UNITED STATES SENATE 16:00 TO 17:00
THE IMPEACHMENT TRIAL OF PRESIDENT BILL CLINTON RESUMES IN THE
SENATE WITH PRESENTATION FROM THE HOUSE MANAGERS.
BOB BARR:
Finally, there is one other sort of process argument that one hears
sort of floating around in the ether out there that I think also is
important forall of us to keep in mind; that is, facts and the law
do bear repeating - not endless, not pointless, but appropriate repetition.
Even today, even yesterday in the first round of presentations to this
body, there was in fact repetition of certain facts, certain aspects of
the law. That is not presented to you simply to emphasize a point, simply
to make it appear stronger because we say it five times instead of two.
There is a very important reason for appropriate repetition.
For example, in a case such as this where you have two sets of laws
alleged to have been violated--perjury laws and obstruction of justice
laws--each one of those has several different elements. And, in
addition to that, it is legitimate as
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presenters of facts and the law for managers or prosecutors or
plaintiffs' attorneys to take a particular fact of particular
note and use it to illustrate several different points.
BARR: For example, one particular fact may provide evidence
of motive. It may also provide one of the substantive elements
of perjury or obstruction of justice, or it may go to the state
of mind of a declarant or a witness. It may provide important
evidence with regard to a course of conduct, prior knowledge,
and the list goes on.
That is why, senators, frequently, in the course of these
particular presentations -- and again, no different from the
course of presentation in federal and I suspect state courts
throughout the land in trials -- there necessarily is and should
be in order to responsibly present all of the evidence in all of
elements certain repetition.
Our job as managers is to make sure we do not abuse that
necessity and that we do not in fact offer repetitive notions,
repetitive references, without having a very clear and specific
purpose such as I mentioned for that process.
Finally, before turning to that merger of the law and the
facts, which I believe will illustrate conclusively that this
president has committed and ought to be convicted on perjury and
obstruction of justice, I would respectfully ask that you
remember that under the law of impeachment based on our
Constitution, proof beyond a reasonable doubt that the president
committed each and every element of one or more violations of
provisions of the federal criminal code has never been required
to sustain a conviction in any prior impeachment trial in the
Senate.
BARR: However -- and I can say confidently that I speak for
all House managers in relating to you our belief that the record
and the law applicable to these two articles of impeachment
clearly establishes that President William Jefferson Clinton
did, in fact, violate several provisions of title 18 of the
United States code -- that is the criminal code -- including
perjury, obstruction and tampering with witnesses.
Now, at this point, a lawyer would say "a fortiori." I
won't, but I will say at this point that it therefore goes
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without saying that there, indeed, exists under every historical
standard -- every historical benchmark which this chamber has
used -- there is more than sufficient grounds on which you might
base a conviction as to both articles.
Beginning, then, in looking at how the facts and the law,
both of which you have heard through the words and exhibits of
my colleagues and the evidence that you already have, let us
look first at the submission of the false affidavit in the Jones
case.
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BARR: We believe the evidence presented clearly e
that on December 17 of 1997 the president encouraged a witness
in a federal civil rights action brought against him -- that
witness being Monica Lewinsky -- to execute a sworn affidavit in
that proceeding which he knew to be perjurious, false and
misleading.
As other managers have outlined, Monica Lewinsky filed a
sworn affidavit in the Jones case that denied the relationship
between her and the president. That affidavit was false.
Ms. Lewinsky testified under oath before the grand jury that
the scheme to file this false affidavit was devised or hatched
during a telephone conversation with the president on December
17, 1997, a call the president initiated to Ms. Lewinsky at 2 or
2:30 am, ostensibly to give her the bad news that Betty
Currie's brother had been killed in a car accident.
But apparently, since it consumed the vast majority of the
time of that conversation, more importantly for the president to
tell Ms. Lewinsky her name was on the witness list filed in the
Jones case and to thereafter discuss during that conversation
the president's suggestion to her she could file an affidavit in
the Jones case in order for the purpose of avoiding having to
testify in that case.
BARR: Not to cover up, but in order to avoid having to
testify in an ongoing legal proceeding in United States district
court.
She testified both she and the president understood from
their conversation they would continue their pattern of covering
up. She testified she knew that if she filed a truthful
affidavit, the Jones lawyers would certainly have deposed her in
that case.
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The testimony of Mr. Vernon Jordan confirms the president
knew Ms. Lewinsky planned to file a false affidavit. He stated
that based on his conversations with the president, the
president knew in advance that Ms. Lewinsky planned to execute
an affidavit denying their relationship, and that he later
informed the president Ms. Lewinsky had signed, in fact, that
false affidavit.
For his part, the president denies asking Ms. Lewinsky to
execute a false affidavit. Instead, as he asserted in his
response to the House Judiciary Committee's requests for
admission, he seeks to have you now believe he sought simply to
have Ms. Lewinsky execute an affidavit that would, quote "get
her out of having to testify" close quote, while being
factually correct.
This statement reflects a legal impossibility. The president
has admitted Ms. Lewinsky was the woman with whom he indeed had
an improper intimate relationship while president. And he has
admitted he was very concerned over the great personal
embarrassment and humiliation he feared would have occurred if
that relationship had been revealed in the Jones case.
BARR: Yet he would have you believe he cannot remember a
call he made to that woman about that case which occurred at
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2:00 in the morning. His statement is not credible, and the
reason it's not credible is because it's not true.
