The President’s Case
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JIM LEHRER: Analysis and commentary about all of this now from Stuart Taylor, columnist for the National Journal and Newsweek Magazine, and Tom Oliphant, columnist for The Boston Globe.
JIM LEHRER: Tom, what do you make of – here are two of the target members of Congress, two members of the House, two moderate Republicans, twenty to thirty of them, everybody says – their colleagues and folks like that are going to make the decision – what do you make of what they just told Margaret?
TOM OLIPHANT: Well, they underlined the mountain that President Clinton has to climb. They exemplify it. In the first case, Congresswoman Roukema, of course, has been for getting rid of Clinton for some months now – previously via resignation. And Congressman Shays is also in an interesting position. He has had a lot of backlash from contributors. And he has teamed up with the majority whip, Tom Delay, at least to talk down the issue of censure, though he remains opposed to impeachment. I think in Congressman Roukema you have a wonderful example of how easy it is for a member of the House to look at something that was given to the House by an independent counsel and sort of react to it, say, I believe this, I don’t believe that, you have no responsibility for an investigation that the House conducted, and so both within the Judiciary Committee and on the House floor, there’s a kind of free market atmosphere here where you don’t really have to take responsibility for an investigation that you never actually conducted.
JIM LEHRER: And just move it over to the Senate, as you said.
TOM OLIPHANT: Exactly.
STUART TAYLOR: I’m struck with how they said they were unimpressed with the president’s defense today. And if they’re representative, that’s a big problem for the president. I’m not sure they are, but I was enormously impressed by the defense today, and I’ve been arguing for impeachment for a while. The reconciliation, I think, is people like them are looking for the president, in their view, to start telling the truth, stop quibbling, stop lying. They think he lied to the grand jury, among other things, about what he did with Monica Lewinsky to cover up earlier lies, and they think he just won’t admit it, and that seems to be a real sticking point.
My – I thought the president’s lawyers – given that they’re stuck with that, and they say they believe him and that he’s not changing his position, at least not yet, did a very effective job in hitting the weak points in the Starr case, making the argument that this isn’t impeachable and making as many concessions as their client’s position wanted to make. No, he won’t pardon himself. No, he won’t accept a pardon. Yes, he could be subject to the law after he leaves office. They’re trying to give as much as they can, but for these two congresspeople at least they’re not giving enough.
JIM LEHRER: Tom, what did you think of the rough presentation and the overall presentation of the last two days?
TOM OLIPHANT: The key elements and some of this stretched back to yesterday, but the most important thing that was presented before the committee, whose decision is already preordained, is that the record, the material that was sent to the committee from Ken Starr, does not support necessarily the conclusions that have been drawn for it, that Starr took a bunch of this grand jury testimony and came up with 11 counts for impeachment. And David Schippers, the House committee counsel, took away two of those and added six of his own and came up with fifteen all supposedly supported by this mass of material, and now the committee – after another month of sifting around with this same stuff – has come up with two more, and you’ve got 17 separate charges in here. And it’s kind of like the Mike Espy case in a constitutional setting – the hope being that one or two of these are going to stick. But Ruff’s presentation showed, I think at least in theory, how you can go back into that body of evidence and find a narrative that goes in the opposite direction of what Starr presented, and it was the kind of case that shores up the Democratic vote here, so that if the president is to be impeached on an article or two that does stick, you set up a situation where the Democratic base could not be more secure for a Senate trial, which will last however long it lasts and, therefore, lead to no resolution of this case. And the members of the House then presumably will have to answer the question: Why did you put the country through this?
JIM LEHRER: Yes. The same question that you mentioned, the Espy, that Donald Smaltz is now having to answer, the independent counsel. But let’s go to the articles of impeachment. We now have a draft. You said there’s 17 charges; they’re included in four articles: perjury before the grand jury; perjury in the Jones case, obstruction of justice; and abuse of power. What do you think about the perjury charge before the grand jury?
STUART TAYLOR: Its strength is that grand jury perjury is generally regarded as very serious, and that almost everybody who has studied it closely has a hard time believing the president told the truth. The weakness is, as Mr. Ruff said, the heart of it comes down to at one level what did the president touch and when did the president touch it, what went on between him and Monica Lewinsky exactly, details of sex acts, and that wasn’t the way Mr. Ruff put it, and he said if he you – you know, you can’t impeach a man over that stuff, to which the response, I suppose, on the Republican side is, it’s part of the broader cover-up of trying to admit that he’d lied in the first place.
JIM LEHRER: But that is the most serious charge, you agree?
TOM OLIPHANT: Oh, by a country mile. But, again, though, to continue with Mr. Ruff’s presentation and my analogy with Mike Espy’s case, the witnesses, the names that are cited as the evidence in support of the charges about grand jury perjury, those witnesses would actually testify to the opposite. They would be witnesses for the defense if they were a place. It’s one reason you didn’t see any witnesses in this inquiry. You had this odd situation where the witnesses – people like Bob Bennett or Monica Lewinsky or if you – if you connect the dots in to perjury in the Jones case and obstruction of justice, Betty Currie, et cetera, their testimony in the grand jury is something that Ken Starr had to divide up and parcel out because he had to say, well, I don’t believe this, I believe this, and Ruff showed how difficult that can be in a trial setting.
