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Final Arguments

December 10, 1998 at 12:00 AM EST
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MARGARET WARNER: Now two perspectives on today’s presentations by Mr. Lowell and Mr. Schippers. John Labovitz is a Washington attorney. During the Watergate era he served as counsel on the impeachment inquiry staff of the House Judiciary Committee and wrote a book on presidential impeachment afterwards. Douglas Kmiec is a visiting law professor at Pepperdine University who served as the Justice Department’s legal counsel in the Reagan administration.

MARGARET WARNER: Mr. Labovitz, this is the first time we’ve seen dueling presentations of the facts in this case. Who do you think made a more compelling case overall?

JOHN LABOVITZ, Former Judiciary Committee Counsel (1974): Well, I think the main question is what is the objective of making the case? The objective is to tell the committee and the House whether it’s going to prevail, what the strengths and weaknesses of its case will be in the Senate to impeach. Here we have a situation where that’s what Lowell was doing. I think Schippers, rather, was giving essentially a closing jury talk in a conspiracy trial.

MARGARET WARNER: Doug Kmiec, your overall assessment of this?

DOUGLAS KMIEC, Pepperdine University Law School: Margaret, I think Mr. Lowell did a particularly good job of utilizing videotape material and taking apart the case piece by piece. I think David Schippers, however, did an even more masterful job reassembling it in the afternoon, and I think on balance, I’d have to give the prize to him.

MARGARET WARNER: All right. Staying with you, Mr. Kmiec, let’s take perjury – and particularly perjury in the deposition – the Paula Jones deposition. As you know, the president’s attorney said yesterday, Charles Ruff, that the president in that situation knew he was misleading the Jones attorneys, indeed, wanted to but thought he danced right up to the line but didn’t cross over into perjury, and how effective do you think Mr. Schippers’ case was today that, in fact, he was well over the line?

DOUGLAS KMIEC: I think the reason that David Schippers’ case was effective was because he showed that there was a rather pervasive pattern of lying and deception. That included not just coming up to the line of what does and does not count as sexual relations, but also over questions of were you ever alone with Monica Lewinsky, a very silly answer that he never was alone, or he could only recollect a few times, and this kind of thing. Similarly, I think we see a pattern emerging of obstruction that’s much stronger here today of the president engaging in multiple frantic calls, trying to keep Monica Lewinsky on his side, basically as Schippers would put it, trying to keep Monica Lewinsky comfortable with filing her false affidavit, especially in the hours immediately after President Clinton testified in January.

MARGARET WARNER: All right. I want to get back to the obstruction, but, first of all, on the perjury, Mr. Labovitz, because certainly both Lowell and Schippers spent a lot of time on that.

JOHN LABOVITZ: Yes. But I think Mr. Lowell raised a legitimate point. How is this going to be proved in a trial in the Senate? What exactly is the evidence that’s going to be put forward? Is that evidence as it exists at this stage convincing enough that the House should go forward? There have been no interviews of any other witnesses, none whatsoever about the investigative staff. How credible will it be when they get to the Senate if they go to the Senate? That’s the kind of issue that should be addressed, and I think Mr. Lowell’s presentation in that respect was closer to the real issue today.

MARGARET WARNER: Yes. Go ahead, Mr. Kmiec.

DOUGLAS KMIEC: Margaret, I think it was closer – if this was a trial and we were in article three court, but we’re not, and I think one of the things that all of the president’s defenders, including his summation by Mr. Lowell, misses, is that the House is to determine whether or not there is a basis to refer this matter for trial to the Senate of the United States. The standard for that has differed historically, as Mr. Labovitz’s book points out, that in many cases it was probable cause or more probable than not, Richard Nixon had a somewhat higher standard than that, clear and convincing, but I think basically Mr. Lowell’s was to try to prove that there was some reasonable doubt and, therefore, a perjury prosecution in an article three court might be doubtful, but I don’t think that carries the day with regard to impeachment, especially where I think what was hammered over and over and over again by David Schippers that this was lying and abusing the powers of office not just to cover up sex but to harm a private litigant who had brought a civil rights cause of action, a sexual harassment cause of action against the president.

MARGARET WARNER: So, Mr. Kmiec, staying with you for a minute, you do think then this has emerged as a major difference between the President’s defenders and the Republicans on the committee, that really the House doesn’t have to believe – a House member doesn’t have to believe that necessarily it’s been proven that he should be removed from office; it’s a lower standard than that and that you’d leave it to the Senate to make that final determination?

