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Full coverage of the impeachment
trial.
Jan. 8, 1999:
Shields
and Gigot on the Senate deal.
Jan. 7, 1999:
Shield and
Gigot discuss the impeachment trial.
Jan. 6, 1999:
Tom
Oliphant and David Brooks analyze the beginning of the impeachment
trial in the U.S. Senate.
Jan. 6, 1999:
Two
of impeachment managers on the Senate trial.
Jan. 5, 1999:
Four
former senators discuss the format and duration of the upcoming
impeachment trial.
Jan. 4, 1999:
Senators are wrestling with a proposal for a shortened impeachment
trial.
Dec. 23, 1998:
Four
foreign journalists discuss how President Clinton's impeachment
played around the world.
Dec. 21, 1998:
A growing number of voices are calling for a censure
alternative.
Dec. 21, 1998:
A discussion
on the vote to impeach President Clinton.
Dec. 21, 1998:
Some
public reaction from Oregon on the impeachment vote.
Dec. 17, 1998:
Shields
& Gigot give analysis of the House's decision to continue
with the debate on impeachment despite the military action in
Iraq.
Dec. 15, 1998:
More
moderate Republicans came out in favor of impeaching President
Clinton.
Dec. 15, 1998:
Deborah
Tannen and Shelby Steele debate the impeachment proceedings
of President Clinton.
Nov. 27, 1998: President Clinton answers
questions
about the Lewinsky matter put to him by the House Judiciary
Committee.
Browse the NewsHour's coverage of the White
House, Starr
Investigation,and Political
Wrap.
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 Mr.
Chief Justice, Senators, distinguished counsel for the President,
I'm Steve Chabot, and I represent the First District of Ohio. Prior
to my election to Congress, I practiced law in Cincinnati for 15 years.
As I stand before you today, I must admit that I feel a long way away
from that small neighborhood law practice. But while this arena may
be somewhat foreign to me, the law remains the same.
As one of the managers who represents the House I am here to summarize
the law of perjury. While today's discussion of the law may not be
as captivating as yesterday's discussion of the facts, it is nevertheless
essential that we thoroughly review the law as we move forward in
this historic process. I will try to lay out the law as succinctly
as I can without using an extraordinary amount of the Senate's time
and I beg the body's indulgence.
THE LAW OF PERJURY
In the United States criminal code there are two perjury offenses.
The offenses are found in sections 1621 and 1623 of title 18.
Section 1621 is the broad perjury statute, which makes it a federal
offense to knowingly and wilfully make a false statement about a material
matter while under oath.
Section 1623 is the more specific perjury statute, which makes it
a federal offense to knowingly make a false statement about a material
matter while under oath before a federal court or federal grand jury.
It is a well settled rule that when two criminal statutes overlap
the government may charge a defendant under either one. As you know,
the President's false statements covered in the first impeachment
article were made before a federal grand jury. Therefore, section
1623 is the most relevant statute. However, section 1621 is applicable
as well.
ELEMENTS OF PERJURY
There are four general elements of perjury, they are (1) an oath,
(2) intent (3) falsity, and (4) materiality.
I would like to walk you through each of these elements.
THE OATH
The oath need not be administered in any particular form, but it must
be administered by a person or body legally authorized to do so. In
this case, there has been no serious challenge made to the legitimacy
of the oaths administered to the President, either in his civil deposition
in the Jones v. Clinton case or before the federal grand jury.
Let's once again witness President Clinton swear to tell the truth
before a federal grand jury.
INTENT
To this day, the President has refused to acknowledge what the vast
majority of Americans know to be true: that he knowingly lied under
oath. The President's continued inability to tell the truth, the whole
truth and nothing but the truth, has forced this body to determine
the President's true intent.
 The
intent element requires that the false testimony was knowingly stated
or subscribed. This requirement is generally satisfied by proof that
the defendant knew his testimony was false at the time it was provided.
