Q&A: Factual Disputes
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JIM LEHRER: Questions and answers at the senate impeachment trial and to Margaret Warner.
MARGARET WARNER: After six days of listening silently to the House managers and President Clinton’s attorneys, the senators finally were able to ask questions today, although indirectly. They focused on two general areas, the factual disputes in the case and the legal and constitutional standards. Kwame Holman reports.
KWAME HOLMAN: Under the established rules, Chief Justice William Rehnquist was assigned the task of reading each of the senators’ questions.
WILLIAM REHNQUIST, Chief Justice: I would like to advise counsel on both sides that the chair will operate on a rebuttable presumption that each question can be fully and fairly answered in five minutes or less. (Laughter)
KWAME HOLMAN: The laughter was insightful. House manager Ed Bryant’s response to the first question ran nine minutes. The first several questions were general in nature and gave both legal teams the opportunity to respond to and rebut the cases for and against conviction laid out over the previous six days. But after 30 minutes, senators began asking questions that got to the specifics of the case.
WILLIAM REHNQUIST: Senators Dorgan and Baucus and Schumer to the president’s counsel: “In Counselor’s Ruff’s presentation, he set forth a time line that undermined the manager’s theory that Judge Wright’s December 11th discovery order triggered an intensification of the president’s and Jordan’s efforts to assist Lewinsky in finding a job. In response to Mr. Ruff’s presentation, the managers handed out a press release outside the senate chamber asserting that it was the December 5th issuance of the witness list in the Jones case and not the judge’s discovery order on the 11th that triggered the intensification of the job search. This does not appear consistent with assertions made by the House managers in their trial brief and oral presentations.” Please comment.
DAVID KENDALL, President Clinton’s lawyer: It was the assertion very clearly voiced in Mr. Manager Hutchinson’s presentation and very clearly made in the trial brief of the House managers that it was indeed the December 11th order that– I used the word jump-started yesterday– that catalyzed, that pushed forward the job search. If you look at page 21 of the House manager’s brief, you see them say, “this sudden interest was inspired by a court order entered on December 11, 1997.” Now, their position could not have been clear until we began our presentations, and then all of a sudden, it wasn’t the December 11th order, it was instead, the December 5 witness list. Suddenly, because it’s been clear that the December 11th order was entered at the time when Mr. Jordan was flying to Europe, he could not have known about it. He had met with Ms. Lewinsky earlier that day, and indeed, that December 11th meeting had sprung from actions taken by Ms. Lewinsky in a phone call with Mr. Jordan in November. So the point is these were two entirely separate chains of events going forward — the job search and the witness list. And nothing supports the intensification theory presented by the managers, certainly not this new, “well, it wasn’t the December 11th order, it was the December 5th order.”
WILLIAM REHNQUIST: Senators Ashcroft and Hatch: “The president was faxed a witness list on December 5th and actually reviewed it no later than the 8th. Thus, isn’t the White House argument that the president had no incentive to assist Ms. Lewinsky’s job search until December 11 just a red herring?”
REP. ASA HUTCHINSON: There’s two things that I’m pointing to as the trigger mechanisms for the job search intensification. One of them is the witness list that comes in on December 5 — the president knows about at the latest on December 6. The other thing that intensified that effort was the judge’s order on December 11th. Now, they went through this long circumstance of Mr. Jordan being in Holland and the time of a phone call with the judge and all of that, showing that the judge’s order of December 11 could not have triggered any action on the 11th. There is no question about that. That is obvious from the facts, as it was obvious when I made my presentation. The meetings on the 11th with Vernon Jordan and Monica Lewinsky were triggered by the witness list coming in on the 5th that the president knew about on the 6th, that he discussed with Vernon Jordan, as well. Now, we say that the judge’s order of the 11th, which was filed that day– the only thing that was filed on the 12th was their memorandum of that telephone conversation– that triggered additional action down the road. The job search was not over, the activity continued into January. And so that all put pressure on the ultimate fact in January when the job was obtained, the false affidavit was filed.
