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 during a break after top attorneys testified in the president's defense.

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 they've taken a recess this morning. This is the first recess that they have taken thus far. They went 11 hours straight yesterday. They began again this morning at 8 o'clock. I am Jim Lehrer. We are here in Washington. I'm here with Margaret Warner, the chief Washington correspondent for the NewsHour, and Stuart Taylor, from the National Journal and Newsweek Magazine, and Boston Globe columnist Tom Oliphant. JIM LEHRER: Stuart, what are you - the Democrats on the committee have called this - many of them - John Conyers, number one, has called this panel this morning the most important panel they've heard from thus far. How would you rate it?
	Rating the panel.
	STUART TAYLOR: I think it's been a very good morning for the president. These were five strong witnesses and not all partisan Democrats, as was true of most of the witnesses yesterday, some Republicans, former Governor Bill Weld of Massachusetts - were basically saying they all have deep prosecutorial experience, and they're all saying that with apparent sincerity - this is not the kind of great of case - we're not putting the president above the law if we don't impeach him, or if we don't indict him. This is not the kind of case for which an ordinary citizen would be prosecuted, and they cited effectively weaknesses in the evidence. And some of them also suggested that not only is it not prosecutable, as a matter of prosecutorial discretion, that maybe, in fact, contrary to even what many of his supporters say - maybe, in fact, the president didn't commit perjury. I think it also emerged subtly that the White House strategy includes portraying Monica Lewinsky as a liar. Threaded throughout this testimony was you can't prosecute him for grand jury perjury because the defense would show that maybe she lied about all that stuff. I candidly think you can probably find five equally eminent former prosecutors - this being something about which reasonable prosecutors disagree - who would say, well, this isn't such a bad case to prosecute, not against an ordinary citizen, but when it's a high-level public official, we take it more seriously, and I think frankly there would be great disagreements about the strength of the evidence, but bottom line, the president's witnesses were very strong today and I think he's improved his case a great deal. JIM LEHRER: Do you agree, improved his case? TOM OLIPHANT: Yes. As part of a kind of seamless web that has really been woven since yesterday, beginning with Former Attorney General Nick Katzenbach and proceeding right through to today, but what I'm talking about is the presentation of a theory on behalf of the president that goes to how you judge his conduct in terms of the Constitution. I think one of the decisions that Chairman Hyde and the Judiciary Committee made from the beginning that may hunt them a little bit with the undecided Republicans who are still thinking about this is that they did not present an equivalent theory of the Constitution and of conduct; that you could then use to place against the facts of - if they can ever be agreed to of what the president did. And I think when it comes time to making a cogent case both for the public and for those yet to make up their minds, the absence of this theoretical frame work for the facts may hurt. JIM LEHRER: Like - what do you mean? TOM OLIPHANT: Well, how do you interpret the Constitution? What is the definition that you use of high crimes and misdemeanors in order to judge that? How do you-what kind of standards should the House use for judging evidence before voting to impeach and set up a trial in the Senate? You can agree or disagree with what the president's legal team has done today and yesterday but they have set a frame work within which it is possible coherently to judge the president's conduct. JIM LEHRER: Compared then with the House Republicans and Kenneth Starr, who had just assumed that everybody would agree with it, you don't have to have a theory. Would you buy that? STUART TAYLOR: No. I think they have a theory. I think Starr presents it in his reporting to Mr. Schippers. Now, frankly, this is the White House defense. We haven't heard the prosecution case yet. I think we'll hear it from Mr. Schippers tomorrow, David Schippers, the counsel for the Republicans, in terms of trying to weave everything together and rebut this, so I think right now we're getting an understandably one-sided presentation. That's what the defense is. It's a very good one. I would say that the bottom line is - I think will be hard for some to swallow - which is even if the President of the United States repeatedly lied in legal proceedings, even if he tried to get other people to lie, he should not be prosecuted and he should not be impeached. That's the bottom line and what all these witnesses were saying. Now, of course, they were saying - some of them were saying we're not too sure he did lie, but that's their bottom line. I'm not sure that's a bottom line, because we've heard a lot of Democrats say, oh, he can always be prosecuted, so we don't need to impeach him. These guys are saying he shouldn't be prosecuted.
