to imagine that his mind could be fully focused on 
     his official duties.
       To so stigmatize and distract the President would seriously 
     undermine his ability to act as a check on the legislative 
     branch. It would also impose significant costs in terms of 
     the nation's standing internationally.
       The Supreme Court's decision in Clinton v. Jones could be 
     taken to support subjecting the President to criminal 
     prosecution while in office. In that case, the President had 
     argued that the civil lawsuit should be stayed until the 
     President's term in office expired. He based this position on 
     concerns that the demands of defending a civil lawsuit would 
     impermissibly inter fere with his ability to discharge his 
     official duties. Admittedly, it is unlikely that defending 
     against a criminal prosecution is any more time consuming 
     than defending a civil lawsuit.
       There are, however, several crucial distinctions between a 
     civil and a criminal lawsuit. In the Jones case, the Supreme 
     Court emphasized that the burden imposed on the President 
     could be minimized through proper case management by the 
     trial judge. A court does not have the same broad array of 
     options available in a criminal proceedings. Perhaps most 
     significantly, the options for settling the suit without a 
     trial are quite different. President Clinton settled the 
     Paula Jones case by making a cash payment with no admission 
     of wrongdoing. The rough equivalent of settlement in a 
     criminal proceeding is a plea bargain. Such a ``settlement,'' 
     however, requires the defendant to admit to some criminality. 
     As such, there is far greater pressure on the president to 
     proceed to trial in a criminal prosecution as opposed to a 
     civil prosecution. Moreover, the President's attendance at 
     a civil trial is not nearly so crucial as is his 
     attendance at a criminal prosecution. The Sixth Amendment 
     expresses the constitutional commitment to allowing a 
     criminal defendant's presence at trial. Finally, consider 
     what follows a judgment in a criminal trial as opposed to 
     a civil trial.
       The Paula Jones suit threatened the President with nothing 
     more than an assessment of monetary compensation. An adverse 
     verdict at a criminal trial threatens imprisonment. It is 
     clear that the Constitution does not allow the judiciary to 
     order the imprisonment of the President. Thus, at the very 
     least, sentencing would have to be stayed until the President 
     leaves office.
       Extending the holding in Clinton v. Jones to cover criminal 
     prosecutions is subject to an additional objection. The 
     course of events since the Court rendered that decision casts 
     significant doubt upon the conclusions the Court drew in that 
     case. In Clinton v. Jones, the Supreme Court doubted that the 
     civil lawsuit would consume much time or attention of the 
     President. It could not be plainer that this prediction was 
     wrong. While there is no reason to believe that the Court is 
     considering overruling Clinton v. Jones, there is very 
     powerful reason to apply the practical lessons we have 
     learned since that decision to any claim for extending the 
     Clinton v. Jones holding to criminal prosecutions. In light 
     of all that has occurred since that ruling, it is wildly 
     implausible to contend that a criminal proceeding against the 
     President would not significantly disrupt his ability to 
     fulfill his constitutional and statutory duties.
       Against this significant disruption is concern for the rule 
     of law. As a practical matter, it is critical to recall that 
     sentencing would be stayed until the President leaves office. 
     Given this, it is doubtful that staying the trial as well 
     would add significant concern from the standpoint of the rule 
     of law. It is important to bear in mind what the rule of law 
     requires. It demands that similarly situated citizens be 
     treated similarly. In light of the President's unique 
     constitutional role, it is error to contend that the 
     President must be treated identically to a private citizen. 
     The rule of law must encompass the fundamental law of the 
     Constitution, and account for the peculiar role of the 
     President within the constitutional structure. Accommodating 
     that role by staying criminal proceedings until the President 
     is out of office respects the rule of law as long

[[Page S1495]]

     as the President is subject to criminal prosecution once out 
     of office. Under these circumstances, the President is 
     subject liability in the same way as any citizen.
       The New York Times reports that these conclusions accord 
     with the view of most scholars. According to the Times, most 
     scholars accept that the President may be indicted while in 
     office, but that he may not be prosecuted. This assessment of 
     the state of scholarship is probably accurate, but there is 
     significant dissent as to each conclusion. In other words, 
     the scholarship does not betray a consensus.


                             III. Practice

       There is very little practical experience dealing with the 
     question of indicting or prosecuting a sitting President. The 
     only precedent is the investigation of President Richard 
     Nixon. The biographer to special counsel Archibald Cox 
     reports that Cox had concluded that the separation of powers 
     forbids indicting a sitting President. Cox's successor, Leon 
     Jaworski, decided against seeking to indict President Nixon, 
     although his decision was based on prudential considerations 
     and he did not reach a certain constitutional interpretation.
       In 1972, Vice President Spiro Agnew argued to the Supreme 
     Court that a sitting Vice President could not be indicted. 
     Then-Solicitor General Robert Bork submitted an amicus brief 
     on behalf of the United States in which he argued that a 
     sitting Vice President could be impeached, but a sitting 
     President could not be. Judge Bork repeated this position 
     yesterday in an op-ed published in the New York Times.


                              IV. History

       A number of framers made statements that appear to assume 
     that the President may not be indicted while in office. In 
     The Federalist Alexander Hamilton claimed that the President 
     would be ``liable to be impeached, tried, and removed from 
     office; and would afterwards be liable to prosecution and 
     punishment in the ordinary course of law.'' In two other 
     numbers of The Federalist Hamilton repeated this sequence and 
     that criminal process comes ``after'' impeachment and 
     conviction. In none of these passages, however, is Hamilton 
     addressing the specific question of whether the President 
     could be subject to criminal process while in office. It may 
     represent no more than Hamilton's assumption as to what the 
     ordinary sequence would in fact be.
       Another framer, Gouverneur Morris, explained that the 
     Constitution vests the power to try impeachments in the 
     Senate rather than the judiciary because the judiciary would 
     ``try the President after the trial of impeachment.'' In the 
     First Congress, Vice President John Adams and Senator (later 
     Justice) Oliver Ellsworth expressed the view that ``the 
     President personally is not . . . subject to any [judicial] 
     process whatever.'' But their view was disputed, for example 
     by Senator William Maclay.
       The Supreme Court reviewed this historical record in 
     Clinton v. Jones. They concluded that history provides no 
     answer to this question. These comments reflect the view of 
     only a few, albeit influential, individuals and either were 
     not made in the context of whether a sitting President could 
     be indicted or were disputed.


                      V. Prudential Considerations

       Even if the Constitution does not prohibit indictment, that 
     does not mean there are not powerful prudential arguments 
     against indictment. Brett Kavanaugh, who was Associate 
     Independent Counsel in Ken Starr's office for three years, 
     put this argument most succinctly in a recent article he 
     published in the Georgetown Law Journal:
       The President is not simply another individual. He is 
     unique. He is the embodiment of the federal government and 
     the head of a political party. If he is to be removed, the 
     entire government likely would suffer, [and] the military or 
     economic consequences to the nation could be severe. . . . 
     Those repercussions, if they are to occur, should not result 
     from the judgment of a single prosecutor--whether it be the 
     Attorney General or special counsel--and a single jury. 
     Prosecution or nonprosecution of a President is, in short, 
     inevitably and unavoidably a political act.
       Thus, as the Constitution suggests, the decision about the 
     President while he is in office should be made where all 
     great national political judgments in our country should be 
     made--in the Congress of the United States.
       There is an additional, closely related, consideration--
     protecting Congress's constitutional impeachment power. If an 
     independent counsel can indict a sitting President, this act 
     alone tends to force Congress's hand with respect to 
     impeachment. The mere fact of an indictment is an additional 
     factor that generates some pressure to impeach and convict a 
     sitting President. That pressure is even more coercive in the 
     context of a prosecution and verdict than of indictment 
     alone.


                    VI. Department of Justice Policy

       Professor David Strauss recently argued that there is no 
     need to address the constitutional issues because the 
     independent counsel is statutorily barred from indicting a 
     sitting President. The United States Code instructs that the 
     independent counsel ``shall except where not possible comply 
     with the written or other established policies of the 
     Department of Justice respecting enforcement of the criminal 
     laws.'' 28 U.S.C. 594(f). Professor Strauss argues Judge 
     Bork's Supreme Court brief in the Spiro Agnew case 
     established the Department's policy on indicting a sitting 
     President and that this policy is confirmed in the practice 
     of special counsels Cox and Jaworski.
       This is a strong argument, but there is a response: the 
     brief in the Agnew case represents not a policy but an 
     interpretation of the Constitution. That interpretation, the 
     response would continue, has been demonstrated to be in error 
     by the subsequent decision in Clinton v. Jones. An article 
     published by Ken Starr's advisor on constitutional law, 
     Professor Ronald Rotunda, argues that Clinton v. Jones makes 
     clear what had previously been obscure--namely that a sitting 
     President may be indicted and prosecuted.--[Memorandum, 2/4/
     99]
  Mr. ABRAHAM. In light of our time constraints, I would like to focus 
my remarks today primarily on the one issue--more than any other--that 
has arisen during our deliberations: namely, whether the President 
should be convicted if we find he committed the acts alleged in the 
Articles.
  I believe this issue is not only central to the case at hand, it is 
also central to all future evaluations and applications of what we do 
here.
  In arguing for the President, White House lawyers have asserted that 
the threshold for Presidential removal must be very high--and I agree. 
At the same time, however, we must remember that there is an inverse 
relationship between the level at which we set the removal bar and the 
degree of Presidential misconduct we will accept.
  So, then, where do we set the bar?
  As we know, the Constitution says: The President, Vice President, and 
all civil Officers of the United States, shall be removed from Office 
on Impeachment for, and Conviction of, Treason, Bribery, or other high 
Crimes and Misdemeanors.
  Now it has been suggested by some that a ``high Crime'' must be a 
truly heinous crime. But that interpretation is obviously wrong. 
Treason is certainly among the most heinous crimes. But bribery is not.
  Taking a bribe, like treason, is however, a uniquely serious act of 
misconduct by a public official. That suggests a different meaning for 
``high Crime,'' one that is linked somehow to the fact that the person 
committing it holds public office.
  Alexander Hamilton's comment about the impeachment power, quoted by 
so many of us here, provides the clue. In Federalist 65, Hamilton says: 
``The subjects of its jurisdiction are those offenses which proceed 
from the misconduct of public men, or, in other words, from the 
violation of some public trust.''
  The President's lawyers invoked this line, but in my view they 
misread it. They argued that what it means is that a President's 
conduct must involve misuse of official power if he is to be removed 
from office.
  But that is not what the Constitution demands, or what Hamilton's 
comment, fairly read, suggests. Otherwise, as has been noted, we would 
have to leave in office a President or a federal judge who committed 
murder, so long as they did not use any powers of their office in doing 
so.
  Rather, as Hamilton's language connotes, and our own precedents in 
the judicial impeachment cases confirm, the connection the Constitution 
requires between an official's actions and functions is a more 
practical one: the official's conduct must demonstrate that he or she 
cannot be trusted with the powers of the office in question.
  This rule certainly encompasses official acts demonstrating unfitness 
for the office in question--but it also reaches beyond such acts.
  In my view, we need not determine the outer limits of this principle 
to decide the question before us today: whether the President's 
actions, as alleged in these Articles, constitute a violation of a 
``public trust'' as Hamilton uses the term.
  The answer to that question is plain when we consider the President's 
conduct in relation to his responsibilities.
  The President's role and status in our system of government are 
unique. The Constitution vests the executive power in the President, 
and in the President alone. That means he is the officer chiefly 
charged with carrying out our laws. Therefore, far more than any 
federal judge, he holds the scales of justice in his own hands.
  In the wrong hands, that power can easily be transformed from the 
power to carry out the laws, into the power to bend them to one's own 
ends.
  The very nature of the Presidency guarantees that its occupant will 
face

[[Page S1496]]

daily temptations to twist the laws for personal gain, for party 
benefit or for the advantage of friends.
  To combat these temptations, the Constitution spells out--in no 
uncertain terms--that the President shall ``take care that the laws be 
faithfully executed,'' and the President's oath of office requires him 
to swear that he will do so.
  If he obstructed justice and tampered with witnesses in the Jones 
case, a federal civil rights case in which he was the defendant, the 
President violated his oath and failed to perform the bedrock duty of 
his office. He did not faithfully execute the laws.
  A President who commits these acts thereby makes clear that he cannot 
be trusted to exercise the executive power lawfully in the future, to 
handle impartially such specific Presidential responsibilities as 
serving as the final arbiter on bringing federal civil or criminal 
cases or determining the content of federal regulations--especially if, 
as will often be the case, he has a personal or a political interest in 
the outcome.
  Surely retaining a President in office under these circumstances 
constitutes exactly the type of threat to our government and its 
institutions so many have said must exist for conviction.
  That brings the President's alleged conduct squarely within the 
purview of our impeachment power, whose purpose, as described by 
Hamilton, is to deal with ``the violation of some public trust.''
  Furthermore, if the Articles' allegations are true, how can we leave 
the executive power in the hands of a President who, through his false 
grand jury testimony, even attempted to obstruct and subvert the 
impeachment process itself?
  For this particular grand jury before which the President testified 
was not only conducting a criminal investigation; it was also charged, 
under Congressional statute, with advising the House of Representatives 
as to whether it had received any substantial and credible information 
that might constitute grounds for impeachment.
  The framers placed the impeachment power in our Constitution as the 
ultimate safeguard to address misuse of the executive power.
  A President who commits perjury, intending to thwart an investigation 
that might otherwise lead to his impeachment, has, I believe, committed 
a quintessential ``high Crime.''
  Such conduct of necessity impedes, and could even preclude, Congress 
from fulfilling its constitutional duty to prevent the President from 
usurping power and engaging in unlawful conduct.
  To permit such behavior would set an unacceptable precedent, because 
it could, in the future, allow nullification of the impeachment process 
itself, rendering it meaningless.
  Hence, a President who acts to subvert what the Framers viewed as the 
ultimate Constitutional check on abuse of executive power, most 
certainly violates the public trust as defined by Hamilton.

  Throughout this discussion I have analyzed this case as though one or 
more of the underlying counts in each impeachment Article were 
established. I recognize that not everyone has reached this 
conclusion--and I confess that I have spent countless hours attempting 
to make this determination of guilt or innocence on each Article.
  However, after listening to and studying the evidence, I have 
concluded beyond any reasonable doubt that the President committed one 
or more of the acts alleged under each Article. Time does not permit me 
to fully explain the basis for my conclusions. But, in my view, that is 
where the evidence inescapably points.
  In my opinion, there is no way that the President could have 
testified as he did in his Jones deposition concerning his relationship 
with Monica Lewinsky, unless he believed Ms. Lewinsky would validate 
his false statements if called as a witness.
  The President may not have explicitly told her to lie, but when he 
called her on December 17, he did say ``You can always say you were 
coming to see Betty or that you were bringing me letters.''
  To whom did he intend her to say this? They'd already agreed on the 
use of these cover stories in non-legal contexts. The only new audience 
was, clearly, the Jones court, and the President's comments that night 
were surely aimed at influencing Ms. Lewinsky's potential testimony 
before that court, if she were to be subpoenaed.
  That this was the President's intent, is confirmed by his own 
testimony in the Jones case. What did he say when asked if Ms. Lewinsky 
had come to see him? He said that Ms. Lewinsky had come to visit Betty 
Currie and perhaps deliver him papers.
  In my opinion, there is also no way you can refresh your memory by 
making assertions you know to be false to another person--as the 
President twice did to Betty Currie after that deposition. No, the 
purpose of those statements was to cause her to validate the false 
testimony he had just given, if she were to be subpoenaed.
  And finally, if you believe that was the President's intention, then 
you must conclude he committed material perjury later, in his grand 
jury testimony, when in response to the question: ``You are saying that 
your only interest in speaking with Ms. Currie in the days after your 
deposition was to refresh your own recollection?'' he answered with one 
word: ``Yes.''
  And there is more.
  Fellow Senators, none of us asked for this task, but we must live 
with the consequences of our actions, not just on this administration, 
but on our nation for generations to come.
  That responsibility cannot be shirked. It has led me to a difficult 
but inexorable decision.
  I deeply regret that it is necessary for me to conclude that 
President William Jefferson Clinton committed obstruction of justice 
and grand jury perjury as charged in the Articles of Impeachment 
brought by the House, that these are ``High Crimes and Misdemeanors'' 
under our Constitution, and that therefore I must vote to convict him 
on these charges.


                                opinion

  The President has been impeached on the grounds that he obstructed 
justice and tampered with witnesses in connection with a federal civil 
rights suit in which he was the defendant, and that he committed 
perjury before a grand jury charged with investigating whether his 
previous conduct warranted prosecution or possible impeachment. It is 
our duty to determine whether the President did what the Articles of 
impeachment charge and, if so, whether his actions were ``high Crimes 
and Misdemeanors'' that under our Constitution should bar him from 
further service in his office.
  In considering these questions, I have done my best to imagine that I 
was deciding them, not about a President of the opposing political 
party, with whom I disagree on many issues, but about a President of my 
own party. I have tried to imagine what I would do if confronted with 
the same evidence concerning a popular Republican President whose 
policies I strongly supported. I have tried to decide the case before 
me just as I would the case of such a President.
  Let me start with the facts.
  After a great deal of listening, research and contemplation, I am 
compelled by the evidence to conclude that the President did engage in 
the conduct charged in both Articles. In reaching this conclusion, I 
rely exclusively on those elements of the case that I believe have been 
proven beyond a reasonable doubt. Because I believe these dictate my 
conclusion, I do not decide whether in an impeachment trial, the 
Constitution requires application of this highest of evidentiary 
standards, which governs in ordinary criminal cases, or whether it 
would also be proper for me to rely on any of the other conduct charged 
by the House, much of which I might well find proven under either of 
the lower civil law standards.
  Let me briefly outline the basis for my conclusions. I will start 
with the second Article, because the conduct giving rise to it actually 
occurred first.
  In my view the evidence shows beyond a reasonable doubt that, for 
over eleven months, from December 6, 1997 to November 13, 1998, when 
the President agreed to pay Paula Jones $850,000 to withdraw her sexual 
harassment lawsuit, the President engaged in a systematic course of 
obstructing justice and tampering with witnesses in Ms. Jones's case. 
There is no room for reasonable doubt that as part of this course of 
conduct the President made statements to Ms. Monica Lewinsky and Ms. 
Betty Currie that were intended to cause them to validate,

[[Page S1497]]

through testimony he thought they could well be called upon to give, 
the false story he was planning to tell or had already told in his own 
deposition. These statements to Ms. Lewinsky and Ms. Currie constitute 
the second and sixth Acts of obstruction and witness tampering charged 
by the House. There is also no room for reasonable doubt that the 
President supported efforts to conceal gifts he had given to Ms. 
Lewinsky after those gifts had been subpoenaed as evidence in that 
case. That constitutes the third act of obstruction charged by the 
House.
  As to the first Article: I am convinced that the House has shown 
beyond a reasonable doubt that the President perjured himself before 
the grand jury in two instances. First, he stated that his only purpose 
in talking to Ms. Currie in the days following his Jones deposition was 
to refresh his own recollection, thereby falsely claiming to the grand 
jury that he did not intend to tamper with her potential testimony if 
she were called as a witness in the Jones case. Second, he reaffirmed 
the veracity of his Jones deposition denial of ``sexual relations'' 
with Ms. Lewinsky, under the definition of that term approved by the 
court in that case. This was not merely a ``lie about sex'' to protect 
his family. By the time of his grand jury appearance, the President had 
already acknowledged to his family his improper relationship with Ms. 
Lewinsky. Before the grand jury, the President falsely asserted the 
truth of his earlier sworn statements for the sole purpose of 
protecting himself from possible prosecution or impeachment.

  In light of these conclusions, the final overriding issue is whether 
the President's actions constitute ``high Crimes and Misdemeanors'' 
requiring his removal from office under Article II, section 4 of the 
Constitution. As has been acknowledge on both sides, reasonable people 
can differ on this question. And indeed it is only on this issue, 
whether the President must be removed, that Americans are 
consequentially divided. A decided majority of Americans agree that the 
President committed the crimes alleged in at least one of the Articles. 
And in their hearts I believe a significant majority of my colleagues 
do as well.
  The public, like us, is in disagreement over what the consequences 
should be. A clear majority oppose removal, but for a variety of 
reasons--ranging from a feeling that the President does not deserve to 
be removed, to a concern not to endanger current economic conditions, 
to a preference for the President over the Vice President, to the 
belief that, because the President has less than two years remaining in 
this term, removing his is not worth the disruption it would cause.
  These considerations would legitimately play a role in our decision 
if we were functioning as a legislative body in a parliamentary system 
deciding whether to retain the current government. But that is not our 
role here. The Constitution requires the Senate to sit not in an 
ordinary legislative capacity on this matter, but as a court of 
impeachment. That is why, at the beginning of a trial on Articles of 
Impeachment, Article I, section 3 of the Constitution states that 
Senators must take a special oath to do impartial justice. Accordingly, 
it is my view that our decision cannot be based on other 
considerations, but instead must be based on what the Constitution 
dictates, and taken with a view toward the precedent we will establish 
regarding what is acceptable Presidential behavior.
  In arguing for the President, White House lawyers have asserted that 
the threshold for Presidential removal must be very high--and I agree. 
At the same time, however, we must remember that there is an inverse 
relationship between the level at which we set the removal bar and the 
degree of Presidential misconduct we will accept.
  So, then, where do we set the bar? What does the Constitution 
dictate? What precedent should we set for the ages?
  Let us start with the text of the Constitution, which states simply: 
``The President, Vice President and all civil Officers of the United 
States shall be removed from Office on Impeachment for, and Conviction 
of, Treason, Bribery, or other high Crimes and Misdemeanors.''
  The first interpretation that has been suggested is that a ``high 
Crime'' must be a truly heinous crime. But that is obviously wrong. 
Treason is certainly among the most heinous crimes. But bribery is not.
  Taking a bribe, like treason, is however uniquely serious misconduct 
by a public official. That suggests a different meaning for ``high 
Crime,'' one that is linked somehow to the fact that the person 
committing it holds public office.

  A comment by Alexander Hamilton in Federalist 65 provides the clue.
  In Federalist 65, speaking of impeachment, Hamilton says: ``The 
subjects of its jurisdiction are those offenses which proceed from the 
misconduct of public men, or, in other words, from the violation of 
some public trust.''
  The President's lawyers invoke this line, but they misread it. They 
argue that what it means is that to require removal, a President's 
conduct must involve misuse of official power.
  But that is not what the Constitution demands, or what Hamilton's 
comment fairly read suggests. Otherwise we would have to leave in 
office a President or a federal judge who committed murder, so long as 
they did not use any powers of their office in doing so. Rather, as 
Hamilton's language connotes, and our own precedents confirm, the 
connection the Constitution requires between the official's actions and 
functions is a more practical one: the official's conduct must 
demonstrate that he or she cannot be trusted with the powers of the 
office in question. This rule encompasses official acts demonstrating 
unfitness for the office in question, but it also reaches beyond such 
acts.
  We need not determine the outer limits of its principle to decide the 
question before us today: whether the President's actions here 
constitute a violation of a ``public trust'' as Hamilton uses the term. 
The answers to that question is plain when we consider his conduct in 
relation to his responsibilities.
  The President's role and status in our system of government are 
unique. The Constitution vests the executive power in the President, 
and in the President alone. That means he is the officer chiefly 
charged with carrying out our laws. Therefore, far more than any 
federal judge, he holds the scales of justice in his own hands.
  In the wrong hands, that power can easily be transformed from the 
power to carry out the laws into the power to bend them to one's own 
ends. The very nature of the Presidency guarantees that its occupant 
will face daily temptations to twist the laws for personal gain, for 
party benefit or for the advantage of friends in or out of power. To 
combat these temptations, the Constitution spells out in no uncertain 
terms that the President shall ``take care that the laws be faithfully 
executed,'' and his oath of office requires him to swear that he will 
do so.
  By obstructing justice and tampering with witnesses in the Jones 
case, a federal civil rights case in which he was the defendant, the 
President violated his oath and failed to perform the bedrock duty of 
his office. He did not faithfully execute the laws. He thereby made 
clear that he cannot be trusted to exercise the executive power 
lawfully in the future, to handle impartially such specific 
Presidential responsibilities as serving as the final arbiter on 
bringing federal civil or criminal cases or determining the content of 
federal regulations--especially if, as will often be the case, he has a 
personal or political interest in the outcome.
  Surely retaining a President in office under these circumstances 
constitutes the type of threat to our government and its institutions 
so many have said must exist for conviction. That brings his conduct 
squarely within the purview of our impeachment power, whose purpose, as 
described by Hamilton, is to deal with ``the violation of some public 
trust.''
  Obstruction of justice, witness tampering, and grand jury perjury are 
serious federal crimes. How do we explain to others who commit them, 
many out of motives surely as understandable as the President's, that 
while the President stays in the White House, his Department of Justice 
is trying to send them to prison? How can we expect ordinary 
citizens to accept that the President can remain in office after lying 
repeatedly under oath in court proceedings, but that it is still their 
duty to tell the truth?

[[Page S1498]]

  Finally, how can we leave the executive power in the hands of a 
President who, through his false grand jury testimony, has even 
attempted to obstruct and subvert the impeachment process itself? For 
the particular grand jury before which the President testified falsely 
was not only conducting a criminal investigation; it was also charged, 
under Congressional statute, with advising the House of Representatives 
whether it had received any substantial and credible information that 
might constitute grounds for impeachment.
  The framers placed the impeachment power in our Constitution as the 
ultimate safeguard to address misuse of the executive power. A 
President who commits perjury, intending to thwart an investigation 
that might otherwise lead to his impeachment, has committed a 
quintessential ``high Crime.'' This crime impeded, and could have even 
precluded, Congress from fulfilling its duty to prevent the President 
from usurping power and engaging in unlawful conduct. To permit such 
behavior could, in effect, allow nullification of the impeachment 
process itself, rendering it meaningless. Hence, a President who acts 
to subvert what the Framers viewed as the ultimate Constitutional check 
on abuse of executive power, most certainly violates the public trust 
as defined by Hamilton.
  To allow a President to continue in office after committing these 
acts would place the Presidency above the law and grant the President 
powers close to those of a monarch. This, in turn, presents a clear and 
present danger to the rule of law, the birthright of all Americans. 
Indeed, we Americans take the rule of law so thoroughly for granted 
that while it has been much invoked in these proceedings, there has 
been little discussion of what it means or why it matters. Simply put, 
the rule of law is the guarantee our system makes to all of us that our 
rights and those of our countrymen will be determined according to 
rules established in advance. It is the guarantee that there will be no 
special rules, treatment, and outcomes for some, but that the same 
rules will be applied, in the same way, to everyone.
  If America's most powerful citizen may bend the law in his own favor 
with impunity, we have come dangerously close to trading in the rule of 
law for the rule of men. That in turn jeopardizes the freedoms we hold 
dear, for our equality before the law is central to their protection.
  We are a great nation because, in America, no man--no man--is above 
the law. Americans broke from Great Britain because the mother country 
claimed it had a right to rule its colonies without restraint, as it 
saw fit. Our tradition of chartered rights--rights laid down in laws, 
which no king, Parliament or other official could breach--culminated in 
our Constitution. That Constitution, which is itself only a higher law, 
protects us from tyranny. Once the law becomes an object of convenience 
rather than awe, that Constitution becomes a dead letter, and with it 
our freedoms and our way of life.
  Mr. Chief Justice, my grandparents did not come to this country 
seeking merely a more convenient, profitable life. They came here 
seeking the freedoms that were given birth on Bunker Hill and in the 
Convention at Philadelphia.
  I know some people mock as self-righteous or feckless the piety many 
Americans have toward their heritage and toward the Constitution that 
guards their freedom. But I will never forget that it is not the 
powerful or those favored by the powerful who need the law's 
protection.
  If we set a precedent that allows the President--the chief magistrate 
and the most powerful man in the world--to render the judicial process 
subordinate to his own interests, we tell ordinary citizens, like my 
grandparents, that Americans are no longer really equal in the eyes of 
the law. We tell them that they may be denied justice. And we thereby 
forfeit our own heritage of constitutional freedoms.
  None of us asked for this task, but we must live with the 
consequences of our actions, not just on this administration, but on 
our nation for generations to come. That responsibility cannot be 
shirked. It has led me to a difficult but inexorable decision. I deeply 
regret that it is necessary for me to conclude that President William 
Jefferson Clinton committed obstruction of justice and grand jury 
perjury as charged in the Articles of Impeachment brought by the House, 
that these are ``high Crimes and Misdemeanors'' under our Constitution, 
and that therefore I must vote to convict him on these charges.
  Ms. MIKULSKI. Mr. Chief Justice, I will vote against the articles of 
impeachment accusing the President of the United States of perjury 
before a grand jury and obstruction of justice.
  The Republican House Managers have asked the Senate to remove the 
President from office, overturning a free and fair election in which 
100 million Americans cast their vote. Short of voting on whether or 
not to send our sons and daughters to war, I can envision no more 
profound decision.
  I have taken this responsibility as seriously as anything I have done 
in my life. A little over a month ago, I escorted the Chief Justice 
into this chamber and stood with my colleagues when we took a 
collective oath, as an institution, to render impartial justice in this 
trial. Then, we individually signed our names and pledged our honor to 
faithfully fulfill our oath. That was an indelible and profound moment.
  I have sought to fulfill both responsibilities--to be impartial and 
to render justice. I have sought to be impartial, which I view as a 
test of character and will. And I have sought to pursue justice, which 
to me includes the responsibility to perform the homework--do the 
reading, review the evidence and weigh the facts.
  I have listened carefully, and with an open mind, to the 
presentations of the Republican House Managers and the President's 
Counsel. I have reviewed the evidence. I have read all of the key 
witnesses' testimony before the grand jury. I have intensely studied 
the law pertaining to perjury and obstruction of justice, discussed the 
issue with respected lawyers, developed an appropriate standard of 
proof, and reviewed the House testimony of Republican and Democratic 
former prosecutors for their views on the charges. Finally, I have read 
what our nation s founders wrote about impeachment during those months 
in 1787 when the Constitution was formed, and considered the writings 
of many of today's finest scholars.
  As I reviewed the historical underpinnings of impeachment, I have 
reflected on the intentions of the Founding Fathers who developed our 
famed system of ``checks and balances''--our Constitution. That system, 
designed with the precision of Swiss watchmakers and the concern of 
loving parents, has served our nation very well over the last 200 years 
and served as a guidepost for nations around the world as they 
struggled to establish democracies.
  I wondered what the Framers of the Constitution would think of this 
trial--how they would counsel us. In fact, we can use their rationale 
and their framework to guide us as we reach conclusions about the 
evidence and as we determine whether that evidence merits removing a 
president from office.
  Using all this as my guide, I have concluded that the evidence 
presented by the House Managers does not meet a sufficient standard of 
proof that President Clinton engaged in the criminal actions charged by 
the House. I conclude that the President should not be removed from 
office.
  In coming to that conclusion, I have used the highest legal standard 
of proof--``beyond a reasonable doubt,'' which is required in federal 
and state criminal trials. I believe that removing a president is so 
serious, and such an undeniably tumultuous precedent to set in our 
nation's history, that we should act only when the evidence meets that 
highest standard. The United States Senate must not make the decision 
to remove a President based on a hunch that the charges may be true. 
The strength of our Constitution and the strength of our nation dictate 
that we be sure--beyond a reasonable doubt.
  The House Managers' case is thin and circumstantial. It doesn't meet 
the standard of ``beyond a reasonable doubt.''
  The first article of impeachment, charging the president perjured 
himself before the grand jury, has not been proven beyond a reasonable 
doubt.

[[Page S1499]]

  For instance, the House Managers claim that President Clinton 
committed perjury when he used the term ``on certain occasions'' to 
define the number of times he had inappropriate contact with Ms. 
Lewinsky. The Managers believed the term ``on certain occasions'' meant 
fewer than the 11 times that were counted by Federal investigators and 
they labeled it ``a direct lie.''
  But there is no clear numeric or legal definition of ``certain 
occasions.'' To disagree about the definition of ``certain occasions'' 
is not perjury. And it is not material whether it was 11 times or ``on 
certain occasions.'' President Clinton admitted the relationship, which 
was the material point.
  The Republican House Managers also claimed President Clinton 
committed perjury by not recalling the exact date, time, or place of 
events that occurred two years before. This was because other witnesses 
recalled things slightly differently. I do not believe this is or can 
be perjury because well-established court standards state that ``the 
mere fact that recollections differ does not mean that one party is 
committing perjury.''
  Overall, the House Manager's assertions rest on Mr. Clinton's vague 
and unhelpful responses to the Independent Counsel's questions. While 
those responses may be frustrating to the Independent Counsel, the 
Republican House Managers, and, perhaps the American public, they are 
not perjurious as defined by law.
  Similarly, the case presented by the Republican House Managers has 
not presented sufficient direct evidence to prove beyond a reasonable 
doubt that the President obstructed justice. Instead, the House 
Managers relied on extensive conjecture about what the President may 
have been thinking. In fact, there is direct and credible testimony by 
multiple witnesses that is directly contrary to the House Managers 
conjecture, leaving ample room for doubt.
  The Republican House Managers also did not prove beyond a reasonable 
doubt that there was a causal connection between Ms. Lewinsky s job 
search and the affidavit she gave in the Jones lawsuit. Ms. Lewinsky 
testified clearly and repeatedly that she was never promised a job for 
her silence. That testimony is not challenged by any other witness. In 
fact, other witnesses support that testimony and her most recent 
deposition by the House Managers confirms it.
  From the outset of this trial, I established that I would use a two-
tier analysis for my deliberations. First, I would determine whether 
the evidence proved beyond a reasonable doubt that the president was 
guilty of the charges. Second, I would then determine whether or not 
those charges rose to the level of ``high crimes and misdemeanors''--
the standard required by the Constitution for conviction and removal of 
a president.

  Since my analysis of the charges brought by the Republican House 
Managers determined that they had not been proven beyond a reasonable 
doubt, the question of determining high crimes and misdemeanors is, I 
believe, moot. I will say, however, that I am again taken by the wisdom 
and prescience of the Founding Fathers in addressing this point. I, 
like many, have read and re-read the work of Alexander Hamilton with 
particular interest. On March 7, 1788, he wrote ``Federalist 65,'' 
outlining the reasons for, and consequences of, an impeachment trial in 
the Senate. In that writing, Mr. Hamilton asserted that the proper 
subject of an impeachment trial would be ``the abuse or violation of 
some public trust . . . as they relate to injuries done immediately to 
the society itself.''
  I believe it is clear from those words, and the words of others who 
drafted the Constitution, that impeachment was not intended to be used 
for an act that did not meet that standard it was not meant to be used 
for punishment of the president. I believe that the Framers intended 
the last resort of impeachment to be used when a presidential action 
was a clear offense against the institutions of government. I do not 
believe that President Clinton's conduct, as wrong as it was, rises to 
that level.
  I wish to choose my words judiciously for I believe the behavior of 
the president was wrong, reckless and immoral. President Clinton has 
acknowledged that his behavior has harmed his family and the nation, 
and that his behavior, in the end, is what brought us to this day. Mr. 
Clinton engaged in an illicit, inappropriate relationship and tried to 
hide it out of shame and the fear of disgrace. Those actions are 
clearly deplorable and should be condemned in the most unequivocal 
terms. But the evidence simply and profoundly does not prove criminal 
wrongdoing.
  Certainly, the impeachment process has been a difficult period in our 
nation's history. It has challenged the strength of our institutions 
and the strength of our nation. But, Mr. Chief Justice, I still find 
reason for tremendous hope.
  First, I find hope in the unflagging commitment of the United States 
Senate to do the right thing for the right reason. I am proud to be a 
part of this Senate that was ably led by Mr. Lott and Mr. Daschle and 
conducted this trial in a serious, bipartisan, reflective, and 
cooperative spirit.
  I am reassured that Alexander Hamilton and other constitutional 
Framers saw fit to charge the Senate with the responsibility to try 
such a case. I hope and believe that we have fulfilled their 
expectations to be a sufficiently dignified and independent tribunal, 
one that could preserve ``unawed and uninfluenced, the necessary 
impartiality'' between the parties in this trial. I would like to thank 
my colleagues on both sides of the aisle for meet their 
responsibilities with such commitment, honor, professionalism, and 
concern for this body and the judgment of history. I will modestly 
presume that history will say we discharged our duty well.
  I will never forget one of our finest hours--when, early in the 
process, we convened in the old Senate Chamber to deliberate. I had the 
honor to preside, with my Republican colleague Mr. Mack, over that 
colloquy in which we established a process that would maintain the 
dignity of the Senate and provide a framework for conducting the trial. 
That precedent set an important tone for the proceedings that followed 
and I believe that the good will generated in that historic meeting 
held throughout our deliberations.
  Finally, I also find tremendous hope in the growing national 
consensus that we must move forward together to address pressing 
problems in our neighborhoods, communities and cities. Over the last 
month, the nation has cried out for a focus on education, preserving 
Social Security and Medicare, investing in our economy, and providing 
global leadership.
  We should now heed those calls. I will not say that now we must 
``return to the nation's business.'' In fact, as difficult and time 
consuming as this process has been, I believe fulfilling our duty to 
``render impartial justice'' has been the nation's business. I am 
hopeful that with the conclusion of this trial, we may all return to 
the work of making our nation more prosperous, our families stronger, 
our children better educated, our communities more cohesive, and our 
world safer at home and abroad. I believe we will move on knowing that 
we have fulfilled our constitutional responsibilities with diligence 
and honor.
  Thank you.
  Mr. GRAMS. Despite the handicaps placed upon the House managers, I 
feel they did an excellent job in presenting their case in support of 
the articles of impeachment and laying out the facts. I listened to 
them carefully, as I listened to the White House Counsel and the 
President's lawyers in their vigorous defense of William Jefferson 
Clinton.
  I have heard some of my colleagues say that it was one particular 
fact or incident that led them to their conclusion. That was not the 
case with me. I needed to listen to all the facts throughout the trial, 
before I truly could decide how I would vote.
  But after carefully weighing all the evidence, all of the facts, and 
all the arguments, I have come to the conclusion--the same conclusion 
reached by 84% of the American public--that President Clinton committed 
perjury and wove a cloth of obstruction of justice.
  Lead presidential counsel Charles Ruff said in testimony before the 
House Judiciary Committee, and here during the Senate trial, that fair-
minded people could draw different conclusions on the charges.

[[Page S1500]]

  I disagree in one aspect, but agree in another. I personally feel 
there is no room to disagree on whether the President is guilty of the 
charges in both Article One and Article Two; he committed perjury and 
he clearly obstructed justice. But I agree we will differ on whether 
these charges rise to the level of high crimes which dictate 
conviction. Again, I believe they do and have voted yes, on both 
articles.
  The President was invited by letter to come and testify before the 
Senate. As the central figure in this trial, he alone knows what 
happened, and if truthful, he could have addressed the compelling 
evidence against him. He refused.
  It has been said that many have risked their political futures during 
this process. Perhaps--yet I will not hesitate telling constituents in 
my state how and why I voted the way I did. With a clear conscience, I 
will stand in their judgment and I will live with and respect whatever 
their decision on my political future may be.
  But remember, those who vote to acquit--that is, to not remove this 
President--will have the rest of their political lifetimes to explain 
their votes. They also will be judged.
  Collectively too, we will have to await what history will say about 
this trial and how it was handled. Will this Senate be judged as having 
followed the rule of law; that is, deciding this case on the facts, or 
will we be remembered as the rule-making body who deferred to public 
sentiment? The polls say this President is too popular to remove. If we 
base our decision on his popularity rather than the rule of law, we 
would be condoning a society where a majority could impose injustice on 
a minority group, only because it has a larger voice. A rule of law is 
followed so that justice is done and our Constitution is respected, 
regardless of popularity polls.
  The foundation of our legal system, I believe, is at risk, if the 
Senate ignores these charges. The constitutional language of 
impeachment for judges is the same as for the President. Judges are 
removed from the bench for committing perjury, and also face criminal 
charges, as do ordinary citizens. We must not accept double standards.
  The prospect of such a double standard was raised countless times by 
the House managers. Consider the irony created by a two-tiered standard 
for perjury. A President commits perjury, yet remains in office. But 
would a cabinet member who committed perjury be allowed to keep his or 
her job? Would a military officer who committed perjury be allowed to 
continue to serve? Would a judge who committed perjury remain on the 
bench? They would not, and yet our President, the nation's chief law 
enforcement officer, is allowed to keep his office after having 
committed the same offense.
  Again, in my view, this is a double standard and is completely 
unacceptable for a nation that prides itself on a legal system which 
provides equal justice under the law.
  As to our final duty, the final vote, I believe the so-called ``so 
what'' defense has controlled the outcome. ``He did it, but so what'' 
we have heard it a thousand times from a hundred talking heads. We have 
heard it from our colleagues, too, in both chambers. Well, for this 
Senator, ``so what'' stops at perjury and obstruction of justice. I 
will cast my vote with sorrow for the President, his family, and for 
the toll this trial has taken on the nation, but with certainty that it 
is the only choice my conscience and the Constitution permits me to 
make.
  Mr. BREAUX. Mr. Chief Justice and my colleagues. Thank you very much, 
Mr. Chief Justice, as so many people have said before, for serving with 
your patience and your fairness. If you care to extend your time with 
us, I would invite you to help preside over my Medicare commission--if 
you would like to help out in that regard.
  I also want to acknowledge and thank our two leaders for the fairness 
and the patience that they both have exhibited to all of us and the 
good job they have done keeping this body together, which I happen to 
think is extremely important as well.
  I think it is always very difficult for us to sit in judgment of 
another human being, and particularly is that very difficult when it 
involves moral behavior, or moral misbehavior as this case essentially 
is all about. I was always taught that there was a higher authority 
that made those types of decisions, but here we are, and that is part 
of our task.
  I think it is also especially difficult to make those kinds of 
decisions when they involve someone you know and someone you actually 
deal with in a relatively close relationship, almost on a day-to-day 
basis. It is difficult when it is someone that you can in private kid 
with or that you in private can joke with, as is the case for many of 
us with this accused whom we now sit in judgment of.
  I know this President and he is someone I have admired for his 
political accomplishments and I have admired for what he has been able 
to do for this country, but also quite well recognize the human 
frailties that he has, as all of us have. If this were a normal trial, 
many of us wouldn't even be here; we would have been excused a long 
time ago; we would never have been selected to sit in judgment of this 
President. We would have been excused because of friendship, we would 
have been excused because we know him, we would have been excused 
because we campaigned for him and with him, or we would have been 
excused for the opposite reasons--because he is a political adversary 
that we have campaigned against, that we have given speeches against, 
that we disagree with publicly on just about everything he stands for. 
None of us would find ourselves sitting in judgment of this individual 
if it were a normal trial. But, then again, it is not a normal trial, 
and these certainly are not normal times.
  For many of us, this is the first time we have ever had a President 
who has sort of been a contemporary--certainly for me, and many of my 
colleagues are in that same category. I was here, as many of you in my 
generation, when President Johnson was here, and served throughout the 
time of President Johnson all the way through President Bush. I have 
met them all and knew them all to various degrees but never in the same 
way that I and many of us know this particular President, because he 
really is in the same generation as we are. I think we have that 
feeling, when we talk with him. I mean, many times I feel he knows what 
I am going to say before I say it and he understands what I am trying 
to convey to him before I even have say anything about the subject 
matter.
  I think that many of us have had, with him, the same type of life 
experiences, and that our lives have been shaped by similar events 
because we really are of the same generation. So it is very difficult, 
coming from that position and now sitting in judgment of a person for 
his moral behavior. So I think we have to be extremely careful, those 
of us who come from this side with that personal friendship and 
relationship, as well as those who come from the opposite side, as a 
political adversary. It is very difficult to set those emotions aside 
and say I am going to be fair in judging someone I just cannot stand 
politically, that I don't agree with on anything, and I wish he wasn't 
my President; in fact, I supported someone else. So, it is very 
difficult for all of us to try to set that aside and come to an honest 
and fair and decent conclusion.
  I think the American people have been able to do that. I think they 
have had a good understanding of what this case is about from the very 
beginning. They understood what it was about before the trial ever 
started, they understood what it was about during the trial, and I 
think they understand what it is all about after the trial. I think 
they understand what happened. I think they know when it happened, they 
know where it happened, and they know what was said about it. I think 
that they were correct from the very beginning.
  What we really have is a middle-aged man, who happens to be President 
of the United States, who has a sexual affair with someone in his 
office, and that when people started finding out about it, he lied 
about it, tried to cover it up, tried to mislead people about what 
happened. I would daresay that this is not the first time in the 
history of the world that this has ever happened. I daresay it probably 
will not be the last time that it will happen. It is probably not the 
first time it has happened in this city.
  All of that does not make it right; it does not make it acceptable. 
It does

[[Page S1501]]

not make it excusable. It cannot be condoned and it cannot be 
overlooked. Actions that are wrong have consequences, and now the 
consequences must be determined by the Senate.
  The question here is not really whether anything wrong was done. For 
heaven's sakes, everybody knows that what was done was clearly wrong. 
It was unacceptable. It was embarrassing. It was indefensible and any 
other adjective you can possibly think of to really describe it. But 
that is not really the question before us, and we can all agree on 
that. I think the question is not even whether this was perjury or 
whether it was obstruction of justice under the terms of the 
Constitution.
  I think the only question before us is whether what happened rises to 
the highest constitutional standards of high crimes and misdemeanors 
under the Constitution, justifying automatic removal of this President 
from the office of President.
  I have concluded that the Constitution was designed very carefully to 
remove the President of the United States for wrongful actions as 
President of the United States in his capacity as President of the 
United States and in carrying out his duties as President of the United 
States. For wrongful acts that are not connected with the official 
capacity and duties of the President of the United States, there are 
other ways to handle it. There is the judicial system. There is the 
court system. There are the U.S. attorneys out there waiting. There may 
even be the Office of Independent Counsel, which will still be there 
after all of this is finished.
  But we here cannot expand the Constitution in this area. I think 
history supports my position. I will cite you just a quick two 
examples. Senator Slade Gorton earlier spoke about the situation with 
the Secretary of the Treasury, Alexander Hamilton. As Secretary, he was 
having an affair with a woman here in this city and they found out 
about it. He was paying off the husband of the wife that he was having 
an affair with. He was trying to get her to burn the evidence, which 
were letters that he had sent, to try to cover it up--criminal acts. 
But the Congress that was investigating him, came to the conclusion 
that the behavior was private. It was wrong, it was terrible, it was 
criminal, but it was private behavior and he was not impeached. Not 
because, I think, as Slade tried to say, that he wasn't impeached 
because he admitted it, he only admitted it when he got caught. But he 
was not impeached because they decided that it was essentially private 
behavior. That was in 1792, and Adams and the Founding Fathers were 
here at that time and they came to that conclusion.
  More recently, the situation with President Richard Nixon, I think, 
is a clear example of what we are struggling with here, to find this 
connection between official duties and what he did. One of the articles 
that they accused President Nixon with was that he had, not once, but 
four times filed fraudulent income tax returns under the criminal 
penalty of perjury--that he deducted things that he should not have 
deducted and that he didn't report income that should have been 
reported. By a 26-to-12 vote, the House Judiciary Committee said, among 
other things, that ``the conduct must be seriously incompatible with 
either the constitutional form and principles of our Government or the 
proper performance of the constitutional duties of the President's 
office.'' They said that it did not demonstrate public misconduct, but 
rather private misconduct that had become public. I think the situation 
today is very similar.
  These are clear examples both in the beginning of our country's 
history and very recently about the need for this nexus or connection 
between the illegal acts and the duties of the office of the President.
  Let me conclude by saying I am voting not to convict and remove. But 
that is not a vote on the innocence of this President. He is not 
innocent. And by not voting to convict we can't somehow establish his 
innocence. If the standard of removal was bad behavior, he would be 
gone. I mean there would probably be no disagreement about that. But 
that is not the standard.
  I urge a ``no'' vote on conviction and removal and ask our colleagues 
to join in a bipartisan, strong, clear censure resolution and spell out 
what happened and where it happened and when it happened and what was 
said about what happened so that history will be able to, forever, look 
at that censure resolution and study it and learn from what we do 
today. That, my colleagues, I think is an appropriate and a proper 
remedy.
  Thank you.
  Mr. DOMENICI. I have listened carefully to the arguments of the House 
Managers and the counter-arguments by the White House counsel during 
this impeachment trial. I have taken seriously my oath to render 
impartial justice.
  While the legal nuances offered by both sides were interesting and 
essential, I kept thinking as I sat listening that the most obvious and 
important but unstated question was: What standard of conduct should we 
insist our President live up to?
  Only by taking into account this question do I believe that we in the 
Senate can properly interpret our Founding Fathers' impeachment 
criteria comprised of ``bribery, treason or other high crimes and 
misdemeanors.'' Clearly, the Constitution recognizes that a President 
may be impeached not only for bribery and treason, but also for other 
actions that destroy the underlying integrity of the Presidency or the 
``equal justice for all'' guarantee of the Judiciary.
  All reasonable observers admit that the President lied under oath and 
undertook a substantial and purposeful effort to hide his behavior from 
others in order to obstruct justice in a legal proceeding. My good 
friends and Democratic colleagues, Senators Joe Lieberman, Daniel 
Patrick Moynihan, Bob Kerrey, Diane Feinstein, and Robert Byrd, among 
others, have bluntly acknowledged publically that the President lied, 
misled, obstructed, and attempted in many ways to thwart justice's 
impartial course in a civil rights case. The sticking point has been: 
Does this misbehavior rise to the level of impeachable offenses?
  I have concluded that President Clinton's actions do, indeed, rise to 
the level of impeachable offenses that the Founding Fathers envisioned.
  I am not a Constitutional scholar, as I have told you before. But, 
more than 200 years ago, Chief Justice of the Supreme Court John Jay 
summed up my feelings about lying under oath and its subversion of the 
administration of justice and honest government:

       Independent of the abominable insult which Perjury offers 
     to the divine Being, There is no Crime more pernicious to 
     Society. It discolours and poisons the Streams of Justice, 
     and by substituting Falsehood for Truth, saps the Foundations 
     of personal and public rights. . . . Testimony is given under 
     solemn obligations which an appeal to the God of Truth 
     impose; and if oaths should cease to be held sacred, our 
     dearest and most valuable Rights would become insecure.

