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December 9, 1998 at 12:00 AM EST
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JIM LEHRER: Republicans issued the draft of four articles of impeachment against President Clinton late today. They were released even before President Clinton’s lawyers had concluded their defense. Two of the articles charged the president with perjury, one related to his grand jury testimony, the other to his testimony in the Paula Jones civil lawsuit. Two more accuse him of obstruction of justice and abuse of power. The president’s lawyers finished their legal rebuttal. White House counsel Charles Ruff told the committee President Clinton’s conduct was morally reprehensible but did not warrant removing him from office. Earlier in the day a final panel of legal witnesses challenged the charges against the president. Kwame Holman reports.

KWAME HOLMAN: The committee began its work early today. Chairman Henry Hyde convened the second day of President Clinton’s impeachment defense at 12 minutes after 8. Hyde had given the president’s legal team two fifteen-hour days to present its defense, but by working through lunch and keeping their questions to five minutes, members of the committee got through three panels of witnesses yesterday in 11 hours.

REP. HENRY HYDE: The truth, the whole truth, and nothing but the truth.

PANEL: (simultaneously) I do.

REP. HENRY HYDE: Thank you.

KWAME HOLMAN: Today’s first panel asked to testify by the White House was composed of five former federal prosecutors. Thomas Sullivan, who was a United States attorney from Chicago, spoke for all of them when he said, given the evidence in the president’s case, reasonable prosecutors would not bring perjury or obstruction of justice charges against him.

THOMAS SULLIVAN, Former U.S. Attorney, Illinois: Responsible prosecutors do not submit cases to a grand jury for indictment based upon probable cause. They do not run cases up the flag pole to see how the jury will react. They do not use indictments for deterrence or as a punishment. Responsible prosecutors attempt to determine whether the proof is sufficient to establish guilt beyond a reasonable doubt. Some years ago, during the Bush administration, I was asked by an independent counsel to ask as a special assistant to bring an indictment against and try a former member of President Reagan’s Cabinet. Having looked at the evidence, I declined to do so because I concluded that, when all the evidence was considered, the case for conviction was doubtful, and that there were innocent and reasonable explanations for the allegedly wrongful conduct. Having reviewed the evidence here, I have reached the same conclusion. It is my opinion that the case set out in the Starr report would not be prosecuted as a criminal case by a responsible federal prosecutor.

KWAME HOLMAN: Most notable among the five former federal prosecutors on the panel was William Weld, the former Republican governor of Massachusetts.

FORMER GOV. WILLIAM WELD, (R) Massachusetts: There’s usually something else involved in a federal perjury prosecution. There’s a pass-through aspect here; you’re really going to something else. I once prosecuted a guy who stated that he was in Florida on November 28th and 29th, 1981. You may say that’s kind of, you know, stooping to pick up pins, why would you prosecute him for that. Well, that was the day the city of Lynn, Massachusetts, burned down, and this guy was an arsonist and three people made him in the Port Hole Pub in Lynn, Massachusetts, that day, so — and we found his fingerprints on a ticket to Florida the next day after the fire. So we thought it would be good idea to bring a perjury prosecution there to rattle the cage a little bit, and we did. And often we brought them where we were trying to penetrate a wall of silence, as in cases of public corruption or narcotics, when you’re trying to break through this omerta, everyone’s got to dummy-up phenomenon. But there is something else that you’re trying to get at there.

KWAME HOLMAN: A year ago, Weld was President Clinton’s choice to become ambassador to Mexico, but his confirmation was blocked by Republican conservative Senator Jesse Helms. The White House might have hoped Weld’s appearance today on behalf of the president would help persuade enough moderate Republicans in the House to vote against impeachment the issues comes to the House floor.

FORMER GOV. WILLIAM WELD: I am pretty well convinced that adultery, fornication or even a false denial — false, I’m assuming perjury here — false denial of adultery or fornication — they do not constitute high crimes and misdemeanors within the meaning of the impeachment clause of the U.S. Constitution. They’re not offenses against the system of government. They don’t imperil the structure of our government. The remedy of impeachment is to remove the officeholder, get the worm out of the apple. It’s a prophylactic — prophylactic remedy. It is not punitive. If any of you are thinking we’ve got to vote yes on impeachment to tarnish the president, he’s already tarnished. And that’s really not the purpose of the impeachment mechanism.

KWAME HOLMAN: Weld concluded by recommending the Congress might want to censure the president, impose on him a substantial fine, and leave him vulnerable to criminal prosecution once he leaves office. John Conyers, the committee’s ranking Democrat, applauded the testimony of all five witnesses.

REP. JOHN CONYERS, (D) Michigan: What you’ve done here is of single important from my point of view. This should be studied carefully by everybody that makes public utterances about the questions of perjury and obstruction and how and when materiality figures into the prosecutorial role.

