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Clinton Impeachment: Statement By Senator Russell Feingold

The following is a statement from the Senate’s closed deliberations on the Articles of Impeachment against President Clinton, excerpts of which senators were allowed to publish in the Congressional Record for Friday, February 12, 1999.

Senator Russell Feingold was a Democratic senator from Wisconsin. He served from 1993 until 2011.

Statement by Senator Russell Feingold (Democrat – Wisconsin)

Mr. Chief Justice, my colleagues, like many others, the day the President wagged his finger at the American people and indicated he had not been involved with Ms. Lewinsky, I had the sense that he wasn’t telling the truth and I felt some genuine regret. The President and I began here in Washington in the same month, in 1993. I had high hopes and actually felt very close to what he was trying to accomplish. So all along in this process, I have had to fight an urge to personalize that regret in a way that would affect my ability to do my job in this impeachment trial. And I will tell you that taking that separate oath helped me get into the mindset necessary to do that task.

But let me say that I do regret that the President’s public conduct–not his private conduct–has brought us to this day.

But we are here, and I want to take a minute to praise my colleagues on the process. I think it would have been unfortunate had we not had any witness testimony–at least in the form of deposition testimony. I think it would have been an unfortunate historical precedent. I found the video testimony helpful. I didn’t enjoy it, but I found it helpful in clarifying some of the things that I was thinking about. So I am glad, on balance, that we did not dismiss the case at the time it was first suggested.

But as we get to the final stage and get immersed in the law and facts of this case, it is too easy to forget the most salient fact about this entire matter, and that is one simple fact that many others have mentioned: In November 1996, 47 million Americans voted to reelect President Clinton. The people hired him. They are the hiring authority. An impeachment is a radical undoing of that authority. The people hire and somehow, under this process, the Congress can fire. So, I caution against, with all due respect to the excellent arguments made, the attempt to analogize this to an employee-employer relationship, or a military situation, or even the situation of judges–those situations are all clearly different. Along with the choice of the Vice President, in no other case, do the American people choose one person, and in no other case can a completely different authority undo that choice.

Having said that, the Presidential conduct in this case, in my view, does come perilously close to justifying that extreme remedy. There really have been three Presidential impeachments in our Nation’s history. I see this one as being in the middle. The Andrew Johnson case is usually considered by historians to have been a relatively weak case. President Johnson had a different interpretation of the constitutionality of the statute that he believed allowed him to remove the Secretary of War, Mr. Stanton. He was not convicted, and subsequently the U.S. Supreme Court, I believe, ruled that in fact that was constitutional. I see that as having been a relatively weak case.

The case of Richard Nixon, in my view, was a pretty strong case, involving a 1972 Presidential election and attempts to get involved with the aspects of that election–frankly–an attempt to cover up what happened during that 1972 election. I think that had more to do with core meaning of `high crimes and misdemeanors.’

This is a closer case; this is a close case. In that sense, it may be the most important of the three Presidential impeachments, in terms of the law of impeachment, as we go into the future. I agree neither with the House managers who say their evidence is `overwhelming,’ nor with the President’s counsel who says the evidence against the President is `nonexistent.’ The fact is, this is a hard case, and sometimes they say that hard cases make bad law. But we cannot afford to have this be bad law for the Nation’s sake.

So how do we decide? There have been a lot of helpful suggestions, but one thing that has been important to me is the way the House presented their case. That doesn’t bind us, but they did suggest that two Federal statutes had been violated. Mr. Manager McCollum said that, `You must first determine if a Federal crime has occurred.’ Many others have said that. I will reiterate a point. If that is the approach you want to take, then it is clear, in my view as one Senator, that you must prove that beyond a reasonable doubt. Otherwise, you are using the power and the opprobrium of the Federal criminal law as a sword but refusing to let the President and the defense counsel have the shield of the burden of proof that is required in the criminal law.

I do not have time to discuss the perjury count this afternoon, but will do so in a longer presentation for the Record. Suffice it to say I do not believe the managers have met their burden of proving perjury beyond a reasonable doubt.