  Lying under oath is an ``insult to the divine Being . . . It 
discolours and poisons the Streams of Justice . . . and . . . saps the 
Foundations of personal and public Rights.''
  How can anyone, after conceding that the President lied under oath 
and obstructed justice, listen to this quotation and not conclude that 
this President has committed acts which are clearly serious, which 
corrupt or subvert the political and government process, and which are 
plainly wrong to any honorable person or to a good citizen?
  We must start by saying that this trial has never been about the 
President's private sex acts, as tawdry as they may have been.
  This trial has been about his failure to properly discharge his 
public responsibility. The President had a choice to make during this 
entire, lamentable episode. At a number of critical junctures, he had a 
choice either to tell the truth or to lie, first in the civil rights 
case, before the grand jury and on national television. Each time he 
chose to lie. He made that fateful choice.
  Truthfulness is the first pillar of good character in the Character 
Counts program of which I have been part of establishing in New Mexico. 
Many of you in this chamber have joined me in declaring the annual 
``Character Counts Weeks.'' This program teaches grade school 
youngsters throughout America about six pillars of good character. 
Public and private schools in every corner of my state teach children 
that character counts; character makes a difference; indeed, character 
makes all the difference.

[[Page S1502]]

  Guess which one of these pillars comes first? Trustworthiness. 
Trustworthiness.
  So what do I say to the children in my state when they ask, ``Didn't 
the President lie? Doesn't that mean he isn't trustworthy? Then, 
Senator, why didn't the Senate punish him?''
  Let me quote one of the most critical passages from Charles L. Black, 
Jr., and his handbook on impeachment, one of the seminal works on the 
impeachment process. He ponders this question: what kinds of non-
criminal acts by a President are clearly impeachable? He concludes that 
``high crimes and misdemeanors'' are those kinds of offenses which fall 
into three categories: ``(1) which are extremely serious, (2) which in 
some way corrupt or subvert the political and governmental process, and 
(3) which are plainly wrong in themselves to a person of honor, or to a 
good citizen, regardless of words on the statute books.''
  Well, there you have it in my judgment. The President lied under oath 
in a civil rights case, he lied before a grand jury and he lied on 
national television to the American people.
  Regarding Article II, obstruction of justice the House Managers 
proved to my satisfaction the following facts:
  (1) The President encouraged Monica Lewinsky to prepare and submit a 
false affidavit; (2) He encouraged her to tell false and misleading 
cover stories if she were called to testify in a civil rights lawsuit; 
(3) He engaged in, encouraged or supported a scheme to conceal his 
gifts to Monica Lewinsky that had been subpoenaed in the civil rights 
lawsuit; (4) He intensified and succeeded in an effort to find Monica 
Lewinsky a job so that she would not testify truthfully in the civil 
rights lawsuit; (5) He gave a false account of his relationship with 
Monica Lewinsky to Betty Currie in order to influence Ms. Currie's 
expected testimony in the civil rights lawsuit; (6) At his deposition 
in a Federal civil rights action against him, William Jefferson Clinton 
allowed his attorney to make false and misleading statements to a 
Federal judge characterizing an affidavit, in order to prevent 
questioning deemed relevant by the judge. Such false and misleading 
statements were subsequently called to the attention of the judge by 
his attorney; (7) He lied to John Podesta, Sidney Blumenthal, Erskine 
Bowles and other White House aides regarding his relationship with 
Monica Lewinsky to influence their expected testimony before the 
Federal grand jury.
  In this day and age of public yearning for heroes, we criticize 
basketball, football and baseball players, and actors and singers who 
commit crimes or otherwise fail to be ``good role models.'' One of 
those celebrities said a few years ago that he was only a basketball 
player, not a role model. He said in essence: ``Want a role model, look 
to the President.''
  Do not underestimate, my friends, the corrupting and cynical signal 
we will send if we fail to enforce the highest standards of conduct on 
the most powerful man in the nation.
  Finally, I want to address a question that my good friend, Senator 
Byrd, raised over the weekend in a television show. After declaring 
that the President had lied and obstructed justice, and after 
concluding these acts were impeachable offenses, Senator Byrd, for whom 
I have great respect, noted that it was very hard, in his judgment, to 
impeach a president who enjoyed the public popularity that this 
President enjoys.
  Let me respond to that. Popularity is not a defense in an impeachment 
trial. Indeed, one of our Founding Fathers addressed this issue of 
popularity directly in the oft-quoted Federalist Papers: ``It takes 
more than talents of low intrigue and the little arts of popularity'' 
to be President. And, popularity isn't a pillar of Character Counts.
  What if a President committed the same acts as those alleged in this 
trial but he was presiding over a weak economy, a stock market at a 
three-year low, 12 percent unemployment, 16 percent inflation and a 
nation worried about their job security and families? I wonder if this 
would be a straight party line vote. I just wonder.
  Conversely, I wonder if you had a President who committed one of the 
impeachable crimes enumerated in the Constitution--bribery or treason. 
And the facts were obvious and clear: he gave a job to someone in 
exchange for a $5,000 bribe and the entire episode was on video tape. 
In this hypothetical, what if this bribery-perpetrating President was 
very popular but the House, nonetheless, impeached him. It would be the 
Senate's responsibility to hold a trial. In this example, economy is 
strong, the country is at peace, everyone's stock market investments 
are soaring. Would we then interpret the Constitution to provide a 
popularity defense? Would we create a ``booming economy exception'' to 
the conviction and removal clause of the Constitution? I doubt it. I 
doubt it very much. Let me repeat, temporary popularity of a President 
cannot be a legitimate defense against impeachment.
  The President has committed high crimes and misdemeanors, in 
violation of his oath of office. He lied under oath. He obstructed 
justice. His behavior was unworthy of the Presidency of the United 
States.
  Thus, I sadly conclude that the President is guilty of the charges 
made against him by the House of Representatives and I will vote to 
convict him on both counts before the Senate.
  Thank you, Mr. President.
  Mr. SARBANES. Mr. Chief Justice and colleagues, in his award-winning 
book ``The Making of the President, 1960,'' Theodore H. White refers to 
an American Presidential election as ``the most awesome transfer of 
power in the world.''
  He notes that:

       No people has succeeded at it better or over a longer 
     period of time than the Americans. Yet as the transfer of 
     this power takes place, there is nothing to be seen except an 
     occasional line outside a church or school or file of people 
     fidgeting in the rain, waiting to enter the voting booths. No 
     bands play on election day, no troops march, no guns are 
     readied, no conspirators gather in secret headquarters.

  And later in that opening chapter White observes:

       Good or bad, whatever the decision, America will accept the 
     decision and cut down any man who goes against it, even 
     though for millions the decision runs contrary to their own 
     votes. The general vote is an expression of national will, 
     the only substitute for violence and blood.

  I begin with those quotes to underscore the critical significance of 
a Presidential election in the structure of our national politics. Many 
learned commentators have observed that one of the original 
contributions to the art of government made by the Constitutional 
Convention was to develop a Presidential, as opposed to a 
parliamentary, system of government, wherein the executive is chosen by 
the electorate and is not dependent upon the confidence of the 
legislature for his office. As former Attorney General Katzenbach 
observed:

       It is 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 concerns about the 
     separation of powers.

  He goes on to note that if the removal power is not limited, as it 
clearly is, impeachment could be converted into a parliamentary vote of 
no confidence which, whatever its merits, is not our constitutional 
system. The separation of powers embraced in our Constitution and the 
fixed term of the President have been credited by many observers with 
providing stability to our political system.
  It is important therefore to recognize that in considering the matter 
before us we do so in the context of a Presidential election, wherein 
the people have chosen the single leader of the executive branch of our 
Government--the President.
  Since the Framers put the impeachment remedy in the Constitution, it 
is obvious they recognized that there may be circumstances which 
require the Congress to remove a duly elected President. However, in my 
judgment, as the Framers indicated, we need to be very careful, very 
cautious, very prudent, in undertaking that remedy lest we introduce a 
dangerous instability in the workings of our political institutions.
  Viscount Bryce, whose bust is at the foot of the steps in the hallway 
below, was a distinguished commentator about the American political 
system. He wrote in ``The American Commonwealth'' in discussing the 
impeachment of a President:

       Impeachment is the heaviest piece of artillery in the 
     congressional arsenal, but because it is so heavy, it is 
     unfit for ordinary

[[Page S1503]]

     use. It is like a 100-ton gun which needs complex machinery 
     to bring it into position, an enormous charge of powder to 
     fire it, and a large mark to aim at. Or to vary this simile, 
     impeachment is what physicians call a heroic medicine, an 
     extreme remedy proper to be applied against an official 
     guilty of political crimes.

  Let me turn next to the argument which seeks to draw an analogy 
between the impeachment of a President and the impeachment of judges, 
an argument that cites three recent cases in which judges have been 
removed from office. In my view, this analogy misses the mark.
  Two of the judges that the Senate convicted and thus removed from 
office had been accused in a criminal case, tried before a jury, found 
guilty beyond a reasonable doubt, and were in jail. Until we removed 
them they were still drawing their salary. In the third case, the 
defendant had been acquitted of bribery, but a judicial inquiry found 
that he had perjured himself to cover up the bribery misdeeds. 
Difference No. 1: Judges can be criminally prosecuted while in office; 
the President cannot. (At least that has been the theory up to this 
point.)
  Secondly, elected versus appointed. Judges are appointed to the bench 
for life. They can only be removed by impeachment. The President is 
elected by the people for a 4-year term and can only hold two such 
terms. As President Ford, when he was a Congressman, stated:

       I think it is fair to come to one conclusion, however, from 
     our history of impeachments. A higher standard is expected of 
     Federal judges than of any other civil officers of the United 
     States. The President and the Vice President and all persons 
     holding office at the pleasure can be thrown out of office by 
     the voters at least every 4 years.

  Thirdly, one needs to consider the injury to the branch of Government 
which would result from the removal of the officer. The removal of one 
judge out of hundreds and hundreds of judges does not significantly 
affect the operation of the judicial branch of our Government. The 
removal of the President, the single head of the executive branch, 
obviously is in an entirely different category. The President, under 
our system, holds the executive power. In the end, executive branch 
decisions are his decisions.
  In the minority report in the House Watergate proceedings, Republican 
Members stated:

       The removal of a President from office would obviously have 
     a far greater impact upon the equilibrium of our system of 
     Government than removal of a single Federal judge.

  The House Judiciary Committee majority report accompanying the 
article of impeachment against Judge Walter Nixon in 1989 similarly 
stated as follows:

       Judges must be held to a higher standard of conduct than 
     other officials. As noted by the House Judiciary Committee in 
     1970, Congress has recognized that Federal judges must be 
     held to a different standard of conduct than other civil 
     officers because of the nature of their position and the 
     tenure of their office.

  In putting on their case, the House Republican managers sought to 
portray a simple logical progression--first that the material which 
they brought before the Senate showed violations of provisions of the 
Federal Criminal Code, i.e., perjury and obstruction of justice. Then 
they argued that if you find such crimes, you have high crimes and 
misdemeanors and, ergo, removal from office. But let us look at this 
supposed logical progression which I view as flawed at each step.
  First, I do not believe the House managers carried the burden of 
proof with respect to the commission of crimes. Since they relied on 
the Federal Criminal Code--charging crimes--in making their case, it is 
appropriate that they be held to the burden of proof of beyond a 
reasonable doubt--the standard used in criminal cases.
  In the House Judiciary Committee a panel of distinguished former 
Federal prosecutors testified that a responsible Federal prosecutor 
would not have brought a criminal prosecution on the basis of the case 
set out in the Starr Report on which the House Judiciary Committee 
relied. One of them, Thomas P. Sullivan, a veteran of 40 years of 
practice in Federal criminal cases, and U.S. Attorney for the Northern 
District of Illinois from 1977 to 1981, stated the following:

       If the President were not involved, if an ordinary citizen 
     were the subject of the inquiry, no serious consideration 
     would be given to a criminal prosecution arising from alleged 
     misconduct in discovery in the Jones civil case having to do 
     with an alleged coverup of a private sexual affair with 
     another woman or the follow-on testimony before the grand 
     jury. The case simply would not be given serious 
     consideration for prosecution.

  Now, let me move beyond this question of proving the case and address 
the next step in the managers' ostensible logical progression, namely 
that the crimes that they were trying to prove are high crime and 
misdemeanors and, therefore, a vote for conviction and removal must 
follow.
  Actually, in considering this issue we must bear in mind the ultimate 
question: Does the conduct warrant removal from office? The House logic 
seems to be that any perjury, any obstruction of justice, warrants 
removal. As serious as those charges are, not all such conduct in all 
instances may rise to the level of an impeachable offense. In 
considering this matter, it is important to understand that the House 
articles included within them not only the charges but also the 
penalty. In the ordinary criminal case, there is a two-step judgment--
guilt and then sentence. In an impeachment case, the finding of guilty 
carries with it removal from office--the remedy provided by the 
Constitution.
  There is an important precedent for the view that in certain 
circumstances offenses of the sort alleged here may not rise to the 
level of a high crime and misdemeanor. That precedent is found in the 
tax article of impeachment of Richard Nixon which was before the House 
Judiciary Committee in 1974. That article charged President Nixon with 
knowingly filing tax returns which fraudulently claimed that he had 
donated pre-Presidential papers before the date Congress had set for 
eliminating such a charitable tax deduction. (It was worth $576,000 in 
deductions.) This deduction was claimed in tax returns that contained 
the following assertion just above the taxpayer's signature:

       Under penalties of perjury, I declare that I have examined 
     this return, including accompanying schedules and statements, 
     and, to the best of my knowledge and belief, it is true, 
     correct and complete.

  The House Judiciary Committee voted down that article of impeachment 
by a vote of 12 for, 26 against. As one of nine Democrats who joined 
the Republicans in voting against this article of impeachment in the 
Nixon case, I did not believe that in the circumstances of that case it 
rose to the level of a high crime and misdemeanor, I did not believe it 
was conduct against which the Founding Fathers intended the Congress to 
invoke the impeachment remedy.
  Let me turn briefly to the procedure followed in this impeachment 
matter, since good procedure enhances the chances of good results while 
bad procedure does the opposite. I am prompted to do so by various 
comments made by House managers criticizing the Senate for the 
procedure we have followed. I think the Senate has handled this matter 
well under very difficult circumstances. Given that the House managers 
questioned our procedure, let us look at the procedure on the House 
side.
  The House, which brought in no ``fact'' witnesses, came to the Senate 
and said to us, ``In order to evaluate testimony that is in the record, 
you must bring witnesses in and look them in the eye in order to assess 
their credibility.'' Obviously, one must ask, how did the House 
managers assess the credibility of witnesses when they brought none 
before them and yet voted to bring articles of impeachment recommending 
the President's removal to the Senate?
  Secondly, the other day, in response to a reasonable request by the 
President's lawyers on how the House planned to proceed in using 
deposition excerpts, a House manager said, ``I believe the appropriate 
legal response to your request is that it is none of your damn business 
what the other side is going to put on.'' This same attitude marked the 
treatment of President Clinton's lawyers before the House Judiciary 
Committee.
  Contrast this with the House Judiciary Committee's conduct in the 
matter of President Nixon's impeachment when the President's lawyers 
sat in with the committee in its closed sessions when committee staff 
presented findings of fact. The President's lawyers were able to 
challenge material,

[[Page S1504]]

to ask questions, to supplement all presentations. Fact witnesses were 
called in and were subjected to questions by all. There was an 
understanding of the gravity of the matter for the Nation and the 
absolute imperative of having a fair process.
  In this matter the House Judiciary Committee took only a few weeks to 
report impeachment articles. In the Nixon case the committee took 6 
months. In the Judge Hastings case, the House Judiciary Committee 
received an 841-page report from the Judicial Conference as to why 
Hastings should be removed. Nevertheless, the committee undertook its 
own examination of the evidence. It heard 12 fact witnesses, deposed or 
interviewed 60 others, and held 7 days of hearings.
  In closing, it is very important to keep in mind the distinction 
between the person who is President and the Office of President of the 
United States provided for in our Constitution.
  President Clinton has engaged in disgraceful and reprehensible 
conduct which has severely sullied and demeaned his tenure as 
President. Because of his shameful and reckless behavior he has brought 
dishonor upon himself, deeply hurt his family, and grievously 
diminished his reputation and standing now, and in history.
  But the diminishing of Bill Clinton must not lead us to diminish the 
Presidency for his successors as our Nation moves into the new 
millennium. There is a danger to the Nation in deposing a political 
leader chosen directly by the people and we must be wary of the 
instability it would bring to our political system.
  In the report of the staff of the impeachment inquiry in 1974 on the 
constitutional grounds for Presidential impeachment, the conclusion 
states:

       Not all presidential misconduct is sufficient to constitute 
     grounds for impeachment. There is a further requirement--
     substantiality. In deciding whether this further requirement 
     has been met, the facts must be considered as a whole in the 
     context of the office, not in terms of separate or isolated 
     events. Because impeachment of a President is a grave step 
     for the nation, it is to be predicated only upon conduct 
     seriously incompatible with either the constitutional form 
     and principles of our government or the proper performance of 
     constitutional duties of the presidential office.

  I do not believe the conduct examined here meets this test.
  I will vote against removing the President.
  Mr. CAMPBELL. Mr. Chief Justice and colleagues, my friends, I am not 
going to try to dazzle you with my knowledge of the law which is 
minimal, or the forty hand-written pages I've taken during these 
proceedings. But, I signed the same oath you did with a pen that should 
have had on it ``United States Senate,'' but did not. It said, ``Untied 
States Senate.''
  We were asked to turn the pens back in. I heard they are going to be 
valuable collectors' items, and I am not turning mine in. I want to see 
what it's worth.
  And there you have it. An imperfect Senator being asked to judge an 
imperfect President.
  One of our colleagues noted yesterday that we all come from different 
backgrounds. It's true and, perhaps, I am living proof that the 
greatness of this nation because I could be here at all.
  The same body where someone named Daniel Webster, John F. Kennedy and 
Harry Truman once served also welcomed a mixed blood kid from the wrong 
side of the tracks. The offspring of an alcoholic father and a 
tubercular mother; in and out of orphanages; a law breaker and high 
school drop out who lied, cheated, stole and did many other shameful 
things make me a poor judge indeed of someone else who used poor 
judgment.
  I would rather take a beating than to judge someone else for their 
indiscretions. But, as one of our colleagues said yesterday, ``We 
didn't ask for this.''
  Still, with all my own human failings, I, like you, must try to 
separate them from the rule of law. I wish I had the historical 
knowledge of Senator Byrd or the legal knowledge of Orrin Hatch or the 
government experience of John Warner. But, I don't--I must use common 
sense.
  I want to tell you an anecdote--about a conversation I had with the 
President right after he made his rather startling confession before 
this nation and a group of reverends which I watched from my Denver 
office as millions of others were also watching at the same time.
  I was so moved by his statement that I wrote him a personal note 
telling him how sorry I was for what his family was going through. I 
told him I would not be one to pile on; that I would make no statements 
to the press; nor would I be a party to the impeachment process going 
on in the other body.
  As I look around this room, I see several others who subscribed to 
that same conduct as this proceeding moved to the Senate and took on 
soap opera proportions, and members of both parties ran pell mell to 
the cameras at each recess.
  I sit right there in the back row fifteen feet from the cloakroom. 
But, at each recess by the time I walk to the cloakroom and glance at 
the TV, some of my colleagues have already sprinted somewhere else to 
be in front of the cameras. As you know, I used to be on the U.S. 
Olympic Team, and I tell my speedy friends--you could have made the 
team.

  About three days after I wrote to the President, he called me to 
thank me for my note and we spoke for about 15 minutes. I asked him how 
his family was dealing with it and he told me they were having good 
days and bad, but it was hardest on his daughter, Chelsea, because she 
was away at college without the family unit to console her. He told me 
he would keep my note always. I felt badly then, and I do now.
  As I look around this room in which so many great people in our 
history have spoken and I read their names written in the desk drawers 
along with those who no one remembers, I tell you that I like this 
President.
  He came through a difficult childhood as I did, and I genuinely like 
him and feel sorry for both him and his family. But after agonizing as 
many of my Senate friends have, I remember the first question my then 
nine-year-old son, Colin, asked me 17 years ago when I told him I was 
going to run for public office. He asked, ``Dad, are you going to lie 
and stuff?''
  I told him, ``No.'' I don't have to learn how to lie--I still 
remembered how to lie from my delinquent days. I'm still trying to 
forget it.
  I told him, human frailties not withstanding, elected officials 
should not ``lie and stuff.''
  Every one of us knows that when we step into the public arena, we are 
judged by a different standard. Being honest and truthful becomes more 
important because we must set the examples.
  As a senator, if I ever forget it, this body will not have to throw 
me out because I will have brought it on myself, and I'll save this 
body the time and expense and resign.
  I would not fear being thrown out. When I was young and not yet 
house-broken, I was thrown out of a lot of places. I swore a lot of 
oaths--not when I went in, but when I came out.
  There is a difference: one is about anger in private--the other is 
about honor in public. If we are not going to honor our oath, why don't 
we get rid of it and have an every-man-for-himself kind of elected 
official?
  Better yet, let's change it. Mr. Chief Justice, you could say: 
``Senators-elect. Raise your right hand and repeat after me: `On my 
honor, I'll do my best, to help myself and lie like the rest.''
  I took a solemn oath--perhaps it is the only thing in common I share 
with John F. Kennedy, Harry Truman and Daniel Webster as well as the 
founders of this nation--and that is why honoring it is all the more 
important to me.
  Simply speaking, the President did, too. And, so even though I like 
him personally, I find I can only vote one way. And that is guilty on 
both articles.
  Thank you, Mr. Chief Justice. I yield the floor.
  Mr. KERREY. Mr. President, in the impeachment case of President 
Clinton I have read the depositions, reviewed the massive volume of 
evidence and carefully followed the detailed presentations of both the 
House managers and the President's counsel. The instructions for my 
decision come from two places: the oath I took to do impartial justice 
and the Constitution of the United States.
  Nebraskans, including me, are angry about the President's behavior. 
We find it deplorable on every level. It has permanently and deservedly 
marred his place in history. But impeachment is not about punishing an 
individual; it is

[[Page S1505]]

about protecting the country. We punish a President who behaves 
immorally, lies and otherwise lacks the character we demand in public 
office with our votes. Presidents are also subject to criminal 
prosecution when they leave office.
  Impeachment must be reserved for extreme situations involving crimes 
against the state. Why? Because the founders of our country and the 
framers of our Constitution correctly placed stability of the republic 
as their paramount concern. They did not want Congress to be able to 
easily remove a popularly elected President. They made clear they 
intended a decision to impeach to be used to protect the nation against 
only the highest of crimes.
  On December 19, 1998, the House of Representatives, on an almost 
straight party-line vote, approved and delivered to the Senate two 
articles of impeachment. The Constitution permits me to judge and 
decide upon only these articles, not to wander through all of the 
President's conduct looking for any reason for removal.
  Some Nebraskans have told me the President should be removed from 
office by the Congress because he is no longer trusted, has lost the 
respect of many, and has displayed reprehensible behavior. As strong as 
those feelings are, the Constitution does not provide for overturning 
an election even if all of these things are true.
  Three recent letters to the editor in the Omaha World-Herald help 
make the point. The first, from a man in Kearney, says that by voting 
to dismiss the trial, I ``voted to support sexual harassment,'' among 
other things. A second, from Honey Creek, Iowa, raises allegations 
regarding the President and China, says he is ``dangerous'' and urges 
Senator Hagel and I to ``oust him now.'' The third, from Omaha, reminds 
readers of an often quoted comment I once made about the President's 
credibility and asks how, in light of that, I could vote to leave him 
in office.
  However, the House did not charge the President with these offenses. 
Impeachment is not a judgment of a President's character, all his 
actions, or even his general fitness for office. We make those 
decisions every four years at the ballot box. Our job in contemplating 
the extraordinary step of overturning an election is to judge only 
those charges the House actually brought.
  Because the premium on Constitutional stability is so high, I decided 
to judge the case against the strictest possible standard: proof beyond 
a reasonable doubt. In other words, the President can be convicted only 
if there is no reasonable interpretation of the facts other than an 
intent to commit perjury and obstruction of justice. The following is a 
summary of my analysis of this case:
  Article One accuses the President of perjury in his August 17, 1998, 
testimony to a Federal grand jury, during which he waived his rights 
against self incrimination. Most important in determining guilt or 
innocence is the rule of law governing perjury, which makes it clear 
that a person has not committed perjury just because they misled or 
even lied. Perjury occurs when a false statement is made under oath 
with willful intent to mislead in a material matter. Lying is immoral; 
perjury is illegal. I should not accuse the President of ignoring the 
rule of law and then ignore it myself in making a judgment.
  After reading and watching the President's grand jury testimony, 
listening to the arguments of the House managers and the President's 
lawyers, discussing this case with prosecutors and reviewing the 
impeachment trial of U.S. District Judge Alcee Hastings, I have 
concluded the President did not commit the crime of perjury beyond a 
reasonable doubt. I frequently found the President's testimony 
maddening and misleading, but I did not find it material to a criminal 
act.
  Article Two accuses the President of obstructing justice in seven 
instances. The House managers relied on circumstantial evidence, saying 
that common sense provides only one conclusion about why the President 
acted the way he did. However, the direct evidence, including the 
testimony of Monica Lewinsky herself, rebutted the circumstantial 
evidence. Second, while the House managers were correct in saying that 
common sense could lead to a conclusion that the President intended to 
obstruct justice, common sense could also lead to other reasonable 
conclusions about the reasons for his actions. Third, with respect to 
the allegations of obstructing justice in the civil case, Paula Jones' 
lawsuit was thrown out, then eventually settled. In the end, justice 
was done.
  As reprehensible as I find the President's behavior to be, I do not 
believe that high crimes and misdemeanors as defined by the Framers 
have been proved beyond a reasonable doubt. Accordingly, I will vote to 
acquit on both Articles. My vote to acquit is not a vote to exonerate. 
While there is plenty of blame to go around in this case, the person 
most responsible for it going this far is the President of the United 
States. He behaved immorally, recklessly and reprehensibly. These were 
his choices. In the final analysis, they do not merit removal, but they 
do merit condemnation.
  While I am confident this vote is the right one--not just for this 
case, but as a precedent for future Congresses and Presidents too--I 
understand that reasonable people could reach the opposite conclusion. 
The bitterness in America on both sides of this debate has saddened me. 
I hope and pray that with this vote behind us the people's Congress can 
return without rancor to the important work of our country.
  Mr. VOINOVICH. We are not here today because the President had a 
relationship that he himself has described as inappropriate and wrong. 
As House Manager James Rogan appropriately noted, ``Had the President's 
bad choice simply ended with this indiscretion, we would not be here 
today. Adultery may be a lot of things, but it is not an impeachable 
offense. Unfortunately, the President's bad choices only grew worse.'' 
It is not the President's inappropriate relationship, but his 
deliberate and willful attempts to conceal and mislead that brings us 
to this point.
  The very foundation of this nation is the rule of law not of men. The 
framers of our Constitution specifically provided Article II, Section 4 
of the Constitution which states, ``The President, Vice President, and 
all civil Officers of the United States, shall be removed from Office 
on Impeachment for, and Conviction of, Treason, Bribery, or other high 
Crimes and Misdemeanors.''
  On January 7, 1999, as one of my first official duties as a United 
States Senator, I took an oath to consider the evidence and arguments 
in the impeachment case against the President. We answered in the 
affirmative when the Chief Justice of the Supreme Court administered 
the following oath:

       Do you solemnly swear that in all things appertaining to 
     the trial of the impeachment of William Jefferson Clinton, 
     President of the United States, now pending, you will do 
     impartial justice according to the Constitution and laws, so 
     help you God?

  I understood that the private inappropriate conduct of the President 
alone did not then and does not now rise to a level necessitating his 
removal from office. My responsibility is to fulfill the oath I took to 
determine impartially based on the facts, evidence and testimony 
whether the President committed high Crimes and Misdemeanors as 
outlined in the Constitution.
  During my 33 years in public office, I have had to make some very 
difficult decisions. As governor, I had to make determinations on 
hundreds of requests for commutations and pardons. To my recollection, 
in no case have I labored more than I have over the Articles of 
Impeachment of our President.
  After an exhaustive study, which included reading volumes of 
transcripts, watching the taped testimony and listening to the able 
arguments made by the House Managers, the White House counsel and my 
colleagues in the Senate, I have reached the conclusion that, beyond a 
reasonable doubt, the President committed both perjury and obstruction 
of justice as outlined in Articles I and II in the Articles of 
Impeachment.
  I also have concluded that the President's obstruction of justice was 
premeditated and undertaken over a long period of time beginning when 
he learned that Monica Lewinsky was placed on the witness list in the 
Jones case.
  It is particularly disturbing that he used his brilliant mind and 
superb interpersonal skills to sweep other people into his scheme, 
thereby impairing

[[Page S1506]]

their credibility, all to extricate himself from taking responsibility 
for his conduct. But for a conclusive DNA analysis, he may have 
succeeded in that scheme.
  By committing perjury and obstructing justice, the President is 
guilty of high Crimes and Misdemeanors. As constitutional scholar 
Charles Cooper said, ``The crimes of perjury and obstruction of 
justice, like the crimes of treason and bribery, are quintessentially 
offenses against our system of government, visiting injury immediately 
on society itself.''
  He violated his oath of office and failed to fulfill his 
responsibility under the Constitution, which provides that the 
President ``shall take Care that the Laws be faithfully executed.'' 
Judge Griffin Bell has correctly noted, ``A president cannot faithfully 
execute the laws if he himself is breaking them.'' The President has 
undermined the fundamental principle that we are a nation ruled by laws 
and not by men. There is no way in good conscience that we as a nation 
can have a lawbreaker remain as President of the United States when his 
conduct in office has included the very same acts that have resulted in 
the impeachment of Federal judges and have sent hundreds of people to 
prison. Ours is a nation of equal justice under the law.
  I believe the framers of the Constitution had a President like Bill 
Clinton in mind when they drafted the impeachment provisions in Article 
II, Section 4--a very popular, brilliant communicator with 
extraordinary interpersonal skills who abuses his power, violates his 
oath of office, and evades responsibility for his actions because he 
believes he is above the law.
  One who has committed high Crimes and Misdemeanors disqualifies 
himself from serving as President, Commander-in-Chief, and chief law 
enforcement officer. The President also represents much more than these 
titles and responsibilities. He is a symbol of the greatness of the 
American people. Presidential scholar Clinton Rossiter observed that 
the president of the United States is ``the one-man distillation of the 
American people.'' And, President William Howard Taft described the 
president as ``the personal embodiment and representative of their 
dignity and majesty.''
  By virtue of his own conduct, William Jefferson Clinton has forfeited 
his elected right to hold the office of president. I sincerely believe 
that this country can survive the removal of a popular president who 
has forfeited public trust. But, our country cannot survive the 
abandonment of trust itself.
  Mr. LAUTENBERG. Mr. Chief Justice, the Senate must now fulfill a 
weighty and solemn duty. For only the second time in the more than two 
hundred years since our founding fathers established the Constitution, 
we must vote on Articles of Impeachment against a President.
  When considering this issue, which goes to our core constitutional 
responsibilities as Senators, each of us must come to a conclusion 
based on his or her conscience. Guided by the Constitution, we must 
bring all of our moral beliefs, our education, our careers, and our 
experiences as public servants to the question. And we must try to 
reach a decision that will serve the best interests of the nation for 
generations to come.
  As I reflect on the impeachment proceedings, I think first of the 
range of emotions I have felt. From the moment I realized that the 
President had engaged in this shameful relationship, I have struggled 
with my thoughts.
  I was angry, of course. I was ashamed for the President, a talented 
man--someone I consider a friend. How could he risk so much with his 
disgraceful behavior?
  And I was saddened. I do not know how the President will reconcile 
himself to his family. I could imagine the embarrassment and the 
humiliation of the First Lady and his daughter Chelsea. I pitied them 
as they felt the searing glow of the public spotlight.
  I am sure that colleagues, on both sides of the aisle, have 
empathized with similar emotions.
  But now we must put those feelings aside. We have a very specific 
charge under the Constitution. That hallowed document delineates our 
duty. Under Article II, Section 4, we must determine whether the 
President has committed ``high Crimes or Misdemeanors'' requiring his 
removal from office.
  In my view, our founding fathers meant to set a very high standard 
for impeachment. Clearly, the phrase ``high Crimes or Misdemeanors'' 
does not include all crimes. But what are the crimes that meet that 
standard? I find the words of George Mason to be compelling. He 
understood the phrase to mean ``great and dangerous offenses'' or 
``attempts to subvert the Constitution.''
  When applying this standard, we must also consider the national 
interest. The founding fathers vested the impeachment power in the 
Senate, and not the judiciary, precisely because this body would be 
accountable to the people.
  In the words of Alexander Hamilton, only the Senate would ``possess 
the degree of credit and authority'' required to act on the weighty 
issue of whether to remove a federal official. In my view, this means 
that we must look not just at the facts and the law, but we must also 
try to determine what is in the best interests of the nation.
  But we should not read the polls, or some other temporary gauge of 
the public temperament. Instead, we must look back through history, and 
toward the future, to reach a decision that will reflect well on the 
Senate and the nation for generations to come.
  In my view, this case does not involve efforts to subvert the 
Constitution, and the national interest will not be served by removing 
the President from office.
  Before turning to the evidence, I want to express my concern with the 
way in which the Articles of Impeachment are written.
  They do not specify which statements and actions by the President are 
unlawful. Instead, they make general allegations. With this approach, 
we cannot fulfill our duty to the American people. The American people 
must know specifically what Presidential conduct justifies overturning 
an election.
  While the Articles could have been more clearly written, there is a 
more fundamental problem. There is simply insufficient evidence for a 
vote to convict. Whether you apply the standard of beyond a reasonable 
doubt, or even the lower standard of clear and convincing evidence, the 
House Managers have not proved their case.
  With regard to Article I, the evidence does not support a charge of 
perjury. The President may have been uncooperative and evasive. He 
certainly was misleading. But he never committed perjury as that term 
is defined in the law. Consequently, the President should be acquitted 
on Article I.
  There is also insufficient evidence to convict the President on 
Article II, which charges him with obstruction of justice. The main 
problem with this Article is that testimony from the principal 
witnesses do not support the allegations. Monica Lewinsky, Betty 
Currie, and Vernon Jordan testified that the President did not tamper 
with witnesses, conceal evidence, or take any other actions that would 
constitute obstruction of justice. All of the witnesses support the 
President's version of events.
  I realize that some of you may view the evidence differently. But I 
think we must still consider whether this is an appropriate case for 
the Senate to use the awesome power of impeachment to overturn a 
national election.
  I further ask you to consider the precedent we would set with a 
conviction of this President. We risk making the impeachment power 
another political weapon to be wielded in partisan battles.
  Our founding fathers warned against this. In the Federalist Papers, 
Number 65, Alexander Hamilton noted that the prosecution of impeachable 
offenses would ``connect itself with the pre-existing factions.'' And 
that this would create ``the greatest danger, that the decision will be 
regulated more by the comparitive strength of parties than by the real 
demonstrations of innocence or guilt.''
  Prior to the present case, the House of Representatives had seriously 
considered Articles of Impeachment against only two Presidents--Andrew 
Johnson and Richard Nixon. In the more than two hundred years since the 
Constitution was established, the House set the impeachment machinery 
in motion in only two occasions.
  Today, no one doubts that the serious abuses of our constitutional 
system by

[[Page S1507]]

the Nixon Administration warranted impeachment proceedings. And the 
bipartisan approach of Congress solidified President Nixon's decision 
to resign.
  But history has not been kind to those who pushed the impeachment of 
President Johnson upon the nation. Scholars agree that the charges were 
baseless--a purely partisan campaign. Indeed, Chief Justice Rehnquist, 
who has presided so effectively in this case, wrote in his book on 
impeachment that if the Senate had convicted President Johnson ``a long 
shadow would have been cast over the independence'' of the presidency.
  So for most of our history, the fears of our founding fathers have 
not been realized. Congress has not resorted to impeachment even when 
previous administrations faced far-ranging scandals--the Whiskey Ring 
scandal during the tenure of President Grant; the Teapot Dome scandal 
in the Harding administration.
  And more recently allegations that Presidents Reagan and Bush were 
not truthful regarding the Iran-Contra scandal.
  Historically, Congress has held its hand when circumstances might 
have warranted a pull of the impeachment lever. But contrast that 
history with the circumstances surrounding this case.
  President Clinton was a defendant in a civil lawsuit. In determining 
whether that lawsuit should be allowed to go forward while the 
President was in office, the Supreme Court of the United States noted 
that the case involved ``unofficial conduct.'' That case was eventually 
dismissed, and the plaintiff reached a settlement with the President.
  But with that lawsuit in place, the plaintiff's attorneys had license 
to probe into the President's personal life. The private lives of many 
people were paraded through the press.
  And then the Independent Counsel joined the hunt. Although he was 
originally appointed to investigate a real estate transaction in 
Arkansas, and even though he eventually cleared the President of any 
wrongdoing in that matter and other reckless accusations, the 
Independent Counsel turned his attention to a private affair.
  I think this background cautions against the use of the awesome and 
irrevocable power of impeachment. Think for a minute about how future 
partisans might proceed. We have a readily accessible legal system. 
Anyone with the filing fee can bring a lawsuit. And our laws provide 
great leeway in the discovery process.
  If we take the wrong path now, we can expect to see future Presidents 
hauled into court. They will be questioned repeatedly, and it will not 
be hard for skilled attorneys to hurl charges of perjury and 
obstruction of justice. We cannot allow the Presidency to be weakened 
in this way.
  Once again, we find the wisdom of our founding fathers providing 
guidance.
  James Wilson, who participated in the Philadelphia Convention at 
which the Constitution was drafted, observed that the President is 
``amenable to [the law] in his private character as a citizen, and in 
his public character by impeachment.''
  In other words, the legal system, our civil and criminal laws provide 
the proper venue for a President who has failed in his private 
character.
  And in this case, the legal system can and will continue to address 
the President's personal transgressions.
  The Paula Jones lawsuit has been settled. When he leaves office, the 
President could be subject to further prosecution. But there is simply 
no injury to our constitutional system, no aspect of what James Wilson 
called the President's public character, which must be remedied through 
a Senate conviction under the impeachment power. Of course, I 
understand the great pain inflicted by the President's private 
character. As I said earlier, his behavior was reprehensible. He has 
shamed himself, his family, and the nation.
  And I understand the desire to punish the President for his conduct. 
But we must remember the many ways in which the President has already 
been punished. He has suffered enormous embarrassment and humiliation. 
Beyond that personal pain, he has also been subject to public 
condemnation. Every Member of Congress is on the record rebuking his 
behavior.
  Of course, this may not satisfy some. They may want more punishment. 
But please remember--the purpose of the impeachment power is not to 
punish. Instead, impeachment serves to protect the nation from corrupt 
officials.
  So, to render a proper verdict, we must put aside the powerful desire 
to punish. And I submit that to impeach the President in this case 
would be a terrible use of the impeachment power, lacking 
proportionality and perspective.
  Now, we must step back from the partisan precipice. We must not 
weaken the Presidency for future generations. We must reject these 
Articles of Impeachment and help restore the balance of power between 
the branches of the government.
  Let us put this matter behind, heal the wounds inflicted by 
partisanship, and rededicate ourselves to the challenges facing our 
nation.
  Mr. BOND. On Friday, February 12, 1999, I voted to convict President 
William Jefferson Clinton on both counts of the Impeachment Articles 
brought by the United States House of Representatives charging that he 
committed perjury and obstruction of justice. My reasons follow.


                               Background

  On January 16, 1998, at the request of the United States Attorney 
General Janet Reno, the three judges of the United States Court of 
Appeals for the District of Columbia Circuit expanded the previously 
entered Order authorizing the Office of Independent Counsel Kenneth W. 
Starr to look into certain matters relating to a lawsuit brought 
against President William Jefferson Clinton by former Arkansas state 
employee Paula Jones alleging sexual harassment. Pursuant to that 
Order, Ms. Jones' attorneys issued subpoenas for evidence and deposed 
Mr. Clinton and others seeking information on a pattern of conduct that 
might be relevant to the issues in the Jones case.
  The President denied in a deposition in the Jones case and in a 
forceful statement to the American public that he had sexual relations 
with ``that woman,'' referring to Monica Lewinsky. Subsequently, 
however, Ms. Lewinsky turned over a stained blue dress that she had 
worn in an encounter with the President; a scientific examination 
revealed that the DNA on the dress was President Clinton's DNA.
  The Office of Independent Counsel convened a federal grand jury to 
look into the matter and deposed Mr. Clinton in The White House on 
August 17, 1998, about his participation in the Jones lawsuit.
  The Office of Independent Counsel then referred the matters developed 
in the investigation to the United States House of Representatives, 
which on December 19, 1998, voted two Articles of Impeachment against 
Mr. Clinton alleging that he committed perjury before the federal grand 
jury in four instances and that on seven occasions he had obstructed 
justice by tampering with witnesses and evidence in the Jones case 
proceedings.
  For the sake of brevity, I shall only cover several of the 
allegations and evaluate the evidence supporting them.


                              allegations

  Counsel for the President has admitted that there was an 
inappropriate relationship between the President and Ms. Lewinsky and 
that they had concocted a cover story to conceal their relationship and 
activities. On December 17, 1997, at approximately 2 a.m., Mr. Clinton 
telephoned Ms. Lewinsky after he learned that she had been summoned for 
a deposition in the Jones case. According to this testimony he called 
to tell her of the death of the brother of Mr. Clinton's secretary. Ms. 
Lewinsky states that he told her about the death of the brother, but 
that he also reminded her of their cover story and notified her that 
she was included on the witness list in the Jones case.
  According to Ms. Lewinsky's testimony, Mr. Clinton further stated 
that they might be able to avoid her testimony if she executed an 
affidavit. Although Mr. Clinton had also reminded Ms. Lewinsky of her 
cover story, the White House Counsel made much of the fact that Ms. 
Lewinsky said that the President did not tell her to file a false 
affidavit and did not link the cover story to the need to file an 
affidavit.

[[Page S1508]]

  I do not believe it is at all inconsistent with a scheme or out of 
the ordinary to note that the President would not make such a 
connection. As an experienced attorney, the President would know he 
would be in grave danger if he ever explicitly asked anyone to file a 
false affidavit or to lie under oath. To paraphrase a statement made 
during the trial by Vernon Jordan, ``He is no fool.'' He would have 
known that such a statement could be revealed by subsequent judicial 
inquiry.
  Mr. Clinton did not have to tell Ms. Lewinsky expressly to execute a 
false affidavit. She knew that in the absence of contrary instructions 
she was to continue to follow their story. She was referred by the 
President's best-friend Vernon Jordan to an attorney who drafted the 
affidavit for her. The President, through Mr. Jordan, was kept advised 
of the progress of the affidavit.
  During the time that Mr. Jordan was serving as liaison between the 
attorney and the President in the procuring of the affidavit, he was 
also pursuing a job search for Ms. Lewinsky, which he admitted was 
under his control.
  The President's lawyer was presented the affidavit and offered it 
into the evidence when the President was summoned before federal judge 
Susan Webber Wright to participate in the deposition on January 17, 
1998, by the Jones attorneys. The President's attorney, Mr. Bennett, 
referred to the deposition in evidence and stated that it showed that 
there ``is absolutely no sex of any kind in any manner, shape or form'' 
with Mr. Clinton. Mr. Bennett further stated, ``In preparation of the 
witness for this deposition, the witness (Mr. Clinton) is fully aware 
of Ms. Lewinsky's affidavit, for I have not told him a single thing he 
doesn't know  * * * '' (Clinton deposition transcript, Evidentiary 
Record, Vol. XIV, at p. 23.) Although the videotape of the deposition 
showed the President looking in the direction of the attorney when the 
affidavit was presented, Mr. Clinton subsequently stated that he was 
not paying attention and had no knowledge of the representations made 
by his attorney about the affidavit.

  I believe that to be totally incredible.
  The President had known that Ms. Lewinsky would be a prime subject of 
the deposition and he had asked Ms. Lewinsky to file an affidavit and 
took steps to be kept advised of the progress of that affidavit. 
Subsequent events showed that his attorney, Mr. Bennett did not at the 
time know the falsity of the affidavit and that Mr. Clinton was 
apparently the only one at the deposition who was fully aware of the 
fraud that was being perpetrated on the court.
  When Mr. Bennett later learned the falsity of the affidavit, he did 
what any attorney hates to do and that is to advise the court that he 
provided false information. He asked that the affidavit and his 
characterization of it be disregarded.
  I believe Mr. Clinton encouraged the execution of a false affidavit, 
secured job assistance to help prevent truthful testimony, and allowed 
his attorney to make false statements as alleged in Article II, 
paragraphs 1, 4, and 5.
  When Mr. Clinton testified before the federal grand jury on August 
17, 1998, he was asked:

       A. If he misled Judge Wright in some way then you would 
     have corrected the record and said, excuse me Mr. Bennett, I 
     think the judge is getting a mis-impression by what you are 
     saying?
       A. . . . I wasn't even paying much attention to this 
     conversation.
       Q. Do you believe, Mr. President, that you have an 
     obligation to make sure that the presiding federal judge was 
     on board and had the correct facts?
       A. I don't believe I ever even focused on what Mr. Bennett 
     said in the exact words he did until I started reading this 
     transcript carefully for this deposition.--(Deposition of 
     President Clinton, page 30, lines 2-5.)
  I therefore believe he provided perjurious, false and misleading 
testimony to the Federal grand jury concerning statements he allowed 
his attorney to make to a federal judge as alleged in Article I, 
paragraph 3.
  On December 28, 1997, the President met in his White House office 
with Ms. Lewinsky and exchanged gifts. During the course of the 
conversation Ms. Lewinsky raised the question of what to do with other 
gifts he had provided her and which had been subpoenaed by the 
attorneys for Paula Jones. According to Ms. Lewinsky, he made no 
definitive statement about the gifts.
  Very shortly thereafter, according to Ms. Lewinsky's testimony, Mr. 
Clinton's personal secretary Bettie Currie initiated a series of 
telephone conversations, in which in effect Ms. Currie communicated to 
Ms. Lewinsky that she understood from the President that Ms. Lewinsky 
had something for her. Pursuant to those telephone calls Ms. Currie 
picked up gifts from Ms. Lewinsky and took them back to Ms. Currie's 
apartment where she stored them under her bed.
  During the course of proceedings in the Senate, Ms. Lewinsky was 
asked in a deposition about these telephone calls and expanded upon her 
testimony about them. A prior statement by Ms. Currie that Ms. Lewinsky 
had actually initiated the call was recanted by Ms. Currie, and I 
believe the testimony of Ms. Lewinsky is credible. By hiding the gifts 
rather than presenting them to the Jones attorneys pursuant to the 
subpoena Ms. Lewinsky committed a felonious act and, if Ms. Currie had 
knowledge of the subpoena, she also committed a felonious act of 
concealing materials covered by a valid subpoena. Mr. Clinton, by 
orchestrating, facilitating, and encouraging the suppression of 
evidence under subpoena, also committed a felonious act. I, therefore, 
believe that the charge in Article II, paragraph 3, of the Impeachment 
Articles is proven.
  During the course of his deposition by the Jones attorneys, President 
Clinton continued to rely on his cover story and on the perjurious 
affidavit submitted by Ms. Lewinsky. During that deposition he referred 
repeatedly to Ms. Currie as one who would corroborate the cover story 
which he and Ms. Lewinsky had devised. Immediately after his testimony 
on Saturday, January 17, 1998, he called Ms. Currie and summoned her to 
come into his office on a Sunday, January 18, 1998. There he stated 
five rhetorical questions to Ms. Currie: (1) ``I was never really alone 
with her . . . right?''; (2) ``You were always there when Monica was 
there . . . right?''; (3) Monica came to see me and I never touched her 
right . . . right?''; (4) ``She wanted to have sex with me and I can't 
do that . . . ?''; (5) ``You could see and hear everything . . . 
right?''
  Each of these statements supported the position taken by the 
President in the Jones deposition, but each one of these statements was 
false. The President was transmitting to Ms. Currie what he wanted her 
to say should she be called as a witness in this case. For good 
measure, he even went back to her a couple of days later and walked her 
through the statements again. It is uncontroverted that he made those 
statements, but he attempted to justify them on the basis that he was 
trying to refresh his memory.
  His statements to Ms. Currie on January 18, 1998, and several days 
later constituted relating a false and misleading account of relevant 
events to influence corruptly the testimony of a witness in a federal 
civil rights action as alleged in Article II, paragraph 6, of the 
Impeachment proceedings.
  Subsequently, he also made statements to his subordinates including 
Sidney Blumenthal, John Podesta, and Erskin Bowles. The statements he 
made to them were also known by him to be false and were designed to 
provide misleading information through them which could be and 
subsequently was transmitted under oath in the judicial proceedings by 
the subordinates.
  His statements to his subordinates on January 21, 23, and 26, 1998, 
were false and misleading statements to potential witnesses in a 
federal grand jury proceeding to influence corruptly the testimony of 
those witnesses as alleged in Article II, section 7, of the Articles of 
Impeachment.
  At his federal grand jury testimony on August 17, 1998, Mr. Clinton 
falsely and corruptly denied he had attempted to influence the 
testimony of witnesses and impede the discovery of evidence in civil 
rights actions as set out in the analysis above. Thus, the committed 
the acts as charged in Article I, paragraph 4, the count charging 
perjury. (See Clinton grand jury transcript at 107-08, Evidentiary 
Record, Vol. III, Part 1 of 2, pp. 559-60.)
  I believe that the evidence presented on the above charges was clear 
and convincing that the President engaged in a continuing scheme to 
fabricate and establish in federal court proceedings a false story 
about his relationship with Ms. Lewinsky and that

[[Page S1509]]

through circumstantial evidence, the direct testimony of Ms. Lewinsky, 
Ms. Currie, Mr. Blumenthal, and others, plus the corroborating 
evidence, he was shown to have committed the acts charged.
  The totality of his actions can be judged in the success with which 
he maintained his cover story. Had it not been for the DNA on the 
stained dress, there is little likelihood that the false cover story 
would have been exposed for the lie that it was. In perpetrating that 
false and misleading story Mr. Clinton tampered with witnesses, 
obstructing justice in the civil rights lawsuit brought against him by 
Paula Jones. He also falsely misrepresented these acts in testimony 
before the grand jury August 17, 1998.


