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In refusing to produce these papers and things . substitut[ed] his judgment as to what materials were necessary for the inquiry, interposed the powers of the presidency against the lawful subpoenas of the House of Representatives, thereby assuming to himself functions and judgments necessary to the exercise of the sole power of impeachment vested by the Constitution in the House of
Representatives[, and thus warrants impeachment]. Impeachment of Richard M. Nixon at 188.
The Committee found that by not providing the subpoenaed information, President Nixon "interfer[ed) with the discharge of the Committee's responsibility to investigate fully and completely whether sufficient grounds exist[ed] to impeach him.” Id. at 189. In addition, his "defiance of the Committee forced it to deliberate and make judgments on a record that ... was 'incomplete'.” Id. at 190. The President “is obligated to supply . . . relevant evidence necessary for Congress to exercise its constitutional responsibility in an impeachment proceeding.” Id. at 213. Finally, as Chairman Rodino stated in a letter to President Nixon:
Under the Constitution it is not within the power of the President to conduct an inquiry into his own impeachment, to determine which evidence, and what version or portion of that evidence, is relevant and necessary to such an inquiry. These are matters which, under the Constitution,
the House has the sole power to determine. Id. at 194, quoting letter from Chairman Rodino to President Richard M. Nixon (May 30, 1974).
By refusing and failing to respond to some of the Judiciary Committee's requests for admissions, and by answering others in a perjurious, false and misleading fashion, President Clinton committed acts and omissions of the same nature as those committed by President Nixon. The 81 requests for admissions went to facts at the heart of the conduct which form the basis of the Committee's impeachment investigation. That full and truthful responses were crucial to the investigation was made clear by the fact that responses were made under oath and, had they not been forthcoming, would have been compelled by subpoena. The information requested was clearly as important to the Committee's investigation in 1998 as were the items sought to be subpoenaed by the Committee in 1974.
Where President Clinton failed to respond, he, just as President Nixon, took it upon himself, as Chairman Rodino had stated, to "determine which evidence, and what version or portion of that evidence, is relevant and necessary to such an inquiry.” President Clinton assumed to himself functions and judgments necessary to the exercise of the sole power of impeachment vested by the Constitution in the House of Representatives and thereby committed impeachable offenses.
President Clinton did no less when he provided the Committee with perjurious, false and misleading responses to other requests for admissions. It is ludicrous to suppose that it is impeachable to fail to provide certain requested information, yet at the same time not impeachable to provide false information. For it is probable
that President Clinton caused more harm to the Committee's investigation by providing false responses than he would have by providing no responses at all. Just as with President Nixon, he showed contempt for the legislative branch and impeded Congress's exercise of its Constitutional responsibility, thus justifying impeachment.
V. COMMITTEE CONSIDERATION OF IMPEACHMENT PROCEEDINGS On January 16, 1998, in response to Attorney General Janet Reno's request, the Special Division of the United States Court of Appeals for the District of Columbia Circuit, expanded the jurisdiction of Independent Counsel Kenneth W. Starr. The Special Division's order provides in pertinent part:
The Independent Counsel shall have jurisdiction and authority to investigate to the maximum extent authorized by the Independent Counsel Reauthorization Act of 1994 whether Monica Lewinsky or others suborned perjury, obstructed justice, intimidated witnesses, or otherwise violated federal law other than a Class B or C misdemeanor or infraction in dealing with witnesses, potential witnesses, attorneys, or others concerning the civil case Jones
v. Clinton. In re: Madison Guaranty Savings and Loan Association, Order of the United States Court of Appeals for the District of Columbia Circuit, Division for the Purpose of Appointing Independent Counsels, January 16, 1998 (reprinted in H.R. Doc. 105–311, Part I, at
On September 9, 1998, Independent Counsel Starr notified Speaker Gingrich and Minority Leader Gephardt that his office "delivered to the Sergeant at Arms, the Honorable Wilson Livingood, 36 sealed boxes containing two complete copies of a Referral to the House of Representatives." Letter from Independent Counsel Kenneth W. Starr to The Honorable Newt Gingrich and the Honorable Richard A. Gephardt, September 9, 1998. The Referral included a narrative, appendices, and supporting documents and evidence (including grand jury transcripts) which supported the Office of Independent Counsel's findings regarding the Lewinsky matter.