As with almost all perjury cases, you will have to make a decision
regarding the President's knowledge of his own false statements based
on the surrounding facts and the circumstantial evidence. This does
not in any way weaken the case against the President. In the absence
of an admission by the defendant, relying on circumstantial evidence
is virtually the only way to prove the crime of perjury.
The federal jury instructions, which federal courts use in perjury
cases, can provide helpful guidance in understanding what is meant
by the requirement that the false statement be made knowingly.
I quote: "When the word 'knowingly' is used, it means that the defendant
realized what he was doing and was aware of the nature of his conduct,
and did not act through ignorance, mistake or accident."
So as you reflect on the President's carefully calculated statements,
remember the federal jury instructions and ask a few simple questions:
Did the President realize what he was doing? Was he aware of the nature
of his conduct? Or, did the President simply act through ignorance,
mistake, or accident?
The answers to these questions are undeniably clear, even to the President's
own attorneys. In fact, Mr. Ruff and Mr. Craig testified before the
Judiciary Committee that the President wilfully misled the court.
Let's listen to Mr. Ruff.
 In
an extraordinary admission, the President's own attorney has acknowledged
the care, the intention, the will, of the President to say precisely
what he said.
The President's actions speak volumes about his intent to make false
statements under oath. For example, the President called his secretary,
Betty Currie, within hours of concluding his civil deposition, and
asked her to come to the White House the following day. President
Clinton then recited false characterizations to her about his relationship
with Ms. Lewinsky. As you've already heard, Mrs. Currie testified
that the President made the following statements:
You were always there when she was there, right? We were never really
alone.
You could see and hear everything.
Monica came on to me, and I never touched her, right?
She wanted to have sex with me, and I can't do that.
This is not the conduct of someone who believed he had testified truthfully.
It is not the conduct of someone who acted through ignorance, mistake
or accident. Rather, it is the conduct of someone who lied, knew he
had lied, and needed others to modify their stories accordingly.
Finally, it is painstakingly clear during the President's grand jury
testimony that he again knows exactly what he is doing. Let's again
watch the following excerpt from that testimony.
In this instance, and in many others that have been presented to you
over the last two days, the facts and the law speak plainly. The President's
actions and demeanor make the case that President Clinton knowingly
and willfully lied under oath in a grand jury proceeding and in a
civil deposition. The compelling evidence in this case satisfies the
intent element required under both sections 1621 and 1623.
FALSITY
The next element of perjury is falsity. In order for perjury to occur
in this case, the President must have made one or more false statements.
Yesterday, my colleagues went through the evidence on this matter
in great detail and clearly demonstrated that the President did in
fact make false statements while under oath. Because the evidence
presented to date, without question, exposed the falsity of the President's
statements, I will move forward to the final element of perjury.
MATERIALITY
 The
test for whether a statement is material, as stated by the Supreme
Court in Kungys v. United States(1)
is simply whether it had "a natural tendency to influence" or was
"capable of influencing" the official proceeding. The law also makes
clear that the false statement does not have to actually
impede the grand jury's investigation for the statement to be material.
The law regarding the materiality of false statements before a grand
jury is very straightforward: Because a grand jury's authority to
investigate is broad, the realm of declarations regarded as material
is broad. The President's false statements to the grand jury were
material because the grand jury was investigating whether the President
had obstructed justice and committed perjury in his civil deposition.
LEGAL SMOKESCREENS
The President's attorneys will try to distract you from the relevant
law and facts in this case. To help you stay focused on the law, I
would like to preview some of the arguments that may be made by the
President's attorneys.
LEGAL SMOKESCREEN #1: THE BRONSTON CASE
You will probably hear opposing counsel argue that the President did
not technically commit perjury and appeal to the case Bronston v.
United States.(2) This is a legal smokescreen.
In the Bronston case, the Supreme Court held that statements that
are (1) literally truthful and (2) non-responsive cannot by themselves
form the basis for a perjury conviction. This is the cornerstone of
the President's case. However, the Court also held that the unresponsive
statements must be technically true in order to prevent
a perjury conviction -- such statements must not be capable
of being conclusively proven false.
