Excerpts from the White House Trial Memorandum Filed With the Senate

These are excerpts from the White House Trial Memorandum, as filed with the Senate.

The memorandum forms part of the White House’s response to the articles of impeachment against President Bill Clinton.

White House Memorandum excerpts, as filed with the Senate.

Twenty-six months ago, more than 90 million Americans left their homes and workplaces to travel to schools, church halls and other civic centers to elect a President of the United States. And on Jan. 20, 1997, William Jefferson Clinton was sworn in to serve a second term of office for four years.

The Senate, in receipt of articles of impeachment from the House of Representatives, is now gathered in trial to consider whether that decision should be set aside for the remaining two years of the President’s term. It is a power contemplated and authorized by the framers of the Constitution, but never before employed in our nation’s history. The gravity of what is at stake — the democratic choice of the American people — and the solemnity of the proceedings dictate that a decision to remove the President from office should follow only from the most serious of circumstances and should be done in conformity with constitutional standards and in the interest of the nation and its people.

The articles of impeachment that have been exhibited to the Senate fall far short of what the founding fathers had in mind when they placed in the hands of the Congress the power to impeach and remove a President from office. They fall far short of what the American people demand be shown and proven before their democratic choice is reversed. And they even fall far short of what a prudent prosecutor would require before presenting a case to a judge or jury.

Take away the elaborate trappings of the articles and the high-flying rhetoric that has accompanied them, and we see clearly that the House of Representatives asks the Senate to remove the President from office because he:

• used the phrase “certain occasions” to describe the frequency of his improper intimate contacts with Ms. Monica Lewinsky. There were, according to the House managers, 11 such contacts over the course of approximately 500 days.

Should the will of the people be overruled and the President of the United States be removed from office because he used the phrase “certain occasions” to describe 11 events over some 500 days? That is what the House of Representatives asks the Senate to do.

• used the word “occasional” to describe the frequency of inappropriate telephone conversations between him and Monica Lewinsky. According to Ms. Lewinsky, the President and Ms. Lewinsky engaged in between 10 and 15 such conversations spanning a 23-month period.

Should the will of the people be overruled and the President of the United States be removed from office because he used the word “occasional” to describe up to 15 telephone calls over a 23-month period? That is what the House of Representatives asks the Senate to do.

• said the improper relationship with Ms. Lewinsky began in early 1996, while she recalls that it began in November 1995. And he said the contact did not include touching certain parts of her body, while she said it did.

Should the will of the people be overruled and the President of the United States be removed from office because two people have a different recollection of the details of a wrongful relationship — which the President has admitted? That is what the House of Representatives asks the Senate to do.

The articles of impeachment are not limited to the examples cited above, but the other allegations of wrongdoing are similarly unconvincing. There is the charge that the President unlawfully obstructed justice by allegedly trying to find a job for Monica Lewinsky in exchange for her silence about their relationship. This charge is made despite the fact that no one involved in the effort to find work for Ms. Lewinsky — including Ms. Lewinsky herself — testifies that there was any connection between the job search and the affidavit. Indeed, the basis for that allegation, Ms. Lewinsky’s statements to Ms. Tripp, was expressly repudiated by Ms. Lewinsky under oath.

There is also the charge that the President conspired to obstruct justice by arranging for Ms. Lewinsky to hide gifts that he had given her, even though the facts and the testimony contain no evidence that he did so. In fact, the evidence shows that the President gave her new gifts on the very day that the articles allege he conspired to conceal his gifts to her.

In the final analysis, the House is asking the Senate to remove the President because he had a wrongful relationship and sought to keep the existence of that relationship private.

Nothing said in this trial memorandum is intended to excuse the President’s actions. By his own admission, he is guilty of personal failings. As he has publicly stated, “I don’t think there is a fancy way to say that I have sinned.” He has misled his family, his friends, his staff and the nation about the nature of his relationship with Ms. Lewinsky. He hoped to avoid exposure of personal wrongdoing so as to protect his family and himself and to avoid public embarrassment. He has acknowledged that his actions were wrong.