As Mr. Jordan's grand jury testimony corroborates, the
president knew what Miss Lewinsky planned to allege in her
affidavit, yet the president took no action to stop her from
filing it.
As you have heard in earlier presentations, the president's
lawyer, Mr. Robert Bennett, stated in court, directly to Judge
Wright when he presented the false affidavit, quote: "There is
absolutely no sex of any kind in any manner, shape or form,"
close quote,
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even
though, obviously and by any reasonable interpretation or
inference of the definition given the president, his conduct
with Miss Lewinsky was covered.
And he disavowed knowledge of his lawyer's misrepresentations
by claiming he was not paying attention. That canard has been
most ably disposed of in prior presentations, both through the
words of the managers and the videotape presentations.
BARR: Later in the deposition, when Mr. Bennett read to the
president the portion of the affidavit which -- in which Miss
Lewinsky denies their relationship and asked him, is this a true
and accurate statement as far as you know it? The president
answered, that is absolutely true. The statement is neither
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credible nor true. It is perjury.
The inescapable conclusion from this evidence is that the
president has lied and continues to lie about the affidavit.
His continued false statements and denials about the affidavit
bolster the conclusion of our managers that in fact he was part
of a scheme to file the false affidavit.
The evidence supports Miss Lewinsky's account that such a
scheme did in fact exist between them. The evidence and all
reasonable inferences drawn therefrom do not support the
president's denial. Inferences, I respectfully add, that in your
deliberations, as in the deliberations of any jury, are to be
and should be based on common sense and deliberated in terms of
the light of your experiences in judging human behavior.
Moreover, in engaging in this course of conduct -- referring
here to the worlds of the obstruction statute found at section
1503 of the Criminal Code -- the president's actions constituted
an endeavor to influence or impede the due administration of
justice in that he was attempting to prevent the plaintiff in
the Jones case from having a free and fair opportunity to learn
what she may learn concerning the material facts surrounding her
claim.
BARR: These acts by the president also constituted an
endeavor to corruptly persuade another person with the intent to
influence the testimony they might give in an official
proceeding. Such are the elements of tampering with witnesses
found at section 1512 of the federal criminal code.
Miss Lewinsky knew full well her only hope of not having to
testify was to file an affidavit that did not truthfully reflect
her relationship with the president.
The president also knew that if she had filed a true
affidavit, without any doubt, it would have caused the Jones
lawyers to seek her further testimony; something both
coconspirators desperately sought to avoid. In encouraging her
to file an affidavit that would prevent her from having to
testify, president Clinton was, of necessity, asking her to
testify falsely in an official proceeding. He was attempting to
prevent, and, in fact, did prevent the plaintiff in that case
from discovering facts which may have had a bearing on her claim
against the president.
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BARR: His motive was improper. In the language of the law,
that is corrupt. And his actions did influence the testimony of
Miss Lewinsky as a witness in the pending official proceeding in
US District Court. Under both sections of the federal
criminal code -- that is, 1503, obstruction, and 1512,
obstruction in the form of witness tampering -- the president's
conduct constituted a federal crime and satisfies the elements
of those statutes.
With regard to the issue of perjury before the grand jury
concerning the affidavit, we as managers would show that when
asked before the grand jury whether he had instructed Miss
Lewinsky to file a truthful affidavit, President Clinton
testified: "Did I hope she'd be able to get out of testifying
on an affidavit? Absolutely. Did I want her to execute a false
affidavit? No, I did not."
The evidence, however, clearly establishes that the
president's statement constitutes perjury in violation of
section 1623 of the US federal criminal code for the simple
reason the only realistic way Miss Lewinsky could get out of
having to testify based on her affidavit would be to execute a
false affidavit. There was no other way it could have happened.
The president knew this. Miss Lewinsky knew this. And the
president's testimony on this point is perjury within the clear
meaning of the federal perjury statute. It was willful. It was
knowing. It was material. And it was false.
Let us reflect and see also, members of the jury, how the use
of cover stories and the development thereof ties in the facts
and the law to constitute a basis on which you might properly
find a conviction on perjury and obstruction of justice.
BARR: We as managers believe that the evidence presented to
you also establishes that on December 17th the president
encouraged a witness in a federal civil rights action brought
against him, to give perjurious, false and misleading testimony
if and when called to testify, personally in that proceeding.
This was, in essence, the conspiracy -- 18 USC 371 -- to
commit both obstruction and perjury. Throughout their
relationship the president and Ms. Lewinsky, understandably,
wished to keep it secret, and they took steps to do that --
steps that, ultimately, turned out to be, and constitute,
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criminal acts. For some time, in fact, until Ms. Lewinsky
testified under oath and under a grant of immunity, their
efforts were remarkably successful, all things considered. All
circumstances considered.
Associates and employees testified in support of the
president's stories, and even several Secret Service officers
testified to the grand jury that they understood Ms. Lewinsky to
be in the Oval Office to pick up papers. Yet, as Ms. Lewinsky
testified, her White House job never required her to deliver
papers or obtain the president's signature on any documents. It
was all a sham, it was all a cover story, it was all a
conspiracy to obstruct.
Ms. Lewinsky testified later, after she left her White House
job and went to the work at the Pentagon, that phase-two of the
cover up went into effect.
BARR: The two co-conspirators began to use Miss Currie as a
source of clearance into the White House. This was so even
though the purpose of Miss Lewinsky's visits were almost always
to simply see the president.