KWAME HOLMAN: However, most Republicans on the committee – beginning with Bill McCollum of Florida, did not accept the panel’s testimony without a challenge.

REP. BILL McCOLLUM, (R) Florida: You have a situation in which the President of the United States says that he did not commit to have sexual relations with Monica Lewinsky under the definition as given in the court in the Jones case. That court included in its definition explicitly the touching of breast or genitalia. Now the president said, “I didn’t do that.” He repeated it very carefully in the grand jury testimony. Monica Lewinsky said on nine occasions in her sworn testimony before the grand jury the president touched her breast and on four occasions they had genital contact and that all of this was to arouse. Now, the issue of corroboration, there are ten corroborative witnesses. Interestingly enough, strangely enough, Monica Lewinsky talked contemporaneously with family members, friends, and relatives about these matters in great detail, and we have ten of those whose testimony is before us and in sworn testimony. Seven of the ten corroborate the explicit detail with regard to this touching under the definition of sexual relations that Monica Lewinsky describes. Now, it seems to me that that kind of corroboration is precisely the kind of corroboration that would, in fact, engender prosecution, would give confidence to a prosecutor to take perjury cases forward, and would, indeed, give a high probability of conviction if this were taken before a court in any case – any court in this land. The jury would be hard pressed not to convict under those circumstances.

RICHARD DAVIS, Watergate Task Force: I think that the reasons why that prosecution would not win is, one, as I said in my statement, that both witnesses, including Ms. Lewinsky, had an incentive to lie, and she had an incentive to lie not only to the grand jury on this issue but to her confidantes, because, otherwise, she would be acknowledging an unreciprocated sexual relationship. But, just as important, if you’re talking about one witness that Mr. Starr or any prosecutor is going to put forward, Mr. Starr and his prosecutors, himself, are going to have to argue within this case that Ms. Lewinsky’s testimony in other issues is not accurate. They’re going to have to argue that. They’re going to be in a position where they’re going to have to say she’s telling the truth as to this, not telling the truth as to other things.

REP. ELTON GALLEGLY, (R) California: When the president was asked, “At any time were you and Monica Lewinsky alone in the Oval Office,” he answered, “I don’t recall.” The evidence indicates that he was, in fact, alone with Ms. Lewinsky on many occasions, including the time that they exchanged gifts, less than 20 days before the deposition. Mr. Sullivan, for this not to be perjury, the president must have genuinely forgot his numerous encounters with Ms. Lewinsky, is that correct, for it not to be perjury?

THOMAS SULLIVAN: Yes. The evidence in a perjury case requires proof beyond a reasonable doubt that the defendant not only made a false statement but knew it was false at the time it was made, that’s correct.

REP. ELTON GALLEGLY: And if – and the test would be that he genuinely forgot in order for that not to be perjury, is that correct?

THOMAS SULLIVAN: That’s my understanding.

REP. STEVE CHABOT, (R) Ohio: Just yesterday, we were presented with the president’s 184-page defense report and were told that the word “alone” is a vague term, unless a particular geographic space is identified. Do you find that sort of legal hairsplitting defense helpful? Don’t you think that we ought to at least be able to agree that “alone” means you’re by yourself, not with anybody?

RICHARD DAVIS: Well, I think “alone,” in essence means that you’re by yourself, but I think that while you don’t forget that you had sex with somebody, I think you have to go back and look at the confusing nature of the answers. Look, basically what was going on – there’s no question the president was trying his best to avoid and was playing word games in his deposition. He shouldn’t have been doing it, and he was doing it. The issue is what is the legal consequences now – and that’s what we’re all struggling with.

REP. BOB BARR, (R) Georgia: I know Mr. Craig is here, and I don’t know whether he is delighted or dismayed by the panel today, because after promising us yesterday that we would not be hearing technicalities and legalities, that’s all we hear today, and that’s fine. We have a panel of very distinguished criminal attorneys here, and that is the essence of criminal law.

We have lawyers here that would apparently agonize greatly over a definition of sexual relations that is very, very broad, uses terms that are deliberately broad to encompass a whole range of activities, using the term “any person.”

Now, to Mr. Sullivan, any person may not mean any person, but I think for the average person of common sense it would. So we still have this legal technical parsing over definitions and words that really leaves us precisely where we were before Mr. Craig made a promise yesterday that we would have no more technicalities and legalities to hang our hats on. And, Mr. Craig, shame on you for putting together a panel here of technicalities and legalities, when you promised us yesterday there would be no more of that.

REP. HENRY HYDE: Mr. Delahunt.