                      High Crimes and Misdemeanors

  Having resolved in my mind the question that clear and convincing 
evidence shows that William Jefferson Clinton obstructed justice and 
committed perjury before a grand jury, the next issue is whether these 
activities rise to the level of offenses for which removal from office 
is the appropriate remedy. Defenders of the President have said that no 
one would press charges in a case like this, that it was not grave 
enough to merit a criminal proceeding, and that it certainly was not 
sufficient to warrant removing the President from office.
  With respect to the seriousness of the offense, it is worthy of note 
that during the year 1997, 182 people were sentenced by federal judges 
for perjury and another 144 were sentenced for obstruction and witness 
tampering. These prosecutions were brought by Clinton Administration 
appointees and in many instances in front of Clinton-appointed judges.
  The case of Dr. Barbara Battaglia is particularly compelling. In a 
law suit brought by a patient of a Veterans Administration hospital 
alleging sexual harassment, Dr. Battaglia was asked in a deposition if 
she had had consensual sex with the plaintiff. Her answer to that 
question was a simple, ``No.'' When that denial was shown to be a lie, 
she was convicted of a felony and sentenced to house arrest with an 
electronic monitoring device. She has lost her ability to practice 
medicine and also her ability to utilize her law degree to practice 
law.
  The serious nature of these offenses is particularly clear when 
considered in the context of the proceedings. The United States Supreme 
Court had ruled unanimously that Mr. Clinton, as President, had to 
answer the lawsuit filed by Paula Jones. A federal judge was assigned 
to the suit and presided over the deposition in which Mr. Clinton 
testified and at which time he and his lawyer presented the false 
affidavit.
  It is totally inconsistent within the context of this case and the 
sound functioning of the judicial system to say that the Supreme Court 
meant that Mr. Clinton should respond to these charges but he was not 
bound to respond truthfully. His actions in procuring and using false 
affidavits, causing the hiding of subpoenaed evidence, and tampering 
with a potential witness by giving false information to use in any 
testimony effectively denied the plaintiff the civil rights the Supreme 
Court ruled she had. To say that the acts are not grave, not high-
crimes, and not a threat to the judicial system, is untenable. No 
lawyer could make such a statement in open court and not be subjected 
to the loss of a license to practice law.

  Likewise, his lies to a grand jury from his White House office were a 
serious challenge to the administration of justice.
  Moreover, the debates of the authors of the Constitution showed that 
they considered obstructing justice would warrant the President's 
impeachment and conviction. George Mason asked if the President could 
advise someone to commit a crime and then before an indictment or 
conviction use the power of a pardon to stop inquiry and prevent 
detection. James Madison responded that, ``If the President be 
connected, in any suspicious manner, with any person, and there be 
grounds to believe he will shelter him, the House of Representatives 
can impeach him.'' (See Elliott, Debates on the Adoption of the Federal 
Constitution, at 498.)
  Another argument has also been made by the White House counsel and 
supporters of the President that to remove the President from office on 
impeachment would be to nullify the election. This argument suggests 
that impeachment is never an appropriate remedy, provided the President 
is popular and the country is enjoying good times. The Office of the 
Presidency is not so brittle that it would be gravely damaged by 
removing the current President or any other President. The Founding 
Fathers certainly did not envision that impeachment could only apply to 
an unpopular President or one who was leading the country in hard-
times.
  At the height of a Cold War with United States forces engaged in 
Vietnam, impeachment proceedings against President Richard M. Nixon 
forced him to leave office. The country was not wounded, it did not 
lose its way; Vice President Gerald Ford assumed the Presidency and 
continued the course of government. In this case, Vice President Al 
Gore would assume office and would be expected to continue the policies 
of the Clinton Administration.
  The United States Senate in recent years did not shirk from driving 
from office a colleague accused of obstructing justice in a sexual 
harassment case. No one objected that we had ``nullified'' the votes of 
the citizens of his state.
  Some of my colleagues have argued that the President has been so 
strong and forceful in foreign policy and conducted such wise relations 
with other nations that we could not afford to lose him. That argument, 
too, smacks of a referendum on the President's conduct of office, not a 
judgment on his wrongful acts. If we were to judge impeachment on the 
basis of the policies of the President, then impeachment could always 
be expected to be purely a partisan matter turning on the approval or 
disapproval of formulation or implementation of policy by 
the President. The framers rightfully dismissed any option that the 
proper or improper administration of the regular powers of the 
President would be involved in a decision on impeachment, either 
positively or negatively.

  In addition, we have the precedents set by the removal by the Senate 
of judges who have been found to have committed perjury. During my 
tenure in the Senate we have twice removed judges for committing 
perjury because of the serious adverse impact jerjury has on our 
judicial system. If a judge is removable for committing the significant 
act of perjury, can the one who appoints the judge be held to a lower 
standard?
  The President not only appoints the judges, he appoints the Attorney 
General, the United States Attorneys, and the Supreme Court Justices. 
Certainly we should impose no lower standard on the person with the 
ultimate responsibility for the proper administration of justice than 
on those he appoints.


                               Conclusion

  It is precisely in good times, with the President high in the polls, 
that it is incumbent upon the Senate to exercise very thoroughly and 
carefully the responsibility under the Constitution to make the 
difficult decision on whether the President has committed high-crimes 
and misdemeanors warranting his removal from office. If we are to have 
a government of laws and not of men and not of public opinion polls, 
then we must judge the President on the evidence presented to us. I 
believe that the acts that he committed constitute high-crimes and 
misdemeanors warranting his conviction.
  I should note that the Senate made a serious mistake in beginning the 
proceedings by limiting the ability of the House Managers to call 
witnesses. The absence of witnesses to testify to the acts alleged as 
the basis of impeachment charges significantly impeded the progress 
toward resolving the allegations against the President. I trust that 
the Senate will not make the same mistake in future impeachment 
proceedings.
  Mr. ROBB. Mr. Chief Justice, colleagues, sitting in judgment of the 
President of the United States is not easy for any of us. It is 
particularly difficult for me because of the personal and political 
relationship I have had with this President over the last 20 years. We 
served together as Governors in the early eighties, as several of you 
did. We traveled together on foreign trade missions. We shared similar 
priorities for our States. At my urging, he

[[Page S1510]]

joined the fledgling Democratic Leadership Council, which would later 
become an intellectual and organizational resource for his Presidential 
campaign.
  From our earliest meetings, I recognized in him, as many of you have 
recognized, gifts of head and heart and a truly extraordinary range of 
political and communication skills that marked him with a potential for 
greatness. It was not as a friend, however, but as a U.S. Senator that 
I took an oath to render impartial justice under the Constitution in 
this impeachment trial. I was fully prepared to convict and remove the 
President from office if I concluded that the articles charged met the 
test of high crimes and misdemeanors as envisioned by the framers of 
our Constitution, and if the evidence convinced me of his guilt beyond 
any reasonable doubt. That is the standard I would require to remove 
this President or any President from office.
  As we wrestle with the decisions before us today, I believe that it 
is incumbent upon us to reflect on the consequence of these decisions 
tomorrow; for while this trial is about this President, it is also 
about the future of this Republic. We simply cannot escape the fact 
that what we do today will affect the strength and stability of our 
Nation because the actions we take, the precedent we set, directly 
affects the separation of powers and the independence of the Presidency 
as an institution.
  The writings of the framers and the overwhelming consensus of the 
scholarship that has followed demonstrate that the mechanism for 
removing a President was central to maintaining the delicate balance of 
power among the three branches of Government. The Founding Fathers 
struggled to resolve the tension between making it too difficult to 
remove a President, thereby creating a king, and making it too easy, 
thereby creating a weak Chief Executive who would serve at the pleasure 
of the legislature. As more than 400 scholars concluded last November, 
the lower the threshold for impeachment, the weaker the President.
  The resolution of this dilemma--where to set the standard for 
removal--occupied the brilliant minds of several Virginians who took 
part in our constitutional debates two centuries ago. When George Mason 
offered specific language to define an impeachment standard, James 
Madison worried about making the standard too low. In worrying, he 
replied that so vague a term would be equivalent to a tenure at the 
pleasure of the Senate. After much deliberation, our founders finally 
agreed that the President should be removed only for committing 
treason, bribery, or other high crimes and misdemeanors against the 
United States. Thereafter, as we all know, a Committee on Style, which 
had no authority to make substantive changes, dropped the last four 
words, considering them redundant.
  Alexander Hamilton defined impeachable activities as those that 
relate chiefly to the injuries done immediately to society itself. 
During the debate, Edmund Randolph, a Virginia Governor, reflected 
concerns. He stated that the Executive will have great opportunities of 
abusing his power, particularly in time of war when the military force 
and, in some respects, the public's money will be in his hands. 
Clearly, our founders created impeachment not to punish the President, 
but to protect the Republic. They had lived under a king and they 
didn't want another.
  History and common sense tell us, therefore, that the threshold for 
impeachment should be high--very high. It should be difficult, not 
easy, to impeach a President of the United States because impeachment 
is the ultimate sanction for protecting the Republic. It is a weapon to 
be respected and feared, but wielded only under the most compelling 
circumstances. Similarly, history and common sense tell us that 
removing a President is not the same as removing a Federal judge. In 
James Madison's records of the debate at the Federal Constitution, he 
wrote, ``The judiciary hold their places not for a limited time, but 
during good behavior.'' The Executive was to hold his place for a 
limited term, like the members of the legislature.
  Like them--particularly the Senate, whose Members would continue in 
appointment in the same term of 6 years--he would periodically be tried 
for his behavior by his electors, who would continue or discontinue him 
in trust, according to the manner in which he had discharged it. 
Likewise, removing a President is not the same as removing a member of 
the Armed Forces for violating the military code of conduct. The 
Uniform Code of Military Justice is required to maintain the good order 
and discipline for waging war and securing peace. And all of us who 
have served in the Armed Forces understood that we swore an oath to 
obey a code not required of any civilian, even those with the power to 
send us into harm's way--a civilian Commander in Chief, our Secretary 
of Defense, and Members of Congress.
  Finally, removing a President is not the same as punishing a citizen 
in a court of law. Like any citizen, a President can be fully punished 
in court after he leaves office, and the failure to convict him in an 
impeachment trial in no way precludes a subsequent criminal 
prosecution.
  If a President is subject to the law, then he is clearly not above 
it, as some have claimed.
  Some also argued that since the President's oath requires him to 
faithfully execute the laws, any violation of those laws should thereby 
warrant his removal from office. While that argument may be appealing, 
it simply was not the standard adopted by the framers. Their standard 
was narrowly confined to treason, bribery, or other high crimes or 
misdemeanors. And it is against this standard that we are called upon 
to judge the conduct of this President.
  I believe the President lied. When he came before the television 
cameras and addressed the American people, wagging his finger and 
denying that he had sexual relations with a subordinate employee, he 
lied. This offensive public conduct, which has caused me the greatest 
personal anguish, is an act that will be forever seared into our 
Nation's memory. His deception was calculated, politically motivated, 
and directed at each and every one of us.
  Though clearly reprehensible, this lie did not violate any law and 
was not the subject of any article of impeachment. So, while I am 
convinced that the President lied to us, I am not convinced beyond a 
reasonable doubt that he lied to the grand jury, which is the sole 
basis for the first of the two impeachment articles.
  Despite the apparent strength of the evidence, the House of 
Representatives defeated an article alleging perjury in the President's 
civil deposition. They voted to impeach the President for perjury based 
solely on his testimony before the grand jury. Article I alleges that 
the President willfully provided perjurious, false, and misleading 
testimony to the grand jury.
  I listened intently to the arguments presented by both sides, and I 
have read the President's grand jury testimony carefully. In my 
judgment, the President's grand jury testimony ultimately boiled down 
to a few irreconcilable discrepancies, and while often slippery, hair-
splitting, legalistic, and, in the words of the President's counsel, 
``maddening,'' was not perjurious beyond a reasonable doubt.
  On article I, therefore, I will vote not guilty.
  Article II alleges obstruction of justice, a crime difficult to prove 
because it requires a determination beyond a reasonable doubt about 
what a person intended by his words or deeds.
  In this case, it is extremely difficult to determine whether the 
President's intentions were to obstruct justice in a civil or a 
criminal proceeding, or whether his intention was to mislead his family 
and the Nation about an embarrassing personal relationship. While his 
intent is difficult to prove, the unconstitutional bundling of charges 
contained in article II is clear to me.

  Article I, section 3, of the Constitution clearly requires that in an 
impeachment trial no person shall be convicted without the concurrence 
of two-thirds of the Members present. The rule of law requires 
concurrence by two-thirds.
  While article I, in my judgment, violates this constitutional 
requirement, at least it focuses on a single event. Article II is 
flagrantly worse. Drafted in the disjunctive and containing 7 subparts 
each alleging a separate act of obstruction of justice, the bundling of 
these allegations would allow removal

[[Page S1511]]

of the President if only 10 Senators agreed on each of the 7 separate 
subparts. If, for example, 10 Senators voted to convict based solely on 
subpart 1 and a different group of 10 Senators voted to convict based 
on subpart 2, and so on, it would be possible to reach a total of 70 
votes for conviction. But that total would not have been reached with a 
two-thirds concurrence on any individual subpart.
  Such a pleading is not allowed under the Federal Rules of Criminal 
Procedure and would be thrown out by every Federal court in the land. 
Surely the founders did not envision removing a President from office 
if no more than 10 Senators could agree on a given allegation.
  Trying to justify this unconstitutional bundling by citing a similar 
approach in the Richard Nixon case is weak because the Nixon charges 
were not presented to the Senate. Trying to justify this 
unconstitutional bundling by citing the Senate impeachment rules is no 
more compelling since our rules cannot conflict with the Constitution. 
We simply cannot remove a President from office with an article of 
impeachment that so clearly violates constitutional standards that we 
are required by law to follow.
  On article II, therefore, I will vote not guilty.
  Thus, I will vote not to convict on both articles because the 
factual, legal, and constitutional standard for removal was not met.
  I am not prepared to say, however, that perjury and obstruction of 
justice are not impeachable offenses, because I believe it would be a 
mistake to attempt to do that which the founders chose not to do--to 
define what is impeachable with specificity.
  For impeachment to remain what our forefathers intended it to be--a 
deterrent to misconduct and a means to protect the Republic--future 
generations should be free in each case to examine the facts, apply the 
law, and follow the Constitution and to render impartial justice. That 
is the impeachment process we have inherited from those who came before 
us, and that is the precedent we bequeath to the ongoing chronicles of 
American history.
  The legacy of this trial, I believe, is not what becomes of one man. 
This trial is larger than one man. The legacy of this trial is that the 
Senate, sitting as a Court of Impeachment, proved worthy of the faith 
of our founders to render justice.
  No matter what judgment is rendered, however, this trial cannot 
exonerate the President. A vote against conviction is not a vote to 
condone his lying to the American people, nor does it suggest that any 
Member of the U.S. Senate believes that perjury or obstruction of 
justice charges are anything but serious. They are very serious 
charges.
  Sadly, the vote we are poised to take on these charges has divided 
our Nation. In the eyes of too many of our citizens, this vote will 
represent either a nonmilitary coup attempt against a duly elected 
President or a victory for those bent on accelerating the moral decline 
of the Nation. In truth, this vote represents neither. A vote for 
acquittal indicates nothing more and nothing less than what it says. 
The case to remove the President from office was not proven.
  We sit in judgment today not because we are free from human 
failings--I certainly have my share--but because our forefathers 
bestowed upon the Senate the responsibility of protecting the Republic 
by judging the President when articles of impeachment are exhibited by 
the House of Representatives. In doing so, they carefully and 
deliberately limited the scope of our judgment.
  We are judging the President in his capacity as President, and we are 
called upon to decide only one issue--whether he should be removed from 
office. The Senate does not have the duty nor the capacity to rule on 
the broader character of the President. In our limited role, we are not 
called upon to judge him as husband and father, for that is the 
province of his family. We are not called upon to judge him as accused 
citizen, for that is the province of the courts. We are not called upon 
to judge him as sinner, for that is the province of God. And we are not 
called upon to judge his legacy, for that is the province of history.
  Mrs. BOXER. Mr. Chief Justice, thank you for your dignity. And to 
both our leaders, thank you for your patience.
  Colleagues, I will vote to acquit the President, and it is not 
because his poll numbers are high or because the economy is good. And 
it is not because Bill Clinton is a Democrat.
  When I was in the House of Representatives, an impeachment resolution 
was filed against Republican President Ronald Reagan--an impeachment 
resolution because of Iran-Contra, which involved selling arms to a 
terrorist nation with the proceeds going to the Nicaraguan contras. 
This was against the law of the United States of America--against the 
law--against the rule of law.
  I voted for that law, but I never went on that impeachment resolution 
against Ronald Reagan because I felt it would have hurt the country and 
because there was no bipartisan support for it.
  I think the same should be said of this impeachment. There is no 
bipartisan support for it and the President's removal would hurt the 
country.
  One more preface: It has been said that what the President did in 
this case was worse than what Senator Packwood did.
  In this case, we have a consensual affair, wanted by both parties. It 
was irresponsible and indefensible: a young woman, a relationship wrong 
in every way, a president trying desperately to hide the affair.
  The young woman was secretly tape recorded and forced to testify. Her 
mother was forced to testify.
  The more than 20 women who complained about Senator Packwood alleged 
forced sexual misconduct against them. One victim was 17 years old. 
They wanted to tell their stories.
  So each of us can decide for himself or herself the relationship of 
one case to the other. But surely that is not the issue before us.
  Neither is the Paula Jones case, which was thrown out of court by a 
Republican female judge who ruled that there was no sexual harassment 
by the President. Testimony about a consensual sexual affair was 
immaterial.
  Yes, the case was later settled, but that doesn't change its history: 
no sexual harassment, determined by a Republican female judge.
  So, Senator Packwood is not before us, nor is Paula Jones. What is 
before us is the sanctity of the Constitution.
  Let me now offer an apology to my constituents for voting in favor of 
the Independent Counsel Law in its current form--a law that has given 
one person an unlimited budget, unlimited scope, unlimited time and an 
unlimited ability to hurt people, and to hurt them badly.
  The Senate is now sitting as a court of impeachment, primarily 
because, for over four years, we had an Independent Counsel spending 
more than $42 million searching for an impeachable offense.
  And while I condemn the President's behavior, it was no excuse for 
the Ken Starr witchhunt, which went from a real estate deal, to several 
other fruitless investigations, to a sex deal built around illegally 
recorded phone conversations with someone named Linda Tripp. Linda 
Tripp, who says she's like all of us. Heaven help us if all of us act 
like Linda Tripp, secretly recording our dear friends. What a country 
this would be!
  I also want to comment on one other matter which is personal to me, 
and that is my daughter's family connection to the First Lady.
  While none of my Senate colleagues questioned the propriety of my 
participation in the impeachment matter--for which I thank you all--I 
was the target of a barrage or questions by the media and others 
outside this body.
  I just want to say that yes, my daughter is married to the First 
Lady's brother, a brother who loves and admires his sister and doesn't 
want to see her hurt. So, I am far from being a defender of the 
President's behavior.
  But I am a fierce defender of our Constitution.
  That is why I have joined a small number of senators, led by the 
distinguished senator from West Virginia, in fighting amendments to 
that precious document.
  Believe me, being against the line-item veto and the balanced budget 
amendment were not popular positions in my state; my positions made my 
reelection tougher. But I have never

[[Page S1512]]

doubted that defending the Constitution is worth risking my Senate 
seat, which I cherish so much.
  And it is because of my deep reverence for the Constitution that I 
believe we must reject the articles of impeachment before us today.
  Why? Because the high crimes and misdemeanors constitutional 
requirement for removal has not been met--not even close.
  The Constitution does not say remove the President if he fails to be 
a role model for our children. It does not say remove the President if 
he violates the military code of conduct, or the Senate Ethics Code. It 
does not say remove the President if he brings pain to his family.
  It says very clearly that the President shall be impeached and 
removed from office only for committing treason, bribery or other high 
crimes and misdemeanors.
  In his Commentaries on the Constitution, Justice Joseph Story 
endorsed the view that ``those offenses which may be committed equally 
by a private person as a public officer are not the subject of 
impeachment.'' This means that presidential impeachable offenses are, 
generally, acts which could not be done by anyone other than the 
president.
  Impeachment and removal from office was not meant to be a punishment 
of the President, but rather a protection of the country from a tyrant 
who would use his or her power against the people and the Constitution.
  This President is not a tyrant who is threatening our democracy and 
freedom or the delicate balance of powers set up by our Constitution. 
So the ``high crimes and misdemeanors'' standard established by the 
Constitution has not been met in my view.
  We must also reject these articles because there is every reason to 
doubt the House managers' case on perjury and obstruction of justice. 
They have presented not one shred of direct evidence for their claims, 
and the details of their circumstantial case have been decimated in 
many respects. As one manager said on national television, he couldn't 
win the case in a court of law as it was presented in the House.
  I don't see how the case was strengthened in the Senate. In fact, I 
believe that it was weakened in the Senate.
  When you have clear statements by Monica Lewinsky that the President 
never, ever told her to hide gifts and never discussed the contents of 
her affidavit--when you have Betty Currie saying she never felt 
intimated by the President and Vernon Jordan saying the job search was 
never connected to anything else--it seems to me there is substantial 
doubt on both counts.
  That leads to another point. Rejecting these articles of impeachment 
does not place this President above the law. As the Constitution 
clearly says, he remains subject to the laws of the land just like any 
other citizen of the United States.
  As Article I, Section 3 of the Constitution says, the President 
``shall . . . be liable and subject to Indictment, Trial, Judgment and 
Punishment, according to Law.'' So it should be a comfort to those who 
believe the President committed crimes surrounding his affair that the 
President, indeed, is subject to the rule of law--our Founders made 
that certain.
  At this point, I want to thank Senator Tom Harkin for his challenge 
to the House Managers that the Senate is not a jury. In so ruling, 
Chief Justice Rehnquist, in my view, gave us the charge to look at the 
big picture, and that is very important.
  Part of that picture is how the House of Representatives acted in 
this matter. I served in the House for ten years, and I never saw the 
minority party denied a vote on an alternative of their choosing in an 
important matter. Yet Democrats and moderate Republicans were denied a 
vote on censure, and I believe this was a disaster for democracy in 
that body.
  Listen to what a Republican House Member who voted against 
impeachment wrote to a constituent:

       I regret that Congressional Republicans were so blinded by 
     their opposition to President Clinton that they voted to 
     impeach him rather than stand by the traditional principles 
     of their Party. I also regret that threats were made against 
     me by the Republican leadership in an attempt to keep me from 
     voting my conscience.

  Those are the words of one of the five brave Republicans who voted 
against impeachment in the House. To me that speaks volumes about the 
kind of illegitimate process that got us here, and I believe in my 
heart that history will judge the House proceedings very harshly.
  But I believe that the Senate, if it rejects the articles in a 
bipartisan way, will be viewed in a better light, and history will say 
that in 1999 the Senate decided that impeachment should not be used by 
one party to overturn the results of a presidential election that it 
did not like.
  As Chief Justice Rehnquist wrote of the Senate acquittal of President 
Andrew Johnson in 1868:

       The importance of the acquittal can hardly be overstated. 
     With respect to the chief executive, it has meant that as to 
     the policies he sought to pursue, he would be answerable only 
     to the country as a whole in the quadrennial presidential 
     elections, and not to Congress through the process of 
     impeachment.

  If I may, Mr. Chief Justice, I understand from your wise words that 
the President does not and should not serve at the pleasure of the 
House and Senate.
  The Senate did the right thing in 1868--and by its decision not to 
remove the President, it brought stability to our nation. We should do 
no less now.
  Voting against the articles of impeachment is the right thing to do 
to keep faith with our Constitution and to keep faith with our 
democracy for generations to come.
  Mr. MACK. Mr. Chief Justice, today the Senate finds itself at an 
unlikely crossroads in American history. We have assembled as a court 
of impeachment to sit in judgement of our President, William Jefferson 
Clinton, on the charges of perjury and obstruction of justice. We have 
worked our will in this matter according to a process rooted in English 
common law, written by our Founders into the Constitution, and 
exercised against the Chief Executive only once before in American 
history.
  This is not a task to be taken lightly, and we have not arrived 
easily at our decision. The Senate today is engaged in weighty 
struggles that go to the very heart of our private and public lives. We 
are at an unlikely juncture between principle and public opinion, 
repentance and the rule of law, perception and punishment, forgiveness 
and findings of fact. These are difficult issues, Mr. Chief Justice. We 
approach our task fully aware that our decisions today will reverberate 
across this great land and throughout the length and breadth of 
history.
  There has been much discussion about how we got here. And while the 
answer to that question may be varied in all its permutations, then 
amplified in the echo-chamber that is our modern public debate, it can 
be said with assurance that this whole unseemly business began when the 
President, caught in an improper private act, took deliberate steps to 
conceal it. And for all the other parties blamed for our presence here 
today--the media, the independent counsel, the political factions 
opposed to the President, the House of Representatives--it must be 
clearly understood that this process began with the deliberate and 
wilful acts of the President of the United States to lie in a Supreme 
Court sanctioned civil rights inquiry and obstruct the due course of 
justice. It all started with the high-handed disregard for the law 
exhibited by the nation's Chief Executive. It ends today.
  Mr. Chief Justice, when the sound and fury of the moment has passed, 
and this episode can be observed with the objectivity that comes with 
the passage of time, I believe it will be self-evident that we have 
followed the Constitution to the best of our abilities. In a free, 
democratic society such as ours, the foundation of freedom is an 
independent judiciary, the rule of law, and most importantly the 
Constitution. Our Constitution is the framework for American society, 
and I have been constantly reminded throughout these proceedings of the 
importance of our duty to honor the dignity of this document.
  The magnitude of this undertaking deserves no less than a sincerity 
of purpose and an absolute confidence in the wisdom of our Founders. 
The American people should not be swayed by those who argue the 
prominence of this case--in all its tawdry and unseemly detail--has 
made unnecessary a thorough process of determining the truth.

[[Page S1513]]

 We stand in judgement of the President. Our decisions will be 
remembered throughout history. Our precedent may be followed by future 
Senates. Yet, still we have heard throughout this exercise the 
unfortunate call to end these proceedings, save a few weeks, and inject 
the politics of expediency into a monumental Constitutional 
undertaking. I find these arguments display a remarkable lack of 
confidence in the sound and just system outlined by our Founders to 
address very serious charges levied against the President of the United 
States.
  I am grateful the Senate rejected those calls and put in place a 
responsible mechanism for the thorough airing of fact and argument. I 
am confident our process during this trial, though far from perfect, 
was appropriate. We allowed time for detailed presentations on the part 
of the House of Representatives and the President. We held an extensive 
question-and-answer session to review and clarify matters presented by 
both sides. And we have allowed for the appropriate and necessary 
deposition of key witnesses. Unfortunately, the simple fact is that the 
outcome of this matter was, in many minds, predetermined. In spite of 
this, the integrity of the process was, time and again, fought for and 
protected. Now--today-- it only remains for us to cast our votes.


                               Background

  I wish to address my remarks not so much to the people listening in 
this room today, but rather to those future generations who will look 
back at the record and transcripts for guidance, direction, and a more 
thorough understanding of the process that played out in this chamber 
during the first two months of 1999. I mentioned earlier the 
significance of the Constitution. I cannot stress enough the essential 
role that this historical document has played in the trial of William 
Jefferson Clinton. This document laid the framework for what has taken 
place. Be it understood, the Senate tried the President because the 
Constitution requires that we do so. There is no exception for popular 
Presidents, such as William Jefferson Clinton. The Constitution 
provides for this process to be applied to everyone evenhandedly.
  Although the trial of this President was not a trial in the 
traditional sense, it is important to note that if the impeachment of a 
President presents itself again, there is nothing restricting a more 
traditional trial from occurring. In fact, I would encourage future 
Senates to utilize a judicial proceeding more closely aligned to a 
typical courtroom trial. Every impeachment trial will have its own 
dynamic environment, determined by the political and social context in 
which it occurs. The trial of William Jefferson Clinton occurred in a 
prosperous time. The citizens of this nation are largely satisfied, the 
President enjoys consistently high approval ratings, and the economy is 
outstanding. Impeaching and then trying the President has not 
engendered popular public support. I make these observations for future 
generations who reflect on this process simply to explain the mood of 
our nation and the political environment in which this proceeding 
occurred. As a result, we should not deceive ourselves into believing 
that public opinion did not impact this process. I would like to 
believe, however, that the competing demands of expediting the process 
versus honoring our Constitutional duties created a struggle that 
produced the most fair trial possible under the circumstances. 
Accordingly, the process we followed and the rules complied with may 
not be appropriate for the next trial. The decisions made in this 
environment should not be considered to set precedent that is 
inflexible. In fact, the precedent we set deserves thoughtful 
consideration and reasoned critique when reflected upon in the years 
and decades to come.

  In that light, our official duties in this matter began on December 
19, 1998, when the United States House of Representatives impeached the 
President, William Jefferson Clinton. After listening to the evidence, 
reading the trial memorandums and the record, and carefully considering 
the arguments presented by both the House Managers and White House 
counsel, I believe the President is guilty of both articles.
  Before I address the merits of the case against the President, I 
think it is necessary to discuss whether the crimes of perjury and 
obstruction of justice constitute high crimes and misdemeanors as 
contemplated by the Framers of our Constitution. This topic has been 
the subject of much controversy in the past months.
  It is true that private acts are the genesis of the matter before us. 
Had the acts stayed private, we would not be here today. The President, 
however, brought these private acts under our public purview and 
created a matter of public concern when he used his position and his 
power to deny and obstruct the civil rights of Paula Jones.
  Contrary to what has been asserted, this is not just a case about a 
sexual encounter between the President and a young White House intern. 
This instead is a case about depriving Paula Jones, an individual who 
sought and was granted the right to file a civil rights action against 
the President, of her constitutional right to a day in court, a right 
which nine justices of the Supreme Court unanimously decided that she 
deserved. And--almost unbelievably--on the heels of this Supreme Court 
mandate, the President seemed to strengthen his efforts to deny Paula 
Jones' civil rights. Once these acts moved into the public arena, 
forming the basis for charges as serious as perjury and obstruction of 
justice, it is my opinion these acts became high crimes and 
misdemeanors as envisioned by our Founders. While our only precedent 
involves the impeachments of federal judges, I am satisfied the 
standards used in these cases also apply to the charges levied against 
the President.
  The President of the United States is the head of the Executive 
Branch and the Chief Law Enforcement Officer of this nation. When the 
Founding Fathers established our tripartite system of government, it 
was decided that the three branches of government would operate as 
checks and balances on one another. As a result, no branch would be 
more powerful than the other. This structure is at the very core of our 
success as a Republic.
  By obstructing justice and lying under oath, William Jefferson 
Clinton violated his duty as Chief Law Enforcement Officer, 
disrespected the Judicial Branch of the government, and undermined the 
foundations of our judicial system's truth-seeking process. If I were 
to determine that the President's actions did not constitute high 
crimes and misdemeanors, I would be asserting that the Executive Branch 
and the Office of the Presidency are more important than the Judicial 
Branch, and that the President of the United States is not obligated to 
abide by the rule of law. As a citizen and as a Senator, I cannot, in 
good faith, ignore the separation of powers argument. In my view, the 
President's conduct was in violation of the rule of law and his actions 
have betrayed the trust of the people of the United States. It is my 
firm belief that the serious offenses committed by William Jefferson 
Clinton are high crimes and misdemeanors and warrant impeachment, 
conviction, and removal from office.
  Amazingly, we continue to hear the argument that although the 
President's actions rise to the level of high crimes and misdemeanors, 
he should not be removed from office. The Constitution provides if a 
President is found guilty of high crimes, then he is automatically 
removed from office. Our Constitution does not allow for finding the 
President guilty of high crimes and misdemeanors, and then permitting 
him to stay in office. Only an amendment to the Constitution would make 
such a step permissible.
  There were several points during the trial of the President when I 
had a visceral reaction to certain charges raised by the House 
Managers. This reaction occurred, each time, at precisely the point 
when the Managers discussed the President's strategy to attack the 
character of Monica Lewinsky, Kathleen Willey and others. The callous 
disregard for the soul of another human being and the unsympathetic 
wounding of the character of another carried out by the President using 
the apparatus of the Presidency is chilling and deserves condemnation 
by those who cherish freedom.

  Before I proceed to my view of the specific articles, it may help to 
explain that I approach this process unencumbered by a law degree. 
While that in no way gives me license to disregard the legal aspects of 
the matter

[[Page S1514]]

before me, it does permit me to translate legal concepts into layman's 
terms. As I worked my way through the voluminous record and sat through 
days of the trial, I found it easiest to understand this case if I 
approached it in chronological order. Given that, I will discuss the 
Obstruction of Justice count first, because in the course of this 
tragic series of events, I believe the President started down this 
slippery slope by the actions he took, as opposed to the words he 
spoke. Sadly, the words, uttered under an oath to tell the truth, came 
later.


                         Obstruction of Justice

  I view obstruction of justice, in its most simple terms, as actions 
that somehow interfere with the fact-finding or truth-seeking mission 
of a lawsuit. The record before us is replete with examples which, in 
my opinion, prove that the President of the United States intended to, 
and did in fact, obstruct justice. Specifically, I believe the 
President obstructed justice by corruptly engaging in, encouraging, and 
supporting a scheme to conceal evidence that had been subpoenaed in the 
Jones case; by encouraging Ms. Lewinsky to file a false affidavit in 
the Jones case; by allowing his attorney to make false and misleading 
statements to a federal court judge; by relating false and misleading 
statements to Ms. Currie and presidential aides in order to influence 
their testimony; and by intensifying and succeeding in an effort to 
secure job assistance for Ms. Lewinsky in order to encourage her to 
testify favorably toward the President in the Jones case.
  I believe the first example of obstruction occurred when the 
President was issued a subpoena in the Paula Jones case. This case was 
a federal civil rights action in which the President was sued for 
sexual harassment, hostile work environment harassment, and intentional 
infliction of emotional distress. As part of the discovery process in 
the Jones case, subpoenas were issued to several former state and 
federal employees suspected of having sexual relations with the 
President. Included in these was a subpoena which requested the 
President to produce the gifts he had received from Monica Lewinsky. 
This request was denied by the President on five different occasions, 
as ultimately five separate subpoenas were issued. As a last resort, 
Judge Wright granted Paula Jones' motion to compel the President to 
produce gifts. The President, however, still did not turn over the 
gifts and instead replied that he had none. The President's 
unwillingness to comply is ironic given that later--in his grand jury 
testimony--he stated that he receives and gives hundreds of gifts a 
year, and that the whole gift-giving concept is inconsequential to him. 
The President's behavior belies his testimony.
  The gift concealment continued beyond the President refusing to turn 
over the presents Ms. Lewinsky gave him. Ms. Lewinsky was also 
subpoenaed in the Jones case and was asked to turn over gifts the 
President had given to her. According to Ms. Lewinsky, when she 
suggested to the President that the gifts be hidden, he responded that 
he would have to ``think about it.'' I am aware that the record does 
not reflect a specific directive by the President to Ms. Lewinsky to 
hide the gifts. My reading of the record and my interpretation of the 
evidence, however, leads me to the inescapable conclusion that the 
Chief Law Enforcement Officer of the country, and a well-educated 
lawyer to boot, did not fulfill his duty to turn gifts over himself and 
did not abide by his duty again when Ms. Lewinsky asked him what she 
should do with her gifts.
  There is some confusion over exactly how the President's secretary, 
Ms. Currie, came to be in possession of the gifts that the President 
gave Ms. Lewinsky. I find it compelling, however, that when the 
President and Ms. Lewinsky met on the morning of December 28, Ms. 
Lewinsky suggested that the gifts the President had given to her should 
be hidden. A few hours later phone calls were made from Ms. Currie to 
Ms. Lewinsky. On that same afternoon, Ms. Currie arrived at Ms. 
Lewinsky's residence to pick up the gifts, and ultimately, the gifts 
were found under Ms. Currie's bed. In my view, this is sufficient 
evidence to connect the President's involvement with the gift 
concealment. I find it hard to believe that Ms. Currie would on her 
own, without influence from the President, decide to hide Ms. 
Lewinsky's gifts.
  As an aside, I feel compelled to point out a pattern that seems to 
have evolved during this administration. The hiding of evidence in a 
personal residence harks back to the mysterious reappearance of the 
Whitewater billing records in the White House residence several years 
ago. There seems, in my mind, a proclivity on the part of the President 
to cause the disappearance of key evidence whenever wrongdoing is 
alleged. Hence, gifts under the bed equate to billing records in the 
White House residence.
  In view of the President's actions up to this point, I am convinced 
the President was involved in Ms. Currie's receipt of the gifts. The 
simple truth is that, in spite of repeated requests, the gifts the 
President received were never produced and only some of the gifts given 
to Ms. Lewinsky were produced. In my view, it was no accident that 
gifts which were not handed over were instead hidden beneath the 
President's secretary's bed.
  As the Jones case progressed, so did the President's determination to 
obstruct justice. As fate would have it, Monica Lewinsky was named as a 
witness in the civil rights action. Upset and scared, the President 
suggested to Ms. Lewinsky that if she were subpoenaed she could file an 
affidavit in an effort to avoid testifying in a deposition. Ms. 
Lewinsky did in fact file an affidavit. The affidavit was claimed by 
the President to be truthful because of what Ms. Lewinsky understood 
``sexual relations'' to mean at that time.

  While the President maintains the truth of the affidavit even until 
this day, Ms. Lewinsky testified before the grand jury that, in fact, 
it was not a truthful affidavit. Specifically, she testified before the 
grand jury that she was willing to submit a false affidavit under the 
penalty of perjury because she did not think that her affair with the 
President was anyone's business. I assume that we would still not have 
Ms. Lewinsky's admission that the affidavit was false, but for the fact 
that she was in fear of being prosecuted for perjury herself.
  I think the President's behavior in regard to the affidavit of Ms. 
Lewinsky fits squarely in the definition of obstruction of justice. I 
am not impressed with the President's argument that this conduct became 
``irrelevant'' when Judge Wright later determined that the Lewinsky 
matter was not essential to the Jones lawsuit.
  On the contrary, I am compelled by the fact that when the President 
was weaving this contorted web, it was his clear intent to conceal his 
relationship with Ms. Lewinsky. At the time the Lewinsky affidavit was 
prepared, the President could not have known Judge Wright would later 
determine that the Lewinsky matter was unrelated to the Jones lawsuit 
due to the consensual nature of the President and Ms. Lewinsky's 
relationship. Rather, the President was making every effort to see that 
nothing about his relationship with Ms. Lewinsky was disclosed.
  The next crucial event arrived on the day of the President's 
deposition in the Jones case. At the deposition, the President's 
attorney, Bob Bennett, stated that Ms. Lewinsky's affidavit was true. 
Specifically, Mr. Bennett stated that ``there is no sex of any kind, 
shape, or form.'' The President claims, not surprisingly, that he was 
not paying attention when his attorney made these statements, and in 
addition, that the Lewinsky affidavit was technically true because the 
word ``is'' means ``at this time.''
  My review of the President's videotaped testimony leads me to believe 
the President was paying attention to Mr. Bennett. When watching the 
videotape, it is apparent to me the President's attention is riveted on 
every person who speaks. He is attentive and his eyes track the 
speakers as they engage in dialogue. I believe the President purposely 
allowed Mr. Bennett to mislead the court. Part of the record before us 
includes a letter from Mr. Bennett asking the trial court not to rely 
on the affidavit or his comments regarding the document. Thus, it 
appears Mr. Bennett also believed that the President allowed him to 
mislead the court.
  Moreover, I am not persuaded by the President's argument that the 
affidavit

[[Page S1515]]

was technically true because ``is'' means ``at this time.'' I am 
offended by the President's lack of respect for the truth-seeking 
process our justice system is designed to foster and protect. Indeed, I 
am disturbed that the President would attempt to manipulate each and 
every word. To take the President's interpretation of ``is'' to its 
logical conclusion that nothing was occurring at that very minute is 
ridiculous.
  Clearly, things did not go well at the Jones deposition. In fact, the 
President admitted later in his grand jury testimony that he was 
surprised by the depth of the inquiry regarding Monica Lewinsky. This 
probing questioning made the President increasingly desperate. On 
Saturday, after the President's deposition, he called his secretary, 
Ms. Currie, and asked her to come to the White House the following day. 
Both the President and Ms. Currie testified that such a Sunday meeting 
was out of the ordinary. When Ms. Currie arrived, the President called 
her into the Oval Office and made several statements, which he later 
described as questions, regarding Monica Lewinsky. Ms. Currie testified 
before the grand jury, that the President said the following to her:

       I was never really alone with Monica, right?
       You were always there when Monica was there, right?
       Monica came on to me, and I never touched her, right?
       You could see and hear everything, right?
       She wanted to have sex with me, and I cannot do that.

  This conversation was repeated between the President and Ms. Currie 
again two days later. Though Ms. Currie testified that on both 
occasions she felt ``no real pressure'' to agree with the President, 
she did nonetheless think he wanted her to agree with him. And, agree 
she did.
  Lawyers for the President have defended his actions by stating that 
the President was refreshing his memory with Betty Currie because he 
was aware that the media frenzy regarding Monica Lewinsky was about to 
break loose. I find this explanation unconvincing for numerous reasons. 
The first, and perhaps most obvious reason is that a person does not 
typically refresh his recollection with statements he knows to be 
false. It is beyond belief that the President could assert such a 
defense. He knew he was alone with Ms. Lewinsky, and even he testified 
he would have been an ``exhibitionist'' if he had conducted these acts 
in public view. In fact, when asked during the grand jury proceedings 
if Ms. Currie was nearby when he and Ms. Lewinsky had intimate contact, 
the President responded: ``I never--I didn't try to involve Betty in 
that in any way.'' Further, the President's statements to Ms. Currie 
implying that she was always present, and that she could see and 
hear everything, defy logic by indicating that Ms. Currie was always 
with the President and Ms. Lewinsky. The President clearly knew that 
was not the case.

  The sum of this evidence convinces me the President was not only 
obstructing justice by tampering with a potential future witness, but 
also violating the gag order that had been put into effect by Judge 
Wright in the Jones case. The irony here is that one reason Ms. Currie 
became a potential witness was due to the President's own urging. 
Throughout the Jones deposition the President repeatedly offered ``you 
should ask Betty.'' Then, on the very next day following these remarks, 
he summoned Ms. Currie to the White House and asked and answered his 
own leading questions. Importantly, the following week, Ms. Currie was 
subpoenaed to testify in the Jones matter.
  I have also concluded the President's conversations with his aides 
concerning his relationship with Ms. Lewinsky constitute witness 
tampering. The President told his aides, John Podesta, Sidney 
Blumenthal, and Erskine Bowles, misleading and untrue statements about 
his relationship with Monica Lewinsky. In fact, Mr. Podesta testified 
in the grand jury proceedings that the President was extremely explicit 
in his comments about denying any physical relationship and any sexual 
contact with Ms. Lewinsky.
  Although the President's approach to this group of potential 
witnesses differed from his approach to Ms. Currie in that he did not 
ask this group to agree with his statements, I find these conversations 
equally disturbing. To mislead his key aides, who he admitted might be 
called to testify before the grand jury, demonstrates that there are no 
bounds on the President's attempts to protect himself. He was willing 
to mislead any person who might have blocked his intricate obstruction 
plan.
  In addition, I believe that the President obstructed justice by 
intensifying and succeeding in an effort to secure job assistance for 
Ms. Lewinsky in order corruptly to prevent her from truthfully 
testifying in the Jones case. Although the President promised Ms. 
Lewinsky assistance with her New York job search prior to her name 
appearing on a witness list in the Jones case, it seems odd and much 
too coincidental that the President's assistance intensified after he 
learned that Ms. Lewinsky was on the witness list.
  In October, Ms. Lewinsky expressed her interest to the President in 
moving to New York and finding a job. In early November, Ms. Lewinsky 
had a meeting with Vernon Jordan to discuss potential jobs in New York 
City. Ms. Lewinsky testified before the grand jury that this meeting 
resulted in no activity taking place. However, unbeknownst to Ms. 
Lewinsky, her job search would take a 360 degree turn in December. 
Possibly the most important day was December 6, 1997, when the 
President learned that Ms. Lewinsky's name had appeared on a list of 
potential witnesses in the Jones case. A little over a month later, Ms. 
Lewinsky was offered and accepted a job with Revlon in New York City.
  Because I feel the sequence of events that took place in December is 
extremely telling; I will lay these events out. On December 6, the 
President learned Ms. Lewinsky was a potential witness in the Jones 
case. On December 7, the President and Mr. Jordan met at the White 
House. According to both parties, however, Ms. Lewinsky was never 
discussed. On December 8, Mr. Jordan received Ms. Lewinsky's resume by 
courier. On December 11, Mr. Jordan met with Ms. Lewinsky and made 
phone calls to various New York companies on her behalf. On December 
17, after a job in New York seemed like a much more likely prospect for 
Ms. Lewinsky, the President telephoned Ms. Lewinsky at 2:00 a.m. to 
inform her that her name was on a witness list in the Jones case. On 
December 19, Ms. Lewinsky was served a subpoena in the Jones case. On 
December 31, Ms. Lewinsky and Mr. Jordan ate breakfast together at the 
Park Hyatt Hotel. On January 7, Ms. Lewinsky signed an affidavit to be 
filed in the Jones case in which she denied having sexual relations 
with the President. On January 8, Ms. Lewinsky interviewed in New York 
with MacAndrews and Forbes, a company recommended by Mr. Jordan. On 
that same day, Ms. Lewinsky informed Mr. Jordan that the interview did 
not go well. Mr. Jordan made a call to the Chairman of the Board and 
Chief Executive Officer at MacAndrews and Forbes. On the morning of 
January 9, Ms. Lewinsky was given a second interview. On that same 
morning, Ms. Lewinsky was given an informal job offer, which she 
accepted. On January 13, 1998, Ms. Lewinsky received a formalized job 
offer.
  It is apparent from the above time line that the President's efforts 
in finding Ms. Lewinsky a job in New York intensified at an excessive 
rate once it was discovered that Ms. Lewinsky was going to be a witness 
in the Jones case. The President was well aware of the fact that Ms. 
Lewinsky's testimony could be harmful to him, and thus, it was in his 
best interest to get Ms. Lewinsky a job in New York as soon as 
possible. It seems to be no coincidence that the President did not tell 
Ms. Lewinsky that she was a potential witness until eleven days after 
he learned of this news. Rather, it appears the President was using 
these eleven days to ensure that Ms. Lewinsky understood the President 
was her friend and was trying to assist her in her New York job hunt. 
Interestingly, Ms. Lewinsky was not informed of her witness status 
until after interviews in New York had been scheduled for her by Vernon 
Jordan.


                     Perjury Before The Grand Jury

  The President is also charged with making perjurious, false, and 
misleading testimony to a Federal grand jury concerning his corrupt 
efforts to influence the testimony of witnesses and to impede the 
discovery of evidence in the Jones civil rights action. My review of 
this charge, and the evidence offered,

[[Page S1516]]

leads me to conclude that the President engaged in several separate 
acts of perjury. Specifically, the President lied under oath regarding 
the nature and details of his relationship with Ms. Lewinsky; lied 
regarding his conversation with Ms. Currie on the day following his 
Jones deposition; lied regarding his knowledge of Ms. Lewinsky's 
affidavit in the Jones case; lied regarding statements made to aides 
about his relationship with Ms. Lewinsky; lied regarding prior false 
and misleading statements he allowed his attorney Bob Bennett to make 
to a federal judge in the Jones case; and lied when he denied engaging 
in a plan to hide gifts that had been subpoenaed in the Jones case.

  After the Jones deposition, on January 26, 1998, the President went 
on national television and declared: ``I did not have sexual relations 
with that woman, Miss Lewinsky.'' In addition, he denied that he urged 
her to lie about the affair. Over the next seven months, the President 
continued to deny the relationship. In the face of mounting evidence to 
the contrary, the Office of the Independent Counsel sought and received 
permission from the Attorney General to expand its investigation to 
include whether the President lied under oath in his Jones deposition.
  Seven months later, on August 17, 1998, the President appeared before 
a grand jury to answer questions regarding his Jones deposition and his 
alleged affair with Ms. Lewinsky. Prior to his testimony, the President 
took a solemn oath to tell the truth. Specifically, when asked during 
the grand jury proceedings what this oath meant to him, the President 
stated: ``I have sworn on an oath to tell the grand jury the truth, and 
that's what I intend to do.'' Moreover, the President stated: ``I will 
try to answer, to the best of my ability, other questions including 
questions about my relationship with Ms. Lewinsky; questions about my 
understanding of the term ``sexual relations,'' as I understood it to 
be defined at my January 17, 1998 deposition; and questions concerning 
alleged subornation of perjury, obstruction of justice, and 
intimidation of witnesses.''
  In my opinion, however, the President violated his stated intention 
to answer questions honestly and to the best of his ability. Perjury is 
defined by the United States Code as ``whoever under oath in any 
proceeding before or ancillary to any court or grand jury of the United 
States knowingly makes any false material declaration or makes or uses 
any other information, including any book, paper, document, record, 
recording, or other material, knowing the same to contain any false 
declaration.'' See 18 USC s.1623. I believe that the President's 
statements fall within the above definition because his statements were 
both false and material to the proper inquiry of the grand jury.
  First, the President gave false and misleading testimony during the 
grand jury proceedings concerning the nature and details of his 
relationship with Monica Lewinsky. On August 17, 1998, the President 
read a prepared statement to the grand jury as a response to the 
question of whether he was physically intimate with Monica Lewinsky. 
The prepared statement said:

       When I was alone with Ms. Lewinsky on certain occasions in 
     early 1996 and once in early 1997, I engaged in conduct that 
     was wrong. These encounters did not consist of sexual 
     intercourse. They did not constitute sexual relations as I 
     understood that term to be defined at my January 17, 1998, 
     deposition. But they did involve inappropriate intimate 
     contact.
       These inappropriate encounters ended, at my insistence, in 
     early 1997. I also had occasional telephone conversations 
     with Ms. Lewinsky that included inappropriate sexual banter.
       I regret that what began as a friendship came to include 
     this conduct, and I will take full responsibility for my 
     actions.

  During Ms. Lewinsky's grand jury testimony, she stated that the 
President had contact with various parts of her body. Even under the 
limited interpretation that the President has given the Jones 
definition of ``sexual relations,'' the contact between the President 
and Ms. Lewinsky, as testified to by Ms. Lewinsky, constituted sexual 
relations on the part of both parties.
  Before the grand jury, the President referred to his prepared 
response nineteen times in order to avoid providing honest and complete 
answers to the questions posed. By referring to his prepared statement, 
the President asserted that his encounters with Ms. Lewinsky did not 
constitute ``sexual relations.'' The fact is that the evidence 
overwhelmingly affirms that the President had sexual contact with Ms. 
Lewinsky and his attempts at legal hairsplitting to maneuver around the 
truth failed.
  To address part of the perjury charge creates the need to resolve the 
credibility conflict between the President and Ms. Lewinsky. By finding 
that the President committed perjury in regard to testimony concerning 
the nature and details of his relationship with Ms. Lewinsky, it is 
clear that I find the testimony of Ms. Lewinsky to be more honest and 
forthright. Some may question why I believe the testimony of Ms. 
Lewinsky over the testimony of the President. First and foremost, I 
believe Ms. Lewinsky had no motive to lie, whereas the President had 
every motive to conceal the details of this intimate relationship. Not 
only was his Presidency on the line, but his credibility with his staff 
would be destroyed if the truth were exposed. Even more importantly, 
the President's credibility is questionable because he had to fear that 
discovery of the truth would cause his family immense devastation.