By the same token, these actions must not be mischaracterized into a wholly groundless excuse for removing the President from the office to which he was twice elected by the American people. The allegations in the articles and the argument in the House managers’ trial memorandum do not begin to satisfy the stringent showing required by our founding fathers to remove a duly elected President from office, either as a matter of fact or law.

There is strong agreement among constitutional and legal scholars and historians that the substance of the articles does not amount to impeachable offenses. On Nov. 6, 1998, 430 Constitutional law professors
wrote:

“Did President Clinton commit ‘high crimes and misdemeanors’ warranting impeachment under the Constitution? We . . . believe that the misconduct alleged in the report of the independent counsel . . . does not cross the threshold. . . [I]t is clear that members of Congress could violate their constitutional responsibilities if they sought to impeach and remove the President for misconduct, even criminal misconduct, that fell short of the high constitutional standard required for impeachment.

On Oct. 28, 1998, more than 400 historians issued a joint statement warning that because impeachment had traditionally been reserved for high crimes and misdemeanors in the exercise of executive power, impeachment of the President based on the facts alleged in the O.I.C. referral would set a dangerous precedent. “If carried forward, they will leave the Presidency permanently disfigured and diminished, at the mercy, as never before, of caprices of any Congress. The Presidency, historically the center of leadership during our great national ordeals, will be crippled in meeting the inevitable challenges of the future.” . . .

Article I alleges perjury before a Federal grand jury. Article II alleges obstruction of justice. Both perjury and obstruction of justice are statutory crimes. In rebutting the allegations contained in the articles of impeachment, this brief refers to the facts as well as to laws, legal principles, court decisions, procedural safeguards and the Constitution itself. Those who seek to remove the President speak of the “rule of law.” Among the most fundamental rules of law are the principles that those who accuse have the burden of proof and those who are accused have the right to defend themselves by relying on the law, established procedures and the Constitution. These principles are not “legalisms” but rather the very essence of the “rule of law” that distinguishes our nation from others. . . .

If there were any doubt that the House of Representatives has utterly failed in its constitutional responsibility to the Senate and to the President, that doubt vanishes upon reading the trial memorandum submitted by the House managers. Having proffered two articles of impeachment, each of which unconstitutionally combines multiple offenses and fails to give even minimally adequate notice of the charges it encompasses, the House — three days before the managers are to open their case — is still expanding, not refining, the scope of those articles. In further violation of the most basic constitutional principles, their brief advances, merely as “examples,” 19 conclusory allegations — 8 of perjury under Article I and 11 of obstruction of justice under Article II, some of which have never appeared before, even in the report submitted by the Judiciary Committee (“Committee Report”), much less in the Office of Independent Counsel (“O.I.C.”) referral or in the articles themselves. If the target the managers present to the Senate and to the President is still moving now, what can the President expect in the coming days? Is there any point at which the President will be given the right accorded a defendant in the most minor criminal case — to know with certainty the charges against which he must defend?

The Senate, we know, fully appreciates these concerns and has, in past proceedings, dealt appropriately with articles far less flawed than these. . . .

ROUTE TO IMPEACHMENT

On Sept. 9, 1998, Mr. Starr transmitted a referral to the House of Representatives that alleged 11 acts by the President related to the Lewinsky matter that, in the opinion of the O.I.C., “may constitute grounds for an impeachment.” The allegations fell into three broad categories: lying under oath, obstruction of justice and abuse of power.

The House Judiciary Committee held a total of four hearings and called but one witness: Kenneth W. Starr. The committee allowed the President’s lawyers two days in which to present a defense. The White House presented four panels of distinguished expert witnesses who testified that the facts, as alleged, did not constitute an impeachable offense, did not reveal an abuse of power, and would not support a case for perjury or obstruction of justice that any reasonable prosecutor would bring. White House counsel Charles F. C. Ruff presented argument to the committee on behalf of the President, which is incorporated into this trial memorandum by reference.