As to obstruction of justice, the President did come perilously close. Three quick observations make me conclude that, in fact, he did not commit obstruction of justice beyond a reasonable doubt. First, I am very concerned about the conversations between the President and Betty Currie concerning the specifics of his relationship with Ms. Lewinsky. But the critical question there is intent. Was his intent about avoiding discovery by his family and the political problems involved? Or was the core issue trying to avoid the Jones proceeding and the consequences of that?

I don’t think it has been shown beyond a reasonable doubt that the Jones proceeding was the President’s concern. Perhaps Ms. Currie could have shed some light on this. That is why I was extremely puzzled when the House managers didn’t call Betty Currie. Let me be the first to say that I don’t think in this instance the House managers `wanted to win too badly.’ I don’t think they wanted to win badly enough to take the chance of calling Betty Currie, a crucial witness.

I was very concerned about the false affidavit until I saw Ms. Lewinsky’s Senate deposition testimony. I am persuaded that you cannot say beyond a reasonable doubt that she was urged by the President to make a false statement in that affidavit.

Finally, I was very concerned about the hiding of the gifts. And maybe every one will disagree with me on this. But when I watched her testimony, I thought Ms. Lewinsky was the most indefinite about whether or not she had gotten that call from Ms. Currie than any other part of her testimony. I happen to believe that Ms. Lewinsky was the one who was the most concerned about the gifts. And I believe a showing beyond a reasonable doubt has not been made that the President masterminded the hiding of the gifts.

So I cannot deny what Representative Graham said: If you call somebody up at 2:30 in the morning you are probably up to no good. But if you call somebody up at 2:30 in the morning you have not necessarily accomplished the crime of obstruction of justice.

I realize there is a separate question of whether these same acts by the President, apart from the Federal criminal law, constitute high crimes and misdemeanors. I do not. I will discuss that in more detail in a future statement in the Record.

But I would like to conclude by just talking a little bit about this impeachment issue in the modern context. When I say that the vote in 1996 is the primary issue, I don’t just mean that in terms of the rights of people. I mean it in terms of the goal of the Founding Fathers, and our goal today; that is, political stability in this country. We don’t want a parliamentary system. And we don’t want an overly partisan system.

I see the 4-year term as a unifying force of our Nation. Yet, this is the second time in my adult lifetime that we have had serious impeachment proceedings, and I am only 45 years old. This only occurred once in the entire 200 years prior to this time. Is this a fluke? Is it that we just happened to have had two `bad men’ as Presidents? I doubt it. How will we feel if sometime in the next 10 years a third impeachment proceeding occurs in this country so we will have had three within 40 years?

I see a danger in this in an increasingly diverse country. I see a danger in this in an increasingly divided country. And I see a danger in this when the final argument of the House manager is that this is a chapter in an ongoing `culture war’ in this Nation. That troubles me. I hope that is not where we are and hope that is not where we are heading.

It is best not to err at all in this case. But if we must err, let us err on the side of avoiding these divisions, and let us err on the side of respecting the will of the people.

Let me conclude by quoting James W. Grimes, one of the seven Republican Senators who voted not to acquit Andrew Johnson. I discovered this speech, and found out that the Chief Justice had already discovered and quoted him, and said he was one of the three of the ablest of the seven. Grimes said this in his opinion about why he wouldn’t convict President Johnson:

I cannot agree to destroy the harmonious working of the Constitution for the sake of getting rid of an unacceptable President. Whatever may be my opinion of the incumbent, I cannot consent to trifle with the high office he holds. I can do nothing which, by implication, may be construed as an approval of impeachment as a part of future political machinery.

Mrs. HUTCHISON. If a university president, a minister or priest, general or admiral, or a corporate chief executive had engaged in a sexual relationship with an intern under his charge, he would lose his position, with scant attention paid to whether or not such a relationship were `consensual.’ We place in certain individuals so great a measure of trust that they are seen as acting essentially in loco parentis.