  Furthermore, I believe Ms. Lewinsky is more credible because her 
statement is corroborated. Ms. Lewinsky told the intimate details of 
her relationship to her therapists, her friends, Linda Tripp, her 
mother, and her aunt. Thus, it is not difficult to find that Ms. 
Lewinsky is a more credible witness than the President.
  I further believe the President made perjurious and misleading 
statements before the grand jury when he disclosed his version of his 
conversations with Betty Currie. As stated earlier, I believe that the 
rhetorical questions the President asked Ms. Currie on two separate 
occasions were an effort to coach a potential witness in the Jones 
case. During his grand jury testimony, the President testified that he 
questioned Ms. Currie because he thought the story would break in the 
press, he needed to get the facts down, and he was trying to refresh 
his memory. The reality is the President was never trying to refresh 
his memory. Ms. Currie even acknowledged in the grand jury proceedings 
that based on the way the President stated the questions and his 
demeanor, she believed he wished for her to agree with his statements.
  In addition, according to the President's own grand jury testimony, 
he told no one of his relationship with Monica Lewinsky. Specifically, 
during grand jury questioning, the President was asked with regard to 
his relationship with Ms. Lewinsky: ``Had you told anyone?'' The 
President answered: ``Absolutely not.'' Question: ``Had you tried, in 
fact, not to let anyone else know about this relationship?'' Answer: 
``Well, of course.'' Question: ``What did you do?'' Answer: ``Well I 
never said anything about it, for one thing. And I did what people do 
when they do the wrong thing. I tried to do it where nobody else was 
looking at it.''
  Thus, if the President was hiding his intimate encounters with Ms. 
Lewinsky, how would Ms. Currie have been capable of refreshing his 
memory on details of his secret relationship? The truth is that the 
President was fully aware of the fact he touched Ms. Lewinsky. 
Likewise, the President was fully aware that there had been instances 
when he was alone with Ms. Lewinsky. The only reason the President 
asked Ms. Currie those five infamous rhetorical questions was to 
provide a false and misleading account of the events to Ms. Currie in 
the hope Ms. Currie would substantiate the false testimony he gave in 
his deposition. The President's grand jury testimony that he was trying 
to refresh his memory was simply a story concocted to cover up the fact 
that he obstructed justice. Thus, his grand jury testimony was 
perjurious.
  In addition to making false statements with regard to the potential 
testimony of Betty Currie, the President also made false statements 
with regard to tampering with the potential testimony of his aides. The 
President testified to the grand jury that he said to his aides things 
that were true about his relationship with Ms. Lewinsky. ``I said, I 
have not had sex with her as I defined it.'' This statement is, 
however, patently untrue, as White House

[[Page S1517]]

Deputy Chief of Staff John Podesta's testimony indicates. Mr. Podesta 
testified that the President was explicit in stating that no sexual 
contact of any kind occurred between the two parties.
  Furthermore, during the grand jury proceedings, the President 
testified that when he was asking Ms. Currie about the times he was 
alone with Ms. Lewinsky, he was referring to 1997. The President 
stated: ``Keep in mind, sir, I just want to make it--I was talking 
about 1997. I was never, ever trying to get Betty Currie to claim that 
on the occasions when Monica Lewinsky was there when she wasn't 
anywhere around, that she was. I would never have done that to her, and 
I don't think she thought about that. I don't think she thought I was 
referring to that.'' The President was then asked: ``Did you put a date 
restriction? Did you make it clear to Ms. Currie that you were only 
asking her whether you were never alone with her after 1997?'' The 
President responded: ``Well, I don't recall whether I did or not, but I 
assumed--if I didn't, I assumed she knew what I was talking about, 
because it was the point at which Ms. Lewinsky was out of the White 
House and had to have someone wave her in, in order to get in the White 
House.'' In my view, this is just one more example of the President 
creating a false story to cover up the fact that his conversation with 
Betty Currie constituted witness tampering.
  The President also provided perjurious, false, and misleading 
testimony to a Federal grand jury regarding his knowledge that the 
contents of an affidavit executed by Ms. Lewinsky were untrue. 
Attorneys for Paula Jones were seeking evidence of sexual relationships 
the President may have had with other state or federal employees. In 
this process, Ms. Lewinsky was subpoenaed as a witness. The President 
suggested that Ms. Lewinsky should file an affidavit to avoid having to 
testify. If the truth had been told in this affidavit, and if Ms. 
Lewinsky had been honest about the nature of her relationship with the 
President, Ms. Lewinsky indisputably would have been an important 
witness.
  The President stated before the grand jury, when asked about the 
Lewinsky affidavit: ``Did I hope [Monica Lewinsky would] be able to get 
out of testifying on an affidavit? Absolutely. . . Did I want her to 
execute a false affidavit? No, I did not.'' The President's testimony 
is not credible and is misleading in light of the fact that it was 
virtually impossible for Ms. Lewinsky to file a truthful affidavit that 
would have permitted the President to achieve his objective of not 
having Ms. Lewinsky testify. This is just one more instance were the 
President lied, misled, and violated his solemn oath to tell the truth.

  In addition, the President gave perjurious testimony in regard to 
false and misleading statements he allowed his attorney Bob Bennett to 
make to a federal judge in the Jones case. When asked during his grand 
jury testimony how he could have lawfully sat silent while his attorney 
made a false statement, the President explained that he was not paying 
``a great deal of attention.'' As I stated earlier, from reviewing the 
President's videotaped deposition numerous times, I believe that it is 
apparent that the President was indeed paying attention when his 
attorney made these false statements.
  Finally, in his grand jury testimony, the President stated he told 
Ms. Lewinsky that if the attorneys for Paula Jones asked for the gifts, 
she had to provide them. In light of the fact that all of the gifts the 
President gave Ms. Lewinsky were never produced and some of the gifts 
were found under Ms. Currie's bed, I do not believe that the 
President's grand jury testimony regarding his conversation with Ms. 
Lewinsky was truthful.
  Accordingly, after considering all of the evidence, I believe that 
the President is guilty of both Article I and Article II.


                               Conclusion

  Mr. Chief Justice, the President of the United States has put the 
Senate in a difficult position. His actions have caused all of us to 
examine the uncomfortable details surrounding his reckless affair with 
a young White House intern. But it was not his unfortunate actions with 
the White House intern that brought us to this moment. Rather, it was 
his wilful and deliberate attempt to cover it up in a judicial 
proceeding and then lie under oath to a Federal grand jury. We are not 
here because we disagree with the President's politics. In fact, I 
happen to consider the President a very capable man, who has, by his 
own actions, destroyed his place in history. For me to watch someone 
strategically dismantle all they have worked for is disturbing, to say 
the least. However, in spite of the human side of this tragedy, there 
is no escaping that we are here simply because of the President's 
intentionally deceptive behavior and his unwillingness to abide by the 
law.
  We were handed very serious charges against the President by the 
House of Representatives. In disposing of this matter, we have followed 
the only template we have: the Constitution and the precedent of 
previous Senates. We have followed the Founders to the best of our 
abilities. Despite cries all around to end the trial and ignore our 
Constitutional mandate, the Senate allowed for a process rooted in the 
search for truth. All sides had an opportunity to make their case, 
question witnesses, and answer inquiries posed by individual Senators.
  Although this journey was less than perfect, we did not fail in this 
endeavor. We did not fail our Founders, we did not fail the House of 
Representatives or the President, and we did not fail the American 
people. I attended the meetings of the Senate, reviewed the material in 
the record, asked questions of the House Managers and White House 
counsel, and reviewed the depositions of witnesses. I am satisfied that 
our proceedings over the past month allowed me sufficient information 
to arrive at my decision.
  I am convinced beyond a reasonable doubt that William Jefferson 
Clinton is guilty of the charges levied by the House of Representatives 
and should be removed from office. By employing that standard I do not 
wish to influence others who find a different standard to be more 
appropriate.
  I am proud of the United States Senate and how it conducted itself 
during this process. Despite extraordinary difficulty, we did our job 
according to the Constitution and to the best of our ability. I am 
hopeful that through this process we have provided future generations 
with enough information to make an informed judgement of this 
President's actions. In the end, however, history will be the final 
arbiter.
  Thank you, Mr. Chief Justice. I yield the floor.
  Mr. FITZGERALD. As a freshman Senator, I am saddened that the first 
issue I confront in my service to the people of Illinois is the 
impeachment of a President of the United States. It is difficult to 
imagine a task less welcome and more awesome to me. As a newly elected 
Senator, I have barely begun to know the Senate, my colleagues, our 
rules and procedures, our precedents, or, finally, even our duty. I 
have watched you all so carefully--looking for examples, and guidance--
and wondering at the gravity of these days.
  On a personal note, before I begin, I want to thank those on both 
sides of the aisle--Senators who, in difficult days, have been so 
gracious to a newcomer. Thank you for taking the time, and making the 
effort, to welcome the newest among you. Through these hours, I have 
developed a deep respect for my new colleagues, for the Senate as an 
institution, and for the Constitution that has anchored our Republic 
for over two hundred years. I thank God for the wisdom of the Framers, 
and their ability to construct enduring institutions that allow us to 
confront, peacefully, the question of whether our President should be 
removed from office. We now come to the conclusion of this 
Constitutional process, itself an extraordinary example of the rule of 
law that makes our nation the envy of the world.
  The people of Illinois have entrusted me with the duty to uphold the 
Constitution, a duty I share with all of you. In addition, we share the 
responsibility of abiding by the separate oath which we took in this 
proceeding to ``do impartial justice according to the Constitution and 
the laws.''
  As a trier of fact and law, I find that the President has committed 
perjury and obstruction of justice as charged in the two Articles of 
Impeachment, and that those offenses constitute ``high crimes and 
misdemeanors.'' I will vote for conviction on both counts.

[[Page S1518]]

  I reach this decision after detailed examination of the evidence 
presented, the arguments of counsel, Senate precedents, and the 
impeachment clause of the Constitution.


                         The Standard of Proof

  The initial decision I made was to determine the appropriate burden 
of proof. Failure to impose a burden of proof on the House Managers 
would severely weaken the Presidency, a result the Founders feared and 
sought to avoid. The precedents of the Senate make it clear that there 
is no single standard that each of us must apply.
  The President has argued that we should apply the criminal standard 
of ``proof beyond a reasonable doubt.'' In recent impeachment trials of 
federal judges, a number of Senators also argued that conviction was 
only appropriate if the proof met this standard. Some commentators have 
suggested that Senators could use the preponderance-of-the-evidence 
standard typically applied in civil cases, or some standard in between.
  I have concluded that, to support a conviction, allegations must be 
proven by ``clear and convincing'' evidence. The criminal standard is 
not warranted, because the relief in this instance, i.e., the removal 
of the President, is not punitive, but remedial. In contrast, the civil 
standard would place the Presidency at too great a risk. The ``clear 
and convincing'' evidence standard strikes a prudent balance, providing 
sufficient protection for the authority of the Presidency and the 
expression of popular will represented by the President's election, 
while avoiding the risk of a President remaining in office despite 
clear and convincing evidence of impeachable offenses.


             Article I: Perjury Before A Federal Grand Jury

  The House has presented clear and convincing evidence that the 
President committed perjury when he testified before a Federal grand 
jury on August 17, 1998.
  On January 17, 1998, President Clinton testified in a civil 
deposition in the Jones v. Clinton lawsuit, after the Supreme Court had 
ruled unanimously that a civil suit against a sitting President could 
proceed. After the deposition, the Independent Counsel secured the 
approval of the Attorney General, and the three-judge Federal court 
which superintends the Independent Counsel law, to expand his 
jurisdiction to inquire into whether the President testified truthfully 
in his deposition. On August 17, 1998, the President, as the target of 
the investigation testified by video to a Federal grand jury in 
Washington, D.C.
  The President's deposition testimony in the Jones case was false in 
numerous respects, and his grand jury statements that he had sought to 
be completely truthful in his deposition testimony cannot be accurate. 
[Grand Jury Testimony of President Clinton, 8/17/98, H. Doc. 105-311, 
pp. 458-59] The falsehoods are of such a quantity and kind that a 
reasonable reading of the evidence suggests the President had to know 
at the time he gave his deposition in the Jones case that he was not 
being truthful. His testimony to the grand jury that he intended to be 
truthful at his deposition is false.
  Example: the President had testified in his deposition that he 
believed that, in the preceding two weeks, no one had reported to him 
any conversations with Ms. Lewinsky about the Jones suit. [Jones 
Deposition of President Clinton, 1/17/98, S. Doc. 106-3, Vol. 22, p. 
22] In testifying to the grand jury that he was truthful in his 
deposition, the President reaffirmed this portion of his deposition 
testimony. [Grand Jury Testimony of President Clinton, 8/17/98, H. Doc. 
105-311, p. 458] We know, however, that Vernon Jordan had, within the 
two weeks prior to the President's deposition, told the President that 
Ms. Lewinsky had signed her affidavit. [Deposition Testimony of Vernon 
Jordan, 2/2/99, 145 Congressional Record S1241 (daily ed. Feb. 4, 
1999)] The President's grand jury testimony was material to the issue 
of whether the President had sought to influence the content of Ms. 
Lewinsky's affidavit and thereby obstruct justice.

  The President again committed perjury before the Federal grand jury 
when he tried to explain why he made a series of false statements to 
his secretary, Betty Currie, on two separate occasions. At his 
deposition, the President was questioned about Ms. Lewinsky. The 
President attempted to employ Ms. Currie as an alibi witness. In the 
wake of the deposition, the President asked Ms. Currie to come to the 
office on a Sunday. Once there, the President asked Ms. Currie a series 
of leading questions concerning her recollection of events regarding 
Ms. Lewinsky. [Grand Jury Testimony of Betty Currie, 1/7/98, H. Doc. 
105-316, pp. 559-60] A few days later, the President again queried Ms. 
Currie with leading questions. [Id. at p. 561]
  When questioned during his grand jury testimony about the series of 
leading questions he had directed to Ms. Currie, the President 
responded: ``I was trying to figure out what the facts were. I was 
trying to remember.'' [Grand Jury Testimony of President Clinton, 8/17/
98, H. Doc. 105-311, p. 591] He also claimed that he was only trying to 
``ascertain what the facts were, trying to ascertain what Betty's 
perception was.'' [Id. at p. 593]
  While Ms. Currie would not say she felt pressured by the President, 
she did testify that she believed that the President was seeking her 
agreement with those statements. [Grand Jury Testimony of Betty Currie, 
1/7/98, H. Doc. 105-316, p. 559] It is unreasonable to conclude that 
the President was trying to refresh his recollection by making patently 
false statements to Ms. Currie, in the days immediately following his 
deposition for the Jones case. Ms. Curry could not possibly have known 
the answers to some of the President's ``questions,'' and the President 
clearly already knew the answers to others.
  We took an oath to do impartial justice. We did not take an oath to 
check our common sense at the door of this Chamber. The President's 
proffered explanation of the questions he directed to Ms. Currie defies 
common sense. I believe he sought, instead, to influence Ms. Currie's 
anticipated testimony by imparting to Ms. Currie his preferred version 
of the events. His false explanation was material to the grand jury's 
inquiry and constitutes perjury.
  The President also committed perjury when he testified and then 
reiterated before the Federal grand jury, in answer to a question about 
false accounts he gave to his aides regarding Ms. Lewinsky, that ``I 
said to them things that were true.'' [Grand Jury Testimony of 
President Clinton, 8/17/98, p. 106, H. Doc. 105-311, pp. 557-58]
  In fact, the President said to his aides things that were false. 
Presidential aide Sidney Blumenthal testified in his Senate deposition 
that the President had told him that Ms. Lewinsky had threatened him, 
and that she was called ``the stalker.'' [Deposition Testimony of 
Sidney Blumenthal, 2/3/99, 145 Congressional Record S1301 (daily ed. 
Feb. 6, 1999)] Mr. Blumenthal testified he now knows that the President 
lied to him. [Id. at S1302] The President knew what he said to Mr. 
Blumenthal was false because the President knew the facts. The one fact 
the President did not know was that Ms. Lewinsky would produce DNA 
evidence that would provide incontrovertible physical evidence to 
contradict him.
  The President's statements before a Federal grand jury regarding 
accounts he gave to his aides of Ms. Lewinsky were false, and the 
falsehoods were material to the grand jury's investigation into whether 
the President had testified falsely in the Jones deposition.


                   Article II: obstruction of justice

  The House has presented clear and convincing evidence that President 
Clinton obstructed justice by engaging in a course of conduct designed 
to impede, cover up, and conceal evidence and testimony related to the 
Federal civil rights action brought against him.
  The evidence shows that the President improperly influenced Ms. 
Lewinsky to file a false affidavit in the Jones suit. I believe that 
the only version of the evidence that makes sense is that offered by 
the House. Thus, I conclude that the President influenced the entire 
process that led to the filing of the false affidavit, from its 
inception to its conclusion. He did so through direct conversations 
with Ms. Lewinsky,

[[Page S1519]]

and through his close friend, Mr. Jordan, who was able to monitor the 
process through an attorney that he, Mr. Jordan, procured for Ms. 
Lewinsky.
  Ms. Lewinsky admitted that on December 17, 1997, the President 
informed her by telephone at 2 a.m. that she was on the witness list in 
the Jones case, and suggested that she might avoid testifying by filing 
an affidavit. [Deposition Testimony of Monica Lewinsky, 2/1/99, 145 
Congressional Record S1218 (daily ed. Feb. 4, 1999)] And the President 
told Ms. Lewinsky to call Betty Currie if she was subpoenaed. [Id.]
  The President's assertion that he thought Ms. Lewinsky could have 
avoided testifying by filing a truthful affidavit is unbelievable. I 
believe that the President knew that a truthful affidavit by Ms. 
Lewinsky would have ensured that she would have been called as a 
deposition witness, and that her subsequent truthful testimony would 
have been legally damaging to the President. In fact, in the very 
conversation in which the President suggested that Ms. Lewinsky file an 
affidavit, they discussed the cover stories they could use to avoid 
public knowledge of the truth. [Id. at S1219]
  Vernon Jordan testified in his Senate deposition that he ``was acting 
on behalf of the President to get Ms. Lewinsky a job.'' [Deposition 
Testimony of Vernon Jordan, 2/2/99, 145 Congressional Record S1293 
(daily ed. Feb. 6, 1999)] Mr. Jordan confirmed in the deposition that 
``The President was obviously interested in her job search.'' [Id. at 
S1314] It was Mr. Jordan --one of the President's closest friends--whom 
Ms. Lewinsky called when she was subpoenaed. Mr. Jordan met with Ms. 
Lewinsky and arranged a lawyer for her. [Deposition Testimony of Vernon 
Jordan, 2/2/99, 145 Congressional Record S1234-36 (daily ed. Feb. 4, 
1999)] Mr. Jordan delivered Ms. Lewinsky to her lawyer's office. [Id. 
at S1238] Mr. Jordan monitored the drafting and content of Ms. 
Lewinsky's affidavit. [Grand Jury Testimony of Monica Lewinsky, 8/6/98, 
H. Doc. 105-311, p. 920] Ms. Lewinsky herself delivered a copy of her 
first signed affidavit to Mr. Jordan's office. Ms. Lewinsky testified 
that she and Mr. Jordan conferred about the contents of the affidavit 
and agreed to delete one portion inserted by her lawyer and make other 
changes. [Id. at pp. 921-22, 1229-30 (Exhibit 3)]
  Mr. Jordan kept the President informed throughout the affidavit-
drafting process. He personally notified the President that Ms. 
Lewinsky had signed the false affidavit. [Deposition Testimony of 
Vernon Jordan, 2/2/99, 145 Congressional Record S1241 (daily ed. Feb. 
4, 1999)]
  The evidence also clearly and convincingly demonstrates that after 
Ms. Lewinsky's name appeared on the witness list in the Jones case, the 
President, through Mr. Jordan, provided intensified assistance to Ms. 
Lewinsky in finding a job in order to encourage her to file the false 
affidavit. Mr. Jordan accepted responsibility for the job search and 
has admitted that he and Ms. Lewinsky discussed both the job search and 
her affidavit in most conversations. [Id.] Mr. Jordan attempted to 
separate each aspect of his work with Ms. Lewinsky. He testified that 
``[t]he affidavit was over here. The job was over here.'' [Id.] 
Whatever Mr. Jordan's belief, it cannot have been lost on Ms. Lewinsky 
that she had a very prominent and powerful lawyer soliciting job offers 
for her at the same time she was being asked to help that lawyer's 
friend, the President, who had first suggested that she file an 
affidavit.
  On the day after Ms. Lewinsky signed the false affidavit, Mr. Jordan 
personally called the CEO of a Fortune 500 company to secure a job for 
her, a job she was offered on the subsequent day. [Id. at S1241-42] On 
the day that Ms. Lewinsky received the job offer, Mr. Jordan called the 
President, through Ms. Currie, and left the message ``mission 
accomplished.'' [Grand Jury Testimony of Vernon Jordan, 5/28/98, S. 
Doc. 106-3, p. 1898] The President's own testimony in his deposition 
for the Jones case followed exactly the false claims of Ms. Lewinsky's 
false affidavit. While the President's lawyers encouraged the 
perception that this convergence was a coincidence, I do not buy it.
  The evidence is clear and convincing that the President continued to 
involve Ms. Currie in his lies and obfuscation. Ms. Lewinsky testified 
that on December 28, 1997, she met with President Clinton and informed 
him that she had been subpoenaed, and that the subpoena required her to 
produce all gifts she had received from the President. She testified 
that the subpoena specifically requested a hat pin, which alarmed her. 
[Grand Jury Testimony of Monica Lewinsky, 8/6/98, H. Doc. 105-311, p. 
852] The President responded that the subpoena ``concerned'' him. [Id. 
at p. 872] When Ms. Lewinsky asked him what she should do in response 
to the subpoena for the gifts, the President answered, ``I don't 
know,'' or ``Let me think about that.'' [Id.] He never gave the only 
appropriate answer, which was to comply.
  Ms. Lewinsky testified that later that same day, Ms. Currie 
telephoned her, saying, ``I understand that you have something for 
me,'' or ``the President said that you have something to give me.'' 
[Id. at pp. 874-75] Ms. Currie had an unclear memory about this 
incident, but said that ``the best [she] remembered,'' Ms. Lewinsky 
called her. [Grand Jury Testimony of Betty Currie, 5/6/98, H. Doc. 105-
316, p. 581]
  Ms. Lewinsky's testimony that Ms. Currie instigated the retrieval of 
the gifts is credible and convincing. In contrast, Ms. Currie's 
testimony that Ms. Lewinsky instigated the retrieval is not persuasive. 
I do not believe that the President's personal secretary would have 
acted upon a request from Ms. Lewinsky to retrieve the gifts without 
asking the reason for such an exchange or informing the President of 
the request. It is too bizarre that she would simply pick up a box of 
gifts and deposit them under her bed. It defies a common-sense reading 
of the evidence and the evidentiary narrative.
  The evidence is also clear and convincing that the President 
obstructed justice by coaching Ms. Currie, a potential witness in the 
Jones case, to provide false testimony in the Jones case, and by 
arranging for the concealment of gifts subpoenaed by the Jones lawyers.
  On Saturday, January 17, 1998, a few hours after completing his own 
deposition in the Jones case, the President called Ms. Currie and asked 
her to come to the White House on Sunday, January 18, 1998. [Id. at p. 
558] The President's assertions and leading questions to Ms. Currie on 
January 18 and January 20 or 21, 1998, were indisputably false. The 
President knew that Ms. Currie was a potential witness when he made 
these false statements to her. In his deposition in the Jones case, the 
President brought Ms. Currie's name up, without prompting, in at least 
sixteen different answers to questions, clearly anticipating and 
inviting the Jones attorneys to subpoena her to back up his account.
  I am unable to conclude that the President was attempting to 
``refresh his recollections'' by calling Ms. Currie and requesting her 
to come to the White House on a weekend and making false statements to 
her. Simple common sense tells us that he was letting her know what he 
had said in his deposition and that he was hoping that she would later 
corroborate his false account.


                      High crimes and misdemeanors

  Although I have determined that the House has proven the acts alleged 
in both Articles of Impeachment by clear and convincing evidence, the 
inquiry does not end here. I must also consider whether the acts 
constitute ``high crimes and misdemeanors,'' as required by the 
Constitution. This has been a singularly difficult question for this 
body, but I conclude that the President's offenses rise to the level of 
``high crimes and misdemeanors'' within the meaning of the 
Constitution.
  The Framers of our Constitution provide that the Senate can only 
convict a President for ``treason, bribery, or other high crimes and 
misdemeanors.'' The Framers relied, in part, on William Blackstone for 
their understanding of the common law they inherited from England. In 
the fourth book of his Commentaries on the Laws of England, Blackstone 
addressed the criminal law. He distinguished between crimes that ``more 
directly infringe the rights of the public or commonwealth, taken in 
its collective capacity,'' and ``those which in a more peculiar manner 
injure individuals or private subjects.'' [IV William Blackstone, 
Commentaries on the Laws of England 74, 176 (special ed., 1983)]
  Within the latter category, Blackstone included crimes such as 
murder,

[[Page S1520]]

burglary, and arson. The former category of ``public'' crimes included 
offenses that were counted as ``offenses against the public justice.'' 
Blackstone included within this category the crimes of perjury and 
bribery side-by-side. [Id. at 127, 136-39] Blackstone's formulation 
equating perjury and bribery as ``public'' offenses suggests that, 
within the definition of the Constitution, perjury may also be a high 
crime and misdemeanor.
  Because perjury, at its core, involves an effort to obstruct justice, 
other acts that obstruct justice may very well be considered ``public'' 
offenses as the Framers would have understood them. Indeed, Blackstone 
writes that ``impediments of justice'' are ``high misprisions'' and 
``contempts'' of the King's courts. [Id. at 126-28]
  The intent of the Framers and subsequent interpretation of this 
clause show that impeachment and conviction of the President is a 
Constitutional remedy for serious offenses against our system of 
government. Alexander Hamilton, in Federalist No. 65, explained that 
impeachable offenses, ``relate chiefly to injuries done immediately to 
the society itself,'' and arise ``from the abuse or violation of some 
public trust.''
  Certainly, perjury before a grand jury and obstruction of justice are 
offenses against the American system of government, as they strike at 
the rule of law itself. These acts subvert the truth-seeking process 
that is the very essence and foundation of the judicial branch. These 
acts, when committed by a President, are a repudiation of our judicial 
system by the Chief Executive of the country, undermining the checks 
and balances and disturbing the delicate balance between the branches 
of the Federal government that is at the heart of our Constitutional 
form of government.
  The President's counsel attempted to diminish the severity of the 
crimes of perjury before a Federal grand jury and obstruction of 
justice. But the Founding Fathers understood that these crimes are 
offenses against the public trust. Perjury was among the few offenses 
outlawed by statute by the First Congress, in 1790. And today, perjury 
is punishable by up to five years imprisonment in a federal 
penitentiary. [18 U.S.C. Sec. Sec.  1621-23] The Supreme Court, in a 
1976 plurality opinion, wrote, ``[p]erjured testimony is an obvious and 
flagrant affront to the basic concepts of judicial proceedings.'' 
[United States v. Mandujano, 425 U.S. 564, 576]
  We do not need to decide whether the President's perjury before the 
grand jury would have risen to the level of a ``high crime and 
misdemeanor'' had the target of the grand jury been someone other than 
the President, nor do we need to decide whether a President's perjury 
in a civil trial in and of itself rises to the level of an impeachable 
offense. I have reservations about considering such acts ``high 
crimes'' or ``high misdemeanors.'' But where, as here, the President 
committed perjury in a Federal grand jury investigation of which he was 
the target, I am convinced that his acts fall into the category that 
warrants removal from office.
  Further support for this conclusion comes from Senate precedent in 
the impeachment, conviction, and removal from office of two Federal 
judges in the 1980s--Walter Nixon and Alcee Hastings. Judge Nixon was 
impeached and convicted for lying to a grand jury that was 
investigating him, and Judge Hastings was impeached and convicted for 
making numerous false statements under oath in testimony in his own 
criminal trial.
  Obstruction of justice is particularly serious. Two federal criminal 
statutes, Sections 1503 and 1512 of Title 18 of the U.S. Code, 
specifically prohibit corruptly influencing or obstructing the due 
administration of justice or the testimony of a person in an official 
proceeding.
  Federal appellate courts have applied these statutes to individuals 
who provide misleading stories to a potential witness without 
explicitly asking the witness to lie. For example, in 1988, a Federal 
appellate court upheld the conviction of an individual for attempting 
to influence a witness even though that witness was not scheduled to 
testify before the grand jury nor ever appeared before a grand jury. 
The court held that a conviction under Section 1503 is appropriate so 
long as there is a possibility that the target of the defendant's 
activities will be called upon to testify in an official proceeding. 
[United States v. Shannon 836 F. 2d 1125, 1127 (8th Cir. 1988)]
  The Supreme Court has called the President's responsibility to 
enforce the laws, ``the Chief Executive's most important Constitutional 
duty.'' [Lujan v. Defenders of Wildlife, 504 U.S. 555, 577 (1992)] A 
President who obstructs the very laws he is called upon to enforce has 
committed high crimes and misdemeanors as set out in the impeachment 
clause of the United States Constitution.


                           Impartial Justice

  Some argue that the Senate, sitting as a court of impeachment, should 
allow public opinion polls to influence its judgment, claiming that 
these proceedings are not judicial, but political in nature. I believe 
the Constitution, the intent of the Framers, and the Senate's own 
impeachment procedures show that when the Senate convenes to fulfill 
its obligation to ``try all impeachments,'' as Article I of the 
Constitution prescribes, it takes on a judicial role quite distinct 
from its normal legislative proceedings. The Constitution also states, 
in Article III, that ``the trial of all Crimes, except in Cases of 
Impeachment, shall be by Jury. . .,'' implying that an impeachment 
trial is a trial similar to all others. When a President stands 
accused, the Constitution requires the Chief Justice of the Supreme 
Court to preside, explicitly introducing the judicial branch into the 
trial by the Senate. And Alexander Hamilton, in Federalist No. 65, 
discusses ``the judicial character of the Senate'' when it meets as ``a 
court for the trial of impeachments.''
  We are required to take a special oath for impeachments, above and 
beyond our oath of office, to ``do impartial justice according to the 
Constitution and the laws.'' What can this oath mean if it does not 
place on us a special, judicial burden, unique among our Senatorial 
duties, to apply rules of impartiality and independence in pursuit of a 
verdict that is just? If an innocent President can be convicted, or a 
guilty President can be acquitted, even in part because of the polls 
that purport to reflect the will of the moment, then we violate our 
Constitutional duty and assault the very foundations of our system of 
justice.
  Carved into the West Pediment of the U.S. Supreme Court building in 
Washington are four simple words: ``Equal Justice Under Law.'' Standing 
watch in front of that building is a statue of Justice, blindfolded 
because justice must be blind. Even the President must respect the laws 
of the land. To the extent that we allow the popularity or unpopularity 
of a particular President to inform our votes for either conviction or 
acquittal, we undermine the principle of ``Equal Justice Under Law,'' 
and we chip away at the blindfold that covers the eyes of Justice.


                               Conclusion

  As a trier of fact and law, I find that the President has committed 
perjury and obstructed justice as charged in the two Articles of 
Impeachment, and that those offenses constitute ``high crimes and 
misdemeanors.'' I will vote to convict on both counts.
  For me, this is not an easy verdict to reach, and comes after great 
deliberation. I am 38 years old. Today is my 38th day as a Senator. 
Those 38 days feel like they have lasted my entire life. As a freshman, 
I have had to confront, very suddenly, difficult truths that at the 
very least have challenged the idealism that propelled me here in the 
first place. But through the din of argument and counter-argument, it 
has occurred to me that the President's acts, however serious, are not 
nearly as consequential as our response. I have listened to those who 
assert that perjury before a grand jury and obstruction of justice are 
not removable offenses--or that if they are, removal of a President, in 
this time, is too disruptive to contemplate.
  And truly, the call to do nothing is seductive. I hear it, too. We 
are so comfortable--so prosperous--that it is difficult to be bothered 
with unpleasantness. But as the youngest member of this body, I believe 
we must hold firm to the oldest truths. The material blessings of peace 
and prosperity are but the fruit of liberty that does not come without 
a price --a liberty sustained, only and finally, by the rule of law, 
and those willing to defend it. Our

[[Page S1521]]

commitment to impartial justice, now and forever, is an abstraction 
more profound and precious than a soaring Dow and a plummeting deficit. 
I vote as I do because I will not stand for the proposition that a 
President can, with premeditation and deliberation, obstruct justice 
and commit perjury before a grand jury. It cannot be.
  Mr. ROTH. Mr. Chief Justice, the House of Representatives presented 
to the Senate two Articles of Impeachment alleging that the President 
of the United States committed ``high crimes and misdemeanors'' in the 
form of perjury and obstruction of justice. These are serious offenses, 
not unlike those which in the past have been sufficient to remove other 
federal officials from office.
  In deciding how to vote on the Articles of Impeachment, each Senator 
had to undertake a two-step analysis: first, to determine the facts--
the conduct in which the accused engaged; and second, to determine 
whether that conduct constituted ``treason, bribery, or other high 
crimes and misdemeanors'', which, under the Constitution, require 
removal from office. This second step calls for the Senate to determine 
the facts and evaluate the effect of the conduct on the office and on 
the operations of government.
  Having listened to the presentations made to the Senate by the House 
Managers and by Counsel for the President, it is my opinion that the 
President committed perjury and obstructed justice, and that this 
misconduct--based on constitutional definitions and historical 
precedents--meets the standard for convicting an official of an 
impeachable offense.
  As the impeachment process is not a criminal proceeding, it is not 
necessary that the evidence shows that the accused is guilty of a 
criminal offense under the United States Code. The Framers wrote the 
Constitution before Congress wrote, and then amended, the criminal 
code. Nor is it required that relevant facts be established to the same 
standard as in a criminal trial, as Congress cannot punish the 
President, other than to remove him from office. Simply put, the 
Framers' objective was to provide a remedy to protect the American 
people and their institutions of government from an unfit officeholder. 
In view of this, I believe that such remedy is to be available if there 
is clear and convincing evidence to establish the underlying facts 
which demonstrate that an officeholder is unfit to serve.
  In determining whether alleged conduct is a ``high crime and 
misdemeanor'', Senators must examine each case individually. They must 
consider the officeholder's position in government and look at the 
effect of the officeholder's conduct in light of the particular 
position he or she holds. The fact that the Senate has convicted and 
removed federal judges for committing perjury does not necessarily mean 
that it should automatically remove a President who commits perjury. 
The precedents regarding federal judges are instructive, but they are 
not conclusive.
  The 1974 House Judiciary Committee Staff Report during the Nixon 
Impeachment Inquiry, drawing on two centuries of precedents, explains 
this concept in connection with a presidential impeachment. The report 
states that the impeachment of the President should be ``predicated 
only upon conduct seriously incompatible with either the constitutional 
form and principles of our government or the proper performance of 
constitutional duties of the presidential office.'' In other words, 
Congress must determine whether the particular misconduct in which 
President Clinton engaged is serious enough to warrant removal from 
that particular office. This is what I call the ``incompatibility'' 
test.
  The ``incompatibility'' test requires Senators to exercise their 
expertise in, and knowledge of, government and to use their best 
judgment, focusing on the offenses committed and the effect of those 
offenses on the office and on the operation of government. It is this 
kind of threat to the republic which we must evaluate in applying the 
``incompatibility'' test. Accordingly, under this test we should focus 
on the unique nature of the Presidency and the offenses the President 
committed.
  The Constitution created three separate branches of government in 
order to limit the powers of government and to enhance the liberty of 
the American people. Each branch is supreme in its own area but must 
respect and defer to the others, when they are operating in their 
assigned areas. Reduced to the simplest characterization, the 
legislature makes the laws, the executive executes the laws, and the 
judiciary interprets the laws and dispenses justice. As the head of the 
executive branch, the President stands alone as the official 
responsible for executing the laws of our country.
  The duty of a branch to respect the other branches is a duty that can 
only be carried out by federal officeholders. It cannot be borne by 
private citizens. And it is fundamental to the operations of the 
federal government. Our government could not function if the branches 
did not respect one another. I believe President Clinton violated this 
fundamental duty to respect the judicial branch by subverting its 
function.
  When a private citizen sued President Clinton under our civil rights 
statutes, the President took the position that he was unique in our 
system of law and could not be sued while President. When the Supreme 
Court ruled 9-0 that the President could be sued, the President decided 
to frustrate the judicial process while appearing outwardly to comply 
with the requirement of our constitutional plan. As a practical matter, 
he sought to veto this Supreme Court decision.
  The evidence shows that he undertook a deliberate and multifaceted 
plan to thwart the Supreme Court ruling. That plan included the 
commission of perjury and obstruction of justice, which are very 
serious and fundamental wrongs. Even worse is that his conduct was 
conscious and calculated. It was not a mistake of the moment. Rather he 
deliberated and chose to commit perjury. He deliberated and chose to 
obstruct justice. In making these conscious and calculated choices, he 
placed his personal and political interests above his presidential duty 
to respect the judicial branch.
  This is what concerns me greatly. If the President is willing to 
place his personal and political interests above his duties as 
President, he is not fit for the office he holds.
  The President has, as one branch of the federal government, a duty to 
respect the requirements of the judicial branch and its proceedings. 
The President has, as the chief executive, an express duty to take care 
that the laws be faithfully executed. In committing perjury and in 
obstructing justice, he exhibited an attitude dangerous to the 
operation of government--an attitude where he viewed himself as more 
important than the rule of law, where his personal and political 
interests took precedence over the public interest in administering 
equal justice under law.
  Ours is a nation ruled by law, not by men, and not by personalities. 
The judgment that we render here will set a precedent for the ages. If 
Congress concludes that the office of the Presidency should remain 
occupied by one who has sullied it with premeditated criminal conduct 
in violation of constitutional and legal duty, then it will have 
diminished America's right of self-defense against unfit officeholders, 
something that the Framers specifically provided for in the 
Constitution.
  A President who commits perjury before a federal grand jury and 
obstructs justice poisons the well from which justice is administered. 
As far as I know, this President has the dubious distinction of being 
the first and only President in the history of the United States to lie 
directly to a federal grand jury. After taking an oath to tell the 
truth, the whole truth, and nothing but the truth, he deliberately 
violated that oath. The first Chief Justice of the United States, John 
Jay, accurately stated that there is no crime more extensively 
pernicious to society than perjury. If the President commits perjury 
and we conclude that nevertheless he may remain in office, by what 
authority does any judge ask any litigant to swear under oath?
  As far as I am concerned, this is not just an empty question that has 
no relevance in today's society. Every day, in courtrooms and grand 
jury rooms across the country, witnesses are asked to hold up their 
right hand and take an oath to tell the truth. The judicial process in 
the United States depends on the sanctity of that oath. The 
prosecutorial function of the United States depends on the sanctity of 
that oath. It

[[Page S1522]]

is the cornerstone of our system of justice. We simply cannot allow 
people across the country to look at the conduct of our President and 
raise legitimate questions about whether they need to comply with their 
solemn oaths.
  Moreover, how can judges refer violations of perjury or obstruction 
of justice to the executive branch for prosecution, when the chief 
executive himself has committed these offenses? On prior occasions, the 
Senate has removed judges for perjury because it was ``incompatible'' 
to ask litigants not to commit perjury in a courtroom presided over by 
someone who had himself committed perjury. A similar 
``incompatibility'' exists where the sanction for perjury or 
obstruction of justice must be applied by the executive branch presided 
over by someone who has likewise committed these violations.
  The President must be removed before the corrosive effect of his 
conduct eats away at the rule of law and undermines the legal system. 
To imagine this President remaining in office brings to mind Alexander 
Pope's troubling question: ``If gold should rust, what will iron do?'' 
If our President commits perjury and obstruction of justice, what can 
we expect of our citizens?
  The Senate should seek to protect the legal system from that threat. 
And that is why I voted to convict and remove William Jefferson Clinton 
from office.
  Mr. BURNS. Mr. Chief Justice and my Senate colleagues, we now close 
one of the most serious chapters in the history of this Senate. While 
some may not agree with the outcome, and others may not like the way I 
voted, I'm satisfied the Constitution has been followed. We must now 
accept this verdict and try to work together without talk of revenge or 
gloating.
  In reaching my conclusions, I asked myself two questions: Were the 
articles of impeachment proven, and if so, should the president be 
removed from office?
  I believe the president perjured himself before a grand jury. He put 
the protection of his presidency ahead of the protection of the 
institution of the presidency. He gave false testimony about his 
efforts to keep other witnesses from telling the truth. We have already 
learned in our history that lies lead to more lies, and the pattern in 
this case led to perjury.
  I also feel strongly that a case for obstruction of justice was 
proven conclusively. The Senate heard the many actions and motives of 
the president, and it was easy to connect the dots. Those dots reveal a 
clear and convincing case against the president.
  I believe the president tampered with the testimony of witnesses 
against him; that he allowed his lawyers to present false evidence on 
his behalf; that he directed a job search for a witness in exchange for 
false testimony; and that he directed the recovery and hiding of 
evidence under subpoena.
  Does this warrant the president's removal from office? I agree with 
my respected colleague, Senator Byrd, that this reaches the level of 
high crimes and misdemeanors, for a number of reasons: The president's 
actions crossed the line between private and public behavior when those 
actions legally became the subject of a civil rights lawsuit against 
him, and when he tried to undermine that lawsuit. His actions were an 
attack on the separation of powers between the executive and judicial 
branches when he abused his power in an effort to obstruct justice. 
Remember, he impeded a lawsuit the highest court in our land allowed to 
proceed on a 9-0 vote.
  It's clear even to some of the president's supporters that he 
committed many of the offenses he has been charged with. But given this 
outcome, I hope for our system of justice and for our character as a 
nation that these votes are never seen as treating actions such as 
perjury and obstruction of justice lightly, whether by a president or 
by any citizen.
  Our new world of communications has made more information available 
to us than ever before. But it also contributed to the media overkill 
that jaded the American people to this process long ago. When the 
Lewinsky story became public, the president conducted a poll in which 
he learned that Americans would tolerate a private affair, but not 
perjury or obstruction of justice. His goal from that point on to was 
to poison the well of public opinion. Once the focus shifted away from 
the facts and toward opinion, once the clatter and clutter echoed on 
24-hour talk television, the president's goal was reached. But the 
facts remain, and they are not in dispute.
  Montanans didn't send me to the Senate to be a weathervane, shifting 
in the wind, but to be a compass. It may be common to say the 
president's offenses don't ``rise to the level of high crimes and 
misdemeanors,'' but I believe that would ignore our history and what we 
stand for as a nation.
  That's why I also oppose censuring the president. The Constitution 
gives us one way to deal with impeachable offenses: a yes or no vote on 
guilt. Anything else would be like amending the Constitution on the fly 
and infringing on the separation of powers between the branches of 
government.
  As we accept this outcome and move forward, we have plenty of time 
left ahead to help out Montana's farm and ranch communities, which is 
my top priority. We have time to save Social Security in a way that 
fixes the program without raising taxes. We have time to give control 
of education back to parents and teachers, and to give federal funds to 
classrooms, not bureaucrats. We have time to cut the record burden of 
taxation on Montanans, many of whom are forced to take more than one 
job to make ends meet.
  We should all roll up our sleeves and get to work.
  Mr. INHOFE. Mr. Chief Justice, in the absence of hearing something 
that I haven't heard or seeing something that is unforeseen up to now, 
it is my plan to vote for conviction on the two Articles of 
Impeachment.
  I think this is probably the most important vote I will cast during 
the course of my lifetime. I say it very sincerely. I believe we are 
going to rise to the occasion.
  I had an experience back in 1975, 24 years ago. I was a member of the 
State Senate in Oklahoma. I can remember being called for jury duty, 
and I was very happy to find myself assigned to a murder case about 
which I had already expressed a definite opinion. I said I believed 
this defendant was surely guilty, and besides, I was the author of the 
capital punishment bill in the state legislature. So I thought for sure 
I wasn't going to be qualified as a juror.
  Well, I went through the qualification procedure and somehow they 
qualified me. Five days later, I was the foreman of the jury that 
acquitted that accused murderer. This can happen. It is an experience 
that taught me a lot about our judicial system.
  I sometimes say one of the few qualifications I have for the U.S. 
Senate is I am not a lawyer. So that when I read the Constitution, I 
know what it says; when I read the oath of office, I know what it says; 
when I read the law, I know what it says. I don't have to clutter up my 
mind with what the definition of ``is'' is. So it makes it a little 
easier for me.
  From a nonlawyer perspective let me share a couple of observations.
  First, insofar as perjury is concerned--lying under oath--I might be 
wrong, but I don't think there is a Senator in this Chamber who doesn't 
believe the President lied under oath.
  I quote from the White House counsel, Charles Ruff, himself who said: 
``Reasonable people can believe the President lied under oath.''
  I quote from Senator Chuck Schumer who said: ``He lied under oath 
both in the Paula Jones deposition and what he said in the grand 
jury.''
  I quote from Representative Robert Wexler, a strong supporter of the 
President, who serves on the House Judiciary Committee, who said: ``The 
President did not tell the truth. He lied under oath.''
  I quote from former U.S. Senator Paul Simon, one of my favorite 
Democrat colleagues, who appeared with me on a television program 
before the trial, who said: ``You have to be an extreme Clinton zealot 
to believe perjury was not committed.''
  Second, as a non-attorney, I have a hard time reconciling the idea 
that there might be certain permissible exceptions to telling the truth 
under oath. Maybe you who are attorneys, and have a different 
background than mine, see it differently. But how can you reconcile 
this idea that under some

[[Page S1523]]

conditions--if the subject matter is sex or something else--you can lie 
under oath? I really have a hard time with this.
  I know that morality is not supposed to be the issue here. We are 
supposed to concentrate on the two specific Articles of Impeachment. 
However, I don't think anyone can completely compartmentalize himself 
and totally disregard other things going on.
  All of us get many, many letters from young children, parents, 
teachers, and others who are deeply distressed about the President's 
behavior and its impact on the moral health of the Nation. I think I am 
very fortunate because my kids are all in their upper thirties and my 
eight grandchildren (make that nine--I count them when they are 
conceived) are all under 6, so I don't get those embarrassing 
questions. But I know many parents are struggling with this.
  The other thing that concerns me is the reprehensible, consistent 
attitude this president has displayed over the years against women. 
Take Paula Jones as just one example. She may not win a popularity 
poll, but her civil rights have just as much standing as anyone else's, 
do they not? Is not our country based on the principle that even the 
least among us is entitled to equal treatment under the law?
  It amazes me how these feminist organizations continue to hold this 
President in such high regard--groups such as the National Organization 
of Women. I went back and read their bylaws. They claim to want to 
protect women with regard to ``equal rights and responsibilities in all 
aspects of citizenship, public service, employment . . . including 
freedom from discrimination.''
  And here we have a president who not only misused his power to seduce 
a college-age intern, but who has also engaged in extensive similar 
misconduct outside of his marriage. It is not just Monica Lewinsky. 
There is Gennifer Flowers, Elizabeth Ward Gracen, Paula Jones, Kathleen 
Willey, Dolly Kyle Browning, Beth Coulson, Susan McDougal, Cristy 
Zercher--the list goes on and on.
  This President has a consistent pattern of using and abusing women. 
You know that. I imagine most of you watched the Monica Lewinsky tapes 
as I did. I don't know why the House managers didn't pick this up--
somehow they let it slip through--about when she told this story 
concerning the two security badges. She came here to Washington, this 
wide-eyed kid, and there is a blue badge that lets you get into the 
White House proper and a pink badge that lets you only into the Old 
Executive Office Building. And she wanted to be in there--in the West 
Wing--where she could see what was going on.
  She had the pink badge so she had to be escorted to the West Wing by 
someone else. So the very first day she meets and talks to the 
President in person, he begins the relationship we're talking about. He 
didn't even know her name. And then he reached across and grabbed her 
pink badge, yanked it down, and said, ``This is going to be a 
problem.'' I don't think there is anyone in the room who doesn't know 
what he was referring to. He was preparing to use this girl and abuse 
her and discard her like an old shirt. But I know that these are not 
things the lawyers expect us to consider.
  I do want to give another observation, though. I thought the playing 
field would be very uneven when this trial started. The members of the 
Judiciary Committee who are the House managers are all lawyers. But 
mostly, they are Congressmen first. Many of these Congressmen-lawyers 
had not been in a courtroom for literally years. And here they were 
taking on the most prestigious, the most prominent, the most skilled, 
the most experienced, the highest priced lawyers anywhere in America. 
And yet when they finished with their opening statements, there was no 
doubt the House managers had risen superbly to the occasion, and I 
believe they have done a great job throughout.
  The White House lawyers are very skilled, very persuasive people. I 
would make this observation--again, a non-lawyer observation: I felt 
that three or four of them should have quit their opening remarks about 
5 minutes sooner than they did. They had a tendency to close their 
presentations with arguments that undermined their credibility.
  Cheryl Mills, for example, was really doing well, and she was very 
persuasive until she started at the very last talking about the 
President's record on civil rights, as if the civil rights of a person 
his associates had dubbed as ``trailer park trash'' were not 
significant, or the dignity of the intern he had branded ``a stalker'' 
was not significant. I really think she destroyed her otherwise very 
persuasive presentation.
  I think the same thing was true with Gregory Craig. He ended by 
talking about how conviction in this case would somehow ``destroy a 
fundamental underpinning of democracy'' by overturning the results of 
an election, as if Bob Dole would come in if that were to happen.
  Even our good friend, Dale Bumpers--I knew Dale Bumpers long before I 
came here to the U.S. Senate--did a great job. But I think he should 
have quit early, too, because at the very last it sounded like he was 
predicating the innocence of this President on his foreign policy. And 
as I just look at Iraq and what is going on over there, I think if that 
had been the test for this, I could have made up my mind a lot earlier.
  Another perspective I bring to this is as chairman of the Armed 
Services Subcommittee on Readiness. Having been in the service myself, 
and knowing how important discipline is, I am very disturbed that we 
have so many cases where severe punishment is dealt to individuals who 
have engaged in conduct far less serious than that of the President. 
Consider:
  Captain Derrick Robinson, an Army officer, was caught up in the 
Aberdeen sex misconduct case and is serving time in Leavenworth for 
admitting to consensual sex with an enlisted person who was not his 
wife.
  Delmar Simpson is serving 25 years in a military prison because a 
court-martial found that, even though his relationship with a female 
recruit was consensual, the power granted him by his rank made such 
consensual sex with a subordinate unacceptable. Think of the power 
granted this President by his rank.
  Remember Kelly Flinn. She is not flying B-52s anymore. She was forced 
out the Air Force for lying about an adulterous affair.
  Sergeant Major Gene McKinney, the Army's top enlisted man, was tried 
for perjury, adultery, and obstruction of justice--all concerning 
sexual misconduct. He was convicted of obstruction, but not before his 
attorney asserted at the trial how people in uniform rightly ask: ``How 
can you hold an enlisted man to a higher standard than the President of 
the United States, the Commander in Chief?''
  So I have looked at this and studied it. I think anyone who votes to 
acquit has to say that we are going to hold this President to a lower 
standard of conduct and behavior than we hold other people. I do not 
understand how they can come to any other conclusion.
  My wife and I have been married 40 years. I have a thing called the 
wife test. You go home and when you want to get an opinion that is 
totally apolitical, you ask your wife. So I went home and I presented 
the case--as explained so eloquently by the White House lawyers and 
others--on why we could have a lower standard of conduct for a 
President than we have for a judge. And I know the argument. And I 
expressed the argument to my wife in the kitchen. I said, there are a 
thousand judges, only one President. I went through the whole thing. 
Then she looked up and said, ``I thought the President appointed the 
judges.'' You know, my wife is so dumb, she is always asking me 
questions I can't answer.
  But I really believe that in this case we are getting at the truth. I 
really believe that the President of the United States should be held 
to the very highest of standards.
  You know, Winston Churchill said: ``Truth is incontrovertible. 
Ignorance may deride it, panic may resent it, malice may destroy it, 
but there it is.''
  I think we have seen the truth. And I think the final truth is that 
this President should be held to the very highest of standards.
  Sometimes when I am not really sure I am right, I consult my best 
friend. His name is Jesus. And I asked that

[[Page S1524]]

question. Now I will quote to you the response that is found in Luke: 
``From one who has been entrusted with more, much more will be asked.''
  Mr. Chief Justice, I think Jesus is right.
  Mr. CLELAND, Mr. Chief Justice, inasmuch as the impeachment trial of 
the President has focused on the importance of oaths, I have begun to 
reflect on the oaths I have taken in my life. In terms of affirming my 
allegiance to this nation and the United States Constitution, I have 
taken an oath four times. I have followed up each oath with my 
signature.
  The first such oath I took was when I was 21 years old. I was sworn 
in to the United States Army as a young Second Lieutenant. Later I 
followed my flag and my Commander-in-Chief in being a part of the armed 
military forces in the Vietnam War.
  After the war, I took another oath. This time I was sworn in as head 
of the Veterans' Administration under President Carter. I still 
remember that turbulent time after the Vietnam War when so many of my 
fellow veterans were returning from that conflict. The words from 
Abraham Lincoln's second inaugural address seemed to constantly echo in 
my mind: ``. . .to care for him who has borne the battle and for his 
widow and his orphan.'' Having been wounded in Vietnam myself I felt a 
grave responsibility to carry out my oath on behalf of my fellow 
veterans.
  The next time I took an oath it was January, 1997. It was on the 
occasion of being sworn into the United States Senate. As Vice 
President Al gore swore the new Senators in, I placed my right elbow on 
my Bible and raised my left hand in an oath to defend the Constitution 
against ``all enemies, foreign and domestic.'' Once in the Senate, I 
was fortunate to have been selected to follow distinguished former 
Georgia Senators Richard B. Russell and Sam Nunn in service on the 
Senate Armed Services Committee. I fully expected that any threat to 
our Constitution, our electoral process, or our delicately-honed system 
of checks and balances would come from outside our country, not from 
within.
  I was wrong.
  This leads me to my most recent oath to do ``impartial justice'' in 
the Senate in the impeachment trial of the President of the United 
States. In my personal view, this final oath, sealed with my signature 
in a book which will become part of the archives of American history, 
is a culmination of the other three oaths I have taken.
  I have sworn to defend this country.
  I have sworn to take care of its defenders.
  I have sworn to uphold the Constitution for which my fellow defenders 
have suffered and died.
  How can I now turn my back and ignore the challenge to that 
Constitution posed by this precedent-setting, first-time ever 
impeachment of an elected President of the United States?
  I cannot.
  When my name is called in regular order for my vote on the articles 
of impeachment, I will vote ``not guilty.''
  I have reached my decision after much effort. I have tried to keep an 
open mind and an open heart. I have attempted to search the depths of 
American history and the lore of our English forebearers for insight 
and guidance. I have counseled privately with experts on American 
history and constitutional law. I have met with knowledgeable sources 
inside and outside the government. I have personally listened to 
constituents in my state and throughout the nation. I have talked to 
them on the phone, read their letters and scanned their e-mail. I have 
tried to weave an appropriate course through the barrage of media talk 
and the system of political reporters doing their duty.
  I have given it my best shot.
  I understand now what Alexander Hamilton meant when he predicted 212 
years ago that individual Senators faced with an impeachment trial had 
the ``awful discretion'' of removing a President. Yet, I believe 
Hamilton was correct when long ago he advocated placing his faith in 
the Senators, where he hoped to find, ``dignity and independence.'' I 
believe that under the circumstances the Senate has conducted itself 
appropriately, and has complied with Hamilton's standards of conducting 
an impeachment trial with ``dignity and independence.'' I also believe 
the Senate should continue to follow the standards set by our Founding 
Fathers regarding the use of impeachment power. According to the 
Founders as articulated in the Constitution, the impeachment clearly 
should be reserved for ``bribery, treason or other high crimes and 
misdemeanors.'' This language did not just turn up in the Constitution 
overnight. The language grew and evolved over a period of months in 
Philadelphia in 1787.
  One of the Founding Fathers who especially impressed me is George 
Mason. Mason had an interesting background. Like many of our country's 
early statesmen, he was from Virginia. For me, Mason is a bridge of 
insight into what the impeachment clause in the Constitution is all 
about.
  Mason was a soldier. Indeed, he was an officer, a colonel. He, too, 
understood the grave responsibility of military leadership, of leading 
men in combat and in caring for them afterwards. He certainly knew 
about the gravity of his own personal oath. It was Mason, then, who 
articulated during the Constitutional Convention that the phrase in the 
Constitution regarding impeachment must be more fully fleshed out and 
should more appropriately read ``. . . and other high crimes and 
misdemeanors against the state.''
  Here was a soldier of the American Revolution. Here was an officer in 
that Revolution working with his fellow statesmen charting out a course 
for the Nation's future. Here was a brother of the bond from Northern 
Virginia who wanted to make sure the actual Constitutional language was 
clear that any impeachment must rise to a high level. According to the 
thrust of Mason's argument, for an impeachment of the President to be 
legitimate, the impeachable offenses must pose a threat to the nation 
itself. The Committee which reviewed the language believed that the 
phrase ``against the state'' was redundant, and, in effect, assumed.