On Dec. 11 and 12, the Judiciary Committee voted essentially along party lines to approve four articles of impeachment. Republicans defeated the alternative resolution of censure offered by certain committee Democrats. Almost immediately after censure failed in the committee, the House Republican leadership declared publicly that no censure proposal would be considered by the full House when it considered the articles of impeachment.

On Dec. 19, 1998, voting essentially on party lines, the House of Representatives approved two articles of impeachment: Article I, which alleged perjury before the grand jury, passed by a vote of 228 to 206, and Article III, which alleged obstruction of justice, passed by a vote of 221 to 212. The full House defeated two other articles: Article II, which alleged that the President committed perjury in his civil deposition and Article IV, which alleged abuse of power. Consideration of a censure resolution was blocked, even though members of both parties had expressed a desire to vote on such an option.

From beginning to end the House process was both partisan and unfair.

Consider:

• The House released the entire O.I.C. referral to the public without ever reading it, reviewing it, editing it or allowing the President’s counsel to review it;

• The chairman of the House of Judiciary Committee said he had “no interest in not working in a bipartisan way”;

• The chairman also pledged a process the American people would conclude was fair;

• The Speaker-designate of the House endorsed a vote of conscience on a motion to censure;

• Members of the House were shown secret “evidence” in order to influence their vote — evidence which the President’s counsel still has not been able to review.

It is the solemn duty of the Senate to consider the question whether the articles state an impeachable offense. That Constitutional question has not, in the words of one House manager, “already been resolved by the House.” To the contrary, that question now awaits the Senate’s measured consideration and independent judgment. Indeed, throughout our history, resolving this question has been an essential part of the Senate’s constitutional obligation to “try all Impeachments.” . . .

We respectfully suggest that the articles exhibited here do not state wrongdoing that constitutes impeachable offenses under our Constitution.

IMPEACHMENT STANDARD

The Constitution provides that the President shall be removed from office only upon “impeachment for, and conviction of, treason, bribery or other high crimes and misdemeanors.” The charges fail to meet the high standard that the framers established.

The syntax of the constitutional standard “treason, bribery or other high crimes and misdemeanors” strongly suggests, by the interpretive principle noscitur a sociis, that, to be impeachable offenses, high crimes and misdemeanors must be of the seriousness of “treason” and “bribery.”

Our constitutional structure reaffirms that the standard must be a very high one. Ours is a Constitution of separated powers. In that Constitution, the President does not serve at the will of Congress, but as the directly elected, solitary head of the executive branch. The Constitution reflects a judgment that a strong executive, executing the law independently of legislative will, is a necessary protection for a free people.

These elementary facts of constitutional structure underscore the need for a very high standard for impeachment. The House managers, in their brief, suggest that the failure to remove the President would raise the standard for impeachment higher than the framers intended. They say that if the Senate does not remove the President, “The bar will be so high that only a convicted felon or a traitor will need to be concerned.” But that standard is just a modified version of the plain language of Article II, Section 4 of the Constitution, which says a President can only be impeached and removed for “treason, bribery, or other high crimes and misdemeanors.” The framers wanted a high bar. It was not the intention of the framers that the President should be subject to the will of the dominant legislative party. As Alexander Hamilton said in a warning against the politicization of impeachment: “There will always be the greatest danger that the decision will be regulated more by comparative strength of parties than by the real demonstrations of innocence or guilt.” Our system of Government does not permit Congress to unseat the President merely because it disagrees with his behavior or his policies. The framers’ decisive rejection of parliamentary government is one reason they caused the phrase “treason, bribery or other high crimes and misdemeanors” to appear in the Constitution itself. They chose to specify those categories of offenses subject to the impeachment power, rather than leave that judgment to the unfettered whim of the legislature.