	Different views.
	MARGARET WARNER: I think today's back and forth between the panel and the Republicans really crystallized one of the huge differences between those two views. That is, this panel is saying if he's an ordinary man, we wouldn't go after this case, a regular prosecutor wouldn't. And you heard Lamar Smith, the congressman from Texas, say, we don't think he should be treated just as an ordinary man because he has a special duty to uphold the law. That comes straight from David Schippers. That was one of his opening statements when he made his case in early October, that the president has this extra duty, unique duty to enforce the law, and that's how they get to whether this is injury to the state. You see, that's how the Republicans are trying to make the case that, in fact, for a president to commit perjury - if he did - or lie under oath is worse than an ordinary citizen. JIM LEHRER: Tom, what did you think of William Weld, how effective he was as a witness? TOM OLIPHANT: I was going to say, there was one more wrinkle this morning, and of course, the former governor's ability to mix the colloquial with the scholarly is one of the hallmarks of his public life, I think, but this prescription for a way out of this is very subversive of the committee's current direction. JIM LEHRER: Let's go through that. I wrote that down somewhere. TOM OLIPHANT: In addition to a strongly-worded censure, I think we want to encourage - he said - a formal report by the grand jury summarizing the wrongdoing that they believe they have uncovered; that President Clinton - JIM LEHRER: Well, now did he mean a report of the grand jury or a report of this committee? STUART TAYLOR: Grand jury. TOM OLIPHANT: Grand jury. JIM LEHRER: The grand jury. Okay. TOM OLIPHANT: So that there be an additional finding. Then President Clinton would acknowledge his wrongdoing not necessarily with the words "lie" or "perjury," but a formal acknowledgment, a fine which the former governor believes could be done constitutionally, a fine leaving the door wide open to criminal prosecution. JIM LEHRER: I found the "fine" thing interesting. He didn't give a figure, but he talked about the fine against House Speaker Gingrich, which, of course, everybody knows, or everybody who cares knows, was $300,000. MARGARET WARNER: But was tied to, supposedly, the cost of the investigation. So you could also interpret Weld as saying you could hit the president for the full cost of this inquiry, the Starr investigation. And he also said you could say - STUART TAYLOR: -- which would be wonderfully elliptical on the price tag. JIM LEHRER: Yes. MARGARET WARNER: And that he couldn't take it out of a legal defense fund. JIM LEHRER: Yes. What did you make of, for instance, Congressman Canady, Republican, praised Weld's suggestion without agreeing with it? I mean, there seemed to be - do you think that this made any mark on some of the Republicans, Stuart? STUART TAYLOR: Well, I think - as we crystallize more specific proposals for censure deals, and as pressure mounts as a matter of fairness to let us have that option to vote on, if the Republicans have said, gee, I'd vote for - I don't want to vote for impeachment - but I'd rather vote for censure - I think the pressure will increase on the Republican leadership to provide that option at some point that there will be a vote on this. I think - JIM LEHRER: And that's a change, isn't it - STUART TAYLOR: Yes.
	The "l" word.
