This is Steve Buyer’s statement on constitutional law in the Senate impeachment trial of President Bill Clinton.
Buyer, a Republican congressman from Indiana, was one of the House Managers appointed to argue the case against Clinton in the Senate trial.
Steve Buyer’s Statement on Constitutional Law.
REP. STEVE BUYER (R-Indiana): I am Steve Buyer, a House manager from the 5th District of Indiana.
I want to thank all of you for your attention the past several days. It has not been — it has not been easy for the House managers to argue from a dry record. I ask for your patience. The House managers are prepared to call witnesses and offer developed evidence as the trial proceeds.
This morning, the managers on the part of the House are going to present why the offenses you have been hearing over the course of the last several days require the president’s removal from office. I will discuss why the offenses attack the judicial system, which is a core function of the government, and how perjury and obstruction of justice are not private acts, these are public crimes and therefore quintessential impeachable offenses.
For the president’s premeditated assault on the administration of justice must be interpreted as a threat to our system of government. I will be followed by Mr. Manager Graham of South Carolina who will discuss the precedence in impeachment cases. And then he will be followed by Mr. Manager Canady. He will discuss how the felonies constitute high crimes and misdemeanors as envisioned by the founding fathers and why they warrant his removal from office.
While this is day three of our presentation, it is important for the Senate to be fully informed as to the facts, the law and the consequences. Please indulge me for a quick reiteration of the facts.
On May 27th, 1997, nine Justices of the Supreme Court of the United States unanimously ruled that Mrs. Jones could pursue her federal civil rights actions against William Jefferson Clinton. On December 11th, 1997, United States District Court Judge Susan Webber Wright ordered President Clinton to provide Mrs. Jones with answers to certain routine questions relevant to the lawsuit.
Acting under the authority of these court orders, Mrs. Jones exercised her rights, rights every litigant has under our system of justice. She sought answers from President Clinton to help prove her case against him, just as President Clinton sought and received answers from her.
President Clinton used numerous means then to prevent her from getting truthful answers.
On December 17, 1997, President Clinton encouraged a witness to file a false affidavit in the case and to testify falsely if she were called to testify in this case. Why? Because her truthful testimony would have helped Mrs. Jones and hurt his case.
On December 23, 1997 he provided under oath false written answers to Mrs. Jones’ questions. On December 18, 1997 President Clinton began an effort to get the witnesses to conceal evidence that would have helped Mrs. Jones.
Throughout this period, he intensified efforts to provide the witness with help in getting a job to ensure that she carried out his designs.
On January 17, 1998, President Clinton provided under oath numerous false answers to Mrs. Jones’ questions during that deposition in the civil case.
In the days immediately following the deposition, President Clinton provided a false and misleading account to another witness — his secretary, Betty Currie — in hopes that she would substantiate the false testimony he gave in the deposition.
All of these unlawful actions denied Mrs. Jones her rights as a litigant, subverted the fundamental truth-seeking function of the United States District Court for the Eastern District of Arkansas and violated President Clinton’s constitutional oath to preserve, protect and defend the Constitution of the United States.
And further, it violated his constitutional duty to take care that the laws be faithfully executed.
Beginning shortly after his deposition, President Clinton became aware that the federal grand jury empaneled by the United States District Court for the District of Columbia was investigating his unlawful actions before and during his civil deposition — was the scope of inquiry.
President Clinton make numerous false statements to potential grand jury witnesses in hopes that they would repeat these statements to the grand jury.
On August 17, 1998, President Clinton appeared before the grand jury by video under oath and he provided numerous false answers to questions asked. These actions impeded the grand jury’s investigation, it subverted the fundamental truth-seeking function of the United States District Court for the District of Columbia, and they also violated President Clinton’s constitutional oath to preserve, protect and defend the Constitution of the United States and his constitutional duty as the chief executive officer to take care that the laws be faithfully executed.
Now, you will hear next week, perhaps from the president’s lawyers, that the offenses charged by the House are not impeachable. In other words, that even if the allegations as set forth in the articles of impeachment are true, so what?
You see, the House managers have began to refer this to as the “so what?” defense. I’m not offended by the “so what?” defense, because if that’s all you have, then try it.
You see, there are only a few basic ways that you can actually defend a case. You can defend the case on the facts. You can defend the case on the law. You can defend the case on the facts and the law.
Now here, we hear — in this case, we hear very often that the facts are indefensible. And you also hear that if you’re not going to call witnesses on the facts, then I guess you better argue on the law. So what is the argument on the law.
What you do then in defending of a case if you argue procedure. You attack the prosecutor. You attempt to confuse those who sit in judgment on the laws so you don’t follow your precedent. You go out and obtain from your political allies and friends in the academic world to sign a letter saying that the offenses as alleged in the Articles of Impeachment do not rise to the level of an impeachable offense.
You see, this rise to the level has somehow become the legal cliche of this case. You’ve all so often heard it, and some of you have even spoken it.
