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William Weld Proposes Five-Point Alternative To Impeachment

The former Republican Governor of Massachusetts, William Weld, proposed a five-point alternative to impeachment when he appeared before the House Judiciary Committee.

Text of testimony by former Massachusetts Gov. William Weld before the House Judiciary Committee, as transcribed by the Federal Document Clearing House.

Mr. Chairman, Mr. Ranking Member, members of the committee, my name is William Weld, and I’m sincerely honored to appear before you this morning.

I’m no Tom Sullivan, but I have knocked around the criminal justice world a little bit. From 1986 to 1988 under President Reagan, I was the assistant attorney general in charge of the criminal division in Washington, which is relevant because that’s the policy or political appointment charged with ensuring the uniformity of charging decisions, decisions whether to seek an indictment around the country in various districts.

Prior to that, for five years I was the United States attorney in Massachusetts.

And I became familiar in the course of that seven years with the handbook “The Principles of Federal Prosecution” and with the United States attorney’s manual, and when I was in Washington, with the practices and procedures that also have been developed over the years to try to ensure uniformity in charging decisions.

It so happens that in 1974 for nine months I also worked for this committee under Chairman Rodino on the impeachment inquiry into President Nixon, and I worked on the constitutional and legal unit there, which was charged with reading every precedent in Britton, in Heinz, in Cannon, in reported cases in the records of the 1787 debate on the Constitution having any relevance at all to what high crimes and misdemeanors means in the United States Constitution.

Like Mr. Sullivan, like many others, I do not consider myself an advocate here before you. I do have a couple of points of view that I would like to share with the members of the committee, and you can take them for what they’re worth. Ordinarily, in a civil context, you don’t qualify as an expert on the basis of nine months of experience, but for whatever they’re worth.

I do believe, Mr. Chairman, that under the Reagan administration it was not the policy of the U.S. Justice Department to seek indictments solely on the basis that a prospective defendant had committed adultery or fornication, which are not lawful, but it simply wasn’t the policy to go there. It was also not the policy to seek an indictment based solely on evidence that a prospective defendant had falsely denied committing unlawful adultery or fornication.

Let me say a little bit about perjury cases. I don’t think they’re all that rare, and I’ve prosecuted a lot of them. But I do think that what one or two of the witnesses said is true. There’s usually something else involved in a federal perjury prosecution. There’s a pass-through aspect here; you’re really going to something else.

I once prosecuted a guy who stated that he was in Florida on Nov. 28 and 29, 1981. You may say that’s kind of, you know, stooping to pick up pins, why would you prosecute him for that. Well, that was the day the city of Lynn, Mass., burned down, and this guy was an arsonist and three people made him in the Port Hole Pub in Lynn, Mass., that day, so … and we found his fingerprints on the ticket to Florida the next day after the fire. So we thought it would be good idea to bring a perjury prosecution there to rattle the cage a little bit, and we did.

And often we brought them where we were trying to penetrate a wall of silence, as in cases of public corruption or narcotics, when you’re trying to break through this omerta, ‘everyone’s got to dummy-up’ phenomenon. But there is something else that you’re trying to get at there.

Until this year, the policy of the Department of Justice was that, in cases of false statements, they would not seek an indictment solely on the basis of somebody denying that they themselves had committed misconduct. This is called the “exculpatory no” doctrine, and it was adopted in a lot of circuits. It was kicked out by the Supreme Court in a decision by Justice Scalia early this year based on bad facts.

You had a ranking union official who had taken money from employers in violation of an independent federal statute. So that’s the something else that the prosecution was trying to get at. So a very unsympathetic case for the court applying the “exculpatory no” doctrine.

In my view, it would have been a handy idea to carve out an exception to the abrogation of that doctrine for cases involving personal misconduct as opposed to a violation of an independent federal statute such as was involved there.

Certainly, a responsible prosecutor could apply that filter in the exercise of his or her discretion.

The last thing I’d like to say on the law of impeachment. I am pretty well convinced that adultery, fornication or even a false denial — false, I’m assuming perjury here — false denial of adultery or fornication — they do not constitute high crimes and misdemeanors within the meaning of the impeachment clause of the U.S. Constitution.

There are not offenses against the system of government. They don’t imperil the structure of our government. The remedy of impeachment is to remove the officeholder, get the worm out of the apple. It’s a prophylactic — prophylactic remedy. It is not punitive.

If any of you are thinking — ‘we’ve got to vote yes on impeachment to tarnish the president’ — he’s already tarnished. And that’s really not the purpose of the impeachment mechanism. Nobody is going to forget this stuff. And this is a man who has been elected president of the United States twice, and thus entitled to this office — after allegations very similar to those now before you.

I hate to open old wounds, but you remember back to 1992, and the Gennifer Flowers matter. If there are two people in a room and they both deny that something happened, then you can’t prove that it happened. Well, that’s very similar to what we’re talking about here. And this officeholder was elected president of the United States twice after all those facts were before the people.

So I come out thinking that the most appropriate result is something other than removing this person from his office, taking his office away from him.

There’s a lot of talk about censure. I think personally, the dignity of Congress and the dignity of the country demands something more than merely censure, here. And I would suggest, in conclusion, Mr. Chairman, four things that you might want to think about in addition to censure.

No. 1, it’s not unknown for grand juries investigating corruption in a city or a county, for example, to issue a written detailed report of their findings. That could easily be done here. It would be entirely proper.

No. 2, there could be a written acknowledgment of wrongdoing on the part of the president. And for reasons which will become evident in a moment, I would not propose that there be insistence on the use of the word “lie” or “perjury” there. But it’s something that could be negotiated to reflect the gravity of what he has done.

No. 3, there could be an agreement to pay a fine. This is something tangible — more tangible than censure — and it involves the respondent, as well as the moving party, the moving party here being the House. And that would mark the moment. That would mark the solemnity of the occasion. And the agreement would remove any doubt about somebody going to court and saying there’s no basis for this. It would be thrown out on the basis of political question doctrine anyway, I think.

I’m not here to say what the fine should be, but if memory serves, Speaker Gingrich had to pay quite a large fine not so long ago because people didn’t like either the content or the marketing of a college course that he taught. The members might wish to consider providing that the fine could not be paid out of the proceeds of a legal defense fund, given all the background circumstances.

Finally, what I am proposing — the final element would be that the president would have to take his chances with respect to the criminal justice process past his presidency. I do not agree with those in the media who say that any deal on censure has to protect the president against criminal proceedings after he leaves office.

First of all, there doesn’t have to be any deal on censure. That’s entirely within your power. The White House has no leverage there.

Second, the Constitution explicitly says that, even if a president or anybody is impeached, convicted and removed from office, they remain liable to trial and indictment. It’s very explicit; it’s right in the Constitution.

If the objection is that the spectacle of a former president being prosecuted would be tawdry and degrading, it really couldn’t be much more tawdry and degrading than what we’ve already been subjected to through the constant daily reports of the Lewinsky affair.

Lastly, I agree with everyone who has spoken before about whether a perjury prosecution here really lies. I think there’s quite a low risk of that from the point of view of the president.

So that’s the suggestion — it’s a political suggestion, but this is in part a political process — about a five-part deal, if you will. And I think the dignity of the House would be upheld if something like that were to be approached and everybody could perhaps get on more easily with attending to the public’s business.

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Malcolm Farnsworth
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