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Statement by Senator Bill Frist (R-Tennessee)

Following is a statement from the Senate's closed deliberations on the articles of impeachment against President Clinton, excerpts of which senators were allowed to publish in the Congressional Record for Friday, February 12, 1999.


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 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 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 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.

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