You see the House Managers chose not to go out into the academic world and obtain signatures on our own letter that would have said “why the offenses are impeachable.” And then we would have had this war of dueling academics. They have a letter of 400 signatures. We get a letter of 400 signatures. They add 500 to it, now they have 900. We go out and get 1000. We chose not to do that.
Do you know why? Because the House Managers have the precedence of the Senate on our side. We have the precedence of the Senate.
Mr. Manager Graham will discuss those precedents.
Now if I’m prosecuting a defendant of perjury, and obstruction of justice in White County superior court before a Judge Merslak (ph) in Monticello, Indiana.
And I had this perjury and obstruction of justice case on a Thursday. And I know that the judge has three other cases. He’s got a case on Monday, he’s got a case on Tuesday, and he’s got a case on Wednesday. So I’m watching what the judge is going to do because I’m curious with regard to the precedent.
So on Monday of that week, Judge Murzelak (ph) tries a case of a public official for perjury, and I watch what he does. And he convicts him for perjury.
On Tuesday, he tries a public official for obstruction of justice, and he convicts him.
On Wednesday, Judge Murzelak (ph) tries a public official for grand jury perjury, and he convicts him.
My case now comes up on Thursday for a public official for obstruction of justice and grand jury perjury and perjury on top of perjury. I would say that based on the precedents, that it’s not looking good for the defendant that I’m about to prosecute.
Now, the White House lawyers are hoping that those of you who have voted, those of you in this chamber that have voted to remove federal judges for similar offenses in the past, that you have a feigned memory.
And if you don’t have a feigned memory, then we’ll try to confuse you. They’ll attempt to confuse you on the law.
So when I hear the so what, well, it is the position of the House that what the president did does matter, that by his actions, the president did commit high crimes and misdemeanors. The House is prepared to establish that President William Jefferson Clinton willfully and repeatedly violated the rule of law and abused the trust placed upon him by the American people.
Now let me address how the offenses charged in the Articles of Impeachment attack the judicial system. The offenses as charged in the Articles of Impeachment against our system of government are the core of the concept of high crimes and misdemeanors. You see, perjury and obstruction of justice are, therefore, quintessential impeachable offenses.
Indeed, it is precisely their public nature that makes them offenses.
Acts that are not crimes when committed outside the judicial realm become crimes when they enter the judicial realm. Lying to one’s spouse about an extra-marital affair is not a crime, it is a public matter. Excuse me, strike that — it is a private matter. But telling that same lie under oath before a federal judge as a defendant in a civil rights sexual harassment lawsuit is a crime against the state and is therefore a public matter.
Hiding gifts given to conceal the affair is not a crime. It is a private matter. But when those gifts are the subject of a court- ordered subpoena in a sexual harassment lawsuit, the act of hiding the gifts becomes a crime against the state called obstruction of justice, and is therefore a public matter.
Our law has consistently recognized that perjury subverts the judicial process. It strikes at our nation’s most fundamental value, the rule of law.
In commentaries on laws of England, Sir William Blackstone differentiated between crimes that quote “more directly infringe the rights of the public or commonwealth taken in its collective capacity, and those which in a more peculiar manner injure individuals or private subjects.”
This book was widely recognized by the Founding Fathers such as James Madison. He described Blackstone’s work at the time as quote “a book which is in every man’s hand.”
Blackstone’s private category contained crimes such as murder, burglary, and arson. The public category however he catalogues crimes that could be understood as an assault upon the state. Within in a subcategory denominated quote “offenses against public justice,” end quote.
Blackstone included the crimes of perjury and bribery. In fact, in his catalogue of public justice offenses, Blackstone placed perjury and bribery side by side.
Now, in the Constitution, Article II, Section 4, when you read the impeachment clause, the president, vice president, and all civil officers of the United States shall be removed from office on impeachment for and conviction of treason, bribery, — comma — or other high crimes and misdemeanors. So what did they mean when they thought “other high crimes”?
I would submit to you that perjury, obstruction of justice, fits in this category of other high crimes. Perjury and bribery are side by side.
You know, hypothetically — hypothetically, if when William Jefferson Clinton sat at the table in the civil deposition in the Jones versus Clinton case, and, as alleged in the record, that he perjured himself, speaking hypothetically, if he had then offered Judge Susan Webber Wright a cash bribe, there would be no question in this body what you must do.
But what I’m saying unto all of you is that there is no difference here, and that’s the pain of this case. There is no difference between a cash bribe or sitting before a federal judge and perjuring one’s self, whether it be in the underlying civil deposition or, in fact, the grand jury perjury. Perjury and bribery are side by side. Mr. Manager Canady will develop that further.
The Constitution also recognizes that truth-telling under oath is central to the maintenance of our republic.
We’re all familiar with the Constitution, in its handwritten glory; know that the founders, they took such pride in the oath, that it’s mentioned here in the Constitution on five separate occasions, not the least of the which is the president’s own oath to defend the Constitution. Article I, Section Three sets forth the requirement that the Senate be under oath when trying the cases of impeachment. And I witnessed as that occurred.