The question before us today is: Should the President of the United States be held to a lower standard?

The answer is: No. To the contrary; we can bestow no higher honor than to select one individual to represent us all as President. In one person we endow the character of our nation, as the head of state and the head of government.

It’s with great disappointment, but firm resolve, that I have concluded the President has not lived up to this high standard and that he should be removed from office. The House managers have demonstrated beyond reasonable doubt that, in addition to indefensible behavior with an intern, which was not illegal, the President engaged in the obstruction of justice and, as an element of that obstruction, committed perjury before a federal grand jury, which is.

This case began as an alleged civil rights violation of a young woman who came to the bar seeking justice. The Supreme Court unanimously decided to permit her case against the President to go forward. It was that case which led to the revelations regarding the President’s relationship with Monica Lewinsky, the White House intern.

Incredibly, an element of the President’s defense is that we should take the long view. We are told by the President’s defenders that we should not judge his actions toward one individual, in which he schemed to impede her ability to seek redress, because his overall actions on civil rights are so positive. We are asked not to judge his treatment of one woman, or two women, but to evaluate his policies that affect all women.

Would the President’s defenders forgive a school teacher who molests a student, simply because the teacher’s classes are popular and his students all go on to college? Should we ignore the police officer who personally enriches himself by accepting graft, so long as his arrest record is high? Would we look away from the corporate executive who illegally profits from insider information, as long as his shareholders are happy with the return on their investment? We would not sustain civil society for long with such moral relativism as our guide.

The President had it solely within his power to keep the country from the course on which it has been for the past year. First, of course, he could have chosen not to engage in the behavior in question. Having behaved as he did, though, and having been discovered, the President could have acknowledged his own actions and accepted the consequences. This could have been an honorable resignation, or an admission, contrition, and a firm resolve to take responsibility; with a request for resolution in a manner short of impeachment and trial.

Instead, the President chose to deny the allegations, and fight them with a coordinated scheme of manipulation and obstruction. He lied outright to the American people, to his close associates, and to his cabinet. An enduring image of this whole tale will be his finger-pointing lie to the American people, even after admonishing us to listen closely, because he didn’t want to have to say it again.

Even in view of these actions, the President missed numerous opportunities to right this matter and get it behind him and the country. At virtually every opportunity, though, he chose an action that further prolonged the matter and led directly to his impeachment.

The President chose to impede the pursuit of justice by the Independent Counsel, who was given the authority to investigate this matter by the President’s own Attorney General.

The President chose to construct a cover story with Ms. Lewinsky, should their relationship become public.

The President chose to direct his personal staff to retrieve items from Ms. Lewinsky that he knew were under subpoena in a federal investigation.

The President chose to seek the assistance of friends to find a job for Ms. Lewinsky, and to intensify that job search when it became clear that Ms. Lewinsky had become a target of the civil suit against him.

The President chose to lie to his staff about the nature of his relationship with Ms. Lewinsky herself, with the expectation that these lies would become part of the public perception.

And, the President chose to lie before a federal grand jury about his actions with regard to some of the elements of obstruction of justice, including the concealment of the gifts that were likely to become evidence in the civil case against him.

As a result of these choices by the President of the United States, the Senate was left with no choice other than to confront the charges and hear the case pursuant to the President’s impeachment in the House of Representatives.

In so doing, the Senate conducted a fair and expeditious trial. We rejected the idea of an early test vote that would have truncated the process. We rejected the motion for an early dismissal. The Senate is fulfilling its Constitutional responsibility to hold a trial with a complete evidentiary record and a final vote on each article of impeachment sent to the Senate by the House of Representatives.

Through skillful use of the written record compiled by the Independent Counsel, videotaped depositions, and hard evidence, the House managers presented a compelling case. The case for perjury was difficult. The President’s testimony before the Grand Jury was guarded. He was fully aware of the evidence the prosecutors had with respect to this case. He chose his words carefully. He admitted his relationship with Ms. Lewinsky before the Grand Jury, but did so only after confronted with clinical evidence of its existence.

