even though Ms. Lewinsky appeared twice before the grand jury, for a total of nine hours (plus a two hour deposition after the President's grand jury testimony and several more hours of OIC interviews), OIC prosecutors never asked her to state for the record whether she was encouraged to lie when she submitted her affidavit in the Jones case. It was only when a grand juror happened to ask Ms. Lewinsky if she would like to add anything to her testimony, that she stated, "I would just like to say that no one ever asked me to lie and I was never promised a job for my silence.” 298 Similarly, the Referral charges the President with intentionally lying about having sexual relations with Ms. Lewinsky. Yet, OIC prosecutors did not see fit to include in the Referral the statement by Ms. Lewinsky that she does not believe that she had sexual relations with the President.299 In addition, the Referral charges the President with asking Vernon Jordan to secure a job for Ms. Lewinsky in order to keep her from revealing their relationship when she testified in the Jones case. The Referral neglects to mention Ms. Lewinsky's statement to the OIC's investigators that "LINDA TRIPP suggested to LEWINSKY that the President should be asked to ask VERNON JORDAN for assistance." 300 The Referral also fails to mention that Ms. Lewinsky testified that Ms. Tripp told her, "Monica, promise me you won't sign the affidavit until you get a job. *** Tell Vernon you won't sign the affidavit until you get the job. ***"301 These same types of concerns animate the problems we have with the OIC's failure to provide prompt notice to the public of its determination to exonerate President Clinton with regard to the Whitewater, Travel Office, and White House file investigations. It became clear at our hearings that the OIC had made this determination before the November elections, yet failed to notify Congress or the public of its findings. B. UNFAIRNESS IN COMMITTEE INVESTIGATION 1. Unfairness in Conducting Committee Inquiry From the outset, Democrats have insisted that the process for conducting the impeachment inquiry be fair and balanced. We would be remiss if we did not acknowledge that in a few respects we have been able to reach bipartisan accord on procedural matters. For example, when the Majority chose to announce oversight hearings on the History and Background of Impeachment,302 and the Consequences of Perjury and Related Crimes, we were granted a reasonable opportunity to call our own witnesses. Also, we were able to reach accord concerning permitting Committee staff to review certain materials not initially provided to the Committee from the OIC, and requiring the OIC to respond to additional questions posed by the Members in writing. Chairman Hyde also granted Mr. Conyers' request that the Committee consider a censure alternative to impeachment. 298 H.R. Doc. No. 311 at 1161 (reprinting Lewinsky 8/20/98 GJ at 105) (emphasis added). 299 Supplemental Materials to the Referral to the U.S. House of Representatives Pursuant to Title 28, U.S. Code, Section 595(c) Submitted by the Office of Indep. Counsel, Sept. 9, 1998, H.R. Doc. No. 316, 105th Cong., 2d Sess. 2664 (reprinting Lewinsky/Tripp Phone Tr. 0018 at 49). 300 H.R. Doc. No. 311, supra, at 1393 (reprinting Lewinsky 7/27/98 OIC 302 at 5). 301 Id. at 902 (reprinting Lewinsky 8/6/98 GJ, at 182). 302 Although this hearing should have been called far earlier in the process. Regrettably, these occasional displays of bipartisanship were overshadowed by numerous other actions undertaken by the Committee which were unfair to the Minority members of the Committee, to the President, and, most importantly, to the American people. All too frequently, partisanship, unilateral decision-making, and fishing expeditions were the hallmarks of this inquiry and damaged its credibility even before it started. As a threshold matter, we were unable to achieve bipartisan consensus for the manner in which the inquiry was to be conducted. When H. Res. 581, authorizing the Committee inquiry was debated on the floor and at the Committee, Democrats offered an alternative resolution which would have allowed for an impeachment inquiry limited to the matters set forth in the OIC Referral, provided for a full debate on the standards of impeachment and a debate on whether the facts alleged rose to that standard, and provided for an orderly process to hear factual deadlines along with a tentative year-end deadline. Unfortunately, the Minority proposal was spurned on each occasion, the Majority sought no compromise, and the resulting inquiry