Article II, Section One specifically prescribes the oath which must be taken before a president enter the execution of his office.
The right against self-incrimination under the Constitution derives in some measure from the republic’s interest in preserving the truth-telling oath.
You see, forced testimony is forbidden because it might lead to many to violate their most solemn obligations and, over time, weaken the essential civic norm of the fidelity to that oath — fidelity.
The framers took significance of the oath very, very seriously. The crime of perjury was among the few offenses that the first Congress outlawed by statute as they met, and that affirms the framers’ view of the seriousness.
In 1790, in a statute entitled “An Act For The Punishment Of Certain Crimes Against The United States,” Congress made the crime of perjury punishable by imprisonment of up to three years, a fine of up to eight hundred dollars, disqualification from giving future testimony, standing in the pillory for one hour.
Now today, we don’t force individuals convicted of perjury to stand in the pillory for up to one hour.
Today perjury is punishable by up tot five years imprisonment in a federal penitentiary if you perjury yourself in the federal jurisdiction.
Likewise the Supreme Court has repeatedly noted the extent to which perjury subverts the judicial process and thus the rule of law.
For example, in 1976 in the case of the United States versus Monduhano (ph), the Supreme Court emphasized quote “the perjured testimony is an obvious and flagrant affront to the basic concepts of judicial proceedings. Effective restraints against this type of egregious offense are therefore imperative. Hence, Congress has made the giving of false answers a criminal act, punishable by severe penalties.
In no other way can criminal conduct be flushed into the open where law can deal with it,” end quote.
Moreover, it is obvious that any testimony given to a grand jury must be truthful, for the grand jury process is in fact a truth- seeking process of our criminal justice system.
As the Supreme Court stated in 1911 in the case of Glickstein (ph) vs. the United States, quote, “It cannot be conceived that there is power to compel the giving of testimony where no right exists to require that the testimony shall be given under such circumstances and safeguards as to compel it to be truthful,” end quote.
Indeed, giving false material testimony to a grand jury, perjuring oneself, totally destroys the value of one’s testimony and interferes with the ability of a grand jury to accomplish its mission, which, again, is to find the truth.
Perjury before a grand jury is a crime against our system of government and the American people. And in the case before us, this is a case of perjury upon perjury.
Before the grand jury, President Clinton testified that the testimony that he gave in the underlying civil case of Jones vs. Clinton in his civil deposition that it was truthful.
We submit that that is a lie. So what we have is perjury on perjury.
You may hear that the president’s lawyers remark that the view of the founders is quaint, not really applicable to these settings today. Let’s look at a few very recent examples to see if the view of the seriousness of telling the truth under oath, as envisioned by the founding fathers, has changed any here today.
In the case of the United States versus Landy (ph) in the Eastern District of Virginia in 1997, the defendant was convicted on two counts of perjury — one for lying in a declaration she made during a civil forfeiture case, and the other for lying to the grand jury in a related criminal investigation.
Here’s what the judge said in this case. “The defendant committed perjury on two separate occasions. There can be no question of it being done by mistake. The perjury is perhaps one of the most serious offenses that can be committed against the court itself.
And the court does not believe that it’s appropriate to consider probation in the case of somebody who’s convicted of perjury.”
In the second case, the United States vs. Vincent Bono (ph) in the district of New Hampshire in 1998, the defendant was found guilty of lying before a grand jury in trying to cover his stepson involvement in a robbery that the grand jury was investigating. Here’s what the judge had to say about lying before a grand jury.
“As a matter of policy, they” — meaning Congress — “they don’t want people lying to grand juries. They particularly don’t want people lying to grand juries about criminal offenses. They particularly don’t want people lying to grand juries about criminal offenses that are being investigated.
They don’t like that and Congress has said we as a people are going to tell you if you do that you are going to jail, and you are going to jail for a long time. And if you don’t get the message, we will send you to jail again.
Maybe others will, but we are not going to have people coming to grand juries and telling lies because of their children, their mothers, or their fathers or themselves. It is just not acceptable. The system can’t work that way,” end quote.
In other case in the United States versus Ronald Blackley (ph), in the District of Columbia here in 1998, the defendant was the former chief of staff to the Secretary of the United States Department of Agriculture. The defendant was found guilty at trial of three counts of making false statements to the grand jury in connection with his official duties.
Here is what the judge had to say in this case:
“In my view, providing a false statement under oath is a serious offense. The fact that the proceeding is civil or administrative does not make the crime less serious. We cannot fairly administer any kind of system of justice in this country if we do not penalize those who lie under oath.
“The defendant stands before me as a high-ranking government official convicted of making false statements under oath. This is such a serious crime that it demands an even longer term of imprisonment in this court’s view. This court has a duty to send a message to other high level government officials that there is a severe penalty to be paid for providing false information under oath. There is a strong reason to deter such conduct and dispel all of the nonsense that is being publicly discussed and debated about the seriousness of lying under oath by government officials.
