government. Little can be added to the succinct argument [The contention is that] however serious the crime, the misdemeanor, or misbehavior of the judge may be, if it can be said to be extrajudicial, he cannot be impeached. To illustrate this contention, the judge may have committed murder or burglary and be confined under a sentence in a penitentiary for any period of time, however long, but because he has not committed the murder or burglary in his capacity as judge he cannot be impeached. That contention, carried out logically, might lead to the very defeat of the performance of the function confided to the judicial branch of the government. . . As also noted in one commentary: An act or a course of misbehavior which renders scandalous the personal life of a public officer, shakes the confidence of the people in his administration of the public affairs, and thus impairs his official usefulness, although it may not directly affect his official integrity or otherwise incapacitate him properly to perform his ascribed functions. * * * * Thus, Judge Claiborne's argument is both inaccurate and illogical in its extraordinary premise that a federal judge may intentionally commit a felonious act outside his judicial functions and automatically find protection from the impeachment sanction. Opposition to Claiborne Motion at 3-5 (citations omitted) (emphasis in original). Senator Charles Mathias, Jr., chairman of the impeachment trial committee, referred Judge Claiborne's motion to the full Senate, it having jurisdiction over the articles of impeachment. Senate Claiborne Hearings at 113. He did state, however, that: [I]t is my opinion... that the impeachment power is not as narrow as Judge Claiborne suggests. There is neither historical nor logical reason to believe that the Framers of the Constitution sought to prohibit the House from impeaching . . . an officer of the United States who had committed treason or bribery or any other high crime or misdemeanor which is a serious offense against the government of the United States and which indicates that the official is unfit to exercise public responsibilities, but which is an offense which is technically unrelated to the officer's particular job responsibilities. Id. at 113-14. The Senate never voted on Judge Claiborne's motion. However, the Senate was clearly not swayed by the arguments contained therein because the body later voted to convict Judge Claiborne. 132 Con. Rec. S15,760-62 (daily ed. Oct. 9, 1986). The Senate thus agreed with the House that private improprieties could be, and were in this instance, impeachable offenses. The Claiborne case makes clear that perjury, even if it relates to a matter wholly separated from a federal officer's official duties— as to a judge's tax returns-is an impeachable offense. Judge Nixon's false statements were also in regards to a matter distinct from his official duties. Of course, the false statements made by Judge Hastings were intimately related to his official duties, as they were in regard to one of his cases. 2. Article II-Perjury in the Civil Case Article II charges President Clinton with willfully providing perjurious, false and misleading testimony in sworn answers to written questions asked as part of a federal civil rights action brought against him by Paula Jones, and in a deposition given as part of that action. These actions are impeachable offenses no less than is President Clinton's perjurious, false and misleading testimony to a federal grand jury. First, as previously stated, a person is guilty of perjury if in a proceeding before or ancillary to any court or grand jury of the United States, he knowingly makes any false material declaration under oath. A federal civil deposition is such an ancillary proceeding. See, e.g., United States v. Wilkinson, 137 F.3d 214, 225 (4th Cir. 1998), cert. denied 119 S.Ct. 172 (1998); United States v. McAfee, 8 F.3d 1010, 1014 (5th Cir. 1993). Thus, the actions of President Clinton alleged in this article can constitute perjury under federal law. Second, perjury in civil proceedings is just as pernicious as perjury in criminal proceedings. The Eleventh Circuit has stated that "[w]e categorically reject any suggestion, implicit or otherwise, that perjury is somehow less serious when made in a civil proceeding. Perjury, regardless of the setting, is a serious offense that results in incalculable harm to the functioning and integrity of the legal system as well as to private individuals." United States v. Holland, 22 F.3d 1040, 1047 (11th Cir. 1994), cert. denied 513 U.S. 1109 (1995). Third, certain federal circuits apply a loose definition of materiality to statements made in civil depositions because they are investigatory in nature. For instance, the Second Circuit in stated that "we see no persuasive reason not to apply the broad standard for materiality of whether a truthful answer might reasonably be calculated to lead to the discovery of evidence admissible at the trial of the underlying suit." United States v. Kross, 14 F.3d 751, 754 (2d Cir. 1994) (a section 1623 case). See contra United States v. Adams, 870 F.2d 1140, 1147 (6th Cir. 1989) (a section 1623 case) (The test is "whether a truthful statement might have assisted or influenced the tribunal in its inquiry."). The Fifth Circuit stated that "[o]rdinarily, there would appear to be no sufficient reason why a deponent should not be held to his oath with respect to matters properly the subject of and material to the deposition, even if the information elicited might ultimately turn out not to be admissible at the subsequent trial. United States v. Holley, 942 F.2d 916, 924 (5th Cir. 1991), aff'd after retrial, 986 F.2d 100 (1993) (a § 1623 case). In assessing the materiality of statements made in a discovery deposition, some account must be taken of the more liberal rules of discovery." 