REP. WILLIAM DELAHUNT, (D) Massachusetts: Yes. Thank you, Mr. Chairman. You know, I want to speak to the issues of technicalities and legalities and what have you, because I think it’s important when we speak about the rule of law, oftentimes we’re talking about technicalities and questionable legalities because it’s imbedded in our Constitution that there are certain standards and requirements. Is that a fair statement, Mr. Sullivan?

THOMAS SULLIVAN: Yes. It is.

REP. WILLIAM DELAHUNT: This is not about technicalities.

THOMAS SULLIVAN: In response to what Mr. Barr said and in somewhat -

REP.WILLIAM DELAHUNT: Mr. Sullivan, I’m just going to speak -

THOMAS SULLIVAN: Right.

REP. WILLIAM DELAHUNT: — to you, because I want to have a little -

THOMAS SULLIVAN: It is interesting to me, because in my experience persons who make such statements when they become the subject or the object of an investigation -

REP. WILLIAM DELAHUNT: Correct.

THOMAS SULLIVAN: — are the first ones to get the mantle of the Constitution to protect them.

REP. WILLIAM DELAHUNT: Right. And start yelling about technicalities and legalities.

THOMAS SULLIVAN: Insisting their rights. And you don’t hear that kind of a speech from them anymore when they hire me to defend them.

REP. WILLIAM DELAHUNT: Right.

THOMAS SULLIVAN: I can guarantee you that.

JIM LEHRER: And this afternoon the White House counsel, Charles Ruff, wrapped up the presentation of the President’s defense. Again, Kwame Holman.

KWAME HOLMAN: Charles Ruff has been lead White House counsel since January 1997. He was a Watergate prosecutor and served as United States attorney for the District of Columbia. Ruff has used a wheelchair since contracting a paralyzing disease while working in Africa in the 1960′s. Flanked by the president’s private attorney, David Kendall, and White House special counsel, Gregory Craig, Ruff delivered a one-hour statement defending the president against impeachment.

CHARLES RUFF, White House Counsel: I want to begin by coming to grips directly with the issue that I think has been the principal focus of the committee’s attention and concern — the president’s grand jury testimony.

We take this as our starting point to address the concerns oft stated by Congressman Graham and others whether if the president were proved to have committed perjury before the grand jury, such conduct would, without more, merit impeachment. Mr. Chairman and members of the committee, we firmly believe first that the president testified truthfully before the grand jury but second, that no matter what judgment you reach about that testimony, there could be no basis for impeachment on any reasonable reading of the constitutional standards.

The Office of Independent Counsel would have the committee believe that in three respects the president committed perjury in his testimony before the grand jury: First, by stating that his relationship with Ms. Lewinsky began in February 1996, rather than November 1995; second, by stating that he believed that a particular form of intimate activity was not covered by the definition of sexual relations approved by Judge Wright in the Jones Case; and third, by stating that he did not engage in specific types of sexual conduct theoretically in order to conform his testimony to a civil deposition.

Now, as to the first of these, you must begin your consideration with the proposition that the president acknowledged to the grand jury that he did have a wrongful intimate relationship with Ms. Lewinsky. What then might have led him to change by three months the date on which that relationship began? Well, the referral surmises, it must have been because, although the president was prepared to make the most devastating admission of misconduct any husband and father could imagine, he still wanted to have the grand jury believe that when their relationship began, Ms. Lewinsky was a 22-year-old employee, rather than a 22-year-old intern.

Well, putting aside for the moment the fact that under no circumstances would any reasonable prosecutor or any judge or jury find such a discrepancy material, there is absolutely no proof of any such purpose on the president’s part. Not one witness, including Ms. Lewinsky, even suggested such a thing. The only proof the referral offers is a mischaracterization of the record. The contention that the president’s concern about Ms. Lewinsky – about Ms. Lewinsky’s badge – reflected concern about her status, that is as an intern, rather than as was clearly the case, her ability to move freely in the West Wing of the White House.

Other than this misleading representation, we are left only with the referral’s bare speculation, clearly contrived simply in order to find some fine point in the president’s testimony that it could trumpet as false. As to the second of the three perjury allegations, the independent counsel would have the committee find that the president testified falsely because the independent counsel has concluded that the president’s statement of his own belief in the meaning of the definition of sexual relations in the Jones case is not credible. At least, here, the independent counsel is candid enough to acknowledge that he has no evidentiary basis for that conclusion. The referral simply states it to be the case and moves on.

I suggest that those of you who have been prosecutors know as a matter of practical experience and those of you who have not been prosecutors or even lawyers know as a matter of common sense that no one could or would ever be charged with perjury because the prosecutor did not find credible a witness’s statement of his personal belief, much less his personal belief about the meaning of a definition used in a civil deposition.

