MARGARET WARNER: All right, Bruce Yannett, what about on this issue of the legal standards? It's been a continuing theme from the president's lawyers that somehow this process is unfair to the president for sort of legal reasons, such as for instance, that the House managers are trying to drag in his deposition testimony -- his Paula Jones testimony -- when that had been rejected by the House. How well did each side do on those kinds of arguments today?
BRUCE YANNETT: Well, I thought the White House actually did a pretty good job on those arguments. I mean what they're really arguing is a question of fairness and what they're saying is, look, we know, we understand that the president is being accused of committing perjury and obstruction of justice, but at each step in the process, from the Starr referral up to the present and all the intermediate steps that occurred, the precise nature of what he supposedly did wrong, what he supposedly testified falsely about has changed and it's been an ever-shifting target. And the argument that they were making today, which is that it's really inappropriate and unfair to bring in the Paula Jones deposition into these articles of impeachment because the House voted down the Paula Jones deposition as a basis for impeachment, is a subset of that overarching argument.
What they're saying is, look - the House voted a very general perjury article of impeachment and the way it's worded you could bring in almost anything. But given the fact that the House rejected the Paula Jones deposition as a basis for impeachment, you shouldn't bring it in here. And you know, and I think frankly, from a sort of technical strategic standpoint, the House managers I think are overreaching by trying to bring that in. You know, they have what they think is a strong perjury case, and they have alleged numerous false statements in the grand jury. And I think they give the White House an argument that they don't need to give them by dragging in the Paula Jones piece of it because I think it would resonate with a lot of senators that they're being too aggressive, they're overreaching or, in Senator Bumper's words yesterday, they're trying too hard to win.
MARGARET WARNER: Doug Kmiec, how would you assess how each side handled this? They are sort of technical or legal arguments, but they keep coming up over and over.
DOUGLAS KMIEC: Margaret, they're very important arguments, and I think -- I would assess it by saying the president has brought this issue to the heart of his impeachment trial by the nature of his grand jury testimony.
MARGARET WARNER: And by this issue, you mean actually his Paula Jones testimony?
DOUGLAS KMIEC: That's right. In the grand jury, he was asked, "Was the Paula Jones testimony true?" And for all intents and purposes the president basically said it was. And one of the great difficulties, of course, is the Paula Jones civil deposition testimony looks like it is clearly false on a variety of different areas, the denial.
MARGARET WARNER: But do you think that the House managers -- I guess what I'm really asking you to do is analyze what went on today.
DOUGLAS KMIEC: Right.
MARGARET WARNER: Do you think they made that case effectively, or do you think the White House matched them and then some, as Mr. Yannett thinks?
DOUGLAS KMIEC: Yes. Margaret, I think they made this case very effectively. In fact, I think one of the most electric moments in the chamber today was when Congressman Rogan basically said, "Mr. President, answer us this question, this very simple question: Did you lie on January 17th, and did you repeat those lies in your grand jury testimony?" I never heard any effective response to that from the White House.
Mr. Craig got up this morning and said basically, "well, we don't have to talk about the civil deposition because they dropped it, they dropped it as a separate article of impeachment." But of course the difficulty with that is it is expressly referenced in Article I, because when the president was asked before the grand jury about the truthfulness of his civil deposition, he, again, lied about that truth. And so you know, we talked about witnesses a minute ago. It may be that one of the most important witnesses that's going to be needed in this proceeding and the only one that may be capable of ending it is the president himself.
MARGARET WARNER: Which the White House has made pretty clear he's not going to do. Bruce Yannett, how about on the constitutional argument, the other constant feature of this long-running debate, who do bet did a better job on that today? We played brief excerpts, but it really was going on throughout the day.
DOUGLAS KMIEC: Yes, again, Margaret, I think that here we saw a repetition of what we've been hearing now for many months. There were long hearings in the House Judiciary Committee on this precise issue and much of the House debate focused on this issue. I don't think any real new ground was broken here. My speculation anyway is that the senators have, in their own minds, each individually, a pretty clear idea of what their standard is for impeachment.
And you know, I think we saw a re-articulation of the same arguments we've seen all along. And you know, I think one of the problems is that the Framers' debate was very brief on these issues and they weren't all that precise, and so everyone goes back in history and searches for a little nugget that supports their position. And fundamentally, it's going to come down to, I think, what the -- how bad the senators view the conduct to be and the House managers characterize it, you know, during every negative inference possible, as in a sense, a conspiracy to destroy the Paula Jones lawsuit. And the White House characterizes it as, at its worst, a president who got caught in a bad relationship and lied to try to could ever up that relationship. And I think how each senator answers that question will determine what the standards of impeachment are.
MARGARET WARNER: Would you agree, Doug Kmiec, that on this question of what is a high crime and misdemeanor, really both sides can go back to the Framers and find nuggets to justify their position?
DOUGLAS KMIEC: Yes, I think that's right. I think there was agreement on both sides today about what the history says. The history says high crimes and misdemeanors, it says it's a middle case between treason and bribery, and it's something more than mere negligence. And the question is: Do we have that something more here? As Bruce suggests, the White House wants to insist over and over again that this is just private behavior, it has no serious public consequences. But as your tape showed, Mr. McCollum, Mr. Hyde, Mr. Canady would call come back and say, no. The damage that's being done here is a conscious effort on the part of the president to consistently lie and to tell those lies under oath in a judicial proceeding, and the harm from that is insidious. It may not be immediate, but it's insidious to the system of justice.
MARGARET WARNER: All right, well, gentlemen, thank you both very much.
DOUGLAS KMIEC: Thank you.
June 17, 2013
