Examining the Case
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PHIL PONCE: Impeachment is primarily a political process but one with decided legal overtones. To assess this first day of the Senate trial we’re joined by Douglas Kmiec, former director in the Justice Department’s Office of Legal Counsel in the Reagan administration and 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. Gentlemen, welcome. Professor Kmiec, how effective were the House managers in laying out their case against the president?
DOUGLAS KMIEC: I think they were reasonably effective, Phil. I think that they have gone over ground that is reasonably well known to the public, but they did a number of important things. First of all, I think they set out as a general standard the importance of telling the truth and then secondly, I think they emphasized the public connection of telling the truth to the importance of Congressional policy against, for example, sexual harassment, and how the president’s actions of obstruction and perjury perhaps undermined the ability of Paula Jones to pursue her civil rights in a federal court.
PHIL PONCE: Mr. Yannett, your assessment of how good of a job they did in connecting the dots as prosecutors are supposed to do in opening statements.
BRUCE YANNETT: Well, I was struck by the fact that from a process standpoint I thought that the proceedings went quite well; they were very solemn, and they were done quite seriously. And we didn’t have the circus-like atmosphere that we saw in the House and, in fact, that maybe think that perhaps the chief justice should preside over all House Judiciary Committee hearings. But on the substantive standpoint I really think it’s more of the same. I mean, we’ve all seen the president’s videotaped testimony; we all read the Starr Report and heard David Schippers, and really is more of the same of the House of Representatives managers trying to lay out the case and building negative inference upon negative inference to set out their case. And I think at the end of the day we’re left where we were months ago, which is a very weak obstruction case and a perjury case that primarily comes down to did the president lie and cover up a sexual relationship?
PHIL PONCE: How about that, Professor Kmiec, at this point does one article of impeachment, was it presented more strongly than the other?
DOUGLAS KMIEC: Well, I think it is interesting that the House managers chose to lead with obstruction. I think the perception is, is that the obstruction illustrates perhaps better than perjury that this is an abuse of power and that the president has drawn into that abuse of power others, for example, the lies he told to his subordinates, John Podesta and others, who were going to be called before the grand jury. I’d have to agree – disagree with Bruce on one thing. I think there has always been a certain amount of murkiness around the obstruction charge, but I think Asa Hutchinson today, in particular, did a very good job of tying together the false affidavit in the job search and simultaneously laying out and laying the foundation for further testimony from Vernon Jordan. Obviously, one of the purposes today was not only to display the merits of the case, obstruction and perjury, but also to demonstrate why witnesses are needed.
PHIL PONCE: Mr. Yannett, was there a compelling case made by the House managers for the need of witnesses to testify?
BRUCE YANNETT: You know, it’s interesting. I think they certainly tried to do that. That’s their goal. But I actually think – I disagree with Doug there – I think they actually undermined the need for witnesses because what they did was lay out an incredibly detailed presentation based on thousands and thousands of pages of grand jury testimony, and even argued credibility issues based on the evidence that’s already before the Senate. And so I think at the end of the day while they were trying overtly to argue for the need for witnesses, they effectively hurt themselves.
PHIL PONCE: So you’re saying, Mr. Yannett, that by relying so much on the record and being so comprehensive in pointing to specific points in the record, they basically, what – in effect – lessened their need for witnesses?
BRUCE YANNETT: Two things. One, I think they lessened the need because they have told what they think is a complete story but more importantly they also have argued that based on the existing factual record the president should be convicted and removed from office, and they haven’t made a compelling case as to what would happen at the end of the day. You know, I heard earlier this afternoon Stuart Taylor say, well, what if the White House gets up there and refutes the House Managers, then you have to have a trial, and I disagree with that because even if we had a six-month trial, what you have at the end of the day are the House Managers and the White House lawyers pointing to the facts that they think support themselves and are doing inferences from the record. And we already have the record, so I don’t think they really made a case for witnesses here at all.
PHIL PONCE: Professor Kmiec, is that all you have at the end of the day, both sides pointing to the same set of facts, which is simply drawing different inferences?