was unfocused and standardless. We were also distressed by the Committee's complete failure to consider the direct testimony of any factual witness. The Committee gathered none of its own evidence and took testimony from none of its own witnesses. This was compounded by the oft-repeated statement that it is up to the Minority and the President to call witnesses to establish his own innocence. As a factual matter, this is incorrect-in contravention of the Watergate precedent laid down by Chairman Rodino, the Majority repeatedly rebuffed our efforts to obtain additional evidentiary information.303 In any event, the Majority position represents a breathtaking denial of the President's right to the presumption of innocence and his right to confront any witnesses making accusations against him. Although the Committee is not bound as a matter of House Rules to provide these protections, we believe it is incumbent upon the Committee to provide these basic protections. As Rep. Barbara Jordan (D–TX) observed during the Watergate inquiry, impeachment not only mandates due process, but of "due process quadrupled." 304 Instead of calling witnesses in order to independently assess their credibility, the Committee chose to rely in total on the OIC Referral and accompanying grand jury transcripts involving testimony solicited by the OIC attorneys. As we describe in more detail above, a principal problem in relying on the OIC Referral is that the case it makes out is largely circumstantial, with many of the critical alleged criminal elements provided by inference and surmise, rather than fact. In addition, numerous aspects of the witness testimony are not only confusing, but contradictory. Conducting a presidential impeachment inquiry in the absence of factual witnesses totally contravenes the Committee's Watergate precedent. During the Watergate inquiry, the Committee heard direct testimony from nine factual witnesses. The Members were also 303 For example, on November 9, Chairman Hyde rejected Mr. Conyers request to issue subpoenas to obtain a variety of evidentiary and witness material. On December 11, the Majority rejected Mr. Scott's motion that the Committee establish a scope of inquiry and hear from witnesses with direct knowledge of the allegations before considering articles of impeachment. 304 Watergate Impeachment Inquiry, Book I, 349 (April 25, 1974), cited in John R. Labovitz, Presidential Impeachment (1978) at 189. confronted with massive factual detail compiled by the staff, in the form of 650 "statements of information" and more than 7,200 pages of supporting evidentiary material, furnished to each Member of the Committee in 36 notebooks. Committee Members heard recordings from nineteen presidential conversations and dictabelt recollections. Eventually, the Committee became privy to a tape recording of President Nixon ordering the cover-up the Watergate break in shortly after it occurred.305 None of these independent factual determinations have been conducted in the present inquiry. The fact that the Committee has received voluminous materials from the OIC does not relieve us of our obligation to conduct our own independent review of the facts. The Constitution is clear in specifying that the "House of Representatives * * * shall have the sole Power of Impeachment." 306 The Framers crafted this requirement with good reason-impeachment as a political process is intended to be subject to political accountability. By contrast, the OIC is subject to no such constraints and no such accountability.307 Although the impeachment of a federal judge does not provide the same weighty considerations as the impeachment of a president, it is instructive to note that in such contexts the Committee has chosen to call its own witnesses in order to develop an independent case against the judge charged with misconduct. For example, when Judge Nixon was impeached in 1989, even though he had already been convicted in a jury trial with the full panoply of due process rights, the Committee conducted seven full days of hearings during which nine witnesses testified. An even more telling precedent concerns the 1988 impeachment of Judge Hastings. His impeachment was considered pursuant to a referral by the Judicial Conference under 28 U.S.C. §372(c)(7)(B). Very much like the OIC Referral, the Judicial Conference included a comprehensive report of 841 pages, detailing a variety of potentially impeachable conduct, and including a review of numerous district court records, FBI files, Justice Department investigatory files, grand jury materials, bank, financial