Defending the President
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JIM LEHRER: Margaret Warner has the legal angle.
MARGARET WARNER: To assess the legal effectiveness of the president’s defense today, we’re joined by New York attorney Bruce Yannett, who was an associate independent counsel in the Iran-Contra probe, and John McGinnis, a professor at Cardozo Law School at Yeshiva University, where he teaches constitutional law among other courses. He clerked for then-Judge Kenneth Starr in 1984 and served in the office of legal counsel in the Justice Department during the Bush administration. Welcome gentlemen.
MARGARET WARNER: Bruce Yannett, how effective a job did the president do — did the president’s team do in attacking the legal case presented by the House managers?
BRUCE YANNETT: I was very impressed by the job that Mr. Ruff did today. I think — keep in mind he was only speaking for two and a half hours and in effect was rebutting three days’ worth of a House presentation. It’s also, I think, worth keeping in mind that the White House doesn’t really have a burden of proving anything here, but rather simply casting doubt upon the House’s case. And in that regard I thought he was quite effective, first in pointing out the holes and the weaknesses and the factual evidence the House relied upon and attacking those parts of the House presentation where they clearly overreached and went beyond what the evidence will support. I think, second, he — throughout his presentation — belittled the notion that it’s necessary to call witnesses to prove the case, and, in fact, highlighted the contradiction in the House presentation between their claims that the evidence is overwhelming that the president should be removed and their express need for witnesses. And I think finally the thing that he did, I think, implicitly more than explicitly was to remind the senators of the gravity of the decision that’s facing them and to point out, remind them that if they were to vote to remove the president, this would be the first time in our history that that was to happen and is this the kind of factual and legal case that justifies taking that first step.
MARGARET WARNER: How did you read the case that was presented today, Mr. McGinnis?
JOHN McGINNIS: Well, I thought Charles Ruff was an extraordinarily effective advocate. He knew the first law of advocacy, which is to know your audience. The House managers had a harder time because they had to speak to both the public which wants this president largely to remain in office and to the senate. But Ruff, his client will speak to the public and so he concentrated entirely on the Senate. His arguments, which while boring in some respects, I think spoke to the senators. He spoke about the senate rules, spoke how specific senate precedence might help his case. He also subtly repositioned the whole case, not as the House managers would have it, that the president had an assault, a consistent assault on the judicial branch over a course of many months, but this was really, according to Ruff in his opening statement, a kind of political conspiracy perhaps between Linda Tripp and the independent counsel. And I think he was very successful in using Linda Tripp as the villainess because Judge Starr is well known to many of the Senators. That’s probably not as believable. And the senate really does not want to hear from Linda Tripp in the well of the senate. And I think that was one of the implicit threats of Ruff’s presentation.
MARGARET WARNER: Bruce Yannett, did you feel that, that he was implicit live suggesting that if you want to call witnesses, Linda Tripp would be one of our witnesses?
BRUCE YANNETT: Yes. Absolutely. He laced Linda Tripp in throughout his presentation really from very early on and made the point early on that she played a crucial role in all of this and then came back to Linda Tripp several times, including when he was discussing the obstruction case and talking about how it was Linda Tripp that suggested to Monica Lewinsky that she enlist Vernon Jordan’s assistance and then talked about, obviously about how she was involved in the sting operation on Ms. Lewinsky. And so the clear threat, I think was if we’re going to have witnesses, it’s going to include people like Linda Tripp, who I think in the public’s mind have a lower approval rating than even Ken Starr. He also at the same time I think was saying, look, you don’t need to call people like Vernon Jordan and Monica Lewinsky. They testified for day after day after day. What they said and what they’re going to say is already very well known. It’s in the record. It’s totally unnecessary. So I think he did both at the same time.
MARGARET WARNER: Mr. McGinnis, Mr. Ruff today spent a great deal of time and sort of built up to a crescendo really when he took on certain factual situations the House managers had presented one way and presented, as we just saw in the exchange about Vernon Jordan, new facts — facts that had been in the record but had not been presented by the managers. If this were a pure legal case, which, of course, it’s not, but how important is that as a legal tactic?
JOHN McGINNIS: Well, I think it’s important legal and politically because I do think the senators are going to be trying – many of them in the center — trying to do justice. They’ve taken an oath to do that. And I think the — Charles Ruff was very successful, particularly on some of the conspiracy counts in offering an alternative explanation. Which explanation is ultimately more credible I think is still in doubt. But he was very successful in that. One of the things he did was he used some of the House’s overstatements against them, some of their fudges he called them. One of the marks of his skills, his own fudges, I think, were hard to remark on, much harder than the House.