As my colleagues have told you, on December 17th, during that
2:00 am, or perhaps it was 2:30, telephone conversation placed
by the president to Miss Lewinsky, he told her her name appeared
on the witness list in the Jones case. She testified that at
some point in the conversation, the president told her, "you
know, you can always say you were coming to see Betty or that
you were bringing me letters."
Miss Lewinsky testified that she understood this to be,
quote, "really a reminder of things that they had discussed
before," close quote. She said it was instantly familiar to
her. He knew -- or I knew, she says, that is, Miss Lewinsky
knew, exactly what he meant. And so, I respectfully submit, do
all of us here know exactly what the president meant.
When the president, then, was questioned before the federal
grand jury if he ever had said something like to Miss Lewinsky,
he admitted that "well, I might have said that, because I
certainly didn't want this to come out if I could help it. And
I was concerned about that."
A cover story, which this was, between two teenagers trying
to steal a date without their parents' knowledge is one thing.
Such would not constitute a crime. It would be something we
might even wink at as long as it didn't happen too often.
However, we are not here dealing with two lovestruck teenagers
trying to circumvent their parents' watchful eyes.
BARR: We are dealing here with the president of the United
States of America and a subservient employee concocting and
implementing a scheme that, while perhaps not illegal in its
inception -- simply trying to keep a relationship private -- did
in fact deteriorate into illegality once it left the realm of
private life and entered that of public obstruction.
However, and this is critical in terms of establishing the
illegality or convictability (ph) of the president's actions,
the situation at the time of that early morning phone call from
the president to Ms. Lewinsky was very different from that
facing the president during any earlier discussions of a cover
story.
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Now, in early December, 1997 Ms. Lewinsky had been officially
named as a witness in a pending judicial proceeding. She was
now under an obligation to give complete and truthful testimony
and he, the president, was under a legal obligation at that time
not to tamper with her or her possible testimony.
This is precisely where private lies become public
obstruction. This is, in fact, the bright line between
child-like pranks and deadly serious obstruction of our legal
system. The president and Ms. Lewinsky at that point entered
the big leagues. And the president, a highly skilled lawyer,
knew it, which is why he went to such lengths to continue the
cover up for so many months.
The president knew that if Ms. Lewinsky were to testify that
she only brought papers to the president or to see the
president's secretary, her testimony would have been neither
complete nor truthful.
BARR: Yet, the president encouraged her to give that
untruthful testimony, and in so doing, he broke the law of
obstruction of justice, and in lying about it, he compounded the
problem by breaking the law of perjury.
As Mr. Cannon made clear, with regard to section 1503, the
General Federal Obstruction Statute of the criminal code, a
person commits the crime of obstruction of justice when he
attempts to influence the due administration of justice, which
includes all aspects of any civil or criminal case including
pre-trial discovery. Mr. Clinton's encouragement to Miss
Lewinsky to tell something other than the truth certainly would
have influenced the discovery process in the Jones case.
Courts have consistently held that civil discovery is every
bit a part of the due administration of justice protected by the
obstruction statutes as any other aspect of any other civil or
criminal case.
And, as Mr. Cannon also made clear, with regard to section
1512 of the federal criminal code, a person commits witness
tampering when he attempts to influence another person to give
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false testimony in an official proceeding. Mr. Clinton did
encourage Miss Lewinsky to give false testimony about her
reasons for being in the White House with the president. By
encouraging her to lie, the president committed the crimes of
obstruction of justice under section 1503, and the crime of
witness tampering under section 1512 of the federal criminal
code.
BARR: You have also, members of the Senate, heard about the
president's statements to Mrs. Currie. On January 18th, and
then again on the 20th or 21st, the president spoke with her in
what was clearly, demonstrably, unavoidably another potential
witness to be influenced in the civil rights case.
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The president did this in this case by relating to Mrs.
Currie false and misleading accounts of events about that case
as to which he was going to testify, had testified, and again,
with the intent that his recitation of the so-called facts
would, in fact, corruptly influence her testimony.
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As the managers have previously described to you, the
evidence in this case shows that on that Saturday, January 17th,
only two and a half hours after the president had been deposed
in the Jones case, he called his secretary at home and asked her
to come to the White House the next day, a Sunday. She
testified -- Mrs. Currie, that is -- testified this was very
unusual; it was rare for the president to call and ask her to
come in on a weekend. But, of course, she did, the next day,
Sunday, January 18th, 1998 at about 5:00 p.m.
She testified to the grand jury that, during her meeting with
the president, he said to her, "There are several things you
may want to know." He then proceeded to ask her a number of
questions in succession. You were presented evidence of these
five statements by other managers. I will only emphasize that
it was at that time and in that way -- in that manner, that the
president led Mrs. Currie through a series of statements and
determinate questions to establish a set of facts describing his
relationship with Miss Lewinsky at the White House that
supported his false testimony.
BARR: As you have heard Ms. Currie stated under oath, she
indicated her agreement with each of the president's statements,
even though she knew that the president and Miss Lewinsky had,
in fact, been alone in the Oval Office and in the president's
study.
Prosecutors frequently see this pattern. It's not unknown to
prosecutors, federal or state. You frequently see this pattern
of agreeing to things that the person knows are not true, where
you have a dominant person suggesting testimony to another
person who is in a subordinate relationship. This, I submit, is
yet another bright line between a private lie and public
obstruction.
During the president's grand jury testimony, he was asked
about his statements to Mrs. Currie. He testified he was trying
to determine whether his recollection was accurate. As he put
it, "I was trying to get the facts down. I was trying to
understand what the facts were." This fits the same pattern of
a classic obstruction prosecution, in which a defendant suggests
a story to someone in the hopes that they will later testify
consistent with that earlier suggestion.
