The President’s Defense
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KWAME HOLMAN: Today, two members of President Clinton’s legal team stood before the senate. Each took an article of impeachment and, over the course of several hours, attempted to tear it apart. Special counsel Gregory Craig defended the president against the charges contained in article one.
GREGORY CRAIG: Article I accuses the president of having given “perjurious, false, and misleading testimony to the grand jury concerning one or more of four different subject areas:” First, when he testified about the nature and details of his relationship with Ms. Lewinsky; second, when he testified about his testimony in the Jones deposition; third, when he testified about what happened during the Jones deposition when the president’s lawyer, Robert Bennett, made certain representations about Monica Lewinsky’s affidavit; and fourth, when he testified about alleged efforts to influence the testimony of witnesses and impede the discovery of evidence.
KWAME HOLMAN: But Craig charged what is missing from article I is any reference to specific perjurious statements the president allegedly made.
GREGORY CRAIG: Now, there is a very simple reason why prosecutors identify the specific quotation that is alleged to be perjury and why it is included in a perjury indictment. If they don’t quote the specific statement that’s alleged to be perjurious, courts will dismiss the indictment, concluding that the charge of perjury is too vague and the defendant is not able to determine what precisely he is being charged with. The requirement that a defendant be given adequate notice of what he is charged with carries constitutional dimensions, and the failure to provide that notice violates due process of law.
By failing to be specific in this article as to what it is precisely that the president said that should cause him to be removed from office, has the House effectively and unconstitutionally ceded its authority under this provision of the Constitution to the managers who are not authorized to exercise that authority? By bringing general charges in this article, the House Judiciary Committee and then the House of Representatives generally gave enormous discretion, power, and authority to the floor managers and their lawyers to decide what precisely the president was going to be charged with. They didn’t have that authority under the Constitution; only the House of Representatives has that authority. They have been allowed to pick and to choose what allegations will be leveled against the President of the United States.
It would be extremely dangerous to the integrity of the process for the House to level such general charges against a president creating empty vessels to use Mr. Ruff’s term, to be filled by lawyers and floor managers. And this argument, I think, will take on more importance as we take a closer look at the charges themselves and we see what kind of witch’s brew, to use Mr. Ruff again, what kind of content was poured into these vessels and find out where they came from and why and when.
KWAME HOLMAN: Craig said it wasn’t until the senate trial was about to begin that House managers gave some indication of what the president’s alleged perjurious statements were.
GREGORY CRAIG: The trial briefs made eight proffers incredibly presented “merely as examples” that still in very general terms described instances when the president allegedly provided perjurious, false, and misleading testimony to the grand jury. But we were warned these proffers were only salient examples of grand jury perjury. The House managers said, “the examples set forth in the trial brief are merely highlights of the grand jury perjury.” There are numerous additional examples. And when we heard Mr. Manager Rogan’s presentation, we realized that the trial brief was absolutely right. Mr. Rogan unveiled allegations that had not been included even in the trial brief.
KWAME HOLMAN: And, Craig charged, House managers wish to convict the president for alleged perjurious statements made during his Paula Jones deposition even though the House of Representatives rejected the article of impeachment dealing with that perjury charge.
GREGORY CRAIG: The managers argued that the Jones testimony is relevant because, they say, the president perjured himself when he told the grand jury that his testimony in the Jones case was truthful, and it wasn’t, say the managers. That characterization of the president’s testimony, they say, is simply not accurate. What he said was: “My goal in this deposition was to be truthful, but not particularly helpful. I was determined to walk through the minefield of this deposition without violating the law, and I believe I did.” These are opinions. He’s characterizing his state of mind. The House manager, on the basis of this testimony, must not be allowed to do what the House of Representatives told them they could not do, which is to argue about the president’s testimony in the Jones case. Even if you believe that the president crossed the line in his Jones deposition, you cannot conclude that he should be removed for it. He was not impeached for it. This case is about the grand jury and the grand jury alone.
KWAME HOLMAN: Then, point by point, Greg Craig proceeded to dissect the charges of perjury contained in Article I.
GREGORY CRAIG: First, the managers claim that the president perjured himself before the grand jury, that he told al direct lie and should be removed from office because in his prepared statement he acknowledged having inappropriate contact with Ms. Lewinsky on “certain occasions.” This was a direct lie, say the managers, because, according to Ms. Lewinsky, between November 15, 1995, and December 28, 1997, they were alone at least 20 times and had, she says, 11 sexual encounters. To use the words “on certain occasions” in this context is, according to the managers, perjurious, false, and misleading.