DOUGLAS KMIEC: Well, I think you have a little bit more than that. I mean, the president’s defense on perjury right now is that he didn’t commit perjury because he told the truth about his previous lies, that he told the truth in the grand jury about his previous lies in the Paula Jones deposition. I think there has been a showing of a need for witnesses with regard to the relationship between Vernon Jordan and the president. There were an extraordinary number of conversations between those two individuals all humming around the number of days in which that false affidavit was being drafted, so unlike Bruce, I think the case has been made. The question is how is the president going to react, is he finally going to admit his guilt on these things, or are we going to be faced with continuing this process in the days ahead?
PHIL PONCE: Professor Kmiec, did you hear anything today that would change anybody’s mind?
DOUGLAS KMIEC: Well, I think there are a number of things with regard to obstruction that may change the very careful viewer’s mind, the person who’s been following this case closely, but I think the question still is, is this a removable offense? And I think much of the public thinks it’s not removable if the president would admit his guilt and accept a criminal penalty like others would have imposed on them in a perjury and obstruction case, but so long as the president persists with his legal defense in not telling the complete truth and holding back, I think he’s forcing us into a trial, and I think he’s calling for witnesses, himself.
PHIL PONCE: Mr. Yannett, there’s been – there’s been some observation that today’s arguments were geared as much to the public, as to the – as to the members in the – members of the Senate. Do you agree with that?
BRUCE YANNETT: Sure, I think very much so, because I think at the end of the day the Senate will, in fact, be affected by public opinion, and by the overwhelming sentiment in the American public that the president should not be removed from office whether or not he admits his guilt. I disagree with Doug on that. And so I think not only was their presentation today geared towards the American public. Indeed, I think this call from the House Managers who represent the very conservative wing of the Republican Party to have witnesses and now more recently to perhaps even invite the president himself to testify is all done in a desperate attempt to change what has been consistent public opinion for the last 12 months.
DOUGLAS KMIEC: If I might ask first, did I hear you correctly that if the president admitted guilt and accepted a penalty for these crimes that you think that the press for removal would continue?
BRUCE YANNETT: No. I think with that regard to whether the president admits or doesn’t admit what you think he did, Doug, I think the public for the last 12 months has consistently said he should be punished but not removed from office.
DOUGLAS KMIEC: Well, that’s right. But, of course, the admission of guilt allows for that possibility of punishment without removal. I think the case –
BRUCE YANNETT: So does a censure, Doug, which the Senate has yet to vote on.
PHIL PONCE: Professor Kmiec, go ahead.
DOUGLAS KMIEC: Well, the problem, of course, is that it raises the unconstitutionality of a bill of attainder, that is, the legislature imposing a specific penalty, and the primary difference with an admission of guilt is that the president finally comes clean and tells the truth to the American public. That’s the case that House Managers made today – the importance of truth to the judicial system. And the ball is really now in the president’s court – not to come back with Williams and Connolly and high-priced lawyers, but to come back and tell the complete, unequivocal story and accept a penalty for it.
PHIL PONCE: Professor Kmiec, in the next day or two, what fine tuning do you see the House Managers doing? Any weaknesses they need to shore up?
DOUGLAS KMIEC: Well, I agree with Bruce – at the beginning of his remarks when he said this is a tale that people have heard before, and I think given the number of House Managers, we really run a risk, that is, the House runs a risk of redundancy. The next set of House Managers are going to be talking about the general construct of obstruction and perjury, and it’s going to be very hard to talk about that abstractly and gain for hour upon hour and to hold the Senate’s and the public’s interest. I think they would be better off shortening their presentation, moving it into some powerful summaries, rather than to extend it out.
PHIL PONCE: Mr. Yannett, a shorter presentation more effective?
BRUCE YANNETT: Yes. Actually, I agree completely with what Doug just said. I think that today is by far the most interesting day of the House’s presentation for the American public and the Senators, the next couple of days are going to be rehashing some of the same facts and arguing the law, and arguing the law of impeachment, which was argued at length in the House proceedings.
PHIL PONCE: Mr. Yannett, Professor Kmiec, thank you both very much.