DOUGLAS KMIEC: I think there has to be belief on the part of the members of the House committee that there are high crimes and misdemeanors here. I don’t think they have to believe that perjury could necessarily be proven, although I think Mr. Schippers made a pretty good case that it might be in an article three court.

MARGARET WARNER: Where do you come down on this standard?

JOHN LABOVITZ: Well, I think the question-Mr. Schippers referred to the House’s role as that of an inquest, and that’s all, that it should be bucked to the Senate if there is essentially probably cause or maybe something less. That’s certainly something that the House used to do in impeachment proceedings. It has not done so in modern times. It didn’t do so in the Nixon case. The committee there thought there had to be clear and convincing evidence of grounds to remove, that is, of grounds they can prove a trial that would lead to removal. That’s the standard that the committee articulated at that point. I think that’s the proper standard to be used today, and I think that standard is one that – given the nature of the proof now – would be very difficult to meet, independent of one’s definition of grounds for impeachment or impeachable offense.

MARGARET WARNER: All right. Let me ask you to comment on something that Mr. Kmiec talked about earlier, which had to do with obstruction of justice, back to today for a minute, because Mr. Schippers spent a lot of time on that, the job search over the gifts, how strong a case do you think he presented on that, that there really – this wasn’t just about hiding an affair, there was something more going on here, there really was obstruction of justice?

JOHN LABOVITZ: I think that he presented a case, which was an interpretation. His inferences, from evidence that in many cases – in all cases is untested – and I think there’s some testing by interviews, by deposition, by appearances before the House, it’s very difficult to see whether there’s anything at all to that case.

MARGARET WARNER: Mr. Kmiec.

DOUGLAS KMIEC: Well, again, I think it misconceives the function of the House to constantly focus as to whether or not there should be fact witnesses there. We have a different world now than we did with regard to this proceeding, than when we had Watergate. In Watergate there was no freestanding independent counsel statute that had conducted an elaborate grand jury proceeding and that provided an elaborate body of facts in the context of a referral. I think we really need to focus here on remedy. What these proceedings, what these summaries were about today, was what is the appropriate remedy for what we know is generally true, and that is that this president lied under oath. We dispute as to why he lied. Some say he was just ashamed. The Republicans, for the most part, say, no, he was trying to harm Paula Jones and her civil rights cause of action. I think we have to focus on is the remedy censure, is it a vote of the full House of Representatives for articles of impeachment, or is it further than that, not just voting articles of impeachment but actually proceeding to trial and the fact witnesses that Mr. Labovitz is talking about? If we go to that latter question, then I think the most effective thing Abbe Lowell said is that’s going to take a lot of the country’s time, but balanced against that, Mr. Schippers said, where’s the credibility of this president, given the pervasiveness of his habit of lying, and what is the effect of retaining him in office with regard to domestic and foreign policy generally?

MARGARET WARNER: Who do you think was more persuasive on that?

JOHN LABOVITZ: Again, the issue -

MARGARET WARNER: Competing -

JOHN LABOVITZ: — the issue for this committee at the moment is whether to recommend impeachment, which means recommending going ahead with a trial to remove the president. You can’t have an impeachment and then just stop. That’s not the issue before the committee. Perhaps the House might decide that by not employing managers or what have you, but the issue for this committee is are these – four articles of impeachment – each cause independently that would lead to the removal of the president if proved, and can we prove them?

MARGARET WARNER: And briefly the point Mr. Lowell was making was the bottom line here is if it goes to the Senate, it will be a trial about sex and a sexual relationship. Do you think he made that case?

JOHN LABOVITZ: I think he did.

MARGARET WARNER: That’s what it’ll look like?

JOHN LABOVITZ: I think legitimately that has to be discussed; that’s one of the major elements of perjury that is alleged in two different articles and really in a third.

MARGARET WARNER: Mr. Kmiec, your view briefly about what a Senate trial would look like. What it looks like today?

DOUGLAS KMIEC: I think it would look a bit like today and I think it would focus on the continuing fitness of this president for office, and I would have to disagree with Mr. Labovitz on the issue of whether or not there can be a referral for impeachment without an immediate trial. It’s not uncommon for an indictment to be brought and a trial not to be immediately pursued, and, in fact, as Congressman McCollum has pointed out, that may be the best middle course. It may be the only form of constitutional censure, namely making the historical record that this president should be impeached, but holding off, at least for the moment, as to the trial.

MARGARET WARNER: All right. Mr. Kmiec, Mr. Labovitz, thanks very much.