Indeed, when defendants in federal court defend against
obstruction prosecutions in those type cases, they frequently
rely on the very same defense the president raises here; that he
was merely and oh, so innocently encouraging the other person to
tell the truth.
You may want to see as an example of an unsuccessful effort
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at such a defense in the case of United States v. O'Keefe -- a
fifth circuit case from 1983.
BARR: In that case, Mr. O'Keefe (ph) did not ask someone to
lie. He did not even say "I suggest you lie." Rather, as is
almost always the case in white collar obstruction prosecutions,
his words, along with their setting and their context, suggested
a certain story -- in that case, as well as this, a false story.
Just as Mr. O'Keefe did not expressly ask someone to lie, Mr.
Clinton never asked someone to lie. He didn't have to. He was
too smart for that. And he had witnesses who, at that time at
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least, were willing, ready and able to do his bidding. The
president lied to the grand jury when he made these statements
mischaracterizing his earlier statements to Mrs. Currie, just as
he tampered with her as a likely witness nine months earlier, in
January.
The president's assertion that he simply was trying to
understand what the facts were lacks even colorable credibility
when one considers that he had already testified. It was
obviously too late to try and recollect what the facts were. If
in fact one accepts that, then he's admitting he didn't testify
to what the facts were under oath at the deposition, 'cause he
didn't say "I don't know, I have to ask Mrs. Currie." He
testified under oath as to what the facts purportedly were.
BARR: Then he would have us believe that he had to after the
fact of the deposition go back and find out what the facts were
from somebody else. That is an argument that cannot be made
with a straight face.
In any event, Mrs. Currie could not have told him what the
true facts were because he alone knew what they were.
The defenses and explanations the president's defenders raise
to justify why the president would make factual assertions to
Mrs. Currie about the circumstances of his relationship with
Miss Lewinsky right after his testimony are many.
For example, one administration witness who appeared before
the House Judiciary Committee actually suggested that such
coaching is proper as a method whereby any attorney prepares a
client or witness for testimony.
Of course, such a suggestion in this case would be ludicrous.
President Clinton obviously did not and could not represent Mrs.
Currie as her attorney. Yet it is this sort of explanation,
straining credulity, that illustrates the lengths to which the
president's defenders have gone to try and explain away the
obvious, that there was no legitimate reason why the president
made the statements to Mrs. Currie after his grand jury
testimony other than to suggest to her what her testimony should
be.
In federal criminal trials, defendants go to jail for such
obstruction. In the case before you, we submit this clearly
forms a proper basis on which to convict this president of
obstruction of justice for witness tampering and subsequent
perjury.
Please keep in mind also, it is not required that the target
of a defendant's actions actually testify falsely. In fact, the
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witness tampering statute can be violated even when there is no
proceeding pending at the time the defendant acts in suggesting
testimony.
BARR: As the cases discussed by Manager Cannon demonstrate,
for a conviction under either section, 1503, obstruction, or
1512, obstruction by witness tampering, it is necessary only to
show it was possible the target of the defendant's actions might
be called as a witness. That element has been more than met
under the facts of this case.
It was not only likely Mrs. Currie would be called, the
president's own testimony, deliberate testimony to the grand
jury, pretty much guaranteed that she would be called. He
wanted her called so that she could then buttress his false
testimony.
His actions clearly we believe violated both the general
obstruction statue and the witness tampering statute in these
particulars and in this regard.
With regard to the obstruction regarding the subpoena for the
president's gifts to Miss Lewinsky, let us look at the merger of
the facts and the law. As has been discussed, while the witness
tampering statute makes it a crime to attempt to influence the
testimony of a person, it also makes it a crime to influence a
person to withhold an object from an official proceeding. In
other words, to tamper with evidence.
The facts of this case, we as House managers believe, clearly
show the president corruptly engaged in, encouraged or supported
a scheme with Monica Lewinsky and possibly others to conceal
evidence that had been subpoenaed lawfully in the Jones case.
BARR: On December 12th of 1997, Ms. Lewinsky was served with
a subpoena in the Jones case requiring her to produce each and
every gift given to her by the president. Then on December
28th, Ms. Lewinsky again met with the president in the Oval
Office at which time they exchanged gifts. They also discussed
the fact that the lawyers in the Jones case had subpoenaed all
the president's gifts to Ms. Lewinsky, and especially a hat pin.
The hat pin apparently had sentimental significance to both of
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them in that it was the very first gift the president gave to
Ms. Lewinsky.
During that conversation, Ms. Lewinsky asked the president
whether she should put the gifts away outside her house or give
them to someone, maybe Betty. At that time, according to Ms.
Lewinsky's sworn testimony, the president responded "let me
think about that." Well, apparently he did, because later that
day -- that very same day -- only a few hours after Ms. Lewinsky
and the president had met to discuss what to do with the gifts,
Ms. Currie called Ms. Lewinsky, setting in motion the great gift
exchange.
According to Ms. Lewinsky, Mrs. Currie said: "I understand
that you have something to give me" or "the president said you
have something to give me." In her earlier proper (ph) or
offer of evidence to the independent counsel, prior to her
testimony before the grand jury, Ms. Lewinsky said Mrs. Currie
had said the president had told her, that is Mrs. Currie, that
Ms. Lewinsky wanted her to hold onto something for her.