  President Clinton has committed serious offenses. His personal 
conduct in this matter was, as I have said before, wrongful, 
reprehensible and indefensible. He has admitted to personal offenses, 
and will be appropriately judged for his misconduct elsewhere. In my 
judgement, under all the others I have taken under the United States 
Constitution, his offenses do not rise to the required level for 
impeachable offenses under the United States Constitution.
  I will be voting against conviction and removal from office of the 
President on both articles because I do not believe that these 
particular charges reach the high standard for impeachment which I 
believe that George Mason and the other Founders intended: that such an 
offense must be conduct which threatens grievous harm to our entire 
system. I provided more detail about the reasons for these conclusions 
in an earlier statement I submitted for the Record, and I ask unanimous 
consent that those remarks be inserted following this statement.
  As the Senate concludes this trial, I am reminded of other words from 
Abraham Lincoln's second Inaugural Address: ``with malice toward none, 
with clarity for all, let us bind up the nation's wounds . . .'' If 
Lincoln can say that as the nation was concluding the most divisive 
time in our history, which ultimately resulted in the first impeachment 
trial of an American President, surely we can say that to each other 
and to our nation as we conclude this historical second impeachment 
trial.
  It is time to end this trial.
  It is time to let the President conclude the term he was elected to 
by the American people.
  It is time to put an end to partisan bickering about the motives and 
conduct of all of those who have become involved in this sad episode.
  It is time for us all to bind up the nation's wounds.
  It is time to get on with the business of the American people we were 
elected to conduct.
  I ask that a supplement of my statement be printed in the Record.
  Thank you.
  There being no objection, the statement was ordered to be printed in 
the Record, as follows:

         The Impeachment of President William Jefferson Clinton

       Mr. CLELAND. Mr. President, let me begin by saying that the 
     reason we are here today, the reason the United States Senate 
     is being asked to exercise what Alexander Hamilton

[[Page S1525]]

     termed the ``awful discretion'' of impeachment, is because of 
     the wrongful, reprehensible, indefensible conduct of one 
     person, the President of the United States, William Jefferson 
     Clinton. Indeed, I believe it is conduct deserving of the 
     censure of the Senate, and I will support such a resolution 
     when it comes before us.
       The question before the Senate, however, is not whether the 
     President's conduct was wrong, or immoral, or even 
     censurable. We must decide solely as to whether or not he 
     should be convicted of the allegations contained in the 
     Articles of Impeachment and thus removed from office. In my 
     opinion, the case for removal, presented in great detail in 
     the massive 60,000 page report submitted by the House, in 
     many hours of very capable but often repetitive presentations 
     to the Senate by the House Managers and the President's 
     defense team, and in many additional hours of Senators' 
     questioning of the two sides, fails to meet the very high 
     standards which we must demand with respect to Presidential 
     impeachments. Therefore, I will vote to dismiss the 
     impeachment case against William Jefferson Clinton, and to 
     vote for the Senate resuming other necessary work for the 
     American people.
       To this very point, I have reserved my judgment on this 
     question because of my Constitutional responsibility and Oath 
     to ``render impartial justice'' in this case. Most of the 
     same record presented in great detail to Senators in the 
     course of the last several weeks has long been before the 
     public, and indeed most of that public, including editorial 
     boards, talk show hosts, and so forth, long ago reached their 
     own conclusions as to the impeachment of President Clinton. 
     But I have now heard enough to make my decision. With respect 
     to the witnesses the House Managers apparently now wish to 
     depose and call before the Senate, the existing record 
     represents multiple interrogations by the Office of the 
     Independent Counsel and its Grand Jury, with not only no 
     cross-examinations by the President's counsel but, with the 
     exception of the President's testimony, without even the 
     presence of the witnesses own counsel. It is difficult for me 
     to see how that record would possibly be improved from the 
     prosecution's standpoint. Thus, I will not support motions to 
     depose or call witnesses.
       In reaching my decision on impeachment, there are a number 
     of factors which have been discussed or speculated about in 
     the news media which were not a part of my calculations.
       First of all, while as political creatures neither the 
     Senate nor the House can or should be immune from public 
     opinion, we have a very precise Constitutionally-prescribed 
     responsibility in this matter, and popular opinion must not 
     be controlling consideration. I believe Republican Senator 
     William Pitt Fessenden of Maine said it best during the only 
     previous Presidential Impeachment Trial in 1868:
       ``To the suggestion that popular opinion demands the 
     conviction of the President on these charges, I reply that he 
     is not now on trial before the people, but before the Senate 
     . . . The people have not heard the evidence as we have heard 
     it. The responsibility is not on them, but upon us. They have 
     not taken an oath to ``do impartial justice according to the 
     Constitution and the laws.'' I have taken that oath. I cannot 
     render judgment upon their convictions, nor can they transfer 
     to themselves my punishment if I violate my own. And I should 
     consider myself undeserving of the confidence of that just 
     and intelligent people who imposed upon me this great 
     responsibility, and unworthy of a place among honorable men, 
     if for any fear of public reprobation, and for the sake of 
     securing popular favor, I should disregard the convictions of 
     my judgment and my conscience.''
       Nor was my decision premised on the notion, suggested by 
     some, that the stability of our government would be severely 
     jeopardized by the impeachment of President Clinton. I have 
     full faith in the strength of our government and its leaders 
     and, more importantly, faith in the American people to cope 
     successfully with whatever the Senate decides. There can be 
     no doubt that the impeachment of a President would not be 
     easy for the country but just in this Century, about to end, 
     we have endured great depressions and world wars. Today, the 
     U.S. economy is strong, the will of the people to move beyond 
     this national nightmare is great, and we have an experienced 
     and able Vice President who is more than capable of stepping 
     up and assuming the role of the President.
       Third, although we have heard much argument that the 
     precedents of judicial impeachments should be controlling in 
     this case, I have not been convinced and did not rely on such 
     testimony in making my decision. After review of the record, 
     historical precedents, and consideration of the different 
     roles of Presidents and federal judges, I have concluded that 
     there is indeed a different legal standard for impeachment of 
     Presidents and federal judges. Article II, Section 4 of the 
     Constitution provides that ``the President, Vice President, 
     and all civil officers of the United States, shall be removed 
     from Office on Impeachment for, and Conviction of, Treason, 
     Bribery, or other high Crimes and Misdemeanors.'' Article 
     III, Section I of the Constitution indicates that judges 
     ``shall hold their Offices during good Behavior.'' Presidents 
     are elected by the people and serve for a fixed term of 
     years, while federal judges are appointed without public 
     approval to serve a life tenure without any accountability to 
     the public. Therefore, under our system, impeachment is the 
     only way to remove a federal judge from office while 
     Presidents serve for a specified term and face accountability 
     to the pubic through elections. With respect to the differing 
     impeachment standards themselves, Chief Justice Rehnquist 
     once wrote, ``the terms `treason, bribery and other high 
     crimes and misdemeanors' are narrower than the malfeasance in 
     office and failure to perform the duties of the office, which 
     maybe grounds for forfeiture of office held during good 
     behavior.''
       And my conclusions with respect to impeachment were not 
     based upon consideration of the proper punishment of 
     President Clinton for his misdeeds. During the impeachment of 
     President Nixon, the Report by the Staff of the Impeachment 
     Inquiry concluded that ``impeachment is the first step in a 
     remedial process--removal from office and possible 
     disqualification from holding future office. The purpose of 
     impeachment is not personal punishment; its function is 
     primarily to maintain constitutional government.'' Regardless 
     of the outcome of the Senate impeachment trial, President 
     Clinton remains subject to censure by the House and 
     Senate, and criminal prosecution for any crimes he may 
     have committed. Whatever punishment President Clinton 
     deserves for his misdeeds will be provided elsewhere.
       Finally, I do not believe that perjury or obstruction of 
     justice could never rise to the level of threatening grievous 
     harm to the Republic, and thus represent adequate grounds for 
     removal of a President. However, we must approach such a 
     determination with the greatest of care. Impeachment of a 
     President is, perhaps with the power to declare War, the 
     gravest of Constitutional responsibilities bestowed upon the 
     Congress. During the history of the United States, the Senate 
     has only held impeachment trials for two Presidents, the 1868 
     trial of President Johnson, who had not been elected to that 
     office, and now President Clinton. Although the Senate can 
     look to impeachment trials of other public officials, 
     primarily judicial, as I have already said, I do not believe 
     that those precedents are or should be controlling in 
     impeachment trials of Presidents, or indeed of other elected 
     officials.
       My decision was based on one overriding concern: the impact 
     of this precedent-setting case on the future of the 
     Presidency, and indeed of the Congress itself. It is not Bill 
     Clinton who should occupy our only attention. He already 
     stands rebuked by the House impeachment votes, and by the 
     words of virtually every member of Congress of both political 
     parties. And even if we do not remove him from office, he 
     still stands liable to future criminal prosecution for his 
     actions, as well as to the verdict of history. No, it is Mr. 
     Clinton's successors, Republican, Democrat or any other 
     Party, who should be our concern.
       The Republican Senator, Edmund G. Ross of Kansas, who 
     ``looked down into my open grave'' of political oblivion when 
     he cast one of the decisive votes in acquitting Andrew 
     Johnson in spite of his personal dislike of the President, 
     explained his motivation this way:
       ``In a large sense, the independence of the executive 
     office as a coordinate branch of the government was on trial 
     . . . If . . . the President must step down . . . upon 
     insufficient proofs and from partisan considerations, the 
     office of President would be degraded, cease to be a 
     coordinate branch of government, and ever after subordinated 
     to the legislative will. It would practically have 
     revolutionized our splendid political fabric into a partisan 
     Congressional autocracy.''
       While our government is certainly on a stronger foundation 
     now than in the aftermath of the Civil War, the basic point 
     remains valid. If anything, in today's world of rapidly 
     emerging events and threats, we need an effective, 
     independent Presidency even more than did mid-19th Century 
     Americans.
       While in the history of the United States the U.S. Senate 
     has never before considered impeachment articles against a 
     sitting elected official, we do have numerous cases of each 
     House exercising its Constitutional right to, ``punish its 
     Members for disorderly behavior, and, with the concurrence of 
     two-thirds expel a Member.'' However, since the Civil War, 
     while a variety of cases involving personal and private 
     misconduct have been considered, the Senate has never voted 
     to expel a member, choosing to censure instead on seven 
     occasions, and the House has rarely chosen the ultimate 
     sanction. Should the removal of a President be subject to 
     greater punishment with lesser standards of evidence than the 
     Congress has applied to itself when the Constitution appears 
     to call for the reverse in limiting impeachment to cases of 
     ``treason, bribery and other high crimes or misdemeanors?'' 
     In my view, the answer must be NO.
       Thus, for me, as one United States Senator, the bar for 
     impeachment and removal from office of a President must be a 
     high one, and I want the record to reflect that my vote to 
     dismiss is based upon a standard of evidence equivalent to 
     that used in criminal proceedings--that is, that guilt must 
     be proven ``beyond a reasonable doubt''--and a standard of 
     impeachable offense which, in my view, conforms to the 
     Founders' intentions that such an offense must be one which 
     represents official misconduct threatening grievous harm to 
     our whole system of government. To quote Federalist No. 65, 
     Hamilton defined as impeachable, ``those offenses which 
     proceed from the misconduct of public men, or, in other 
     words, from the abuse or

[[Page S1526]]

     violation of some public trust. They are of a nature which 
     may with peculiar propriety be denominated POLITICAL, as 
     they relate chiefly to injuries done immediately to the 
     society itself.'' As I have said before, I can conceive of 
     instances in which both perjury and obstruction of justice 
     would meet this test, and I certainly believe that most, 
     if not all, capital crimes, including murder, would 
     qualify for impeachment and removal from office. However, 
     in my judgment, the current case does not reach the 
     necessary high standard.
       In the words of John F. Kennedy, ``with a good conscience 
     our only sure reward, with history the final judge of our 
     deeds,'' I believe that dismissal of the impeachment case 
     against William Jefferson Clinton is the appropriate action 
     for the U.S. Senate. It is the action which will best 
     preserve the system of government which has served us so well 
     for over two hundred years, a system of checks and balances, 
     with a strong and independent chief executive.
       In closing, I wish to address those in the Senate and 
     House, and among the American public, who have reached a 
     different conclusion than have I in this case. I do not 
     question the sincerity or legitimacy of your viewpoint. The 
     process itself pushes us to make absolute judgments--yes or 
     no to conviction and removal from office--and the nature of 
     debate yields portraits of complex issues in stark black-and-
     white terms, but I believe it is possible for reasonable 
     people to reach different conclusions on this matter. Indeed, 
     I recognize that, while my decision seeks to avoid the 
     dangers of setting the impeachment bar too low, setting that 
     bar too high is not without risks. I believe the House 
     Managers spoke eloquently about the need to preserve respect 
     for the rule of law, including the critical principle that no 
     one, not even the President of the United States, is above 
     that rule. However, I have concluded that the threat to our 
     system of a weakened Presidency, made in some ways 
     subordinate to the will of the legislative branch, outweighs 
     the potential harm to the rule of law, because that latter 
     risk is mitigated by: an intact, independent criminal justice 
     system, which indeed will retain the ability to render final, 
     legal judgment on the President's conduct; a vigorous, 
     independent press corps which remains perfectly capable of 
     exposing such conduct, and of extracting a personal, 
     professional and political price; and an independent Congress 
     which will presumably continue to have the will and means to 
     oppose Presidents who threaten our system of government.
       By the very nature of this situation, where I sit in 
     judgment of a Democratic President as a Democratic Senator, I 
     realize that my decision cannot convey the non-partisanship 
     which is essential to achieve closure on this matter, one way 
     or the other. Indeed, in words which could have been written 
     today, the chief proponent among the Founding Fathers of a 
     vigorous Chief Executive, Alexander Hamilton, wrote in 1788, 
     in No. 65 of The Federalist Papers, that impeachments ``will 
     seldom fail to agitate the passions of the whole community, 
     and to divide them into parties, more or less friendly or 
     inimical, to the accused. In many cases, it will connect 
     itself with the pre-existing factions, and will enlist all 
     their animosities, partialities, influence and interest on 
     side, or on the other; and in such cases there will always be 
     the greatest danger, that the decision will be regulated more 
     by the comparative strength of the parties than by real 
     demonstration of guilt or innocence.''
       I have, however, in making my decision laid out for you the 
     standards which I believe to be appropriate whenever the 
     Congress considers the removal from office of an elected 
     official, whether Executive Branch, or Legislative Branch. I 
     will do my best to stand by those standards in all such cases 
     to come before me while I have the privilege of representing 
     the people of Georgia in the United States Senate, regardless 
     of the party affiliation of the accused. I only hope and pray 
     that no future President, of either Party, will ever again 
     engage in conduct which provides any basis, including the 
     basis of the current case, for the Congress to consider the 
     grave question of impeachment.

  Mr. FRIST. I rise to explain my decision to convict President William 
Jefferson Clinton on two Articles of Impeachment charging him with High 
Crimes and Misdemeanors. I have heard from thousands of fellow 
Tennesseans during this trial, and their opinions were deeply split. 
While I looked to the people of Tennessee for guidance, responsibility 
for my final vote ultimately turned on my own conscience. I am sure 
that this will be one of the most important votes I cast as a United 
States Senator, and I am honored to explain fully my vote.


                  Introduction and the Burden of Proof

  I sought throughout President Clinton's trial to be true to my oath 
to do ``impartial justice according to the Constitution and laws of the 
United States.'' When I raised my right hand and swore that oath on 
January 7, I accepted a solemn responsibility. I did not approach this 
trial with some preordained outcome in mind; I carefully listened 
during the five weeks of this trial to the evidence and the arguments, 
and sought to do justice.
  In considering the allegations against President Clinton, I believed 
that I should apply a ``beyond a reasonable doubt'' burden of proof--
even though the Constitution does not specify a particular burden of 
proof in impeachment trials. The Constitution entrusts the decision to 
convict an impeached officer to the individual judgment of each 
Senator; however, I wanted to give the President the benefit of the 
same high standard of proof applied in criminal trials. I would remove 
a President from office only if the House Managers met this rigorous 
burden of proof.
  The jury instructions used in federal courts explain what must be 
established to meet this burden of proof:

       Proof beyond a reasonable doubt does not mean proof beyond 
     all possible doubt. Possible doubts or doubts based purely on 
     speculation are not reasonable doubts. A reasonable doubt is 
     based on reason and common sense. It may arise from evidence, 
     the lack of evidence, or the nature of the evidence.
       Proof beyond a reasonable doubt means proof which is so 
     convincing that you would not hesitate to rely and act on it 
     in making the most important decisions in your own lives.

  In the end, I concluded beyond a reasonable doubt that President 
Clinton repeatedly lied under oath before a federal grand jury. I also 
concluded beyond a reasonable doubt that he engaged in a calculated, 
premeditated campaign to obstruct justice. I now wish to address each 
of those articles of impeachment in turn.


                           Grand Jury Perjury

  The circumstantial and direct evidence demonstrates beyond a 
reasonable doubt that President Clinton committed perjury during his 
grand jury appearance. The criminal law of the United States forbids 
perjury before a grand jury. To prove a case of grand jury perjury, a 
prosecutor must demonstrate: (1) that the defendant testified under 
oath before a grand jury; (2) that the testimony so given was false in 
one or more respects; (3) the false testimony concerned material 
matters; and (4) the false testimony was knowingly given. There are 
three instances during the President's August 17, 1998 grand jury 
testimony in which these four elements were established.
  First, he lied when he denied that he had ``sexual relations'' with 
Ms. Lewinsky, even under his own interpretation of the definition of 
that term. Quite simply, Ms. Lewinsky offered a detailed account of 
numerous times when they did engage in such relations, even under 
President Clinton's interpretation of that term. Her testimony is 
corroborated by contemporaneous accounts she offered to a number of 
friends and professional counselors. President Clinton conjured up a 
tortured definition of the term ``sexual relations'' to explain the 
blue dress (and its physical evidence corroborating sexual relations) 
to the grand jury--while still asserting the truthfulness of his 
earlier denial of ``sexual relations'' in his deposition in the Paula 
Jones sexual harassment suit. This attempt to have it both ways, in 
turn, forced him to lie before the grand jury about the details and 
nature of his relationship with Ms. Lewinsky. There is no doubt in my 
mind that President Clinton lied about this matter. Moreover, this lie 
was material; that is, it had the tendency to affect the grand jury's 
investigation. That investigation focused on President Clinton's 
possible perjury and obstruction of justice in the Jones case. Lying to 
the grand jury to attempt to deny the earlier perjury in the Jones 
deposition was clearly material to that investigation.
  Second, President Clinton lied to the grand jury about his attempt to 
coach Ms. Currie immediately following the deposition. This coaching, 
which I will discuss in more detail later, was explicitly denied by the 
President before the grand jury. His testimony that he made a series of 
false statements to Ms. Currie and sought her agreement with them 
merely in an attempt ``to refresh [his] memory about what the facts 
were'' and that he was ``trying to get as much information as quickly 
as [he] could'' is false. He did not ask her what she recalled; he made 
false declarations and sought her agreement with them. One cannot 
refresh one's recollection by making knowingly false statements to 
another. This is a classic example of why courts instruct juries to use 
their common sense in resolving factual disputes. Moreover, President 
Clinton coached her twice in

[[Page S1527]]

the exact same manner: Once on January 18, 1998, and again on January 
20 or January 21. He had just finished lying in his civil deposition on 
January 17, and he wanted to enlist her support for his lies if she was 
called by Paula Jones' lawyers--as she was on January 22. Again, this 
issue was plainly material to an investigation into President Clinton's 
possible obstruction of justice.
  Third, President Clinton lied to the grand jury about attempting to 
influence the testimony of his aides whom he knew would be called 
before the grand jury. These allegations are discussed later. For now, 
it is only important to note that he testified that he ``said to them 
things that were true about this relationship. . . . So, I said things 
that were true. They may have been misleading. . . .'' In fact, he lied 
to his aides, as even Sidney Blumenthal stated in his videotaped 
deposition testimony. It is understandable that President Clinton would 
not admit to the grand jury that he lied to these aides, because to do 
so would admit that he obstructed justice. He could have asserted his 
fifth amendment right against self-incrimination; however, he chose to 
lie. He denied that he had lied to these aides. The Supreme Court has 
addressed just this sort of a lie, stating: ``A citizen may decline to 
answer the question, or answer it honestly, but he cannot with impunity 
knowingly and willfully answer with a falsehood.''