3. Article III-Obstruction of Justice Article III charges that President Clinton has "prevented, obstructed, and impeded the administration of justice, and has to that end engaged personally, and through his subordinates and agents, in a course of conduct or scheme designed to delay, impede, cover up, and conceal the existence of evidence and testimony related to a Federal civil rights action brought against him. ... a. Lessons from the Impeachment of President Nixon This article finds clear precedent in the first article of impeachment the Judiciary Committee approved against President Richard Nixon. That article charged President Nixon with interfering with the investigation of events relating to the June 17, 1972, unlawful entry at the Washington, D.C. headquarters of the Democratic National Committee for the purpose of securing political intelligence. Using the powers of his office, the president "engaged personally and through his subordinates and agents, in a course of conduct or plan designed to delay, impede, and obstruct the investigation of such unlawful entry; to cover up, conceal and protect those responsible; and to conceal the existence and scope of other unlawful covert activities." The article charged that implementation of the course of conduct included (1) making or causing to be made false or misleading statements to investigative officers and employees of the United States, (2) withholding relevant and material evidence or information from such persons, (3) approving, condoning, acquiescing in, and counseling witnesses with respect to the giving of false or misleading statements to such persons as well as in judicial and congressional proceedings, (4) interfering or endeavoring to interfere with the conduct of investigations by the Department of Justice, the Federal Bureau of Investigation, the Office of Watergate Special Prosecution Force and congressional committees, (5) approving, condoning, and acquiescing in surreptitious payments for the purpose of obtaining the silence of or influencing the testimony of witnesses, potential witnesses or participants in the unlawful entry or other illegal activities, (6) endeavoring to misuse the Central Intelligence Agency, (7) disseminating information received from the Department of Justice to subjects of investigations, (8) making false or misleading public statements for the purpose of deceiving the people of the United States into believing that a thorough investigation of "Watergate" had taken place, and (9) endeavoring to cause prospective defendants and persons convicted to expect favored treatment or rewards in return for silence or false testimony. Impeachment of Richard M. Nixon at 2-3. Article III against President Clinton states that "[t]he means used to implement this course of conduct or scheme included one or more of" seven acts. The first alleged act by President Clinton, "corruptly encourag[ing] a witness in a Federal civil rights action brought against him to execute a sworn affidavit in that proceeding that he knew to be perjurious, false and misleading", and the second alleged act, "corruptly encourag[ing] a witness in a Federal civil rights action brought against him to give perjurious, false and misleading testimony[,]" are clearly analogous to the third alleged act of President Nixon. The fourth alleged act by President Clinton was his that he "intensified and succeeded in an effort to secure job assistance to a witness in a Federal civil rights action brought against him in order to corruptly prevent the truthful testimony of that witness ." This is clearly analogous to the fifth alleged act of President Nixon. b. Federal Obstruction of Justice Statutes There are two federal obstruction of justice statutes. The first, § 1503 of title 18 of the United States Code, states, in relevant part, that "[w]hoever . . . corruptly, or by threats or force . . . influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be punished. . . ." 