“A democracy like ours depends on people having trust in our government and its officials.” End quote.
You see, there are many other cases, and you can go to your Lexis and Westlaw and you can research them.
These three cases make it very clear that lying under oath is as serious today in the 106th Congress as it was in 1790 in the 1st Congress when it enacted the perjury statute.
The 1st Congress recognized the seriousness of perjury and its attack on the judicial system. Now I’d like to discuss Article II which is the obstruction of justice and how it is an attack on our judicial system.
In either a criminal or a civil case, obstruction undermines the judicial system’s ability to vindicate legal rights. If it is allowed to go unchecked, then the system will become a farce and, ultimately, a test of which side is better at using under-handed methods.
Accordingly, federal courts have called the federal obstruction justice statute “one of the most important laws ever adopted in that it prevents the miscarriage of justice.”
This is Black’s Law Dictionary. Black’s Law Dictionary defines obstruction of justice as impeding or obstructing those who will seek justice in a court or those who have duties or powers of administering justice therein. It’s very clear.
Not only is obstruction of justice in its own a crime in the federal code, but in addition, the federal sentencing guidelines. The federal sentencing guidelines increase the sentence of a convicted defendant who has willfully obstructed — who has willfully obstructed or impeded or attempted to obstruct or impede the administration of justice during the investigation, prosecution or sentencing of his offense.
The commentary on the guidelines specifically list as examples of obstructions the House alleges that President Clinton has committed, including committing, suborning, or attempting to suborn perjury, destroying or concealing or directing, procuring another person to destroy or conceal evidence that is material to an official investigation or judicial proceeding.
And yesterday you learned from Mr. Manager McCollum of Florida when he discussed that perjury and obstruction of justice is punished more severely in the federal sentencing guidelines than bribery.
And again as I stated earlier, Blackstone put bribery and perjury side by side.
At a hearing on the background on the history of impeachment as part of the House impeachment inquiry, we were privileged to have the testimony of Judge Griffin Bell, an individual who has highly distinguished himself in public service.
Judge Bell was appointed to the federal bench by President John Kennedy and he served as the United States attorney general under President Carter.
Judge Bell said that, quote, “I have thought about this a great deal. This is a serious matter. Trifling with the federal courts is serious, and I guess I am biased because I used to be a federal judge, but I cannot imagine that it wouldn’t be a serious crime to lie in a federal grand jury or to lie before a federal judge, and that is where I come down.”
Judge Bell went on to say, quote, “And all the civil rights cases that I was in in the South depended on the integrity of the federal court and the federal court orders and people telling truth and fairness.”
Truth and fairness are the two essential elements in a justice system. And of all the statutes I mentioned, perjury, tampering with a witness, obstruction of justice all deal in the interest of truth. If we don’t have truth in the judicial process and in the court system in our country, we don’t have anything. We don’t have a system.
As you can see according to Judge Bell, truth and fairness are two cornerstones of our judicial system. President Clinton violated both of these bedrock principles. Finally, Judge Bell spoke to the issue if a president ever was convicted of a felony.
Judge Bell stated, “If a president were indicted and convicted of a felony such as perjury or obstruction of justice or witness tampering before impeachment proceedings began, would anyone argue that he should continue to be president?
I don’t think so. If the president were subsequently indicted and convicted of a felony, which Judge Bell believes the Constitution clearly allows, he went on to say “would anyone argue that he should continue to be president? I don’t think so.”
And he stated this, he said “a president cannot faithfully execute the laws if he himself is breaking them.”
Judge Bell hit it right on the head. Judge Bell said “a president cannot faithfully execute the laws if he himself is breaking them.”
If — strike the word if — the statutes against perjury, obstruction of justice, and witness tampering rest on vouchsafing (ph) the element of truth of judicial proceedings Judge Bell stated.
He went on to say that “civil and criminal cases in particular and also the grand jury allegations of this kind are grave indeed.” End quote.
To borrow the words of constitutional scholar Charles J. Cooper, the crimes of perjury and obstruction of justice, like the crimes of treason and bribery, are quintessentially offenses against our system of government, visiting injury immediately on society itself, whether or not committed in connection with the exercise of official government powers.
I believe all of you should haven these charts at your table.
In a society governed by the rule of law, perjury and obstruction of justice simply cannot be tolerated because these crimes subvert the very judicial process on which the rule of law so vitally depends.
It is no exaggeration to say that our Constitution and the American people entrust to the president singular responsibility for the enforcing of the rule of law.
Perjury and obstruction of justice strike at the heart of the rule of law. A president who has committed these crimes has plainly and directly violated the most important executive duty. The core of the president’s constitutional responsibilities is his duty to take care that the laws be faithfully executed.
And because perjury and obstruction of justice strike at the rule of law itself, it is difficult to imagine crimes that more clearly or directly violate this core presidential constitutional duty. When President Clinton had the opportunity to personally uphold the rule of law, to uphold the truth-seeking function of the courts, to uphold the fairness in a judicial proceeding, he failed.
