JIM LEHRER: Tom, the issue that Congressman Meehan, Democrat of Massachusetts, raised today, that this hearing today and continuation tomorrow isn't literally going to change anything; there are 21 Republicans that are going to vote for impeachment on this committee and there are 16 Democrats who are going to vote against it. Do you agree with him?
TOM OLIPHANT: Yes, as far as that goes, but it may be necessary to go further because there are disagreements within the Republican majority that involve how to write the articles of impeachment by the time they're to be submitted on the weekend. You know, they don't have agreement on what the charges are yet, and they may disagree among themselves as to some of the perjury allegations. Some may not want to vote for perjury charges involving the deposition in the Jones case last January. Other members oppose perjury on the charge of abuse of power, depending on how it's written. So while I think Marty Meehan is exactly right, that 21 to 16 for something – it's very interesting that as of tonight we have nothing in the way of a charge.
JIM LEHRER: And so then the next issue on this, Stuart, is that the real audience today are those 20 to 25 – how many ever there are – moderate Republicans -- not on the committee but elsewhere – who could eventually decide this by weekend, when this goes to the floor of the House.
STUART TAYLOR: That's right.
JIM LEHRER: Actually by next weekend.
STUART TAYLOR: Those – that is the audience and of course the public because they will be taking polls and the public's watching some of this. I did not hear anything so far today that would have swayed me if I were one of those 20, if I were on the fence, towards saying I'll vote against impeachment. Now, in candor, I'm not one of those. I've been in favor of impeachment. But I heard there were some plausible arguments against impeachment by various witnesses that were not new, and there was one new argument that, in my opinion, was not plausible. The new one was Professor Bruce Ackerman of Yale Law School saying that if this lame duck Congress impeaches the President, it will be – expire and be invalid in the new Congress next year and therefore it would be a futile act, might as well not do it. He cited no plausible evidence for that. There's a wealth of history to the contrary. I think this is one of those professors who makes up the Constitution as he goes along. The older plausible arguments were to be taken very seriously. This ain't Watergate. The Republicans, more or less, concede whether or not these are high crimes, they aren't as high as Nixon's were. A party line vote for impeachment looks bad and is thin ice at least in terms of public legitimacy. Trying to impeach a President over the objections of the voters is on thin ice in terms of legitimacy. Those are all solid arguments. The trouble is that everyone in Congress has heard them before, and hearing them again today may not change anything. I do think that Democrats have the better argument on at least one important point, which is whether a censure would be constitutionally valid. I think it clearly would be the Republicans who say the Constitution doesn't allow that, in my view, are quite wrong. The question is whether it's an adequate – an adequate way to do this, and I think not.
JIM LEHRER: Tom, let's go back through some of Stuart's points. First of all, do you think – did you hear a convincing argument if you were, in fact, a moderate Republican, or somebody else trying to make a decision on this?
TOM OLIPHANT: That's the key question. Part of one – it's not complete yet, it's in the process of being released tonight. I think what's new about the President –
JIM LEHRER: Let's point – what you're talking about is an 182-page document that President Clinton's lawyers are releasing tonight, and it will be discussed in detail tomorrow.
TOM OLIPHANT: That's correct.
JIM LEHRER: But it lays out their defense in writing on the facts.
TOM OLIPHANT: On the factual issues. It expands in great measure upon a much smaller, more hastily-prepared one the day Ken Starr's referral was released back on September 11th – they did a hastily done thing together. This is much different. And I think it may – for those Republicans – change the perception of this case factually. Starr and Clinton's lawyers, it's like a trip down a cafeteria line, and there's always evidence on the other side of the line, and you pick one from here and you pick one from here, and you end up with a narrative, and that's what Starr's referral is. It's a narrative. It's a story. Now, Clinton's telling the story, and he's going down the same cafeteria line with the same unexamined grand jury testimony, and he's picked a bunch of stuff, and he's got a story now. And I think the question tonight, which I would prefer not to answer, is whether it introduces serious and substantial doubt into the factual question here.
JIM LEHRER: Well, that can wait until tomorrow until all of that has gone through, because tomorrow afternoon Ruff, the White House counsel, is going to go through all of that, et cetera, but based on just what was heard today, the argument, for instance, Stuart, that the – that I just asked the two members of the committee about, that whatever the President did you can see that he did all of these things; they don't rise to high crimes and misdemeanors and even if they did, it would – it's not worth putting the country through it to impeach him.
STUART TAYLOR: That is the heart of the anti-impeachment defense, and it's a very serious argument. Nicholas Katzenbach, the former Democratic attorney general, came across very plausibly when he said for this to impeach against public opinion would – would not be legitimate. I think that was the essence of it. One element of this equation is how traumatic would a Senate trial actually be. The Democrats repeatedly said today it would paralyze the country for six months to a year. The Republicans, I think, we just heard Mr. Hutchinson saying more plausibly, in my view, it wouldn't really take very long. Let's not underestimate that it is a very grave act. But, frankly, I don't see why a Senate trial would take more than two or three weeks, particularly if the line holds that they're not going to convict him; they're not going to remove him. I don't think anyone would have an incentive to prolong a Senate trial endlessly under those circumstances.
JIM LEHRER: Another element of today, which came up increasingly, was that don't members of the House think for one minute that you're voting for something short of removal when you vote for impeachment. How do you read that?
TOM OLIPHANT: Well, this is a very central point, and it will bear very heavily, I think, on the minds of those who have yet to make a final decision in this case, because it involves what you're going to put the country through and if you're going to put the country through that, on what basis should you act, and if you'll notice, the Democrats tend to embrace a line that I think Elliot Richardson uttered when he was up on the Hill last week – this vote is a vote to remove from office. It is not anything other than one half of the process that kicks a president out. By contrast, I think, there is an argument being made to these moderates by some of the pro-impeachment members of the House – notably Tom DeLay – that, hey, there's not going to really be a trial in the Senate; you can't convict him. Impeachment is really censure.
JIM LEHRER: And it's a punishment by itself.
TOM OLIPHANT: That's right, which seems to be contradicted by some of the scholars who testified this morning.
STUART TAYLOR: Yes. And I think the DeLay argument is too facile; you shouldn't just say this is just a heavy censure. I do think there's a case to be made that impeachment might be a worthwhile act even if it's foreseeable that the Senate will not convict. And I think the heart of it is the President has not yet stopped lying, in my view, and in the view, apparently, of some of his own supporters. And a Senate trial might be able to rescue us from the irretrievable partisanship and party-line nature of the House proceedings. There are some Democrats in the Senate who have been far more serious in criticism of the Senate, of the President, than any of those in the House have been – Senators Lieberman, Moynihan, Bob Kerrey, for one – and frankly, the Republicans in the Senate, I think most of them are not the partisan – are not as partisan in their attacks in the President. I think a Senate trial might be a much more edifying spectacle than what we've seen in the House. Whether that would make it end better for the sake of the country is, obviously, somewhat speculative.
TOM OLIPHANT: The assertion that that trial would be worth it in the context of what else is going on in the world, what else is going on in the country, whether or not there's some threat to the underlying stability that makes our economy so prosperous, I think those are balancing considerations that will weigh heavily on minds and not very much in favor of such a process if that's its only purpose.
JIM LEHRER: Gentlemen, thank you both very much. See you again tomorrow night.