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ADDITIONAL DISSENTING VIEWS OF REPRESENTATIVE

WILLIAM D. DELAHUNT I oppose the articles of impeachment as reported by the Judiciary Committee. I agree with much of the reasoning included in the Minority's Dissenting Views. However, I write separately to clarify my own perspective on a number of matters, including the reliability of the allegations upon which the case for impeachment is based.

I neither condone nor excuse the President's admitted misdeeds. However, I agree with my Minority colleagues that the allegations, even if true, do not form a constitutionally sufficient basis for impeachment. Whatever the Founders meant by “high Crimes and Misdemeanors,” it is well-established that impeachment should be reserved for situations in which the incumbent poses so grave a danger to the Republic that he must be replaced before finishing his term of office. The Majority has utterly failed to establish that such is the case here.

As for the allegations themselves, however, I do not believe the Minority is in any better position to assess their accuracy then the Majority. The committee took no direct testimony in this matter. We called not a single witness who could testify to the facts. Instead, we relied solely on the assertions contained in the referral of the Independent Counsel. Those assertions are based on grand jury testimony and other information-much of it ambiguous and contradictory—whose credibility has never been tested through cross-examination.

Even absent such evidentiary problems, Article II of the Constitution imposes upon the committee a solemn obligation—which it may not delegate to the Independent Counsel or any other individual—to conduct a thorough and independent examination of the allegations and make its own findings of fact.

By failing to do this—by merely rubber-stamping the conclusions of the Independent Counsel—we have not only failed to establish a factual basis for the charges set forth in the articles of impeachment, but have abdicated our constitutional role to an unelected prosecutor and recklessly lowered the bar for future impeachments. In so doing, we have sanctioned an encroachment upon the Executive Branch that could upset the delicate equilibrium among the three branches of government that is our chief protection against tyranny.

A related casualty of our cavalier approach to this investigation has been the due process to which even our Presidents are entitled. We released the referral—including thousands of pages of secret grand jury testimony-within hours of its receipt, before either the Judiciary Committee or the President's counsel had any opportunity to examine it. We voted to initiate a formal inquiry against the President without even a cursory review of the allegations. We required the President's counsel to prepare his defense without

knowing what charges would be brought. And we released articles of impeachment-drafted in secrecy by the Majority alone before the President's counsel had even finished his presentation to the

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Having put before the public a one-sided case for the prosecution, some members of the Majority actually suggested that the President had the burden of proving his innocence. When he attempted to do so, those same members accused him of "splitting hairs."

This was perhaps the most disturbing aspect of our proceedings. We live in a nation of laws, in which every person—whether pauper or President-is entitled to due process. This has nothing to do with “legal hairsplitting.” It has everything to do with requiring those who wield the awesome power of the State to meet their burden of proof. That is what distinguishes this country from a totalitarian one. That is the genius of a Constitution crafted by men who knew and understood the nature of tyranny. As one former United States Attorney testified during our hearings, those who complain most loudly about such “technicalities” are the first to resort to them when it is they who stand accused.

Publice confidence in the rule of law is ultimately more important than the fate of one particular President. And the official lawlessness that has characterized this investigation has done far more to shake that confidence than anything of which the President stands accused.

These proceedings stand in stark contrast to those of the Watergate committee-which the Majority had self-consciously adopted as its model. During the Watergate crisis, the Rodino committee managed to transcend partisanship at a critical moment in our national life, and set a standard of fairness that earned it the lasting respect of the American people. As the Judiciary Committee voted to launch this inquiry, I expressed the hope that our proceedings would be equally fair, thorough and bipartisan, and that—whatever our verdict might be our efforts would be found as worthy of praise.

In at least one important respect, the committee did merit such praise. Chairman Hyde permitted us to offer a censure resolution despite the extraordinary pressures that were brought to bear for him not to do so. In my view, the resolution which I sponsored, together with Mr. Boucher, Mr. Barrett and Ms. Jackson Lee, was and remains—the most appropriate means of condemning the President's misconduct while sparing the nation the further turmoil and uncertainty of a lengthy Senate Trail.

Contrary to the continuing claims of some that censure would be unconstitutional, a score of constitutional experts called as witnesses by both Republican and Democrats on the Committee agreed in writing—by a margin of almost 4 to 1—that the Constitution does not prohibit censure. And it would be breathtaking departure from the democratic principles which are the soul of the Constitution to deny the full House an opportunity to vote on an alter- , native to impeachment.

As we stand on the brink of an impeachment vote for only the second time in our history, we can only hope that the democracy that has survived so many storms will weather this crisis as well,

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and that the irresponsible actions of this Committee will not do lasting damage to the country that we all so dearly love.