As we have seen, none of the President's perjurious statements before
the grand jury covered in the first impeachment article are technically
true.
So, when the President's counsel cites the Bronston case remember
the facts and ask yourselves: are the President's answers "literally
true"? And remember: To be "literally" true, they must be actually
true.
 It
is also important to note that, consistent with the Bronston case,
the response "I don't recall" is not technically true if the President
actually could recall.
The factual record in this case - consisting of multiple sworn statements
contradicting the President's testimony, and highly specific, corroborating
evidence -- demonstrates beyond a reasonable doubt that the Presidents
statements were not literally true or legally accurate. On the contrary,
the record establishes that the President repeatedly lied; he repeatedly
deceived; he repeatedly feigned forgetfulness.
There are other clear and important limitations on Bronston's scope.
In U.S. v. DeZarn,(3) handed down just
three months ago by the Sixth Circuit Court of Appeals, the Court
made an important ruling that is directly on point. The Court of Appeals
stated: "Because we believe that the crime of perjury depends not
only upon the clarity of the questioning itself, but also upon the
knowledge and reasonable understanding of the testifier as to what
is meant by the questioning, we hold that a defendant may be found
guilty of perjury if a jury could find beyond a reasonable doubt from
the evidence presented that the defendant knew what the question meant
and gave knowingly untruthful and materially misleading answers in
response."
The Bronston case has further limitations. For example, in United
States v. Swindall(4) the courts have
consistently held that the jury can convict for perjury even if the
questions or statements involved are capable of multiple interpretations,
where only one interpretation is reasonable under the circumstances
surrounding their utterance.
In United States v. Doherty,(5) the
court held that prosecution for perjury is not barred under Bronston
"whenever some ambiguity can be found by an implausibly strained reading
of the question" posed. I would submit to this body that "implausibly
strained readings of the questions posed" is precisely what confronts
us time and again in the case of the President before the grand jury.
LEGAL SMOKESCREEN #2: THE "TWO-WITNESS" RULE
In the coming days you may hear opposing counsel argue that the president
did not commit perjury by appealing to the "two-witness" rule. Again,
this is a legal smokescreen.
This common law rule requires that there be either two witnesses to
a perjurious statement, or, in the alternative, that there be one
witness and corroborating evidence of the perjury. Opposing counsel
may suggest that because there were not two witnesses present for
some of the President's false statements, he can not technically be
convicted of perjury.
Such an appeal to the two-witness rule is wrong for several reasons.
First, the two-witness rule is not applicable under section 1623,
only section 1621. The language of section 1623 expressly provides
that "it shall not be necessary that such proof be made by any particular
number of witnesses or by documentary or other type of evidence."
Congress passed section 1623 in 1970 to eliminate the two-witness
requirement and facilitate the prosecution of perjury and enhance
the reliability of testimony before federal courts and grand juries.
The legislative history establishes this as the fundamental purpose
of the statute.
Additionally, substantial evidence has been presented over the last
two days to satisfy the requirements of the two-witness rule under
section 1621. Remember, when the two-witness rule applies, it does
not actually require two witnesses. Indeed, it requires either two
witnesses or one witness and corroborating
evidence. As you know, there is a witness to each and every one of
the President's false statements and there is voluminous evidence
which corroborates the falsehood of his statements.
Finally, case law tells us that the two-witness rule is not applicable
under certain circumstances when the defendant falsely claims an inability
to recall a material matter.
LEGAL SMOKESCREEN: THE DRAFTING OF ARTICLE ONE
As you know, Impeachment Article I says that, "Contrary to that oath,
William Jefferson Clinton willfully provided perjurious, false and
misleading testimony to the grand jury..."
You may hear opposing counsel argue that section 1621 is the only
applicable statute because the article of impeachment accuses the
President of wilfully committing perjury. This is another
legal smokescreen.
Following that reasoning, one could just as easily make the argument
that 1623 was contemplated here because the term "false" does not
appear in 1621 but does appear in 1623. However, that is not the point.