Now, this particular charge was not included in Mr. Starr’s referral, and it was not debated by the members of the Judiciary Committee or the House of Representatives. The managers also say that the president lied to the grand jury and should be removed from office because the president acknowledged that on occasion he had telephone conversations that included sexual banter — this was also in the prepared statement — when, the managers say, the president and Ms. Lewinsky had 17 such telephone conversations over a two-year period of time. To use the word “on occasion” in this context is, according to the managers, a direct lie to the grand jury for which the president should be removed from office.
Now, there are 774 days in the time span between November, 1995 and December, 1997. I submit that it is not a distortion. It is not dishonest to describe their activity which Ms. Lewinsky claims occurred on 11 different days and from our examination of her testimony, we can only locate 10, but she says 11 — as having occurred on certain occasions. The managers are trying to remove the president from office. When he used the word “on occasion” when Ms. Lewinsky described that frequency or that event precisely the same way, there is simply no way that the president’s use of the words “on certain occasions” or “on occasion” can be taken as an effort to mislead or deceive the members of the grand jury or to conceal anything.
There is simply no way a reasonable person can look at this testimony and conclude or agree with the managers that it is a “direct lie.” What message do the managers send to America and to the rest of the world when they include these kinds of allegations as reasons to remove this president from office? Then the managers turned to the majority report they call the heart of the perjury. That is the president’s grand jury testimony that his encounters with Ms. Lewinsky did not constitute sexual relations as defined by the Jones’ lawyers in the Jones’ deposition.
KWAME HOLMAN: Craig showed a 14-minute segment of the president’s deposition in the Jones’ case to demonstrate the confusion that existed over which definition of sexual relations was to be used.
JUDGE WRIGHT: (President’s Deposition) And, if this is, in fact, an effort on the part of plaintiff’s counsel to avoid using sexual terms and avoid going into great detail about what might or might not have occurred, then there’s no need to worry about that, you may go into the detail.
ATTORNEY: If the predicates are matched we have no objection to the details, Your Honor.
JUDGE WRIGHT: It’s just going to make it very difficult for me to rule, if you want to know the truth. And I’m not sure Mr. Clinton knows all these definitions anyway.
GREGORY CRAIG: Did you hear that last statement from the judge? “I’m not sure Mr. Clinton knows all these definitions, anyway.”
Now, before the grand jury, the president discussed at some length and in great detail his interpretation of the definition that he was asked to apply during that deposition, the definition that he was asked to apply. And he gave lengthy and sustained answers and when you read the grand jury testimony, as I urged you to do, you will see that they’re consistent, logical, and there is reason behind his conclusion that his activities with Ms. Lewinsky simply did not fall within that definition.
There’s a variance between the president’s testimony and Ms. Lewinsky’s testimony about the details of what they did. What do they disagree about? Not about whether the president and Ms. Lewinsky had a wrongful relationship, the president admitted that before the grand jury; not about whether the president and Ms. Lewinsky were alone together, the president admitted that before the grand jury; not about whether, when they were alone together, their relationship included inappropriate intimate contact — the president admitted that before the grand jury; not about whether they engaged in telephone conversations that included sexual banter, the president admitted that before the grand jury; not about whether the president and Ms. Lewinsky wanted to keep their wrongful relationship a secret, the president admitted that before the grand jury. The difference in their testimony about their relationship is limited to some very specific, very intimate details.
And this is the heart of the entire matter — this disparity in their testimony. The possibility that the question of whether the President of the United States should be removed from his office, the fact that that might hinge on whether you believe him or her on this issue is a staggering thought.
KWAME HOLMAN: In his summation, Craig rebuffed all of the perjury charges contained in Article I.
GREGORY CRAIG: Think just for a moment and ask yourself if whether these allegations about this testimony is really an effort to vindicate the rule of law or is it something else? And ask yourself what coming generations will think about these charges. If you convict and remove President Clinton on the basis of these allegations, no President of the United States will ever be safe from impeachment again. And it will happen. And people will look back at us and they will say, “we should have stopped it then before it was too late.” Don’t let this happen to our country.
JIM LEHRER: Then Deputy White House Counsel Cheryl Mills began arguing the case against impeachment Article II, charging the president with obstruction of justice. Kwame Holman continues.
KWAME HOLMAN: Cheryl Mills is a Stanford Law School graduate who worked at Hogan and Heartson, Washington’s largest law firm. For the last six years, she’s served as a White House lawyer, and today she defended the president against the charge he tried to conceal the gifts he gave to Monica Lewinsky.