Independent Counsel Starr forwarded this information pursuant to the Independent Counsel Reauthorization Act, 28 U.S.C. $ 591 et. seq., which provides:
Information relating to impeachment.-An independent counsel shall advise the House of Representatives of any substantial and credible information which such independent counsel receives, in carrying out the independent counsel's responsibilities under this chapter, that may constitute grounds for an impeachment. Nothing in this chapter or section 49 of this title [concerning the assignment of judges to the Special Division that appoints an independent counsel] shall prevent the Congress or either House thereof from obtaining information in the course of an impeachment proceeding.
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28 U.S.C. $595(c) (1994). After the Sergeant at Arms received the materials, they were stored in a secure facility in the Ford Building. The room, which is equipped with security technology, is guarded by the U.S. Capitol police around the clock.
Soon after the delivery of the materials from Independent Counsel Starr, a bipartisan meeting of the House leadership was held in the Speaker's office to decide the manner in which the material would be handled. The meeting included Speaker Gingrich, Majority Leader Armey, Minority Leader Gephardt, Rules Committee Chairman Solomon, Rules Committee Democratic Member Frost, Judiciary Committee Chairman Hyde, and Judiciary Committee Ranking Minority Member Conyers.
The meeting took place at 5:00 p.m. in room H-230 in the Capitol. The main issue resolved at that meeting was the manner in which the material would be released to the public.
Chairman Hyde's original proposal did not include a provision for the immediate release of documents to the public. Instead, his plan included referring the communication from Independent Counsel Starr to the Judiciary Committee so that the Committee could review the material to determine whether sufficient grounds existed to recommend to the House that an impeachment inquiry be commenced. The material would have been deemed received in executive session and access to the material would have been restricted to the Members of the Committee on the Judiciary Committee. Chairman Hyde's draft resolution also contained investigative authorities, such as staff deposition authority, which would have enabled the Committee begin conducting an investigation. Chairman Hyde's proposal, particularly the provisions regarding the secrecy of the material and the investigative authorities, were rejected.
Although many Democrats and pundits have criticized the House of Representatives and the Committee for releasing the pertinent parts of Independent Counsel's Starr's referral, few know that a chief proponent of immediately releasing the information was Minority Leader Gephardt. Rep. Gephardt favored release because of his concern about leaks coming from the Committee. He argued that it would be futile to hold material back as there would be selective leaking, which would prejudice the President's case. Therefore, he stated that there was a general need to release all the material in the referral—including the appendices and supporting evidence to the public as soon as possible. In fact, he insisted that all of the information be made public. He expressed his sense that many Members of Congress, who did not serve on the Committee, would demand access to the supporting appendices, and it would be unwise for the Committee to restrict the access to those materials to Judiciary Committee Members only. Minority Leader Gephardt also requested that the President be allowed to obtain a copy of the narrative 24 hours before its public release, but did not insist on his request which he abandoned quickly.
Rep. Conyers argued against the release of the materials as did his chief investigative counsel. They were concerned about the sensitivity of the material, particularly grand jury material, and requested that the Committee be given an opportunity to thoroughly review the material. In fact, Rep. Conyers' position regarding public access to the material was similar to Chairman Hyde's original position. At one point during the meeting, Rep. Conyers and Minority Leader Gephardt argued about the advisability of releasing the material to the public for several minutes. Minority Leader Gephardt's position eventually prevailed with one modification. Instead of releasing all of the material immediately, the House authorized the release of the narrative and then gave the Committee about two and a half weeks to review and release the remaining material by September 28, 1998. Speaker Gingrich, Minority Leader Gephardt, and Rules Committee Chairman Solomon made it clear toward the end of the meeting that the presumption was that the Committee would release all of the relevant material and should only redact personal, degrading, irrelevant, or other sensitive information.
On September 10, 1998, the Committee on Rules received testimony regarding the handling of the Referral. Hearing before the Committee on Rules on H. Res. 525, 105th Cong., 2nd Sess. (September 10, 1998). After the hearing, the Committee considered H. Res. 525, which provided for a deliberative review by the Committee on the Judiciary of a communication from an independent counsel, and for the release thereof. Id. The full House of Representatives approved H. Res. 525 on September 11, 1998, by a vote of 363–63. 144 Cong. Rec. H7587-H7608 (daily ed. September 11, 1998). As a result of the passage of H. Res. 525, the narrative was ordered printed as a House document. 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, 2nd Sess, 105th Cong., 129-130 (1998).