Far from taking care that the laws be faithfully executed, if a president is guilty of perjury and obstruction of justice, he himself faithlessly subverted the very law that the rest of us are called upon to obey.
You may hear arguments that perjury and obstruction don’t really have much consequence in this case because it was a private matter, and therefore not really a serious offense. I’d like to arm you with the facts. The courts do not trivialize perjury and obstruction of justice.
According to the United States Sentencing Commission, in 1997, 182 Americans were sentenced in federal court for committing perjury. Also, in 1997, 144 Americans were sentenced in federal court for obstruction and witness tampering. In state jurisdictions all across this country, they take the matter very seriously. I’ve chosen on state — the state of California. They brought 4,318 perjury prosecutions in 1997.
There are now at least 115 persons serving sentences for perjury in federal prisons.
Where is the fairness to these Americans if they stay in jail and the president stays in the Oval Office?
If the allegations in the independent counsel’s referral were made against a sitting federal judge, would not the Senate convict? If William Jefferson Clinton were a sitting judge instead of the president, would not the Senate convict?
While my colleague Mr. Manager Graham will look into this further, let’s look briefly at precedent for the moment. When we bring up the issues regarding the impeachment of former federal judges Mr. Claiborne and Mr. Nixon, one standard was used: high crimes and misdemeanors. The Senate said one standard that applies to the president and vice president will also apply to these federal judges and other civil officers.
You see, in the defense of Judges Claiborne and Nixon, the defense lawyers at the time in the trial here in the Senate argued that federal judges should be treated differently from the president.
That they could not be impeached for private misbehavior because it was extra-judicial. The Senate rejected that proposition as incompatible with common sense and the orderly conduct of government. You rejected that argument, the very same argument that we will about to hear perhaps from the White House defense team.
And I believe this Senate will uphold your precedent, the precedent that federal judges and bathe president should be treated by the same standard, impeachment for high crimes and misdemeanors.
Also, do not be tempted to believe the argument that lying under oath about sex doesn’t matter, that it’s private.
I covered that earlier, but I want to bring to your attention, as some of the House managers did yesterday, about American law. It makes rape a crime, domestic violence a crime, sexual harassment a civil rights violation, libel a compensable offense. Without the protections of perjury and obstruction, none of the rights of the victims of such cases could be vindicated. That’s why the courts takes these matters so seriously.
If the president’s lawyers try to tell you that this case is simply about an illicit affair, I believe that it demeans our civil rights laws. If indeed the president is successful in trying to make everyone believe that this case is only about an illicit affair, what will the message be in this hallowed body to those who’ve in the past been passionate advocates of our civil rights laws, whether it be by race, gender, religion, disability.
If the evidence gathering process is unimportant in federal civil rights sexual harassment lawsuits, remember that was the underlying basis of this case, what message does that send to women in America?
There are some important questions we need to ask.
Are sexual harassment lawsuits, which were designed to vindicate legitimate and serious civil rights grievances across America, now somewhat less important than other civil rights?
Which of our civil rights laws will fall next? Will we soon decide that the evidence gathering process is unimportant with respect to vindicating the rights of the disabled under the Americans with Disabilities Act? Will the evidence gathering process become unimportant with respect to vindicating the voting rights of those discriminated against based on race or national origin?
Who will tell the hundreds of federal judges across the nation that the evidence-gathering process is these cases is now unimportant?
Consider postal worker Diane Parker (ph) who was convicted of perjury and sentenced to 13 months in prison for making a false material declaration during the discovery deposition in a sexual harassment lawsuit.
Judge Lacey Collier (ph) said “one of the most troubling things in our society today his people who raise their hands, take the oath to tell the truth, and then fail to do that. This is I hope, sufficient punishment for you,” the judge stated. The judge went on to say “but more importantly I hope that it is a deterrence to others so your story can be taken far and wide to demonstrate to others the seriousness of the responsibility of telling the truth in court proceedings.”
The Senate must now determine whether it is acceptable or whether it is appropriate to set a precedent to have an individual serve as President of the United States when that individual has committed — has alleged to have committed serious offenses against our system of government while holding that office.
While we’ve been discussing how perjury and obstruction of justice are attacks on our judicial system, we must recognize how the judicial system is a core function of the government. When Mr. Manager Henry Hyde speaks of the rule of law protecting us from the knock on the door at 3:00 a.m., what exactly was he referring to.
Well, in totalitarian societies, rulers may drag the rule off to prison at any time for any reason. Our system differs because we require our leaders to go through a judicial procedure before they put someone in prison or otherwise violate their individual rights.
The president’s offenses assault the administration of this judicial procedure.
As such, they constitute an assault on a core function of the government and repudiate our most basic social contract. A core function of the government derives its role from the social contract that our civilized society has under the fundamental exchange of rights that takes place between those of us as individuals and unto the government.
We give up our individual rights to exercise brute force to settle our personal disputes. That’s a situation where chaos reigns and the strongest most often prevails.