BARR: After their conversation at the Oval Office, Mrs.
Currie drove to Ms. Lewinsky's apartment for only the second
time in her life. There she picked up a box sealed with tape,
which was written, "please, do not throw away." Mrs. Currie
then took the box, drove to her home, placed the box under her
bed.
Now, at her grand jury testimony Mrs. Currie testified that
she and Ms. Lewinsky did not discuss the content of the box, nor
did she open it when she got it to her home. But she knew, she
understood, what was in the box, that it contained the gifts
from the president to Ms. Lewinsky. In fact, Ms. Lewinsky
testified that Mrs. Currie was not at all confused, surprised or
even interested when she handed the box over to her.
The legal impact, the illegal import of is that there is no
question that if the gifts had actually been produced to the
Jones lawyers, they would have established a significant
relationship between the president and Ms. Lewinsky. Knowledge
of the gifts, at a minimum, would have caused the Jones lawyers
to inquire further as to the nature of the relationship between
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the president and Ms. Lewinsky. Her failure to turn over the
gifts, as required by the lawful subpoena served on her, was in
the words of the witness tampering statute, "the withholding of
an object from an official proceeding."
We believe the evidence shows, clearly establishes, that the
president corruptly persuaded Ms. Lewinsky to withhold these
objects from the lawful proceedings in the Jones case.
In his grand jury testimony, the president asserted he
encouraged Ms. Lewinsky to turn over the gifts. Ms. Lewinsky's
testimony directly contradicts that. Importantly, all other
evidence of subsequent acts corroborate her testimony, not the
president's. For one thing the gifts were never turned over.
In fact, Ms. Lewinsky testified she was never under any
impression from anything the president said, that she should
turn over the gifts to the attorneys for Ms. Jones -- quite the
opposite.
BARR: While the president asserts he never spoke about this
matter with Betty Currie, he would have us believe that his
personal and confidential secretary would, on a Sunday, drive to
the home of the woman with whom he was having an inappropriate
intimate relationship, take possession of a sealed box, which
she believed to contain gifts given by the president, hide the
box under the bed in her home, never question the person giving
her the box, and never even mention to the president she had
received the box of gifts.
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The president's position as he would have you believe is not
credible. It defies the evidence. It defies any reasonable
interpretation or inference from the evidence. It defies common
sense and it stands in defiance of federal law.
The only reasonable interpretation of the facts is that,
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following the discussion between the president and Miss Lewinsky
earlier in the day on December 28th, the president decided Miss
Lewinsky had actually come up with a pretty good suggestion: the
gifts should be put away, outside of her home.
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As jurors, you may reasonably presume that, based on the
evidence and all reasonable inferences therefrom, along with
common sense, that it was the president who directed Mrs. Currie
to call Ms. Lewinsky to tell her she understood she had
something for her.
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BARR: And that happened to be evidence under lawful subpoena
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Mrs. Currie would have no independent reason to even consider
such a course of action on her own. She had never, other than
one time in her life, ever driven to Miss Lewinsky's home. She
did so on this Sunday not because she developed a sudden
hankering to do so, or because she routinely visited interns at
their home -- she didn't -- or because she had a vision. She
did it because the president would have asked her to do it.
16:41:43
Now, the president further points out that Mrs. Currie has
testified that Miss Lewinsky called her to arrange to pick up
the gifts, rather than the other way around. In fact, though,
Mrs. Currie has testified inconsistently as to whether Miss
Lewinsky called her or she called Miss Lewinsky. She actually
deferred to Miss Lewinsky's superior knowledge of the facts.
However, even if one were to accept for purposes of argument
that it was Miss Lewinsky who initiated the call, the
president's avowal that he had no knowledge of or involvement
with the hiding or transfer of the gifts is still not plausible.
It is totally unreasonable to presume that the private
secretary to the president of the United States would drop what
she was doing, travel to the home of a former intern, pick up a
box, and hide it in her home simply because the former intern
demanded that she do so.
BARR: All of this had to have been done reasonably,
plausibly, credibly was done, because of communication,
directive and understanding between the president and his
personal secretary.
There's one more point on this. Miss Lewinsky testified she
met with the president for 45 minutes on December 28th, at which
time they discussed the fact she had been subpoenaed along with
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the need to conceal the gifts. The president's testimony
directly conflicts with hers on this point.
16:43:30
First, the evidence, however, establishes that his professed
inability to remember whether she and the gifts had been
subpoenaed is unbelievable and false. Please keep in mind when
evaluating the circumstantial evidence to determine whether a
false statement was made intentionally, the most important
evidence to consider is the existence of a motive to lie. It is
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the calculated falsehood, combined with a clear motive to lie,
that leads day in and day out in federal court proceedings to
the conclusion that the false statement -- false statements were
intentional.
16:44:15
Also, we urge you to bear in mind that the law will not allow
a person to testify, "I don't recall" or "I'm not sure,"
when such answers are unreasonable under the circumstances.
16:44:34
Former United States Representative Patrick Swindle attempted
this course of action when he appeared before a federal grand
jury in the Northern District of Georgia in 1988.
16:44:45
BARR: His evasive and false answers to the grand jury
provided the basis for his subsequent conviction. Feigned
forgetfulness or feigned assertions that grand jury questions
are ambiguous and therefore can not be answered can not, and, in
fact, in federal proceedings do not shield defendants from
criminal liability for perjury or impeding the conduct of a
federal grand jury; nor should such efforts be allowed to shield
President Clinton from conviction on these two articles of
impeachment, as to these facts.