MARGARET WARNER: Like what?
JOHN McGINNIS: One that I would particularly point out was when he said – when, first of all, he minimized the significance of the main perjury count against the president, that the president did not tell the truth about where he touched Monica Lewinsky. That was very central because if that is false, then the president could not have been testified truthfully under any meaning of the definition, because under any meaning of the definition he would have had sexual relations with Monica Lewinsky, and then Charles Ruff went on to say there’s really only Monica Lewinsky’s word against the president’s word. But that isn’t really true either because we have contemporaneous accounts, in other words, accounts that Monica Lewinsky gave at the same time to others of her friends about this relationship which bear out a relation, as well as the fact that it’s so inherently incredible that this was a one-way physical relationship that the president testified to.
MARGARET WARNER: Bruce Yannett, did you see a little fudging by Mr. Ruff on that point, or do you find him unpersuasive on that point?
BRUCE YANNETT: I certainly wouldn’t characterize it as fudging. I think actually what he was trying to do with the perjury count was a couple of things. One was to say some of the allegedly perjurious statements really are very minor, immaterial inconsistencies, like did the relationship start in November of 1995 or January of 1996, for example; did the fact that the president said he met alone with Lewinsky occasionally, was that perjurious because it turned out to be 11 times over two years? I think he effectively diminished the importance of those, and I think what he was trying to was to say to the senate, look, what this is going to boil down to is a he said-she said contest over specific sexual acts. And first of all is that something you want to get into on the floor of the senate – he didn’t say this, but this was his message, I think – first of all, do you want to get into this, and, second of all, even if the president lied about where he was touched or where he touched Ms. Lewinsky, is that the kind of lie, is that the kind of act that we’re going to remove a president from office over? So I think he was actually quite effective in boiling this down to lying about sex.
MARGARET WARNER: Mr. McGinnis, turn finally to the law and the Constitution, because he did also say, one, the president could never be convicted in a court of law on perjury or obstruction of justice based on these charges. But, two, even if he could be or even if you decide he’s guilty of one of them, it does not rise to the level of a removable offense for a president. Did you find him persuasive on those two points, just given your own background?
JOHN McGINNIS: Well, I found him least persuasive on the constitutional portion. He didn’t really speak to that at great length. I don’t believe he ever really rebutted Charles Canady’s presentation, which I think – actually think was the strongest legal presentation we’ve heard, the Congressman from Florida, when he said the Framers understood perjury as an extremely serious matter — as akin to bribery, indeed as very similar to bribery – that Chief Justice John Jay, our first Chief Justice, said no crime is more damaging to society because it strikes at the heart of our civic justice system; and that the president has many legal responsibilities that are actually more important than judges. He supervises the U.S. Attorneys; he appoints all the judges. I think he was a little unpersuasive in that. He really didn’t address, I think, the power of the House’s arguments on that and occasionally even made some mistakes, I think, in the sense that he argued that good behavior, that the senate had introduced legislation to get rid of judges for good behavior, that underscores the power that they have never removed judges for failing to meet the good behavior standard, only for the standard of high crimes and misdemeanors. So I thought he was least persuasive on constitutional grounds.
MARGARET WARNER: Mr. Yannett, your view on the constitutional issue, how well he did today.
BRUCE YANNETT: Well, you know, I think that first of all keep in mind he only had two and a half hours to make an entire presentation. It’s the first thing to keep in mind. The second, I think it’s quite important to remember that throughout his presentation, what he was saying was are we going to remove a president, overturn a popular election for this kind of conduct — and that not all perjury is treated the same. And that’s certainly true under the law, reminding people throughout the presentation that no reasonable prosecutor would ever bring either of these charges against someone in a court of law, and finally, pointing out that removing a president is the most serious step one can take. It’s not the same as removing a single judge out of a thousand judges who the only way they can be removed is through impeachment. But this is quite a different step to take. And so I think that he was not dealing with the debate the framers but don’t forget, he was rebutting three days worth of testimony in two and a half hours.
MARGARET WARNER: All right, well more to come. Thank you very much, John McGinnis and Bruce Yannett.
JOHN McGINNIS: Thank you.
BRUCE YANNETT: Thank you.