Instead, we submit to the power delegated to the state under which the individual then submits to the governmental processes as part of the social contract. Indeed, when conflict arises in our society, we as individuals are compelled via the social contract to take disputes to our third branch of government: the courts.
The judicial branch then peacefully decides which party is entitled to judgment in their favor after a full presentation of the truthful evidence.
Now, implicit in the social contract that we enter as a civilized society is the principle that the weak are equally entitled as the strong to equal justice under the law. Despite the tumbling tides of politics, ours is a government of laws, not of men.
It was the inspired vision of our founding fathers that the judicial, legislative and executive branch of government would work together to preserve the rule of law. The United States Constitution requires the judicial branch to apply the law equally and fairly to both the weak and the strong.
Once we as a society, and particularly our leaders, no long submit to the social contract and no longer pay deference to the third branch of government, which is equally as important as the legislative and executive branches of government, we then begin to erode the rule of law and begin to erode the social contract of the great American experiment.
That, I believe, is why Judge Bell had stated that “A president cannot faithfully execute the laws if he himself is breaking them.”
The administration of justice is a core function of the government precisely because of the importance we place on the fair resolution of disputes and on whom and for how long a person will be denied liberty for violating our criminal laws.
Any assault on the administration of justice must be interpreted as a threat to our system of government. Our president, who is our chief executive and chief law enforcement officer and who alone is delegated the task of our Constitution to take care that the laws be faithfully executed, cannot and must not be permitted to engage in such an assault on the administration of justice.
The Articles of Impeachment adopted by the House of Representatives established an abuse of public trust and of betrayal of the social contract that the president is alleged to have repeatedly his personal interests above the public interest and violated his constitutional duties.
For if he is allowed to escape conviction by the Senate, you would allow the president to set the example for lawlessness. We would allow our president to serve as an example of the erosion of the concept of the social contract embraced and embodied in our Constitution. I don’t believe the Senate will allow that to happen.
As you undertake your examination of the facts, the law and your precedence, the Senate must weigh carefully its judgment for the consequences are deeply profound not for the moment, but for the ages.
Should the Senate chose to acquit, it must be prepared to accept the lower standard, a bad precedent, and a double standard.
However, should the Senate chose to convict, it will be reinforcing the high standards for high office, maintain your existing precedents and uphold the principle of equal justice under the law.
I think it is important here to pause and reflect upon the constitutional duties of the President of the United States.
I would agree with the defense argument that this has not been alleged as a dereliction of a president’s exercise of executive powers.
So let me talk about his executive duties. The president is reposed with a special trust by the American people. The president is a physical embodiment of America and the hope and freedom for which she stands.
When the president goes abroad, he is honored as a head of a sovereign nation. Our nation is acknowledged — not just the individual who occupies the office of the presidency. When he walks into a room and he receives a standing ovation, the ovation is not that of the individual. It is for the nation for whom he represents.
The president has a constitutional role as commander in chief. The president plays the unique and indispensable role in the chain of command. In Federalist 74, Alexander Hamilton stated that “Of all the cares or concerns of government, the direction of war most procurely demands those qualities which distinguish the exercise of power by a single hand.”
It is universally agreed that the president in his role as commander in chief is not an actual member of the military. However, as the single hand that guides the actions of the Armed Services, it is incumbent that the president exhibit sound, responsible leadership and set a proper example when acting as the commander in chief.
That leadership is also at the core of the issue before us. In order to be an effective leader and an effective military leader, the president must exhibit the traits that inspire those who must risk their lives at his command. These traits include honor and integrity and accountability.
Admiral Thomas Moore, the former chairman of the joint chiefs of staff, submitted testimony to the House impeachment inquiry, and Admiral Moore stated it this way, quote: “Military leaders also serve as role models for honorable and virtuous conduct,” end quote.
You see, veracity and truthfulness are important components of a leader’s character. In order to have the trust of their subordinates, military leaders must have honor and be truthful in all things.
That trust, that bond between the leaders and the led, is an essential element of any successful military organization. The president’s own self-inflicted wounds have called his credibility into question.
While a president’s decisions are always critiqued, a president receives the benefit of the doubt in the decision-making process, that he always places the interest of the nation above his own.
But William Jefferson Clinton’s present diminished veracity, he has now forfeited the benefit and has invited doubt into the decision- making process.
The lack of trust in the president’s motives, his veracity, his judgment is inherently corrosive and can only be detrimental on the effect of our military and credibility overseas.
This corrosion is difficult to measure for it cannot be quantified easily in some readiness report, or training exercise.
But in the squad bays and war rooms around the world and at bases here in the United States, there can be heard the whispers and conversations of those who know that had they merely been accused of the same offense, their careers would have ended long ago.
This is an intangible effect that the president’s actions have had on the military. We cannot ignore the fact that the commander-in- chief’s conduct sets a poor example to the men and women of the military. Worse, we cannot ignore the idea that to acquit the president would create a double standard.
The Constitution directs this body to provide advice and consent to the president’s nominations for military officers. It is your singular responsibility to set high standards of conduct for these officers, and you have done that.