and other records, and the locating and interviewing of numerous witnesses. Notwithstanding the magnitude and comprehensiveness of the Judicial Conference Referral, during Judge Hastings' impeachment the Committee opted to hold seven days of hearings during which 12 witnesses testified. An additional 60 witnesses were separately interviewed or deposed. In failing to call any witnesses who could make out a case against President Clinton and subjecting such witnesses to cross examination, the Majority did not merely deny the President of some trivial rules of procedure. Rather, the Committee has undercut the very cornerstone of our nation's sense of fairness and due process. Summarizing this long and distinguished heritage, the Supreme Court wrote in 1895 that the presumption of innocence "is to be found in every code of law which has reason, and religion, and humanity, for a foundation. It is a maxim which ought to be 305 Impeachment of Richard M. Nixon, President of the United States, H.R. Rep. No. 93–1305, 93rd Cong., 2d Sess., at 9, 166. 306 U.S. Const. Art. II, Sec. 2 (emphasis supplied). 307 See e.g., Julie R. O'Sullivan, The Interaction between Impeachment and the Independent Counsel Statute, 86 Geo. L. J. 2193 (1998); Ken Gormley, Impeachment and the Independent Counsel: A Dysfunctional Union, Stan. L. Rev. ___ (1998). inscribed in the heart of every judge and juryman." 308 The presumption of innocence has been traced to Deuteronomy, and was embodied in the laws of ancient Rome, Sparta and Athens. 309 The right to confront and cross-examine one's accusers is specifically referenced in the Sixth Amendment to the Bill of Rights.310 Justice Frankfurter has eloquently written that "[n]o better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it."311 The leading treatise on evidence, written by Professor Wigmore, declares that "[t]he belief that no safeguard for testing the value of human statements is comparable to that furnished by cross-examination, and the conviction that no statement *** should be used as testimony until it has been probed and sublimated by that test, has found increasing strength in lengthening experience.312 Significantly, these critical protections are not limited to criminal trials, they have been afforded to parties in numerous other legal contexts.313 When the allegations that the President undertook efforts to obstruct Kathleen Willey's testimony led nowhere, the Majority expanded the impeachment inquiry to include allegations that the President violated federal campaign finance laws.314 The Majority took this course despite the fact that both the Senate Governmental Affairs Committee and the House Government Reform and Oversight Committee had investigated the same allegations to no avail. The Republicans on the Judiciary Committee succeeded in their motion to subpoena and depose FBI Director Louis Freeh and Justice Department Campaign Finance Task Force Chief Charles LaBella.315 The Republicans ultimately canceled all campaign finance-related fishing expeditions.316 The rationale for canceling the depositions would be unclear except for the fact that, contemporaneous to scheduling depositions, the Majority was making efforts to view memoranda prepared by Director Freeh and Mr. LaBella for a Justice Department investigation of the alleged campaign finance violations. The U.S. District Court for the District of Columbia, which controlled access to the memoranda pursuant to a grand jury investigation of the alleged violations, issued a ruling that allowed one staff member from the Majority side of the Committee and one staff member from the Minority side of the Committee to review the memoranda.317 It was after the Majority reviewed the memoranda that * * 310 In all criminal prosecutions, the accused shall enjoy the right * to be confronted with the witnesses against him." U.S. Const. Amend. VI. 311 Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 170 (1951). 3125 Wigmore on Evidence (3d ed. 1940) §1367. 313 See e.g., In re Gault, 387 U.S. 1 (1967) (due process protections held to apply in non-criminal juvenile proceedings); Goldberg v. Kelly, 397 U.S. 254, 262-63 (1970) (due process requirements applicable in context of termination of welfare benefits). 314 Juliet Eilperin & Ruth Marcus, Both Sides Harden Impeachment Views: Widening of Probe Irks Democrats, Washington. Post, Dec. 2, 1998, at A1; Alison Mitchell, Panel Seeks Fund-Raising Memos, Stirring Democrats, New York Times, Dec. 2, 1998, at A20. 315 Eilperin & Marcus, supra; Mitchell, supra. 