                         Obstruction of Justice

  The evidence establishes beyond a reasonable doubt that President 
Clinton obstructed justice. He suggested that Ms. Lewinsky submit a 
false affidavit in a civil case. He coached a potential witness (Ms. 
Currie) in the civil case and the grand jury investigation by repeating 
a series of assertions to her that he knew to be false in the hope that 
she would adopt those assertions as her own. Last, he made false 
statements to his top advisors, knowing that they would then repeat 
those statements to a federal grand jury.
  The United States criminal code makes it illegal for one to obstruct 
justice. The precise wording of the general obstruction of justice 
statute--Title 18, section 1503 of the United States Code--provides: 
``Whoever . . . corruptly . . . influences, obstructs, or impedes, or 
endeavors to influence, obstruct, or impede, the due administration of 
justice, shall be punished. . . .'' Courts have interpreted the word 
``corruptly'' to mean that the defendant had an intent to obstruct, 
impair, or impede the due administration of justice. In other words, 
one need not use threats of force or intimidation to obstruct justice. 
Thus, one who merely proposes to a potential witness that the witness 
lie in a judicial proceeding is guilty of obstructing justice.
  Also, an additional federal statute, section 1512 of Title 18, deals 
specifically with witness tampering. It provides: ``Whoever . . . 
corruptly persuades another person, or attempts to do so, or engages in 
misleading conduct toward another person with intent to . . . 
influence, delay, or prevent the testimony of any person in an official 
proceeding . . . shall be fined under this title or imprisoned. . . .'' 
Unlike section 1503, section 1512 has been interpreted as applying to 
more than just ``pending'' judicial proceedings; courts have found it 
adequate that a defendant ``feared'' that such a proceeding might begin 
and sought to influence the testimony of those who may be witnesses in 
such a proceeding.
  With this statutory backdrop in mind, I turn first to the allegation 
that President Clinton urged Ms. Lewinsky to submit a false affidavit 
and deny their sexual relationship. The evidence establishes that he 
telephoned her between 2:00 and 2:30 a.m. on December 17, 1997. 
According to Ms. Lewinsky, President Clinton informed her that she was 
on the witness list in the Paula Jones sexual harassment lawsuit. He 
then suggested that, if she were subpoenaed to give a deposition, ``she 
could sign an affidavit to try to satisfy [Ms. Jones's] inquiry and not 
be deposed.'' As has been pointed out, a truthful affidavit about their 
relationship would not have prevented her deposition; in fact, a 
truthful affidavit would have encouraged the deposition. 
Notwithstanding this obvious fact, President Clinton's lawyers 
vigorously asserted at trial that a ``limited but truthful'' affidavit 
could have misled the Jones lawyers sufficiently to avoid her being 
deposed.
  The problem with this defense is that President Clinton on December 
17, in the very same telephone conversation in which he suggested the 
affidavit, also encouraged Ms. Lewinsky to continue with the ``cover 
stories'' they had used to hide their relationship. According to Ms. 
Lewinsky, he told her that she ``should say she visited [the White 
House] to see Ms. Currie and, on occasion when working at [the White 
House] she brought him letters when no one else was around.'' Of 
course, Ms. Lewinsky was going to the White House to see President 
Clinton, and the only time she ``brought him letters'' was to cover 
their illicit rendezvous. These cover stories, hatched as explanations 
to prevent co-workers from discovering their sexual relationship, 
amounted to obstruction of justice when the President suggested their 
use in judicial proceedings. These cover stories ultimately found their 
way into drafts of Ms. Lewinsky's affidavit. The evidence establishes 
beyond a reasonable doubt that President Clinton was urging Ms. 
Lewinsky to file a false and misleading affidavit in the Jones case.
  As one court has observed, conduct amounting to less than an explicit 
command to lie can nonetheless form the basis for an obstruction 
conviction: ``The statute prohibits elliptical suggestions as much as 
it does direct commands.'' There is no reasonable doubt that President 
Clinton was suggesting that Ms. Lewinsky file an affidavit consistent 
with their previously-agreed upon cover stories. Ms. Lewinsky testified 
that she understood after that conversation that she would deny their 
relationship to Paula Jones' lawyers.
  The evidence also establishes beyond a reasonable doubt that 
President Clinton sought to tamper with the testimony of his secretary, 
Ms. Currie. Within a few hours of completing his deposition in the 
Jones case on Saturday, January 17, 1998, President Clinton called 
Betty Currie and made an unusual request: She should come to work to 
meet with him the following day, Sunday. Sunday afternoon, she met with 
him at her desk outside the Oval Office. Ms. Currie testified that he 
seemed ``concerned.'' He told her that he had been asked questions the 
previous day about Ms. Lewinsky. According to Ms. Currie, he then said, 
```There are several things you may want to know.''' After that, he 
made a series of statements:

       ``You were always there when she was there, right?''
       ``We were never really alone.''
       ``Monica came on to me, and I never touched her, right?''
       ``You can see and hear everything, right?''
       ``Monica wanted to have sex with me, but I told her I 
     couldn't do that.''

  Ms. Currie further testified that, although President Clinton did not 
``pressure'' her, she observed from his demeanor and the way he said 
these statements that he wanted her to agree with those statements. She 
did agree with each statement, though she knew them to be false or 
beyond her knowledge.

  There is no reasonable doubt that this meeting was an attempt by 
President Clinton to coach Ms. Currie's probable testimony. In fact, 
during the previous day's deposition, President Clinton invoked Ms. 
Currie's name in relation to Ms. Lewinsky on at least six different 
occasions, even going so far as to tell Ms. Jones' lawyers that they 
would have to ``ask Betty'' whether he was ever alone with Ms. Lewinsky 
between midnight and 6:00 a.m. Simply put, he made her a potential 
witness in the Jones case. One who attempts to corruptly influence the 
testimony of a prospective witness has obstructed justice. (In fact, 
the Jones lawyers issued a subpoena for Ms. Currie a few days after 
President Clinton's deposition.)
  President Clinton's assertion that he posed these statements to Ms. 
Currie merely to refresh his recollection and test her own memory of 
the events is undercut by his repetition of the coaching exercise a few 
days later. According to Ms. Currie, either two or three days later he 
called her in again, presented the same statements (with which she 
again agreed), and had the same ``tone and demeanor'' as he had during 
the Sunday coaching session. This amounted to egregious witness 
tampering.
  Last, the unrefuted evidence establishes beyond a reasonable doubt 
that

[[Page S1528]]

President Clinton obstructed justice by giving a false account of his 
relationship with Ms. Lewinsky to aides that, by his own admission, he 
knew might be called by the grand jury. John Podesta, then-Deputy Chief 
of Staff to President Clinton, testified before the grand jury about a 
conversation with President Clinton on January 23, 1998:

       [H]e said to me he had never had sex with her [Ms. 
     Lewinsky], and that--and that he never asked--you know, he 
     repeated the denial, but he was extremely explicit in saying 
     he never had sex with her.

                           *   *   *   *   *

       Well, I think he said--he said that--there was some spate 
     of, you know, what sex acts were counted, and he said that he 
     had never had sex with her in any way whatsoever--that they 
     had not had oral sex.

  This, as we now know, was false. Yet, according to Mr. Podesta, 
President Clinton ``was very forceful. I believed what he was saying.''
  More important, on January 21, 1998, President Clinton told aide 
Sidney Blumenthal the following utterly false story:

       He said, ``Monica Lewinsky came at me and made a sexual 
     demand on me.'' He rebuffed her. He said, ``I've gone down 
     that road before, I've caused pain for a lot of people and 
     I'm not going to do that again.''
       She threatened him. She said that she would tell people 
     they'd had an affair, that she was known as the stalker among 
     her peers, and that she hated it and if she had an affair or 
     said she had an affair then she wouldn't be a stalker any 
     more.

  This story is eerily reminiscent of President Clinton's coaching of 
Betty Currie (``Monica wanted to have sex with me, but I told her I 
couldn't do that.''). President Clinton sought to portray himself as a 
victim of Ms. Lewinsky. At the time, Mr. Blumenthal ``certainly 
believed his story. It was a very heartfelt story, he was pouring out 
his heart, and I believed him.'' Mr. Blumenthal admitted to the Senate 
that he now knows the President's story was a lie.
  President Clinton does not deny the testimony of either Mr. Podesta 
or Mr. Blumenthal. Their testimony establishes a clear-cut case of 
obstruction. The President admitted knowing that both were likely to be 
called to testify before the grand jury. According to their testimony, 
he provided them with a false account of his relationship with Ms. 
Lewinsky--and President Clinton does not deny their version of events. 
The unrefuted evidence establishes obstruction of justice. As the 
Second Circuit Court of Appeals has stated: ``The most obvious example 
of a section 1512 [witness tampering] violation may be the situation 
where a defendant tells a potential witness a false story as if the 
story were true, intending that the witness believe the story and 
testify to it before the grand jury.''
  I did not vote to convict President Clinton on every ground presented 
by the House Managers. For example, though I was concerned that the 
intensification of efforts to secure Ms. Lewinsky a private sector job 
were undertaken to influence her testimony (and secure a false 
affidavit from her), I had reasonable doubt that there was a 
sufficiently direct nexus between the two to justify finding against 
President Clinton on that basis. The videotaped testimony of Vernon 
Jordan nearly made the case, but fell just short. Accordingly, I did 
not consider that element of the obstruction of justice case to be 
grounds for removing President Clinton.
  Another serious allegation of obstruction of justice concerned the 
mysterious fact that subpoenaed gifts from President Clinton to Ms. 
Lewinsky were found underneath Ms. Currie's bed. The evidence tends to 
establish that President Clinton directed Ms. Currie to get gifts from 
Ms. Lewinsky; however, I cannot say that the proof establishes beyond a 
reasonable doubt that this occurred. In the absence of hearing directly 
from Ms. Currie as a witness on this issue and having the chance to 
look her in the eye and gauge her credibility, I cannot resolve beyond 
a reasonable doubt the testimonial conflict between Ms. Lewinsky and 
Ms. Currie on who initiated the return of the gifts. The weight of the 
evidence suggests that Ms. Currie initiated the return on instructions 
from President Clinton; however, without Ms. Currie's testimony, I 
cannot say that case has been proven ``beyond a reasonable doubt.''
  For this reason, I am disappointed that the Senate chose to cut 
itself off from hearing from whatever fact witnesses either side wished 
to call. I voted to allow live testimony, but the motion was 
unsuccessful. Although there was ample evidence upon which to convict 
for many allegations, some allegations remain in doubt. Rather than 
have a traditional trial, we listened to lawyers argue, then argue some 
more, and then a bit more. The only time we actually had a chance to 
see witnesses was when we were allowed to see the videotapes of Ms. 
Lewinsky, Mr. Jordan, and Mr. Blumenthal. I learned from those tapes. 
The presence of live witnesses in accord with Senate precedent would 
have been helpful. I regret that the Senate chose not to allow live 
witnesses and that we did not see their cross-examination. We did not 
use the most powerful weapons in our truth-seeking arsenal. This 
truncated ``trial'' may have been politically expedient, but I doubt 
history will judge it kindly.


                      High Crimes and Misdemeanors

  Having found that President Clinton committed the crimes of perjury 
and obstruction of justice, my duty to uphold the Constitution of the 
United States made it clear that these offenses were high crimes and 
misdemeanors requiring his removal from office. There is no serious 
question that perjury and obstruction of justice are high crimes and 
misdemeanors. Blackstone's famous Commentaries--widely read by the 
framers of the Constitution--put perjury on equal footing with bribery 
as a crime against the state. Perjury was understood to be as serious 
as bribery, which is specifically mentioned in the Constitution as a 
ground for impeachment. Today, we punish perjury and obstruction of 
justice at least as severely as we punish bribery. Apparently, the 
seriousness of perjury and obstruction of justice has not diminished 
over time.
  Indeed, our own Senate precedent establishes that perjury is a high 
crime and misdemeanor. The Senate has removed seven federal judges from 
office. During the 1980s, three judges were convicted for the high 
crime and misdemeanor of perjury. Federal judges are removed under the 
exact same Constitutional provision--Article II, section 4--upon which 
we remove presidents. To not remove President Clinton for grand jury 
perjury lowers uniquely the Constitution's removal standard, and thus 
requires less of the man who appoints all federal judges than we 
require of those judges themselves.
  I will have no part in the creation of a constitutional double-
standard to benefit the President. He is not above the law. If an 
ordinary citizen committed these crimes, he would go to jail. Many 
senators have voted to remove federal judges guilty of perjury, and I 
have no doubt that the Senate would do so again. Those who by their 
votes today confer immunity on the President for the same crimes do 
violence to the core principle that we are all entitled to equal 
justice under law.
  Moreover, I agree with the view of Judge Griffin Bell, President 
Jimmy Carter's Attorney General and a former Judge of the United States 
Court of Appeals, Fifth Circuit. Judge Bell has stated: ``A President 
cannot faithfully execute the laws if he himself is breaking them.'' 
These offenses--perjury and obstruction of justice--are not trivial; 
they represent an assault on the judicial process. Again, Judge Bell's 
words are instructive:

       Truth and fairness are the two essential elements in a 
     judicial system, and all of these statutes I mentioned, 
     perjury, tampering with a witness, obstruction of justice, 
     all [are] in the interest of truth. If we don't have truth in 
     the judicial process and in the court system in our country, 
     we don't have anything. So, this is serious business.

  I agree. The crimes of perjury and obstruction of justice are public 
crimes threatening the administration of justice. They therefore fit 
Alexander Hamilton's famous description of impeachable offenses in 
Federalist No. 65: ``[O]ffences which proceed from the misconduct of 
public men, or, in other words, from the abuse or violation of some 
public trust.'' The electorate entrusted President Clinton to enforce 
the laws, yet he chose to engage in a pattern of public crime against 
our system of justice. We must not countenance the commission of such 
serious crimes by the chief executive of our nation.
  The President broke his oath to tell the truth, the whole truth, and 
nothing

[[Page S1529]]

but the truth, so help him God. He likewise broke his oaths to take 
care that the laws be faithfully executed.
  Just how important are oaths? We take oaths to substantiate the 
sanctity of some of our highest callings. Years ago, I took the 
Hippocratic Oath to become a physician. In January 1995, I took an oath 
of office as a United States Senator to preserve, protect, and defend 
the Constitution of the United States. Then, just last month, I had to 
take a special oath of impartial justice for this impeachment trial. 
Raising your right hand and swearing before God is meant to be serious 
business. Swearing falsely is equally serious. I recall the conclusion 
of the Hippocratic Oath:

       If I fulfil this oath and do not violate it, may it be 
     granted to me to enjoy life and art, being honored with fame 
     among all men for all time to come; if I transgress it and 
     swear falsely, may the opposite of all this be my lot.

  President Clinton broke his oaths; the opposite of honor and fame 
should be his lot.
  Many of my colleagues have publicly expressed their belief that 
President Clinton broke his oaths and committed the crimes of perjury 
and obstruction of justice. Some have gone further and said that these 
are high crimes and misdemeanors. Yet they flinched from removing 
President Clinton from office, hoping that we could just move on, put 
this behind us, and ``heal'' the Nation.
  Although our acquittal of President Clinton may bring initial relief 
at the end of this ordeal, it will also leave unfortunate, lasting 
lessons for the American people: Integrity is a second-class value; the 
hard job of being truthful is to be left to others; and virtue is for 
the credulous. Though we do not know how these lessons will manifest 
themselves over time in our society, they will not be lost. Thus, I do 
not believe the acquittal of President Clinton will heal the wounds of 
this ordeal; rather, acquittal regrettably will inject a slow-acting 
moral poison into the American consciousness.


                          Concluding Thoughts

  There is one aspect of the case that made me uncomfortable: The 
perjury and obstruction of justice arose out of an illicit sexual 
relationship between President Clinton and a young White House intern. 
President Clinton no doubt sought to shield the knowledge of that 
relationship from his family and staff, and that impulse is 
understandable. However reprehensible his affair might be, both it and 
his efforts to hide it were originally of no concern to the public or 
the Senate. None of us can claim to be free from sin.
  What began as an attempt to keep an affair secret from family and co-
workers, however, escalated into illegal activity when keeping that 
affair secret trumped the civil rights of Paula Jones to seek redress 
in court, and, in turn, thwarted the investigation of a federal grand 
jury. President Clinton chose to cheat. Cheating the judicial process, 
whether to keep an ordinary citizen from having her day in court or to 
avoid criminal indictment, is wrong.
  Dr. William Osler was a late 19th century physician and is regarded 
as the father of modern surgery. In a lecture to his medical students 
about the pursuit of truth, he said:

       Start with the conviction that absolute truth is hard to 
     reach in matters relating to our fellow creatures, healthy or 
     diseased, that slips in observation are inevitable even with 
     the best trained faculties, that errors in judgment must 
     occur in the practice of an art which consists largely in 
     balancing probabilities.
       Start, I say, with this attitude of mind, and mistakes will 
     be acknowledged and regretted; but instead of a slow process 
     of self-deception, with ever-increasing inability to 
     recognize truth, you will draw from your errors the very 
     lessons which may enable you to avoid their repetition.

  President Clinton's repetition of wrong, often illegal choices most 
disturbs me. He faced a series of choices about his affair once our 
system of justice became concerned with it. He could have come clean in 
the civil deposition and urged Ms. Lewinsky to do the same. He did not. 
When the story became public, he could have then come clean to the 
American public and revised his deposition testimony. Instead, he took 
a poll. Having learned that the American people would forgive him for 
adultery, but not for perjury or obstruction of justice, he declared 
that he would just have to ``win.'' He then wagged his finger at us on 
national TV and chided us for believing what has since proven true. He 
embarked on a quiet smear campaign against Ms. Lewinsky, calling her a 
``stalker'' and sending aides into the grand jury to repeat that mean-
spirited falsehood. Above all else, he could have come clean when he 
went before the grand jury. Indeed, the discovery of the infamous blue 
dress served as a powerful reminder to tell the truth. But he continued 
to lie.
  The pattern of behavior is disturbing. That pattern is driven by 
President Clinton's choice, on every occasion in this saga, to put his 
self-interest above the the public interest. Indeed, President Clinton 
is well down the dangerous road Dr. Osler described to his students: 
``A slow process of self-deception.''
  To me, his perjury before the grand jury was defining. Some of my 
fellow senators urged him not to lie in that grand jury, lest he be 
impeached. He had a chance to try to set matters right by the American 
people and by our system of justice. Instead, he lied. It has been 
said, ``Character is what we know about ourselves. Reputation is what 
others know about us.'' What we now know about President Clinton's 
conduct before the bar of justice illuminates his integrity: We learned 
that he always cheated and put himself above the law. We can pray that 
God forgive President Clinton for his sins, but we cannot ignore the 
consequences of his behavior to our society.
  We in the Senate faced the difficult choice of deciding whether to 
remove President Clinton. To find him ``not guilty'' of perjury and 
obstruction of justice and leave him in office would corrode the 
respect we all have for the Office of President. More troubling, the 
example to our youth would be destructive. I have three sons, 15, 13, 
and 11 years old. As anyone with children knows, President Clinton's 
conduct has undermined all our efforts to instill in our children two 
essential virtues: truthfulness and responsibility. If we allow a known 
perjurer and obstructor of justice to continue in the Office of 
President and lead us into the 21st Century, we set a sad example for 
future generations.
  In a recent sermon on the topic, ``What Do I Tell My Children about 
the Crisis in Washington?'' a minister quoted from Michael Novak's book 
The Experience of Nothingness:

       The young have a right to learn a way of discriminating 
     right from wrong, the posed from the authentic, the excellent 
     from the mediocre, the brilliant from the philistine, the 
     shoddy from the workmanlike. When no one with experience 
     bothers to insist--to insist--on such discrimination, they 
     rightly get the idea that discernment is not important, that 
     no one cares either about such things--or about them.

  President Clinton committed perjury and obstructed justice. In so 
doing, he broke his oath of office and his oath to tell the truth. He 
broke the public trust. I took an oath to do impartial justice by the 
Constitution and laws of our country. I had a duty to the Constitution 
and laws of this nation to convict President Clinton, so I voted to 
remove him from office and restore the trust of the American people in 
the high Office of President. Prosperity is never an excuse to keep a 
President who has committed High Crimes and Misdemeanors.
  Though many of my colleagues agreed with these conclusions, two-
thirds of the Senate did not. I am concerned about the message this 
acquittal will send to our youth. So, I am convinced that you and I now 
have a shared duty: Rather than give in to easy cynicism, we should 
work toward integrity and responsibility in all that we do. We must 
remind our children that telling the truth and accepting responsibility 
for wrongdoing are virtues with currency. Our nation's future depends 
on how earnestly we fulfill that shared duty.
  Mr. BUNNING. This is my first speech on the floor of the U.S. Senate. 
I had hoped my opening speech would be about Social Security. This 
year, in my opinion, we have a golden window of opportunity to reform 
and strengthen this vital program and I had hoped to use my first 
comments on the Senate floor to help open the debate on real Social 
Security reform.
  Unfortunately, it didn't turn out that way. Of necessity, my opening 
speech in this body is about the Articles of Impeachment against 
President Clinton. It was not my choice!

[[Page S1530]]

  In fact, none of us have much choice in this matter. Here in the U.S. 
Senate, we have been charged with the responsibility of looking at the 
facts as presented by the managers from the House of Representatives. 
Each of us took an oath to do impartial justice.
  And the Constitution doesn't give us much wiggle room when it comes 
to choices. The Framers were pretty explicit about out options. If we 
determine that the President is guilty of the charges as outlined in 
the two Articles of Impeachment, the penalty is removal from office. We 
have no other choice.
  Because we are all political animals, I think it is natural that the 
legitimacy of this process and the outcome of this debate will be 
clouded to some degree by the perception that it is a partisan 
exercise.
  Many of the President's defenders and many of our friends in the 
media, in fact, have insisted all along that the whole process has been 
driven by partisan Republicans who are intent to removing a Democrat 
President they do not like from office.
  The difficulty you run into when you start throwing around the term 
``partisan'' politics is that is seldom a one-way street.
  Is it any more ``partisan'' to blindly support the impeachment of a 
President of the other party than it is to blindly support a President 
of your own regardless of the facts? Of course not. Just as each of us, 
in keeping with our oath to do impartial justice, must strive to avoid 
a partisan, knee-jerk solution to the process, we must also not let 
ourselves be deterred from doing what we feel is right simply to avoid 
charges of partisanship.
  So, hiding behind the charge that the process has been tainted by 
political partisanship gives us no relief from our responsibility to 
look at the facts nor does it expand our choices.
  So, it is the facts that matter. And each of us must weigh them 
individually. We are not taking about public opinion polls. They should 
have no bearing on the case at this point. It is a question of facts 
pure and simple.
  Each of us must weigh those facts individually. We might reach 
different conclusions. But if I determine that the president is guilty, 
and if you determine that the president is guilty, based on those facts 
we don't have any options. We must vote to convict and to remove the 
President from office.
  I am personally convinced that the President is guilty under both of 
the Articles of Impeachment presented to us by the House Managers.
  The managers from the House have presented a strong case that 
President Clinton committed perjury. The circumstantial and supporting 
evidence is overwhelming that Bill Clinton did lie under oath to the 
grand jury when he testified about his attorney's use of a false 
affidavit at his deposition. He lied under oath to the grand jury when 
he testified about the nature of his relationship with Miss Lewinsky. 
He lied under oath about what he told his aides about his relationship 
with Miss Lewinksky. He lied under oath to the grand jury when he 
testified about the nature of his relationship with Miss Lewinsky. He 
lied under oath about what he told his aides about his relationship 
with Miss Lewinsky. He lied under oath to the grand jury about his 
conversations with Betty Currie.
  That is perjury. That is a felony. We cannot uphold our reverence for 
the rule of law and ignore it.
  The circumstantial and supporting evidence is also overwhelming that 
the President did willfully obstruct justice when he encouraged Miss 
Lewinsky to file a affidavit in the Jones case; when he coached Betty 
Currie on how to respond to questions about his relationship with Miss 
Lewinsky.
  When he lied to aides whom he knew would be called as a grand jury 
witnesses, when he promoted a job search for Miss Lewinsky, and when he 
encouraged Miss Lewinsky to return the gifts he had given her, he was 
attempting to obstruct justice.

  After listening to the facts and the evidence, and after listening to 
the President's defense team try to refute the charges, I have 
determined that he is guilty as charged.
  I have tried to the best of my ability to reach this determination 
impartially without being biased by my political affiliation. Have I 
been successful? I believe so.
  I am encouraged in the belief that I have reached the proper 
conclusion for the proper reasons by the harsh wording of the 
resolution being circulated by some of the defenders of the President, 
senators who oppose impeachment but support a censure resolution.
  The most recent version of a censure resolution that I have seen 
admits that the President engaged in shameless, reckless and 
indefensible conduct. It goes on to say that the President of the 
United States deliberately misled and deceived the American people and 
officials of the United States government.
  It also says that the President gave false or misleading testimony, 
and impeded discovery of evidence in judicial proceedings and that, as 
a result, he deserves censure.
  These are the people who are opposed to the Articles of Impeachment.
  The Constitution doesn't really give us that kind of choice. If the 
President is guilty of these charges, he must be convicted and he must 
be removed from office. Censure is not an option.
  I would rather be speaking about Social Security but I wasn't given a 
choice in the matter.
  I would prefer not to vote to convict any President of Articles of 
Impeachment. But I don't have a choice in that matter either.
  If he is guilty, he must be convicted. And I believe he is guilty as 
charged.
  There is one central, elemental ingredient that is necessary to the 
success of our ability, as a nation, to govern ourselves. That is 
trust.
  Before a President takes office, he swears a solemn oath, to 
``preserve, protect and defend the Constitution of the United States.''
  We accept his word on that.
  When the Vice President, United States Senators and members of the 
House of Representatives take office, they are required to take an oath 
``to support and defend the Constitution of the United States against 
all enemies, foreign and domestic.''
  We trust that they will live up to that oath.
  We administer these oaths and we accept them as binding because 
government, at least in this nation, is, above all else, a matter of 
trust. Trust is the glue that holds it all together. If that trust is 
destroyed or tarnished, it seriously undermines the basic foundations 
of our government.
  The President's defenders try to excuse him by saying that if he did 
lie under oath and obstruct justice, he did it to protect himself and 
his family from personal embarrassment about sexual indiscretions, and 
somehow this makes the lies all right.
  It doesn't. When he lied and when he tried to hide his lies from the 
grand jury, he broke trust with the nation's justice system. He broke 
faith with the American people.
  Not only did he break the law, he also violated the sacred trust of 
the office of the President. And in so doing, he violated his oath of 
office.
  And that raises the two Articles of Impeachment to a level that 
definitely justifies his removal from office.
  It is a matter of trust. And it leaves us no choice but to vote for 
conviction.
  Mr. DURBIN. From the opening statement to the closing argument, 
Chairman Henry Hyde and the House managers stated repeatedly that what 
is at stake in this trial is the rule of law.
  In a compelling reference to the life of Sir Thomas More, Mr. Hyde 
quoted from ``A Man for All Seasons'' by Robert Bolt to remind us that 
More was prepared to die rather than swear a false oath of loyalty to 
the King and his church.
  But Mr. Hyde did not read my favorite passage from that work. Let me 
share it with you and tell you why I think it is important to us in 
this deliberation.

       MORE. The law, Roper, the law. I know what's legal not 
     what's right. And I'll stick to what's legal.
       ROPER. Then you set Man's law above God's!
       MORE. No far below; but let me draw your attention to a 
     fact--I'm not God. The currents and eddies of right and 
     wrong, which you find such plain-sailing, I can't navigate, 
     I'm no voyager. But in the thickets of the law, oh there I'm 
     a forester. I doubt if there's a man alive who could follow 
     me there, thank God.
       ALICE. While you talk, he's gone!
       MORE. And go he should if he was the devil himself until he 
     broke the law!
       ROPER. So now you'd give the Devil benefit of law!
       MORE. Yes. What would you do? Cut a great road through the 
     law to get after the Devil?

[[Page S1531]]

       ROPER. I'd cut down every law in England to do that!
       MORE. Oh? And when the last law was down, and the Devil 
     turned round on you--where would you hide, Roper, the laws 
     all being flat? This country's planted thick with laws from 
     coast to coast--Man's laws, not God's--and if you cut them 
     down--and you're just the man to do it--d'you really think 
     you could stand upright in the winds that would blow then? 
     Yes, I'd give the Devil benefit of law, for my own safety's 
     sake.

  Sir Thomas More's words remind us the law must be followed not only 
by the accused but also by the accusers.
  And every day in America many who are accused of crimes are released 
because this government has violated their constitutional rights--
denied them due process--forsaken the rule of law.
  How American of us--we are prepared to release an accused because the 
accuser has not played by the rules * * * the rules of law.
  The House managers built their case on one key question: Did the 
President respect the rule of law?
  But the same managers who exalted the rule of law from their opening 
words would have us ignore the process which brought us to this moment:
  An independent counsel in name only whose conduct before the House 
Judiciary Committee led Sam Dash, former Watergate counsel and Mr. 
Starr's ethics advisor, to resign in protest.
  Listen to Dash's words to Kenneth Starr in his letter of resignation 
concerning Starr's appearance and testimony:

       In doing this you have violated your obligation under the 
     Independent Counsel Statute and have unlawfully intruded on 
     the power of impeachment, which the Constitution gives solely 
     to the House. . .. By your willingness to serve in this 
     improper role (advocating for impeachment) you have seriously 
     harmed the public confidence in the independence and 
     objectivity of your office.

  Much has been made about the so-called pep rally which some House 
Democrats held for President Clinton at the White House after the 
impeachment vote. If you wonder how those members could act in such an 
apparently partisan manner after the historic vote on December 19, 
1998, I hope you will recall that the Republican members of the House 
Judiciary Committee gave Mr. Starr nothing less than a standing ovation 
when he completed testimony which Mr. Dash characterized as 
``unlawful'' and ``improper''.
  Is it any wonder why the American people think this whole impeachment 
process reeks of partisanship and the excesses of the Independent 
Counsel have created a bipartisan sentiment to amend if not abolish 
that statute?
  Did Mr. Starr respect the rule of law?
  And the House Judiciary Committee--so anxious to complete its work in 
a lame-duck session that it would vote for impeachment without calling 
a single material witness. Then those same managers came to the Senate 
and argued justice cannot be served without live witnesses on the 
Senate floor.
  When I listen to Paul Sarbanes recount the painstaking efforts to 
avoid partisanship during the impeachment hearing on President Nixon, 
it is a stark contrast to the committee process which voted these 
articles of impeachment against President Clinton.
  Did the House Judiciary Committee respect the rule of law?
  And the House of Representatives, an institution which I was proud to 
serve in for 14 years, was so hellbent on impeachment that it bent the 
rules, denied the regular order of business and refused the House a 
vote to censure this President so the Majority would have a better 
chance to visit the disgrace of impeachment on his record.
  Did the House of Representatives respect the rule of law?
  But it would be too facile to dismiss this case simply because the 
process which brought us to this point is so suspect--too easy to 
discard the fruit of this poisoned tree.

  Justice and history will not give us this easy exit. We must ignore 
the birthing of this impeachment and judge it on its merits.
  First, let me stipulate the obvious. The personal conduct of this 
President has been disgraceful and dishonorable. He has brought shame 
on himself and his Presidency. No one--not any Senator in this Chamber 
nor any person in this country--will look at this President in the same 
way again.
  I have known Bill Clinton for 35 years. I remember him as a popular 
student when we both attended Georgetown. And I know despite all of the 
talk about ``compartmentalization'' that this man has suffered the 
greatest humiliation of any President in our history. I hope his 
marriage and his family can survive it.
  But our job is not to judge Bill Clinton as a person, a husband, a 
father. Our responsibility under the Constitution is to judge Bill 
Clinton as a President, not whether he should be an object of scorn but 
whether he should be removed from office.
  Did William Jefferson Clinton commit perjury or obstruct justice, and 
for these acts should he be removed from office?
  When this trial began I believed that President Clinton's only refuge 
was in a strict reading of ``high crimes and misdemeanors''--that James 
Madison, George Mason and Alexander Hamilton would have to serve as his 
defense team and save this President from removal.
  The managers' case was compelling, but as the defense team rebutted 
their evidence I saw the charges of perjury crack, obstruction of 
justice crumble and impeachment collapse.
  The managers failed in Article I on perjury to meet the most basic 
requirement of the law: specificity. In the Andrew Johnson impeachment 
trial, Senator William Fessenden of Maine pointed out the unfairness of 
failing to name specific charges:

       It would be contrary to every principle of justice to the 
     clearest dictates of right, to try and condemn any man, 
     however guilty he may be thought, for an offense not charged, 
     of which no notice has been given to him, and against which 
     he has had no opportunity to defend himself.

  Senator Fessenden understood the rule of law.
  And by what standard should the President be judged?
  When the House managers discussed the gravity of the case for 
impeachment, they said repeatedly: ``These are crimes.'' But when asked 
why they failed to meet the most basic criminal procedural requirements 
of pleading and proof, Mr. Canady said: ``This proceeding is not a 
criminal trial.''
  And what is the difference between charging a crime and proving 
something less than a crime? The difference is known as the rule of 
law--a rule which requires fair notice and due process whether the 
accused is President or penniless.
  How many times have we seen the House managers run into the brick 
wall of sworn testimony contradicting their charges. On gifts--Monica 
Lewinsky said hiding them was Betty Currie's idea--Betty Currie claimed 
it was Lewinsky's idea--neither of them claimed it was the President's 
idea. On the affidavit issue--the House Managers could not produce one 
witness--not Lewinsky, not Jordan and not the President to support 
their charge of obstruction.
  Time and again the House managers failed to prove their case--failed 
to produce testimony or evidence and at best played to a draw. I don't 
need to remind my colleagues in the Senate that playing to a draw on 
this field comes down in favor of the President.
  The House managers failed to meet their burden of proof.
  And let me say a word about witnesses.
  We have spent a lot of time on this issue. I do not know who came up 
with the limitation of three witnesses for the managers. But is there 
anyone in this chamber who believes that Sidney Blumenthal was a more 
valuable witness to this case than Betty Currie?
  Surely my colleagues in the Senate remember that the House managers 
spent three solid days building their obstruction of justice case on 
concealing gifts and tampering with witnesses. And Betty Currie was 
critical to the most credible charges against the President.
  Then when the House managers were given a chance to call this key 
witness, they refused.
  And what can we conclude from this tactical decision? Let me read 
Rule 14.15 from Instructions for Federal Criminal Cases.

       If it is peculiarly within the power of either the 
     government or the defense to produce a witness who could give 
     relevant testimony on an issue in the case, failure to call 
     that witness may give rise to an inference that this 
     testimony would have been unfavorable to that party. No such 
     conclusion should be drawn by you, however, with regard to a 
     witness who is equally available

[[Page S1532]]

     to both parties or where the testimony of that witness would 
     be merely cumulative.
       The jury must always bear in mind that the law never 
     imposes on a defendant in a criminal case the burden or duty 
     of calling any witnesses or producing any evidence.

  Betty Currie was no help to the House managers in her deposition and 
they clearly concluded she was more likely to hurt than help their case 
if called as a witness. The key witness in the obstruction of justice 
charge never materialized and neither did the proof the House managers 
needed.
  How will history judge this chapter in our history?
  The House managers and many of my colleagues believe an acquittal 
will violate the basic American principle of equal justice under the 
law--they argue that acquitting the President will cheapen the 
Presidency--and imperil our nation and its values.
  I have heard my colleagues stand in disbelief that the American 
people could still want a man they find so lacking in character to 
continue as their President. William Bennett and his pharisaical 
followers have profited from books and lectures decrying the lack of 
moral outrage in our nation against Bill Clinton.

  I hope my colleagues will pause and reflect on this conclusion that 
the American people have somehow lost their moral compass--that the 
polls demonstrate our people have lost their soul--and that we, their 
elected leaders, have to impeach this President to remind the American 
people of the values--the integrity--the honor which is so important to 
our nation.
  May I respectfully suggest that those who appoint themselves as the 
guardians of moral order in America risk the vices of pride and 
arrogance themselves. Before we don the armor and choose our side in 
what Manager Hyde calls a ``cultural war,'' let us not give up on the 
wisdom and judgement of the people we represent.
  Like Abraham Lincoln, I am a firm believer in the American people. If 
given the truth they can be depended upon to meet any national crisis.
  And the American people have this right. The President's personal 
conduct was clearly wrong. He has endured embarrassment and will spend 
the rest of his natural life and forever in the annals of history 
branded by this experience. The American people clearly believe that 
the process which brings him before us in this trial was too partisan, 
too unfair, too suspect.
  What has occurred here is a personal and family tragedy--it is not a 
national tragedy which should result in the removal of this President 
from office.
  In 1798, Thomas Jefferson wrote to James Madison: ``History shows 
that in England, impeachment has been an engine more of passion than 
justice.''
  Jefferson feared that even our process for impeachment could be a 
formidable partisan weapon. He feared that a determined faction in 
Congress would use it ``. . .for getting rid of any man whom they 
consider as dangerous to their views, and I do not know that we could 
count on one-third in an emergency.''
  In 1868, with the suffering and death of our Civil War still fresh in 
everyone's mind, this Senate came within one vote of impeaching a 
President who was viewed as too sympathetic to the vanquished South.
  In 1999, after six years and millions of tax dollars spent in 
investigation of this President, I believe the Senate will once again 
cool the political passions, preserve the Presidency, protect the 
Constitution, and prove to Thomas Jefferson that his trust in this body 
and that great document was not misplaced.
  I will vote to acquit William Jefferson Clinton on both Articles of 
Impeachment and support a strong resolution of censure to bring this 
sad chapter in American politics to a close.
  Mr. KYL. This case is about the rule of law--specifically, whether 
actions and statements of President Clinton in federal court 
proceedings have done such harm to the rule of law that he should be 
removed from office. I conclude in the affirmative, and reluctantly 
vote to convict on both Articles of Impeachment.
  Chairman Henry Hyde observed that the House of Representatives had 
come to the Senate ``as advocates for the rule of law, for equal 
justice under law, and for the sanctity of the oath.'' (145 Cong. Rec. 
S221 (January 14, 1999).)
  These are not just grand words.
  The rule of law refers to our judicial process, which is governed by 
uniform standards and procedures that we say will always be guaranteed 
and applied fairly and equally. We are willing to submit ourselves to 
this process because we have worked hard for 210 years to ensure that 
it produces impartial justice for all.
  Equal justice means that each of us, including the least among us, 
has rights that the state is bound to protect; and it surely includes 
the requirement that those who make the laws (including the President) 
must live under them like anybody else.
  And oaths are essential to the rule of law because the judicial 
process is about seeking the truth; and that requires that we be able 
to trust what is said. The oath formalizes the commitment to tell the 
truth, and the whole truth--a commitment so important that its 
violation is itself a crime.
  I believe there are two questions to be answered.
  The first is whether the President impermissibly took the law into 
his own hands in a federal civil rights case and seven months later 
before a federal grand jury in order to suppress the truth. The second 
question is whether, if the President did engage in the impeachable 
conduct, it is a breach serious enough to warrant removal from office.
  The Constitution permits only one vote: to acquit or convict. This 
leaves some in the anomalous position of determining guilt on an 
impeachable offense, but having to vote to acquit because they deem the 
offense insufficiently serious to warrant removal. While the fact that 
the offense is impeachable should itself resolve the issue of 
``proportionality,'' I would not consider it impermissible to reach a 
contrary conclusion, as some will do in this case.
  For my part, I answer both questions in the affirmative. The 
President ``wilfully provided perjurious, false, and misleading 
testimony'' under oath to a grand jury and he ``prevented, obstructed, 
and impeded the administration of justice.'' (H. Res. 611).
  While the House of Representatives asserted that the President's 
actions were criminal, violations of specific criminal statutes are not 
essential for wrongful conduct to constitute the ``high crimes and 
misdemeanors'' that demonstrate unfitness to continue as Chief 
Executive. Most authorities agree a President cannot be prosecuted 
while in office for crimes allegedly committed during his term. So, for 
example, whether a lie under oath would necessarily later result in a 
criminal perjury conviction cannot be known with certainty, and an 
impeachment trial is not an effective forum for establishing criminal 
guilt. It is conduct, not a proven crime, that is the basis for 
impeachment.
  This is one of the reasons why it is clear that each Senator may 
apply his or her standard of proof--it need not be the criminal 
standard ``beyond a reasonable doubt.'' (See Senate Proceedings in the 
Impeachment Trial of Judge Claiborne, S. Doc. No. 99-48, at 150.) 
Moreover, because the Senate constrained the House of Representatives 
as it did--by limiting the number of witnesses that could be deposed, 
by effectively foreclosing other discovery, and by precluding ``live'' 
testimony--it would be unfair to impose a ``beyond reasonable doubt'' 
standard.
  The President's counsel argued that the Senate should not consider 
Article I because the House of Representatives defeated a perjury count 
relating to the Jones civil action. But Article I also included 
allegations of ``perjurious, false, and misleading'' statements in the 
Jones case; so the argument is meritless. Moreover, the President's 
falsehoods in the Jones civil suit also formed part of his strategy to 
obstruct justice.

  What is striking about this case is the President's persistent, 
sustained, carefully calculated, deliberate, and callous manipulation 
of the judicial process for over a year.
  Without attempting to summarize all of the evidence, I conclude that 
the President lied before the federal grand jury about (1) the nature 
of details of his relationship with Ms. Lewinsky; (2) his assertion 
that he told the truth in the Jones deposition; (3) the false and 
misleading statements that he allowed his lawyer to make to a federal 
judge

[[Page S1533]]

in the Paula Jones civil case; and (4) his corrupt efforts to influence 
the testimony of his aides who were potential grand jury witnesses.
  And it seems clear to me that the President obstructed justice--that 
he corruptly: (1) encouraged Ms. Lewinsky to execute a false affidavit; 
(2) encouraged Ms. Lewinsky to lie if called as a witness; (3) 
encouraged Ms. Lewinsky to conceal gifts; (4) encouraged cooperation of 
Ms. Lewinsky through job assistance; (5) allowed his attorney to make 
false and misleading statements about the affidavit; (6) attempted to 
influence the testimony of his secretary, Ms. Currie; and (7) attempted 
to influence the testimony of other aides.
  The final question is whether the President should be removed for his 
actions.
  As a preliminary matter, there can be no doubt that perjurious, 
false, and misleading statements made under oath in federal court 
proceedings are indeed impeachable offenses. The fact that the House of 
Representatives reached this conclusion, of course, establishes the 
precedent as to the kind of conduct in this case. But, it is also 
confirmed by the impeachment and conviction of federal judges--of Judge 
Harry Claiborne, removed in 1986 for filing a false income tax return 
under penalty of perjury, of Judge Walter Nixon, removed in 1989 for 
perjury before a grand jury, and of Judge Alcee Hastings, removed in 
1989 for perjury related to financial misconduct. I cannot agree with 
those colleagues who assert that there is a different standard for a 
President--that it would require a more egregious kind of perjury to 
remove a President than a judge. Nothing in the Constitution suggests 
such a double standard.
  John Jay, the first Chief Justice of the United States, said ``there 
is no crime more extensively pernicious to society'' than perjury, 
precisely because it ``discolors and poisons the streams of justice.'' 
(Grand Jury Charge (C.C.D.N.Y. (Apr. 5, 1792)) (Jay, C.J.), in 2 The 
Documentary History of the Supreme Court of the United States, 1789-
1800: The Justices on Circuit: 1790-1794, at 253, 255 (Maeva Marcus 
ed., 1988).)
  As to obstruction of justice, on which there is no other direct 
precedent, Chief Justice Rehnquist, our presiding officer, in his 
history of impeachment, Grand Inquests, wrote that ``the counts 
relating to the obstruction of justice and to the unlawful use of 
executive power [by President Nixon] were of the kind that would surely 
have justified removal from office.''
  The House mangers pointed out, accurately, that even though perjury 
and obstruction of justice are not specifically listed as impeachable 
offenses in the Constitution, the Federal Sentencing Guidelines treat 
these offenses more seriously than they do the crime of bribery--one of 
two specifically enumerated impeachable offenses. Significantly, where 
bribery is committed in connection with a judicial proceeding (such as 
bribing a witness in a case), its seriousness under the Guidelines 
rises to that of perjury and obstruction. When misdeeds, in other 
words, take place in connection with a judicial process, to try to 
affect or control that process, they get extra attention in our legal 
system. They are not simply brushed aside. Far from it. Perjury and 
obstruction are like bribery; they are ``other high crimes'' by any 
reasonable construction.
  The President's counsel argued that the President's conduct could not 
be impeachable because he did not abuse the power of his office in 
conducting ``matters of state,'' and did not violate the public trust. 
But impeachable offenses are not limited to the President's conduct of 
``matters of state.'' If this were so, Richard Nixon could never have 
been impeached. If this were so, a twenty dollar bribe for a Senator to 
vote for a bill would be impeachable, while a million dollar bribe to 
cover up political dirty tricks would not be.

  It simply cannot be, as some have argued, that the only impeachable 
offenses are those that can only be committed by the President. If a 
President commits murder, can he not be removed? Must we wait until his 
term is over to deal with his crime? It is clear that seriously 
wrongful official conduct is impeachable. But it is just as clear that 
impeachment cannot be limited to that.
  It is not only the exercise of presidential power but also the 
violation of a public duty that can constitute impeachable conduct. As 
the head of the Executive Branch, the President has the duty under 
Article II of the Constitution to ``take Care that the Laws be 
faithfully executed.'' The 1974 House Judiciary report on the 
``Constitutional Grounds for Presidential Impeachment'' summarized that 
impeachment of a President can ``be predicted only upon conduct 
seriously incompatible with either the constitutional form and 
principles of our government or the proper performance of 
constitutional duties of the presidential office.'' (Staff of House 
Comm. on the Judiciary, 93rd Cong., 2d Sess. (Comm. Print 1974), 
Constitutional Grounds for Presidential Impeachment, at 24.) Surely the 
violation of constitutional obligations can constitute high crimes or 
misdemeanors for which the President may be impeached. And surely, such 
violation would constitute an abuse of trust by the Chief Executive.
  By his oath of office and Article II responsibilities, President 
Clinton is supposed to see that the sexual discrimination laws are 
faithfully executed. But he thought the Jones case was illegitimate, so 
he took the law into his own hands. His conduct in this case clearly 
violated his public duties, his oath, and the public trust. And it 
interfered with the proper functioning of another branch of the 
government.
  The same is true for his deliberate efforts to impede legitimate 
discovery efforts in federal court proceedings. Such action ``is 
incompatible with . . . the constitutional form and principles of our 
government,'' as the 1974 House Judiciary report said. It simply cannot 
be that a President who wrongfully interferes with the proper 
functioning of another branch of our government by attempting to 
subvert justice in federal court proceedings cannot be impeached 
because he did not do it as President, but, rather, as a citizen.
  That the underlying conduct covered up is sexual, is, if anything, 
an aggravating not a mitigating factor. In sex-discrimination 
litigation, where there is frequently no corroboration for the 
plaintiff, a defendant who lies can easily subvert justice. Had the 
blue dress not been found, with its incontrovertible tangible evidence, 
I doubt Paula Jones would have gotten a dime in settlement.

  Judgements about the severity of the impeachable conduct in this case 
will lead different Senators to reach different conclusions. That is 
why some of us are willing to say reasonable people can differ. For 
those who fear the long-term consequences to the rule of law, however, 
I believe there can be only one result. Anyone who so willfully, 
callously, and persistently connived to deny the federal court and 
grand jury the truth, and who used and abused the highest office in the 
land to advance his personal cover-up is not only no longer worthy of 
trust--which all agree is essential to the conduct of his office--but 
also must be removed to avoid the perpetuation of a legal double 
standard. If federal judges (such as Judges Clairborne, Nixon, and 
Hastings) are removed for similar conduct; if average Americans are 
imprisoned for it, can the rule of law long survive ``special 
exceptions'' for powerful people we like, or who are doing a good job, 
or who hold elective office? None of these rationalizations are 
defenses to illegal or impeachable conduct.
  As I said, sexual harassment cases are precisely the kind of judicial 
proceedings that demand the maximum cooperation of and truth-telling by 
the defendant, because of the lack of third-party witnesses or 
corroborating evidence. In these cases, justice is denied if 
obstruction, witness tampering, or perjury prevent the truth from 
coming out. Can anyone say this is not serious? To what standard of 
seriousness does it not rise? How many plaintiffs will have to lose 
their sexual harassment, domestic violence, or sexual assault cases 
because defendants lie and obstruct justice (and there is no blue dress 
to keep them honest) before it becomes serious?
  An acquittal in this case will make it harder to deal properly with 
similar conduct in the future. We will be hard pressed to perpetuate a 
double standard, so the lowest common denominator of conduct will be 
established as the permissible norm. And this cannot help but weaken 
the ability of courts

[[Page S1534]]

to enforce truth-telling and prevent obstruction of justice.
  The precedent set by this case may not change the law overnight, but 
this unforgettable episode is now part of the institutional life of our 
country. The chief magistrate perverted justice and remained in power. 
The lesson is corrosive. Like water dripping on a rock, it eventually 
makes a deep hollow in the American justice system.
  It is true the President could be sent to jail later. How does that 
validate his right to appoint judges and be head of U.S. law 
enforcement now? How does that square with his leadership of the armed 
forces right now, as our Commander-in-Chief? Should the standard for 
the President not be at least as high as for those he appoints and 
leads?
  In the end, my colleagues who would censure rather than convict the 
President are right about one thing: the President's conduct is 
``unacceptable.'' But, if conduct is unacceptable, we cannot accept 
it--meaning, we have to do something about it that does not leave it 
stand. And under our Constitution that means removal of the President 
through conviction on the Articles of Impeachment.
  Henry Hyde closed the House case by warning that public cynicism is 
the greatest threat we face. Our failure to remove the President will 
only fuel the cynicism of Americans such as Louie Valenzuela of 
Glendale, Arizona. He was quoted recently in a man-on-the-street 
interview about this case. ``They talk about justice,'' he told the 
Arizona Republic. ``They talk about doing the right thing,'' said Mr. 
Valenzuela. ``But they always look the other way when someone rich, 
famous or powerful does something wrong. Look at O.J. Simpson. Clinton 
will be next. Asi es. (That's just the way it is.)''
  That is not the way it has to be. But how it is, is up to us.
  Mr. SPECTER. Mr. Chief Justice, colleagues, a great deal has been 
spoken in the Chamber about separation of powers and tomes have been 
written on it. And in reading the Constitution, article I, creating the 
Congress; and article II, the executive branch; and article III, the 
judiciary, we have seen the wisdom of limiting power.
  The one provision of the Constitution--the impeachment provision--
reaches across that divide. It is my thinking that before the Congress 
can exercise the power of removal, there has to be a very, very heavy 
burden of proof.
  I had occasion, fairly recently, to go very deeply into the issue of 
separation of powers when I argued the Base Closing Commission case 
regarding the Philadelphia Navy Yard case, which was unfairly closed--a 
subject that I will not amplify on--and I had an opportunity to appear 
before the Supreme Court. I will end on time, as I did on my other two 
speeches, but I will say that the Chief Justice is a good deal more 
tolerant here than in the Supreme Court. In the Supreme Court, I was 
cut off in midsyllable. I didn't know that was possible. But with the 
forcefulness of the Presiding Officer, I did not do well in that case. 
I had done better on my previous appearances in the Supreme Court when 
I was representing the district attorney's office on law and order.
  But that sojourn into that case brought me into 200 years of 
reflection and analysis on case law on separation of powers, something 
that is not often done by practicing lawyers, and certainly not 
Senators. It instilled in me a very, very deep appreciation of 
separation of power.
  So when I approached this case--and it has been the toughest case I 
have ever seen, and I think it has been a very, very intense drain on 
this body and all of us individually--the focus I had was, What is the 
burden that you ought to have to show if the Senate is going to remove 
a President? As I reviewed the evidence, I am not satisfied at all that 
that burden was met.
  The definition of perjury is a very tough one by the Supreme Court of 
the United States in the famous case called Bronston. Bronston was 
giving testimony in a bankruptcy proceeding in New York and was asked 
about bank accounts in Zurich, and said, ``My company had a bank 
account for about 6 months,'' leading to the implication that he did 
not have a personal bank account when in fact he did. He was convicted 
and upheld by the Second Circuit, but reversed by a unanimous Supreme 
Court because the interrogator, the prosecutor, has to go further. You 
have to ask the last questions.
  And the President was very artful, very careful, and full of guile as 
he wound his way through the grand jury proceedings. We heard the 
testimony again and again. The President said he told his aide. ``I 
told them things that were true.'' Well, he didn't comment about the 
things that he told them that were false. But nobody said, ``Did you 
tell them things that were false as well?'' to give him a chance to 
perjure himself on that. When asked about Monica Lewinsky--was he alone 
with her--well, on a series of rambling answers he wasn't alone with 
her in the hallway. But that is not the end of the question. He wasn't 
alone with her in the hallway. But nobody followed up, and said, ``Were 
you alone with her somewhere else?'' which he was not asked and, 
therefore, did not deny and, therefore, on this record did not commit 
perjury under the Bronston case.
  The testimony of Betty Currie we heard again and again and again. 
Here in late January 1998, Betty Currie testified that when the 
President gave her that series of questions, she thought the President 
was trying to lead her, to mold her testimony. Then she came back on in 
July, she said, Well, it was different on that occasion. She testified 
that the President gave her the option of either agreeing or 
disagreeing.
  Betty Currie was not a witness in this proceeding--didn't even have 
her deposition taken, and was not a witness; did not have her 
deposition taken because of very, very restrictive rules which the U.S. 
Senate said what the House managers could do. The House managers were 
on very, very sharp notice that if they asked for too many depositions 
they might get none at all. They made their selection of witnesses, and 
they left off Betty Currie.

  But had House managers been able to present their case in the normal 
course of events, I dare say the proceeding would have been even 
faster; that we heard some 12 days of speeches, 6 days of opening 
speeches; 3 and 3. We could have done that in 2 hours. We then spent 2 
days propounding questions through the Chief Justice; learned very, 
very little. We heard arguments on the motion to dismiss, and on 
depositions, and arguments on what to do about the witnesses, on those 
videotapes. Again and again, we heard legal arguments, but we did not 
hear from witnesses.
  We are burdened by this record. It is my view that on this record, 
the burden of proof has not been met, the kind of a burden that would 
have to be sustained, in my judgment, for the Senate to remove an 
American President.
  One comment about mindset. The Senate really approached this matter 
as if it were a waste of time from the outset. There was an early 
effort to structure a vote to show that one-third plus would not be for 
conviction and, therefore, to end it. And then when we had the vote on 
the motion to dismiss, and 44 Senators voted to dismiss, it confirmed 
what we all knew; and that is that there would not be a two-thirds 
vote. I think that put a mindset in this body really not to conduct a 
trial.
  The Constitution calls for a trial. The proceeding we had does not 
measure up in any way, shape, or form to a trial. It is true that there 
are some few cases submitted on a record where judges are going to 
decide it. But a trial customarily requires witnesses. Had witnesses 
appeared on the floor of the U.S. Senate with examination and cross-
examination, you would have gotten a feel for what happened here. If 
Betty Currie had appeared on the floor of the U.S. Senate, or even if 
her deposition had been taken, there could have been a clarification of 
inconsistencies in her two lines of questioning.
  A word for the future: It would be my hope that if, as, and when the 
Senate has to revisit impeachment that it would be done differently. 
Senator Lieberman made a suggestion on a December 20 television show 
that there ought not to be party caucuses, that there only ought to be 
joint caucuses. I have passed that recommendation on. I realized that 
given the history of the Senate and our party caucuses, that would be a 
very, very abrupt change. But I came out of some of our party caucuses 
and walked over and talked to my friends on the other side of the 
aisle, the people that I had agreed with on many, many, many issues. We 
were

[[Page S1535]]

just irreconcilably opposed, just totally opposed. My only conclusion 
was that it was the kind of argument and the kind of discussion on what 
happened in the caucuses--really choosing sides and having teams--as 
opposed to trying to make an analytical, judicial decision as to what 
was involved here.
  So it is my hope that if we ever have to undertake this again we will 
do it differently.
  My position in the matter is that the case has not been proved. I 
have gone back to Scottish law where there are three verdicts: guilty, 
not guilty, and not proved. I am not prepared to say on this record 
that President Clinton is not guilty. But I am certainly not prepared 
to say that he is guilty. There are precedents for a Senator voting 
present. I hope that I will be accorded the opportunity to vote not 
proved in this case.
  We really end up, colleagues, very much, in my judgment, where at 
least I started on the matter. I had thought at the outset that this 
was not an appropriate case for impeachment because the requisite two-
thirds would not be present, and had hoped that impeachment would be 
by-passed, but instead we would allow the President to finish his term 
of office, which I thought an inevitability, just as it has worked out 
that way, and that the criminal process would do whatever is 
appropriate; if indicted, if convicted, whatever a judge would have to 
say. I am still hopeful that the rule of law will be vindicated in that 
process.
  We obviously have learned much from this proceeding. It is my hope 
that we will leave a mark to guide future Senates if we ever have to 
repeat this very, very trying sort of an experience.
  Mr. Chief Justice, I ask unanimous consent that a full text and 
exhibits A, B, and C be included in the Record as if read on the Senate 
floor.
  The removal of an American president through impeachment carries a 
high burden of proof and persuasion. For conviction in the criminal 
courts on charges of perjury and obstruction of justice, the proof must 
be beyond a reasonable doubt. An extra measure of certainty is 
necessary to persuade the Senate that the national interest mandates 
invoking the extraordinary remedy of removing the President.


                The Constitutional Standard for Removal

  The starting point is Article II, Section 4 of the Constitution:

       The President . . . shall be removed from Office on 
     Impeachment for, and Conviction of, Treason, Bribery, or 
     other High Crimes and Misdemeanors.

  From that language, there is reason to interpret ``other High Crimes 
and Misdemeanors'' as relating back to specific categories of offenses 
earlier enumerated, such as ``Treason and Bribery''; but I think that 
is too limited. Nor do I agree with the simplistic definition that 
perjury and obstruction of justice, being felonies and therefore more 
serious than misdemeanors in the criminal law, are automatically 
impeachable offenses.
  The Framers did not foresee the circumstances before us. The omission 
of ``perjury'' and ``obstruction of justice'' from the enumerated 
offenses probably reflected the Framers' thought that it would be 
unlikely that a President would be testifying under oath or be a 
participant in a judicial proceeding. Yet, it is equally clear that 
perjury and obstruction of justice are serious crimes. For the 
President to commit either, he would be placing his own interest above 
his public duty and the people's interest in due process.
  In 1970, then-Congressman Gerald R. Ford offered this definition:

       . . . an impeachable offense is whatever a majority of the 
     House of Representatives considers to be at a given moment in 
     history . . .

  While that may state the raw power of Congress, it is too subjective 
to provide any real guidance. Instead, I look to the Framers at the 
Constitutional Convention, the Federalist papers, and the English and 
United States impeachment cases.
  Commenting on impeachment at the Constitutional Convention James 
Wilson said:

       . . . far from being above the laws, he (the President) is 