Any just and proper impeachment process must be reasonably viewed by the public as arising from one of those rare cases when the legislature is compelled to stand in for all the people and remove a President whose continuation in office threatens grave harm to the republic. Indeed, it is not exaggeration to say — as a group of more than 400 leading historians and constitutional scholars publicly stated — that removal on these articles would “mangle the system of checks and balances that is our chief safeguard against abuses of public power.” Removal of the President on these grounds would defy the constitutional presumption that the removal power rests with the people in elections, and it would do incalculable damage to the institution of the Presidency. If “successful,” removal here “will leave the Presidency permanently disfigured and diminished, at the mercy as never before of the caprices of any Congress.”

The framers made the President the sole nationally elected public official (together with the Vice President), responsible to all the people. Therefore, when articles of impeachment have been exhibited, the Senate confronts this inescapable question: is the alleged misconduct so profoundly serious, so malevolent to our Constitutional system, that it justifies undoing the people’s decision? Is the wrong alleged of a sort that not only demands removal of the President before the ordinary electoral cycle can do its work, but also justifies the national trauma that accompanies the impeachment trial process itself? The wrongdoing alleged here does not remotely meet that standard.

“[H]igh crimes and misdemeanors” refers to nothing short of Presidential actions that are “great and dangerous offenses” or “attempts to subvert the Constitution.” Impeachment was never intended to be a remedy for private wrongs. It was intended to be a method of removing a President whose continued presence in the office would cause grave danger to the nation and our constitutional system of government. Thus, “in all but the most extreme instances, impeachment should be limited to abuse of public office, not private misconduct unrelated to public office.” . . .

Because impeachment of a President nullifies the popular will of the people, as evidenced by an election, it must be used with great circumspection. As applicable precedents establish, it should not be used to punish private misconduct. . . .

The House managers suggest that perjury per se is an impeachable offense because (1) several Federal judges have been impeached and removed for perjury, and (2) those precedents control this case.

That notion is erroneous. It is blind both to the qualitative differences among different allegations of perjury and the very basic differences between Federal judges and the President.

First, the impeachment and removal of a Federal judge, while a very solemn task, implicates very different considerations than the impeachment of a President. Federal judges are appointed without public approval and enjoy life tenure without public accountability. Consequently, they hold their offices under our Constitution only “during good behavior.” Under our system, impeachment is the only way to remove a Federal judge from office — even a Federal judge sitting in jail. By contrast, a President is elected by the nation to a term, limited to a specified number of years, and he faces accountability in the form of elections.

Second, whether an allegedly perjurious statement rises to the level of an impeachable offense depends necessarily on the particulars of that statement, and the relation of those statements to the fulfillment of official responsibilities. In the impeachment of Judge Harry Claiborne, the accused had been convicted of filing false income tax returns. As a judge, Claiborne was charged with the responsibility of hearing tax-evasion cases. Once convicted, he simply could not perform his official functions because his personal probity had been impaired such that he could not longer be an arbiter of others’ oaths. His wrongdoing bore a direct connection to the performance of his judicial tasks. The inquiry into President Nixon disclosed similar wrongdoing, but the House Judiciary Committee refused to approve an article of impeachment against the President on that basis. The case of Judge Walter Nixon is similar. He was convicted of making perjurious statements concerning his intervention in a judicial proceeding, which is to say, employing the power and prestige of his office to obtain advantage for a party. Although the proceeding at issue was not in his court, his use of the judicial office for the private gain of a party to a judicial proceeding directly implicated his official functions. Finally, Judge Alcee Hastings was impeached and removed for making perjurious statements at his trial for conspiring to fix cases in his own court. As with Judges Claiborne and Nixon, Judge Hastings’ perjurious statements were immediately and incurably detrimental to the performance of his official duties. The allegations against the President, which (as the managers acknowledge) “do not directly involve his official conduct,” simply do not involve wrongdoing of gravity sufficient to foreclose effective performance of the Presidential office.

. . .