In addition to ordering the public release of the narrative, section two of H. Res. 525 directed that the "balance of [the] material
* * shall be released from [executive session status] on September 28, 1998, except as otherwise determined by the committee. Material so released shall immediately be submitted for printing as a document of the House.” Pursuant to this directive, the Committee staff reviewed over 60,000 documents in less than three weeks. The task was daunting and required a great deal of staff resources to complete the job within the allotted time frame. After the staff and Members reviewed the material, the Committee met in executive session on September 17, 18, and 25 to consider the staff's recommendations regarding the release of materials and proposed redactions to those materials which were made to protect privacy, remove vulgarities, and protect sensitive law enforcement information, such as the names of FBI agents. See Votes of the Committee in Executive Session Pursuant to H. Res. 525, Committee on the Judiciary, House of Representatives, Committee Print, Ser. No. 7, 105th Cong., 2nd Sess. (1998). On September 18 and pursuant to H. Res. 525, redacted appendices to the Referral were ordered printed as a House document, (Appendices to the Referral to the United States House of Representatives Pursuant to Title 28, United States Code, Section 595(c) Submitted by the Office of the Independent Counsel, September 9, 1998, H.R. Doc. 105–311, 105th Cong., 2nd Sess. (September 18, 1998)), and redacted supplemental materials to the referral were released on September 28. Supplemental Materials to the Referral to the United States House of Representatives Pursuant to Title 28, United States Code, Section 595(c) Sub
mitted by the Office of the Independent Counsel, September 9, 1998, H.R. Doc. 105–316, 105th Cong., 2nd Sess. (September 28, 1998). Also, on September 28, the President's responses to the Referral, which were received by the Committee in executive session, were ordered printed as a House document. Preliminary Memorandum of the President of the United States Concerning Referral of the Office of the Independent Counsel and Initial Response of the Fresident of the United States to Referral of the Office of the Independent Counsel, H.R. Doc. 105–317, 105th Cong., 2nd Sess. (September 28, 1998).
Pursuant to H. Res. 525, the Committee was also obligated to “determine whether sufficient grounds exist to recommend to the House that an impeachment inquiry be commenced." In order to fulfill that important obligation, the Chairman and Ranking Minority Member directed the majority and minority chief investigative counsels to advise the Committee regarding the information referred by the Independent Counsel. The Committee received their orally delivered reports on October 5, 1998. The Committee's Chief Investigative Counsel advised that there was enough information to warrant a full inquiry, while the minority's chief investigative counsel advised against conducting a full inquiry. Following those presentations, the Committee approved a resolution, H. Res. 581, which recommended that the full House of Representatives authorize the Committee to conduct an impeachment inquiry. Also, on that day the Committee considered and approved by voice vote impeachment inquiry procedures which were modeled after the procedures used in 1974. Authorization of an Inquiry Into Whether Grounds Exist for the Impeachment of William Jefferson Clinton, President of the United States; Meeting of the House Comm. on the Judiciary Held October 5, 1998; Presentation by Inquiry Staff Consideration of Inquiry Resolution Adoption of Inquiry Procedures, Committee Print, Ser. No. 8, 105th Cong., 2nd Sess. (December 1998). On October 7, the Committee filed its report on H. Res. 581 in the House. Investigatory Powers of the Committee on the Judiciary with Respect to its Impeachment Inquiry, H.R. Rept. 105,795, 105th Cong., 2nd Sess. (October 7, 1998). On October 8, by a vote of 258 to 176, the House passed H. Res. 581, which "authorized and directed [the Committee on the Judiciary) to investigate fully and completely whether sufficient grounds exist for the House of Representatives to exercise its constitutional power to impeach William Jefferson Clinton, President of the United States of America." 144 Cong. Rec. H10119 (daily ed. October 8, 1998).
After the passage of H. Res. 581, Committee staff were directed to investigate fully the allegations and evidence relating to the Referral. Furthermore, the staff met with representatives of the White House to discuss ways in which the inquiry could proceed expeditiously. At an October 21, 1998 meeting, Charles F.C. Ruff, counsel to the President, and his colleagues, were asked to provide exculpatory information to the Committee. They did not supply any information. Also, the White House was provided copies of the Committee's procedures which, inter alia, allowed the President's counsel to call witnesses. They did not exercise this right until the Committee was preparing to vote on articles of impeachment.