THE DEFENSE: DAY TWO

December 9, 1998
		Boston Globe columnist Tom Oliphant and National Journal and Newsweek columnist Stuart Taylor join Jim Lehrer and Margaret Warner before the second day of the President's defense begins.

Return to the Analysis Section. Return to Impeachment Coverage. The Full-text of Kenneth Starr's report to Congress and the White House rebuttal (From Online NewsHour) For more on Whitewater visit Frontline's Once Upon a Time in Arkansas. Text and analysis of President Clinton's address to the nation following his grand jury testimony. A look at the independent counsel law and how it affected one case (From Frontline) President Clinton's interview with Jim Lehrer in which he denies any relationship with Monica Lewinsky. (From Online NewsHour) Washington Week in Review reacts to growing scandal.     The House Judiciary Committee Background on the impeachment process from JURIST, the Law Professor Network.	JIM LEHRER: And, once again, good morning from Washington. I'm Jim Lehrer. Welcome to PBS's special NewsHour coverage of the House Judiciary Committee hearings on the impeachment of President Clinton. Today, the President's attorneys wrap up their two-day impeachment defense. We expect to hear from a panel of five attorneys on the standards for obstruction of justice and perjury and then from Charles Ruff, the White House counsel. We'll be broadcasting today's proceedings in full. The NewsHour's chief Washington correspondent, Margaret Warner, is here with me this morning. So are two commentators: Stuart Taylor, a columnist for the National Journal and Newsweek magazines, and Boston Globe columnist Tom Oliphant.
	The 184 page defense.
	JIM LEHRER: Margaret, the plan for the day is what? MARGARET WARNER: Well, as you said, Jim, first we're going to hear a panel of five lawyers, former prosecutors or current prosecutors. And they're going to - very much as yesterday - talk about the standards for prosecuting both obstruction of justice and perjury. The sort of star witness - JIM LEHRER: In criminal - in a criminal - MARGARET WARNER: In a criminal - JIM LEHRER: If this was, in fact, a criminal case. MARGARET WARNER: Exactly. JIM LEHRER: That's what they're going to be talking about. MARGARET WARNER: That's right. And clearly, you know, they're going to support the White House view that it would be very difficult to prosecute the President for either of these. The sort of start witness, if there is one, is going to be William Weld, the former governor of Massachusetts, who as a young law school graduate was on the Watergate impeachment committee staff. But I would say the main event is going to be the 1 o'clock presentation - the beginning of his presentation by Charles Ruff, the White House counsel. He'll have three hours to really lay out the President's case, both on legal grounds but also on factual grounds, trying to follow up on the report that they issued last night here on the rebuttal they issued last night, and then the committee - JIM LEHRER: That's the big 180 - why don't you hold that up? MARGARET WARNER: One hundred and eighty-four-page document that Henry Hyde has also said - JIM LEHRER: Tom and Stuart have read and memorized every word of that. MARGARET WARNER: Oh, good, good. JIM LEHRER: So we'll go through that with them in a moment. MARGARET WARNER: Footnotes too, I hope. JIM LEHRER: Right. Exactly. MARGARET WARNER: Hyde has already said he thinks it has no new evidence and doesn't challenge any assumptions, but the committee members will get to challenge Mr. Ruff for three and a half hours or so after that.
	On the mind of the White House.