STANDARD OF PROOF

Beyond the question of what constitutes an impeachable offense, each Senator must confront the question of what standard the evidence must meet to justify a vote of “guilty.” The Senate has, of course, addressed this issue before — most recently in the trials of Judge Claiborne and Judge Hastings. We recognize that the Senate chose in the Claiborne proceedings, and reaffirmed in the Hastings trial, not to impose on itself any single standard of proof but, rather, to leave that judgment to the conscience of each senator. Many senators here today were present for the debate on this issue and chose a standard by which to test the evidence. For many senators, however, the issue is a new one. And none previously has had to face the issue in the special context of a Presidential impeachment.

We argued before the House Judiciary Committee that it must treat a vote to impeach as, in effect, a vote to remove the President from office and that a decision of such moment ought not to be based on anything less than “clear and convincing” evidence. That standard is higher than the “preponderance of the evidence” test applicable to the ordinary civil case but lower than the beyond a reasonable doubt test applicable to a criminal case. Nonetheless, we felt that the clear and convincing standard was consistent with the grave responsibility of triggering a process that might result in the removal of a president. In fact, it had been the standard agreed upon by both Watergate Committee majority and minority counsel (as well as counsel for President Nixon) 24 years ago.

Certainly no lesser standard should be applied in the Senate. Indeed, we submit that the gravity of the decision the Senate must reach should lead each Senator to go further and ask whether the House has established guilt beyond a reasonable doubt.

Both lawyers and laymen too often treat the standard of proof as meaningless legal jargon with no application to the real world of difficult decisions. But it is much more than that. In our system of justice, it is the guidepost that shows the way through the labyrinth of conflicting evidence. It tells the fact finder to look within and ask: “Would I make the most important decisions of my life based on the degree of certainty I have about these facts?” In the unique legal-political setting of an impeachment trial, it protects against partisan overreaching, and it assures the public that this grave decision has been made with care. In sum, it is a disciplining force to carry into the deliberations.

This point is given added weight by the language of the Constitution. Article I, section 3, clause 6 of the United States Constitution gives to the Senate “the power to try all Impeachments.

. . . and no person shall be convicted without the concurrence of two-thirds of the members present.” (Emphasis added.) Use of the words “try” and “convicted” strongly suggests that an impeachment trial is akin to a criminal proceeding and that the beyond-a-reasonable-doubt standard of criminal proceedings should be used. This position was enunciated in the minority views contained in the report of the House Judiciary Committee on the impeachment proceedings against President Nixon and has been espoused as the correct standard by such Senators as Robert Taft Jr., Sam Ervin, Strom Thurmond and John Stennis.

Even if the clear and convincing standard nonetheless is appropriate for judicial impeachments, it does not follow that it should be applied where the Presidency itself is at stake. With judges, the Senate must balance its concern for the independence of the judiciary against the recognition that, because judges hold life-time tenure, impeachment is the only available means to protect the public against those who are corrupt. On the other hand, when a President is on trial, the balance to be struck is quite different. Here the Senate is asked, in effect, to overturn the results of an election held two years ago in which the American people selected the head of one of the three coordinate branches of government. It is asked to take this action in circumstances where there is no suggestion of corruption or misuse of office — or any other conduct that places our system of government at risk in the two remaining years of the President’s term, when once again the people will judge who they wish to lead them. In this setting, the evidence should be tested by the most stringent standard we know — proof beyond a reasonable doubt. Only then can the American people be confident that this most serious of constitutional decisions has been given the careful consideration it deserves. . .

RESPONSE TO ARTICLE I

The President testified truthfully before the grand jury. There must be no mistake about what the President said. He admitted to the grand jury that he had engaged in an inappropriate intimate relationship with Ms. Lewinsky over a period of many months. He admitted to the grand jury that he had been alone with Ms. Lewinsky. He admitted to the grand jury that he had misled his family, his friends and staff, and the entire Nation about the nature of that relationship. No one who heard the President’s Aug. 17 speech or watched the President’s videotaped grand jury testimony had any doubt that he had admitted to an ongoing physical relationship with Ms. Lewinsky. . . .

