tails. Hernreich 6/16/98 GJT at 53-54; Supplemental Materials (H. Doc. 105-316) at 1400. Ms. Hernreich also testified that she did not have any conversations with senior staff about Ms. Lewinsky's efforts to return to a White House job. Hernreich 6/16/98 GJT at 6364; Supplemental Materials (H. Doc. 105-316) at 1402. 3. Ms. Hernreich testified that she had been instructed by White House attorneys to invoke executive privilege with respect to any questions about conversations she may have had with the President about Kathleen Willey. Hernreich 2/25/98 GJT at 45-46; Supplemental Materials (H. Doc. 105-316) at 1325. After abandoning this claim, Ms. Hernreich testified that she had conversations with the President about the suicide of Ms. Willey's husband and efforts to get Ms. Willey a job in the White House. Hernreich 3/31/98 GJT at 104-08; Supplemental Materials (H. Doc. 105-316) at 1384-85. She further testified that later she had a conversation with the President in which she informed him of a call from Ms. Willey in which Ms. Willey informed Ms. Hernreich that a reporter was asking questions about the Willey incident. Ms. Hernreich thought that the President might have told her to relay this information to Mr. Lindsey. Hernreich 6/16/98 GJT at 59-60; Supplemental Materials (H. Doc. 105-316) at 1401. 4. "Then my question to you is now: Tell the grand jurors the content of those conversations, as you remember them. And do you want to tell us that, or do you invoke privilege?" Hernreich 2/25/ 98 GJT at 54; Supplemental Materials (H. Doc. 105-316) at 1326. (The question refers to Ms. Hernreich's conversation with Bruce Lindsey about Ms. Lewinsky.) After abandoning this claim, Ms. Hernreich testified that she did not recall any discussions she had with Mr. Lindsey about Ms. Lewinsky and Ms. Tripp. Hernreich 6/16/98 GJT at 51; Supplemental Materials (H. Doc. 105-316) at 1400. She later testified that she might have had ten to twenty conversations with Mr. Lindsey about Ms. Lewinsky, but that only one or two of them would have involved more than general mention of the story in the press. Hernreich 6/16/98 GJT at 99-102; Supplemental Materials (H. Doc. 105-316) at 1408. 5. Q. Okay. I'm not going to go to the content, but let me explain the reason I'm asking it, because I thought as we understood it, that the demarcation for Monica Lewinsky was after the story broke-which would have been on or about January 21st or 23rd, somewhere in that area. So given that as what you've previously indicated as sort of your framework for invoking executive privilege, the conversations with Bruce Lindsey-I'm not going to ask you the content, but did the conversation with Bruce Lindsey concern Monica Lewinsky? A. I would like to claim executive privilege on my conversations with Bruce Lindsey. Q. Even to as to identify the nature of the topic? A. Yes. Hernreich 2/25/98 GJT at 61; Supplemental Materials (H. Doc. 105-316) at 1328. After abandoning this claim, Ms. Hernreich testified that she did not recall any discussions she had with Mr. Lindsey about Ms. Lewinsky. Hernreich 6/16/98 GJT at 51; Supplemental Materials (H. Doc. 105-316) at 1400. She later testified that she might have had ten to twenty conversations with Mr. Lindsey about Ms. Lewinsky, but that only one or two of them would have involved more than general mention of the story in the press. Hernreich 6/ 16/98 GJT at 99-102; Supplemental Materials (H. Doc. 105–316) at 1408. 6. Ms. Hernreich testified that these conversations did not involve any national security, state secret, or official governmental matters. Hernreich 2/25/98 GJT at 65-66; Supplemental Materials (H. Doc. 105-316) at 1328. IV. THE CONSTITUTIONAL PROCESS OF IMPEACHMENT A. GENERAL ARGUMENTS ABOUT IMPEACHMENT 1. Constitutional provisions The following provisions in the Constitution relate to impeachment: "The House of Representatives shall choose their Speaker and other Officers; and shall have the sole Power of Impeachment." U.S. Const. art. I, sec. 2. "The Senate shall have the sole power to try all Impeachments." U.S. Const. art. I, sec. 3, cl. 6. "Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgement and Punishment, according to Law." U.S. Const. art. I, sec. 3, cl. 7. "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." U.S. Const. art. II, sec. 4. 