The Senate has in the past — and you will likely again do so in the future — reject those whose moral and legal misconduct make them unsuitable to be officers in the military. Now let me indulge in a hypothetical.
An officer is nominated by the president from promotion to the rank of major. After the list is submitted, but before the Senate’s confirmation, an investigation of the individual’s background results in a report that mirrors the allegations of the Office of Independent Counsel’s referral.
After a very careful review of the Code of Military Justice, this captain, if having been committed similar offenses in the Independent of Independent Counsel referral, could be charged with Article 105 — false swearing, face up to three years; be charged in Article 107 — false official statement, be charged up to 5 years; be charged with Article 131 — perjury — probably several times — face up to 5 years; charged with Article 133 — conduct unbecoming of an officer; charged with Article 134 — prevent seizure of property — up to one year imprisonment; Article 134 — soliciting another to commit an offense — face a penalty for up to five years imprisonment; charged with Article 134 — subornation of perjury — face confinement for up to five years; Article 134 again — obstructing justice — face five years.
And I could probably come up with about four others, but I won’t get into the salacious details.
You see, needless to say, the Senate would insist on this hypothetical officer’s removal from the promotion list. You would do that. And the services would certainly relieve him of his duties.
In every warship, every squadbay and every headquarters building throughout the United States, those of you who have traveled to military bases, you have seen the picture of the commander in chief hang in the apex of the pyramid that is the military chain of command. You should also know that all over the world, military personnel look at the current picture and know that if accused of the same offenses as their commander in chief, they would no longer be deserving of the privilege of serving in the military.
Some would say that what I’ve just talked about doesn’t matter. But in the military they live under different standards, they live under these high standards. They say words like “duty,” “honor,” “country,” they’re instilled with core values and core virtues. But that really doesn’t matter in this case, that the president really doesn’t have to follow those types of high standards. That if he violates some form of high standards and stands accused of high crimes, they’re really not high crimes, it was about a private matter, they don’t rise to the level needed to remove the president from office.
I’d like to remind you of General Douglas MacArthur. In his farewell address at West Point, General Douglas MacArthur stated when he referenced the words I spoke of duty and honor and country and the high principles, he said, quote, “The unbelievers will say that they are but words, but a slogan, but a flamboyant phrase and every pendant, every demagogue, every cynic, every hypocrite, every trouble maker, and, I’m sorry to say, some others of an entirely different character will try to downgrade them to the extent of mockery and ridicule.”
BUYER: The ideal object must be held high, even though we recognize that as humans we are not perfect. No matter how great we aspire, we’re human and we will occasionally fail. But there must be the pursuit of such high ideals. We cannot degrade our standards as a people.
By a conviction in the Senate of the president of the United States, you will be upholding a high and lofty standard not only for America, but, in particular, for those military leaders.
Let me turn to the president’s responsibility to see that the laws be faithfully executed. According to scholar Philip B. Curlan (ph), it was probably George Washington rather than the Constitution that is responsible for our hierarchy of cabinet offices.
It’s been taken for granted over the years and we refer to the president as the chief law enforcement officer of the land and you can’t find it in the Constitution. So we have to give credit to George Washington and how he put together the cabinet and we’ve accepted it over time.
So, it’s been accepted by practice, custom and legislation that the executive branch is an entity for which the president is responsible both to Congress and to the public.
Mr. Curland (ph) stated, quote, “The whole of the executive branch acts subordinately to the command of the president in the administration of federal laws so long as they act within the terms of those laws. There offices confer no right to violate the laws, whether they take the form of constitution, statute, or treaty,” end quote.
The president’s Departments of Treasury of Justice seek to bring to account those who disturb our domestic tranquility. And those who seek to disturb our domestic tranquility, whether they be the drug pushers or Unabombers, gangsters, mobsters, church arsonists, violators of individual rights, dedicated men and women of the FBI, DEA, Customs, Secret Service, BATF, INS, the United States Marshal’s Office, they all pursue them, methodically, thoughtfully firmly, doggedly, applying the law while risking their lives to uphold the rule of law for our peace and security. They seek to ensure equal justice under the law for everyone.
In the book, “The Imperial Presidency,” Professor Arthur Schlesinger, Jr. — he states “The continuation of a law breaker as the chief magistrate would be a strange way to exemplify law and order at home or to demonstrate American probity before the world.”
By a conviction, the Senate will be upholding the high calling of law enforcement in protecting the rule of law and equal justice under the law.
Equal justice under the law — that principle so embodies the American constitutional order, that we have carved it in stone on the front of the Supreme Court building, right across the street. The carving across the street shines like a beacon from the highest sanctum across to us here in the Capitol, the home of the legislative branch. And it shines right down Pennsylvania Avenue to the White House, the home of the executive branch.
It illuminates our national life and reminds those other branches that despite the tumbling tides of politics, ours is a government of laws not of men. It was the inspired vision of our founders and framers, again that the judicial, legislative and executive branches would work together to preserve the rule of law.