     amenable to them in his private character as a citizen, and 
     in his public character by impeachment

  The President's attorneys have argued that the charges arise from 
private conduct unrelated to his official duties. The issue then arises 
whether his conduct is ``in his public character'' by virtue of his 
Constitutional duty:

       . . . he (the President) shall take care that the Laws be 
     faithfully executed . . .Article II, Section 3--

  Such a public duty may be insufficient for impeachment under 
Alexander Hamilton's definition of impeachment in Federalist No. 65:

       . . . those offences (sic) which proceed from the 
     misconduct of public men, or, in other words, from the abuse 
     or violation of some public trust. They are of a nature which 
     may with peculiar propriety be denominated POLITICAL, as they 
     relate chiefly to injuries done immediately to the society 
     itself.

  From Hamilton's statement, the conventional wisdom has evolved that 
impeachment is essentially a political question. The Framers, cases and 
commentaries have not articulated a handy definition of ``high crimes 
and misdemeanors.''
  Whether to impeach and convict transcends the facts and law to what 
is in the national interest at a specific time in the nation's history 
on the totality of the circumstances.
  Consideration of the national interest may include whether there is a 
clear and present danger to the integrity or stability of the national 
government; or whether the conduct is so vile or reprehensible as to 
establish unfitness for office; or whether the electorate has lost 
confidence in the President to the extent that he cannot govern.
  The precedents and commentaries leave substantial latitude for 
Senators to establish their own standards. The ultimate definition may 
be analogous to Supreme Court Justice Potter Stewart's struggle to 
define obscenity when he concluded: '' . . . perhaps I could never 
succeed in intelligibly doing so. But I know it when I see it.''


                       Partisanship In The House

  The extreme partisanship of the impeachment proceeding in the House 
prejudiced the matter before it came to the Senate. While it takes two 
to tango or be partisan, somehow the House Republicans bore the brunt 
of the public disdain on the partisan charge. It was more than the 
party line votes. The whole process was filled with rancor, acrimony 
and bitterness which contributed significantly to the public view that 
it was all politics without real substances.
  It has been widely noted that there must be significant bi-partisan 
support to remove a president. President Nixon's forced resignation 
occurred only when Republican elders like Senators Goldwater and Scott 
joined Democrats in urging his resignation.
  In an early Sunday TV talk show on December 20, 1998, the day after 
the House sent the Articles to the Senate, Senator Joseph Lieberman and 
I appeared together on ``Face the Nation'' where he urged that there be 
no party caucuses but only joint caucuses. I recommended that to 
Senator Lott in my memorandum of December 29 and urged that policy to 
colleagues on both sides of the aisle. Perhaps, it was too much to 
expect or even hope that would be done given the Senate's history and 
practice of party caucuses.
  As noted in this floor statement, the Senate struggled to achieve bi-
partisanship, mostly without success, but we did avoid the rancor and 
bitterness which prevailed on the House side.


The Improbability of Two-Thirds for Conviction Overshadowed the Process

  From the outset, the conventional wisdom was there would not be two-
thirds of the Senate in favor of conviction. That pervasive view has 
cast a long shadow over the impeachment proceedings. When the Senate 
convened on January 6th, there was immediate informal consideration on 
taking a test vote to determine if there were 34 Senators opposed to 
conviction which would end the matter. There appeared to be even more 
than that number so opposed who based their judgments on news media 
accounts. That trial balloon was abandoned when many Senators objected 
on the ground that the Constitution called for a trial and the Senate 
owed the House the Constitutional deference to give the House Managers 
a chance to prove their case.
  In mid-November, I wrote in a New York Times ``op ed'' article that 
impeachment should be bypassed and the President should be held 
accountable through the criminal process after his

[[Page S1536]]

term ended. When the House of Representatives returned Articles of 
Impeachment in mid-December, I felt at that stage the Senate had a 
constitutional duty to proceed to a trial.


               The Constitutional Requirement for a Trial

  The Constitution explicitly provides for a trial:

       The Senate shall have the sole Power to try all 
     impeachments (emphasis added). Article I, Section 3, Clause 6

  The same clause refers to being convicted and the next clause refers 
to judgment, so the constitutional mandate for a trial is plain. Senate 
Impeachment Rules 6 and 17 deal with witnesses.
  The Senate was schizophrenic in wanting to avoid what many considered 
to be a pointless trial. Others considered it to be our Constitutional 
duty to hold a trial and give appropriate deference to the House's 
action on the Articles. In a series of halting half-steps, the Senate 
stumbled through a ``pseudo-trial'', a ``sham trial''--really no trial 
at all. In the end, it would have taken less time to let the House 
Managers put on their case with a full White House defense than the 
helter-skelter procedures adopted by the Senate.


                      The Adverse Public Reaction

  From the time the Senate reconvened on January 6, 1999, the public 
pressure to conclude the trial promptly was palpable. The improbability 
of a two-thirds vote for conviction was only one factor although the 
totality of the other factors contributed to that improbability.
  The adverse public reaction was reflected in consistent polling data 
and the feel on the streets in our various states. Notwithstanding the 
serious charges of perjury and obstruction of justice, Democratic 
Senators argued and many people agreed that a private sexual liaison 
should not have caused a multi-year, multi-million dollar 
investigation. If the Independent Counsel, they argued, could establish 
no wrongdoing in Whitewater, Travelgate and Filegate, why elevate a 
charge based on sex to an impeachable offense?
  I think it is a significant distinction that President Clinton, 
unlike President Nixon, was not charged with covering up an underlying 
crime. President Clinton had the option of not answering deposition 
questions and/or simply not defending the Paula Jones lawsuit. At worst 
that would have resulted in a default judgment being entered against 
him with an assessment of damages. As it worked out, a non-defense 
might still have led to dismissal of the case as a matter of law and on 
the eventual settlement. In any event, the President would have avoided 
his present predicament by not responding.
  Once the President undertook his course of action, then he must 
answer to the serious charges of perjury and obstruction of justice 
even though he was not covering up criminal activity.
  Attorney General Reno made a major mistake in acting to expand Judge 
Kenneth Starr's jurisdiction to include the Lewinsky matter. In mid-
January 1998, contemporaneously with the Attorney General's action, I 
commented that the public would suspect a vendetta on the part of Judge 
Starr because there had been so many apparently unproductive 
investigations going on for so long. This was not a criticism of Judge 
Starr, but an inevitable public reaction. The public's suspicion of 
Judge Starr carried over to impeachment.
  When I challenged Attorney General Reno in the Judiciary Committee 
oversight hearing on July 15, 1998 about why she acted to expand Judge 
Starr's authority, she refused to answer the question saying only:

       The application speaks for itself, Senator.


                            The Witness War

  The failure of the House to call witnesses during their hearings 
injected a Trojan Horse into the Articles. The House had good reason 
not to call witnesses because of its concern to finish its work before 
the 106th Congress convened to take up the nation's important pending 
business. But, that set the stage for the witness issue to haunt the 
Senate from the outset.
  Early in January, there was a strenuous effort for bi-partisanship on 
witnesses and procedures. At a joint caucus on January 8th, by almost 
spontaneous combustion, agreement was reached 100-0 on preliminary 
procedures leaving depositions and witnesses until later.
  Immediately thereafter, bi-partisanship broke down. While this may 
seem self-serving from the Republican point of view, Republicans had 
more to gain from bi-partisanship than Democrats to avoid the rancor of 
the House proceedings and give legitimacy to impeachment. Many 
Democrats openly said the President would be helped by party line votes 
making the Senate look like the House.
  The Democrats then lined up solidly behind the President with a 
number of Republicans, sometimes more than six, teetering on joining 
the Democrats. There are obviously limits to what elected officials 
will do to vote a straight party line if it puts their seats in 
jeopardy. The Senate Democrats had the effective cover of a popular 
President and their party line votes followed while a significant 
number of Republicans faced constituents opposed to impeachment in 
their election cycles.

  The sequence of partisan maneuvering on witnesses is important to 
understanding how the House Managers were precluded from presenting 
their case in a fair way. Appendix A describes those events in some 
detail. The ultimate result was a sharply limited number of deposition 
witnesses, three, with videotaped depositions only and no live witness 
at trial.
  In my Senate tenure, I have not seen a more contentious issue than 
the calling of witnesses either live or videotaped. It goes beyond the 
public pressure to terminate or at least abbreviate the Senate 
proceeding. The argument that the well of the Senate should not be the 
stage for lewd and lascivious testimony was answered by the commitment 
of the House Managers to avoid such testimony. The argument that Monica 
Lewinsky should not appear on the Senate floor once occupied by Daniel 
Webster and John F. Kennedy has to give way to the Senate's duty to try 
this President. The Senate did not choose the President's consorts and 
potential witnesses, but the Senate is duty bound to ``try'' the case 
as mandated by the Constitution and do ``impartial justice'' as the 
Senators' oath specified.


                           The Live Witnesses

  I was one of three Senator presiders/observers designated by Senator 
Lott, the Majority Leader, for the depositions of Monica Lewinsky, 
Vernon Jordan and Sidney Blumenthal. Observing these live witnesses 
confirmed my thinking that the full senate should have seen and heard 
their testimony in the tradition of trial practice. While a videotape 
is very informative, there is no substitute for the more precise 
evaluation of demeanor and its many nuances which comes across fully 
only through live testimony.
  When the videotapes were played in the Senate chamber, the contrast 
was stark with the same live testimony I saw and heard. On a number of 
occasions, the sound was inaudible and the tape could not be rewound. 
There was a far superior opportunity in person to observe the 
witnesses' facial responses, their reactions and their general 
demeanor. In addition, only a portion of their videos was played. 
Although senators had a chance for full private viewings, it is 
inevitable that many Senator-jurors did not utilize that opportunity to 
observe all the videos.
  Ms. Monica Lewinsky was a very impressive witness: poised, 
articulate, well-prepared. Seeing her testify in person, I understand 
why the President's counsel had fought so strenuously to keep her away 
from the well of the Senate. Had she told her whole story in the well 
of the Senate, a rapt national TV audience would have been watching and 
the dynamics of the proceeding might have been dramatically changed.


                Lawyers' Arguments Instead of Testimony

  Instead of hearing testimony from live witnesses, the Senate listened 
to twelve days of lawyer's arguments. Six days were consumed with 
opening statements which should have taken a few hours. For two days, 
Senators submitted questions through the Chief Justice for responses 
from attorneys which added little illumination to what was already on 
the record. Two more days were spent arguing the motion to dismiss and 
the resolution on depositions where the lawyers essentially repeated 
earlier arguments with an additional day for votes on those issues.
  Finally, limited evidence was presented with three videotaped 
depositions--Monica Lewinsky, Vernon Jordan and Sidney Blumenthal. 
Another

[[Page S1537]]

day was consumed on votes rejecting live witnesses and permitting use 
of the videotapes. On the day designated for presentation of those 
depositions, only snippets were shown with most of the time consumed by 
lawyers' arguments. A final day for closing arguments was held with 
lawyers again presenting arguments which had been repeated on eleven 
prior days.
  So, in place of a traditional trial with live witnesses such as 
Monica Lewinsky, Betty Currie, Vernon Jordan, Erskine Bowles, John 
Podesta, Sidney Blumenthal, possibly Kathleen Willey or whomever the 
House Managers chose to call, the Senate heard days of repetitious 
lawyers' argument from a grand jury record.


                          The Perjury Article

  The President's version was limited to his deposition in the Paula 
Jones case on January 17, 1998 and his grand jury testimony on August 
17, 1998. In their totality, those two cameo appearances raised more 
questions by far than they answered. As expected, the President was 
exceptionally well prepared on the law and exceptionally adroit and 
manipulative on the facts or, more accurately, on evading the facts.
  The law on perjury is set forth in the case of Bronston versus United 
States, 409 U.S. 342 (1973), where the Supreme Court of the United 
States established a rigorous standard for proving perjury. Bronston, 
under oath in a 1966 bankruptcy hearing, was asked whether he ever had 
bank accounts in Swiss banks and he replied: ``the company had an 
account there for about six months, in Zurich.''
  His answer that the company had an account there for about six months 
was accurate. It was not accurate that was the only account the company 
had. The Supreme Court exonerated Bronston on the charge of perjury 
because the questioner did not press further to get a specific answer 
on whether the company had an account in addition to the one responded 
to by Bronston.

  Utilizing the holding in Bronston to the utmost, the President 
couched his answers with great care relying on the questioner not to 
pursue the unanswered issues. For example, the President did not deny 
lying to his aides, but rather evaded the question and there was no 
follow-up. John Podesta, President Clinton's Deputy Chief of Staff at 
the time, testified that on January 23, 1998:

       He [President Clinton] said to me he had never had sex with 
     her [Monica Lewinsky], and that--and that he never asked--you 
     know, he repeated that denial, but he was extremely explicit 
     in saying he never had sex with her--[H]e [President Clinton] 
     said that he never had sex with her [Monica Lewinsky] in any 
     way whatsoever--that they had not had oral sex.
  In a Senate deposition, Sidney Blumenthal, an assistant to the 
President, testified that the President lied to him. In testimony 
before the grand jury, Mr. Blumenthal testified that the President told 
him that he had ``rebuffed'' Ms. Lewinsky's advances. Mr. Blumenthal 
further testified that the President told him the following:

       She [Monica Lewinsky] threatened him. She said that she 
     would tell people they'd had an affair, that she was known as 
     the stalker among her peers, and that she hated it and if she 
     had an affair or said she had an affair then she wouldn't be 
     the stalker any more.
       He [President Clinton] told me that she [Monica Lewinsky] 
     came on to him and that he had told her he couldn't have 
     sexual relations with her and that she threatened him. That 
     is what he told me.
  In his testimony before the grand jury, President Clinton stated,

       I told them [his aides] things that were true about this 
     relationship. They [things the President said to his aides] 
     may have been misleading, and if they were I have to take 
     responsibility for it, and I'm sorry.
  Note that the President does not deny lying but only that:

       I told them things that were true about this relationship.
  The President did say some things which were true. The questioner did 
not then pursue the line of interrogation by asking if, in addition to 
saying some things which were true, the President told his aides other 
things which were lies. On that clever, ambiguous record, the President 
escapes the perjury net.
  Similarly, President Clinton dodged the perjury charges on his 
testimony on being alone with Monica Lewinsky. She testified they were 
alone when they had eleven sexual encounters either in the President's 
personal office or the adjacent hallway. In his January 17th 
deposition, the President was asked if he was ever alone with Monica 
Lewinsky in any room of the White House. The President responded,

       I have no specific recollection, but it seems to me that 
     she was on duty on a couple of occasions working for the 
     legislative affairs office and brought me some things to 
     sign, something on the weekend.
  Further, when the President was asked if he was ever alone with Ms. 
Lewinsky in the hallway between the Oval Office and the kitchen area, 
the President responded,

       I don't believe so, unless we were walking back to the back 
     dining room with the pizza. I just, I don't remember. I don't 
     believe we were alone in the hallway, no.
  The President again gets away with vague, unresponsive replies. When 
the President says ``I don't believe we were alone in the hallway, 
no'', there is then no pursuit as to whether they were alone in other 
places. He succeeds in avoiding and misleading, but does not make the 
unequivocal false statement required by Bronston to constitute perjury.
  The President was treated differently than other witnesses before a 
grand jury when he was permitted to read from a prepared statement:

       I engaged in conduct that was wrong. These encounters did 
     not consist of sexual intercourse. They did not constitute 
     sexual relations as I understood that term to be defined at 
     my January 17th, 1998 deposition. But they did involve 
     inappropriate intimate contact.
  The President then declined to respond to Monica Lewinsky's specific 
charges and was not pressed for answers. He made a blanket denial of 
having sex with Monica Lewinsky relying on a tortured interpretation of 
Judge Wright's definition of sexual relations:

       I thought the definition included any activity by the 
     person being deposed, where the person was the actor and came 
     in contact with those parts of the bodies with the purpose or 
     intent of gratification, and excluded any other activity. For 
     example, kissing is not covered by that, I don't think.
  He further stated that:

       My understanding was, what I was giving to you, was that 
     what was covered in those first two lines was any direct 
     contact by the person being deposed with those body parts of 
     another person's body, if the contact was done with an intent 
     to arouse or gratify. That's what I believe it means today.
  The question was not pursued whether there was a sexual relationship 
where Ms. Lewinsky was the actor who made contact with the President's 
body with an intent to arouse or gratify. When asked specifically about 
oral sex, the President responded,

       . . . (Y)ou asked me did I believe that oral sex performed 
     on the person being deposed was covered by that definition, 
     and I said no. I don't believe it's covered by the 
     definition.
  And there is the curious contention by the President on what the 
meaning of the word ``is'' is. A videotape of his deposition shows the 
President sitting quietly and listening to his attorney, Robert 
Bennett's arguments to Judge Wright based on Ms. Lewinsky's affidavit 
which the President knew to be perjurious.
  In his grand jury testimony, the President defended his silence 
during this statement:

       I was not paying a great deal of attention to this 
     exchange. I was focusing on my own testimony.
  The President also told the grand jury that Mr. Bennett's statement 
that there ``is'' no sex of any kind was not necessarily false, but 
rather:
       It depends on what the meaning of the word ``is'' is. If 
     the--if he--if ``is'' means is and never has been, that is 
     not--that is one thing. If it means there is none, that was a 
     completely true statement.
  On this state of the record, the Senate should have pressed the 
President for responses to so many important unanswered questions. 
Since the President was, in effect, asking the Senate to leave him in 
office, why was the Senate not justified in, at least, insisting on 
answers to key questions. When Senators submitted interrogatories to 
the Chief Justice for responses from the attorneys, I submitted the 
following question:

       Would the President honor a request by the Senate to 
     testify? If not, why not? If he declined to testify either on 
     his own initiative or a Senate invitation, would the Senate 
     be justified in drawing an adverse inference from his failure 
     to testify?
  With so many other questions submitted, this one was not asked. 
During the trial, White House Counsel said the President would respond 
to written questions, but that offer was rescinded.

[[Page S1538]]

 On January 25th the President refused to answer ten written questions 
submitted by Republican Senators.
  On February 3rd, twenty-six Republican Senators sent the President a 
letter requesting a deposition. As expected, he declined. In a context 
where the Senate voted against live witnesses and permitted only three 
deposition witnesses, it was not surprising that there was no political 
will to press the President for his testimony. I believe that was a 
serious mistake. In the context where the Senate could not even 
consider exercising the political will to ask, let alone compel, the 
President to leave the Oval Office for a day or a few days to testify 
at his impeachment trial or even to give a deposition, how could the 
Senate be expected to exercise the much greater political will to 
remove the President from office?
  In her civil lawsuit, Paula Jones had been able to compel the 
President to give a deposition. In the grand jury proceeding, the 
Independent Counsel, in effect, compelled the President to testify. 
Why, then, shouldn't the Senate exercise the commensurate power in an 
impeachment proceeding to obtain the President's testimony when there 
were so many open questions.
  In my legal judgment, the Senate has the power to subpoena the 
President. (My memorandum to Senator Lott dated December 10, 1998, 
attached as Appendix B, discusses the Senate's legal authority to 
subpoena the President at pages 8 through 11. My memorandum to Senator 
Lott dated December 29, 1998, attached as Appendix C, discusses 
possible testimony by the President at pages 12 and 13.) Senate 
Impeachment Rule 6 gives the Senate the subpoena power. The Supreme 
Court of the United States held President Nixon was subject to subpoena 
to turn over the famous tapes under the established principle ``That 
the public * * * has a right to every man's evidence.'' President 
Nixon's case, although not dealing with impeachment, is further 
instructive in the Supreme Court's sweeping language on the need for 
all the facts even where the President is subject to subpoena:

       The need to develop all relevant facts in the adversary 
     system is both fundamental and comprehensive. The ends of 
     criminal justice would be defeated if judgments were to be 
     founded on a partial or speculative presentation of the 
     facts. The very integrity of the judicial system and public 
     confidence in the system depend on full disclosure of all the 
     facts, within the framework of the rule of evidence. To 
     ensure that justice is done, it is imperative to the function 
     of the courts that compulsory process be available for the 
     production of evidence needed either by the prosecution or 
     the defense.


                 the article on obstruction of justice

  Following President Clinton's deposition in the Paula Jones case on 
January 17, 1998, the President called his personal secretary, Betty 
Currie, at home and asked her to come into the office on the following 
day. On Sunday, January 18, President Clinton met with Ms. Currie and, 
according to Ms. Currie, made the following statements to her, one 
right after the other:

       You were always there when she was, right?
       We were never really alone.
       Monica came on to me, and I never touched her, right?
       You can see and hear everything, right?

  Ms. Currie testified at first (1/27/98) that, based on his demeanor 
and the way he made the statements, the President wanted her to agree 
with them.
  Six months later (7/22/98) when she testified for the second time, 
Ms. Currie said that although the President stated ``right?'' at the 
end of the statements, she understood that she could agree or disagree 
with them.
  I find the testimony of Betty Currie on January 27, 1998 most 
troubling. Why would the President ask a series of questions when he 
knew the answers unless he sought to influence her testimony? But then, 
Ms. Currie undercut her January 27th testimony when she testified on 
July 22, 1998 that she understood from the President that she could 
disagree with him on those questions.
  In order to make a finding on an important issue like this which 
could lead to the removal of the President, the Senate should have 
heard Ms. Currie in person to clarify her testimony. In the absence of 
such clarification on this state of the record, there is at least a 
reasonable doubt on this issue.
  Monica Lewinsky testified that she met with the President in the Oval 
Office on December 28, 1997 and that the President gave her several 
Christmas presents at this meeting. Ms. Lewinsky further testified that 
at some point in the conversation, she said to the President, ``Maybe I 
should put the gifts away outside my house somewhere or give them to 
someone, maybe Betty.'' Ms. Lewinsky recalled that the President 
responded either, ``I don't know'' or ``Let me think about that.''
  The President testified that he has no distinct recollection of 
discussing the gifts with Ms. Lewinsky on December 28. He told the 
grand jury that:

       My memory is that on some day in December, and I'm sorry I 
     don't remember when it was, she said, well, what if they ask 
     me about the gifts you have given me. And I said, well, if 
     you get a request to produce them, you have to give them 
     whatever you have.

  In the afternoon of December 28, 1997, Betty Currie drove to Ms. 
Lewinsky's Watergate apartment and collected a box containing most of 
the President's gifts. Ms. Currie then drove home and placed this box 
under her bed. According to Ms. Lewinsky, the transfer originated in a 
phone call from Ms. Currie in which Ms. Currie stated, ``I understand 
you have something to give me,'' or, ``The President said you have 
something to give me.''

  Betty Currie testified that it was Ms. Lewinsky who first raised the 
idea of the gift transfer, either in person or over the telephone. Ms. 
Currie testified that she did not remember the President ever telling 
her to call Ms. Lewinsky or to pick something up from Ms. Lewinsky.
  Monica Lewinsky testified that Ms. Currie came over to pick up the 
gifts at ``around 2:00 pm or so''. Cellular phone records reveal that 
Ms. Currie phoned Monica Lewinsky's home at 3:32 on December 28th and 
had a conversation of one minute or less.
  The evidence against the President on the gifts issue is equivocal 
where the idea returning the gifts in the conversation between the 
President and Monica Lewinsky originates with Ms. Lewinsky; Ms. Currie 
says she does not remember the President telling her to call or pick up 
something from Ms. Lewinsky; the time of the call as shown on the cell 
phone records conflicts (3:32 pm) with Ms. Lewinsky's version of the 
sequence of events and the President gave Monica Lewinsky more gifts on 
December 28, 1997, the same day that efforts were made for the return 
of some of the gifts.
  In December, 1997 and January, 1998, the President's close friend, 
Washington attorney Vernon Jordan, helped find Monica Lewinsky a job in 
New York City. On Friday, December 5, 1997, the President's attorneys 
received a witness list for the Paula Jones case. Monica Lewinsky was 
included on this list.
  On December 11, 1997, Judge Susan Webber Wright issued an order which 
stated that Paula Jones was entitled to ``information regarding any 
individuals with whom the President had sexual relations or proposed or 
sought to have sexual relations and who were during the relevant time 
frame state or federal employees.'' This order made it clear that Ms. 
Jones would be able to subpoena Monica Lewinsky.
  On December 11, 1997 Mr. Jordan and Ms. Lewinsky met and Mr. Jordan 
took concrete actions to help Ms. Lewinsky find a job. Mr. Jordan 
placed calls on her behalf to three business contacts. Mr. Jordan also 
told her to send letters to three additional business contacts that he 
provided to her. This meeting and the phone calls took place prior to 
the issuance of Judge Wright's order of the same day.
  On January 7th, Ms. Lewinsky signed an affidavit denying a sexual 
relationship with the President. On January 8th, Ms. Lewinsky had an 
interview with McAndrews and Forbes in New York. Afterwards, she phoned 
Vernon Jordan to report that the interview had gone poorly. Vernon 
Jordan immediately phoned Mr. Ron Perelman, the CEO of McAndrews and 
Forbes, and asked for this help. The next day, Ms. Lewinsky was given 
another interview and was extended an offer to work for Revlon, a 
subsidiary of McAndrews and Forbes.
  Vernon Jordan defended his efforts to help Monica Lewinsky get a job 
as a payback for help he secured as a young lawyer in getting a job 
when he was a victim of racial discrimination. Jordan testified that he 
told no one at Revlon

[[Page S1539]]

that Monica Lewinsky was a witness in a case involving the President 
and that Revlon offered Monica Lewinsky a job because she was 
qualified.
  If the Revlon job offer was part of a plan or conspiracy to obstruct 
justice, then Vernon Jordan would have had to be part of that. The 
House Managers raise no such contention.
  An important piece of evidence on this issue was the uncontradicted 
testimony of Monica Lewinsky that she intended to deny her relationship 
with the President from the outset before she was subpoenaed or the 
President coached her or Vernon Jordan helped her get a job.


                   Limitations on the House Managers

  The signals to the House Managers from the Senate were unmistakable 
that the Senate was unlikely to approve depositions if the list was too 
long. Responding to that advance notice, the House Managers submitted 
only three names for depositions necessarily leaving off potentially 
important witnesses like Ms. Currie. Given the absence of live 
witnesses and limitations on depositions, the House Managers have been 
compelled to rely on transcripts from questioning by the Independent 
Counsel in grand jury proceedings. Those transcripts have left many key 
issues unresolved.


                            tv and the trial

  The Senate proceeding posed a curious dichotomy with one hundred 
sitting silent Senators in the Chamber and non-stop Senators' 
interviews in the corridors and media galleries. The case was really 
not being tried in the Senate Chamber, but in a sense was being tried 
in the Senate corridors, on the evening TV interview shows and on the 
Sunday talk shows.
  I declined TV interviews after the day the trial began on the ground 
that my oath to do ``impartial justice'' was in jeopardy by interviews 
on the day's proceedings which might conflict with my juror's 
functions. Again, oddly, on the occasions when Senators were permitted 
to speak on the Senate floor on the motion to dismiss and the 
Resolution on depositions, the sessions were closed so that the public 
could not hear our debate.
  Efforts to open the Senate proceeding during final deliberations also 
failed to get the two-thirds vote to overturn the Senate rule closing 
the Chamber. I thought the public and posterity should know the reasons 
for our votes as a guide for today and the future. The informal, seat-
of-the pants, corridor comments may be found in the CNN or MSNBC files, 
but there will be no Senate videotape to record what could be important 
Senators' views.


                               conclusion

  Each Senator individually and the Senate collectively took an oath to 
do ``impartial justice''.
  The Senate has done only ``partial justice'', a double entendre, both 
(1) in the sense of not doing ``impartial justice'' to the House 
Managers by unduly restricting them in the presentation of their case; 
and, (2) ``partial justice'' in the sense of hearing only part of the 
evidence.
  When the Senate prohibited live witnesses and permitted only three 
videotaped depositions, the House Managers had one hand tied behind 
their back. There has been no ``trial'' but only a ``pseudo-trial'' or 
a ``sham trial''. The best the House Managers could do was to cut, 
paste and glue together transcripts from the Independent Counsel's 
grand jury proceedings. Ms. Lewinsky testified briefly on videotape and 
the President gave two vague, evasive depositions.
  The House Managers could not meet the heavy burden of proof beyond a 
reasonable doubt. That is the only appropriate statement where the 
underlying charges are the crimes of perjury and obstruction of 
justice.
  Had the House Managers sustained that burden under these Articles, 
there was a further burden of persuasion, as I see it, to establish 
that the national interest warranted removal from office.
  Perjury and obstruction of justice are serious offenses which must 
not be tolerated by anyone in our society. However, I remain 
unconvinced that impeachment is the best course to vindicate the rule 
of law on this offensive conduct. President Clinton may still be 
prosecuted in the Federal criminal courts when his term ends. His 
lawyers have, in effect, invited that prosecution by citing it as the 
preferable remedy to impeachment.
  A criminal trial for the President after his term ends may yet be the 
best vindicator for the rule of law.
  If the full weight of the evidence with live witnesses had been 
presented to the Senate instead of bits and pieces of cold transcript, 
it is possible that the Senate and the American people would have 
demanded the President's appearance in the well of the Senate. Under 
firm examination, the President might have displayed the egregious 
character described harshly by his defenders in their proposed censure 
petitions. That sequence might have led to his removal.
  But on this record, the proofs are not present. Juries in criminal 
cases under the laws of Scotland have three possible verdicts: guilty, 
not guilty, not proven. Given the option in this trial, I suspect that 
many Senators would choose ``not proven'' instead of ``not guilty''.
  That is my verdict: not proven. The President has dodged perjury by 
calculated evasion and poor interrogation. Obstruction of justice fails 
by gaps in the proofs.
  Many Senators have sought to express their gross displeasure by 
findings of fact or censure. I reject both. The Constitution says 
judgment in cases of impeachment shall not extend beyond removal and 
disqualification from future office. Under the crucial doctrine of 
separation of powers, the Congress is not and should not be in the 
business of censuring any President. We are properly in the business of 
examining our own conduct as Senators. On that score, on the record of 
this ``pseudo-trial'', it is my view that the Senate failed to fulfill 
the Constitutional mandate to ``try'' this case.
  I ask unanimous consent that Appendices A, B and C be printed in the 
Record.
  There being no objection, the appendices were ordered to be printed 
in the Record, as follows:

                               Appendix A

  When the Republican and Democratic caucuses could not agree on the 
preliminary procedures and witness issue, including depositions, a vote 
was set for late afternoon on January 7th. That vote was canceled in an 
effort to achieve a bi-partisan compromise. A joint caucus was then 
held in the Old Senate chamber at 9:30 am on January 8th where the 
outline of a procedural agreement was reached for the first stage 
without resolving the witness or deposition issues, but deferring them 
until we knew more about the opposing parties' cases.
  While a resolution of agreement was being drafted in the early 
afternoon fleshing out the compromise, Senator Lott asked Senator Kyl, 
Senator Sessions and me to explore the case to determine what 
witnesses, if any, the Senate should hear to make its decision. In mid 
afternoon, Senators Kyl and Sessions and I met with Chairman Henry Hyde 
and some of the House Managers to inform them of the joint discussions, 
to get a preliminary idea of their thinking on witnesses and to set up 
a meeting for the afternoon of January 11 to get their specification on 
what witnesses they believed necessary for the Senate trial. Later on 
the afternoon of January 8th, Resolution 16 was agreed to 100 to 0.
  In an effort to carry out a bi-partisan approach, I called Senator 
Lieberman on the morning of January 11th to invite him and/or other 
Senate Democrats to an afternoon meeting with House Managers. He said 
he would check with Senator Daschle and then called back to decline. 
Senators Kyl, Sessions and I met with the House Managers that afternoon 
to review their witness list. We advised them that the Democrats were 
opposed to witnesses and there was opposition among Republican Senators 
to a lengthy trial with many witnesses. We said their best opportunity 
for witnesses would be to show conflicts in the record testimony which 
could establish the need for seeing and hearing the witnesses to 
evaluate their demeanor. They responded they needed witnesses beyond 
conflicts to show the tone and tenor of their case. We said they might 
consider using their 24 hours of opening statements to develop the 
need, as they saw it, for specific witnesses.
  I called White House Counsel Charles Ruff on January 12th advising 
him of

[[Page S1540]]

the meeting with House Managers stating that Senators Kyl, Sessions and 
I were interested in meeting with the President's attorneys. Mr. Ruff 
called back on January 13th declining the invitation.
  On January 25th, in advance of consideration of Senator Byrd's motion 
to dismiss and Senator Lott's resolution on taking depositions, Senator 
Lott requested Senator Kyl and me to talk again to House Managers to 
determine how many witnesses they would need and for what purpose. 
Senator Lott had extended an invitation to join in those discussions to 
Senator Daschle who declined. Before that meeting was held on January 
25th, I advised Senator Lieberman of the scheduled meeting and told him 
Senator Daschle declined Senator Lott's invitation.
  Between our January 11 and January 25th meetings with House Managers, 
there had been numerous public comment by Republican Senators opposing 
many witnesses even for depositions with some expressing possible 
opposition to any deposition witnesses. When Senator Kyl and I met with 
House Managers on January 25th, we said it was problematic whether 
there would be 51 or more votes for a lengthy witness list.
  In arguments before the full Senate, House Managers complained about 
the limitations on deposition witnesses and expressed their interest in 
calling live witnesses with latitude to develop their cases as they saw 
fit in accordance with regular trial practice.
  Late in the evening on January 26th after closed door Senate debate 
on calling witnesses for depositions, Senator Carl Levin and I 
discussed a bi-partisan compromise. We continued that discussion early 
the next morning and presented our views to our respective caucuses on 
January 27th. While Senator Levin and I did not agree on all points, we 
were closer together than our caucuses. At mid-day on January 27th on 
an almost straight party line vote, the Senate decided to take 
depositions of only three witnesses.
  For the balance of the afternoon of January 27th and all day on the 
28th, there were strenuous efforts to agree on deposition procedures. 
Democrats were adamant that the depositions should not be videotaped; 
or, if videotaped, on the commitment that they could be viewed only by 
Senators and limited staff. Republicans insisted that the depositions 
should be videotaped deferring the decision on whether they would be 
used as a substitute for live witnesses. Late in the afternoon Senator 
Lott's resolution was adopted to videotape the depositions without 
specifying their use after defeating Senator Daschle's amendment to 
limit the depositions to a typed transcript without videotapes.
  After those depositions were taken, on February 4, 1999, the Senate 
voted to exclude live witnesses and to see the videotapes of the three 
deposed witnesses after the defeat of Senator Daschle's amendment to 
limit the depositions to the typed transcript only without videotapes.

                               Appendix B

                                                December 10, 1998.
     To: Senator Trent Lott, Majority Leader.
     From: Senator Arlen Spector.

       As a follow up to our recent meeting, this memorandum sets 
     forth my thinking on how to handle the impeachment proceeding 
     if it reaches the Senate and my analysis on some of the legal 
     issues as follows:
       1. May the Senate consider in the next Congress articles of 
     impeachment passed by the House in this Congress?
       2. Must the Senate trail begin the day following the House 
     presentment?
       3. Is censure authorized in an impeachment proceeding?
       4. Must/should the Senate hear testimony from live 
     witnesses?
       5. How long will the Senate impeachment trail take?
       6. Possibility of conviction
       7. Concluding observations


 may the senate in the 106th congress consider articles of impeachment 
     passed by the House of representatives in the 105th congress?

       Yes. Precedents hold that the Senate may carry an 
     impeachment over into a subsequent Congress. As noted in the 
     addenda to the Rules on Senate Impeachment Proceedings:
       ``Articles of impeachment against Harold Louderback, a 
     United States district judge for the northern district of 
     California were exhibited on March 3, 1933, at the end of the 
     second session of the 72d Congress, and the trail occurred 
     during the first session of the 73d Congress, . . .
       ``At the end of the 100th Congress, the Senate adopted a 
     resolution to continue into the 101st Congress the 
     proceedings in the impeachment of Alcee L. Hastings, a United 
     State judge for the southern district of Florida''.
       Notwithstanding a contrary opinion given at the House 
     proceeding, it is my judgment that these practical precedents 
     would virtually certainly be upheld if any judicial challenge 
     was attempted because of the decision of the United States 
     Supreme Court in the case involving Judge Nixon where the 
     Court held the Senate had the authority to establish 
     procedures under the impeachment clause.


  must rule iii on senate impeachment procedure be read literally to 
require continuous consideration by the senate the day following house 
                presentation of articles of impeachment?

       No. While Rule III appears to impose such a rigid 
     requirement on its face, the Rules taken on the whole and 
     prior practice show the Senate may establish a more flexible 
     schedule.
       The specific language of Rule III provides: ``Upon such 
     articles of impeachment being presented to the Senate, the 
     Senate shall, at 1 o'clock afternoon of the day (Sunday 
     excepted) following such presentation, or sooner if ordered 
     by the Senate, proceed to the consideration of such articles, 
     and shall continue in session from day to day (Sundays 
     excepted) after the trial shall commence (unless otherwise 
     ordered by the Senate) until final judgment shall be 
     rendered.''
       Other Rules provide for intervening action between the time 
     the articles are presented by the House to the Senate and 
     subsequent proceedings before the Senate. For example, Rule 8 
     provides for a writ of summons to be issued to the person 
     impeached with a date to appear before the Senate.
       The impeached party is given a date to answer the Articles 
     and the House is then given a date to reply.
       For example, in the trial of President Andrew Johnson, the 
     President was given 17 days to prepare his answer (his 
     counsel had requested 47 days to prepare). The House managers 
     took one day to file their brief reply to the President's 
     answer. In the 1989 trail of Judge Walter Nixon, the Judge 
     was given 29 days to prepare his answer, and the House was 
     given 12 days to file its response.
       These rules and that prior practice demonstrate that there 
     is a necessary time lapse between the presentation of the 
     Articles to the Senate and the commencement of further Senate 
     hearings or proceedings.


   is censure an authorized consequence or remedy in an impeachment 
                              proceeding?

       No. The specific language in the Constitution Article 1, 
     Section 3, Clause 7 contains the clear implication that 
     judgment in an impeachment proceeding shall not include 
     censure or any consequence or remedy other than that 
     specified in the Constitution: ``Judgement in Cases of 
     Impeachment shall not extend further that to removal from 
     Office, and disqualification to hold and enjoy any Office of 
     Honor, Trust or Profit under the United States.'' The 
     language ``shall not extend further'' than the enumerated 
     consequences or remedies precludes any judgment beyond 
     ``removal from office'' and ``disqualification to hold and 
     enjoy any Office of Honor, Trust or Profit under the United 
     States''.
       Further support for the conclusion that impeachment does 
     not contemplate penalties like censure is contained in the 
     historical references. Of the fifteen individuals impeached 
     by the House of Representatives, all seven convicted by trial 
     in the Senate were removed from office.
       Contrasted to censure, impeachment and removal from office 
     are not intended to be a punishment. In his ``Commentaries on 
     the Constitution of the United States,'' Justice Joseph Story 
     notes that impeachment ``is not so much designed to punish an 
     offender as to secure the state against gross political 
     misdemeanors. It touches neither his person nor property but 
     simply divests him of his political capacity.''
       Consequently, the impeachment process does not contemplate 
     Congress imposing any penalty, including censure, as part of 
     an impeachment proceeding. Once the impeachment proceeding is 
     concluded, it is a different issue as to whether Congress can 
     pass a resolution of censure in the same manner Congress 
     enacts resolutions generally.


    would the constitutional requirements of the senate impeachment 
proceeding be satisfied by the factual recitations in the starr report 
   or is the senate obligated to hear testimony from live witnesses?

       While the Constitution provides no explicit answer, 
     inferences from the Constitution, the Senate Rules on 
     Impeachment and the prior practice strongly suggest that live 
     witnesses were contemplated by the framers instead of merely 
     a hearsay report.
       The Constitution explicitly provides for a trial in the 
     provision of Article 1, Section 3, Clause 6: ``The Senate 
     shall have the sole Power to try all impeachments'' (Emphasis 
     added). The seriousness and magnitude of removal of a Federal 
     official, especially the President, suggests that the jury 
     (senators) should have the best evidence and that would 
     require something more than a hearsay document no matter how 
     extensive and explicit the Starr Report may be.
       That clause further provides: ``and no person shall be 
     convicted without the concurrence of two-thirds of the 
     Members present'' (Emphasis added). The use of the word 
     ``convicted'' again refers to a phase or the consequence of 
     trial and the analogy to a criminal proceeding. While the 
     Senate is not

[[Page S1541]]

     bound by traditional rules of evidence so that we might 
     consider matters not admissible in a court of law, it would 
     seem questionable or appear unseemly to base our judgment 
     exclusively on hearsay on such an important proceeding.
       The provisions of Article 1, Section 3, Clause 7 carry 
     forward the analogy of trial referring to the ultimate 
     ``judgment'': ``Judgment in cases of impeachment shall not 
     extend further . . .'' (Emphasis added).
       The Senate Rules on Impeachment further contemplate, 
     although do not necessarily mandate, a proceeding with live 
     witnesses and opportunities for the examination and cross-
     examination of such witnesses. For instance, Rule 6 provides 
     that: ``The Senate shall have power to compel the attendance 
     of witnesses. . . .'' Rule 17 provides that: ``Witnesses 
     shall be examined by one person on behalf of the party 
     producing them, and then cross-examined by one person on the 
     other side.''
       Although the Rules never explicitly give the parties the 
     right to call witnesses, the language ``on behalf of the 
     party producing them'' in Rule 17 implies that the parties do 
     have such a right. The practice of the Senate confirms this 
     implication that the parties have the right to call 
     witnesses. For example, in the trial of Andrew Johnson, 
     witnesses for the President were called and heard over a 
     period of one week. In the trial of Alcee Hastings, both 
     sides were allowed to call a total of 55 witnesses.
       The foregoing analysis does not conclusively rule out the 
     propriety of proceeding on the Starr Report.
       The House of Representatives relied upon the Starr Report 
     for the facts even though the practice of the House in prior 
     impeachment hearings has been to take testimony from 
     witnesses. ``Hinds' Precedents of the House of 
     Representatives'' notes that witnesses were called during the 
     House impeachment hearings on Senator Blount and Judge Perry. 
     More recently, during the House deliberations on the 
     impeachments of President Nixon, Judge Claiborne, Judge 
     Hastings and Judge Nixon, numerous witnesses were called to 
     lay a factual basis for the impeachment charges. In the case 
     of Judge Nixon alone, witnesses provided testimony to the 
     House committee for over a month.
       As a practical matter, it is obvious the House did not take 
     the time to hear witnesses because the House proceedings were 
     structured to finish in the abbreviated time frame between 
     the election of November 3rd and the end of the year. 
     Starting in mid-November and seeking to finish shortly after 
     mid-December, that time frame was even further constricted.


            HOW LONG WILL THE SENATE IMPEACHMENT TRIAL TAKE?

       It depends entirely on what the Senate seeks to do and what 
     parameters are established.
       If the Senate peremptorily chooses to dismiss the House 
     articles without consideration, there is authority that could 
     be accomplished at the outset by a majority vote on a motion 
     to adjourn. Since there is no specific Rule relating to the 
     adjournment of an impeachment trial, the general rules of the 
     Senate would apply. A motion to adjourn the Senate requires 
     only a majority vote and is not subject to debate. The Senate 
     impeachment proceeding could be concluded by adjournment 
     with, in effect, a dismissal which would be the equivalent of 
     a nol pros in a criminal case. That is the equivalent of a 
     judgment of acquittal. The Senate would then resume its 
     normal business.
       There is historical precedent to concluding the Senate 
     impeachment proceeding by passing a motion to adjourn. In the 
     impeachment trial of Andrew Johnson, the Senate voted on 
     three of the eleven articles of impeachment. After failing to 
     secure a conviction on these three articles, Senator Williams 
     moved that the Senate sitting as a court of implement adjourn 
     sine die. The motion carried and the trial of Andrew Johnson 
     ended prior to a vote on the remaining eight articles.
       If the Senate chose to accept the facts of the Starr 
     Report, the entire trial could be relatively brief if the 
     President did not put on a factual defense.
       An adequate Senate trial need not necessarily be long. The 
     key witnesses would be Monica Lewinsky, Betty Currie and 
     Vernon Jordan and possibly Kathleen Willey. There may be a 
     few other peripheral witnesses such as Judge Susan Webber 
     Wright. It is hard to calculate but it will probably be a 
     matter of weeks, not months. That estimate would be expanded 
     if President Clinton testifies and/or if he puts on a factual 
     defense.


                       Possibility of conviction

       This matter has had unprecedented and unpredictable turns 
     of events. The President's August 17th short speech was a 
     bomb. The House's release of the President's grand jury 
     deposition reversed the tide. The President's answers to the 
     House questions reversed the reversal.
       It is entirely conceivable that a Senate trial could defy 
     conventional wisdom and find the two-third votes for 
     conviction if the evidence is properly presented focusing on 
     abuse of power and obstruction of justice instead of lying 
     about sex. While impossible to quantify with precision, it 
     may be that there are now about fifty votes for conviction, 
     perhaps a half dozen open minds and maybe another dozen 
     senators might be persuadable if they think there is 
     insufficient political cover to acquit.
       Monica Lewinsky has the potential to be a strong witness 
     because her recollection is so extraordinary. She was able to 
     pinpoint with precision the two dates when, as she put it, 
     the President received telephone calls from a congressman 
     with a nickname and a sugar grower in Florida with a name 
     something like ``Fanuli''. It was later confirmed that the 
     President had talked on those two dates to Congressman Sonny 
     Montgomery and a Florida sugar grower named Alfonso Fanjul.
       Although Betty Currie's testimony was watered down as the 
     investigation proceeded, questioning her from her first 
     statement might provide highly incriminating testimony on the 
     obstruction charge. Vernon Jordan's testimony has substantial 
     potential on the abuse of power issue. Jordan testified he 
     reported to the President ``mission accomplished'' after 
     Monica Lewinsky's perjurious affidavit was obtained and 
     Jordan secured a job for Ms. Lewinsky with Revlon. When her 
     initial interview went badly, Jordan called Ronald Perelman, 
     head of Revlon's holding company, and Ms. Lewinsky was 
     recalled the next day for another interview and given a job 
     on the spot.
       The case is also reportedly strong on the perjury charge 
     against the President on the incident involving Kathleen 
     Willey. Judge Susan Webber Wright's testimony, in observing 
     the President's attentiveness at this deposition in the 
     Jones' case, could undercut the President's contention that 
     he wasn't paying attention when his lawyer strenuously argued 
     for the President's innocence at his deposition based on the 
     Lewinsky affidavit. At that time, the President 
     conclusively knew it was perjurious.


                        concluding observations

       As you know, my own initial preference was for both Houses 
     to abandon impeachment proceedings and to then hold the 
     President accountable through the judicial criminal process 
     once his term was over leaving the Congress free to attend to 
     the nation's other business: social security, health, 
     education, etc.
       My view on waiting to hold the President accountable after 
     he leaves office was based on the blunt proposition that it 
     was more trouble to get rid of him than to keep him. It may 
     well be that the public opposition to impeachment had the 
     same basis. Once we get to the Senate trial, my view may 
     change if it is no more trouble to get rid of him than to 
     keep him. Perhaps the public will have a similar change of 
     heart.
       If the House returns Articles of Impeachment, the Senate 
     should proceed with a dignified trial with the calling of 
     witnesses because the seriousness of the issue and the 
     historical impact call for an unhurried, deliberative trial. 
     To the maximum extent possible, we should make the proceeding 
     non-partisan. Concessions to the minority on some procedural 
     matter would be worthwhile. As the majority party in charge, 
     we should take the lead on non-partisanship. We should avoid 
     the House bickering at all reasonable costs.
       The Senate prides itself on being the world's greatest 
     deliberative body. This trial will be by far the highest 
     visibility for the Senate in its history to date and for the 
     foreseeable future. While the President will be on trial, the 
     Senate will also be on trial.

                               Appendix C

                                                December 29, 1998.
     To: Senator Trent Lott, Majority Leader.
     From: Senator Arlen Specter.

       Supplementing my memorandum of December 10 and our 
     telephone conversation of December 22, this memo suggests 
     procedures to deal with the Senate trial in light of the 
     public dissatisfaction with the House proceedings, public 
     impatience with impeachment generally and ways to achieve a 
     judicious, non-partisan Senate trial. Since this memorandum 
     was written while I have been traveling, the rules and case 
     citations could be checked only by long-distance telephone.


    can procedures be structured to shorten the length of the trial?

       Yes. While it is impossible to say with certainty the 
     duration of any trial, procedures can be put into place to 
     abbreviate the trial with a reasonable likelihood of reaching 
     a verdict within a few weeks (perhaps even three weeks as 
     earlier predicted by you--Senator Lott) as contrasted with 
     some assessments that the trial would take months or the 
     better part of a year.
       The Senate already is under pressure and will probably be 
     under greater pressure to finish at an early date which 
     accounts for the call for short-circuiting the trial through 
     a plea-bargained censure. It is obviously in the national 
     interest to end the trial as soon as possible without rushing 
     to judgment and it would doubtless meet with public approval 
     to announce at the outset a plan to accomplish that.
       Several steps could be taken to abbreviate the trial time:
       (1) Require submission of pre-trial memoranda by the 
     parties followed by a pre-trial conference with the Chief 
     Justice to establish the parameters of the trial;
       (2) Organize the House Managers' case, with input from the 
     Senate, to focus on only the key witnesses and indispensable 
     lines of questions; and
       (3) Establish long trial days and Saturday sessions.
       Without management and limitations, the lawyers could take 
     a long, indeterminate time. By analogy to Federal court 
     litigation, this trial could be managed by having the parties 
     submit pre-trial memoranda which

[[Page S1542]]

     would identify any pre-trial motions, list prospective 
     witnesses and lines of questions, etc., and approximate the 
     time involved at each stage.
       The Chief Justice would then meet with the parties and 
     issue a pre-trial order establishing the trial parameters 
     just as the presiding judge does in Federal court trials.


                     an activist, bipartisan senate

       In an impeachment trial, Senators function in a very 
     unusual way in that we are both jurors and judges. A majority 
     of Senators may overrule the Chief Justice's rulings. We 
     decide individually for ourselves what is the burden of proof 
     and what evidence on what conduct is sufficient for a guilty 
     verdict.
       The Senate will be proceeding without precedent on most 
     issues. The Senate has broad latitude as noted by the Supreme 
     Court of the United States in the case of Judge Nixon where 
     the Court held the Senate had authority to establish its 
     procedures under the Impeachment Clause.
       This case and these times call for a more activist approach 
     by the Senate than prior impeachment trials. While it was not 
     inconvenient or problemsome to allow the House managers to 
     set the pace for the Hastings, Nixon or Claibourne trials, 
     this is obviously a very different matter. The impeachment 
     trials of President Johnson and those which occurred earlier 
     offer little guidance on how the Senate should proceed today.
       The existing Senate rules on impeachment are a starting 
     point. They can be changed by a majority vote unless there is 
     disagreement in which case proposed changes are debatable and 
     subject to a two-thirds vote.
       It is only through bipartisanship that the Senate can 
     succeed in having a judicious, non-partisan trial which can 
     gain public acceptance. So, all significant procedures must 
     have the concurrence of most Senators from both parties.
       In my judgment, it would be appropriate and practical to 
     structure the presentation of the evidence by having a small 
     bipartisan Senate committee work with the House managers and 
     President's lawyers on what the Senate wants presented in a 
     tightly focused case, taking into consideration any 
     differences with the House managers which could then be 
     worked out.
       Arguments in appellate courts customarily take the form of 
     the appeals judges focusing on the questions they want 
     addressed by counsel as opposed to having the lawyers decide 
     how to use their allotted time. It would be analogous to such 
     appellate proceedings to have the Senate direct, or work out 
     collaboratively with the House the evidence the Senate wants 
     to hear.
       I suggest that a small committee, perhaps five Senators 
     with three Republicans and two Democrats, work up a trial 
     format and trial brief. It will be helpful for the Senators 
     to have prosecution or criminal defense experience. This 
     Senate committee, or perhaps one Republican and one Democrat, 
     should participate in preparation of the pre-trial memorandum 
     and pre-trial conference.


                          Long Trial Sessions

       Substantial evidence could be presented with trial days 
     from 9:30 am to 5 pm or even 9 am to 6 pm with Saturday 
     sessions. The Philadelphia criminal courts had the minimum 
     trial day established from 9:30 am to 5 pm. Senate 
     Impeachment Rule 3 provides for Saturday sessions in 
     impeachment trials.
       I recommend against the so-called double track with the 
     Senate sitting half days on the trial and half on other 
     Senate business. There is too much legitimate public concern 
     to have the trial proceed expeditiously and end as soon as 
     possible. Even with the trial ending at 5 pm or 6 pm, some 
     Senate business could be conducted in the evenings on 
     confirmations or other business which can be handled by 
     unanimous consent.
       We might consider canceling our February and March recesses 
     for the trial, which would likely produce significant public 
     approval.


                    The Importance of Live Witnesses

       I strongly recommend live witnesses on the key issues 
     although there is no prohibition against use of hearsay such 
     as the Starr Report. Prior impeachment cases establish the 
     precedent for live witnesses and the Senate rules provide 
     procedures for live witnesses. Live witnesses have 
     customarily testified in House impeachment proceedings. In 
     the Senate, for example, live witnesses testified in cases 
     involving President Johnson and in the most recent 
     impeachment case on Judge Alcee Hastings. Senate Rules 6 and 
     17 establish procedures for dealing with witnesses.
       The dignity, tenor and stature of the Senate Trial call for 
     live witnesses on an impeachment of this magnitude. 
     Everything the Senate does will be subjected to a microscope 
     both contemporaneously and historically. While it is a 
     sweeping generalization, I think it is fair and accurate to 
     say that no trial in history to date has been or will be so 
     closely watched.
       We have some gauge as to how closely this trial will be 
     scrutinized from the work of the Warren Commission which has 
     been the most closely dissected investigation in history. 
     Notwithstanding constant pressure from Chief Justice Warren, 
     who wanted the inquiry concluded at an early date, the staff 
     lawyers insisted on extended tests and extensive 
     interrogation knowing the record would be closely examined. 
     At that time, we couldn't conceive of the extent of the 
     scrutiny, but we had some inkling of what was coming. At this 
     time, the Senate should be on notice to cross every ``t'' 
     and dot every ``i'' twice.
       It may be sufficient to use the Starr Report to establish 
     some of the lesser proofs for the record.
       Without attempting to be dispositive on who are all the key 
     witnesses and what are all the indispensable lines of 
     questioning, a suggested focused strategy would be to call:
       (1) Monica Lewinsky to testify on the perjury issue by 
     covering the numerous times she and the President were alone 
     (he claimed they were never alone) and the specifics of their 
     conduct on the issue as to whether they had sex.
       It may be wise to have her testify in a closed session on 
     the details of their sexual relationship. In retrospect, the 
     Judiciary Committee might have been wise to hear some of the 
     testimony by Prof. Hill and Justice Thomas in a closed 
     session. In the confirmation hearing of Justice Breyer, 
     testimony was taken in a closed session on his finances.
       Even though most, if not all, of Ms. Lewinsky's testimony 
     has already been made public, it would be less offensive to 
     public taste and arguably less prejudicial or more 
     considerate of the President to avoid the spectacle of 
     television on the specifics of their sex. Any objection to 
     the closed or secret hearing could be largely answered by 
     releasing a transcript to the public at the end of each daily 
     session.
       If the President testifies, consideration should also be 
     given to a closed session on the specifics of their sexual 
     activities. It is arguably, and perhaps realistically, 
     different to have a closed session with the President, but 
     these questions will have to be thrashed out at the time 
     depending on the feel of the case if, as and when they arise.
       In order to have a closed session, there would have to be a 
     modification of Rule 20 which requires the Senate doors to be 
     open except during deliberation.
       (2) Vernon Jordan to testify about contacts with the 
     President including his telephone call where he reported 
     ``mission accomplished'' after arranging with another lawyer 
     to get Ms. Lewinsky's perjurious affidavit and getting her a 
     job with Revlon.
       (3) Betty Currie to testify on the President's efforts to 
     alter and mold her version of what happened. Even though Ms. 
     Currie gave several statements, the essential elements of her 
     testimony could be put on the record at trial by going 
     through her first statement to the FBI.
       The President's possible testimony is considered later in 
     this memorandum.


 should the Senate trial be terminated by an arranged disposition for 
                                censure?

       No, for several reasons:
       (1) The Constitution specifies the two remedies or 
     consequences in cases of impeachment which necessarily 
     excludes censure: ``Judgment in Cases of Impeachment shall 
     not extend further than to removal from Office, and 
     disqualification to hold and enjoy any Office of honor, Trust 
     or Profit under the United States''--Article 1, Section 3, 
     Clause 7. The language ``shall not extend further'' 
     specifically precludes censure or any other remedy not 
     enumerated in the Constitution.
       The argument is now being strenuously advanced by many, 
     including some Senators, that the impeachment trial should be 
     ended at an early stage by a motion to adjourn the Senate and 
     then, by pre-arrangement, taking up a Resolution of Censure 
     to be approved by the Senate and House. In my judgment, that 
     would be a perversion of and at variance with the 
     Constitution or, simply stated, unconstitutional.
       (2) Censure would be meaningless for this President--not 
     worth a ``tinker's dam.''
       (3) Censure would be a bad precedent which could be used 
     whenever the Congress of one party wanted to express 
     displeasure or embarrass the President of the other party. 
     Simply stated, the Congress is not in the business of 
     censuring the President under our Constitutional separation 
     of powers.
       (4) Censure would prejudice a possible later criminal 
     prosecution of the President after he leaves office. There 
     will be an inevitable sense that censure will constitute a 
     form of punishment or final judgment, although not 
     technically double jeopardy, which would preclude a later 
     prosecution, as a practical matter.
       The prospects for censure have been dampened by Vice 
     President Gore's statement that the President would not 
     accept censure conditioned on the President's admitting to 
     lying under oath even if that admission could not to be used 