316 Guy Gugliotta & Juliet Eilperin, Panel Gives Up Campaign Probe, Washington Post, Dec. 4, 1998, at A1; Alison Mitchell, Republicans Drop Bid to Investigate Clinton Campaign, New York Times, Dec. 4, 1998, at Al. 317 Peter Baker & Juliet Eilperin, “Vigorous Defense" of Clinton is Pledged, Washington Post, Dec. 3, 1998, at Al. the depositions of Director Freeh and Mr. LaBella were canceled finally. The decision to cancel the depositions in light of whatever information was gleaned from the memoranda reveals that the claims about campaign finance violations had no foundation-a conclusion already reached by Attorney General Janet Reno in her decision not to appoint independent counsels to investigate either the President or Vice President Al Gore.318 2. Unfairness in the Drafting of the Articles of Impeachment The Majority also failed to inform the Minority, the President, or the public in any timely manner what the charges against the President would be. The Referral, itself, listed eleven acts that could constitute grounds for impeachment of the President.319 At his presentation before the Committee on October 5, 1998, Majority counsel, David Schippers, listed fifteen acts that could constitute grounds for impeachment.320 First, we heard there were eleven charges, then fifteen, then eleven again, and then three. This is in stark contrast with the Watergate inquiry, which not only achieved significant bipartisan agreement on the final articles of impeachment, but achieved even broader consensus on the procedural fairness afforded President Nixon. This was illustrated by the fact that immediately before the Committee voted out impeachment articles, a bipartisan group of Members appeared together on television and stated that the inquiry had been conducted fairly and was nonpartisan.321 During the Watergate inquiry, the chief Majority and Minority Counsels (John Doar and Albert Jenner, Jr.) coordinated all investigative work on a bipartisan basis, and both ultimately recommended the course of impeachment to the Committee. On December 9, 1998, the Majority introduced a tentative draft of four articles of impeachment without having had one, single day of hearings on the evidence. The Minority members received this 318 In addition, the following instances of procedural unfairness occurred in connection with our inquiry: (1) On September 11, 1998, the resolution relating to the release of the OIC materials, H. Res. 525, was introduced in the absence of bipartisan agreement. In particular, the Majority failed to offer the President an opportunity to review and respond to the Referral before it was released, and reneged on their promise that the initial review of the materials would be limited to the Chairman and Ranking Member in order to minimize the risk of damaging leaks. (2) On September 15, 1998, the Majority unilaterally sought to obtain access to a videotaped copy of the President's January 17 deposition in the Paula Jones case. (3) On November 5, 1998, Chairman Hyde unilaterally issued a set of 81 questions to President Clinton for his response. The questions were not approved by any other Member of the Committee, and no advance copy was provided to the Minority. (4) On November 17, 1998, the Majority rejected a request to grant the President's lawyers two hours to question OIC Starr during his testimony. No time limitation on questioning by President Nixon's lawyers was over imposed during the Watergate Inquiry. (5) On November 24, 1998, Chairman Hyde unilaterally sought to requested that the Secret Service provide information regarding discussions between President Clinton and his High School classmate Dolly Kyle Browing at their 1994 high school reunion. Again, this request was not approved by any other member of the Committee, and no advance copy was provided to the Minority. Ultimately, out of 53 procedural and executive session votes taken by the committee 31 were on straight or near party line votes. 319 Referral from Independent Counsel Kenneth W. Starr, H.R. Doc. 310, 105th Cong., 2d Sess. 129-210 (1998). 320 Investigatory Powers of the Committee on the Judiciary with Respect to its Impeachment Inquiry, H.R. Rep. No. 795, 105th Cong., 2d Sess. 11-24 (1998). 321 On July 21, 1998 Rep. Charles Wiggins (R-CA), Don Edwards (D-CA), Walter Flowers (DCA), and Robert McClory (R-IL) appeared on the ABC television program "Issues and Answers" and stated that the impeachment inquiry had been conducted fairly. For example, Rep. Wiggins stated "by and large it has been fair * ** I have no great quarrel [with the investigation]." 3 Facts on File Watergate and the White House 210 (1974). |