But equal justice under law accounts to much more than a stone carving.
Although we can’t see it or hear it, this living, breathing force has very real consequences in the lives of every citizen every day in America. It allows Americans to claim the assistance of the government when someone has wronged us, even if the person is stronger or wealthier or more popular than we are.
In America, unlike other countries, when an average citizen sues the chief executive of our nation, they stand equal before the bar of justice. The Constitution requires the judicial branch of our government to apply the law equally to both. That is the living consequence of equal justice under the law that shines brightly across our country.
The president of the United States must work with the judicial and the legislative branch to sustain that force.
He is the temporary trustee of that office. But unfortunately and sadly, William Jefferson Clinton worked to defeat it and to bring darkness upon that grand illumination. When he stood before the bar of justice, he acted without authority to award himself.
Even if he believed in his heart that the case against him was politically motivated, he singularly assumed unto himself that he had by virtue of his power special privileges, that he could be clever, create own definitions of words in his own mind, create what C.S. Lewis called the verbicide, and he murdered — he murdered the plain spoken English language so he could come up with these definitions in his own mind, state them, and then say, well, I never committed perjury because this is what I meant by this word, even though it fails the reasonableness test and is absurd that no one would believe his own definitions.
You see, he assumed these special privileges and then lied and obstructed justice to gain advantage in a federal civil rights action in the United States District Court for the Eastern district of Arkansas.
And he did so then again when a federal grand jury began to investigate that lawlessness. And he did it for the grand jury in the United States district court for the District of Columbia.
His resistance brings us to this unmost (ph) unfortunate juncture for which you sit in judgment. So, equal justice under law, lies at the heart of this matter.
It rests on three essential pillars — an impartial judiciary, an ethical bar, and a sacred oath.
If litigants profane the sanctity of the oath, equal justice under law loses its protective force.
The House, as does the Senate, has the responsibility to uphold the Constitution. We have all taken our oaths to defend the Constitution. The founding fathers created a system of checks and balances, a system of accountability between the functions of government.
You see, I believe, as I’m sure you do, that the founding fathers knew the nature of the human heart. That as sometimes, as much as we try, at times we fail, and that the human heart does in fact struggle at times between good and evil.
We recognize that no person has perfect virtue and that we each have our human failings. And the founders could foresee a time when corruption could invade the institutions of government, and they provided the means to address it. And the impeachment proceeding is one such means.
We are just seeking to defend the rule of law. America, again, is the government of laws, not of men. What protects us from that knock on the door in the middle of the night is the law. What ensures the rights of the weak and the powerless against the powerful is the law. What provides the rights to the poor against the rich is the law.
What upholds the rightness of the minority view against the popular but wrong is the law. As former President Andrew Jackson wrote, “The great can protect themselves, but the poor and the humble require the arm and shield of the law.”
When our nation began its journey in history over 200 years ago, the United States was nearly unique in depending on the rule of law as opposed to, at that time, the rule of kings and czars and chieftains and monarchs. Now that our unique grand American experiment has proved unto the rest of the world the success, others now seek to follow us.
They seek to follow and we have seen in the crumbling of the Soviet Union and now the infant former Soviet republics — these former Soviet nations, now infant republics, they look and they turn to us. They turn to us, a government ruled by law. For the sake of ourselves, and the sake of generations yet unborn, we and in particular you, who sit in judgment here in the Senate, must preserve the rule of law.
I will leave you with the words of the first president of the Senate, and the second president of our nation John Adams.
He said “facts are stubborn things and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence.”
We are just seeking to defend the rule of law. America, again, is the government of laws, not of men. What protects us from that knock on the door in the middle of the night is the law. What ensures the rights of the weak and the powerless against the powerful is the law. What provides the rights to the poor against the rich is the law.
What upholds the rightness of the minority view against the popular but wrong is the law. As former President Andrew Jackson wrote, “The great can protect themselves, but the poor and the humble require the arm and shield of the law.”
When our nation began its journey in history over 200 years ago, the United States was nearly unique in depending on the rule of law as opposed to, at that time, the rule of kings and czars and chieftains and monarchs. Now that our unique grand
(Gap in transcript)
I believe John Adams was right. Facts and evidence — facts are stubborn things. You can color the facts, you can shade the facts, you misrepresent the facts, you can hide the facts, but the truthful facts are stubborn. They won’t go away. Like the Telltale Heart, they keep pounding and they keep coming and they won’t go away.
And what’s also stubborn are the precedents of the Senate.
I will now yield the floor to Mr. Manager Graham of South Carolina to discuss the precedents of the Senate.
REHNQUIST: The chair recognizes Mr. Manager Graham.
LOTT: Mr. Chief Justice?
REHNQUIST: The chair recognizes the majority leader.
LOTT: I sense the need for a 10 minute break. But, my colleagues, please tend to your business and return promptly so that we can get started with the proper quorum.
REHNQUIST: Without objection, it’s so ordered.