WILLIAM DELAHUNT.

ADDITIONAL DISSENTING VIEWS OF REPRESENTATIVE

STEVEN R. ROTHMAN During the course of the Judiciary Committee's work concerning the eleven charges brought against President Clinton by Independent Counsel Ken Starr, I have sought to do my duty as a member of the House Judiciary Committee: to keep an open mind, study the historical origins of our Constitution's impeachment standard and subsequent legal precedent, listen carefully and conduct myself in a manner that my constituents, history and my children will respect.

I have worked hard to be attentive to all arguments and points of view on these subjects, no matter from which political party, if any, the author of those views emanated. Now, I have, after all these months of hard work and deliberation, been called upon to vote on Articles of Impeachment:

With regards to the charges of perjury, abuse of power and obstruction of justice brought by Judge. Starr against the President emanating from the Paula Jones civil deposition and the later Grand Jury testimony regarding that deposition, none of us on the House Judiciary Committee were fact witnesses to any of the alleged acts. Even Judge Starr has repeatedly admitted that he was not a fact witness to any impeachable offense allegedly committed by the President.

In the present case, however, Judge Starr has chosen only to make opening statements, both written and oral. He has presented no fact witnesses. Instead, he has relied on transcribed portions of statements from people whose civil deposition was taken or who were questioned by his staff before a grand jury. But none of these witnesses was ever cross-examined by the President's counsel or anyone else, even though there was a great deal of conflicting and ambiguous testimony given by each of these witnesses. In addition, the President's counsels, David Kendall and Charles Ruff, and the House Judiciary Committee's minority counsel Abbe Lowell, in their written and oral responses, have rebutted and refuted each and every one of the charges raised by Judge Starr.

Here, when basic facts are in doubt, I firmly believe that it was incumbent upon those advancing the impeachment of a sitting U.S. President, to bring forth the fact witnesses so that we on the House Judiciary Committee could hear them, see them and cross-examine them.

Cross-examination of the people whose words one wants to use to prove something in a judicial proceeding is an old and longstanding requirement of our American system of justice. Being a nation founded by rebels loathe to take the word of government officials only, our Founders gave all accused the right to confront witnesses against them, to put the burden of proving guilt on the accuser and did not require the accused to prove his or her innocence. To put the burden of proof on the accused, in this case President Clinton, subverts not only the Congress's impeachment power, but two hundred years of American justice.

Some argue that because it is the Senate that conducts the impeachment trial of the President, the House Judiciary Committee should not require certainty of the truthfulness of the impeachment charges. However, when the subject is the impeachment of the President of the United States, it is my opinion that a clear and convincing standard of proof must be met before the House Judiciary Committee and the House of Representatives send this matter to the Senate.

Our Founders created a democracy in which the President was to be the only person in America elected by all the people. The President was to be in office for only four-year terms and would not be guaranteed any tenure longer than four years at a time. Only in extraordinary circumstances would the Congress be able to remove a sitting President.

As you may know, the Federalist Papers #65 speaks of a real fear that a House of Representatives dominated by one political party would impeach a President of the opposite party without sufficient cause or proof-causing a terrible shock and disruption to our political system.

That is why the Framers of the Constitution set the bar for Presidential impeachment so high. They specifically rejected such standards as “maladministration” and failure to demonstrate “good behavior”. Instead, they chose "treason, bribery, or other high crimes and misdemeanors.” According to most scholars, that phrase clearly meant offenses as serious a threat to the republic as “treason” or “bribery."

The various experts and scholars who made presentations to the Judiciary Committee reminded us that President Clinton can be sued civilly and criminally for any conduct at issue. He is not above the rule of law. Therefore, no matter what decision this Congress makes about impeaching President Clinton, the world knows, and our children know, that the rule of law in America applies to all of us“ even the President.

But this impeachment vote is not about enforcing the civil or criminal law, that is the role of the civil and criminal courts. Our responsibility is to determine if Judge Starr has sufficiently proven any facts upon which our Constitution would permit Congress to remove our duly elected President from office.

In my opinion, Judge Starr's burden of proving his case of perjury, obstruction of justice and abuse of power—by clear and convincing evidence-has not been met.

In particular, given the conflicting interpretations given to the deposition and grand jury witnesses' transcripts relied upon by Judge Starr, it was incumbent upon those seeking President Clinton's impeachment to present us with the facts witnesses who would support the charges. We needed to hear them, see them and cross-examine them in order to have determined the truthfulness of Judge Starr's conclusions of fact and law. None were brought before us. The prosecution's burden was not met. Therefore, I will vote against issuing Articles of Impeachment against President Clinton based on Judge Starr's charges.

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