2. Impeachment is not removal from office Some have suggested that impeachment is equivalent to removal from office. This suggestion is patently false. Article II of the Constitution specifies that the President "shall be removed from Office on Impeachment for, and Conviction of" certain offenses. U.S. Const. art. II, sec. 4 (emphasis added). The language is clear on its face. Elsewhere the Constitution sets forth the procedure that is to be used to address the derelictions of the President, and that procedure demonstrates that impeachment is the charging phase, and trial by the Senate is the conviction and removal phase. Article I gives the House of Representatives "the sole Power of Impeachment," U.S. Const. art. I, sec. 2, and gives the Senate "the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation." U.S. Const. art. I, sec. 3. The Constitution gives each House of Congress a specific duty: the House serves as accuser, the Senate as judge. Representative Barbara Jordan, a Democrat from Texas who served on the Judiciary Committee during the impeachment inquiry of President Richard Nixon, described this delegation of duties as follows: It is wrong, I suggest, it is a misreading of the Constitution for any member here to assert that for a member to vote for an article of impeachment means that that member must be convinced that the president should be removed from office. The Constitution doesn't say that. The powers relating to impeachment are an essential check in the hands of this body, the legislature, against and upon the encroachment of the executive. In establishing the division between the two branches of the legislature, the House and the Senate, assigning to the one the right to accuse and to the other the right to judge, the framers of the Constitution were very astute. They did not make the accusers and the judges the same person. Debate on Articles of Impeachment, p. 111 (1974). At the Markup of the Articles of Impeachment, Chairman Hyde echoed these thoughts: The framers' decision to confine legislative sanctioning of executive officials to removal upon impeachment was carefully considered. By forcing the House and Senate to act as a tribunal and a trial jury rather than merely as a legislative body, they infused the process with notions of due process. The requirement of removal upon conviction accentuates the magnitude of the procedure, encouraging serious deliberation among Members of Congress. Markup Session, Articles of Impeachment of William Jefferson Clinton, Statement of Chairman Henry J. Hyde, December 12, 1998, at 172. It is abundantly clear that removal cannot occur until the Senate's trial has concluded in conviction. 3. Impeachment Does Not Overturn an Election One rhetorical device that has recently been employed by some who oppose the impeachment of President Clinton is that impeachment of the President will "overturn the election." The suggestion is that the congressional majority is using impeachment for political reasons-to undo a presidential election in which their party did not succeed. The success of this rhetorical strategy rests wholly on the expectation that those to be persuaded by it will not read the Constitution. The Twenty-Fifth Amendment to the Constitution, which was ratified on February 10, 1967, states: "In case of the removal of the President from office or of his death or resignation, the Vice President shall become President." Since the vice presidential and presidential candidates run for office on the same ticket, impeachment of the President could not possibly result in a change of political party control in the Executive. Any assertion to the contrary is patently false. 4. A Senate Trial of an Impeachment is a Constitutional Process Another debating tactic recently employed by those who oppose impeachment is to portray the trial in the Senate as an unbearable exercise for the country. This tactic is undoubtedly designed to alarm the public, and to aggravate the discomfort already inherent in the notion of impeaching a president. Representative Charles T. Canady addressed this argument on December 12, 1998 during the debate on the motion to adopt a joint resolution of censure: Now, we have a responsibility to follow the Constitution. Now, we have heard many suggestions about what will happen if this President is impeached. We have heard horror story after horror story. But do we have such fear of following the path marked out for us by the Constitution that we would take it upon ourselves to go down a different path, a path of our own choosing? Will we let our faith in the constitution be put aside and overwhelmed by the fears that have been feverishly propagated by the President's defenders? Now, there is no question that this is a momentous issue. There is no question that impeaching a President of the United States is a momentous act. But this is not a legislative coup d'etat. This is a constitutional process. There is a great deal of evidence before us, but in its essentials, this is a rather simple case. It can be resolved by the Senate expeditiously. We should reject the scare tactics, we should reject the effort to have us turn away from