Q&A: Factual Disputes
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MARGARET WARNER: We look at this first area of questioning now with Douglas Kmiec, former director of the Justice Department’s Office of Legal Counsel in the Reagan administration; he’s now a visiting law professor at Pepperdine University; and New York attorney Bruce Yannett, who was an associate independent counsel in the Iran-Contra probe.
Bruce Yannett, the conventional wisdom, the pundit wisdom going into this day was that the House managers had to use this question-and-answer period really to rehabilitate their factual case, the factual basis of their case after three days of pounding by the White House lawyers. How well do you think they managed to do that?
BRUCE YANNETT: Well, I think they did and they didn’t. They certainly scored some points, I think, along the way. They poked holes in some of the White House factual presentation. They pointed out areas that the White House failed to address. For example, I think they hammered pretty hard and with some success on the issue of whether, after his Paula Jones deposition, the president had coached Betty Currie improperly, and they pointed out that, in fact, despite what Mr. Ruff had said, Betty Currie was on the witness list after the president’s deposition and that Ms. Mills had failed to point out in her discussion that the president had had two conversations with Betty Currie.
So I think they scored some points there for sure. But if you take a broader perspective, my sense of it was that at the end of the afternoon, not much had changed very much at all, that one of the House managers had pointed out in the press this morning that, in a trial, the momentum swings back and forth and that the momentum after the White House presentation probably favored the White House. I think today we sort of had equipoise. I don’t think either side particularly outscored the other.
MARGARET WARNER: Do you agree, Doug Kmiec, we ended up with equipoise here?
DOUGLAS KMIEC: Well, equipoise is nice, but I think actually there was a bit of a swing today insofar as yesterday the White House counsel, as it finished its presentation with the very eloquent presentation by Senator Bumpers, seemed to have the momentum and perhaps even that momentum explains the premature motion, I think, that Senator Byrd is talking about. But today, the colloquy was bringing out the facts. For example, Margaret, when they were talking about the job search, they did force Mr. Hutchinson, the manager from the House, to admit that perhaps he overstated his case a bit about the facts with regard to December 11th and whether or not the order of the court that the president had to talk about his past sexual relationships was the thing that triggered the job search.
But that colloquy also brought out some other facts. It brought out the fact that Vernon Jordan, under testimony before the grand jury, had basically admitted that once Monica Lewinsky had been subpoenaed, that the move to get her a job intensified immensely, and that really strengthened, I think, the obstruction case. And that came out in the colloquy.
MARGARET WARNER: Would you agree, Bruce Yannett, that the factual disputes are most central to the obstruction case, that you have both sides essentially have chosen different facts from the record, and they each have a different kind of a chronology?
BRUCE YANNETT: I think that’s very true, and it’s the inevitable result of an obstruction charge. An obstruction charge in any case, unlike a perjury charge, which in a typical criminal case would say, “the defendant said x, y and z and it was intentionally false and it was material,” and you’d have a specific sentence that the defendant is accused of falsely testifying about — in an obstruction case, it’s a course of conduct. It is a series of events typically that give rise to the charge of obstruction. And here you have a whole series of events that the House claims amounts to an obstruction case and as a result, there’s a lot of wiggle room for the lawyers on both sides to point to facts that they say support one side or the other. If I might, I actually, I came away from the December 11 and the job search efforts on behalf of Monica Lewinsky a little differently.
I thought that Mr. Hutchinson had a golden opportunity to in fact apologize and say, “you know, I really blew it, I tied it too much to December 11. It was a lawyer’s overstatement” –The way Chuck Ruff did when he admitted that he failed to point out that Betty Currie was on the witness list. And an advocate’s credibility actually can become important in the fact-finder, here the senate’s determination about whether to believe or rely upon what they’re hearing. And the House managers not only didn’t apologize or didn’t really back away from their argument, they also never dealt with the point raised by the White House that the job effort really began in November and that both Monica Lewinsky and Vernon Jordan had agreed to meet in early December back in November, and it was Vernon Jordan’s travel schedule that prevented them from meeting earlier, before there was ever a witness list.
MARGARET WARNER: Doug Kmiec, address that second point about the credibility of the House managers and their factual case. Do you think they had work to do there? And do you think they did it today? And I guess here we’re talking as much about sort of style and approach as actual facts.
DOUGLAS KMIEC: Sure. I think they did do a credible job, and I do think they had some work to do there. Bruce is quite right that Asa Hutchinson I think admitted that he had a bit of prosecutorial exuberance when he overstated the significance of December 11th. Perhaps he could have done that more clearly before or today, but I think he did it nonetheless. And at the same time he made his point. He made his point that the testimony in the record by Vernon Jordan suggested that this was a really intense job effort that was related to getting a job for Monica Lewinsky before she had to testify, to get that buttoned down. And I think the other way they rehabilitated themselves, Margaret, was just by thinking on their feet. For example, Bruce mentioned that there was this terribly embarrassing moment where it was pointed out that the president had been ordered by Judge Wright not to talk to anyone in the case, and yet went right back to the White House, demanded that Betty Currie come in on a Sunday on a weekend, and then go through this coaching exercise. And so the ability to kind of bring out those very damaging facts in a very professional way and a responsive way I think helped the House managers immensely.
MARGARET WARNER: Bruce Yannett, we’re going to go back to tape in a minute, but I want to ask you about one other thing that came up in the factual dispute, which is that the House managers kept saying, “the way to settle these things is by calling witnesses.” Briefly, who got the better of that argument today?
BRUCE YANNETT: Frankly, I thought it was a wash. It was really more of the same, both sides accused the other side of wanting it both ways, and I think they were both right. The White House says, “Look, you’re claiming there’s enough to remove the president. How can you ask for witnesses?” And the House managers say, “well, look, you want all the protections of a criminal trial. Let’s have a criminal trial.” And so I thought that was a wash.
MARGARET WARNER: A wash, Doug Kmiec?
DOUGLAS KMIEC: Yes. I agree as well. You know, it would have been nice had the House managers pointed out a half a dozen different places where witnesses would have really cleared up uncertain facts. I think the one place where the managers got an advantage is where Mr. Kendall said, “the record was massive, so we don’t need witnesses,” but then he said, “if we do have witnesses, I’m going to need a lot of time to cross-examine them and to look at them most carefully because I’ve never had that advantage before.”