KWAME HOLMAN: Both sides were asked whether witnesses should be called in the trial.
WILLIAM REHNQUIST: Senators Grassley, Smith of New Hampshire, Bunning and Craig ask the House managers: “In your presentation, you made the case that the senate should call witnesses.” In light of the White House’s response to this argument, do you still hold this position? Please elaborate.
REP. BILL McCOLLUM: Mr. Chief Justice and Senators, the House definitely holds to the position that we should call witnesses, but I think the issue here is what has been related to us in anything we’ve heard in the past few days by the White House counsel that would say we don’t need them, or I think just the contrary, what have we heard that says we’re more likely to need them or you’re more likely to need them?
First of all, I would like to point out to you that the White House counsel is trying to have it both ways. They have been arguing to you on a lot of technicalities of the law, the criminal law for the last few days, and that’s understandable. As I said to you a few days ago, I think this is a two-stage process, and we — the managers do. You have to determine if the president committed crimes and then if he did, should he be removed from office? Two separate questions.
They’ve argued to you that you should use the standard beyond the reasonable doubt, which is a criminal standard. And I might add that that standard is only for facts; it’s not for whether you remove, it isn’t to determine law. You wear the hat of finders of fact, as well as the judges, the finders of the law and so forth. But if you choose to use that standard, you need to know, (a), that it doesn’t mean that it excludes any doubt. You probably need to hear a jury instruction, which we can provide at some reasonable point for you about how a federal court would charge a jury about that. But the point I’m making is that they’ve claimed that and they’ve claimed there is a lack of specificity in the charges.
Well, we’re not in court in the sense of a real trial here. We don’t have to be specific like that. The whole history of the articles of impeachment that have come over here in the past on judges and so forth have never gotten down into the technical specificity of a courtroom and been thrown out because they weren’t exactly right. But my point, again, is that they’ve gone and built up a whole case about — that we ought to follow these rules and have a criminal proceeding and judge the crimes on that basis, and yet they’ve said, you wouldn’t have witnesses, or we shouldn’t call witnesses. In any criminal trial, you’re going to call witnesses. You need to judge their credibility.
WILLIAM REHNQUIST: This is from Senators Gramm of Texas and Smith of New Hampshire to the White House counsel: “If you said that our oath to impartial justice required us to allow the president to have a handful of witnesses to defend himself, don’t you believe that all 100 senators would say yes? How can we do impartial justice by turning around and denying the House that same right?”
CHARLES RUFF, White House Counsel: The House of Representatives, at least as they are described by the managers they sent to you– I don’t know how to put this gently– violated their constitutional responsibility in the handling of this matter. They characterized themselves as nothing more than a grand jury, nothing more than a screening device between the allegations transported to them by the independent counsel and the ultimate vote a month and three days ago. They felt, as they reiterated constantly during that process, that they knew everything they needed to know not to make the judgment that it was, you know, worth sending on to the senate for them to think about, but they knew everything they needed to know, as you’ve heard them say so eloquently and so forcefully here, to remove the President of the United States from office. And now they’re saying to you, “well, maybe not. There really isn’t enough here to make that important critical judgment.”
Senators, I really think they should have done it right the first time, and they’ve told you, not back then, but they’ve told you now that they have done it right because otherwise, they wouldn’t, as a matter of their responsibility, be able to stand in the well of this senate and urge you to remove the President of the United States. How could they make that recommendation if they had any uncertainty, if they didn’t believe that what’s in those five volumes was sufficient under the day? They couldn’t. They couldn’t. Our rights are these for the President of the United States: He’s entitled to ask you whether, when the House of Representatives voted to impeach him, they had enough evidence to make one of the most serious constitutional judgments that’s entrusted to them. And it can’t be that because they didn’t do it right then, that you and we are now asked to extend this process just so that maybe, if they’d go to the right person or ask the right question or find the right document, something will emerge that translates those five volumes into something that really is a constitutional basis for removing the president.