JIM LEHRER: Now, perjury in the Jones case, that’s article two. Don’t they have to almost vote perjury in the Jones case before you can have perjury before the grand jury, because isn’t that what he’s accused of doing, is lying, no?
TOM OLIPHANT: You are going to get votes against perjury in the Jones case on the constitutional ground that it doesn’t rise to the level of impeachable offenses.
JIM LEHRER: Because it’s a simple case of materiality -
TOM OLIPHANT: So you could get the irony of being convicted or charged on a count of perjury before the grand jury about the civil case where you’re not – where the article doesn’t pass.
STUART TAYLOR: As a logical, antecedent matter, you’re right. If he didn’t perjure himself in the Jones case, he didn’t perjure himself in the grand jury either, probably, so – but, as you say, there are people – Lindsey Graham of South Carolina – who say, well, I’m not sure we’d impeach a president, we should impeach a president over perjury in a civil case, especially about this sort of stuff, but grand jury perjury is more serious. I think one – one thing that strikes me about these articles is that basically it’s the entire – it’s all the things Starr said were impeachable somewhat repackaged, and this packaging, I suppose, four articles, it’s one way of trying to give something to everybody. The weakness of that – if I may use an old prosecutor’s analogy – prosecutors like to say – this case, don’t look at this case as a bunch of little threads; look at it as strands in a rope, and the rope is as strong as all of them, cutting one of them doesn’t take it away. There isn’t any one of these articles that kind of gives you the whole picture. So you can attack perjury before the grand jury on the grounds of, oh, who cares what they did, and I don’t believe it. You can attack perjury in the deposition on the grounds of that’s not impeachable, and maybe everything falls, but apparently, the Republican strategists, who know better than I how to get votes, I think this is the way to go.
JIM LEHRER: What do you think about the obstruction of justice and abuse of power?
TOM OLIPHANT: To continue on Stuart’s point, that raises the stakes for that article. But, again, what’s unusual about it, also to continue to Stuart’s point, is that there are a lot of disparate elements to the seven charges within that article. It’s not a seamless web or the strands of a rope.
JIM LEHRER: You’re talking about obstruction of justice.
TOM OLIPHANT: That’s right. It’s a pick one or two here.
JIM LEHRER: Encouraged Monica Lewinsky to submit a false statement, President Clinton encouraged Monica Lewinsky to give false testimony to the court.
TOM OLIPHANT: Right. But politically it is very important because for the grand jury perjury article to pass on the floor it would help greatly if the perjury were for some larger criminal purpose. I think a lot of members will be uncomfortable voting only on a perjury count where you don’t have any underlying crime.
JIM LEHRER: But then you’ve got article four, which sounds much more majestic. The president made false and misleading public statements for the purpose of deceiving the people of the United States.
STUART TAYLOR: Well, you know, that echoes one of the elements in article one against Richard Nixon, I think, lying to the American people, but it wasn’t all by itself; it was surrounded by a whole lot of more impressive acts of abuse of power, and if you look down the list of acts of abuse of power here, no one of them kind of knocks your socks off. It’s not like saying the CIA didn’t tell the FBI not to investigate something. I think the argument for having something like this is to counter the sort of none of this is impeachable because it’s all just personal. Well, it’s not quite all just personal. As abuse of power goes, this is not a Watergate-scale case.
JIM LEHRER: All right. Let’s preview now what happens next. Tomorrow, David Schippers, who’s the majority counsel, the Republican counsel, will summarize the case for these articles, right, and then Mr. Abbe Lowell, who is the minority counsel, will put on a defense, and then we have a vote probably on Friday, is that right?
TOM OLIPHANT: They will begin statements in – each member will make 10-minute statements at the conclusion of the – the lawyers and then – and that’ll go into Saturday.
JIM LEHRER: The vote – then the vote coming on Saturday – any question that anything has changed, but there’s still going to be 21 to 16. Did you – either one of you heard anything that changes that?
TOM OLIPHANT: They might knock the fourth article out in committee. That’s the one that could go in committee. There are two members already who have indicated some opposition to the abuse of power.
JIM LEHRER: Two Republican members.
TOM OLIPHANT: That’s correct.
JIM LEHRER: Right.
TOM OLIPHANT: And you only need one more but the others I think 21-16 all the way.
STUART TAYLOR: You think each one of them? I’m not sure whether they’ll get 21 on deposition perjury, for example, but -
JIM LEHRER: Then it goes -
STUART TAYLOR: But they’ll get a majority.
JIM LEHRER: They’ll get a majority for one or two at least, and then it goes to the floor of the House next week, and they have to wait 48 hours before they can take it up so all the members can come and the show goes on. Thank you both very much.