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Making Their Case

December 7, 1998 at 12:00 AM EST
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JIM LEHRER: The President’s defense.

President Clinton’s lawyers will present his no impeachment case tomorrow and Wednesday before the House Judiciary Committee. We get some preview perspective now from Douglas Kmiec, a former Justice Department legal counsel in the Reagan administration, now a visiting law professor at Pepperdine University, and New York attorney Bruce Yannett, who was an associate independent counsel on the Iran-Contra probe.

JIM LEHRER: Mr. Yannett, based on your reading of the witness list, where does the White House defense appear to be headed tomorrow?

BRUCE YANNETT: Well, it sounds like the White House is really going to be trying to draw a parallel or actually draw the differences between this investigation and the Watergate investigation. The witnesses will be testifying that this doesn’t compare to what happened in Watergate, that the allegations of abuse of power don’t rise to the level, and that the allegations don’t meet the constitutional standards for high crimes and misdemeanors that were met in Watergate. And also I think to go further than that and say not only do they not warrant impeachment, they don’t even rise to the level where a normal prosecutor in a normal case would bring any criminal charges against an individual. So, what they’re trying to do, I think, is really draw a distinction between this and Watergate.

JIM LEHRER: Mr. Kmiec, would you agree that that’s the purpose? Mr. Kmiec, can you hear me, in California? Mr. Kmiec does not – Do you hear me now?

DOUGLAS KMIEC: Jim, I can hear you now.

JIM LEHRER: Terrific. The question was – did you hear what Mr. Yannett said?

DOUGLAS KMIEC: I did.

JIM LEHRER: Okay. Do you agree that that’s what – do you read the witness list the same way he does?

DOUGLAS KMIEC: I do read it the same way Bruce does. I think the President is going to make an attempt to differentiate this from Watergate, but I think that’s going to be very difficult, Jim. I just took a look at the articles of impeachment from Watergate, and in the first article, for example, which is the general abuse of power article that the Watergate committee drafted, six of the nine elements, one could literally just lift off the page and transfer to this present proceeding, because they deal with things like lying under oath; they deal with encouraging others to lie; they deal with the withholding of evidence either from an ongoing investigation or from Congress, itself. So I think one of the real difficult things for the President tomorrow is – is having people believe that this is not a circumstance that is, indeed, quite like the Watergate circumstance of 1974.

JIM LEHRER: So you don’t think – based on the witnesses that they’re going to call – that they can make that case?

DOUGLAS KMIEC: I don’t think they can make it. And I think one of the most troubling things, of course, and one of the things that Henry Hyde said this afternoon is where are the – where is the factual exculpatory information from the President? We – we’ve really debated now for months what the standard of high crime and misdemeanor is and what the constitutional process is. This is now well known. The question is: Does the President have any defense for his actions, other than a very extraordinarily unbelievable defense about what is and is not sexual relations and who was alone and who wasn’t alone and so forth? The question is: Will he present new facts?

JIM LEHRER: Mr. Yannett, first to the question, to the point that Mr. Kmiec made, that he just doesn’t think that the President could make the case, the parallel, in other words, draw the idea that there are no differences between this and Watergate.

BRUCE YANNETT: Well, I think — I actually disagree completely with Doug on that point. I think the contrast is quite stark. We’ve talked about this previously, but in Watergate you had a president who was fundamentally abusing the authority and power of the office of the presidency to subvert the Constitution and subvert the democratic process. And here what you have – even if it did take place, as has been alleged in the Starr Report, you have a President who lied about an improper sexual relationship with someone — and at worst, according to the Starr referral, engaged in some conversations designed to not make that public. And while I’m not condoning that, if that’s what happened, the parallels, I think, aren’t there, and I think the American public has already decided that. You know, the American public, frankly, is sick and tired of this. And I think that if Congress proceeds down the path outside of the House Judiciary Committee on the floor of the House and in the Senate to try to impeach the President and this drags on for months, I think the country is going to get sick and tired of it, and there’s going to be a real backlash against Congress.

JIM LEHRER: And because you don’t think these crimes rise to impeachment, you think the public doesn’t think so either?

BRUCE YANNETT: Exactly.

JIM LEHRER: Mr. Kmiec.

DOUGLAS KMIEC: Jim, I think the public has always been – I think Bruce is partly right. The public has been saying two things, however: they’ve been saying they view this President as a popular, likeable President. But they’ve also acknowledged in almost every poll that I’ve seen that they don’t accept perjury; they don’t accept abuse of office; and they recognize that President Clinton had not given any factual defense to the wrongdoing that he’s committed in office. And so they’ve – while they’ve said they didn’t want him removed, they have said they wanted a proportionate punishment placed upon him. And the constitutional proportionate punishment is for the full House of Representatives to vote an article of impeachment. Now, it’s a separate question as to whether or not that impeachment is prosecuted, and he’s convicted and removed from office. I think the public is saying they don’t want that, but I think they do want the historical statement that this President has abused his powers.

JIM LEHRER: What about Mr. Yannett’s point that these crimes – if these alleged crimes – if, in fact, they were committed by the President – were not an abuse of presidential power?

