Analysis of the Articles of Impeachment:
`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.
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 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.
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.
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.
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.