The point is that the language of the impeachment article did not
use these terms as terms of art as they are defined and used in various
criminal statutes.
While the Article of Impeachment does not draw a distinction between
the standards, evidence has been presented over the last two days
that demonstrates that the President did knowingly and willfully lie
under oath regarding material matters before a grand jury, satisfying
both section 1623 and 1621.
Again, in the context of perjury law, the distinction between a knowing
falsehood and a wilful falsehood is almost a distinction without a
difference. In American Surety Company v. Sullivan,(6)
the Second Circuit stated that, "the word 'willful' even in criminal
statute, means no more than that the person charged with the duty
knows what he is doing."
Mr. Chief Justice, members of the Senate, throughout this long and
difficult process, apologists for the President have maintained that
his actions might well have been reprehensible but are not necessarily
worthy of impeachment and removal from office. I would submit, however,
that telling the truth is critically important to our judicial system
and that perjury -- of which, I believe, a compelling case is being
made -- strikes a terrible blow against the machinery of justice.
The President of the United States -- the chief law enforcement officer
of this land -- lied under oath. He raised his right hand and swore
to tell the truth, the whole truth, and nothing but the truth. Then
he lied. Pure and simple.
Why is perjury such a serious offense? Under the American system of
justice, our courts are charged with seeking the truth. Everyday,
American citizens raise their right hands in courtrooms across the
country and take an oath to tell the truth. Breaking that oath cripples
our justice system. By lying under oath, the President did not just
commit perjury -- an offense punishable under our criminal code --
but he chipped away at the very cornerstone of our judicial system.
The first Chief Justice of the United States Supreme Court, John Jay,
very firmly stated the case against perjury. On June 25, 1792, in
a Charge to the Grand Jury of the Circuit Court for the District of
Vermont, the Chief Justice said:
"Independent of the abominable Insult which Perjury offers to the
divine Being, there is no Crime more extensively pernicious to Society.
It discolours and poisons the Streams of Justice, and by substituting
Falsehood for Truth, saps the Foundations of personal and public Rights
-- Controversies of various kinds exist at all Times, and in all Communities.
To decide them, Courts of Justice are instituted -- their Decisions
must be regulated by Evidence, and the greater part of Evidence will
always consist of the Testimony of witnesses. This Testimony is given
under those solemn obligations which an appeal to the God of Truth
impose; and if oaths should cease to be held sacred, our dearest and
most valuable Rights would become insecure."
Why has the President been impeached by the United States House of
Representatives? Why is he on trial here today in the United States
Senate? Because he lied under oath. Because he committed perjury.
Because, if oaths cease to be held sacred, our dearest and most valuable
rights will become insecure.
During the course of this trial, members of this distinguished body
-- the jurors in this case -- will have to consider the law and the
facts very carefully. It is a daunting task and an awesome responsibility
-- one that cannot be taken lightly.
I would humbly suggest to those sitting in judgement of the President
that we must all weigh the impact of our actions not only on our beloved
nation today but on American history. It is my belief that if the
actions of the President are ultimately disregarded or minimized,
we will be sending a sorry message to the American people that the
President of the United States is above the law. We will be sending
a message to our children, to my children, that telling the truth
doesn't really matter if you've got a good lawyer or are an exceptionally
skilled liar. That would be tragic.
Mr. Chief Justice, Senators, let us instead send a message to the
American people and to the boys and girls who will be studying American
history in the years to come that no person is above the law and that
this great nation remains an entity governed by the rule of law. Let
us do what is right. Let us do what is just.
1. Kungys v. United States, 485 U.S. 759 (1988)
2. Bronston v. United States, 409
U.S. 352 (1973)
3. United States v. DeZarn, 157
F.3d 1042 (6th Circuit, 1998)
4. United States v. Swindall, 971
F.2d 1531 (11th Cir. 1992)
5. United States v. Doherty, 867
F.2d 47 (1st Cir. 1989)
6. American Surety Co. v. Sullivan,
7 F.2d 605 (2d. Cir. 1925)
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