     against him in any criminal proceeding. Even if the 
     President would admit to lying under oath, he would most 
     certainly object to the procedures necessary to rule out 
     use of that admission in a criminal prosecution.
       Only a court, not the Senate or Congress, can grant 
     immunity from future criminal prosecution. The Senate can 
     take steps to have immunity granted by the Court. But that 
     action can be taken only after the President or any witness 
     asserts the privilege against self-incrimination under the 
     Fifth Amendment. The Court then grants immunity and the 
     testimony cannot be later used against that person in a 
     criminal prosecution.
       Since the President has announced his unwillingness to 
     admit to lying under oath, it is fruitless to suggest the 
     Fifth Amendment course.


                 president clinton's possible testimony

       For the Senate to have all the facts--or all versions of 
     the facts from which Senator-jurors must determine what the 
     facts are, the

[[Page S1543]]

     Senate should hear from the President. It may be that the 
     President will choose to testify; and as a matter of comity, 
     the Senate should await the President's decision.
       If the President elects not to testify, the Senate will be 
     faced with a difficult legal question and perhaps an even 
     more difficult political question. On its face, Impeachment 
     Rule 6 gives the Senate the authority to compel the President 
     to testify:
       ``The Senate shall have the power to compel the attendance 
     of witnesses'' and ``to enforce obedience to its orders, 
     mandates, writs, precepts and judgments.''
       Notwithstanding that express language, some doubt has 
     arisen as to whether the President is subject to compulsory 
     process (subpoena) because of Rule 8 which provides:
       ``A writ of summons shall issue to the person impeached 
     reciting said articles and notifying him to appear before the 
     Senate upon a day and at a place to be fixed by the Senate . 
     . . and file his answer to said articles of impeachment. . .
       ``If the person impeached, after service, shall fail to 
     appear, either in person or by attorney, on the day so fixed 
     therefore as aforesaid, or appearing, shall fail to file his 
     answer to such articles of impeachment, the trial shall 
     proceed, nevertheless, as upon a plea of not guilty.''
       Some have cited President Johnson's refusal to appear at 
     the Senate trial as authority for the proposition that the 
     President cannot be compelled to attend and testify. That 
     inference is unsound because Rule 8 refers to responding to 
     the summons and filing an answer ``either in person or by 
     attorney.'' So the attorney's action satisfies the rule 
     without the appearance or other action by the President. 
     Accordingly, the impeached party complied with the Senate 
     rules in President Johnson's case which did not raise the 
     issue of the Senate's power to compel the President to 
     testify.
       There is no precedent for a case where the impeached 
     official declined to testify and the Senate attempted to 
     compel his testimony. The other impeachment cases offer no 
     close analogy where, as here, critical facts are known to 
     only two people, one of whom is the impeached official.
       Analogies from other, although dissimilar, trials suggest 
     the President would be subject to being subpoenaed. The 
     Supreme Court of the United States held President Nixon was 
     subject to compulsory process to turn over the famous tapes 
     under the established principle: ``That the public . . . has 
     a right to every man's evidence.''
       President Nixon's case, although not dealing with 
     impeachment, is further instructive in the Supreme Court's 
     sweeping language on the need for all the facts:
       ``The need to develop all relevant facts in the adversary 
     system is both fundamental and comprehensive. The ends of 
     criminal justice would be defeated if judgments were to be 
     founded on a partial or speculative presentation of the 
     facts. The very integrity of the judicial system and public 
     confidence in the system depend on full disclosure of all the 
     facts, within the framework of the rules of evidence. To 
     ensure that justice is done, it is imperative to the function 
     of the courts that compulsory process be available for the 
     production of evidence needed either by the prosecutions or 
     the defense.''
       Since this is not a criminal trial, there would be no rule 
     that a defendant has the right not to testify. Although not a 
     controlling analogy, a party in a civil case may be called 
     involuntarily to the witness stand by his/her opponent ``as 
     on cross'' which means he/she may be cross-examined.
       In my legal judgment, President Clinton could be compelled 
     to testify based on Senate Rule 6, analogies to compulsory 
     process in President Nixon's case and civil litigation and 
     the fact that President Clinton was subject to compulsory 
     process in the Paula Jones case and Starr grand jury. 
     Consideration of enforcing such a subpoena can be left to a 
     later day if, as and when the issue arises.
       If the President did testify, it could have a profound 
     effect on the public's view of the case and on the Senator-
     jurors. The President's lawyers could not shield him from 
     cross-examination and he could not avoid the specifics on his 
     contacts with Ms. Lewinsky as he did in his abbreviated grand 
     jury testimony.
       If the President sticks to his story that he did not have 
     sex with Ms. Lewinsky and did not lie under oath at his 
     deposition in the Paula Jones case, his credibility could be 
     severely impugned by pointed cross-examination and he could 
     be viewed very negatively by the public and the Senator-
     jurors. Or, it may be that the public and many Senator-jurors 
     would not be any more adversely affected by his Senate trial 
     testimony than they were by the videotapes of his grand jury 
     testimony.
       At this moment, it is impossible to judge what the feel or 
     tenor of the trial would be on subpoenaing the President if, 
     as and when he declined to testify after serious 
     incriminating evidence was presented against him. If subpoena 
     sentiments formed along party lines, it would be the most 
     severe test of acting only with a bipartisan consensus.
       Over several centuries, litigation experience has 
     demonstrated the unpredictability of trials. That is why they 
     are called trials. A two-thirds majority may not appear out 
     of thin air, as noted by Congressman DeLay, but it could 
     appear from forceful presentation of the key evidence 
     including cross-examination of the President. If the trial 
     turned heavily against the President, it is conceivable, 
     although highly unlikely at this point, that a plea bargain 
     could be structured with the Independent Counsel's 
     concurrence that the President would resign with his pension, 
     his law license and immunity from prosecution.
       Once a trial starts, the genie is out of the bottle and 
     anything can happen. Emotions in all directions are at an 
     all-time high with Republicans, the President, Democrats or 
     anybody else in the line of fire at risk for the ultimate 
     public scorn. An the public's other business would not be 
     attended to forever how long the trial took.
       That is why I continue personally to favor putting off 
     holding the President accountable until after his term ends 
     through the criminal process. That accommodates the public's 
     short-term desires for the Congress, the President and the 
     Supreme Court to focus on the nation's business and the long-
     term national interest to later hold the President 
     accountable for the serious charges through indictment if the 
     grand jury so decides, and to sentencing by a judge if a jury 
     convicts.


                          The Public Reaction

       Prospects are reasonably good that the public would not 
     react unfavorably to a non-partisan, judicious, focused, 
     relatively brief Senate trial. In addition, the public would 
     likely understand the Senate has an explicit Constitutional 
     duty to hold a trial after Articles of Impeachment are passed 
     by the House. There has already been a bipartisan recognition 
     of this duty by Senators who are Democrats.
       Public reaction, as gauged by the polls, was adverse to the 
     House proceedings, at least in part, because of their highly 
     partisan, strident tenor; and because the House never zeroed 
     in or highlighted the highly incriminating evidence. There 
     may even be some grudging public approval that Congress is 
     willing to take action on a significant matter contrary to 
     the polls.
       A favorable public reaction will depend largely if not 
     exclusively on the public's feeling that the proceedings are 
     bipartisan, so the Senate must take extreme care to make the 
     trial bipartisan. As the majority party, we Republicans 
     should bend over backwards to avoid even the appearance of 
     seeking partisan advantage which marred the House 
     proceedings.
       I strongly support the suggestion that there should be no 
     separate party caucuses on impeachment issues. It would be 
     useful to convene all Senators at an early date, such as 
     January 8, 1999, when we will all be in town, to discuss 
     ideas on how to proceed. I recollect one such meeting of all 
     Senators from both parties a couple of years ago on 
     appropriations or budget issues near the end of the session.


                               Concluson

       History will cast a long shadow on what the Senate does in 
     this impeachment proceeding.
       The Senate should not, in effect, sweep the matter under 
     the rug by relying on the hearsay Starr Report for the key 
     facts. Some say the Starr Report is a sufficient factual 
     basis for Senate action because the facts are not in dispute. 
     That is not true. A close reading of the President's grand 
     jury testimony and his famous 82 answers to interrogatories 
     demonstrate that he has not conceded the accuracy of the key 
     incriminating evidence.
       As detailed above, the Senate can leave it to the criminal 
     courts to put the facts on the historical record and have the 
     indicting grand jury, trial jury and presiding judge hold the 
     President accountable to whatever extent warranted after his 
     term ends.
       A rush-to-judgment censure plea bargain would complete the 
     trifecta of inappropriate action by the Senate as well as the 
     House and President.
  Mr. LEVIN. Mr. Chief Justice, colleagues, first a personal note to 
our leaders: How proud I am of them, and we all are of you, for holding 
us together during this very, very difficult time. We will all be 
closer for having come through this, regardless of what this vote is or 
how we individually vote.
  The burden of proof on the House that the President has committed 
high crimes and misdemeanors and should be removed from office is a 
heavy burden, because the effect is so dire in a democracy that depends 
upon the election of the President. In my judgment, the House of 
Representatives has not carried that burden of proof as to the specific 
allegations against the President. The House repeatedly relies on 
inferences while ignoring direct testimony to the contrary. There is 
nothing unusual about the reliance on inferences. It happens in trials 
all the time. What is unusual here is that the House's case relies on 
inferences from the testimony of people whose direct testimony 
contradicts the inference. Let me just cite some examples in the 
obstruction of justice article.
  First, the House managers in their report, in their brief, made the 
following statements: ``As evidenced by the testimony of Monica 
Lewinsky, the President encouraged her to lie.'' That is the words of 
the House brief. Second, ``The testimony of Monica Lewinsky

[[Page S1544]]

leads to the conclusion that it was the President who initiated the 
retrieval of the gifts and the concealment of the evidence.'' Third, 
``The President needed the signature of Monica Lewinsky on the false 
affidavit and that was assured by the efforts to secure her a job.''
  Those are all direct quotes. Each one of those relies on inferences. 
Each one of them is contradicted by the explicit testimony of people 
from whom those inferences are drawn.
  Let's just take them one by one. The House managers' inference that 
the President ``encouraged''--that is their word--Monica Lewinsky to 
lie was contradicted by Monica Lewinsky's proffer, which was then 
incorporated into her grand jury testimony, that the President 
``never'' encouraged her to lie. That is her word. They say by 
inference the President encouraged her to lie. She says, ``The 
President never encouraged me to lie.''
  The House managers' inference that it was, ``President Clinton who 
initiated the retrieval of the gifts and the concealment of the 
evidence on December the 28th,'' was contradicted by Monica Lewinsky's 
direct testimony that she initiated the concealment of the gifts. It is 
uncontested that on December 22 she took some of the gifts and 
concealed the rest--some of the gifts to her lawyer's office. She 
decided on her own that she would not turn over the gifts in response 
to that subpoena because they would embarrass her, or they would, in 
her words, disclose that there was a special relationship. So on the 
22nd she decided on her own to withhold some of the gifts. And yet we 
are told by the managers by inference that somehow or other it is the 
President who initiated the withholding and the concealment of the 
gifts.
  And then on the 28th, when they met at the White House, it was Monica 
Lewinsky who said, ``Maybe I should get some of the gifts to Betty.'' 
She initiated the issue. And then the President said either nothing or, 
``Let me think about it.'' And then the question came up: Well, who 
then made the phone call relative to the pickup of the gifts? Was it 
Monica Lewinsky calling Betty Currie or was it Betty Currie calling 
Monica Lewinsky?
  And here is where another inference is drawn, that if in fact it was 
Betty Currie who initiated the call, then the inference is that the 
President told Betty Currie to call Monica Lewinsky. There is a 
conflict there between Betty Currie and Monica Lewinsky.
  But one of the most intriguing issues in this whole matter, one that 
I have really given a lot of thought to, is the question: Why would the 
President give Monica Lewinsky gifts on December 28 if he was concerned 
about it and wanted to withhold and hide the gifts? It is one of the 
questions that didn't get a lot of focus up here, by the way.
  The President gave Monica Lewinsky at least three things that day: 
That bear carving that Dale Bumpers referred to that came from 
Vancouver, a small blanket, and a stuffed animal.
  Now, here is the way the House addressed that issue. They asked 
themselves in their brief the question: Why would the President give 
Ms. Lewinsky gifts at the same time he was asking her to conceal others 
that he had already given her? Answer from the House in their brief: 
The only logical inference--only logical inference--is that the gifts, 
including the bear, symbolizing strength, were a tacit reminder to Ms. 
Lewinsky that they would deny the relationship even in the face of a 
Federal subpoena. That is the inference that they say is the only 
logical inference from giving three gifts to Monica Lewinsky, including 
a bear.
  Now, there is a real problem with that. First of all, that bear was 
obtained by the President in Vancouver weeks before there was a witness 
list. We are not even offered speculation as to how the President could 
foresee that Monica Lewinsky would be on a witness list and pick up a 
symbol of strength while in Vancouver so that he could give it to her 
as a reminder to deny their relationship in the face of some future, 
unforeseen Federal subpoena.
  But even more to the point, Monica Lewinsky was asked directly at the 
grand jury--directly--this question as to whether or not she 
interpreted the gift of that bear as a signal to her to ``be strong in 
your decision to conceal the relationship.'' Her direct, one-word 
answer was ``No.'' And yet the managers come here saying the only 
logical inference that can be drawn from three gifts being given from 
the President on the 28th is that the President was signaling to her to 
be strong in the face of a Federal subpoena. That is the kind of 
inference we are asked to draw.
  Now, I was raised on the burden of proof, both as a prosecutor in 
civil rights cases and as a defense lawyer. The House cannot carry the 
burden of proof on the critical allegations of criminal misconduct that 
they have made when they depend on those kinds of inferences, a pile of 
inferences that run directly contrary to direct testimony on critical 
points. Impeachment and removal should be based on sturdier foundations 
than that kind of a heap of inferences. They would have us overlook the 
forest of direct testimony while getting lost in the trees of their 
multiple inferences.

  The December 11 issue has been discussed here. It was extraordinary 
to me, listening here as both factfinder and judge, that it could be 
represented to us that on December 11 the first activity calculated to 
actually help Monica Lewinsky get a job occurred. That is what they 
alleged on the floor of the Senate. The first activity--these are their 
words--calculated to help Ms. Lewinsky actually get a job took place on 
December 11, and that something happened on that day to trigger Vernon 
Jordan's meeting and real activity. Something happened that day. What 
was it? Judge Wright's order.
  In their House brief, it is said that that order came in the morning, 
which was wrong, and in the presentation here in the opening arguments 
Manager Hutchinson said the following: ``The witness list came in, the 
judge's order came in. That triggered the President to action. And the 
President triggered Vernon Jordan into action. That chain reaction here 
is what moved the job search along.''
  Wrong. It disintegrated here. Vernon Jordan's meeting was before the 
judge's order. And yet that is what we are asked to base the removal of 
a President on. And then the thinking shifts to another theory. Removal 
of an elected President from office has got to be made of sturdier 
stuff than those kinds of inferences.
  Finally, on the double standard issue--and I think we all must be 
concerned about that--a former prosecutor who appeared in front of the 
House said the following. And Senator Sarbanes quoted one line of this, 
and I want to repeat that, because it is so important, and then add one 
other thing that they said. ``In conversations with many current and 
former Federal prosecutors in whose judgment I have great faith, 
virtually all concur that if the President were not involved, if an 
ordinary citizen were the subject of the inquiry, no serious 
consideration would be given to a criminal prosecution arising from 
alleged misconduct in discovery in the Jones civil case having to do 
with an alleged coverup of a private sexual affair with another woman 
or the follow-on testimony before the grand jury. I believe the 
President should be treated in the criminal justice system in the same 
way as any other United States citizen.
  ``If that were the case here,'' these former prosecutors said, ``it 
is my view that the alleged obstruction of justice and perjury would 
not be prosecuted by a responsible U.S. attorney.''
  I know this is not a criminal case, this is an impeachment trial, but 
I would think that our standards should be at least as high as would be 
in a criminal case, and that if this President would not be prosecuted, 
much less convicted for these specific charges--and these were criminal 
charges that were very specifically made by the managers against the 
President--if that prosecution and conviction would not take place in a 
criminal case, we should be loathe, I believe, and very, very cautious 
and careful before we remove an elected President from office.
  I learned about the burden of proof and presumption of innocence as a 
young boy, long before law school, when my father, who was a lawyer, 
taught me that American justice is dependent on these principles. As I 
grew up and became a lawyer myself, I experienced firsthand the 
significance of these bedrock principles and learned that it applies to 
all Americans accused of crimes, including the President. These 
principles of the burden of

[[Page S1545]]

proof and the presumption of innocence help guide me now as we exercise 
our constitutional duty to judge the specific accusations of criminal 
behavior lodged against the President of the United States.
  The burden of proof on the House of Representatives that the 
President has committed serious crimes and should be removed from 
office is a heavy one, because overturning an election in a democracy 
is a drastic and dire action. The House has not carried that burden of 
proof as to the specific accusations against the President.
  The arguments of the House Managers in support of the Articles suffer 
from fundamental weaknesses. They repeatedly rely on inferences while 
ignoring direct testimony to the contrary; they omit key materials 
which contradict their charges; and they contain serious misstatements 
of key facts. In a matter of such consequence as the removal of an 
elected President from office, such a case should not lead to 
conviction.
  Let me cite some key examples from Article II, the allegation of 
obstruction of justice. First, the House Managers in their report, 
brief, and arguments to the Senate repeatedly rely on inferences to 
prove key points and ignore direct testimony to the contrary. In 
opening arguments, House Manager Hutchinson made the following claims:

       As evidenced by the testimony of Monica Lewinsky, [the 
     President] encouraged her to lie.
       . . . (T)he testimony of Monica Lewinsky . . . leads to the 
     conclusion that it was the President who initiated the 
     retrieval of the gifts and the concealment of the evidence.

       . . .The President needed the signature of Monica Lewinsky 
     on the false affidavit, and that was assured by the efforts 
     to secure her a job.
  Mr. Hutchinson's arguments rely on inferences. Relying on inferences 
is not unique to proving a case. What is unique is that in this case, 
the House Managers use inferences primarily from bits and pieces of 
testimony of people who explicitly deny those inferences in their 
direct testimony. The House Managers' inference that the President 
encouraged Monica Lewinsky to lie was contradicted by Monica Lewinsky's 
direct testimony that the President never ``encouraged'' her to lie.
  The House Managers' inference that ``it was President Clinton who 
initiated the retrieval of the gifts and the concealment of the 
evidence on December 28, 1997,'' was contradicted by Monica Lewinsky's 
direct testimony that she initiated the concealment of gifts. Not only 
is it an uncontested fact based on direct testimony that it was Monica 
Lewinsky who on December 22, 1997, following the receipt of a subpoena 
for gifts and having decided on her own to withhold gifts which would 
``give away any kind of special relationship,'' brought to her attorney 
only those gifts that were ``innocuous'' and typical of the kind of 
gifts an intern might receive. It is also an uncontested fact based on 
direct testimony that it was Monica Lewinsky who, on December 28, 1997, 
expressed her interest in wanting to hide the gifts when she said to 
the President that maybe she should transfer the gifts to Betty Currie. 
Ms. Lewinsky testified that the President either didn't respond to her 
comment or said he'd think about it.

  But what makes the Managers' inference even more speculative is the 
fact that at the December 28th visit, the President gave Ms. Lewinsky 
even more gifts, including a bear carving from Vancouver, a small 
blanket and a stuffed animal. Why would the President give Ms. Lewinsky 
gifts at the same time he is asking her to conceal others he had 
already given her? I was struck by the House's answer. ``The only 
logical inference,'' according to the House Managers, ``is that the 
gifts--including the bear symbolizing strength--were a tacit reminder 
to Ms. Lewinsky that they would deny the relationship--even in the face 
of a federal subpoena.''
  That inference, called ``the only logical inference,'' is not only 
the rankest form of speculation, it is also contrary to the direct 
evidence.
  The undisputed grand jury testimony was that the bear carving was 
brought back by the President from Vancouver, a trip which occurred 
weeks before Monica Lewinsky's name appeared on any witness list. We're 
not even offered speculation as to how the President could foresee that 
Monica Lewinsky would be on a witness list, and pick up a symbol of 
strength while in Vancouver so that he could give it to her as a 
reminder to deny their relationship in the face of some future, 
unforseen federal subpoena. But even more to the point, when Ms. 
Lewinsky was asked the direct question at the grand jury whether she 
interpreted the gift of the Vancouver bear carving as a signal to her 
to ``be strong in your decision to continue to conceal the 
relationship,'' her direct, one-word answer was ``no.''
  The Managers' reliance on inferences from testimony of persons whose 
direct testimony contradicts the inferences was a recurring pattern 
during this trial. The Managers alleged that the signing of the 
affidavit and the obtaining of the job for Ms. Lewinsky were linked, 
based on inference from bits and pieces of testimony of Monica Lewinsky 
and Vernon Jordan. But Vernon Jordan and Monica Lewinsky explicitly 
denied any such linkage. Ms. Lewinsky said, ``There was no agreement 
with the President, Jordan, or anyone else that [I] had to sign the 
Jones affidavit before getting a job in New York.'' Mr. Jordan told the 
grand jury in answer to the question whether the job search and 
affidavit signing were linked, ``unequivocally, indubitably, no.''
  Impeachment and removal should be based on sturdier foundations than 
the heap of inferences that have been placed before us, when those 
inferences are pieced together from bits of testimony of witnesses 
whose direct, explicit testimony contradicts the inferences. The House 
Managers would have us overlook the forest of direct testimony while 
getting lost in the trees of their multiple inferences.

  The House Managers' case also omitted directly relevant, 
contradictory material and misstated key facts. For instance, the House 
Managers argued in their brief that relative to the job search 
assistance for Ms. Lewinsky, ``nothing happened in November of 1997.'' 
But, in fact, our Ambassador to the United Nations, at the request of 
the Deputy Chief of Staff of the White House, offered Ms. Lewinsky a 
U.N. job on November 3rd.
  The House Managers' report explicitly represented that ``(t)he first 
activity calculated to help Ms. Lewinsky actually get a job took place 
on December 11,'' and that ``(s)omething happened that changed the 
priority assigned to the job search.'' What happened, the Managers 
argued, was a court order ``on the morning of December 11'' by Judge 
Wright requiring President Clinton to provide information about prior 
relationships involving state and federal employees. The Senate was 
told by the House Managers that ``(s)uddenly, Mr. Jordan and President 
Clinton were now very interested in helping Ms. Lewinsky find a good 
job in New York'' and that Vernon Jordan got active on the afternoon of 
December 11 when he and Ms. Lewinsky met.
  Manager Hutchinson said in his argument to the Senate:

       The witness list came in. The judge's order came in. That 
     triggered the President to action. And the President 
     triggered Vernon Jordan into action. That chain reaction here 
     is what moved the job search along.

  But that key argument disintegrated before our eyes when it turned 
out that Judge Wright's December 11 order came late in the day, well 
after the meeting between Vernon Jordan and Monica Lewinsky, and in 
addition, the meeting had been scheduled many days before.
  With respect to the perjury article, the House Managers failed to 
meet their burden as well. The President admitted to the grand jury 
that he did have ``inappropriate intimate contact'' with Monica 
Lewinsky when he was alone with her, and the House Managers failed to 
identify specific statements that would meet the requirements of a 
perjury charge.
  The lack of substantive evidence supporting the charges explains why 
a panel of five highly regarded former Democratic and Republican 
federal prosecutors, who appeared before the House Judiciary Committee, 
testified that this case against the President would not have been 
pursued by a responsible federal prosecutor. Thomas Sullivan, who 
served for four years as U.S. Attorney for the Northern District of 
Illinois, and whom Chairman Hyde described as having ``extraordinarily 
high'' qualifications had this to say:


[[Page S1546]]


       . . . (I)n conversations with many current and former 
     Federal prosecutors in whose judgment I have great faith, 
     virtually all concur that if the President were not 
     involved--if an ordinary citizen were the subject of the 
     inquiry--no serious consideration would be given to a 
     criminal prosecution arising from alleged misconduct in 
     discovery in the Jones civil case, having to do with an 
     alleged coverup of a private sexual affair with another woman 
     or the follow-on testimony before the grand jury . . . I 
     believe the President should be treated in the criminal 
     justice system in the same way as any other United States 
     citizen. If that were the case here, it is my view that the 
     alleged obstruction of justice and perjury would not be 
     prosecuted by a responsible United States Attorney.

  Finally, I have had a deep concern about the impeachment process 
which formed the basis of this trial. While my decision to reject the 
articles is based on the inadequate proof of the crimes alleged, the 
process which brought this matter to trial was deeply flawed.
  The articles of impeachment before us are based on materials, the so-
called Starr Report, compiled by an outside prosecutor, not by the 
legislative branch itself, which has under the Constitution the 
``sole'' responsibility for impeachment. Instead of doing an 
independent investigation, the House of Representatives unwisely 
delegated, in my judgment, the critically important investigative 
function to an outside prosecutorial foe of the President and an actual 
advocate of his impeachment. The House took that prosecutor's record 
and his testimony and made them the basis of articles of impeachment 
presented to us.
  The contrast to the Watergate investigation and the impeachment of 
President Nixon is stark. In the Watergate investigation, the Senate 
convened a select committee in February 1973 to investigate the 
Watergate break-in and other campaign irregularities in the 1972 
election. That committee took testimony for a year. In February 1974, 
the House voted to direct the House Judiciary Committee to conduct an 
inquiry into impeachment. The Committee conducted its own 
investigation, including subpoenaing the White House tapes and calling 
numerous fact witnesses. The Committee also obtained the report of the 
grand jury meeting under the authority of Leon Jaworski, the Watergate 
prosecutor. In deciding to allow the grand jury report to be forwarded 
to the House Judiciary Committee, Judge Sirica found that the report:
       `` draws no accusatory conclusions. . . contains no 
     recommendations, advice or statements that infringe on the 
     prerogatives of other branches of government. . . . (and) 
     renders no moral or social judgments. The Report is a simple 
     and straightforward compilation of information gathered by 
     the Grand Jury, and no more. . . .'' (In re Report and 
     Recommendation of June 5, 1972, Grand Jury Concerning 
     Transmission of Evidence to the House of Representatives, 
     U.S. District Court, District of Columbia, March 18, 1974.)

  The report sent to the House of Representatives in the matter before 
us violated almost every standard followed by Judge Sirica. The Starr 
Report didn't present the evidence in an impartial manner as 
contemplated in the independent counsel law. It drew a host of 
``accusatory conclusions'' and rendered judgments. The report contained 
a large volume of needlessly salacious detail and omitted or dismissed 
important exculpatory evidence. The impeachment process has suffered as 
a result.
  Moreover, the House made a significant and irreparable mistake in the 
actual drafting of the articles. Each article alleges multiple acts of 
wrongdoing. Thus, it would be impossible to determine after a vote on 
the articles whether a 2/3rds majority of the Senate actually agreed on 
a particular allegation. Article I, for example, charges that President 
Clinton committed one or more of the 4 possible acts of perjury; 
Article II charges that President Clinton committed one or more of 7 
possible acts of obstruction. Without separate votes on each of the 
alleged acts, it would be impossible to determine whether 2/3rds of the 
Senate agreed that the President had committed any of the actions 
alleged. Since the Constitution requires conviction upon a vote of 2/
3rds of the Senate, the articles as drafted do not allow us to 
guarantee to the American people that we are complying with the 
requirements of the U.S. Constitution. This is a flaw that cannot be 
fixed, because the Senate does not have authority to amend the 
articles.
  Alexander Hamilton in the Federalist Papers asked this question, 
``Where else than in the Senate could have been found a tribunal . . . 
[which] . . . would be likely to feel confidence enough in its own 
situation to preserve, unawed and uninfluenced, the necessary 
impartiality between an individual accused and . . . his accusers ?''
  Each of us, however we vote, will soon answer that question, as we 
stand between the accuser and the accused, weighing the evidence. The 
issue before us is not whether the President's conduct was 
reprehensible; that is clear beyond any reasonable doubt. The issue is 
whether the President committed the alleged crimes for which he should 
be removed from office, a proposition which places on his accusers a 
heavy burden of proof. It is a burden the House Managers have not met, 
and I will, therefore, vote against the articles of impeachment.
  I would like to add my thoughts on censure as well, since this may be 
the only appropriate opportunity to do so. I support the censure 
resolution authored by Senator Feinstein, and I commend her for her 
openness, diligence and hard work in bringing to fruitition a 
bipartisan product. The President should know, the American people 
should know, and history should know that by voting to acquit on 
impeachment, we did not vote to acquit the President for his egregious 
conduct. I know of no Senator who is not deeply troubled by the 
President's conduct. While I do not believe the President's conduct in 
his private, consensual sexual relationship should have become the 
business of the American public, it did in fact become so, and when it 
did the President had the duty to tell the truth. And no matter how 
wrong or improper that disclosure of the President's private life was, 
it does not justify the lies the President told to the American people, 
his family and his staff.
  I hope that our votes today on impeachment will conclude this 
unfortunate chapter in our political history and that the President, 
through a forthright acknowledgment of the wrongfulness of his 
behavior, will lead the nation toward healing the wounds these events 
have opened. I believe the American people want an end to this matter 
more than anything, and that any further criminal investigation of the 
President with respect to the matters under Mr. Starr's jurisdiction 
should be immediately concluded. While Senator Feinstein's censure 
resolution states that President Clinton remains subject to criminal 
indictment, that is in the resolution as a statement of fact and not as 
a statement of encouragement. Indictment after this impeachment trial 
would not be appropriate nor would it be in the public interest. 
Today's votes should bring this tragic episode to an end.
  Ms. SNOWE. Mr. President, now that we have come to the end of the 
process required by the Constitution, I feel we have arrived at an 
appropriate time to consider a measure required by the President's 
conduct.
  I rise in support of censure because while I do not find that the 
President's behavior constitutes high crimes and misdemeanors requiring 
removal, I do believe that it compels us to record for history our 
recognition of the damage we all acknowledge he has inflicted upon the 
Office of the Presidency and the Nation.
  Acquittal must not be the last word. And while I have felt that it 
would have been more appropriate for the Senate to issue findings of 
fact in the impeachment case against the President, I am now prepared 
to support censure so that there is no mixed message for posterity 
about what the Senate thinks of the President's actions.
  As I said yesterday, the President's behavior is indefensible, and I 
for one have no interest in seeing another shameless ``Rose Garden 
Jubilee'' after today's vote by the Court of Impeachment. Acquittal is 
not exoneration. Nothing we do here today in any way absolves the 
President's responsibility for the harm he has inflicted--and the 
President must know this.
  Indeed, this has been a sordid chapter in the history of the 
Presidency, and it deserves to be closed with a stern warning and a 
strongly worded rebuke that will leave no doubt to future generations 
that this process was not simply much ado about nothing. It was, in

[[Page S1547]]

fact, about something very important--the sanctity of public service.
  That's why I worked with Senators Feinstein and Bennett to include 
language expressing the will of this Senate that this resolution not be 
revoked by a future Congress. I also want to thank them for their 
willingness to include language that makes clear the Senate believes 
the President should be treated like any other citizen facing criminal 
allegations once he leaves office in 23 months.
  The fact is, even while this body has acquitted the President on 
Articles of Impeachment, the framers provided for an additional remedy 
for his conduct in standard criminal court. Why? Because they had known 
a country where some men were above the law, and some below. And they 
were determined to create a nation where the level of justice served 
was not proportional to a person's pocketbook, social rank or political 
power.
  I believe acquittal, though the proper outcome, by itself could 
present a skewed picture of the Senate's findings, and runs the risk 
that the President will claim exoneration for his actions. Such a 
claim, evidence of which is already apparent, is quite simply and 
obviously, wrong.
  The President may not have committed high crimes and misdemeanors, 
but what he has done--in my mind including unlawfully influencing a 
potential witness--deserves a formal rebuke by the Senate. Censure 
would be an appropriate and constitutionally permissible way to do 
this.
  For a President who from the very beginning promised the most ethical 
administration any of us would ever see, censure would be a well-
deserved legacy of a promise broken and a Presidency sullied. I will 
vote for this censure motion and I urge my colleagues to do likewise.
  Mr. KOHL. Mr. Chief Justice, throughout this process my colleagues 
from both sides of the aisle have conducted themselves with decency and 
dignity, exactly the qualities President Clinton's conduct lacked. But 
we risk opening the floodgates to more party-line impeachments if we 
oust a President from office for behavior that--while truly 
deplorable--isn't truly removable. Lowering the standard would do as 
great a disservice to the Constitution as the President's behavior has 
done to the Oval Office. So I am voting to acquit on both articles.
  I state these conclusions with a certainty I do not feel. We have 
heard many say these votes are the most difficult they will ever cast, 
and I agree. This case is made up of many small questions, matters of 
opinion and fact: Did the President lie? Did he commit perjury? Did he 
obstruct justice? Did he weaken the judicial system? Did he undermine 
the Constitution? Are these ``high'' crimes? Is this what the Founders 
envisioned when they talked about removal of a President?
  Most of us have answers for each of these questions. Most of us will 
lay them out in well-worded, well-argued statements. But the sum of the 
answers is not the sum of this case. The sum of our opinions, our 
findings of fact, and our legal briefs cannot sum up the deep disquiet 
I feel about the failings, lies, and weakness displayed by the 
President. Under the cold body of evidence before us runs the bad blood 
of bad character, and that deeply disturbs me.
  The evidence does not prove high crimes, but it does prove low 
character in our highest office--and that matters, it is relevant, it 
is material. This nation is not defined merely by demographics, 
boundaries, geological features, and government regulations; it is also 
about families and individuals who struggle to be larger, braver, and 
stronger than their circumstances. It is a nation that has a history of 
putting lives, faith, and hope in causes bigger than any one person: 
justice, democracy, freedom. Similarly, the office of the Presidency is 
not just a set of protocols, formalities, and policies. It is the human 
face we put on our country, and that face ought to be as honest, just, 
strong and brave as we all aspire to be--and as our history demands 
that we be.
  That's why character matters. I cannot find a way to fit my concern 
for that spirit into these very formal, legal proceedings, but I also 
cannot, in good conscience, let go of my deep concern for the harm and 
the loss this President has caused. I will not vote for either article 
of impeachment, but I also will not let go of my firm belief that this 
President has done real damage to the Office of the Presidency. And I 
will not let go of a commitment to do everything I can to restore and 
protect the idea that good character is essential in those who ask to 
serve and represent this country.
  Let me explain in more detail why I am voting against both articles. 
First, removing a President is a drastic measure, called for in only 
the most extraordinary circumstances. And our Founding Fathers clearly 
wanted it to be used sparingly: that's why they limited impeachment to 
only ``high crimes and misdemeanors'' involving abuse of power, 
incapacity to hold office, or a serious threat to our Constitution or 
system of government.
  But the President's conduct, however reprehensible, related to purely 
personal matters. He lied to the American people. He lied to his 
family, his friends and his staff. He lied under oath and evidence 
suggests that he may have obstructed justice. Simply put, his conduct 
was disgraceful and, possibly, illegal.
  However, his actions did not relate to abuse of power. They had 
nothing to do with his official acts or his capacity to hold office. 
They did not threaten our Constitution or system of government. Though 
serious offenses to our American values and decency, they do not rise 
to the level of constitutional ``high" crimes.
  Some of my colleagues have a different view, and I respect their 
position. But even the House prosecutors respect mine. In response to 
one of my questions, House Manager Graham acknowledged that 
``reasonable people can disagree'' about whether the President should 
be removed. In fact, he went on to say:
  ``[I]f I was sitting where you're at, I would probably get down on my 
knees before I made that decision, because the impact on society is 
going to be real either way. And if you find the President guilty in 
your mind from the facts, that's he a perjurer and he obstructed 
justice, you've got to somehow reconcile continued service in light of 
that event. And I think it's important for this body not to have a 
disposition plan that doesn't take in consideration the good of this 
nation. . . . [Y]ou've got to consider what's best for this nation.''
  Representative Graham deserves credit for putting candor above 
partisanship, and inviting us to decide ``what's best for this 
nation.'' To do that, it makes sense to consider the views of the 
American people. Most of them know what this case is about and most of 
them oppose this impeachment. Nothing we've heard clearly justifies 
rejecting the overwhelming weight of their opinion and removing a 
twice-elected President.
  Indeed, if ``reasonable people can disagree,'' as the House 
prosecutors concede, have we really met the high threshold established 
for removal?
  To ask that question is to answer it.
  It is true, of course, that we have removed judges for lying under 
oath; for example, ten years ago the Senate removed Judge Nixon on that 
basis. But impeaching the President, our highest elected official, is 
far different. Judge Nixon was appointed. He held office during ``good 
Behaviour.'' At the time of his Senate trial, he was already convicted 
and sitting in jail. He lied about bribery, not sex. And most 
importantly, the only way a judge can be removed is by impeachment. A 
President, on the other hand, can be removed every four years through 
an election, and is automatically removed after eight years by the 22nd 
Amendment.
  Second, in addition to the constitutional problems, the prosecution 
has not proved its allegations by clear and convincing evidence. This 
is especially true on the ``obstruction of justice'' charge, which is 
by far the more serious allegation. The House Managers argue that more 
witnesses would have made a difference in bolstering their case, and 
they may be right. But why then did the House choose not to call 
witnesses in its own proceedings, even though it had called ``fact'' 
witnesses in nearly every other impeachment?
  Third, as many of us told the House in the Judge Nixon impeachment 
trial, lumping together a series of charges in each article--at least 
four perjury charges and seven obstruction of justice charges here--
isn't fair or responsible. Alarmingly, the President could be found 
guilty without a two-thirds

[[Page S1548]]

majority believing any single charge. For example, in theory, even if 
each obstruction charge were rejected by a 90 to 10 margin, the 
President could be convicted--because ten different Senators convicting 
on each of seven separate charges adds up to 70--more than a two-thirds 
majority.
  Mr. Chief Justice, this kind of ``one from column A and two from 
column B'' approach may work for a Chinese restaurant, but not for 
removing a President--or a judge. And this lack of specificity 
shortchanges the American people, who may never understand which 
charges were believed and which ones weren't.
  Still, President Clinton is not ``above the law.'' His conduct should 
not be excused, nor will it. The President can be criminally 
prosecuted, especially once he leaves office. In other words, his acts 
may not be ``removable'' wrongs, but they could be ``convictable'' 
crimes. Moreover, the House vote of impeachment--and the President's 
misconduct with Monica Lewinsky--will forever scar this President's 
legacy. Finally, the Senate can and should censure the President, and 
we ought make our condemnation of his conduct as strong as possible.
  In sum, Mr. Chief Justice, President Clinton's conduct was wrong, 
reckless and indefensible. Under the Constitution it does not justify 
removal. But for those who love this country, it demands outrage and 
disappointment. It demands a commitment from this President and future 
Presidents, this Congress and future Congresses--not now, and not ever 
again, to let personal weakness and personal failing stain or shake our 
democracy. Thank you.


                                 facts

  Mr. THOMPSON. In 1994, Paula Corbin Jones sued President Clinton for 
sexual harassment which she alleged he committed against her in 1991, 
when he was Governor of Arkansas. The Supreme Court of the United 
States permitted the lawsuit to proceed in 1997.
  Monica Lewinsky began work as a White House intern on July 10, 1995. 
At the time, she was twenty-one years old. She later worked in the 
Office of Legislative Affairs at the White House. In 1996, she left the 
White House for a job at the Department of Defense.
  The first day that Ms. Lewinsky spoke with President Clinton, 
November 15, 1995, she and the President engaged in sexual relations. 
Their sexual relationship lasted until 1997. The two also engaged in 
telephone sex at least seventeen times, and they exchanged numerous 
gifts. The two agreed to keep their relationship secret through the use 
of cover stories. Ms. Lewinsky, if discovered in the Oval Office, was 
to say that she was delivering papers, although her job duties never 
included delivering papers. Once she left the White House, her visits 
to the President were disguised as visits to Presidential secretary 
Betty Currie.
  The President told Ms. Lewinsky that she could return to the White 
House after the 1996 election had concluded. Although Ms. Lewinsky 
tried numerous times to regain employment at the White House, she was 
never able to do so. After being informed by a friend, Linda Tripp, 
that she would never be permitted to return to the White House, Ms. 
Lewinsky decided to seek employment in New York, initially receiving 
and rejecting a job offer with the United States Ambassador to the 
United Nations. She then decided to seek employment in New York in the 
private sector. On November 5, 1997, she met with Vernon Jordan, a 
prominent Washington lawyer and friend of President Clinton, to seek 
his assistance in securing such a position. This meeting was arranged 
by Ms. Currie. Mr. Jordan took no action to help her in November, and 
does not remember meeting her at this time.
  On December 5, 1997, attorneys for Ms. Jones notified the President's 
attorneys of their list of witnesses. That list included Ms. Lewinsky. 
Although she was unaware at the time that her name was on the Jones 
litigation witness list, Lewinsky coincidentally decided to terminate 
her relationship with the President the following day, but was unable 
to see him at the White House. President Clinton and Ms. Lewinsky 
initially exchanged angry words that day over the telephone, but later 
that day, she came to the White House at his invitation. During this 
meeting, Ms. Lewinsky told the President that Mr. Jordan had not 
appeared to have done anything to help her in her job search. In a 
conversation Ms. Lewinsky described as ``sweet'' and ``very 
affectionate,'' he told her that he would speak to Mr. Jordan about her 
job situation. The President did not at that time inform Ms. Lewinsky 
that her name was on the witness list.
  Ms. Currie again called Mr. Jordan, and on December 8, 1997, Ms. 
Lewinsky called to set another appointment with Mr. Jordan for December 
11. Although Ms. Lewinsky provided Mr. Jordan with a list of 
corporations in which she was interested in obtaining employment, Mr. 
Jordan determined based on his own contacts which companies he would 
pursue on Ms. Lewinsky's behalf. Following his meeting with Ms. 
Lewinsky, acting by his own admission at the behest of the President, 
Jordan called three corporate executives in New York. He also called 
the President to report on his efforts on behalf of Ms. Lewinsky.
  December 11, 1997 was also the date on which Judge Susan Webber 
Wright, the presiding judge in the Jones litigation, issued an order 
permitting Jones' attorneys to pursue discovery concerning the names of 
any state or federal employees with whom the President had had sexual 
relations, proposed sexual relations, or sought to have sexual 
relations.
  On December 17, 1997, between 2:00 and 2:30 a.m., the President 
telephoned Ms. Lewinsky. He informed her that Ms. Currie's brother had 
been killed, as well as that her name was on the Jones witness list. 
The President indicated that if Ms. Lewinsky were subpoenaed, she 
should let Ms. Currie know. He also told her that she might be able to 
sign an affidavit in that event to avoid testifying. In addition, he 
suggested that she could say that she was coming to see Betty or was 
bringing him papers. Ms. Lewinsky says that she understood implicitly 
that she was to continue to deny their relationship.
  Ms. Lewinsky was subpoenaed to testify in the Jones litigation on 
December 19, 1997. The subpoena also required Ms. Lewinsky to produce 
all gifts that she had received from the President, and enumerated one 
specific gift that the President had given Ms. Lewinsky, a hatpin. 
Because Ms. Currie was in mourning, Lewinsky called Jordan, who invited 
her to his office. She was in a highly emotional state, and that fact, 
combined with her statements in the conversation that demonstrated her 
personal fascination with the President, prompted Jordan to ask whether 
she, a person for whom he was providing job assistance, had had sexual 
relations with the President. He says she denied such relations. Jordan 
took a telephone call from the President during that meeting, and made 
plans to see him that night. Jordan later called Frank Carter, a 
Washington lawyer, to arrange a meeting at which he would refer Ms. 
Lewinsky to Mr. Carter as a client.
  Notwithstanding Ms. Lewinsky's denial of sexual relations with the 
President, Jordan asked President Clinton that same evening the same 
question. The President also denied having had sexual relations with 
Ms. Lewinsky. Jordan also conveyed a number of Lewinsky's statements to 
the President, and informed Clinton that Lewinsky had received a 
subpoena to testify in the Jones case. Following a discussion in which 
Lewinsky informed Jordan of the nature of the telephone calls she had 
had with the President, Jordan drove Lewinsky to a meeting at Mr. 
Carter's office on December 22.
  The President met with Ms. Lewinsky on December 28, 1997, at which 
time they again exchanged gifts. They discussed the subpoena, and she 
expressed concern, which the President shared, about the specific 
enumeration of the hatpin, since that suggested that someone knew 
details of their relationship. Ms. Lewinsky then suggested taking the 
gifts out of her apartment or giving them to Ms. Currie. The President 
responded, ``I don't know'' or ``Let me think about that.'' Later that 
same day, Ms. Lewinsky's consistent recollection is that Ms. Currie 
called her and stated, ``I understand you have something to give me'' 
or ``the President said you have something to give me.'' Ms. Currie 
later drove to Ms. Lewinsky's apartment, picked up a box containing 
gifts the President had given Ms. Lewinsky, and hid that box under her 
bed without asking any questions.

[[Page S1549]]

  On December 31, 1997, Jordan and Lewinsky had breakfast. Lewinsky, 
fearing that her relationship with the President would become known and 
wanting to ensure that she not appear responsible for its becoming 
known, told Jordan that she possessed notes she had addressed to the 
President that suggested the nature of their relationship. According to 
Lewinsky, Jordan told her to dispose of those notes. Jordan initially 
denied that he ever had breakfast with Lewinsky, but later recalled 
having done so when shown the receipt. But he denied ever telling 
Lewinsky to destroy any notes.

  Ms. Lewinsky pursued filing an affidavit to obviate the need for her 
to testify in the Jones case. On January 6, 1998, she communicated to 
Mr. Jordan concerns she had about the affidavit that Mr. Carter had 
drafted for her. Jordan telephoned Carter with her suggestions. 
Although Mr. Jordan denies the allegations, Ms. Lewinsky contends that 
she informed Jordan about the details of Carter's proposed affidavit, 
and that she and Jordan made changes to it prior to her signing it. 
Lewinsky also spoke with the President about Carter's questions to her 
about how she obtained her Pentagon job. The President told her that 
she ``could always say that the people in Legislative Affairs got it 
for you or helped you get it.''
  On January 7, 1998, Lewinsky signed an affidavit denying sexual 
relations with the President. She later testified that the affidavit 
was false. She showed Jordan the affidavit, and Jordan spoke with the 
President after conferring with Ms. Lewinsky about the changes. 
Lewinsky testified that she believed that the President would be 
satisfied with any affidavit that Jordan approved.
  The following day, Lewinsky was interviewed at a company that Jordan 
had called on her behalf. Believing that the interview had proceeded 
poorly, she called Jordan, who then called the head of the holding 
company of the firm with which she had interviewed. Jordan asked that a 
second interview be granted Lewinsky. She interviewed again the next 
day, and was made an informal job offer. Jordan testified that his 
``magic'' was responsible for that offer. Lewinsky informed Jordan of 
her success, and he telephoned Ms. Currie to notify her: ``Mission 
accomplished.'' He later informed the President.
  The President was scheduled to be deposed in the Jones litigation on 
January 17, 1998. The President knew that one of the issues was his 
relationship with Ms. Lewinsky. For the affidavit to successfully 
deflect questions to the President concerning that relationship, the 
affidavit would have had to have been filed in time for the court to 
consider it and for the President's lawyers to see it before the 
deposition. The President's lawyers called Ms. Lewinsky's attorney once 
on January 14, twice on January 15, and once on January 16. On the 
15th, Lewinsky's lawyer, Mr. Carter, sent President Clinton's counsel a 
copy of the affidavit. Mr. Carter also called the court twice on that 
day to ensure that the affidavit could be filed on January 17.
  During his deposition, President Clinton made numerous false 
statements while under oath. These included the sexual nature of his 
relationship with Ms. Lewinsky, and whether they had exchanged gifts. 
He relied on the same cover stories as he had discussed with Ms. 
Lewinsky. The President's lawyer used Ms. Lewinsky's affidavit in an 
attempt to deflect questions about the President's relationship with 
her, specifically stating that the President had already seen that 
affidavit. As the President appeared to be paying close attention, he 
did not contradict his attorney when he represented to the court that 
``there is absolutely no sex of any kind in any manner, shape or form 
with President Clinton. . . .'' And he testified, when asked by his 
attorney, that Ms. Lewinsky's affidavit was absolutely true. However, 
the judge insisted that President Clinton answer additional questions 
about his relationship with Ms. Lewinsky. These questions were asked 
based on the judge's peculiar ruling that used only one-third of a 
standard courtroom definition of ``sexual relations'' and the 
plaintiff's attorneys' insistence in using that truncated definition as 
a reference for questions they posed to the President about the nature 
of his relationship with Ms. Lewinsky, rather than asking specific 
questions concerning what had occurred. In six instances, the President 
answered questions by referencing Betty Currie, such as in using the 
cover story that Ms. Lewinsky had come to the White House to visit Ms. 
Currie, and on one occasion, expressly stated that his questioners 
should ``ask Betty.'' Indeed, Ms. Jones' attorneys later placed Ms. 
Currie's name on their witness list.
  After the deposition, at 7 p.m. that evening, the President called 
his secretary, Betty Currie, at home. She later testified that she 
could not remember the President ever calling her at home so late on a 
Saturday. In that conversation, he asked Ms. Currie to see him in the 
Oval Office the following day, a Sunday. This was also an unusual 
occurrence. While in the Oval Office, and contrary to the admonition 
from the Jones case judge not to discuss his deposition testimony with 
anyone, the President made the following statements to Ms. Currie: (1) 
``I was never really alone with Monica, right?'' (2) ``You were always 
there when Monica was there, right?'' (3) ``Monica came on to me, and I 
never touched her, right?'' (4) ``You could see and hear everything, 
right?'' (5) ``She wanted to have sex with me, and I could not do 
that.''
  Once the President met with Ms. Currie on January 18, Ms. Currie 
began to seek Ms. Lewinsky. She paged Ms. Lewinsky four times that 
night. Later than 11:00 p.m. that evening, the President called Ms. 
Currie at home to determine if she had yet reached Ms. Lewinsky. She 
had not. In a period of less than two hours on the morning of the 19th, 
Ms. Currie paged Ms. Lewinsky an additional eight times. The President 
then called Mr. Jordan, who called the White House three times, paged 
Ms. Lewinsky, and called Mr. Carter, all within twenty-four minutes of 
receiving the President's call. Mr. Jordan called Mr. Carter again that 
afternoon and learned that Mr. Carter had been replaced as Ms. 
Lewinsky's attorney. Mr. Jordan then called the White House six times 
in the next twenty-four minutes trying to relay this information. Mr. 
Jordan called Mr. Carter again, and then called the White House again.
  On January 20, the White House learned that a story about the 
President's relationship with Ms. Lewinsky would appear in the next 
day's edition of The Washington Post. On January 21, the President told 
his chief of staff and two deputies that he did not have sexual 
relations with Ms. Lewinsky. He later told one of those deputies, John 
Podesta, that he had not had oral sex with Ms. Lewinsky.
  Later on January 21, the President told his aide, Sidney Blumenthal, 
that Lewinsky had made a sexual demand on him, and that he rebuffed 
her. The President told Blumenthal that Lewinsky had threatened him. 
President Clinton also indicated that Lewinsky said that she was known 
among her peers as the stalker, that she hated it, and that she would 
say that she had an affair with the President whether it was true or 
not, so that she would not be known as the stalker any more. He also 
told Blumenthal that he felt like a victim who could not get out the 
truth. Blumenthal later testified that he believes the President lied 
to him. The President testified that he was aware at the time that he 
made his statements that his aides might be summoned before the grand 
jury.
  The President also met with his political consultant, Dick Morris, on 
January 21. The President authorized that Morris conduct an overnight 
poll measuring potential public reaction to the affair. The poll 
concluded that the American people would forgive the President for 
adultery, but not for perjury or obstruction of justice. The President 
then indicated that ``we just have to win, then.'' The President's 
lawyers could not answer senators' questions why such a poll had been 
undertaken if the President had not committed any of these acts.
  Shortly after the President met with Mr. Blumenthal, press reports 
began to appear that, quoting White House sources, characterized Ms. 
Lewinsky as a stalker, and as an ``untrustworthy climber obsessed with 
the President.'' Although Mr. Blumenthal in his Senate deposition 
denied any knowledge of how White House sources were attributed to 
these stories, one journalist by

[[Page S1550]]

the time of this writing has sworn to an affidavit stating that Mr. 
Blumenthal made such characterizations to him. A second similar 
affidavit has also been filed, corroborating the first one.
  Ultimately, Ms. Lewinsky was granted immunity from prosecution by the 
independent counsel. The independent counsel received from Ms. Lewinsky 
a dress that according to DNA testing was stained by the President's 
semen.
  On August 17, 1998, the President testified before the grand jury 
convened by the independent counsel. In a prepared statement, the 
President made a number of false statements. He stated that he engaged 
in inappropriate conduct with Ms. Lewinsky in 1996 and 1997, whereas 
the conduct actually began in 1995, when she was an intern. Based on 
Ms. Lewinsky's testimony and the dress, he appears to have testified 
untruthfully about whether he engaged in sexual relations even as that 
term had been defined at his deposition in the Jones case. And he also 
testified that he was not paying attention to his attorney when the 
attorney described the affidavit; that his relationship with Ms. 
Lewinsky had originally begun as a ``friendship;'' that he made the 
statements to Ms. Currie after his deposition in an effort to refresh 
his recollection; and that he told his aides statements that were true 
about his relationship with Ms. Lewinsky. Nonetheless, when testifying 
before the grand jury, the President no longer made a number of the 
assertions that he had made in the deposition, including denying that 
he was ever alone with Ms. Lewinsky. With respect to his deposition 
testimony, the President told the grand jury that his ``goal in this 
deposition was to be truthful, but not particularly helpful . . . I was 
determined to walk through the mine field of this deposition without 
violating the law, and I believe I did.''
  The Independent Counsel filed a report with the House of 
Representatives that referred allegations of possible impeachable 
offenses. The House of Representatives voted to pass two articles of 
impeachment against President Clinton, for perjury before the grand 
jury and for obstruction of justice. Two other articles of impeachment, 
which had been based on perjury in his deposition in the Jones case and 
misstatements to the House in response to questions propounded to the 
President by the House of Representatives, failed to pass the House.


                    ``HIGH CRIMES AND MISDEMEANORS''

  The most fundamental question, against which the President's actions 
must be measured, is ``what constitutes an impeachable offense?'' The 
Constitution makes impeachable ``treason, bribery and other high crimes 
or misdemeanors.'' The Constitution also says that upon conviction in 
the Senate the President ``shall be removed.'' Therefore, the questions 
becomes, in effect, ``what actions constitute grounds for removal?''
  It should be noted at the outset that what we have in effect is a 
``mandatory sentence'' wherein if there is a finding of guilt then one 
particular sentence must be imposed--in this case removal from office. 
However, unlike judges in a criminal case, the Senate may take into 
consideration the ``punishment'' in determining guilt. Some have 
contended that the President may be guilty of high crimes and 
misdemeanors, but his actions may not be sufficient for removal. I 
believe the better analysis is that the Senate may conclude that the 
President's conduct is not sufficient for removal and that that 
determination, by definition, means that the President is not guilty of 
high crimes and misdemeanors. I believe that this analysis is important 
in understanding the scope of our discretion and helps us get away from 
the notion that there is an objective standard for high crimes and 
misdemeanors if we could only find it. Historical analysis covering 
over six hundred years reveals that there is no ``secret list'' of high 
crimes and misdemeanors, but rather our forefathers perpetuated a 
framework that allows for a certain amount of subjectivity which may 
encompass changing times and differing circumstances.
  Such a conclusion emerges from an examination of English law, 
original state Constitutions, our federal Constitutional Convention, 
the ratification debates, American impeachment precedents and scholarly 
commentary.
  The phrase ``high crimes and misdemeanors'' can be traced back to the 
thirteen hundreds in England. It was clear from the outset that the 
phrase covered serious misconduct in office whether or not the conduct 
constituted a crime. Commentators say that the English impeachment 
tradition covered political crimes against the state and injuries to 
the state. Beyond that, it is difficult to glean covered conduct from 
the English tradition.
  Apparently there was only one discussion during the Constitutional 
Convention that dealt with the phrase high crimes and misdemeanors and 
that occurred on September 8, 1787. As reported out of Committee, 
impeachable offenses included only ``treason and bribery.'' Mason 
wanted to add ``maladministration,'' which was also contained in many 
state constitutions. Madison was under the impression that such 
language would leave the President at the mercy of the Senate. Madison 
relented and we wound up with the phrase as we have it today. The 
founding fathers quite clearly rejected impeachment for Congressional 
disapproval of policy. Impeachable offenses were ``political'' offenses 
and, as under English law, not necessarily criminal. Other guidance 
that can be derived from the Convention is the fact that the founders 
were acutely aware of their rejection of bills of attainder as existed 
in the English system and, therefore, they thought that impeachable 
offenses should be something that any reasonable man could anticipate. 
He should not be punished for some crime made up after the fact. Also, 
there was to be a requirement for ``substantiality.'' This mechanism 
was not designed for trivial offenses.
  We cannot determine the precise intent of the framers because their 
deliberations were in secret and nothing was printed from their 
deliberations. They intended for the ratifiers at the state Conventions 
to be the more authoritative voice for interpretation of the provisions 
in the Constitution. It is fair to conclude that the attitude of the 
ratifiers was reflected to a certain extent in the Federalist papers. 
The most definitive comments concerning impeachment were by Hamilton in 
Federalist 65 wherein he stated:

       The subjects of [impeachment] are those offenses which 
     proceed from the misconduct of public men, or, in other 
     words, from the abuse or violation of some public trust. They 
     are of a nature which may be with peculiar propriety 
     denominated political, as they relate chiefly to injuries 
     done immediately to the society itself.

  The ratifiers at the North Carolina convention spoke in terms of 
serious injuries to the Federal government. James Iredell, later to 
become an Associate Justice on the Supreme Court, stated that 
impeachment was ``calculated to bring [great offenders] to punishment 
for crimes which it is not easy to describe but which everyone must be 
convinced as a high crime and misdemeanor against governments . . . the 
occasion for its exercise will arise from acts of great injury to the 
community.'' He gave as an example of an impeachable offense the giving 
of false information to the Senate. Impeachment was not for ``want of 
judgment'' but rather to hold him responsible for ``willfully abusing 
his trust.'' Iredell also called attention to the complexity if 
not impossibility of defining the scope of impeachable offenses with 
any more precision than the above. And the ratifiers at the Virginia 
Convention clearly agreed that a President could be impeached for non-
indi