	TOM OLIPHANT: You noticed in support of what Stuart says I think it's very important for watching how this unfolds from now on - you noticed that one of the Republican members - Mr. Sensenbrenner - at the very beginning of the hearing asked to have the courtesy of any advanced copies of censure resolutions that may be introduced over the course of the next day or two. You've heard this word begin to be mentioned more and more within the committee and linked to it has been more and more Democrats who have previously not used the word "lie," using it. You heard Congressman Delahunt yesterday; you heard Barney Frank use the "l" word today. And you never know when the two sides are gong to link. JIM LEHRER: Frank used it in relationship to the president's remarks - his claim that he was never alone with Monica Lewinsky, right? TOM OLIPHANT: Or more generally in terms of the deposition testimony as opposed to the grand jury, but it is a charged word. It is a very high charged word in this proceeding. JIM LEHRER: And that would signal, would it, not, Margaret, that if there's going to be a deal, there's going to be some very harsh language in any kind of censure thing in order for the Republicans to buy it but also for some of the moderate Democrats as well? MARGARET WARNER: That's right. And it's right that Republicans could feel that it was really humiliating enough for the president to have to accept it. The key, of course, still just procedurally is Henry Hyde, though, will he allow it to be introduced and voted on? And you could see, for instance, yesterday Wayne Owens, the former congressman, appealing directly to Hyde and saying, you know, if you want to find common ground and really lead here, you could, you could bring some of these Democrats in and you could bring Republicans in, but it's really up to Hyde, isn't it? JIM LEHRER: But isn't it still - STUART TAYLOR: --force - MARGARET WARNER: Yes. JIM LEHRER: We - the committee - speaking of Henry Hyde - he is back, but all of the members are not. So we're not quite ready to go. There are the witnesses. That's, of course, Governor Weld having his right hand shaken. But what would be the procedure here if they were going to have a vote on censure, would they have the vote on censure before a vote on articles of impeachment, or instead of articles of impeachment, or how would that work? TOM OLIPHANT: Within the committee. JIM LEHRER: In the committee. TOM OLIPHANT: You would have to propose it in the form of an amendment, but if Hyde so chooses, or the Republicans so choose, or the leadership of the House gets involved in this and so chooses, it would be a simple vote on an amendment inside the committee. Then the next question would be whether the House leadership would permit members to consider such an option on the floor, or whether they would try to forbid them from considering the option, at which point parliamentary techniques become much harder to bring it to life over their opposition. JIM LEHRER: But doesn't it - as we sit here right now at a quarter to 11 Eastern Time - doesn't it - on this particular Wednesday - doesn't it still seem unlikely that a censure is going to come - that anything other than at least one article of impeachment is going to come out of this committee? STUART TAYLOR: I'd say it's unlikely, but I'd hate to - I couldn't count my false predictions this year on my fingers and toes. JIM LEHRER: You notice, I very carefully looked at the clock so - because things can change. STUART TAYLOR: I think there's one larger theme in this testimony this morning, if we can look past the fate of the president for a moment. It has been standard operating procedure in prosecutions for a long time that if it's a big-shot public official, you will go after him for things that you wouldn't go after Margaret for, or even a corporation president. And that's part of the analysis here. It - the independent counsel statute, more or less, codified that. It says that if you have specific and credible evidence that the president may have committed a felony - any felony - you must investigate him, and that's why this happened. Now, part of the issue on the table is: Do we want to keep running things that way, both in terms of having this statute, or do we want to get rid of the whole idea that apply a higher standard to public officials?
	The Espy effect.
	TOM OLIPHANT: It reminds me. Two words being mentioned today that provide a sort of cautionary flag in that regard are the two words, Mike Espy. It has had quite an effect on the atmosphere. JIM LEHRER: And Mr. Smaltz, who was the independent counsel who prosecuted Mike Espy, the former Secretary of Agriculture, he made that statement that was mentioned about 12 times, to my count this morning, that it's okay, we didn't get a conviction, we had an indictment, and that is symbolic and important enough. TOM OLIPHANT: I don't - STUART TAYLOR: Is he working undercover for the White House, is the real question - (laughter among group). I mean, that was - and I think generally perceived as an outrageous thing to say. So as long as we can keep indicting him and we can indict a ham sandwich, who needs to convict him? (laughter among group) TOM OLIPHANT: However - MARGARET WARNER: The president's defenders are saying that Sen. McCollum, Bill McCollum, has made a similar comment when he said, well, censure is just the - impeachment is just the ultimate censure, it's just branding with a scarlet "A." And you hear these prosecutors saying, look, you cannot bring a case and you never should unless you think you can get a conviction, and that's a very different view. TOM OLIPHANT: And this afternoon Mr. Ruff, in his presentation on the facts, will do something quite analogous to the Espy defense, which is to use the prosecution's witnesses. JIM LEHRER: Okay. We're - they have reconvened. Mr. Hyde has his gavel. And we shall - Mr. Ruff will come after the committee members finish their examination of these witnesses, and then - there we go.