	JIM LEHRER: Yes. Tom, you agree that Ruff this afternoon and this report is the guts of what the White House has on its mind? TOM OLIPHANT: Not only the guts but I would say the heart, as well. The assertion will be made by Ruff orally -- backed up by this - that in detail - in the actual detail of the grand jury testimony over the course of this year - you can construct a narrative that is the mirror image opposite of what Ken Starr did. JIM LEHRER: Yes. We see Chairman Henry Hyde there talking to Congressman Barney Frank, one of the high-ranking Democrats on the committee. We have been told that there may be five, six, seven minutes before they're ready to begin. But the presence of Chairman Hyde may change that slightly. But, yes, go ahead. TOM OLIPHANT: You can almost pick your controversial topic as far as this case is concerned, whether it's the gifts the President and Ms. Lewinsky exchanged and the circumstances of her filing her affidavit in the Paula Jones case. What the President's lawyers have done and what Ruff will summarize is a narrative that in detail differs dramatically from the one that Starr constructed. I'm sure that - above all - David Schippers, the majority counsel for the committee, will want to go head-to-head with Ruff this afternoon on these points. JIM LEHRER: And he can do that under the - TOM OLIPHANT: That's correct. JIM LEHRER: -- procedures - TOM OLIPHANT: And at the end, the question will be, do you have a he said-he said argument, or do you have a clear-cut case? JIM LEHRER: And that's where it's going to rest, right, Stuart? STUART TAYLOR: Yes, except for, I guess, I lean a little bit toward the conclusion that if the President hasn't said anything in the last three months that would dissuade people from the widespread view of even his own allies that he lied under oath to the grand jury, as well as to the judge and the lawyers in the civil deposition, I haven't seen anything in this document so far that really lodges that. What there is, and there's a question of emphasis - for example, one of the weaker points in the Starr allegations is that the President got Betty Currie to pick up gifts from Monica Lewinsky's house on December 28th, and she went back and hid them under her bed. She did pick them up; she did take them back, hide them under her bed. She is his secretary. The question is: Did the President tell her to do it? Well, Betty Currie doesn't remember him saying that; neither does the President. And, therefore, the President in this document scores some points on suggesting that, well, maybe Starr's conclusions aren't warranted by the evidence. But keep your eye on the ball. That doesn't touch the allegations that he tried to get Betty Currie to lie by coaching her on January 18th. It doesn't touch the allegations that he perjured himself. And I think the Republicans will be hammering on the strengths and the strong points in Starr's evidence; whereas, obviously, the President's lawyers will be hammering on the weak ones. JIM LEHRER: What about each of you all is reading, beginning with you, Stuart, on what the document and the White House approach is on the basic perjury thing, because that is clearly the one that this whole thing really revolves around, particularly before the grand jury, correct? STUART TAYLOR: Yes. Well, the White House approach, as Greg Craig signaled yesterday, the President's lawyer at this stage, is that he didn't intend to lie. You may look at his answers and think that, gee, that's not true, he was never alone in a room with her, that sort of thing, or he just didn't remember being alone. But the President somehow thought he was just trying to be misleading but not trying to lie; that's the essence of their argument. And another part of it - although they haven't emphasized this - is it wasn't material, the law of perjury requires that it be somewhat important to the proceeding. JIM LEHRER: But state of mind is important, isn't it, under the law? STUART TAYLOR: State of mind is absolutely critical, and so on perjury, the question is how a bunch of smart lawyers can question the President for four hours about things and he can manage never to tell them the truth that they're looking for and to say a lot of things that are false but he didn't think he was - he didn't really think he was lying. That's the defense. JIM LEHRER: Tom. TOM OLIPHANT: Of course, the first bit of confusion that Mr. Ruff will face this afternoon, which is a very difficult position to be in, is that he does not know yet what statements by the President will be alleged by the committee to have been perjurious. We still have no charges. But to pick one example, the - JIM LEHRER: You're talking about the articles of impeachment. TOM OLIPHANT: That's right. And on the perjury ones, however they do it, with one article or two, the selection of statements that are supposedly perjurious has not been made by the committee yet. But what Mr. Ruff will do is guess. And to use the example, for example, of being alone with Monica Lewinsky, the document and Ruff's testimony will present a much longer narrative of the President's statements, both in deposition in January and in grand jury in August, that they say make quite clear that the President was not denying being alone with her, that he was not simply saying in one answer that he couldn't remember whether he was ever alone with her, and that when you look at all of what he said in the grand jury as opposed to the one quote that was used in the referral, you get a completely different picture.