16:45:24
The president, a man of considerable intelligence and gifted
with an exceptional memory -- as somebody described, a
prodigious memory -- can and should be inferred to have clearly
understood what he was doing, as well as the logical and
reasonable consequences of his actions as well the questions put
to him by the independent counsel in the grand jury questioning.
16:45:52
And he had a clear motive to falsely state to the grand jury
that he could not recall that he knew on December 28th that Ms.
Lewinsky had been subpoenaed, and that this subpoena called for
her to produce the gifts. For to have acknowledged such would
have helped establish a motive on his part for orchestrating the
concealment of the gifts.
16:46:15
And as we have also seen and understand, there is no doubt
the president's statement of feigned forgetfulness was material,
not only to the matters before the Jones case, but to matters
subsequently before the grand jury.
Now, the president's counsel may very well argue the fact
that the president gave Ms. Lewinsky additional gifts on that
same day, that is December 28th, as proof of the president's
assertions that he didn't know there was anything wrong going on
here.
16:46:50
BARR: Their argument, if they make it, cannot be sustained
in the face of such much evidence to the contrary. The evidence
and facts points to a much more plausible explanation. The
additional gifts given that day demonstrate the president's
continued confidence that Miss Lewinsky would keep to their
earlier agreement to conceal their relationship.
It is also plausible that the additional gifts were intended
as a further gesture of affection by the president to Miss
Lewinsky to help ensure she would not testify against him. Such
a fact pattern also finds its way, to those of us who have
prosecutorial background, into federal courts on a regular
basis.
We have heard about the job search and its relationship to
perjury and obstruction. Let me tie the facts relating to the
job search and the law applicable thereto together. We believe
as managers that evidence shows that beginning on or about
December 7th of 1997 and continuing through and including
January 14th of last year, the president intensified and
succeeded in an effort to secure job assistance for a witness in
a federal civil rights case brought against him in order to
corruptly prevent the truthful testimony of that witness in that
proceeding at a time when the truthful testimony of that witness
would have been harmful to him.
Monica Lewinsky is, if nothing else, a persistent witness.
BARR: After she was transferred out of the White House, and
after being rebuffed repeatedly by others to secure assistance
from the president in gaining a job that met her expectations
and wishes, she decided to change tacks. She wrote directly to
the president, asked for and received a meeting, in which she
asked him to find her a job in New York.
16:49:09
The day before the president filed his answers to the
interrogatories in the Jones case, as Manager Gekas discussed,
the president asked Mrs. Currie to set up a meeting for Miss
Lewinsky with Mr. Vernon Jordan. Two days after he filed his
answers, in which he refused to answer whether he had ever had
any extramarital relationships in the context or his public
jobs, that meeting in fact occurred.
But Mr. Jordan made no particular effort to assist Miss
Lewinsky at that time. In fact, as he later testified, he had
no recollection of the meeting. There was of course at that
early stage no urgency.
16:49:54
The situation, however, changed dramatically in early
December 1997. On December 6, the president became aware that
Miss Lewinsky had been named as a witness in the Jones case.
Earlier that days, she had thrown a tantrum at the White House
northwest gate when she was unable to meet with the president
when she wanted.
16:50:17
Despite the president's initial anger over Miss Lewinsky's
behavior and over the acts of some of the Secret Service
officers, a mere five days later Miss Lewinsky in fact secured
her second meeting with Mr. Vernon Jordan. But this time,
unlike previously, this powerful Washington lawyer jumped for
the former intern. He immediately placed calls to three major
corporations on her behalf.
16:50:47
On December 11, Judge Wright ordered the president to answer
Paula Jones' interrogatories.
16:50:54
BARR: On December 17th the president suggested to Miss
Lewinsky she file the affidavit and continue to use their cover
stories in the event she was asked about her relationship with
the president. The next day she had two interviews in New York
City arranged by Mr. Jordan.
16:51:16
On December 22nd Miss Lewinsky met with an attorney at a
meeting arranged by Mr. Jordan. The following day she had
another job interview arranged by Mr. Jordan.
16:51:30
On January 7th Miss Lewinsky signed the false affidavit and
proudly showed the executed copy to Mr. Jordan. The next day,
Ms. Lewinsky had an interview arranged by Mr. Jordan with
McAndrews & Forbes in New York City, an interview that,
apparently, went poorly. To remedy this she called Mr. Jordan,
and so informed him. Mr. Jordan then called the CEO of
McAndrews & Forbes, Mr. Ron Perelman, to, in Mr. Jordan's words
-- to, in Mr. Perelman's words, "Make things happen if they
could happen."
After Mr. Jordan's call to Mr. Perelman, Ms. Lewinsky was
called and told she would be interviewed again the very next
morning. That following day she was reinterviewed and
immediately offered a job. She then called Mr. Jordan to tell
him, and he passed the information on to Mrs. Currie: "Tell the
president 'mission accomplished'."
Now what are you, as jurors, entitled to conclude from all of
this as a matter of law and of fact?
BARR: Until it became clear that Miss Lewinsky would be a
witness in the Jones case, little was done to help her to help
her with her job search. But once she was listed as a witness,
things changed dramatically and rapidly.
Just days after she is listed on the Jones' witness list, she
gets a second meeting with one of the most influential men in
Washington. But unlike their first meeting, Mr. Jordan now
makes three calls on her behalf to get her a job interview.