CHERYL MILLS: On December 28, 1997, Ms. Lewinsky and the president met in the Oval Office to exchange Christmas gifts at which time they discussed the fact that the lawyers in the Jones case had subpoenaed all the gifts from the president to Ms. Lewinsky. During the conversation on December 28, Ms. Lewinsky asked the president whether she should put away the gifts outside of her house someplace or give them to someone, maybe Betty. At that time, according to Ms. Lewinsky, the president said “let me think about it.”
The House managers have consistently described the December 28th meeting exactly this way, as did the majority counsel for the House Judiciary, as did the Office of Independent Counsel. It’s been said so often that it’s become conventional wisdom — but it is not. It is not the whole truth. It is not the full record. Ms. Lewinsky actually gave ten renditions of her conversation with the president; all of them have been outlined in our trial brief. Invariably, the one most cited is the one least favorable to the president. But even in that version, the one that is least favorable to the president, no one claims he ordered, suggested, or even hinted that anyone obstruct justice. At most, the president says, “Let me think about it.” That is not obstruction of justice. But what about the nine other versions? Some of the other versions, which I have never heard offered by the House managers, versions that maybe you, too, have never heard, are the ones that put the lie to the obstruction of justice allegation.
Let’s look at Exhibit Two, which is in your materials. You may have never heard, for example, this version of their conversation and this is Ms. Lewinsky speaking. “It was December 28th, and I was there to get my Christmas gifts from him and we spent maybe about five minutes or so, not very long, talking about the case. And I said to him, ‘well, do you think I should’ — I don’t think I said get rid of, I said ‘but do you think I should put away or maybe give to Betty or give to someone the gifts?’ And he — I don’t remember his response. It was something like, “I don’t know” or “hmm” or there was really no response.
You also may not have heard this version, and this is a juror speaking, a grand juror speaking to Ms. Lewinsky. The juror: “Now, did you bring up Betty’s name or did the president bring up Betty’s name?”. And this is at the meeting on the 28th. Ms. Lewinsky: “I think I brought it up, the president wouldn’t have brought up Betty’s name because he didn’t — he really didn’t discuss it.” And you probably have not heard this version. Lewinsky advised that Clinton was sitting in a rocking chair in the study. Lewinsky asked Clinton what they should do with the gifts Clinton had given her and he either did not respond or responded, “I don’t know.” Lewinsky is not sure exactly what was said, but she is certain that whatever Clinton said, she had no clearer image in her mind of what to do next. Why haven’t we heard these versions — because they weaken an already fragile circumstantial case.
KWAME HOLMAN: Mills closed her presentation by rebutting the argument House managers made last week, that in convicted the president, the senate would preserve the nation’s civil rights laws.
CHERYL MILLS: While acknowledging that the president is a good advocate for civil rights, they suggested that they had grave concerns because of the president’s conduct in the Paula Jones case. And some managers suggested that we all should be concerned should the senate fail to convict the president because it will send a message that our civil rights laws and our harassment laws are unimportant. I can’t let their comments go unchallenged. I speak as but one woman, but I know I speak for others as well.
I know I speak for the president. Bill Clinton’s grandfather owned a store; his store catered primarily to African-Americans. Apparently, his grandfather was one of only four white people in town who would do business with African-Americans, and he taught his grandson that the African-Americans who came into his store were good people and they worked hard and they deserved a better deal in life. The president has taken his grandfather’s teachings to heart and he has worked everyday to give all of us a better deal, an equal deal. I’m not worried about the future of civil rights.
I’m not worried because Ms. Jones had her day in court and Judge Wright determined that all of the matters we are discussing here today were not material to her case — and ultimately decided that Ms. Jones, based on the facts in the law in that case, did not have a case against the president. I’m not worried because we’ve had imperfect leaders in the past and we’ll have imperfect leaders in the future. But their imperfections did not role back, nor did they stop the march for civil rights and equal opportunity for all of our citizens.
Thomas Jefferson, Frederick Douglass, Abraham Lincoln, John F. Kennedy, Martin Luther King, Jr. — we revere these men, we should. But they were not perfect men. They made human errors, but they struggled to do humanity good. I’m not worried about civil rights because this president’s record on civil rights, on women’s rights, on all of our rights is unimpeachable. Ladies and gentlemen of the senate, you have an enormous decision to make and, in truth, there is little more I can do to lighten that burden. But I can do this: I can assure you that your decision to follow the facts and the law and the Constitution and acquit this president will not shake the foundation of the house of civil rights.
KWAME HOLMAN: Mills finished in a little more than an hour. The president’s team is expected to conclude its argument tomorrow.