	Today's target audience.
	JIM LEHRER: Now, we talked yesterday, Margaret, about who the real audience for all of this is. Yes, there are the members of a - 37 members of the committee. Yes, there are members of the American public who are watching this on various television programs, most of them, of course, on PBS. But there are also twenty to thirty moderate Republicans who are the target audience. And I notice in the papers this morning, the daily newspapers, that's all they talked about. MARGARET WARNER: That's right, because that is very much as both Marty Meehan, a member of the committee, and Chuck Schumer, another Democratic member of the committee, said yesterday, the vote in the committee is a foregone conclusion. So all of this is aimed at next week, and it's worth remembering that today, in fact, is the last day that the President gets to make a case, at least in a congressional setting, to those members who are going to vote. So, there is one more New York Republican, who is going to announce today that he's decided to vote against impeachment. There's great focus on the New York delegation and on Northeastern self-styled moderate Republicans, in general. Outgoing New York Senator Alfonse D'Amato, who has not been a great friend of either Mr. or Mrs. Clinton, has, nonetheless, said publicly last night apparently at a party I think it was that he thought he should not be impeached. So there is definitely a full court press by the White House towards these mostly Northeastern and moderate Republicans. JIM LEHRER: There was even a suggestion someplace I read this morning, Stuart, that eventually between now and the time this thing actually is voted on, on the floor of the House, which will probably be next week, toward the end of the week, that the President, himself, is going to have to get involved; it can't just be lawyers, and it can't just be experts, et cetera, that this thing is really going to come down to trying to get those final twenty/twenty-five votes, it's going to get - it's going to be trench warfare. Do you agree with that? STUART TAYLOR: Yes. Well, it appears - and I read the same thing you did - that the White House, they're going to watch very closely, going to keep counting noses; they're going to hope that what they're doing right now swings it for them. But if it looks like they're losing, as it goes down to the wire, then the President may stop doing the business of the nation, which is the appearance he's creating now, and starting lobbying people actively. Now, there's also a lingering question whether he will change his defense at the last minute to give the kind of candor - not so much contrition and apologies - but candor that some people are calling for. For example, the New York Times editorial page, which has been critical of the President's candor but has opposed impeachment, has been begging him for months to please come clean. And in this morning's editorial they say in practical terms the President must free himself and his defenders from the paralyzing fiction that he did not lie under oath. They've looked at all this defense. They've looked at this document, and they've said, come on, he should just admit that he lied under oath. Now, he has never been willing to do that. JIM LEHRER: He's not going to do that, is he, Tom? TOM OLIPHANT: No, I don't believe so. And, as the strategy unfolds, I don't -
	Racing the clock.
	JIM LEHRER: Excuse me. Just for those of you who may have just tuned in, the committee is still gathering, as you can see, but the committee chairman is there, Henry Hyde. The witnesses are seated, but not all the committee members are there, so we're not - you're not missing anything. We're not just talking to be talking here. The committee has not yet begun. We'll go to it the moment they have. Go ahead, Tom. TOM OLIPHANT: Yes. My judgment is that there is not the time left with the President for that kind of reflection that Stuart was talking about. He leaves, I believe, the schedule calls for him to go to the Middle East on Friday night. I cannot imagine him breaking off a trip to the Middle East to come back and try to save his job. I think that would look ridiculous, and I can't imagine it happening. Any decision about additional statements from the President, I think, will have to be made before Friday evening. JIM LEHRER: You're talking about this coming Friday evening? TOM OLIPHANT: Yes. Two days from now. JIM LEHRER: Right. So once that - nothing's going to happen, once it goes to the floor. Okay. Now, we - the - yes, Chairman Hyde has hit the gavel, and we're about to begin. Remember that we have - the first panel is of five lawyers talking about standards for perjury and obstruction of justice.