our constitutional duty, we should vote down this motion and move forward with doing our duty in the House of Representatives. Markup Session, Articles of Impeachment of William Jefferson Clinton, Statement of Representative Charles T. Canady, December 12, 1998, at 210-11. It is clear that a Senate trial following impeachment would not be an extraordinary event, but it would be a methodical procedure of regular constitutional order. Those finding fault with the idea of a trial are really faulting the Constitution, and not those who believe President Clinton has committed offenses deserving impeachment and removal. B. ARTICLES OF IMPEACHMENT AGAINST PRESIDENT CLINTON 1. Article I-Grand Jury Perjury a. Facts Article I charges President Clinton with "willfully provid[ing] perjurious, false and misleading testimony" to a federal grand jury on August 17, 1998. A review of the judicial impeachments of the 1980s makes it clear that when a president knowingly makes false statements under oath, especially when the statements meet the standards of perjury, he has committed impeachable offenses. This is true whether or not the statements are in regard to matters related to his official duties. The first article of impeachment against President Clinton, in charging that he made perjurious, false and misleading statements to a federal grand jury, can be challenged on two other bases. The first, that the President's statements were literally true, has already been dismissed. The second is that the statements were not material to the matters being considered by the grand jury convened by the Office of Independent Counsel. As one of the matters the grand jury was considering was the OIC's investigation of "whether Monica Lewinsky or others had violated federal law in connection with the Jones v. Clinton case", materiality would be determined by whether the President's affair with Ms. Lewinsky was material to that case. Referral from Independent Counsel Kenneth W. Starr in Conformity with the Requirements of Title 28, United States Code, Section 595(c), H.R. Doc. 105-310, 105th Cong., 2d Sess. at 8 (1998). Unfortunately for the President's argument, on May 26, the United States Court of Appeals for District of Columbia Circuit ruled that President Clinton's affair with Monica Lewinsky was material to the Jones v. Clinton lawsuit. The court stated that: [Monica] Lewinsky tells us. . . the government could not establish perjury because her denial of having had a "sexual relationship" with President Clinton was not "material" to the Arkansas proceeding [the Jones case] within the meaning of 18 U.S.C. §1623(a); and her affidavit containing this denial could not have constituted a "corrupt[] endeavor[] to influence" the Arkansas district court. A statement is "material" if it "has a natural tendency to influence, or was capable of influencing, the decision of the tribunal in making a [particular] determination. The "central object" of any materiality inquiry is "whether the misrepresentation or concealment was predictably capable of affecting, i.e., had a natural tendency to affect, the official decision.". . . Lewinsky used the statement in her affidavit... to support her motion to quash the subpoena issued in the discovery phase of the [Jones] litigation. District courts faced with such motions must decide whether the testimony or material sought is reasonably calculated to lead to admissible evidence and, if so, whether the need for the testimony, its probative value, the nature and importance of the litigation, and similar factors outweigh any burden enforcement of the subpoena might impose. There can be little doubt that Lewinsky's statements in her affidavit were . . . "predictably capable of affecting" the decision. She executed and filed her affidavit for this very purpose. In re Sealed Case, No. 98-3052, slip op. at 4-6 (D.C. Cir. May 26, 1998) (citations omitted). It is true that the above opinion was in regard to whether Ms. Lewinsky could quash a subpoena to produce items and testify in the case of Jones v. Clinton regarding her alleged affair with President Clinton. However, the reasons for which the court upheld the subpoena as material to the Jones case are directly applicable to whether Ms. Lewinsky's affidavit was material to the Jones case. In both cases, the essential question was whether Lewinsky's alleged affair with President Clinton was material to the Jones case. Why would Ms. Lewinsky's affair with President Clinton be material to the Jones case? Because in "he-said, she-said" sexual harassment cases such as Paula Jones's, patterns of conduct are important evidence in establishing that harassment has in fact occurred. President Clinton's conduct in relation to other subordinate |