A week later the president proposed the affidavit. The next
day Miss Lewinsky has two job interviews in New York. A few
days later, Mr. Jordan arranges for an attorney to represent
her. The next day she has another job interview. Two weeks
later she signs the affidavit. The next day she has another
interview.
Mission accomplished. Obstruction accomplished. Another
potentially embarrassing witness in the bag. Were Monica
Lewinsky to get a job and move to New York, this would help the
president substantially in two very important ways. First, it
16:54:01
would presumably create a happy and probably compliant witness
-- one willing if not eager to support the president's false
testimony.
16:54:12
Second, it would make Miss Lewinsky much more difficult if
not impossible to reach as a witness in the Jones case. In
fact, this is precisely what the president himself suggested to
Miss Lewinsky during their December 28th meeting, according to
her sworn testimony. To put it plainly but respectfully, if
that is not obstruction by witness tampering, one would be
hard-pressed to find a fact pattern that was.
This aspect of the case against the president is extremely
important. She gets the job. and what did the president get?
The key affidavit to throw the Jones' lawyers off the trail.
And possibly a witness outside the practical reach of the
attorneys, much like the absent witnesses we've seen in large
numbers in the campaign financing investigations.
The president's efforts were designed to and did obstruct
justice and tamper with a witness. And his actions, we submit,
were criminal under both sections 1503 and 1512 of the federal
criminal code.
The president's false statements to his senior aides. Here,
too, the facts and the law come together and would form the
basis, we respectfully submit, for a conviction on articles of
impeachment.
All that needs to be shown to prove a violation of the
statute is that the defendant engaged in misleading conduct with
another person to influence that testimony.
BARR: Misleading conduct is not a term of art for which
there is no definition. It is specifically defined in the
federal criminal code as section 1515.
When you as jurors properly apply these definitions to the
terms of section 1512, the tampering statute, the federal -- the
-- and then turn your attention to the facts in this case,
wherein the president repeatedly and deliberately gave false
explanation to aides he knew or should reasonably have known
would be witnesses in federal judicial proceedings, the
conclusion he violated this statute is, we respectfully submit,
unavoidable.
Would point to one case previously mentioned, the O'Keefe
(ph) case, as particularly perhaps applicable to deliberations
on this particular point.
16:57:16
Finally, statements by the president and his lawyer
concerning the affidavit during the Jones deposition. The
obstruction statute may also be violated, as you know, by a
person who gives false testimony.
16:57:30
In the Jones case, the president allowed his attorney to make
false and misleading statements to a federal judge. This part
of the obstruction scheme was accomplished by characterizing as
true the false affidavit filed by Miss Lewinsky in order to
prevent questioning by the Jones lawyers, testimony which had
already been deemed relevant by the judge in that case.
The president's lawyer, as you have heard, objected to the
innuendo of certain questions asked of the president and at that
point during the deposition pointed out that Miss Lewinsky had
signed an affidavit denying the relationship with the president.
He then made the famous statement about there being no
relationship of any way, shape, or form or kind.
BARR: Following this statement, the judge, judge Wright,
warned Mr. Bennett about making an assertion of fact in front of
the witness, that is the president, to which he replied, "I'm
not coaching the witness. In preparation of the witness for
this deposition, the witness is fully aware of the affidavit, so
I have not told him a single thing he don't know." The
president's lawyers did not know what an understatement that
was.
Later, on September 30th, of 1998, long after the deposition
and after the full evidence of Ms. Lewinsky's relationship with
the president became public, Mr. Bennett wrote to judge Wright
to inform her that she should not rely on the statements he made
during the president's deposition because parts of the affidavit
were misleading and not true -- misleading and not true --
sounds like perjury; sounds like obstruction.
Which brings us full circle. Full circle from a false
affidavit confirming earlier concocted cover stories, through a
web of obstruction, to a letter from a distinguished lawyer
forced to do what no lawyer wants to do, but every honorable
lawyer must do when confronted with clear evidence their client
misled the court, and that is to correct the record of falsity
even to the detriment of their client.
What we had before us, Senators and Mr. Chief Justice is
really not complex, critically important, yes, but not
essentially complex.
BARR: Virtually every federal or state prosecutor, and there
are many distinguished such persons on this jury, have
prosecuted such cases of obstruction before in their careers,
perhaps repeatedly -- cases involving patterns of obstruction
compounded by subsequent cover up perjury.
The president's lawyers may very well try to weave a spell of
complexity over the facts of this case. They may nitpick over
the time of a call or parse a specific word or phrase of
testimony, much as the president has done.
17:00:37
We urge you, the distinguished jurors in this case, not to be
fooled. Use ...
17:00:46
REHNQUIST: The chair recognizes the gentleman from Iowa.
17:00:50
TOM HARKIN: Mr. Chief Justice, I object to the use and the
continued use of the word "jurors" when referring to the
Senate sitting as triers -- a trial on the impeachment of the
president of the United States. Mr. Chief Justice, I based my
objection on the following.
17:01:11
First, Article One, Section Three of the Constitution says
the Senate shall have the sole power to try all impeachments --
not the courts, but the Senate. Article Three of the
Constitution says the trial of all crimes, except in the cases
of impeachment, shall be by jury -- a tremendous exculpatory
clause when it comes to impeachments.
17:01:59
And next, Mr. Chief Justice, I based my objection on the
writings in the Federalist Papers, especially Federalist Paper
number 65 by Alexander Hamilton, in which he is outlining the
reasons why the framers of the Constitution gave to the Senate
the sole power to try impeachments.