• The President denies that he made materially false or misleading statements to the grand jury about “the nature and details of his relationship” with Monica Lewinsky. Early in his grand jury testimony, the President specifically acknowledged that he had had a relationship with Ms. Lewinsky that involved “improper intimate contact.” . . .

• The President denies that he made perjurious, false and misleading statements to the grand jury about testimony he gave in the Jones case.

. . .

• The President denies that he made perjurious, false and misleading statements to the grand jury about the statements of his attorney to Judge Wright during the Jones deposition.

. . .

• The President denies that he made perjurious, false and misleading statements to the grand jury when he denied attempting “to influence the testimony of witnesses and to impede the discovery of evidence” in the Jones case.

. . .

These allegations were not even included in the summary of the Starr evidence presented to the committee on Oct. 5, 1998, by House majority counsel Schippers. They are nothing more than an effort to inflate the perjury allegations by converting every statement that the President made about the subject matter of Article II into a new count for perjury.

. . .

REPLY TO ARTICLE II

The evidence does not support the allegations of Article II. . . .

• The President denies that on or about Dec. 17, 1997, he “corruptly encouraged” Monica Lewinsky “to execute a sworn affidavit in that proceeding that he knew to be perjurious, false and misleading.” . . .

• Article II (2) alleges that the President encouraged Ms. Lewinsky to give false testimony if and when she was called to testify personally in the Jones litigation. Again, Ms. Lewinsky repeatedly denied that anyone told her or encouraged her to lie. . . .

• It creates the erroneous impression that the President gave Ms. Lewinsky instructions to conceal the gifts in the Dec. 28 meeting by quoting her testimony that “from everything he said to me” she would conceal the gifts. But we know that Ms. Lewinsky has repeatedly testified that no such discussion ever occurred. Her reliance on “everything he said to me” must, therefore, reflect her own plan to implement discussions the two had had about concealing the relationship long before her role in the Jones litigation.

What this passage confirms is that Ms. Lewinsky had very much in her mind that she would do what she could to conceal the relationship — a modus operandi she herself acknowledged well pre-dated the Jones litigation. That she took such steps does not mean that the President knew of or participated in them. Indeed, it appears that the entire gift-concealment plan arose not from any plan suggested by the President — which the committee report so desperately struggles to maintain — but rather more innocently from the actions of a young woman taking steps she thought were best. . . .

• The President denies that he obstructed justice in connection with Monica Lewinsky’s efforts to obtain a job in New York in an effort to “corruptly prevent” her “truthful testimony” in the Jones case. . . .

• The President denies that he “corruptly allowed his attorney to make false and misleading statements to a Federal judge” concerning Monica Lewinsky’s affidavit. . . .

• The President denies that he obstructed justice by relating “false and misleading statements” to “a potential witness,” Betty Currie, “in order to corruptly influence testimony.” . . .

• This final allegation of Article II should be rejected out of hand. The President has admitted misleading his family, his staff, and the Nation about his relationship with Ms. Lewinsky, and he has expressed his profound regret for such conduct. But this Article asserts that the President should be impeached and removed from office because he failed to be candid with his friends and aides about the nature of his relationship with Ms. Lewinsky. These allegedly impeachable denials took place in the immediate aftermath of the Lewinsky publicity — at the very time the President was denying any improper relationship with Ms. Lewinsky in nearly identical terms on national television. Having made this announcement to the whole country on television, it is simply absurd to believe that he was somehow attempting corruptly to influence the testimony of aides when he told them virtually the same thing at the same time. . . .

NO VOTE OF CONFIDENCE

An American impeachment trial is not a parliamentary inquiry into fitness for office. It is not a vote of no confidence. It is not a mechanism whereby a legislative majority may oust a President from a rival party on political grounds. To the contrary, because the President has a limited term of office and can be turned out in the course of ordinary electoral processes, a Presidential impeachment trial is a constitutional measure of last resort designed to protect the republic.