But he lied to the Grand Jury to deny other key facts. He perjured himself as an element of a broader attempt to obstruct justice. There are two false statements that are the most persuasive. First, when asked if he directed Betty Currie to retrieve gifts from Ms. Lewinsky, he stated unequivocally, `No sir, I did not do that.’

The facts are contrary to that allegation. Ms. Lewinsky testified that Betty Currie called her to suggest that Ms. Lewinsky give her the gifts. We have cellular telephone records that indicate a call from Ms. Currie to Ms. Lewinsky at about the time the gifts were picked up. It was clear that Ms. Currie initiated a retrieval of the gifts at the direction of the President, for this was the only source of information she had that there were gifts. The evidence is overwhelming that the President directed Betty Currie to retrieve these gifts. Thus, his statement is false. Not only is this perjury, it is obstruction of justice.

The President also lied before the Grand Jury about his conversations with White House aides regarding Ms. Lewinsky. He testified that `I said to them things that were true about this relationship.’ We know this to be completely false from the testimony of Sidney Blumenthal, who stated directly and unequivocally that the President had lied to him about the nature of his relationship with Ms. Lewinsky.

The legal standard for perjury is high. Under Section 18 U.S.C. 1623(a), a person is guilty of perjury if he or she knowingly makes a false, material statement under oath in a federal court or Grand Jury. I believe these statements were false, intentional and material in that they attempt to put a false impression on key events in a series of attempts to obstruct justice. In effect, the President knew his relationship with Ms. Lewinsky was shameful, but not necessarily illegal. But he knew his obstruction of justice was illegal–so he lied about it to a Grand Jury.

In many ways, obstruction of justice is even more corrosive than perjury to the machinery of our legal system. As the target of a grand jury and an independent prosecutor, the President has defended himself against charges of perjury by claiming he was caught off guard, was misinterpreted, was attempting to mislead but not lie.

Obstruction of justice, though, is a quite different matter. It is an affirmative act that occurs at the person’s own initiative; in this case, the President. It involves actions taken that were not instigated by anyone else.

It has been said in his defense that the President did not initiate his perjury in that he was led to it by the prosecutor. But there is no similar argument regarding Article II, the Obstruction of Justice. Without the affirmative actions of the President, there would have been no Article II.

The President sought out Mr. Blumenthal to tell his misleading story about the nature of his relationship and the character of Ms. Lewinsky.

Separately, the President enlisted his personal secretary to further his obstruction of justice. He asked Ms. Currie to retrieve the gifts. He summoned her to coach her testimony under the guise of `trying to figure out what the facts were.’ He did so within hours after coming back to the White House on January 17th from his deposition in the civil sexual harassment lawsuit. He required a face-to-face meeting with her the next day, a Sunday. It couldn’t be done over the phone, and it couldn’t wait until Monday. It was clear he needed her to reaffirm his false testimony. This is obstruction of justice.

The edifice of American jurisprudence rests on the foundation of the due process of law. The mortar in that foundation is the oath. Those who seek to obstruct justice weaken that foundation, and those who violate the oath would tear the whole structure down.

Every day, thousands of citizens in thousands of courtrooms across America are sworn in as jurors, as grand jurors, as witnesses, as defendants. On those oaths rest the due process of law upon which all of our other rights are based.

The oath is how we defend ourselves against those who would subvert our system by breaking our laws. There are Americans in jail today because they violated that oath. Others have prevailed at the bar of justice because of that oath.

What would we be telling Americans–and those worldwide who see in America what they can only hope for in their own countries–if the Senate of the United States were to conclude: The President lied under oath as an element of a scheme to obstruct the due process of law, but we chose to look the other way?

I cannot make that choice. I cannot look away. I vote `Guilty’ on Article I, Perjury. I vote `Guilty’ on Article II, Obstruction of Justice.

I ask unanimous consent an analysis of the Articles of Impeachment be printed in the Record.

There being no objection, the material was ordered to be printed in the Record, as follows.

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Malcolm Farnsworth
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