18 U.S.C. sec. 1503(a)(1996). The proscribed actions must relate to a pending judicial process. See, e.g., United States v. Walasek, 527 F.2d 676, 678 (3rd Cir. 1975). The pending judicial process can be a civil action. See, e.g., Falk v. United States, 370 F.2d 472, 476 (9th Cir. 1967), cert. denied 387 U.S. 926 (1967). The Fifth Circuit has stated that: Whatever can be accomplished through intimidating or influencing a witness, juror, or court official is labeled by section 1503 as an obstruction of justice, for the reason that each of these actors has certain duties imposed by law, and the interference with his performance of these duties necessarily disrupts the processes of the criminal justice system. United States v. Howard, 569 F.2d 1331, 1333-34 (5th Cir. 1978)(footnote omitted), cert. denied 439 U.S. 834 (1978). Even soliciting a merely prospective witness may provide the basis for a conviction. See United States v. Friedland, 660 F.2d 919, 931 (3rd Cir. 1981), cert. denied 456 U.S. 989 (1982); Falk v. United States, 370 F.2d at 476. The second statute, § 1512 of title 18 of the United States Code, states, in relevant part, that: Whoever... corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to . . . influence, delay, or prevent the testimony of any person in an official proceeding . . . [or] cause or induce any person to . . . withhold testimony, or withhold a record, document, or other object from an official proceeding. . . shall be [punished]. 18 U.S.C. §§ 1512(b)(1)–(2)(1996). Either of the two statutes can be used in the case of witness tampering. See, e.g., United States v. Maloney, 71 F.3d 645, 659 (7th Cir. 1995), cert. denied 117 S.Ct. 295 (1996); United States v. Tackett, 113 F.3d 603, 611 (6th Cir. 1997), cert. denied 118 S.Ct. 879 (1998). The first alleged act by President President Clinton, "corruptly encourag[ing] a witness in a Federal civil rights action brought against him to execute a sworn affidavit in that proceeding that he knew to be perjurious, false and misleading", and the second alleged act, "corruptly encourag[ing] a witness in a Federal civil rights action brought against him to give perjurious, false and misleading testimony[,]" clearly violate both statutes. The third alleged act, "corruptly engag[ing] in, encourag[ing] or [supporting] a scheme to conceal evidence that had been subpoenaed in a Federal civil rights action brought against him[,]" clearly violates the second statute. The fourth alleged act, that President Clinton “intensified and succeeded in an effort to secure job assistance to a witness in a Federal civil rights action brought against him in order to corruptly prevent the truthful testimony of that witness[,]" clearly violates both statutes. The sixth alleged act, "relat[ing] a false and misleading account of events relevant to a Federal civil rights action brought against him to a potential witness in that proceeding, in order to corruptly influence the testimony of that witness[,]” and the seventh alleged act, “ma[king] false and misleading statements to potential witnesses in a Federal grand jury proceeding in order to corruptly influence the testimony of those witnesses[,]" clearly violate both statutes. "The most obvious example of a § 1512 violation may be the situation where a defendant tells a potential witness a false story as if the story were true, intending that the witness believe the story and testify to it before the grand jury." United States v. Rodolitz, 786 F.2d 77, 82 (2d Cir. 1986), cert. denied 479 U.S. 826 (1986). 4. Article IV-Abuse of Power Article IV charges President Clinton with "refus[ing] and fail[ing] to respond to certain written requests for admission and willfully ma[king] perjurious, false and misleading sworn statements in response to certain written requests for admission . . . ." In doing such, the President "assumed to himself functions and judgments necessary to the exercise of the sole power of impeachment invested by the Constitution in the House of Representatives"-the Constitution provides that "the House of Representatives . . . shall have the sole Power of Impeachment”—and thus warrants impeachment. U.S. Const. art. Ì, sec. 2, cl. 5. Chairman Hyde made the written request for 81 admissions by letter dated November 5, 1998. The gravity of the request was made clear by the facts that the answers were to be under oath, Letter from Henry J. Hyde to U.S. President William J. Clinton (Nov. 5, 1998) and that if a response was not provided by President Clinton, the Judiciary Committee would have subpoenaed it. Chairman Hyde sent a letter to the President stating that "[i]f the Committee is not provided complete and specific answers to [the 81 questions] by Monday, November 30, I have no course but to urge the full Committee to subpoena those answers." Letter from Henry J. Hyde to U.S. President William J. Clinton 2 (Nov. 25, 1998). Far from representing novel grounds for impeachment, Article IV finds clear precedent in the third article of impeachment that the Judiciary Committee approved in the case of President Richard Nixon. That article found that President Nixon had committed impeachable offenses by failing to "produce papers and things as directed by duly authorized subpoenas issued by the Committee on the Judiciary" and "willfully disobey[ing] such subpoenas." The items subpoenaed were needed to "resolve. . . fundamental, factual questions relating to Presidential direction, knowledge or approval of actions demonstrated by other evidence to be substantial grounds for impeachment of the President." The Article found that the President: |