This Senate is therefore vested with an extremely grave constitutional task: a decision whether to remove the President for the protection of the people themselves. In the Senate’s hands there rests not only the fate of one man, but the integrity of our Constitution and our democratic process.

Fidelity to the Constitution and fidelity to the electorate must converge in the impeachment trial vote. If the Senate is to give meaning to the Constitution’s command, any vote on removal must be a vote on one or more specifically and separately identified “high crimes and misdemeanors,” as set forth in properly drafted impeachment articles approved by the House. If the people are to have their twice-elected President removed by an act of the Senate, that act must be intelligible. It must be explainable and justifiable to the people who first chose the President and then chose him again. The Senate must insure that it has satisfied the Constitution’s requirement of a genuine two-thirds concurrence that specific, identified wrongdoing has been proven. The Senate must also assure the people, through the sole collective act the Senate is required to take, that its decision has a readily discernible and unequivocal meaning.

As matters stand, the Senate will vote on two highly complex articles of impeachment. Its vote will not be shaped by narrowing instructions. Its rules preclude a vote on divisible parts of the articles. There will be no judicial review, no correction of error, and no possibility of retrial. The Senate’s decision will be as conclusive as any known to our law — judicially, politically, historically and, most literally, irrevocable.

Under such circumstances, the Senate’s judgment must speak clearly and intelligibly. That cannot happen if the Senate votes for conviction on these articles. Their compound structure and lack of specificity make genuine agreement as to specific wrongs impossible, and those factors completely prevent the electorate from understanding why the Senate as a whole voted as it did. As formulated, these articles satisfy neither the plain requirement of the Constitution nor the rightful expectations of the American people. The articles cannot support a constitutionally sound vote for conviction.

NEED FOR DISCOVERY

The Senate need not address the issue of discovery at this time, but because the issue may arise at a later date, it is appropriate to remark here on its present status. Senate Resolution 16 provides that the record for purposes of the presentation by the House managers and the President is the public record established in the House of Representatives. Since this record was created by the House itself and is ostensibly the basis for the House’s impeachment vote, and because this evidence has been publicly identified and available for scrutiny, comment, and rebuttal, it is both logical and fair that this be the basis for any action by the Senate. Moreover, Senate Resolution 16 explicitly prohibits the President and the House managers from filing at this time any “motions to subpoena witnesses or to present any evidence not in the record.”

In the event, however, that the Senate should later decide, pursuant to the provisions of Senate Resolution 16, to allow the House managers to expand the record in some way, our position should be absolutely clear. At such time, the President would have an urgent need for the discovery of relevant evidence, because at no point in these proceedings has he been able to subpoena documents or summon and cross-examine witnesses. He would need to use the compulsory process authorized by Senate Impeachment Rules V and VI to obtain documentary evidence and witness depositions. While the President has access to some of the grand jury transcripts and F.B.I. interview memoranda of witnesses called by the O.I.C., the President’s own lawyers were not entitled to be present when these witnesses were examined. The grand jury has historically been the engine of the prosecution, and it was used in that fashion in this case. The O.I.C. sought discovery of evidence with the single goal of documenting facts that it believed were prejudicial to the President. It did not examine witnesses with a view toward establishing there was no justification for impeachment; it did not follow up obvious leads when they might result in evidence helpful to the President; and it did not seek out and document exculpatory evidence. It did not undertake to disclose exculpatory information it might have identified.

Nor did the House of Representatives afford the President any discovery mechanisms to secure evidence that might be helpful in his defense. Indeed, the House called no fact witnesses at all, and at the few depositions it conducted, counsel for the President were excluded. Moreover, the House made available only a selected portion of the evidence it received from the O.I.C. While it published five volumes of the O.I.C. materials (two volumes of appendices and three volumes of supplements), it withheld a great amount of evidence, and it denied counsel for the President access to this material. It is unclear what the criterion was for selecting evidence to include in the published volumes, but there does not appear to have been an attempt to include all evidence that may have been relevant to the President’s defense. The President has not had access to a great deal of evidence in the possession of (for example) the House of Representatives and the O.I.C. which may be exculpatory or relevant to the credibility of witnesses on whom the O.I.C. and the House managers rely.