And so we come to the third. The referral alleges that the president lied when he admitted having one form of sexual contact with Ms. Lewinsky but denied having certain other forms of contact, as the independent counsel would have it, in order to make his grand jury testimony consistent with the definition under which he testified in the Jones deposition. We will not drag the committee into the salacious muck that fills the referral. Instead, let each member assume that Ms. Lewinsky’s version of the events is correct and then ask, “Am I prepared to impeach the president because – after having admitted having engaged in egregiously wrongful conduct – he falsely described the particulars of that conduct?”.

Let each member even assume that the president testified as he did because he did not want to admit that in a civil deposition, confronted with a narrowly, indeed, oddly framed definition, he had succeeded in misleading opposing counsel, and then ask yourself, “Am I prepared to impeach the president for that?”. The answer must be “No.”

When one scrapes away all the rhetoric, what one finds is this: The referral alleges that the president lied to a grand jury about the details of sexual conduct – not to conceal his wrongful relationship with a 22-year-old employee – but to avoid admitting in a civil deposition he’d misled plaintiff’s counsel about an embarrassing matter that the court openly found immaterial. The president has said that he made no effort to be helpful; that he did not want to reveal his relationship, understandably. His answers were frequently evasive and incomplete, as my colleague, Mr. Craig, said yesterday, even maddening. They were misleading, but they were not perjurious. And a fortiori, they cannot be the basis for impeachment.

KWAME HOLMAN: As has been the practice during the hearings, the witness then took questions from committee members.

REP. CHARLES CANADY, (R) Florida: Mr. Ruff, I wanted to thank you for your presentation here today. The president chose well when he chose you as his White House counsel. But let me say that I am still frustrated by what I consider to be legal arguments that don’t really meet the test of common sense and human experience. When the president testified in his deposition that he had no specific recollection of ever being alone with Ms. Lewinsky, that that was truthful, I just don’t think meets the test of common sense and experience. I understand that’s your contention, but I have to respectfully submit that using that as an example, that it just does not stand up to analysis.

REP. JERROLD NADLER, (D) New York: Why not just forget about these legalisms and the hairsplitting and just admit to perjury or to lying under oath, if that is necessary to make some editorial writers less hostile, or to get a few more votes against impeachment? Why not just say it, even if it’s really perjury or lying under oath? Why is enforcing a precise legal definition of perjury important for all of our liberties?

CHARLES RUFF: When there is a charge that a human being committed perjury, that is, knowingly lied, it can be distinguished from testimony that may be actually truthful, evasive, misleading, but, nonetheless, the product of human frailty. We don’t put people in jail for that, and we certainly don’t impeach them, though I think the legalisms that we are legitimately accused of using – we use them – no question about it – because that’s what we believe best reflects the seriousness and the gravity of the offense that the independent counsel has charged the president with committing.

REP. ROBERT GOODLATTE, (R) Virginia: You have also made the contention that this is simply about lying to cover up a personal embarrassment. But isn’t it true, Mr. Ruff, that moments after the president completed that testimony before the grand jury, he went before the American people and admitted an embarrassment, which was what he acknowledges his side of what took place there? And isn’t it really the reason why he committed what I think is that perjurious statement not to avoid embarrassment, because he’d already embarrassed and disgraced himself, but for the purpose of covering up a previous lie in the testimony before the civil – deposition in the civil case, because of the fact that if he acknowledged what Ms. Lewinsky says took place, he would be acknowledging that what he said earlier were falsehoods and that he knew they were falsehoods in that case?

CHARLES RUFF: I believe, I am convinced, and I think the weight of scholarly evidence would lead to the conclusion that even if you reach that conclusion, that is your conclusion, not mine, about whether the president lied or not in that deposition – in that grand jury testimony, it still doesn’t warrant removing him from office. Thank you.

SPOKESPERSON: The gentle woman from California, Ms. Waters.

REP. MAXINE WATERS, (D) California: Mr. Ruff, I too must join my colleagues in complimenting you on the job that you have done here this afternoon. I think you did a fantastic job of further taking apart really the allegations that we have been presented with. I don’t know what else can be done with these issues. You’ve made it clear what the legal definitions of perjury are. We’ve discussed in detail obstruction of justice and bribery. The other side of the aisle – my colleagues cannot overcome the factual information that’s been presented to us. As a matter of fact, the more we get into these allegations, the flimsier they are. I mean, in essence, they’re rather lightweight.

KWAME HOLMAN: White House Counsel Charles Ruff completed his testimony early this evening, and the committee adjourned for the day. Tomorrow, the Republican and Democratic committee counsels will make their closing arguments. The Judiciary Committee then will begin debate on the articles of impeachment of the president.