17:02:17
HARKIN: I won't read it all, but I will read this pertinent
sentence where Mr. Hamilton says, and I quote, "There will be
no jury to stand between the judges who are to pronounce the
sentence of the law and the party who is to receive or to suffer
it."
17:02:38
Next, Mr. Chief Justice, I base my objection on the 26 rules
of the Senate adopted by the Senate governing impeachments.
Nowhere in any of those 26 rules is the word "juror" or
"jury" ever used.
17:03:01
And next, Mr. Chief Justice, I base my objection on the
tremendous differences between regular jurors and senators
sitting as triers of an impeachment. Regular jurors, of course,
are chosen, to the maximum extent possible, with no knowledge of
the case. Not so when we try impeachments. Regular jurors are
not supposed to know each other. Not so here.
17:03:33
Regular jurors cannot overrule the judge. Not so here.
Regular jurors do not decide what evidence should be heard or
the standards of evidence, nor do they decide on witnesses or
what witnesses shall be called. Not so here.
Regular jurors do not decide when a trial is to be ended.
Not so here.
17:03:59
Now, Mr. Chief Justice, it may seem a small point, but I
think a very important point, I think the framers of the
Constitution meant us -- the Senate to be something other than a
jury, and not jurors. What we do here today is not just to
decide the fate of one man.
17:04:31
HARKIN: Since the Senate sits on impeachment so rarely, and
even more rarely on the impeachment of a president of the United
States, what we do here sets precedents. Future generations
will look back on this trial not just to find out what happened,
but to try to decide what principles governed our actions.
17:05:00
To leave the impression for future generations that we
somehow are jurors and acting as a jury ...
17:05:08
GREGG: Mr. Chief Justice, could I call for regular order at
this point?
17:05:14
REHNQUIST: The chair recognizes the senator from New
Hampshire.
17:05:17
GREGG: I would ask, as a parliamentary point, whether it is
appropriate to argue what I understand is a statement as to the
proper reference relative to members of the Senate. This is not
a motion, as I understand it, if this is a motion, it's not
debatable, as I understand.
17:05:33
HARKIN: Mr. Chief Justice?
17:05:38
REHNQUIST: I think you may state your objection certainly,
but not argue on it (ph). The chair views that you may state
the objection and some reason for it, but not argue it ad
infinitum.
17:05:50
HARKIN: Yes. I was just stating the reason for my
objection, because of the precedents that we set, and that I do
not believe it would be a value precedent to leave for future
generations that we would be looked upon merely as jurors, but
something other than being a juror. And that's why I raise that
objection, Mr. Chief Justice.
17:06:06
REHNQUIST: The chair is of the view that the senator from
Iowa's objection is well taken, that the court -- the Senate is
not simply a jury, it is a court in this case, and therefore
counsel should refrain from referring to senators as jurors.
17:06:22
BARR: I thank the court for its ruling.
17:06:31
We urge you, the distinguished senators sitting as triers of
fact and law in this case, not to be fooled. We urge you to use
your common sense, your reason, your varied and successful
career experiences, just as any trier of fact and law anywhere
in America might do, just as does that other trier of fact and
law do, so too have each of you sworn to decide these momentous
matters impartially.
17:07:06
BARR: Your oath to look to the law and to our Constitution
demand this of you. As this great body has gone on so many
occasions in the course of our nation's history, I and all
managers are confident you will neither shrink from nor cast
aside that duty. Rather I urge, and fully anticipate, you will
look to the volume of facts, and to the clear and fully
17:07:31
applicable statutes, and conclude that William Jefferson
Clinton, in fact, and under the law, violated his oath and
violated the laws of this land, and convict him on both articles
of impeachment.
17:07:46
Even though such a high burden -- that is, proof of criminal
violations -- is not strictly required of you under the law of
impeachment, in fact such evidence is here; that higher burden
is met; perjury is here; obstruction is here in the facts and
the law, which formed the basis for the articles of impeachment
in the House, and which we believe, properly, would form the
basis for conviction in the Senate.
17:08:26
Perjury and obstruction. We respectfully ask you to strike
down these insidious cancers that eat at the heart of our system
of government and laws. Strike them down with the Constitution,
so they might not fester as a gaping wound poisoning future
generations of children, poisoning our court system, and perhaps
even future generations of political leaders.
17:08:52
Just as members of both Houses of Congress have,
unfortunately, over the years been convicted and removed from
office for perjury and obstruction And just as federal judges
have been removed from life tenure for perjury and obstruction,
so must a president, so sadly should this president and just as
federal judges have been removed from life tenure for perjury
17:09:13
and obstruction, so must a president, so sadly should this
president.
17:09:18
BARR: Thank you, Mr. Chief Justice, and thank you members of
the United States Senate sitting here as triers of fact and law
in the trial of President William Jefferson Clinton.
17:09:30
REHNQUIST: The chair recognizes the majority leader.
17:09:34
TRENT LOTT: Mr. Chief Justice, as a reminder to all participants
in these proceedings, we will begin at 10 a.m. on Saturday,
January the 16th, and we're expected to conclude sometime
between 3 and 3:30 p.m. I had earlier indicated it might go as
late as five. I understand it will be between three and
three-thirty.
17:09:53
And therefore Mr. Chief Justice, pursuant to the previous
consent agreement, I ask unanimous consent the Senate stand in
adjournment under the previous order.
17:09:59
REHNQUIST: Without objection, it is so ordered.
SENATE IS ADJOURNED