Should the Senate decide to authorize the House managers to call witnesses or expand the record, the President would be faced with a critical need for the discovery of evidence useful to his defense — evidence which would routinely be available to any civil litigant involved in a garden-variety automobile accident case. The House Managers have had in their possession or had access at the O.I.C. to significant amounts of nonpublic evidence, and they have frequently stated their intention to make use of such evidence. Obviously, in order to defend against such tactics, counsel for the President are entitled to discovery and a fair opportunity to test the veracity and reliability of this “evidence,” using compulsory process as necessary to obtain testimony and documents. Trial by surprise obviously has no place in the Senate of the United States where the issue in the balance is the removal of the one political leader who, with the Vice President, is elected by all the citizens of this country.

The need for discovery does not turn on the number of witnesses the House managers may be authorized to depose. If the House managers call a single witness, that will initiate a process that leaves the President potentially unprepared and unable to defend adequately without proper discovery. The sequence of discovery is critical. The President first needs to obtain and review relevant documentary evidence not now in his possession. He then needs to be able to depose potentially helpful witnesses, whose identity may only emerge from the documents and from the depositions themselves. Obviously, he also needs to depose potential witnesses identified by the House managers. Only at that point will the President be able intelligently to designate his own trial witnesses. This is both a logical procedure and one which is the product of long experience designed to maximize the search for truth and minimize unfair surprise. There is no conceivable reason it should not be followed here — if the evidentiary record is opened.

Indeed, it is simply impossible to ascertain how a witness designated by the House Managers could fairly be rebutted without a full examination of the available evidence. It is also the case that many sorts of helpful evidence and testimony emerge in the discovery process that may at first blush appear irrelevant or tangential. In any event, the normal adversarial process is the best guarantor of the truth. The President needs discovery here not simply to obtain evidence to present at trial but also in order to make an informed judgment about what to introduce in response to the managers’ expanded case. The President’s counsel must be able to make a properly knowledgeable decision about what evidence may be relevant and helpful to the President’s defense, both in cross-examination and during the President’s own case.

The consequences of an impeachment trial are immeasurably grave: the removal of a twice-elected President. Particularly given what is at stake, fundamental fairness dictates that the President be given at least the same right as an ordinary litigant to obtain evidence necessary for his defense, particularly when a great deal of that evidence is presently in the hands of his accusers, the O.I.C. and the House managers. The Senate has wisely elected to proceed on the public record established by the House of Representatives, and this provides a wholly adequate basis for Senate decision-making. In the event the Senate should choose to expand this record, affording the President adequate discovery is absolutely essential.

CONCLUSION

As the Senate considers these articles of impeachment and listens to the arguments, individual senators are standing in the place of the framers of the Constitution, who prayed that the power of impeachment and removal of a President would be invoked only in the gravest of circumstances, when the stability of our system of government hung in the balance — to protect the republic itself from efforts to subvert our Constitutional system.

The Senate has an obligation to turn away an unwise and unwarranted misuse of the awesome power of impeachment. If the Senate removes this President for a wrongful relationship he hoped to keep private, for what will the House ask the Senate to remove the next President, and the next? Our framers wisely gave us a constitutional system of checks and balances, with three coequal branches. Removing this President on these facts would substantially alter the delicate constitutional balance, and move us closer to a quasi-parliamentary system, in which the President is elected to office by the choice of the people, but continues in office only at the pleasure of Congress.

In weighing the evidence and assessing the facts, we ask that senators consider not only the intent of the framers but also the will and interests of the people. It is the citizens of these United States who will be affected by and stand in judgment of this process. It is not simply the President — but the vote the American people rendered in schools, church halls and other civic centers all across the land twenty-six months ago — that is hanging in the balance.