BRUCE YANNETT: Well, the difficulty with that is, yes, it’s true that Richard Nixon misused the FBI and the CIA in ways that as far as we know, William Clinton did not. But Richard Nixon was punishing his enemies while William Clinton was apparently allegedly lying in a judicial proceeding to have himself be exonerated from a very serious sexual harassment charge. And he was also lying in front of apparently a federal grand jury. These are things that the rule of law just simply can’t tolerate, and so I think the public is quite willing to go along with the House of Representatives and say as a matter of historical record we want it to be understood that the President is to keep his presidential oath, and the way to do that is to vote an article of impeachment whether or not he’s convicted in the Senate.

JIM LEHRER: Mr. Yannett.

BRUCE YANNETT: Well, Jim, according to a poll that I read today, two thirds of the American public not only give the President a favorable approval rating but two thirds say Congress should stop this impeachment stuff right now, and another two thirds say at most, they should censor him. And so this notion that the American public is behind the House voting an article of impeachment and then leaving it up to the Senate to do with it as it sees fit, I don’t know where Mr. Kmiec gets that from.

JIM LEHRER: Well, let’s go back to what’s going to happen tomorrow for a moment. And Mr. Yannett, Mr. Kmiec’s point that there are no witnesses, none of these 14 witnesses are being called to challenge the evidence against the President, how do you read that?

BRUCE YANNETT: Well, you know, actually this is sort of I think one of the most bizarre aspects of this whole process. The House Judiciary Committee takes the position that we’ve established our case, but, in fact, they’ve done nothing, other than receive the Starr referral and give them its blessing. They’ve called no fact witnesses; they’ve not tried to resolve any factual issues. And, in effect, Monica Lewinsky and Linda Tripp have all become sort of hot potatoes with the Republicans saying we don’t want to call them, you call them, Mr. President. And the President, of course, not wanting to be the first to call them, and so we’re left with these hearings, which really are nothing more than hearings both by the Republicans and now by the White House about the standards for impeachment. There have been no fact hearings in this entire proceedings.

JIM LEHRER: That’s true, is it not, Mr. Kmiec?

BRUCE YANNETT: For the most part it is true, but it’s merely a reflection, I would suggest, of the manner in which the law has divided the investigation from the deliberative process. At the time of Watergate, the investigation for the most part was, in fact, still within the House of Representatives. There was not a formal statute creating an independent counsel. Leon Jaworski was a special appointee of the Department of Justice. So it’s not at all unusual that the House of Representatives – unless they’re given some evidence otherwise – would accept the meticulous record that Judge Starr has given to the House of Representatives.

DOUGLAS KMIEC: I think, again, Jim, I think the real problem for the President tomorrow or over the next couple of days is, are any of these witnesses going to be capable of convincing the American people that no punishment is warranted for the President, given what is now going as stipulated fact, namely that the President has not been entirely forthcoming and that the reason he wasn’t forthcoming was that he was trying to deny a private citizen their civil rights.

JIM LEHRER: Mr. Yannett, picking up on that point about the American people, the point that Mr. Kmiec just made, that – do you agree that the audience for this tomorrow and the next day is, in fact, not those – those members of the House Judiciary Committee, maybe not even the members of the House, but it is the American public?

BRUCE YANNETT: Well, Jim, I think the American public’s perception of this is important. But my sense of it is the public has made up its mind and is by and large part of this and wants it over with. I think the real target audience of these hearings are the moderate Republicans and the full House. The committee is hopeless, but the moderate Republicans and the full House who are the fence, who are undecided and really who carry with them the power to decide whether this President will be impeached or not, and to that extent, I think these hearings could have an impact, although, frankly, if I were in the White House, I’d feel a little bit concerned that the hearings could have a counterproductive effect and inflame some of those moderates if the position taken by the White House lawyers at the beginning of the hearings and more importantly, I think, Chuck Ruff’s testimony, the White House counsel’s testimony, at the end of the hearings, if when he’s questioned and he goes into any of the evidentiary issues, if those statements by Mr. Ruff inflame the moderate Republicans and the full House, then that’s where the danger lies in these hearings.

JIM LEHRER: Do you agree, Mr. Kmiec, that the target audience are the moderate Republicans in the House and not on the committee but in the full House?

DOUGLAS KMIEC: Yes. I think that makes tremendous sense, and I think Bruce’s point is underscored because the President has to date not been particularly responsive to the committee. You know, the committee proffered to the President 81 questions where they basically said, will you admit or deny the following factual matters, and most of the answers came back saying, well, I don’t have any recollection of these things, or see my prior statements and other venues, and totally non-cooperative. And I agree with Bruce. If that’s the posture that’s going to be taken by the White House counsel, it is going to inflame the moderates and the movement for a successful vote of impeachment will I think proceed accordingly.

JIM LEHRER: Well, we’ll see what happens. Gentlemen, thank you both very much for being with us again.

DOUGLAS KMIEC: Good to be with you.

BRUCE YANNETT: Thank you.